/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160329.mbx C L A S S A C T I O N R E P O R T E R Tuesday, March 29, 2016, Vol. 18, No. 63 Headlines ADVANTAGE HEALTH: Recalls Flax Seed Products Due to Salmonella ALTEC INDUSTRIES: Recalls Aerial Devices 2008 Models AMERICAN CAPITAL: Faces Breach of Fiduciary Duty Claims AMERICAN ETC: "Galeano" Claims Not Preempted by LMRA Sec. 301 AMERICAN INTERNATIONAL: Investor Loses Bid to Revive Class Action ARCHERS: Court to Tackle Inheritance Tortious Interference Issue ARS NATIONAL SERVICES: Faces "Gruenfeld" Suit in E.D.N.Y ATLANTIC POWER: Court Dismisses Securities Class Action BANCORPSOUTH BANK: $24.5MM Settlement Gets Prelim. Court Approval BED BATH & BEYOND: Recalls Fan Heaters Due to Fire Hazard BEST WINGERS: Faces "Chen" Suit in S.D.N.Y BLANCHARD MERRIAM: Class Certified, Settlement Has Initial Okay BMW: Court Precludes Causation Experts in Toxic Tort Case BOEING CO: Faces Suits Over Malaysian Airlines Flight 370 Crash CARRIER ONE: Illinois Judge Trims "Lewis" Suit CARTER'S RETAIL: "Dudum" Deal Has Initial OK CHIPOTLE: NLRB Criticizes Social Media Policies, Labor Practices CHURCH AVE.: Faces "Islas" Class Action in E.D.N.Y. COBALT INT'L: Court Won't Certify Jan. 19 Order for Appeal COMSCORE INC: Kessler Topaz Files Securities Class Action CORAL SPRINGS, FL: Faces Class Action Over Speed Trap Fines COVIDIEN LLC: Recalls Kangaroo Feeding Tubes COX COMMS: Customers Ordered to Arbitrate Cable Fees Dispute CVS PHARMACY: Settlement in "Uppal" Granted Final Approval ECO CHIC: Recalls Electric Scooter Due to Noncompliance ELECTROLUX: 11th Cir. Reverses Class Certification in Washer Case ENTERPRISE RECOVERY: Violated FDCPA, "Bazzano" Suit Claims EXPERIAN INFO: Alston Claims Dismissed, Letren Claims Proceed FACEBOOK INC: Judge Hears Arguments in Link-Scanning Class Action FORD: Recalls Police Interceptor Vehicles 2013 Models FRESH INC: Obtains Favorable Ruling in Sugar Lip Treatment Case GENERAL MOTORS: Recalls Sierra and Silverado 2015 Models GENERAL MOTORS: Recalls Sierra and Silverado 2016 Models GENERAL MOTORS: Ignition Switch Trial Judge Known for Intellect GENERAL MOTORS: Ignition Switch Second Bellwether Case Begins GENERAL MOTORS: Juror in Ignition Switch Trial Dismissed GENERAL MOTORS: Lawyers Want Bankruptcy Order Affirmed GGNSC HOLDINGS: Ark. High Court Sends "Lamb" Suit to Arbitration GIANT TIGER: Recalls Flakes of Chicken Products HOME DEPOT: Timing of Data Breach Class Action Settlement Unusual HONDA: Recalls Civic 2016 Models Due to Injury Risk HONDA: Recalls Multiple Vehicle Models Due to Defective Airbag HYUNDAI: Recalls Tucson 2011 Models Due to Crash Risk IKEA CANADA: Recalls Ceiling Lamps Due to Injury Hazard ILLINOIS BELL: Court Narrows Claims in "Scott" Suit INTERSTATE AMUSEMENTS: Dismissed From Guest Workers' Class Action IRVING KAPLAN & ASSOCIATES: Violated FDCPA, "Zemel" Suit Claims JAC HOLDING: Fiduciary Breach Claims Against Directors Revived JACK IN BOX: Court Rules on Summary Judgment Bids in "Gessele" JOHN HANCOCK: Liable to NW Employees, Wash. High Court Says KELLWOOD CO: Class Action Mulled Over Toxic Metals in Jewelry KIA: Recalls 2011 Models Due to Crash Risk LEKKI GARDENS: Building Residents Urged to Join Class Action LOUISIANA-PACIFIC: 4th Cir. Keeps Order to Decertify "Hart" Suit MAGNACHIP SEMICONDUCTOR: Court Trims Claims in "Thomas" Suit MANNARICH FOOD: Recalls Fish Balls and Noodle Products Due to Egg MAZDA: Recalls B SERIES 2004 Models Due to Defective Airbag MAZDA: Recalls 2014 and 2015 Model Vehicles Due to Noncompliance MENTOR GRAPHICS: May 17 Class Action Lead Plaintiff Deadline Set MICROSOFT CORPORATION: Recalls AC Power Cords Due to Shock Hazard NAT'L FOOTBALL: Plaintiffs' Lawyers Want to Put CTE in Settlement NEOCOIL: Recalls Gem Flex Coil and P-Connector Due to Burn Risk NESTLE: Court Dismisses Coffee-Mate Class Action NESTLE CANADA: Recalls Liquid Infant Formula NEXGRILL INDUSTRIES: Recalls Barbecue Grill Products NOVA BUS: Recalls LFS Artic 2011 Models Due to Crash Risk NOVARTIS PHARMA: Judiciary Aims to Close Zometa Tort Matters NUNA CANADA: Recalls High Chair Products OLD SPICE: Connick Law Files Class Action Over Deodorant OWENS & MINOR: "Lopez" Suit Asserts Labor Code Violations PERFORMANCE SPORTS: May 17 Lead Plaintiff Bid Deadline Set PFIZER CONSUMER: Recalls Children's Advil PFIZER CONSUMER: Recalls Pediatric Advil Products PHILIPS MEDICAL: Recalls CT Systems and Software Versions PIER 1: Recalls Swivel Dining Chairs PIRIPI VMP: "Sanchez" Suit for Unpaid Overtime Work Dismissed POLYCOM INC: August 16 Settlement Approval Hearing Set PROSKAUER ROSE: Stanford's Lawyers Protected by Attorney Immunity RAV INVESTIGATIVE: "Humphrey" Suit Proceeds on Individual Claims REAL TIME RESOLUTION: "Gutman" Class Action Filed in E.D.N.Y REDFROG ENTERPRISES: Recalls Seafood Pancake Products Due to Egg SAAB: Recalls Multiple Vehicle Models Due to Defective Airbag SABATINI U: Recalls Beef and Vegetable Pie, Chicken Pot Pie SAINT-GOBAIN: Court Consolidates Two Tainted Water Class Actions SCION: Recalls 2013 Models Due to Injury Risk SEOUL TRADING: Recalls Fish Sausage Products Due to Egg SEQWATER: Feb. 2017 Trial Set in Queensland Flood Class Action SIEMENS AG: Recalls Syngo Imaging Products SLATER & GORDON: JustKapital to Fund Shareholder Class Action SPOKEO INC: Supreme Court Ruling Still Leaves Questions SRIPRAPHAI TIPMANEE: "Romero" Suit Seeks Minimum Wages Under NYLL ST. MARTINS CHEMICAL: "Navarro" Suit Moved to S.D. Fla. Ct. STANFORD FIN'L: Proskauer, Chadbourne Immune From Investor Claims STRATEGIC EXPERIENTIAL: Violated CLC, "Harrison" Suit Claims SUBARU: Recalls Tribeca 2006 Models Due to Injury Risk SUMMIT COLLECTION: "Berbrick" Suit Filed in Dist. New Jersey SYDNEY GROUP: Violated Labor Law, "Sandoval" Suit Claims T.D. BANK: Bid to Amend "Cruz" Complaint Denied TAKATA CORP: Judge Dismisses Auto Recylers' Fraud Claims TARSADIA HOTELS: 9th Cir. Affirms Judgment in "Beaver" Suit TERRAFORM GLOBAL: "Badri" Suit Remanded to San Mateo County TETRAPHASE PHARMACEUTICALS: Faces Securities Class Action TILE SHOP HOLDINGS: Beaver County Fund Suit Filed in N.D. Cal. TREE OF LIFE: Recalls Organic Popping Corn Products TROPICAL SWEETS: Recalls Honey Products TRUMP UNIVERSITY: Defense Counsel Opposes Nonjury Trial Proposal TSC STORES: Recalls Oxgear Safety Work Boots UBER TECHNOLOGIES: Unfair Competition Suit Can Proceed UNITED NATIONS: Hearing Held in Cholera Class Action Appeal UNITED STATES: D.C. Cir. Affirms Denial of Motion to Intervene UNITED STATES: Attorney's Fees Awarded to "Turner" Plaintiffs UNITEDHEALTH GROUP: Two Law Firms File Insurance Class Action UNIVERSITY OF PHOENIX: Court Sends "Aldrich" Suit to Arbitration VESUVIO'S II: "Solais" Suit Wins Conditional Certification VIRBAC CANADA: Recalls Cortisoothe Shampoo Products VISA CORP: Faces Antitrust Suit Over Chip-Reader Rules VITA HEALTH: Recalls Ibuprofen Liquid Capsules VIVO BRAND: Recalls Forta for Men Products Due to Tadalafil VIVO BRAND: Recalls Durazest Capsules VOLKSWAGEN: Recalls Routan 2009 Models Due to Defective Airbag VOLKSWAGEN: Recalls Multiple Vehicle Models WAL-MART: Sued for Denying Same-Sex Spouse Employee Benefits WAL-MART STORES: Bid to Dismiss "Biasi" Suit Denied WAL-MART STORES: "Cruz" Suit Filed in Southern Dist. Florida WILLIAMS PRODUCTION: Transport Costs Deductible From Royalties WOK 88: Faces "Huang" Class Action in S.D.N.Y. WWRD UNITED: Recalls Peter Rabbit Baby Rattles * Anshun Estoppel Applied in Three Recent Class Action Rulings * Growth in Regulatory Action Spurs Class Actions in D&O Space * Little Guidance Available to Judges to Resolve MDL Fee Fights ********* ADVANTAGE HEALTH: Recalls Flax Seed Products Due to Salmonella -------------------------------------------------------------- Starting date: February 8, 2016 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Microbiological - Salmonella Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Advantage Health Matters Distribution: National Extent of the product distribution: Retail CFIA reference number: 10383 Advantage Health Matters is recalling Organic Traditions brand Sprouted Flax Seed Powder and Sprouted Chia & Flax Seed Powder from the marketplace due to possible Salmonella contamination. Consumers should not consume the recalled products described below. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. Food contaminated with Salmonella may not look or smell spoiled but can still make you sick. Young children, pregnant women, the elderly and people with weakened immune systems may contract serious and sometimes deadly infections. Healthy people may experience short-term symptoms such as fever, headache, vomiting, nausea, abdominal cramps and diarrhea. Long-term complications may include severe arthritis. There have been no reported illnesses associated with the consumption of these products. This recall was triggered by Canadian Food Inspection Agency (CFIA) test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand Common Size Code(s) on UPC name name ---- product --- ----- ------ ---------- Organic Sprouted 227 g LOT:AHM626151118N 8 54260- Traditions Flax Seed EXP:09/2017 00626 1 Powder Organic Sprouted 454 g LOT:AHM553151118N 8 54260- Traditions Flax Seed EXP:09/2017 00553 0 Powder Organic Sprouted 227 g LOT:AHM621151211N 8 54260- Traditions Chia & EXP:10/2017 00621 6 Flax Seed Powder Pictures of the Recalled Products available at: http://is.gd/iP9mCf ALTEC INDUSTRIES: Recalls Aerial Devices 2008 Models ---------------------------------------------------- Starting date: February 4, 2016 Type of communication: Recall Subcategory: Equipment Notification type: Safety Mfr System: Other Units affected: 16 Source of recall: Transport Canada Identification number: 2016057TC ID number: 2016057 Manufacturer recall number: CSN 628 Certain Altec aerial devices may have been manufactured with a defective Pulsar coil. The Pulsar coil could short causing unwarranted movement of the aerial device increasing the risk of injury to the operator. Correction: Altec will replace the affected Pulsar coils. Make Model Model year(s) affected ---- ----- ---------------------- ALTEC AH85 2008 ALTEC AH100 2008 AMERICAN CAPITAL: Faces Breach of Fiduciary Duty Claims ------------------------------------------------------- Tom McParland, writing for Delaware Business Court Insider, reports that private equity firm American Capital will have to defend against breach of fiduciary duty claims after Vice Chancellor Sam Glasscock III in February found reason to believe it was exercising control of Halt Medical at the time of a disputed merger, despite having just a 26 percent stake in the company. The plaintiff stockholders filed their suit last January, alleging American Capital used Halt's debts to force Halt's board to enter the merger under duress while promoting its own interests. A majority of the directors, they argued, were beholden to American Capital and could not be considered independent or disinterested in the transaction, which unfairly diluted the stockholders' interest in the company. By the time the deal closed, American Capital's equity interest in Halt jumped from 26 percent to 66 percent, the investors alleged. The defendants tried to dismiss the claims on the grounds of acquiescence, estoppel and laches, but Glasscock denied the motion, ruling the plaintiffs had sufficiently pleaded facts asserting American Capital was acting as a controlling stockholder and breached duties it owed to the other investors. That finding, Mr. Glasscock said, was sufficient to trigger the plaintiff-friendly entire fairness review, instead of the deferential business judgment rule, which establishes a presumption in favor of directors and their corporate decisions. "I find here that the plaintiffs' factual allegations are sufficient, under the low 'reasonable conceivability' standard of Rule 12(b)(6), to infer that a majority of the board was not independent or disinterested, but rather was under the influence of, or shared a special interest with, ACAS in regard to the transaction, such that ACAS was a controlling stockholder at the time of the transaction," Glasscock wrote in a 29-page memorandum opinion published Feb. 29. The merger itself occurred in 2014 at a time when Halt, a Delaware corporation that marketed a procedure to treat fibroid tumors in women, was struggling to secure financing in order to stave off filing for Chapter 11 bankruptcy protection. The company owed American Capital $50 million under a note that had been extended from its original due date at the end of 2013. In late 2013, Halt's founder and chairman, Edward F. Calesa, "under pressure from the impending due date," reached out to American Capital to negotiate a deal to sell the company to a third party. But it was only after the dust settled and the merger closed that the plaintiffs realized that American Capital constructed its terms to squeeze the minority stockholders out of the company, they said. Pursuant to the merger, Halt would form a merger subsidiary and then merge into it, and all issued and outstanding preferred stock and warrants to purchase common and preferred stock would be canceled. Following the merger, American Capital tacked a seat on to the board -- which now had four of its designees -- and Halt's CEO and director, Jeffrey M. Cohen, saw his salary double. Mr. Glasscock noted that there is "no magic formula to find control," citing In re Crimson Exploration Stockholder Litigation, a Chancery Court opinion in which Vice Chancellor Donald F. Parsons Jr. asserted "the importance and fact-intensive nature of the actual control factor." In this case, it was reasonably conceivable that at least four of the seven-member Halt board were either interested in the transaction or lacked the ability to exercise independent business, Mr. Glasscock said. For example, Mr. Glasscock noted that Cohen was subjected to a "classic Morton's Fork" dilemma, where he faced a choice between approving a transaction the plaintiffs claimed harmed the company's shareholders or see his personal income ruined. "Given that Cohen faced a decision between supporting the transaction, on terms highly favorable to ACAS, and rejecting the transaction, which was tantamount (on the facts alleged) to voting for the collapse of the company and losing his employment, it is reasonably conceivable that Cohen was 'beholden' to [American Capital]," Mr. Glasscock said. Another director apparently served as a dual fiduciary, "standing on both sides" of the transaction and yet another received a personal financial benefit from the merger, according to a Halt document. Mr. Glasscock also let stand the plaintiffs' Section 228 claims that alleged several of the merger documents submitted for review were in draft form or incomplete. Thaddeus J. Weaver -- tweaver@dilworthlaw.com -- of Dilworth Paxson represented the plaintiff investors, and Gregory V. Varallo -- varallo@rlf.com -- of Richards, Layton & Finger argued for American Capital and Halt's director defendants. Neither attorney immediately returned calls seeking comment. The case was captioned Calesa Associates v. American Capital in the Court of Chancery. AMERICAN ETC: "Galeano" Claims Not Preempted by LMRA Sec. 301 ------------------------------------------------------------- In the case captioned RANULFO IRIAS GALEANO, Plaintiff, v. AMERICAN ETC., INC., Defendant, Case No. 16-cv-0033-PJH (N.D. Cal.), Judge Phyllis J. Hamilton granted the motion filed by Ranulfo Irias Galeano for an order remanding the case to the Superior Court of California, County of San Mateo. The wage and hour case, alleging seven causes of action under California law, was filed as a proposed class action on August 3, 2015. The defendant American Etc. d/b/a Royal Laundry removed the case on January 4, 2016, asserting preemption under Section 301 of the Labor Management Relations Act (LMRA). Galeano moved to remand, arguing that the removal was untimely and that the doctrine of complete preemption does not apply. Judge Hamilton held that the notice of removal was not untimely. However, the judge found that Galeano's state law claims are independent of rights conferred by a collective bargaining agreement (CBA) and that the resolution of these claims will not require interpretation of the CBA. Thus, Judge Hamilton concluded that Galeano's claims are not preempted by Section 301. A full-text copy of Judge Hamilton's March 10, 2016 order is available at http://is.gd/31JUgDfrom Leagle.com. Ranulfo Irias Galeano, Plaintiff, represented by Brandon Brouillette, Raymond Paul Boucher, Boucher, LLP, Sahag Majarian, II, Law Office of Sahag Majarian II & Shehnaz M. Bhujwala, Boucher, LLP. American Etc., Inc., Defendant, represented by Aurelio Jose Perez -- aperez@littler.com -- Littler Mendelson, P.C., Bruce M. Lubarsky, Finkelstein Bender & Fujii LLP, Joshua David Kienitz -- jkienitz@littler.com -- Littler Mendelson, P.C. & Lisa K. Horgan -- lhorgan@littler.com -- Littler Mendelson, P.C.. AMERICAN INTERNATIONAL: Investor Loses Bid to Revive Class Action ----------------------------------------------------------------- Carmen Germaine and Emily Field, writing for Law360, report that the U.S. Supreme Court on March 21 denied a petition brought by an AIG investor seeking to revive proposed class action claims that the insurance giant misled investors over publicly traded securities, leaving in place a decision the investor claimed amounted to improper judicial lawmaking. The high court denied a petition for writ of certiorari brought by American International Group Inc. shareholder Kathryn Lynn Campbell, declining to review U.S. District Judge Leonie M. Brinkema's January 2015 decision tossing Campbell's claims that AIG's equity units prospectus breached its duty of good faith and fair dealing and violated the U.S. Securities and Exchange Commission's "plain English" regulations through allegedly confusing language after finding Campbell didn't have standing because she didn't read the 2007 prospectus at issue. As is customary, the high court didn't comment on Ms. Campbell's Jan. 21 petition, which argued that Judge Brinkema's decision represented judicial legislation because there's no written law that conditions judicial access for public investors such as herself on reading prospectuses for securities before buying them. "The requirement imposed by the district court and sustained by the court of appeals represents legislation from the bench to which the plaintiff was subjected," Ms. Campbell said. "Such actions must be preserved for the legislative branch and designated administrative entities such as the SEC, which has spoken to the contents and presentation of prospectuses specifically for the protection of public investors and in the interest of the public." In Ms. Campbell's first complaint, filed in D.C. federal court in 2012, she compared language in AIG's prospectus to "hardcore pornography" purposely compiled by "the 'blue bloods' of the [legal] profession . . . and [AIG's] accounting contortionists" to confuse public investors. She said she purchased AIG equity units believing them to be preferred Class A shares, saying the company "intentionally mislisted and mislabeled" the securities through the New York Stock Exchange ticker symbol AIGprA, the designation for preferred shares rather than a specific symbol for equity units. Ms. Campbell alleged that AIG promised her and other investors that the equity units would be converted to valuable AIG common stock on set dates in 2011, but wiped out the unit holders' settlement rates by more than 95 percent through a "massive dilution" of its common stock. In her suit, Campbell targeted not only AIG but also 14 current and former directors. After the case was dismissed by the D.C. court and denied appeal by the D.C. Circuit, Campbell filed a revised complaint in Virginia federal court in October 2014. In Judge Brinkema's decision dismissing the revised suit, she said that Ms. Campbell hadn't claimed AIG failed to honor its prospectus or committed securities fraud but rather focused on SEC rules and the language in the prospectus. But, the judge noted, Campbell failed to identify any language authorizing a private right of action under the rules. Judge Brinkema's decision was affirmed by a Fourth Circuit panel in September. Ms. Campbell had argued in her petition with the Supreme Court that Judge Brinkema's ruling represented a "complete miscarriage of justice," saying that by ruling that she had to have read the prospectus before purchasing the shares, the judge imposed a standing requirement contrary to SEC rules and state and federal law. "For the district court to . . . dismiss the claims for failure to pre-read the prospectus does leave justice blowing in the wind," Ms. Campbell said. She also argued that Judge Brinkema misstepped in dismissing her motion for a declaratory judgment that the prospectus didn't comply with SEC rules, saying that her right to seek declaratory judgment under the Declaratory Judgement Act depended not on whether she had a private right of action but whether an "actual controversy" existed between her and AIG. "There is no question that there is 'actual controversy' between the parties over the contents, conditions and terms of the prospectus for the units and defendants' adverse actions complained of," Ms. Campbell said. "This is what permeates the complaint." Representatives for Campbell, AIG and the individual defendants did not respond to requests for comment on March 21. Kathryn Lynn Campbell is represented by Wendu Mekbib of the Law Offices of Wendu Mekbib. AIG is represented by Robert F. Carangelo Jr. -- robert.carangelo@weil.com -- and Evert J. Christensen Jr. -- evert.christensen@weil.com -- of Weil Gotshal & Manges LLP. The individual defendants are represented by Michael J. Garvey -- mgarvey@stblaw.com -- of Simpson Thacher & Barlett LLP. The case is Campbell v. American International Group Inc. et al., case number 15-956, in the U.S Supreme Court. ARCHERS: Court to Tackle Inheritance Tortious Interference Issue ---------------------------------------------------------------- Angela Morris, reporting for Texas Lawyer, writes, "Does Texas law recognize a cause of action for tortious interference with inheritance rights? Intermediate appellate courts have disagreed and the issue is teed up before the Texas Supreme Court in a case -- soon-to-be two cases -- that might interest both trial lawyers and estate planning and probate attorneys." Most recently, Austin's Third Court of Appeals decided in Anderson v. Archer that there is no tortious interference with inheritance claim in Texas. The Third Court agreed with the ruling and reasoning of Amarillo's Seventh Court of Appeals' 2015 ruling in Jackson Walker v. Kinsel -- which is already pending before the high court. But those two rulings conflict with a 1987 First Court of Appeals decision, and other intermediate appellate courts' rulings that followed it. "It's our position that this cause of action does not exist and should not exist because by its definition it takes tortious conduct to create this claim, and if it's tortious conduct there is already a remedy for it, so you are creating another remedy for the same wrong," said Scott R. Kidd, founding partner in the Kidd Law Firm in Austin, who represented the Andersons who won the Third Court case. But Ikard Golden Jones shareholder Laurie Ratliff, who represented the Archers, said the Amarillo and Austin courts are outliers. Since 1987, lawyers and courts have acted like the cause of action exists, she said. The Archers plan to appeal the ruling and Ratliff said she thinks there's a good chance the Supreme Court would recognize the cause of action, "given the number of intermediate courts of appeals that have already looked at the issue and found that it existed." Mr. Kidd said that probate and estate planning lawyers will be interested in the cases because an issue arises more often than you would expect, where a "disgruntled family member" thinks he should have gotten more in an inheritance. "By recognizing this cause of action, there is going to be more probate and estate planning causes of action," he explained. Kidd added that trial lawyers might also be interested in the Anderson and Jackson Walker cases. "It's another tort. It has some interesting issues with regards to recoverable damages," he said. Just two days after the Third Court issued its Anderson opinion, it showed up at the doors of the Texas Supreme Court. In a March 4 letter, an attorney for the Kinsels in Jackson Walker v. Kinsel wrote that Anderson has further accentuated a split. Appellate courts in El Paso, Houston and San Antonio recognize the cause of action, but courts in Amarillo and Austin do not, wrote Craig Enoch of Enoch Kever in Austin. "Like the Amarillo court in this case, the Austin court also disclaimed the existence of a cause of action for tortious interference with inheritance without conducting any analysis to determine whether the tort should exist in Texas," he wrote. Enoch didn't return a call seeking comment before deadline. Inheritance The March 2 Anderson opinion said that T. Mark and Christine Anderson were co-executors of the estate of Ted Anderson. The appealed a trial court judgment that awarded $2.56 million to the Archer family, resting on a jury finding that Ted Anderson tortiously interfered with their inheritance right from their uncle, Jack Archer. There's no such cause of action in Texas, and the Archers should take nothing, wrote Third Court Justice Scott Field, joined by Chief Justice Jeff Rose and Justice Bob Pemberton. ARS NATIONAL SERVICES: Faces "Gruenfeld" Suit in E.D.N.Y -------------------------------------------------------- A lawsuit has been filed against ARS National Services, Inc. The case is captioned Joseph Gruenfeld, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. ARS National Services, Inc., Defendant, Case No. 1:16-cv-00779 (E.D.N.Y., Brooklyn, February 15, 2016). ARS National Services offers accounts receivable management services. It caters to financial services organizations; banks; and credit card companies. The company is based in Escondido, California. Joseph Gruenfeld is a pro se plaintiff. ATLANTIC POWER: Court Dismisses Securities Class Action ------------------------------------------------------- Matthew Fleming, Esq., and Thomas Wilson, Esq., of Dentons, in an article for JDSupra, report that in Coffin v. Atlantic Power Corp., the Ontario Superior Court of Justice considered two motions: (1) for leave under section 138.8 of the Ontario Securities Act (the "OSA") to commence an action for secondary market misrepresentation and (2) for certification to proceed as a class action under subsection 5(1) of the Class Proceedings Act, 1992 (the "CPA") Based on his review of the extensive evidence filed by the Defendants, Justice Belobaba dismissed both motions and found that there was, in fact, no actionable misrepresentation. In doing so, Justice Belobaba confirmed the close analytical relationship between requests for leave under the OSA and motions for class action certification under the CPA. The Facts During a November 2012 earnings call, the CEO of Atlantic Power Corporation ("Atlantic"), referring to a previously issued company press release, announced that Atlantic was "confident" that it could maintain its dividend at current levels (the "Statements"). Four months later, after slashing its dividend by 65%, the price of Atlantic's shares and debentures dropped significantly. The plaintiffs, each of whom had purchased Atlantic's shares just weeks before the 65% dividend cut, commenced proceedings in Ontario alleging that Atlantic, its CEO, and CFO (together, the "Defendants") were liable, pursuant to subsections 138.3(1) and 138.3(2) of the OSA, for having made negligent and misleading secondary market disclosures. In particular, the plaintiffs alleged that the Statements and various other disclosures made by Atlantic (which, significantly, contained language warning that future dividends were not guaranteed) amounted to a misrepresentation of Atlantic's ability to maintain its dividend. The Motion for Leave under the OSA To obtain leave to proceed under section 138.8 of the OSA, the Court must be satisfied that the plaintiff's action is brought in good faith and has a reasonable possibility of succeeding at trial. In assessing whether there was a reasonable possibility of succeeding at trial, the Court applied the Supreme Court's framework in Theratechnologies, highlighting that the leave threshold is intended to provide a robust screening mechanism for proposed securities class actions. The Court applied the test for leave endorsed by the Court of Appeal in Green v. Canadian Imperial Bank of Commerce[12] which, according to Justice Belobaba, was consistent with the principles articulated in Theratechnologies: . . . whether, having considered all the evidenced adduced by the parties and having regard to the limitations of the motions process, the plaintiffs' case is so weak or has been so successfully rebutted by the defendant, that it has no reasonable possibility of success. In applying this test, the Court noted that the Defendants, having filed 10 banker boxes of documents (including fact affidavits, expert reports, cross-examination transcripts, and other supportive material), had "made a conscientious decision to do battle from the outset." The Court highlighted that the alleged misrepresentations and the plaintiffs' expert report will generally ". . . persuade the court that there is at least a reasonable possibility that the plaintiff will succeed at trial." However, after reviewing the extensive materials filed by the Defendants, Justice Belobaba concluded that there was no evidence to establish that any of the Defendants had believed that Atlantic would be unable to sustain its dividend level. Rather, the parties agreed that Atlantic had sufficient cash flow to maintain its dividend level and did not dispute that dividend payments were "business judgment calls" rather than "formulaic calculations." In the result, Justice Belobaba rejected the plaintiffs' submission that the Defendants should have known that the dividend level was not sustainable and held that there was no misrepresentation upon which the plaintiffs might reasonably succeed at trial. As such, leave under section 138.8 of the OSA was denied. The Motion to Certify After dismissing the plaintiffs' motion for leave to proceed with statutory claims under the OSA, the Court confirmed that the plaintiffs could still seek certification of their remaining common law and statutory shareholder and debenture-holder claims. However, in order for these claims to be certified as a class action, the Court must be satisfied, pursuant to clause 5(1)(d) of the CPA, that a class action is the preferable procedure for the resolution of the common issues raised by the plaintiffs. Before proceeding with its analysis, the Court observed that no securities class action had ever been certified once leave under the OSA had been denied, as the statutory causes of action are "tailor-made" for class proceedings. Having been denied leave under the OSA, the plaintiffs were required to show that each shareholder and debenture-holder that purchased Atlantic's securities on the secondary market individually relied on the alleged negligent misrepresentation. The plaintiffs failed to do so. Following the Court of Appeal in Musicians' Pension Fund of Canada (Trustees of) v. Kinross Gold Corp., Justice Belobaba noted that the denial of leave under the OSA is a relevant factor in the clause 5(1)(d) preferability analysis. Justice Belobaba concluded that the common law claims asserted by the plaintiffs rested on the same evidentiary foundation as the OSA claims, which had already been dismissed as part of the plaintiffs' motion for leave. In concluding that a class action was not the preferable procedure for the plaintiffs' shareholder misrepresentation claims, Justice Belobaba noted that "encumbering the parties and the courts with a complex class action that is destined to fail promotes neither judicial economy nor access to justice." For the debenture-holder claims, Justice Belobaba noted that neither of the current plaintiffs, who were shareholders only, were proper representative plaintiffs of the proposed class. Should the debenture-holders and their lawyers wish to proceed with a class action, the Court reserved its right to hear their certification motion. Comment Justice Belobaba's decision underscores that, using the framework established by the Supreme Court in Theratechnologies, securities class actions will often be won or lost at the certification/leave stage. The Defendants' strategy -- to marshal extensive volumes of evidence early on in support their position that the plaintiffs could not succeed at trial -- proved successful in this case. BANCORPSOUTH BANK: $24.5MM Settlement Gets Prelim. Court Approval ----------------------------------------------------------------- Celia Ampel, writing for Daily Business Review, reports that South Florida attorneys received preliminary approval for a $24.5 million settlement in an overdraft case against BancorpSouth Bank. Kopelowitz Ostrow Ferguson Weiselberg Gilbert attorneys Jeff Ostrow -- jostrow@stblaw.com -- and Robert Gilbert represented bank customers who alleged the bank rearranged debit card transactions to charge the highest possible overdraft fees. U.S. Senior Judge Maurice Paul in Gainesville gave preliminary approval to the settlement on March 8. "We are very pleased with this settlement," Messrs. Ostrow and Gilbert said in a statement on March 9. "It came following years of hard-fought litigation and represents a very substantial recovery for over 190,000 class members." A spokesman for the Tupelo, Mississippi-based bank did not immediately respond to a request for comment. Bruce Rogow of Bruce S. Rogow P.A. in Fort Lauderdale joined Ostrow, who works in Fort Lauderdale, and Gilbert, who works in Coral Gables, as lead class counsel. BancorpSouth Bank was represented by Eric Taylor, Laura Wagner and Peter Busscher of Hunton & Williams in Atlanta and John Jopling -- jjopling@dellgraham.com -- of Dell Graham in Gainesville. Judge Paul will be asked for final approval July 7 in Gainesville. Multidistrict litigation against other banks for the same practice has generated large settlements and changes in bank policies. BED BATH & BEYOND: Recalls Fan Heaters Due to Fire Hazard --------------------------------------------------------- Starting date: February 4, 2016 Posting date: February 4, 2016 Type of communication: Consumer Product Recall Subcategory: Electronics, Tools and Electrical Products Source of recall: Health Canada Issue: Fire Hazard Audience: General Public Identification number: RA-56902 This recall involves KUL small, black portable fan heaters with the UPC Code 765167392299. The KUL logo is printed on the front bottom of the heaters next to the power dial. The fan heater measures about 22.9 cm (9 inches) long, 12.7 cm (5 inches) wide, and 26.7 cm (10.5 inches) tall. The unit weighs 0.91 kg (2 lbs). An adhesive label is on the bottom of the heater with model number "KU39229" and "Date: 0515" in the lower right-hand corner. The fan heater can overheat, posing a fire hazard. Health Canada has not received any consumer reports of incidents or injuries related to the use of these units. CE North America has received 4 reports of the fan heaters overheating including 2 reports of the unit producing flames. No injuries have been reported. Approximately 264 of the recalled units were distributed in Canada and about 13,000 units in the United States. The recalled products were sold from August 2015 to October 2015 at Bed, Bath & Beyond Stores across Canada as well as online at www.bedbathandbeyond.com. Manufactured in China. Manufacturer: Ningbo Sungroy Electric Appliances Tech. Co., Ltd. Cixi Ningbo CHINA Distributor: CE North America LLC Miami Florida UNITED STATES Distributor: Bed Bath & Beyond Inc. Union UNITED STATES Tel: 1-800-462-3966 Consumers should immediately stop using the recalled fan heaters and contact CE North America for instructions on returning the recalled heaters with a prepaid shipping label. The firm will issue a refund upon receipt of the returned fan heaters. For more information, consumers may contact CE North America toll- free at 844-645-3208 from 8:30 a.m. to 5:30 p.m. EST Monday through Friday, by email or by visiting the firm's website and click on the "Product Recall" link at the bottom of the home page. Pictures of the Recalled Products available at: http://is.gd/6TwcSN BEST WINGERS: Faces "Chen" Suit in S.D.N.Y ------------------------------------------ A lawsuit has been filed against Best Wingers LLC and XYZ Corporation, doing business as Best Wingers. The case is captioned Feng Chen, Dong Chen, Cheng Li, and Changxing Li, individually and on behalf of all others similarly situated, the Plaintiff, v. Best Wingers LLC and XYZ Corporation, doing business as Best Wingers, and John Doe and Jane Doe, as shareholders and corporate officers, the Defendant, Case No. 1:16- cv-01130 (S.D.N.Y., Foley Square, February 15, 2016). Best Wingers is a fast-food chicken plus burgers, fish & ribs in a no-frills joint popular for takeout/delivery. Feng Chen, Dong Chen, Cheng Li, and Changxing Li are pro se plaintiffs. BLANCHARD MERRIAM: Class Certified, Settlement Has Initial Okay --------------------------------------------------------------- In the case captioned JOSEPH IOIME, on behalf of himself and others similarly situated, Plaintiff, v. BLANCHARD, MERRIAM, ADEL & KIRKLAND, P.A., Defendant, Case No. 5:15-cv-130-Oc-30PRL (M.D. Fla.), Judge James S. Moody, Jr. granted Joseph Ioime's motion for class certification as well as the parties' joint motion for preliminary approval of class settlement. On March 17, 2015, a four-count class action complaint was filed against Blanchard, Merriam, Adel & Kirkland, P.A. alleging violations of the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA). On December 11, 2015, Ioime moved to certify the case as a class action. Subsequently, the parties agreed to a settlement and submitted a proposed class action settlement agreement for preliminary approval. Judge Moody certified the putative class consisting of all consumers located in Florida who were sent a collection letter from Blanchard, Merriam, Adel & Kirkland, P.A. in connection with an attempt to collect a consumer debt, where the collection letter was substantially similar or materially identical to the collection letter delivered to the plaintiff, from March 17, 2013 through December 21, 2015. The judge found that Ioime has satisfied the threshold requirement of demonstating that the proposed class is "adequately defined and clearly ascertainable," and has likewise satisfied the requirements of Rule 23(a) and (b). Judge Moody also preliminarily approved the proposed class settlement, which grants class members a pro-rata share of the $6,000 settlement fund, upon determining that it is fair, reasonable, and adequate. A full-text copy of Judge Moody's March 3, 2016 order is available at http://is.gd/oDKrqqfrom Leagle.com. Joseph Ioime, Plaintiff, represented by Brian W. Warwick, Varnell & Warwick, PA, Janet R. Varnell, Varnell & Warwick, PA & Steven Thomas Simmons, Jr., Varnell & Warwick, PA. Blanchard, Merriam, Adel & Kirkland, P.A., Defendant, represented by Patrick Michael DeLong -- pmdelong@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin. BMW: Court Precludes Causation Experts in Toxic Tort Case --------------------------------------------------------- Michael Hoenig, writing for Law.com, reports that an appellate ruling issued in February focused on reliability issues posed by proposed expert testimony. Sean R. v. BMW of North America is an important decision by the New York Court of Appeals in a case claiming that a youngster's mental and physical disabilities were caused by in utero exposure to unleaded gasoline vapor attributable to a defective gas hose in the pregnant mother's BMW. New York's highest court provided the state's trial bench and bar with yet more guidance about what is needed in the way of reliable expert testimony in a toxic tort claim. BMW, thus, is another link in a chain of decisions by the court offering a road map regarding how expert proofs may suffice as opposed to those that do not. The Court of Appeals