/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150115.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 15, 2015, Vol. 17, No. 11 Headlines ABM SECURITY: Summary Judgment Ruling in "Augustus" Case Reversed ADIR INTERNATIONAL: Has Made Unsolicited Calls, Action Claims AEROTEK INC: Dist. Court Compels Discovery in "Drake" Suit AETERNA ZENTARIS: Sued in N.J. Over Misleading Financial Reports AETNA INC: Cal. Patients Fight Change on Health Insurance Policy AETNA INC: Court Grants Manz's Reconsideration Bid in ERISA Case AGEHA JAPANESE: "Ie" Suit Seeks to Recover Unpaid Overtime Wages ARCH RESOURCES: Dist. Court Tosses Bid to Remand "Yocupicio" Case ARS NATIONAL: Accused of Violating Fair Debt Collection Act BANK OF AMERICA: $5.8-Mil. "Boyd" Class Settlement Approved BLUESTONE PROPERTY: Faces Class Action Over EMSA Fees BNK-BUSINESS REALTY: "Gama" Suit Seeks to Recover Unpaid OT Wages BNY MELLON: Obtains Favorable Ruling in MBS Class Action BP WEST: "Kelly" Class Action Dismissed with Prejudice BUILDING MATERIALS: April 22 Settlement Approval Hearing Set C & H LAWN: Faces "Tejada" Suit Over Failure to Pay Overtime CALIFORNIA: To Fight Class Action Over Education Funding Formula CERTIFIED CREDIT: Illegally Collects Debt, "Jones" Suit Claims CRST VAN: EEOC Obtains Favorable Ruling in Fee Award Dispute DAIMLER: Supreme Court Ruling May Provoke More Litigation DE ROSSI AND SON: Faces "Gonzalez" Suit Over Failure to Pay OT DELAWARE MANUFACTURED: Summary Judgment Entered in Ridgewood Suit ECOTALITY INC: Settles Securities Suit for $1.1 Million ELI LILLY: Obtains Favorable Ruling in Cymbalta Class Action ENTERGY CORPORATION: Class Cert. Ruling in Jenkins Case Reversed FACEBOOK INC: Judge Allows Privacy Class Action to Proceed FANNIE MAE: April 3 Proof of Claim Submission Deadline Set FEDERATED SERVICE: Summary Judgment Bids Ruled in "Stoms" Suit FIRST STUDENT: Removes "Hurst" Suit to Oregon District Court FIRSTSOURCE ADVANTAGE: Sued for Abusing Fair Debt Collection Act FLY LOW: Suit Seeks to Recover Straight Wages, Damages Under FLSA FREEDOM INDUSTRIES: Hearing Held on Conflict of Interest GEICO GENERAL: Trial Court Ruling in "Elberson" Case Reversed GENERAL MOTORS: Volts Have Defective Steering System, Suit Claims GERBER PRODUCTS: Mislabeling Class Suit in California Dismissed GLOBAL TRAVEL: Has Made Unsolicited Calls, "Turner" Suit Claims GOLDMAN SACHS: Can't Arbitrate NCUA Dispute Over MBS Sale GRAND REVIEW: Faces "Bravo" Suit Over Failure to Pay Overtime GRILL CONCEPTS: "Jerome" Suit Seeks to Recover Unpaid OT Wages HAYWARD INDUSTRIES: Obtains Initial OK of Hayward, Zodiac Deals HEALTH NET: Faces Class Suit Over Alleged Inferior Health Plans HOLMES EUROPEAN: Faces Suit Over Communications Act Violations HOOTERS OF TRUSSVILLE: Suit Seeks to Recover Unpaid OT Wages INTELLIGENT MEXICAN: Obtains Favorable Ruling in Class Action INTER-CON SECURITY: Denial of Bid to Compel Arbitration Upheld JACK IN THE BOX: Trial Court Ruling Upheld in Customers' Suit JAMBA JUICE: Class Action Plaintiffs Foreswear Collective Damages JEFFREY-ALLEN INC: Removes "Aguda" Suit to Florida District Court JOHNSON & JOHNSON: Jilted Class Action Attorney Sues Plaintiff JOURNAL COMMUNICATIONS: Sued Over Misleading Financial Reports KIMBERLY-CLARK CORP: Court Junks "Flushable" Toilet Paper Suit KINETIK INDUSTRIAL: "Michael" Class Suit Removed to S.D. Florida KINGS COUNTY, CA: Faces Convict Laborers' Class Action KINRAY INC: Fernandez, et al. Allowed to Amend Class Action LAPTOP & DESKTOP: Sued in N.Y. Over Illegal Business Practices LEPAGE BAKERIES: Illegally Withholds Employees Wages, Suit Claims MARION, IN: Jails Inmates Days After Release Date, Suit Says MASSAGE ENVY: Removes "Robinson" Suit to Florida District Court MCKESSON CORPORATION: Court Rules on Discovery Request MF GLOBAL: January 21 Deadline Set for Settlement Objections NAT'L FOOTBALL: 7 Players Can't Appeal Conditional Certification NAVISTAR INC: "Klinger" Suit Included in MaxxForce Engines MDL NAVISTAR INC: Priority Suit Consolidated in MaxxForce Engines MDL NEATO BURRITO: Faces "Ruggiero" Suit Over Failure to Pay Overtime NEW YORK, USA: Sued for Collecting Info on Mental Health Patients NIELSEN AUDIO: Has Until Feb. 13 to Respond to "Orea" Class Suit ONE STOP PERSONNEL: Removes "Rojas" Suit to W.D. Pennsylvania OPTICAL EXPRESS: 50 Patients Join Class Action Over Mplus X Lens PACIFIC BELL: Class Cert. Denial in "Koval" Case Affirmed PAUL COMO: Fails to Pay Workers Overtime, "Moran" Suit Claims PEARL RIVER: Trial Court Judgment in Crowe Case Amended in Part PETSMART INC: Being Sold for Too Little, Shareholders Claim PROFESSIONAL BUREAU: Sued for Violating Fair Debt Collection Act PROSSER HOLDINGS: Judge Won't Reverse Fee Order in EFTA Suit RELIANCE GOLD: Faces "Coley" Suit in New Jersey District Court RUFFALOCODY LLC: Has Made Unsolicited Calls, "Anvar" Suit Claims SAGESMITH CONSULTING: Sued in N.Y. for Making Unsolicited Calls SKECHERS USA: Faces 18 Suits Arising From Sale of Toning Shoes SONY PICTURES: Faces "Exum" Suit in Cal. Over Alleged Data Breach SONY PICTURES: Faces 2nd "Exum" Suit Over Alleged Data Breach SPECIALIZED LOAN SERVICING: 3rd "Myart" Complaint Denied in Part SPENCER & LIVINGSTON: Wash. Court Revives "Riverview" Suit SYNGENTA CORP: "Collins" Suit Consolidated in MIR162 Corn MDL SYNGENTA CORP: "Krielow" Suit Consolidated in MIR162 Corn MDL SYNGENTA CORP: "McClain" Suit Consolidated in MIR162 Corn MDL SYNGENTA CORP: "McCorkle" Suit Consolidated in MIR162 Corn MDL SYNGENTA CORP: "Neely" Suit Consolidated in MIR162 Corn MDL SYNGENTA CORP: RJR Farms Suit Consolidated in MIR162 Corn MDL SZ ENTERPRISES: Court Rules on Summary Judgment Bids in FLSA Suit TAKATA CORPORATION: Faces "Gori" Suit Over Defective Airbags TARGET CORP: Judge's Data Breach Class Action Ruling Significant TING HSIN: Consumer Foundation Mulls Class Suit Over Tainted Oil TOP FINANCE: Denial of Arbitration Bid in "Guzman" Case Reversed UBER TECHNOLOGIES: DoJ Mulls Blind Customers' Discrimination Suit UBER TECHNOLOGIES: Illegally Collects Safe Ride Fees, Suit Claims UNARCO INDUSTRIES: Removes "Hernandez" Suit to E.D. Oklahoma UNITED STATES: Accused of Denying Medicare Coverage to Recipients UNITED STATES: Flores' Suit v. FBI Dismissed with Prejudice UNITED STATES: Labor Dep't Sued Over Alleged Sex Bias Claims VERIZON COMMS: Judge Tosses Class Suit Accord in Vodafone Deal WELLS FARGO: App. Ct. Affirms TRO v. ILG in "Lofton" Wages Suit WESTWOOD BOARDING: Sued Over Failure to Pay Employees Overtime WHOLE FOODS: "Frydman" Suit Consolidated in Greek Yogurt MDL YESHIVA BNOS: "Cordoba" Suit Seeks to Recover Unpaid OT Wages ZYNGA INC: "Lee" Securities Action May Proceed Against D&Os * Fax Ads Must Contain Opt-Out Notice Requirements Under JFPA * Video Games Sector Target of Publicity Case Attorneys ********* ABM SECURITY: Summary Judgment Ruling in "Augustus" Case Reversed ----------------------------------------------------------------- Jennifer Augustus and others, formerly security guards employed by ABM Security Services, Inc., allege on behalf of themselves and a class of similarly situated individuals that ABM failed to provide rest periods required by California law in that it failed to relieve security guards of all duties during rest breaks, instead requiring its guards to remain on call during breaks. The trial court certified a class and granted plaintiffs' motion for summary adjudication, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call. Plaintiffs then moved for summary judgment on the issue of damages, seeking unpaid wages, interest, penalties, attorney fees and an injunction. Finding no triable issue as to whether ABM was subject to approximately $90 million in statutory damages, interest, penalties, and attorney fees, the court granted the motion. According to the Court of Appeals of California, Second District, Division One, the summary adjudication and summary judgment orders rest on the premise that California law requires employers to relieve their workers of all duty during rest breaks. The Calif. Appeals Court concludes that the premise is false, and therefore reverses the orders. The certification order is affirmed, the Court added in its December 31, 2014 decision, a copy of which is available at http://is.gd/vvIjBqfrom Leagle.com. The case is JENNIFER AUGUSTUS, et al., Plaintiffs and Respondents, v. ABM SECURITY SERVICES, INC., Defendant and Appellant, NOS. B243788 & B247392. Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Theane Evangelis -- tevangelis@gibsondunn.com -- Andrew G. Pappas -- apappas@gibsondunn.com -- and Bradley J. Hamburger -- bhamburger@gibsondunn.com ; Littler Mendelson, Keith A. Jacoby -- kjacoby@littler.com -- and Dominic J. Messiha -- dmessiha@littler.com -- for Defendant and Appellant. Paul Hastings, Paul Grossman for California Employment Law Council and Employers Group as Amicus Curiae on behalf of Defendant and Appellant. Thompson & Knight, David R. Ongaro -- David.Ongaro@tklaw.com -- as Amicus Curiae on behalf of Defendant and Appellant. Horvitz & Levy, John A. Taylor, Jr. -- jtaylor@horvitzlevy.com -- Robert H. Wright -- rwright@horvitzlevy.com -- and Felix Shafir -- fshafir@horvitzlevy.com -- as Amicus Curiae on behalf of Defendant and Appellant. Shaw Valenza, D. Gregory Valenza -- gvalenza@shawvalenza.com -- as Amicus Curiae on behalf of Defendant and Appellant. Roxborough, Pomerance, Nye & Adreani, Drew E. Pomerance -- dep@rpnalaw.com -- Michael B. Adreani -- mba@rpnalaw.com -- and Marina N. Vitek -- mnv@rpnalaw.com ; The Ehrlich Law Firm, Jeffrey Isaac Ehrlich -- jehrlich@ehrlichfirm.com ; Initiative Legal Group, Monica Balderrama -- MBalderrama@InitiativeLegal.com -- and G. Arthur Meneses -- AMeneses@InitiativeLegal.com ; Scott Cole & Associates, Scott Edward Cole -- scole@scalaw.com -- and Matthew R. Bainer -- mbainer@scalaw.com ; Law Offices of Alvin L. Pittman, Alvin L. Pittman for Plaintiffs and Respondents. Law Offices of Louis Benowitz, Louis Benowitz as Amicus Curiae on behalf of Plaintiffs and Respondents. The Turley Law Firm, William Turley -- bturley@turleylawfirm.com -- and David T. Mara as Amicus Curiae on behalf of Plaintiffs and Respondents. ADIR INTERNATIONAL: Has Made Unsolicited Calls, Action Claims ------------------------------------------------------------- Ned Flores, individually and on behalf of all others similarly situated v. Adir International, LLC, Case No. 2:15-cv-00076 (C.D. Cal., January 6, 2015), is brought against the Defendant for negligently, knowingly, and willfully contacting the Plaintiff on the cellular telephone in violation of the Telephone Consumer Protection Act. Adir International, LLC is in the business of buying and collecting consumer debts. 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 AEROTEK INC: Dist. Court Compels Discovery in "Drake" Suit ---------------------------------------------------------- District Judge Barbara B. Crabb granted a motion to compel discovery in the case captioned ANDREW DRAKE, on behalf of himself and a class of employees and/or former employees similarly situated, Plaintiff, v. AEROTEK, INC., Defendant, NO. 14-CV-216- BBC, (W.D. Wis.). In this proposed class action, plaintiff Andrew Drake alleges that he and other employees like him have worked overtime for defendant Aerotek, Inc. without appropriate pay under Wisconsin wage and hour laws. The plaintiff filed a motion to compel discovery related to putative class members, current and former managers of class members, current and former office directors and certain documents in defendant's possession. Because the Plaintiff has shown that these requests are reasonably calculated to lead to information relevant to Plaintiff's arguments for class certification and defendant has not shown that the requests are unduly burdensome, plaintiff's motion will be granted, wrote Judge Crabb in her December 30, 2014 opinion and order, a copy of which is available at http://is.gd/NYGKhsfrom Leagle.com. The parties were given until January 6, 2015 to propose language for a protective order. Defendant Aerotek, Inc. must serve full and complete responses to plaintiff's discovery requests no later than noon on January 30, 2015, Judge Crabb added. Andrew Drake, Plaintiff, represented by Heath P. Straka -- straka@gcllawyers.com -- Gingras, Cates & Luebke, S.C., John C. Mitby -- JMitby@axley.com -- Axley Brynelson, LLP, Michael J. Modl -- mmodl@axley.com -- Axley Brynelson, LLP, Paul A. Kinne -- kinne@gcllawyers.com -- Gingras, Cates & Luebke, S.C. & Robert John Gingras -- gingras@gcllawyers.com -- Gingras, Cates & Luebke, S.C. Aerotek, Inc., Defendant, represented by John S. Battenfeld -- jbattenfeld@morganlewis.com -- Morgan, Lewis & Bockius, LLP, Joyce Elaine Taber -- jtaber@morganlewis.com -- Morgan Lewis, Lincoln O. Bisbee -- lbisbee@morganlewis.com -- Morgan, Lewis & Bockius LLP, Thomas F. Hurka -- thurka@morganlewis.com -- Morgan, Lewis & Bockius LLP & Kendall W. Harrison -- kharrison@gklaw.com -- Godfrey & Kahn, S.C. AETERNA ZENTARIS: Sued in N.J. Over Misleading Financial Reports ---------------------------------------------------------------- Jamshid Khodavandi, Individually and on Behalf of All Others Similarly Situated v. Aeterna Zentaris, Inc., David A. Dodd, Juergen Engel, Dennis Turpin, Jude Dinges, Richard Sachse, and Paul Blake, Case No. 3:15-cv-00091 (D.N.J., January 6, 2015), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Aeterna Zentaris, Inc.is a biopharmaceutical company primarily engaged in developing treatments in oncology and endocrinology. The Individual Defendants are officers and directors of Aeterna Zentaris, Inc. The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, PA 609 W. South Orange Avenue, Suite 2P South Orange, NJ 07079 Telephone: (973) 313-1887 E-mail: lrosen@rosenlegal.com AETNA INC: Cal. Patients Fight Change on Health Insurance Policy ---------------------------------------------------------------- Jamie Ross at Courthouse News Service reports that Aetna, starting January, will force customers with HIV or AIDS to buy medicine from a subsidiary or pay thousands of dollars or more each month, a class action claims in California Federal Court. John Doe, et al. sued Aetna, Aetna Healthcare, and Aetna Specialty Pharmacy on Dec. 19. They also claim that the new policy will invade their privacy. According to the 65-page lawsuit, Aetna enrollees as of Jan. 1 will be "required to obtain their specialty medications to treat HIV/AIDS and other serious illnesses from ASP, a wholly-owned subsidiary of Aetna." ASP delivers medications only by mail, threatening the privacy of HIV and AIDS patients, the class claims. "Class members who live in apartment buildings or will be required to have medications delivered to their work place have expressed alarm that neighbors and co-workers, who do not know that the recipient has HIV/AIDS, will come to suspect that they are ill," the lawsuit states. "Mail-order shipments also present the risk of lost or stolen medications, as each shipment of medications may be worth thousands of dollars." Also, enrollees will be forced to obtain medications based on the schedule of the delivery person, as the recipient must be present when the package arrives, the complaint adds. Patients who continue to use their community pharmacy "must pay thousands of dollars or more each month to purchase their medications at their community pharmacy (hereafter, the 'program')," the lawsuit states. "The dramatic cost increase is the result of Aetna's reduction in health plan benefits effectuated by transforming drug purchases at community pharmacies from an 'in-network' covered benefit to an 'out-of-network' payment." If enrollees choose to have their medications delivered, they say they will suffer a 20 percent co-insurance charge of up to $150 per prescription. Before the change, enrollees paid a fixed amount of $20-$70 per prescription. "For all but the wealthiest HIV/AIDS patients, such dramatic cost increases are untenable and thus many class members are left with no choice but to risk their health and privacy by obtaining their life-sustaining medications by mail," the complaint states. According to the class, Aetna's new policy does not allow for early deliveries. "If there are circumstances that make it difficult for the patient to re-order drugs at the time -- for the example, workload, travel, illness -- or if there are any processing or mail delays, HIV/AIDS patients will likely miss doses and potentially experience serious health problems as a result," the lawsuit claims. The mail program is further flawed because enrollees can't transfer all of their medications to the program. "Instead, the mail-order program is limited exclusively to specialty medications, requiring the patient to manage prescriptions between several locations and bounce between their community pharmacy and receiving their mail-order deliveries," according to the lawsuit. The class claims Aetna will profit by keeping hundreds of thousands of dollars in prescription fill fees to itself. Doe seeks class certification, restitution, and wants Aetna and its subsidiaries enjoined from implementing the program. The Plaintiffs are represented by: Edith Kallas, Esq. WHATLEYKALLAS, LLP 1180 Avenue of the Americas, 20th Floor New York, NY 10036 Telephone: (212) 447-7060 Facsimile: (800) 922-4851 E-mail: ekallas@whatleykallas.com AETNA INC: Court Grants Manz's Reconsideration Bid in ERISA Case ---------------------------------------------------------------- ASSOCIATION OF NEW JERSEY CHIROPRACTERS, et al., Plaintiffs, v. AETNA, INC., et al., Defendants, CIVIL ACTION NO. 09-3761 (MAS) (TJB), (D. N.J.) is a putative class action brought by healthcare providers and chiropractic professional associations against an insurance company and its affiliates, claiming violations of the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiffs bring suit against Aetna, Inc., and several of its affiliated or subsidiary companies ("Aetna") claiming that the company engages in retroactive benefit determinations that do not comply with ERISA. On June 17, 2011, the Court granted Aetna's motion to compel arbitration of claims brought by Drs. Peter Manz, D.C. ("Dr. Manz"), and Leon Egozi, M.D. ("Dr. Egozi"), pursuant to provider agreements negotiated between them and Aetna. Since the Court's decision, the Third Circuit decided a somewhat similar case, CardioNet, Inc. v. CignaHealth Corp., 751 F.3d 165 (3d Cir. 2014), which Drs. Manz and Egozi contend effects an intervening change in the law warranting reconsideration of the Court's prior decision. In response, Aetna contends that the CardioNet decision does not modify controlling law and seeks to enforce a settlement it negotiated with Dr. Egozi during the course of arbitration. Aetna, along with its opposition, filed a cross-motion seeking the Court's enforcement of a settlement and release negotiated with Dr. Egozi. Drs. Manz and Egozi filed a reply brief, in which Dr. Egozi simultaneously withdrew his portion of the motion for reconsideration. As a result, only Dr. Manz still moves for reconsideration. District Judge Michael A. Shipp, in an opinion dated December 31, 2014, a copy of which is available at http://is.gd/cEgmpDfrom Leagle.com, granted Dr. Manz's motion for reconsideration. Aetna's motion to enforce the settlement agreement was denied as moot. The Court vacated its prior order compelling the arbitration of Dr. Manz's claims. AGEHA JAPANESE: "Ie" Suit Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- Fortunataliana Ie, individually and in behalf of all other persons similarly situated v. Ageha Japanese Fusion, Inc., Zhong Hong Bao, and Chun Yong Chen, jointly and severally, Case No. 1:15-cv-00063 (S.D.N.Y., January 6, 2015), seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standard Act. The Defendants own and operate a full-service restaurant doing business as Ageha Japanese Fusion and located at 767 9th Avenue, New York, New York. The Plaintiff is represented by: Brandon David Sherr, Esq. John Gurrieri, Esq. Justin Alexander Zeller, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: bsherr@zellerlegal.com jmgurrieri@zellerlegal.com Jazeller@zellerlegal.com ARCH RESOURCES: Dist. Court Tosses Bid to Remand "Yocupicio" Case ----------------------------------------------------------------- District Judge George H. Wu denied plaintiff's motion to remand and request for attorney's fees and costs in the case captioned Porfiria Yocupicio v. PAE Group, LLC. et al., CASE NO. CV 14-8958- GW(JEMX), (C.D. Cal.). Porfiria Yocupicio filed this putative class action in state court against her former employer, a staffing company called Arch Resources Group, LLC (Arch), asserting claims for: (1) missed meal periods, Cal. Lab. Code Sections 226.7, 512; (2) missed rest breaks, id Section 226.7; (3) unpaid minimum wages, id. Section 1194; (4) unpaid overtime, id. Sections 1194, 1198; (5) unpaid vacation time, id. Section 227.3; (6) failure to timely pay temporary employees, id. Section 201.3; (7) waiting-time penalties, id. Sections 201-03; (8) inaccurate itemized wage statements, id. Section 226; (9) unfair competition, Cal. Bus. & Prof. Code Section 17200; and (10) related penalties under the Private Attorneys General Act of 2004 (PAGA), Cal. Lab. Code Section 2698 et seq. In November 2014, Arch removed the case to the Court under authority conferred by the Class Action Fairness Act of 2005 (CAFA). Shortly after removal, Plaintiff filed the Motion to Remand and Request for Attorney's Fees and Costs. Until April 2014, Arch was known as PAE Group, LLC (PAE). In April 2014, PAE filed a certificate of amendment, changing its name from PAE Group, LLC to Arch Resources Group, LLC. A copy of the Court's December 29, 2014 order is available at http://is.gd/NRtBVHfrom Leagle.com. Justin F. Marquez, Attorneys Present for Plaintiffs. Michael E. Chase, Attorneys Present for Defendants. ARS NATIONAL: Accused of Violating Fair Debt Collection Act ----------------------------------------------------------- Avrohom Dier, on behalf of himself and all other similarly situated consumers v. ARS National Services, Inc., Case No. 1:15- cv-00002 (E.D.N.Y., January 2, 2015) accuses the Defendant of violating 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 BANK OF AMERICA: $5.8-Mil. "Boyd" Class Settlement Approved ----------------------------------------------------------- The lawsuit TERRY P. BOYD, ET AL., Plaintiffs, v. BANK OF AMERICA CORP., ET AL., Defendants, CASE NO. SACV 13-0561-DOC (JPRX) (C.D. Cal.) is a class and collective action, alleging against Defendants overtime violations, wage statement violations and meal and rest period violations. The second amended complaint added Victor Galaz as representative plaintiff. Defendants are Bank of America Corp., LandSafe, Inc., and LandSafe Appraisal Services, Inc. Plaintiffs alleged that Defendants maintained a uniform policy misclassifying hundreds of California-based real estate appraisers as exempt. As a result, Plaintiffs maintain, these employees were not paid overtime for long hours and were not provided meal and rest periods, in violation of the California labor code. The Collective Class is defined as: "All persons who are or have been employed by Defendants as Appraisers, including employees with the job title 'Staff Appraiser' or 'Residential Appraiser' and any other employee performing the same or similar duties for Defendants and Review Appraisers within the United States at any time from three years prior to the filing of the Complaint to the final disposition of this case." The California Class is defined similarly, but with a four-year statute of limitations. Two sub- classes are also defined for the California penalty claims, based on the different statutes of limitations for those claims. District Judge David O. Carter entered an order on Nov. 18, 2014, available at http://is.gd/4d0bu7from Leagle.com, granting final approval of partial class action settlement and approval of attorneys' fees and costs. The Settlement includes a payment of $5,800,000, all of which will be distributed and none of which reverts to Defendants, plus the employers' share of payroll taxes on the portion of the settlement payments considered wages. The Settlement also includes a reclassification of the Review Appraiser position to non-exempt, which Plaintiffs expect to have significant financial benefits for all Review Appraisers going forward. The Settlement pays on average more than $10,200 each to approximately 370 Review Appraisers who worked for Defendants since 2009 (in California) or 2010 (nationwide). From the $5,800,000 common fund: -- One-third of the Settlement Amount will be deducted as attorneys' fees ($1,933,333.33); -- reimbursement of actual litigation costs of $30,000 will be applied; -- an enhancement payment to Mr. Galaz of $15,000 is approved; -- a payment of $18,750 to the California Labor Workforce Development Agency ("LWDA") for the PAGA claims is approved; -- claims administrator charges for printing and mailing the Notice of Settlement, processing opt-in forms, calculating payment amounts, and issuing and mailing settlement checks, along with related necessary tasks, to total not more than $20,000, is approved. By virtue of the Settlement, the claims of the Settlement Class Members are DISMISSED WITH PREJUDICE, with each party to bear his, her, or its own costs, the District Court rules. Terry P Boyd, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiff, represented by Bryan J Schwartz, Bryan Schwartz Law Offices, Aidan C McGlaze, Schonbrun DeSimone Seplow Harris Hoffman and Harrison LLP, Benjamin Schonbrun, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Michael D Seplow, Schonbrun DeSimone Seplow Harris & Hoffman LLP, William C Jhaveri-Weeks, Bryan Schwartz Law & Wilmer J Harris, Schonbrun DeSimons Seplow Harris & Hoffman LLP. Ethel Joann Parks, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiff, represented by Bryan J Schwartz, Bryan Schwartz Law Offices, Aidan C McGlaze, Schonbrun DeSimone Seplow Harris Hoffman and Harrison LLP, Benjamin Schonbrun, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Michael D Seplow, Schonbrun DeSimone Seplow Harris & Hoffman LLP, William C Jhaveri-Weeks, Bryan Schwartz Law & Wilmer J Harris, Schonbrun DeSimons Seplow Harris & Hoffman LLP. Sonia Medina, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiff, represented by Bryan J Schwartz, Bryan Schwartz Law Offices, Aidan C McGlaze, Schonbrun DeSimone Seplow Harris Hoffman and Harrison LLP, Benjamin Schonbrun, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Michael D Seplow, Schonbrun DeSimone Seplow Harris & Hoffman LLP, William C Jhaveri-Weeks, Bryan Schwartz Law & Wilmer J Harris, Schonbrun DeSimons Seplow Harris & Hoffman LLP. Linda Zanko, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiff, represented by Bryan J Schwartz, Bryan Schwartz Law Offices, Aidan C McGlaze, Schonbrun DeSimone Seplow Harris Hoffman and Harrison LLP, Benjamin Schonbrun, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Michael D Seplow, Schonbrun DeSimone Seplow Harris & Hoffman LLP, William C Jhaveri-Weeks, Bryan Schwartz Law & Wilmer J Harris, Schonbrun DeSimons Seplow Harris & Hoffman LLP. Victor Galaz, individually, and on behalf of others similarly situated,, Plaintiff, represented by Aidan C McGlaze, Schonbrun DeSimone Seplow Harris Hoffman and Harrison LLP, Bryan J Schwartz, Bryan Schwartz Law Offices, Michael D Seplow, Schonbrun DeSimone Seplow Harris and Hoffman LLP, William C Jhaveri-Weeks, Bryan Schwartz Law & Wilmer J Harris, Schonbrun DeSimons Seplow Harris & Hoffman LLP. Bank of America Corp, Defendant, represented by Christopher A Killens -- ckillens@mcguirewoods.com -- McGuireWoods LLP, Matthew Charles Kane -- mkane@mcguirewoods.com -- McGuireWoods LLP, Michael David Mandel -- mmandel@mcquirewoods.com -- McGuireWoods LLP & John A Van Hook -- jvanhook@mcguirewoods.com -- McGuire Woods LLP. LandSafe Inc, Defendant, represented by Christopher A Killens, McGuireWoods LLP, Matthew Charles Kane, McGuireWoods LLP, Michael David Mandel, McGuireWoods LLP & John A Van Hook, McGuire Woods LLP. LandSafe Appraisal Services Inc, Defendant, represented by Christopher A Killens, McGuireWoods LLP, Matthew Charles Kane, McGuireWoods LLP, Michael David Mandel, McGuireWoods LLP & John A Van Hook, McGuire Woods LLP. BLUESTONE PROPERTY: Faces Class Action Over EMSA Fees ----------------------------------------------------- Tulsa World reports that Bluestone Property Management LLC, kept residents' $5 payments and opted out of the EMSA program, according to a lawsuit filed by Brenda Poitra in Tulsa County District Court. It seeks class-action status for residents of Westminster and three other apartment complexes in Tulsa and Oklahoma City. Ms. Poitra, 52, developed pneumonia and had to be rushed to the hospital for treatment. But like other residents of the Westminster Apartments in east Tulsa, she paid an extra $5 a month to the complex to be covered by EMSA's utility fee program, so