/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150122.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 22, 2015, Vol. 17, No. 16 Headlines 5TH AVENUE MARKET: Sued in N.Y. Over Failure to Pay OT Wages ADOBE SYSTEMS: Faces Class Action Over Cloud Subscription Fees AHOLD: Period to Appeal From Class Action Settlement Expires ALIPHCOM: N.D. California Court Dismisses "Frenzel" Class Suit ALLIANCE HEALTH: Has Sent Unsolicited Messages, "Bank" Suit Says ALLIEDBARTON SECURITY: Preliminary OK of Settlement Denied Again AMERICAN REALTY: Sued for Misrepresenting Secondary Offering AMTECH SYSTEMS: Entered Into MOU to Settle Merger Class Actions APCO OIL: Entered Into MOU in Shareholder Actions BARCLAYS PLC: Great Pacific Suit Consolidated in LX Dark Pool MDL BB FRANCHISING: Has Sent Unsolicited Facsimiles, Action Claims BEACON WINE: Faces "Ortega" Suit Over Failure to Pay Overtime BITCASA INC: Court Rules on Injunction Bid in "Romack" Suit CAESARS ENTERTAINMENT: "Danner" Class Action May Proceed CAMELOT INFORMATION: May 12 Settlement Fairness Hearing Set CB FINANCIAL: Court Dismissed All Claims in "Sutton" Case CHESAPEAKE ENERGY: "Arnold" Derivative Action Dismissed CHICAGO, IL: May Refund Speed Camera Fines Under Class Action CHILDREN'S HOSPITAL: Sued Over Employment Bias and Retaliation CONSUMER ENERGY: Has Sent Unsolicited Facsimiles, Suit Claims CPS SECURITY: On-Call Workers Must Be Compensated for Hours Worked CVS PHARMACY: Has Invaded Class Members' Privacy, Action Claims DART CHEROKEE: Class Action Removal Pleading Standard Clarified DEER CONSUMER: Faces Suit Alleging Violations of Securities Laws DENTSPLY INT'L: Accused of Sexual Harassment and Retaliation DIGNITY HEALTH: Faces Class Action Over Tax Refund Claims ELECSYS CORPORATION: Entered Into MOU to Settle Class Action ELECTRO RENT: Recognized Other Income From $1.4MM Settlement ELECTRONIC ARTS: Loses Bid to Dismiss "Madden" Class Action FAMILY DOLLAR: Bid to Depose Plaintiff Over Evidence Nixed FLORIDA GAS: Court Grants Bid to Dismiss Punitive Damages Claim FIVE BELOW: Robbins Geller Files Class Action in Pennsylvania FORD MOTOR: Removes "Ellis" Suit to California District Court GENTIVA HEALTH: Entered Into MOU to Settle Stockholder Litigation GEORGIA: Motion to Dismiss Same Sex Marriage Class Action Denied GUCCI AMERICA: Removes "Manner" Suit to California District Court HORVAT DESIGN: Faces "Flores" Suit Over Failure to Pay OT Wages ISLAND HOSPITALITY: Sued in N.Y. Over Failure to Pay Overtime JRK RESIDENTIAL: Court Certifies Background Check Class Action KINROSS GOLD: Clarifies Leave Test in Securities Class Action LIFETOUCH CHURCH: Sued in Pa. Over Failure to Pay Overtime Wages LINCARE INC: Blumenthal Nordrehaug Files Overtime Class Action LINCOLN PARK MOTEL: Judgment in "Zhao" Minimum Wage Suit Upheld MAG & SOK: "Ferreiro" Suit Seeks to Recover Unpaid Overtime Wages MASSACHUSETTS: Eases Rules for Homeless Families in Danvers MEDTRONIC INC: Removes "Lawson" Suit to Tennessee District Court MF GLOBAL: NY Judge Rules on Document Production Bid MIA MAX: Faces "Juarez" Suit Over Failure to Pay Overtime Wages MONTREAL MAINE: Settles Lac-Megantic Rail Disaster Class Action NATIONAL FOOTBALL: Appeal in Brain-Injury Class Suit Is Premature NAVISTAR INC: Faces Suit in Minnesota Alleging Product Liability NEW ENGLAND COMPOUNDING: Court Limits Claims Against APAC & Chang OCWEN FINANCIAL: Sued in Cal. Over Illegal Foreclosure Policies ON DEMAND SEDAN: Violates Fair Labor Standards Act, Suit Claims ONE PLUS: "Portillo" Suit Seeks to Recover Unpaid Wages & Damages ONE STOP: "Redouane" Suit Seeks to Recover Unpaid OT Wages ORBITAL SCIENCES: Entered Into MOU to Settle Merger Class Actions PACIFIC BELL: Meal Break Plaintiffs Lose Class Certification Bid PILOT FLYING J: Judge Seeks More Details on Business Arrangements PINGTAN MARINE: Sued in N.Y. Over Misleading Financial Reports RECORDS IMAGING: Insurer's Suit Stayed Pending Class Action RED ONE: "Gonzalez" Suit Seeks to Recover Unpaid Wages & Damages REVERE PLASTICS: Sued in Ind. Over Failure to Pay Overtime Wages RICHARD SOKOLOFF: Summary Judgment Bids in "Luftig" Case Denied SAFEWAY INC: Class Claims Nixed in "Richards" All Natural Case SANDRIDGE ENERGY: Pomerantz LLP Files Class Action in Oklahoma SANTANDER DRIVE: Plaintiffs Dismiss State Court Complaint SANTANDER DRIVE: DBTCA Reviewing Newly Filed Pleadings SKECHERS USA: Faces 8 Suits Arising From Sale of Toning Shoes SPARKLE INDUSTRIES: Fails to Pay Workers' Overtime, Suit Claims SRA ASSOCIATES: Accused of Violating Fair Debt Collection Act SUSQUEHANNA BANCSHARES: Sued Over Failure to Pay Overtime Wages SYNGENTA CORP: Faces "Runsick" Suit in Arkansas District Court TAKATA CORPORATION: Faces "Hodgson" Suit Over Defective Airbags TELECHECK SERVICES: Court Narrows Claims in "Huff" Suit TOYOTA MOTOR: Faces TCPA Class Action Over Data Sharing UNITED HEALTHCARE: Court Grants Dismissal Motion in Junk Fax Suit UNITED SERVICES: Removes "Carlson" Suit to Georgia District Court UNITED WELLNESS: Plaintiff's Bid for Default Judgment Granted VOLKSWAGEN OF AMERICA: Attorney Fees Unreasonable, Court Rules WESBANCO INC: Has Deal to Resolve ESB Merger Class Suit WET SEAL: Appeal Court Affirms Denial of Arbitration Motion * Consumer Group to Help Food Scandal Victims File Class Action * Ontario Law Commission Evaluates Class Action Procedures * Use of Cy Pres Relief in Settlements Raises Controversy ********* 5TH AVENUE MARKET: Sued in N.Y. Over Failure to Pay OT Wages ------------------------------------------------------------ Pedro Martinez, on behalf of himself and all others similarly situated v. 5th Avenue Market Inc. d/b/a Fifth Avenue Market, 434 Market & Deli Inc. d/b/a Fifth Avenue Market, Mohamed Ali, and Resk Ali, Case No. 1:15-cv-00189 (E.D.N.Y., January 14, 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 24-hour deli and grocery store. The Plaintiff is represented by: Vivianna Alexandra Morales, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue New York, NY 10022 Telephone: (212) 583-9500 Facsimile: (212) 308-8582 E-mail: morales@pechmanlaw.com ADOBE SYSTEMS: Faces Class Action Over Cloud Subscription Fees -------------------------------------------------------------- Michael Lipkin and Cara Salvatore, writing for Law360, report that a California federal judge on Jan. 8 tossed a putative class action accusing Adobe Systems Inc. of charging an illegal termination fee for its cloud subscription service to blockbuster applications such as Photoshop, ruling the fee was an alternative to performance rather than a penalty. U.S. District Judge Lucy Koh granted Adobe's motion to dismiss the June 2014 suit, which claimed the company's early termination fee violates California's Unfair Competition Law and Consumers Legal Remedies Act. Plaintiff Scotty Mahlum alleged the fee, which can run hundreds of dollars, was an unlawful liquidated damages provision. Judge Koh, however, held that when a contract allows a party to terminate the agreement early in exchange for a lump payment, it is not considered a penalty. The termination fee isn't triggered when a subscriber breaches the deal, such as by failing to pay a monthly fee, but gives them a legitimate option when they change their mind and want to cancel the deal. "Because the ETF is not imposed as a result of breach, it is not a liquidated damages clause," Judge Koh wrote. "Plaintiff only alleges that the ETF is imposed upon the customer's affirmative and voluntary cancellation of the subscription agreement." Judge Koh gave Mr. Mahlum two weeks to amend the complaint, writing he could successfully bring claims based on other provisions of the contract that show the fee is imposed as a result of a breach. But Mr. Mahlum's attorney said during a case management conference on Jan. 8 he would rather appeal the order instead of filing a new complaint. Subscribers pay $49.99 per month for access to Adobe's complete cloud suite or $9.99 per month for access to individual programs. But if they end their contracts early, Adobe charges them 50 percent of the remaining value of the contract -- a profit, according to Mr. Mahlum's complaint. The entire fee is a windfall because Adobe has no expenses after a subscriber downloads its software, Mr. Mahlum claimed. The Creative Cloud programs include Photoshop, Illustrator, InDesign, Premiere, After Effects, Audition, Dreamweaver and other programs. Mr. Mahlum argued the court couldn't determine the nature of the fee on a motion to dismiss because it was a factual issue and that his complaint sufficiently alleged the fees met the definition of an invalid penalty. But Judge Koh sided with Adobe and found it was not a factual issue, and that it was up to courts to decide even before summary judgment. A case cited by Mr. Mahlum was distinct because it involved a fee that was imposed involuntarily without consumer consent, according to the opinion. The court found the fee was an alternatives means of performance because it offered customers a rational choice: they can pay the remaining monthly installments left on their plan, cancel and pay half as a fee or refuse to pay entirely, thereby breaching the agreement. "We don't think this is a close question," Trenton H. Norris -- Trent.Norris@aporter.com -- of Arnold & Porter LLP, representing Adobe, told Law360. "A contrary decision would invalidate standard subscription-based pricing models across all sorts of industries and would come close to mandating a 'pay as you go' or 'month-to-month' pricing model, at least in California." In a December 2013 earnings report, Adobe revealed it had ended the 2013 fiscal year with 1.4 million Creative Cloud paid subscriptions, an increase of 1.1 million over the course of the year. The complaint claimed that the company's revenue from the cloud model jumped from $160 million in the second quarter of 2012 to $255 million in the second quarter of 2013. Mr. Mahlum is represented by Lawrence Timothy Fisher -- ltfisher@bursor.com -- Annick Persinger -- apersinger@bursor.com -- and Yeremey Krivoshey -- ykrivoshey@bursor.com -- of Bursor & Fisher PA. Adobe is represented by Trenton H. Norris, Zachary B. Allen and Jonathan L. Koenig -- Jonathan.Koenig@aporter.com -- of Arnold & Porter LLP. The case is Scotty Mahlum v. Adobe Systems Inc., case number 5:14- cv-02988, in the U.S. District Court for the Northern District of California. AHOLD: Period to Appeal From Class Action Settlement Expires ------------------------------------------------------------ Ahold on Jan. 9 disclosed that the appeal period regarding the court approval of the settlement of the class action in the United States, which it has referred to in its annual reports as the "Waterbury litigation", has expired and the settlement is now final. Ahold previously announced on May 21, 2014 that it had reached the settlement which was subject to the approval of the United States District Court for the District of Connecticut. The settlement was approved by the United States District Court for the District of Connecticut in December 2014 and the settlement amount of $297 million has been paid from Ahold's existing provision. Accordingly, the Waterbury settlement has now become final, and the potential liability for Ahold in this class action has been resolved. ALIPHCOM: N.D. California Court Dismisses "Frenzel" Class Suit -------------------------------------------------------------- Courthouse News Service reports that a federal judge dismissed on December 19, 2014, a putative class action against Aliphcom for its fitness-tracking wristband. The case is Robert Frenzel v. Aliphcom, Case No. 3:14-cv-03587- WHO, in the U.S. District Court for the Northern District of California. ALLIANCE HEALTH: Has Sent Unsolicited Messages, "Bank" Suit Says ---------------------------------------------------------------- Todd C. Bank, individually and on behalf of all others similarly situated v. Alliance Health Networks, LLC, formerly Alliance Health Networks, Inc., Ingram Medical Administration, Inc., a/ k/a Ingram Medical, and Medsource RX Pharmacy, LLC, d/b/a Medsource Diabetic, Medsource RX, and Your Diabetic Pharmacy, Case No. 2:15- cv-00213 (E.D.N.Y., January 14, 2015), alleges that the Defendants used an artificial or prerecorded voice to deliver a message to advertise the commercial availability or quality of diabetic- testing equipment. The Defendants own and operate an innovative technology company whose mission is to improve health outcomes, lower costs and foster a more consumer-centric healthcare industry. 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 ALLIEDBARTON SECURITY: Preliminary OK of Settlement Denied Again ---------------------------------------------------------------- District Judge James Donato issued a second order on January 9, 2015, denying preliminary approval of class action settlement in JOAN MYLES, Plaintiff, v. ALLIEDBARTON SECURITY SERVICES, LLC, et al., Defendants, CASE NO. 12-CV-05761-JD, (N.D. Cal.). In this complaint, Joan Myles, on behalf of herself and a putative class of approximately 11,500 security officers, has sued her former employer, AlliedBarton Security Services, for penalties under California Labor Code Section 203. The parties previously moved for approval of a proposed class settlement, which the Court denied on November 12, 2014, because the proposed deal was replete with indicia that it would benefit the defendant and class counsel at the expense of the absent class members. The parties filed a second proposed class settlement on December 12, 2014. According to Judge Donato's ruling, a copy of which is available at http://is.gd/kNEeF1from Leagle.com, "While they tried to portray the new proposal as a fresh start, they failed correct many of the prior problems that doomed the first effort. Consequently, the Court denies the proposed class settlement for a second time and restores this case to the trial schedule previously ordered." "[T]the parties have not addressed the two most fundamental issues. First, the settlement amount is extremely low in comparison to the only mathematical estimates of liability provided by the parties, and the parties have not provided any justification for the steeply discounted settlement amount," he said. "Second, because the release covers putative class members who received notice even if they made no claim for money, "[AlliedBarton's] liability would be limited on a 'claims-made' basis. . . . But the release is not imposed on a 'claims-made' basis." The Court previously informed the parties that such a wide disjunction between the scope of the release and the scope of liability would be grounds for denial, but the parties did not take that instruction to heart, noted Judge Donato. That, in combination with the proposed settlement's other flaws, necessitates denial of preliminary approval. AlliedBarton mentioned at the hearing that it plans to move for summary judgment. The most recent scheduling order in this case sets the deadline for motions for summary judgment and motions for class certification as February 9, 2015. The parties are expected to hold to those deadlines, and to the previously ordered trial schedule. Joan Myles, Plaintiff, represented by Chaim Shaun Setareh, Setareh Law Group. AlliedBarton Security Services LP, Defendant, represented by Jeremy T. Naftel -- jnaftel@cdflaborlaw.com -- Carothers DiSante & Freudenberger LLP & Nicole A. Legrottaglie -- nlegrottaglie@cdflaborlaw.com -- Carothers DiSante Freudenberger LLP. AMERICAN REALTY: Sued for Misrepresenting Secondary Offering ------------------------------------------------------------ Barbara Leonard at Courthouse News Service reports that American Realty Capital Properties raised nearly $1.6 billion in a secondary offering of common stock based on material misrepresentations, a federal class action alleges. The City of Tampa General Employees Retirement Fund filed the complaint on December 29 against ARCP, which it describes as a Maryland-based real estate investment trust with offices in New York. Founded in 2010, the trust had 3,809 properties as of March 31, 2014, consisting of 101.8 million square feet of leasable space, according to the complaint. The class takes aim at the "untrue statements" that the trust allegedly included in the registration statement prepared in connection with its sale of 138 million shares of common stock for its May 21, 2014, secondary offering, at $12 a share. In addition to a $12 million overstatement of its noncontrolling interests in the calculation of adjusted funds from operations (AFFO), the trust overstated AFFO by $10.9 million for the fiscal period ended June 30, the class alleges. AFFO measures a trust's net income, according to the complaint. The class says the trust also failed to disclose inadequate internal controls. Five months after the offering brought in net proceeds of $1.59 billion, the trust announced on Oct. 29 that the forms it previously filed with the Securities and Exchange Commission should not be relied upon. Because the trust "admitted that its registration statement and its disclosures and filings incorporated . . . were materially false and misleading," the trust announced that it would be restating its audited consolidated financial results. Shares fell 36 percent in intraday trading to as low as $7.85 on Oct. 29, according to the complaint. Among the trust's revelations on Oct. 29 was "that its audit committee determined that the financial statement misrepresentations were 'intentionally made' and 'intentionally not corrected' and that the company's chief financial officer and chief accounting officer who 'had key roles in the preparation of those financial statements' had resigned and were no longer with the company," according to the complaint. Soon thereafter, "news spread quickly that investigations were being launched" by the SEC, the FBI and the U.S. Attorney's Office for the Southern District of New York, the class says. Among the late 2014 executive departures at American Realty Capital Properties were Nick Schorsch, who stepped down as executive chairman and from board of directors; and David Kay, who stepped down as CEO and from the board. Both are named as defendants, among various other officers and the companies that handled the trust's underwriting. The underwriters are Merrill Lynch Pierce Fenner & Smith Inc.; Citigroup Global Markets Inc.; Barclays Capital Inc.; JP Morgan Securities LLC; Capital One Securities Inc.; Credit Suisse Securities (USA) LLC; Deutsche Bank Securities Inc.; Wells Fargo Securities LLC; Robert W. Baird & Co. Inc.; Ledenburg Thalmann & Co. Inc.; BMO Capital Markets Corp.; JMP Securities LLC; Janney Montgomery Scott LLC; Mizuho Securities USA Inc.; PNC Capital Markets LLC; Piper Jaffray & Co.; and RBS Securities Inc. The class seeks compensatory damages and rescission for violations of federal securities law. The Class is represented by: Peter Safirstein, Esq. MORGAN & MORGAN, PA 28 West 44th Street #2001 New York, NY 10036 Telephone: (212) 564-1637 E-mail: psafirstein@forthepeople.com AMTECH SYSTEMS: Entered Into MOU to Settle Merger Class Actions --------------------------------------------------------------- Amtech Systems, Inc. said in its Form 8-K Current Report filed with the Securities and Exchange Commission on January 16, 2015, that the Company and BTU International, Inc., along with the other defendants, entered into a memorandum of understanding to settle two separate putative stockholder class action lawsuits relating to the transactions contemplated by the Merger Agreement. As disclosed, Amtech Systems, Inc. (the "Company") entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated October 21, 2014, by and among the Company, BTU International, Inc. ("BTU"), and BTU Merger Sub, Inc. ("Merger Sub"), providing for the merger of Merger Sub with and into BTU with BTU surviving as a wholly owned subsidiary of the Company (the "Merger"). In connection with the Merger, the Company and BTU filed a definitive joint proxy statement/prospectus (the "Proxy Statement"), dated December 23, 2014, with the Securities and Exchange Commission (the "SEC"). The special meeting of the Company's stockholders is scheduled to be held on January 29, 2015 at The Tempe Mission Palms Hotel, 60 East 5th Street, Tempe, Arizona. On January 16, 2015, the Company and BTU, along with the other defendants named therein, entered into a memorandum of understanding (the "MOU") to settle two separate putative stockholder class action lawsuits relating to the transactions contemplated by the Merger Agreement, including the Merger (together, the "Stockholder Actions"), which were previously disclosed in the Proxy Statement under the caption, "The Merger -- Litigation Relating to the Merger." Pursuant to the MOU, the parties to the Stockholder Actions agreed to resolve the claims made therein and the Company and BTU agreed to make certain additional disclosures regarding the Merger, as set forth herein. The MOU is expected to be memorialized in a stipulation of settlement, which will be subject to customary terms and conditions, including court approval, and will include an agreement by the plaintiffs in the Stockholder Actions, on behalf of each stockholder class, to provide a release of all claims against the Company and BTU, along with the other defendants named therein, subject to an exception for certain securities law claims. In addition, as part of the settlement, BTU, or its successor, has agreed to be responsible for the payment of certain amounts in plaintiffs' attorneys' fees and expenses in connection with the settlement. The Company and BTU entered into the MOU solely to avoid the costs, risks and uncertainties inherent in litigation and without admitting any liability or wrongdoing. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve such settlement. In such event, the proposed settlement as contemplated by the MOU may be terminated. The following disclosures are intended to supplement the sections of the Proxy Statement referenced therein and should be read in conjunction with the Proxy Statement. These additional disclosures will not affect the timing of the special meeting of stockholders of the Company to vote upon the proposal to adopt the Merger Agreement and to approve the Merger. Page references in the following disclosures are to the Proxy Statement, and defined terms used, but not otherwise defined, in the following disclosures shall have the meanings set forth in the Proxy Statement. APCO OIL: Entered Into MOU in Shareholder Actions ------------------------------------------------- Apco Oil and Gas International Inc. said in its Form 8-K Current Report filed with the Securities and Exchange Commission on January 16, 2015, that parties to the Shareholder Actions entered into a memorandum of understanding reflecting an agreement in principle to resolve the claims asserted in the Shareholder Actions. As disclosed, on October 2, 2014, Apco Oil and Gas International Inc. ("Apco" or the "Company"), Pluspetrol Resources Corporation ("Parent") and Pluspetrol Black River Corporation, a subsidiary of Parent ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement"). Upon the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Apco, with Apco surviving the merger as a subsidiary of Parent (the "Merger"). As disclosed in the Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission (the "SEC") by the Company on December 22, 2014 (the "Definitive Proxy Statement"), following the announcement that the Company had entered into the Merger Agreement, three putative class actions were filed in the District Court of Tulsa County in the State of Oklahoma on behalf of purported shareholders of the Company against the Company, its directors and the Company's majority shareholder, WPX Energy, Inc. ("WPX"). The first putative class action, which is captioned Michael Italiaander v. Apco Oil and Gas International Inc. et al., CJ-2014-04027, was filed on October 23, 2014 (the "Italiaander Action"). The plaintiff in the Italiaander Action filed an amended complaint on November 13, 2014. The second putative class action, which is captioned Brian Buckholz v. Apco Oil and Gas International Inc. et al., CJ-2014-04416, was filed on November 17, 2014 (the "Buckholz Action"). The third putative class action, which is captioned Shiva Y. Stein v. Apco Oil and Gas International Inc. et al., CJ-2014-04417, was also filed on November 17, 2014 (the "Stein Action"). A fourth putative class action, which is captioned Assad v. Apco Oil and Gas International Inc. et al., 4:14-cv-00707-GKF-TLW, was filed in the United States District Court for the Northern District of Oklahoma on behalf of purported shareholders of the Company against the Company, its directors, Parent, and Merger Sub on November 24, 2014 (the "Assad Action") (together with the Italiaander Action, the Buckholz Action, and the Stein Action, the "Shareholder Actions"). On December 3, 2014 the Italiaander Action, Buckholz Action, and Stein Action were consolidated into a single action, captioned In Re Apco Oil And Gas International Inc. Purported Class Action Litigation, Master File No. CJ-2014-04027. Each of the Shareholder Actions alleges that the Company's directors breached their fiduciary duties to the Company's shareholders by agreeing to sell the Company for inadequate consideration, by engaging in a flawed sales and negotiation process, by agreeing to improper deal-protection terms in the Merger Agreement, and by approving the preliminary proxy statement as filed with the SEC on October 31, 2014, which allegedly contained material misrepresentations and omissions. Additionally, each of the Shareholder Actions alleges that certain of the Company's directors had conflicts of interest in approving the Merger due to their respective affiliations with WPX. The Assad Action further alleges that Parent and Merger Sub aided and abetted the Company's directors' breaches of fiduciary duties to the Company's shareholders; that the Company's directors violated Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 14a-9 promulgated thereunder; and that the Company's directors, Parent, and Merger Sub violated Section 20(a) of the Exchange Act. Each of the Shareholder Actions seeks, among other relief, declaratory and injunctive relief against the Merger and costs and fees. On January 16, 2015, the parties to the Shareholder Actions entered into a memorandum of understanding (the "MOU") reflecting an agreement in principle to resolve the claims asserted in the Shareholder Actions (the "Settled Claims"). The MOU provides that the parties will enter into a stipulation of settlement. The stipulation of settlement will be subject to customary conditions, including court approval. In the event that the parties enter into a stipulation of settlement, a hearing will be scheduled at which the settlement contemplated by the MOU will be submitted to the District Court of Tulsa County in the State of Oklahoma for approval. If the settlement is finally approved by the court, the Settled Claims will be dismissed with prejudice. As part of the settlement, the Company, its directors, WPX, Parent and Merger Sub (the "Defendants") deny all allegations of wrongdoing and deny that the disclosures in the Definitive Proxy Statement were inadequate, but have agreed to provide supplemental disclosures. The settlement will not affect the timing of the Extraordinary General Meeting of Apco stockholders or the Merger, or the amount of consideration to be paid in the Merger. The Defendants believe that no further disclosure is required under applicable laws; however, to avoid the risk of the Shareholder Actions delaying or adversely affecting the Merger and to minimize the expense of defending such action, Apco has agreed, pursuant to the terms of the MOU, to make certain supplemental disclosures related to the proposed Merger. Apco and the other named Defendants have vigorously denied, and continue vigorously to deny, that they have committed or aided and abetted in the commission of any violation of law or engaged in any of the wrongful acts that were alleged in the Shareholder Actions, and expressly maintain that they diligently and scrupulously complied with their fiduciary and other legal duties and are providing these supplemental disclosures solely to seek to eliminate the burden and expense of further litigation, to put to rest claims relating to the Merger that have been or could have been asserted, and to avoid any possible delay to the closing of the Merger that might arise from further litigation. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth. BARCLAYS PLC: Great Pacific Suit Consolidated in LX Dark Pool MDL ----------------------------------------------------------------- The class action lawsuit styled Great Pacific Securities v. Barclays PLC, et al., Case No. 8:14-cv-01210, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the Southern District of New York (Foley Square). The New York District Court Clerk assigned Case No. 1:15-cv-00168-JMF to the proceeding. The case is consolidated in the multidistrict litigation captioned In re: Barclays Liquidity Cross and High Frequency Trading Litigation, MDL No. 2589. The consolidated litigation concerns the operation of the Barclays Liquidity Cross or "LX" dark pool. The Plaintiffs assert that Barclays misrepresented the LX dark pool as a safe haven for investors -- a place insulated from aggressive and predatory high frequency trading (HFT) practices. In reality, according to the complaints, Barclays actively courted HRT firms for the dark pool, providing them with material nonpublic information and associated perks that gave them an unfair advantage over other traders. The Plaintiff is represented by: Albert Y. Chang, Esq. Francis A. Bottini, Jr., Esq. BOTTINI AND BOTTINI INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 E-mail: achang@bottinilaw.com fbottini@bottinilaw.com - and - Elizabeth Tran, Esq. Joseph Winters Cotchett, Esq. Kevin Patrick O'Brien, Esq. Mark Cotton Molumphy, Esq. Nanci E. Nishimura, Esq. COTCHETT, PITRE & MCCARTHY 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 E-mail: etran@cpmlegal.com jcotchett@cpmlegal.com kobrien@cpmlegal.com mmolumphy@cpmlegal.com nnishimura@cpmlegal.com The Defendants are represented by: Adam S. Paris, Esq. SULLIVAN AND CROMWELL LLP 1888 Century Park East, Suite 2100 Los Angeles, CA 90067-1725 Telephone: (310) 712-6600 Facsimile: (310) 712-8800 E-mail: parisa@sullcrom.com - and - Jeffrey T. Scott, Esq. SULLIVAN AND CROMWELL 125 Broad Street New York, NY 10004 Telephone: (212) 558-4000 E-mail: scottj@sullcrom.com BB FRANCHISING: Has Sent Unsolicited Facsimiles, Action Claims -------------------------------------------------------------- A Aventura Chiropractic Care Center, Inc., a Florida corporation, individually and as the representative of a class of similarly- situated persons v. BB Franchising LLC and John Does 1-10, Case No. 1:15-cv-20137 (S.D. Fla., January 14, 2015), seeks to redress the Defendants' practice of sending unsolicited facsimiles. BB Franchising LLC offer an effective, non-medical and non- pharmaceutical program designed to help children become more focused in their everyday activities, improve their academic performance, and increase their occurrence of positive behavior, resulting in enhanced communication and social interaction skills. The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (8470 368-1501 E-mail: rkelly@andersonwanca.com BEACON WINE: Faces "Ortega" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Juan Carlos Alvarez Ortega, on behalf of himself and others similarly situated cashiers v. Beacon Wine and Spirits, Mitchell's Wine and Liquor Store and Chiyoung Chung, individually, Case No. 1:15-cv-00257 (S.D.N.Y., January 14, 2015), is brought against the Defendants for failure to pay overtime wages, and liquidated damages, compensatory damages, pre-judgment and post-judgment interest, and attorneys' fees and costs, pursuant to the Fair Labor Standard Act. The Defendants own and operate two liquor stores in New York. The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway Suite 307 New York, NY 10007 Telephone: (212) 323-6980 Facsimile: (212) 233-9238 E-mail: jaronauer@aronauerlaw.com BITCASA INC: Court Rules on Injunction Bid in "Romack" Suit ----------------------------------------------------------- District Judge William Alsup granted, in part, Plaintiff's request for preliminary injunction in the case captioned SHAWN ROMACK, individually and on behalf of all others similarly situated, Plaintiff, v. BITCASA, INC., Defendant, No. C 14-05005 WHA (N.D. Cal.). Plaintiff Shawn Romack filed a putative class action involving cloud data-storage services by Defendant Bitcasa Inc. seeking to represent a class of all persons in the United States who were enrolled in Bitcasa's Infinite data storage plan. Plaintiff alleged breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of the California Business and Professions Code Section 17200. Further, Plaintiff alleged that Defendant Bitcasa was holding its customers data ransom with an insufficient amount of time to decide whether to pay ten times more for an inferior service or risk losing all of their data. Thereafter, Plaintiff filed an ex parte motion for a temporary restraining order and preliminary injunction asking (1) to enjoin Bitcasa from, among others, deleting, disabling, or impeding access to any data or content stored on Bitcasa's cloud computing platform and (2) to require Bitcasa to meet-and-confer with plaintiff regarding an "agreement on a reasonably sufficient period of time to remove their data from Bitcasa's cloud computing platform or other similar systems. Defendant Bitcasa filed its opposition and moved to dissolve the temporary restraining order. In his Order, Judge Alsup partly granted Plaintiff's Preliminary Injunction by ruling that Plaintiff failed to show that he is entitled to the vast injunction requested because all or almost all of his alleged damages can be avoided or mitigated and that Plaintiff also failed to show evidence that a class-wide injunction is necessary to remedy the alleged harm. In addition, Judge Alsup recognized Plaintiff's admission that he has retrieved approximately two terabytes of his 7.7 terabytes of data and emphasized that Plaintiff can pay $99 for a one-month extension of time so that he can migrate and download his data. A copy of the Order dated November 19, 2014, is available at http://is.gd/jq3WWDfrom Leagle.com. Shawn Romack, Plaintiff, represented by Jordan S Elias, Lieff, Cabraser, Heimann & Bernstein, LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP & Roger Norton Heller -- rheller@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP. Bitcasa, Inc, Defendant, represented by Matthew Dean Brown -- mbrown@cooley.com -- Cooley LLP. CAESARS ENTERTAINMENT: "Danner" Class Action May Proceed -------------------------------------------------------- Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York denied the request of Caesars Entertainment Corp. to dismiss, in its entirety, the purported class action complaint filed by Frederick Barton Danner. Judge Scheindlin granted, in part, and denied, in all other respects, the request of CEC to dismiss the complaint filed by MeehanCombs Global Credit Opportunities Funds, LP, Relative Value- Long/Short Debt, A Series of Underlying Funds Trust, SB 4 CF LLC, CFIP Ultra Master Fund, Ltd., and Trilogy Portfolio Company, LLC. Specifically, the judge said the MeehanCombs Complaint is dismissed with respect to the section 316(a) claim, without prejudice. The Court said MeehanCombs et al. have until January 29, 2015 to file an amended complaint. A conference is scheduled for February 3, 2015 at 4:30 p.m. The MeehanCombs and Danner plaintiffs are holders of notes issued by Caesars Entertainment Operating Company, Inc., pursuant to indentures, and -- until the issuance of supplemental indentures in August 2014 -- guaranteed by CEC. Plaintiffs allege that the August 2014 Transaction violated the Trust Indenture Act of 1939 and breached the governing Indentures as well as the implied covenant of good faith and fair dealing. The Amendments effectively left CEC free to transfer CEOC's assets without any obligation to back CEOC's debts. Furthermore, the purchase price paid for the Notes of the noteholders who approved the August 2014 Transaction, the Favored Noteholders -- par plus accrued interest and transactional fees and costs represented an extraordinary 100% premium over market. In exchange for receiving all amounts owed under their Notes, the Favored Noteholders promised to: (1) support any future restructuring proposed by Caesars; (2) consent to "the removal and acknowledgment of the termination of the CEC guarantee of the Securities"; and (iii) consent to the "modification of] the covenant restricting disposition of 'substantially all' of CEOC's assets to measure future asset sales based on CEOC's assets as of the date of the amendment." Plaintiffs contend that the August 2014 Transaction removed the Guarantees given by the asset-rich parent company, CEC, leaving plaintiffs and the other bondholders with a worthless right to collect principal and interest from the issuer, CEOC, a company divesting itself of assets and holding approximately $17 billion of senior secured debt. The crux of plaintiffs' allegations is that the release of the Guarantees effected a non-consensual change to plaintiffs' payment rights and affected plaintiffs' practical ability to recover payment in violation of section 316 of the TIA and the governing Indentures. Both defendants moved to dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In view of the filing of an involuntary Chapter 11 petition against CEOC, this action is stayed as to CEOC pursuant to section 362(a) of the Bankruptcy Code. However, this action is not stayed as to non-debtor defendant CEC. A copy of the Court's January 15, 2015 Opinion and Order is available at http://is.gd/OVmgD2from Leagle.com. Plaintiffs MeehanCombs, Global Credit Opportunities, Funds, LP, Relative Value-Long/Short Debt, A Series of Underlying Funds Trust, SB 4 CF LLC, CFIP Ultra Master Fund, Ltd., and Trilogy Portfolio Company, LLC, are represented by: James H. Millar, Esq. Kristin K. Going, Esq. Clay J. Pierce, Esq. Tracy S. Combs, Esq. DRINKER BIDDLE & REATH, LLP 1177 Avenue of the Americas, 41st Floor New York, NY 10036-2714 Tel: (212) 248-3140 Fax: (212) 248-3141 E-mail: James.Millar@dbr.com Kristin.Going@dbr.com Clay.Pierce@dbr.com Tracy.Combs@dbr.com Plaintiff Frederick Barton Danner is represented by: Mark C. Gardy, Esq. James S. Notis, Esq. Meagan Farmer, Esq. GARDY & NOTIS, LLP Tower 56 126 East 56th Street New York, NY 10022 Tel: 212 905 0509 Fax: 212 905 0508 E-mail: mgardy@gardylaw.com jnotis@gardylaw.com mfarmer@gardylaw.com - and - Jay W. Eisenhofer, Esq. Gordon Z. Novod, Esq. Elizabeth Shofner, Esq. GRANT & EISENHOFFER P.A. 485 Lexington Avenue, 29th Floor New York, NY 10017 Tel: (646) 722-8505 E-mail: jeisenhofer@gelaw.com gnovod@gelaw.com lshofner@gelaw.com Defendant Caesars Entertainment Corporation is represented by: Lewis R. Clayton, Esq. Jonathan Hurwitz, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Tel: 212-373-3215 Fax: 212-492-0215 E-mail: lclayton@paulweiss.com jhurwitz@paulweiss.com Defendant Caesars Entertainment Operating Company, Inc., is represented by: Eric Seiler, Esq. Philippe Adler, Esq. Emily A. Stubbs, Esq. Friedman Kaplan Seiler & Adelman LLP 7 Times Square New York, NY 10036 Tel: (212) 833-1103 Fax: (212) 373-7903 E-mail: eseiler@fklaw.com padler@fklaw.com CAMELOT INFORMATION: May 12 Settlement Fairness Hearing Set ----------------------------------------------------------- Robbins Geller Rudman & Dowd LLP and Kessler Topaz Meltzer & Check, LLP on Jan. 9 issued a statement regarding the Camelot Information Systems Inc. Securities Litigation: In re CAMELOT INFORMATION SYSTEMS INC. SECURITIES LITIGATION Civil Action No. 1:12-cv-00086-PGG CLASS ACTION SUMMARY NOTICE This Document Relates To: ALL ACTIONS. TO: ALL PERSONS THAT PURCHASED OR OTHERWISE ACQUIRED THE AMERICAN DEPOSITARY SHARES ("ADSs") OF CAMELOT INFORMATION SYSTEMS INC. ("CAMELOT"): (I) ISSUED PURSUANT OR TRACEABLE TO CAMELOT'S JULY 21, 2010 INITIAL PUBLIC OFFERING OF ITS ADSs; (II) ISSUED PURSUANT OR TRACEABLE TO CAMELOT'S DECEMBER 10, 2010 SECONDARY PUBLIC OFFERING OF ITS ADSs; AND/OR (III) ON THE OPEN MARKET DURING THE PERIOD FROM JULY 21, 2010 THROUGH SEPTEMBER 28, 2011, INCLUSIVE, AND WHO WERE ALLEGEDLY DAMAGED THEREBY (THE "CLASS") YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that the above- captioned action has been certified as a class action for purposes of settlement only and that a settlement for $2,750,000 has been proposed. A hearing will be held on May 12, 2015, at 10:00 a.m., before the Honorable Paul G. Gardephe at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, Courtroom 705, New York, NY 10007 for the purpose of determining: (1) whether the proposed Settlement should be approved by the Court as fair, reasonable, and adequate; (2) whether the Final Judgment and Order of Dismissal with Prejudice should be entered by the Court dismissing the Litigation with prejudice, and the releases specified and described in the Settlement Agreement dated March 19, 2014 should be granted; (3) whether the proposed Plan of Allocation is fair, reasonable, and adequate and should be approved; and (4) whether the application of Co-Lead Counsel for an award of attorneys' fees and expenses in connection with this Litigation should be approved. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received a detailed Notice of Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim form, you may obtain copies by writing to Camelot Securities Litigation, Claims Administrator, c/o Gilardi & Co. LLC, P.O. Box 990, Corte Madera, CA 94976-0990, or find them on the Internet at www.camelotsecuritiessettlement.com If you are a Class Member, in order to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim form by mail or online no later than March 31, 2015, establishing that you are entitled to a recovery. If you are a Class Member and do not submit a proper Proof of Claim form, you will not be eligible to share in the distribution of the Net Settlement Fund but you will nevertheless be bound by any judgments entered by the Court in this Litigation. If you are a Class Member and you desire to be excluded from the Class, you must submit a request for exclusion such that it is postmarked no later than April 21, 2015, in the manner and form explained in the detailed Notice referred to above. All Members of the Class who do not timely and validly request exclusion from the Class will be bound by any judgment entered in the Litigation pursuant to the Settlement Agreement. If you are a Class Member, you have the right to object to the proposed Settlement, the proposed Plan of Allocation and/or the request by Co-Lead Counsel for an award of attorneys' fees and expenses. Any objections must be filed with the Court and delivered to each of the following recipients such that they are received no later than April 21, 2015: To Co-Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP SAMUEL H. RUDMAN DAVID A. ROSENFELD 58 South Service Road, Suite 200 Melville, NY 11747 KESSLER TOPAZ MELTZER & CHECK, LLP JOHNSTON de F. WHITMAN, JR. JENNIFER L. ENCK 280 King of Prussia Road Radnor, PA 19087 To Counsel for Defendants Camelot Information Systems Inc., Yiming Ma, Heidi Chou, Ajit Bhushan, Ching-Hua Ho, Shang-Wen Hsiao, and Claude Leglise: SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP SCOTT D. MUSOFF Four Times Square New York, NY 10036 To Counsel for Defendant Goldman Sachs (Asia) L.L.C., Goldman Sachs & Co., Barclays Capital Inc., William Blair & Company, L.L.C., Cowen & Company, LLC, and Oppenheimer & Co. Inc.: FRIED, FRANK, HARRIS, SHRIVER& JACOBSON LLP WILLIAM G. McGUINNESS One New York Plaza New York, NY 10004 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Co-Lead Counsel, Rick Nelson, c/o Shareholder Relations, Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101, 1-800-449-4900. Further information may also be obtained by directing your inquiry in writing to the Claims Administrator, Gilardi & Co. LLC, at the address listed above. DATED: December 11, 2014 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CB FINANCIAL: Court Dismissed All Claims in "Sutton" Case --------------------------------------------------------- CB Financial Services, Inc. said in its Form 8-K/A (Amendment No. 1) Current Report filed with the Securities and Exchange Commission on January 15, 2015, that the Court dismissed all claims as to all defendants with prejudice in the case Sutton v. FedFirst Financial Corp., et al. On April 21, 2014, a class action complaint, captioned Sutton v. FedFirst Financial Corp., et al., was filed under Case No. 24C14002331, in the Circuit Court in Baltimore City, Maryland (the "Court"), against the Company, each of FedFirst Financial's directors, and CB Financial. The complaint alleged, among other things, that the FedFirst Financial directors breached their fiduciary duties to FedFirst Financial and its stockholders by agreeing to sell to CB Financial without first taking steps to ensure that FedFirst Financial stockholders would obtain adequate, fair and maximum consideration under the circumstances, by agreeing to terms with CB Financial that benefit themselves and/or CB Financial without regard for the FedFirst Financial stockholders and by agreeing to terms with CB Financial that discourages other bidders. The plaintiff also alleged that CB Financial aided and abetted the FedFirst Financial directors' breaches of fiduciary duties. The complaint sought, among other things, an order declaring the Merger Agreement unenforceable and rescinding and invalidating the Merger Agreement, an order enjoining the defendants from consummating the merger, as well as attorneys' and experts' fees and certain other damages. On June 20, 2014, the Company and the individual defendants filed a Motion to Dismiss the complaint. On July 29, 2014 the plaintiff filed an amended complaint adding an additional claim that the Form S-4 filed by CB Financial in connection with the merger contained material misstatements and omissions. The Company believed the factual allegations in the complaint, as amended, were without merit. On September 22, 2014, the Court dismissed all claims as to all defendants with prejudice, including claims against FedFirst Financial and its directors as well as claims against CB Financial. CHESAPEAKE ENERGY: "Arnold" Derivative Action Dismissed ------------------------------------------------------- Chesapeake Energy Corporation filed as an exhibit to its Form 8-K Current Report with the Securities and Exchange Commission on January 16, 2015, a Notice of Proposed Voluntary Dismissal of Derivative Action. The notice relates to a proposed voluntary dismissal of a shareholder derivative action and is being given pursuant to an order of The U.S. District Court for the Western District of Oklahoma. The purpose of the notice is to advise Chesapeake shareholders that plaintiff, M. Lee Arnold, in the below referenced action wishes to voluntarily dismiss the case. On September 6, 2011, M. Lee Arnold filed a purported shareholder derivative complaint in the U.S. District Court for the Western District of Oklahoma, Arnold v. McClendon et al., Case No. CIV-11- 986, against members of the Company's board of directors (the "Derivative Action"). The Derivative Action alleges a cause of action for breach of fiduciary duty and failure to exercise oversight responsibilities against all defendants for alleged violations of Sections 11, 12 and 15 of the Securities Act of 1933 in connection with disclosures and alleged failures to disclose information in the registration statement and prospectus for the Company's July 2008 common stock offering, which was the subject of an earlier-filed securities class action, United Food and Commercial Workers Union v. Chesapeake Energy Corporation et al., Case No. CIV-09-1114 (the "Securities Class Action"). Because the disclosure claims in the Securities Class Action were based on the same essential facts and issues, the parties to the Derivative Action agreed to stay proceedings pending resolution of the Securities Class Action. On February 13, 2013, the Securities Class Action was dismissed on summary judgment, and on August 8, 2014 the dismissal of the Securities Class Action was affirmed by the 10th Circuit Court of Appeals. In light of the dismissal of the Securities Class Action, Plaintiff has sought leave to voluntarily dismiss the Derivative Action. On November 20, 2014, the parties filed a Joint Stipulation Voluntarily Dismissing the Action Without Prejudice. This notice of the proposed voluntary dismissal of the Derivative Action will be posted in the Investor Relations section of Chesapeake's website for two weeks. Chesapeake shareholders are hereby advised: Chesapeake shareholders may intervene and continue prosecution of the Derivative Action. Any shareholder who wishes to intervene must file a motion with the U.S. District Court for the Western District of Oklahoma, 200 NW 4th Street, Oklahoma City, Oklahoma, 73102, not later than February 9, 2015. Any motion to intervene must be filed in writing, and must include: (i) the caption of the Derivative Action; (ii) the name of the shareholder; (iii) proof or