made it clear in Parker v. Mobil Oil Corp.3 that questions regarding reliability of experts' testimony required diligent policing by courts. The basic rules seem simple enough. If "novel" scientific evidence is involved, the court applies the Frye "general acceptance" test to determine "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." If the answer is "no," the testimony has flunked and must be precluded or excluded. If the answer is "yes," the proponent of the novel scientific testimony has survived the threshold test but still has to get past the admissibility "gate." The evidence must meet a second, "foundational reliability" inquiry. This second admissibility standard applies to all expert testimony, not just "novel" scientific evidence. In Parker, the court said the Frye inquiry is "separate and distinct from the admissibility question applied to all evidence -- whether there is a proper foundation -- to determine whether the accepted methods were appropriately employed in a particular case." Parker declared that the focus moves "from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of evidence at trial." These points were confirmed by the court in its Cornell v. 360 W. 51st Realty decision in 2014, a claim that toxic mold caused illness.4 In BMW the plaintiff was born in May 1992 with severe mental and physical disabilities. The timeline underlying the claim that the child's deficits were caused by a defective fuel hose emitting gas vapors that damaged the baby in utero was as follows. In May 1989, the father purchased a new BMW 525i for his wife, the car's exclusive driver. In the spring of 1991 she began to notice a smell of gasoline that "came and went." When the windows were down, for example during summer, she could tolerate the smell. But at other times the strong odor caused headaches, dizziness and throat irritation. Family members who rode in the car noticed the odor; one said it made her nauseous and dizzy. The dealer couldn't identify any problem and made no repairs. In July or August 1991, the wife became pregnant with plaintiff. The husband took the car to the dealer, and a split fuel hose was discovered. Plaintiff was born in May 1992. Subsequent testing revealed the child had, among other things, spastic quadriparesis (a form of cerebral palsy), developmental delays, ventricular asymmetry, aortic stenosis and impaired vision function. Two years later, BMW recalled the vehicles due to defects in the feed fuel hoses. The recall report noted that customers had associated the defect with a "conspicuous fuel odor." Causation Experts The lawsuit against BMW and others was commenced in January 2008. The claim was that failure to discover and fix the defective hose exposed plaintiff in utero to toxic gasoline vapor. Plaintiff's primary causation experts were Dr. Linda Frazier and Dr. Shira Kramer. They were prepared to testify that the in utero exposure to gasoline vapor proximately caused the birth defects. Dr. Frazier concluded that plaintiff's mother inhaled 1,000 parts per million (ppm) of gasoline vapor based on the mother's symptoms of "acute toxicity" during exposure, such as suffering headaches, nausea and throat irritations. After ruling out other possible causes, Frazier concluded that the mother's "high peak exposure" to the vapors during the first trimester of pregnancy was the "most likely cause of plaintiff's injuries." Dr. Kramer reached similar conclusions using a "different analysis." Specifically, she said that toluene and benzene, constituent elements of gasoline vapor are "causally related to an elevated risk of birth defects." BMW moved to preclude these causation experts from testifying at trial. Alternatively, defendant asked for a Frye hearing to determine whether Drs. Frazier and Kramer were reaching novel conclusions and not using generally accepted principles and methodologies. After reviewing lengthy submissions and supplemental expert reports, the trial court precluded the causation experts. The Appellate Division affirmed but certified the question to the Court of Appeals. The state's highest court held that the experts should be precluded from testifying. The opinion for the court, by Judge Eugene F. Pigott, Jr., explained that in toxic tort cases an expert opinion on causation must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing plaintiff's particular injuries (general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation). The expert must establish such exposure levels "through methods 'found to be generally accepted as reliable in the scientific community.'" This "general acceptance" requirement, also known as the Frye test, "governs the admissibility of expert testimony in New York." In a footnote, the court explained that its analysis and holding were limited to the Frye "general acceptance" inquiry due to the procedural posture of the case. Thus, the court expressed no opinion on the "separate and distinct" question of "whether there was a proper foundation for their opinions." The significance of this clarification by the court should not be overlooked. As mentioned above, after the "novel" science Frye test is passed, there is a second "foundational reliability" test for admissibility of the expert opinion, as stated in the Parker case. That reliability test applies in all non-novel science cases as well. In the BMW case, the Frye analysis was dispositive. The Frye "general acceptance" test asks "whether the expert's techniques, when properly performed, generate results accepted as reliable within the scientific community generally." Although unanimity is not required, the proponent must show "consensus in the scientific community as to the [methodology's] reliability." In the BMW case, the experts failed to make that showing. Here are highlights of the experts' shortcomings. Drs. Frazier and Kramer concluded from the occasional nausea, dizziness and throat irritations experienced by the mother that a "sufficient amount of gasoline vapor" caused the child's injuries. But they cited no text, scholarly article or study that approves of or applies this type of methodology, let alone a "consensus" as to its reliability. 'Reliability' Shortcomings None of the reports or studies advanced by the experts established that Frazier's methodology, "when properly performed, generate results accepted as reliable within the scientific community generally." They merely supported her own "conclusion" that there is a dose-response relationship between exposure to the chemical constituents of gasoline and symptoms of toxicity. Those studies did not support her approach of "working backwards from reported symptoms to divine an otherwise unknown concentration of gasoline vapor." Her methodology was not supported by the studies. Although "odor threshold" analysis has been admitted in certain settings, the odor threshold of a substance can be "far below" its toxicity. Indeed, one of plaintiff's sources, an article in the American Journal of Industrial Medicine, explained: "Smelling organic solvents is not indicative of a significant exposure, as the olfactory nerve can detect levels as low as several parts per million, which is not necessarily associated with toxicity. As an example, the odor threshold of toluene is 0.8 parts per million, whereas the [threshold limit value] is 100 parts per million."13 Since unleaded gasoline in the early 1990s had a "very low" odor threshold of between 0.50 and 0.76 ppm, a person would have been able to detect the odor of gasoline vapor at less than 1 ppm. The only expert conclusion that could be reached, using odor threshold methodology, was that plaintiff was exposed to at least 1 ppm of unleaded gasoline -- the minimum level at which gasoline is detectable by human smell. Instead, Dr. Frazier concluded that there is a minimum vapor threshold below which individuals do not experience headache, nausea or dizziness. Because the mother experienced those symptoms, Frazier concluded she must have been exposed to at least that concentration. But it was not shown that Frazier's approach "has been generally accepted in the scientific community." Although it is sometimes difficult, if not impossible, to quantify a plaintiff's past exposure to a substance, it remains a requirement of the causation expert in a toxic tort case to show, via generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injuries. Here the plaintiff's experts failed to meet their burden to show that their methodology was "generally accepted in the scientific community." Conclusion Toxic tort cases often present statistical literature noting "associations" between a toxin and disease. Such murky "connections" do not reliably establish either general or specific causation. The BMW holding confirms the courts' task to gatekeep expert opinions for reliability. The court's analysis of the proposed expert testimony offers litigators lots of practical guidance. BOEING CO: Faces Suits Over Malaysian Airlines Flight 370 Crash --------------------------------------------------------------- Celia Ampel, writing for Daily Business Review, reports that two years after Malaysia Airlines Flight 370 disappeared, the airplane still hasn't been found, but attorneys for the passengers' families are ready to lay the blame at the door of Boeing Co. Miami law firm Podhurst Orseck and the Hays Firm in Chicago filed 30 lawsuits in Illinois state court March 2 against the Chicago- based aircraft maker, claiming the investigation into the crash has ruled out every explanation except a defect in the Boeing 777. Only one confirmed piece of the wreckage has been found: a wing's flaperon that washed up on Reunion Island. The flight was traveling from Kuala Lumpur to Beijing with 227 passengers and 12 crew members. Investigations turned up nothing unusual about the pilots or cabin crew's qualifications or behavior, nor any evidence that would suggest terrorism, a maintenance error or a weather problem, according to the complaints. Extensive background checks were done on each passenger after the crash, and none left suicide notes or displayed other troubling behavior before they disappeared, the complaint said. The plane was below its maximum weight, had plenty of fuel and didn't encounter any rain. In the case of pilot suicide or terrorism, the plane would likely have crashed just as soon as it dropped off civilian and military radar, the complaint alleges. Instead, it flew for six more hours. "You're only left with one possible cause, and that is a manufacturing problem," lead plaintiffs attorney Steve Marks of Podhurst Orseck in Miami said. The Australian Transport Safety Bureau determined the crash was most likely caused by a "massive and cascading sequence of electrical failures" that prevented the pilots from having any control over the flight's operations, court documents state. The families are seeking damages for products liability and the suffering the victims experienced before death, according to the lawsuits filed by Andrew Hays -- ahays@haysfirm.com -- of the Hays Firm and Podhurst Orseck attorneys Mr. Marks and Roy Altman. Mr. Marks has represented victims in many of the biggest plane crashes over the past 25 years, winning hundreds of millions of dollars for those who lost loved ones in crashes such as SilkAir Flight 185 and Bashkirian Airlines Flight 2937. He said he expects the Chicago lawsuits to face jurisdictional challenges. Airplane manufacturers often argue the U.S. is the wrong forum for a case when crash evidence is in another country. But the lack of wreckage and crash witnesses could help overcome that challenge and move to a jury more quickly, Mr. Marks said. "The law is clear that if a product is destroyed by fire or by circumstances -- in this case it disappeared -- there is what is called a legal inference that it was a product problem if you can eliminate every other possible cause," he said. "Since Boeing's not going to be able to present evidence on any other cause, I think this is a very good liability case." A Boeing spokesman declined to comment, citing a company policy against speaking to news media about litigation. CARRIER ONE: Illinois Judge Trims "Lewis" Suit ---------------------------------------------- In the case captioned DEVON LEWIS, Plaintiff, v. CARRIER ONE, INC., Defendant, No. 15 CV 7402 (N.D. Ill.), Judge Virginia M. Kendall dismissed Counts III and IV of the complaint for lack of jurisdiction. A four-count complaint was filed against Carrier One, Inc., Impel Union Inc., Blaze Popovski, and Ivan Samarov for class action violations of the Illinois Wage Payment and Collection Act (IWPCA) (Count I) and the Fair Labor Standards Act (FLSA)(Count II), as well as individual claims on behalf of plaintiff Devon Lewis for retaliatory discharge under the Illinois Workers' Compensation Act (Count III) and common law conversion (Count IV). Carrier One moved to dismiss the state law claims under Counts III and IV under Rule 12(b)(1) for lack of supplemental jurisdiction. Lewis responded that the court has supplemental jurisdiction over Counts III and IV based on the subject matter jurisdiction the court exercises over Count II. Judge Kendall found that the facts surrounding Lewis' termination underlying Count III greatly differ from those surrounding Count II that is the basis for the court's jurisdiction. The judge likewise found that Lewis' conversion claim under Count IV does not derive from the same nucleus of operative facts as the FLSA claim. The judge held that the existence of an employment relationship alone is not sufficient to justify granting supplemental jurisdiction. A full-text copy of Judge Kendall's March 10, 2016 memorandum opinion and order is available at http://is.gd/P6XpdHfrom Leagle.com. Devon Lewis, Plaintiff and Counter Defendant, represented by Alejandro Caffarelli, Caffarelli & Associates Ltd., Alexis D Martin, Caffarelli & Associates Ltd. & Lorraine Teraldico Peeters, Caffarelli & Associates Ltd.. Carrier One, Inc., Defendant, represented by Sean F Darke -- sedarke@wesselssherman.com -- Wessels Sherman Joerg Liszka Laverty Seneczko P.C. & Joseph H. Laverty -- jolaverty@wesselssherman.com -- Wessels Sherman Joerg Liszka Laverty Seneczko P.C.. Ivan Samarov, Defendant, represented by Sean F Darke, Wessels Sherman Joerg Liszka Laverty Seneczko P.C.. CARTER'S RETAIL: "Dudum" Deal Has Initial OK -------------------------------------------- In the case captioned JULIE DUDUM, et al., Plaintiffs, v. CARTER'S RETAIL, INC., Defendant, Case No. 14-cv-00988-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. granted the plaintiffs' motion for preliminary approval and for certification of the putative settlement class. On January 27, 2014, Julie Dudum, Estella Garcia, Luningning Ludovico, Lakisha Powell, and Columba Gutierrez sued Carter's Retail, Inc. for alleged violations of California Labor Code and Business and Professions Code, including the failure to pay wages, failure to pay split shift differential wages, failure to reimburse business expenses, failure to provide accurate wage statements, violations of California's Unfair Competition Law, and claims under the Private Attorney General Act (PAGA). Settlement was reached on January 15, 2015 and the terms of the formal settlement agreement were finalized on July 7, 2015. The plaintiffs' first motion for preliminary approval of the settlement was denied by the court without prejudice. Plaintiffs thereafter filed a second motion for preliminary approval and for certification of the putative settlement class. Under the proposed agreement, Carter's Retail agreed to pay $472,500 as the maximum settlement amount. Judge Dudum granted the plaintiffs' motion for preliminary approval of class action settlement, and conditionally certified the class for settlement purposes. Judge Dudum also approved the proposed settlement administrator Simpluris, Inc., as well as the proposed class representatives, and appointed John McIntyre of Shea & McIntyre, A.P.C. and Cary Kletter of Kletter Law Firm, LLP, as co-lead class counsel. A full-text copy of Judge Gilliam's March 14, 2016 order is available at http://is.gd/vQCYRmfrom Leagle.com. Julie Dudum, Estella Garcia, Plaintiffs, represented by Cary S. Kletter -- ckletter@kletterlaw.com -- John Franklin McIntyre, Jr., Shea & McIntyre, A P.C. & Sally Trung Nguyen -- snguyen@kletterlaw.com. Luningning Ludovico, Lakisha Powell, Columba Gutierrez, Plaintiffs, represented by Cary S. Kletter, John Franklin McIntyre, Jr., Shea & McIntyre, A P.C., Kevin Robert Elliott, Shea and McIntyre A. P.C. & Sally Trung Nguyen. Carter's Retail, Inc., Defendant, represented by Aurelio Jose Perez -- aperez@littler.com -- Littler Mendelson, P.C. & Natalie Ann Pierce -- npierce@littler.com -- Littler Mendelson. CHIPOTLE: NLRB Criticizes Social Media Policies, Labor Practices ---------------------------------------------------------------- Rebekah Mintzer, writing for Corporate Counsel, reports that Norovirus, E. coli, gender discrimination claims -- it hasn't been an easy couple of months for Denver-based fast casual food giant Chipotle Mexican Grill Inc. And now a decision from the National Labor Relations Board has shone a negative light on the company's social media policies and labor practices too. A March 14 ruling by an NLRB administrative law judge in Philadelphia slammed the company for using social media policies and employee handbooks that violated the National Labor Relations Act. According to the ruling, the trouble arose at a Havertown, Pennsylvania, Chipotle restaurant, when James Kennedy, a server at the company, began tweeting negatively about his employer. He tweeted at the communications director for Chipotle, criticizing the fact that he and his colleagues in Havertown had to work in bad weather while other employees were given time off. Mr. Kennedy also responded to positive customer tweets about Chipotle. "Crew members make $8.50hr how much is that steak bowl really?" he tweeted to one Chipotle fan. He reminded another customer who tweeted about Chipotle guacamole that unlike competitor Qdoba Restaurant Corp., Chipotle charges extra for the topping. In January 2015, Chipotle's national social media strategist discovered the tweets and Mr. Kennedy was shown a copy of the chain's social media policy. Strangely, that policy was outdated, but the message was the same: take down the offending posts. Mr. Kennedy took down the tweets. But he began circulating a petition that alleged store management was not giving employees rest breaks mandated by state labor law. Resulting tensions with a supervisor led to his dismissal. NLRB ALJ Susan Flynn came down hard on Chipotle's social media policy (even though an outdated version was at issue) and its code of conduct, declaring that several provisions violated Mr. Kennedy's rights to engage in protected concerted activity under Section 7 of the NLRA. Like ALJs have done in past cases, Ms. Flynn held that although the policies in question didn't prevent Section 7 activity explicitly, they could be reasonably construed by employees as doing so. The ALJ tore into Chipotle's social media rule that prohibited employees from damaging the company by spreading "confidential" information on social media, saying that "confidential" was not well-defined. Ms. Flynn also ruled that Mr. Kennedy should not have been asked to delete his critical tweets and should not have been threatened with discipline for circulating a petition about employee breaks. The ruling, which Chipotle has the option of appealing to the full board, shows how tricky it can be to exercise oversight of employee in a time when the labor board is eager to protect workers' social media speech. "The board wants [employers] to be specific so an employee doesn't think you're telling them: 'you can't talk about what you earn and the terms and conditions of employment,'" says Howard Wexler, an associate at Seyfarth Shaw. He recommends giving employees specific examples of what is and is not considered confidential to further clarify and help the policy withstand board scrutiny. Additionally, the ruling criticized the social media policy's assertion that employees shouldn't spread "false" or "misleading" statements about Chipotle online, explaining that these types of statements can only be prohibited if there is a malicious intent behind them. Ms. Flynn also rejected Chipotle's efforts to use a disclaimer as a sort of fail-safe against NLRB action. At the bottom of its policy, Chipotle says that the rules aren't meant to limit "any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or other privacy rights." Frederick Miner -- fminer@littler.com -- a shareholder at Littler Mendelson, notes that the current board won't generally see these disclaimers as sufficient to immunize the company from legal action under the NLRA, since workers won't necessarily understand what the disclaimer means. "I think from the board's standpoint, there isn't a very good widespread understanding or appreciation among employees of what their rights are under the act," Mr. Miner says. CHURCH AVE.: Faces "Islas" Class Action in E.D.N.Y. --------------------------------------------------- A lawsuit has been filed against Church Ave. Car Service Inc. The case is captioned Alejandro Islas Flores, individually and on behalf of others similarly situated, the Plaintiff, v. Church Ave. Car Service Inc., doing business as Church Ave. Car Service, Paolo Betancourth, and Carlos Betancourth, the Defendants, Case No. 1:16-cv-00777 (E.D.N.Y., Brooklyn, February 15, 2016). Church Ave. Car Service is engaged in the car rental business. Alejandro Islas Flores is a pro se plaintiff. COBALT INT'L: Court Won't Certify Jan. 19 Order for Appeal ---------------------------------------------------------- In the case captioned In Re Cobalt International Energy, Inc. Securities Litigation, Civil Action No. H-14-3428 (S.D. Tex.), Judge Nancy F. Atlas denied the motions filed by the defendants Goldman Sachs Group, Inc., Riverstone Holdings LLC, First Reserve, ACM Ltd., and The Carlyle Group L.P. (collectively, "Control Defendants"); and by Cobalt International Energy, Inc., Joseph H. Bryant, James W. Farnsworth, John P. Wilkirson, Peter R. Coneway, Henry Cornell, Jack E. Golden, N. John Lancaster, Jon A. Marshall, Kenneth W. Moore, J. Hardy Murchison, Michael G. France, Kenneth A. Pontarelli, Scott L. Lebovitz, Myles W. Scoggins, D. Jeff van Steenbergen, Martin H. Young, Jr., and William P. Utt (collectively, the "Cobalt Defendants"); and by Goldman, Sachs & Co., Morgan Stanley & Co. LLC, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Tudor, Pickering, Holt & Co. Securities, Inc., Deutsche Bank Securities Inc., RBC Capital Markets, LLC, UBS Securities LLC, Howard Weil Incorporated, Stifel, Nicolaus & Company, Incorporated, Capital One Southcoast, Inc., and Lazard Capital Markets LLC (collectively, "Underwriter Defendants"), seeking certification of the court's memorandum and order entered January 19, 2016 for interlocutory appeal. On May 1, 2015, a consolidated amended class action complaint was filed asserting claims under the Securities Exchange Act of 1934 and the Securities Exchange Act of 1934. The defendants filed motions to dismiss which were denied on January 19, 2016. The defendants then sought to certify the January 19 memorandum and order for interlocutory appeal. Judge Atlas found that the defendants have failed to satisfy the three requirements for certification of an interlocutory appeal pursuant to 28 U.S.C. Section 1292(b). The judge also did not find the case to be exceptional that would benefit from an interlocutory appeal. A full-text copy of Judge Atlas' March 14, 2016 order is available at http://is.gd/hEZiM8from Leagle.com. Fire and Police Retiree Health Care Fund, San Antonio, Plaintiff, represented by Gerald T Drought -- gdrought@mdtlaw.com -- Martin & Drought PC. KBC Asset Management NV, Universal Investment Gesellschaft m.b.h., Plaintiffs, represented by Matthew Christopher Matheny, Provost Umphrey. Equity-League Pension Trust Fund, Plaintiff, represented by Allan Brent Diamond -- adiamond@diamondmccarthy.com -- Diamond McCarthy LLP. GAMCO Global Gold, Natural Resources & Income Trust, GAMCO Natural Resources, Gold & Income Trust, Plaintiffs, represented by Brandon Marsh -- brandon.marsh@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, pro hac vice & Andrew J. Entwistle -- aentwistle@entwistle-law.com -- Entwistle & Cappucci LLP. Sjunde AP-Fonden, Plaintiff, represented by Sjunde AP-Fonden. Joseph H Bryant, James W Farnsworth, John P Wilkirson, Peter R Coneway, Henry Cornell, Jack E Golden, N John Lancaster, Jon A Marshall, Kenneth W Moore, J Hardy Murchison, Michael G France, Kenneth A Pontarelli, Scott L Lebovitz, Myles W Scoggins, D Jeff Van Steenbergen, Martin H Young, Jr., Kathryn Bailey Hutchison, William P Utt, Cobalt International Energy Inc., Defendants, represented by Daniel David -- danny.david@bakerbotts.com -- Baker Botts LLP,David D Sterling -- david.sterling@bakerbotts.com -- Baker Botts LLP, Amy Pharr Hefley -- amy.hefley@bakerbotts.com -- Baker Botts & Russell Carter Lewis -- russell.lewis@bakerbotts.com -- Baker Botts LLP. Goldman Sachs Group, Inc., Defendant, represented by Adam D Gold -- adgold@wlrk.com -- Wachtell, Lipton, Rosen & Katz, George T Conway, III -- gtconway@wlrk.com -- Wachtell, Lipton, Rosen & Katz, Ronald L. Oran, Jr. -- ron.oran@strasburger.com -- Strasburger & Price LLP & Scott Musoff -- scott.musoff@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice. Riverstone Holdings LLC, First Reserve Corporation, KERN Partners Ltd., GS Capital Partners V Fund, L.P., GS Capital Partners V Offshore Fund, L.P., GS Capital Partners V Institutional, L.P., GS Capital Partners V GmbH & Co. KG, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, Carlyle/Riverstone Global Energy and Power Fund III, L.P., C/R Energy III Cobalt Partnership, L.P., C/R Energy Coinvestment II, L.P., First Reserve Fund XI, L.P., FR XI Onshore AIV, L.P., KERN Cobalt Co-Invest Partners AP LP, Defendants, represented by Adam D Gold, Wachtell, Lipton, Rosen & Katz, George T Conway, III, Wachtell, Lipton, Rosen & Katz &Ronald L. Oran, Jr., Strasburger & Price LLP. The Carlyle Group, Defendant, represented by Robert A Van Kirk -- rvankirk@wc.com -- Williams and Connolly LLP, George Anthony Borden -- gborden@wc.com -- Williams & Connolly LLP, John Sievert Williams -- jwilliams@wc.com -- Williams and Connolly LLP & Ronald L. Oran, Jr., Strasburger & Price LLP. Riverstone Energy Coinvestment III, L.P., Defendant, represented by Adam D Gold, Wachtell, Lipton, Rosen & Katz & Ronald L. Oran, Jr., Strasburger & Price LLP. Carlyle Energy Coinvestment III, L.P., Defendant, represented by Robert A Van Kirk, Williams and Connolly LLP, George Anthony Borden, Williams & Connolly LLP & John Sievert Williams, Williams and Connolly LLP. C/R Cobalt Investment Partnership, L.P., Defendant, represented by Adam D Gold, Wachtell, Lipton, Rosen & Katz, George T Conway, III, Wachtell, Lipton, Rosen & Katz, Ronald L. Oran, Jr., Strasburger & Price LLP & Russell Carter Lewis, Baker Botts LLP. Goldman Sachs & Co., Defendant, represented by Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice & Noelle M Reed, Skadden Arps et al. Morgan Stanley & Co. LLC, Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, Tudor, Pickering, Holt & Co. Securities, Inc., Deutsche Bank Securities Inc., RBC Capital Markets, LLC, UBS Securities LLC, Stifel, Nicolaus & Company, Incorporated, Capital One Southcoast, Inc., Lazard Capital Markets LLC, Defendants, represented by Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice, Noelle M Reed, Skadden Arps et al & Scott Musoff, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice. Citigroup Global Markets Inc., Howard Weil Incorporated, Defendants, represented by Noelle M Reed, Skadden Arps et al & Scott Musoff, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice. Sjunde AP-Fonden, Movant, represented by Johnston de Forest Whitman, Jr., Kessler Topaz Meltzer & Check, LLP, pro hac vice & Naumon A Amjed, Kessler Topaz Meltzer and Check LLP, pro hac vice. GAMCO Global Gold, Natural Resources & Income Trust, GAMCO Natural Resources, Gold & Income Trust, Movants, represented by Brandon Marsh, Bernstein Litowitz Berger & Grossmann LLP, pro hac vice,Jonathan H Beemer, Entwistle & Cappucci LLP, Jordan A Cortez, Entwistle & Cappucci LLP, Vincent R Cappucci, Entwistle & Cappucci, David R Stickney, Bernstein Litowitz et al, pro hac vice, Jonathan D. Uslaner, Bernstein Litowitz Berger & Grossmann LLP & Thomas Robert Ajamie, Ajamie LLP. COMSCORE INC: Kessler Topaz Files Securities Class Action --------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on March 21 disclosed that a shareholder class action lawsuit has been filed against comScore, Inc. on behalf of purchasers of the Company's securities between May 5, 2015 and March 7, 2016, inclusive (the "Class Period"). comScore shareholders who purchased their securities during the Class Period may, no later than May 9, 2016, petition the Court to be appointed as a lead plaintiff representative of the class. comScore shareholders who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O. Bell, Esq.) at (888) 299-7706 or at info@ktmc.com. For additional information about this lawsuit, or to request information about this action online, please visit https://www.ktmc.com/new-cases/comscore-inc comScore provides data, metrics, products, and services to clients in the media, advertising, and marketing industries. The shareholder class action complaint alleges that comScore and certain of its executive officers made a series of false and misleading statements, and failed to disclose material adverse facts to investors regarding the Company's business, operations and prospects. As detailed in the complaint, the defendants are alleged to have made false and misleading statements and failed to disclose: (1) that the Company's accounting practices were not in compliance with applicable SEC regulations; (2) that the Company lacked adequate internal controls over accounting; (3) that, as such, the Company would be unable to file its Form 10-K for the fiscal year ended December 31, 2015 in a timely manner; and (4) that, as a result of the foregoing, the Company's financial statements, as well as Defendants' statements about comScore's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. On February 29, 2016, the Company reported that it would be unable to file its Form 10-K 2015 Annual Report with the SEC on time because it "require[d] additional time to prepare its financial statements and complete the external audit of those statements included in the Form 10-K." The Company further disclosed that its Audit Committee had commenced a review of certain accounting matters "with the assistance of independent counsel and advisors." On March 7, 2016, comScore reported that its Audit Committee had advised that it did not expect to finalize its review of potential accounting issues before March 15, 2016. Additionally, the Company announced that it was suspending its share repurchase program. Following this news, comScore's stock declined $13.67 per share, or 33.5%, to close on March 7, 2016 at $27.04 per share, on heavy trading volume. comScore shareholders who purchased their securities during the Class Period (May 5, 2015 - March 7, 2016) may, no later than May 9, 2016, petition the Court to be appointed as a lead plaintiff representative of the class. Members of the purported class may petition the Court to be appointed as a lead plaintiff representative through Kessler Topaz Meltzer & Check or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. CORAL SPRINGS, FL: Faces Class Action Over Speed Trap Fines ----------------------------------------------------------- Samantha Joseph, writing for Daily Business Review, reports that a $600 traffic ticket in an alleged speed trap prompted disgruntled motorist Robert Zoba and his attorney John Caserta to file a class action lawsuit that a state appellate court said challenged "the boundaries of judicial immunity." Mr. Caserta received his own $450 ticket weeks earlier in a school zone near the Sawgrass Springs Middle School but successfully fought it by arguing the zone had been illegally established. His client paid the fine in full but filed the proposed class action against Coral Springs, Broward County, Broward Clerk of Courts Howard Forman and the state Revenue Department. He sued to get his money back, alleging the government agencies illegally established the school zone and set up the speed trap for unsuspecting drivers. His amended complaint alleged the defendants collected thousands of dollars in fines for traffic violations in the school zone. Under Florida law, 50.8 percent of traffic fines goes to the city, 43.1 percent to the state, 6.1 percent to the clerk and a $12.50 surcharge per violation to the county. The state tax agency successfully argued Mr. Zoba had to file suit against it in Leon Circuit Court, not Broward, and exited the litigation. The case against Coral Springs and the county remained alive after Broward Circuit Judge Carlos Rodriguez denied their motion to dismiss on sovereign immunity. The clerk's status divided the Fourth District Court of Appeal on March 9. In a 2-1 decision, the panel considered whether the clerk had judicial immunity for collecting its portion -- a task Forman's attorneys described as part of the overall decision-making process for noncriminal traffic infractions. But Mr. Zoba argued unjust enrichment and sought to recover the share of the fine the clerk retains after deducting 0.5 of a percent for administrative expenses. The appellate court largely sided with the clerk, dismissing Forman from the litigation after finding judicial immunity protected him from defending the claim or incurring attorney fees. "The elephant in the room, however, is whether the clerk can ultimately be required to refund any of the monies it retained if the school zone is determined to be illegally established," District Judge Melanie May wrote for the majority. Palm Beach Circuit Judge Jeffrey Gillen, sitting by designation, concurred. "Here if the school zone is found to be illegal, then a traffic fine for an infraction committed in the school zone is unconstitutional, but the administrative costs the clerk earned by statutorily collecting the fine are not," Judge May wrote for the majority. "The clerk earned the costs for performing his statutorily and judicially directed job." Judges May and Gillen found it should be up to a trial court to unravel whether the clerk could keep the majority of his portion, which is deposited in a trust fund after subtracting expenses. "There are several hurdles the plaintiff must first overcome: proving the school zone was illegally created, defending the voluntary payment waiver defense and whether the clerk must refund monies beyond the administrative fees authorized by statute," Judge May wrote. "Wisely the trial court foresaw the issue, but the case was not yet in the procedural posture for the trial court to rule on it. We save that issue for another day." COVIDIEN LLC: Recalls Kangaroo Feeding Tubes -------------------------------------------- Starting date: February 3, 2016 Posting date: February 26, 2016 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57282 This recall is being conducted following customer reports of the incorrect devices within the sterile package. 8fr 16" PVC tubes were inadvertently packaged in a 6.5 fr 36" polyurethane packs and 8fr 20" PVC tubes were inadvertently packaged in an 8fr 20" polyurethane packs. Affected products: A. KANGAROO FEEDING TUBE Lot or serial number: 521807764X (for cat# 461438) 521808064X (for cat# 461701) Model or catalog number: 461438 461701 Manufacturer: Covidien LLC 15 Hampshire Street Mansfield 02048 Massachusetts UNITED STATES COX COMMS: Customers Ordered to Arbitrate Cable Fees Dispute ------------------------------------------------------------ Kurt Orzeck, Bryan Koenig and Daniel Wilson, writing for Law360, report that a California federal judge on March 21 forced Cox Communications Inc. customers to arbitrate their dispute in a proposed class action alleging unauthorized fees for certain cable television service tiers, finding an arbitration clause in an agreement between the parties was enforceable. In an order granting Cox's motion to compel arbitration, U.S. District Judge Janis L. Sammartino said the plaintiffs couldn't pursue in the court their claims Cox duped them with hidden fees. The decision rendered moot a motion by Cox to dismiss and stayed the proceedings, Matti Yousif, Elizabeth Ioane, Zach Beimes and Dawn Harrell had 30 days to opt out of the arbitration clause that first became a part of customer service agreements in 2011, Cox said, but none sought to do so until at least a year and for some as many as three years after they agreed to the dispute resolution provision. Judge Sammartino on March 21 agreed, saying the plaintiffs had agreed to arbitrate any claims related to services Cox provided, which also covered high-speed Internet packages. "There can be little doubt that this arbitration clause -- even though nested in an agreement geared toward high-speed Internet -- encompasses claims arising from Cox's provision of cable TV services," the judge wrote. The lawsuit was first filed in San Diego County Superior Court in May, but Cox removed it to federal court in July. The plaintiffs allege that while the cable giant claims its advertised prices for television services are all-inclusive -- barring government- mandated fees -- it actually charges customers extra, hidden fees for its "Advanced TV" package, allowing it to wrongly rake in millions of dollars from subscribers. Even if these additional charges are disclosed in marketing materials, these disclosures are inadequate either in content or placement, making it unlikely that consumers will either see or understand them, the complaint claimed. The plaintiffs, who are located in Arizona, California and Nevada, allege violations of various state consumer and unfair business practices laws as a result of Cox's purported false advertising, among other claims, and are asking for restitution of the disputed fees and punitive damages. They seek to represent Cox customers in Arizona, California and Nevada who paid an additional Advanced TV fee on top of their standard recurring charges, a proposed class that likely has thousands of members, according to the complaint. Cox took issue with those allegations last July, arguing that the complaint "never specifies what improper 'fee' plaintiffs were allegedly charged or even the actual amount of the fee," Cox said in the filing. "And, while the complaint also concludes that defendants made 'misrepresentations' about -- or did not disclose -- the 'fee,' plaintiffs fail to state any of the required 'who, what, when, where and how' of any alleged deceptive or fraudulent misconduct." The plaintiffs said Cox didn't sufficiently inform the customers about the scope of the clause in the arbitration agreement. But Judge Sammartino on March 21 said it was reasonable for customers to believe that, because they buy packages with a modem, router and cable TV bunched together on the same entertainment center, it wasn't unreasonable for Cox to include a clause for cable TV services in the Internet agreement. "It would defy common sense to suppose that, had customers read the terms carefully and realized that not only high-speed Internet, but also cable TV and telephone services were subject to arbitration, that they would have opted out of the arbitration clause," the judge said. Attorneys for the plaintiffs and Cox, and a representative for Cox, didn't immediately respond to requests for comment on March 21. The plaintiffs are represented by Derrick F. Coleman and R. Jeffrey Neer of Coleman Frost LLP and Craig M. Nicholas -- cnicholas@nicholaslaw.org -- of Alex M. Tomasevic -- atomasevic@nicholaslaw.org -- of Nicholas & Tomasevic LLC. Cox is represented by Richard R. Patch -- rrp@coblentzlaw.com -- Ann E. Johnston -- aej@coblentzlaw.com -- and David B. Anderson -- danderson@coblentzlaw.com -- of Coblentz Patch Duffy & Bass LLP. The case is Yousif et al. v. Coxcom LLC et al., case number 3:15- cv-01499, in the U.S. District Court for the Southern District of California. CVS PHARMACY: Settlement in "Uppal" Granted Final Approval ---------------------------------------------------------- Judge Vince Chhabria granted final approval of a class action settlement in the case captioned RIMANPREET UPPAL, Plaintiff, v. CVS PHARMACY, INC., et al., Defendants, Case No. 14-cv-02629-VC (N.D. Cal.). The proposed settlement was preliminarily approved on September 11, 2015. After conducting a final fairness hearing, Judge Chhabria found that the settlement appears to be fair, adequate and reasonable to the settlement class. The judge also found that the settlement satisfies the requirements for class action settlement under Rule 23 of the Federal Rules of Civil Procedure, and that the settlement class has at all times been adequately represented by the named plaintiff and class counsel. Pursuant to the deal, the Defendant will establish a $2,350,800 Settlement Fund. Plaintiff Rimanpreet Uppal is awarded $10,000 for her time and effort in pursuing this litigation, and in recognition of the broader release she has signed and the hardship she faced in representing the class. Plaintiff's application for attorneys' fees in the amount of $783,600 and reimbursement of litigation costs in the amount of $20,494.11 is granted in part. Plaintiff is awarded $587,700 in attorney's fees, in keeping with the Ninth Circuit's 25% benchmark for attorney's fees in common fund cases. See, e.g., Staton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998)). Plaintiff's application for reimbursement in the amount of $20,494.11 is granted. Further, the Court approves payment of up to $23,290.08 for the Settlement Administrator, Kurtzman Carson Consultants LLC, or, in the event that there will be a second distribution to Settlement Class Members from unclaimed funds, if any, payment of up to $28,815.08 for the Settlement Administrator. A full-text copy of Judge Chhabria's March 10, 2016 order and judgment is available at http://is.gd/ZhXd0Pfrom Leagle.com. Rimanpreet Uppal, Plaintiff, represented by Michael Hagop Boyamian, Law Offices of Thomas W. Falvey, Aidan Conor McGlaze, Schonbrun Seplow Harris and Hoffman LLP, Alireza Alivandivafa, Alireza Alivandivafa, Attorney and Counselor at Law, Azadeh C. Dadgostar -- azadeh@dadgostarlaw.com -- Dadgostar Law LLP, Hirad David Dadgostar -- hirad@dadgostarlaw.com -- Law Offices of Hirad D. Dadgostar, Michael David Seplow, Schonbrun Seplow Harris and Hoffman LLP, Thomas Walker Falvey, Law Offices of Thomas W. Falvey & V. James DeSimone, V. JAMES DESIMONE LAW. CVS Pharmacy, Inc., CVS RX Services, Inc., Garfield Beach CVS, LLC, Defendants, represented by Michael David Weil -- mweil@orrick.com -- Orrick, Herrington & Sutcliffe LLP & Timothy Joseph Long -- tjlong@orrick.com -- Orrick Herrington & Sutcliffe LLP. ECO CHIC: Recalls Electric Scooter Due to Noncompliance ------------------------------------------------------- Starting date: February 2, 2016 Posting date: February 2, 2016 Type of communication: Consumer Product Recall Subcategory: Electronics, Tools and Electrical Products Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-56926 This recall involves the following products with the model numbers included below: Model Model Number Colour ----- ------------ ------ Smart Balance Wheel SBS01 Black Smart Balance Wheel SBS01 White Smart Balance Wheel SBS04 Black with Bluetooth Speaker Smart Balance Wheel SBS04 White with Bluetooth Speaker These products may also be known as Tiltee Sport 2-Wheel Self- Balancing Electric Scooter or Tiltee Cruising 2-Wheel Self- Balancing Scooter with Built-in Bluetooth Speaker. These products were sold with battery chargers that did not have the necessary electrical certification to be sold in Canada. In addition, the affected units were sold with English-only instruction manuals. Neither Health Canada nor Eco Chic Distribution Inc. has received any reports of consumer incidents or injuries related to the use of these products in Canada. 