at least Ms. Poitra knew that ambulance bill would be paid. But the $1,036 bill wasn't paid because the company that managed Poitra's complex, opted out of the EMSA program. Ms. Poitra said before she even knew a bill was due, EMSA's law firm, Works & Lentz, sued her and garnished her wages in 2011. "I thought there was no charge for the EMSA ride and all of a sudden I got garnished at work. I had to pull out of my 401k and in the meantime I am still trying to take care of my husband and work 40 to 50 hours a week," she said. Under the utility fee program, now called EMSAcare, residents in 14 cities served by EMSA can pay a fee on their utility bills and incur no out-of-pocket costs for most ambulance transports. EMSA is a government agency that provides ambulance service to residents in Tulsa, Oklahoma City and surrounding cities. Some cities allow property owners to opt out of paying the fee, making them responsible for paying out-of-pocket costs due to ambulance service. In cases where apartment complex owners opt out, managers are required to obtain signed notifications from residents of that decision. Ms. Poitra said she never saw or signed such a notice at Westminster. When Ms. Poitra got sick again in 2011 and 2012, each time requiring ambulance transports, she built up more debt to EMSA. Her apartment manager said she should talk to EMSA, while officials at EMSA referred her back to the property management company for answers. Ms. Poitra finally demanded and received from the complex manager an itemized list of all monthly payments she had made to be covered by the EMSA program. Soon after that, flyers began appearing throughout Westminster notifying residents they weren't covered by EMSA's utility fee program, she said. Then Bluestone sold the complex, a deal that Ms. Poitra said was finalized last month. Bluestone Property Management LLC is located in Indiana, according to corporation records on file with the state. Calls and emails to the company were not returned. Bob Pezold, an attorney who filed the suit, said records indicate Bluestone Property Management LLC collected $5 monthly fees from tenants at three complexes in Tulsa and one in Oklahoma City. Combined, the four complexes have more than 1,000 units, he said. Mr. Pezold said residents of three Tulsa complexes were affected by the practice: Westminster, 4858 S. 78th East Ave.; Wood Creek, 11107 E. Brady St.; and Bandon Trails, 2505 E. 88th St. He said residents in Oklahoma City's Seminole Ridge apartments were also charged the EMSA fees. A property manager for Westminster said on Jan. 2 that the complex was sold in November and that neither Westminster nor Wood Creek are managed by Bluestone Property Management. Bluestone's website lists its only Oklahoma rental properties as Bandon Trails in Tulsa and Seminole Ridge apartments in Oklahoma City. Kelli Bruer, a spokeswoman for EMSA, said records show Westminster, Wood Creek and Bandon Trails all opted out of the EMSA program at various points during 2011. "Rather than paying EMSA the fees that Bluestone collected from Plaintiff and Class Members, Bluestone 'opted out' of participation in EMSA's utility fee program for all of the properties, and Bluestone kept the five-dollar-per-month fee . . . for Bluestone's own use and benefit," the suit states. Additionally, the suit claims tenants were charged $5 "when the actual cost was approximately $3.70 per month." The fee on Tulsa utility bills was $3.64 until September, when it increased to $5.45. Mr. Pezold said complaints from apartment residents surfaced while attorneys were working on an unrelated lawsuit against EMSA that seeks class-action status for some patients. That lawsuit, which alleges improper billing practices in the utility fee program, remains pending. EMSA is not a party to the lawsuit against Bluestone Property Management LLC. Mr. Pezold said the complexes were not sued individually because Bluestone managed the properties, collecting rent and fees, including the fee for the EMSAcare program. In some cases such as Poitra's, residents were sued and their wages garnished due to ambulance bills they believed they did not owe, he said. "When we started checking these apartment complexes, all of them that opt out are supposed to get something signed by each resident," Mr. Pezold said. "There's a penalty that the city is supposed to enforce and we found out they haven't been doing that." Records show EMSA sued Ms. Poitra after her 2010 transport and obtained a judgment of $1,036 plus legal fees and costs. EMSA garnished Ms. Poitra's wages and the judgment was paid in full in 2011, records show. BNK-BUSINESS REALTY: "Gama" Suit Seeks to Recover Unpaid OT Wages ----------------------------------------------------------------- Yasmin Gama, and other similarly situated individuals v. BNK- Business, Realty & Investments, LLC, a Florida limited liability company, Alvaro Sanchez, Victoria F. Campo, Sergio Sanchez, Juan C. Zuniga, and Vanna Nikolov, Case No. 0:15-cv-60031 (S.D. Fla., January 6, 2015), seeks to recover unpaid overtime wages and damages in violation of the Fair Labor Standard Act. The Defendants own and operate a real estate company in Broward County, Florida. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com BNY MELLON: Obtains Favorable Ruling in MBS Class Action -------------------------------------------------------- Scott Flaherty, writing for The Litigation Daily, reports that siding with BNY Mellon and its lawyers at Mayer Brown, a Manhattan federal appeals court has thwarted a potential class action brought by pension funds seeking to recoup losses from the financial institutions that served as trustees for residential mortgage-backed securities trusts. Under the ruling, the pensions can only pursue claims related to trusts they actually invested in. The Dec. 23 decision from the U.S. Court of Appeals for the Second Circuit is a setback for plaintiffs trying to bring sweeping class actions alleging breach of duty against trustees that managed residential mortgage-backed securities trusts. A group of pensions -- including a retirement fund for Chicago's police officers and a general retirement fund for the city of Grand Rapids, Mich. -- had alleged that BNY was liable for losses stemming from misconduct by Countrywide Financial, which originated and serviced the underlying mortgages. The pensions claimed that BNY breached its duties as a trustee by failing to inform investors of defects with the trusts' mortgages. Although the named plaintiffs had invested in only 26 RMBS trusts managed by BNY, lawyers from Scott + Scott sought to represent a class of investors with a stake in any of 530 different BNY mortgage securitization trusts. The Second Circuit's ruling cuts off that potential class action, holding that since no two trusts are necessarily the same, the pensions can only sue over the BNY- managed trusts they invested in. "In short, the nature of the claims in this case unavoidably generates significant differences in the proof that will be offered for each trust," ruled U.S. Circuit Judge Debra Ann Livingston, who wrote the court's opinion. "Given these differences, plaintiffs' quest to show BNYM's wrongdoing with respect to their own certificates does not encompass proving claims related to certificates from other trusts." The Second Circuit also addressed whether RMBS trusts are subject to the federal Trust Indentured Act, which places obligations on certain trustees. Manhattan U.S. District Judge William Pauley III, who is presiding over the BNY case at the lower court, had ruled that the TIA did apply to RMBS trusts. But the appeals court reversed, finding that the act didn't apply to a vast majority of BNY's trusts. William Fredericks -- wfredericks@scott-scott.com -- of Scott + Scott, who argued the appeal for the pension funds, couldn't immediately be reached for comment on Dec. 24. Mayer Brown's Charles Rothfeld -- crothfeld@mayerbrown.com -- who argued the appeal at the Second Circuit, referred us to BNY Mellon for comment. A spokesman for the bank said the company was "pleased with court's decision." BP WEST: "Kelly" Class Action Dismissed with Prejudice ------------------------------------------------------ District Judge Kimberly J. Mueller granted a motion to dismiss the case captioned CHARLES KELLY, on behalf of himself and all others similarly situated, Plaintiff, v. BP WEST COAST PRODUCTS LLC and DOES 1-10, inclusive, Defendants, NO. 2:14-CV-01507-KJM-CKD, (E.D. Cal.)/. Charles Kelly purchased gasoline at BP West Coast Products LLC (BP)'s ARCO station. After he chose to pay with a debit card, an electronic display at the pump station warned Kelly he would be charged a $0.35 fee. He bought gas despite the fee and consequently brought this action, alleging he was the victim of a bait-and-switch scheme. BP moved to dismiss the complaint. Judge Mueller dismissed the complaint with prejudice. A copy of the December 30, 2014 ruling is available at http://is.gd/vn1H8D from Leagle.com. Charles Kelly, Plaintiff, represented by Matthew David Carlson -- mcarlson@carlsonlegalservices.com -- Carlson Legal Services. BP West Coast Products, LLC, Defendant, represented by Isabelle Louise Ord -- isabelle.ord@dlapiper.com -- DLA Piper, LLP, Mark Allen Nadeau -- mark.nadeau@dlapiper.com -- DLA Piper LLP & Thomas Alexander Cierny -- alec.cierny@dlapiper.com -- DLA Piper, LLP. BUILDING MATERIALS: April 22 Settlement Approval Hearing Set ------------------------------------------------------------ If You Own Property With GAF Timberline(R) Roofing Shingles Made Between 1998 and 2009, You Could Receive Benefits from Class Action Settlements Settlements have been reached with Building Materials Corporation of America (known as GAF Materials Corp.) ("GAF") involving Timberline(R) roofing shingles ("Shingles"). The lawsuits claim a defect that might cause the roofing Shingles to prematurely crack, split or tear. GAF claims that the Shingles were not defective and that GAF's warranty appropriately covers any problems. The Settlements include two Classes covering Shingles made: (1) between 1999 and 2007 at GAF's plant in Mobile, Alabama and (2) between 1998 and 2009 at other GAF manufacturing plants. Am I included? You may be included if you own any property in the United States with Timberline(R) Shingles made during the relevant time periods. What do the Settlements provide? The benefits you may be eligible to receive are based on: (1) the location of your property, (2) where your Shingles were made, (3) the date your Shingles were installed and the date on which you make a claim, (4) the type and extent of damage to your Shingles, and (5) the size of your roof. You may be eligible to receive: (1) replacement shingles (comparable to the Shingles installed) and/or (2) a cash payment. The Settlements will not reduce the benefits you may be entitled to under any existing GAF warranty. The attorneys representing the Classes are asking the Court for attorneys' fees (up to $6,890,000 in total) and costs and expenses (up to $1,115,000 in total). Counsel will also request an incentive payment for the Class Representatives. The payment of costs and expenses, and the incentive awards, will be paid by GAF and will not reduce the benefits under the Settlements. The attorneys representing the Class covering Shingles made in Mobile are also asking for a portion of the additional benefits going to Class Members with property outside South Carolina. These fees will not be paid by GAF and would in these instances reduce a percentage of the enhanced benefits to some Class Members. How can I make a claim? In order to get benefits, you need to file a claim. You can find out how to file a claim by visiting www.RoofSettlement.com or calling 1-866-759-6518. You can file a claim over the next seven years after the effective date of the Settlements. What are my rights? If you do nothing, you will be bound by the Settlements and the Court's decisions. If you want to keep your right to sue GAF, you must exclude yourself from the Classes by March 16, 2015. If you stay in the Classes, you may object to the Settlements by March 16, 2015. The Court will hold a hearing on April 22, 2015 to consider whether to approve the Settlements. You or your own layer may appear at the hearing at your own expense, but you do not have to attend. C & H LAWN: Faces "Tejada" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Lazaro R. Tejada and all others similarly situated under 29 U.S.C. 216(b) v. C & H Lawn Service Inc., Hanoi Macias, Alejandro Datorre, Case No. 1:15-cv-20027 (S.D. Fla., January 6, 2015), is brought against the Defendants for failure to pay overtime wages for work performed in excess of 40 hours weekly. The Defendants own and operate a landscaping services company in Dade County, Florida. The Plaintiff is represented by: Jamie H. Zidell, Esq. J.H. ZIDELL, PA 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: 865-7167 E-mail: ZABOGADO@AOL.COM CALIFORNIA: To Fight Class Action Over Education Funding Formula ---------------------------------------------------------------- With the creation of the new state education finance system, the Local Control Funding Formula, California has given school districts the authority to spend funds as they see fit. But does local control absolve the California Department of Education of its responsibility under the state Constitution to ensure equal educational opportunity? Rulings this year in the class action lawsuit Cruz v. California will address what the state is required, or not required, to do about disruptive conditions in eight high-poverty schools where students allegedly are being denied significant amounts of mandated instructional time. State Board of Education President Michael Kirst, an architect of the new funding formula, and State Superintendent of Public Instruction Tom Torlakson have indicated that the state will fight the lawsuit. CERTIFIED CREDIT: Illegally Collects Debt, "Jones" Suit Claims -------------------------------------------------------------- Katelyn Jones, on behalf of herself and all others similarly situated v. Certified Credit & Collection Bureau, Inc., and John Does 1-25, Case No. 3:15-cv-00118 (D.N.J., January 6, 2015), arises out of the Defendant's abusive, deceptive and unfair practices of collecting a debt. Certified Credit & Collection Bureau, Inc. is a company that uses the mail, telephone, and facsimile to attempt to collect debts alleged to be due another. 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 CRST VAN: EEOC Obtains Favorable Ruling in Fee Award Dispute ------------------------------------------------------------ Scott Flaherty, writing for The Litigation Daily, reports that after taking some hard lumps in the courts this year, the U.S. Equal Employment Opportunity Commission managed to save some face in battle over attorney fees. A federal appeals panel concluded a judge was too quick to award nearly $5 million in fees to a trucking giant represented by Jenner & Block, finding that such awards require a more careful analysis by the courts. The U.S. Court of Appeals for the Eighth Circuit on Dec. 22 rejected much of the lower court's decision, which put the EEOC on the hook for legal fees and costs in a sex discrimination suit against Jenner client CRST Van Expedited Inc. U.S. District Judge Linda R. Reade in Cedar Rapids, Iowa, had found CRST the prevailing party in the case and awarded the company $4.69 million in fees and costs -- one of the largest such awards against the EEOC. The ruling limits the fallout for the EEOC in a case that critics have cited as an example of misguided enforcement by the agency. But it doesn't end the EEOC's fee fight with Jenner & Block, which has defended CRST against allegations that it created a hostile work environment for female employees. On remand, the firm can still argue for attorney fees with respect to at least 83 individual claims on which CRST previously secured summary judgment, the appeals court ruled. For CRST to prevail, however, the district judge must first assess each individual claim and find it "frivolous, unreasonable or groundless." "While we recognize that it is an arduous task, the . . . standard requires the district court to make findings as to why a particular 'claim was frivolous, unreasonable, or groundless,'" U.S. Circuit Judge Lavenski Smith wrote for the panel. "Here, the district court did not make these particularized findings." The appeals court sided more definitively with the EEOC regarding 67 other individual claims, foreclosing Jenner & Block from collecting fees in connection with those claims. The district judge had thrown out those claims after finding that the EEOC didn't meet its obligations to try to conciliate before suing. Since the claims were tossed because the EEOC failed to fulfill its pre-suit duties and not on the merits, the Eighth Circuit held Dec. 22 that CRST couldn't be considered a "prevailing party" for the purpose of awarding attorney fees. Jenner & Block's John Mathias Jr. -- jmathias@jenner.com -- who argued for CRST in the appeal, called the decision "disappointing" but declined to go into specifics about the ruling or plans for any further appeal. An EEOC spokeswoman didn't immediately respond to a request for comment. DAIMLER: Supreme Court Ruling May Provoke More Litigation --------------------------------------------------------- According to The Litigation Daily's Michael D. Goldhaber, by the time the U.S. Supreme Court's decision in Morrison v. National Australia Bank was 1 year old, the Federal Reporter was littered with the bones of its billion-dollar casualties. Daimler v. Bauman, handed down by the high court last January, has slain fewer giant cases. But it has the potential to scorch wide swathes through the case law, in ways both intended and unintended. Daimler abolished the "doing business" test for general jurisdiction that had prevailed for nearly 70 years. Now, unless there's a link between the injury and the forum, a business can only be sued "at home." This cuts the number of states where a court can assert general jurisdiction over a major U.S. company from 50 to two: the place of incorporation and the main place of business (putting aside the vague possibility that a company might be "at home" in some third way). Even more consequentially, Daimler cuts the number of states where a court can establish general jurisdiction over a non-U.S. defendant to zero. As many commentators have noted, this is bound to put pressure on other forms of jurisdiction. Daimler was immediately hailed in Forbes as a way to end shopping for the friendliest forum in nationwide class actions. But after this summer's Plavix class action ruling by the California Court of Appeals in Bristol Myers Squibb v. Superior Court, DRI-The Voice of the Defense Bar blogged that "Forum Shopping Lives On" despite Daimler. The intermediate court ruled that out-of-state plaintiffs were able to meet the test for specific jurisdiction even though their injuries did not occur in California, in part because the activities injuring plaintiffs nationwide were part of a "common effort." The U.S. Chamber of Commerce understandably cried that specific jurisdiction was being distorted to undermine Daimler, and the California Supreme Court accepted Bristol Myers' petition for review. Inflating specific jurisdiction is the first of three ways to get around Daimler anticipated by Tanya Monestier in the Hastings Law Journal. The second (picking up on a suggestion that I made at an Irvine symposium) is to try transplanting the civil law "forum of necessity" doctrine. This approach has yet to be tried, and Ms. Monestier is skeptical that it can pass constitutional muster. Ms. Monestier thinks a more plausible argument is that registration to do business in a state implies consent to general jurisdiction. A form of that argument has been accepted this year by one New York state lower court, and rejected by another. The hitch is that the Supreme Court didn't embrace a third base paradigm for general jurisdiction. "At home" meant at home, and "two" probably means two. A final possibility for a cross-cutting exception is the one Daimler granted cert on, but did not address -- that a subsidiary's contacts be imputed to the parent through some sort of agency theory to establish personal jurisdiction. Daimler will create more acute access to justice problems for plaintiffs hurt by non-U.S. defendants. Out-of-state defendants should be amenable to suit in two states. But for out-of-country defendants, there will sometimes be no equivalent forum. In the context of Daimler -- where the plaintiffs dragged the German automaker to the U.S. from square one to bring a plenary action grounded in alien tort for its alleged complicity in Argentina's Dirty War -- this apparently didn't trouble the court. How about in the context of international arbitration? Linda Silberman of New York University School of Law argues in a provocative paper that actions to recognize or enforce awards and judgments deserve to be treated under a different and lower jurisdictional standard, such as the old "doing business" test cast aside by Daimler. A summary action following up an award that has already been rendered by a forum with jurisdiction over the merits imposes much less of a burden on the defendant, and advances the pro-enforcement policy of the New York Convention. The leading case is Sonera v. Cukurova. In one front of a worldwide war for control of a Turkish telecom, the U.S. Court of Appeals for the Second Circuit applied Daimler to vacate orders enforcing a $932 million arbitral award against the Turkish conglomerate Cukurova and enjoining Cukurova from selling assets, transferring funds, or raising finances globally. Professor Ms. Silberman sees Sonera as a missed opportunity by the Second Circuit (and the Supreme Court, which denied cert) to carve out an exception to Daimler for recognition and enforcement actions. Sonera was not really about enforcement, at least not directly, for there were no U.S. assets to collect. And if there were U.S. assets, then the court could have asserted property-based jurisdiction, and Daimler would have been irrelevant. The point is that an "enforcement" action will only turn on general jurisdiction when a party wants something other than U.S. assets -- for instance, to invoke the U.S. courts' expansive powers of discovery or asset restraint. The Sonera case in New York was really about asset restraint. In that sense, it has less in common with an action to collect on an arbitral award than with Gucci v. Bank of China, where the Second Circuit applied Daimler to unfreeze the assets of intellectual property pirates held by nonparty banks. From the viewpoint of Cukurova's U.S. lawyers -- David Lindsey and Andreas Frischnecht of Lindsey Chaffetz -- the asset restraint proceedings were prolonged and burdensome, and a species of forum shopping appropriate for Daimler to shut down. Mr. Frischnecht says we need a limiting principle, "because U.S. courts have the ability to interfere with assets around the world that other courts don't have." On the other hand, harnessing the unique powers of U.S. courts (or U.K. courts) to promote global enforcement of an arbitral award effectuates the aims of the New York Convention. Doing so to promote a foreign judgment's enforcement would seem only to honor the principle of comity. At any juncture (including prejudgment), broad powers to subpoena documents and freeze assets may promote the public policy against fraud and other malfeasance. To put defendants with no U.S. assets (or portable assets) beyond the reach of those powers may deprive some victims of access to effective justice. That the Supreme Court anticipated this situation seems doubtful. Is there any way around such a result? Mr. Frischnecht speculates that a party will try to reduce an arbitral award to judgment in another nation, and then seek asset restraints in New York courts, where judgments (as opposed to awards) may be enforced without personal jurisdiction. Ms. Silberman offers that arbitration agreements might be interpreted to imply consent to personal jurisdiction in recognition and enforcement actions. That argument failed in Sonera v. Cukurova -- but Pieter van Tol of Hogan Lovells cites helpful Fourth and Eleventh Circuit precedent in Sonera's petition for certiorari. Contracting parties who fear that U.S. courts would deny jurisdiction might consider placing more explicit consent language in their arbitration agreements. Otherwise, contracting parties who want the benefit of strong asset restraints may opt for U.K. law in their arbitration agreement. Daimler v. Bauman is sure to be cited a lot in the next 70 years. It's true that general jurisdiction is a residual doctrine (needed only in the absence of specific or property-based jurisdiction). But Daimler matters profoundly for the location of nationwide class actions, and for the viability of "enforcement" actions that were brought for reasons other than collecting local assets. Like many Supreme Court cases, it will provoke more litigation before it provokes less. DE ROSSI AND SON: Faces "Gonzalez" Suit Over Failure to Pay OT -------------------------------------------------------------- Faustino Gonzalez v. De Rossi and Son, Co., a/k/a Derossi and Son, CO., and Donald De Rossi, Individually, aka Donald Derossi, Case No. 1:15-cv-00090 (D.N.J., January 6, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants own and operate a clothing manufacturing factory which makes and sells military uniforms in Vineland, Cumberland County, New Jersey. The Plaintiff is represented by: Andrew I. Glenn, Esq. JAFFE GLENN LAW GROUP PA Lawrence Office Park Building 2, Suite 220 168 Franklin Corner Road Lawrenceville, NJ 08648 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: aglenn@jaffeglenn.com DELAWARE MANUFACTURED: Summary Judgment Entered in Ridgewood Suit ----------------------------------------------------------------- In the case, Ridgewood Manor II, Inc. v. The Delaware Manufactured Home Relocation Authority C.A. No. 8528-VCN (Del. Ch.), plaintiffs, landlords and tenants of manufactured home communities throughout Delaware filed an action seeking declaratory relief, injunctive relief, and disgorgement of monthly assessments collected under the Manufactured Home Owners and Community Owners Act by Defendants from February 1, 2006, through April 8, 2014. The parties have stipulated that there is no dispute of material fact and have filed cross-motions for summary judgment. On December 31, 2014, the Court of Chancery of Delaware ruled that Defendants' motion for summary judgment is granted except for the possibility that Plaintiffs are entitled to some measure of recovery for the assessments collected between the date they filed the Complaint and April 8, 2014. Plaintiffs' motion for summary judgment is granted as to the failure of the Board "to adopt an adjusted assessment on or before January 31, 2006," or eliminate the fee, but it is otherwise denied. A copy of the Court's ruling is available at http://is.gd/ySJ3GN from Leagle.com. John W. Paradee Esquire -- jwparadee@prickett.com -- Joseph C. Handlon Esquire, Prickett, Jones & Elliott, P.A. Scott W. Perkins, Esquire 11 North State Street Department of Justice Dover, DE 19901 820 North French Street Wilmington, DE 19801 ECOTALITY INC: Settles Securities Suit for $1.1 Million ------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that plaintiffs lawyers who filed a securities suit against Ecotality Inc., a maker of electric car charging stations, have opted to settle for $1.1 million after their case took a beating in federal court. U.S. District Judge Samuel Conti of the Northern District of California dismissed the suit in September, granting plaintiffs leave to amend a handful of claims. Instead plaintiffs agreed to a deal, which they recently filed with the court. The proposed settlement is a far cry from the $12.9 million in damages plaintiffs lawyers with Robbins Geller Rudman & Dowd had originally sought. "Uncertainty about the amount of provable damages in this case was a significant factor in lead plaintiff's willingness to settle the case for $1.1 million," the lawyers wrote in their motion for preliminary approval of the settlement. Cooley represents Ecotality. Investors sued the company in August 2013, after Ecotality's funding fell through and it was forced to file for bankruptcy. They said company executives misled them about the success of a botched government-funded electric car charging project. But Judge Conti, calling the complaint "a redundant and repetitive tangle of verbosity," ruled Ecotality's statements were protected under federal securities law as forward-looking and corporate optimism. ELI LILLY: Obtains Favorable Ruling in Cymbalta Class Action ------------------------------------------------------------ Scott Flaherty, writing for The Litigation Daily, reports that the year is ending on