certification of the date the intervening shareholder purchased Chesapeake stock, and that the intervening shareholder has held its shares continuously since the date of purchase, and (iv) a statement of the basis for the intervention. CHICAGO, IL: May Refund Speed Camera Fines Under Class Action ------------------------------------------------------------- Fran Spielman, writing for Chicago Sun Times, reports that Chicago could be forced to refund millions of dollars in speed camera fines issued to "tens, if not hundreds of thousands" of motorists on "non-school days," under a class-action lawsuit that accuses City Hall of thumbing its nose at state law. The previously undisclosed lawsuit, quietly filed in Circuit Court on Halloween night, accuses Mayor Rahm Emanuel's administration of "blatantly and intentionally" ignoring the ground rules established by the Illinois General Assembly before speed cameras were installed around Chicago's schools and parks. The statute clearly states, "Violations shall be recorded, only on school days." In spite of that language, plaintiffs' attorney Jacie Zolna said the city issued more than 34,000 tickets at 58 locations during July and August alone. Additional tickets were issued during Thanksgiving break, when school was not in session. The pattern was probably repeated during Christmas break, although those violations have not been posted on the city's website. Ms. Zolna represents the only named plaintiff in the case. Ken Maschek was slapped with and paid a $100 ticket on June, 26, 2014, on a day when school was not in session. He was allegedly driving 41 mph in a 30 mph zone near Lane Tech High School. But the lawsuit, which has not yet been granted class-action status, demands that the cash-strapped city stop all ticketing when school is not in session and refund all fines similarly paid by motorists ticketed during non-school days. Since motorists get off with a warning after the first violation, motorists subsequently ticketed could also be due refunds. City Hall may ultimately owe refunds to "tens, if not hundreds of thousands of citizens issued warnings or violations that were illegal and unconstitutional," the suit contends. "The city had no power under the state constitution to be enforcing those speed cameras during the times they were. We're asking the city to void all of those illegal tickets and warnings and refund the money," Ms. Zolna said on Jan. 9. "They're trying to run these things as often as they can to collect as much money as they can." Mr. Emanuel dodged questions about the lawsuit at an unrelated news conference on Jan. 9. "I'm not a lawyer. . . . I haven't looked at the lawsuit. My Law Department will look at it," the mayor said. Told his administration is already seeking to have the suit thrown out of court, the mayor said, "Then, you have the answer. They're seeking to dismiss it." In its motion to dismiss, the city has argued that, since there were some classes held during the summer, those days count as school days and that, therefore, speed camera violations were permitted. Law Department spokesman John Holden said: "This baseless suit was filed several months ago and the city expects to prevail in its motion to dismiss." Ms. Zolna scoffed at the city's argument. He noted that state law defines the regular academic year as including at least 176 days of "actual pupil attendance . . . excluding summer school." To count as school days, there must be: "not less than five hours" of school work under "direct supervision" of licensed teachers" or school personnel; "50 percent or more of district students" in attendance and education "at all grade levels." "Everyone knows what a school day is. Go to bed early. It's a school day tomorrow. It's a day when classes are held and all students are there," he said. Chicago's first speed camera went live at a school on Nov.25, 2013. As of July 3, 2014, the city had issued 230,000 tickets at 51 safety zones around schools and parks and 1.25 million warnings. Chicago now has 132 speed cameras at 60 safety zones, some of them with more than one camera. Mr. Emanuel has insisted that the controversial program is about children's safety -- not about raising money. CHILDREN'S HOSPITAL: Sued Over Employment Bias and Retaliation -------------------------------------------------------------- Del Wana Simpson v. The Children's Hospital of Philadelphia, Case No. 2:15-cv-00089-SD (E.D. Pa., January 9, 2015) arises from the alleged employment discrimination, retaliation, and unlawful termination of the Plaintiff by the Defendant. The Children's Hospital of Philadelphia is a non-profit corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business located in Philadelphia, Pennsylvania. The Plaintiff is represented by: Judith P. Rodden, Esq. POZZUOLO RODDEN 2033 Walnut Street Philadelphia, PA 19103 Telephone: (215) 977-8200 E-mail: judy@pozzuolo.com CONSUMER ENERGY: Has Sent Unsolicited Facsimiles, Suit Claims ------------------------------------------------------------- Alan L. Laub, DDS and Alan L. Laub, DDS, Inc., an Ohio corporation, individually and as the representatives of a class of similarly-situated persons v. Consumer Energy Solutions, Inc., Direct Energy Services, LLC, and John Does 1-10, Case No. 8:15-cv- 00073 (M.D. Fla., January 13, 2015), seeks to redress the Defendants' practice of sending unsolicited facsimiles. The Defendants offer natural gas and electricity supply services in Clearwater, Florida. The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON & WANCA Suite 760, 3701 Algonquin Rd Rolling Meadows, IL 60008 Telephone: (847) 436-0598 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com CPS SECURITY: On-Call Workers Must Be Compensated for Hours Worked ------------------------------------------------------------------ Maura Dolan, writing for Los Angeles Times, reports that employees who while on call are required to stay at a worksite should be compensated for all their hours, including sleep time, the California Supreme Court ruled unanimously on Jan. 8. In a decision written by Justice Carol A. Corrigan, the state's highest court said security guards who were obligated to stay in trailers on worksites in case they were needed were entitled to be paid for their time, even if they spent it watching TV, scouring the Internet or dozing. Lawyers said the decision has potential to have a wide impact, depending on the particular requirements an employer placed on workers while they were on call. The greater the control a private employer exerted on on-call workers, the more likely that employer would be obligated to pay for all employees' hours. Golden Gate University law professor Hina B. Shah, who sided with employees in the case, called the decision "a tremendous victory for California workers." It was the right decision. California workers should not be denied their rights by less protective federal law. These guards deserved to be paid for the service they provided and for which CPS collected millions of dollars. "This decision will ensure that absent an explicit exemption, on-call workers in any industry are entitled to payment for all of their time," said Ms. Shah, who represented nonprofit groups as friends of the court. She said the ruling would particularly affect domestic workers who live in homes while attending children or the elderly. Hospital and government workers would not be affected, she said. Jim Newman, general counsel for CPS Security Solutions Inc., the defendant in the case, agreed the impact would be "huge," potentially affecting live-in domestic workers, agricultural employees and private contractors who patrol parks, fight fires or clean up after environmental disasters. "The unintended consequences of this ruling are likely to be devastating for the state's economy, only now beginning to recover from the recent recession," Mr. Newman said. The ruling stemmed from class-action lawsuits filed by security guards employed by the Gardena-based firm, which has 1,500 employees. The company paid guards for the hours they patrolled a worksite but gave them no compensation for on-call time in company trailers unless the workers had to respond to an alarm or emergency or had asked to leave the premises for personal business and been denied a replacement, the court said. Workers received pay for the entire eight hours they were on call only if they worked at least three, the court said. The guards were under their employers' control because their movements were restricted, and they had to respond immediately if summoned, could not easily trade their on-call responsibilities and could not leave the worksite if another employee was unavailable to relieve them, the courts said. "CPS exerted control in a variety of other ways," Corrigan wrote. "Even if relieved, guards had to report where they were going, were subject to recall, and could be no more than 30 minutes away from the site. Restrictions were placed on nonemployee visitors, pets, and alcohol use. " The Jan. 8 ruling partially overturned an appeals court decision, which said the guards were covered by minimum wage and overtime rules but did not have to be paid for the time they slept. CPS said it was told 10 years ago by the state labor commissioner that its compensation package met the state law's requirements. The court acknowledged that the company had sought to comply with the law, but said it was the court's responsibility, not the commissioner's, to clarify the law. "We acknowledge CPS's efforts to ascertain whether its policy complied with California's labor laws and recognize the difficulty it and other employers can face in this regard," the court said. The court blamed a lack of state funding and urged the Legislature to address the problem. CVS PHARMACY: Has Invaded Class Members' Privacy, Action Claims --------------------------------------------------------------- Shani Marcus, individually and on behalf of all others similarly situated v. CVS Pharmacy, Inc., Case No. 3:15-cv-00259 (D.N.J., January 13, 2015), is brought against the Defendant for transmitting unsolicited commercial text messages to the Plaintiff on the cellular telephone, in violation of the Telephone Consumer Protection Act, thereby invading Plaintiff's privacy. CVS Pharmacy, Inc. owns and operates a chain of pharmacies in the United States. The Plaintiff is represented by: Ross H. Schmierer, Esq. PARIS ACKERMAN & SCHMIERER LLP 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-6667 Facsimile: (973) 629-1246 E-mail: ross@paslawfirm.com - and- Stephen Denittis, Esq. DENITTIS OSEFCHEN, P.C. 525 Route 73 North, Suite 410 Marlton, NJ 08053 Telephone: (856) 797-9951 E-mail: sdenittis@denittislaw.com DART CHEROKEE: Class Action Removal Pleading Standard Clarified --------------------------------------------------------------- Emily Stern, Esq. -- emily.stern@kattenlaw.com -- and Zachary D. Denver, Esq. -- zachary.denver@kattenlaw.com -- Zachary.Allen@aporter.com -- of Katten Muchin Rosenman LLP, in an article for The National Law Review, report that the US Supreme Court recently held that under the Class Action Fairness Act (CAFA), a defendant need not provide proof of the amount in controversy in its notice of removal to federal court. Only a plausible allegation is required that the amount in controversy meets or exceeds CAFA's $5 million jurisdictional requirement. This decision clarifies that there is no higher pleading standard to remove a class action under CAFA than in an individual action. Plaintiff, Brandon Owens, filed a class action in a Kansas state court alleging defendants, Dart Cherokee Basin Operating Company, LLC, and Cherokee Basin Pipeline, LLC (Dart), underpaid royalties owed to class members under oil and gas leases. The complaint did not allege a specific amount in controversy. Dart removed to federal court under CAFA, which permits federal jurisdiction for certain class actions if the amount in controversy exceeds $5 million. In its notice of removal, Dart stated the alleged underpayments totaled more than $8.2 million. Mr. Owens moved to remand to the state court arguing the removal was deficient because it included no evidence of Dart's $8.2 million estimate. The district court accepted Mr. Owens's argument, reading Tenth Circuit precedent to require proof of the amount in controversy in the notice of removal itself. The Tenth Circuit denied review. The Supreme Court held that evidence of the amount in controversy is not required because the removal statute expressly requires only a short plain statement of the grounds for removal. The majority reasoned that the defendant's pleading burden in a notice of removal is the same as the plaintiff's in its complaint, and that an amount-in-controversy allegation should be accepted if plausible, made in good faith and not contested by the plaintiff or the court. The Court also rejected any notion of a presumption against removal in CAFA cases. Thus, evidence establishing the amount in controversy is not required to remove under CAFA. Rather, evidentiary submissions will only be required post-removal if the plaintiff or the district court questions the defendant's allegations. The case was remanded for further proceedings. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. (2014). DEER CONSUMER: Faces Suit Alleging Violations of Securities Laws ---------------------------------------------------------------- Steven Bocker; Sadie LaBerge; and Jay Wise v. Deer Consumer Products, Inc.; Yuehua Xia; Zongshu Nie; Arnold Staloff; Qi Hua Xu; Yongmei Wang; Man Wai James Chiu; Walter Zhao; Edward Hua; Bill Ying He; Goldman Kurland Mohidin LLP; and Ahmed Mohidin, Case No. 2:15-cv-00046-JZB (D. Ariz., January 9, 2015) is a federal securities fraud action brought by the Plaintiffs for the Defendants' alleged violations of the Securities Exchange Act of 1934. The Plaintiffs purchased approximately $344,000 in Deer securities (30,050 shares) and sold $15,426 in Deer securities between March 2010 and May 2010. At the time of purchase, the Plaintiffs contend that they were unaware that the SEC reports filed by Deer and audited by GKM were false. Deer is a Nevada holding company that operates through subsidiaries in the People's Republic of China. The Individual Defendants are directors and officers of the Company. Accounting firm Goldman Kurland Mohidin, LLP, located in Encino California, became Deer's registered independent auditor on September 3, 2008. Ahmed Mohidin was the primary auditor for Deer; however, GKM conducted these audits through a Beijing-based audit firm. The Plaintiffs are represented by: Jonah A. Toleno, Esq. SHUSTAK & PARTNERS PC 401 W A St., Suite 2330 San Diego, CA 92101 Telephone: (619) 696-9500 Facsimile: (619) 615-5290 E-mail: jtoleno@shufirm.com DENTSPLY INT'L: Accused of Sexual Harassment and Retaliation ------------------------------------------------------------ Martha Sherman v. Dentsply International, Inc., Howard Bowne, Individually and in his Professional Capacity, and Maureen MacInnis, Individually and in her Professional Capacity, Case No. 1:15-cv-00112 (E.D.N.Y., January 9, 2015) is brought to seek redress for the Defendants' alleged egregious and repeated acts of gender discrimination, sexual harassment and retaliation committed against the Plaintiff during her employment. Ms. Sherman is a Hispanic female of Honduran national origin, and a resident of the County of Nassau, New York. DENTSPLY is a foreign corporation incorporated in the state of Delaware, with its principal place of business located in York, Pennsylvania. The Individual Defendants are officers or agents of the Company. DENTSPLY is a huge conglomerate, with approximately 12,000 employees, and is made up of seven different franchises: Orthodontics, Preventative, Restorative, Endodontics, Implants, Prosthetics and Education. The Plaintiff is represented by: Bennita L. Joseph, Esq. Jon L. Norinsberg, Esq. JOSEPH & NORINSBERG 225 Broadway, Suite 2700 New York, NY 10007 Telephone: (212) 257-6800 Facsimile: (212) 257-6845 E-mail: bennittaj@gmail.com norinsberg@aol.com DIGNITY HEALTH: Faces Class Action Over Tax Refund Claims --------------------------------------------------------- Legal Newsline reports that a class action lawsuit filed against a healthcare facility alleges the organization failed to file tax refund claims for its former employees after a court ruled the employees were exempt from the Federal Insurance Contribution Act (FICA). Eric Joseph Rodriguez, Patrick Fredenberg and Edward Gerace, Jr. filed the lawsuit Dec. 30 against Dignity Health and its subsidiary St. Joseph's Hospital and Medical Center. The lawsuit is seeking class status for medical residents who were at the healthcare facility between Jan. 1, 1996, and May 31, 2005. According to the lawsuit, Dignity withheld FICA taxes from the plaintiffs' paychecks and paid the employee share and employer share of the taxes. However, the hospitals argued that medical residents were students and should be exempt from the FICA taxes under the student exception in the IRS code. A circuit court ruled in favor of the hospitals in 1998, and the hospitals began filing for refund claims for the taxes paid by them and the medical residents. Dignity did not file the FICA claims for the plaintiffs, the lawsuit said. In 2010, the IRS officially acknowledged that medical residents were exempt from the FICA tax, the lawsuit said, and agreed to refund the taxes paid plus interest if hospitals applied for the refunds in a timely matter. "Plaintiffs have not received, and will not receive, FICA refunds because defendants failed to file refund claims and further failed to advise plaintiffs that defendants did not intend to file refund claims," the lawsuit said. "If plaintiffs would have known that defendants were not going to file refund claims, they could have filed their own individual claims. But by the time plaintiffs finally discovered defendants' failure, the time for plaintiffs to file their own individual claims with the IRS had expired." The lawsuit seeks more than $5 million in damages from Dignity. The plaintiffs are represented by Todd M. Schneider -- tschneider@schneiderwallace.com -- Michael C. McKay -- mmckay@schneiderwallace.com -- and Patrick J. Van Zanen -- pvanzanen@schneiderwallace.com -- of Schneider, Wallace, Cottrell, Konecky, Wotkyns, LLP. United States District Court for the Northern District of California case number 3:14-cv-05661. ELECSYS CORPORATION: Entered Into MOU to Settle Class Action ------------------------------------------------------------ Elecsys Corporation said in its Form 8-K Current Report filed with the Securities and Exchange Commission on January 15, 2015, that the Company and the other defendants entered into a memorandum of understanding regarding settlement of the consolidated class action complaint. On December 23, 2014, Elecsys Corporation ("Elecsys") filed with the Securities and Exchange Commission (the "SEC") a definitive proxy statement (the "Definitive Proxy Statement"), dated December 23, 2014, for the special meeting of Elecsys stockholders scheduled to be held on January 22, 2015 (the "Special Meeting") to approve the Agreement and Plan of Merger, dated as of November 4, 2014, by and among Elecsys, Lindsay Corporation ("Lindsay"), and Matterhorn Merger Sub ("Merger Sub"). As disclosed in the Definitive Proxy Statement, three purported class action complaints relating to the merger have been filed in District Court of Johnson County, Kansas on behalf of putative classes of Elecsys' public stockholders. The complaints name as defendants the members of the Elecsys Board of Directors, Elecsys, Lindsay and Merger Sub. The complaints generally allege that members of the Elecsys Board of Directors breached their fiduciary duties to Elecsys' stockholders by, among other things, omitting information alleged to be material to stockholders and that the other defendants aided and abetted that breach. The cases were subsequently consolidated by court order dated January 7, 2015. Elecsys believes these lawsuits are without merit and no further disclosure is required to supplement the Definitive Proxy Statement under any applicable rule, statute, regulation or law. However, to eliminate the burden, expense and uncertainties inherent in such litigation, on January 14, 2015, Elecsys and the defendants entered into a memorandum of understanding (the "Memorandum of Understanding") regarding settlement of the consolidated complaint. The Memorandum of Understanding outlines the terms of the parties' agreement in principle to settle and release all claims that were or could have been asserted in the consolidated complaint. In consideration for such settlement and release, the parties to the consolidated complaint have agreed that Elecsys will make certain supplemental disclosures to the Definitive Proxy Statement, all of which are set forth below. The Memorandum of Understanding contemplates that the parties will attempt in good faith to agree promptly upon a stipulation of settlement to be submitted to the District Court of Johnson County, Kansas for approval at the earliest practicable time. The stipulation of settlement will be subject to customary conditions, including confirmatory discovery and approval by the court, which will consider the fairness, reasonableness and adequacy of such settlement. Under the terms of the proposed settlement, following final approval by the court, the action will be dismissed with prejudice. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve the settlement even if the parties were to enter into such stipulation. In such event, or if the merger is not consummated for any reason, the proposed settlement will be null and void and of no force and effect. The settlement will not affect the timing of the Special Meeting or the amount of merger consideration to be paid to stockholders of Elecsys in the proposed merger. ELECTRO RENT: Recognized Other Income From $1.4MM Settlement ------------------------------------------------------------ Electro Rent Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 16, 2015, for the quarterly period ended November 30, 2014, that in the second quarter of fiscal 2015, the Company recognized other income from a $1.4 million settlement received as one of the plaintiffs in a class action lawsuit involving the purchase of certain computer products. ELECTRONIC ARTS: Loses Bid to Dismiss "Madden" Class Action ----------------------------------------------------------- Bryan Wiedey, writing for Sporting News, reports that the 9th U.S. Circuit Court of Appeals rejected Electronic Arts' attempt to end a lawsuit brought by three retired NFL players over the use of their likenesses in "Madden NFL" video games from 2001 to 2009. This is the same court that allowed the O'Bannon v. NCAA lawsuit to go forward and is now handling the NCAA's appeal of a judge's ruling in favor of the plaintiffs. Former Rams quarterback Vince Ferragamo, former Cowboys tight end Billy Joe Dupree and former Buccaneers running back Tony Davis are leading a class-action group of about 6,000 retired players. The "Madden" games included classic teams from the past, but the players' names weren't used, part of a strategy by the company to avoid paying the retired players a licensing fee. It wasn't hard to figure out that a jersey number and a profile of a certain player (position, skill set, skin tone, height, years in the league) represented a specific person who played on a particular team. EA claimed First Amendment protection related to free expression and artistic works, similar to what other forms of entertainment, such as movies and television, receive. The company essentially made the same argument in the O'Bannon case, which it lost in 2013. That same year however EA successfully had a similar case from Hall of Fame running back Jim Brown thrown out when the court ruled it as an "expressive work" and covered under the First Amendment. Consider the 2010 movie "The Social Network." Facebook founder Mark Zuckerberg was not involved in the making of the film or publication of the book from which it was adapted, yet his name, likeness and story were used and he had no legal recourse. EA also cited the Doctrine of Incidental Use, essentially arguing the use of the likenesses was minimal. The company argued that using the likenesses for historical teams was not central to the product, which focuses on the current-day NFL in features and marketing. "We hold EA's use of the former players' likenesses is not incidental, because it is central to EA's main commercial purpose -- to create a realistic virtual simulation of football games involving current and former NFL teams," Circuit Judge Raymond Fisher wrote in the court opinion. In 2009, the NFL Players Association settled with a class of retired players for $26 million after the group claimed the union did not seek out the best marketing deals possible and conspired with EA on a deal that did not maximize the players' value. E-mails that were entered as evidence showed the NFLPA advised EA on how to hide the identities of players on the rosters of classic teams. The current class-action case will not threaten the future of the "Madden" franchise as the O'Bannon case did the "NCAA" franchise and other potential college video games. The last "NCAA" game was released in 2013. "Madden" doesn't rely on creating players meant to represent real-life athletes while avoiding names and images. EA no longer is using arguably unauthorized likenesses, as it now secures licenses for each player individually. The legends are used primarily in the game's "Ultimate Team" mode. EA settled the O'Bannon lawsuit for $40 million, a relative drop in the bucket for a company that makes hundreds of millions each year on revenue-driven "Ultimate Team" modes within their sports games. A potential settlement here would likely be for far less and wouldn't include stipulations that would affect the development of the product going forward. FAMILY DOLLAR: Bid to Depose Plaintiff Over Evidence Nixed ---------------------------------------------------------- District Judge John A. Ross denied Defendant's "Motion for Leave to Depose Plaintiff on the Limited Issue of Recently Destroyed Evidence" in the case captioned REGINALD MOORE, individually and on behalf of all others similarly situated, Plaintiff, v. FAMILY DOLLAR STORES, INC., Defendant. No. 4:14-CV-1542-JAR (E.D. Mo.). Plaintiff Reginald Moore filed a putative class action against Defendant Family Dollar Stores, Inc. over unsolicited text messages sent without obtaining Moore's prior express written consent. Family Dollar seeks leave to take Moore's deposition to inquire about the circumstances surrounding the recent loss/destruction of his cell phone and determine what steps, if any, can be taken to mitigate the effects of lost evidence. In his Memorandum and Order denying Defendant's motion, District Judge Ross ruled that there's no urgency in taking Moore's deposition prior to the parties conferring as required by Fed.R.Civ.Proc. Rule 26(f). While Family Dollar suggested that Moore's immediate deposition was necessary to potentially recover information that has been lost or destroyed, it did not explain how such a deposition would serve to recover any such information. A copy of the Order dated November 13, 2014, is available at http://is.gd/22yhC6from Leagle.com. Reginald Moore, Plaintiff, represented by Christopher E. Roberts -- croberts@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC & David T. Butsch -- dbutsch@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC. Family Dollar Stores, Inc., Defendant, represented by James F. Monafo, HUSCH BLACKWELL, LLP & Matthew D. Knepper -- matt.knepper@huschblackwell.com -- HUSCH BLACKWELL, LLP. FLORIDA GAS: Court Grants Bid to Dismiss Punitive Damages Claim --------------------------------------------------------------- District Judge Carl J. Barbier granted Defendant's "Motion to Dismiss Punitive Damages Claim" in the case captioned THIGPEN v. FLORIDA GAS TRANSMISSION COMPANY, L.L.C. Civil Action No. 14-1415 (E.D. La.). Plaintiff Janie Thigpen alleged that the Defendant's 30-inch diameter section of the "Line 200" natural gas transmission pipeline ruptured and exploded on her property wherein the resulting fire damaged her home and nearby timberlands and forests. Plaintiff filed a Class Action Complaint individually and on behalf of all others similarly situated who have sustained any legally cognizable loss because of the rupture and whose real property located within a two-mile radius of the L200 natural gas pipeline owned by Florida Gas. She brought the suit against Florida Gas and the "XYZ INSURANCE COMPANY," a fictitious insurance company representing Florida Gas' liability insurance provider. Defendant Florida Gas filed the Motion to Dismiss Punitive Damages Claim arguing that Plaintiff has failed to state a claim for punitive damages and stressing that Louisiana law applies. District Judge Barbier ruled that Thigpen cannot state a claim for punitive damages under Louisiana law because no statute authorizes their imposition in the case. Judge Barbier agreed that Thigpen's damages occurred and shall be governed by Louisiana law. A copy of the Order dated November 19, 2014, is available at http://is.gd/546s1Kfrom Leagle.com. Janie Thigpen, Plaintiff, represented by D. Douglas Howard, Jr. -- dhoward@howardandreed.com -- Howard & Reed, Jonathan C. Pedersen, Howard & Reed, Shawn C. Reed -- sreed@howardandreed.com -- Howard & Reed & William Harrell Arata, Arata & Arata. Florida Gas Transmission Company, L.L.C., Defendant, represented by James K. Ordeneaux -- jordeneaux@pmpllp.com -- Plauche, Maselli, Parkerson, LLP, Godfrey Bruce Parkerson -- bparkerson@pmpllp.com -- Plauche, Maselli, Parkerson, LLP & Jessica Smith Savoie -- jsavoie@pmpllp.com -- Plauche, Maselli, Parkerson, LLP. FIVE BELOW: Robbins Geller Files Class Action in Pennsylvania ------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Jan. 9 disclosed that a class action has been commenced in the United States District Court for the Eastern District of Pennsylvania on behalf of purchasers of Five Below, Inc. common stock during the period between June 5, 2014 and December 4, 2014. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 9, 2015. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/fivebelow/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Five Below and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Five Below is a specialty discount retailer targeted at teens and pre-teens that prices all of its clothing and accessories at $5 or below. The complaint alleges that during the Class Period, the defendants made false and misleading statements or failed to disclose adverse information about Five Below's business and prospects. Specifically, the complaint alleges that while actively concealing from investors that the Company's two founders intended to step down from their roles as Chief Executive Officer ("CEO") and Chairman and name as CEO their newly hired President -- who was relatively new to Five Below and totally untested in the role of CEO at a publicly traded company -- Five Below raised its fiscal 2014 sales and earnings guidance twice, once at the start of the Class Period on June 5, 2014 and then again on September 10, 2014. With the price of Five Below common stock increasing on their misrepresentations about the Company's business metrics and financial prospects, reaching a Class Period high of nearly $48 in intraday trading, both of the Company's founders and its Chief Financial Officer cashed in, selling almost $30 million worth of their personally held shares at fraud-inflated prices. On December 4, 2014, Five Below disclosed that its sales growth had diminished and that it was reducing its annual sales and profit forecasts. That same day, the Company's two founders also announced their resignations as CEO and Chairman of Five Below -- disclosing that the newly hired President was taking over as CEO. On this news, the price of Five Below stock fell, closing down 21% from its Class Period high. Plaintiff seeks to recover damages on behalf of all purchasers of Five Below common stock during the Class Period. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. With 200 lawyers in ten offices, Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and international institutional investors in contingency-based securities and corporate litigation. The firm has obtained many of the largest securities class action recoveries in history, including the largest securities class action judgment. FORD MOTOR: Removes "Ellis" Suit to California District Court ------------------------------------------------------------- The class action lawsuit titled Michael Ellis v. Ford Motor Credit Company, LLC, Case No. BC565558, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:15- cv-00196-ODW-JPR to the proceeding. The lawsuit alleges violations of the Fair Credit Reporting Act. The Plaintiff is represented by: Adam Morris Rose, Esq. Robert L. Starr, Esq. LAW OFFICES OF ROBERT L. STARR 23277 Ventura Boulevard Woodland Hills, CA 91364 Telephone: (818) 225-9040 Facsimile: (818) 225-9042 E-mail: adam@starrlaw.com robert@starrlaw.com The Defendant is represented by: Austin Benjamin Kenney, Esq. Erik Wayne Kemp, Esq. Mark Joseph Kenney, Esq. SEVERSON AND WERSON APC One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 E-mail: abk@severson.com ek@severson.com mjk@severson.com GENTIVA HEALTH: Entered Into MOU to Settle Stockholder Litigation ----------------------------------------------------------------- Gentiva Health Services, Inc., said in its Form 8-K Current Report filed with the Securities and Exchange Commission on January 15, 2015, that Gentiva entered into a memorandum of understanding with the plaintiffs in In Re Gentiva Health Services, Inc. Stockholder Litigation to reach an agreement-in-principle to settle the litigation. On October 9, 2014, Kindred Healthcare, Inc., a Delaware corporation ("Kindred"), entered into an Agreement and Plan of Merger, as it may be amended from time to time, among Gentiva Health Services, Inc., a Delaware corporation ("Gentiva"), Kindred and Kindred Healthcare Development 2, Inc., a Delaware corporation ("merger sub") (the "Merger Agreement"), pursuant to which, merger sub will merge with and into Gentiva, with Gentiva surviving the merger as a wholly owned subsidiary of Kindred (the "merger"). As disclosed in the definitive proxy statement/prospectus, dated December 18, 2014 (the "Proxy Statement"), on October 20, 2014, Siew K. Stevens filed a purported stockholder class action complaint against Gentiva, the members of the Gentiva board of directors, Kindred, and merger sub in the Court of Chancery of the State of Delaware (the "Court"), captioned Stevens v. Gentiva Health Services, Inc., et al., C.A. No. 10261-VCG. On October 24, 2014, Milton Pfeiffer filed a purported stockholder class action complaint against Gentiva, the members of the Gentiva board of directors, Kindred and merger sub in the Court, captioned Pfeiffer v. Gentiva Health Services, Inc., et al., C.A. No. 10281- VCG. On November 7, 2014, Denise Kline filed a purported stockholder class action complaint against Gentiva, the members of the Gentiva board of directors, Kindred, and merger sub in the Court, captioned Kline v. Gentiva Health Services, Inc., et al., C.A. No. 10333-VCG. Plaintiff in each action alleged that the members of the Gentiva board of directors breached their fiduciary duties by (a) agreeing to the merger for inadequate consideration and (b) agreeing to lock up the merger with various deal protection provisions. Plaintiff in each action further alleged that Gentiva, Kindred, and merger sub aided and abetted these alleged breaches of fiduciary duties. Plaintiff in each action sought (among other things) to enjoin Gentiva and the Gentiva board of directors from consummating the merger, and requested attorneys' fees, costs and damages in an unspecified amount. Plaintiff in the Pfeiffer action also sought to rescind the merger to the extent already implemented and sought rescissory damages as an alternative to rescission. Gentiva, the members of the Gentiva board of directors, Kindred and merger sub each believe that all allegations contained in the complaint filed in each of the Stevens, Pfeiffer and Kline actions are without merit. On November 18, 2014, the Stevens, Pfeiffer and Kline lawsuits were consolidated for all purposes by the Court in an action captioned In re Gentiva Health Services Inc. Stockholder Litigation, Consolidated C.A. No. 10261-VCG ("In Re Gentiva Health Services, Inc. Stockholder Litigation"). On December 2, 2014, plaintiffs in the consolidated action filed a consolidated amended complaint against Gentiva, the members of the Gentiva board of directors, Kindred and merger sub in the Court alleging that the members of the Gentiva board of directors breached their fiduciary duties by (a) agreeing to the merger for inadequate consideration, (b) agreeing to lock up the merger with various deal protection provisions and (c) misrepresenting and failing to disclose in the Proxy Statement allegedly material information necessary for the Gentiva stockholders to cast an informed vote on the merger. The consolidated complaint further alleged that Gentiva aided and abetted the Gentiva board of directors alleged breaches of fiduciary duty. Plaintiffs in the consolidated action seek, among other things, to enjoin Gentiva and the Gentiva board of directors and request attorneys' fees, costs and damages in an unspecified amount. Each of Gentiva, the members of the Gentiva board of directors, Kindred and merger sub have denied and continue to deny the allegations in In Re Gentiva Health Services, Inc. Stockholder Litigation, and expressly maintain (a) that they diligently and scrupulously complied with their fiduciary, disclosure and other legal duties and (b) that they did not fail to include all material information relating to the merger in the Proxy Statement. However, on January 15, 2015, solely to eliminate the burden, expense and risk of further litigation, and without admitting any liability or wrongdoing, Gentiva entered into a memorandum of understanding with the plaintiffs in In Re Gentiva Health Services, Inc. Stockholder Litigation (the "Memorandum of Understanding") to reach an agreement-in-principle to settle the litigation. In consideration for the full settlement and dismissal with prejudice of In Re Gentiva Health Services, Inc. Stockholder Litigation and pursuant to the Memorandum of Understanding, Gentiva has agreed to make certain supplemental disclosures to the Proxy Statement. The proposed settlement is subject to, among other things, final approval of the Court. Under the terms of the proposed settlement, following final Court approval, the In Re Gentiva Health Services, Inc. Stockholder Litigation will be dismissed with prejudice. If the parties agree upon all other terms attendant to the stipulation of settlement, the parties will negotiate in good faith regarding the amount of the attorneys' fees, costs and expenses to be paid to plaintiffs' counsel in In Re Gentiva Health Services, Inc. Stockholders Litigation, subject to approval by the Court. Any failure by the Court to approve the amount of such fees shall not affect the validity of the terms of the stipulation of settlement. None of the stipulation of settlement or the Memorandum of Understanding or the implementation or effectuation thereof are conditioned on any award of attorneys' fees or expenses to plaintiffs' counsel. There can be no assurances, however, that the parties will ultimately enter into a stipulation of settlement or that the Court approval of the settlement will be obtained. In such event, the proposed settlement as contemplated by the Memorandum of Understanding will be null and void and of no force and effect. GEORGIA: Motion to Dismiss Same Sex Marriage Class Action Denied ---------------------------------------------------------------- Julie Wolfe, writing for WXIA, reports that a motion to dismiss a class action lawsuit on same sex marriage in Georgia was denied. It means the case, filed by several Georgia couples, will move forward. U.S. District Judge William S. Duffey Jr. disagreed with almost every argument put forth by the plaintiffs, but said he could not dismiss the case. The team of lawyers representing the gay couples considers the ruling a small victory. Tara Borelli, attorney with the Lambda Defense and Education Fund, points to the last several pages of the ruling addressing the state's argument that Georgia's prohibition on same-sex marriage is "rationally related to the State's interest in encouraging procreation and child welfare." The judge ruled those assertions "are not supported by facts." "It's a clear message to state officials they're going to have a very difficult time supporting their reasons for the same sex marriage ban," Ms. Borelli said. But much of Judge Duffy's ruling focused on the weakness of the Georgia case, including: When considering if same sex marriage is a fundamental right: "Plaintiffs do not, and cannot, claim that the right to marry a person of the same sex is 'deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty.'" On the argument that Georgia's ban on same-sex marriage deprives gay couples of equal protection under the law: "Georgia's marriage laws prevent a person from marrying someone of the same sex. They do not discriminate against men or women as a class." A spokesman for State Attorney General Sam Olens sent 11Alive's Julie Wolfe a reaction to the ruling: "We look forward to further clarification regarding the ability of states to decide these questions", and "As the issue remains pending, the office will continue to pursue its constitutional obligation to defend the laws as passed by the legislature and the citizens of the state of Georgia." Both sides are in a holding pattern to see what cases the Supreme Court will hear on same-sex marriage. On Jan. 9, the court was set decide which, if any, of the cases they'll hear. Cases from Michigan, Kentucky, Ohio and Tennessee are under consideration. Borelli expects the nation's highest court will consider at least one of the cases. Mr. Olens' office has similar expectations: "The United States Supreme Court has an opportunity to review this issue and will likely announce its intent in the coming weeks. There are other cases pending in front of the 11th Circuit that will provide a similar opportunity." So, what happens next with the Georgia class action lawsuit? Since the state filed a mission to dismiss, instead of a specific response to the plaintiff's complaints, that response is likely the next step for them. On the other side, Ms. Borelil says they're considering what legal steps are next for them to move the case forward. If the Supreme Court decides to consider one of the same-sex marriage cases, that decision would come by June of 2016. If it finds the ban on same-sex marriage is unconstitutional, Georgia's case would move forward with extra ammunition. If, on the other hand, the court upholds those bans, the case against Georgia would be weakened. If the Supreme Court decides not to hear any of the cases, Georgia's lawsuit will continue its glacial pace through the judicial process. GUCCI AMERICA: Removes "Manner" Suit to California District Court ----------------------------------------------------------------- The class action lawsuit styled Manner v. Gucci America, Inc., et al., Case No. 37-2014-00041395-CU-MC-CTL, was removed from the Superior Court of the State of California for the County of San Diego, Central Division, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:15-cv-00045-BAS-WVG to the proceeding. The Plaintiff seeks to certify a class "consisting of all persons from whom Defendants requested and recorded personal identification information in conjunction with a credit card transaction in California during the period of approximately December 8, 2013 through the date of trial (the "Class")." The Plaintiff contends that Gucci violated the California Civil Code by implementing an "Information Capture Policy," whereby it requests customers' personal information at the point-of-sale. The Plaintiff is represented by: Timothy G. Blood, Esq. Thomas J. O'Reardon II, Esq. Paula M. Roach, Esq. BLOOD HURST & O'REARDON, LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com toreardon@bholaw.com proach@bholaw.com - and - Todd D. Carpenter, Esq. CARPENTER LAW GROUP 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 756-6994 Facsimile: (619) 756-6991 E-mail: todd@carpenterlawyers.com The Defendants are represented by: Stephanie Sheridan, Esq. Meegan B. Brooks, Esq. SEDGWICK LLP 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: (415) 781-7900 Facsimile: (415) 781-2635 E-mail: stephanie.sheridan@sedgwicklaw.com meegan.brooks@sedgwicklaw.com HORVAT DESIGN: Faces "Flores" Suit Over Failure to Pay OT Wages --------------------------------------------------------------- Iran Flores, on behalf of himself, and all other plaintiffs similarly situated, known and unknown v. Horvat Design Group, Ltd, Daniel Horvat, and Rhonda Horvat, Case No. 1:15-cv-00365 (N.D. Ill., January 14, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. Horvat Design Group, Ltd. provides landscaping and maintenance services. The Plaintiff is represented by: Meghan Vanleuwen, Esq. FARMWORKER AND LANDSCAPER ADVOCACY PROJECT 33 N. State Street, Suite 900 Chicago, IL 60602 Telephone: (312) 853-1450 Facsimile: (312) 853-1459 E-mail: mvanleuwen@flapillinois.org - and - Meghan A. Vanleuwen, Esq. John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 840 Chicago, IL 60604 Telephone: (312) 853-1450 E-mail: mvanleuwen@billhornlaw.com jbillhorn@billhornlaw.com ISLAND HOSPITALITY: Sued in N.Y. Over Failure to Pay Overtime ------------------------------------------------------------- Maritza Torres Josephina Jurado Berty Reyes Luz Ortiz, and all others similarly situated v. Island Hospitality Management III, Inc. and Bruce Doe, Case No. 2:15-cv-00182 (E.D.N.Y., January 14, 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 third-party hotel management company. The Plaintiff is represented by: Raymond Nardo, Esq. 129 Third Street Mineola, NY 11501 Telephone: (516) 248-2121 Facsimile: (516) 742-7675 E-mail: raymondnardo@gmail.com JRK RESIDENTIAL: Court Certifies Background Check Class Action -------------------------------------------------------------- David M. Gettings and Bryan M. Haynes, writing for Consumer Financial Services Law Monitor, report that on October 31, a United States District Court certified a Fair Credit Reporting Act class action involving claims that an employer procured a background check through an improper disclosure form and took adverse action without following the proper adverse action protocol. Although the Court's decision did not address the merits of the case, the Court did address a number of arguments that frequently arise in FCRA class certification battles. In Milbourne v. JRK Residential America, LLC, the named plaintiff alleged that the defendant violated the FCRA by using a background check disclosure form that included a liability release and waiver. He argued that including this language prevented the form from consisting solely of the disclosure that a background check would be obtained. The named plaintiff also alleged that he was terminated from employment the day before he received a copy of his background check and a summary of his rights under the FCRA. According to the plaintiff, the timing of these notices violated the FCRA's adverse action protocol. The Court concluded that both the background check disclosure class and the adverse action class satisfied the requirements for Rule 23 certification. In reaching this conclusion, the Court addressed several arguments frequently raised by defendants when opposing class certification. Although the named plaintiff had a lengthy criminal record, the Court concluded that the age and circumstances surrounding the convictions did not undermine his adequacy as a class representative. The Court also concluded that if the named plaintiff had attempted to certify a class spanning the previous five years, the statute of limitations analysis would involve individualized inquiries that destroy the predominance requirement of Rule 23. The plaintiff, however, only sought certification of a two-year class. This mitigated the statute of limitations concerns for the Court. As to the remainder of the predominance inquiry, the Court concluded that the language of the disclosure form, the defendant's adverse action practices, and issues of willfulness were sufficiently common. With respect to the superiority requirement, the Court concluded that a class action was superior, despite the defendant's arguments that the statutory remedies were wholly disproportionate to any harm suffered by the class. Although defendants certainly possess a number of arguments against class certification in any FCRA class action, the Milbourne decision serves as an example of the hurdles defendants can face in opposition to class certification. KINROSS GOLD: Clarifies Leave Test in Securities Class Action ------------------------------------------------------------- Paul Davis and Miranda Lam, writing for Canadian Appeals Monitor, report that at the end of 2005, Ontario legislation came into effect which enabled aggrieved shareholders to bring a statutory action for secondary market misrepresentation against issuers and their directors and officers (and others) without the requirement to establish individual reliance. In order to commence such an action, however, a shareholder must first obtain leave from the Superior Court. Much of the jurisprudence in secondary market securities class actions has been devoted to examining the standard for leave. The Court of Appeal for Ontario recently clarified the leave test in Bayens v. Kinross Gold Corporation. There are two primary points to take away from this decision; the Court: confirmed the merits-based test for leave to proceed; and affirmed that Motion Judges should not certify common law misrepresentation claims if leave to proceed with the parallel statutory claim is denied. Background The plaintiff shareholders brought a common law claim against Kinross Gold Corp., a Toronto-based international mining company, and four of its officers, for alleged misrepresentations in connection with two of its gold mines in Africa. They asserted that Kinross overstated the value of the mines by failing to record a goodwill impairment charge on a timely basis. On the shareholders' motion for leave to proceed with the statutory claim, the Court refused to grant leave because there was no reasonable possibility that it could succeed. The Motions Judge came to this conclusion due to deficiencies in the expert accounting evidence on which the plaintiffs relied to argue Kinross should have recorded the impairment charge sooner. The Court also refused to certify the plaintiffs' statutory and common law claims under the Class Proceedings Act, 1992, because it had refused leave to proceed with the statutory claims. The Court of Appeal unanimously dismissed the plaintiffs' appeal from the refusals to grant leave and to certify their action. In doing so, Justice Cronk addressed the leave requirement, and the relationship between the leave to proceed analysis and the certification criteria. 