119 units of the recalled products were sold online in Canada. The recalled products were sold from November 2015 to December 2015 in Canada. Manufactured in China. Importer: Eco Chic Distribution Inc. Toronto Ontario CANADA Manufacturer: Vidar International Co., Ltd. Shenzhen Guangdong Ontario CANADA Consumers should immediately stop using the recalled products and return them to the place of purchase. Recalled products purchased from www.costco.ca may be returned to your nearest Costco warehouse location. For more information, consumers may contact Eco Chic Distribution Inc. by telephone at 1-647-574-0326, from 10 am to 4 pm ET. Pictures of the Recalled Products available at: http://is.gd/iAJlIO ELECTROLUX: 11th Cir. Reverses Class Certification in Washer Case ----------------------------------------------------------------- Daniel Fisher, writing for Forbes.com, reports that the 11th Circuit Court of Appeals reversed class certification for a pair of "smelly washer" cases, agreeing with Electrolux that individual issues including whether purchasers relied on advertising that neglected to raise the possibility of foul smells along with freshly washed laundry. The court's decision by no means ends the litigation against Electrolux, which made the front-loading washers sold under the Frigidaire brand. But it does lay out clear instructions for when judges can assemble class actions like this, and dresses down the circuit court judge who got an essential part of the formula backwards. In her ruling certifying classes of consumers in California and Texas, U.S. District Judge Lisa Godbey Wood in Georgia said the proper approach is to resolve any doubts as to the appropriateness of class treatment in favor of the plaintiffs. That's backwards, the appeals court said: Plaintiff lawyers have the burden of proof, and if doubts remain, "the party with the burden of proof loses." Electrolux also argues the plaintiff lawyers failed to establish predominance because under California and Texas consumer laws, plaintiffs must show they suffered damages because they relied on the company's representations. That could require looking into each individual plaintiff's claim to determine if they bought their washers because of false advertising, the court said. Those state laws also require plaintiffs to say whether they notified the company of the problem, sought a refund, and whether the problem showed up during the warranty period. The court laid out a neat test for whether predominance has been established: If the evidence the plaintiffs must present changes significantly when an individual plaintiff is added to or subtracted from the class, then classwide claims probably do not predominate. Predominance has taken on increased importance in the wake of U.S. Supreme Court rulings including Wal-Mart v. Dukes and Comcast CMCSA +1.25% v. Behrends, which ordered judges to inquire more vigorously into whether claims are truly shared across the entire class. The 11th Circuit sent the case back to district court for further proceedings on whether classwide reliance and the other factors can be established. It wasn't a total victory for Electrolux, but signaled that in the 11th Circuit at least, judges must be more careful exercising the "awesome power" of certifying a class action. Class actions, the court reminded us, "are an exception to our constitutional tradition of individual litigation." Whirlpool faces similar litigation over front-loading washers, which the government encouraged because of their water efficiency but which also had the unfortunate side effect of trapping moisture in their door gaskets and making unpleasant smells. The U.S. Supreme Court sent one Whirlpool class action back to the Sixth Circuit for reconsideration in 2013 after issuing its Comcast ruling. But the Sixth ignored the Supreme Court's warnings and reinstated the class. Whirlpool won the first test case anyway in 2014, but plaintiff lawyers vow to bring more. ENTERPRISE RECOVERY: Violated FDCPA, "Bazzano" Suit Claims -------------------------------------------------------------- A class action lawsuit has been commenced against Enterprise Recovery Systems Incorporated. The case is captioned Chris Bazzano, on behalf of himself and all others similarly situated, the Plaintiff, v. Enterprise Recovery Systems Incorporated, the Defendants, Case No. 2:16-cv-00423-MHB (Dist. Ariz, Phoenix Div., February 15, 2016). Enterprise Recovery Systems, Inc. provides resolution and recovery of delinquent accounts, and collection services for colleges and universities, guarantee agencies, private lenders, and the Department of Education. Its programs include base collections of student account receivables, tuition fees, federal student and institutional loans, and guarantor and lender services. The company also provides higher education accounts receivable management services, including traditional delinquent receivable and loan account collections, first party call center services, skip tracing, a default aversion program, and more. The Company is based in Oak Brook, Illinois. The Plaintiff is represented by: Joseph Michael Panvini, Esq. Russell Snow Thompson IV, Esq. THOMPSON CONSUMER LAW GROUP PLLC 5235 E Southern Ave., Ste. D106-618 Mesa, AZ 85206 Telephone: (602) 388 8898 Facsimile: (866) 317 2674 E-mail: tclg@consumerlawinfo.com tclg@consumerlawinfo.com EXPERIAN INFO: Alston Claims Dismissed, Letren Claims Proceed ------------------------------------------------------------- In the case captioned CANDACE E. ALSTON and NEIL F. LETREN, Plaintiffs, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant, Civil Action No. TDC-14-3957 (D. Md.), Judge Theodore D. Chuang granted in part and denied in part the motion to dismiss filed by Experian Information Solutions, Inc. and denied the cross-motion for summary judgment filed by the plaintiffs Candace E. Alston and Neil F. Letren. Alston and Letren filed a suit against Experian alleging violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. Sections 1681 et seq. (2012), specifically Section 1681i(a)(3)(A) and (B). Both plaintiffs had previously submitted several written disputes to Experian about various credit reporting entries. In their complaint, they alleged that Experian did not reasonably determine that their subsequent disputes were frivolous or irrelevant, and that Experian failed to provide them with the required statutory notification of those determinations. Experian moved to dismiss Alston's claims, arguing that they are barred under the doctrine against claim splitting because they stem from the same set of underlying facts at issue in another lawsuit Alston filed against Experian which is currently pending before the court. Experian also moved for dismissal of Letren's claims under Federal Rule of Civil Procedure 12(b)(6), asserting that Letren failed to allege sufficient facts to state a claim for violation of Section 1681i(a)(3)(A) or (B). Judge Chuang found that Alston's claims arise out of the same series of transactions and core of operative facts which form the basis for her other pending suit, namely Experian's credit report entries relating to her Wells Fargo mortgage account. The judge also found that both cases allege the same overarching statutory violation that Experian violated 15 U.S.C. Section 1681i because it did not conduct a reasonable investigation into her disputes. Thus, Judge Chuang agreed with Experian in concluding that Alston's claims are barred by the doctrine of claim splitting. Consequently, with respect to Alston's claims, Judge Chuang granted Experian's motion to dismiss and necessarily denied the plaintiff's cross-motion for summary judgment. Judge Chuang, however, denied Experian's motion to dismiss as to Letren's claims upon finding that Letren's allegations were enough to state a claim under Section 1681i(a)(3)(A) and (B) of the FCRA. The judge also denied the cross-motion for summary judgment as to Letren's claims because Experian has asserted that it needs but has not yet had an opportunity to discover information essential to its opposition to Letren's allegations. A full-text copy of Judge Chuang's March 3, 2016 memorandum opinion is available at http://is.gd/6sxyaqfrom Leagle.com. Neil F. Letren, Plaintiff, represented by Kevin L Chapple -- chappleanc@aol.com -- Chapple Law Firm. Experian Information Solutions, Inc., Defendant, represented by Sandy David Baron -- sbaron@shulmanrogers.com -- Shulman Rogers Gandal Pordy and Ecker PA FACEBOOK INC: Judge Hears Arguments in Link-Scanning Class Action ----------------------------------------------------------------- Ross Todd, writing for The Recorder, reports that U.S. District Chief Judge Phyllis Hamilton had pointed questions for both sides on March 16 in a hearing over whether she should certify a class action against Facebook Inc. for alleged violations of federal and state privacy laws. Judge Hamilton's questions for Facebook's lawyer at Gibson, Dunn & Crutcher could signal that the suit, which is potentially worth billions to plaintiffs, may not be going away any time soon. Still, she stopped well short of waving the case through the formidable hurdle of class certification. Throughout the hearing, both sides urged Hamilton to look to an opinion by U.S. District Judge Lucy Koh in a similar case against Google Inc. for guidance. Judge Koh, who has been nominated to the U.S. Court of Appeals for the Ninth Circuit, allowed claims that Google scanned Gmail messages to serve targeted ads survive a motion to dismiss only to later deny class certification. Judge Koh found the issue of whether individual users consented to the scans predominated any common issues. Plaintiffs lawyers accuse Facebook of unlawfully intercepting information on web links contained in users' direct messages. Lieff Cabraser Heimann & Bernstein's Michael Sobol argued on March 16 that the evidence weighs against finding that users have consented to the way Facebook intercepts the URLs, then stores and analyzes them for further insights into users' online behavior. "I don't think they've done enough on this record to imply consent, because the truth is [the way the system works] is a secret," Mr. Sobol said. But Judge Hamilton pointed out early in Mr. Sobol's argument that he was asking her to certify a class that went beyond allegations included in the latest complaint. The complaint cited an October 2012 report by The Wall Street Journal showing that links included in private Facebook messages increased the count of "Likes" registered on sites that displayed Facebook's "Like" button. Mr. Sobol said it wasn't until after plaintiffs obtained access to Facebook's source code in discovery that their expert was able to determine Facebook's methods. His team found conduct beyond the bump in "Likes" that constituted illegal behavior, Mr. Sobol said, defending the altered class definition as "a technical improvement offered for precision." Arguing for Facebook, Gibson Dunn's Christopher Chorba -- cchorba@gibsondunn.com -- said that the plaintiffs should at the very least be forced to amend their complaint. He further argued that the plaintiffs expert had made mistakes in interpreting the company's source code. But he also urged Hamilton to look to Judge Koh's analysis of the consent issue in the Gmail case. "Isn't this case different from the Gmail case?" Hamilton asked. Hamilton said that Google could point to specific information provided by the company to users about its email scanning practices. Hamilton said that Facebook's request to seal thousands of pages of filings associated with the class-certification process could prove to be "a real difficulty for your client on implied consent." "I don't think this information was publicly available or well known," she said. Companies are exempted from liability under the federal Wiretap Act as long as either the sender or receiver has consented to interception. Mr. Chorba argued that evaluating consent would have to be done on an individual message-by-message basis, making the case ill-suited to class treatment. Mr. Chorba noted that Facebook's web developer guide, which disclosed that URL scans were tracked and counted on third-party sites, had more than 7 million unique views during the proposed class period. Judge Hamilton, who reminded the lawyers once again that she's not a Facebook user, asked where the company disclosed that shared links would be processed. FORD: Recalls Police Interceptor Vehicles 2013 Models ----------------------------------------------------- Starting date: February 10, 2016 Type of communication: Recall Subcategory: Car Notification type: Safety TC System: Electrical Units affected: 1374 Source of recall: Transport Canada Identification number: 2016066TC ID number: 2016066 Manufacturer recall number: 16S04 On certain Ford police interceptor vehicles equipped with an auxiliary battery installed by Crown North America, a division of Leggett & Platt Automotive Group, as part of emergency vehicle upfit, the wiring connecting the trunk-mounted auxiliary battery to the vehicle electrical system may have been misrouted or improperly retained. Over time, this could allow the wiring to be damaged, potentially resulting in an electrical short which could cause a fire resulting in injury and/or damage to property. Correction: Ford dealers will inspect wiring and repair, reroute and/or secure as necessary. Make Model Model year(s) affected ---- ----- ---------------------- FORD POLICE 2013 INTERCEPTOR SEDAN (TAURUS) FRESH INC: Obtains Favorable Ruling in Sugar Lip Treatment Case --------------------------------------------------------------- Milafel Dacanay, writing for Tech Times reports that three judges of the California Court of Appeals Ninth Circuit on March 17 unanimously ruled in favor of Fresh Inc., a Boston-based manufacturer of Sugar Lip Treatment, in a class-action suit alleging misinformation. Angela Ebner, a consumer, filed the lawsuit claiming the company was in violation of consumer protection laws, specifically the Sherman Law, which states that a product is already misbranded if the label is already false or misleading. In her suit, Ms. Ebner alleged that the company deliberately misled the consumers by omitting any supplemental information about the product's accessibility. Further, she argued that the product's design, which appeared oversized, gave the impression that the tube contained more than what was stated in the label. The Sugar Lip Treatment, which is made of sugar and reparative oils, is available for less than $30. It has an indicated size of 4.3 grams (0.15 oz.) for the original tube and 2.2 grams (0.08 oz.) for the mini version. The tube is also equipped with a concealed metallic base weighing 5.35 grams (0.19 oz.), which means, along with the cardboard box, one regular lip balm package can be up to 29 grams (1 oz.). The lip balm works by twisting the bottom of the tube to reveal the bullet. Ms. Ebner, however, said that only 75 percent of the tube became available in each use and she was therefore "deprived of the value of her purchases," the opinion said. However, Fresh Inc. countered by saying that, under consumer laws, it is not required to provide any supplemental information in its packaging. The judge also cited that the company did not commit any federal violation as the box specifically and accurately stated the actual weight and content of the tube. Furthermore, the twisting mechanism used in Sugar Lip Treatment is common in the market and that consumers like Ms. Ebner should be familiar with how it works and that the remaining content is often at the bottom to keep the bullet in place. "It is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool," ruled the court. Ms. Ebner has yet to issue a statement about the decision. GENERAL MOTORS: Recalls Sierra and Silverado 2015 Models -------------------------------------------------------- Starting date: February 4, 2016 Type of communication: Recall Subcategory: Light Truck & Van, SUV Notification type: Safety Mfr System: Brakes Units affected: 47148 Source of recall: Transport Canada Identification number: 2016053TC ID number: 2016053 Manufacturer recall number: 20760 On certain Heavy Duty and Police Pursuit vehicles, the brake pedal pivot nut may become loose, causing the brake pedal to be loose or inoperative. If the brake pedal becomes loose or inoperative, it could interfere with the accelerator pedal, and/or the driver may be unable to safely stop the vehicle through application of the brake pedal, potentially affecting stopping distances and increasing the risk of a crash causing injury and/or damage to property. Correction: Dealers will inspect the pivot bolt installation to determine whether the vehicle has already received the production remedy. If not, the dealer will add adhesive to the nut, and reinstall the nut at an increased torque. Note: This condition may result in the "Service Engine Soon" light illuminating, and brake lights may stay on longer than expected. Make Model Model year(s) affected ---- ----- ---------------------- GMC SIERRA 2015 CHEVROLET SILVERADO 2015, 2015, 2015, 2015 GENERAL MOTORS: Recalls Sierra and Silverado 2016 Models -------------------------------------------------------- Starting date: February 11, 2016 Type of communication: Recall Subcategory: Light Truck & Van Notification type: Compliance Mfr System: Electrical Units affected: 4 Source of recall: Transport Canada Identification number: 2016068TC ID number: 2016068 Manufacturer recall number: 15808 Certain vehicles may fail to conform to Canada Motor Vehicle Safety Standard (CMVSS) 114 - Theft Protection and Rollaway Protection, and CMVSS 208 - Occupant Protection In Frontal Impacts. The radio software may intermittently fail to provide an audio warning when a key is left in the ignition and the driver door is opened, or when the driver forgets to put on their seat belt, which is contrary to the requirements of the standard. A loss of the seat belt audible warning may increase the likelihood of a front outboard occupant being unbelted, increasing the risk of injury in a crash. Similarly, the loss of an audible warning when a key is left in the ignition may increase the risk of vehicle theft. Correction: Dealers will reflash the radios with corrected software. Make Model Model year(s) affected ---- ----- ---------------------- GMC SIERRA 2016 CHEVROLET SILVERADO 2016 GENERAL MOTORS: Ignition Switch Trial Judge Known for Intellect --------------------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that after months of preparation, the first General Motors defective ignition switch trial had just collapsed because of possible perjury by the plaintiff. And Judge Jesse Furman had to deal with it. Judge Furman had found that the client, Robert Scheuer and his wife, Lisa, perpetrated "a fraud on the court and the jury." In his low-key but firm manner, and with a slight smile, the judge suggested to lawyer Robert Hilliard, who was watching his client's case implode, that it was time to fold up the tent. "Don't get me wrong," Judge Furman said to his Manhattan courtroom. "As far as I'm concerned, it's a very enjoyable trial and I'm quite ready to see it through to completion. "But it might make sense to make this case go away." Mr. Hilliard complied, and the case was withdrawn, cementing an inauspicious start for plaintiffs in the first of six bellwether trials for hundreds of cases alleging the company knew of, and was late to recall, cars with defective switches (NYLJ, Jan. 22). Judge Furman, who recently passed his fourth year on the Southern District bench, has been presiding over the sprawling multidistrict litigation since 2014, making hundreds of evidentiary rulings and sorting out which laws from which state are to be applied. Since receiving his commission in 2012 after being nominated by President Barack Obama, the New York native has handled all kinds of matters, including another case of broad size and scope -- the Americans with Disabilities Act litigation alleging New York City's deficient planning failed to keep the disabled out of harm's way during Hurricane Irene and, while the case was pending, Hurricane Sandy. Judge Furman presided over a bench trial and issued a liability opinion that faulted New York City's plans on evacuation, sheltering and informing the disabled in emergencies. But he also had praise for the city in many respects, and the opinion set the stage for a settlement over which he is still presiding (NYLJ, Oct. 2, 2014). "The principals on both sides were compelling," Judge Furman said in interview on March 9. "And what was at stake, on both sides, was very compelling." Judge Furman, 43, is married and the father of three children, ages 8, 12 and 14. He said working as a judge, especially on the major cases, forces him to set limits. "I find the job incredibly fulfilling," he said. "But there's always more to be done so it can be a little unrelenting. You could work 24 hours a day." Judge Furman was educated at the Dalton School in New York City and graduated from Harvard University in 1994. After receiving his degree from Yale Law School in 1998, he clerked for Southern District Judge Michael Mukasey from 1998 to 1999 and then Judge Jose Cabranes of the U.S. Court of Appeals for the Second Circuit from 1999 to 2000. Between two, two-year stints in private practice with Wiggin and Dana in New Haven, Furman clerked for U.S. Supreme Court Justice David Souter from 2002 to 2003. He returned to the Southern District as a prosecutor and then went to Washington D.C. in 2007, where he served as counselor to his old boss, then-U.S. Attorney General Mukasey. GENERAL MOTORS: Ignition Switch Second Bellwether Case Begins ------------------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that the attorney for plaintiffs in the General Motors ignition switch litigation told a Southern District jury on March 14 that the company failed to take real responsibility for a "debacle" that left people injured and dead. Randall Jackson -- rjackson@bsfllp.com -- said his clients, Dionne Spain and Lawrence Barthelemy, were the victims of GM's failure to deal straightforwardly with the public on defective switches when Spain's 2007 Saturn Sky lost power brakes and steering on a New Orleans bridge on Jan. 24, 2014. "This is a case of broken promises," Mr. Jackson said during opening statements at GM's second bellwether trial in Judge Jesse Furman's courtroom. "It's a case about broken promises by a broken company." Mr. Jackson, a partner at Boies Schiller & Flexner, said the problem that GM covered up for years -- ignition switches that can be jarred into switching to the "accessory" or "off" position -- was what happened to Spain's car. "The car just cut off in the middle of the road," he said. "It just cuts off. There's no power steering, and she is just barely able to avoid an accident." But GM attorney Mike Brock -- mike.brock@kirkland.com -- a partner at Kirkland & Ellis, told the jury during his opening that unseasonably cold weather caused sheets of black ice to form on the Crescent City Connection Bridge. "The car is not the villain in this case," Mr. Brock said. "This accident was caused by ice." He showed a picture of the blue sports car, which Spain's own statements indicated received no more than a scrape when it hit the Jersey barrier on the bridge. There were no dents on the car and Spain and Barthelemy received only minor tissue injuries, he said. Spain in fact kept an appointment that evening to meet her friends at a nightclub, Mr. Brock said, and the accident was "so minor it was not an airbag deployable-event." When Spain called GM to complain after the accident, Mr. Brock said, "her complaint was not 'I had no power steering' or "I had no power brakes,' it was 'My airbag didn't deploy.'" The trial is the second of six bellwether trials before Furman where plaintiffs lawyers are looking for a finding of liability against the company and, in the case of Spain and Barthelemy, compensatory damages. The six trials are supposed to set the contours for settlement or damages in hundreds of cases before Furman in In re: General Motors Ignition Switch Litigation, 14-md-02543. The first case fell to pieces in January when information came to light that name plaintiffs Robert and Lisa Scheuer might have perpetrated a fraud on the court by lying about his car accident and its aftermath (NYLJ, Jan. 25). While the Scheuer case was selected by plaintiffs, Barthelemy's and Spain's case was selected by GM and, on March 14, Mr. Brock was confident the facts would support the defense. GENERAL MOTORS: Juror in Ignition Switch Trial Dismissed -------------------------------------------------------- Andrew Denney, writing for New York Law Journal, reports that a juror for the second General Motors ignition switch litigation was dismissed on March 17 for nodding off during the proceedings. Southern District Judge Jesse Furman told Juror No. 2, who was brought into the courtroom alone, that he had observed she was "having some trouble staying awake" during the trial and decided that she should be excused. The judge said it was important for the parties in the case that "every juror can give the attention the case deserves." When they returned, Judge Furman told the remaining nine jurors that he would not go into detail about the reasons for Juror No. 2's dismissal, but said they "shouldn't be concerned that this is a version of 'The Hunger Games' or 'Survivor.'" The case is the second of six bellwether cases to establish to parameters of a potential settlement by GM. Three cases will be chosen by each side. The first case was chosen by the plaintiffs, but the case unraveled in January after revelations that the plaintiff and his wife may have committed perjury (NYLJ, Jan. 25). In the second case, Dionne Spain, the lead plaintiff, claims that a defective ignition switch in her Saturn Sky caused her to lose control of the vehicle in 2014 on a bridge where 30 vehicles had been in accidents that same night because of black ice. On March 17, Ms. Spain took the stand for a second day of cross- examination, answering questions about her medical history before and after the accident. She did not seek medical treatment immediately following the accident, but claims she suffered neck and shoulder injuries. Kirkland & Ellis partner Mike Brock is representing GM. Ms. Spain is represented by Boies, Schiller & Flexner partner Randall Jackson. GENERAL MOTORS: Lawyers Want Bankruptcy Order Affirmed ------------------------------------------------------ Ben Bedell, writing for New York Law Journal, reports that lawyers for General Motors faced skepticism from the U.S. Court of Appeals for the Second Circuit on March 15 as the automaker argued that a bankruptcy court's order protecting it from most pre-2009 ignition switch defect claims should be affirmed. Southern District Bankruptcy Judge Robert Gerber ruled in April 2015 that a preponderance of the defect suits were barred by the provisions of the bankruptcy sale order he entered in July 2009, which transferred GM's assets to a reconstituted "New GM," which was "free and clear" of claims against the pre-bankruptcy entity. But claimants who could show that conduct by the new entity had prejudiced claims they could have brought in 2009 would be allowed, Gerber ruled. Both GM and the ignition switch plaintiffs appealed the parts of Gerber's ruling adverse to them. Plaintiffs lawyers argue that owners of 2.1 million GM cars with ignition switch defects sold before the carmaker's July 2009 bankruptcy should not be barred from suing New GM. Cars with ignition switch defects purchased after the bankruptcy are the focus of a slew of suits, consolidated into a single class-action proceeding, whose viability is now being tested by the second of six bellwether trials before Judge Jesse Furman in the Southern District courthouse across the street from where Second Circuit Judges Chester Straub, Susan Carney and Denny Chin heard arguments on March 15. The ignition switch claims allege the defect caused cars to suddenly stall, lose power brakes and steering and prevented air- bag deployment. GM argues that the 2009 bankruptcy sale of assets of "Old GM" to the new entity forecloses all claims against New GM. The plaintiffs argue that because Old GM engineers and executives knew of the ignition switch defect at the time of the bankruptcy, and failed to announce a recall or give notice to car owners, the bankruptcy order barring successor liability should be modified to allow all such claims. The defect was not revealed until 2014, when GM announced a recall. GM lead attorney Arthur Steinberg, a partner at King & Spalding, argued the plaintiffs were seeking "special treatment" and a "second bite at the apple" that other Old GM car owners with defects do not have. He said there would have been no rescue of GM if the sale meant New GM would have assumed the liabilities of Old GM. Mr. Steinberg told the panel there was no evidence that GM engineers knew of a defect significant enough to trigger a mandatory safety recall in 2009. GM announced a safety recall to fix the switches in February 2014, and subsequently acknowledged it knew of, and concealed, the defect beginning in the spring of 2012. The plaintiffs argue all of their pre-2009 claims should be allowed against New GM, because the concealment began before the bankruptcy, and the sale process was flawed as a result. GGNSC HOLDINGS: Ark. High Court Sends "Lamb" Suit to Arbitration ---------------------------------------------------------------- In the case captioned GGNSC HOLDINGS, LLC, ET AL, Appellants, v. NELLIE R. LAMB, BY AND THROUGH RICHARD WILLIAMS, AS GUARDIAN OF THE ESTATE AND PERSON OF NELLIE R. LAMB, ET AL, Appellees, No. CV- 15-629 (Ark.), the Supreme Court of Arkansas held that the circuit court erred in denying GGNSC Holdings, LLC's motion to compel arbitration based on the defenses of impossibility of performance and unconscionability. On December 19, 2011, former residents of the nursing homes, special administrators, guardians, or attorney-in-fact of former residents filed a class-action complaint against GGNSC and its other related entities and employees. In February 2012, GGNSC moved to compel arbitration of claims asserted by five former residents Nellie Lamb, Louise Brown, Wilma Richey, Leon Robinson, Jr., and Thomas Roche, based on arbitration agreements that were entered by them or on their behalf at the time of their admission. The Ouachita County Circuit Court denied the motions on January 30, 2014. The Supreme Court of Arkansas reversed and remanded the circuit court's order because the lower court addressed the impossibility- of-performance defense without first making the threshold finding of whether the arbitration agreements were valid. On June 9, 2015, the circuit court entered an amended order denying arbitration, finding that three of the five arbitration agreements were invalid because these were signed by individuals who lacked authority to agree to arbitrate. Further, although it ruled that Lamb and Robinson's agreements were valid, it held that these were not enforceable to compel arbitration based on the defenses of impossibility of performance and unconscionability. Both GGNSC and Lamb appealed. The Supreme Court of Arkansas agreed with the circuit court as to the validity of Lamb's arbitration agreement. However, the Supreme Court held that Lamb has not met the burden of demonstrating that the arbitration agreement is impossible to perform, or that the terms of the agreement and the method of negotiation and execution were procedurally and substantively unconscionable or unconstitutional. A full-text copy of the Supreme Court of Arkansas' March 10, 2016 order is available at http://is.gd/yl0jGlfrom Leagle.com. Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty -- kdougherty@hardinlaw.com -- Jeffrey W. Hatfield -- jhatfield@hardinlaw.com -- and Kynda Almefty -- kalmefty@hardinlaw.com -- Dechert, LLP; by: H. Joseph Escher III -- h.joseph.escher@dechert.com -- Eugene D. Bramblett; and Shook, Hardy & Bacon, LLP by: A. Bradley Bodamer -- bbodamer@shb.com -- for appellants. Campbell Law Firm, P.A., by: H. Gregory Campbell -- greg@gregcampbell.com -- Ludwig Law Firm, PLC,by: Gene A. Ludwig; Reddick Moss, PLLC,; by: Brian D. Reddick and Matthew D. Swindle; and Marks, Balette & Giessel, P.C., by: David Marks, for appellees. GIANT TIGER: Recalls Flakes of Chicken Products ----------------------------------------------- Starting date: February 8, 2016 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Giant Tiger Wholesale Ltd. Distribution: Prince Edward Island, New Brunswick, Nova Scotia, Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 10334 Brand Common Size Code(s) on UPC name name ---- product --- ----- ------ ---------- Bristol Flakes of 142 g All codes 0 75069 15335 6 Chicken HOME DEPOT: Timing of Data Breach Class Action Settlement Unusual ----------------------------------------------------------------- Jan Wolfe, writing for Corporate Counsel, reports that one notable aspect of Home Depot Inc.'s recent settlement in its data breach class action is the timing. The home improvement company settled while its motion to dismiss was still pending, a relatively early juncture. Could other defendants follow this lead and quickly resolve data breach class actions? Kevin McGinty -- KMcGinty@mintz.com -- a Boston-based partner at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, raised this question in a recent blog post. He wrote that the $19.5 million settlement amount is unexceptional but its timing is more unusual. After attending mediation sessions, both sides may have realized that the "likely settlement value of the case did not warrant the substantial cost of additional litigation," Mr. McGinty wrote. "Insofar as that logic would apply with equal force in just about any consumer payment card data breach case, the early resolution of the Home Depot case could provide a model for future settlements." One reason we could see defendants settle early is that, as more of these cases get resolved, there's increasing clarity about what constitutes an appropriate settlement amount. Other defendants, including Target Corp. and LinkedIn Inc., have settled for less than $1 per class member. That's become a useful benchmark, Mr. McGinty says. Relatively speaking, $1 or less per class member isn't a lot of money for big companies. As of October 2015, Home Depot had already incurred costs of $232 million relating to the massive data breach. From the company's perspective, paying $19.5 million (and another $8.5 million in attorneys fees) to put the class action behind it may have seemed like an attractive option. "Given the benchmark established by Target and other similar cases, the anticipated discovery costs in Home Depot could easily equal or exceed the likely cost to settle the consumer claims," Mr. McGinty wrote. In an interview, Mr. McGinty said it's premature to declare a trend of companies settling early. The costs and benefits of mounting a defense will obviously be different for each defendant. And companies with strong defenses may be reluctant to settle litigation as a matter of principle, he says. "It may well be that people will take different approaches," he says. For Home Depot, "the fact that they had already spent so much money was probably the biggest factor" in deciding to settle early, says Zuzana Ikels -- zikels@polsinelli.com -- a San Francisco-based lawyer with Polsinelli. After a big data breach, companies will sometimes voluntarily implement exactly the sort of reforms that plaintiffs would hope to achieve through litigation. That makes data breach class actions unique from other types of consumer class actions, says Ms. Ikels. Often, the defendant will in some sense have "already absorbed" the costs typically associated with a settlement or judgment, she says. Ms. Ikels says that another motivation for settling early is Remijas v. The Neiman Marcus Group, a recent U.S. Court of Appeals for the Seventh Circuit ruling that makes it easier for data breach plaintiffs to assert standing. Before that ruling, defendants had enjoyed a lot of success getting cases dismissed early on. But after this case, the odds of a quick victory on standing grounds aren't as good. "That case certainly was concerning from the defense side," she says. HONDA: Recalls Civic 2016 Models Due to Injury Risk --------------------------------------------------- Starting date: February 1, 2016 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Engine Units affected: 10698 Source of recall: Transport Canada Identification number: 2016047TC ID number: 2016047 On certain vehicles equipped with 2.0L engines, a piston pin circlip may not have been installed or may have been improperly installed into the piston during assembly. If the circlip is not properly installed, over the course of engine operation, the piston pin will rub against the cylinder wall causing noise and damage, or in the worst case, the piston pin may detach from one side of the piston and cause an engine failure. Engine damage will eventually result in the engine stalling. Engine stalling would result in a loss of motive power; an engine failure would result in a sudden loss of motive power and may result in an under hood fire. These potential outcomes in conjunction with traffic and road conditions, and the driver's reactions, could increase the risk of a crash causing injury and/or property damage. Correction: Dealers will inspect, and repair as necessary. Make Model Model year(s) affected ---- ----- ---------------------- HONDA CIVIC 2016 HONDA: Recalls Multiple Vehicle Models Due to Defective Airbag -------------------------------------------------------------- Starting date: February 1, 2016 Type of communication: Recall Subcategory: Car, Light Truck & Van, SUV Notification type: Safety Mfr System: Airbag Units affected: 269201 Source of recall: Transport Canada Identification number: 2016046TC ID number: 2016046 On certain vehicles, the driver frontal airbag inflator could produce excessive internal pressure during airbag deployment. Increased pressure may cause the inflator to rupture, which could allow fragments to be propelled toward vehicle occupants, increasing the risk of injury. This could also damage the airbag module, which could prevent proper deployment. Failure of the airbag to fully deploy during a crash (where deployment is warranted) could increase the risk of personal injury to the seat occupant. Correction: Dealers will inspect/replace the driver's frontal airbag inflator. Note: Honda Canada has created a special Airbag Inflator Hotline for immediate assistance. For more information, please contact: For Honda Owners: 1-877-445-7754 For Acura Owners: 1-877-445-9844 Make Model Model year(s) affected ---- ----- ---------------------- HONDA CR-V 2007, 2008, 2009, 2010, 2011 ACURA TL 2009, 2010, 2011, 2012, 2013, 2014 HONDA INSIGHT 2010, 2011, 2012, 2013, 2014 HONDA RIDGELINE 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014 ACURA RDX 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 ACURA RL 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 HONDA FIT 2009, 2010, 2011, 2012, 2013, 2014 ACURA ZDX 2010, 2011, 2012, 2013 HONDA CR-Z 2011, 2012, 2013, 2014, 2015 ACURA ILX 2013, 2014, 2015, 2016 HYUNDAI: Recalls Tucson 2011 Models Due to Crash Risk ----------------------------------------------------- Starting date: February 8, 2016 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Powertrain Units affected: 2201 Source of recall: Transport Canada Identification number: 2016060TC ID number: 2016060 Manufacturer recall number: R0107 (61C008) On certain vehicles equipped with automatic transmissions, the transmission's fluid cooler hose may have been improperly manufactured. This could result in transmission fluid leaking from the hose, and cause abnormal transmission shifts and/or illumination of the instrument cluster malfunction indicator lamp. If enough fluid is lost, the loss of hydraulic pressure to the transaxle could cause a loss of motive power, increasing the risk of a crash causing injury and/or property damage. Correction: Dealers will replace the cooler hose with the revised hose. Make Model Model year(s) affected ---- ----- ---------------------- HYUNDAI TUCSON 2011 IKEA CANADA: Recalls Ceiling Lamps Due to Injury Hazard ------------------------------------------------------- Starting date: February 9, 2016 Posting date: February 9, 2016 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Physical Hazard Audience: General Public Identification number: RA-57056 This recall involves IKEA HYBY and LOCK ceiling lamps. The HYBY and LOCK ceiling lamps are round, white lamps with glass shades. The HYBY ceiling lamp is 37 cm in diameter and has article number 102.042.66. The LOCK ceiling lamp is 25 cm in diameter and has article number 200.557.51. The ceiling lamps may detach and fall from the ceiling, posing an injury hazard to consumers. Health Canada has not received any reports of consumer incidents or injuries to Canadians related to the use of these products. IKEA Canada and IKEA US each have received two reports of the HYBY and one LOCK ceiling lamp falling or shattering, with no reported injuries. Approximately 22, 261 HYBY and 405, 317 LOCK ceiling lamps have been sold at IKEA stores across Canada and online at www.ikea.ca. Approximately 840, 000 HYBY and LOCK ceiling lamps have been sold at IKEA stores across the United States and online at www.ikea.com. The HYBY ceiling lamps were sold in Canada and the United States from October 2012 to January 2016. The LOCK ceiling lamps were sold in Canada and the United States from November 2002 to January 2016. Manufactured in China. Manufacturer: IKEA Canada Limited Partnership Burlington Ontario CANADA Consumers should immediately remove the ceiling lamp and return it to an IKEA store for a full refund. For more information, consumers may contact IKEA Canada at 1-800- 661-9807 or visit IKEA's website for the IKEA Canada release. Consumers may view the release by the US CPSC on the Commission's website. Pictures of the Recalled Products available at: http://is.gd/WnAs1c ILLINOIS BELL: Court Narrows Claims in "Scott" Suit --------------------------------------------------- In the case captioned CHARLES SCOTT, Plaintiff, v. ILLINOIS BELL TELEPHONE CO. d/b/a AT&T ILLINOIS, Defendant, No. 15 C 2805 (N.D. Ill.), Judge Gary Feinerman granted the motion filed by Illinois Bell Telephone Company to dismiss parts of Charles Scott's amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 17, 2011, Illinois Bell employees sued the company under the caption Blakes v. AT&T Corp., 11 C 336 (N.D. Ill.), alleging that the company violated the Fair Labor Standards Act (FLSA) by requiring Cable Splicers to perform work during their lunch breaks and after their shifts without pay. On February 28, 2014, Scott and 140 other plaintiffs, who had previously opted into Blakes, jointly sued Illinois Bell in Tinoco v. Illinois Bell Telephone Co., 14 C 1456 (N.D. Ill.), as co- plaintiffs rather than as a collective action. The complainants alleged that Illinois Bell shortchanged them on overtime pay in violation of the FLSA. The plaintiffs' claims in the non- collective action suit were severed by Chief Judge Castillo and distributed to judges throughout the district. Scott then filed an amended complaint on July 30, 2015, alleging that Illinois Bell, when calculating his wages, routinely ignored time that he spent working before and after his official shifts and during lunch breaks. Scott sought to recover for all of his unpaid work dating back to July 27, 2008. Scott's suit includes not only the Blakes claims, but also other non-Blakes claims. Illinois Bell sought to dismiss Scott's non-Blake claims, insofar as they pertain to work he performed before February 28, 2011, on the ground that they are barred by the FLSA's three-year statute of limitations for willful violations. Scott countered that, under Rule 15(c)(1)(B), his amended complaint relates back to the day he opted into Blakes, July 27, 2011, and therefore that all of his claims, including his non-Blakes claims are timely insofar as they relate to work performed after July 27, 2008. Judge Feinerman held that Rule 15(c)(1)(B), by its terms, only applies to amended pleadings in the same action as the original, timely pleading. The judge found that Blakes is a different action from Tinoco and Scott's suit, and that the complaint in Tinoco, to which Scott's amended complaint indisputably relates back, was not an amendment to Blakes, but rather the initial filing of a new suit. Judge Feinerman thus granted Illinois Bell's partial motion to dismiss. Scott's non-Blakes claims were dismissed with prejudice to the extent they are based on work performed before February 28, 2011. A full-text copy of Judge Feinerman's March 10, 2016 memorandum opinion and order is available at http://is.gd/5KFsPXfrom Leagle.com. Charles Scott, Plaintiff, represented by Mario E. Utreras, Utreras Law Offices, Inc. Illinois Bell Telephone Company, Defendant, represented by Ellen E Boshkoff -- ellen.boshkoff@faegrebd.com -- Baker & Daniels, George Alan Stohner -- george.stohner@faegrebd.com -- Faegre Baker Daniels LLP, Gregory P Abrams -- gregory.abrams@faegrebd.com -- Faegre Baker Daniels LLP & Lindsey M. Hogan -- lindsey.hogan@faegrebd.com -- Faegre Baker Daniels LLP. INTERSTATE AMUSEMENTS: Dismissed From Guest Workers' Class Action ----------------------------------------------------------------- Taryn Phaneuf, writing for Legal Newsline, reports that a Florida amusement park company is the latest to be dismissed from a proposed class action lawsuit in which H-2B visa guest workers claim they haven't been paid for work they did in 2013 when the U.S. Department of Labor (DOL) allowed the companies to appeal a wage increase. The suit, filed in Maryland federal court, originally included 79 companies. Interstate Amusements of America Inc. is the fifth to be dismissed for allegedly either not employing H-2B workers in Maryland during the specified time period or for having already paid the supplemental prevailing wages in question. The proposed class action, filed in November by Pablo Gonzales- Aviles and Heleodoro Pena-Gonzalez on behalf of H-2B guest workers, could include all of the employees of the remaining 74 companies it names. It also names the DOL. The suit claims that the DOL should not have allowed administrative appeals of the Supplemental Prevailing Wage Determinations it issued in 2013, which constituted a wage increase. As foreign workers performing seasonal work in the U.S., H-2B visa guest workers are paid at least the prevailing wage set by the DOL. The suit alleges that, as a result of the appeals, the workers continued to be paid the lower rate. At least 65 companies named in the suit have filed a motion for dismissal, arguing that the workers have no legal standing and haven't demonstrated that they've been harmed by their employers, R. Wayne Pierce, one of the defendants' attorneys, told Legal Newsline. "They've got to show standing -- they have to show that they're harmed by what's happened," Mr. Pierce said. Instead, Mr. Pierce said, the plaintiffs admitted in a brief responding to a motion to dismiss that the employers haven't done anything wrong, leaving Pierce wondering about their methods in pursuing this suit. From his perspective, the workers are suing their employers for "exercising their legal rights." "The DOL told us we have the ability to challenge our wage rate increases," Mr. Pierce said. "We did that. That wasn't good enough for them." The plaintiffs' response also stated the DOL's policy of paying prevailing wages gives them the necessary "injury-in-fact" to establish legal standing. Defendants are arguing that the workers' claims are against the government only because they are based on statutes that don't apply to non-government parties. For example, the plaintiffs invoke the Administrative Procedure Act, which governs how federal agencies propose and establish regulations. IRVING KAPLAN & ASSOCIATES: Violated FDCPA, "Zemel" Suit Claims -------------------------------------------------------------- A class action lawsuit has been filed against Irving Kaplan & Associates. The case is captioned Hennie Zemel, on behalf of herself and all other similarly situated consumers, the Plaintiff, v. Irving Kaplan & Associates, the Defendant, Case No. 2:16-cv-00796-KM-MAH (Dist. N.J., Newark, February 15, 2016). Irving Kaplan & Associates has been serving the Healthcare and Commercial industry for more than 50 years, specializing in hospitals and doctors groups, fostering strong and successful long term business relationships while providing qualified and professional service required. The Plaintiff is represented by: Daniel Zemel, Esq. ZEMEL LAW LLC 70 Clinton Ave. Newark, NJ 07114 Telephone: (862) 227 3106 E-mail: dzemellaw@gmail.com JAC HOLDING: Fiduciary Breach Claims Against Directors Revived -------------------------------------------------------------- Ben Bedell, writing for New York Law Journal, reports that a minority shareholder's $40 million fiduciary breach claims against the directors of a Cayman Islands company were revived on March 10 by a Manhattan appeals court, which held that he should be allowed to replead the claims under New York law. A three-judge majority of the Appellate Division, First Department, said plaintiff Paul Davis should have had the opportunity to recast the claims under the First Department's precedent set in Brinckerhoff v. JAC Holding Corp., 10 AD3d 520 (1st Dept 2004). Commercial Division Justice O. Peter Sherwood had applied Cayman Islands law which, unlike U.S. law, holds that directors who represent majority shareholders do not owe a fiduciary duty to the minority, except under special circumstances. Caymans law also bars most derivative claims brought by shareholders on behalf of the company. In an opinion by Justice Richard Andrias, the majority said Sherwood's October 2014 ruling had been correct to apply Cayman Islands law, because "under the internal affairs doctrine, claims concerning the relationship between the corporation, its directors, and a shareholder are governed by the substantive law of the state or country of incorporation, in this case the Cayman Islands." But because Mr. Davis "asserts unequal treatment in the form of an intentional, premeditated plan," his claims would be permissible under Brinckerhoff. Mr. Davis alleged two U.S. investment funds, which gained control of the company in 2007, paid themselves a "huge windfall dividend while freezing out minority shareholders in order to induce them to sell their shares to the investors at a steep discount." Justice Andrias said Mr. Davis should also be allowed to show the derivative claims could have fit into the exceptions permitted by Caymans law. Justices Rolando Acosta and Sallie Manzanet-Daniels joined in the opinion in Davis v. Scottish Re Group Limited, 654027/13. A partial dissent by Justice Karla Moskowitz and joined by Justice Peter Tom, said all of Davis' claims were barred by Caymans law disfavoring derivative and fiduciary breach claims by minority shareholders. The dispute arose when a multi-billion dollar distressed-company fund, Cerberus Capital, together with funds controlled by insurance giant Massachusetts Mutual Life Insurance Company, bought a controlling interest in Scottish Re, which was experiencing steep losses. Mr. Davis owned almost 20 percent of the company and nearly half a class of preferred securities issued by Scottish Re. But after the Cerberus group gained control by buying a 34 percent voting stake, they paid themselves dividends of $100 million while Davis received $1 million, he claimed. The Cerberus investors also caused Scottish Re to cease writing new insurance policies, and had it delisted as a public company in the United States. In 2011, they made an offer for all the outstanding Scottish Re shares they did not own on terms Davis said were "coercive," effectively telling the minority there was no market for their shares and they could become worthless. Mr. Davis alleged the minority shareholders were deprived of material information, and the "fairness opinion" and its approval by the special committee of ostensibly disinterested board members was flawed because two of the four members had significant yet undisclosed ties to Cerberus and MassMutual. JACK IN BOX: Court Rules on Summary Judgment Bids in "Gessele" -------------------------------------------------------------- In the case captioned JESSICA GESSELE, ASHLEY ORTIZ, NICOLE GESSELE, TRICIA TETRAULT, CHRISTINA MAULDIN, and JASON DIAZ on behalf of themselves and all others similarly situated, Plaintiffs, v. JACK IN THE BOX, INC., a Corporation of Delaware, Defendant, No. 3:14-CV-1092-BR (D. Or.), Judge Anna J. Brown ruled on the motions for summary judgment separately filed by the defendant and the plaintiffs. On August 13, 2010, Jessica Gessele, Ashley Ortiz, Nicole Gessele, and Tricia Tetrault filed a putative class-action complaint in the United States District Court for the District of Oregon against Jack in the Box, Inc. for violation of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) and various Oregon wage-and-hour laws. Christina Mauldin was added as named plaintiff on May 16, 2011. On May 15, 2014, the court granted Jack in the Box's motion for summary judgment on the ground that the plaintiffs failed to timely file written consent forms as required by the FLSA and, therefore, the court never acquired jurisdiction. The entire matter was dismissed without prejudice. On June 10, 2014, Jessica Gessele, Ashley Ortiz, Nicole Gessele, Tricia Tetrault, Christina Mauldin, and Jason Diaz filed a putative class action against Jack in the Box in Multnomah County Circuit Court in which they alleged claims for violation of Oregon's wage-and-hour laws, violation of the FLSA, breach of fiduciary duty, and equitable and quasicontractual claims for return of money. On July 9, 2014, the defendant removed the suit to the district court. On August 31, 2015, Jack in the Box filed a Motion for Partial Summary Judgment; the plaintiffs also filed a Motion for Partial Summary Judgment (Statute of Limitations) and to Establish Tolling for FLSA Collective Members; and the plaintiffs filed a Motion for Partial Summary Judgment on Jack in the Box's 8th (Private Right Of Action), 9th (Due Process) and 12th (Preemption) Affirmative Defenses. Judge Brown ruled as follows: -- granting the defendant's Motion for Partial Summary Judgment and denying the plaintiff's Motion for Partial Summary Judgment (Statute of Limitations) and to Establish Tolling -- granting in part and denying in part the plaintiff's Motion for Partial Summary Judgment on Jack in the Box's 8th (Private Right of Action), 9th (Due Process) and 12th (Preemption) Affirmative Defenses as follows: 1. granting the plaintiff's Motion for Summary Judgment as to the defendant's Eighth Affirmative Defense and dismissing that defense with prejudice; 2. granting in part the plaintiff's Motion for Summary Judgment as to the defendant's Twelfth Affirmative Defense as to those portions of the plaintiff's Seventh and Eighth Claims that are preempted by the FLSA or Oregon's wage-and-hour laws; 3. denying in part the plaintiff's Motion for Partial Summay Judgment as to the defendant's Twelfth Affirmative Defense as to those portions of the plaintiff's Seventh and Eighth Claims that are not preempted by the FLSA or Oregon's wage- and-hour laws. A full-text copy of Judge Brown's March 10, 2016 opinion and order is available at http://is.gd/cTPaZifrom Leagle.com. Jessica Gessele, Ashley Ortiz, Nicole Gessele, Tricia Tetrault, Christina Mauldin, Plaintiffs, represented by Jon M. Egan, Jon M. Egan, P.C.. Jack In The Box Inc., Defendant, represented by Don Stait -- dstait@littler.com -- Littler Mendelson, P.C., Douglas S. Parker -- dparker@littler.com -- Littler Mendelson, P.C. & Jennifer Neth Warberg -- jwarberg@littler.com -- Littler Mendelson. JOHN HANCOCK: Liable to NW Employees, Wash. High Court Says ----------------------------------------------------------- In the case captioned CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN ABELARDO SAUCEDO; FELIPE ACEVEDO MENDOZA; JOSE VILLA MEDONZA; JAVIER SAUCEDO; SANDRA SAUCEDO, Individually, and on behalf of all other similarly situated persons, Appellees, v. JOHN HANCOCK LIFE & HEALTH INSURANCE CO.; TEXAS MUNICIPAL PLANS CONSORTIUM, LLC, Defendants, NW MANAGEMENT AND REALTY SERVICES, INC.; JOHN HANCOCK LIFE INSURANCE COMPANY, Defendants, FARMLAND MANAGEMENT SERVICES, Appellant. ABELARDO SAUCEDO; FELIPE ACEVEDO MENDOZA; JOSE VILLA MEDONZA; JAVIER SAUCEDO; SANDRA SAUCEDO, Individually, and on behalf of all other similarly situated persons, Appellees, v. JOHN HANCOCK LIFE INSURANCE COMPANY; JOHN HANCOCK LIFE & HEALTH INSURANCE CO.; TEXAS MUNICIPAL PLANS CONSORTIUM, LLC, Appellants, FARMLAND MANAGEMENT SERVICES; NW MANAGEMENT AND REALTY SERVICES, INC., Defendants. ABELARDO SAUCEDO; FELIPE ACEVEDO MENDOZA; JOSE VILLA MEDONZA; JAVIER SAUCEDO; SANDRA SAUCEDO, Individually, and on behalf of all other similarly situated persons, Appellees, v. JOHN HANCOCK LIFE INSURANCE COMPANY; JOHN HANCOCK LIFE & HEALTH INSURANCE CO.; TEXAS MUNICIPAL PLANS CONSORTIUM, LLC; FARMLAND MANAGEMENT SERVICES, Defendants, NW MANAGEMENT AND REALTY SERVICES, INC., Appellant, No. 91945-3 (Wash.), the Supreme Court of Washington concluded that NW Management and Realty Services Inc. is a farm labor contractor and that the Hancock Companies, John Hancock Life Insurance Company and John Hancock Life & Health Insurance Co., Texas Municipal Plans Consortium LLC (TMP), and Farmland Management Services are jointly and severally liable for NW's violations of the Farm Labor Contractor Act (FLCA). The Hancock companies owned three apple orchards together with TMP. All three orchards were leased to Farmland, who, in turn, subleased the orchards to NW. The sublease agreement between Farmland and NW provided that NW "will hire, employ, discharge and supervise the work of all employees and independent contractors performing labor and/or services on the orchards. The agreement also left the details of orchard management largely to NW's discretion. Pursuant to all the lease and sublease agreements, the Hancock companies and TMP paid all of NW's costs and collected all of the orchards' profits, minus Farmland's "Management Fee." A class of 722 former employees of NW sued the defendants for violations of state and federal law, including Washington's Farm Labor Contractor Act (FLCA). The district court certified the plaintiff class as to two FLCA claims: (1)that NW violated RCW 19.30.110(1) by failing to carry a current farm labor contractor's license, and (2)that NW violated RCW 19.30.110(7) by making false and misleading representations about worker compensation. The plaintiffs also alleged that Farmland, the Hancock companies, and TMP are jointly and severally liable for NW's violations under RCW 19.30.200 for using the services of an unlicensed farm labor contractor. Farmland, the Hancock companies, and TMP each moved to dismiss, arguing that RCW 19.30.200 penalizes only defendants with actual or constructive knowledge that a contractor is unlicensed. The trial court denied the motions, concluding that the FLCA imposes an affirmative duty on the defendants to verify proper licensure. The district court thereafter granted the plaintiffs' motion for summary judgment and awarded the plaintiffs damages of $500 per class member per violation per year worked, for a total of $1,004,000, as well as attorneys' fees. On appeal by the defendants, the Ninth Circuit certified disputed questions to the Supreme Court of Washington. The Supreme Court of Washington concluded that NW is a farm labor contractor under the plain language of RCW 19.30.010(2) and (3), which defines a "farmer labor contractor" to include an entity who is paid a per-acre fee to manage all aspects of farming -- including hiring and employing agricultural workers as well as making all planting and harvesting decisions, subject to approval -- for a particular plot of land owned by a third party. The Supreme Court also held that, under RCW 19.30.200, any person who uses the services of an unlicensed farm labor contractor without either inspecting the contractor's license or obtaining a representation from the Department of Labor & Industries that the contractor is properly licensed is jointly and severally liable with that contractor, even if that person lacked knowledge that the farm labor contractor was unlicensed. A full-text copy of the Supreme Court of Washington's March 3, 2016 order is available at http://is.gd/OTItBjfrom Leagle.com. Counsel for Plaintiffs: Lori Jordan Isley Columbia Legal Services 6 S. 2nd St. Ste. 600 Yakima, WA, 98901-2680 - and - Joachim Morrison, Esq. Attorney at Law 300 Okanogan Ave # 2a Wenatchee, WA, 98801-6936 - and - Andrea L. Schmitt Columbia Legal Services 711 Capitol Way S. Ste. 304 Olympia, WA, 98501-1233 Counsel for Defendants: Christopher Glenn Emch, Esq. Foster Pepper PLLC 1111 3rd Ave. Ste. 3400 Seattle, WA, 98101-3264 - and - John Ray Nelson, Esq. Foster Pepper PLLC 618 W. Riverside Ave. Ste. 300 Spokane, WA, 99201-0302 - and - Susan Felice DiCicco, Esq. E-mail: susan.dicicco@morganlewis.com Morgan Lewis & Bock 101 Park Avenue New York, NY, 10178 - and - Ari M. Selman, Esq. E-mail: ari.selman@morganlewis.com Morgan Lewis & Bockius LLP 101 Park Avenue New York, NY, 10178 - and - David B. Salmons, Esq. E-mail: david.salmons@morganlewis.com Morgan Lewis & Bockius LLP 2020 K. Street Nw. Washington, DC, 20006-1806 - and - Brendan V. Monahan, Esq. E-mail: brendan.monahan@stokeslaw.com Stokes Lawrence Velikanje Moore & Shore 120 N. Naches Ave. Yakima, WA, 98901-2757 - and - Sarah Lynn Clarke Wixson, Esq. E-mail: sarah.wixson@stokeslaw.com Stokes Lawrence Velikanje Moore & Shore 120 N. Naches Ave. Yakima, WA, 98901-2757 - and - Leslie Richard Weatherhead, Esq. E-mail: lesliew@leehayes.com Lee & Hayes, PLLC 601 W. Riverside Ave. Ste. 1400 Spokane, WA, 99201-0627 - and - Geana Mae Van Dessel, Esq. E-mail: geanav@leehayes.com Lee & Hayes, PLLC 601 W. Riverside Ave. Ste. 1400 Spokane, WA, 99201-0627 Amicus Curiae on behalf of Washington Employment Lawyers Association: Jeffrey Lowell Needle, Esq. Maynard Building 119 1st Ave. S. Ste. 200 Seattle, WA, 98104-3450 - and - Christie Johnson Fix, Esq. E-mail: cfix@frankfeed.com Frank Freed Subit & Thomas 705 2nd Ave. Ste. 1200 Seattle, WA, 98104-1798 Amicus Curiae on behalf of Department of Labor and Industries: Amanda J. Goss, Esq. Attorney General Office 800 5th Ave. Ste. 2000 Seattle, WA, 98104-3188 - and Seattle Labor & Industries A.g. Office Attorney at Law 800 Fifth Ave. Suite 2000 Ms-tb-14 Seattle, WA, 98104-3188 KELLWOOD CO: Class Action Mulled Over Toxic Metals in Jewelry ------------------------------------------------------------- National law firm Keller Rohrback L.L.P. is investigating retailers and manufacturers in connection with the manufacture and sale of girls' dresses that are packaged with necklaces and jewels that may contain high levels of lead and cadmium, both toxic metals. The Washington Department of Ecology recently tested 27 pieces of jewelry packaged with dresses designed for young girls, and the agency found that five of those pieces of jewelry contain very high levels of lead or cadmium. Cadmium and lead are toxic to people, even at low concentrations. Children--for whom the dresses and jewelry were manufactured and sold--are at the most risk from those metals in consumer products because they are likely to put the items in their mouths, swallow them, or have frequent hand-to-mouth contact after touching the jewelry. One of the products the agency tested was 98 percent cadmium, and another was 5 percent lead. Cadmium and lead accumulate in bone and soft tissue of the human body and can cause serious health effects, especially in children. According to a health expert quoted by the Seattle Times, lead and cadmium were found in the jewelry at "astonishingly high levels." "Parents should not need to worry that the clothing and accessories they buy for their kids could expose their children and families to high levels of toxic metals," says Amy Williams- Derry, a Keller Rohrback L.L.P. partner. "The companies that manufactured and sold these products should put safety first." These dresses and jewelry are available from online retailers, including Amazon, and were purchased by the Department of Ecology from online and brick-and-mortar stores such as JC Penney and Arkansas-based department store Dillards. The dresses currently the subject of Keller Rohrback's investigation include: -- Xtraordinary sparkle glitter knit popover dress (UPC 601350728400) manufactured by SWAT Inc.; -- Soulmates Girl caged back three-quarter-sleeve shift dress (UPC 613204330110) manufactured by Big Strike Inc. (coral-colored dress with gold key charm); -- Beautees ivory dress with gold-colored bow charm (UPC 885872676146) manufactured by KWDZ Manufacturing; -- My Michelle Girls floral dress with necklace (UPC 030121774016) manufactured by Kellwood Co.; and -- My Michelle Girls lace-mesh dress with necklace (UPC 030121773897) manufactured by Kellwood Co. The Washington Department of Ecology's report is available here: https://fortress.wa.gov/ecy/publications/documents/1603007.pdf The agency has also posted responses to "Frequently Asked Questions" about its report here: http://www.ecy.wa.gov/programs/hwtr/RTT/cspa/jewelryQandA.html If you have purchased any of the items reported by the Washington Department of Ecology to have toxic cadmium or lead, or if you believe your child may have come into contact with toxic jewelry, please contact attorneys Amy Williams-Derry or Gretchen Freeman Cappio at (800) 776-6044 or via email at consumer@kellerrohrback.com For decades, consumers have trusted the attorneys of Keller Rohrback L.L.P. to protect them from harmful products and unfair trade practices. Our firm is a leader in representing consumers in diverse areas, ranging from vehicles and toys to mortgage modifications and identity theft. Keller Rohrback L.L.P. served as Chair of the Executive Committee in a nationwide MDL against Mattel and Fisher-Price on behalf of purchasers of toys recalled because they were manufactured using lead paint and/or dangerous magnets, In re Mattel, Inc., Toy Lead Paint Products Liability Litigation. On behalf of plaintiffs, we achieved a settlement valued at approximately $50 million. The firm currently serves on the Plaintiffs' Steering Committee in the consolidated consumer lawsuits against Volkswagen for the sale of diesel vehicles with "defeat devices." KIA: Recalls 2011 Models Due to Crash Risk ------------------------------------------ Starting date: February 8, 2016 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Powertrain Units affected: 1402 Source of recall: Transport Canada Identification number: 2016061TC ID number: 2016061 Manufacturer recall number: RC097 On certain vehicles equipped with automatic transmissions, the transmission's fluid cooler hose may have been improperly manufactured. This could result in transmission fluid leaking from the hose, and cause abnormal transmission shifts and/or illumination of the instrument cluster malfunction indicator lamp. If enough fluid is lost, the loss of hydraulic pressure to the transaxle could cause a loss of motive power, increasing the risk of a crash causing injury and/or property damage. Correction: Dealers will replace the cooler hose with the revised hose. Make Model Model year(s) affected ---- ----- ---------------------- KIA 2011 LEKKI GARDENS: Building Residents Urged to Join Class Action ------------------------------------------------------------ Aboyade & Co. said in a notice "Our attention has been drawn to the order of the Lagos State Government asking residents in all buildings constructed by the owners and management of Lekki Gardens Estate, following the recent catastrophic collapse of one of their buildings, to vacate their residence pending the conclusion of an integrity test to be carried out on the buildings to ascertain their structural integrity." "This is a call for concerted efforts. "Virtually all investors in Lekki Gardens Estate, at various times, expressed concern and reservations about the structural integrity and shoddy workmanship of the buildings, particularly when two additional floors were surreptitiously added to what had been represented, offered and sold to investors as a 3-storey residential apartments. "The attention of the developers as well as management of the Estate was called to it on several occasions, but they represented that everything was in order and that they had sought and obtained from the Lagos State Government the necessary regulatory building approvals. "The colossal loss of lives, as well as property and investment, could have been averted if the management of Lekki Gardens Estate had indeed taken action as pleaded by various investors. "Following the building collapse at the Lekki Gardens Estate construction site on Tuesday, March 8 2016, it is now crystal clear that investors' fears were well grounded and that there was non-compliance with standard building procedures, construction was done with poor quality building materials and that there was reckless disregard for safety, which resulted in the death of over 34 hapless souls. "Consequently, the Lagos State Government has now sealed off the buildings and construction sites. "It has therefore become imperative for all of us to take drastic steps in order to protect our investments. It is essential that judicial intervention be immediately sought to protect the investments of investors. "The urgent need to take action is buttressed by the frantic efforts of the management of Lekki Gardens Estate to dissipate its movable assets such as cash, stocks and bonds as a result of the unfortunate event. "This invitation is to all investors interested in seeking urgent judicial reprieve in recovering their investments. Such interested investors should contact the undersigned within 48 hours of this publication (Sunday March 20, 2016) for the institution of a class action" Thank you. Signed: FUNKE ABOYADE, SAN ABOYADE & CO. Transaction Advisors & Specialized Litigation, 19B, Prince Adelowo Adedeji Street, Off admiralty Way, Lekki Phase I, Lagos E-mail: faboyade@aboyade.com Tel: 0803 377 8841, 0818 972 0730, and 0803 355 3757 LOUISIANA-PACIFIC: 4th Cir. Keeps Order to Decertify "Hart" Suit ---------------------------------------------------------------- In the case captioned GWEN HART, on behalf of herself and all others similarly situated; LUCILLE DRUTHER; JOSEPH DRUTHER; EDWARD WUELLNER; JENNIFER WUELLNER, Plaintiffs-Appellants, v. LOUISIANA- PACIFIC CORPORATION, Defendant-Appellee, No. 13-2375 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit affirmed the district court's order granting summary judgment in favor of Louisiana-Pacific Corporation on time-barred claims, as well as the district court's decision to decertify the class. A class action was filed against Louisiana-Pacific asserting claims for breach of the warranty on its TrimBoard, a construction material manufactured by Louisiana-Pacific. The express, ten-year warranty provided a specific and limited remedy if the product failed to live up to expectations. The plaintiffs also claimed that the limited remedy was unconscionable because Louisiana- Pacific allegedly knew that TrimBoard was defective but sold it anyway. As such, the plaintiffs sought compensatory damages not contemplated in the warranty. On July 18, 2011, the district court certified a Rule 23(b)(3) class consisting of "[a]ll persons in the State of North Carolina who owns a home, office or other building in which [TrimBoard] has been installed in the past 10 years." Shortly before trial, Louisiana-Pacific moved for summary judgment, arguing that the claims were barred by a six-year statute of repose. The district court agreed, granting Louisiana Pacific summary judgment and then decertifying the class, because determining which class members' claims were subject to the statute of repose "would necessarily require an individualized determination." On appeal by the plaintiffs, the Fourth Circuit affirmed the district court's grant of summary judgment, but for a different reason. The appellate court held that even assuming the appellants' claims were not barred by the statute of repose, it would still conclude the warranty is not unconscionable. The Fourth Circuit noted that even if Louisiana Pacific knew TrimBoard was likely to fail within nine years, it nevertheless agreed to warrant the product for 10 years and offered purchasers twice their money back or the cost of replacement if and when their TrimBoard did fail. The warranty also extended that remedy beyond the point that Louisiana-Pacific's liability would have been extinguished by the statute of repose. To the Fourth Circuit, such a bargain was not harsh, oppressive, or one-sided. The Fourth Circuit also affirmed the district court's decision to decertify the class. The appellate court found that there were different versions of the warranty with different remedy provisions for TrimBoard sold before and after 2005. The Fourth Circuit held that this multiplicity of warranties undermines typicality. A full-text copy of the Fourth Circuit's March 10, 2016 opinion is available at http://is.gd/IIQsXrfrom Leagle.com. ARGUED: Gary Edward Mason -- gmason@wbmllp.com -- WHITFIELD, BRYSON & MASON, LLP, Washington, D.C., for Appellants. Richard Thell Boyette, CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellee. ON BRIEF: Daniel K. Bryson -- dan@wbmllp.com -- Scott C. Harris -- scott@wbmllp.com -- Raleigh, North Carolina, Nicholas A. Migliaccio, WHITFIELD, BRYSON & MASON, LLP, Washington, D.C.; Joel R. Rhine, Jean S. Martin, RHINE MARTIN LAW FIRM, P.C., Wilmington, North Carolina; Auley M. Crouch, III, Christopher K. Behm, BLOCK, CROUCH, KEETER, BEHM & SAYED, LLP, Wilmington, North Carolina; Charles A. Schneider, Martha B. Schneider, SCHNEIDER & SCHNEIDER, Washington, D.C., for Appellants. Meghan N. Knight, CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellee. MAGNACHIP SEMICONDUCTOR: Court Trims Claims in "Thomas" Suit ------------------------------------------------------------ In the case captioned KEITH THOMAS, et al., Plaintiffs, v. MAGNACHIP SEMICONDUCTOR CORP., et al., Defendants, Case No. 14-cv- 01160-JST (N.D. Cal.), Judge Jon S. Tigar granted in part and denied in part the motion to dismiss in regards to defendant Avenue Capital Management II, L.P. Motions to dismiss in regards to all other defendants were denied as moot after settlement was reached with these parties. A case was brought under both the Securities Exchange Act of 1934 and the Securities Act of 1933, related to allegations that Magnachip made materially false and misleading statements in its financial statements and other information related to securities offerings. Five motions to dismiss were filed by the various defendants. On December 11, 2015, the plaintiffs filed a Notice of Settlement, informing the court that a settlement had been reached that will result in the release of all claims asserted against all defendants, except Avenue Capital. Accordingly, the motions to dismiss in regards to all defendants other than Avenue Capital were denied by Judge Tigar as moot, without prejudice to their re- filing if the settlement agreement is not approved. As to Avenue Capital's motion to dismiss, Judge Tigar ruled as follows: -- denied as to the plaintiffs' claims against Avenue Capital under section 20(a) and 20(A) of the Exchange Act; and -- granted with prejudice as to the plaintiffs' claims against Avenue Capital under section 12(a)(2) and 15 of the Securities Act A full-text copy of Judge Tigar's March 4, 2016 order is available at http://is.gd/gWnTrwfrom Leagle.com. Richard Hayes, Keith Thomas, Plaintiffs, represented by Jeremy A Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Joshua B. Silverman -- jbsilverman@pomlaw.com -- Pomerantz LLP, pro hac vice, Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP, Marc Ian Gross -- migross@pomlaw.com -- Pomerantz LLP, pro hac vice, Michael J. Wernke -- mjwernke@pomlaw.com -- Pomerantz LLP, pro hac vice, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP, pro hac vice, Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm, P.A., Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP & Sunny September Sarkis -- ssarkis@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Herb Smith, Plaintiff, represented by Jeremy A Lieberman, Pomerantz LLP, pro hac vice, Lionel Z. Glancy, Glancy Prongay & Murray LLP, Marc Ian Gross, Pomerantz LLP, pro hac vice, Joshua B. Silverman, Pomerantz LLP, pro hac vice, Michael J. Wernke, Pomerantz LLP, pro hac vice, Patrick V. Dahlstrom, Pomerantz LLP, pro hac vice, Robert Vincent Prongay, Glancy Prongay & Murray LLP & Sunny September Sarkis, Robbins Geller Rudman & Dowd LLP. Magnachip Semiconductor Corp., Defendant, represented by Daniel J. Kramer -- dkramer@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, Robert N Kravitz -- rkravitz@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, Alex Young K. Oh -- aoh@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, Jacqueline P. Rubin -- jrubin@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, John C. Tang -- jctang@jonesday.com -- Jones Day, Kelsey Israel-Trummel -- kitrummel@jonesday.com -- Jones Day & Meredith A. Arfa -- marfa@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice. Margaret Sakai, Defendant, represented by Evan N. Budaj -- evan.budaj@kobrekim.com -- Kobre & Kim LLP,Kimberly Perrotta Cole, Kobre & Kim LLP, pro hac vice & Michael Sangyun Kim -- michael.kim@kobrekim.com -- Kobre & Kim LLP, pro hac vice. R. Douglas Norby, Ilbok Lee, Defendants, represented by Daniel J. Kramer, Paul Weiss Rifkind Wharton & Garrison LLP, Jacqueline P. Rubin, Paul Weiss Rifkind Wharton & Garrison LLP, Meredith A. Arfa, Paul Weiss Rifkind Wharton & Garrison LLP, Robert N Kravitz, Paul Weiss Rifkind Wharton & Garrison LLP & Alex Young K. Oh, Paul Weiss Rifkind Wharton & Garrison LLP. Nader Tavakoli, Defendant, represented by Daniel J. Fetterman, Kasowitz, Benson, Torres & Friedman LLP, pro hac vice, Jason Takenouchi, Kasowitz, Benson, Torres & Friedman LLP, Brian Choi, Kasowitz Benson Torres & Friedman LLP, pro hac vice & Trevor Joseph Welch, Kasowitz Benson Torres & Friedman LLP, pro hac vice. Randal Klein, Defendant, represented by Douglas Maynard, Akin Gump Strauss Hauer & Feld LLP, pro hac vice, Eric Ghiya Ruehe, Akin Gump Strauss Hauer & Feld LLP, John C. Murphy, Akin Gump Strauss Hauer Feld LLP, pro hac vice, Michael Asaro, Akin Gump Strauss Hauer & Feld LLP, pro hac vice,Stephen Michael Baldini, Akin Gump Strauss Hauer & Feld LLP, pro hac vice &Sydney Spector, Akin Gump Strauss Hauer & Feld LLP, pro hac vice. Michael Elkins, Avenue Capital Management II, L.P., Defendants, represented by Douglas Maynard, Akin Gump Strauss Hauer & Feld LLP, pro hac vice, Eric Ghiya Ruehe, Akin Gump Strauss Hauer & Feld LLP, John C. Murphy, Akin Gump Strauss Hauer Feld LLP, pro hac vice, Michael Asaro, Akin Gump Strauss Hauer & Feld LLP, pro hac vice,Stephen Michael Baldini, Akin Gump Strauss Hauer & Feld LLP, pro hac vice &Sydney Spector, Akin Gump Strauss Hauer & Feld LLP, pro hac vice. Barclays Capital Inc., Deutsche Bank Securities Inc., Citigroup Global Markets Inc., UBS Securities LLC, Needham & Company, LLC, Defendants, represented by Matthew Rawlinson, Latham & Watkins LLP, James E. Brandt, Latham & Watkins LLP, pro hac vice & Jason C. Hegt, Latham & Watkins LLP, pro hac vice. Defendant, represented by Matthew Rawlinson, Latham & Watkins LLP, James E. Brandt, Latham & Watkins LLP, pro hac vice & Jason C. Hegt, Latham & Watkins LLP, pro hac vice. Oklahoma Police Pension & Retirement System, Interested Party, represented by Danielle Suzanne Myers, Robbins Geller Rudman & Dowd LLP, Marc Ian Gross, Pomerantz LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Joshua B. Silverman, Pomerantz LLP, pro hac vice, Mary K. Blasy, Robbins Geller Rudman & Dowd LLP, Michael J. Wernke, Pomerantz LLP,Patrick V. Dahlstrom, Pomerantz LLP, pro hac vice, Samuel H. Rudman, Robbins Geller Rudman & Dowd LLP, Shawn A. Williams, Robbins Geller Rudman & Dowd LLP & Sunny September Sarkis, Robbins Geller Rudman & Dowd LLP. MANNARICH FOOD: Recalls Fish Balls and Noodle Products Due to Egg ----------------------------------------------------------------- Starting date: February 11, 2016 Type of communication: Recall Alert sub-type: Updated Food Recall Warning (Allergen) Subcategory: Allergen - Egg Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Mannarich Food Inc. Distribution: Ontario, Quebec Extent of the product distribution: Retail The food recall warning issued on January 29, 2016 has been updated to include additional product information. This additional information was identified during the Canadian Food Inspection Agency's (CFIA) food safety investigation. Mannarich Food Inc. is recalling Mannarich Food brand Fuzhou Fish Balls and Parker Lee brand noodle products from the marketplace because they contain egg which is not declared on the label. People with an allergy to egg should not consume the recalled products described below. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. If you have an allergy to egg, do not consume the recalled products as they may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of these products. This recall was triggered by CFIA test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand Common Size Code(s) on UPC name name ---- product --- ----- ------ ---------- Mannarich Fuzhou 240 g All lots 0 68636 03130 0 Food Fish Balls numbers beginning with "0" Parker Japanese 470 g 02212 0 68636 21061 3 Lee Style Udon Noodle with Seafood Parker Thai Style 470 g 02040 0 68636 21062 0 Lee Rice Noodle with Seafood Pictures of the Recalled Products available at: http://is.gd/OxmO8p MAZDA: Recalls B SERIES 2004 Models Due to Defective Airbag ----------------------------------------------------------- Starting date: February 1, 2016 Type of communication: Recall Subcategory: Light Truck & Van Notification type: Safety Mfr System: Airbag Units affected: 7368 Source of recall: Transport Canada Identification number: 2016050TC ID number: 2016050 Manufacturer recall number: 9116A On certain vehicles, the driver frontal airbag inflator could produce excessive internal pressure during airbag deployment. Increased pressure may cause the inflator to rupture, which could allow fragments to be propelled toward vehicle occupants, increasing the risk of injury. This could also damage the airbag module, which could prevent proper deployment. Failure of the airbag to fully deploy during a crash (where deployment is warranted) could increase the risk of personal injury to the seat occupant. Correction: Dealers will replace the front driver airbag inflator. Make Model Model year(s) affected ---- ----- ---------------------- MAZDA B SERIES 2004 MAZDA: Recalls 2014 and 2015 Model Vehicles Due to Noncompliance ---------------------------------------------------------------- Starting date: February 1, 2016 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Fuel Supply Units affected: 48412 Source of recall: Transport Canada Identification number: 2016049TC ID number: 2016049 Certain vehicles fail to comply with the requirements of Canada Motor Vehicle Safety Standard 301 - Fuel System Integrity. During rear impact crash testing, the fuel filler pipe ruptured, causing fuel spillage exceeding the limit specified by the standard. As a result, a collision involving the rear of the vehicle could result in a fuel leak. Fuel leakage, in the presence of an ignition source, could result in a fire causing injury and/or property damage. Correction: Dealers will remove a bolt on the left rear side member attaching the bracket to the fuel filler pipe. This will change the load path during a rear crash impact preventing filler pipe rupture. Make Model Model year(s) affected ---- ----- ---------------------- MAZDA 2014, 2015 MENTOR GRAPHICS: May 17 Class Action Lead Plaintiff Deadline Set ---------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notifies investors that a securities class action has been filed on behalf of those who purchased shares of Mentor Graphics Corp during the period between August 21, 2014 and November 19, 2015 inclusive (the "Class Period"). Mentor Graphics is a United States based multinational corporation dealing in electronic design automation software and hardware solutions to automate the design, analysis and testing for electrical engineering and electronics. The Complaint alleges that throughout the Class Period, Defendants issued false and misleading statements to investors and/or failed to disclose that: (1) Mentor Graphics' customers were delaying or declining extended license agreements or demanding price concessions from Mentor Graphics due to the unprecedented level of mergers and acquisitions in 2015 and earlier; (2) demand for Mentor Graphics' emulation products had slowed as a result of the anticipated introduction of competitive products, notwithstanding Defendants' assertions that it would be a long time before any competitor could release a competitive virtual emulation product; (3) early customer contract renewals and related bookings had the effect of moving expected bookings and revenue from future periods to earlier periods, and were not, as defendants reported, a sign that demand was strong and increasing; and (4) as a result Mentor Graphics' public statements were materially false and misleading at all relevant times. When this information became public and entered the market, investors suffered damages. On November 19, 2015, the Company released discouraging financial results for its third quarter of fiscal 2016 and substantially reduced its fourth quarter fiscal 2016 financial outlook, reducing its fourth quarter revenue estimate by $104 million. Mentor Graphics also announced that bookings for the three months ended October 31, 2015 had decreased by approximately 20% compared to the three months ended October 31, 2014. This decrease was attributed to a decrease in term license contract renewals. Following this news and on that same day, Mentor Graphics stock fell 36%, to close at $17.85 per share, on heavy trading volume. No Class has yet been certified in the above action. If you wish to review a copy of the Complaint or join the action, please visit the firm's site: http://www.bgandg.com/#!ment/udo7v To discuss this action, or for any questions, please contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484 or via email info@bgandg.com Those who inquire by e-mail are encouraged to include their mailing address and telephone number. If you suffered a loss in Mentor Graphics Corp. you have until May 17, 2016 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of its clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. MICROSOFT CORPORATION: Recalls AC Power Cords Due to Shock Hazard ----------------------------------------------------------------- Starting date: February 2, 2016 Posting date: February 2, 2016 Type of communication: Consumer Product Recall Subcategory: Electronics Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-56754 This recall involves AC power cords sold with Microsoft Surface Pro, Surface Pro 2, and Surface Pro 3 devices prior to March 15, 2015. The cords are black with no serial codes or other markings. Surface Pro and Surface Pro 2 devices have a black case and Surface Pro 3 devices have a silver case, both with the product name on the back of the device toward the bottom. This recall also involves accessory power supply units that include an AC power cord sold separately before March 15, 2015. The recalled power cords do not have a sleeve on the cord on the end that connects to the power supply. The AC power cords can overheat, posing a potential fire or shock hazard. Health Canada has not received any reports of consumer incidents or injuries to Canadians related to these power cords. Microsoft Corporation has received eight reports of the AC power cord overheating in Canada. No injuries were reported. In the United States, Microsoft Corporation has received 61 incidents. Approximately 189,603 units of the recalled AC power cords were sold in Canada and about 2.25 million units in the United States. The recalled products were sold from February 2013 to March 15, 2015. Manufactured in Taiwan, China and United Kingdom. Distributor: Microsoft Corporation Mississauga CANADA Consumers should immediately unplug and stop using the recalled AC power cords and contact Microsoft Corporation for a free replacement. For more information, consumers may contact Microsoft Corporation toll free at 1-855-327-7780 from 9:00 a.m. to 5:00 p.m. EST, Monday through Friday or by visiting the company website. Pictures of the Recalled Products available at: http://is.gd/zWYpV3 NAT'L FOOTBALL: Plaintiffs' Lawyers Want to Put CTE in Settlement ----------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that a lawyer for several former NFL players objecting to the league's $1 billion concussion litigation settlement sent a letter to the federal appeals court reviewing the case with the hope that it would broaden the class of those entitled to compensation. However, attorneys said that it was uncertain as to whether the letter would actually have an impact in incorporating compensation for chronic traumatic encephalopathy (CTE) in the settlement. The letter, written by attorney Steven Molo of Molo Lamken in New York on behalf of seven of the approximately 90 objectors, recounted a recent discussion between Jeff Miller, National Football League executive vice president of Health and Safety Policy, and members of the U.S. House of Representatives Energy and Commerce Subcommittee on Oversight and Investigations. At that "roundtable" discussion, according to Mr. Molo's letter, Mr. Miller said there was a link between CTE and football. CTE is a degenerative neural disease associated with repeated blows to the head. It was historically referred to as dementia pugilistica, or the state of being "punch drunk." Currently, CTE can only be found through autopsy. The roughly 90 players on appeal took issue with the settlement -- reached in April after extended debate -- because it didn't include payment for players diagnosed with CTE after the presiding judge's settlement approval date. The settlement provides compensation for diseases like Alzheimer's and Parkinson's and covers a class of approximately 21,000 former players. "The NFL's admission is stunning in that it is a complete about- face from the position they have taken throughout the litigation," Mr. Molo told The Legal. Asked if the letter would have an impact on the settlement, Mr. Molo said, "It is supplemental authority relevant to the decision the court is about to make." The NFL's attorney, Lynn B. Bayard -- lbayard@paulweiss.com -- of Paul, Weiss, Rifkind, Wharton & Garrison in New York, did not return a call seeking comment. Christopher Seeger of Seeger Weiss in New York, co-lead counsel for the retired NFL players in agreement with the terms of the settlement, said in a statement that he welcomed "the NFL's acknowledgement of what was alleged in our complaint: that reports have associated football with findings of CTE in deceased former players." However, he added, "as the district court correctly held, the scientific study into CTE is in its infancy and a reliable method for detecting it in living people does not exist." Mr. Seeger said that 99 percent of the class wants the settlement as is and that 8,000 retired players have already enrolled for benefits even though the claims process has not been opened, since appellate review is still under way. Charles "Chip" Becker -- Charles.Becker@klinespecter.com -- of Kline & Specter represents 38 objectors in the Third Circuit. "The settlement leaves a huge swath of guys out in the cold," Mr. Becker said, because it provides no compensation for CTE. As for Mr. Miller's statements before the congressional committee, Becker said, "This is the beginning of the NFL's acknowledgement that football is a delivery system for repetitive traumatic injury to the brain." But it is unclear as to whether the so-called admission will lead the Third Circuit to order a change in the settlement. NEOCOIL: Recalls Gem Flex Coil and P-Connector Due to Burn Risk --------------------------------------------------------------- Starting date: February 15, 2016 Posting date: February 22, 2016 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type III Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57206 Part of the cable assembly may overheat when the device is used. Rarely this could result in minor burn injury in case of prolonged direct skin contact with the overheating part. There have been no injuries reported as a result of this issue. Affected products: GEM FLEX COIL 3.0T RECEIVE ONLY Lot or serial number: 0000033-4-0044 0000034-4-0037 0000040-4-0033 033-4-0277 033-4-0314 034-4-0255 034-4-0296 040-4-0020 040-4-0275 040-4-0315 Model or catalog number: NC033000 NC034000 NC040000 Manufacturer: Neocoil N27 W23910A PAUL ROAD PEWAUKEE Wisconsin UNITED STATES B. GEM FLEX INTERFACE 16CH FIXED, 3.0T P-CONNECTOR Lot or serial number: 000032E-4-0041 032E-4-0330 032E-4-0336 032E-4-0394 Model or catalog number: NC032004 Manufacturer: Neocoil N27 W23910A PAUL ROAD PEWAUKEE Wisconsin UNITED STATES NESTLE: Court Dismisses Coffee-Mate Class Action ------------------------------------------------ Jenna Greene, writing for The Litigation Daily, reports that plaintiffs in a would-be class action called coffee creamer Coffee-mate illegal and dangerous, not to mention unfit for human consumption. Mayer Brown lawyers used pre-emption to get the suit against Nestle tossed. On March 8, lawyers from Mayer Brown led by partners Carmine Zarlenga -- czarlenga@mayerbrown.com -- and Dale Giali -- dgiali@mayerbrown.com -- got the suit dismissed with prejudice. The Weston firm sued Nestle in San Francisco federal court in April 2015, alleging that Coffee-mate contains unhealthy partially hydrogenated oil, even though it claims to have "0g trans fat." "The trans fat creamers were worth less than what plaintiff paid for them. Indeed, Coffee-mate is not fit for human consumption and has a value of $0," wrote Gregory Weston on behalf of California resident Troy Backus, asserting violations of California's Unfair Competition Law. Mr. Weston has carved out a specialty suing companies over trans fat, winning a settlement with Quaker Oats Co. in 2014 to remove artificial trans fat from Quaker Chewy Bars, Oatmeal to Go Bars and Instant Oatmeal. The 2004 Harvard Law grad (who started his career at the plaintiffs firm now known as Robbins Geller Rudman & Dowd) has also gone after Cup Noodles and margarine makers. But he struck out with Coffee-mate when U.S. District Judge Maxine Chesney tossed all nine causes of action. The reason? Pre-emption. In June 2015, the U.S. Food and Drug Administration issued a rule that requires food makers to quit using partially hydrogenated oil as of June 18, 2018. The three-year compliance period is designed to minimize market disruption and let companies use up their existing product inventories. "Nestle argues that Backus's suit, which 'seeks to make it immediately unlawful to market or sell' in California any food product containing [partially hydrogenated oil], conflicts with the FDA's regulatory scheme," Judge Chesney wrote. "The court agrees." As for the "0g trans fat" labeling claims, the Mayer Brown lawyers successfully argued that is expressly pre-empted by the Nutrition Labeling and Education Act. The law instructs food makers in the nutrition facts box to say that a product has no trans fat if it has less than 0.5 grams. And no one disputes that the Coffee-mate products at issue contain less than 0.5 gram of trans fat. The question was whether the red-and-white "0g Trans Fat" logo on Coffee-mate's main label, outside the nutrition facts box, was improper. "To date, the Ninth Circuit, albeit in an unpublished decision, as well as three district courts in this district, have found labeling claims that are essentially indistinguishable from the labeling claims here at issue were pre-empted," Judge Chesney found. The judges all found that it was important to maintain consistency between what's in the nutrition facts box (which is spelled out by the law) and what's on the rest of the label to avoid consumer confusion. The nutrition content claim "is neither false nor misleading under federal law," Judge Chesney found. In addition to Mayer Brown partners Zarlenga and Giali, associates Andrea Weiss -- aweiss@mayerbrown.com -- and Elizabeth Crepps worked on the case. NESTLE CANADA: Recalls Liquid Infant Formula -------------------------------------------- Starting date: February 14, 2016 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Other Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Nestle Canada Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 10394 Nestle Canada Inc. is recalling specific lots of Nestle brand Good Start 2 Concentrated Liquid Infant Formula from the marketplace due to potentially reduced bioavailability of nutrients. Consumers should not use or consume the recalled product described below. Check to see if you have the recalled product in your home. Recalled products should be thrown out and consumers should call Nestle Consumer Services for reimbursement at the phone number below. Consumption of the affected product could lead to lower intake of some nutrients, due to reduced bioavailability. There have been reported illnesses; however they have not been confirmed to be caused by consumption of the affected product. This recall was triggered by consumer complaints. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand Common Size Code(s) on UPC name name ---- product --- ----- ------ ---------- Nestle Good Start 12 x 512857211A 12 x 359 mL box: 2 (Omega 3 359 mL Exp: 2016 0 65000 49277 4 & 6, dietary MA 07 Individual fiber, and 512957211A Tetrapak: added iron Exp: 2016 0 65000 49285 9 and calcium) MA 08 Iron Fortified 512957212A Milk-based Exp: 2016 Infant Formula- MA 08 Concentrated 513057211A Liquid Exp: 2016 MA 09 Pictures of the Recalled Products available at: http://is.gd/o0BzXJ NEXGRILL INDUSTRIES: Recalls Barbecue Grill Products ---------------------------------------------------- Starting date: February 4, 2016 Posting date: February 4, 2016 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Fire Hazard Audience: General Public Identification number: RA-56942 This recall involves Nexgrill brand Barbecue Grill (Model #720- 0830D), a free standing barbecue grill with two-door propane tank compartment, four main burners, and a rotisserie burner. The product can be identified by the model number 720-0830D and serial numbers (see table below), which can be found on the inside of the propane tank compartment door. The Costco Canada SKU number is 520178 and the UPC is 044376 283971. The following are the ranges of the serial numbers that were manufactured from 2014 to 2015: Year of Product Serial Numbers Ranges Manufacture --------------------- --------------- 2014 CCC720KSIG0830D-000027A to CCC720KSIG0830D-008691A 2015 CCC720KSIE0830D-000001B to CCC720KSIE0830D-009292B The firebox of the grill may expand, causing the two centre burners and flame tamers to become disengaged from their proper position in the firebox, which may cause gas to be misdirected and not flow to the burners, which could potentially cause a fire hazard. Costco Canada and Nexgrill Industries Inc. have received five consumer incidents reports related to bowl expansion, and flames coming out of the control panel. There were no reports of personal injuries or property damage related to firebox expansion. Health Canada has not received any consumer incidents or injuries to Canadians related to the use of this affected product. Approximately 18,000 units of the affected product were sold at Costco Canada retail stores and from Costco Canada's website. The affected products were sold from February 2014 to September 2015. Manufactured in China. Manufacturer: Nexgrill Industries Inc. 14050 Laurelwood Place, Ca 91710. Chino California UNITED STATES Consumers should immediately stop using the recalled product and contact Nexgrill Industries Inc. to obtain a free retrofit kit and instructions for installation. The retrofit kit is easy to install; however, if the consumer has difficulty installing the retrofit kit, Nexgrill will provide free in-home service. Bilingual video installation instructions are also available online. Consumers are also advised to not use the grill until the retrofit kit has been installed. For additional information, consumers may contact Nexgrill Industries Inc. customer service by visiting Nexgrill's website; by emailing Nexgrill; or by calling Nexgrill toll-free at 1-855- 714-2128 from 7:00 a.m. to 5:00 p.m. PST, Monday through Friday. Pictures of the Recalled Products available at: http://is.gd/v40vAS NOVA BUS: Recalls LFS Artic 2011 Models Due to Crash Risk --------------------------------------------------------- Starting date: February 5, 2016 Type of communication: Recall Subcategory: Bus Notification type: Safety Mfr System: Electrical Units affected: 163 Source of recall: Transport Canada Identification number: 2016058TC ID number: 2016058 Manufacturer recall number: CR3590 On certain buses equipped with an Allison transmission, the main power cable within the energy guiding system (EGS), which connects the rear section to the front section, may be incorrectly routed. As a result, the power cable may disconnect, resulting in a loss of power to certain components in the front section of the bus, notably the driver's shift selector. The transmission will default to neutral, which may result in a loss of motive power, increasing the risk of a crash causing injury and/or property damage. Correction: Dealers will inspect the power cable and repair as required. Make Model Model year(s) affected ---- ----- ---------------------- NOVA LFS ARTIC 2011 NOVARTIS PHARMA: Judiciary Aims to Close Zometa Tort Matters ------------------------------------------------------------ David Gialanella, writing for New Jersey Law Journal, reports that the state judiciary is aiming to close the book on two mass tort matters centralized in Middlesex County in 2008 after the judge there said active matters are no longer pending. One is multicounty litigation by alleged uses of bone-density drugs Zometa and Aredia; the other, multicounty litigation by patients who were injected with contrasting dyes used during MRIs that contain the metal gadolinium. According to a pair of notices to the bar posted March 8, Middlesex County Superior Court Judge Jessica Mayer notified the Administrative Office of the Courts that all active litigation had been resolved on both fronts. The Zometa/Aredia cases were designated for mass tort litigation in January 2008 in Middlesex County. In October 2007, when the application for mass tort designation was filed, there were roughly 35 cases filed in New Jersey and 350 federal cases had been centralized for multidistrict litigation in U.S. District Court for the Middle District of Tennessee. The plaintiffs claimed that Aredia and Zometa -- made by Novartis Pharmaceuticals Corp. of East Hanover and used to treat osteoporosis-caused osteonecrosis of the jaw, or "bone death." They alleged pain and disfigurement as a result, from loss of teeth and the jaw bone itself, which in some cases has to be surgically removed and a metal plate or rod inserted. Two of the New Jersey cases went to trial. In one of them, plaintiff Beverly Meng of Mississippi claimed she had monthly intravenous infusions of Zometa to control bone metastases from breast cancer that had spread to her spine, and stopped the Zometa in November 2006 around the time her dentist noticed exposed bone in her mouth, according to court documents. Mayer dismissed most of the counts -- for strict liability, design defect, breach of express warranty and consumer fraud -- but let stand a claim of insufficient warnings about the alleged side effects. After a 13-day trial, on May 19, 2013, the jury by a 7-1 vote found in Novartis' favor. The no-cause verdict was appealed to the Appellate Division, but before a ruling was issued, the Meng case settled in April 2015 on confidential terms. There were 119 Zometa and Aredia cases still pending at that time, the Law Journal reported. There was only one other New Jersey trial in the Zometa and Aredia cases -- decided in October 2010, and also in Novartis' favor. In that case, as in Meng's, the plaintiff, Jane Bessemer, was a breast cancer patient who had been treated intravenously and who claimed the treatments resulted in jawbone disease, according to court documents. The jury by a 7-2 vote found that Novartis did not fail to adequately warn Bessemer. Pretrial rulings by Mayer - - that the company had no duty to warn nonprescribing dentists and oral surgeons, and that the learned intermediary doctrine applied even though the drug was marketed directly to consumers -- were upheld on appeal, and the state Supreme Court declined to consider them. Plaintiffs in Zometa and Aredia cases fared better with juries outside of New Jersey. For example, in 2012, Herbert Fussman, as administrator for the estate of his wife, Rita Fussman, was awarded $287,000 in compensatory damages and $12.6 million in punitive damages in the U.S. District Court for the Middle District of North Carolina. The judge in that case cut the punitive damages to $861,000 because North Carolina law limits punitives to the greater of $250,000 or three times the compensatory amount. The final judgment of about $1.26 million, including prejudgment interest, was affirmed by the U.S. Court of Appeals for the Fourth Circuit on Feb. 8, 2013, according to a previous Law Journal report. The gadolinium lawsuits were designated a mass tort in April 2008 and centralized in Middlesex County. NUNA CANADA: Recalls High Chair Products ---------------------------------------- Starting date: February 10, 2016 Posting date: February 10, 2016 Type of communication: Consumer Product Recall Subcategory: Children's Products Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-57008 Affected products: Nuna Zaaz High Chairs This recall involves the following Nuna Zaaz high chair models: Model Number Description ------------ ----------- HC07004 ZAAZ HIGH CHAIR - PEWTER HC07006 ZAAZ HIGH CHAIR - PLUM HC07009 ZAAZ HIGH CHAIR - ALMOND HC08004 ZAAZ HIGH CHAIR - PEWTER HC08006 ZAAZ HIGH CHAIR - PLUM The arm bar can bend or detach during use, posing a fall hazard to children. Neither Health Canada nor Nuna Canada has received any reports of consumer incidents or injuries related to the use of these products in Canada. In the United States, Nuna Baby Essentials Inc. has received 50 reports of the arm bar detaching, including 6 reports of children falling from the high chair. Four incidents resulted in injuries, including bruising and a cut on the forehead. Approximately 965 units of the recalled products were sold in Canada and about 5,600 units in the United States. The recalled products were sold from May 2013 to December 2015 in Canada. Manufactured in China. Distributor: Nuna Canada Montreal Quebec CANADA Consumers should immediately stop using the recalled high chairs and contact Nuna Canada to receive a free repair kit. Consumers can order their free repair kit by phone at: 1-800-667- 4111 between 8h30 a.m. and 5h00 p.m. ET Monday through Friday or by registering online. OLD SPICE: Connick Law Files Class Action Over Deodorant -------------------------------------------------------- Connick Law, LLC, on March 21 disclosed that a class action has been commenced in the United States District Court for the Southern District of Ohio on behalf of consumers who purchased allegedly defective Old Spice deodorant, which regularly and routinely causes rashes, irritation, burning and other injury to unsuspecting consumers. If you wish to participate in this class action as a named lead plaintiff, or wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Thomas J. Connick of Connick Law at 216-364- 0512, or via e-mail at tconnick@connicklawllc.com Plaintiff seeks to recover damages on behalf of all purchasers of Old Spice deodorants during the Class Period (the "Class"). The Plaintiff is represented by Connick Law which is experienced in handling class actions, mass torts and consumer law issues. Based in Beachwood, Ohio, Connick Law -- http://www.connicklawllc.com-- handles a wide range of complex litigation cases involving personal injury, insurance law, class and mass actions, commercial law, consumer fraud, construction law, and business litigation. OWENS & MINOR: "Lopez" Suit Asserts Labor Code Violations --------------------------------------------------------- Robert Lopez, on behalf of himself and all others similarly situated, the Plaintiffs, v. Owens & Minor Distribution, Inc., a Virginia Corporation, and Does 1-100, the Defendant, Case No. BC613671 (Cal. Super. Ct. - Los Angeles County, March 14, 2016), seeks to recover overtime and minimum wages, penalties, interest and reasonable attorney's fees and costs under the California Business & Professions Code and California Labor Code. Owens & Minor Distribution, a Virginia corporation, is a distributor of medical and surgical supplies with 3 locations in California. The Plaintiff is represented by: Michael Nourmand, Esq. James Alexander De Sario, Esq. THE NOURMAND LAW FIRM APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553 3600 Facsimile: (310) 553-3603 E-mail: mnourmand@nourmandlawfirm.com jdesario@nourmandlawfirm.com PERFORMANCE SPORTS: May 17 Lead Plaintiff Bid Deadline Set ---------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Performance Sports Group Ltd. ("PSG" or the "Company") between August 27, 2015 and March 7, 2016. You are hereby notified that a securities class action has been commenced in the USDC for the Central District of California, Western Division. If you purchased or otherwise acquired PSG securities between August 27, 2015 and March 7, 2016, your rights may be affected by this action. To get more information go to: http://www.zlk.com/pslra/performance-sports-group The lawsuit concerns allegations that the Company and its executives violated federal securities laws by failing to disclose the financial pressures on the Company due to Sports Authority's financial decline and the fall in demand in the softball, baseball and hockey markets. If you suffered a loss in PSG you have until May 17, 2016 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. To obtain additional information, contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972, or visit http://www.zlk.com/pslra/performance-sports-group Levi & Korsinsky is a national firm with offices in New York, New Jersey, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation involving financial fraud, and have recovered hundreds of millions of dollars for aggrieved shareholders. PFIZER CONSUMER: Recalls Children's Advil ----------------------------------------- Starting date: February 10, 2016 Posting date: March 4, 2016 Type of communication: Drug Recall Subcategory: Drugs, Affects children, pregnant or breast feeding women Hazard classification: Type II Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57326 Expected out-of-specification results on Viscosity prior to the expiration date of the impacted product. Product distributed to wholesalers, retailers and doctors (for samples) nationwide. Affected products: Children's Advil DIN, NPN, DIN-HIM DIN 02232297 Dosage form: Suspension Strength: 100.0 mg / 5 ml Lot or serial number: H13899 H98207 H98635 J18208 J18209 J18210 J18211 J18219 J18249 J18449 J18451 J29738 J29739 J29740 J29750 J29771 J29789 J29815 J29868 J29877 J29878 J45608 J45613 J45622 J49017 J49018 J49035 J49054 J49055 J49056 J49591 J49946 J57911 J57912 J57913 J57914 J57915 J57916 J57920 J57924 J57937 J57938 J57952 J63997 J64025 J64174 J64271 J75500 J75521 J75587 J75606 J80823 J80824 J90489 J90490 J90491 J90492 L21296 L21304 L21333 L34743 L34744 L36035 L44489 L44503 L60902 L60913 L60914 L60919 L79079 L79082 L79109 L79286 L79542 L79547 L90679 L90680 L90681 L90682 L92069 L93754 L94962 L94963 L94964 L94966 L94975 L94976 L94977 L94978 L95491 L95493 L95500 L95514 M01103 M06649 M06650 M11856 Recalling Firm: Pfizer Consumer Healthcare, a division of Pfizer Canada Inc. 5975 Whittle Road Mississauga L4Z 3M6 Ontario CANADA Marketing Authorization Holder: Pfizer Consumer Healthcare, a division of Pfizer Canada Inc. 5975 Whittle Road Mississauga L4Z 3M6 Ontario CANADA PFIZER CONSUMER: Recalls Pediatric Advil Products ------------------------------------------------- Starting date: February 10, 2016 Posting date: March 4, 2016 Type of communication: Drug Recall Subcategory: Drugs, Affects children, pregnant or breast feeding women Hazard classification: Type II Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57334 Expected out-of-specification results on Viscosity prior to the expiration date of the impacted product. Product distributed to wholesalers, retailers and doctors (for samples) nationwide. Affected products: Advil Pediatric Drops Fever from Colds or Flu DIN, NPN, DIN-HIM DIN 02328445 Dosage form: Suspension Strength: 200.0 mg / 5 ml Lot or serial number: J57902 L60899 Recalling Firm: Pfizer Consumer Healthcare, a division of Pfizer Canada Inc. 5975 Whittle Road Mississauga L4Z 3M6 CANADA Marketing Authorization Holder: Pfizer Consumer Healthcare, a division of Pfizer Canada Inc. 5975 Whittle Road Mississauga L4Z 3M6 CANADA PHILIPS MEDICAL: Recalls CT Systems and Software Versions --------------------------------------------------------- Starting date: February 12, 2016 Posting date: March 10, 2016 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type III Source of recall: Health Canada Issue: Medical Devices Audience: Healthcare Professionals, General Public, Hospitals Identification number: RA-57460 Philips has become aware that on the affected CT systems and software versions, the issue relates to the auto transfer to the remote devices (such as PACS), where there is a possibility for intermittent failures to send all images/data series automatically. Affected products: BRILLIANCE 40/64 SLICE CT SYSTEM Lot or serial number: 10213 9074 9920 9923 Model or catalog number: 4550 110 09021 Manufacturer: Philips Medical Systems (Cleveland) Inc. 595 MINER ROAD CLEVELAND Ohio UNITED STATES B. BRILLIANCE ICT SYSTEM - SYSTEM Lot or serial number: 100101 100195 100619 100638 Model or catalog number: 728306 Manufacturer: Philips Medical Systems (Cleveland) Inc. 595 MINER ROAD CLEVELAND Ohio UNITED STATES C. BRILLIANCE ICT SP SYSTEM - MAIN Lot or serial number: 200208 Model or catalog number: 728311 Manufacturer: Philips Medical Systems (Cleveland) Inc. 595 MINER ROAD CLEVELAND Ohio UNITED STATES D. INGENUITY CT SYSTEM Lot or serial number: 30003 30004-1 320227 Model or catalog number: 728323 728326 Manufacturer: Philips Medical Systems (Cleveland) Inc. 595 MINER ROAD CLEVELAND Ohio UNITED STATES PIER 1: Recalls Swivel Dining Chairs ------------------------------------ Starting date: February 10, 2016 Posting date: February 10, 2016 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-56988 This recall involves the Pier 1 Imports Capella Island Swivel Dining Chairs. The plastic wicker chairs have a natural wood colour. The chair measures approximately 66 cm wide by 66 cm deep and 99 cm high (26 inches wide by 26 inches deep and 39 inches high). The chair was sold as SKU number 2899677. The chairs can break at the base, posing a fall hazard to consumers. Health Canada has not received any reports of consumer incidents or injuries related to the use of these products. Pier 1 Imports has received 3 reports of the chairs breaking, including two reports of consumers falling in the United-States. No injuries have been reported. Approximately 4 of the recalled chairs were sold in Canada exclusively at Pier 1 Import stores and online. Approximately 260 of the recalled chairs were sold in the United States. The recalled products were sold from January 2015 through October 2015. Manufactured in Vietnam. Distributor: Pier 1 Imports (U.S.), Inc. Fort Worth Texas UNITED STATES Consumers should immediately stop using the chairs and return them to any Pier 1 Imports store for a refund or merchandise credit. For more information, consumers can contact Pier 1 Imports toll free at 1-800-245-4595 from 8 a.m. to 7 p.m. CST Monday through Friday, 9 a.m. to 5 p.m. CST Saturday or 10 a.m. to 6 p.m. CST Sunday or visit the company's website. Pictures of the Recalled Products available at: http://is.gd/ZxY36J PIRIPI VMP: "Sanchez" Suit for Unpaid Overtime Work Dismissed ------------------------------------------------------------- Judge Federico A. Moreno dismissed without prejudice the case captioned NERY C. SANCHEZ, Plaintiff, v. PIRIPI VMP, LLC, and TEODORO ARRANZ VELASCO, Defendants, Case No. 15-24166-CIV-MORENO (S.D. Fla.). Nery C. Sanchez sued Piripi VMP, LLC and Teodoro Arranz Velasco for overtime compensation under the Fair Labor Standards Act. Upon the defendants' motion, Judge Moreno dismissed the case without prejudice, having found that Sanchez's complaint did not meet the requisite pleading standard for an FLSA case, and does not identify a group of employees of the defendants who share commonality with Sanchez. Sanchez was, however, granted leave to file an amended complaint no later than March 21, 2016. A full-text copy of Judge Moreno's March 4, 2016 order is available at http://is.gd/BTmZgOfrom Leagle.com. Nery Sanchez, Plaintiff, represented by William Thomas Brady, Jr., Law Offices of William Brady, P.A. & Todd William Shulby -- tshulby@shulbylaw.com. Piripi VMP, LLC, Teodoro Arranz Velasco, Defendants, represented by Orion G. Callison, III, Law Office of Alexis Gonzalez, P.A.. POLYCOM INC: August 16 Settlement Approval Hearing Set ------------------------------------------------------ The following statement is being issued by Pomerantz LLP regarding the Polycom, Inc. Settlement. SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION To: All persons who purchased or otherwise acquired Polycom, Inc. securities (symbol: PLCM) between January 20, 2011 and July 23, 2013 (both dates inclusive) on the U.S. Exchanges or by other means involving transactions in the United States. Excluded from the Class are Defendants, all current and former directors and officers of Polycom during the Settlement Class Period, and any family member, trust, company, entity or affiliate controlled or owned by any of the excluded persons or entities referenced above. A hearing will be held on August 16, 2016 at 2:00 p.m. before the Honorable Yvonne Gonzalez Rogers at the United States District Court for the Northern District of California, Oakland Courthouse, 1301 Clay Street, Courtroom 1, Oakland, CA 94612, to determine (1) whether the proposed Settlement against the Defendants for $8,000,000 should be approved; (2) whether the Plan of Allocation should be approved; (3) whether Lead Counsel should be awarded $2,000,000 in attorneys' fees (25% of the $8,000,000 settlement amount) and reimbursed for up to $95,000 of litigation expenses; (4) whether Lead Plaintiff should be awarded up to $13,500 for his contributions to this lawsuit; and (5) whether the Action should be dismissed with prejudice against the Settling Defendants under the terms set forth in the Stipulation. If you have not received the detailed Notice of Proposed Class- Action Settlement (the "Notice") and Proof of Claim and Release Form, you may obtain them free of charge at www.gardencitygroup.com/cases-info/polycomsettlement or by contacting the Settlement Administrator by telephone at 855-907- 3170, or by mail at Polycom, Inc. Settlement, c/o Garden City Group, LLC, P.O. Box 10281, Dublin, OH 43017-5781. If you purchased or otherwise acquired Polycom, Inc. securities between January 20, 2011 and July 23, 2013 (both dates inclusive) on the U.S. exchanges or by other means involving transactions in the United States, your rights may be affected by this Settlement. As further described in the Notice, you will be bound by any Judgment entered in the Action, regardless of whether you submit a Proof of Claim, unless you request exclusion from the Class, in the manner set forth in the Notice, no later than July 19, 2016. If you are a member of the Class and wish to share in the Settlement proceeds, you must submit a Proof of Claim no later than August 23, 2016 establishing that you are entitled to recovery. Any objections to the Settlement, Plan of Allocation, or application for attorneys' fees and expenses must be filed and served, in the manner set forth in the Notice, no later than July 19, 2016. Inquiries, other than requests for the Notice, may be made to Lead Counsel for the Class: Jeremy A. Lieberman Pomerantz LLP 600 Third Avenue New York, NY 10016 Telephone: 212-661-1100 Toll-free: 888-476-6529 DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE DATED: MARCH 21, 2016 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PROSKAUER ROSE: Stanford's Lawyers Protected by Attorney Immunity ----------------------------------------------------------------- In the case captioned SAMUEL TROICE; PUNGA PUNGA FINANCIAL, LIMITED, individually and on behalf of a class of all others similarly situated; PAM REED, Plaintiffs-Appellees, v. PROSKAUER ROSE, L.L.P.; CHADBOURNE AND PARKE, LIMITED LIABILITY PARTNERSHIP; THOMAS V. SJOBLOM, Defendants-Appellants, No. 15-10500 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit reversed the district court's order denying the defendants' motions to dismiss and rendered judgment dismissing the case with prejudice. A putative class action was filed against one of Allen Stanford's lawyers, Thomas Sjoblom, and the law firms where he worked, alleging that they aided and abetted Stanford's fraud and conspired to thwart the SEC's investigation of Stanford's massive Ponzi scheme. The defendants moved to dismiss the complaint as barred by attorney immunity under Texas law. The district court denied the motion, holding that the plaintiffs' allegations met a "fraud exception" to attorney immunity. After determining that the district court's order denying the defendants' motions to dismiss on the basis of attorney immunity under Texas law is an appealable collateral order, the 5th Circuit found that Sjoblom's conduct fell within the scope of his legal representation of the companies that Stanford used. Further, the Fifth Circuit held that simply claiming that an attorney's conduct was fraudulent does not allow plaintiffs to circumvent attorney immunity. Accordingly, the district court's order denying the defendants' motions to dismiss was reversed. A full-text copy of the Fifth Circuit's March 10, 2016 opinion is available at http://is.gd/E1VjXPfrom Leagle.com. RAV INVESTIGATIVE: "Humphrey" Suit Proceeds on Individual Claims ---------------------------------------------------------------- In the case captioned AARON S. HUMPHREY, individually and on behalf of all others similarly situated, Plaintiff, v. RAV INVESTIGATIVE & SECURITY SERVICES LTD., RAV TRADE SHOWS, INC., RON ALLEN, ABC CORPORATIONS #1-10, and JOHN DOES #1-10, jointly and severally, Defendants, No. 12 Civ. 3581 (NRB) (S.D.N.Y.), Judge Naomi Reice Buchwald denied the defendants' motion to dismiss the suit but granted their motion to strike the class and collective action allegations in the Aaron S. Humphrey's amended complaint. Humphrey brought an action against RAV Investigative & Security Services, Ltd., RAV Trade Shows, Inc. and other parties, alleging violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). The defendants moved to dismiss the amended complaint in its entirety and to strike the class and collective action allegations in the amended complaint. Judge Buchwald ordered that the "collective and class action allegations of Mr. Humphrey's complaint [be] struck" on account of Humphrey's pro se status. As to the defendants' motion to dismiss, Judge Buchwald held that Humphrey has adequately pleaded FLSA and NYLL overtime claims for those workweeks when he was required to arrive early. The judge also declined to dismiss Humphrey's spread-of-hours claim upon finding that Humphrey's allegations were sufficient to show that he was paid less than minimum wage for certain periods. With respect to Humphrey's retaliation claim, Judge Buchwald ordered the parties to conduct limited discovery on whether the retaliation claim is time-barred before moving to its merits. Finally, Judge Humphrey also denied dismissal of Humphrey's minimum wage and unlawful deduction claims, holding that the court has supplemental jurisdiction over the claims, and that such claims are not moot because Humphrey has refused defendants' checks as they would not provide him with complete relief. A full-text copy of Judge Buchwald's March 10, 2016 memorandum and order is available at http://is.gd/RZ06Izfrom Leagle.com. RAV Investigative & Security Services Ltd., RAV Trade Shows, Inc., Ron Allen, Defendants, represented by Louis Pechman -- pechman@pechmanlaw.com -- Pechman Law Group PLLC & Gianfranco J. Cuadra -- cuadra@pechmanlaw.com -- Pechman Law Group PLLC. ABC Corporations # 1-10, John Doe # 1-10, Defendants, represented by Louis Pechman, Pechman Law Group PLLC. REAL TIME RESOLUTION: "Gutman" Class Action Filed in E.D.N.Y ------------------------------------------------------------ A class action has been commenced against Real Time Resolutions, Inc. The case is captioned Moshe Gutman, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. Real Time Resolutions, Inc., the Defendant, Case No. 1:16-cv-01260 (E.D.N.Y., Brooklyn, March 14, 2016). Real-Time Resolutions was founded in 1995. The company's line of business includes collection and adjustment services on claims and other insurance related issues. The company is based in Dallas, Texas. The Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395 3459 Facsimile: (718) 408 9570 E-mail: m@maximovlaw.com REDFROG ENTERPRISES: Recalls Seafood Pancake Products Due to Egg ---------------------------------------------------------------- Starting date: February 12, 2016 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Egg Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Redfrog Enterprises Ltd. Distribution: British Columbia Extent of the product distribution: Retail CFIA reference number: 10401 Brand Common Size Code(s) on UPC name name ---- product --- ----- ------ ---------- Surasang Seafood 453 g 2017.05.27 0 87703 15141 3 Pancake with Vermicelli SAAB: Recalls Multiple Vehicle Models Due to Defective Airbag ------------------------------------------------------------- Starting date: February 3, 2016 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Airbag Units affected: 20553 Source of recall: Transport Canada Identification number: 2016052TC ID number: 2016052 Manufacturer recall number: 28810 On certain vehicles, the driver frontal airbag inflator could produce excessive internal pressure during airbag deployment. Increased pressure may cause the inflator to rupture, which could allow fragments to be propelled toward vehicle occupants, increasing the risk of injury. This could also damage the airbag module, which could prevent proper deployment. Failure of the airbag to fully deploy during a crash (where deployment is warranted) could increase the risk of personal injury to the seat occupant. Correction: Dealers will replace the driver airbag inflator on Saab 9-3 and 9-5 vehicles and replace the driver airbag module on Saturn Astra vehicles. Make Model Model year(s) affected ---- ---- ---------------------- SAAB 09-Mar 2003 SAAB 09-May 2011 SATURN ASTRA 2008 SABATINI U: Recalls Beef and Vegetable Pie, Chicken Pot Pie ----------------------------------------------------------- Starting date: February 3, 2016 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Egg Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Sabatini U. Gourmet Foods Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 10372 Sabatini U. Gourmet Foods is recalling Sabatini's Gourmet Foods brand Beef and Vegetable Pie and Chicken Pot Pie from the marketplace because they contain egg which is not declared on the label. People with an allergy to egg should not consume the recalled products described below. What you should do Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. If you have an allergy to egg, do not consume the recalled products as they may cause a serious or life-threatening reaction. There has been one reported reaction associated with the consumption of these products. This recall was triggered by a consumer complaint. The Canadian Food Inspection Agency (CFIA) is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand Common name Size Code(s) on UPC name ----------- ---- product --- ----- ---------- Sabatini's Beef and 500 g All codes 6 25616 00381 0 Gourmet Vegetable Pie where egg Foods is not declared on the label Sabatini's Chicken Pot 500 g All codes 6 25616 00382 7 Gourmet Pie where egg Foods is not declared on the label Pictures of the Recalled Products available at: http://is.gd/fnK5Pe SAINT-GOBAIN: Court Consolidates Two Tainted Water Class Actions ---------------------------------------------------------------- HarrisMartin Publishing reports that a New York federal court has consolidated two class action lawsuits, saying that the majority of the claims -- relating to alleged PFOA contamination in drinking water -- overlap and that there is no inherent conflict between the named plaintiffs in either action. The U.S. District Court for the Northern District of New York issued the consolidation order on March 18, one week after the second of the two class action suits was filed. The first suit, initiated on Feb. 24, was filed by Michele Baker, Angela Corbett, Daniel Schuttig, and all others similarly situated against Saint-Gobain Performance Plastics Corp. SCION: Recalls 2013 Models Due to Injury Risk --------------------------------------------- Starting date: February 9, 2016 Type of communication: Recall Subcategory: Car Notification type: Compliance Mfr System: Powertrain Units affected: 2247 Source of recall: Transport Canada Identification number: 2016062TC ID number: 2016062 Manufacturer recall number: SRC R16 Certain vehicles equipped with an automatic transmission and an ignition key may fail to conform to Canada Motor Vehicle Safety Standard (CMVSS) 114 - Theft Protection and Rollaway Prevention. During assembly, in order to prevent automatic transmission damage during rail transport, the key interlock is disabled by leaving the delivery mode connectors unconnected. The connectors on some vehicles may not have been connected during pre-delivery service at dealers or distributors. If not connected, it could allow for the ignition key to be removed in a gear other than PARK gear position, which is contrary to the requirements of the standard, and could cause unintended vehicle movement, increasing the risk of injury and/or property damage. Correction: Dealers will inspect the delivery mode connectors and, if necessary, connect them. Make Model Model year(s) affected ---- ----- ---------------------- SCION 2013 SEOUL TRADING: Recalls Fish Sausage Products Due to Egg ------------------------------------------------------- Starting date: February 5, 2016 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Egg Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Seoul Trading Corporation Distribution: Alberta, British Columbia, Manitoba Extent of the product distribution: Retail CFIA reference number: 10384 Seoul Trading Corporation is recalling Delicious "Vegetabel" Fish Sausage from the marketplace because it may contain egg which is not declared on the label. People with an allergy to egg should not consume the recalled product described below. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. If you have an allergy to egg, do not consume the recalled product as it may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of this product. This recall was triggered by Canadian Food Inspection Agency (CFIA) test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand Common name Size Code(s) on UPC name ----------- ---- product --- ----- ---------- N/A Delicious 140 g MAY. 06. 2016 8 801074 257947 (Korean "Vegetabel" Characters Fish Sausage Only) Pictures of the Recalled Products available at: http://is.gd/IdcNAO SEQWATER: Feb. 2017 Trial Set in Queensland Flood Class Action -------------------------------------------------------------- Elizabeth Poulos, Esq., and Bianca Janovic, Esq., of Herbert Smith Freehills LLP, in an article for Lexology, report that continual delays in the class action involving victims of Queensland's 2011 floods have led to calls for the case to settle ahead of a trial now scheduled for February 2017. The case is being run on a "no win no fee" basis, with the total claim value reportedly between $1 to $2 billion. It was commenced in July 2014 in the New South Wales Supreme Court on behalf of residents and businesses claiming loss or damage as a result of the January 2011 floods in South-East Queensland. The parties Maurice Blackburn acts for the class and is backed by litigation funder IMF Bentham (formerly Bentham IMF). The class action has been brought against three parties: the Queensland Bulk Water Supply Authority (Seqwater), which owned and operated the Wivenhoe and Somerset Dams, SunWater Limited, which provided flood management services to Seqwater, and the State of Queensland. While the class initially had around 4,000 members, it is now said to comprise around 5,500 people. Loss claimed The plaintiffs allege the defendants' negligent operation of the two dams significantly contributed to the extent and scale of flooding downstream of the dams, making the floods, and consequent damage, much worse than they otherwise would have been. The class action is restricted to claims for economic loss, and does not include claims for personal injury or psychological harm. Timetable The class action was originally set down for a hearing commencing in July 2016. However, on 14 September 2015, Justice Beech-Jones vacated that hearing date. The current timetable involves various steps throughout 2016. It is expected that the matter will be ready for hearing in 2017, with the trial reportedly expected to last up to a year. The postponement of the trial has prompted renewed calls in the media by Ipswich councillor Paul Tully, who is a member of the class, for an out-of-court settlement. The primary reason for the postponement is an ongoing delay in the plaintiffs' provision of a complex hydrological model, which is said to be capable of inputting hypothetical outflows from the Wivenhoe Dam and reconstructing levels of flooding for every 10 square metres in the Brisbane area. SIEMENS AG: Recalls Syngo Imaging Products ------------------------------------------ Starting date: February 1, 2016 Posting date: February 12, 2016 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57116 Siemens is notifying customers using syngo Imaging Studio / advanced Studio version VB36C and older of the possibility of incorrect values for distance measurement. For measurement calculation, syngo Imaging VB36C and older version use the DICOM attribute "imager pixel spacing" (Tag (0018, 1164)) instead of "pixel spacing" (Tag (0028, 0030)). This may result in incorrect values for distance measurements. This happens if both DICOM attributes "imager pixel spacing" and "pixel spacing" are set and have different values. Affected products: SYNGO IMAGING Lot or serial number: 1094 1200 Model or catalog number: 10 014 063 Manufacturer: Siemens AG Wittelsbacherplatz 2 Muenchen 80333 GERMANY SLATER & GORDON: JustKapital to Fund Shareholder Class Action ------------------------------------------------------------- Leo Shanahan, writing for The Australian, reports that legal funders JustKapital has announced it will fund the class action against Slater & Gordon over the law firm's disastrous performance that has seen its share value drop by $1 billion in the last year. JustKapital Litigation Partners Limited this morning announced that it had agreed to terms of a conditional funding agreement with class action lawyers ACA Lawyers to prosecute a class action against Slater & Gordon, focusing on the board's disastrous Quindell purchase. The class action funding agreement will also be funded by London Woodsford Litigation Limited and will likely involve a number of UK based institutional investors who have suffered substantial financial losses as a result of the Slater & Gordon's alleged misconduct. ACA Lawyers announced in December it would be pursuing the action against Slater & Gordon but the involvement of legal funders gives the law suit much greater capability to draw on a wider pool of potential litigants. The potential shareholder claims against Slater & Gordon will arise from: statements and announcements issued by the board of directors of Slater & Gordon in relation to earnings guidance; statement made by the board in the course of Slater & Gordon's $890m capital raise; and statements in relation to the firm's acquisition of the professional services divisions of Quindell PLC for $1.3 billion in 2015. Philip Kappp, executive chairman of JustKapital, said the class action will take in both UK and Australian institutional investors who have suffered as a result of the alleged misconduct of Slater & Gordon. SPOKEO INC: Supreme Court Ruling Still Leaves Questions ------------------------------------------------------- David S. Hendrix and Alissa M. Ellison, writing for Law.com, report that by agreeing to hear Spokeo v. Robins, it seems as though the U.S. Supreme Court would finally tackle an issue it had previously dodged: Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. The facts of Spokeo are simple and straightforward. Thomas Robins sued Spokeo "a people search engine" for alleged violations of the Fair Credit Reporting Act. Robins claimed that Spokeo violated the FCRA by publishing inaccurate information about him and that as a result he had been unsuccessful in seeking employment and was concerned that his future ability to obtain credit would be impacted. Robins filed his case as a putative class action. The FCRA allows recovery of any actual damages or statutory damages ranging from $100 to $1,000. Because actual damages are difficult to prove, however, FCRA claims often seek recovery of statutory damages. In Spokeo, the court is considering whether a plaintiff can bring a lawsuit in federal court without having to show any "real" harm resulting from a statutory violation. Accordingly, the court's ruling could significantly impact not only the prosecution of claims under the FCRA but also claims brought pursuant to other similar statutes such as the Fair Debt Collection Practices Act and the Telephone Consumer Practices Act, which also allow for the recovery of statutory damages without showing a "real" harm. It also seemed that the stage was set for a potential significant overhaul in the consumer class action arena. If the court ultimately determines in Spokeo that a plaintiff must show a real concrete harm in order to obtain Article III standing, it will be difficult -- if not impossible -- for potential class representatives to establish the commonality necessary to obtain class certification, as any such harm would likely be highly individualized. Such a ruling would not only be a significant victory for financial institutions and creditors, but would also serve as a significant blow to the plaintiff's bar. Death Of A Justice The court heard oral argument in Spokeo on November 2015, prior to the passing of Justice Antonin Scalia. The questions posed by the court to the parties during oral argument indicated that Chief Justice John Roberts and Justices Samuel Alito and Scalia were of the opinion that standing should be limited to those instances where the plaintiff has alleged some form of concrete harm as opposed to a mere statutory violation. Justices Sonia Sotomayor and Ruth Bader Ginsberg seemed to take the opposite position, indicating that an allegation of a statutory right was sufficient to obtain standing. In contrast, Justices Elena Kagan and Stephen G. Breyer seemed to believe that, in Robin's particular case, there was a sufficient actual injury. The fate of the decision originally seemed to lie with Justice Anthony M. Kennedy, and it was widely speculated that he would align himself with the conservative justices on this issue. The sudden passing of Scalia has caused great uncertainty as his vote was paramount to obtaining a majority opinion holding that a plaintiff must still show concrete harm to establish standing. It is unclear as to whether the court will proceed with issuing a ruling or list the case for reargument after a new justice is confirmed. Without Justice Scalia's vote, however, it is unlikely that a majority opinion will be issued. If a 4-4 opinion is issued, it will have no precedential value, and this issue will likely be addressed again at some point in the future. Such a result would do nothing to resolve the uncertainty facing businesses who are reckoning with an increased number of consumer claims. In the meantime, expensive class action claims where no actual damages are at issue will continue to cause the business community significant resources. It is clear that the ultimate resolution of this issue -- whenever that may be -- will impact how plaintiffs can sue companies for statutory damages. It is equally as clear that this issue is of vital importance to companies who are being subjected to an onslaught of statutory class action cases where there are no actual or "real" damages. While consumers and businesses alike originally believed that the court's decision in Spokeo would conclusively resolve this issue, there is now widespread uncertainty as to when these questions will be definitively answered. SRIPRAPHAI TIPMANEE: "Romero" Suit Seeks Minimum Wages Under NYLL ----------------------------------------------------------------- Victor Romero, on behalf of himself and all others similarly situated, the Plaintiff v. Sripraphai Tipmanee d/b/a Sripraphai Thai Restaurant, the Defendant, Case No. 608307/2015 (N.Y. Sup. Ct., County of Nassau, December 24, 2015), seeks to recover minimum wage under the New York State Labor Law (NYLL). Sripraphai Thai Restaurant is a place of business that is owned, controlled, operated, and maintained by Sripraphai Tipmanee located at 280 Hillside A venue, Williston Park, New York. The Plaintiff is represented by: Neil M. Frank Esq. FRANK & ASSOCIATES, PC 500 Bi-County Blvd., Suite 465 Farmingdale, NY 11735 Telephone: (631) 756 0400 Facsimile: (631) 756 0547 E-mail: Nfrank@laborlaws.com ST. MARTINS CHEMICAL: "Navarro" Suit Moved to S.D. Fla. Ct. ----------------------------------------------------------- Alberto Navarro, and other similarly situated individuals, v. St. Martins Chemical, Inc., doing business as Chemstation of Florida, a Florida Profit Corporation, Stuart Sumner, individually, Robert Schriver, individually, Chris Bostrom, individually, Case No. 16- 004838-CA-01, was removed from the 11th Judicial Circuit Court, to the US District Court for the Southern District of Florida (Miami). The District Court assigned Case No. 1:16-cv-20922-FAM to the proceeding. St. Martins Chemical was founded in 1999. The company's line of business includes the wholesale distribution of chemicals and allied products. The Company is based in Jacksonville, Florida. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: agp@rgpattorneys.com The Defendants are represented by: Michael Manuel Gropper, Esq. HOLLAND, KNIGHT, LLP 50 N. Laura Street, Suite 3900 Jacksonville, FL 32202 Telephone: (904) 353 2000 E-mail: michael.gropper@hklaw STANFORD FIN'L: Proskauer, Chadbourne Immune From Investor Claims ----------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that Proskauer Rose and Chadbourne & Parke are immune from liability for the conduct of a former partner at the firms who investors accused of helping R. Allen Stanford orchestrate a $7 billion fraud scheme, a federal appeals court ruled on March 10. Both firms had lost a pivotal U.S. Supreme Court ruling in 2014 that some observers feared could open up law firms to claims in certain securities fraud cases. U.S. District Judge David Godbey of the Northern District of Texas in March 2015 denied the law firms' immunity argument. The U.S. Court of Appeals for the Fifth Circuit reversed Judge Godbey on March 10. "These are classic examples of an attorney's conduct in representing his client," Judge Edith Brown Clement wrote for the unanimous three-judge panel. "That some of it was allegedly wrongful, or that he allegedly carried out some of his responsibilities in a fraudulent manner, is no matter." Daniel Beller -- dbeller@paulweiss.com -- a partner at Paul, Weiss, Rifkind, Wharton & Garrison, who represented Chadbourne & Parke, did not respond to a request for comment. On Feb. 25, Mr. Beller wrote a letter to the court stating that Chadbourne & Parke had reached a proposed settlement in the case. A spokeswoman for Proskauer, represented by James Rouhandeh -- rouhandeh@davispolk.com -- head of the litigation department at Davis Polk & Wardwell, wrote in an email: "The decision, which was based on arguments that Proskauer has made since the outset of the litigation, brings this purported class action to an end. We continue to be confident that the remaining claims asserted against the firm in related litigations, which are equally baseless, will also ultimately be dismissed." P. Michael Jung -- michael.jung@strasburger.com -- chairman of the appellate practice at Dallas-based Strasburger & Price, who represented the investors, did not respond to a request for comment. Mr. Stanford is serving a 110-year sentence following his 2012 conviction of masterminding the fraud scheme. Investors of Stanford's fraudulent certificates of deposit had sued Proskauer Rose, Chadbourne & Parke and Thomas Sjoblom, a former partner at both firms who represented Houston's Stanford Financial Group from 2005 to 2009. The suit, brought under the Texas Securities Act, claimed Sjoblom and the firms obstructed a U.S. Securities and Exchange Commission investigation into Stanford's scheme. Proskauer hired Mr. Sjoblom in 2006 after he left Chadbourne. Judge Godbey dismissed the case in 2011 after finding that state law claims, alleging both firms aided and abetted Stanford's fraud, were precluded by the Securities Litigation Uniform Standards Act. The U.S. Supreme Court, affirming the Fifth Circuit's reversal of that dismissal, disagreed. On remand, Judge Godbey, taking up a separate defense under the Texas attorney immunity doctrine, found that the plaintiffs had made "sufficient allegations concerning defendants' conduct" to support a fraud exception. But on June 26, the Texas Supreme Court ruled in a separate case called Cantey Hanger LLP v. Byrd that fraud is not an exception to attorney immunity so long as the attorney is acting within the scope of his or her representation of a client. "The Texas Supreme Court has now clarified that simply claiming that an attorney's conduct was fraudulent does not allow plaintiffs to circumvent attorney immunity," Judge Clement of the Fifth Circuit wrote. In its ruling, the Fifth Circuit said the Texas Supreme Court's clarification required the appeals court to reverse Judge Godbey. "Defendants contend that, because Cantey Hanger makes clear that the fraud exception does not exist, they should have been granted attorney immunity because 'the type of conduct alleged falls squarely within the scope of [Sjoblom's] representation' of his clients," Clement wrote. "We agree." STRATEGIC EXPERIENTIAL: Violated CLC, "Harrison" Suit Claims ------------------------------------------------------------ Krystle Harrison, Napoleon Aparico, and Shyron McDougall, individually, and on behalf of all others similarly situated, and on behalf of the general public, the Plaintiffs, v. Strategic Experiential Group, Strategic Hospitality Group, Strategic Marketing Group, LLC, Strategic Group, Moet Hennessy USA, Inc., Brett Rogoff, Alex Cohen, Noah Tepperberg, Jason Strauss, Seth Rodsky, and Does 1-25, the Defendants, Case No. RG16807555 (Cal. Super. Ct., Alameda County, March 14, 2016), seeks to recover unpaid wages, statutory penalties, restitution, interest, attorneys' fees and costs of suit, pursuant to the California Labor Code (CLC), the Industrial Welfare Commission Wage Order, and the California Business and Professions Code. Strategic Experiential Group is a full-service marketing, special events and promotions company that builds brand experiences. The Plaintiff is represented by: Jason M. Erlich, Esq. McCORMACK AND ERLICH, LLP 150 Post Street, Suite 742 San Francisco, CA 94108 Telephone: (415) 296 8420 Facsimile: (415) 296 8552 E-mail: jason@mcelawfirm.com SUBARU: Recalls Tribeca 2006 Models Due to Injury Risk ------------------------------------------------------ Starting date: February 1, 2016 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Structure Units affected: 5961 Source of recall: Transport Canada Identification number: 2016048TC ID number: 2016048 Manufacturer recall number: WQX-59 & WQX-60 On certain vehicles, the primary and secondary hood latches could fail at the same time. If this were to occur, the hood could open unexpectedly while the vehicle is being driven. This could compromise the driver's ability to see the road and its users, as well as cause damage to the windshield. These issues could result in a crash causing injury and/or property damage. Correction: Dealers will inspect the hood latches, and either clean and lubricate or replace with the current style part. When parts are available, dealers will install revised hood latches. Make Model Model year(s) affected ---- ----- ---------------------- SUBARU TRIBECA 2006 SUMMIT COLLECTION: "Berbrick" Suit Filed in Dist. New Jersey ------------------------------------------------------------ Tyler Berbrick, on behalf of himself and all others similarly situated, the Plaintiff, v. Summit Collection Services, Inc., the Defendant, Case No. 2:16-cv-01430-ES-MAH (Dist. N.J., March 14, 2016). Summit Collection Services is a small organization engaged in the adjustment and collection services industry, located in Ho Ho Kus, New Jersey. The Plaintiff is represented by: Ari Hillel Marcus, Esq. MARCUS ZELMAN LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (732) 695 3282 Facsimile: (732) 298 6256 E-mail: ari@marcuszelman.com SYDNEY GROUP: Violated Labor Law, "Sandoval" Suit Claims -------------------------------------------------------- Dennis Sandoval, an individual, the Plaintiff, v. The Sydney Group, LLC, a California limited liability company, doing business as Olive & Thyme Gourmet Market, and Does 1-100, inclusive, the Defendants, Case No. BC613728 (Cal. Super. Ct., County of Los Angeles, March 14, 2016), seeks to recover compensatory damages and unpaid overtime, statutory damages, statutory penalties, prejudgment interest accrued on all due and unpaid overtime wages, reasonable costs, including attorneys' fees, restitution of wages, under the Labor Code and the Wage Order. Sydney Group operates a restaurant in Los Angeles County, California. The Plaintiff is represented by: Kevin A. Lipeles, Esq. Thomas H. Schelly, Esq. LIPELES LAW GROUP, APC 880 Apollo Street, Suite 336 El Segundo, CA 90245 Telephone: (310) 322 -2211 Facsimile: (310) 322 2252 T.D. BANK: Bid to Amend "Cruz" Complaint Denied ----------------------------------------------- In the case captioned GARY CRUZ, individually and on behalf of all others similarly situated, Plaintiff, v. T.D. BANK, N.A., Defendant, No. 10 Civ. 8026 (PKC) (S.D.N.Y.), Judge P. Kevin Castel denied the plaintiffs' motion to further amend the complaint to add a new party and a new theory. The putative class action was brought by Gary Cruz under New York's Exempt Income Protection Act (EIPA). On March 14, 2011, an amended complaint was filed, asserting claims on behalf of a new plaintiff, Claude Pain. Upon the death of Claude Pain, the plaintiff moved to add Arthemio Perez as an additional plaintiff and to file a new amended pleading with new never-before-asserted theories of the case. Judge Castel denied the motion, holding that the interests of justice do not require leave to file a Third Amended Complaint. First, the judge explained that despite the death of Claude Pain, the original plaintiff, Gary Cruz, remains a named plaintiff and no reason has been put forth why Gary Cruz will not fairly and adequately represent the interests of the class. Second, the judge noted that there has been unreasonable delay in the case, and granting leave to file the Third Amended Complaint would cause further delay to the case and deny justice to the parties. A full-text copy of Judge Castel's March 10, 2016 memorandum and order is available at http://is.gd/4AXX5Kfrom Leagle.com. Gary Cruz, Plaintiff, represented by Gabriel Oliver Koppell -- okoppell@koppellaw.com -- Law Offices of G. Oliver Koppell & Assoc.,, Charles Wayne Juntikka, Charles Juntikka & Associates, LLP & Daniel Feist Schreck -- dschreck@koppellaw.com -- Law Offices of G. Oliver Koppell & Assoc.,. TD Bank, N.A., Defendant, represented by John Dellaportas -- jdellaportas@morganlewis.com -- Morgan Lewis & Bockius, LLP, Kevin Paul Potere -- kppotere@duanemorris.com -- Duane Morris, LLP, Alexander D. Bono -- abono@duanemorris.com -- Duane Morris LLP, pro hac vice, Justin Joseph D'Elia -- jjdelia@duanemorris.com -- Duane Morris, LLP,Michael Salvatore Zullo -- mszullo@duanemorris.com -- pro hac vice & Ryan E Borneman -- reborneman@duanemorris.com -- Duane Morris LLP, pro hac vice. TAKATA CORP: Judge Dismisses Auto Recylers' Fraud Claims -------------------------------------------------------- Celia Ampel, writing for Daily Business Review, reports that a Miami judge dismissed fraud claims filed by auto recyclers against automakers that produced vehicles with Takata air bags. In orders issued on March 10, U.S. District Judge Federico Moreno found the Automotive Recyclers Association lacked standing and failed to adequately specify which automakers allegedly harmed them. Co-lead plaintiffs counsel Peter Prieto of Podhurst Orseck in Miami said he was "carefully reviewing" the orders "to determine what steps we will take next, including any amendments to the current complaint." The three dismissed economic loss claims are part of a 106-count class action complaint filed by vehicle owners against Japan's Takata Corp. and automakers Honda, BMW, Mazda, Mitsubishi, Nissan, Subaru and Toyota. The plaintiffs allege their cars lost resale value because of defective air bags blamed in the deaths of at least nine people and more than 100 injuries. Takata has recalled more than 19 million vehicles in the U.S. to fix air bags at risk of rupturing in the largest auto recall in history. Takata will still have to contend with the auto recyclers' claims since Judge Moreno denied the company's motion to dismiss. "Takata stands in an entirely different position than the automotive defendants," the judge wrote. "By specifically naming Takata and using defined terms that unequivocally implicate Takata, ARA has sufficiently alleged facts to support causation and redressability." Takata declined comment. The auto recyclers filed claims based on three assignments from Florida companies Rigsby's Auto Parts & Sales Inc., M&K Used Auto Parts lnc. and Quarno's Auto Salvage. They accused manufacturers of fraudulent misrepresentation and concealment and violating state laws against deceptive trade practices acts. The recyclers alleged they bought cars with Takata air bags and wouldn't have bought them or paid as much for them had they known about the defect. They did not specifically mention the make of the vehicles, Judge Moreno noted. "It is impossible to ascertain from the complaint which automotive defendants would be responsible for the wrongful conduct alleged," he wrote. The association also lacked standing to bring state law claims in 27 states other than Florida since the alleged injuries did not occur in those other states, the judge ruled. The group purported to bring the action "on behalf of automotive recyclers nationwide" but did not show that it had associational standing to sue on behalf of its members, Judge Moreno found. TARSADIA HOTELS: 9th Cir. Affirms Judgment in "Beaver" Suit ----------------------------------------------------------- In the case captioned DEAN BEAVER, Husband; LAURIE BEAVER, Wife; STEVEN ADELMAN, an individual; ABRAM AGHACHI, an individual; DINESH GAUBA, an individual; KEVIN KENNA, husband and wife, on behalf of themselves and all others similarly situated; VERONICA KENNA, husband and wife, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. TARSADIA HOTELS, a California corporation; TUSHAR PATEL, an individual; B.U. PATEL, an individual; GREGORY CASSERLY, an individual; 5TH ROCK LLC, a Delaware limited liability company; MKP ONE, LLC, a California limited liability company; GASLAMP HOLDINGS, LLC, a California limited liability company, Defendants-Appellants, No. 15-55106 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit granted the defendants' petition for interlocutory