a sour note for plaintiffs in a string of lawsuits accusing Eli Lilly & Co. of misrepresenting the withdrawal risks of its blockbuster antidepressant, Cymbalta. After a failed bid to consolidate more than two dozen individual Cymbalta suits in California, plaintiffs lawyers at Baum, Hedlund, Aristei & Goldman PC failed to persuade a judge to certify a parallel class action brought by Cymbalta patients in California, Massachusetts, Missouri and New York. U.S. District Judge Stephen Wilson in Los Angeles ruled Dec. 18 that the plaintiffs couldn't establish damages on a classwide basis, finding their damages theory both "novel" and "highly flawed." The decision is a win for Eli Lilly's lawyers at Covington & Burling, which is representing the drugmaker in Cymbalta cases pending around the country. The proposed class action is one of the earliest cases alleging that Eli Lilly didn't provide enough warning about Cymbalta's withdrawal symptoms, which include paresthesia -- colloquially called "brain zaps" -- and other side effects. Lawyers for the proposed class don't claim the plaintiffs are owed damages for personal injuries or that they were overcharged, strictly speaking. Instead, they argue that since Cymbalta's withdrawal risks were allegedly higher than Eli Lilly warned, the drug they purchased was worth less than the drug they thought they were buying. Lilly advertised a 1 percent risk for withdrawal side effects, the plaintiffs claim, when the true risk was 44 percent. Even assuming that Eli Lilly's warnings about Cymbalta withdrawal were inadequate -- something Covington fervently contests -- Judge Wilson still rejected the plaintiffs' damages model on Dec. 18. Normally, the judge ruled, the price paid by consumers could be a stand-in for a product's value. Not so in the prescription drug market, however, where there are "numerous complicating factors" that "sever the relationship between price and value." "This twist on the usual argument causes significant problems," Judge Wilson found. "Even assuming that conjoint analysis can be used to compute the relative value that consumers place on a drug having a lower withdrawal risk (which Lilly disputes), [the] proposed measure of damages is highly flawed." Along with the proposed class action, which was filed in October 2012, Eli Lilly is facing at least 25 individual cases brought by the same plaintiffs lawyers related to Cymbalta's withdrawal risks. Baum Hedlund and the firm's cocounsel, Pogust Braslow and Millrood, have faced a series of recent setbacks in those cases as well. U.S. District Judge Robert Sweet in Manhattan dismissed one of the individual cases on Nov. 6, ruling that Eli Lilly had, in fact, issued adequate warnings about the withdrawal risks. Then, on Dec. 10, the U.S. Judicial Panel on Multidistrict Litigation denied the plaintiffs' attempt to consolidate the individual actions in Los Angeles. Among other things, the MDL panel found that with just two plaintiffs firms and one defense firm litigating all the cases, they were more or less coordinated already. Covington's Michael Imbroscio, Mark Lynch and Phyllis Jones are defending Eli Lilly in both the proposed class action and the individual suits. In a statement, an Eli Lilly spokeswoman said the company was pleased with Wilson's "comprehensive" opinion. ENTERGY CORPORATION: Class Cert. Ruling in Jenkins Case Reversed ---------------------------------------------------------------- ENTERGY CORPORATION, ENTERGY SERVICES, INC., ENTERGY POWER, INC., ENTERGY POWER MARKETING CORPORATION, ENTERGY ARKANSAS, INC., AND ENTERGY TEXAS, INC., Appellants, v. DAVID JENKINS, GEORGE W. STRONG, FRANCIS N. GANS, AND GARY M. GANS, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, Appellees, NO. 01-12- 00470-CV is an interlocutory appeal challenging the trial court's order certifying a class action in a suit brought under the Texas Theft Liability Act (the Theft Act). In three issues, appellants, Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Texas, Inc. contend that the trial court (1) lacked subject matter jurisdiction over this suit, (2) abused its discretion in finding that the requisites for class certification had been established, and (3) abused its discretion by making findings of fact and conclusions of law that misstate and misapply the applicable law. The Court of Appeals of Texas, First District, Houston, on December 30, 2014, held that since resolving this dispute involves the consideration and interpretation of a Federal Energy Regulatory Commission-approved tariff, this dispute falls within FERC's exclusive jurisdiction. Moreover, because Jenkins did not exhaust his administrative remedies by first bringing this dispute before FERC, the trial court lacks subject matter jurisdiction over the case. The Texas Appeals Court held that the trial court erroneously denied Entergy's motion to dismiss for lack of jurisdiction and that the trial court's class-certification order is therefore void. Accordingly, it sustained Entergy's first issue. A copy of the Court's opinion is available at http://is.gd/ZeYEiC from Leagle.com. FACEBOOK INC: Judge Allows Privacy Class Action to Proceed ---------------------------------------------------------- Vanessa Blum, writing for The Recorder, reports that another federal judge has put Silicon Valley on notice that scanning user communications without consent may run afoul of the federal Wiretap Act. Ruling on Dec. 23, U.S. District Judge Phyllis Hamilton of the Northern District of California refused to dismiss a proposed privacy class action against Facebook Inc. over its screening of users' private messages. Plaintiffs lawyers at Lieff Cabraser Heimann & Bernstein sued Facebook in 2013, claiming that the company illegally intercepted the content of private messages whenever users included a link to an outside website. Judge Hamilton wrote that determining whether Facebook violated federal and state privacy laws would require a factual inquiry into its handling of messages. The use of a so-called web crawler to scan the content of users' messages could constitute an interception under the Wiretap Act, she wrote, considering that Facebook users did not give their express consent for such scanning. Facebook's lawyers at Gibson, Dunn & Crutcher have argued that any processing of messages carried out in conjunction with their delivery should not be considered an interception under the Wiretap Act, which carries statutory damages of up to $10,000 per violation. The social network analyzes messages to prevent hacking and detect spam, partner Joshua Jessen told Judge Hamilton at a hearing in October. Additionally, such activity is shielded from liability under the Wiretap Act, Mr. Jessen argued, because it falls within Facebook's "ordinary course of business" as an electronic communication service provider. The exception has become a critical battleground in online privacy litigation and Judge Hamilton's order in Campbell v. Facebook, 13- 5996, is the third from a Northern District judge to parse its meaning. Judge Hamilton said that without more specifics on the company's practices she wasn't willing to adopt Facebook's broad interpretation of the "ordinary course of business" exception. "The statute's inclusion of the word 'ordinary' implies some limits on a company's ability to self-define the scope of the exception," she wrote. "An electronic communications service provider cannot simply adopt any revenue-generating practice and deem it 'ordinary' by its own subjective standard." Ruling in 2013, U.S. District Judge Lucy Koh found Google's scanning of Gmail to help sell targeted ads wasn't exempt activity. However, U.S. Magistrate Judge Paul Grewal dismissed a separate suit challenging Google's collection of user data, finding the exemption bestows broad protection for the "customary and routine" business practices of electronic communication service providers. Using her colleagues' decisions as guideposts, Judge Hamilton said there shouldn't be a "generic, one-size-fits-all approach," and judges should consider the details of particular businesses to determine whether the exception applies. She offered to reconsider the question with regard to Facebook's scanning practices based on a more complete evidentiary record. For now, her order allows illegal interception claims to proceed under the Wiretap Act and California's analogous Invasion of Privacy Act (CIPA). Judge Hamilton knocked out a separate CIPA claim as well as a claim under the state's Unfair Competition Law. FANNIE MAE: April 3 Proof of Claim Submission Deadline Set ---------------------------------------------------------- The Shareholders Foundation on Jan. 5 disclosed that a deadline is coming up on April 3, 2015 in the settlement reached in the securities class action lawsuit filed on behalf of investors who purchased shares of Federal National Mortgage Association between November 8, 2006 and September 5, 2008. Investors who purchased a significant amount of shares of Federal National Mortgage Association (Fannie Mae) between November 8, 2006 and September 5, 2008, have certain options and should contact the Shareholders Foundation at mail@shareholdersfoundation.com or call +1(858) 779 -- 1554. The settlement proof of claim form or detailed settlement notice for the settlement in the Federal National Mortgage Association (Fannie Mae) Investor Securities Class Action Lawsuit 09/08/2008 can be downloaded at http://is.gd/zy1VOJ In order to submit a claim an investor has to submit the claim proof to the class action claim administrator in a timely manner. The deadline to submit the proof with the class administrator is April 3, 2015. The class action administrator for this case is AB Data Ltd. The lawsuit was originally filed in the U.S. District Court for the Southern District of New York against Federal National Mortgage Association (Fannie Mae) over alleged violations of Federal Securities Laws between November 16, 2007 and September 5, 2008. The complaint charges certain of Federal National Mortgage Association (Fannie Mae)'s officers and/or directors with violations of the Securities Exchange Act of 1934. Federal National Mortgage Association (Fannie Mae) is a shareholder-owned, government-sponsored enterprise of the United States federal government that is authorized to make loans and loan guarantees. It is the leading market-maker in the U.S. secondary mortgage market, which helps to replenish the supply of money for mortgages and enables money to be available for housing purchases. The complaint alleges that between November 16, 2007 and September 5, 2008, defendants made materially false and misleading statements about Federal National Mortgage Association (Fannie Mae)'s business and prospects and misrepresented the company's financial statements. These false and misleading statements cause Federal National Mortgage Association (Fannie Mae)'s stock to trade at artificially inflated prices, reaching as high as $40.69 per share. On July 7, 2008, a financial analyst at Lehman Brothers published a report suggesting that Federal National Mortgage Association (Fannie Mae) might need to raise as much as $46 billion in capital, causing the company's stock price to plummet 16% in a single trading day. Following that disclosure, former St. Louis Federal Reserve Board President, William Poole, suggested that Federal National Mortgage Association (Fannie Mae) was nearly insolvent and The New York Times disclosed that the federal government was making plans to place Federal National Mortgage Association (Fannie Mae) into a conservatorship. On July 13, 2008, the Treasury Department announced that it was making a temporary line of credit available to Fannie Mae and would purchase an equity stake if necessary to provide more capital. From July 7 through July 14, 2008, stock price declined over 48%. Finally, on Sunday, September 7, 2008, in the biggest government bail out in U.S. history, federal regulators seized control of Fannie Mae. On September 8, 2008, Federal National Mortgage Association (Fannie Mae) stock opened at $1.91 per share, down from a close of $7.04 per share on September 5, 2008, a 72% decline. According to the complaint, the true facts, which were known by the defendants but concealed from the investing public between November 16, 2007 and September 5, 2008, were as follows: (a) the decline in the U.S. housing market rendered Federal National Mortgage Association (Fannie Mae) undercapitalized; (b) Federal National Mortgage Association (Fannie Mae)'s December 2007 capital raise did not meet its capital needs; (c) Federal National Mortgage Association (Fannie Mae)'s May 2008 capital raise did not meet its capital needs; (d) although Federal National Mortgage Association (Fannie Mae) had more capital than its regulator required, it did not have "surplus capital" as defendants claimed; and (e) Federal National Mortgage Association (Fannie Mae)'s publicly disclosed financial results misrepresented the financial condition of the company. Those who purchased shares of Federal National Mortgage Association (Fannie Mae) have certain options and should contact the Shareholders Foundation. FEDERATED SERVICE: Summary Judgment Bids Ruled in "Stoms" Suit -------------------------------------------------------------- The case STOMS v. FEDERATED SERVICE INSURANCE COMPANY, C.A. NO. N14C-01-163 MJB, was filed by Epiphany Stoms on behalf of herself, on behalf of his husband's estate, and on behalf of their children Alexis and Chad, demanding that Federated Service Insurance Company pay supplemental uninsured motorists benefits, beyond the statutory minimum, to compensate the family for medical expenses, funeral expenses, pain and suffering, and punitive damages against the uninsured motorist. David Stoms, the husband of Epiphany, was involved in an automobile accident with an uninsured driver. David died and at the time of his death, he was driving a car owned by his employer, Diamond Motor Sports, Inc. and the vehicle was insured by Federal Service. The parties both moved for summary judgment. An August 14, 2014, hearing was held where the Court determined that the Plaintiff's claim for punitive damages is proper. In a Nov. 20, 2014 Opinion available at http://is.gd/15Xr23from Leagle.com, the Superior Court of Delaware finds that Plaintiff's cause of action against Federated is precluded as David did not have supplemental uninsured/underinsured motorists coverage under the Federated policy. "For this reason, Plaintiff's Motion for Summary Judgment is DENIED; Defendant's Motion for Summary Judgment is GRANTED; and Plaintiff's claim for punitive damages is MOOT," the Court said. Attorney for Plaintiff: Jonathan B. O'Neill, Esq. KIMMEL, CARTER, ROMAN, PELTZ & O'NEILL, P.A. 56 W. Main Street, Plaza 273 4th Floor, P.O. Box 8149 Newark, DE 19714 E-mail: jboneill@kimmelcarter.com Attorney for Defendant: James S. Yoder, Esq. WHITE AND WILLIAMS LLP 824 N. Market Street, Suite 902 Wilmington, DE 19899 E-mail: yoderj@whiteandwilliams.com FIRST STUDENT: Removes "Hurst" Suit to Oregon District Court ------------------------------------------------------------ The class action lawsuit captioned Hurst v. First Student, Inc., Case No. 1304-05955, is removed from the Multnomah County Circuit Court to the U.S. District Court of the District of Oregon (Portland). The District Court Clerk assigned Case No. 3:15-cv- 00021-HZ to the proceeding. The lawsuit arose from employment-related issues. The Plaintiff is represented by: David Arthur Schuck, Esq. SCHUCK LAW, LLC 10013 NE Hazel Dell Avenue, Suite 178 Vancouver, WA 98685 Telephone: (360) 566-9243 Facsimile: (503) 575-2763 E-mail: dschuck@wageclaim.org The Defendant is represented by: Jennifer Neth Warberg, Esq. LITTLER MENDELSON 121 SW Morrison, Suite 900 Portland, OR 97204 Telephone: (503) 221-0309 Facsimile: (503) 296-5373 E-mail: jwarberg@littler.com FIRSTSOURCE ADVANTAGE: Sued for Abusing Fair Debt Collection Act ---------------------------------------------------------------- Sholem Weber, on behalf of himself and all other similarly situated consumers v. Firstsource Advantage, LLC, Case No. 1:15- cv-00003-JG-SMG (E.D.N.Y., January 2, 2015) 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 FLY LOW: Suit Seeks to Recover Straight Wages, Damages Under FLSA ----------------------------------------------------------------- Charlie Butler v. Fly Low, Inc., d/b/a King of Diamonds, a Florida Corporation; AK "N" Eli, LLC d/b/a King of Diamonds, a Florida Limited Liability Company; KODRENYC, LLC, a Florida Limited Liability Company; Elliot "Eli" Kunstlinger, an individual; Brian Abraham, an individual; Akiva "AK" Feinsod, an individual; and, Akinyele Adams, an individual, Case No. 1:15-cv-20009-DPG (S.D. Fla., January 5, 2015) seeks to recover money damages for straight wages and retaliation under the Fair Labor Standards Act and for interference under the Family and Medical Leave Act of 1993. The Defendants owned and operated "King of Diamonds," a gentlemen's club located in Miami. Fly Low is a Florida Corporation having its main place of business in Miami-Dade County, Florida. AK is a Florida Limited Liability Company having its main place of business in Miami-Dade County. KODRENYC is a Florida Limited Liability Company having its main place of business in Miami-Dade County. The Individual Defendants are corporate officers, owners or managers of King of Diamonds. The Plaintiff is represented by: R. Martin Saenz, Esq. Ria N. Chattergoon, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com ria@saenzanderson.com FREEDOM INDUSTRIES: Hearing Held on Conflict of Interest -------------------------------------------------------- MetroNews reports that a federal judge was set to determine whether U.S. Attorney Booth Goodwin and his staff have a conflict of interest in prosecuting the water-contamination emergency criminal case. U.S. District Judge Thomas Johnston scheduled a hearing for Jan. 5 to entertain a motion filed by the attorneys representing former Freedom Industries president Gary Southern. They claim a conflict of interest because Goodwin, his staff and their families were personally impacted by the water crisis. Mr. Goodwin previously said he'll fight the motion. Mr. Southern is one of four former Freedom executives named in federal indictments in connection with the Jan. 9 spill of MCHM into the Elk River in Charleston and the water emergency that followed. GEICO GENERAL: Trial Court Ruling in "Elberson" Case Reversed ------------------------------------------------------------- MARY ELBERSON v. GEICO GENERAL INSURANCE COMPANY, ET AL., NO. 14- 640 is an appeal from the grant of a motion for summary judgment filed by an insurance company which purportedly provided underinsured/uninsured motorist coverage to the plaintiff. The insurance company paid the plaintiff the policy limits of its policy and moved for summary judgment. The trial court granted the insurance company's motion. On December 30, 2014, the Court of Appeals of Louisiana, Third Circuit held that the trial court impermissibly weighed evidence related to material facts. Thus, it reversed the grant of the motion for summary judgment and remanded the case for further proceedings. A copy of the Appeals Court's decision is available at http://is.gd/MiTgYyfrom Leagle.com. Cle' Simon, Carl Rachal, 122, Representative Row, P. O. Box 52242, Lafayette, LA 70505, (337) 232-2000, COUNSEL FOR PLAINTIFF/ APPELLANT, Mary Elberson. Stephen R. Barry -- sbarry@barrypiccione.com -- Daphne P. McNutt -- dmcnutt@barrypiccione.com -- 405, West Main Street, Suite 101, Lafayette, LA 70501, (337) 237-2889, COUNSEL FOR DEFENDANT/APPELLEE, GEICO General Insurance Company. GENERAL MOTORS: Volts Have Defective Steering System, Suit Claims ----------------------------------------------------------------- Courthouse News Service reports that General Motors' 2011-14 Chevrolet Volts have a defective steering system that may lock up or stick at highway speeds, a class action claims in New Jersey Federal Court. GERBER PRODUCTS: Mislabeling Class Suit in California Dismissed --------------------------------------------------------------- A federal judge granted Gerber baby food summary judgment in a class action that claimed it deceived consumers by labeling sugar- laden snacks as good for toddlers. A federal judge dismissed the case in 2007, but the 9th Circuit reinstated it in 2008. Natalia Bruton et al. claimed that Gerber mislabeled its Fruit Juice Snacks as "nutritious" and "made with real fruit juice," with photos of oranges, peaches, strawberries and cherries on the labels, though the main ingredients were corn syrup and sugar, and the only juice was grape concentrate. A federal judge dismissed the claim as puffery in 2008, but U.S. District Judge Dean Pregerson reinstated it, writing: "We do not . . . think that a busy parent walking through the aisles of a grocery store should be expected to verify that the representations on the front of the box are confirmed in the ingredient list." On Dec. 18, however, U.S. District Judge Lucy Koh granted Gerber summary judgment, finding that Bruton failed to show that the products are deceptive or unlawfully misbranded. The case is Natalia Bruton, individually and on behalf of all others similarly situated v. Gerber Products Company, Case No. 12-CV-02412-LHK, in the U.S. District Court for the Northern District of California, San Jose Division. GLOBAL TRAVEL: Has Made Unsolicited Calls, "Turner" Suit Claims --------------------------------------------------------------- Christina Turner, on behalf of herself and all others similarly situated v. Global Travel International, Inc., Case No. 6:15-cv- 00013 (M.D. Fla., January 6, 2015), is brought against the Defendant for negligently, knowingly, and willfully contacting the Plaintiff on the cellular telephone in violation of the Telephone Consumer Protection Act. Global Travel International, Inc. is a travel agency and provider of a home-based business opportunity to independent travel agents. The Plaintiff is represented by: John Allen Yanchunis Sr., Esq. Jonathan Betten Cohen, Esq. Rachel Soffin, Esq. MORGAN & MORGAN, PA 7th Floor, 201 N Franklin Street Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@forthepeople.com jcohen@forthepeople.com rsoffin@forthepeople.com GOLDMAN SACHS: Can't Arbitrate NCUA Dispute Over MBS Sale --------------------------------------------------------- Susan Beck, writing for The Litigation Daily, reports that Goldman Sachs & Co. can't force the National Credit Union Administration to arbitrate a dispute over a sale of mortgage-backed securities, despite the existence of a mandatory arbitration clause. The U.S. Court of Appeals for the Second Circuit on Dec. 23 held that the NCUA's unusual power to repudiate burdensome contracts extends to arbitration agreements. The ruling upholds a decision by U.S. District Judge Denise Cote in Manhattan. The NCUA is represented by David Frederick -- dfrederick@khhte.com -- of Kellogg, Huber, Hansen, Todd, Evans & Figel. Goldman Sachs is represented by Richard Klapper of Sullivan & Cromwell. The suit stems from the activities of Southwest Corporate Federal Credit Union, which the NCUA took over in 2010. The NCUA is government agency tasked with supervising federally chartered credit unions and it acts as a liquidating agent for failed credit unions. Three years after taking over Southwest, the agency sued Goldman, claiming that it misrepresented the quality of $40 million worth of residential mortgage-backed securities that Southwest bought from 2006 to 2007. The securities were rated triple-A when they were issued but were later downgraded to below investment grade. Goldman tried to force this dispute into arbitration, digging up a one-page "Cash Account Agreement" that Southwest signed back in 1992, which appeared to create a broker-dealer relationship and which required the arbitration of all disputes. The NCUA argued that the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 gives it the power to repudiate any contract of a failed thrift that's burdensome. Goldman countered that this repudiation power doesn't extend to procedural provisions, such as agreements to arbitrate. The Second Circuit rejected that argument, as well as Goldman's contention that the NCUA must produce more evidence that a contract would be burdensome. The NCUA has brought more than a dozen lawsuits against financial institutions such as Goldman that sold mortgage-backed securities to failed thrifts. Goldman is the only defendant that attempted to force the dispute into arbitration. Other cases are pending in Manhattan, Kansas City, Kan., and Los Angeles. Last August, the Tenth Circuit U.S. Court of Appeals rejected the defense argument that the NCUA's claims were time barred under the statute of repose. Kellogg Huber's Frederick referred The Litigation Daily to his client; an NCUA spokesman said the agency is pleased with the court's ruling. GRAND REVIEW: Faces "Bravo" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Marco V. Bravo, Wilson Vicuna, Blanca Alvarez, and Deifilio Cordero, individually and on behalf of others similarly situated v. Grand Review, LLC, Urban American Management Corp., and Urban American Management, LLC, Case No. 1:15-cv-00030 (E.D.N.Y., January 6, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants own and operate a real estate agency in New York. The Plaintiff is represented by: Constantine Tryfon Tzifas, Esq. ARTHUR J. SEMETIS, P.C. 286 Madison Avenue New York, NY 10017 Telephone: (212) 557-3000 Facsimile: (212) 557-5051 E-mail: ctzifas@semetislaw.com GRILL CONCEPTS: "Jerome" Suit Seeks to Recover Unpaid OT Wages -------------------------------------------------------------- Todd Jerome, Malik White, and Jennifer Gilner, for themselves and others similarly situated v. Grill Concepts Services, Inc. d/b/a Grill on the Alley a foreign corporation, Robert Spivak, and John Sola, Case No. 1:15-cv-20024 (S.D. Fla., January 6, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. The Defendants own and operate Grill on the Alley restaurant in Miami-Dade County, Florida. The Plaintiff is represented by: Samara Robbins Bober, Esq. Peter Joseph Marshall Bober, Esq. BOBER & BOBER, P.A. 1930 Tyler Street Hollywood, FL 33020 Telephone: (954) 922-2298 Facsimile: (954) 922-5455 E-mail: samara@boberlaw.com peter@boberlaw.com HAYWARD INDUSTRIES: Obtains Initial OK of Hayward, Zodiac Deals --------------------------------------------------------------- In IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION, Section: R(2), MDL NO. 2328, (E.D. La.), indirect-purchaser plaintiffs (IPPs), together with Hayward Industries, Inc. and Zodiac Pool Systems, Inc., moved the Court to preliminarily approve a class action settlement between IPPs and Hayward and a class action settlement between IPPs and Zodiac. The parties also moved the Court to certify a class for the purposes of the Hayward and Zodiac settlements. District Judge Sarah S. Vance granted the joint motion on Dec. 31, 2014, in an order and reasons, a copy of which is available at http://is.gd/Wdbukjfrom Leagle.com. Under the terms of the proposed Agreements, Hayward would pay a settlement amount of $1.5 million and Zodiac would pay a settlement amount of $500,000 into an Escrow Account pending final approval by the Court. The Agreements require that the settlement amounts be wire transferred by Hayward and Zodiac into the Escrow Account within 10 days of when the Court enters a Preliminary Order approving the settlements. Interest from the account will accrue to the benefit of the settlement class. The Agreements provides that the settlement amounts are "all-in" figures, meaning that $1.5 million is the total amount Hayward will pay and $500,000 is the total amount Zodiac will pay in exchange for the released claims. Accordingly, the settlement amounts will be used to pay: (1) the notice and administration costs; (2) attorneys' fees and litigation expenses; (3) incentive awards; (4) class member benefits; and (5) any remaining administration expenses and any other costs of any kind associated with the resolution of the action. Both settlement agreements define the Settlement Class as: all individuals residing or entities operating in Arizona, California, Florida or Missouri, who or which, between January 1, 2008 and July 16, 2013, purchased indirectly from PoolCorp (and not for resale) Pool Products in Arizona, California, Florida or Missouri manufactured by Hayward, Pentair, or Zodiac. The Court approves Angeion Group as the Claims Administrator. Angeion Group would be responsible for: (1) implementing and coordinating the notice plan and (2) managing, accounting for, and disbursing funds from the settlements, including tax reporting and disbursing. Angeion anticipates that $60,000 will be sufficient to cover these costs. The Court also approves First NBC Bank as Escrow Agent. First NBC Bank would be responsible for accepting deposit of, safeguarding, and disbursing the