1. The Leave Requirement: Just how low is the merits threshold? To grant leave to pursue a secondary market misrepresentation claim under Ontario's Securities Act, a court must be satisfied that: (a) the action is being brought in good faith; and (b) there is a reasonable possibility that the action will be resolved at trial in favor of the plaintiff. The second part -- the merits test -- was in issue in Kinross. Previous authority established that the leave test is a "relatively low threshold" and a "preliminary low-level merits based leave test". However, the Ontario Court of Appeal in Green had recently compared the merits test with the very low standard for striking out a claim as disclosing no reasonable cause of action, which is the same test applied under s. 5(1)(a) of the CPA. In Kinross, the same Court reiterated that although the court applies the same test for leave under the OSA and under s. 5(1)(a) of the CPA, the evidentiary record to which the test is applied is very different. Under s. 5(1)(a), the court assumes the facts in the Plaintiff's pleadings are true, but on the leave test, the court weighs the evidence filed by the investor and, if any, by the named Defendants and any cross-examination transcripts; from that evidence, it may draw reasonable inferences and make findings of fact. In short, Kinross clarified that while the standard for leave is not high, it is a true merits analysis, which critically assesses the evidentiary basis for the plaintiff's allegations. 2. Leave and Certification: Are they Related? In Kinross, the Court of Appeal also addressed the relationship between the leave test and the certification analysis under the CPA. Justice Cronk confirmed that when a court refuses leave to proceed with a statutory misrepresentation claim, that statutory claim also cannot meet the CPA certification criteria. However, the same is not true for its companion common law misrepresentation claim. Justice Cronk held that because the merits are generally irrelevant to certification, the refusal to grant leave because the statutory claim lacks merit will not automatically preclude certification of common law misrepresentation claims. Nonetheless, the refusal to grant leave to pursue a proposed OSA claim is relevant to the preferable procedure criterion of the certification analysis for the common law claims. The preferable procedure inquiry asks whether (1) a class action would be a fair, efficient and manageable way to prosecute the claims, and (2) a class action is preferable to other reasonably available means of pursuing the claims. Justice Cronk in Kinross explained that if a court certified common law misrepresentation claims after having refused leave to pursue statutory claims, the proceedings would effectively continue "against the backdrop of an existing judicial determination that the appellants' core claims of misrepresentation . . . hold no reasonable prospect for success at trial," which would be contrary to the first preferability inquiry. This reasoning applies to common law misrepresentation claims in any case in which the court refuses leave for the OSA claims, and virtually forecloses any possibility that a common law claim will be certified if statutory leave is refused. Conclusion The Court of Appeal for Ontario's analysis in Kinross is significant for issuers and their executives for two reasons. First, the Court confirmed that although the leave requirement to proceed with a secondary market misrepresentation claim sets a relatively low standard, it is appropriate to weigh the evidence and make findings in relation to the plaintiffs' expert evidence. In doing so, the Court clarified the comparison in Green between the OSA leave test and the test under s. 5(1)(a) of the CPA. The Court's reasoning Kinross, confirming that Motion Judges must conduct a merits test, is a welcome development for issuers after the same Court's comments in Green. Second, the Court held that a claim for common law misrepresentation could be certified under the CPA even if a court refuses the plaintiffs' leave to proceed with a companion statutory misrepresentation claim. However, the refusal to grant leave is relevant to the preferability criterion under the CPA and weighs powerfully against a class action's being the preferable means of resolving the claim. Indeed, in light of Justice Cronk comments, it appears very unlikely that a common law claim will be certified when leave to pursue a statutory claim has been refused. LIFETOUCH CHURCH: Sued in Pa. Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Chad Hedgcock, individually and on behalf of all others similarly situated v. Lifetouch Church Directories and Portraits, Inc., Case No. 2:15-cv-00156 (E.D. Pa., January 14, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants provide photographic services nationwide, including the photographing of church members, school children and others. The Plaintiff is represented by: Mark C. Cavanaugh, Esq. DUGAN, BRINKMANN, MAGINNIS AND PACE 1880 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103 E-mail: mccavanaugh@dbmplaw.com LINCARE INC: Blumenthal Nordrehaug Files Overtime Class Action -------------------------------------------------------------- Blumenthal, Nordrehaug & Bhowmik on Jan. 9 disclosed that on October 21, 2014, the San Francisco employment attorneys at Blumenthal, Nordrehaug & Bhowmik filed a class action lawsuit against Lincare, Inc. and Alpha Respiratory Inc. for allegedly failing to pay their California hourly employees the correct overtime wages and also allegedly failing to provide the proper meal and rest periods. The Lincare, Inc. class action, Case No. 34-2014-00170400 is currently pending in the Sacramento County Superior Court for the State of California. According to the class action lawsuit, the respiratory and chronic therapy services company allegedly failed to pay their California employees paid on an hourly basis the correct overtime wages. The California Labor Code requires employers to pay employees overtime at 1.5 times the employees' regular rate of pay when an employee works more than eight hours in a workday and/or in excess of forty hours in a workweek. The class action lawsuit also alleges that the employees were not provided with thirty minute uninterrupted meal breaks prior to their fifth hour of work as a result of the company allegedly failing to have a proper meal break policy. In addition, the Complaint also asserts a claim for alleged unpaid reporting time wages stemming from Defendant's on-call system. In California, if an employee is required to report to work for a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, the employee must be paid for two (2) hours at the employee's regular rate of pay. For more information about the class action lawsuit against Lincare Inc. and Alpha Respiratory Inc. call (866) 771-7099 to speak to an experienced San Francisco labor law lawyer today. Blumenthal, Nordrehaug & Bhowmik is a San Francisco employment law firm that represents employees in California who have been wrongfully terminated, denied proper overtime pay, denied payment of earned commission wages, and also employees who have been improperly denied their meal and rest breaks. LINCOLN PARK MOTEL: Judgment in "Zhao" Minimum Wage Suit Upheld --------------------------------------------------------------- Justice Michael Mink affirmed the trial court's judgment in the case captioned GARY ZHAO, Plaintiff and Respondent, v. LINCOLN PARK MOTEL, L.P., Defendant and Appellant. L.P. No. B252601 (Cal. App.). Plaintiff Gary Zhao is the resident manager of Defendant Lincoln Park Hotel L.P. who is responsible, among others, for the staffing the front desk for an eight-hour shift each day and for contacting repair and maintenance people, arranging for maids to clean the rooms, and generally being on call to respond to emergencies. Despite such, Zhao was paid only for the time when he was actually working. Zhao and four other plaintiffs filed a complaint against the Motel, claiming (1) wage and hour violations under the Labor Code (2) failure to pay minimum wage (3) failure to pay overtime pay (4) failure to pay wages in a timely manner (5) failure to provide accurate pay statements and (6) unfair competition under Business & Professions Code section 17200. Motel answered and maintained that it was not required to pay Zhou for the time that he sat at the front desk for eight-hour shifts but was not actually answering phones, responding to guest inquiries, or otherwise actively providing services to the Motel. After a bench trial, the court concluded that Zhou was entitled to wages for all of the time that he was required to sit at the front desk and entered judgment in favor of Zhao in the sum of $33,584. Hence, Motel appealed the trial court's judgment. In affirming the trial court's judgment, Justice Mink concurred with the trial court's conclusion that Zhou's compensation claim is factually distinguishable from the employee's claim in Brewer v. Patel (1993) 20 Cal.App.4th 1017. Justice Mink held that Zhou was only seeking compensation not for the time that he was on call but for the time he was performing his assigned duties of staffing the front desk over a specified eight-hour time period. Hence, Zhou is entitled to be paid for performing those assigned duties. In addition, substantial evidence supports the trial court's findings while the Motel offers no contradictory evidence on the subject, and in any event, the credibility of the witnesses is completely within the province of the trier of fact. A copy of the Order dated November 20, 2014, is available at http://is.gd/lkToWtfrom Leagle.com. Henry J. Josefsberg henryjjesq@gmail.com for Defendant Michael A. DesJardins -- md@desjardinslaw.com -- at DesJardins & Panitz for Plaintiff. MAG & SOK: "Ferreiro" Suit Seeks to Recover Unpaid Overtime Wages ----------------------------------------------------------------- Jean Ferreiro and other similarly situated individuals v. Mag & Sok, LLC., a Florida profit corporation, Maxence Magnou, David Sokoloff, and Ravy Truchot, Case No. 1:15-cv-20121 (S.D. Fla., January 13, 2015), seeks to recover unpaid overtime wages and damages in violation of the Fair Labor Standard Act. The Defendants own and operate a household goods and furniture storage company. 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 MASSACHUSETTS: Eases Rules for Homeless Families in Danvers ----------------------------------------------------------- Ethan Forman, writing for The Salem News, reports that until now, the dozens of homeless families living in Danvers motels under the state's Emergency Assistance Program were required to follow strict, statewide rules. No visitors were allowed in their rooms, not even from another family down the hall. Babysitters were forbidden, and families were subject to unannounced room checks. A recent legal settlement between the state and a nonprofit poverty law center has changed that, though advocates for these families say new rules will also make it easier for the state to kick them out of the hotels and the shelter system. Last month, the Massachusetts Law Reform Institute in Boston announced it had reached a settlement with the state Department of Housing and Community Development in a lawsuit that challenged "unequal and unfair rules applied to homeless families with children placed in motels through the state's Emergency Assistance system." The class action lawsuit, filed in the Western Massachusetts Housing Court, argued that the 1,600 families living in hotels faced stricter rules than those living in state-run shelters. Danvers has 174 families with 343 children spread among three motels as of Jan. 6, according to figures provided by the town. The town estimates that's about 10 percent of displaced families living in motels statewide. The new rules mean families will no longer be subject to unannounced inspections of their rooms; inspectors must knock and announce themselves first. Baby sitters will be allowed, and families living in motels can visit one another room-to-room. It also calls for a better system for approval of curfew adjustments and nights away from the shelter system, for work or family visitation. Outsiders visiting families in motels are still forbidden, said Ruth Bourquin, staff attorney for the Massachusetts Law Reform Institute. "Grandma can't spend an afternoon in the room taking care of the kids," Ms. Bourquin said. But now, hotel families can babysit each other's kids, with authorization. And the state must provide space for families to visit more privately with outside visitors. MEDTRONIC INC: Removes "Lawson" Suit to Tennessee District Court ---------------------------------------------------------------- The lawsuit entitled Lawson v. Medtronic, Inc., et al., Case No. CT-000093-15, was removed from the Circuit Court of Shelby County, Tennessee, for the Thirtieth Judicial District at Memphis to the U.S. District Court for the Western District of Tennessee. The Plaintiff alleges that he was injured by his physician's off- label use of the Defendants' Infuse Bone Graft/LT-CAGE Lumbar Tapered Fusion Device. The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MF GLOBAL: NY Judge Rules on Document Production Bid ---------------------------------------------------- Magistrate Judge James C. Francis, IV granted, in part, the request of defendants Bradley Abelow, Jon Corzine, David Dunne, Randy MacDonald, Vinay Mahajan, Edith O'Brien, David P. Bolger, Eileen S. Fusco, David Gelber, Martin J.G. Glynn, Edward L. Goldberg, David I. Schamis, Robert S. Sloan, and Henry Steenkamp to compel the Litigation Trustee of the MF Global Litigation Trust to search all of the as-yet-unproduced documents of MF Global Inc. and MF Global Holdings Ltd. and produce those responsive to the Individual Defendants' First Set of Requests for Production of Documents. JOSEPH DeANGELIS, et al., Plaintiffs, v. JON S. CORZINE, et al., Defendants. IN RE MF GLOBAL HOLDINGS LTD. INVESTMENT LITIGATION, NOS. 11 CIV. 7866 (VM) (JCF), 12 MD 2338 (S.D.N.Y.), is a consolidated action concerning the events surrounding the collapse of MF Global. The Litigation Trustee is the assignee of the rights and interests of the former Chapter 11 Trustee for MF Global, and has control over all of the company's documents that were in existence at the time of its bankruptcy on October 31, 2011. The Litigation Trustee has produced or agreed to produce millions of pages of documents to the Individual Defendants, including documents from 33 MF Global custodians who were identified by certain government agencies in connection with their investigations and by the plaintiffs in the putative securities class action that is part of the consolidated case. The Individual Defendants contend that this is insufficient and seek an order compelling the Litigation Trustee to search "all relevant document file systems" of MF Global, including "all shared drives, private shared files, custodial files and hard copy document sources" that might contain material responsive to the requests for production. Judge Francis directed the parties to meet and confer to agree on a reasonable list of additional custodians -- no more than six -- whose files will be produced. In addition, they are to confer to identify a reasonable subset of file systems likely to contain relevant documents, which the Litigation Trustee must produce. A copy of Judge Francis' Memorandum and Order dated January 15, 2015, is available at http://is.gd/Cf28wKfrom Leagle.com. MIA MAX: Faces "Juarez" Suit Over Failure to Pay Overtime Wages --------------------------------------------------------------- Valente Juarez, Daniel Reyes, Paredes Juarez de Jesus, Francisco Neri Silva, and Jose Luis Mendoza, individually and on behalf of others similarly situated v. Mia Max Jake Corp. d/b/a Tiny Thai, Thainy Restaurant LLC d/b/a M Thai, John Doe Corp. d/b/a Thainy, Michael Bronstein, and John Doe, Case No. 1:15-cv-00271 (S.D.N.Y., January 14, 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 chain of Thai restaurants in New York. The Plaintiff is represented by: Michael Antonio Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2020 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: faillace@employmentcompliance.com MONTREAL MAINE: Settles Lac-Megantic Rail Disaster Class Action --------------------------------------------------------------- Justin Giovannetti, writing for The Globe and Mail, reports that the families of those who died in the Lac-Megantic rail disaster will have access to a $200-million (U.S.) fund, according to details released on Jan. 9 from the bankruptcy case of the railroad responsible for the 2013 tragedy in eastern Quebec. The fund still needs to be approved by Canadian and American courts before the first checks are mailed to the families of the 47 people killed in the crash. A firefighter who died by suicide three months after the disaster was added to the list of victims. Money could flow as soon as this spring. "The families of the victims need to live with this disaster every day. Those in town have gone into debt to try to get back on our feet and rebuild. If this could let us start over our lives on the right foot, that would be great, but we haven't seen any money yet," Yannick Gagne, the owner of the Musi-Cafe bar where the majority of the victims died, told The Globe on Jan. 9. Mr. Gagne has rebuilt the Musi-Cafe, but he's still awaiting the help he says he was promised in the weeks after the disaster. Just after 1:00 a.m. on July 6, 2013, a train carrying 72 cars of crude oil from North Dakota to a refinery in New Brunswick careened while unmanned into the centre of town and derailed. A series of powerful explosions then levelled much of the city's once picturesque downtown. The settlement money announced on Jan. 9 was drawn not only from the liquidation of the Montreal, Maine & Atlantic Railway, the firm at the centre of the derailment, but also from a number of companies that extracted the oil, built the rail cars and leased them to shippers. According to Peter Flowers, a Chicago-based lawyer involved in a wrongful death lawsuit, talks are continuing about how much of the $200-million will go to the families of victims. "The money goes to the wrongful death victims -- a class-action filed in Canada -- those who suffered economic and emotional damages, and to the provincial and federal governments' environmental claims," Mr. Flowers said. Crews are still demolishing buildings in downtown Lac-Megantic and locals remain jittery about how much compensation they'll receive. Property owners downtown have received $37-million from the government. But victims of the disaster have so far received nothing from the companies. While bankruptcy trustee Robert Keach said he is seeking $500- million for the victims' fund before the Jan. 12 filing deadline, Mr. Flowers said the decision not to pay by three of the largest corporations linked to the disaster was responsible for the shortfall. "The main three bad actors, World Fuels, Canadian Pacific Railway and Irving Oil, aren't contributing a penny to this settlement. We're going to keep going after them very hard in American court," said Mr. Flowers. The three companies have so far denied any responsibility for the 2013 disaster. NATIONAL FOOTBALL: Appeal in Brain-Injury Class Suit Is Premature ----------------------------------------------------------------- Andrew Thompson at Courthouse News Service reports that the 3rd Circuit explained on Christmas Eve why it would not entertain an objection to the approval of an uncapped brain-injury settlement for former professional football players. More than five months have passed since U.S. District Judge Anita Brody of the Eastern District of Pennsylvania granted provisional class status to thousands of players who allegedly suffer from or are at risk for concussion-borne degenerative diseases because of their NFL careers. Seven retired players objected to the proposed uncapped settlement and class certification, but the 3rd Circuit refused on Sept. 11 to let these defectors file an interim appeal. On Dec. 24, a divided three-judge panel of the federal appeals court finally explained why, saying that jurisdiction is simply not available under Rule 23(f) of the Federal Rules of Civil Procedure. At issue is the fact that Judge Brody preliminarily approved the settlement class under 23(e) of the rather than 23(c), thereby not allowing review by an appellate court under Rule 23(f), according to the 49-page ruling. "There can be no application of hydraulic pressure where that has been no application of force at all," Judge Brooks Smith wrote for the majority. "Here, NFL defendants elected to negotiate a settlement agreement. The District Court's 'preliminary determination' regarding class certification did not so pressure NFL defendants that they were forced to settle the pending lawsuits." Thomas Ambro wrote in dissent that 23(f) would indeed allow for appellate review in this case, although he would still reject it because granting the petition would "result in inefficient (indeed, chaotic) piecemeal legislation." (Parentheses in original.) Judge Brody held a hearing in November to consider objections to the settlement, which focused on its exclusion of players suffering from illnesses not covered in the agreement and what they claim is a Byzantine process to make a claim. Petitioners Sean Morey; Alan Faneca; Ben Hamilton; Robert Royal; Roderick Cartwright; Jeff Rohrer; and Sean Considine are represented by: Michele D. Hangley, Esq. William T. Hangley, Esq. HANGLEY, ARONCHICK, SEAGL, PUDLIN & SCHILLER One Logan Square 18th & Cherry Streets, 27th Floor Philadelphia, PA 19103 Telephone: (215) 496-7061 Facsimile: (215) 568-0300 E-mail: mhangley@hangley.com whangley@hangley.com - and - Steven F. Molo, Esq. Thomas J. Wiegand, Esq. Martin Totaro, Esq. MOLO LAMKEN LLP 540 Madison Avenue New York, NY 10022 Telephone: (212) 607-8170 Facsimile: (646) 710-4950 E-mail: smolo@mololamken.com twiegand@mololamken.com mtotaro@mololamken.com - and - Eric R. Nitz, Esq. MOLO LAMKEN LLP The Watergate 600 New Hampshire Avenue, N.W. Washington, DC 20037 Telephone: (202) 556-2021 E-mail: enitz@mololamken.com mtotaro@mololamken.com - and - Linda S. Mullenix, Esq. 2305 Barton Creek Boulevard, Unit 2 Austin, TX 78735 E-mail: lmullenix@law.utexas.edu The Amicus Counsel for the Petitioners are: Alan B. Morrison, Esq. GEORGE WASHINGTON UNIVERSITY 2000 H Street, N.W. Washington, DC 20052 Telephone: (202) 994-7120 Facsimile: (202) 994-5157 E-mail: abmorrison@law.gwu.edu - and - Scott L. Nelson, Esq. Allison M. Zieve, Esq. PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, DC 20009 Telephone: (202) 588-1000 The Respondents are represented by: Bruce A. Birenboim, Esq. Brad S. Karp, Esq. Theodore V. Wells, Jr., Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3165 Facsimile: (212) 492-0165 E-mail: bbirenboim@paulweiss.com bkarp@paulweiss.com twells@paulweiss.com - and - Beth A. Wilkinson, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON 2001 K Street, N.W., Suite 600 Washington, DC 20006 Telephone: (202) 223-7340 Facsimile: (202) 204-7395 E-mail: bwilkinson@paulweiss.com - and - Dana B. Klinges, Esq. DUANE MORRIS 30 South 17th Street, United Plaza Philadelphia, PA 19103 Telephone: (215) 979-1143 Facsimile: (215) 405-2632 E-mail: dklinges@duanemorris.com - and - David R. Buchanan, Esq. Diogenes P. Kekatos, Esq. Christopher A. Seeger, Esq. SEEGER WEISS 77 Water Street, 26th Floor New York, NY 10005 Telephone: (212) 584-0700 Facsimile: (212) 584-0799 E-mail: dbuchanan@seegerweiss.com dkekatos@seegerweiss.com cseeger@seegerweiss.com - and - Samuel Issacharoff, Esq. NEW YORK UNIVERSITY LAW SCHOOL 40 Washington Square South, Room 411J New York, NY 10012 Telephone: (212) 998-6580 Facsimile: (212) 995-4590 E-mail: samuel.issacharoff@nyu.edu - and - David D. Langfitt, Esq. Gene Locks, Esq. LOCKS LAW FIRM 601 Walnut Street The Curtis Center, Suite 720 East Philadelphia, PA 19106 - and - Arnold Levin, Esq. LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (877) 882-1011 Facsimile: (215) 592-4663 E-mail: ALevin@LFSBLaw.com - and - Steven M. Marks, Esq. MITRANI, RYNOR, ADAMSKY & TOLAND 1200 Weston Road, Penthouse Weston, FL 33326 Telephone: (225) 250-1980 Facsimile: (225) 334-0750 - and - Dianne M. Nast, Esq. NASTLAW LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 - and - Stephen F. Rosenthal, Esq. PODHURST ORSECK 25 West Flager Street, Suite 800 Miami, FL 33130 Telephone: (305) 358-2800 E-mail: srosenthal@podhurst.com - and - Sol H. Weiss, Esq. ANAPOL SCHWARTZ 1710 Spruce Street Philadelphia, PA 19103 Telephone: (215) 735-2098 Facsimile: (215) 875-7701 E-mail: sweiss@anapolschwartz.com The appellate case is In re: National Football League Players Concussion Injury Litigation, Case No. 14-8103, in the United States Court of Appeals for the Third Circuit. The District Court case is In re: National Football League Players Concussion Injury Litigation, Case No. 2-14-cv-00029, in the U.S. District Court for the Eastern District of Pennsylvania. NAVISTAR INC: Faces Suit in Minnesota Alleging Product Liability ---------------------------------------------------------------- HD Transportation Inc. and Dennis Phelus, Individually and on Behalf of All Others Similarly Situated v. Navistar, Inc., Case No. 0:15-cv-00055-DWF-HB (D. Minn., January 9, 2015) asserts product liability claims. The Plaintiffs are represented by: Michael R. Bradley, Esq. BRADLEY HAGEN & GULLIKSON, LLC 1976 Wooddale Drive, Suite 3A St. Paul, MN 55125 Telephone: (651) 379-0900 Facsimile: (651) 379-0999 E-mail: bradley@bradleyguzzetta.com - and - Rebecca A. Peterson, Esq. ANDERSON HELGEN DAVIS & NISSEN, PA 150 S 5th Street, Suite 3100 Minneapolis, MN 55402 Telephone: (612) 435-6363 Facsimile: (612) 435-6379 E-mail: RAP@AndersonHelgen.com - and - Scott Moriarity, Esq. Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Ave. S, Suite 2200 Minneapolis, MN 55401-2179 Telephone: (612) 596-4068 Facsimile: (612) 339-0981 E-mail: samoriarity@locklaw.com rkshelquist@locklaw.com NEW ENGLAND COMPOUNDING: Court Limits Claims Against APAC & Chang ----------------------------------------------------------------- District Judge Rya W. Zobel granted, in part, and denied, in part, the request of Advanced Pain & Anesthesia Consultants, P.C. d/b/a APAC Centers for Pain Management ("APAC") and Randolph Y. Chang, M.D., for dismissal of all claims against them in the multidistrict litigation that stemmed from an outbreak of fungal meningitis caused by contaminated methylprednisolone acetate manufactured and sold by the New England Compounding Pharmacy, Inc., d/b/a New England Compounding Center. APAC and Chang sought dismissal of all claims against them in the so-called direct-filed actions for lack of personal jurisdiction, and in the direct-filed and Illinois-filed actions, for failure to state a claim under Fed. R. Civ. P. 12(b)(1) & (6). Judge Zobel, in a January 13, 2015 Memorandum of Decision available at http://is.gd/i7bCuafrom Leagle.com, ruled that: -- the direct-filed actions be consolidated into their corresponding Illinois-filed actions; -- Plaintiffs' claims for agency (Count X), civil conspiracy (Count XI), and battery (Count VII) are dismissed without prejudice per stipulation of the parties; -- Defendants' motion to dismiss is allowed as to plaintiffs' claim for strict product liability (Count IX) and denied as to all other claims. OCWEN FINANCIAL: Sued in Cal. Over Illegal Foreclosure Policies --------------------------------------------------------------- Karen Stone, on her own behalf and for all others similarly situated v. Ocwen Financial Corporation, et al., Case No. 2:15-cv- 00302 (C.D. Cal., January 14, 2015), arises out of the Defendants illegal, unfair, unlawful, and deceptive debt collection and foreclosure practices, specifically by collecting late charges that are not due from homeowners under mortgages, deeds of trust or loan notes. Ocwen Financial Corporation is a publicly held Florida financial services company that is based in West Palm Beach, Florida. The Plaintiff is represented by: Gretchen Carpenter, Esq. STRANGE & CARPENTER 12100 Wilshire Boulevard, Suite 1900 Los Angeles, CA 90025 Telephone: (310) 207-5055 Facsimile: (310) 826-3210 E-mail: gcarpenter@strangeandcarpenter.com - and - Gary E. Klein, Esq. Shennan Kavanagh, Esq. Kevin Costello, Esq. KLEIN KAVANAGH COSTELLO, LLP 85 Merrimac Street Boston, MA 02114 Telephone: (617) 357-5500 E-mail: klein@kkcllp.com costello@kkcllp.com kavanagh@kkcllp.com ON DEMAND SEDAN: Violates Fair Labor Standards Act, Suit Claims --------------------------------------------------------------- Randy Clayton and Emil Botezatu v. On Demand Sedan Services, Inc., Case No. 2:15-cv-00050-RCJ-VCF (D. Nev., January 9, 2015) alleges violations of the Fair Labor Standards Act. The Plaintiffs are represented by: Joshua D. Buck, Esq. Leah Lin Jones, Esq. Mark R. Thierman, Esq. THIERMAN LAW FIRM 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: josh@thiermanlaw.com leah@thiermanlaw.com laborlawyer@pacbell.net ONE PLUS: "Portillo" Suit Seeks to Recover Unpaid Wages & Damages ----------------------------------------------------------------- Rutilio Portillo, individually and in behalf of all other persons similarly situated v. One Plus One Two, Inc., d/b/a Sunny & Annie's Gourmet Deli and Nam Chulyum, jointly and severally, Case No. 1:15-cv-00277 (S.D.N.Y., January 14, 2015), is brought against the Defendants for failure to pay overtime wages, and liquidated damages, compensatory damages, pre-judgment and post-judgment interest, and attorneys' fees and costs, pursuant to the Fair Labor Standard Act. The Defendants own and operate Sunny and Annie's Gourmet Deli restaurant located at 94Avenue B, 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 ONE STOP: "Redouane" Suit Seeks to Recover Unpaid OT Wages ---------------------------------------------------------- Fouissi Redouane, and other similarly situated individuals v. One Stop Food Plus, LLC, Hammad Corporation d/b/a City Meat Market and Mohammad Bashir, Case No. 1:15-cv-20122 (S.D. Fla., January 13, 2015), seeks to recover unpaid overtime wages, liquidated damages, costs, and reasonable attorney's fees under the Fair Labor Standard Act. The Defendants own and operate a grocery store in Miami-Dade County, Florida. The Plaintiff is represented by: Ruben Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com ORBITAL SCIENCES: Entered Into MOU to Settle Merger Class Actions ----------------------------------------------------------------- Orbital Sciences Corporation said in its Form 8-K Current Report filed with the Securities and Exchange Commission on January 16, 2015, that on January 16, 2015, Orbital Sciences Corporation, a Delaware corporation ("Orbital" or the "Company"), entered into a memorandum of understanding (the "MOU") with plaintiffs and other named defendants regarding the settlement of a putative class action lawsuit filed in the Court of Chancery of the State of Delaware in response to the announcement of the execution of a Transaction Agreement (the "Transaction Agreement"), dated as of April 28, 2014, among Orbital, Alliant Techsystems Inc., a Delaware corporation ("ATK"), Vista Outdoor Inc. (formerly Vista SpinCo Inc.), a Delaware corporation ("Vista Outdoor") and Vista Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of ATK ("Merger Sub"), pursuant to which, among other things, Merger Sub will be merged with and into Orbital, with Orbital continuing as the surviving corporation and a wholly-owned subsidiary of ATK (the "Merger"). As described in greater detail in the joint proxy statement/prospectus (the "Joint Proxy Statement/ Prospectus") dated December 17, 2014 and forming a part of the registration statement on Form S-4 filed with the Securities and Exchange Commission (the "SEC") by ATK and declared effective by the SEC on December 17, 2014, purported stockholders of Orbital filed complaints styled as class action lawsuits in the Court of Chancery of the State of Delaware (the "Court of Chancery"). The lawsuits were consolidated by the Court of Chancery in Delaware under the caption In Re Orbital Sciences Corporation Stockholder Litigation, Consolidated C.A. No. 9635-VCN (the "Consolidated Lawsuit"). Under the terms of the MOU, Orbital, ATK, the other named defendants and the plaintiffs have agreed to settle the Consolidated Lawsuit and release the defendants from all claims relating to the Merger, subject to court approval. If the court approves the settlement contemplated by the MOU, the Consolidated Lawsuit will be dismissed with prejudice. Pursuant to the terms of the MOU, Orbital and ATK have agreed to make available additional information to Orbital's stockholders. The additional information is contained below and should be read in conjunction with the Joint Proxy Statement/Prospectus, which should be read in its entirety. In addition, the defendants in the Consolidated Lawsuit have agreed to negotiate in good faith with plaintiffs' counsel regarding an appropriate amount of fees, costs and expenses to be paid to plaintiffs' counsel by Orbital or its successor. The settlement will not affect the merger consideration to be paid to Orbital's stockholders in connection with the Merger or the timing of the special meeting of Orbital's stockholders, scheduled for January 27, 2014 in Dulles, Virginia, to, among other things, consider and vote on a proposal to adopt the Transaction Agreement. Orbital, ATK and the other defendants deny all of the allegations in the Consolidated Lawsuit and believe the disclosures in the Joint Proxy Statement/Prospectus are adequate under the law. Nevertheless, Orbital, ATK and the other defendants have agreed to settle the Consolidated Lawsuit in order to avoid the distraction and expense of litigation. PACIFIC BELL: Meal Break Plaintiffs Lose Class Certification Bid ---------------------------------------------------------------- Joshua D. Kienitz, Esq., and Aurelio J. Perez, Esq., of Littler report that an employer-friendly decision rings in the New Year in California. In Koval v. Pacific Bell Telephone Co., plaintiffs alleged "systematic company guidelines" restricted employee activities during meal and rest breaks and "prevented employees from fully realizing the [meal and rest] breaks to which they were entitled." Following Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), the trial court held the mere existence of a uniform policy does not mandate class certification, concluding that variations in the employer's application of policy created "serious doubt as to whether the rules were consistently applied so as to allow adjudication of the liability issues on a class- wide basis." The California Court of Appeal affirmed, in a published decision. The plaintiffs in the case sought to certify a class of approximately 6,700 current and former field technicians employed at company locations throughout California. Plaintiffs alleged the company failed to relinquish control over their activities during meal and rest breaks and thus violated California law. They argued that, collectively, an array of more than a dozen employer manuals contained "systematic company guidelines" prohibiting employees from doing any of the following during breaks: meeting up with their colleagues; going home; leaving their work vehicles; riding in other vehicles; sleeping in their work vehicles, or driving their work vehicles outside normal work routes to get a meal. Further, a company representative had testified that employees were "expected to adhere to the expectations" contained in a number of the manuals and that failure to do so could result in disciplinary action. Opposing certification, the company submitted evidence that the manner in which supervisors enforced and/or orally conveyed the information in the written policies was highly variable, and therefore "determining whether the policies were so restrictive as to have transformed break time into work time would necessitate individualized inquires." The trial court denied certification, reasoning: "What is important, and ultimately fatal to Plaintiffs' bid for class certification, is the manner in which the six rules reflected in the written materials were applied, and that in turn begins with the question of how the rules were communicated." On appeal, the court first recognized that, under Brinker, an employer is only obligated to make uninterrupted meal periods and rest breaks available to its employees, "but is not obligated to ensure they are taken." The court then emphasized Brinker's recognition that claims may be suitable for class treatment where (i) a uniform policy (ii) is consistently applied to a group of employees. On this basis, the appellate court rejected plaintiffs' argument that, under Brinker, plaintiffs did not need to "introduce facts showing both uniform policies and consistent application of those policies." The court also rejected plaintiffs' argument that the trial court had committed legal error by assessing "how the allegedly unlawful policies were implemented." The failure of plaintiffs to demonstrate that the allegedly unlawful policies were consistently applied, the appellate court reasoned, "create[d] a shifting kaleidoscope of liability determinations that render this case unsuitable for class action treatment." Koval joins post-Brinker state court decisions such as Dailey v. Sears, Roebuck & Co. 214 Cal. App. 4th 974, 1002 (2013)("the absence of a formal written policy explaining [employees'] rights to meal and rest periods does not necessarily imply the existence of a uniform policy or widespread practice of either depriving these employees of meal and rest periods or requiring them to work during those periods") and In re Walgreen Co. Overtime Cases 231 Cal. App. 4th 437, 443(2014) ("under the [Brinker] make available standard you additionally must ask why the worker missed the break before you can determine whether the employer is liable") in requiring more than a uniform policy to support class certification. These cases strengthen employers' hand in opposing class certification where the plaintiff cannot establish both (i) the existence of a uniform unlawful policy and (ii) the consistent application of that policy to a putative class. PILOT FLYING J: Judge Seeks More Details on Business Arrangements ----------------------------------------------------------------- Bruce Schreiner, writing for Charlotte Observer, reports that federal judge said on Jan. 9 he wants more information about business arrangements between the truck-stop company owned by Cleveland Browns owner Jimmy Haslam and Tennessee Gov. Bill Haslam and several trucking companies that claim they were cheated by the retail giant. U.S. District Judge Amul Thapar asked attorneys to provide more details about what Pilot Flying J had promised the trucking companies. The request came as attorneys wrangled over Pilot's motion asking the judge to dismiss the lawsuits -- the latest round in the retailer's legal woes. The trucking companies claim they were cheated out of fuel rebates and discounts promised by Pilot Flying J, the nation's largest diesel retailer with annual revenues of about $30 billion. The Haslams were not mentioned during the two-hour hearing, which drew a dozen attorneys to the Kentucky courtroom. Leonard Leicht, an attorney for National Retail Transportation and Keystone Freight, said afterward that the additional information requested by the judge would shed more light on the scope of the scheme. "We look forward to Pilot actually coming clean and giving us the exact information, which will enable us to calculate damages based on the actual cost of the fuel," Mr. Leicht said. Pilot attorney Glenn Kurtz declined to comment afterward. During the hearing, he disputed plaintiffs' claims that Pilot had committed fraud. Arguments by the trucking companies that they didn't receive what they were entitled to under their contracts with Pilot are "not enough" to justify the fraud claims, Kurtz said. The trucking companies' allegations against Pilot include breach of contract and fraudulent misrepresentation. Another plaintiffs' attorney, Erik Clark, said Pilot never intended to keep the promises it made in the contracts, which would constitute fraud. Jimmy Haslam, Pilot's CEO, has said he had no knowledge of the scheme. Bill Haslam holds an undisclosed ownership share in the company but has said he is not involved in Pilot's day-to-day operations. Ten former employees have pleaded guilty to a scheme to defraud customers since federal agents raided Pilot's headquarters in Knoxville, Tennessee, in April 2013. Jimmy Haslam has not been charged with any crime. Pilot agreed to pay $92 million in fines and accept responsibility for the criminal conduct of its employees while the government agreed not to prosecute the company. The agreement required Pilot to comply with several conditions, including cooperation in the investigation of people who may have been involved in the fraud. It did not protect any individual at Pilot from prosecution. Most of the lawsuits against Pilot were resolved by a class-action settlement, in which Pilot agreed to pay out nearly $85 million to 5,500 customers. But the trucking companies involved in Friday's court hearing opted out of the settlement to pursue their own suits. "The class-action settlement grossly undersold the amount of the damages," Mr. Leicht said after the Jan. 9 hearing. The remaining lawsuits were consolidated in U.S. District Court for Kentucky's eastern district. The judge did not indicate how soon he would rule on the dismissal motion. An FBI special agent said in an affidavit filed in federal court that sales team members reduced the amount of money that was due to trucking company customers they considered too unsophisticated to notice. Court records said the scheme lasted from at least 2007 until the FBI raid in April 2013. PINGTAN MARINE: Sued in N.Y. Over Misleading Financial Reports -------------------------------------------------------------- Paul Fila, individually and on behalf of all others similarly situated v. Pingtan Marine Enterprise Ltd., Xinrong Zhuo, Roy Yu, Jin Shi, and Xuesong Song, Case No. 1:15-cv-00267 (S.D.N.Y., January 14, 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. Pingtan Marine Enterprise Ltd. is an ocean fishing business that owns or operates vessels in the Indian Exclusive Economic Zone and the Arafura Sea of Indonesia. The Individual Defendants are officers and directors of Pingtan Marine Enterprise Ltd. The Plaintiff is represented by: Timothy William Brown, Esq. THE BROWN LAW FIRM 127A Cove Road Oyster Bay Cove, NY 11771 Telephone: (516) 922-5427 E-mail: tbrown@thebrownlawfirm.net RECORDS IMAGING: Insurer's Suit Stayed Pending Class Action ----------------------------------------------------------- District Judge John T. Copenhaver granted Defendant's Motion to Dismiss and/or Strike in the case captioned WESTFIELD INSURANCE CO., Plaintiff, v. RECORDS IMAGING & STORAGE , INC. and CAMDEN- CLARK MEMORIAL HOSPITAL CORP., and JAMES F. SMITH and JOHN E. SMITH as co-executors and on behalf of the estate of Donald E. Smith, Defendants, Civil Action No. 2:14-18854 (S.D. W.Va.). The estate of Donald E. Smith and other similarly situated individuals filed a state-court class action against Defendants RIS and Camden-Clark Memorial Hospital asserting that CCMH and RIS charged unreasonable fees to produce copies of patient's medical records. RIS presented a request to Westfield Insurance Co. for a defense to the suit and indemnification while CCMH demanded a defense and indemnification from RIS on the basis of their agreement. Westfield commenced an action seeking a declaration that it is not required to defend or indemnify RIS or CCMH, and maintains that CCMH is not a name insured under their policy with RIS, and does not qualify as an additional insured. RIS moved to dismiss or stay the declaratory judgment action asserting its intention to file a third-party complaint for declaratory relief against Westfield and Philadelphia Indemnity Insurance Company. Also, RIS argued that the court has the discretion to dismiss or stay the case if a parallel state court action would provide, among other things, a more convenient forum for resolving the pending coverage dispute. In his Memorandum Opinion and Order granting the motion to dismiss and/or stay, Judge Copenhaver, Jr. ruled that the declaratory judgment action is stayed pending the resolution of the parallel suit in the Circuit Court of Wood County. The judge said that where two parallel suits are pending in state and federal court, the first suit should have priority, absent the showing of balance of convenience in favor of the second action. In addition, Judge Copenhaver, Jr. said the state court can more completely, comprehensively, conveniently resolve and appropriately decide the issues raised in the case. A copy of the Memorandum Opinion and Order dated November 13, 2014, is available at bit.ly/1vovnpU from Leagle.com. Westfield Insurance Company, an Ohio corporation, Plaintiff, represented by Brent K. Kesner, KESNER & KESNER & Tanya M. Kesner, KESNER & KESNER. Records Imaging & Storage, Inc., Defendant, represented by Jeffrey A. Holmstrand -- jholmstrand@fsblaw.com -- FLAHERTY SENSABAUGH & BONASSO. Camden-Clark Memorial Hospital Corporation, Defendant, represented by Laurie K. Miller, JACKSON KELLY & Thomas J. Hurney, Jr., JACKSON KELLY. James F. Smith, and, Defendant, represented by Christopher J. Regan, BORDAS & BORDAS. John E. Smith, as Co-Executors and on Behalf of the Estate of, Defendant, represented by Christopher J. Regan, BORDAS & BORDAS. Donald E. Smith, Defendant, represented by Christopher J. Regan, BORDAS & BORDAS. RED ONE: "Gonzalez" Suit Seeks to Recover Unpaid Wages & Damages ---------------------------------------------------------------- Daniel Gonzalez, and other similarly situated individuals v. Red One Foods, LLC., a Florida Limited Liability Corporation, Andres H. Amorosi, and Maria Amorosi, Case No. 1:15-cv-20132 (S.D. Fla., January 14, 2015), seeks to recover unpaid overtime wages, liquidated damages, costs, and reasonable attorney's fees under the Fair Labor Standard Act. The Defendants own and operate a cannery and co-packer company that specializes in salsas and hot sauces. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre 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 REVERE PLASTICS: Sued in Ind. Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Logan C. Bazzell-Ferree, individually and on behalf of others similarly situated v. Revere Plastics Systems, LLC, Case No. 4:15- cv-00008 (S.D. Ind., January 13, 2015), is brought against the Defendant for failure to pay overtime wages for work performed in excess of 40 hours per week. Revere Plastics Systems, LLC engages in the design, development, manufacture, and supply of custom plastic injection molded parts primarily to appliance and automotive components industries in North America. The Plaintiff is represented by: Robert J. Hunt, Esq. GIBBONS LEGAL GROUP, PC 3091 E. 98th Street, Suite 280 Indianapolis, IN 46280 Telephone: (317) 706-1100 Facsimile: (317) 623-8503 E-mail: rob@gibbonslegalgroup.com RICHARD SOKOLOFF: Summary Judgment Bids in "Luftig" Case Denied --------------------------------------------------------------- Lenox Hill Hospital electronically sent on May 29, 2013, a file to Richard Sokoloff containing details of a debt allegedly owed to Lenox Hill by Maurice Luftig's daughter. On May 30, 2013, Mr. Sokoloff sent a debt collection letter to Mr. Luftig advising him that he was liable to Lenox Hill for his daughter's debt. The letter was sent on attorney letterhead and signed by "Richard Sokoloff, Esq." Mr. Luftig brings a putative class action against Mr. Sokoloff, alleging that Sokoloff violated the Fair Debt Collection Practices Act (FDCPA) when he sent the debt collection letter. Both parties moved for summary judgment. Senior District Judge Frederic Block, in a memorandum and order entered January 12, 2015, a copy of which is available at http://is.gd/PTOfFVfrom Leagle.com, denied both motions saying factual questions remain as to (1) how much time Sokoloff spent reviewing the file and what exactly that review entailed; (2) whether Sokoloff exercised any legal judgment before sending the letter; and (3) the nature of Sokoloff's relationship with Lenox Hill Hospital, and whether that relationship obviated the need to conduct a more detailed review of the file provided by Lenox Hill. The case is MAURICE LUFTIG, individually and on behalf of all others similarly situated, Plaintiff, v. RICHARD SOKOLOFF, Defendant, NO. 13-CV-4313 (FB) (VVP), (E.D. N.Y.). MICHAEL KORSINSKY -- mk@kklawfirm.com -- Korsinsky & Klein LLP, Brooklyn, NY, for the Plaintiff. ROBERT L. ARLEO, New York, NY, for the Defendant. SAFEWAY INC: Class Claims Nixed in "Richards" All Natural Case -------------------------------------------------------------- District Judge James Donato dismissed without prejudice the putative class claims in the case captioned RYAN RICHARDS, Plaintiff, v. SAFEWAY INC., Defendant, CASE NO. 13-CV-04317-JD, (N.D. Cal.) on January 12, 2015. Ryan Richards filed this putative class action alleging that defendant Safeway deceptively advertised certain products as "100% Natural" when they allegedly contained a synthetic ingredient known as sodium acid pyrophosphate (SAPP). On December 12, 2014, the parties filed a stipulation seeking dismissal of the case with prejudice. The Court ordered the parties to submit a statement regarding the fairness of the settlement to the absent putative class members. Although the parties did not provide the Court with the proposed settlement agreement, the parties have represented to the Court that under the settlement, Mr. Richards would voluntarily dismiss all his claims against Safeway with prejudice, while the putative class claims would be dismissed without prejudice. The Court therefore dismisses Mr. Richards' individual claims with prejudice and the putative class claims without prejudice. The clerk was directed to enter final judgment. A copy of the Court's ruling is available at http://is.gd/sWq1PI from Leagle.com. Ryan Richards, Plaintiff, represented by Molly Ann DeSario -- mdesario@scalaw.com -- Scott Cole & Associates, APC, Stephen Noel Ilg -- silg@scalaw.com -- Scott Cole & Associates, APC & Scott Edward Cole -- scole@scalaw.com -- Scott Cole & Associates, APC. Safeway Inc., Defendant, represented by Monty Agarwal -- Monty.Agarwal@aporter.com -- Arnold & Porter & Jonathan L. Koenig, Arnold and Porter LLP. SANDRIDGE ENERGY: Pomerantz LLP Files Class Action in Oklahoma -------------------------------------------------------------- Pomerantz LLP on Jan. 10 disclosed that it has filed a class action lawsuit against SandRidge Energy, Inc. and certain of its officers. The class action, filed in United States District Court, Western District of Oklahoma, and docketed under 14-cv-01256, is on behalf of a class consisting of all persons or entities who purchased SandRidge securities between February 28, 2013 and November 3, 2014, inclusive. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. If you are a shareholder who purchased SandRidge securities during the Class Period, you have until January 12, 2015 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. SandRidge, together with its subsidiaries, explores and produces oil and natural gas properties primarily in the Mid-Continent region of the United States. As of December 31, 2013, the Company had 4,388 gross producing wells; approximately 3,624,000 gross total acres under lease; and 30 rigs drilling in the Mid- Continent, as well as estimated proved reserves of 433.4 million barrels of oil equivalent. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) SandRidge was improperly accounting for penalties owed to Occidental Petroleum Corp. ("Occidental") under a Treatment Agreement on an annual basis when it was required to do so on a quarterly basis; (2) SandRidge's quarterly and annual financial and operating results for the periods ending December 31, 2012 through June 30, 2014 were overstated and required restatement; (3) defendant Ward engaged in improper related party transactions; (4) SandRidge lacked proper internal controls over financial reporting; and (5) as a result of the foregoing, the Company's financial statements were materially false and misleading at all relevant times. On November 4, 2014, the Company filed a Form 8-K with the SEC, announcing that its previously issued financial statements should no longer be relied upon because the Company was improperly accounting for penalties under the Treating Agreement with Occidental. On this news, shares of SandRidge declined $0.25 per share, nearly 6.5%, to close on November 4, 2014, at $3.56 per share, on unusually heavy volume. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. SANTANDER DRIVE: Plaintiffs Dismiss State Court Complaint --------------------------------------------------------- Santander Drive Auto Receivables Trust 2010-3 said in its Form 10-D Report filed with the Securities and Exchange Commission on January 15, 2015, that U.S. Bank, National Associations, as the indenture trustee, has provided the following information for inclusion in the form 10-D: In June 2014, a civil complaint was filed in the Supreme Court of the State of New York, New York County, by a group of institutional investors against U.S. Bank National Association ("U.S. Bank"), in its capacity as trustee or successor trustee (as the case may be) under certain residential mortgage backed securities ("RMBS") trusts. The plaintiffs are investment funds formed by nine investment advisors (AEGON, BlackRock, Brookfield, DZ Bank, Kore, PIMCO, Prudential, Sealink and TIAA) that purport to be bringing suit derivatively on behalf of 841 RMBS trusts that issued $771 billion in original principal amount of securities between 2004 and 2008. According to the plaintiffs, cumulative losses for these RMBS trusts equal $92.4 billion as of the date of the complaint. The complaint is one of six similar complaints filed against RMBS trustees (Deutsche Bank, Citibank, HSBC, Bank of New York Mellon and Wells Fargo) by certain of these plaintiffs. The complaint against U.S. Bank alleges the trustee caused losses to investors as a result of alleged failures by the sponsors, mortgage loan sellers and servicers for these RMBS trusts and asserts causes of action based upon the trustee's purported failure to enforce repurchase obligations of mortgage loan sellers for alleged breaches of representations and warranties concerning loan quality. The complaint also asserts that the trustee failed to notify securityholders of purported events of default allegedly caused by breaches by mortgage loan servicers and that the trustee purportedly failed to abide by appropriate standards of care following events of default. Relief sought includes money damages in an unspecified amount and equitable relief. In November 2014, the plaintiffs sought leave to voluntarily dismiss their original state court complaint and filed a substantially similar complaint in the United States District Court for the Southern District of New York. The federal civil complaint added a class action allegation and a change in the total number of named trusts to 843 RMBS trusts. In December 2014, the plaintiffs' motion to voluntarily dismiss their original state court complaint was granted. Other cases alleging similar causes of action have previously been filed against U.S. Bank and other trustees by RMBS investors in other transactions. There can be no assurances as to the outcome of the litigation, or the possible impact of the litigation on the trustee or the RMBS trusts. However, U.S. Bank denies liability and believes that it has performed its obligations under the RMBS trusts in good faith, that its actions were not the cause of losses to investors and that it has meritorious defenses, and it intends to contest the plaintiffs' claims vigorously." SANTANDER DRIVE: DBTCA Reviewing Newly Filed Pleadings ------------------------------------------------------ Santander Drive Auto Receivables Trust 2011-1 said in its Form 10-D Report filed with the Securities and Exchange Commission on January 15, 2015, that Deutsche Bank Trust Company Americas, as indenture trustee, has provided the following information for inclusion in this form 10-D: DBTCA has been named as a defendant in civil litigation concerning its role as trustee of certain residential mortgage backed securities ("RMBS") trusts. On June 18, 2014, a group of investors ("Plaintiff Investors") filed a civil action against DBTCA and Deutsche Bank National Trust Company ("DBNTC") in New York State Supreme Court purportedly on behalf of and for the benefit of 544 private-label RMBS trusts asserting claims for alleged violations of the Trust Indenture Act of 1939, breach of contract, breach of fiduciary duty and negligence based on DBTCA's and DBNTC's alleged failure to perform their obligations as trustees for the trusts (the "NY Derivative Action"). An amended complaint was filed on July 16, 2014, adding Plaintiff Investors and RMBS trusts to the NY Derivative Action. On November 24, 2014, the Plaintiff Investors moved to voluntarily dismiss the NY Derivative Action without prejudice. Also on November 24, 2014, substantially the same group of Plaintiff Investors filed a civil action against DBTCA and DBNTC in the United States District Court for the Southern District of New York (the "SDNY Action"), making substantially the same allegations as the New York Derivative Action with respect to 564 RMBS trusts (542 of which were at issue in the NY Derivative Action). The SDNY Action is styled both as a derivative action on behalf of the named RMBS Trusts and, in the alternative, as a putative class action on behalf of holders of RMBS representing interests in those RMBS trusts. DBTCA is reviewing these newly-filed pleadings. DBTCA has no pending legal proceedings (including, based on DBTCA's preliminary evaluation, the litigation disclosed in this paragraph) that would materially affect its ability to perform its duties as Trustee on behalf of the Certificate-holders. SKECHERS USA: Faces 8 Suits Arising From Sale of Toning Shoes ------------------------------------------------------------- Skechers, U.S.A., Inc., et al., is facing eight lawsuits in the U.S. District Court for the Western District of Kentucky: * Mary Coley v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00045-TBR; * Willie Knighten v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00048-TBR; * Enis Negron-Fuestes v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00042-TBR; * Pamela Whitaker v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00049-TBR; * Mildred Jones v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00051-TBR; * John Westwood, Sr. v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00041-TBR; * Teresa Hutchinson, Individually and as Administrator of the Estate of Grady Hutchinson v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00044-TBR; and * Corinthia Mims v. Skechers, U.S.A., Inc., et al., Case No. 3:15-cv-00055-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 SPARKLE INDUSTRIES: Fails to Pay Workers' Overtime, Suit Claims --------------------------------------------------------------- Elizabeth Rendon, individually and on behalf of others similarly situated v. Sparkle Industries Inc. d/b/a Sparkles Laundry Center, John Doe Corp. d/b/a Big Apple Laundries, Sam Aziz, Abdul Aziz, And Ayesha Aziz, Case No. 1:15-cv-00273 (S.D.N.Y., January 14, 2015), is brought against the Defendants for failure to pay overtime compensation for work in excess of 40 hours per week. The Defendants own and operate a dry cleaner/Laundromat located at 1625 Lexington Avenue, New York, New York 10029. The Plaintiff is represented by: Michael Antonio Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2020 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: faillace@employmentcompliance.com SRA ASSOCIATES: Accused of Violating Fair Debt Collection Act ------------------------------------------------------------- Shawn Adams, on behalf of herself individually and all others similarly situated v. SRA Associates of New Jersey, Case No. 1:15- cv-00128 (E.D.N.Y., January 9, 2015) accuses the Defendant of violating the Fair Labor Standards Act. The Plaintiff is represented by: Novlette Rosemarie Kidd, Esq. FAGENSON & PUGLISI 450 Seventh Avenue, Suite 3302 New York, NY 10123 Telephone: (212) 268-2128 Facsimile: (212) 268-2127 E-mail: nkidd@fagensonpuglisi.com SUSQUEHANNA BANCSHARES: Sued Over Failure to Pay Overtime Wages --------------------------------------------------------------- Patricia Struett, individually and on behalf of all others similarly situated v. Susquehanna Bancshares, Inc. and BB & T Corporation, Case No. 5:15-cv-00176 (E.D. Pa., January 14, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. Susquehanna Bancshares, Inc. is a regional financial services holding company that provides commercial and mortgage banking services. BB & T Corporation is one of the largest financial services holding companies in the United States. The Plaintiff is represented by: David J. Cohen, Esq. KOLMAN ELY PC 414 Hulmeville Ave Penndel, PA 19047 Telephone: (215) 750-3134 E-mail: dcohenlaw@comcast.net - and - Erik H. Langeland, Esq. 733 Third Avenue, 15th Floor New York, NY 10017 Telephone: (212) 354-6270 Facsimile: (212) 898-9086 E-mail: elangeland@langelandlaw.com - and - Jon A. Tostrud, Esq. TOSTRUD LAW GROUP, PC 1925 Century Park East, Suite 2125 Los Angeles, CA 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 E-mail: jtostrud@tostrudlaw.com SYNGENTA CORP: Faces "Runsick" Suit in Arkansas District Court -------------------------------------------------------------- Jason Runsick d/b/a Jason Runsick Farms, individually and on behalf of a Class of others similarly situated v. Syngenta Corporation, Syngenta Crop Protection LLC and Syngenta Seeds Inc., Case No. 3:15-cv-00006-BSM (E.D. Ark., January 9, 2015) alleges property damage. The Plaintiff is 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 - and - Daniel Bacine, Esq. Stephen R. Basser, Esq. BARRACK RODOS & BACINE 3300 Two Commerce 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 Facsimile: (215) 963-0838 E-mail: dbacine@barrack.com sbasser@barrack.com TAKATA CORPORATION: Faces "Hodgson" Suit Over Defective Airbags --------------------------------------------------------------- Amber Hodgson and Jason Moehlman, on behalf of themselves and all others similarly situated v. Takata Corporation, et al., Case No. 4:15-cv-00026 (W.D. Mo., January 13, 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: Matthew Lee Dameron, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 876-2600 Facsimile: (816) 221-8763 E-mail: matt@williamsdirks.com TELECHECK SERVICES: Court Narrows Claims in "Huff" Suit ------------------------------------------------------- District Judge Todd J. Campbell granted defendants' partial motion to dismiss and motion to strike class allegations in the case captioned JAMES HUFF, et al. v. TELECHECK SERVICES, INC., et al., NO. 3-14-1832, (M.D. Tenn.). Plaintiffs brought this lawsuit against Defendants under the Fair Credit Reporting Act, alleging that, in providing consumer disclosures, Defendants are willfully or negligently violating the FCRA by refusing or failing to provide the information required under the FCRA. Plaintiffs seek declaratory and injunctive relief, statutory damages, punitive damages, attorneys' fees and costs. Plaintiffs also seek to certify this action as a class action. Defendants moved to dismiss Plaintiff Torrence Bates' claims as time-barred; dismiss all claims for declaratory or injunctive relief; and strike all class allegations in the Complaint. In the Court's January 9, 2015 memorandum, a copy of which is available at http://is.gd/1jBsBtfrom Leagle.com, Judge Campbell ruled that all claims of Plaintiff Bates are dismissed by agreement. Plaintiff Huff's claims for injunctive and declaratory relief are dismissed. Plaintiffs' class allegations under Fed. R. Civ. P. 23(b)(2) are dismissed, and Plaintiffs' class allegations under Fed. R. Civ. P. 23(b)(3) are limited, by agreement, to those individuals who received a TeleCheck File Report on or after September 12, 2012. Plaintiffs were directed to file an Amended Complaint in line with the Order on or before January 23, 2015. James Huff, Plaintiff, represented by Martin D. Holmes -- mdholmes@dickinsonwright.com -- Dickinson Wright PLLC. Torrence Bates, Plaintiff, represented by Martin D. Holmes, Dickinson Wright PLLC. Telecheck Services, Inc., Defendant, represented by David R. Esquivel -- desquivel@bassberry.com -- Bass, Berry & Sims & Clark D. Milner -- cmilner@bassberry.com -- Bass, Berry & Sims. Telecheck International, Inc., Defendant, represented by David R. Esquivel, Bass, Berry & Sims & Clark D. Milner, Bass, Berry & Sims. First Data Corporation, Defendant, represented by David R. Esquivel, Bass, Berry & Sims & Clark D. Milner, Bass, Berry & Sims. TOYOTA MOTOR: Faces TCPA Class Action Over Data Sharing ------------------------------------------------------- Jacob Batchelor, writing for Law360, reports that a Toyota Motor Sales USA Inc. customer filed a putative class action in California federal court on Jan. 8 claiming Toyota gave his information to Sirius XM Holdings Inc., which made a number of unsolicited calls to his cellphone in violation to the Telephone Consumer Protection Act. Plaintiff Brian Trenz contended he and others were victims of an information-sharing agreement between the two companies in which Toyota gives Sirius customer data in exchange for temporary free trials of Sirius' radio entertainment services in new and preowned cars it sells. Sirius, the suit claimed, used that information to make unauthorized calls to his cellphone in violation of the TCPA. "Sirius makes these telemarketing calls in order to convert the recent purchasers of these Toyota vehicles into paid subscribers of Sirius," according to the complaint. After purchasing a Chevy truck from a Texas Toyota dealership in September 2014, Mr. Trenz claimed Sirius used his personal information from the transaction to make more than 30 calls to his cellphone using an automatic dialing system, the use of which, without express consent, is banned by the Federal Communications Commission. None of the sales documents from the Toyota dealership included a warning that Mr. Trenz's information might be given to a third- party like Sirius, and Sirius never sought or received his consent for the call. When Mr. Trenz asked Sirius call representatives how they obtained his information, they were allegedly forthright about having obtained it from Toyota, the suit said. Similarly, Mr. Trenz claimed a Toyota dealership employee assured him it was "common knowledge" that the information would be passed along. Mr. Trenz also said that he was unaware of any free trial involving Sirius' services as part of the purchase and remained in the dark about the availability of the service until he began receiving the calls. He added that Sirius radio never worked in his car, and he never listened to it. Even though Sirius is responsible for the calls, Toyota is vicariously liable for the TCPA claims because the company provided the customer information, the complaint said. The suit asks the court to certify a nationwide class of anyone who received unsolicited calls from Sirius in the four years prior to the complaint, regardless if they first bought a car from a Toyota dealership. In addition, the suit seeks a separate nationwide subclass of individuals who first bought a new or pre-owned car from a Toyota dealership with a free Sirius trial and received unsolicited calls from the company in the last four years. Mr. Trenz is represented by Kira M. Rubel of The Law Offices of Kira M. Rubel. The suit is Trenz v. Sirus XM Holdings, Inc. et al, case number 3:15-cv-00044, in the U.S. District Court for the Southern District of California. UNITED HEALTHCARE: Court Grants Dismissal Motion in Junk Fax Suit ----------------------------------------------------------------- District Judge David R. Herndon granted Defendant's Motion to Dismiss in the case captioned DR. ROBERT L. MEINDERS, D.C., LTD., Plaintiff, v. UNITEDHEALTHCARE, INC., UNITED HEALTHCARE OF ILLINOIS, INC., AND JOHN DOES E-12, Defendants, No. 3:14-cv-00548- DRH-DGW (S.D. Ill.). Plaintiff filed a putative class action against the Defendants United Healthcare, Inc. and United Healthcare of Illinois, Inc., alleging that United HealthCare sent a "junk fax" in violation of the Telephone Consumer Protection Act. Plaintiff further alleged that United HealthCare sent an unsolicited fax to him advertising United Healthcare's services. United HealthCare asked for the dismissal of Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(3) for improper venue and asked the Court to dismiss plaintiff's entire complaint. Further, United HealthCare argued that Plaintiff should arbitrate his claims in Minnesota because United has assumed some of the obligations of the signatory (ACN Group) to the arbitration agreement and, therefore, can enforce it against plaintiff. In his response, Plaintiff contended that United HealthCare was neither a party and/or signatory nor its name appears in the Provider Agreement. Further, plaintiff contended that he is not seeking to enforce the Provider Agreement and his claim does not arise in an action where he is seeking to enforce it. Judge Herndon ruled that because the arbitration clause in this case calls for arbitration outside the Southern District of Illinois, Rule 12(b)(3) is the appropriate vehicle seeking dismissal of the suit. Further, Judge Herndon held that a Rule 12(b)(3) motion to dismiss for improper venue is the proper procedure to use when the arbitration clause requires arbitration outside the confines of the district court's district. A copy of the Memorandum and Order dated November 19, 2014, is available at bit.ly/1tsxYbB from Leagle.com. Dr. Robert L. Meinders, D.C., LTD, individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by James M. Smith, Bock & Hatch, LLC & Phillip A. Bock -- phil@diabbock.com -- Bock & Hatch, LLC. Unitedhealthcare, Inc., Defendant, represented by Adam Levin, Hogan Lovells LLP, Jason P. Stiehl -- jstiehl@seyfarth.com -- Seyfarth Shaw LLP, Mitchell E. Zamoff -- mitch.zamoff@hoganlovells.com -- Hogan Lovells US LLP & Kathryn L. Marshall, Hogan Lovells LLP. United Healthcare of Illinois, Inc., Defendant, represented by Adam Levin, Hogan Lovells LLP, Jason P. Stiehl, Seyfarth Shaw LLP, Mitchell E. Zamoff, Hogan Lovells US LLP & Kathryn L. Marshall, Hogan Lovells LLP. UNITED SERVICES: Removes "Carlson" Suit to Georgia District Court ----------------------------------------------------------------- The class action lawsuit captioned Carlson v. United Services Automobile Association, et al., Case No. SU14CV3658-68, was removed from the Superior Court of Muscogee County to the U.S. District Court for the Middle District of Georgia (Columbus). The District Court Clerk assigned Case No. 4:15-cv-00006-CDL to the proceeding. The lawsuit arose from insurance-related issues. The Plaintiff is represented by: Charles Neal Pope, Esq. David C. Rayfield, Esq. POPE, MCGLAMRY, KILPATRICK, MORRISON & NORWOOD, LLP Post Office Box 2128 Columbus, GA 31902 Telephone: (706) 324-0050 E-mail: nealpope@pmkm.com efile@pmkm.com - and - Shaun O'Hara, Esq. Wade H. Tomlinson, III, Esq. POPE, MCGLAMRY, KILPATRICK, MORRISON & NORWOOD, LLP 1111 Bay Avenue Columbus, GA 31901 Telephone: (706) 324-0050 E-mail: shaunohara@pmkm.com efile@pmkm.com The Defendants are represented by: Cannon C. Alsobrook, Esq. SAVELL & WILLIAMS, LLP 233 Peachtree St., Suite 2700 Atlanta, GA 30303 Telephone: (404) 614-3532 E-mail: calsobrook@savellwilliams.com - and - Jeffrey Alan Van Duyne, Esq. SAVELL & WILLIAMS, LLP 2700 Harris Twr 233 Peachtree St. Atlanta, GA 30303 Telephone: (404) 521-1282 Facsimile: (404) 584-0026 E-mail: JAV@savellwilliams.com - and - John A. Little, Esq. Christopher C. Frost, Esq. Lee E. Bains, Jr., Esq. Michael D. Mulvaney, Esq. MAYNARD, COOPER & GALE, P.C. 1901 Sixth Ave N 2400 Regions/Harbert Plaza Birmingham, AL 35203 Telephone: (205) 254-1000 Facsimile: (205) 254-1999 E-mail: jlittle@maynardcooper.com cfrost@maynardcooper.com lbains@maynardcooper.com mmulvaney@maynardcooper.com UNITED WELLNESS: Plaintiff's Bid for Default Judgment Granted ------------------------------------------------------------- District Judge Mark A. Goldsmith partly granted Plaintiff's Motion for Default Judgment in the case captioned STACY ALEOBUA, et al., Plaintiffs, v. UNITED WELLNESS COMMUNITY, LLC, et al., Defendants, Civil Action No. 14-cv-12932 (E.D. Mich.). Plaintiffs Stacey Aleboua and Amber Brown filed a putative collective action alleging that Defendants violated the Fair Labor Standards Act and the Bullard Plawecki Employee Right to Know Act. All other Defendants filed an Answer to the Complaint except United Wellness Community, LLC, wherein it neither filed an appearance nor a response to the Complaint. Thereafter, Plaintiffs sought and obtained an entry of default against United Wellness Community, requested the Court to enter a default judgment, and asked the Court to defer entering a specific monetary amount for the judgment until further discovery can be accomplished. In his Opinion and Order granting the motion for default judgment in part, Judge Goldsmith favored and entered a default judgment in favor of Plaintiffs Aleobua and Brown, individually and granted its request to defer determining the specific monetary amount of the default judgment until appropriate discovery may be completed. However, Judge Goldsmith declined to enter a default judgment against United Wellness Community on behalf of the putative collective-class members for the reason that it is unclear whether a collective class will exist throughout the case and the court must first determine whether class certification is appropriate before it may decide whether to enter a default judgment in favor of the entire class because absent of class certification, no default can be made. A copy of the Order dated November 13, 2014, is available at http://is.gd/nlGb4hfrom Leagle.com. Stacy Aleobua, Plaintiff, represented by Megan Bonanni, Pitt, McGehee & Jennifer Lossia McManus, Dib and Fagan, P.C.. Amber Brown, Plaintiff, represented by Megan Bonanni, Pitt, McGehee & Jennifer Lossia McManus, Dib and Fagan, P.C.. Ikechukwu Odum, Sr., Defendant, represented by Thomas B. Bourque, Ellis, Eby. Ikechukwu Odom, Jr., Defendant, represented by Thomas B. Bourque, Ellis, Eby. Nneka Odum, Defendant, represented by Thomas B. Bourque, Ellis, Eby. Naly Odum, Defendant, represented by Thomas B. Bourque, Ellis, Eby. MICHOLDINGS, Inc., Defendant, represented by Thomas B. Bourque, Ellis, Eby. VOLKSWAGEN OF AMERICA: Attorney Fees Unreasonable, Court Rules -------------------------------------------------------------- Paul Burkes, writing for The Oklahoman, reports that attorney Jason McVicker discusses the most recent development in Oklahoma class action law, which he says may help impose some order on the wild world of class actions. Q. What is the most recent development in Oklahoma class action law? A. Theoretically, class actions vindicate the rights of consumers. Yet in the recent case of Hess vs. Volkswagen of America, Inc., the consumers got just $140 per person, and the plaintiffs' attorneys requested more than $7.2 million in legal fees and costs. Had the Oklahoma Supreme Court not intervened, the lawyers would have walked away with an award roughly 51,000 times greater than the award they won for their individual clients. Q. What happened there? A. In Hess, the attorneys settled a nationwide class action alleging a defect in the front spoiler of the Volkswagen Jetta. The purely cosmetic defect allegedly impacted 2.1 million class members, but only 310 bothered to seek any recovery, for a grand total of around $45,000. As part of the settlement, Volkswagen agreed to pay reasonable attorney fees in addition to the $45,000. The trial court initially awarded more than $3 million to the attorneys. After further legal wrangling, the trial court doubled the award, granting more than $7 million to the lawyers for a case that only recovered $45,000. Volkswagen appealed, and the Oklahoma Supreme Court agreed with Volkswagen that the fees weren't reasonable. Q. What did the court decide? A. Attorney fees must be reasonable. The Oklahoma Supreme Court ruled that an award must bear some reasonable relationship to the amount in controversy. The award of attorney fees here didn't pass muster; the difference between $45,000 and $7 million is staggering. The Supreme Court noted several other errors as well. For example, the trial court awarded the plaintiffs' attorneys fees for a related lawsuit against Volkswagen in Florida, though it was a completely separate action, in a completely different state, and the lawyers there actually lost. Similarly, the trial court multiplied the fee award, relying on inapplicable Missouri case law. The court unanimously ordered the trial court to issue a new, smaller award. The concurring opinion would have gone farther, saying the "award reflected a preposterous number of attorney and paralegal hours given the minimal and paltry recovery." The concurring justices admitted that complicated cases, or those requiring special expertise or courage, may justify greater attorney fees. But "it is hard to imagine promoting the cause of decorative plastic spoilers on a Volkswagen Jetta as courageous." The concurring justices warned that attorney fee awards like this undermine public confidence in courts and urged a very severe reduction. Q. What's the bottom line here? A. When an attorney seeks legal fees, they must be "reasonable," but that standard is vague, and hard and fast rules are scarce. This case provides some much-needed definition to a very ambiguous area of law. It may help impose some order on the wild world of class actions. WESBANCO INC: Has Deal to Resolve ESB Merger Class Suit ------------------------------------------------------- Wesbanco, Inc. said in its Form 8-K Current Report filed with the Securities and Exchange Commission on January 15, 2015, that ESB Financial Corporation ("ESB") and Wesbanco, Inc. and the Director Defendants entered into a Memorandum of Settlement (the "MOS") with the respective plaintiffs (collectively, the "Plaintiffs") regarding the settlement of both the Federal Lawsuit and the Lawrence County Lawsuit. ESB Financial Corporation ("ESB") and Wesbanco, Inc. ("WesBanco") entered into an Agreement and Plan of Merger, dated as of October 29, 2014 (the "Merger Agreement"), providing for the merger of ESB with and into WesBanco, with WesBanco as the surviving corporation (the "Proposed Merger"). Each of ESB (SEC File No. 0-19345) and WesBanco (SEC File No. 333-200391) filed a definitive joint proxy statement/prospectus, dated as of December 11, 2014 (the "Joint Proxy Statement/Prospectus"), with the Securities and Exchange Commission in connection with the Proposed Merger. As reported by each of ESB and WesBanco on Current Reports on Form 8-K, each dated December 15, 2014 and filed on December 19, 2014, two putative class action complaints were filed by purported shareholders of ESB with respect to the Proposed Merger. One complaint was filed in the United States District Court for the Western District of Pennsylvania (the "Federal District Court"), and is captioned and numbered James Elliott vs. ESB Financial, Inc., et al., Case No. 2:14-cv-01689-MRH (the "Federal Lawsuit"). The other complaint was filed in the Court of Common Pleas of Lawrence County, Pennsylvania, and is captioned and numbered Randall Kress v. ESB Bank, Case No. 11185/14 CA (the "Lawrence County Lawsuit"). Both complaints alleged generally, among other things, that each member of ESB's board of directors (the "Director Defendants") breached their fiduciary duties in approving the Merger Agreement, that ESB and WesBanco aided and abetted such breaches of fiduciary duty and that the disclosure regarding the Proposed Merger contained in the Joint Proxy Statement/Prospectus was materially deficient. On January 15, 2015, solely to avoid the costs, risks and uncertainties inherent in litigation, ESB, ESB Bank, WesBanco and the Director Defendants (ESB, ESB Bank, WesBanco and the Director Defendants, collectively the "Defendants") entered into a Memorandum of Settlement (the "MOS") with the respective plaintiffs (collectively, the "Plaintiffs") regarding the settlement of both the Federal Lawsuit and the Lawrence County Lawsuit. Pursuant to the MOS, ESB and WesBanco have agreed to file with the SEC and make publicly available to shareholders of ESB and WesBanco the supplemental disclosures provided below in this Current Report on Form 8-K and the Plaintiffs have agreed to release ESB, ESB Bank, WesBanco and the Director Defendants from all claims related to the Merger Agreement and the Proposed Merger, subject to approval of the Federal District Court. If the court approves the settlement contemplated in the MOS, both the Federal Lawsuit and the Lawrence County Lawsuit will be dismissed with prejudice, and all claims that were or could have been brought challenging any aspect of the Proposed Merger, the Merger Agreement, and any disclosure made in connection therewith will be released and barred. Under the terms of the MOS, counsel for the Plaintiffs reserved the right to seek an award of attorneys' fees and expenses. The Defendants have reserved the right to contest the fee and expense petition. The amount of any fees and expense awarded will ultimately be determined and approved by the court, and will not affect the amount of merger consideration to be paid by WesBanco. ESB or its successor or insurer will pay any fees and expenses awarded by the court. In the MOS, the parties have agreed to negotiate in good faith to prepare a stipulation of settlement to be filed with the court and other documentation as may be required to effectuate the settlement. There can be no assurance that the parties ultimately will enter into a stipulation of settlement or that the court will approve the settlement even if the parties were to enter into such stipulation. The proposed settlement contemplated by the MOS will become void in the event that the parties do not enter into such stipulation or the court does not approve the settlement. The settlement will not affect the timing of the special meeting of shareholders of ESB scheduled for January 22, 2015 in Ellwood City, Pennsylvania to vote upon a proposal to adopt the Merger Agreement. Similarly, the settlement will not affect the timing of the special meeting of shareholders of WesBanco scheduled for January 22, 2015 in Wheeling, West Virginia to vote on a proposal to approve the issuance of shares of WesBanco common stock in connection with the Proposed Merger. ESB and the other Defendants deny all of the allegations in the lawsuits and believe the disclosures previously included in the Joint Proxy Statement/Prospectus are appropriate under the law. Nevertheless, ESB and the other Defendants have agreed to settle the putative class action lawsuits in order to avoid the costs, disruptions and distraction of further litigation. ESB and the other Defendants have vigorously denied, and continue to vigorously deny, that they have committed or aided and abetted in the commission of any violation of law or engaged in any of the wrongful acts that were alleged in the lawsuits, and expressly maintain that, to the extent applicable, they diligently and scrupulously complied with their fiduciary and other legal burdens and entered into the MOS solely to eliminate the burden and expense of further litigation and to put the claims that were or could have been asserted to rest. Nothing in this Current Report on Form 8-K, the MOS or any stipulation of settlement shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth. WET SEAL: Appeal Court Affirms Denial of Arbitration Motion ----------------------------------------------------------- The Recorder reports that the Second Appellate District in California affirmed one trial court order and dismissed a challenge as to a second. The court held that an employee's purported waiver of her right to bring a representative action under the Private Attorneys General Act rendered an arbitration agreement unenforceable. Elizabeth Montano filed a putative class action lawsuit against employer The Wet Seal Retail, Inc., alleging various wage and hour violations. Ms. Montano propounded various discovery requests to Wet Seal, which responded with objections but no substantive information. Ms. Montano filed a motion to compel discovery responses. Prior to hearing on that motion, Wet Seal moved to compel arbitration, relying on an arbitration agreement executed by Ms. Montano. Ms. Montano opposed, arguing that agreement was procedurally and substantively unconscionable, due in part to its inclusion of a waiver of Montano's right to bring class actions and representative Private Attorneys General Act (PAGA) actions. The trial court denied Wet Seal's motion to compel arbitration, finding the PAGA waiver was both invalid and nonseverable, thereby rendering the entire agreement unenforceable. The court also granted Ms. Montano's motion to compel discovery. Wet Seal appealed both rulings. The court of appeal affirmed the denial of Wet Seal's motion to compel arbitration, holding that the trial court properly deemed the arbitration agreement unenforceable. Under the PAGA, an aggrieved employee may bring a civil action individually and on behalf of other current or former employees to recover civil penalties for Labor Code violations. A PAGA representative action is in the nature of a qui tam proceeding in which the employee plaintiff is authorized to file suit as the proxy or agent of the state's labor law enforcement agencies for recovery of civil penalties. It is thus fundamentally a law enforcement action, intended to protect the public and not to benefit private parties. In (I)Iskanian v. CLS Transportation Los Angeles, LLC(I) (2014) 59 Cal.4th 348, the California Supreme Court considered whether an employee's waiver of the right to bring PAGA claims was enforceable. That court concluded the answer was no, finding that a prohibition of PAGA claim's would frustrate the PAGA's objectives. Applying (I)Iskanian(I), the court agreed with the trial court that Montano's purported waiver of her right to bring a representative action under the PAGA could not be enforced. Because the parties' agreement contained a nonseverability provision, the trial court properly declared the entire arbitration agreement void and unenforceable. Turning to Wet Seal's remaining challenge to the trial court's discovery order, the court dismissed that portion of Wet Seal's appeal, finding that, in the absence of a statutory provision for appeal of such order, the discovery order was not appealable. Modified Opinion Entered The Court of Appeals of California, Second District, Division Four issued on January 13, 2015, an order modifying an opinion in ELIZABETH MONTANO, Plaintiff and Respondent, v. THE WET SEAL RETAIL, INC., Defendant and Appellant, NO. B244107. The opinion filed on January 7, 2015, was modified to delete footnote 7 found on Page 11. There was no change in judgment, the Appeals Court noted in its modified opinion, a copy of which is available at http://is.gd/CBHgMOfrom Leagle.com. Wet Seal had taken an appeal from the denial of its motion to compel arbitration of this wage and hour action brought by employee, Elizabeth Montano. Wet Seal also challenged the grant of Ms. Montano's motion to compel discovery responses. The Appeals Court affirmed the order denying the motion to compel arbitration and dismissed the challenge to the discovery order as nonappealable. Sheppard, Mullin, Richter & Hampton, Ryan D. McCortney -- rmccortney@sheppardmullin.com -- and Jason M. Guyser for Defendant and Appellant. Scott Cole & Associates, Matthew R. Bainer and Molly A. DeSario for Plaintiff and Respondent. * Consumer Group to Help Food Scandal Victims File Class Action --------------------------------------------------------------- Lin Meng-ru and Y.F. Low at Focus Taiwan News Channel report that the Cabinet's Consumer Protection Committee said on Jan. 10 it will help consumers affected by a recent food scandal involving dried tofu products file a class action lawsuit to seek compensation from the manufacturers if necessary. Since the scandal erupted last month, the committee has been handling complaints from consumers and coordinating refund issues with retailers, officials said. If their refund requests are not accepted, consumers are advised to call the committee's service hotline 1950 or lodge complaints online via the committee's website www.cpc.ey.gov.tw they said. In the latest case, some dried tofu products were found to contain dimethyl yellow, a banned industrial dye that has been proven to cause liver cancer in animals. * Ontario Law Commission Evaluates Class Action Procedures ---------------------------------------------------------- Mary Paterson, Esq. at Osler Hoskin & Harcourt LLP, in an article for Lexology, reports that one year ago on Jan. 8, the Law Commission of Ontario (LCO) released the list of issues to be considered by its Class Actions Advisory Group. As we noted, the list of issues includes, among others: Whether and how to facilitate national classes (the recent Excalibur, Prince and Endean decisions, among others) Improving procedural efficiency, including in the test for certification and evidentiary requirements, appeal routes, the order in which motions should be heard, and carriage motions Whether Ontario should become a "no-costs" class action jurisdiction rather than a "loser-pays" jurisdiction The policy and jurisprudence surrounding cy pres, reversion and forfeiture in settlements The rate of take-up by class members, and whether and how notices to the class can improve take-up rates The Class Proceedings Fund, its policy and funding framework and its sustainability Whether and when third party funding creates a risk of conflict of interest Waiver of tort, what it is and whether and how it should be used Securities class actions and how common law and statutory causes of action interact Filling The Information Gap One of the big challenges in evaluating the effectiveness of class action procedures in Ontario is the lack of accurate data about class actions. Over the last year, the Advisory Group has made progress in collecting data to statistically evaluate class action activities. For example: The Canadian Forum on Civil Justice provided funding for students who compiled a database containing information about the nearly 600 cases commenced since 1993. This database includes information about the number and outcome of motions, trials and appeals in each case as well as the length of time to complete each process. The LCO called for Research Proposals to provide empirical evidence of take-up rates in class actions in Ontario, including identification and analysis of key factors that influence such rates, from 2003 to 2013. The final research paper is due on April 15, 2015. What's Next? Given the Supreme Court of Canada's clear direction that parties should focus on resolving the substance of disputes efficiently and effectively, the Advisory Group's report -- and the data it contains -- can't come too soon. * Use of Cy Pres Relief in Settlements Raises Controversy --------------------------------------------------------- Andrew Trask of McGuireWoods LLP, in an article for JDSupra, reports that in the last five years, the use of cy pres relief in settlements has become particularly controversial. Various appellate courts have expressed suspicion about the use of cy pres in questionable settlements. Even Justice Roberts has signaled that, given the right vehicle, he would like the Supreme Court to review the fairness of cy pres distributions. Much of the controversy stems from two issues: (1) the potential for abuse of cy pres relief to inflate the value of bad settlements, and (2) the underlying philosophical justifications for allowing cy pres distributions. Despite the growing controversy, the Rules Advisory Committee is considering formalizing the use of cy pres in Rule 23. In its October 2014 report, the Rule 23 Subcommittee wrote that The cy pres phenomenon is a matter of settlement, particularly in cases with small individual harms. There is no specific provision of Rule 23 that bears on this possibility. Some states do have specific provisions as a matter of state law. But the absence of a rule provision has not prevented use of this technique on occasion. And at least sometimes this sort of activity attracts criticism. For an example, Chief Justice Roberts' opinion regarding denial of cert. in Marek v. Lane, observing that "in an appropriate case, this Court may need to clarify the limits on the use of such remedies." Maybe a rule change would be a way to do so as well. The ALI Aggregate Litigation provision on cy pres treatment has received considerable support in the cases and might provide a model. The ALI's take on cy pres -- that it should be used only when there is unclaimed money in an escrow fund and further distributions to actual class members are not feasible -- is largely considered a compromise position, albeit a fairly principled one. (What is the defense-oriented critique? Well, if the case had any merit and the settlement was negotiated based on merit rather than the "hydraulic pressure" of litigation costs and massive exposure, then why are there leftover funds?) Many individual defendants can take or leave cy pres relief. It can occasionally serve as a useful tool to close the gap between the cash a defendant is willing to spend for peace and the relief required to justify plaintiffs' counsel's fees. (Since cy pres relief goes to third parties, it may tick different accounting boxes for some defendants than a cash payout.) And there is nothing forcing a defendant to use a cy pres distribution in a class settlement. If that's the case, why would defendants bother opposing any attempt to enshrine cy pres relief in Rule 23? There's no question that some defendants (or defense counsel) may oppose cy pres because they need a third party to save them from themselves. Much as someone watching his weight might understand that cutting sugar is good while still succumbing to the candy bar in front of him, it is possible to understand that overuse of cy pres will encourage more questionable settlements while still using it for temporary advantage in a current settlement. For defense counsel in particular, watching client after client give in to this temptation against advice might motivate some strong advocacy against enshrining cy pres in Rule 23. (I wouldn't know; most of my clients don't employ it.) But the real stake here is the underlying theory of the class action. There's been a long debate over whether a class action is a "deterrent" "Private AG" action or an aggregation device to effect compensation for those who have been wronged. Cy pres relief is perfectly consistent with conception of the class action as deterrent, and -- as even its supporters admit -- not at all consistent with any compensation theory. And that raises some troubling questions. Because if the class action is actually a deterrent device, then it likely violates the Rules Enabling Act, because it creates a new substantive law regime. (After all, cy pres relief is not available to individual tort or contract claimants.) One could argue that, since cy pres relief usually comes up at settlement, the parties are free to put in whatever provisions they want. But enshrining cy pres relief in Rule 23(e) would go beyond simply allowing parties a greater freedom of terms. It would actively be choosing between the deterrence and compensation models for the class action. So the debate over cy pres relief really comes down to a debate over the legitimacy of the class action itself. And it is likely to be a heated one. After all, cy pres relief has become an integral part of many plaintiffs' business model. Despite the likely heat, the Advisory Committee would be on sounder footing were it to explicitly limit (or even disclaim) the use of cy pres relief. Doing so would be consistent with the traditional rationale for the class action, and would avoid messy constitutional questions. ********* 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. 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