appeal and affirmed the district court's partial summary judgment order with respect to certified issues. The plaintiffs, purchasers of non-residential condominium units in San Diego's Hard Rock Hotel & Condominium Project, brought a putative class action against a group of developers and their agents or affiliates who allegedly participated in the sale of the condominium units. The plaintiffs alleged that the defendants engaged in business practices violative of California's Unfair Competition Law (UCL) by failing to make certain disclosures in the course of the sale transactions as required by the Interstate Land Sales Full Disclosure Act (ILSA). The district court initially granted summary judgment to the defendants on the basis that the plaintiffs' UCL claim was time- barred, but later reversed its holding after the plaintiffs moved for reconsideration. In 2014, Congress passed an amendment to ILSA exempting condominium sales from the same ILSA disclosure requirements upon which the plaintiffs had predicated their UCL claim. The district court concluded that the 2014 amendment had no retrospective application in the action, but it certified the issue, as well as other legal issues in its previous order, for interlocutory appeal. The Ninth Circuit noted that although ILSA includes a three-year statute of limitations, the UCL includes a more generous four-year statute of limitations. The Ninth Circuit held that the ILSA does not preempt the plaintiffs' UCL claim and that UCL's four-year statute of limitations and its accompanying accrual rules apply because the plaintiffs brought their claim under the UCL. Thus, the appellate court concluded that the plaintiffs' UCL claim is not time-barred. The Ninth Circuit also concluded that the plaintiffs' units are subject to ILSA's disclosure requirements. The appellate court found that the units are "lots" because none of the use restrictions embedded in the original purchase contract interfered with the owner's exclusive use of the property "on a recurring basis for a defined period of time." The court also found that the Improved Lot Exemption does not extinguish the plaintiffs' claims because the pre-sale contingency clause in the purchase contracts is not limited to a period of 180 days or less and the purchase contracts do not obligate the seller to complete construction within two years. As to the 2014 amendment to ILSA, the Ninth Circuit held that because Congress did not express a clear intent that the amendment operate retroactively to deprive plaintiffs of a pre-existing cause of action, ILSA's disclosure requirements will still apply to the condominium units purchased by the plaintiffs. A full-text copy of the Ninth Circuit's March 10, 2016 opinion is available at http://is.gd/tlsxe5from Leagle.com. Frederick H. Kranz (argued) -- rkranz@coxcastle.com -- and Lynn Therese Galuppo -- lgaluppo@coxcastle.com -- Cox, Castle & Nicholson, LLP, Irvine, California; David Wesley Moon -- dmoon@stroock.com -- Stroock & Stroock & Lavan LLP, Los Angeles, California, for Defendants-Appellants. Michael Rubin (argued) -- mrubin@altshulerberzon.com -- Altshuler Berzon LLP, San Francisco, California; Donald E. Chomiak, Talisman Law, P.C., Glendale, California; Tyler R. Meade, The Meade Firm P.C., Berkeley, California; Michael L. Schrag -- mls@classlawgroup.com -- Gibbs Law Group LLP, Oakland, California, for Plaintiffs-Appellees. TERRAFORM GLOBAL: "Badri" Suit Remanded to San Mateo County ----------------------------------------------------------- In the case captioned ANTON S. BADRI, Plaintiff, v. TERRAFORM GLOBAL, INC., et al., Defendants, Case No. 15-cv-06323-BLF (N.D. Cal.), Judge Beth Labson Freeman granted Anton Badri's motion and remanded the suit to the San Mateo County Superior Court. On December 9, 2015, Badri filed a securities fraud class action complaint in the California Superior Court, County of San Mateo against TerraForm Global, Inc., SunEdison, TerraForm officers and directors, and underwriters of TerraForm's initial public offering (IPO). The defendants removed the action to the United States District Court for the Northern District of California on December 30, 2015. On January 31, 2016, Badri moved to remand the matter back to state court, arguing that the Securities Act, as amended by the Securities Litigation Uniform Standards Act of 1998 (SLUSA), explicitly bars removal of the action. Judge Freeman agreed with Badri, holding that the most straightforward reading of the provisions of the statute is that only covered class actions with state law claims can be removed to federal court, as provided in 15 U.S.C. Section 77p(c), and only for the purpose of dismissing the state law claims. The judge concluded that since Badri's complaint asserted purely Securities Act claims, it could not be removed from state court under the Securities Act's jurisdictional and anti-removal provisions. A full-text copy of Judge Moskowitz's March 3, 2016 order is available at http://is.gd/jAQTVhfrom Leagle.com. Anton S. Badri, Plaintiff, represented by Albert Y. Chang, Bottini and Bottini, Inc., Francis A. Bottini, Jr., Bottini & Bottini, Inc. & Yury A. Kolesnikov, Bottini and Bottini, Inc.. Terraform Global, Inc., SunEdison, Inc., Ahmad Chatila, Carlos Domenech Zornoza, Jeremy Avenier, Martin Truong, Brian Wuebbels, Defendants, represented by Sara B. Brody -- sbrody@sidley.com -- Sidley Austin LLP, Jaime Allyson Bartlett -- jbartlett@sidley.com -- Sidley Austin LLP, Norman J. Blears -- nblears@sidley.com -- Sidley Austin LLP & Sarah Alison Hemmendinger -- shemmendinger@sidley.com -- Sidley Austin LLP. J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., BTG Pactual US Capital, LLC, Itau BBA USA Securities, Inc., SMBC Nikko Securities America, Inc., SG Americas Securities, LLC, Kotak Mahindra, Inc., Defendants, represented by Patrick David Robbins -- probbins@shearman.com -- Shearman & Sterling LLP & Stephen D. Hibbard, Shearman & Sterling LLP. TETRAPHASE PHARMACEUTICALS: Faces Securities Class Action --------------------------------------------------------- Lundin Law PC on March 21 disclosed a class action lawsuit has been filed against Tetraphase Pharmaceuticals, Inc. concerning possible violations of federal securities laws between March 5, 2015 and September 8, 2015. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm in advance of the March 28, 2016, lead plaintiff motion deadline. According to the complaint, the company issued materially false and misleading statements to investors regarding the efficacy and safety of Eravacycline, and its capacity for approval by both the FDA and the European Medicines Agency (EMA). No class has been certified in the above action. Until a class is certified, you are not considered represented by an attorney. You may also choose to do nothing and be an absent class member. Lundin Law PC was created by Brian Lundin, a securities litigator based in Los Angeles. TILE SHOP HOLDINGS: Beaver County Fund Suit Filed in N.D. Cal. -------------------------------------------------------------- A lawsuit has been filed against Tile Shop Holdings, Inc. The case is captioned Beaver County Employers Retirement Fund, individually and on behalf of all others similarly situated, the Plaintiff, v. Tile Shop Holdings, Inc., the Defendant, Case No. 3:16-mc-80062-JSC (N.D. Cal., San Francisco, March 14, 2016). Tile Shop Holdings operates as a specialty retailer of manufactured and natural stone tiles, setting and maintenance materials, and related accessories in the United States. It offers approximately 4,000 products, including ceramic, porcelain, glass, and metal tiles; and marble, granite, quartz, sandstone, travertine, slate, and onyx tiles primarily under the Rush River and Fired Earth brand names. The company also manufactures setting and maintenance materials, such as thinset, grout, and sealers under the Superior brand name. As of December 31, 2015, it operated 114 stores in 31 states with an average size of 21,800 square feet. The company is based in Plymouth, Minnesota. The Plaintiff is represented by: Shawn A. Williams, Esq. Christopher T. Gilroy, Esq. Samuel H. Rudman, Esq. William J. Geddish, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: (619) 231 1058 E-mail: shawnw@rgrdlaw.com srudman@rgrdlaw.com - and - Joseph Russello, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367 7100 Facsimile: (631) 367 1173 E-mail: jrussello@csgrr.com - and - Matthew Leo Mustokoff, Esq. Paul Aaron Breucop, Esq. Stacey Marie Kaplan, Esq. KESSLER TOPAZ MELTZER AND CHECK, LLP 280 King of Prussia Rd. Radnor, PA 19087 Telephone: (610) 667 7706 Facsimile: (610) 667 7056 E-mail: mmustokoff@ktmc.com pbreucop@ktmc.com skaplan@ktmc.com TREE OF LIFE: Recalls Organic Popping Corn Products --------------------------------------------------- Starting date: February 9, 2016 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Tree of Life Canada Distribution: Alberta, British Columbia, Manitoba, Ontario, Quebec, Saskatchewan Extent of the product distribution: Retail CFIA reference number: 10375 Brand Common Size Code(s) on UPC name name ---- product --- ----- ------ ---------- Tout Natural 255 g 09/05/16 0 65143 55367 7 Naturel Flavour Organic Popping Corn TROPICAL SWEETS: Recalls Honey Products --------------------------------------- Starting date: February 3, 2016 Type of communication: Recall Alert sub-type: Notification Subcategory: Chemical Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Tropical Sweets Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 10378 Brand Common name Size Code(s) on UPC name ----------- ---- product --- ----- ---------- Beelicious Summer Blossom 1 kg 15072 8 413524 001545 Honey (Product of Spain) Sunderland Wildflowers 1 kg 15072 8 413524 001507 Hives Honey (Product of Spain) TRUMP UNIVERSITY: Defense Counsel Opposes Nonjury Trial Proposal ---------------------------------------------------------------- Roger Parloff, writing for Fortune, reports that plaintiffs in the case against Trump University want a June or August court date. "I'm dying to go to court on this case," Donald Trump said at a deposition last December related to the civil fraud suit against him in San Diego federal court over his controversial Trump University real-estate courses. "I've been waiting for it a long time." Yet Mr. Trump is willing to endure just a bit more delay--until after Election Day on Nov. 8. As it grows increasingly likely that Mr. Trump will be the Republican candidate for President, his attorneys are pushing to postpone the trial from its previously contemplated August start date. "This will be a zoo if it were to go to trial," Mr. Trump's attorney, Dan Petrocelli, said at a hearing earlier this month, referring to the difficulty in picking a fair jury in the home stretch of a Presidential campaign. Though Mr. Petrocelli didn't mention it, undergoing a three-week suit on charges of consumer fraud, unfair competition, false advertising, and "financial elder abuse" might also prove an unwelcome, off-message, distraction for the candidate. Though the plaintiffs lawyers have also acknowledged that the current "media circus," as one of them described it at a hearing March 11, will pose serious challenges to picking a fair and unbiased jury, they are pushing to keep the August date-or even to move it up to June, just before the Republican Convention, which is scheduled for July 18-21. In a memorandum filed on March 16, the plaintiffs attorneys stressed that some of their claims, including those brought under California's broad unfair competition law, do not carry a right to trial by jury and could therefore be tried by a judge alone (in what is referred to as a bench trial). Since judges are presumed to be immune from inflammatory media reports, the plaintiffs lawyers argue that U.S. District Judge Gonzalo Curiel could at least hear those nonjury claims at that time. They have even suggested a willingness to drop certain claims from the case if need be, since class members could still benefit from a second, related class action suit. That case, which won't reach trial until after the election, is being brought by the same lawyers and claims that Trump and his University violated the civil provisions of the federal Racketeer Influenced and Corrupt Organizations Act. In a responsive submission filed on March 18, Mr. Trump's counsel protested that the nonjury plan would run contrary to federal practice, which typically dictates that when there are a mix of jury and nonjury claims, the jury claims must be heard first. Mr. Petrocelli argued that departing from that practice would effectively deprive Trump of his Seventh Amendment right to trial by jury by tainting the outcome of the later jury claims. In both Trump University suits, former students have brought class actions seeking damages and reimbursement of tuition-which ran to as much as $35,000 for the "Trump Elite Gold" version of the program. The plaintiffs allege that the courses-where instructors "hand- picked" by Trump were supposed to teach his secrets for successful real-estate speculation-did not live up to their billing and left them saddled with crushing credit-card debt. Mr. Trump has denied any wrongdoing and has stressed that more than 90% of the students rated his courses highly in satisfaction surveys--though the surveys were often filled out in front of instructors and before students yet knew the quality of the mentorship they were supposed to receive. The existing trial schedule was set last December, when Judge Curiel and the attorneys for both parties all seemed to be operating on some different unspoken assumptions-namely, that the electorate would probably have put an end to Trump's Presidential aspirations by the conclusion of the July convention, if not long before. At a status conference last December, Judge Curiel noted that the Trump University case--almost six years old--was the second oldest case on his docket, that he was eager to move it to trial, and wanted to hear it in June. (The parties then estimated that it would take about three weeks to try.) Mr. Petrocelli argued at that time, however, to set it "not sooner than July, so that Mr. Trump has the ability to compete [during] that part of the campaign." Judge Curiel and the plaintiffs, represented by Jason Forge and Rachel Jensen of Robbins Geller Rudman & Dowd, appeared to acquiesce to that request. But at a hearing on March 11, everyone present recognized that the world had changed. "There are very serious issues being raised about whether the defendants can ever get a fair trial if the atmosphere and the environment are being poisoned," Mr. Petrocelli said then. He added that the judge had previously deferred the trial date till "after the July convention to see what happens . . . I'm going to have a lot to say on that subject if Mr. Trump is the nominee." Even plaintiffs counsel Jason Forge admitted that the circumstances posed a challenge. "It really is an unprecedented level of publicity," he said. "We've all seen high-profile cases, but nothing like this . . . But that does not mean we should not go forward on some claims." Then, on March 16, Mr. Forge filed papers proposing going forward on the nonjury claims, either in August or even as early as June. He stressed that many seniors in the class--including 74-year-old class representative Sonny Low--"need resolution before it is too late." No way, Mr. Petrocelli responded on March 18. Mr.Forge's proposal was a "transparent attempt to prejudice defendants' ability to defend this case at trial while Mr. Trump is running for President," he argued. (Mr. Petrocelli knows something about high- publicity jury trials. He represented former Enron CEO Jeff Skilling in his criminal trial in Houston and won a $33.5 million civil wrongful death verdict against O.J. Simpson in Los Angeles.) It's unclear when Judge Curiel will rule on the schedule. He is, however, expected to soon decide on a pending motion to permit the originally named plaintiff in the case -- Tarla Makaeff -- to withdraw as a class representative, though she would remain a class member. Mr. Trump's lawyers oppose letting Ms. Makaeff out, since they deposed her four times and believe they can impeach her effectively on the witness stand. Ms. Makaeff has cited the stress of the suit's sudden publicity-- Trump has trashed her by name on the stump--as exacerbating "health problems, family loss, and financial troubles in the years since the case began" to the point where continuing has become "unhealthy" for her. She has submitted confidential medical records to the judge under seal. "No one could have anticipated that [Trump] would become a viable Presidential candidate and 24/7 media obsession as this case neared trial," her attorneys have written. TSC STORES: Recalls Oxgear Safety Work Boots -------------------------------------------- Starting date: February 3, 2016 Posting date: February 3, 2016 Type of communication: Consumer Product Recall Subcategory: Clothing and Accessories Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-56940 This recall involves tan leather 8-inch (20-centimetre) OxGear safety work boots, with model number 66000. The products can also be identified by the CSA file number 265396 on the tongue of the boots. The following codes and sizes are included in this recall: SKU UPC Description --- --- ----------- 660480 667388001243 OXGEAR work boots size 8 660481 667388001250 OXGEAR work books size 9 660482 667388001267 OXGEAR work boots size 9.5 660483 667388001274 OXGEAR work boots size 10 660484 667388001281 OXGEAR work boots size 10.5 660485 667388001298 OXGEAR work boots size 11 660486 667388001304 OXGEAR work boots size 12 660487 667388001311 OXGEAR work boots size 13 The work boot bears a tag with an unauthorized CSA marking. The CSA Group has not certified this safety footwear and testing has confirmed that it does not comply with the CSA standard. As such, the product may present a risk to the wearer. Health Canada, CSA Group and TSC Stores have not received any reports of consumer incidents or injuries related to the use of these products. Approximately 1,130 units were sold in Canada. The recalled products were sold from November 25, 2015 to January 8, 2016 at TSC stores. Manufactured in China. Importer: TSC Stores London Ontario CANADA Manufacturer: Jiayi Shoes & Plastic Co. Ltd. Jinxi, Qingyang Jinjiang CHINA Consumers should immediately stop using the safety boot and return the boots to TSC Stores to receive a full refund. For more information, consumers may contact TSC Stores by telephone at 519-453-5270 by email or visiting the TSC's website. Pictures of the Recalled Products available at: http://is.gd/bDY9KQ UBER TECHNOLOGIES: Unfair Competition Suit Can Proceed ------------------------------------------------------ P.J. D'Annunzio, writing for The Legal Intelligencer, reports that pared down to the single issue of whether Uber made false representations to the public that Philadelphia's taxi companies weren't guaranteed to be insured while on the road, a federal judge has allowed the cab companies' unfair competition lawsuit against Uber to move forward. U.S. District Judge Nitza I. Quinones Alejandro of the Eastern District of Pennsylvania denied defendant Uber's motion to dismiss the companies' false representation claim under the Lanham Act, filed by lead plaintiff Checker Cab Philadelphia. However, the judge dismissed the plaintiffs' false advertising and Racketeer Influenced and Corrupt Organizations Act claims, including all claims against Google, which the companies claimed had conspired with Uber by investing in it. The plaintiffs took issue with Uber's publicized statements in 2014 on its website and email blasts to its Philadelphia customers that the insurer for the city's cab companies went bankrupt and that there was "no guarantee" that their cabs would be insured. While Uber argued that its statement was true because those cab companies had not obtained replacement coverage as of the Oct. 24 and 27 publication dates, Judge Alejandro said in her memorandum that Uber failed to take into account that the insurance policies were valid until Nov. 20 of that year. "Therefore, Uber's statements expressly suggesting that the insurance policies had been terminated or cancelled as of 5 p.m. on Oct. 24, 2014, were literally false," Judge Alejandro said. The rest of the taxi companies' claims did not fare so well. Since the bulk of them were premised on Uber's alleged violation of state and local laws, Judge Alejandro said the plaintiffs did not have standing to bring those claims, citing case law holding that private parties cannot invoke the Lanham Act to create a private cause of action for enforcement of taxi regulations. The plaintiffs claimed Uber was offering unauthorized taxi services in Pennsylvania. Additionally, the cab companies sued for false advertising because of Uber's claims in a blog post that its fares were at least 20 percent cheaper. They claimed the representations made by Uber were literal falsities, as opposed to statements of truth that were likely to be misleading to consumers. "The challenged blog post, included in its entirety as an exhibit to the amended complaint, provided sample pricing costs to back up Uber's statement, specifically 'comparing UberX rates to Philadelphia taxicab rates for three sample trips,'" Judge Alejandro said. "These fare samples show the literal truth of the challenged statement, i.e., the sample UberX rates are at least 20 percent lower than the sample non-Uber taxicab fares." The cab companies did not refute Uber's claims in their amended complaint, so, Alejandro said, their false advertising claim failed. The plaintiffs' RICO claims fell short for the same reason their allegations of state and local law violations fell short. "To the extent plaintiffs' claims are premised on an alleged unlawful enterprise consisting of unauthorized provision of taxicab services, such claims are dismissed for the same reasons previously discussed," Judge Alejandro said. "Just as the Lanham Act cannot be used to create an otherwise nonexistent private cause of action for enforcement of state and local regulations, neither can the RICO statute." Additionally, Judge Alejandro said the cab companies did not show a pattern of racketeering existed between Google and Uber through the instances of alleged false advertising. As to the RICO conspiracy claim, Alejandro said a plaintiff "must plead facts showing an injury distinct from an injury caused by the alleged predicate acts themselves, i.e., distinct from" that of their other claims. "As such, plaintiffs have not alleged any injury or facts to establish an injury separate and distinct from that alleged as a result of the predicate fraudulent acts themselves. At best, plaintiffs have pled that defendants' investments in the enterprise have merely permitted the fraudulent activity to continue," Judge Alejandro said. UNITED NATIONS: Hearing Held in Cholera Class Action Appeal ----------------------------------------------------------- Richard Knox, writing for NPR, reports that a three-judge federal appeals court panel held a hearing March 1 on whether the U.N. should be held accountable for Haiti's devastating epidemic. It's widely believed that U.N. peacekeepers -- possibly just a single soldier -- brought cholera to Haiti during deployment from Nepal, where cholera is a perennial threat. Before Haiti's epidemic began in October 2014, the disease hadn't been known in Haiti, this hemisphere's poorest country. Poor sanitation at a U.N. camp for peacekeepers allowed cholera- contaminated sewage to enter a tributary of Haiti's largest river, the Artibonite. Within days, hundreds of people downstream, like Jean-Clair Desir and his mother, were falling ill. The disease subsequently spread to the entire country. Daniele Lantagne, a Tufts University environmental engineer, is one of four independent experts appointed by the U.N. in 2011 to investigate the outbreak. "I and the panel believe, and the scientific consensus is, that the most likely source was a peacekeeper or peacekeepers" at the U.N. encampment, Mr. Lantagne told NPR. "There is not an alternative hypothesis that is credible." She adds that DNA analysis strongly suggests "this outbreak was probably started by one or very few infected, asymptomatic individuals -- I would guess one." Dr. Louise Ivers of Partners in Health, a major provider of health care in Haiti, says the new study redefines the already huge toll from Haiti's cholera epidemic. "This is a very important paper," Dr. Ivers says. "We've said all along that we thought cholera had a much bigger impact than the numbers were showing. There was no possible way all those deaths were being counted. I do think it raises the stakes in terms of what happens." Those stakes are already very high. A federal district judge last year dismissed the class-action suit, ruling that international treaties immunize the U.N. from lawsuits. The plaintiffs appealed the lower court's dismissal, resulting in this month's hearing. The United States is defending the U.N., since the agency is headquartered in New York. The lawsuit was brought by the Boston-based Institute for Justice and Democracy in Haiti and a sister group in Haiti on behalf of 5,000 cholera victims. They want the U.N. to end cholera by installing a national water and sanitation system; pay reparations to cholera victims and their families; and publicly apologize for bringing cholera to Haiti. The plaintiffs contend the U.N. forfeited its legal immunity when it failed to launch an internal process to adjudicate the plaintiffs' claims, as they say its own commitments require. "The U.N.'s conditional immunity does not authorize impunity," plaintiffs' attorney Beatrice Lindstrom told the three-judge appeals panel. The judges seemed to be struggling to find a way to provide some compensation to Haitian cholera victims. For instance, Judge Barrington Parker asked Assistant U.S. Attorney Ellen Blain, representing the U.N.'s position: "Would the United States government concede that if you're right and these people are completely remediless, that that is a very bad result?" Ms. Blain said the U.S. government "certainly recognizes that this is an unfortunate and tragic humanitarian catastrophe," but asserted that the U.N. has "absolutely immunity . . . for a very important reason." She was alluding to U.N. officials' fear that if the Haitian plaintiffs succeed in piercing the agency's cloak of immunity, it will open the way to unlimited lawsuits seeking compensation for acts of the U.N. or the 150,000 peacekeeping forces it sends out into the world each year. But this argument is being sharply challenged by some of the U.N.'s own staff -- a group of five "special rapporteurs" who are appointed to act as internal watchdogs. In a letter to U.N. Secretary General Ban Ki-moon presented on March 15 to the U.N. Human Rights Council, the rapporteurs rejected the argument that compensating Haitian cholera victims would be "opening the floodgates to claims against the United Nations." This is believed to be the first time the U.N.'s human rights watchdogs have criticized the agency itself, rather than member nations. The rapporteurs also criticized the U.N.'s efforts to control cholera through clean water and sanitation as "clearly insufficient." So far the U.N. has spent about $140 million on cholera control in Haiti -- only 6 percent of the $2.2 billion the agency says will be needed to eliminate cholera there. In unusually blunt language, the rapporteurs told Ban that the U.N.'s denial of "an effective remedy" for cholera "challenges the credibility of the Organization as an entity that respects human rights." NPR asked the secretary general's office for a copy of his response to the rapporteurs' letter. A spokesman said Ban's response could not be released. But he said the secretary general told the rapporteurs that he "reaffirms the U.N.'s commitment to the fight against cholera in Haiti and the protection and promotion of human rights." In perhaps the most significant disclosure, the spokesman said Ban welcomes the rapporteurs' offer "to discuss further what additional steps might be taken to assist the victims of cholera and their communities." It's evidently the first time Ban has hinted at the possibility of such a discussion. Meanwhile, the U.N. has received thousands of letters from Haitian cholera victims detailing how the disease has affected them and their families. One letter was from Jean-Clair Desir, the student who lost his mother to cholera early in the outbreak. "President, Members of the United Nations Security Council and all other responsible, I lift my head to look at the sky so I may strongly salute you," he wrote. "I know you are promoting human rights and respect, [but] in fact . . . you refused to compensate us; that is bad." UNITED STATES: D.C. Cir. Affirms Denial of Motion to Intervene -------------------------------------------------------------- Circuit Judge Robert L. Wilkins of the Court of Appeals, District of Columbia Circuit, affirmed the district court's judgment denying a motion by Timothy LaBatte to intervene in a now-settled class action lawsuit against the U.S. Department of Agriculture. The appellate case is captioned, GEORGE B. KEEPSEAGLE, ET AL., Appellees, TIMOTHY LABATTE, Appellant, v. THOMAS J. VILSACK, SECRETARY OF AGRICULTURE, Appellee, Case No. 14-5223 (D.C. Cir.). The class action, filed in 1999, alleges that the US Department of Agriculture discriminated against Native American farmers in its provision of loans. The parties settled the action in November 2010. The District Court approved the settlement, and dismissed the suit with prejudice in April 2011, stating that it "retained continuing jurisdiction for a period of five years for the limited purposes set forth in the Settlement Agreement." LaBatte filed his claim under the Agreement in December 2011, via Track B. Because he lacked signed declarations attesting to similarly situated white farmers, LaBatte submitted the declarations that Russell Hawkins and Tim Lake -- who both work for the Bureau of Indian Affairs ("BIA") -- allegedly would have signed, along with an additional declaration from his attorney explaining that the BIA prohibited Hawkins and Lake from signing the declarations. The District Court held that it lacked jurisdiction to hear LaBatte's motion to intervene. Because the Court had dismissed the case with prejudice following settlement, it determined that it was only through its ancillary jurisdiction that it could hear LaBatte's motion. On appeal, LaBatte seeks review of the District Court's determination arguing that the distribution of the Settlement Fund and a right to non-government interference with the Track B process are interrelated and interdependent to the claims LaBatte asserted in his complaint. In his Opinion dated March 4, 2016 available at http://is.gd/q0nPPtfrom Leagle.com, Judge Wilkins concluded that LaBatte's motion to intervene is unrelated to the underlying lawsuit and because the District Court was not required to hear LaBatte's motion in order to effectuate its decrees. Timothy LaBatte is represented by Erick G. Kaardal, Esq. -- kaardal@mklaw.com -- MOHRMAD, KAARDAL & ERICKSON, PA Thomas J. Vilsack is represented by: Carleen M. Zubrzycki, Esq. Benjamin C. Mizer, Esq. Vincent H. Cohen Jr., Esq. Charles W. Scarborough, Esq. Katherine Twomey Allen, Esq. U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW Washington, DC 20530-0001 Tel: (202)353-1555 UNITED STATES: Attorney's Fees Awarded to "Turner" Plaintiffs ------------------------------------------------------------- In the case captioned TRINKA A. TURNER, et al., Plaintiffs, v. THOMAS VILSACK, et al., Defendants, Case No. 3:13-cv-1900 SI (D. Or.), Judge Michael H. Simon granted in part the plaintiffs' application for attorney's fees and costs in the amount of $60,907.87 in attorney's fees and $625.24 in costs. On November 5, 2015, a putative class action was filed against officials with the United States Department of Agriculture (USDA) and its Rural Development (RD) and Rural Housing Service arising from the intended foreclosure sale of Jandina, a 36-unit apartment building that is part of the USDA's RD housing portfolio. On November 18, 2013, the court granted the plaintiffs' motion for preliminary injunction and enjoined the foreclosure of Jandina. On November 5, 2015, the case was dismissed by stipulation of the parties pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The plaintiffs then filed an application for attorney's fees and costs under the Equal Access to Justice Act (EAJA). The defendants objected, arguing that no attorney's fees should be awarded to the plaintiffs because the court lacks jurisdiction to consider the fee application on a case that has been resolved through a stipulated dismissal. The defendants also argued that the plaintiffs are not the "prevailing party" as required under the EAJA because the stipulated dismissal does not order any relief against any defendant. The United States did not object to the plaintiffs' request for costs. Judge Simon cited that circuit courts have held that, when parties voluntarily dismiss an action, a prevailing party may file for, and when appropriate receive, attorney's fees under the EAJA. The judge then considered the plaintiffs as the prevailing party, as demonstrated by a review of the post-injunction conduct of the parties whereby "Plaintiffs agreed to dismiss the action and Defendants rescinded the notice of default and election to foreclose and agreed to operate in good faith toward a potential transfer of the property to Community and Shelter Assistance Corp or other options to keep the property within the USDA multifamily housing program." Judge Simon, however, declined to award an enhanced EAJA hourly rate for any of the plaintiffs' counsels. Although Judge Simon recognized that plaintiffs' counsel, Gideon Anders, had specialized knowledge and expertise in the RD program, the judge was persuaded that such expertise does not warrant EAJA fee enhancement because the arguments in the case involved a fairly straightforward application of the relevant statutes and the USDA handbook governing the RD program. A full-text copy of Judge Simon's March 14, 2016 opinion and order is available at http://is.gd/BHScacfrom Leagle.com. Trinka A. Turner, Junea R Murphy, Jennifer L Junkins, Plaintiffs, represented by Edward Johnson, Oregon Law Center, Michael A. Pijanowski, Legal Aid Services of Oregon, Spencer M. Neal, Oregon Law Center & Leslea Shannon Smith, Oregon Law Center. Thomas Vilsack, Douglas O'Brien, Richard Davis, Vickie L. Walker, Defendants, represented by Sean E. Martin, U.S. Attorney's Office. UNITEDHEALTH GROUP: Two Law Firms File Insurance Class Action ------------------------------------------------------------- The law firms of Kessler Topaz Meltzer & Check, LLP and Cooper & Kirk, PLLC on March 21 disclosed that they have filed a class action lawsuit in the United States District Court for the District of Minnesota against UnitedHealth Group Inc., UnitedHealthCare, Inc., UnitedHealthcare Life Insurance Co., Optum, Inc. and OptumRx, Inc. (collectively "Defendants") for their unlawful denial of coverage and refusal to pay for Harvoni -- a medically necessary treatment which can effectively cure chronic Hepatitis C ("CHC"). Hepatitis C is a contagious blood-borne virus that attacks the liver and affects millions of people in the United States. The chronic form of Hepatitis C leads to a host of medical problems. The U.S. Food and Drug Administration approved Harvoni exclusively for the treatment of genotype 1 CHC patients in October of 2014, calling it a "breakthrough" drug. Harvoni is the first drug approved for the treatment of CHC that does not require combination with other drugs, and can effectively cure CHC in 94% to 100% of cases with little to no side effects. Notwithstanding the life-saving treatment offered to CHC patients by Harvoni, Defendants have unlawfully limited Plaintiff's and class members' access to this miracle drug by developing arbitrary coverage criteria. As detailed in the complaint, Plaintiff and class members were diagnosed with Hepatitis C, prescribed Harvoni by their physicians, and unlawfully denied coverage of Harvoni by the Defendants. As a result, Plaintiff and class members have been and continue to be irreparably damaged by Defendants' denial of coverage for their medically necessary Harvoni treatment. To view a copy of the complaint filed in this action, or for additional information about the lawsuit, please visit www.ktmc.com/hepatitis-c-harvoni-united-health-care Hepatitis C patients that have been denied coverage for Harvoni by their insurance company are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., James Maro, Esq. or Adrienne O. Bell, Esq.) at (888) 299-7706 or at info@ktmc.com, or submit an inquiry for information online at www.ktmc.com/hepatitis-c-harvoni-united-health-care Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). For more information about Kessler Topaz Meltzer & Check, or for additional information about participating in this action, please visit www.ktmc.com. Cooper & Kirk, PLLC -- http://www.cooperkirk.com-- prosecutes large scale, high profile cases throughout the country. The firm has recovered billions of dollars on behalf its clients in a wide range of matters. UNIVERSITY OF PHOENIX: Court Sends "Aldrich" Suit to Arbitration ---------------------------------------------------------------- In the case captioned MARLENA ALDRICH and KRISTEN NOLAN, Plaintiffs, v. THE UNIVERSITY OF PHOENIX, INC., Defendant, Civil Action No. 3:15-cv-00578-JHM (W.D. Ky.), Judge Joseph H. McKinley granted the Motion to Dismiss and Compel Arbitration filed by the University of Phoenix. Marlena Aldrich and Kristen Nolan filed an action asserting claims arising from or related to their employment with the University, which included a putative class action claim and wrongful termination claims. The University contended that the plaintiffs have "entered into a valid arbitration agreement . . . which broadly encompasses 'any dispute arising out of or related to [their] employment or termination of employment with [Defendant]." Thus, the University argued that the matter should be dismissed in its entirety, or in the alternative, arbitration should be compelled and the action stayed. Judge McKinley found that the "effective vindication" exception to the Federal Arbitration Act does not apply to the plaintiff's public policy claims, and that a valid and enforceable arbitration agreement does exist between the plaintiffs and the University. Thus, the judge concluded that, to the extent that the plaintiffs wish to pursue their claims against the University, they must do so in accordance with that agreement. Judge McKinley also held that the plaintiffs may not pursue their claims collectively as the arbitration agreements contain a class action waiver. The action was dismissed without prejudice, rather than stayed pending arbitration, because the court was satisfied that all of the plaintiffs' claims are subject to arbitration. A full-text copy of Judge McKinley's March 4, 2016 memorandum opinion and order is available at http://is.gd/0VDEbFfrom Leagle.com. Marlena Aldrich, Kristen Nolan, Plaintiffs, represented by Kirk Hoskins. The University of Phoenix, Inc., Defendant, represented by J. Andrew Inman -- jinman@littler.com -- Littler Mendelson, PSC & LaToi D. Mayo -- lmayo@littler.com -- Littler Mendelson, PSC. VESUVIO'S II: "Solais" Suit Wins Conditional Certification ---------------------------------------------------------- In the case captioned MIRIAM MARTINEZ SOLAIS, on behalf of herself and all others similarly situated, Plaintiff, v. VESUVIO'S II PIZZA & GRILL, INC. and GIOVANNI SCOTTI D'ABBUSCO, Defendants, No. 1:15cv227 (M.D.N.C.), Judge L. Patrick Auld granted the plaintiff's motion for conditional certification pursuant to the Fair Labor Standards Act (FLSA), but denied the plaintiff's emergency motion for a protective order, the defendants' motion for protective order, and plaintiff's motion to strike certain affidavits. The judge also sustained the plaintiff's objection contained in her memorandum regarding the reasonableness of the defendants' claimed expenses. On behalf of certain kitchen workers at Vesuvio's II Pizza & Grill, Inc., Miriam Martinez