settlement funds consistent with the final settlement order and further orders from the Court. First NBC Bank's fees will be capped at $2500. Tom Brill is appointed as lead counsel for the settlement class. Richard C Stanley, Special Master, represented by Richard C. Stanley -- rcs@stanleyreuter.com -- Stanley, Reuter, Ross, Thornton & Alford, LLC. Direct Purchaser Plaintiffs' Liaison Counsel, Plaintiff, represented by Russ M. Herman, Herman, Herman, Katz & Cotlar, LLP. Indirect Purchaser Plaintiffs' Liaison Counsel, Plaintiff, represented by Thomas J. H. Brill, Law Office of Thomas H. Brill. Plaintiffs' Steering Committee, Plaintiff, represented by Arnold Levin -- ALevin@LFSBLaw.com -- Levin, Fishbein, Sedran & Berman, Daniel W. Krasner -- krasner@whafh.com -- Wolf, Haldenstein, Adler, Freeman & Herz, LLP, Douglas G. Thompson -- dthompson@finkelsteinthompson.com -- Finkelstein Thompson LLP, Jay L. Himes, Labaton Sucharow, LLP, Linda P Nussbaum -- lnussbaum@gelaw.com -- Grant & Eisenhofer, PA, Matthew B. Moreland -- mmoreland@becnellaw.com -- Becnel Law Firm, LLC, Richard J. Arsenault -- rarsenault@nbalawfirm.com -- Neblett, Beard & Arsenault, Robert N. Kaplan, Kaplan Fox & Kilsheimer LLP, Ronald J. Aranoff, Bernstein Liebhard LLP, Russ M. Herman, Herman, Herman, Katz & Cotlar, LLP, Scott R. Bickford -- srb@mbfirm.com -- Martzell & Bickford & Vincent J. Esades -- vesades@heinsmills.com -- Heins, Mills & Olson, PLC. Plaintiffs' Executive Committee, Plaintiff, represented by Jay L. Himes -- jhimes@labaton.com -- Labaton Sucharow, LLP, Robert N. Kaplan -- rkaplan@kaplanfox.com --Kaplan Fox & Kilsheimer LLP, Ronald J. Aranoff --Aranoff@bernlieb.com -- Bernstein Liebhard LLP & Russ M. Herman -- rherman@hhkc.com -- Herman, Herman, Katz & Cotlar, LLP. Defendants' Liaison Counsel, Defendant, represented by William Bernard Gaudet -- william.gaudet@arlaw.com -- Adams & Reese, LLP. Defendants' Lead Counsel, Defendant, represented by David H. Bamberger -- david.bamberger@dlapiper.com -- DLA Piper, LLP & Deana L. Cairo -- deana.cairo@dlapiper.com -- DLA Piper, LLP. Manufacturer Defendants' Liaison Counsel, Defendant, represented by Wayne J. Lee, Stone -- wlee@stonepigman.com -- Pigman, Walther, Wittmann, LLC. Federal Trade Commission, Movant, represented by Lisa Zeidner Marcus, U.S. Dept of Justice, Civil Div. HEALTH NET: Faces Class Suit Over Alleged Inferior Health Plans --------------------------------------------------------------- Health Net used bait-and-switch tactics to enroll Californians into its inferior health plans under the federal Affordable Care Act, a class claims in court. Rebecca Lehman, of Los Angeles County, and Heather Womick, of Orange County, filed the complaint on December 19 in Los Angeles Superior Court against Health Net of California Inc., and its subsidiary Health Net Life Insurance Co. Despite Health Net's representations between Oct. 1, 2013, and March 31, 2014, consumers who enrolled in the new plans soon "discovered that their provider networks did not include the providers Health Net had represented as in-network, and that those provider networks were much more limited than previously represented by Health Net," according to the complaint. "Due to Health Net's actions and misrepresentations, plaintiffs and class members are not able to fully access the benefits of the plans they purchased," the complaint continues. Among the superlatives that such conduct has earned, the class notes that "Health Net made the fewest doctors available to its enrollees in 2014, 'less than half what some other companies are offering in Southern California.'" Things are also going to get worse at Health Net in 2015, since the company "will no longer offer PPO plans inside the covered California exchange" as of Dec. 31, 2014, the complaint states. "Compared to Health Net's PPO plans, Health Net's EPO plans offer 54% fewer doctors," the class adds. Consumers say Health Net's practices allowed it to "significantly increase[] its share of the California individual health plan market, while offering inferior products," the complaint states. Because Health Net concealed plan limitations from consumers, however, they are now locked in those plans until the next enrollment period, according to the complaint. "Health Net's practices improperly shift the cost of medical care onto plaintiffs and class members," the complaint states. "Class members with HMO and EPO plans, (sic) are at risk of huge unpaid medical bills if they cannot access medical care in a timely manner from the limited number of in-network providers. For those with PPO plans, the reduced networks can transform fixed co- payments into percentage-based co-insurance arrangements that can leave enrollees on the hook for hundreds of additional dollars." The class says "Health Net's deceptive business practices resulted in mass confusion." Calling customer service at Health Net means that consumers "spend hours navigating through a labyrinth of automated phone trees, multiple transfers, average hold times of two to three hours, and disconnections," the complaint states. The class wants punitive damages for breach of contract and other violations. Consumer Watchdog attorney Harvey Rosenfield, Esq., of Santa Monica, also filed the complaint. The class is represented by: Travis M. Corby, Esq. SHERNOFF BIDART ECHEVERRIA BENTLEY 600 South Indian Hill Blvd. Claremont, CA 9171 Telephone: (800) 458-3386 Facsimile: (909) 625-6915 E-mail: tcorby@shernoff.com HOLMES EUROPEAN: Faces Suit Over Communications Act Violations -------------------------------------------------------------- Anthony Johnson, Individually and on Behalf of all Others Similarly Situated v. Holmes European Motors Inc. and Holmes European Motors LLC, Case No. 4:15-cv-00003-JLH (E.D. Ark., January 5, 2015) seeks relief under the Communications Act. The Plaintiff is represented by: Jeremy Y. Hutchinson, Esq. 201 East North Street Benton, AR 72015 Telephone: (501) 315-0577 Facsimile: (501) 778-7717 HOOTERS OF TRUSSVILLE: Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------ Brooke Pearman and Jodi Lee v. Hooters of Trussville, LLC, Case No. 2:14-cv-00015 (N.D. Ala., January 6, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. Hooters of Trussville, LLC owns and operates a restaurant in Trussville, Alabama. The Plaintiff is represented by: Daniel E. Arciniegas, Esq. Jon C. Goldfarb, Esq. L. William Smith, Esq. WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB The Kress Building 301 19th Street North Birmingham, AL 35203-3204 Telephone: (205) 314-0500 Facsimile: (205) 254-1500 E-mail: dea@wigginschilds.com jcg@wigginschilds.com wsmith@wigginschilds.com INTELLIGENT MEXICAN: Obtains Favorable Ruling in Class Action ------------------------------------------------------------- Lalita Clozel, writing for Texas Lawyer, reports that the U.S. Court of Appeals for the Fifth Circuit backed two Hispanic marketing companies against former employees claiming it had depressed their wages by hiring undocumented workers. The court said the two plaintiffs in the putative class action, Varela v. Gonzales, had failed to make a convincing case that by allegedly "transporting, harboring, encouraging entrance of and hiring . . . illegal aliens," the owners of Intelligent Mexican Marketing Inc. and Marketing and Inventory Management had driven their wages down. Jaime Varela was a sales representative paid $46,000, and Yesica Wiegert, a merchandiser, earned $26,000. They claimed that the two companies had hired at least 10 undocumented workers per year between 2010 and 2013. They sought to demonstrate that this recruiting strategy effectively lowered their wages, and that it was possible to evaluate the amount of lost wages. "[T]he direct effect of the employment of only 10 undocumented workers out of 100 workers is a loss of between $8,455 and $14,959 per worker, per year," their attorneys wrote. But the U.S. District Court for the Northern District of Texas found they had failed to demonstrate proximate cause. It dismissed two amended complaints and declined their motion to file a third. The Fifth Circuit affirmed the lower court's dismissal on Dec. 11, arguing that Mr. Varela and Ms. Wiegert had failed to explain how the companies could have enough economic power to shape labor markets. Plaintiffs are represented by Rob Wiley PC and defendants by Ogletree, Deakins, Nash, Smoak & Stewart. INTER-CON SECURITY: Denial of Bid to Compel Arbitration Upheld -------------------------------------------------------------- Inter-Con Security Systems, Inc. (Inter-Con) appeals from an order denying its petition to compel arbitration of a putative wage and hour class action filed by Brian Bower. Inter-Con contends the trial court erred in finding that it waived its right to compel arbitration by engaging in litigation conduct inconsistent with the right to demand arbitration. Inter-Con further argues that Bower's claims should be arbitrated and that the arbitration should be limited in scope to Bower's individual claims in light of a waiver of class claims contained in the parties' arbitration agreement. According to the Court of Appeals of California, First District, Division Three, it cannot say as a matter of law that Bower suffered no cognizable prejudice. Hence, it concludes there was substantial evidence to support the trial court's finding of waiver, and it affirms the order denying the petition to compel arbitration. Bower shall recover his costs on appeal. A copy of the December 31, 2014 decision is available at http://is.gd/4al261from Leagle.com The case is BRIAN BOWER, Plaintiff and Respondent, v. INTER-CON SECURITY SYSTEMS, INC., Defendant and Appellant, NO. A135940. Ronald W. Novotny -- rnovotny@aalrr.com -- Robert R. Roginson -- robert.roginson@ogletreedeakins.com -- Amber M. Solano -- asolano@aalrr.com -- Atkinson, Andelson, Loya, Ruud & Romo PLC, Counsel for Appellant, Inter-Con Security Systems, Inc. Matthew R. Bainer -- mbainer@scalaw.com -- Molly A. DeSario -- mdesario@scalaw.com -- Scott Cole & Associates, APC, Counsel for Respondent, Brian Bower. JACK IN THE BOX: Trial Court Ruling Upheld in Customers' Suit ------------------------------------------------------------- Kenneth Pratt and Cleo Dixon acting in propria persona (pro. per.), filed a putative class action against Jack in the Box, Inc., and others alleging that defendants overcharged them for a small combination meal that was upgraded to include large fries and a large drink. On appeal from a judgment of dismissal, plaintiffs contend the trial court (1) erred in denying their peremptory challenge to the assigned judge, (2) abused its discretion in sustaining the defendants' demurrer without leave to amend, and (3) abused its discretion in delaying consideration of their motion to compel and in imposing discovery sanctions. The Court of Appeals of California, First District, Division Three affirmed the judgment saying the plaintiffs' contentions lack merit and that the trial court did not abuse its discretion in imposing discovery sanctions against plaintiffs. Their failure to undertake meaningful meet and confer efforts prior to filing their motions and the impropriety of the discovery requests at issue provided a basis for the sanctions, which were significantly less than defendants sought as compensation for having to respond to the motions. Therefore, the Calif. Appeals Court discerns no abuse of discretion meriting reversal of the trial court's discovery rulings and imposition of sanctions. A copy of Calif. Appeals Court's December 31, 2014 decision is available at http://is.gd/tGR4CHfrom Leagle.com The case is KENNETH PRATT et al., Plaintiffs and Appellants, v. JACK IN THE BOX, INC., et al., Defendants and Respondents, NO. A139960. JAMBA JUICE: Class Action Plaintiffs Foreswear Collective Damages ----------------------------------------------------------------- Lalita Clozel, writing for The National Law Journal, reports that in a proposed settlement of a class action over alleged mismarketing of Jamba Juice kits as all-natural, the plaintiffs sidestepped the process for identifying class members by not seeking collective damages. Lilly v. Jamba Juice was closely watched after the defendants, Jamba Juice and Inventure Foods Inc. sought to defeat the case on ascertainability ground, arguing it would be too difficult to identify buyers of the small-ticket item. In a motion for preliminary approval filed on Dec. 1, the plaintiffs laid out a proposal for injunctive relief that would require Jamba Juice to stop marketing its smoothie kits as "all natural" and compensate the named plaintiffs with up to $5 million each. The class would not be awarded monetary damages, so the settlement would not require sending out notices to potential members. In a September order, Judge Jon Tigar rejected the defendants' ascertainability arguments and certified the liability class. "Few people retain receipts for low-priced goods," he wrote. "Yet it is precisely in circumstances like these, where the injury to any individual consumer is small, but the cumulative injury to consumers as a group is substantial, that the class action mechanism provides one of its most important social benefits." However, Judge Tigar had stopped short of certifying the class for purposes of damage relief. In their initial complaint, filed in June 2013 in the U.S. District Court for the Northern District of California, named plaintiffs Aleta Lilly and David Cox accused Jamba Juice and Inventure Foods of misleading buyers by marketing a line of smoothie kits as "all natural." In fact, they noted, the frozen blends, which come out in such flavors as Mango-A-Go-Go, Orange Dream Machine and Razzmatazz, contain ascorbic acid, xanthan gum and other complex-sounding ingredients. Plaintiffs' attorneys are with Finkelstein Thompson and Glancy Binkow & Goldberg. JEFFREY-ALLEN INC: Removes "Aguda" Suit to Florida District Court ----------------------------------------------------------------- The class action lawsuit captioned Aguda v. Jeffrey-Allen, Inc., et al., Case No. CACE-14-22132, was removed from the 17th Judicial Circuit Court In Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft. Lauderdale). The District Court Clerk assigned Case No. 0:15-cv-60006-MGC to the proceeding. The lawsuit seeks relief for alleged violations of 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: Jeffrey Bernard Jones, Esq. Jason Matthew Leo, Esq. LITTLER MENDELSON, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, FL 32801-2366 Telephone: (407) 393-2900 Facsimile: (407) 393-2929 E-mail: jbjones@littler.com jleo@littler.com JOHNSON & JOHNSON: Jilted Class Action Attorney Sues Plaintiff -------------------------------------------------------------- Lalita Clozel, writing for The National Law Journal, reports that when Patricia Moulton Partee decided to switch lawyers for a class action against Johnson & Johnson, the jilted attorney, Steven M. Johnson of Texas, sued her. The suit, filed in August in Texas Northern District Court, was dismissed by a federal judge on Nov. 26 on personal jurisdiction grounds. Ms. Partee, a California resident, had found out about the class action involving a Johnson & Johnson DePuy ASR hip replacement through the attorney's television ad, according to court records. After calling Mr. Johnson, she signed a contract allotting him a 40 percent fee. She had signed the contract without realizing there were attorneys in the case. Two years later, she sought representation from an attorney closer to where she lived in California before recovered any settlement money in the case. At the time, she'd been "unaware of any legal work done on her behalf" by Johnson, Judge John McBryde of the Northern District of Texas ruled. Judge McBryde cited insufficient "affiliations with Texas on the part of [Partee] as would cause her to reasonably anticipate being haled into a Texas court." For example, Ms. Partee did not purposefully seek a lawyer in Texas. And her communication with Johnson by mail were not sustained enough to justify general jurisdiction from the Texas court. The plaintiff's lawyers were with Needham Johnson. JOURNAL COMMUNICATIONS: Sued Over Misleading Financial Reports -------------------------------------------------------------- Howard Goldfinger, individually and on behalf of all others similarly situated v. Journal Communications Inc., et al., Case No. 2:15-cv-00012 (E.D. Wis., January 6, 2015), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Journal Communications Inc. operates as a media company in the United States. The Plaintiff is represented by: Charles J. Crueger, Esq. Erin K. Dickinson, Esq. HANSEN REYNOLDS DICKINSON CRUEGER LLC 316 N. Milwaukee St., Suite 200 Milwaukee, WI 53202 Telephone: (414) 273-8474 Facsimile: (414) 273-8476 E-mail: ccrueger@hrdclaw.com edickinson@hrdclaw.com - and - Kent A. Bronson, Esq. Christopher Schuyler, Esq. MILBERG LLP One Pennsylvania Plaza New York, NY 10119 Telephone: (212) 594-5300 Facsimile: (212) 868-1229 E-mail: kbronson@milberg.com cschuyler@milberg.com KIMBERLY-CLARK CORP: Court Junks "Flushable" Toilet Paper Suit -------------------------------------------------------------- William Dotinga at Courthouse News Service reports that a federal judge flushed a consumer fraud class action over the "flushability" of Kimberly-Clark disposable wipes, finding the lead plaintiff didn't show that the products clogged plumbing or damaged sewer treatment plants. Jennifer Davidson claimed in her 2013 class action against Kimberly-Clark and its subsidiaries that she bought the Scotts Naturals Flushable Moist Wipes from a San Francisco supermarket based on her belief that they were "specially designed to be suitable for flushing down her toilet without causing problems in her plumbing or at the water treatment plant." She "began to seriously doubt that they were truly flushable," however, after "several uses of the wipes." Though Davidson stopped using the wipes and did not purchase additional flushable Kimberly-Clark products, she said the company falsely advertises four of its products -- including Cottonelle Fresh Care wipes and cleansing cloths, Huggies Pull-Ups Flushable Moist Wipes, U by Kotex Refresh wipes and the aforementioned Scotts product -- as flushable, despite causing problems in septic tank and at sewage treatment plants. Davidson survived Kimberly-Clark's first bid to dismiss the action, although U.S. District Judge Phyllis Hamilton advised her to show that she relied on something more than the wipes' packaging to make her fraud-in-advertising case, and declined to get involved in whether "flushable" means that the wipes must necessarily break down before arriving at a wastewater treatment plant. After allowing Davidson to amend her complaint, Hamilton dismissed the action in full in the week of December. In addition to finding that Davidson lacked standing to force Kimberly-Clark to remove the "flushable" label from the products -- since she admitted that she would never purchase the products again -- Hamilton said Davidson still hadn't shown how the wipes can't be flushed down the toilet. "Having personally experienced no problems with her plumbing on account of her use of the Scott Naturals wipes or any of the products at issue, plaintiff must point to some other specific facts showing that the designation 'flushable' is false. Plaintiff has failed to do this," Hamilton wrote. "She cites to articles on the Internet that discuss problems with clogs and blockages at wastewater treatment plants in various locations in the United States, but those problems appear to have had a number of causes -- including people flushing 'nonflushable' wipes or other 'nonflushable' materials down the toilet." News stories cited by Davidson that detailed plumbing clogs and treatment plant problems involved the wipes' interaction with all manner of refuse consumers flush but shouldn't, like diapers, rags, towels, hair, cigarette butts, kitty litter and doggy waste bags, Hamilton said. The fact that the wipes never damaged Davidson's -- or San Francisco's -- systems doomed the case in the end. "The first amended complaint fails to state a claim for relief that is plausible on its face," Hamilton wrote. "Because plaintiff was previously been given leave to amend to correct the deficiencies in the complaint and failed to do so, the court finds that further leave to amend would be futile." The case is Jennifer Davidson v. Kimberly-Clark Corporation, et al., Case No. 4:14-cv-01783-PJH, in the U.S. District Court for the Northern District of California. KINETIK INDUSTRIAL: "Michael" Class Suit Removed to S.D. Florida ---------------------------------------------------------------- Defendant Harry Pepper & Associates, Inc. removed the class action lawsuit entitled Michael v. Kinetik Industrial Group, LLC, et al., Case No. 14-031170 CA 01, from the 11th Judicial Circuit Court to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:15-cv- 20004-JLK to the proceeding. The lawsuit alleges violations of 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 Defendant Harry Pepper & Associates, Inc. is represented by: Peter W. Homer, Esq. Andrew Vitali, III, Esq. HOMER BONNER JACOBS, P.A. 1441 Brickell Avenue Four Seasons Tower, Suite 1200 Miami, FL 33131 Telephone: (305) 350-5100 Facsimile: (305) 372-2738 E-mail: phomer@homerbonner.com avitali@homerbonner.com KINGS COUNTY, CA: Faces Convict Laborers' Class Action ------------------------------------------------------ A class action filing in the United States District Court for the Eastern District of California - Fresno Division by Dion Anderson challenges the practice of transferring convict laborers' commercial debts to private and public buyers (Docket No. and Case Title: Dion Anderson v. Edmond G. Brown 1:12-CV-01839-AWI-DLB). Anderson, a Pro Se litigant housed at Kern Valley State Prison (#P-72476 KVSP B5-227), initiated a complaint on Nov. 6, 2012, citing California Code of Civil procedure Section 996.410(b). He references the rights accorded ". . . any prisoner not serving a capital offense but sentenced to service off discreet Superior Court statutorial fines" and "special interests attached to the amount of revenue taxed to their criminally convicted charges (i.e., semantically referred to as Bond)." According to Mr. Anderson, the issue revolves around the County's practice of transferring convict laborers' commercial debts to private and public buyers. California legislation stipulates that, after 90 days from the date of a prisoner's sentencing, convict laborers are allowed to file "Claim and Deliver" actions within their own respective county Superior Courts (California Code of Civil Procedure* Section 996.110-150) to effect their own discharge from the California Department of Corrections and Rehabilitation (CDCR) System. Mr. Anderson's suit seeks to protect putative class members' release and to hold the State to its responsibilities to release incarcerated individuals on their statutorial recognition. Since the filing of the action, Mr. Anderson claims he has been: -- Charged criminally in the Kings County Superior Court for an alleged assault on a correctional officer -- Denied legal access to the law library at Kern Valley State Prison -- Subjected to tactical obstruction of power inside the Federal Court as a result of his non-compliance with effectuating his own personal release A motion for appointment of class counsel and motion for preliminary approval of class settlement proposal was submitted by Anderson to the Court on Sept. 22, 2014. "The Court appears to have gone moot," said Mr. Anderson. "I believe it has decided to deny another action I have filed in the Federal Eastern District Court (Docket No. Anderson v. The City 1:14-CV-00202-LJO-MJS), to activate Congressional 28 U.S.C. Section 1915(g) to circumvent the District Court from responding to my request for appointment of class counsel motion." KINRAY INC: Fernandez, et al. Allowed to Amend Class Action ----------------------------------------------------------- Freddy Fernandez, Luis Velasquez, and Giovanny Gonzalez brought an action under the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201, et seq., and New York Labor Law (NYLL), alleging that they and other similarly situated employees of the defendants were misclassified as independent contractors, earned but were not paid overtime wages, and had expenses improperly deducted from their wages. Plaintiffs moved for leave to file an amended complaint. Defendants both oppose plaintiffs' motion and cross-move for judgment on the pleadings. In a memorandum order entered December 30, 2014, a copy of which is available at http://is.gd/zqbTJqfrom Leagle.com, Magistrate Judge Steven M. Gold granted the plaintiffs' motion for leave to amend and denied defendants' crossmotion for judgment on the pleadings. "The fact that discovery relevant to class certification has not yet been completed, and the added consideration that this case is brought under a statute -- the FLSA -- that favors litigating plaintiffs' claims against a common defendant in aggregate, I conclude that defendants have failed to meet their high burden to defeat plaintiffs' motion to amend or establish that dismissal is warranted," ruled Magistrate Judge Gold. The case is FREDDY FERNANDEZ, LUIS VELASQUEZ, and GIOVANNY GONZALEZ, on behalf of themselves and all others similarly situated, Plaintiffs, and v. KINRAY, INC. and CARDINAL HEALTH, INC., Defendants, NO. 13-CV-4938 (ARR), (E.D. N.Y.). LAPTOP & DESKTOP: Sued in N.Y. Over Illegal Business Practices -------------------------------------------------------------- Martin Bank, individually and on behalf of all others similarly situated v. Laptop & Desktop Repair LLC, Case No. 2:15-cv-00049 (E.D.N.Y., January 6, 2015), arises out of the Defendant's fraudulent business practices of wrongfully depriving the Plaintiffs of their property, specifically by refusing to pay the amount of the Initial Quote or refusing to return the Product. Laptop & Desktop Repair LLC operates various web sites though which it offers to purchase people's used electronic products. The Plaintiff is represented by: Todd C. Bank, Esq. LAW OFFICE OF TODD C. BANK 119-40 Union Turnpike, Fourth Floor Kew Gardens, NY 11415 Telephone: (718) 520-7125 E-mail: TBLaw101@aol.com LEPAGE BAKERIES: Illegally Withholds Employees Wages, Suit Claims ----------------------------------------------------------------- Bart Bokanoski, Robert Dizinno, and Jeremy Anderson, on behalf of themselves and all others similarly situated v. Lepage Bakeries Park St., LLC, C.K. Sales Co., LLC, Case No. 3:15-cv-00021 (D. Conn., January 6, 2015), seeks to redress the Defendants' practice of making various unlawful and unauthorized deductions from the Plaintiffs' and class members' compensation. The Defendants are engaged in the business of manufacturing, delivering, and selling baked goods under brand names Flower Foods, Country Kitchen, and Wonder Bread. The Plaintiff is represented by: Richard Eugene Hayber, Esq. HAYBER LAW FIRM LLC 221 Main Street, Suite 502 Hartford, CT 06106 Telephone: (860) 522-8888 Facsimile: (860) 218-9555 E-mail: rhayber@hayberlawfirm.com MARION, IN: Jails Inmates Days After Release Date, Suit Says ------------------------------------------------------------ The Marion County Sheriff (Indianapolis) systematically keeps inmates in jail for two or more days beyond their release date, a class action claims in Indiana Federal Court, according to Courthouse News Service. MASSAGE ENVY: Removes "Robinson" Suit to Florida District Court --------------------------------------------------------------- The class action lawsuit entitled Robinson v. Massage Envy Franchising, LLC, Case No. CACE-14-022736, was removed from the Division 08 of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida. The District Court Clerk assigned Case No. 0:15-cv-60017 to the proceeding. MEF is a Delaware limited liability company. The Plaintiff alleges that MEF is the "franchisor and principal for all Message[sic] Envy clinics throughout the United States," which includes "more than 900" locations. The Plaintiff also alleges that said clinics operate on a "prepaid membership fee model" where members receive monthly massages in exchange for a $59 per month membership fee. According to the Complaint, if a member cancels her membership or the membership is in arrears, membership services may not be redeemed. The Plaintiff characterizes the membership structure as a "pre-paid massage forfeiture scheme" and alleges that as a result of this scheme, the Plaintiff and the Class she seeks to represent "have suffered economic damages in an amount equal to the value of all prepaid massages paid for and ultimately forfeited by Massage Envy." The Plaintiff is represented by: Joshua Harris Eggnatz, Esq. Michael James Pascucci, Esq. THE EGGNATZ LAW FIRM, P.A. 5400 S. University Drive, Suite 413 Davie, FL 33328 Telephone: (954) 889-3359 Facsimile: (954) 889-5913 E-mail: JEggnatz@eggnatzlaw.com mpascucci@eggnatzlaw.com The Defendant is represented by: Clinton Daggett Flagg, Esq. Carol Anne Fenello, Esq. 9155 S. Dadeland Boulevard Miami, FL 33156 Telephone: (305) 669-0506 Facsimile: (305) 669-8980 E-mail: cflagg@flagg-law.com cfenello@flagg-law.com MCKESSON CORPORATION: Court Rules on Discovery Request ------------------------------------------------------ Magistrate Judge Donna M. Ryu partly granted Plaintiff's motion to compel document production in the case captioned TRUE HEALTH CHIROPRATIC, Plaintiff(s), v. McKESSON CORPORATION, NO. C-13- 02219-JST (DMR)(N.D. Cal.). Plaintiffs filed a class action case against the Defendant, alleging practice of sending unsolicited facsimile advertisements ("junk faxes"). Plaintiffs moved that Defendants be compelled to (1) produce all fax advertisements that did not include an opt-out notice that Defendants sent during the class period; (2) produce the documents showing that the recipients of fax advertisements gave the Defendants prior express permission; (3) produce documents containing information about recipients of the fax ads sent by Defendants during the class period, including their identities and fax numbers, and the dates and times they received transmissions. Defendants objected, arguing that Plaintiffs' discovery request seeks confidential and proprietary customer lists aside from being overbroad, irrelevant, and unduly burdensome, because the advertisements are not relevant to the question of class certification and are therefore outside the scope of precertification discovery. Further, Defendant argued that the requested documents are not relevant to the issue of class certification. Magistrate Judge Ryu held that the requested discovery is relevant to the class certification issue, specifically to the issues of typicality and commonality. Furthermore, although Defendants argue that the production would be burdensome, they fail to articulate the nature and extent of the claimed burden. Judge Ryu granted Plaintiffs' motion to compel Defendants to produce documents relating to the permission defense. Judge Ryu said Defendants' concerns about confidentiality are adequately addressed by the parties' protective order. A copy of Judge Ryu's Order dated November 14, 2014, is available at bit.ly/1zCcDBY from Leagle.com. True Health Chiropractic Inc, an Ohio Corporation, Individually and as the Representative of a class of similarly situated persons, Plaintiff, represented by Robert C. Schubert -- rschubert@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP, Willem F. Jonckheer, Schubert Jonckheer & Kolbe LLP, Brian John Wanca, Anderson + Wanca, George Demetrios Jonson, Montgomery Rennie Jonson, Glenn L. Hara, Anderson + Wanca, Matthew Elton Stubbs, Montgomery Rennie Jonson, Ross Michael Good, Anderson + Wanca & Ryan Michael Kelly. McLaughlin Chiropractic Associates, Inc., Plaintiff, represented by Brian John Wanca, Anderson + Wanca, Glenn L. Hara, Anderson + Wanca, Ross Michael Good, Anderson + Wanca & Willem F. Jonckheer, Schubert Jonckheer & Kolbe LLP. McKesson Corporation and McKesson Technologies, Inc., Defendants, represented by Tyree P. Jones, Jr., Andrew Amoroso -- tpjones@reedsmith.com and aamoroso@reedsmith.com -- at Reed Smith LLP & David S. Reidy, Reed Smith LLP. MF GLOBAL: January 21 Deadline Set for Settlement Objections ------------------------------------------------------------ NOTICE OF CLASS ACTION SETTLEMENT If You Purchased, Invested In, or Otherwise Acquired an Interest in Platinum or Palladium Bullion in the United States Physical or "Spot" Market Conforming to NYMEX "Good Delivery" Requirement, or Purchased Platinum or Palladium Bullion of at Least 99.95% Purity, During the Period of June 1, 2006 through April 29, 2010, Inclusive, Then Your Rights Will Be Affected and You May Be Entitled to a Benefit Please be advised that this notice is separate and in addition to the previously published notice concerning the Physical Plaintiffs' prior $9,355,000 settlement with the Moore Capital Defendants and Defendant Joseph Welsh and requires your separate review. The purpose of this notice is to inform you of a Settlement with James W. Giddens as trustee for the liquidation of MF Global Inc. under the Securities Investor Protection ACT. MFGI was, prior to the SIPA Proceeding, a defendant in the class action In re: Platinum and Palladium Commodities Litig. (Platinum/Palladium Physical Action), 10-cv-3617 (WHP) (S.D.N.Y.) ("Physical Action") pending in the U.S. District Court for the Southern District of New York. The Physical Plaintiffs filed a claim in the SIPA proceeding based on the allegations in the Physical Action. The Court has scheduled a public Fairness Hearing for February 13, 2015, at 11:00 a.m. at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY, Courtroom 20B. In order to resolve the claims against MFGI, (1) the Trustee has agreed, subject to approval of the Bankruptcy Court, to the allowance of a final, non-appealable allowed claim in the MF Global SIPA Proceeding in the amount of $2,317,857.14 for the benefit of the Physical Class; (2) MF Global's insurance carrier has agreed, subject to approval of the Bankruptcy Court, to make an all-cash payment totaling $577,500; and (3) MF Global Holdings, Ltd. has agreed to provide further specific consideration to the Physical Plaintiffs and the Physical Class, including an all-cash payment of $200,000 in consideration for the Physical Plaintiffs' agreement to assign certain rights in relation to an anticipated judgment against Defendant Joseph Welsh. See Settlement Agreement and MF Global Holdings Agreement available at www.PlatinumPalladiumPhysicalLitigation.com MFGI and the Trustee have consistently and vigorously denied the Physical Plaintiffs' claims. By entering into the Settlement Agreement with the Physical Plaintiffs, the Trustee does not admit and instead continues to deny MFGI engaged in any unlawful conduct, and denies any member of the Physical Class suffered compensable damages. Absent a settlement, the Trustee would continue to vigorously oppose each and every aspect of the Physical Plaintiffs' claims and alleged damages. There is a separate settlement with Defendant MF Global involving certain transactions in futures platinum and futures palladium. A copy of the Settlement Agreement, the formal Settlement Notice, Plan of Allocation, Proof of Claim and other important documents are available on the settlement website at www.PlatinumPalladiumPhysicalLitigation.com For additional information, you may also contact the Settlement Administrator, A.B. Data, Ltd., at (888) 206-5360 or at the address below: PLATINUM AND PALLADIUM LITIGATION SETTLEMENT -- PHYSICAL ACTION c/o A.B. DATA, LTD. PO Box 170500 MILWAUKEE, WI 53217-8091 info@PlatinumPalladiumPhysicalLitigation.com If you are a member of the Physical Class, you may seek to participate in the Settlement by submitting a Proof of Claim that is received by the Settlement Administrator on or before April 29, 2015. You may obtain a Proof of Claim on the settlement website referenced above. If you are a member of the Physical Class but do not file a Proof of Claim, you will still be bound by the releases set forth in the Settlement Agreement if the Court enters an order approving the Settlement Agreement. All objections must be made in accordance with the instructions set forth in the formal Settlement Notice and must be filed with the Court and served on the Parties' counsel by January 21, 2015. All requests to be excluded from the Settlement must be made in accordance with the instructions set forth in the formal Settlement Notice and must be received by the Settlement Administrator no later than January 9, 2015. You may obtain a Request for Exclusion form on the settlement website referenced above. However, it is the Trustee's position that if anyone seeks to be excluded from the Settlement and did not file a bankruptcy proof of claim in the SIPA Proceeding on or before June 2, 2014, such claim is late filed and should be disallowed and expunged. Additionally, the Trustee asserts that the claim of anyone excluded from the Settlement (even if a timely bankruptcy proof of claim was filed) will be subject to the claims allowance process in the Bankruptcy Court and may be subject to denial and expungement. NAT'L FOOTBALL: 7 Players Can't Appeal Conditional Certification ---------------------------------------------------------------- Lizzy McLellan, writing for The Legal Intelligencer, reports that seven dissident ex-pro football players have been denied permission to appeal U.S. District Judge Anita Brody of the Eastern District of Pennsylvania's conditional certification, for the purpose of facilitating settlement, of class plaintiffs in the NFL concussion lawsuit. A divided U.S. Court of Appeals for the Third Circuit panel held that it lacked jurisdiction to take the appeal, as conditional certification under Rule 23(e) was not a final determination by Brody of the proposed class' status. Judge D. Brooks Smith wrote for the majority, with Judge Kent Jordan joining. Judge Thomas Ambro dissented. The 56-page opinion explains the one-page order issued in September denying the players' petition for leave to appeal. "We hold that an interlocutory appeal pursuant to Rule 23(f) permits the court of appeals to review only an 'order granting or denying class-action certification' issued pursuant to Rule 23(c)(1)," Judge Smith wrote. "An order issued under some other subdivision of Rule 23, such as a case management order issued pursuant to Rule 23(e) that 'preliminarily' or 'conditionally' addresses class certification but reserves the class certification determination for a later time, does not qualify as an 'order granting or denying class-action certification' that is subject to interlocutory review under Rule 23(f).19." The Eastern District granted the settlement agreement preliminary approval in July, five days after seven retired football players filed an objection to the revised class-action settlement agreement. The objecting players were Sean Morey, Alan Faneca, Ben Hamilton, Robert Royal, Roderick Cartwright, Jeff Rohrer and Sean Considine. According to the Third Circuit opinion, the objectors argued that the revised settlement bargained away the rights of former players suffering from chronic traumatic encephalopathy, those who have had a stroke or other non-football injury or are at risk of those injuries, and those who played in NFL Europe. The objectors also said the proposed notice of settlement was false and misleading, the claims process was so onerous and confusing that it raised fairness concerns, the agreement was not a product of "arm's-length negotiation" and the class counsel did not conduct discovery to evaluate the claims and defenses, the opinion said. Judges Smith, Jordan and Ambro heard arguments on the objecting players' right to appeal in September. Just one day later, they issued a one-page order denying the petition for leave to appeal, which said that an opinion on the matter would be filed at a later time. During arguments, Judge Smith told the players' counsel that they and any other objectors could take issue with the proposed agreement at the fairness hearing about the settlement agreement. That hearing took place Nov. 19. A ruling from the fairness hearing has yet to be issued. Until that occurs, Judge Smith wrote, there is no order that can be appealed in the Third Circuit. "The order specifically couched review of the settlement agreement as 'preliminary' and the class was 'conditionally certified for settlement purposes,'" Judge Smith wrote. In the opinion, Judge Smith addressed each of five arguments from the objectors, writing that none of them are persuasive. The court's counter to the arguments centered on the idea that the district court has not made an official ruling or order. "Objectors' fourth point is that we should evaluate a district court's 'ruling on class certification' that is 'likely erroneous,'" Judge Smith wrote. "This position presumes that there is a ruling available to analyze, which there is not." In his dissent, Judge Ambro said he would also deny the appeal, but for a different reason. "As I believe Rule 23(f) authorized (and for sure nowhere limits -- in word or intent) our review of the order Judge Brody entered, I would deny the petition for review because granting it would result in inefficient (indeed, chaotic) piecemeal litigation that would interfere with the formal fairness hearing on the settlement," Judge Ambro wrote. "Though in either case petitioners lose, I dissent from my colleagues' means to that end." Judge Ambro said his colleagues wrongly interpreted a 2003 change to the Federal Rules of Civil Procedure in a way that precludes the appeals court from considering a conditional class- certification order appeal. "My colleagues and I can agree that appellate courts should be reluctant to review class-certification orders on an interlocutory basis. To me that is enough," he wrote. "To go so far further by holding that we lack even the power to do so here is a bridge too far." Bruce A. Birenboim -- bbirenboim@paulweiss.com -- of Paul, Weiss, Rifkind, Wharton & Garrison, the attorney representing the NFL defendants, said the league had no comment on the decision. Attorneys for the opposing class members could not be reached for comment Dec. 24. NAVISTAR INC: "Klinger" Suit Included in MaxxForce Engines MDL -------------------------------------------------------------- The class action lawsuit titled Klinger v. Navistar, Inc., Case No. 1:14-cv-01914, was transferred from the U.S. District Court for the Middle District of Pennsylvania to the U.S. District Court for the Northern District of Illinois (Chicago). The Illinois District Court Clerk assigned Case No. 1:14-cv-10335 to the proceeding. The case is consolidated in the multidistrict litigation captioned In re: Navistar MaxxForce Engines Marketing, Sales Practices and Products Liability Litigation, MDL No. 2590. The actions in the litigation share factual questions arising from alleged defects in Navistar's Advanced EGR emission control system that was used in Navistar's MaxxForce diesel engines. The Plaintiffs allege that trucks or other heavy-duty vehicles in which these engines were installed suffered repeated failures and fault warnings, resulting in costly and time-consuming repairs. The Plaintiff is represented by: D. Aaron Rihn, Esq. PEIRCE LAW OFFICES 707 Grant St. 2500 Gulf Tower Pittsburgh, PA 15219 Telephone: (412) 281-7229 E-mail: arihn@peircelaw.com - and - James E. Cecchi, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 Facsimile: (973) 994-1744 E-mail: JCecchi@carellabyrne.com - and - Jamie E. Weiss, Esq. Jeffrey A. Leon, Esq. Richard J. Burke, Esq. Zachary Jacobs, Esq. QUANTUM LEGAL LLC 513 Central Avenue, 3rd Floor Highland Park, IL 60035 Telephone: (847) 433-4500 Facsimile: (847) 433-2500 E-mail: jeff@Qulegal.com richard@Qulegal.com - and - Jonathan Shub, Esq. SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone: (215) 564-2300 E-mail: jshub@seegerweiss.com NAVISTAR INC: Priority Suit Consolidated in MaxxForce Engines MDL ----------------------------------------------------------------- The class action lawsuit styled Priority Towing, Inc. v. Navistar, Inc., Case No. 9:14-cv-81202, was transferred from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Northern District of Illinois (Chicago). The Illinois District Court Clerk assigned Case No. 1:14-cv-10319 to the proceeding. The case is consolidated in the multidistrict litigation captioned In re: Navistar MaxxForce Engines Marketing, Sales Practices and Products Liability Litigation, MDL No. 2590. The actions in the litigation share factual questions arising from alleged defects in Navistar's Advanced EGR emission control system that was used in Navistar's MaxxForce diesel engines. The Plaintiffs allege that trucks or other heavy-duty vehicles in which these engines were installed suffered repeated failures and fault warnings, resulting in costly and time-consuming repairs. The Plaintiff is represented by: Mark S. Fistos, Esq. Seth Michael Lehrman, Esq. Steven R. Jaffe, Esq. FARMER, JAFFE, WEISSING, EDWARDS, FISTOS AND LEHRMAN 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (850) 727-0020 Facsimile: (954) 524-2822 E-mail: mark@pathtojustice.com seth@pathtojustice.com steve@pathtojustice.com The Defendant is represented by: Barry Marshall Sabin, Esq. LATHAM & WATKINS 555 Eleventh Street NW, 10th Floor Washington, DC 20004 Telephone: (202) 637-2263 Facsimile: (202) 637-2201 E-mail: barry.sabin@lw.com NEATO BURRITO: Faces "Ruggiero" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Arianna Ruggiero, individually and on behalf of others similarly situated v. Neato Burrito, LLC and Jon Victor Rohrer, Case No. 1:15-cv-00021 (M.D. Pa., January 6, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants own and operate seven restaurants within the Central Pennsylvania area. The Plaintiff is represented by: Jonathan M. Crist, Esq. LAW OFFICES OF JONATHAN M. CRIST 226 West Chocolate Ave. Hershey, PA 17033 Telephone: (717) 533-6600 E-mail: jm-wac@msn.com NEW YORK, USA: Sued for Collecting Info on Mental Health Patients ----------------------------------------------------------------- Writing for Courthouse News Service, Jonathan Perlow reports that New York state is collecting confidential information on mental health patients to create a database of people it deems unfit to carry a firearm, according to a federal class action. Lead plaintiff Donald Montgomery claims the state created a reporting system, as part of the New York Secure Ammunition and Firearms Enforcement Act (Safe Act), that forces health professionals to transmit mental health patients' confidential information to a database shared by various government agencies, including law enforcement. It was part of the state's response to the rash of mass shootings over the past several years, in particular, that in Newtown, Conn. Montgomery estimates that medical providers have reported such information on more than 60,000 people. Gov. Andrew Cuomo, the lead defendant, signed the Safe Act into law in January 2013. Montgomery calls him "the principal architect of the Act." New York Mental Hygiene Law 9.46 compels health professionals to report patients' data to the state if they feel the patients' actions are "likely to result in serious harm to self or others," the complaint states. "The personal health information amassed includes, but is not limited to, any mental health diagnosis of a patient. The personal health information is shared by numerous agencies, including, but not limited to law enforcement and non-state agencies and offices," the lawsuit states. "The state does not use a subpoena to obtain this confidential personal health information. The state has made the affirmative misrepresentation to medical professionals and others that transmitting this data is lawful." Neither the state nor the treatment providers notify patients about the information sharing, the lawsuit states. It adds: "The Office of Mental Health underplays and misrepresents the seriousness of the personal health information being transmitted. The state intends its operations around MHL 9.46 to be conducted in a secretive and over-reaching manner." The law defines mental health professionals as physicians, psychologists, registered nurses and social workers, according to the lawsuit. Montgomery, a Navy veteran and retired police officer, claims defendant Eastern Long Island Hospital incorrectly labeled him as an "involuntary admission," leading to the revocation of his pistol permit and his handguns being seized by the Suffolk County Sheriff's Department, on orders from the New York State Police. "The New York State Police sent a letter to the Suffolk County Clerk's Office wrongfully stating that the plaintiff 'has been adjudicated as a mental defective or has been involuntarily committed to a mental institution' and that the plaintiff was prohibited from possessing a firearm, rifle, or shotgun," the complaint states. "The NYS Police have taken the position of directing local law enforcement agencies and offices to conduct warrantless searches and seizures of the homes and personal properties of persons reported through MHL 9.46 to seize all firearms and licenses." Montgomery, who says he has no mental health history and no pre- existing medical conditions, says he presented himself to Eastern Long Island Hospital for sleep deprivation, and was released less than 48-hours later. Unbeknownst to Montgomery, the hospital labeled him an "involuntary admission," disqualifying him from owning or carrying a firearm under the new law. He claims that when patients' information is sent to the state police, they check it against other databases, including a database of pistol permit holders. Montgomery questions whether a person's mental health status is related to a propensity to commit violence. Neither federal law enforcement agencies nor the state has developed a profile of the "mass shooter," the complaint states. It adds: "According to the American Psychological Association, there is no study that predicts future violence." The lawsuit cites testimony from a New York State Senate Committee hearing after passage of the Act. It claims that attorney Carla Rabinowitz, public policy chair of the New York Association of Psychiatric Rehabilitation Services, testified that people with mental health issues "are 12 times more likely to become a victim of a crime than to commit a crime, and are five times more likely than a member of the general public to become a murder victim." Rabinowitz testified that "there is no study demonstrating a person facing mental health issues is any more likely than a member of the general public to commit a violent crime," the lawsuit states. Montgomery claims the law could discourage people from seeking treatment. He claims that New York State Psychological Association President Eric Neblung, Ph.D., testified that the "chilling effect upon patients" includes "fear of triggering a sudden and dramatic government intrusion into their private lives." "To report every person who seeks medical or mental health support services through a government mandate or sponsored program is to fuel the fire of the stigma of a class of persons who are more likely to be victimized than to commit violent crimes with firearms, such as mass shootings," according to the lawsuit. Neblung said more powerful predictors of violence are active substance abuse, the presence of environmental stressors and a history of violence. Montgomery wants the law declared unconstitutional, and its enforcement enjoined. Named as defendants are Gov. Cuomo; New York State Office of Mental Health Commissioner Ann Marie Sullivan; Executive Deputy Commissioner of the New York State Division of Criminal Justice Services Michael Greene; Superintendent of New York State Police Joseph D'Amico; Suffolk County Sheriff's Department Officer Vincent Demarco; and Eastern Long Island Hospital. The Plaintiff is represented by: Paloma Capanna, Esq. PALOMA A. CAPANNA LAW OFFICE 633 Lake Road Webster, NY 14580 Telephone: (585) 377-7260 NIELSEN AUDIO: Has Until Feb. 13 to Respond to "Orea" Class Suit ---------------------------------------------------------------- Magistrate Judge Joseph C. Spero signed a stipulation extending the time for the defendant to respond to a first amended complaint in ALFREDO LEON OREA, individually and on behalf of all others similarly situated, Plaintiff, v. NIELSEN AUDIO, INC., Defendant, CASE NO. 3:14-CV-04235 JCS, (N.D. Cal.). The Class Action Complaint for Damages in this matter was filed in the Court on September 18, 2014, but was never served upon Nielsen Audio, Inc. because the Complaint named an incorrect party as a defendant. After the Complaint was filed, the Parties conferred regarding Plaintiff filing an amended complaint and Defendant executing a waiver of service. A First Amended Class Action Complaint for Damages (FAC) was filed in the Court on December 5, 2014 and, notwithstanding the Parties' understanding that Defendant would execute a waiver of service, the FAC was served on December 12, 2014. On December 30, 2014, and in accordance with Northern District Local Rule 6-1, the Parties stipulated to extend the time for and Defendant Nielsen Audio, Inc. to respond to the FAC through and including February 13, 2015. A copy of court-approved stipulation signed December 31, 2014 is available at http://is.gd/InnOzOfrom Leagle.com McGUIREWOODS LLP, Susan L. Germaise -- sgermaise@mcguirewoods.com -- Los Angeles, CA, Attorneys for Defendant. NIELSEN AUDIO, INC. Todd M. Friedman -- tfriedman@attorneysforconsumers.com -- Law Offices of Todd M. Friedman, P.C., Attorneys for Plaintiff ALFREDO LEON OREA. ONE STOP PERSONNEL: Removes "Rojas" Suit to W.D. Pennsylvania ------------------------------------------------------------- The class action lawsuit titled Rojas, et al. v. One Stop Personnel Services, LLP, Case No. GD-14-019003, was removed from the Court of Common Pleas of Allegheny County to the U.S. District Court from the Western District of Pennsylvania (Pittsburgh). The District Court Clerk assigned Case No. 2:15-cv-00010-AJS to the proceeding. The lawsuit seeks relief pursuant to the Fair Labor Standards Act. The Plaintiffs are represented by: Evalynn B. Welling, Esq. Megan Wildman Walker, Esq. COMMUNITY JUSTICE PROJECT 429 Forbes Avenue, Suite 1705 Pittsburgh, PA 15219 Telephone: (412) 434-6002 E-mail: ewelling@cjplaw.org mwalker@cjplaw.org The Defendant is represented by: Marla N. Presley, Esq. JACKSON LEWIS P.C. One PPG Place, 28th Floor Pittsburgh, PA 15222 Telephone: (412) 338-5148 Facsimile: (412) 232-3441 E-mail: marla.presley@jacksonlewis.com - and - Patrick Richter, Esq. JACKSON LEWIS P.C. 816 Congress Avenue, Suite 1530 Austin, TX 78701 Telephone: (512) 362-7100 Facsimile: (512) 362-5574 E-mail: Patrick.Richter@jacksonlewis.com OPTICAL EXPRESS: 50 Patients Join Class Action Over Mplus X Lens ---------------------------------------------------------------- Ben Spencer, writing for The Daily Mail, reports that hundreds of patients could suffer impaired vision after receiving eye surgery by a high street optician, experts fear. Safety concerns have been raised over a type of replacement lens implanted in patients by Optical Express, the UK's leading commercial eye surgery provider. More than 6,500 British patients are thought to have received the Mplus X lens, manufactured by German company Oculentis, which went on sale just over a year ago. Oculentis and Optical Express both deny any fault with the lens, which is used in a corrective procedure called refractive lens exchange to fix minor sight problems usually associated with age. But leading eye surgeons have contacted the Medical Health Regulatory Authority after their patients complained of severe loss of vision after receiving the implant. Moorfields Eye Hospital in London flagged the problem to the MHRA after two of its surgeons complained about the lens. Separately, more than 50 patients have joined a class action law suit against Optical Express over the safety fears. Nick Grant of law firm Devonshires, who is representing the patients, said: "I anticipate that we will reach 100 claims very shortly. There has been a sales culture at Optical Express where there has, on occasions, been a failure to properly explain the risks of surgery to patients." Private surgeon Sheraz Daya, who runs the Centre For Sight, called for far better regulation of High Street corrective eye clinics. Mr. Daya said: "The major problem here is that model of care is 'pile them high, sell them cheap'. You have eye surgery being sold in heavily marketed, time-limited offers. These are complicated procedures, but they are being sold like they are TVs or second-hand cars. "The regulations are there but they are not being enforced." Sasha Rodoy, 61, who has been campaigning for better regulation of the corrective surgery industry, said: "The only reason anybody should have these operations is if it is the only option that will stop them going blind. They are just not safe." A spokesman for Moorfields Eye Hospital said: "Two surgeons had used these lenses in a very small number of patients, some of whom developed visual problems and required replacement of the lens. "Moorfields reported concerns with this particular make of lens via the MHRA's yellow card scheme. Moorfields Eye Hospital no longer uses this lens." A spokesman for the MHRA said: "We are currently investigating and will take action if necessary. If patients have any questions they should speak to their optometrist or surgeon." A spokesman for Optical Express said: "Every lens type that we use has passed a rigorous and time-consuming evaluation to make sure that it is both safe and effective. "This includes the MPlus X lens, which is being used here in the UK by many providers and around the world. "It is vitally important to stress that there have been no safety concerns whatsoever expressed about this lens. "A tiny minority of patients are reported to have experienced poorer than expected distance vision, but the overwhelming majority have had their sight and their life significantly improved by having this lens implanted." A spokesman for Oculentis confirmed the firm had received four "incident reports" from the MHRA. He added: "We are currently in the process of analyzing the facts, as all of these reports are very unspecific and unsubstantiated, only basically mentioning poor distance vision as the main complaint. "The MplusX is considered to be one of the better balanced intraocular lenses available and is used by many renowned surgeons whose opinions are generally based on medical evidence. We believe very strongly in the concept and it is by no means a 'faulty' model of lens." PACIFIC BELL: Class Cert. Denial in "Koval" Case Affirmed --------------------------------------------------------- Plaintiffs Frank Koval, Mike Williams, Vanmark Strickland, and Donald Washington filed a consolidated class action lawsuit against their employer, defendant Pacific Bell Telephone Company (d.b.a. AT&T California) (Pacific Bell). They alleged Pacific Bell violated California law by failing to relinquish control over their activities during meal and rest break periods, and moved for class certification. Relying, in part, on Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), the trial court concluded plaintiffs failed to show Pacific Bell's allegedly restrictive policies had been consistently applied to the putative class members. The court denied class certification on the ground that common questions do not predominate over individual questions, making the class action procedure an inappropriate method for resolving this dispute. The Court of Appeals of California, First District, Division One affirms trial court's ruling saying the plaintiffs have failed to demonstrate that the lower court abused its discretion in denying certification. A copy of the Appeals Court's December 31, 2014 Decision is available at http://is.gd/kLSrGJfrom Leagle.com. The case is FRANK KOVAL et al., Plaintiffs and Appellants, v. PACIFIC BELL TELEPHONE CO., Defendant and Respondent, NO. A139570. Hoffman Libenson Saunders & Barba, Chad A. Saunders and H. Tim Hoffman, The Cooper Law Firm: Scott B. Cooper -- scott@cooper- firm.com -- Altshuler Berzon LLP: Michael Rubin -- mrubin@altshulerberzon.com -- Counsel for Plaintiffs and Appellants. Morgan Lewis & Bockius LLP, George Stohner -- gstohner@morganlewis.com -- Thomas M. Peterson -- tmpeterson@morganlewis.com -- Rebecca D. Eisen -- reisen@morganlewis.com -- and Stephen L. Taeusch -- staeusch@morganlewis.com -- AT&T Services, Inc., Jennifer S. Abramowitz, Counsel for Defendant and Respondent. PAUL COMO: Fails to Pay Workers Overtime, "Moran" Suit Claims ------------------------------------------------------------- Guillermo Moran, on behalf of himself and all others similarly situated v. Paul Como Swimming Pools Inc. d/b/a Pool Doctor and Paul Anthony Como, Jr., Case No. 2:15-cv-00043 (E.D.N.Y., January 6, 2015), is brought against the Defendants for failure to pay overtime wages for work performed in excess of 40 hours weekly. The Defendant services swimming pools and has a retail store located at 317 Larkfield Road, East, Northport, New York. The Plaintiff is represented by: Peter Arcadio Romero, Esq. FRANK & ASSOCIATES P.C. 500 Bi-county Blvd, 112N Farmingdale Farmingdale, NY 11735 Telephone: (631) 756-0400 Facsimile: (631) 756-0547 E-mail: promero@laborlaws.com PEARL RIVER: Trial Court Judgment in Crowe Case Amended in Part --------------------------------------------------------------- The Court of Appeals of Louisiana, First Circuit on December 30, 2014, rendered judgment in the case captioned ROGER AND DIANNE CROWE, JAMES AND ERICA SPANO, DARLENE WOODS, AND DERRICK C. GUYOT v. PEARL RIVER POLYMERS, INC, RICH ROSENKOETTER AND CHEMINEER, INC. MAJORIE TOALSON AND JACKIE RAGSDALE, INDIVIDUALLY, AND ON BEHALF OF HER MINOR DAUGHTER, KATELYN RAGSDALE, ET AL. v. PEARL RIVER POLYMERS, INC., AND RICH ROSENKOETTER JOHN CAPPS, SR. AND JOHN CAPPS, JR. v. PEARL RIVER POLYMERS, INC. AND RICH ROSENKOETTER ROBERT PICKENS, SHIRLEY PICKENS, CYNTHIA VICTOR, BARON VICTOR, SR., AND STEPHANIE PRICE v. PEARL RIVER POLYMERS, INC., RICH ROSENKOETTER AND ABC INSURANCE COMPANY FLOYD WILLIAMS, CRYSTAL WILLIAMS, GEORGE SINGLETARY, MARGIE SINGLETARY, GREGORY WEISCOFF, EDDIE GUITERREZ, ET AL. v. PEARL RIVER POLYMERS, INC., AND RICH ROSENKOETTER DELORES GREEN, TOMMIE ROSCOE, JR., FANNIE SMITH, KATHERINE HOPKINS, TROY RILEY, ET AL. v. PEARL RIVER POLYMERS, INC., RICH ROSENKOETTER AND CHEMINEER, INC. DONNA BLACKWELL, INDIVIDUALLY AND O/B/O THE MINOR, STACEY BLACKWELL, ET AL. v. PEARL RIVER POLYMERS, INC., RICH ROSENKOETTER AND CHEMINEER, INC. KEITHA BRAUCKHOFF, MICHAEL BRAUCKHOFF, ROBERT FACIANE, REVERAND HENRY GAINES, ET AL. v. PEARL RIVER POLYMERS, INC., RICH ROSENKOETTER AND CHEMINEER, INC. GRETA BATISTE, JEROME BATISTE, SR., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, BRANDON BALANCIER, ET AL. v. PEARL RIVER POLYMERS, INC., RICH ROSENKOETTER AND CHEMINEER, INC. ELAINE ACKER, ET AL. v. PEARL RIVER POLYMERS, INC. AND CHEMINEER, INC. ELAINE ACKER, GROVER ACKER, JOHN F. ACKER, LEONARD ACKER, CHRISTINE E. ADAMS, KELLY ADOLPH, ET AL. v. PEARL RIVER POLYMERS, INC. AND CHEMINEER, INC., NO. 2012 CA 1323, CONSOLIDATED WITH NOS. 2012 CA 1324, 2012 CA 1325, 2012 CA 1326, 2012 CA 1327, 2012 CA 1328, 2012 CA 1329, 2012 CA 1330, 2012 CA 1331, 2012 CA 1332, 2012 CA 1333. This case is a mass tort action resulting from chemical emissions. According to the Louisiana Appeals Court, the trial court's judgment entered in the case dated August 10, 2011, is amended in the following respects: The portion of the judgment providing that judgment be rendered against PRP, Chemineer, and Richard Rosenkoetter is amended to provide that judgment is rendered only against PRP and Chemineer, all claims against Richard Rosenkoetter having been dismissed prior to trial; The portion of the judgment rendered in favor of plaintiff, Darlene Woods, and against defendants, PRP and Chemineer, jointly and in solido, awarding her medical expenses in the amount of $1,455.49 is amended to increase that award to $1,535.49, resulting in a total award to Ms. Woods of $12,386.85; The portion of the judgment rendered in favor of plaintiff, Joy Nesbit, and against defendants, PRP and Chemineer, jointly and in solido, awarding her medical expenses in the amount of $1,107.20 is amended to increase that award to $1,443.20, resulting in a total award to Ms. Woods of $5,481.10; The portion of the judgment rendered on behalf of plaintiff, Briana Spano, and against defendants, PRP and Chemineer, jointly and in solido, awarding her medical expenses in the amount of $455.00 is amended to reduce that award to $450.00, resulting in a total award to Ms. Woods of $950.00. The judgment of the trial court is affirmed in all other respects. The costs of this appeal are assessed one-half to plaintiffs, Roger Crowe, Briana Spano, Darlene Woods, Joy Nesbit, Sherman Jordan, Felton Lathen, Larry Edmondson, Samuel Ferguson, Gerald Craddock, Ottis Mitchell, Francisco Bullock, Roselee Dumas, and Ronald Carver, and one-half to defendants, PRP and Chemineer, ruled the Louisiana Appeals Court in its decision, a copy of which is available at http://is.gd/cyDy7Gfrom Leagle.com. Stephen B. Murray -- smurray@murray-lawfirm.com -- Arthur M. Murray -- amurray@murray-lawfirm.com -- Jessica W. Hayes -- jhayes@murray-lawfirm.com -- Suzette Bagneris -- sbagneris@bagnerislawfirm.com -- New Orleans, LA, Attorneys for Plaintiffs/Appellees Dianne Crowe, Briana J. Spano (represented by Erica Spano) and Derrick C. Guyot. Ronnie G. Penton -- rgp@rgplaw.com -- Mary Anna Penton, Gair M. Oldenburg, Bogalusa, LA, and Richard J. Arsenault -- rarsenault@nbalawfirm.com -- Alexandria, LA, and J. Robert Ates, Randolph P. Russel, Mandeville, LA, and Daniel E. Becnel, Jr. -- dbecnel@becnellaw.com Reserve, LA, and Stephen R. Rue, Kenner, LA, Attorneys for Plaintiffs/2nd Appellants-Roger Crowe Darlene Woods, Joy B. Nesbit, Larry G. Edmondson, Gerald E. Craddock, Ottis S. Mitchell, Ronald Carver, Sam Ferguson Sherman Jordan, Felton Lathen, Roselee Dumas, and Francisco Bullock. Richard M. Simses -- rsimses@winstead.com -- Houston, TX, and Paul M. Lavelle -- plavelle@winstead.com -- Leigh Ann Schell -- lschell@kuchlerpolk.com -- Deborah D. Kuchler -- dkuchler@kuchlerpolk.com -- Joseph H. Hart, IV -- jhart@kuchlerpolk.com -- Lawrence Abbott, New Orleans, LA, and Ross F. Lagarde -- ross@joneslagarde.com -- Slidell, LA, Attorneys for Defendant/1st Appellant-Chemineer, Inc. Luis A. Leitzelar -- lleitzelar@joneswalker.com -- William L. Schuette -- wschuette@joneswalker.com -- James C. Percy -- jpercy@joneswalker.com -- Michele W. Crosby -- mcrosby@joneswalker.com -- Daniel Davis -- markdavis@joneswalker.com -- Christopher D. Martin -- cmartin@joneswalker.com -- Sarah E. Stogner, R. Benn Vincent, Jr., Baton Rouge, LA, Attorneys for Defendants/1st Appellants-Pearl River Polymers Inc., and Rich Rosenkoetter. Shawn C. Reed -- sreed@howardandreed.com -- Kyle T. DelHierro -- kdelhierro@howardandreed.com -- Amy C. Yenari, Covington, LA, and D. Douglas Howard, Jr., Roy F. Amedee, New Orleans, LA, Attorneys for Plaintiffs/Appellees-Marjorie Toalson and Jackie Ragsdale (on behalf of her minor daughter Katelyn Ragsdale) PETSMART INC: Being Sold for Too Little, Shareholders Claim ----------------------------------------------------------- Courthouse News Service reports that directors are selling PetSmart too cheaply through an unfair process to BC Partners, for $83 a share or $8.7 billion, shareholders say in a class action in Delaware Chancery Court. PROFESSIONAL BUREAU: Sued for Violating Fair Debt Collection Act ---------------------------------------------------------------- Annie Hofstatter, on behalf of himself and all other similarly situated consumers v. Professional Bureau of Collections of Maryland, Inc., Case No. 1:15-cv-00026 (E.D.N.Y., January 5, 2015) 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 PROSSER HOLDINGS: Judge Won't Reverse Fee Order in EFTA Suit ------------------------------------------------------------ District Judge Patrick J. Schiltz denied Plaintiff's Motion for Reconsideration in the case captioned MELANIE WALSH and LOUIE WALSH, on behalf of themselves and all others similarly situated , Plaintiffs, v. JOHN W. PROSSER, individually; PROSSER HOLDINGS LLC d/b/a/A.C. FINANCIAL; and AUTOMOTIVE RESTYLING CONCEPTS INC. d/b/a AUTOMOTIVE CONCEPTS, Defendants, CASE NO. 12-CV-2823 (PSJ/JJG) (D. Minn.). Plaintiffs filed a class-action lawsuit against defendant John W. Prosser and his corporate alter egos claiming that in the course of making car loans, Defendants violated the Electronic Fund Transfer Act ("EFTA") and the Minnesota Motor Vehicle Retail Installment Sales Act ("MMVRISA"). Eventually, the parties reached a settlement by agreeing that the attorneys fees should not exceed $42,500. Unfortunately, Plaintiff requested $75,000 in fees, hence, Defendants opposed a request for fees to the extent that it exceeded $42,500. The court favored the Defendants' argument and awarded only the uncontested portion of plaintiffs' fee request. Hence, Plaintiff filed a letter request for a motion for reconsideration. Judge Schiltz denied the Plaintiff's motion for reconsideration by pointing out that plaintiffs sought fees under EFTA and the MMVRISA, but violated the substantive provision of the respective laws. In addition, Judge Schiltz pointed out that the Court had made no finding that Defendants had acted unlawfully under the terms of the settlement agreement. Finally, he concluded that Plaintiffs had provided no authority to override the "American Rule" that parties bear their own attorney's fees and costs. A copy of the Order dated November 14, 2014, is available at http://is.gd/NRkneGfrom Leagle.com. Thomas J. Lyons -- lyonst@hallevans.com -- CONSUMER JUSTICE CENTER, P.A., for plaintiffs. RELIANCE GOLD: Faces "Coley" Suit in New Jersey District Court -------------------------------------------------------------- Bernadette Coley, on behalf of herself and all others similarly situated v. Reliance Gold Buyers, Inc. and John Does 1-25, Case No. 2:15-cv-00002-JLL-JAD (D.N.J., January 2, 2015) seeks relief under the Truth in Lending Act. The Plaintiff is represented by: Benjamin Jarret Wolf, Esq. LAW OFFICES OF JOSEPH K. JONES LLC 555 Fifth Avenue, Suite 1700 New York, NY 10017 Telephone: (646) 459-7971 E-mail: bwolf@legaljones.com - and - Joseph K. Jones, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 E-mail: jkj@legaljones.com - and - Laura S. Mann, Esq. LAW OFFICES OF LAURA S. MANN, LLC 1618 Union Valley Road, Second Floor West Milford, NJ 07480 Telephone: (973) 506-4881 Facsimile: (973) 506-4883 E-mail: laura@mannlegal.biz RUFFALOCODY LLC: Has Made Unsolicited Calls, "Anvar" Suit Claims ---------------------------------------------------------------- Jessica Anvar, individually and on behalf of all others similarly situated v. Ruffalocody, LLC, Case No. 2:15-cv-00072 (C.D. Cal., January 6, 2015), is brought against the Defendant for negligently, knowingly, and willfully contacting the Plaintiff on the cellular telephone in violation of the Telephone Consumer Protection Act. Ruffalocody, LLC owns and operates a telemarketing service for hire. 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 SAGESMITH CONSULTING: Sued in N.Y. for Making Unsolicited Calls --------------------------------------------------------------- Mohammed A. Tipoo, on behalf of himself and all others similarly situated v. Sagesmith Consulting LLC and New York City Board of Elections, Case No. 1:15-cv-00039 (E.D.N.Y., January 6, 2015), arises out of the Defendants' unlawful action of using an autodialer to call the Plaintiff on his residential telephone using a prerecorded or artificial-voice to advertise the Sagesmith's services. Sagesmith Consulting LLC is the creator of the S-Elect suite of election management software and the developers of The Election Hub cloud-based web applications. The Plaintiff is represented by: Aytan Yehoshua 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 SKECHERS USA: Faces 18 Suits Arising From Sale of Toning Shoes -------------------------------------------------------------- Skechers, U.S.A., Inc., et al., is facing 18 lawsuits in the U.S. District Court for the Western District of Kentucky: * Melody Adams v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00004-TBR; * Emma Westmoreland v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00003-TBR; * Joyce Anne Meador v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00010-TBR; * Cynthia Logan v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00009-TBR; * Renha Welch v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00012-TBR; * Joel Davis v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00002-TBR; * Pamela A. Young v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00014-TBR; * Jack Arager v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00005-TBR; * Donna Johnson v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00016-TBR; * Donna Davis v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00007-TBR; * Jeri Tyler v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00019-TBR; * Joyce Thomas v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00011-TBR; * Edith Wright v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00013-TBR; * Tammy Cardinal v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00006-TBR; * Avril Purvis v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00015-TBR; * Karen Espeland v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00018-TBR; * Kimberly Prater v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00017-TBR; and * Pauline Davis v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00008-TBR. The Plaintiffs allege, among other things, that Skechers intentionally made numerous misrepresentations, and continues to make those representations, regarding the efficacy and health benefits of its toning shoes, including Skechers Shape-ups and Tone-ups. The cases are part of the multidistrict litigation known as In re: Skechers Toning Shoe Product Liability Litigation, MDL No. 3:11- md-02308-TBR-LLK. Upon the completion of all pretrial proceedings applicable to the cases, each of the case will be transferred to the federal district court in the district where the Plaintiff allegedly was injured by use of Skechers shoes or where the Plaintiff resides at the time of the transfer. Skechers is a shoe company that manufactures toning shoes, including Skechers Shape-ups and Tone-ups. Skechers markets and promotes its toning shoes as footwear that will provide countless health benefits including improved cardiac function and orthopedic benefits. Skechers markets and promotes its toning shoes to be worn in place of other athletic shoes during daily activities, exercise routines, and in the workplace. The Plaintiffs are represented by: Richard W. Schulte, Esq. WRIGHT & SCHULTE, LLC 812 E. National Road Dayton, Ohio 45377 Telephone: (937) 435-7500 Facsimile: (937) 435-7511 E-mail: rschulte@yourlegalhelp.com SONY PICTURES: Faces "Exum" Suit in Cal. Over Alleged Data Breach ----------------------------------------------------------------- Lawon Exum, individually and on behalf of all others similarly situated v. Sony Pictures Entertainment, Inc., Case No. 8:15-cv- 00016 (C.D. Cal., January 6, 2015), is brought against the Defendant for failure to adequately safeguard its current and former employees' personal information including, names, home and email addresses, Social Security numbers, visa and passport numbers, account routing information, salary and retirement plan data, and health insurance and medical information. Sony Pictures Entertainment Inc. is a multi-billion dollar movie and television production and distribution company. The Plaintiff is represented by: John P. Fiske, Esq. John H. Gomez, Esq. GOMEZ TRIAL ATTORNEYS 655 West Broadway Suite 1700 San Diego, CA 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496 E-mail: jfiske@thegomezfirm.com jgomez@thegomezfirm.com SONY PICTURES: Faces 2nd "Exum" Suit Over Alleged Data Breach ------------------------------------------------------------- Lawon Exum, individually and on behalf of all others similarly situated v. Sony Pictures Entertainment, Inc., Case No. 2:15-cv- 00111 (C.D. Cal., January 6, 2015), is brought against the Defendant for failure to adequately safeguard its current and former employees' personal information including, names, home and email addresses, Social Security numbers, visa and passport numbers, account routing information, salary and retirement plan data, and health insurance and medical information. Sony Pictures Entertainment Inc. is a multi-billion dollar movie and television production and distribution company. The Plaintiff is represented by: John P. Fiske, Esq. John H. Gomez, Esq. GOMEZ TRIAL ATTORNEYS 655 West Broadway Suite 1700 San Diego, CA 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496 E-mail: jfiske@thegomezfirm.com jgomez@thegomezfirm.com SPECIALIZED LOAN SERVICING: 3rd "Myart" Complaint Denied in Part ---------------------------------------------------------------- District Judge Xavier Rodriguez granted in part and denied in part plaintiff's motion for leave to file a third amended complaint in the lawsuit JAMES W. MYART, JR., Plaintiff, v. JACQUELINE PARKER GLOSSON, EDWIN NORMAN GLOSSON, AND SPECIALIZED LOAN SERVICING, LLC, Defendants, CIVIL ACTION NO. SA-14-CV-831-XR (W.D. Texas). For reasons stated in his Nov. 20, 2014 order available at http://is.gd/4d0bu7from Leagle.com, the judge ruled that leave is denied with respect to Paragraph 31, the breach of fiduciary duty claim, and Paragraph 34, the class action claims. Paragraphs 31 and 34 are stricken from the third amended complaint and leave is granted for all other paragraphs. Myart's petition is mostly about an alleged fraud and theft perpetrated on him by his ex-wife, Jacqueline Parker Glosson. Myart alleges that Ms. Glosson conspired with her new husband, Edwin, to deceive him into giving her the property located at 306 Preston Ave., San Antonio, Texas, by promising she would reunite with him romantically. Specialized Loan Servicing (SLS) is the holder of a loan associated with the Property in 1988. Myart further alleges that Jacqueline entered into a loan re-modification with SLS relating to the mortgage in July 2014, and that SLS failed to validate his -- allegedly forged -- signature or take steps to confirm he agreed to the modification. The second amended complaint, construed liberally, states seven causes of action against Defendant SLS: 1) negligence, 2) fraud, 3) predatory lending, 4) breach of contract, 5) consumer mortgage fraud or "predatory mortgage lending," 6) violations of the ECOA, and 7) racial and sexual discrimination. As to the new class-action assertions, Myart alleged that thousands of other mortgagees of SLS suffered the exact illegal activities of SLS as he has, including but not limited to predatory mortgage lending and servicing. Judge Rodriguez, in his order, held that "the class-action allegations against SLS as currently stated are not directly related to this controversy, which heavily involves the Glossons' alleged scheme and SLS's participation in it, or supported by minimal alleged facts. . . . Paragraph 34 is a futile amendment and leave to add it would not be in the interest of justice." Specialized Loan Servicing, LLC is represented by Branch Masterson Sheppard -- bsheppard@jdkglaw.com -- & George Anthony Kurisky, Jr. -- gkurisky@jdkglaw.com -- of Johnson DeLuca Kurisky & Gould, P.C.. SPENCER & LIVINGSTON: Wash. Court Revives "Riverview" Suit ---------------------------------------------------------- The Supreme Court of Washington, sitting en banc, reversed the dismissal of Riverview Community Group's lawsuit against Spencer & Livingston, et al. The suit is remanded to the trial court for further proceedings. Since the 1980s, a partnership formed by Charles Spencer and George Livingston built the Meadows Golf Course Complex, platted nearby lots into subdivisions, and sold those lots to private land owners. Over the years, ownership of unsold lots and the golf course changed hands and since Spencer died, Livingston closed down the golf course complex to plat the area into new residential lots. Some homeowners formed the Riverview Community Group, which filed the lawsuit seeking to bar the defendants from selling off the former golf course as individual homes, among other things. Riverview named as defendants the original Spencer & Livingston partnership, George and Sheila Livingston, the partnership's alleged successors, and anyone else claiming an interest in the golf course property. In 2012, the trial judge issued a memorandum decision granting the Livingstons' motion to dismiss the lawsuit for failure to join indispensable parties. The Court of Appeals largely reversed the trial court's legal rulings, finding that Riverview had organizational standing and the individual property owners were not essential parties, and concluding that Washington recognized equitable covenants. However, it affirmed summary judgment on the grounds that it would be "irrational to require the defendants to rebuild and operate a failing business." The Supreme Court of Washington granted Riverview's petition for review. In its Nov. 20, 2014 order, the Supreme Court affirmed most of the Court of Appeals' legal rulings but find its dismissal was based on facts not found in the record. A copy of the Supreme Court's Nov. 20, 2014 order is available at http://is.gd/0ME5Bn from Leagle.com. The case is captioned RIVERVIEW COMMUNITY GROUP, a non-profit Washington Corporation, Petitioner, v. SPENCER & LIVINGSTON, a Washington Partnership, and/or its successors-in-interest; GEORGE T. and SHEILA LIVINGSTON, husband and wife, and the marital community composed thereof; DEER MEADOWS, INC., a defunct Washington Corporation, and/or its successors-in-interest; DEER MEADOW DEVELOPMENT, INC., a Washington corporation, and/or its successors-in-interest; S.O.S., LLC, a Washington Limited Liability Company, and/or its successors-in-interest; DEER MEADOWS GOLF, INC., an inactive Washington corporation, and/or its successors-in-interest; also all other persons or parties unknown claiming any right, title, estate, lien, or interest in the real estate described in the complaint herein, Respondents, Case No. 88575-3 Counsel for Petitioner: David P. Boswell, Esq. BOSWELL LAW FIRM PS 505 W. Riverside Ave Ste 500 Spokane, WA, 99201-0518 Counsel for Respondents: David A. Kulisch, Esq. DAVID A. KULISCH, ATTORNEY AT LAW 1500 Bank of America Fin Ctr 601 W. Riverside Ave Spokane, WA, 99201-0621 E-mail: dak@randalldanskin.com - and - Michael Robert Grover, Esq. RANDALL DANSKIN PS 601 W. Riverside Ave Ste 1500 Spokane, WA, 99201-0653 E-mail: mrg@randalldanskin.com - and - David Scott Mann, Esq. GENDLER & MANN LLP 615 2nd Ave Ste 560 Seattle, WA, 98104-2242 E-mail: mann@gendlermann.com - and - Brendan Wesley Donckers, Esq. BRESKIN JOHNSON & TOWNSEND, PLLC 1000 Second Avenue Suite 3670 Seattle, WA, 98104 E-mail: bdonckers@bjtlegal.com - and - Peter Guillum Scott, Esq. GOUGH, SHANAHAN, JOHNSON & WATERMAN 682 S. Ferguson Ave Ste 4 Bozeman, MT, 59718-6491 SYNGENTA CORP: "Collins" Suit Consolidated in MIR162 Corn MDL ------------------------------------------------------------- The class action lawsuit entitled Collins v. Syngenta Corp., et al., Case No. 3:14-cv-03169, was transferred from the U.S. District Court for the Western District of Louisiana to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02016-JWL- JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: Andrew A. Lemmon, Esq. LEMMON LAW FIRM P O Box 904 Hahnville, LA 70057-2104 Telephone: (985) 783-6789 Facsimile: (985) 783-1333 E-mail: andrew@lemmonlawfirm.com - and - Kenneth A. Brister, Esq. BRISTER & BRISTER P O Box 266 Lake Providence, LA 71254 Telephone: (318) 559-5800 Facsimile: (318) 559-5680 The Defendants are represented by: David M. Stein, Esq. ADAMS & REESE 701 Poydras St., Suite 4500 New Orleans, LA 70139 Telephone: (504) 585-0305 Facsimile: (504) 566-0210 E-mail: david.stein@arlaw.com SYNGENTA CORP: "Krielow" Suit Consolidated in MIR162 Corn MDL ------------------------------------------------------------- The class action lawsuit styled Krielow v Syngenta Corp., et al., Case No. 2:14-cv-03061, was transferred from the U.S. District Court for the Western District of Louisiana to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02014-JWL-JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: Jerald P. Block, Esq. Kendall John Krielow, Esq. BLOCK LAW FIRM P.O. Box 108 Thibodaux, LA 70302 Telephone: (504) 446-0418 Facsimile: (504) 446-0422 - and - Roman A. Shaul, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, PC 218 Commerce Street PO Box 4160 Montgomery, AL 36103-4160 Telephone: (334) 269-2343 Facsimile: (334) 951-7555 E-mail: roman.shaul@beasleyallen.com The Defendants are represented by: Mark C. Surprenant, Esq. ADAMS & REESE 701 Poydras St., Suite 4500 New Orleans, LA 70139 Telephone: (504) 581-3234 Facsimile: (504) 566-0210 E-mail: mark.surprenant@arlaw.com SYNGENTA CORP: "McClain" Suit Consolidated in MIR162 Corn MDL ------------------------------------------------------------- The class action lawsuit captioned McClain v. Syngenta Corporation, et al., Case No. 1:14-cv-00133, was transferred from the U.S. District Court for the Eastern District of Arkansas to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02013- JWL-JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: Alfred F. Tom Thompson, III, Esq. Casey P. Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY 1141 East Main Street, Suite 300 Post Office Box 2595 Batesville, AR 72503-2595 Telephone: (870) 793-3821 - and - Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER LAW FIRM, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: phil@bohrerlaw.com scott@bohrerlaw.com The Defendants are represented by: Chad W. Pekron, Esq. John E. Tull, III, Esq. Joseph Wayne Price, II, Esq. QUATTLEBAUM, GROOMS, TULL & BURROW PLLC 111 Center Street, Suite 1900 Little Rock, AR 72201-3325 Telephone: (501) 379-1700 Facsimile: (501) 379-3826 E-mail: cpekron@qgtlaw.com jtull@qgtlaw.com ajprice@qgtlaw.com SYNGENTA CORP: "McCorkle" Suit Consolidated in MIR162 Corn MDL -------------------------------------------------------------- The class action lawsuit styled McCorkle v. Syngenta Corporation, et al., Case No. 4:14-cv-00263, was transferred from the U.S. District Court for the Middle District of Georgia to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02008-JWL- JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: J. Benjamin Finley, Esq. THE FINLEY FIRM, P.C. 3535 Piedmont Rd., Bldg. 14, Suite 230 Atlanta, GA 30305 Telephone: (404) 320-9979 Facsimile: (404) 320-9978 E-mail: BFinley@TheFinleyFirm.com - and - R. Walker Garrett, Esq. THE FINLEY FIRM, P.C. PO BOX 2645 200 13th Street Columbus, GA 31902 Telephone: (706) 323-7711 Facsimile: (706) 322-6221 E-mail: WGarrett@TheFinleyFirm.com - and - Roman Ashley Shaul, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. PO Box 4160 Montgomery, AL 36103 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: roman.shaul@beasleyallen.com The Defendants are represented by: Jaime L. Theriot, Esq. TROUTMAN SANDERS LLP 600 Peachtree Street, N.E. 5200 Bank of America Plaza Atlanta, GA 30308-2216 Telephone: (404) 885-3534 Facsimile: (404) 962-6748 E-mail: jaime.theriot@troutmansanders.com SYNGENTA CORP: "Neely" Suit Consolidated in MIR162 Corn MDL ----------------------------------------------------------- The class action lawsuit captioned Neely v. Syngenta Seeds Inc., et al., Case No. 4:14-cv-00669, was transferred from the U.S. District Court for the Eastern District of Arkansas to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02009-JWL- JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: John Charles Williams, Esq. Joseph Henry Bates, III, Esq. CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive, Suite 200 Little Rock, AR 72212 Telephone: (501) 312-8500 Facsimile: (501) 312-8505 E-mail: jwilliams@cbplaw.com hbates@cbplaw.com - and - Joseph C. Portera, Esq. SUSMAN GODFREY L.L.P. 901 Main Street, Suite 5100 Dallas, TX 75202 Telephone: (214) 754-1900 Facsimile: (214) 754-1933 E-mail: jportera@susmangodfrey.com - and - Manmeet Walia, Esq. Vineet Bhatia, Esq. SUSMAN GODFREY L.L.P. First Interstate Bank Plaza 1000 Louisiana Street, Suite 5100 Houston, TX 77002-5096 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 E-mail: mwalia@susmangodfrey.com vbhatia@susmangodfrey.com - and - Stephen E. Morrissey, Esq. SUSMAN GODFREY L.L.P. 1201 3rd Avenue, Suite 3800 Seattle, WA 98101 Telephone: (206) 516-3880 E-mail: smorrissey@susmangodfrey.com - and - Stephen D. Susman, Esq. SUSMAN GODFREY, LLP 654 Madison Avenue, 5th Floor New York, NY 10065 Telephone: (212) 336-8330 Facsimile: (212) 336-8340 E-mail: ssusman@susmangodfrey.com The Defendants are represented by: Chad W. Pekron, Esq. John E. Tull, III, Esq. Joseph Wayne Price, II, Esq. QUATTLEBAUM, GROOMS, TULL & BURROW PLLC 111 Center Street, Suite 1900 Little Rock, AR 72201-3325 Telephone: (501) 379-1700 Facsimile: (501) 379-3826 E-mail: cpekron@qgtlaw.com jtull@qgtlaw.com ajprice@qgtlaw.com SYNGENTA CORP: RJR Farms Suit Consolidated in MIR162 Corn MDL ------------------------------------------------------------- The class action lawsuit titled RJR Farms, et al. v. Syngenta Corporation, et al., Case No. 5:14-cv-00415, was transferred from the U.S. District Court for the Eastern District of Arkansas to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02006- JWL-JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiffs are represented by: Corey Darnell McGaha, Esq. Scott E. Poynter, Esq. William Thomas Crowder, Esq. EMERSON POYNTER LLP The Rozelle-Murphy House 1301 Scott Street Little Rock, AR 72202 Telephone: (501) 907-2555 Facsimile: (501) 907-2556 E-mail: cmcgaha@emersonpoynter.com scott@emersonpoynter.com wcrowder@emersonpoynter.com - and - John G. Emerson, Jr., Esq. EMERSON POYNTER LLP 830 Apollo Lane Houston, TX 77058 Telephone: (501) 907-2555 E-mail: jemerson@emersonpoynter.com The Defendants are represented by: Chad W. Pekron, Esq. John E. Tull, III, Esq. Joseph Wayne Price, II, Esq. QUATTLEBAUM, GROOMS, TULL & BURROW PLLC 111 Center Street, Suite 1900 Little Rock, AR 72201-3325 Telephone: (501) 379-1700 Facsimile: (501) 379-3826 E-mail: cpekron@qgtlaw.com jtull@qgtlaw.com ajprice@qgtlaw.com SZ ENTERPRISES: Court Rules on Summary Judgment Bids in FLSA Suit ----------------------------------------------------------------- District Judge Michael P. Shea granted, in part, Defendant's Motion for Summary Judgment in the case captioned RUTH DIXON, ISHEA ANDERSON-RODRIGUEZ, ANDRE SMITH, MAHAGANY BIVENS, SHANTEEMA PALLET, KENNYFORD, SAM HIRTH, NICHOLE GAMBACCINT, and EARL GLENN, on behalf of themselves and all others similarly situated, Plaintiffs, v. SCOTT ZABKA, Individually, S.Z. ENTERPRISES, INC., and THE SCOTT FETZER COMPANIES d/b/a KIRBY, Defendants, CASE NO. 3:11-cv-982 (MPS) (D. Conn.). Kirby manufactures high-end vacuum cleaners and sells them exclusively through in-home product demonstrations with potential customers. Kirby contracts with a network of local distributors, which in turn contract with Independent Dealers who sell Kirby vacuums door-to-door. The Named Plaintiffs worked for two of Kirby's distributors in Connecticut. Plaintiffs filed a nine-count class action complaint against Zabka and Kirby claiming violations of the Fair Labor Standards Act ("FLSA") by failing to pay minimum wage and overtime compensation and the Connecticut Minimum Wage Act ("CMWA"), and raising common law claims for fraudulent and negligent misrepresentation and unjust enrichment. Plaintiffs filed a partial motion for summary judgment seeking determinations that: (1) they were employees, not independent contractors of Kirby, and (2) Kirby is liable as their joint employer under the FLSA. In its defense, Defendant Kirby argued among others, that the complaint must fail because Kirby was not the joint employer as a matter of law and Plaintiffs are exempt under the outside sales exemption. Further, Kirby argued that it is entitled to summary judgment on the Independent Dealers' and Appointment Setters' FLSA claims because it is not their joint employer. Both parties raised their arguments and contention based on the formal control factors identified by the Second Circuit which include: "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. In his revised Memorandum of Decision, Judge Shea ruled the existence of genuine issues of material fact as to three of the four "formal control" factors, with only the fourth factor weighing against joint employment while three of the six "functional control" factors weigh in favor of joint employment, two weigh against joint employment, and there are genuine issues of material fact as to the "supervision" factor. Accordingly, Judge Shea denied Kirby's motion for summary judgment on this ground. On the other hand, Judge Shea granted summary judgment to Kirby on the point that the Independent Dealers would be classified as exempt outside sales people, and not "employees," under the CMWA and ruled that factors (2) and (3) weigh against joint employment with respect to Appointment Setters. Thus, Kirby is not the joint employer of Appointment Setters as a matter of law. A copy of the Memorandum of Decision dated November 13, 2014, is available at bit.ly/1zCd6UK from Leagle.com. Ruth Dixon, Plaintiff, represented by Adam T. Klein -- atk@outtengolden.com -- Outten & Golden, Cyrus E. Dugger -- cd@theduggerlawfirm.com -- Outten & Golden, James Bhandary- Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden, Shelley A. White, New Haven Legal Assistance & Susan Nofi-Bendici, State of Connecticut. Andre Smith, Plaintiff, represented by Adam T. Klein, Outten & Golden, Cyrus E. Dugger, Outten & Golden, James Bhandary- Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden, Shelley A. White, New Haven Legal Assistance & Susan Nofi-Bendici, State of Connecticut. Mahagany Bivens, Plaintiff, represented by Adam T. Klein, Outten & Golden, Cyrus E. Dugger, Outten & Golden, James Bhandary- Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden, Shelley A. White, New Haven Legal Assistance & Susan Nofi-Bendici, State of Connecticut. Shanteema Pallet, Plaintiff, represented by Adam T. Klein, Outten & Golden, Cyrus E. Dugger, Outten & Golden, James Bhandary- Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden, Shelley A. White, New Haven Legal Assistance & Susan Nofi-Bendici, State of Connecticut. Kenny Ford, Plaintiff, represented by Adam T. Klein, Outten & Golden, Cyrus E. Dugger, Outten & Golden, James Bhandary- Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden, Shelley A. White, New Haven Legal Assistance & Susan Nofi-Bendici, State of Connecticut. Ishea Anderson-Rodriguez, Plaintiff, represented by Adam T. Klein, Outten & Golden, Cyrus E. Dugger, Outten & Golden, James Bhandary- Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden, Shelley A. White, New Haven Legal Assistance & Susan Nofi-Bendici, State of Connecticut. Sam Hirth, Plaintiff, represented by Cyrus E. Dugger, Outten & Golden, James Bhandary-Alexander, New Haven Legal Assistance Assoc. Inc., Molly A Brooks, Outten & Golden, Rachel Bien, Outten & Golden, Sally J Abrahamson, Outten & Golden & Shelley A. White, New Haven Legal Assistance. Scott Fetzer Companies, doing business as Kirby, Defendant, represented by Christopher M McLaughlin -- cmmclaughlin@jonesday.com -- Jones Day-OH, Emilie A. Hendee, Jones Day, Matthew W Lampe, Jones Day & Patricia E. Reilly, Littler Mendelson, P.C.. TAKATA CORPORATION: Faces "Gori" Suit Over Defective Airbags ------------------------------------------------------------ Lee Gori, individually, and on behalf of all others similarly situated v. Takata Corporation, et al., Case No. 3:15-cv-00011 (S.D. Ill., January 6, 2015), alleges that the Defective Vehicles contain airbags manufactured by the Defendant that, instead of protecting vehicle occupants from bodily injury during accidents, violently explode and expel vehicle occupants with lethal amounts of metal debris and shrapnel. Takata Corporation is a specialized supplier of automotive safety systems that designs, manufactures, tests, markets, distributes, and sells airbags. The Plaintiff is represented by: Randall Seth Crompton, Esq. Eric D. Holland, Esq. HOLLAND LAW FIRM, LLC 300 North Tucker Boulevard, Suite 801 St. Louis, MO 63101 Telephone: (314) 241-8111 Facsimile: (314) 241-5554 E-mail: scrompton@allfela.com eholland@allfela.com - and - D. Todd Mathews, Esq. GORI, JULIAN & ASSOCIATES, P.C. 156 N. Main Street Edwardsville, IL 62025 Telephone: (618)659-9833 Facsimile: (618)659-9834 E-mail: todd@gorijulianlaw.com TARGET CORP: Judge's Data Breach Class Action Ruling Significant ---------------------------------------------------------------- Judy Greenwald, writing for Business Insurance, reports that a federal judge's refusal to dismiss litigation brought by credit card issuers against Target Corp. in the wake of 2013's massive data breach is significant and could influence other courts to hold retailers liable in similar cases. However, there are elements of this lawsuit that are specific to the Minneapolis-based discount retailer and would not apply to other breach cases, experts say. Court papers in the litigation filed by the financial institutions, which are seeking class action status, say they have suffered unspecified "substantial out-of-pocket losses" stemming from the 2013 breach. The Target breach, which cost the company more than $140 million through Nov. 1, 2014, and exposed 110 million customers' payment card numbers, thrust the danger of cyber breaches into the national limelight a year ago. In his Dec. 2 ruling, Judge Paul A. Magnuson of the U.S. District Court in St. Paul, Minnesota, refused to dismiss the litigation and said plaintiffs can proceed with charges, including negligence, against the retailer. "At this preliminary stage of the litigation, plaintiffs have plausibly (pleaded) a general negligence case," according to the memorandum Judge Magnuson issued. "Although the third-party hackers' activities caused harm, Target played a key role in allowing the harm to occur. "Indeed, plaintiffs' allegation that Target purposely disabled the security features that would have prevented the harm is itself sufficient to plead a direct negligence case," Judge Magnuson wrote. Litigation filed by consumers in connection with the data breach case also have been consolidated, albeit separately, in Judge Magnuson's court. However, experts say his ruling in the financial institutions case does not provide an insight into how he is likely to rule in that case because different legal issues are involved. The next major steps in the litigation process will be discovery and, if Target is unsuccessful in having the case dismissed, possibly class certification of the financial institutions. The ruling essentially holds that, based on the pleadings to date, Target was responsible for the damages the hackers caused even though there was no direct, contractual relationship between the retailer and the credit card issuers. Judge Magnuson concluded "that there can be a direct duty between the issuing banks and the retailer, and that lets them get over this motion to dismiss hurdle," said Joshua P. Gunneman -- jgunnemann@rh-law.com -- a partner at law firm Rogers & Hardin L.L.P. in Atlanta. In the absence of a contractual relationship, the judge focuses on "a very traditional legal theory, which is negligence, to impose liability on the company that is hacked," said Peter S. Selvin, an attorney with Troy Gould P.C. in Los Angeles. "It's really a significant opinion because, frankly, there's very little case law on what the relationship is between a retailer and the banks that ultimately issue the cards," said Michelle A. Reed, -- mreed@akingump.com -- a partner with Akin Gump Strauss Hauer & Feld L.L.P. in Dallas. Although Target had claimed it did not have a significant enough relationship with the banks to be liable for the data breach, the judge "essentially circumvented that whole analysis" and held this was a direct negligence case, Ms. Reed said. She said that "from a legal standpoint it shouldn't matter"; in fact the larger the breach "the more likely the court will find some kind of harm that is not just speculative resulting from the data breach." Brian T. Himmel -- bhimmel@reedsmith.com -- a partner with Reed Smith L.L.P. in Pittsburgh, said with all the retailer data breaches that have occurred over this past year, the ruling opens the window to new liability exposure for retailers. While there will not be as immediate an effect, he said financial institutions may get "a little relief" from their underwriters on this issue if the judge's view is eventually supported by the appellate court or by courts in other jurisdictions. He added, however, that the litigation is still only at the motion to dismiss stage, "so we're a long ways away from being able to assess" the case's effect. Ruling may be case-specific Meanwhile, attorneys say that at least to some extent, the judge's ruling is based on the particular facts of the case, and that it may not be widely applicable in other jurisdictions. Barry Goheen, a partner with law firm King & Spalding L.L.P. in Atlanta, said the judge based his ruling in part on a Minnesota law, the Plastic Card Security Act, which forbids retaining credit card information for more than 48 hours after the transaction is authorized, and not all states have comparable statutes. Ms. Reed said the ruling underscores the need for retailers to "be prepared ahead of time and make sure they have a proper incident response plan" in place and appropriate lines of authority so there is an immediate response when a red flag appears. The more reasonable steps retailers take -- and document -- to protect consumer data, "the more likely they are to survive a conduct-based challenge," Mr. Gunneman said. TING HSIN: Consumer Foundation Mulls Class Suit Over Tainted Oil ---------------------------------------------------------------- Queena Yen, writing for The China Post, reports that The Consumer Foundation (CF) was getting ready to file a class action lawsuit on Jan. 5 representing 152 cases affected by tainted oil. The group had expected to receive at least 800 cases. The CF reminded citizens that people don't have to spend any money nor appear in court in a class action suit in the hopes that more people would stand up for their consumer rights. To support consumers who were affected by the tainted oil scandal last year, the Executive Yuan has entrusted two public organizations with dealing with the class action suit against Ting Hsin International Group, Cheng-I Food Co. Ltd., Chang Guann Co. and Beei Hae Edible Co. However, there were not as many cases as expected, according to the CF. Department of Consumer Protection Director-General Liu Chin-fang also said that until the end of last year, only a few people came to authorities requesting compensation. According to Liu, there are 22 Consumer Ombudsman offices in local governments around Taiwan. However, they only received six cases so far. As for the CF, although 146 cases already reaches the legal amount required for filing a class action suit, the CF is still considering extending the time period for taking applications from consumers. According to the CF, it has never come across a situation like this before when dealing with similar cases in the past. The CF presumed that it may be because most people have already lost their receipts for tainted oil products and cannot prove that they were victims of the tainted oil scandal. Another Reason According to the CF, there may be another reason for the low participation rate: the result of similar cases in the past. The CF stated that the compensation money of similar cases in the past was usually not as much as expected. For example, in the class action suit for the food scare case in 2011 involving a plasticizer contaminant, although the CF sought NT$2.4 billion in compensation at the time, the court only brought in a verdict awarding NT$1.2 million to the plaintiffs. As there have been many food scandals in Taiwan in recent years and none of the businesses have really paid the price for committing illegal actions, consumers have become less confident in these kinds of lawsuits, said the CF. The CF also stated that it was hard to file a class action lawsuit in the past. However, new amendments to the Act Governing Food Safety and Sanitation passed last year will make it easier to ask for reasonable compensation in the future. TOP FINANCE: Denial of Arbitration Bid in "Guzman" Case Reversed ---------------------------------------------------------------- In JOSE GUZMAN, Plaintiff and Respondent, v. TOP FINANCE CO. et al., Defendant and Appellant, NO. B252068, Top Finance Inc. appeals from the trial court's denial of its motion to compel arbitration. On December 19, 2012, Jose Guzman filed a complaint, alleging fraud and the violation of various consumer protection laws in connection with his purchase of a 2005 Volkswagen Toureg from 605 Auto. Guzman alleged he saw the car advertised as a certified pre-owned car for $14,995 with 12.99 percent APR financing. When Guzman and his wife went to see the car, they were informed they did not qualify for the advertised price and finance rate due to their poor credit. They negotiated a sales price of $15,995 with an APR of 23.99 percent and a $3,000 down payment. The Guzmans signed a retail installment sales contract, which contained an arbitration clause. Soon after their purchase, the Guzmans began to experience difficulty with the car. The middle rear seatbelt was not functional and various warning lights became illuminated. Guzman's wife experienced trouble with the brakes and sudden acceleration while driving on the freeway. On a separate occasion, she crashed into a neighbor's gate when the brakes failed. Guzman further alleged the car did not comply with California's smog and safety pre-sale requirements. Guzman attempted to have the car repaired multiple times under the 30 day warranty with no success. The complaint alleged individual claims as well as class claims on behalf of: 1) persons who purchased a certified pre-owned vehicle from 605 Auto without receiving a completed inspection report indicating all the components inspected; 2) persons who purchased a vehicle from 605 Auto who paid a price higher than that advertised; 3) persons who purchased a vehicle from 605 Auto who received a warranty different from that advertised. 605 Auto assigned the sales contract to Top Finance on December 19, 2011. Thus, the complaint was alleged against 605 Auto Sales, Top Finance Co., Travelers Casualty and Surety Company of America, and the three individuals involved in selling the car to the Guzmans. On appeal, Top Finance challenges the trial court's findings regarding the enforceability of the arbitration clause. Top Finance contends the trial court took an overly hostile view of arbitration agreements by applying an "entirely different and improperly stringent test to find arbitration agreements unconscionable which is not applied to other contracts." The Court of Appeals of California, Second District, Division Eight, on January 2, 2015, found the contract was not unconscionable, and accordingly reversed the trial court's order denying Top Finance's motion to compel arbitration. A copy of the decision is available at http://is.gd/USffzffrom Leagle.com. Foell & Elder, and William N. Elder Jr. for Defendant and Appellant. Law Offices of Robert B. Mobasseri, Robert B. Mobasseri -- robert@lawyer.com -- and Amy L. Hajduk for Plaintiff and Respondent. UBER TECHNOLOGIES: DoJ Mulls Blind Customers' Discrimination Suit ----------------------------------------------------------------- Vanessa Blum, writing for The Recorder, reports that Uber Technologies Inc. has drawn more than its share of attention this year from regulators and public officials in the cities where it operates. Now, the federal government is eyeing a lawsuit that accuses the transportation network company of discriminating against blind customers with service dogs. In a brief filed on Dec. 23 in the Northern District of California, lawyers for the U.S. Department of Justice take issue with a central prong of Uber's defense: that it is a software app used to connect passengers and drivers, not a public accommodation within the meaning of the Americans With Disabilities Act (ADA). The federal lawyers take no position on the merits of the case, which was filed in September by an advocacy group for the blind, but contend it should not automatically be dismissed based on a finding that Uber is not technically a public accommodation. The same section of the ADA that refers to public accommodations also expressly applies to private entities that are primarily engaged in providing transportation services, the brief states. "While Title III is routinely characterized as the public accommodations title of the ADA, its reach is much broader," write lawyers with the U.S. Attorney's Office for the Northern District of California and with the Justice Department's Civil Rights Division. An Uber spokeswoman did not respond directly to the DOJ brief but wrote in an email that the Uber app is designed to "expand access to transportation options for all, including users with visual impairments and other disabilities." The company has said it deactivates the account of any driver who refuses to transport a service animal. In its suit, the National Federation of the Blind of California claims that Uber drivers have ignored, shouted at and sped away from blind customers accompanied by guide dogs. Plaintiffs allege on one occasion an Uber driver locked a passenger's service dog in the trunk of a sedan. In other cases, blind passengers have been forced to pay cancellation fees after they were passed over by Uber drivers, according to the group's lawyers with Disability Rights Advocates and TRE Legal Practice. "Sighted users of the UberX transportation service can reliably request a car and receive a ride, while blind users with guide dogs must engage in transportation roulette," they stated. Uber is represented by Littler Mendelson shareholders John Fish Jr. -- jfish@littler.com -- and Andrew Spurchise -- aspurchise@littler.com Mr. Fish did not respond to a phone call or email message on Dec. 23. In their motion to dismiss, the company's lawyers insist, among other defenses, that Uber is not a taxi service and does not operate a fleet of vehicles. In fact, as a transportation network company, it is barred under rules promulgated by the California Public Utilities Commission from owning vehicles used in its operations. The company's role is merely to offer passengers and drivers a means to connect "that is used to access the place of public accommodation: the transportation providers' vehicles," Uber's brief states. That may be cutting it a bit finely for the Justice Department. "Defendants appear to imply that, if the court determines that they are not a public accommodation, then the court should dismiss plaintiff's ADA claim (and the complaint) in full," the DOJ brief states. "Any such implication would reflect a misunderstanding about the scope" of the ADA. National Federation of the Blind v. Uber, 14-4086, is pending before U.S. Magistrate Judge Nathanael Cousins. A hearing on Uber's motion to dismiss is scheduled for Feb 5. UBER TECHNOLOGIES: Illegally Collects Safe Ride Fees, Suit Claims ----------------------------------------------------------------- Andrea Pappey, individually and on behalf of all others similarly situated v. Uber Technologies, Inc., a Delaware Corporation, Case No. 3:15-cv-00064 (N.D. Cal., January 6, 2015), arises out of the Defendant's unlawful and unfair assessment and collection of an undisclosed $1.00 Safe Rides Fee. Uber Technologies, Inc. operates a ride sharing service, which provides transportation services to consumers in cities throughout the United States. The Plaintiff is represented by: Tina Wolfson, Esq. Robert Ahdoot, Esq. Keith Custis, Esq. Theodore W. Maya, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Ave. West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (3100 474-8585 E-mail: twolfson@ahdootwolfson.com rahdoot@ahdootwolfson.com kcustis@ahdootwolfson.com tmaya@ahdootwolfson.com UNARCO INDUSTRIES: Removes "Hernandez" Suit to E.D. Oklahoma ------------------------------------------------------------ The class action lawsuit styled Hernandez v. Unarco Industries, LLC, Case No. CJ-14-00300, was removed from the Wagoner County District Court to the U.S. District Court for the Eastern District of Oklahoma (Muskogee). The Oklahoma District Court Clerk assigned Case No. 6:15-cv-00001-KEW to the proceeding. The lawsuit alleges employment discrimination. The Plaintiff is represented by: James G. Wilcoxen, Esq. WILCOXEN & WILCOXEN PO Box 357 Muskogee, OK 74402 Telephone: (918) 683-6696 Facsimile: (918) 682-8605 E-mail: jim@wilcoxenlaw.net The Defendant is represented by: W. Kirk Turner, Esq. NEWTON O'CONNOR TURNER & KETCHUM 15 W Sixth Street, Suite 2700 Tulsa, OK 74119-5423 Telephone: (918) 587-0101 Facsimile: (918) 587-0102 E-mail: kturner@newtonoconnor.com UNITED STATES: Accused of Denying Medicare Coverage to Recipients ----------------------------------------------------------------- Courthouse News Service reports that the U.S. government denies Medicare coverage to beneficiaries, in the face of final appellate decisions that say they are "confined to the home" or "homebound," a Vermont federal class action alleges. UNITED STATES: Flores' Suit v. FBI Dismissed with Prejudice ----------------------------------------------------------- District Judge Irene M. Keeley dismissed the case captioned ERIC FLORES, Plaintiff, v. UNITED STATES ATTORNEY GENERAL and FEDERAL BUREAU OF INVESTIGATION, Defendants, CIVIL ACTION NO. 1:14CV19, (N.D. W.V.). Eric Flores filed this civil rights complaint seeking declaratory and injunctive relief on January 27, 2014. He purported to bring a class action on behalf of himself and other Mexican-American citizens "to seek relief from imminent danger such as death . . . ." He alleged that the defendants are "unlawfully interfering with religious practices, marriages, criminal investigations, and freedom of speech." United States Magistrate Judge John Kaull filed a report and recommendation (R&R), which recommended that the Court dismiss Mr. Flores' complaint as frivolous. He concluded that Mr. Flores' claims "rise to the level of being irrational or wholly incredible." In an order entered December 30, 2014, a copy of which is available at http://is.gd/ogPHfkfrom Leagle.com, Judge Keeley agreed, adopted the R&R in its entirety, and dismissed the complaint with prejudice. Eric Flores, Plaintiff, Pro Se. UNITED STATES: Labor Dep't Sued Over Alleged Sex Bias Claims ------------------------------------------------------------ Shuithol Moy v. Thomas E. Perez, Secretary, Department of Labor, Case No. 1:15-cv-00032-WHP (S.D.N.Y., January 5, 2015) is brought to redress, inter alia, claims of disparate treatment and sex discrimination, pursuant to the Civil Rights Act of 1964. The Plaintiff is a federal employee of the Department of Labor. He holds the position of Senior Investigator within the Wage and Hour Division. Thomas E. Perez is the Secretary of Labor of the U.S. Department of Labor. The Plaintiff is represented by: Chinyere Okoronkwo, Esq. LAW OFFICE OF CHINYERE OKORONKWO 375 Park Avenue, Suite 2607 New York, NY 10152 Telephone: (212) 634-6846 Facsimile: (212) 987-6621 E-mail: cokoronkwo@cyoesq.com VERIZON COMMS: Judge Tosses Class Suit Accord in Vodafone Deal -------------------------------------------------------------- Amaris Elliott-Engel, writing for Law.com, reports that a Manhattan Commercial Division judge has scuttled a non-monetary settlement of a class action brought by shareholders objecting to Verizon Communications' $130 billion acquisition of Vodafone's stake in the American telecom's wireless business. The decision also wipes out $2 million in attorney fees and costs for plaintiffs' law firm Faruqi & Faruqi. In a highly critical opinion in Gordon v. Verizon Communications, 653084/2013, Justice Melvin L. Schweitzer said approving the legal fees would be a misuse of Verizon's corporate assets and would enable "an unwarranted divestiture of shareholder rights." The case, Justice Schweitzer said, is an example of the rising tide of litigation that comes with every public acquisition in which a settlement benefits the class counsel financially and helps the defense by ending the litigation. "A body of law meant to protect shareholder interests from the absence of due care by the corporation's managers has been turned on its head to diminish shareholder value by divesting them of valuable rights via the broad releases that plaintiffs have fashioned at the demand of concerned defendants and their counsel and imposing additional gratuitous costs" in the form of attorney fees, the judge said. Avi Szenberg -- avi.szenberg@szenok.com -- co-founder of Szenberg & Okun in New York and who represented objector Jonathan M. Crist, said that while his client only objected to paying $2 million in legal fees, he thought the entire lawsuit was frivolous and a waste of shareholder's resources. "Lawyers should not be compensated for these type of actions and obtaining these useless settlements," Mr. Szenberg said. Even though the Delaware courts are the center of shareholder litigation in the United States and have a reputation of being tough toward shareholder lawsuits, Mr. Szenberg added Schweitzer's decision shows that a New York judge can be as skeptical as any Delaware judge. His co-counsel included firm co-founder Jacob Okun and of counsel Moshe Balsam. The plaintiffs said Verizon's board of directors breached its fiduciary duty to stockholders by causing the company to pay "an allegedly excessive and dilutive price" to acquire Vodafone subsidiaries as well as the minority interest in Verizon Wireless. The plaintiffs also said the duty of candor was violated because the directors failed to disclose material information from their financial advisors opining that the transaction was fair. In exchange for settling the suit, the plaintiffs said Verizon agreed to include supplemental disclosures about the transaction ahead of a shareholder vote last January. The plaintiffs also said Verizon's board of directors agreed to obtain a fairness opinion from an independent financial advisor for "any transaction regarding assets of Verizon Wireless having a book value . . . in excess of $14.4 billion," or approximately 5 percent of the book value of Verizon Wireless. A fairness opinion would ensure that the telecom's management would not sell assets too cheaply after paying a premium for them, the plaintiffs said. Justice Schweitzer said that judges view fairness opinions favorably when evaluating the actions of directors, but the decision to obtain those opinions is up to the business judgment of directors. Moreover, mandating a fairness opinion for any transaction involving 5 percent of Verizon Wireless' book value "may actually operate to curtail the company's directors' flexibility and ability to employ their collective business experience in connection with minimal . . . asset dispositions," the judge said. Justice Schweitzer said that the supplemental disclosures negotiated by the plaintiffs would not increase shareholder value. The disclosures included details of financial advisor JPMorgan's comparative analysis of other companies in the industry, the absence of which the judge called "a degree of administrative mercy on analysts and shareholders who comb disclosure documents for items of merit." Sean Griffith, a law professor at Fordham University School of Law, was the expert for objector Crist and spoke at the hearing, along with counsel. Gerald Walpin, a New York attorney and Verizon shareholder representing himself, also argued the fees were excessive in light of the return for stockholders in ownership of 2.86 billion shares. "This decision proves that shareholders do not have to accept a settlement of a case, supposedly brought in their name by a lawyer, where the shareholders receive nothing and the lawyer sweeps in millions for himself," Walpin said in an email. Managing partner Nadeem Faruqi -- nfaruqi@faruqilaw.com -- and partner Juan E. Monteverde -- jmonteverde@faruqilaw.com -- of Faruqi & Faruqi did not respond to a request for comment. Verizon's lawyers are partner Paul K. Rowe -- PKRowe@wlrk.com -- and associate Adam M. Gogolak -- AMGogolak@wlrk.com -- of Wachtell, Lipton, Rosen & Katz in New York. Mr. Rowe declined to comment on the ruling. In September 2013, Verizon announced its agreement with Vodafone Group Plc and Vodafone 4 Limited to acquire Vodafone's 45 percent indirect interest in Verizon Wireless. In exchange, Verizon agreed to pay $59 billion in cash financed by what was among the largest corporate bond issuances in history. Verizon also agreed to pay $60 billion in Verizon stock, $5 billion in notes payable to Vodafone 4, a 23.1 percent stake in Vodafone Omnitel N.V. valued at $3.5 billion and other consideration of $2.5 billion. WELLS FARGO: App. Ct. Affirms TRO v. ILG in "Lofton" Wages Suit --------------------------------------------------------------- The Court of Appeals of California upheld a temporary restraining order on Initiative Legal Group, APC, in the distribution of settlement proceeds in a wage violations class action against Wells Fargo Home Mortgage in a Nov. 20, 2014 order available at http://is.gd/OF5Rsdfrom Leagle.com. The appeal from the order granting intervention is also dismissed, the Appeals Court ruled. The class action is DAWN LOFTON et al., Plaintiffs, v. WELLS FARGO HOME MORTGAGE, Defendant; DAVID MARK MAXON, Movant and Respondent; INITIATIVE LEGAL GROUP, APC, Objector and Appellant, Case No. A136626. It was brought by class counsel in San Francisco in 2005 on behalf of home mortgage consultants working for Wells Fargo Home Mortgage seeking damages for unpaid wages. In 2006, Initiative Legal Group, APC, (ILG) filed a similar action in the Los Angeles Superior Court. The Los Angeles case was decertified in 2010. The actions were nevertheless joined as a practical matter -- they were coordinated for mediation of a settlement, and agreements to resolve all claims were reached before the same mediator on the same day. A common fund was agreed upon to resolve the class action and a separate common fund was agreed upon to resolve the many individual actions filed on behalf of ILG's clients. At the preliminary approval hearing for the class action settlement, the court was told that ILG's clients would opt out of the class action. Moreover, ILG informed the trial judge who presided over the class action that ILG was concerned that if the class settlement were approved, its clients would in effect become represented by class counsel and ILG would be unable to communicate directly with them about the class action case. This theoretical difficulty was worked out at the hearing. But contrary to the explanation of the settlement that had been provided to the court, ILG assisted its class member clients in securing the benefits of the class action settlement rather than in opting out of the class and thereby seek recompense from the $6,000,000 common fund ILG had obtained. The question thus arose as to what was the import of the common fund settlement obtained by ILG if its clients participated in the class settlement? According to ILG, the settlement was for its attorney fees for services ILG performed on the aborted class action and the 600 individual cases. ILG explained to its clients that while it "thought" the $6,000,000 it obtained in settlement represented attorney fees, it was willing to pay from the settlement $750 to each plaintiff for a claim it said was arguably not resolved in the class action. ILG later increased the amount payable to its clients to $1,750 after intervenor David Maxon objected to ILG's final proposed allocation of the settlement proceeds. This proposal would still leave ILG with approximately $4,950,000 of the $6,000,000 settlement as attorneys fees. "It is manifest that ILG intended to effectuate distribution of the almost $5 million in fees to itself without court approval. Such a move by lawyers representing so many plaintiffs in a common fund situation appears to us unprecedented. It is fraught with the potential for conflicts of interest, fraud, collusion and unfairness," the Appeals Court opined. The trial court in the class action issued a temporary restraining order requiring ILG to, among other things, deposit into a secure escrow account under the control and supervision of the court the settlement proceeds it contends represent attorney fees for the actions it brought against Wells Fargo on behalf of its approximately 600 former clients, one of whom is intervenor David Maxon. On appeal, ILG argued that the court lacked jurisdiction to issue the TRO, abused its discretion in issuing the TRO and relied on inadmissible evidence in issuing the TRO. On review, the Appeals Court held: "[W]e hold that the trial court presiding over the class action properly enjoined ILG from distributing or taking action to distribute the proceeds of its settlement to itself. The court presiding over the class action had concurrent exclusive jurisdiction to consider the propriety of the settlement of class member claims, even for those class members represented by ILG on class or related claims. Moreover, the trial court had a duty to ensure the fees claimed by ILG were reasonable in light of the overall result ILG achieved. The TRO is affirmed." Natalie P. Vance -- NVance@KlinedinstLaw.com , Gregory T. Fayard -- GFayard@KlinedinstLaw.com & Leah A. Plaskin -- LPlaskin@KinedinstLaw.com of KLINEDINST PC, Sean M. SeLegue -- Sean.SeLegue@aporter.com -- of ARNOLD & PORTER LLP, Counsel for Objector and Appellant. Mark A. Chavez -- mark@chavezgertler.com , Nance F. Becker -- nance@chavezgertler.com -- of CHAVEZ & GERTLER LLP, Richard Zitrin, ZITRIN LAW OFFICE, David C. Anderson -- DCALAW08@ATT.NET -- ANDERSON LAW, Counsel for Intervener and Respondent. WESTWOOD BOARDING: Sued Over Failure to Pay Employees Overtime -------------------------------------------------------------- Eunice Justo Almaguer and all others similarly situated under 29 U.S.C. 216(b) v. Westwood Boarding Home, Inc., TGL Residence Corp., Doris Torres, Case No. 1:15-cv-20028 (S.D. Fla., January 6, 2015), is brought against the Defendants for failure to pay overtime and minimum wages for work performed in excess of 40 hours weekly. The Defendants own and operate an assisted living facility in Florida. The Plaintiff is represented by: K. David Kelly, Esq. Jamie H. Zidell, Esq. J.H. ZIDELL, PA 300 71st Street, Ste. 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 E-mail: david.kelly38@rocketmail.com ZABOGADO@AOL.COM WHOLE FOODS: "Frydman" Suit Consolidated in Greek Yogurt MDL ------------------------------------------------------------ The class action lawsuit titled Frydman v. Whole Foods Market Group, Inc., et al., Case No. 2014CA014864 (AB), was removed from the Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida, to the U.S. District Court for the Southern District of Florida (West Palm Beach). The District Court Clerk assigned Case No. 9:15-cv-80007-KLR to the proceeding. The case is consolidated in the multidistrict litigation known as In re: Whole Foods Market, Inc., Greek Yogurt Marketing and Sales Practices Litigation, MDL No. 1:14-mc-02588-SS. The actions in the litigation share factual issues arising from highly similar allegations that Whole Foods 365 Greek Yogurt contains much more sugar than stated on its label, that the Defendants' marketing of the Yogurt was false and deceptive, and that the Defendants were negligent in testing the Yogurt, and in ensuring that the label was accurate. The Plaintiff is represented by: Barry L. Davis, Esq. THORNTON DAVIS & FEIN Brickell Bay View Centre 80 SW 8th Street, Suite 2900 Miami, FL 33130 Telephone: (305) 446-2646 Facsimile: (305) 441-2374 E-mail: davis@tdflaw.com The Defendants are represented by: Alexandre S. Drummond, Esq. SEYFARTH SHAW LLP 1075 Peachtree Street, NE, Suite 2500 Atlanta, GA 30309 Telephone: (404) 885-1500 Facsimile: (404) 892-7056 E-mail: adrummond@seyfarth.com - and - Jay W. Connolly, Esq. Joseph J. Orzano, Esq. 560 Mission Street, 31st Floor San Francisco, CA 94105-2930 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: jconnolly@seyfarth.com jorzano@seyfarth.com YESHIVA BNOS: "Cordoba" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------- Cesar Cordoba, on behalf of himself and others similarly situated v. Yeshiva Bnos Aha Vas Israel, and David Ganz, Case No. 1:15-cv- 00046 (E.D.N.Y., January 6, 2015), seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post- judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standard Act. Yeshiva Bnos Aha Vas Israel is a New York religious corporation operating multiple schools in Brooklyn, New York. The Plaintiff is represented by: Peter Hans Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: pcooper@jcpclaw.com ZYNGA INC: "Lee" Securities Action May Proceed Against D&Os ----------------------------------------------------------- Judge Andre Bouchard of the Delaware Court of Chancery denied, in part, Defendants' Motion Dismiss in the case captioned, WENDY LEE, individually and on behalf of all others similarly situated, Plaintiff, v. MARK PINCUS, JOHN SCHAPPERT, WILLIAM GORDON, REID HOFFMAN, JEFFREY KATZENBERG, STANLEY J. MERESMAN, SUNIL PAUL, OWEN VAN NATTA, MORGAN STANLEY & CO. LLC, GOLDMAN, SACHS & CO., AND ZYNGA INC., Defendants, C.A. NO. 8458-CB (Del. Ch.). Zynga, a Delaware corporation based in San Francisco, California, is in the "social gaming" industry. Zynga produces interactive, online games (e.g. FarmVille) that are accessible through facebook.com and other platforms. Lee filed a complaint against Zynga and the underwriters, respectively, asserting two causes of action, namely: (1) that the Director Defendants breached their fiduciary duty of loyalty by waiving the lockup restrictions to favor the Director Defendants at the expense of other pre-IPO stockholders and (2) that the Underwriter Defendants aided and abetted those breaches of fiduciary duty. Lee alleged that the Director Defendants breached their fiduciary duties by selectively releasing the lockups, waiving the blackout policy, and authorizing the secondary offering to benefit themselves. Further, she alleged that lockup waivers were approved by a self-interested board of directors, acting to serve the interests of its own members and the company's controlling shareholder. Furthermore, she alleged that the Director Defendants gave themselves an improper benefit inconsistent with their duty of loyalty to her and the putative class. Defendants filed a motion to dismiss, raising three arguments: (1) that the cause of action is derivative and that Lee failed to satisfy the pleading requirements of Court of Chancery Rule 23.1; (2) that Lee's claim sounds in contract law and thus does not state a claim for breach of fiduciary duty; and (3) that even if fiduciary duty principles govern the claim, it must be dismissed because Lee has failed to rebut the business judgment rule. Judge Bouchard concluded that Plaintiff has stated a claim for breach of fiduciary duty against the director defendants because it is reasonably conceivable that, when the members of the Zynga board restructured the lockup restrictions, half of the directors who approved that decision received an unfair benefit. Also, Judge Bouchard concluded that plaintiff has not stated a claim for aiding and abetting because plaintiff has failed to plead facts from which it is reasonably inferable that the underwriters knowingly participated in a breach of fiduciary duty. Accordingly, the motion to dismiss filed by Zynga was denied while the motion to dismiss filed by Underwriters was granted. A copy of the Order dated November 14, 2014, is available at bit.ly/1wWKBxU from Leagle.com. Elizabeth M. McGeever and J. Clayton Athey -- emmcgeever@prikett.com and jcathey@prickett.com -- of PRICKETT, JONES & ELLIOT, P.A., Wilmington, Delaware; Ethan D. Wohl of WOHL & FRUCHTER LLP, New York, New York, Attorneys for Plaintiff. Danielle Gibbs and Nicholas J. Rohrer of YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Jordan Eth, Anna Erickson White and Kevin A. Calia of MORRISON & FOERSTER LLP, San Francisco, California, Attorneys for Defendants Mark Pincus, John Schappert, William Gordon, Reid Hoffman, Jeffrey Katzenberg, Stanley J. Meresman, Sunil Paul, Owen Van Natta, and Zynga Inc. Gregory V. Varallo, Thomas A. Uebler and Robert L. Burns of RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Bruce D. Angiolillo and Jonathan K. Youngwood of SIMPSON THACHER & BARTLETT LLP, New York, New York; Simona G. Strauss of SIMPSON THACHER & BARTLETT LLP, Palo Alto, California, Attorneys for Defendants Morgan Stanley & Co. LLC and Goldman, Sachs & Co. * Fax Ads Must Contain Opt-Out Notice Requirements Under JFPA ------------------------------------------------------------- According to Venable LLP, even in 2015, fax marketing by associations, foundations, and nonprofits remains a viable and frequently used communications tool. In a recent order, the Federal Communications Commission ("FCC") explicitly confirmed that all fax advertisements must contain the opt-out notice requirements set forth by the Junk Fax Prevention Act ("JFPA") and FCC rules. The FCC's order resolves long-standing industry confusion on whether the JFPA's opt-out notice requirements extended to fax advertisements sent with recipients' prior permission. As background, about ten years ago, Congress enacted the JFPA and amended the fax advertising provisions of the Telephone Consumer Protection Act. Shortly after the revised statute went into effect, the FCC adopted the Junk Fax Order, which required, in part, the inclusion of an opt-out notice on "solicited" and "unsolicited" fax ads alike. But the implementation of the provision relating to "solicited" ads (i.e., those sent to persons that have given prior express permission) in the ruling led to confusion regarding the application of the opt-out notice. In its most recent order, the FCC recognized many affected parties reasonably misconstrued the original ruling. The FCC blamed a footnote in its original order that stated the opt-out notice only applied to "unsolicited" fax ads. The lack of reference to "solicited" ads in the footnote created an internal inconsistency within the order. The FCC understood affected parties misplaced confidence in the application of the rule to solicited fax ads, and issued a new order clarifying that the opt-out notice requirement under the JFPA extends to all fax advertisements, even those that are "solicited" by recipients. To comply with the new JFPA order, the opt-out notice included on fax ads must (1) be clear and conspicuous and appear on the first page of the ad; (2) state that the recipients can request to not receive future fax transmissions from the sender, and that the senders must honor that request within the shortest reasonable period of time (not to exceed 30 days); and (3) contain a domestic phone number and fax number that the recipient can contact to opt out. Opt-out notices without all of these elements will be subjected to the same penalties as those fax ads that contain no notice at all. Notably, the FCC granted a "limited retroactive waiver" of the opt-out requirement to certain fax ad senders. From the date the opt-out notice took effect in 2006 to April 30, 2015, parties that obtained waivers are relieved from any past obligation to provide the opt-out notice to recipients that solicited the advertisement by providing prior express permission. The FCC will allow -- and expects -- similarly situated parties to apply for retroactive waivers by April 30, 2015, and encourages any organizations that have not been strictly compliant to submit waiver requests as soon as possible. Beginning May 1, 2015, any sender that fails to include the opt-out notice at all or uses a deficient notice risks significant monetary liability from the FCC and/or private class action litigants. Importantly, the FCC's order leaves unchanged the prohibitions against sending faxes to recipients who did not request them, did not want them, or who had no established business relationship with the sender. Venable has previously noted the general prohibition against sending unsolicited fax ads and the requirement to include opt-out notices on fax ads sent pursuant to an established business relationship. The FCC's order explains that the requirement to include opt-out notices on all fax ads sent under an established business relationship remains in effect and that the waivers will not relieve past obligations to include the notices to EBR recipients. Likewise, existing rules and regulations governing certain technical aspects of sending faxes remain unchanged. Nonprofits utilizing fax transmission as a method of sending advertising communications should (1) seek a waiver for previous noncompliant fax communications and (2) develop an opt-out notice to include on any future fax advertisements. * Video Games Sector Target of Publicity Case Attorneys ------------------------------------------------------- Marisa Kendall, writing for The Recorder, report that video game litigation is poised to be a hot area for entertainment lawyers in 2015, as more celebrities sue over being cast as game characters without their permission. The spree is driven by a pair of 2013 rulings that sided with athletes depicted in college football games, lawyers said, as well as by the overall boom in gaming sales which makes the industry a rich target for plaintiffs lawyers. Attorneys who specialize in right of publicity cases say they don't see the pace of litigation slowing down in 2015. But they're also eyeing a handful of cases that could slow plaintiffs momentum and expand First Amendment protections for the depiction of real figures in creative works. Kelli Sager -- kellisager@dwt.com -- a partner in Davis Wright Tremaine's Los Angeles office who specializes in media and entertainment litigation, said over the course of 30 years of practice she was used to seeing an average of one right of publicity claim every year or two. "We're now defending, I can think of six off the top of my head," she said. "So it's a huge amount of litigation." Keller v. Electronic Arts in the Ninth Circuit U.S. Court of Appeals, and Hart v. Electronic Arts in the Third Circuit both came down in 2013 in favor of athletes who claimed they were depicted as video game avatars without their consent. The courts found EA Games' portrayal of plaintiffs -- the avatars looked just like the real players and played football where and how the real people played -- was not sufficiently transformative to warrant First Amendment protection. Cue a subsequent lawsuit filed this summer by former Panamanian dictator Manuel Noriega, upset over his portrayal in video game "Call of Duty: Black Ops II." That suit, filed in Los Angeles Superior Court against Activision Blizzard Inc., was dismissed in October on the grounds that the video game maker was protected by its right to free expression. The court found Mr. Noriega's character wasn't a central part of the game and "that the marketability and economic value of the challenged work in this case comes not from Mr. Noriega, but from the creativity, skill and reputation of the defendants," wrote Judge William Fahey. Right of publicity lawyers also wonder if the dismissal had something to do with Mr. Noriega's notoriety. (He is incarcerated in a Panamanian prison, serving a sentence for drug trafficking, money laundering and killing political opponents.) Meanwhile Rockstar Games, the maker of video game "Grand Theft Auto V," continues to fight a suit filed by Lindsay Lohan in New York state court over her alleged portrayal in the game. And in September intellectual property rights firm CMG Worldwide Inc. sued the maker of a World War II video game over its depiction of General George Patton, dead nearly 70 years. In a blog entry following the Noriega decision, UCLA School of Law Professor Eugene Volokh commented on the confusion around right of publicity law. "The trouble is that different courts have drawn different lines," he wrote. "Roughly speaking, there is authority for at least five different rules." Ms. Sager is optimistic more courts will follow the Noriega ruling, and consider whether the depiction of real-life characters in a video game is just an element of an otherwise original work. Ultimately Ms. Sager expects the Supreme Court to weigh in. "It's going to take a high court decision to really clear up the law," she said. Until then, she's finding it difficult to show her clients where the line is between free expression and infringement. The Supreme Court provides video games the same protection under the First Amendment as books, films, and other forms of art. But as video games are a relatively new form of media, they have been tricky for courts to figure out how to regulate, said Hagens Berman Sobol Shapiro partner Leonard Aragon, a Phoenix lawyer who argued for plaintiffs in Keller. As graphics improve, video game makers can create avatars that look increasingly like the public figures they're intended to portray. But they also have the ability to build alternate universes that transform those public figures in new ways. "I think it creates unique circumstances," Mr. Aragon said, "where you can basically create anything you want." Sunnyvale solo Brian Henri, who represents retired NFL players suing EA Games over its use of their likenesses, said it's become clear this year that the courts view the "transformative use test" as the accepted standard to judge publicity rights in video games, just as in other forms of media. A video game may use a celebrity likeness if it sufficiently transforms the character, which EA's hyper-realistic sports games do not, he said. Mr. Henri made that argument before the Ninth Circuit in September, while EA Games lawyers Alonzo Wickers IV of Davis Wright Tremaine countered that test doesn't offer adequate protection to the inherently expressive nature of a video game. He argued a new test should be created that takes into consideration the enormous amount of artistry and design that goes into creating a video game. The Ninth Circuit has yet to rule. Mr. Henri said the courts have consistently rejected such "novel" arguments. The characters themselves aren't transformed at all from their real-life inspirations, he said, and ever-improving graphics just mean the characters become more and more lifelike. "You just can't take someone's likeness and incorporate it into your video game without permission," Mr. Henri said. Groups like the Electronic Frontier Foundation, which champions free expression, have found themselves in line with the video game makers. EFF staff attorney Daniel Nazer said the "transformative use test" makes sense when talking about an appropriated song or piece of artwork, but not a person. "There's no reason why realistic speech or depiction should be less protected under the First Amendment," he said. A Ninth Circuit decision in a case over the war film "The Hurt Locker" may make the balance between publicity rights and free expression more clear. In Sgt. Jeffrey Sarver v. Nicolas Chartier, an Iraq war veteran claims a central character in the 2010 Academy Award winning Best Picture was drawn without his permission from interviews about his experiences fighting in Iraq. His suit was dismissed in 2011 under California's anti-SLAPP law. The appeal, argued in May 2013, could have implications beyond film, for how public and historical figures are used in video games and other forms of media, said right of publicity lawyer Lincoln Bandlow -- lbandlow@lathropgage.com -- of Lathrop & Gage in Los Angeles. "It could dramatically change the entire world of motion pictures, biographies, docudramas," he said. "The entirety of docudramas will change if it is ruled that a historical person has the right to stop depictions of themselves in films." ********* 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 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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