Solais initiated a putative collective action under the FLSA and a putative class action under the North Carolina Wage and Hour Act against Giovanni Scotti D'Abbusco and Vesuvio's II. Thereafter, Solais filed a certification motion, which sought FLSA conditional certification of a class of Vesuvio's II employees. The defendants then sought discovery, which generated multiple motions to compel and motions for protective orders. Solais sought to strike the affidavits of Russell Thomas, James Wilson, Jason Howe, and Christopher Cates "filed in support of Defendants' Reply in Support of their Motion for Protective Order." Judge Auld did not strike the affidavits because these are not included in the definition of "pleadings" under Rule 7(a) of the Federal Rules of Civil Procedure. Each party sought to limit the other side's communication with putative class members. The defendants contended that Solais has improperly solicited individuals to join the collective action and that this solicitation necessitates certain constraints. Solais meanwhile contended that the defendants have improperly threatened putative plaintiffs in an attempt to dissuade their pursuit of the FLSA action. Judge Auld found that the defendants have not established a clear record of attempted solicitation. On the other hand, Judge Auld found that the plaintiffs have not established that the alleged threatening conduct consitutes sufficient evidentiary basis for the requested relief because they were either inadmissible hearsay or had no basis to be attributed to the defendants. A full-text copy of Judge Auld's March 14, 2016 memorandum opinion and order is available at http://is.gd/UaX8V6from Leagle.com. MIRIAM MARTINEZ SOLAIS, Plaintiff, represented by ADAM T KLEIN -- atk@outtengolden.com -- OUTTEN & GOLDEN LLP, SALLY J. ABRAHAMSON -- sabrahamson@outtengolden.com -- OUTTEN & GOLDEN LLP &GILDA A. HERNANDEZ -- ghernandez@gildahernandezlaw.com -- LAW OFFICES OF GILDA A. HERNANDEZ, PLLC. GIOVANNI SCOTTI DABBUSCO, VESUVIO'S II PIZZA & GRILL, INC, Defendants, represented by DENISE SMITH CLINE -- denise@dsclinelaw.com -- LAW OFFICE OF DENISE SMITH CLINE. VIRBAC CANADA: Recalls Cortisoothe Shampoo Products --------------------------------------------------- Starting date: February 2, 2016 Posting date: March 4, 2016 Type of communication: Drug Recall Subcategory: Veterinary Drugs Hazard classification: Type III Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57340 Expected out of specificaiton result for Hydrocortisone assay prior to the expiration date of the impacted product. Retailers: Ontario, British Columbia, Quebec, Alberta Affected products: Cortisoothe Shampoo DIN, NPN, DIN-HIM DIN 02237992 Dosage form: Shampooing Strength: 10 mg / g Lot or serial number: 880829 Recalling Firm: Virbac Canada Inc. 1400-340 Albert St Ottawa K1R 0A5 Ontario CANADA Marketing Authorization Holder: Virbac Canada Inc. 1400-340 Albert St Ottawa K1R 0A5 Ontario CANADA VISA CORP: Faces Antitrust Suit Over Chip-Reader Rules ------------------------------------------------------ Ross Todd, writing for The Recorder, reports that lawyers at Robbins Geller Rudman & Dowd and Florida-based Devine Goodman Rasco & Watts-FitzGerald have filed an antitrust lawsuit claiming that major credit card companies and the nation's largest banks conspired to shift liability for fraudulent credit card transactions in the U.S. to merchants. The complaint filed in U.S. District Court for the Northern District of California on March 8 claims that the move to cards that include electronic chips designed to be more secure -- so- called EMV chips -- has been plagued by technical glitches and used as cover to illegally shift fraud-protection costs. Merchants who failed to make an Oct. 1, 2015, deadline to get chip-enabled card reading systems up and running and inspected by third-party certifiers now face liability for fraudulent charges that were previously covered primarily by card issuers. According to the complaint, getting the chip-enabled systems certified has been a "nebulous process that was utterly outside [merchants'] control." "Merchants were not consulted about the change, were not permitted to opt out, were not offered any reduction of the interchange fee, the merchant discount fee, the swipe fee -- or any other cost of accepting defendants' credit and charge cards," the plaintiffs lawyers wrote. "The liability shift was unilaterally imposed to the benefit of defendants, with no compensation, consultation or consideration of any kind made to the class members." Robbins Geller's Patrick Coughlin -- patc@rgrdlaw.com -- said in a phone interview on March 9 that defendants "shifted $8 billion of liability onto the merchants overnight. Literally overnight." Mr. Coughlin and his colleagues sued all four major credit card companies and nearly a dozen banks on behalf of a small grocery store chain and a liquor store in Florida. Plaintiffs are seeking to certify a class of all affected merchants and claim that the changes violate the Sherman Antitrust Act, the Clayton Antitrust Act, and California's Cartwright Act and unjust-enrichment law. They're asking for damages of three times any overcharges. Mr. Coughlin said that his grocery store client has seen chargebacks for fraudulent purchases go from $89 in the year preceding the October deadline to more than $10,000 in the months since. He said he's talked to in-house counsel at some larger merchants and he anticipates that they will get involved in the litigation. "It's not just a problem with the small merchants and I'm sure you're going to see larger merchants come into this," Mr. Coughlin said. Mark Horwedel, the CEO of Merchant Advisory Group, said that this is the first lawsuit that he's seen targeting the changes, but that he expects more. The organization represents some of the nation's largest merchants, including McDonald's Corp. and Starbucks Corp., in payment issues. "I don't think there's a merchant anywhere who would tell you that they had enough time" to do all that was required, he said. EMVCo LLC, a standard-setting company that helped set the ground rules for the industry's move to the chip cards this fall, is also named as a defendant. Plaintiffs claim that EMVCo, which is co- owned by Visa, MasterCard, China's UnionPay, Japan's JCB, Discover and American Express, isn't "simply a standard-setting entity" but that it was "a means through which defendants here have been able to effectuate their conspiracy." A spokesperson for EMVCo didn't immediately respond to an email message. Representatives of Visa Corp. and American Express Co. both declined to comment. Mr. Coughlin said on March 9 that the lead plaintiffs likely came to his firm because of Robbins Geller's prior work against the card companies and banks. Coughlin and his firm were co-lead plaintiffs counsel in an antitrust case targeting fees merchants must pay to process purchases made with Visa and MasterCards. A $5.7 billion settlement in that case is being challenged in the U.S. Court of Appeals for the Second Circuit. VITA HEALTH: Recalls Ibuprofen Liquid Capsules ---------------------------------------------- Starting date: February 3, 2016 Posting date: March 17, 2016 Type of communication: Drug Recall Subcategory: Drugs Hazard classification: Type III Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57524 Distributed to the retail level. Nationally in Canada only Affected products A. Overwaitea Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsule Strength: 200 mg Lot or serial number: 6A2433UGY 6A2433U9F Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA B. Life Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsule Strength: 200 mg Lot or serial number: 6A2433U9J 6A2433U9K Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA C. Costco Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsules Strength: 200 mg Lot or serial number: 6A2433TRZ Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA D. McKessons Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsule Strength: 200 mg Lot or serial number: 6A2433TKK Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA E. Sobeys Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsule Strength: 200 mg Lot or serial number: 6A2433U9G 6A2433UGT Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA F. McMahon Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsule Strength: 200 mg Lot or serial number: 6A2433U9C Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA G. Familiprix Ibuprofen Liquid Capsules 200 mg DIN, NPN, DIN-HIM DIN 02357275 Dosage form: Capsule Strength: 200 mg Lot or serial number: 6A2433U9B Recalling Firm: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA Marketing Authorization Holder: Vita Health Products Inc. 150 Beghin Ave. Winnipeg R2J 3W2 Manitoba CANADA VIVO BRAND: Recalls Forta for Men Products Due to Tadalafil ----------------------------------------------------------- Starting date: February 3, 2016 Posting date: February 16, 2016 Type of communication: Drug Recall Subcategory: Natural health products Hazard classification: Type I Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57074 One lot was found to be adulterated with undeclared Tadalafil (in the capsule shell). The firm initiated a recall of all lots as a precaution. Retailers across Canada Affected products: Forta for Men DIN, NPN, DIN-HIM NPN 80045132 Dosage form: Capsule Strength: Cinnamomum aromaticum 70.0 mg Epimedium brevicornu 130.0 mg Lycium barbarum 80.0 mg Ophiocordyceps sinensis 120.0 mg Panax ginseng 100.0 mg Lot or serial number: Lot 325 Lot 326 Lot 330 Lot 332 Lot 333 Lot 335 Lot 336 Recalling Firm: Vivo Brand Management 3318 Second Street East Cornwall K6H 6J8 CANADA Marketing Authorization Holder: Vivo Brand Management 3318 Second Street East Cornwall K6H 6J8 CANADA VIVO BRAND: Recalls Durazest Capsules ------------------------------------- Starting date: February 5, 2016 Posting date: February 16, 2016 Type of communication: Drug Recall Subcategory: Natural health products Hazard classification: Type I Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-57076 Durazest capsule lots recalled as a precautionary measure. Product used the same capsule shells found to be adulterated with Tadalafil in Forta for Men. Retailers across Canada Affected products: Durazest DIN, NPN, DIN-HIM NPN 80033381 Dosage form: Capsule Strength: Ginkgo biloba 50.0 mg Epimedium brevicornu 150.0 mg Lycium barbarum 80.0 mg Ophiocordyceps sinensis 120.0 mg Panax ginseng 100.0 mg Lot or serial number: Lot 230 Lot 231 Lot 232 Lot 233 Recalling Firm: Vivo Brand Management 3318 Second Street East Cornwall K6H 6J8 CANADA Marketing Authorization Holder: Vivo Brand Management 3318 Second Street East Cornwall K6H 6J8 CANADA VOLKSWAGEN: Recalls Routan 2009 Models Due to Defective Airbag -------------------------------------------------------------- Starting date: February 5, 2016 Type of communication: Recall Subcategory: Light Truck & Van, SUV Notification type: Safety Mfr System: Airbag Units affected: 265 Source of recall: Transport Canada Identification number: 2016059TC ID number: 2016059 Manufacturer recall number: 69M5 On certain vehicles, a defect in the Occupant Restraint Control (ORC) system could result in inadvertent airbag / seatbelt pretensioner deployment, or prevent airbags / seatbelt pretensioners from deploying when warranted. Unintended airbag / seatbelt pretensioner deployment, in a non-warranted (non-impact) situation, could startle the driver, and could result in a vehicle crash causing injury and/or property damage. Furthermore, failure of the airbags / seatbelt pretensioners to deploy in a crash when warranted could increase the risk of injury to vehicle occupants. Correction: Dealers will replace the Occupant Restraint Control (ORC) module. Make Model Model year(s) affected ---- ----- ---------------------- VOLKSWAGEN ROUTAN 2009 VOLKSWAGEN: Recalls Multiple Vehicle Models ------------------------------------------- Starting date: February 9, 2016 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Airbag Units affected: 15039 Source of recall: Transport Canada Identification number: 2016065TC ID number: 2016065 Manufacturer recall number: 69M8 / 69N2 On certain vehicles, the driver frontal airbag inflator could produce excessive internal pressure during airbag deployment. Increased pressure may cause the inflator to rupture, which could allow fragments to be propelled toward vehicle occupants, increasing the risk of injury. This could also damage the airbag module, which could prevent proper deployment. Failure of the airbag to fully deploy during a crash (where deployment is warranted) could increase the risk of personal injury to the seat occupant. Correction: Dealers will replace the front driver airbag inflator. Note: This only affects the Cabriolet version of the Audi A4 model. Make Model Model year(s) affected ---- ----- ---------------------- VOLKSWAGEN PASSAT 2006 AUDI A4 2007 AUDI A3 2006 WAL-MART: Sued for Denying Same-Sex Spouse Employee Benefits ------------------------------------------------------------ The Associated Press reports that the wife of a Massachusetts woman who filed a class action lawsuit accusing Wal-Mart of wrongly denying employee benefits for same-sex spouses has died. GLBTQ Legal Advocates & Defenders says New Bedford resident Dee Smithson died on March 18 of ovarian cancer. Smithson's wife, Jacqueline Cote, sued in July in U.S. District Court in Boston seeking damages for the couple and any other Wal- Mart employees whose same-sex spouses were denied medical insurance. Cote says Wal-Mart repeatedly denied insurance for Smithson before 2014, when it started offering benefits for same-sex spouses. The couple married in 2004. They incurred at least $150,000 in medical costs after Smithson was diagnosed with cancer in 2012. GLAD helped file the suit. A spokeswoman says Smithson's death shouldn't affect the case. Bentonville, Arkansas-based Wal-Mart Stores Inc. has said its benefits coverage was consistent with the law. WAL-MART STORES: Bid to Dismiss "Biasi" Suit Denied --------------------------------------------------- In the case captioned JOSEPH BIASI, individually and on behalf of all others similarly situated, Plaintiffs, v. WAL-MART STORES EAST, LP; EARLENE SCHAEFFER; RYAN DUNPHY; and REBECCA PAUKSTELA, Defendants, No. 6:15-CV-0454(GTS/ATB) (N.D.N.Y.), Judge Glenn T. Suddaby denied the defendants' motion to dismiss the second cause of action in the plaintiffs' second amended complaint. An employment discrimination and uniform maintenance pay class action was filed by Joseph Biasi against Wal-Mart Stores East, LP, Earlene Schaeffer, Ryan Dunphy and Rebecca Paukstela. The defendants moved to dismiss the second cause of action in Biasi's second amended complaint for failure to state a claim upon which relief can be granted. The defendants argued that New York's Hospitality Industry Wage Order is inapplicable to Wal-Mart because the second amended complaint failed to allege facts plausibly suggesting that Wal-Mart falls under the definition of "hospitality industry." Judge Suddaby found that Biasi has alleged facts plausibly suggesting a claim for uniform maintenance pay. The judge explained that while Wal-Mart may not be a restaurant in the traditional sense, Biasi has alleged facts plausibly suggesting that it is an establishment that offers restaurant concessions. A full-text copy of Judge Seeborg's March 14, 2016 decision and order is available at http://is.gd/5yba8bfrom Leagle.com. Joseph Biasi, Plaintiff, represented by Ryan M. Finn, E. Stewart Jones Hacker Murphy, LLP & David I. Iversen, E. Stewart Jones Hacker Murphy, LLP. Wal-Mart Stores East, LP, Earlene Schaeffer, Ryan Dunphy, Rebecca Paukstela, Defendants, represented by Pamela J. Moore -- pmoore@mccarter.com -- McCarter, English Law Firm & Sami Asaad -- sasaad@mccarter.com -- McCarter, English Law Firm. WAL-MART STORES: "Cruz" Suit Filed in Southern Dist. Florida ------------------------------------------------------------ A lawsuit has been filed against WalMart Store, Inc. The case is captioned Kiara Cruz, as an individual and on behalf of all others similarly situated, the Plaintiff, v. WalMart Store, Inc., a foreign company, the Defendant, Case No. 9:16-cv-80382-DMM (S.D. Fla., West Palm Beach, March 14, 2016). Wal-Mart Stores operates retail stores in various formats worldwide. The company operates through three segments: Walmart U.S., Walmart International, and Sam's Club. It operates discount stores, supermarkets, supercenters, hypermarkets, warehouse clubs, cash and carry stores, home improvement stores, specialty electronics stores, restaurants, apparel stores, drug stores, and convenience stores, as well as retail Websites, such as walmart.com and samsclub.com. The Plaintiff is represented by: Alexander Jan-Yura Korolinsky 16640 SW 145 Ave. Miami, FL 33177 Telephone: (305) 905 7406 E-mail: korolinsky@outlook.com WILLIAMS PRODUCTION: Transport Costs Deductible From Royalties -------------------------------------------------------------- In the case captioned Ivo Lindauer; Sidney Lindauer; Ruth Lindauer; and Diamond Minerals, LLC, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Williams Production RMT Company, n/k/a WPX Energy Rocky Mountain, LLC, Defendant-Appellant, No. 14CA2502 (Colo. App.), the Court of Appeals of Colorado reversed the district court's entry of judgment in favor of plaintiffs, Ivo Lindauer, Sydney Lindauer, Ruth Lindauer, Diamond Minerals, LLC, and all those similarly situated and remanded the case with directions to enter judgment in favor of defendant Williams Production RMT Company n/k/a WPX Energy Rocky Mountain, LLC. The plaintiffs brought a class action in 2006 challenging WPX's calculation and payment of royalties on oil and gas leases for wells operated by WPX in northwest Colorado. The parties reached a partial settlement agreement in 2008, except for plaintiffs' assertion that WPC improperly deducted costs incurred to transport gas to downstream markets beyond the first commercial market at Piceance Basin when calculating royalties on natural gas in certain months from July 2000 to July 2008. The plaintiffs argued that for the costs to be deductible, WPX must show enhancement, or that actual royalty revenues increased in proportion to the costs, on a month by month basis by comparing the downstream prices at the point of sale to the price of gas in the Piceance Basin. The district court agreed with the plaintiffs in applying the enhancement test and required that WPX apply the test on a month by month basis to determine whether its transportation costs were deductible. On appeal, the Court of Appeals of Colorado held that post- marketability transportation costs are not required to meet the enhancement test in order to be deducted from royalty payments, and that other considerations militate against imposing an enhancement test on transportation costs. The appellate court concluded that post-marketability transportation costs are deductible if they are reasonable, and that lessees are not required to establish that such costs enhance the value of the gas or increase royalty revenues. A full-text copy of the Court of Appeals of Colorado's March 10, 2016 opinion is available at http://is.gd/2h6sFLfrom Leagle.com. Dufford, Waldeck, Milburn & Krohn, LLP, Nathan A. Keever -- keever@dwmk.com -- Grand Junction, Colorado, for Plaintiffs- Appellees. Holland & Hart LLP, John F. Shepherd -- jshepherd@hollandhart.com -- Christopher A. Chrisman -- cachrisman@hollandhart.com -- Denver, Colorado, for Defendant-Appellant. WOK 88: Faces "Huang" Class Action in S.D.N.Y. ---------------------------------------------- A lawsuit has been filed against Ai Chiu Chiang. The case is captioned Zeng Xiang Huang and Yunsheng Li, individually and on behalf of all others similarly situated, the Plaintiff, v. Ai Chiu Chiang, John Doe and Jane Doe, as shareholders and corporate officers, and WOK 88, Inc., doing business as WOK 88, the Defendants, Case No. 1:16-cv-01129 (S.D.N.Y., February 15, 2016). Wok 88 operates a restaurant in New York, New York. Zeng Xiang Huang and Yunsheng Li are pro se plaintiffs. WWRD UNITED: Recalls Peter Rabbit Baby Rattles ---------------------------------------------- Starting date: February 4, 2016 Posting date: February 4, 2016 Type of communication: Consumer Product Recall Subcategory: Children's Products, Toys Source of recall: Health Canada Issue: Choking Hazard Audience: General Public Identification number: RA-56996 This recall involves the Wedgwood Peter Rabbit Baby Rattle sold as decorative giftware. The rattle is made of a zinc alloy base material with lacquered silver plating. The rattle ends are hollow and each contains two small iron beads (four per item). The hollow ends are glued to the main body. A bunny figure and the words "hop hop hop" are embossed on one of the rattle ends. A bunny figure and the words "hop little rabbit" are embossed on the other rattle end. The product SKU number is 4003003 and the UPC code is 701587150262. If the product comes into contact with water or is subjected to pressure, seams on the rattle can open, releasing small beads. The beads can pose a choking hazard to young children. Neither Health Canada nor WWRD United Kingdom Ltd. has received reports of consumer incidents or injuries to Canadians related to the use of the recalled rattles. Approximately 24 of the recalled rattles were sold at various retailers across Canada. Approximately 670 of the rattles were sold in the United States. The product was also offered for sale online through WWRD's global websites and amazon.com. The recalled rattles were sold from April 2015 through December 2015. Manufactured in China. Distributor: WWRD United Kingdom Ltd. Barlaston, Stoke-on-Trent Staffordshire UNITED KINGDOM Consumers should take away the recalled rattle from their children and should contact WWRD to arrange for a full refund. Consumers may contact WWRD United Kingdom Ltd. toll free at 1-877- 892-9973 or visit the WWRD's website for more information.WWRD will provide instructions for returning the product along with a prepaid shipping container. Pictures of the Recalled Products available at: http://is.gd/8wmQct * Anshun Estoppel Applied in Three Recent Class Action Rulings -------------------------------------------------------------- Ruth Overington, Esq., and Amelia Edwards,Esq., of Herbert Smith Freehills LLP, in an article for Lexology, report that the extent which a group member is bound by the outcome of a class action is a significant issue for defendants who are concerned to know if a class action will resolve all claims against them. Yet uncertainty prevails because of a lack of clarity around how principles laid down by the High Court, which came to be known as Anshun estoppel, are applied to class actions. These principles seek to prevent the subsequent litigation of claims and defenses that could, or should, have been determined in earlier litigation. Appling these principles to complex and large-scale class actions, where group members are assumed to participate unless they have actively opted out (and consequently may not take an active role in the proceeding or even know about it), raises challenging questions, both when proceedings go to judgment and when they settle. Statutory regime Section 33ZB in Part 4A of the Supreme Court Act 1986 (Vic) (which is identical to the provision applicable under the Federal legislation) provides that group members who have not opted out of a class action are bound by the judgment delivered in the proceeding. It is acknowledged by the courts, most recently in the Timbercorp class action that this operates as a statutory bar to issues resolved a by a judgment of the Court being re-litigated in separate proceedings. However, s 33ZB does not deal with application of Anshun estoppel and abuse of process principles to individual issues not pleaded or resolved by judgment in a proceeding. Recent significant cases Three decisions in the last 18 months have considered the application of Anshun estoppel and abuse of process principles in class actions. Great Southern class action: First, in separate decisions in the Supreme Court of Victoria dated October and November 2014, Judd J and Croft J in litigation relating to the Great Southern Class Action said that group members are prevented by the doctrines of Anshun estoppel and abuse of process from raising individual defences in subsequent proceedings as a consequence of not opting out of the group proceeding. Their Honours held that the underlying purpose of Anshun estoppel and abuse of process align with the application of limitations on the ability of group members in class actions to re-litigate matters that could or should have been determined in the main class action proceeding. By not opting out, group members are presumed by the operation of the class action regime to assume the risk, the quid pro quo for which is the benefit of the claim or defense made on behalf of the group member by the lead plaintiff. Consequently, they affirmed that the appropriate protection of individual claims is achieved through the opt out process. Justice Croft further stressed that group members are protected by judicial oversight and approval of class action settlements. Ramsey Food Processing: While not a class action proceeding, in August 2015, the High Court in Tomlinson v Ramsey Food Processing Pty Ltd, examined Australian law on estoppel and abuse of process. The Court identified that a plaintiff in a class action may be a "privy in interest" to the group members for the purpose of the application of estoppel. In a joint judgment, French CJ, Bell, Gageler and Keane JJ said that in a "modern class action" the risk of the detriment from estoppel is safeguarded by the ability of group members to opt out, and by the Court's procedural oversight (including settlement approval). This is consistent with the conclusions of Judd J and Croft J in Great Southern. Timbercorp: Most recently, in another Supreme Court of Victoria case handed down in September 2015, Robson J in Timbercorp found that group members are not estopped of individual issues not pleaded. He found that while group members cannot re-litigate matters which were expressly decided or were issues determined in the course of the judgment on the cause of action, group members are free to raise in fresh proceedings those issues which could have been, but were not, litigated in the earlier proceeding. Implications The conflicting findings in relation to whether the ancillary rights of group members were extinguished by the main class action, and the application of the preclusionary principles of Anshun estoppel and abuse of process, creates uncertainty for participants in class actions. This is of particular concern to defendants who may be faced with the prospect of a multiplicity of proceedings dealing with the same subject matter. The scale, cost and complexity of class actions escalates these concerns. Ultimately, however, these cases, with similar circumstances, demonstrate the fluidity of the law in relation to group proceedings. The decisions in Great Southern and Timbercorp are single judge decisions and they have not, to date, been tested in a higher court. * Growth in Regulatory Action Spurs Class Actions in D&O Space -------------------------------------------------------------- Young Ha, writing for Insurance Journal, reports that the directors and officers (D&O) liability marketplace continues to find softening rates and intense competition especially in excess layers, according to industry executives. The industry is also seeing a continuing trend of broader coverages and more governmental activities from regulatory agencies, executives said. There have been a lot more carriers in the D&O space in the past five to 10 years, said Louis Lucullo, chief underwriting officer for the Americas Region at American International Group's Financial Lines, who spoke at the Professional Liability Underwriting Society (PLUS) D&O symposium in February. The majority of newcomers tend to write excess D&O, Lucullo said. There have also been important developments on the primary side, including some consolidations particularly ACE Ltd.'s acquisition of Chubb, with the combined company adopting the Chubb brand globally. "But overall, there are still a lot of carriers and a lot of capacity out there for the directors and officers market," Mr. Lucullo said. Coverage Expansions Mr. Lucullo said there's been a trend of expansion of coverages, mostly on the investigative side. He said there's much more activity in terms of the litigious environment. Federal class action security suits tend to be fairly stable year from year, but the overall majority of actions being brought today are being led by a growth in regulatory action. There also have been more governmental activities from regulatory bodies like the Securities and Exchange Commission pursuing actions through investigations against directors and officers. "From our perspective, that's certainly the growing area," he said. "It has caused the D&O policy to change over the years." Mr. Lucullo said that a few years ago, AIG introduced the concept of a preclaim inquiry to be covered. "That's at the moment that an investigator initially contacts an insured to mainly appear before them to answer questions or perhaps to produce some documents. That initiates the coverage much earlier on than historically. So there has been a trend to expanding the coverage through more investigative exposure." Mr. Lucullo also said how much the coverage should be broadened to address corporate entity exposure has been a hot topic in D&O insurance. There are investigative cost coverage policies meant just for the entity as a standalone basis. But in the past couple of years, there now are endorsements where investigative costs for the entity could be added to the D&O policy but usually under the requirement that there also be a securities claim that coexists with that regulatory investigation. Rate Decreases Simon Hodge, national practice leader for Professional Risk Practice at Wells Fargo Insurance, noted that most of its clients have seen improved terms and conditions with significant price cuts, with public D&O policies getting renewed with 5 percent to 10 percent rate decreases. In terms of the market capacity, "several new carriers have entered the D&O space and there is clearly more than sufficient supply to meet client demand," Mr. Hodge said. He also spoke of broader coverages, with more sublimit capacity availability for investigative costs in cases when directors are asked to investigate a possible wrongdoing. In terms of broader coverage, D&O insurers are becoming increasingly more responsive to providing coverage for entity regulatory investigations. Also commenting on rates, Kevin LaCroix, executive vice president at RT ProExec, a division of R-T Specialty LLC, noted that while the primary layers are mostly flat, he sees intense competition in excess layers, especially for higher excess and Side A layers. The result is rate decreases in the mid-single-digit percentage points and up to 10 percent for overall D&O programs. Mr. LaCroix also said he sees a market trend of coverage expansions, such as providing corporate entity coverage. Mr. LaCroix also shared his thoughts on recent industry consolidations and advised clients to pay close attention and consult with their brokers. "There's always been a certain amount of merger and acquisition activity in the insurance industry. In 2015, it really accelerated. It was true both for reinsurers and then for direct insurers," Mr. LaCroix said. The two most significant deals from the perspective of insurance buyers was XL Group plc's acquisition of Catlin Group Ltd. and Ace's purchase of Chubb, which was the biggest industry transaction in 2015. "These are significant players in the D&O insurance industry and the P&C industry as a whole," Mr. LaCroix said. "The combination of these companies means fewer of the larger players and more consolidation or concentration in some larger players." He advised that it would be important for the clients who are insured with those companies to be in contact with their brokers, because there could be process issues this year that haven't been true in the past. "It may affect their renewals. It may affect their ability to renew their coverage on the same terms and conditions or the same price," Mr. LaCroix said. "There could be changes in their insurance program just as a result of the changes among the carriers." Yates Memo The industry is also taking notice of a new regulatory development stemming from the "Yates Memo," which was issued last September from U.S. Department of Justice's Deputy Attorney General Sally Quillian Yates. In her memorandum, Yates aims to put a greater emphasis on holding individuals more accountable. Companies would be asked to turn in information about culpable individuals to receive cooperation credit for assisting in investigations. R. Damian Brew, managing director at Marsh USA Inc., said the biggest risk area that the marketplace is seeing today is in the area of government investigations -- from the SEC and the Department of Justice. "One area that's getting an awful lot of attention is the Yates Memo, issued by the Department of Justice, which really indicated for the first time that the department was going to focus on individual wrongdoing at the expense of corporate wrongdoing," Brew said. In fact, Mr. Brew noted, the Yates Memo went as far as to say that corporations weren't going to get cooperation credit unless they provided all relevant facts about potential officers that would be involved. "There are enormous insurance implications for that, as you can imagine, because now individuals may be seeking separate counsel," Mr. Brew said. "They may be in a position where they're adverse to their companies. There may be questions about advancement and indemnification. So this is a very important step and it's one that the industry and corporations and their officers are going to be watching very closely." Cyber Liability Another risk that many directors and officers now face is the cyber liability. Tony Galban, senior product manager of D&O at Chubb, said cyber has made its way into the boardroom as a management liability issue, which is not that unusual compared to other exposures in the past, like asbestos, pollution or environmental concerns. "Cyber is just a new exposure that has to be addressed at the board level. It's no longer reasonable for the board to ignore the risk of cyber," Mr. Galban said. "Everything we're hearing suggests that it's being attended to on a regular basis in boardrooms across the country as a line item agenda that the board has to deal with, whether by loss control, whether by insurance purchasing, but certainly not by ignoring it," he said. "You can't get away with that anymore." Mr. Galban said that there have been D&O claims associated with cyber. Typically, the allegations are that the management didn't manage the issue sufficiently. "More directly, you'll see cyber policies responding to direct cyber loss. But to say it's strictly a cyber product issue would be a misnomer," Mr. Galban said. "It affects other policies like the D&O, where we've had some claims, typically shareholder actions." * Little Guidance Available to Judges to Resolve MDL Fee Fights --------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that fee fights among plaintiffs attorneys in multidistrict litigation have forced more federal judges in recent cases to wade into the disputes -- with practically no case law to guide them. Within the last year, attorney fee fights in MDLs have erupted in personal injury and wrongful-death cases filed over Durom Cup hip implants, General Motors Co.'s ignition-switch defects and laparoscopic uterine surgical tools called power morcellators. There are few appellate decisions on the matter and, in at least two recent cases, the fights have ended with failed petitions before the U.S. Supreme Court. "There are huge issues about the governance of MDLs that no Supreme Court has addressed in any satisfying way," said William Rubenstein, a professor at Harvard Law School who has testified as an expert for those challenging MDL fees. "The fee aspects are one of a subset of questions of how they're governed that have yet to attract good appellate law. The district court judges are struggling with these issues." PLAINTIFFS' CONTRIBUTIONS DISPUTED At issue is whether individual plaintiffs lawyers must contribute to a common benefit fund that helps lead lawyers in an MDL pay for costs such as depositions and discovery. Because the cases are handled on contingency, the MDL judge usually requires a "holdback" of between 4 and 12 percent of fees and recoveries that plaintiffs and their lawyers get from settlements or judgments in order to create the common fund. But not all plaintiffs lawyers acquiesce. Some have challenged the assessments, insisting that lead lawyers in the MDL have done nothing to help them settle their cases. And those with cases in state court have claimed that MDL judges, who issue common-benefit fund orders in federal court, have no jurisdiction over their cases. The challenges, depending on their outcomes, could end up carving out limits to the common-benefit fund, a critical and long- standing mainstay that makes MDLs more affordable. The Supreme Court on Feb. 29 rejected a petition to delve into the debate, leaving MDL judges to continue to make their own calls -- a position most of them don't want to be in, Mr. Rubenstein said. In February, U.S. District Judge Kathryn Vratil of Kansas heard arguments in a simmering fee dispute in the MDL involving Ethicon Inc.'s power morcellators. The question is whether plaintiffs lawyers with recently settled cases against Ethicon Inc., a Johnson & Johnson unit, needed to pay into a common-benefit fund. A similar dispute erupted in an MDL against Zimmer Biomet Holdings Inc. over its Durom Cup hip implants. U.S. Magistrate Judge Steven Mannion in New Jersey is scheduled to hear arguments on March 17 over whether some plaintiffs lawyers should have been granted a reduction of their 4 percent assessment on ground that they didn't rely on lead counsel's work in settling their cases. Gibbs Henderson of Dallas-based Waters Kraus & Paul, a lead lawyer in the Durom Cup MDL, has opposed the assessment reductions. "We're really the only firm litigating these cases and moving them toward trial," he said. Last year, the firm filed a motion to force plaintiffs with state court cases against Zimmer to contribute to the fund, but Judge Mannion found that he didn't have jurisdiction. Attempts to get plaintiffs lawyers with state court cases to pay into common-benefit funds have been the most contentious. State court cases don't join an MDL because they often name local defendants, avoiding removal to a federal jurisdiction. Although lawyers in those cases usually must follow many of the same discovery and protective orders as the MDL, they often pave their own paths. BELLWETHER CASE FALLS APART To that end, attorney Lance Cooper, whose state court case in Georgia unveiled GM's ignition-switch defect in 2013, lashed out at lead counsel in the MDL after they dismissed the first bellwether case midtrial on Jan. 22 following revelations that the plaintiff might have committed perjury and fraud. Mr. Cooper, who acknowledged he was a newcomer to MDLs, accused lead counsel of shirking state court plaintiffs, among other things. But his attacks also were premised in large part on concerns about contributing to lead counsel's efforts. "At the end of the day, when I settle my cases, my client has to pay the co-leads for the hourly work that they billed for," said Cooper of The Cooper Firm in Marietta, Georgia. "In other words, for a case they filed that they shouldn't have filed, and lost that they shouldn't have lost, they're going to turn around and bill my client for that. That's just wrong." In his Feb. 10 order, U.S. District Judge Jesse Furman in New York called Mr. Cooper's claims meritless, noting that he had no jurisdiction to oversee state court plaintiffs anyway. ********* 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. Marion Alcestis A. Castillon, 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 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *