/raid1/www/Hosts/bankrupt/CAR_Public/160420.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 20, 2016, Vol. 18, No. 79
Headlines
ACCOUNTS RECEIVABLE: Faces "Pessoa" Fraud Suit in E.D.N.Y.
ADVANCED INSTRUCTIONAL: Faces Class Action Over Textbook Rentals
AEGIS SENIOR: Faces "Newirth" Suit in Calif. Over Fraud Scheme
AFFORDABLE HOTELS: "Evans" Suit Seeks Unpaid OT Pay Under FLSA
ALL AMERICAN: Violated FLSA, "Artidiello" Suit Claims
ALLSTATE INDEMNITY: Faces "Morrow" Suit in M.D. Ga.
ALTRIA: Obtains Big Ruling in "Light" Cigarette Class Action
ARETH PROPERTIES: Faces "Buitron" Labor Suit in S.D. Florida
ASHLEY'S FINE: Violated FLSA, "Rodriguez" Suit Claims
BANKERS LIFE: "Woerner" Files Suit Over Breach of Contract
BARCLAYS BANK: Standard Chartered Cleared From FX Antitrust Suit
BAXALTA INC: Bertisch and Davis Plaintiffs Dismiss Their Actions
BIOSCRIP INC: McCormack Shareholder Suit Dismissed
BIOSCRIP INC: June 13 Final Fairness Hearing in Securites Action
BOFI HOLDING: Houston Municipal Pensions System Files Suit
BOSTON SCIENTIFIC: Grand Jury Convened in Vaginal Mesh Probe
C & I ASSOCIATES: Court Rules on Employees' Summary Judgment Bid
CANADA: Windsor & Tecumseh Averts Contempt Motion in Bingo Suit
CANADA: Faces Class Action Over Ongoing Aerosol Aerial Discharges
CEC ENTERTAINMENT: June 3 Hearing on Bid to Dismiss Sinohui Claim
CEC ENTERTAINMENT: Motion to Dismiss Shareholder Suit Pending
CHECKPOINT SYSTEMS: Shareholder Motion Remains Pending
CHESAPEAKE ENERGY: Sued in Oklahoma Over Bid-Rigging Conspiracy
CHESAPEAKE ENERGY: Violated Antitrust Laws, "White" Suit Claims
CHICAGO, IL: Faces Class Action Over Water Main Upgrades
CLEANWELL LLC: Faces "Rosner" Class Suit in E.D. New York
COACH INC: Faces "Hinkey" Class Suit in California
COMMUNITY HEALTH: "McNutt" Suit Transferred to N.D. Ala.
DELOITTE & TOUCHE: Sitthideths' Bid for Exclusion Denied
DENTAL EQUITIES: Faces Econo-Med Suit in C.D. California
DEUTSCHE BANK: Settles London Silver Fixing Litigation
DIVERSICARE HEALTHCARE: Class Action in Early Stages
DRESSER-RAND: Faces "Burris" Suit Over Failure to Pay Overtime
DS HEALTHCARE: Rosen Law Firm Files Amended Class Action
ENZYMOTEC LTD: Filed Answer to Stockholders' Class Action
FAIRWAY GOLF: "Medina" Suit Seeks to Recover Retained Gratuities
FIDELITY: Must Face NHD Kickback Scheme Class Action
FLINT, MI: Out-of-Town Lawyers File Water Crisis Lawsuits
FLORIDA: Appeals Court Affirms DCF's Co-Payment Calculation
FUSIONE INC: Faces "Timberlake" Gender-Discrimination Suit
GENERAL MILLS: Faces "Shields" Class Suit in Minnesota
GREATER LITTLE: "Wright" Suit Seeks Damages Under FLSA
HCSB FINANCIAL: $2.4M Deal with Sub Debt Holders Has Final OK
HERTZ CORPORATION: Violated TCPA, "Tillman" Suit Claims
HORIZON HEALTH: Court Certifies Miramichi Colposcopy Class Action
HP INC: Oral Argument Not Yet Scheduled in Appeal
HP INC: Appeal in ERISA Litigation Still Pending
HR PARKING: Faces "Fernandez" Suit Over Failure to Pay Overtime
HUBBS TIRE: Violated FLSA, "Diliberto" Suit Claims
IGNITE RESTAURANT: Motions, Discovery Issues Pending in NY Case
ILLINOIS: Sued Over Failure to Pay Employees' Insurance
INTERCONTINENTAL HOTELS: Settlement in Phone Calls Suit Okayed
INTUIT INC: Faces "Rubin" Suit in Dist. of New Jersey
IT'S ABOUT TIME: Faces "Saul" Suit Over Failure to Pay OT Wages
ITC HOLDINGS: Faruqi & Faruqi Files Securities Class Action
JENCARE SKIN: Faces "Scott" Suit Over Failure to Pay Overtime
LATTICE SEMICONDUCTOR: Delaware Cases Settled, Calif. Cases Tossed
LICCIARDELLO'S SANITATION: O'Hara Suit Seeks to Recover OT Wages
MASSACHUSETTS: Judge Dismisses Class Action Against MBTA
MERCEDES-BENZ: Diesel Car Owners File Emissions Class Action
MICHAUD COOLEY: Violated FLSA, "Brodsho" Suit Claims
MONDELEZ INTERNATIONAL: Judge Tosses Consumer Fraud Class Action
NATIONWIDE CREDIT: Faces "Gutman" Suit in E.D.N.Y.
NEUTROGENA CORP: Judge Tosses Deceptive Marketing Class Action
NEW CENTURY: Violated FLSA, "Covarrubia" Suit Claims
NEW YORK: Subclasses Decertified in Suit v. Mental Health Office
NISSAN: Pathfinder Owners Sue Over Transmission Issues
OLD NATIONAL: Settles Overdraft Fee Class Action for $4.75MM
ON DECK: New York Court Consolidates 2 Class Suits
ORLEANS SHORING: Fails to Pay Workers Overtime, "Nunez" Suit Says
PAIN THERAPEUTICS: March 2017 Trial Date Set in KB Action
PM REALTY: 9th Cir. Reverses District Court's Ruling in "Branch"
RENEGADE TORQUE: Violated FLSA, "Bushart" Suit Claims
RUBY TUESDAY: Court Narrows Securities Fraud Claims in "Kyrstek"
RUCKUS WIRELESS: "Shirley" Suit Seeks to Enjoin Brocade Merger
SCHILLER LODGES: Faces "Rebolledo" Suit Over Failure to Pay OT
SECURITY CREDIT: Faces "Roberts" Suit in E.D.N.Y.
SEEKONK: BOA Faces 320 Fall River Suit in Mass.
SHILOH INDUSTRIES: Amended Complaint Filed in Securities Action
SODEXO INC: Faces "Riestra" Suit Over Labor Code Violation
SONY CORP: Settles Employees' Data Breach Class Action
SOUTH CAROLINA: "Rodriguez" Suit v. CHE Survives Bid to Dismiss
STERLING INFOSYSTEMS: "Nunez" Suit Seeks Damages Under FCRA
TERRAFORM POWER: June 3 Lead Plaintiff Bid Deadline Set
THIRD AVENUE: "Matthews" Class Suit Transferred to S.D. New York
THIRD AVENUE: Violated Securities Act, "Bhat" Suit Claims
THIRD AVENUE: Violated Securities Act, "Tran" Suit Claims
THIRD AVENUE: Faces Inter-Marketing Securities Class Action
TOBIRA THERAPEUTICS: Class Action Settlement in the Works
TOSHIBA AMERICA: Faces "Martinez" Suit Over False Advertising
TRAVELERS INSURANCE: Data Breach Class Action Ruling Affirmed
TREASURY WINE: Investor Can't Use US Procedure for Discovery
TRI-STATE WATER: "Bauer" Suit Moved to S.D. Illinois
TRIBUNE CO: 2nd Cir. Affirms Dismissal of Unsec. Creditors Claims
TRIFECTA PHARMACEUTICALS: Faces ARcare Suit in S. D. Fla.
TRISTAR PRODUCTS: "Celmins" Suit Moved to District of New Jersey
UBER TECHNOLOGIES: "Zawada" Suit Seeks Damages Under FLSA
UNITED RECOVERY: Faces "Ballaj" Suit in Dist. New Jersey
UNITED SERVICES: Fewer Than 5% of Victims Filed Claims
UNITED SERVICES: Judge to Impose Nonmonetary Sanctions on Lawyers
UNITED SERVICES: Attorneys' Conduct Abuse of Judicial System
WENDY'S COMPANY: Faces "Torres" Class Action in Florida
WEST BANCORPORATION: Iowa Supreme Court Rules in "Legg" Appeal
ZIMMER DENTAL: Seeks Approval of Junk Fax Class Action Settlement
* House Democrats Call for Limits on Use of Mandatory Arbitration
* Most of 2015 Securities Class Action Filings Disclosure-Related
* German Law Allows Data Breach Class Actions Against Businesses
*********
ACCOUNTS RECEIVABLE: Faces "Pessoa" Fraud Suit in E.D.N.Y.
----------------------------------------------------------
A lawsuit has been filed against Accounts Receivable Technologies
Inc. The case is captioned Norma Pessoa, on behalf of herself
individually and all others similarly situated, the Plaintiff, v.
Accounts Receivable Technologies Inc., the Defendant, Case No.
1:16-cv-01820 (E.D.N.Y., April 14, 2016).
Accounts Receivable Technologies is a New Jersey collection
agency.
The Plaintiff appears pro se.
ADVANCED INSTRUCTIONAL: Faces Class Action Over Textbook Rentals
----------------------------------------------------------------
Jonathan Bilyk, writing for CookCountyRecord.com, reports that an
Illinois college student has delivered a potential class action
lawsuit to a Raleigh, N.C.-based supplier of online instructional
tools, alleging the company wrongly charges sales tax on leased
textbooks when Illinois law doesn't require it to do so.
On April 11, Margaret Basch, through her attorneys Myles McGuire,
Evan M. Meyers and Paul T. Geske, of the Chicago firm of McGuire
Law P.C., filed suit in Cook County Circuit Court against Advanced
Instructional Systems Inc., which does business online under the
brand name Webassign.
Begun in the late 1990s as a project of North Carolina State
University, Webassign launched commercially in 2003, according to
its website, and has since expanded to partner with faculty and
institutions across the U.S. to help connect teachers and students
with needed instructional materials, including textbook rentals
for a variety of disciplines and subjects.
According to Ms. Basch's lawsuit, she rented a digital copy of a
physics textbook from Webassign in February "in connection with a
college level Physics 201 class." The complaint does not specify
which college or university Basch attended.
While Webassign listed a price of $82 for the textbook rental, Ms.
Basch was charged $90.20, as Webassign allegedly charged her $8.20
more, purportedly to cover Illinois state sales tax charged on the
transaction. According to the complaint, Webassign told her it
was "required to collect sales tax based on your address."
However, according to the complaint, Webassign should not have
charged the sales tax, because Illinois law purportedly classifies
textbook rentals as "a lease of personal property, which is not a
transaction subject to Illinois sales tax."
The complaint said Ms. Basch believes she is just one of
potentially "hundreds, if not thousands" of other Illinois college
students who were improperly assessed sales tax on textbook
rentals through Webassign.
The potential class of additional plaintiffs sought in the
complaint would include anyone in Illinois who had rented a
textbook through Webassign since 2013.
The complaint does not specify what Ms. Basch or her attorneys
believe Webassign has done with the money, including whether the
collected sales taxes were sent on to Illinois state government.
Ms. Basch's complaint alleged Webassign's practices violated
Illinois consumer fraud by allegedly falsely stating students and
others renting the textbooks were required to pay sales tax, when
she believes they should not have. According to the complaint,
Basch would ask the court to specifically determine whether
Illinois law requires sales tax to be charged on textbook rentals,
and whether asserting sales tax is due, when it is not, violates
Illinois consumer fraud law.
The complaint asked the court to award unspecified damages "in the
amount by which defendant (Webassign) was unjustly enriched," as
well as ordering Webassign to pay back the alleged sales tax
overcharges.
AEGIS SENIOR: Faces "Newirth" Suit in Calif. Over Fraud Scheme
--------------------------------------------------------------
June Newirth, by and through her Guardian ad Litem, Frederick J.
Newirth, on her own behalf and on behalf of others similarly
situated, the Plaintiffs, v. Aegis Senior Communities, LLC, dba
Aegis Living; and Does 1-100, the Defendants, Case No. RG1681ll67
(Cal Super. Ct., April 12, 2016), seeks an injunction that
requires that Defendant to immediately cease alleged violations of
the Consumers Legal Remedies Act (CLRA) and Unfair and Fraudulent
Business Practices Act (UFBPA), and to enjoin it from continuing
to engage in any such acts or practices in the future.
Defendant allegedly engaged in a scheme to defraud seniors,
persons with disabilities and their family members at its assisted
living facilities in California by falsely representing that each
resident will be provided the care services (through facility
staff) that the resident needs as determined by the resident
assessment conducted by facility personnel. This misrepresentation
is made to all Aegis residents in standard resident admission
contracts.
Aegis owns and actively manages all of the real estate and
buildings, and holds the seven licenses for approximately 15
assisted living facilities in California under the Aegis name.
The Plaintiff is represented by:
Christopher J. Healey, Esq.
DENTONS US LLP
730 Fifth Street
San Diego, CA 92101-3372
Telephone: (619) 235 3491
Facsimile: (619) 645 5328
- and -
W. Timothy Needham, Esq.
JANSSEN MALLOY LLP
600 West Broadway, Suite 2600
92101-3372 Eureka, CA 95501
Telephone: (707) 445-2071
Facsimile: (707) 445 8305
- and -
Kathryn A. Stebner, Esq.
George Kawamoto, Esq.
STEBNER AND ASSOCIATES
870 Market Street, Suite 1212
San Francisco, CA 94102
Telephone: (415) 362 9800
Facsimile: (415) 362 9801
- and -
Guy B. Wallace, Esq.
Sarah Colby, Esq.
SCHNEIDER WALLACE COTTRELL
KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421 7100
Facsimile: (415) 421 7105
- and -
Michael D. Thamer, Esq.
LAW OFFICES OF MICHAEL D. THAMER
Old Callahan School House
12444 South Highway 3
Post Office Box 1568
Callahan, CA 96014-1568
Telephone: (530) 467 5307
Facsimile: (530) 467 5437
- and -
Robert S. Ams, Esq.
Julie C. Erickson, Esq.
THE ARNS LAW FIRM
515 Folsom Street, 3rd Floor
San Francisco, CA 941 05
Telephone: (415) 495 7800
Facsimile: (415) 495 7888
AFFORDABLE HOTELS: "Evans" Suit Seeks Unpaid OT Pay Under FLSA
--------------------------------------------------------------
W. Keith Evans, on behalf of himself and others similarly
situated, the Plaintiff, v. Affordable Hotels, LLC, A2C
Budget Hotel, LLC, Stablegold Hospitality, LLC, and Ali Jamaal.
the Defendants, Case No. 1:16-cv-01195-CAP (N.D. Ga., April 13,
2016), seeks to recover unpaid regular time compensation, overtime
compensation, liquidated damages, attorneys' fees and costs,
pursuant to the Fair Labor Standards Act of 1938 (FLSA).
Stablegold owns and operates at least six different hotels
(including Affordable Hotels and A2C) in the Atlanta area under
the Stablegold brand.
The Plaintiff is represented by:
Douglas R. Kertscher, Esq.
HILL, KERTSCHER & WHARTON, LLP
3350 Riverwood Parkway, Suite 800
Atlanta, GA 30339
Telephone: (770) 953 0995
Facsimile: (770) 953 1358
E-mail: drk@hkw-law.com
ALL AMERICAN: Violated FLSA, "Artidiello" Suit Claims
-----------------------------------------------------
Jonathan Artidiello, and on behalf of all others similarly
situated, Plaintiff, v. All American Security Services, Inc., a
Florida Corporation, and Sergio Salas, an individual, the
Defendant, Case No. 1:16-cv-21330-MGC (S.D. Fla., April 13, 2016),
seeks to recover overtime compensation, liquidated damages, and
costs and reasonable attorneys' fees, pursuant to the Fair Labor
Standards Act (FLSA).
All American is a Florida corporation that provides security
services in South Florida.
The Plaintiff is represented by:
John B. Rosenquest IV
ROSENQUEST LAW FIRM P.A.
3225 Franklin Avenue, Suite C-101
Coconut Grove, FL 33133
Telephone: (305) 607 5115
Facsimile: (305) 402 8183
E-mail: jrosenquest@rosenquestlawfirm.com
ALLSTATE INDEMNITY: Faces "Morrow" Suit in M.D. Ga.
---------------------------------------------------
A lawsuit has been filed against Allstate Indemnity Company. The
case is captioned Barbara Morrow and Benny Morrow, individually
and on behalf of all those similarly situated, the Plaintiff, v.
Allstate Indemnity Company, Allstate Insurance Company, Allstate
Fire and Casualty Insurance Company, and Allstate Property and
Casualty Insurance Company, the Defendants, Case No. #: 5:16-cv-
00137-CAR (M.D. Ga., April 14, 2016).
Allstate provides insurance services in the United States.
The Plaintiffs are represented by:
Adam P Princenthal, Esq.
260 PEACHTREE ST NW STE 502
Atlanta, GA 30303
Telephone: (404) 524 4000
E-mail: aprincenthal@akpfirm.com
- and -
C Cooper Knowles, Esq.
LAW OFFICE OF C. COOPER KNOWLES, LLC
3405 Piedmont Road, N.E., Suite 500
ATLANTA, GA 30305
Telephone: (404) 431 5900
E-mail: cknowles@cckfirm.com
- and -
Clinton W Sitton, Esq.
3405 Piedmont Road, N.E., Suite 500
Atlanta, GA 30305
Telephone: (404) 351 5900
E-mail: clint@kopelmansitton.com
- and -
James C. Bradley, Esq.
PO Box 1007
Mt Pleasant, SC 29465
Telephone: (843) 727 6500
E-mail: jbradley@rpwb.com
- and -
Michael J Brickman, Esq.
PO Box 879
Charleston, GA 29402
Telephone: (843) 727 6520
E-mail: mbrickman@rpwb.com
- and -
Nina Fields Britt, Esq.
Po Box 1007
Mt Pleasant, SC 29465
Telephone: (843) 727 6500
E-mail: nfields@rpwb.com
- and -
Richard Kopelman, Esq.
3405 Piedmont Road, N.E., Suite 500
Atlanta, GA 30305
Telephone: (404) 351 5900
E-mail: richard@kopelmansitton.com
ALTRIA: Obtains Big Ruling in "Light" Cigarette Class Action
------------------------------------------------------------
Rich Duprey, writing for The Motley Fool, reports that Altria no
longer markets its cigarettes as "lights," and the FDA has
regulated when and how such terms can be used.
What happened?
In a class action lawsuit against Altria's Philip Morris USA
division, a Missouri jury sided with the tobacco company's defense
that it didn't violate state laws over how it marketed its
Marlboro Lights brand of cigarettes. The plaintiffs sought
damages of $1.8 billion from the cigarette maker.
Does it matter?
The plaintiffs alleged Philip Morris had deceived smokers into
falsely believing light cigarettes were safer than regular
cigarettes. The lead plaintiff, Deborah Larsen, said she smoked
about a pack and a half of Marlboro Lights a day between 1979 and
2002, when she quit. Although the packaging promised lower tar
and nicotine, they were purportedly made from the same tobacco as
regular cigarettes, and her attorney argued light cigarette
smokers were actually more at risk because they might inhale
longer and deeper.
The case was first filed in 2000, and in 2011 a mistrial was
declared when a jury deadlocked 8-4 in favor of the plaintiffs.
Nine jurors were needed to rule for the plaintiff. With the
retrial, the case lasted about a month, but the jury needed just
one hour to find in favor of Philip Morris. In 2009, the FDA
began regulating cigarettes and prohibited the use of words like
"lights" unless the tobacco company got prior approval. The
Altria unit stopped marketing the cigarettes as "lights" in 2003.
It's an important decision because it marks yet another big ruling
in Philip Morris's favor, which last year had the Illinois Supreme
Court reject a $10 billion judgment against the tobacco company.
In March, it asked the U.S. Supreme Court to not hear an appeal.
In February, a jury rejected an attempt by smokers to have Philip
Morris pay for annual cancer screenings.
Also this month, jurors rejected claims against Reynolds-American
and its R.J. Reynolds division for the death by cancer of a
Florida plaintiff. In that case, the ruling hinged on whether it
could be proved it was Reynolds' Winston brand of cigarettes that
caused the cancer, because for the first 15 years the plaintiff
smoked, he used a different brand. They heard testimony that had
he quit smoking at that point and never touched a Reynolds
product, he still could have developed cancer.
There have been thousands of lawsuits filed in Florida as a result
of the original Engle v. Liggett class action case in 1994 that
found tobacco companies knowingly produced a harmful product.
While the case was decertified on appeal, allowing plaintiffs to
pursue their cases individually, they're still allowed to rely
upon the verdict in the original case.
ARETH PROPERTIES: Faces "Buitron" Labor Suit in S.D. Florida
------------------------------------------------------------
A lawsuit has been filed against Areth Properties, LLC. The case
is captioned Cesar T. Buitron, in behalf of all other persons
similarly situated, the Plaintiff, v. Areth Properties, LLC,
jointly and severally, and Mary Brattis, jointly and severally,
the Defendants, Case No. 0:15-cv-62634-PAS (S.D. Fla., April 14,
2016).
Areth Properties is a corporation based in New York.
The Plaintiff appears pro se.
ASHLEY'S FINE: Violated FLSA, "Rodriguez" Suit Claims
-----------------------------------------------------
Fabiola Rodriguez, Luis Uraga Garcia, and Pedro Ortiz Reyes, on
behalf of themselves and FLSA Collective Plaintiffs, the
Plaintiffs, v. Ashley's Fine Food, Inc. and James [Last Name
Unknown], the Defendants, Case No. 1:16-cv-02776 (S.D.N.Y., April
13, 2016), seeks to recover unpaid overtime due to time-shaving,
compensation due to improper deductions for uniforms, liquidated
damages and attorneys' fees and costs, unpaid spread of hours
premium, and statutory penalties, under the Fair Labor Standards
Act (FLSA) and New York labor Law (NYLL).
Ashley's Fine Foods operates a restaurant located at 500 Lexington
Avenue, New York, New York.
The Plaintiff is represented by:
C.K. Xee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Telephone: (212) 465 1188
Facsimile: (212) 465 1181
BANKERS LIFE: "Woerner" Files Suit Over Breach of Contract
----------------------------------------------------------
Joseph A. Woerner, individually and on behalf of all others
similarly situated, the Plaintiff, v. Bankers Life And Casualty
Company, the Defendants, Case No. 2016-CH-05202 (Ill. Cook County
Ct., Chancery Div., April 13, 2016), seeks to recover all
appropriate remedies, including without limitation, injunctive
relief and monetary damages as a result of Defendant's breach of
contract in violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act (CFDBPA).
Bankers Life allegedly charges new insurance agents hundreds of
dollars in non-refundable fees upfront, including licensing fees,
list fees, and an agent "hold back" account of approximately $300,
which is supposed to cover legitimate commission chargebacks.
Bankers Life is a Delaware corporation headquartered at Chicago,
Illinois. The Company has marketed products to the elderly and
those in or nearing retirement, offering Medicare supplement
insurance, life insurance, annuities, and long-term care
insurance, among other products. Bankers Life is a wholly-owned
subsidiary of Conseco Life Insurance Company of Texas.
The Plaintiff is represented by:
Daniel Lynch, Esq.
James L. Thompson, Esq.
LYNCH THOMPSON LLP
150 S. Wacker Drive, Suite 2600
Chicago, IL 60606
Telephone: (312) 346 1600
Facsimile (312) 896 5883
Cook County No. 60040
E-mail: dlynch@lynchthompson.com
jthompson@lynchthompson.com
- and -
Catherine E. Anderson, Esq.
E-mail: canderson@gslawny.com
GISKAN SOLOTAROFF &
ANDERSON LLP
11 Broadway, Suite 2150
New York, NY 10004
Telephone: (212) 847 8315
Facsimile: (646) 520 3236
BARCLAYS BANK: Standard Chartered Cleared From FX Antitrust Suit
----------------------------------------------------------------
In the case captioned In re FOREIGN EXCHANGE BENCHMARK RATES
ANTITRUST LITIGATION, No. 13 Civ. 7789 (LGS) (S.D.N.Y.), Judge
Lorna G. Schofield denied the motions to dismiss filed by The Bank
of Tokyo-Mitsubishi UFJ, Ltd. (BTMU) and Societe Generale, but
granted the motion to dismiss of Standard Chartered PLC for lack
of personal jurisdiction.
The case involves claims by a putative class based on an alleged
conspiracy among banks to fix prices in the foreign exchange or
foreign currency market in violation of the Sherman Antitrust Act
and the Commodity Exchange Act (CEA). On July 2015, the
plaintiffs served and filed a Second Consolidated Amended Class
Action Complaint, adding defendants BTMU, Societe Generale,
Standard Chartered PLC, and RBC Capital Markets LLC.
BTMU, Societe Generale, and Standard Chartered moved to dismiss
for lack of personal jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(2). The plaintiffs asserted three
alternative grounds for personal jurisdiction over each of these
defendants (1) consent, (2) general jurisdiction and (3) specific
jurisdiction.
Judge Schofield found that the moving defendants' consent to
jurisdiction is limited to claims and parties more limited than
those asserted in the case, and therefore does not satisfy the due
process requirements for the exercise of personal jurisdiction.
Judge Schofield also found that the plaintiffs do not make a prima
facie showing to support general jurisdiction over the three
defendants because none of these defendants is incorporated or
maintains its principal place of business or "essentially at home"
in the United States.
Judge Schofield, however, concluded that the plaintiffs have made
a prima facie showing of specific jurisdiction over BTMU and
Societe Generale because allegations in the second amended
complaint, together with evidence of the extent of these two
defendants' foreign exchange operations in the United States, give
rise to the reasonable inference that they participated in the
alleged conspiracy in the United States or participated elsewhere
with the aim to cause harm in the United States.
As opposed to BTMU and Societe Generale, the judge found that the
plaintiffs have not made a prima facie showing of specific
jurisdiction over Standard Chartered PLC, which does not engage in
FX activity in the United States or even operate or maintain
offices here.
A full-text copy of Judge Schofield's March 31, 2016 opinion and
order is available at http://is.gd/RhDOAwfrom Leagle.com.
Haverhill Retirement System, Plaintiff, represented by Christopher
M. Burke -- cburke@scott-scott.com -- Scott Scott, LLP, pro hac
vice, Donald A Broggi -- dbroggi@scott-scott.com -- Scott Scott,
L.L.P., Joseph Peter Guglielmo -- jgugliemo@scott-scott.com --
Scott Scott, L.L.P., Kristen M. Anderson -- kanderson@scott-
scott.com -- Scott Scott, LLP, pro hac vice, Noah Smith-Drelich --
nsmithdrelich@koreintillery.com -- Korein Tillery, LLC, pro hac
vice, Robert E Litan -- rlitan@koreintillery.com -- Korein Tillery
LLC, Walter W. Noss -- wnoss@scott-scott.com -- ScottScott LLP,
pro hac vice,William P. Butterfield -- wbutterfield@hausfeld.com
-- Hausfeld LLP, Aaron M. Zigler -- azigler@koreintillery.com --
Korein Tillery- St Louis, Alexander Dewitt Singh Kullar, Steyer
Lowenthal Boodrookas Alvarez & Smith LLP, Allan Steyer --
asteyer@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez &
Smith LLP, C. Moze Cowper, Cowper Law, Christopher L. Lebsock --
clebsock@hausfeld.com -- Hausfeld LLP,Daniel Jay Mogin, The Mogin
Law Firm P.C., pro hac vice, George A. Zelcs --
gzelcs@koreintillery.com -- Korein Tillery, LLC, Gregory Bradley
Linkh, Hilary Kathleen Scherrer, Cohen, Milstein, Hausfeld & Toll,
PLLC, Jayne A. Peeters -- jpeeters@steyerlaw.com -- Steyer
Lowenthal Boodrookas Alvarez & Smith LLP, Jennifer Janine Scott --
jscott@scott-scott.com -- ScottScott, Attorneys At Law, LLP, Lee
Albert -- lalbert@glancylaw.com -- Glancy Binkow & Goldberg LLP,
Michael D. Hausfeld -- mhausfeld@hausfeld.com -- Hausfeld, LLP,
pro hac vice, Randall P. Ewing, Jr. -- rewing@koreintillery.com --
Korein Tillery, LLC, Reena Gambhir -- rgambhir@hausfeld.com --
Hausfeld, LLP, pro hac vice, Renae Diane Steiner --
rsteiner@heinsmills.com -- Heins Mills & Olson, P.L.C., Richard M
Elias -- relias@egslitigation.com -- Elias Gutzler Spicer LLC, pro
hac vice, Robert L. King -- rking@koreintillery.com -- Korein
Tillery LLC, Stephanie Ann Hacket, ScottScott, Attorneys At Law,
LLP, Steven M Berezney -- sberezney@koreintillery.com -- Korein
Tillery, LLC, pro hac vice, Sylvia Sokol -- ssokol@scott-scott.com
-- Scott Scott, L.L.P., Thomas Kay Boardman -- tboardman@scott-
scott.com -- Scott Scott, L.L.P. & William Curtis Fredericks --
wfredericks@scott-scott.com -- Scott Scott, L.L.P..
Value Recovery Fund LLC, Plaintiff, represented by Andrew J
Entwistle, Entwistle & Cappucci LLP, Robert N Cappucci, Entwistle
& Cappucci LLP,Thomas Kay Boardman, Scott Scott, L.L.P., Vincent
Roger Cappucci, Entwistle & Cappucci LLP & Christopher M. Burke,
Scott Scott, LLP.
Augustus International Master Fund, L.P., Plaintiff, represented
by Andrew J Entwistle, Entwistle & Cappucci LLP, Robert N
Cappucci, Entwistle & Cappucci LLP & Vincent Roger Cappucci,
Entwistle & Cappucci LLP.
State-Boston Retirement System, Plaintiff, represented by Thomas
Kay Boardman, Scott Scott, L.L.P. & Christopher M. Burke, Scott
Scott, LLP.
The City of Philadelphia, Board of Pensions and Retirement,
Plaintiff, represented by Angela L. Baglanzis, Obermayer Rebmann
Maxwell & Hippel LLP, John Elliott Sindoni, Boni & Zack LLC, pro
hac vice, Joshua D. Snyder, BONI & ZACK LLC, Michael J. Boni, Boni
& Zack LLC, pro hac vice, Rigel Caitlin Farr, Obermayer Rebmann
Maxwell & Hippel LLP, pro hac vice,Thomas Kay Boardman, Scott
Scott, L.L.P., William Leonard, Obermayer Rebmann Maxwell & Hippel
LLP & Christopher M. Burke, Scott Scott, LLP.
Oklahoma Firefighters Pension and Retirement System, Plaintiff,
represented by Alexander Dewitt Singh Kullar, Steyer Lowenthal
Boodrookas Alvarez & Smith LLP, Allan Steyer, Steyer Lowenthal
Boodrookas Alvarez & Smith LLP,Gregory Bradley Linkh, Jayne A.
Peeters, Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Sylvia
Sokol, Scott Scott, L.L.P., Thomas Kay Boardman, Scott Scott,
L.L.P. & Christopher M. Burke, Scott Scott, LLP.
Tiberius OC Fund, Ltd., Plaintiff, represented by Thomas Kay
Boardman, Scott Scott, L.L.P. & Christopher M. Burke, Scott Scott,
LLP.
Aureus Currency Fund, L.P., Plaintiff, represented by Solomon B.
Cera, Gold Bennett Cera & Sidener, LLP, pro hac vice, Michael
Benjamin Eisenkraft, Cohen Milstein Sellers & Toll P.L.L.C.,
Thomas Kay Boardman, Scott Scott, L.L.P. & Christopher M. Burke,
Scott Scott, LLP.
Employees' Retirement System of Puerto Rico Electric Power
Authority, Plaintiff, represented by Fei-Lu Qian, Wolf Popper LLP,
Marian Rosner, Wolf Popper LLP, Patricia I. Avery, Wolf Popper
LLP, Thomas Kay Boardman, Scott Scott, L.L.P. & Christopher M.
Burke, Scott Scott, LLP.
Syena Global Emerging Markets Fund, LP, Plaintiff, represented by
Linda P. Nussbaum, Nussbaum Law Group, P.C., Peter Anthony Barile,
III, Grant & Eisenhofer P.A., Robert Gerard Eisler, Grant &
Eisenhofer, PA, Thomas Kay Boardman, Scott Scott, L.L.P. &
Christopher M. Burke, Scott Scott, LLP.
J. Paul Antonello, Marc G. Frederighi, Thomas Gramatis, Doug
Harvey, Izee Trading Company, John Kerstein, Michael Melissinos,
Mark Miller, Robert Miller, Richard Preschern dba Preschern
Trading, Peter Rives, Michael J. Smith, Jeffrey Sterk, Kimberly
Sterk, Systrax Corporation, Plaintiffs, represented by Christopher
M. Burke, Scott Scott, L.L.P..
United Food and Commercial Workers Union and Participating Food
Industry Employers Tri-state Pension Fund, Consolidated Plaintiff,
represented by Geoffrey Milbank Horn, Lowey Dannenberg Cohen &
Hart, P.C., Gerald Lawrence, Lowey Dannenberg Cohen & Hart, PC,
Peter Dexter St. Phillip, Jr., Lowey Dannenberg Cohen & Hart,
P.C., Raymond Peter Girnys, Lowey Dannenberg Cohen & Hart, P.C.,
Vincent Briganti, Lowey Dannenberg Cohen & Hart, P.C., Barbara J.
Hart, Lowey Dannenberg Cohen & Hart, P.C., Thomas Kay Boardman,
Scott Scott, L.L.P. & Christopher M. Burke, Scott Scott, LLP.
Neil Taylor, Consolidated Plaintiff, represented by Anthony F.
Fata, Cafferty Faucher LLP, pro hac vice, Bryan Lee Clobes,
Cafferty Faucher LLP, pro hac vice, David E Kovel, Kirby McInerney
LLP, James Christopher Bradley, Richardson, Patrick, Westbrook &
Brickman, LLC, pro hac vice, Jennifer Winter Sprengel, Miller,
Faucher and Cafferty, L.L.P., Karen L. Morris, Morris & Morris,
LLC, Lauren Wagner Pederson, Kirby McInerney LLP, Patrick F
Morris, Morris and Morris LLC Counselors at Law, Patrick Francis
Morris, Morris and Morris LLC Counselors at Law, pro hac vice,
Richard Michael Lindsey, Morris and Morris LLC Counselors At Law,
pro hac vice & Thomas W. Elrod, Kirby McInerney, LLP.
Steve Leaven, John Burnside, Consolidated Plaintiffs, represented
by Anthony F. Fata, Cafferty Faucher LLP, pro hac vice, Bryan Lee
Clobes, Cafferty Faucher LLP, pro hac vice, David E Kovel, Kirby
McInerney LLP, Jennifer Winter Sprengel, Miller, Faucher and
Cafferty, L.L.P., Karen L. Morris, Morris & Morris, LLC, Lauren
Wagner Pederson, Kirby McInerney LLP, Patrick F Morris, Morris and
Morris LLC Counselors at Law, Patrick Francis Morris, Morris and
Morris LLC Counselors at Law, pro hac vice, Richard Michael
Lindsey, Morris and Morris LLC Counselors At Law, pro hac vice &
Thomas W. Elrod, Kirby McInerney, LLP.
Jeffrey Sterk, Kimberly Sterk, Michael Melissinos, Consolidated
Plaintiff, represented by Linda P. Nussbaum, Nussbaum Law Group,
P.C..
Nasser Bakizada, Consolidated Plaintiff, represented by Daniel H.
Silverman, Cohen Milstein Sellers & Toll, pro hac vice, George
Farah, Cohen Milstein Sellers & Toll PLLC, J. Douglas Richards,
Pomerantz Haudek Block Grossman & Gross, Manuel Juan Dominguez,
Cohen Milstein Sellers & Toll PLLC &Michael Benjamin Eisenkraft,
Cohen Milstein Sellers & Toll P.L.L.C..
Robert L. Teel, Consolidated Plaintiff, represented by Leslie Scot
Wybiral, Louis F. Burke PC & Louis Fox Burke, Louis F. Burke PC.
Robert Charles Class A, L.P., Consolidated Plaintiff, represented
by James Christopher Bradley, Richardson, Patrick, Westbrook &
Brickman, LLC, pro hac vice, Leslie Scot Wybiral, Louis F. Burke
PC & Louis Fox Burke, Louis F. Burke PC.
Fresno County Employees Retirement Association, Movant,
represented by Todd Seaver, Berman,DeValerio, Jessica Moy, Berman
Devalerio, Joseph J. Tabacco, Jr., Berman, DeValerio, Pease,
Tabacco, Burt & Pucillo, Sarah Khorasanee McGrath, Berman
Devalerio, Thomas Kay Boardman, Scott Scott, L.L.P. & Christopher
M. Burke, Scott Scott, LLP.
Barclays Bank PLC, Defendant, represented by David Harold Braff,
Sullivan and Cromwell, LLP, Jeffrey T. Scott, Sullivan and
Cromwell, LLP, Kathleen Suzanne McArthur, Sullivan & Cromwell,
LLP, Matthew Alexander Schwartz, Sullivan & Cromwell, LLP, Matthew
Francis Sullivan, Sullivan & Cromwell, LLP & Yvonne Susan Quinn,
Sullivan & Cromwell, LLP.
Citigroup, Inc., Citigroup, N.A., Defendants, represented by Alan
M. Wiseman, Covington & Burling, L.L.P., pro hac vice, Andrew D.
Lazerow, Covington & Burling, L.L.P., pro hac vice & Andrew Arthur
Ruffino, Covington & Burling LLP.
Credit Suisse Group AG, Credit Suisse Securities (USA) LLC,
Defendants, represented by David George Januszewski, Cahill Gordon
& Reindel LLP, Elai E. Katz, Cahill Gordon & Reindel LLP, Herbert
Scott Washer, Cahill Gordon & Reindel LLP, Jason Michael Hall,
Cahill Gordon & Reindel LLP & Sheila Chithran Ramesh, Cahill
Gordon & Reindel LLP.
Deutsche Bank AG, Defendant, represented by Joseph Serino, JR.,
Kirkland & Ellis LLP, David George Januszewski, Cahill Gordon &
Reindel LLP, Eric Foster Leon, Kirkland & Ellis LLP, George
Patrick Montgomery, Kirkland & Ellis LLP, pro hac vice & Robert S.
Khuzami, Kirkland & Ellis LLP.
JPMorgan Chase & Co., JPMorgan Chase Bank National Association,
Defendants, represented by Peter Edward Greene, Skadden, Arps,
Slate, Meagher & Flom Llp, Boris Bershteyn, Skadden, Arps, Slate,
Meagher & Flom LLP, Patrick Joseph Fitzgerald, Skadden, Arps,
Slate, Meagher & Flom, LLP & Peter S. Julian, Skadden, Arps,
Slate, Meagher & Flom LLP.
Royal Bank of Scotland Group, PLC, Defendant, represented by
Arthur J. Burke, Davis Polk & Wardwell, Greg Donald Andres, Davis
Polk & Wardwell L.L.P., Joel Murray Cohen, Davis Polk & Wardwell
L.L.P., Jennifer Kan, Davis Polk & Wardwell, Lewis Charles
Shioleno, Davis Polk & Wardwell & Melissa Carrie King, Davis Polk
& Wardwell LLP.
UBS AG, UBS Securities LLC, Defendants, represented by David
Jarrett Arp, Gibson, Dunn & Crutcher, LLP, Peter Sullivan, Gibson,
Dunn & Crutcher, LLP, Joel Steven Sanders, Gibson, Dunn &
Crutcher, LLP, Joshua H. Soven, Gibson, Dunn & Crutcher LLP, pro
hac vice & Melanie L. Katsur, Gibson, Dunn & Crutcher LLP, pro hac
vice.
Barclays Capital Inc., Defendant, represented by Matthew Alexander
Schwartz, Sullivan & Cromwell, LLP.
The Goldman Sachs Group, Inc., Goldman, Sachs & Co., Defendants,
represented by Elizabeth Vicens, Cleary Gottlieb, George S Cary,
Cleary Gottlieb Steen & Hamilton LLP, Leah Brannon, Cleary
Gottlieb Steen & Hamilton LLP, Thomas J. Moloney, Cleary Gottlieb
& Victor L. Hou, Cleary Gottlieb.
Morgan Stanley, Defendant, represented by Bradley Reid Wilson,
Wachtell, Lipton, Rosen & Katz, David George Januszewski, Cahill
Gordon & Reindel LLP, John David Tortorella, Marino Tortorella &
Boyle, P.C., Jonathan M. Moses, Wachtell, Lipton, Rosen & Katz &
Kevin H. Marino, Marino Tortorella & Boyle, P.C..
RBS Securities, Inc., Defendant, represented by Joel Murray Cohen,
Davis Polk & Wardwell L.L.P., Jennifer Kan, Davis Polk & Wardwell
& Melissa Carrie King, Davis Polk & Wardwell LLP.
Bank Of America Corporation, Defendant, represented by Adam Selim
Hakki, Shearman & Sterling LLP, Richard Franklin Schwed, Shearman
& Sterling LLP & Jeffrey Jason Resetarits, Shearman & Sterling
LLP.
Bank of America, N.A., Defendant, represented by Adam Selim Hakki,
Shearman & Sterling LLP, Richard Franklin Schwed, Shearman &
Sterling LLP & Jeffrey Jason Resetarits, Shearman & Sterling LLP.
Credit Suisse AG, Defendant, represented by David George
Januszewski, Cahill Gordon & Reindel LLP, Elai E. Katz, Cahill
Gordon & Reindel LLP, Herbert Scott Washer, Cahill Gordon &
Reindel LLP, Jason Michael Hall, Cahill Gordon & Reindel LLP &
Sheila Chithran Ramesh, Cahill Gordon & Reindel LLP.
Bank of Tokyo-Mitsubishi UFJ Ltd., Defendant, represented by
Andrew Corydon Finch, Paul Weiss Rifkind Wharton & Garrison LLP,
Kenneth Anthony Gallo, Paul, Weiss, Rifkind, Wharton & Garrison
LLP, Michael E. Gertzman, Paul, Weiss, Rifkind, Wharton & Garrison
LLP, David George Januszewski, Cahill Gordon & Reindel LLP & Noam
Lerer, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
RBC Capital Markets, LLC, Defendant, represented by James P.
McLoughlin, Jr., Moore & Van Allen, PLLC, Neil Thomas Bloomfield,
Moore & Van Allen, PLLC, David George Januszewski, Cahill Gordon &
Reindel LLP, Joshua D. Lanning, Moore & Van Allen, PLLC, pro hac
vice & Mark A. Nebrig, Moore & Van Allen, PLLC.
Societe Generale S.A., Defendant, represented by James Robert
Warnot, Jr., Linklaters, LLP, David George Januszewski, Cahill
Gordon & Reindel LLP,Katherine Zupan Machan, Linklaters, LLP &
Patrick Coby Ashby, Linklaters, LLP.
Deutsche Bank Securities Inc., Defendant, represented by Joseph
Serino, JR., Kirkland & Ellis LLP, Eric Foster Leon, Kirkland &
Ellis LLP & Robert S. Khuzami, Kirkland & Ellis LLP.
Morgan Stanley & Co. LLC, Defendant, represented by Jonathan M.
Moses, Wachtell, Lipton, Rosen & Katz, Bradley Reid Wilson,
Wachtell, Lipton, Rosen & Katz, David George Januszewski, Cahill
Gordon & Reindel LLP, John David Tortorella, Marino Tortorella &
Boyle, P.C. & Kevin H. Marino, Marino Tortorella & Boyle, P.C..
Morgan Stanley & Co. International plc, Defendant, represented by
Jonathan M. Moses, Wachtell, Lipton, Rosen & Katz, Bradley Reid
Wilson, Wachtell, Lipton, Rosen & Katz, David George Januszewski,
Cahill Gordon & Reindel LLP, John David Tortorella, Marino
Tortorella & Boyle, P.C. & Kevin H. Marino, Marino Tortorella &
Boyle, P.C..
BNP Paribas North America, BNP Paribas Group, Consolidated
Defendants, represented by John Terzaken, Allen & Overy Llp, pro
hac vice & Laura Rose Hall, Allen & Overy, LLP.
The Royal Bank of Scotland Group PLC, Consolidated Defendant,
represented by Greg Donald Andres, Davis Polk & Wardwell.
The Royal Bank of Scotland PLC, Consolidated Defendant,
represented byArthur J. Burke, Davis Polk & Wardwell, Greg Donald
Andres, Davis Polk & Wardwell L.L.P., Jennifer Kan, Davis Polk &
Wardwell, Joel Murray Cohen, Davis Polk & Wardwell & Melissa
Carrie King, Davis Polk & Wardwell LLP.
Citibank N.A., Consolidated Defendant, represented by Alan M.
Wiseman, Covington & Burling, L.L.P., pro hac vice, Andrew D.
Lazerow, Covington & Burling, L.L.P., pro hac vice, Andrew Arthur
Ruffino, Covington & Burling LLP & Thomas A. Isaacson, Covington &
Burling, L.L.P., pro hac vice.
Citigroup Global Markets, Inc., Consolidated Defendant,
represented by Alan M. Wiseman, Covington & Burling, L.L.P., pro
hac vice, Andrew D. Lazerow, Covington & Burling, L.L.P., pro hac
vice & Andrew Arthur Ruffino, Covington & Burling LLP.
HSBC Securities (USA) Inc., Consolidated Defendant, represented by
Edwin R Deyoung, Locke Lord Bissell & Liddell LLP & Gregory Thomas
Casamento, Locke Lord LLP.
Morgan Stanley & Co., LLC, Consolidated Defendant, represented by
Bradley Reid Wilson, Wachtell, Lipton, Rosen & Katz, Jonathan M.
Moses, Wachtell, Lipton, Rosen & Katz, Keia Denise Cole, Wachtell
Lipton Rosen & Katz, John David Tortorella, Marino Tortorella &
Boyle, P.C. & Kevin H. Marino, Marino Tortorella & Boyle, P.C..
HSBC Holdings plc, HSBC Bank plc, HSBC North America Holdings,
Inc., HSBC Bank USA, N.A., ADR Providers, represented by Edwin R
Deyoung, Locke Lord Bissell & Liddell LLP, James Matthew Goodin,
Locke Lord LLP, Gregory Thomas Casamento, Locke Lord LLP, Julia C
Webb, Locke Lord LLP & Roger Brian Cowie, Locke, Liddell & Sapp,
L.L.P..
Employees' Retirement System of the Government of the Virgin
Islands, Interested Party, represented by Christopher M. Burke,
Scott Scott, LLP.
Oklahoma Firefighters Pension and Retirement System, Interested
Party, represented by William P. Butterfield, Hausfeld LLP,
Christopher M. Burke, Scott Scott, LLP, Jennifer Janine Scott,
ScottScott, Attorneys At Law, LLP,Stephanie Ann Hacket,
ScottScott, Attorneys At Law, LLP, Stephen M. Tillery, Korein
Tillery, LLC, pro hac vice & William Curtis Fredericks, Scott
Scott, L.L.P..
Doris Sue Allen, Interested Party, represented by J. Ross Wallin,
Grais & Ellsworth LLP, James Brian McTigue, Mctigue Law LLP &
Regina Mary Markey, Mctigue Law LLP.
Donna S. Lucas, Interested Party, represented by James Brian
McTigue, Mctigue Law LLP & Regina Mary Markey, Mctigue Law LLP.
BAXALTA INC: Bertisch and Davis Plaintiffs Dismiss Their Actions
----------------------------------------------------------------
Baxalta Incorporated said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that the plaintiff in the
Bertisch case and the plaintiff in the Davis case each has filed a
Notice of Voluntary Dismissal to terminate their respective
actions without prejudice.
On January 20, 2016, a complaint was filed by a purported Baxalta
stockholder on behalf of all Baxalta stockholders. The complaint,
Bertisch v. Baxalta Inc., et al., C.A. No. 11918 was filed in the
Court of Chancery of the State of Delaware. The complaint names as
defendants Baxalta, Shire and all of the members of the Baxalta
board. The complaint generally alleges that the members of the
Baxalta board breached their fiduciary duties to the Baxalta
stockholders during merger negotiations and by entering into the
merger agreement and approving the Merger, and that Baxalta and
Shire aided and abetted such breaches of fiduciary duties. The
complaint further alleges that, among other things, the merger
consideration undervalues Baxalta and certain provisions of the
merger agreement inappropriately favor Shire and inhibit competing
bids.
The complaint seeks, among other things, (1) injunctive relief
enjoining the Merger, (2) rescission of the Merger to the extent
consummated and (3) costs and damages.
Two additional complaints, Nauer v. Hantson, et.al., No. 16CH102
and Davis v. Baxalta Inc., et al., C.A. No. 11939, containing
similar allegations were subsequently filed in the Eighteenth
Judicial Circuit Court of Illinois on January 22, 2016, and in the
Court of Chancery of the State of Delaware on January 27, 2016,
respectively.
"We believe that the claims asserted in the complaints are without
merit and intend to defend the litigation vigorously," the Company
said.
On March 1, 2016, the plaintiff in the Bertisch case and the
plaintiff in the Davis case each filed a Notice of Voluntary
Dismissal to terminate their respective actions without prejudice,
with each party to bear its own expenses. The cases were dismissed
on March 1, 2016.
BIOSCRIP INC: McCormack Shareholder Suit Dismissed
--------------------------------------------------
The McCormack shareholder class action against BioScrip Inc. et
al, has been dismissed, BioScrip, Inc. said in its Form 10-K
Report filed with the Securities and Exchange Commission on March
3, 2016, for the fiscal year ended December 31, 2015.
On September 8, 2015, Thomas McCormack (the "Plaintiff") filed a
complaint in the Court of Chancery of the State of Delaware
against the Company, the Board, and SunTrust Bank ("SunTrust"), as
administrative agent, captioned Thomas McCormack v. BioScrip, Inc.
et al., C.A. No. 11480-CB, alleging that the adoption of what the
Plaintiff referred to as a "Proxy Put" or "Dead Hand Proxy Put" in
the Company's July 31, 2013 credit agreement (the "Credit
Agreement"), as amended from time to time, constituted a breach of
the Board's fiduciary duty. Among other things, the Plaintiff
sought a declaration that the Proxy Put was invalid,
unenforceable, and severable from the Credit Agreement. While the
Company and SunTrust deny completely all of the allegations of
wrongdoing in the complaint, on October 9, 2015, the requisite
lenders approved, and the Company and SunTrust executed, the Fifth
Amendment to eliminate the so-called "Dead Hand Proxy Put." As a
result of the amendment, the Plaintiff agreed that his claims were
moot, and the Company agreed to pay $130,000 in fees and expenses
to the Plaintiff's counsel.
On January 14, 2016, the Court entered a Stipulation and Order
(the "Order") providing that the Plaintiff's action will be
dismissed with prejudice only as to the Plaintiff and the case
will be closed. The Court has not passed on the amount of fees
and expenses. The Company filed an affidavit notifying the Court
of its compliance with the Order, which resulted in the action
being dismissed and the case closed.
BIOSCRIP INC: June 13 Final Fairness Hearing in Securites Action
----------------------------------------------------------------
BioScrip, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that a final fairness hearing
is set for June 13, 2016, on the settlement in the securities
class action litigation in the Southern District of New York.
The Company said, "On September 30, 2013, a putative securities
class action lawsuit was filed in the United States District Court
for the Southern District of New York ("SDNY") against the Company
and certain of its officers on behalf of the putative class of
purchasers of our securities between August 8, 2011 and September
20, 2013, inclusive."
"On November 15, 2013, a putative securities class action lawsuit
was filed in SDNY against the Company and certain of its directors
and officers and certain underwriters in the Company's April 2013
underwritten public offering of its common stock, on behalf of the
putative class of purchasers of our securities between August 8,
2011 and September 23, 2013, inclusive."
"On December 19, 2013, the SDNY entered an order consolidating the
two class action lawsuits as In re BioScrip, Inc., Securities
Litigation, No. 13-cv-6922 (AJN) and appointing an interim lead
plaintiff. The Company denies any allegations of wrongdoing in the
consolidated class action lawsuit. The lead plaintiff filed a
consolidated complaint on February 19, 2014 against the Company,
certain of its directors and officers, certain underwriters in the
Company's April 2013 underwritten public offering of its common
stock, and a certain stockholder of the Company.
"The consolidated complaint is brought on behalf of a putative
class of purchasers of the Company's securities between November
9, 2012 and November 6, 2013, inclusive, and persons and entities
who purchased the Company's securities pursuant or traceable to
two underwritten public offerings of the Company's common stock
conducted in April 2013, and August 2013. The consolidated
complaint alleges generally that the defendants made material
misstatements and/or failed to disclose matters related to the
Legacy Division's distribution of Novartis Pharmaceutical
Corporation's product Exjade(R) (the "Medication") as well as the
Company's PBM Services segment. The consolidated complaint asserts
claims under Sections 11, 12(a)(2) and 15 of the Securities Act
and Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5
promulgated thereunder. All defendants in the case moved to
dismiss the consolidated complaint on April 28, 2014.
On March 31, 2015, the SDNY granted in part and denied in part the
defendants' motions to dismiss. On April 14, 2015, a motion to
reconsider a portion of the denial of the motions to dismiss was
filed on behalf of all the remaining defendants. Plaintiffs filed
their opposition to that motion on April 28, 2015. On June 5,
2015, the SDNY denied the defendants' motion to reconsider.
On September 25, 2015, the parties entered mediation concerning
all pending claims. In October 2015, the parties reached an
agreement in principle to settle all claims in the action (the
"Proposed Settlement"), the terms and conditions of which were
filed with the SDNY on December 18, 2015. The Company has agreed
to the Proposed Settlement without any admission of liability or
wrongdoing and solely in order to avoid the costs, distraction,
and uncertainty of litigation.
On February 11, 2016, the Court granted preliminary approval for
the settlement, certified a class of plaintiffs for settlement
only, approved of the form of and mailing of notice to the
stockholder class, and scheduled a final fairness hearing for June
13, 2016. The Proposed Settlement remains subject to final court
approval.
Until final approval is obtained and until any other conditions
precedent in the Proposed Settlement are completed or satisfied,
there can be no assurance that this matter will in fact be
resolved pursuant to the terms of the Proposed Settlement.
The Company carries insurance coverage in such amounts as it
believes to be reasonable under the circumstances, but there is no
assurance that insurance will be available or adequate to fund any
settlement, judgment or litigation costs associated with this
action. While no assurance can be given as to the ultimate outcome
of this matter, the Company believes that the final resolution of
this action is not likely to have a material adverse effect on
results of operations, financial position, liquidity or capital
resources.
BOFI HOLDING: Houston Municipal Pensions System Files Suit
----------------------------------------------------------
Rachel Graft, writing for Street.com, reports that the Houston
Municipal Employees Pension System filed a class action suit
against BofI Holding Inc. and some of its executives.
BofI allegedly engaged in illegal lending practices, violated
federal laws in identifying its customers and was unable to
maintain adequate internal controls, according to the plaintiff.
The filing references a number of interviews with anonymous former
employees who back the allegations.
BOSTON SCIENTIFIC: Grand Jury Convened in Vaginal Mesh Probe
------------------------------------------------------------
Robert Weisman, writing for Boston Globe, reports that federal
prosecutors have impaneled a grand jury in a criminal
investigation of allegations that Boston Scientific Corp. used
counterfeit raw material from China in vaginal mesh implants sold
to thousands of American women.
The grand jury in Charleston, W.Va., has sent out multiple
subpoenas in recent months, according to two people familiar with
the probe. The subpoenas, one of which was obtained by the Globe,
seek documents relating to Boston Scientific's purchase of a type
of synthetic resin used in the mesh implants. The people with
knowledge of the inquiry spoke on condition of anonymity because
they weren't authorized to discuss it.
Among other things, one of the people said, investigators are
examining whether the Marlborough medical device company engaged
in deceptive trade practices by knowingly receiving substandard
resins from China in packaging from a vendor whose materials had
been approved by federal regulators, and whether it fraudulently
sold defective products to health care providers.
C & I ASSOCIATES: Court Rules on Employees' Summary Judgment Bid
----------------------------------------------------------------
Judge Sidney H. Stein granted in part and denied, in part, the
plaintiffs' motion for summary judgment in the case captioned
CESAR ALMANZAR, FELIX CORPORAN, JUAN DE LA CRUZ, JUANERIS DE LA
CRUZ, JUAN DIAZ, JORGE DONE, VALENTIN MENALDO, JUAN OGANDO, MARCUS
REYES, AND WILSON ROSSIS, individually, on behalf of all others
similarly situated, and as Class Representatives, Plaintiffs, v. C
& I ASSOCIATES, INC., C & I. TELECOMMUNICATIONS, INC., WILLIAM
GIANNINI, NELSON IZQUIERDO, and ANDROKE POLONIO, Defendants, No.
14-Cv-1810 (SHS) (S.D.N.Y.).
Technicians employed by the defendants C & I Associates and C & I
Telecommunications to install and repair telecommunications
equipment for customers of Cablevision, who were paid by the
completed task rather than by the hour, contended that they have
not received the minimum wage and overtime pay mandated by the
Fair Labor Standards Act (FLSA) and related New York and New
Jersey labor laws.
Following discovery proceedings, the plaintiffs moved for summary
judgment solely on the question of defendants' liability. The
defendants responded that the FLSA exempts them from being
obligated to pay overtime, and that, in any event, disputed facts
prohibit summary judgment.
Judge Stein granted in part and denied, in part, the plaintiffs'
motion as follows:
(1) summary judgment is granted to plaintiffs on their
claim that the defendants are liable for any week
they failed to pay appropriate overtime because the
defendants are not exempt as retail or service
establishments from having to pay overtime;
(2) summary judgment is denied as to the plaintiffs'
minimum wage claims and state law gap time claims,
as there were issues of material fact as to these
claims;
(3) summary judgment is granted to plaintiffs on the
ground that the defendants are liable for any
violations that may be proven at trial of New York
Labor Law (NYLL) section 193(1)(a)-(b) (lost or
damaged equipment deductions), section 193(d)
(written payroll loan repayment grievance policy),
and section 195(1) (wage notices at hiring); and
(4) summary judgment is denied to the plaintiffs on the
issue of defendants' mens rea, because the
defendants have presented a sufficient counter-
narrative to forestall summary judgment on the
issues of willfulness and bad faith.
A full-text copy of Judge Stein's March 31, 2016 opinion and order
is available at http://is.gd/syBxmufrom Leagle.com.
Felix Corporan, Juan De La Cruz, Juan Diaz, Jorge Done, Valentin
Menaldo, Juan Ogando, Marcus Reyes, Wilson Rossis, Juaneris De la
Cuz, Plaintiffs, represented by Anamaria Segura, MFY Legal
Services, Inc., David Urena, Mfy Legal Services, Inc., Jonathan
Adam Bernstein, Levy Davis & Maher, LLP & Maia Beth Goodell, MFY
Legal Services.
Alcides Matos, Edward Jorge, Fausto Pineda, John Bennett, Juan
Evaristo Felix Castro, Juan Mindi-Soto, Carlos Hilberto Hernandez,
Frederick Malcolm, Pedro E. Madera, Raul Campusano, Wilson
Espinosa, Jorge Corporan, Marc Azer Louis Jean, Noe Oscar Paulino,
Wilkin Alexander Corporan, Jose Victor Bermudez, Claudio Antonio
Pimentel, Ernest J. Torres, Jose M. Rodriguez, Emilio Perez,
Wilson Daniel Perez, Constantino Acevedo, William Francisco
Castillo, Elinller Frias, Gerasimo Eusebio Liranzo, James Dee
Jimenez Duran, Ernst Jean Baptiste, Markeith J Powell, Sergio
Garcia, Joel Jimenez, Maiker Estrella, Yordy M Hernandez, Khardryk
R Artis, Michael Alberto Rodriguez, Juan Ramon Alejandro Guerrero,
Plaintiffs, represented by Anamaria Segura, MFY Legal Services,
Inc., David Urena, Mfy Legal Services, Inc. & Maia Beth Goodell,
MFY Legal Services.
C & I Associates Inc., C & I Telecommunications Inc., William
Giannini, Nelson Izquierdo, Androke Polonio, Defendants,
represented by Laurent Scott Drogin -- drogin@tarterkrinsky.com --
Jonathan Samuel Hershberg -- jhershberg@tarterkrinsky.com --
Tarter Krinsky & Drogin LLP & Maxwell David Rosenthal.
CANADA: Windsor & Tecumseh Averts Contempt Motion in Bingo Suit
---------------------------------------------------------------
Doug Schmidt, writing for Windsor Star, reports that Windsor and
Tecumseh dodged a contempt of court motion in a massive bingo
class-action lawsuit after a Superior Court of Justice ruling that
the two defendants did not defy a judge's earlier order limiting
their opt-out campaign.
"The plaintiffs have not established beyond a reasonable doubt
that the city breached my order," Justice Terrence Patterson wrote
in a five-page decision released on April 14.
"Windsor and Tecumseh officials are pleased with the decision and
appreciate the further clarity it offers," Jason Moore, the city's
senior communications manager, said in a news release that
followed.
In order to "continue to respect and abide by the court's earlier
Order limiting communications," there would be no further official
comment during the opt-out period, the news release added.
It was comments by Mayor Drew Dilkens in the Windsor Star in
reaction to Justice Patterson's Jan. 29 order that formed part of
the contempt motion.
In his recent ruling, Justice Patterson said the mayor supplied
"no new information" in that Star interview. The rest of the
complaint, involving opt-out advertisements that subsequently ran
in local radio, was similarly dismissed, with the judge saying
that, while the ads were recorded prior to his January order, they
were pulled by the defendants as soon as lawyers for the
plaintiffs complained.
On Jan. 29, the judge ruled that the two municipalities "went over
the line" in a multimedia campaign urging potential claimants to
"opt out" of the class-action lawsuit before a May 15 deadline.
Justice Patterson said at the time that the "totality of the opt-
out campaign created an undue influence on the potential class
members."
But he also ruled at the time that Windsor and Tecumseh had the
right to continue with their campaign to inform potential class
members that they could opt out by leaving in place any
"information and communications" that were already out there.
The class-action lawsuit launched in 2007 claims municipalities
can't profit from license fees paid for bingos and other
charitable gaming events. If Windsor and Tecumseh lose the main
legal battle, they've warned their taxpayers are looking at a
combined bill of up to $80 million for refunds of fees to
charitable organizations going back to 1993.
The ALS Society of Essex County, as well as the Belle River
District Minor Hockey Association and the Essex County Dancers
Inc. are the named plaintiffs, but any organization that paid a
fee to run a charitable bingo over that period could automatically
be eligible for a full refund.
Unless they sign away that right.
The city and county launched a multimedia campaign Jan. 16 using
billboards, radio and newspaper ads, Facebook, YouTube videos,
Twitter and direct mailings to warn of the potential negative
repercussions to local taxpayers should the courts award a massive
refund payout.
CANADA: Faces Class Action Over Ongoing Aerosol Aerial Discharges
-----------------------------------------------------------------
The law offices of Henry Juroviesky on April 14 announced the
filing of a class action law suit in the Federal Court of Canada,
against Her Majesty the Queen ("Defendant"), alleging class wide
violations of various statutory and common law duties in respect
of the ongoing aerial spraying of aerosols and particulates
("aerial discharges") which aerial discharges are alleged to be
toxic to human neurology, wellness, wild life, the environment and
ecosystem in general.
For further details, please see the materials posted on the
http://www.aerialdischargeclassaction.cawebsite.
Henry Juroviesky commented as follows: "I am part of a team of
legal and scientific professionals all of whom have been donating
their time to pursue this issue of profound importance to our
communities and our society. This filing represents a culmination
of our efforts."
Note that the detailed statement of claim filed with the Federal
Court of Canada is the result of an independent investigation
conducted by Henry Juroviesky. In respect of Canada, to the
knowledge of Henry Juroviesky, no other Statement of Claim has
been filed in this matter against the Defendant and no other law
firms, as at the time of filing the Statement of Claim, represent
plaintiffs in this litigation.
To be included as a lead or representative plaintiff on this
matter, you must meet certain legal requirements. If you would
like to join this class action as a lead or representative
plaintiff, join as a class member, or otherwise be included in the
Toxic Aerial Discharge class action database, please visit the
following website: http://www.aerialdischargeclassaction.ca and
provide us with the information requested.
CEC ENTERTAINMENT: June 3 Hearing on Bid to Dismiss Sinohui Claim
-----------------------------------------------------------------
CEC Entertainment Inc. asks the U.S. District Court for the
Central District of California to dismiss, or in the alternative
strike, PAGA claims in the lawsuit by Richard Sinohui.
A hearing on the motion is set for June 3, 2016 at 2:30 p.m.
before Judge Josephine L. Staton.
Meanwhile, Judge Staton granted Plaintiff's ex parte application
to continue trial from August 8, 2016 to December 13, 2016. CEC
had opposed that request. In its April 8, 2016 ruling, the Court
held that there is good cause for the requested continuance.
Accordingly, the Court vacated all dates and deadlines related to
the previous trial date, and issued a modified scheduling order.
CEC Entertainment, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 2, 2016, for the
fiscal year ended January 3, 2016, that on October 10, 2014,
former store General Manager Richard Sinohui filed a purported
class action lawsuit against the Company in the Superior Court of
California, Riverside County (the "Sinohui Litigation"), claiming
to represent other similarly-situated current and former General
Managers of the Company in California during the period October
10, 2010 to the present. The lawsuit alleges current and former
California General Managers were unlawfully classified as exempt
from overtime protections and worked more than 40 hours a week
without overtime premium pay, paid rest periods and paid meal
periods, in violation of the California Labor Code, California
Business and Professions Code, and the applicable Wage Order
issued by the California Industrial Welfare Commission. The
plaintiff seeks an unspecified amount in damages.
On December 5, 2014, the Company removed the Sinohui Litigation to
the U.S. District Court for the Central District of California,
Southern Division. On December 30, 2014, the plaintiff petitioned
the court to remand the Sinohui Litigation to California state
court. On January 9, 2015, the Company filed a Motion to Dismiss
Plaintiff's Second, Third, Seventh and Eighth Causes of Action.
The court has not ruled on this motion.
On February 26, 2015, the Court overruled the plaintiff's motion
to remand. On October 9, 2015, Plaintiff filed its Motion for
Class Certification.
On January 8, 2016, the court held a hearing on Plaintiff's Motion
for Class Certification.
On March 16, 2016, Judge Josephine L. Staton granted, in part, and
denied, in part, Plaintiff's Motion for Class Certification.
"We believe the Company has meritorious defenses to this lawsuit
and we intend to vigorously defend it. While no assurance can be
given as to the ultimate outcome of this matter, we currently
believe that the final resolution of this action will not have a
material adverse effect on our results of operations, financial
position, liquidity or capital resources."
CEC ENTERTAINMENT: Motion to Dismiss Shareholder Suit Pending
-------------------------------------------------------------
CEC Entertainment, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 2, 2016, for the
fiscal year ended January 3, 2016, that the Company and its former
directors are awaiting a court ruling on their motion to dismiss a
consolidated shareholder class action. The Court has not yet set
this case for trial.
Following the January 16, 2014 announcement that the Company had
entered into the Merger Agreement, four putative shareholder class
actions were filed in the District Court of Shawnee County,
Kansas, on behalf of purported stockholders of the Company against
the Company, its directors, Apollo, Parent and Merger Sub, in
connection with the Merger Agreement and the transactions
contemplated thereby.
The first purported class action, styled Hilary Coyne v. Richard
M. Frank et al. (the "Coyne Action"), was filed on January 21,
2014. The second, styled John Solak v. CEC Entertainment, Inc. et
al. (the "Solak Action"), was filed on January 22, 2014. The
third, styled Irene Dixon v. CEC Entertainment, Inc. et al. (the
"Dixon Action"), was filed on January 24, 2014, and additionally
names as defendants Apollo Management VIII, L.P. and the AP VIII
Queso Holdings, L.P. The fourth, styled Louisiana Municipal Public
Employees' Retirement System v. Frank, et al. (the "LMPERS
Action"), was filed on January 31, 2014, and additionally names as
defendants, Apollo Management VIII, L.P. and AP VIII Queso
Holdings, L.P. (collectively, Coyne, Solak, and Dixon Actions
shall be referred to as the "Shareholder Actions").
Each of the Shareholder Actions alleges that the Company's
directors breached their fiduciary duties to the Company's
stockholders in connection with their consideration and approval
of the Merger Agreement by, among other things, agreeing to an
inadequate tender price, the adoption on January 15, 2014 of a
Rights Agreement, and certain provisions in the Merger Agreement
that allegedly made it less likely that the Board would be able to
consider alternative acquisition proposals.
The Coyne, Dixon and LMPERS Actions further allege that the Board
was advised by a conflicted financial advisor. The Solak, Dixon
and LMPERS Actions further allege that the Board was subject to
material conflicts of interest in approving the Merger Agreement
and that the Board breached its fiduciary duties in allowing
allegedly conflicted members of management to negotiate the
transaction. The Dixon and LMPERS Actions further allege that the
Board breached its fiduciary duties in approving the
Solicitation/Recommendation Statement on Schedule 14D-9 (together
with the exhibits and annexes thereto, as it may be amended or
supplemented, the "Statement") filed with the SEC on January 22,
2014, which allegedly contained material misrepresentations and
omissions.
Each of the Shareholder Actions allege that Apollo aided and
abetted the Board's breaches of fiduciary duties. The Solak and
Dixon Actions allege that CEC also aided and abetted such
breaches, and the Solak and LMPERS Actions further allege that
Parent and the Merger Sub aided and abetted such actions. The
LMPERS Action further alleges that Apollo Management VIII, L.P.
and AP VIII Queso Holdings, L.P. aided and abetted such actions.
The Shareholder Actions seek, among other things, rescission of
the transactions, damages, attorneys' and experts' fees and costs,
and other unspecified relief.
On January 24, 2014, the plaintiff in the Coyne Action filed an
amended complaint (the "Coyne Amended Complaint"), and on January
30, 2014, the plaintiff in the Solak Action filed an amended
complaint (the "Solak Amended Complaint") (together, the "Amended
Complaints"). The Amended Complaints incorporated all of the
allegations in the original complaints, added allegations that the
Board-approved Statement omitted certain material information, in
further violation of the Board's fiduciary duties, and requested
an order directing the Board to disclose such allegedly-omitted
material information. The Solak Amended Complaint also added
allegations that the Board breached its fiduciary duties in
allowing an allegedly conflicted financial advisor and management
to lead the sales process.
On March 7, 2014, the Coyne, Solak, Dixon and LMPERS Actions were
consolidated into one action. On July 21, 2015 a consolidated
class action petition was filed as the operative consolidated
complaint by Twin City Pipe Trades Pension Trust that continued to
assert claims against CEC and its former directors; added The
Goldman Sachs Group ("Goldman Sachs") as a defendant; and removed
all Apollo entities as defendants ("Consolidated Class Action
Petition").
The Consolidated Class Action Petition alleges that the Company's
directors breached their fiduciary duties to the Company's
stockholders in connection with their consideration and approval
of the Merger Agreement by, among other things, conducting a
deficient sales process, agreeing to an inadequate tender price,
agreeing to certain provisions in the Merger Agreement, and filing
materially deficient disclosures regarding the transaction. The
Consolidated Class Action Petition also alleges that two members
of the Company's board who also served as the senior managers of
the Company had material conflicts of interest and that Goldman
Sachs aided and abetted the board's breaches as a result of
various conflicts of interest facing the bank. The Consolidated
Class Action Petition seeks, among other things, to recover
damages, attorneys' fees and costs.
On October 22, 2015, the Company and its former directors filed a
Motion to Dismiss and are currently awaiting the Court's ruling.
The Court has not yet set this case for trial.
The Company believes the Consolidated Class Action Petition is
without merit and intends to defend it vigorously. While no
assurance can be given as to the ultimate outcome of the
consolidated matter, we currently believe that the final
resolution of the action will not have a material adverse effect
on our results of operations, financial position, liquidity or
capital resources.
CHECKPOINT SYSTEMS: Shareholder Motion Remains Pending
------------------------------------------------------
Checkpoint Systems, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 27, 2015, that the request of a
shareholder to be appointed as lead plaintiff remains pending.
The Company said, "On November 11, 2015, a purported shareholder
class action lawsuit was filed against us and certain of our
current and former officers captioned, Meier v. Checkpoint
Systems, Inc., et al., No. 1:15-cv-08007 (RBK)(KMW) (D.N.J.). The
complaint alleges violations of the federal securities laws
related to the restatement of the Company's previously-issued
financial statements announced on November 3, 2015. The complaint
names as defendants our Chief Executive Officer and President
George Babich, Jr., our Chief Financial Officer James M. Lucania,
our former Chief Financial Officer Jeffrey O. Richard, and the
Company. The complaint alleges that we had filed false and
misleading reports with the Securities and Exchange Commission
beginning on March 5, 2015 through November 3, 2015, in violation
of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
(the "Exchange Act"), 15 U.S.C. Sections 78j(b) and 78t(a), and
Rule 10b-5 promulgated thereunder by the SEC, 17 C.F.R. Sec.
240.10b-5. On January 11, 2016, two shareholders filed
applications with the Court to be appointed as lead plaintiff and
to have their counsel appointed as lead counsel. Subsequently,
one of the two shareholders withdrew her application. The
remaining application is pending before the Court."
"We, together with the individual defendants expect to file a
motion to dismiss the case at the appropriate time."
CHESAPEAKE ENERGY: Sued in Oklahoma Over Bid-Rigging Conspiracy
---------------------------------------------------------------
Mahony-Killian, Inc., Edward Clark, Inc., and Cynthia Ann
Schoeppel, on behalf of themselves and a class of similarly-
situated individuals and entities, the Plaintiffs, v. Chesapeake
Energy Corp., SandRidge Energy, Inc., Tom L. Ward, and Does 1-10,
the Defendants, Case No. 5:16-cv-00358-F (W.D. Okla., April 13,
2015), seeks to compensate Oklahoma oil and gas rights' holders
for injury and other relief, including treble damages, allowed by
federal and Oklahoma law.
The Defendants allegedly engaged in a blatant bid-rigging/bid-
rotation conspiracy. The complaint says that Chesapeake agreed
with SandRidge not to bid against each other for valuable oil and
gas rights in Oklahoma in exchange for inducements, including but
not limited to, participation in the wells that would eventually
be operated on the leased properties.
Chesapeake Operating engages in exploration and drilling of
natural gas. The company was founded in 1994 and is based in
Oklahoma City, Oklahoma. Chesapeake Operating LLC operates as a
subsidiary of Chesapeake Energy Corporation.
The Plaintiff is represented by:
Todd M. Schneider, Esq.
Jason Kim, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421 7100
Facsimile: (415) 421 7105
E-mail: tschneider@schneiderwallace.com
jkim@schneiderwallace.com
- and -
Rachel Lawrence Mor, Esq.
RACHEL LAWRENCE MOR, P.C.
3037 N.W. 63rd Street, Suite 205
Oklahoma City, OK 73116
Telephone: (405) 562 7771
Facsimile: (405) 285 9350
E-mail: rmor@thelawgroupokc.com
- and -
Mitchell A. Hallren, Esq.
P.O. Box 428
Fairview, OK 73737
Telephone: (580) 227 4449
Facsimile: (580) 227 4448
E-mail: hallrenlaw@sbcglobal.net
- and -
Peter J. Mougey, Esq.
LEVIN PAPANTONIO THOMAS
MITCHELL RAFFERTY & PROCTOR, P.A.
316 S. Baylen St. No. 600
Pensacola, FL 32502
Telephone: (850) 435 7000
Facsimile: (850) 435 7020
E-mail: pmougey@levinlaw.com
- and -
Allan Steyer
D. Scott Macrae
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, CA 94111
Telephone: (415) 421 3400
Facsimile: (415) 421 2234
E-mail: asteyer@steyerlaw.com
smacrae@steyerlaw.com
CHESAPEAKE ENERGY: Violated Antitrust Laws, "White" Suit Claims
---------------------------------------------------------------
Michelle White, on behalf of herself and all others similarly
situated, the Plaintiff, v. Chesapeake Energy Corp., Chesapeake
Exploration, LLC, as successor by merger to Chesapeake
Exploration, LP, Sandridge Energy Corp., Tom L. Ward, and
John Does 1-50, the Defendants, Case No. 5:16-cv-00351-F (W.D.
Okla., April 12, 2016), seeks to recover treble damages under the
Sherman Antitrust Laws resulting from Defendants' conspiracy to
rig bids and artificially depress prices for purchases of
properties containing oil and natural gas wells, and oil and
natural gas leasehold interests in such properties.
Chesapeake Operating engages in exploration and drilling of
natural gas. The company was founded in 1994 and is based in
Oklahoma City, Oklahoma. Chesapeake Operating LLC operates as a
subsidiary of Chesapeake Energy Corporation.
The Plaintiff is represented by:
Steven Augustine Lopez, Esq.
Eric H Gibbs, Esq.
Michael Schrag, Esq.
Linda Lam, Esq.
GIRARD GIBBS LLP
601 California Street, 14th Floor
San Francisco, CA 94108
Telephone: (415) 981 4800
E-mail: sal@classlawgroup.com
ehg@classlawgroup.com
- and -
Tara Tabatabaie, Esq.
SILL LAW GROUP, PLLC
14005 N. Eastern Ave.
Edmond, OK 73013
Telephone: (405) 509 6300
Facsimile: (405) 509 6268
E-mail: tara@sill-law.com
CHICAGO, IL: Faces Class Action Over Water Main Upgrades
--------------------------------------------------------
Cheryl Corley, writing for NPR, reports that Chicago's
North Broadway Street is always bustling, but in the past few
weeks, it has been noisier than ever. There is water flowing from
an open fire hydrant, and as traffic inches by, a cement truck
backs up and pours concrete down into a big hole in the street.
"Well, we always say there's two seasons: either winter and
construction," says Maureen Martino, the executive director of the
Lakeview East Chamber of Commerce. This water main upgrade is
only the beginning; Martino says the city has plenty more
scheduled for the area this year.
"When we took a look at the water mains, what they pulled out,
over on Broadway and see how old they look, and how crumbling and
what the new water mains look like, you'll see the need is there,"
Ms. Martino says.
It's part of the city's sweeping plan to update and replace miles
of the city's aging water lines that was announced four years ago.
But while there has been praise about the long-overdue new
infrastructure, there has also been criticism -- and a lawsuit
from residents who say the work is causing unsafe lead levels in
the city's drinking water.
Chicago has more than 4,000 miles of water mains under city
streets. In 2012, the city announced a 10-year plan to replace
900 miles of water pipes. The mains are not made of lead, but
nearly 80 percent of the water lines that connect up to the water
mains and bring water into homes and businesses are lead pipes --
and that's the problem, says attorney Steve Berman.
Mr. Berman filed a class-action lawsuit on behalf of three Chicago
residents who say the city's process of replacing water mains
actually disturbs the lead service lines and increases the amount
of lead in the drinking water. He says the city failed to warn
residents or to tell them how to reduce the risk of lead
contamination from their taps.
"So we have children drinking lead in the water in Chicago --
that's not acceptable," he says. "So we seek to have proper
warnings sent out in the future when this is done, to have testing
of kids to see if they have elevated lead levels, and to have the
city of Chicago replace these lead pipes with nonlead pipes."
A study was published in 2013 by the EPA and Chicago's Department
of Water Management that aimed to figure out better ways to
determine the lead levels in the city's drinking water.
The EPA's Miguel Del Toral says while Chicago's overall water
quality is good, what the study made clear is that the method or
sampling protocol that's used to measure the amount of lead in
drinking water is not effective.
"Our sampling protocol is not really capturing the high lead
that's there," he says. "Everywhere, not just in Chicago. It's a
national issue."
Mr. Del Toral, who was among the first at the EPA to raise
concerns about the water crisis in Flint, says disturbing lead
pipes can cause lead levels to spike. But it depends on how
severely the pipe is shaken and how much of the pipe's protective
coating is knocked off.
Chicago recently announced that it will resume a water testing
program at homes in some neighborhoods where children have tested
positive for elevated blood lead levels. In an interview with
WFLD-Fox TV in Chicago, Tom Powers, the city's outgoing
commissioner of water management, says Chicago water is safe.
"Water meets and exceeds every standard of the U.S. EPA,"
Mr. Powers says. "We've done testing in areas where water main
work has been done, and we have not seen any correlation to any
increases in lead levels as a result of any of that work."
Mr. Powers says the water department adds phosphate to the water
supply to mitigate lead leaching, but anyone can call the city to
arrange free testing for lead. Mr. Del Toral says that's a good
step, but the country needs to have a conversation about what it
would take to eliminate all lead pipes.
In a city like Chicago, where the use of lead pipes is nearly
universal, that would take a very long time.
CLEANWELL LLC: Faces "Rosner" Class Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been commenced against Cleanwell LLC.
The case is captioned Ari Rosner and John Does (1-100),
individually on behalf of himself and all others similarly
situated v. Cleanwell LLC, Case No. 1:16-cv-01780 (E.D.N.Y., April
13, 2016).
Based in San Francisco, California, Cleanwell LLC sells products
containing a botanically based anti-microbial formulation.
Ari Rosner is a pro se plaintiff.
COACH INC: Faces "Hinkey" Class Suit in California
--------------------------------------------------
A class action lawsuit has been commenced against Coach Inc.
and Does 1-100.
The case is captioned Plaintiff Cera Hinkey on behalf of herself
and all others similarly situated v. Coach Inc. and Does 1-100,
Case No. 34-2016-00193020-CU-NP-GDS (Cal. Super. Ct., April 14,
2016).
Coach Inc. operates a luxury fashion company based in New York
City.
The Plaintiff is represented by:
Thomas A. Kearney, Esq.
KEARNEY LITTLEFIELD, LLP
633 West 5th Street, 28th Floor
Los Angeles CA 90071
Telephone: (213) 473-1900
Facsimile: (213) 473-1919
E-mail: tak@kearneylittlefield.com
COMMUNITY HEALTH: "McNutt" Suit Transferred to N.D. Ala.
--------------------------------------------------------
Barbara Lujan, Myrtle Keene, Peggy Forkey, Lisa Maes, Patricia Ann
McNutt, Cynthia Horgan, Bobbie Jean Richard, Dallas Richard, David
Smith, Melissa Cooper, Joan Crespin, Ashley Veciana, Braquelle
Lawson, Jane Angel-Lopez, and Cynthia Ann Martin, William Lutz,
Martin Griffin, Richard Dale Floyd, and Steve Percox, v. Community
Health Systems Professional Services Corporation, and Community
Health Systems, Inc., Case No. 3:16-cv-00698, was transferred from
the US District Court for the Middle District of Tennessee Middle,
to the US District Court for the Northern District of Alabama
(Southern). The Northern District Court assigned Case No. 2:16-cv-
00602-KOB to the proceeding.
Community Health Systems offers diagnostic, medical and surgical
services in inpatient and outpatient settings.
The Plaintiffs are represented by:
Christopher T Hellums, Esq.
PITTMAN DUTTON & HELLUMS PC
2001 Park Place Tower, Suite 1100
Birmingham, AL 35203
Telephone: (205) 322 8880
Facsimile: (205) 278 2711
E-mail: PDH-efiling@pittmandutton.com
- and -
Christopher J Zulanas, Esq.
Jeffrey E Friedman, Esq.
John Michael Bowling, Esq.
FRIEDMAN DAZZIO ZULANAS & BOWLING PC
3800 Corporate Woods Drive
Birmingham, AL 35242
Telephone: (205) 278 7050
Facsimile: (205) 278 7001
E-mail: stacy@friedman-lawyers.com
jfriedman@friedman-lawyers.com
rberry@friedman-lawyers.com
- and -
Clinton H. Scott, Esq.
GILBERT RUSSELL MCWHERTER SCOTT & BOBBIT PLC
101 North Highland Ave
Jackson, TN 38301
Telephone: (731) 664 1340
Facsimile: (731) 664 1540
E-mail: cscott@gilbertfirm.com
- and -
Donald W Stewart, Esq.
STEWART & STEWART PC
1000 Quintard Avenue, Suite 500
P O Box 2274
Anniston, AL 36202
Telephone: (256) 237 9311
Facsimile: (256) 237 0713
E-mail: donaldwstewart5354@yahoo.com
- and -
Karen H Riebel, Esq.
Kate M. Baxter-Kauf, Esq.
LOCKRIDGE GRINDAL NAUEN PLLP
100 Washington Ave. S., Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339 6900
Facsimile: (612) 339 0981
E-mail: khriebel@locklaw.com
kmbaxter-kauf@locklaw.com
- and -
Mary Lou Boelcke, Esq.
Turner W Branch, Esq.
BRANCH LAW FIRM
2025 Rio Grande Blvd NW
Albuquerque, NM 87104
Telephone: (505) 243 3500
Facsimile: (505) 243 3534
E-mail: mlboelcke@branchlawfirm.com
- and -
T Dylan Reeves, Esq.
MCGLINCHEY STAFFORD
2100 Southbridge Pkwy, Ste. 650
Birmingham, AL 35209
Telephone: (205) 725 6400
Facsimile: (205) 623 0810
E-mail: dreeves@mcglinchey.com
- and -
BRANCH LAW FIRM
2025 Rio Grande Blvd NW
Albuquerque, NM 87104
Telephone: (505) 243 3500
Facsimile (505) 243 3534
E-mail: tbranch@branchlawfirm.com
DELOITTE & TOUCHE: Sitthideths' Bid for Exclusion Denied
--------------------------------------------------------
Judge Legrome D. Davis denied the motion for exclusion filed by
class members Kam Sitthideth and Ron Sitthideth in the case
captioned IN RE DVI, INC. SECURITIES LITIGATION, Civil Action No.
03-5336 (E.D. Pa.).
Investors in Diagnostic Ventures, Inc. (DVI) sued numerous
defendants for violations of Section 10(b) and 20(a) of the
Securities Exchange Act. A class was certified on April 29, 2008.
On June 24, 2015, an order of final judgment and dismissal was
entered, approving the stipulated settlements between the lead
plaintiffs and the defendants Deloitte & Touche LLP, Harry T. J.
Roberts, and John P. Boyle. The order also dismissed with
prejudice all released claims against all released parties, as
defined in the stipulations.
On June 29, 2015, the Sitthideths moved to be excluded from the
class action. They requested an extension of the deadline to opt
out of the class action and the settlements with Deloitte,
Roberts, and Boyle because they received the Notice program
materials too late to make a timely, informed decision whether to
opt out before the deadline.
Judge Davis, however, stated that actual, individual notice to the
Sitthideths was not required, so long as the notice given of the
class action comports with all the requirements of Federal Rule of
Procedure 23 and due process. The judge also found that the
Sitthideths have not shown "excusable neglect" warranting an
extension of the opt-out deadline. As such, Judge Davis held that
the Sitthideths are bound by the Order of Final Judgment and
Dismissal entered in the class action on June 24, 2015.
A full-text copy of Judge Davis' March 28, 2016 memorandum is
available at http://is.gd/dbrsLDfrom Leagle.com.
KENNETH GROSSMAN, Plaintiff, represented by CHRISTOPHER M. HACK --
chris@krislovlaw.com -- KRISLOV & ASSOCIATES LTD, pro hac vice,
CLINTON A. KRISLOV -- clint@krislovlaw.com -- KRISLOV &
ASSOCIATES, LTD., M. REAS BOWMAN, KRISLOV & ASSOCIATES LTD,MICHAEL
R. KARNUTH, KRISLOV & ASSOCIATES, LTD., WILLIAM JOEL VANDER VLIET,
KRISLOV & ASSOCIATES, LTD, DENISE DAVIS SCHWARTZMAN, CHIMICLES &
TIKELLIS LLP, EVE-LYNN J. RAPP & STEVEN A. SCHWARTZ --
steveschwartz@chimicles.com -- CHIMICLES & TIKELLIS LLP.
CEDAR STREET FUND, Plaintiff, represented by CLINTON A. KRISLOV,
KRISLOV & ASSOCIATES, LTD., M. REAS BOWMAN, KRISLOV & ASSOCIATES
LTD, MICHAEL R. KARNUTH, KRISLOV & ASSOCIATES, LTD., WILLIAM JOEL
VANDER VLIET, KRISLOV & ASSOCIATES, LTD, DENISE DAVIS SCHWARTZMAN,
CHIMICLES & TIKELLIS LLP, EVE-LYNN J. RAPP,KIMBERLY M. DONALDSON
SMITH, CHIMICLES & TIKELLIS LLP & STEVEN A. SCHWARTZ, CHIMICLES &
TIKELLIS LLP.
CEDAR STREET OFFSHORE FUND, Plaintiff, represented by CLINTON A.
KRISLOV, KRISLOV & ASSOCIATES, LTD., M. REAS BOWMAN, KRISLOV &
ASSOCIATES LTD, WILLIAM JOEL VANDER VLIET, KRISLOV & ASSOCIATES,
LTD, DENISE DAVIS SCHWARTZMAN, CHIMICLES & TIKELLIS LLP, EVE-LYNN
J. RAPP, KIMBERLY M. DONALDSON SMITH, CHIMICLES & TIKELLIS LLP,
MICHAEL R. KARNUTH, KRISLOV & ASSOCIATES, LTD. & STEVEN A.
SCHWARTZ, CHIMICLES & TIKELLIS LLP.
DELOITTE & TOUCHE, LLP, Defendant, represented by DAVID L.
COMERFORD -- dcomerford@akingump.com -- AKIN GUMP STRAUSS HAUER &
FELD LLP, JEFFERY A. DAILEY -- jdailey@akingump.com -- AKIN GUMP
STRAUSS HAUER & FELD LLP, JEFFREY ALAN STURGEON --
jeffrey.sturgeon@morganlewis.com -- MORGAN, LEWIS & BOCKIUS & R.
BRENDAN FEE -- brendan.fee@morganlewis.com -- MORGAN LEWIS &
BOCKIUS LLP.
JOHN P. BOYLE, Defendant, represented by ROBERT E. KELLY, ALLMAN
KELLY & WILLNER LLC & MATTHEW MICHAEL RYAN, DUANE MORRIS, LLP.
HARRY T.J. ROBERTS, Defendant, represented by JEFFREY M. LINDY,
LINDY & TAUBER.
CANADIAN IMPERIAL BANK OF COMMERCE TRUST COMPANY OF THE BAHAMAS,
Defendant, represented by JEFFREY W. SARLES --
jsarles@mayerbrown.com -- MAYER BROWN LLP, LAURENCE S. SHTASEL --
shtasel@blankrome.com -- BLANK ROME COMISKY & MCCAULEY LLP,NICOLE
BYRD, MAYER BROWN ROWE & MAW LLP & ROBERT J. KRISS --
rkriss@mayerbrown.com -- MAYER BROWN LLP.
GERALD COHN, Defendant, represented by JULIAN FRIEDMAN --
friedmanj@ballardspahr.com -- Ballard Spahr Stillman and Friedman
LLP, MARY MARGULIS-OHNUMA, STILLMAN FRIEDMAN & SHECHTMAN PC,
MAUREEN NAKLY, U.S. ATTORNEY'S OFFICE,THOMAS A. LEONARD --
thomas.leonard@obermayer.com -- OBERMAYER REBMANN MAXWELL & HIPPEL
LLP,WILLIAM J. LEONARD -- william.leonard@obermayer.com --
OBERMAYER, REBMANN, MAXWELL & HIPPEL, LLP,CAROLYN BARTH RENZIN,
STILLMAN FREIDMAN & SHECHTMAN, pro hac vice & ELIZABETH S.
WEINSTEIN, STILLMAN FRIEDMAN & SHECHTMAN.
WM HIGH YIELD FUND, WM INCOME FUND, AT HIGH YIELD FUND, WM VT
INCOME FUND, AT INCOME FUND, Respondent, represented by JAMES P.
MCEVILLY, III, SHLANSKY LAW GROUP LLP.
DENNIS J. BUCKLEY, Respondent, represented by FREDERICK A. PETTIT,
OFFIT KURMAN PA, MELISSA RUBENSTEIN, REED SMITH LLP & DANIELLE J.
MARLOW, ANDERSON, KILL, OLICK, P.C..
THOMAS SCIBA, Movant, represented by M. RICHARD KOMINS, BARRACK
RODOS & BACINE.
STEPHEN BENCE, IV, Movant, represented by ANDREW L. BARROWAY,
SCHIFFRIN & BARROWAY LLP & DARREN J. CHECK, TUCKER LAW GROUP, LLC.
WOLSON GROUP, Movant, represented by DEBORAH R. GROSS, KAUFMAN,
COREN & RESS, PC & SUSAN R. GROSS, LAW OFFICES BERNARD GROSS, P C.
RICHARD MORRELL, Movant, represented by ROBERT A. KAUFFMAN, BERGER
AND MONTAGUE.
GOTTLIEB FAMILY FOUNDATION TRUST, Movant, represented by ROBERT A.
KAUFFMAN, BERGER AND MONTAGUE.
ANTHONY J. TUREK, Movant, represented by WILLIAM TAYLOR, COZEN
O'CONNOR.
UNITED STATES OF AMERICA, Movant, represented by AMY L. KURLAND,
U.S. ATTORNEY'S OFFICE.
RON SITTHIDETH, KAM SITTHIDET, Movants, represented by ROBERT E.
KELLY, ALLMAN KELLY & WILLNER LLC.
DELOITTE & TOUCHE LLP, Cross Claimant, represented by JEFFREY ALAN
STURGEON, MORGAN, LEWIS & BOCKIUS & JEFFERY A. DAILEY, AKIN GUMP
STRAUSS HAUER & FELD LLP.
DELOITTE & TOUCHE, LLP, DELOITTE & TOUCHE, LLP, Cross Claimants,
represented by JEFFREY ALAN STURGEON, MORGAN, LEWIS & BOCKIUS.
JOHN P. BOYLE, Cross Defendant, represented by PATRICK J. LOFTUS,
DUANE MORRIS LLP.
DENTAL EQUITIES: Faces Econo-Med Suit in C.D. California
--------------------------------------------------------
A lawsuit has been filed againt Dental Equities, LLC. The case is
captioned Econo-Med Pharmacy, Inc., on behalf of itself and all
others similarly situated, the Plaintiff, v. Dental Equities, LLC,
Peer United LLC, Peer Equities LLC, and Does 1-50, inclusive, the
Defendants, Case No. 8:16-cv-00712-JVS-DFM (C.D. Cal., April 14,
2015). The Assigned Judge is Hon. James V. Selna.
Dental Equities is a company based in Irvine, California,
providing dental care services.
The Plaintiff is represented by:
Christopher P Ridout, Esq.
Hannah Belknap, Esq.
ZIMMERMAN REED LLP
2381 Rosecrans Avenue Suite 328
Manhattan Beach, CA 90245
Telephone: (877) 500 8780
Facsimile: (888) 490 7750
E-mail: Christopher.Ridout@zimmreed.com
hannah.belknap@zimmreed.com
DEUTSCHE BANK: Settles London Silver Fixing Litigation
------------------------------------------------------
Ronan Manly, writing for SileverSeek.com, reports that in a
surprising development, a group of plaintiffs in an antitrust
litigation case against Deutsche Bank, HSBC Bank plc, the Bank of
Nova Scotia, and UBS AG, have just announced that Deutsche Bank is
in the process of negotiating the formal terms of a settlement
agreement with the plaintiffs. Deutsche Bank, HSBC and Scotia are
the only members of the London Silver Market Fixing Limited, a
private company that had operated the London Silver Fixing
auctions until mid August 2014, after which time that auction was
superseded by the LBMA Silver Price auction.
The case (No. 1:14-md-02573-VEC) is being overseen as a class
action suit by federal judge Valerie E Caproni in the US District
Court for the Southern District of New York. A large number of
different plaintiffs had taken similar actions and the cases were
consolidated into one class action suit. The plaintiffs allege in
the suit that Deutsche Bank, HSBC and Scotia colluded to fix the
price of silver futures by publishing false silver prices, so that
they, as members of London Silver Market Fixing Company would
benefit (from the price movements).
The full 1 page letter from the plaintiffs legal representatives
Lowey Dannenberg, Cohan & Hart can be read here -> Deutsche letter
to Caproni -- 13 April 2016 -- London Silver Fixing -- Lowey
Dannenberg Cohen Hart.
In a shocking development for the remaining defendants and the
entire future of the current LBMA Silver Price auction, owned by
the LBMA, administered in London by Thomson Reuters and calculated
by the CME Group, letter from the plaintiffs legal representatives
Lowey Dannenberg, Cohan & Hart states that:
"In addition to valuable monetary consideration, Deutsche Bank has
also agreed to provide cooperation to plaintiffs, including the
production of instant messages, and other electronic
communications, as part of the settlement. In Plaintiff's
estimation, the cooperation to be provided by Deutsche Bank will
substantially assist Plaintiffs in the prosecution of their claims
against the non-settling defendants."
The plaintiffs include Modern Settlings LLC (of New York and
Florida), American Precious Metals Ltd, Steven E Summer,
Christopher Depaoli, Kevin Maher, Jerry Barrett, Rebeccca Barrett,
KPFF Investment Inc, Don Tran, and Laurence Hughes.
The defendants include Deutsche Bank AG and various other Deutsche
Bank entities, HSBC Bank Plc, HSBC Bank USA NA, HSBC Holdings Plc,
and various other HSBC entities, The Bank of Nova Scotia, and
various other Scotia entities, and finally The London Silver
Market Fixing Ltd.
Coming on the heels of the unresolved and unexplained fiasco that
is the LBMA Silver Price auction and the broken promises by the
London Bullion Market Association (LBMA) about greater auction
transparency and wider participation in the new Silver auction it
seems difficult to envisage that the LBMA Silver Price can survive
in its current form, with its current participants, of which 2 of
the remaining 5 participants are HSBC and Scotia. It will also be
interesting to see what the Financial Conduct Authority (FCA) will
say about this development with Deutsche Bank, especially in light
of the fact that HSBC and Scotia are now participating in a
'Regulated Benchmark' (the LBMA Silver Price), where price
manipulation can be criminally prosecuted.
The directors of the London Silver Market Fixing Limited company
in the months before it ceased doing the London Silver Fixing
auctions, were Simon Weeks of Scotia, Matthew Keen of Deutsche
Bank, and David Rose of HSBC, with alternate directors of David
Wilkinson of Scotia, James Vorley of Deutsche Bank and Peter
Drabwell of HSBC. Since the above list was drawn up, UK Companies
House filings show that, for London Silver Market Fixing Limited,
David Rose ceased to be a director on January 5, 2016, David
Wilkinson ceased to be a director on October 16, 2015, James
Vorley ceased to be a director on May 27, 2014, and Matthew Keen
ceased to be a director on February 18, 2014. According to those
filings, it means that Simon Weeks of Scotia and Peter Drabwell of
HSBC are still directors of the company that is a defendant in the
above New York class action suite.
Surprisingly to some, Simon Weeks of Scotia is listed on the
website of LBMA Silver Price administrator Thomson Reuters as
still being a member of the LBMA Silver Price Oversight Committee.
See list here. Furthermore, the same Simon Weeks is still listed
as being a member of the LBMA Gold Price Oversight Committee,
chaired by ICE Benchmark Administration. See list here.
Some of the above directors names will also be familiar to readers
as directors of the London Gold Market Fixing Limited company, as
profiled in the ZeroHedge article "From Rothschild To Koch
Industries: Meet The People Who "Fix" The Price Of Gold".
DIVERSICARE HEALTHCARE: Class Action in Early Stages
----------------------------------------------------
Diversicare Healthcare Services, Inc. said in its Form 10-K Report
filed with the Securities and Exchange Commission on March 3,
2016, for the fiscal year ended December 31, 2015, that a class
action lawsuit filed in Garland County is in its early stages.
In January 2009, a purported class action complaint was filed in
the Circuit Court of Garland County, Arkansas against the Company
and certain of its subsidiaries and Garland Nursing &
Rehabilitation Center (the "Facility"). The complaint alleges that
the defendants breached their statutory and contractual
obligations to the patients of the Facility over the five-year
period prior to the filing of the complaints.
The lawsuit remains in its early stages and has not yet been
certified by the court as a class action. The Company intends to
defend the lawsuit vigorously.
DRESSER-RAND: Faces "Burris" Suit Over Failure to Pay Overtime
--------------------------------------------------------------
Benita K. Burris, individually and on behalf of all others
similarly situated v. Dresser-Rand Company, Case No. 4:16-cv-
00198-CVE-FHM (N.D. Ok., April 13, 2016), is brought against the
Defendants for failure to pay overtime wages in violation of the
Fair Labor Standards Act.
Dresser-Rand Company is a supplier of custom-engineered rotating
equipment for applications in the oil, gas, process, power, and
other industries worldwide.
The Plaintiff is represented by:
Kris Ted Ledford, Esq.
LEDFORD LAW FIRM
425 E 22ND ST STE 101
OWASSO, OK 74055
Telephone: (918) 376-4610
Facsimile: (918) 376-4993
E-mail: Kris@Ledford-Lawfirm.com
DS HEALTHCARE: Rosen Law Firm Files Amended Class Action
--------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on April 14
disclosed that it has filed an amended complaint expanding the
class action lawsuit to include purchasers of DS Healthcare Group,
Inc. securities from May 15, 2014 through April 3, 2016, inclusive
(the "Class Period"). The lawsuit seeks to recover damages for DS
Healthcare Group investors under the federal securities laws.
To join the DS Healthcare Group class action, go to the website at
http://www.rosenlegal.com/cases-868.htmlor call Phillip Kim, Esq.
or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) there was a kickback scheme involving channel stuffing
and fraudulent sales; (2) certain of the Company's financial
statements were false because the Company improperly recognized
revenues from customers that did not meet revenue recognition
criteria; (3) the Company's unaudited financial statements for the
two fiscal quarters ended June 30, 2015 and September 30, 2015
contained certain equity transactions that were not in accordance
with United States Generally Accepted Accounting Principles
("GAAP"); (4) Defendant Khesin violated his fiduciary duty to the
Company and its subsidiaries; and (5) as a result, Defendants'
statements about DS Healthcare's business, operations and
prospects were materially false and misleading and/or lacked a
reasonable basis at all relevant times. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than May
31, 2016. If you wish to join the litigation, go to
http://www.rosenlegal.com/cases-868.htmlor to discuss your rights
or interests regarding this class action, please contact, Phillip
Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-
767-3653 or via e-mail at pkim@rosenlegal.com or
kchan@rosenlegal.com
Rosen Law Firm -- http://www.rosenlegal.com-- represents
investors throughout the globe, concentrating its practice in
securities class actions and shareholder derivative litigation.
ENZYMOTEC LTD: Filed Answer to Stockholders' Class Action
---------------------------------------------------------
Enzymotec Ltd. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that the Company has filed an
answer to the stockholder class action complaint.
On September 5, 2014 and September 30, 2014, two stockholders
filed class action complaints in the United States District Court
for the District of New Jersey purportedly on behalf of all
persons who acquired the Company's securities in its IPO or
between September 27, 2013 and August 4, 2014. The lawsuits named
as defendants the Company, its directors, certain of its officers
and the underwriters of its IPO and assert claims under the United
States federal securities laws.
On February 11, 2015, the Court consolidated the cases as In re
Enzymotec Ltd. Securities Litigation, Master File No. 14-CV-05556
and appointed a lead plaintiff. The lead plaintiff filed an
amended complaint on May 18, 2015 asserting essentially the same
claims as the claims asserted in the initial class action
complaints. The amended complaint, however, does not name the
underwriters of the IPO as defendants as the underwriters and lead
plaintiff entered into a tolling agreement.
The Company filed a motion to dismiss on July 17, 2015, lead
plaintiffs filed an opposition to the motion on September 15, 2015
and the Company filed a reply on October 30, 2015. The Court
dismissed the claims related to the Company's krill oil business
but did not dismiss the claims related to the infant formula
business in China. The Company answered the amended complaint on
February 19, 2016.
Management believes that an estimate of the likelihood that the
Company might incur financial loss as a result of this litigation,
as required by ASC 450-20-50-4, "Contingencies", cannot be made at
this time, given the early stage of these lawsuits. Accordingly,
the Company has not included any provision in its consolidated
financial statements for this claim. However, management believes
that the lawsuits are without merit and intends to defend itself
vigorously. Under the underwriting agreement, the Company is
obligated to provide indemnification to the underwriters in
connection with legal proceedings, as defined in the agreement.
However, the underwriters are no longer named defendants.
FAIRWAY GOLF: "Medina" Suit Seeks to Recover Retained Gratuities
----------------------------------------------------------------
Melvin Medina, individually and on behalf of others similarly
situated v. Fairway Golf Management, LLC; Mill Pond Country Club
Caterers Inc.; John Rossi; Anthony Gillespie; Anthony J. Frick;
Linda Nuccitelli; Michael Danon; and Agnes M. Frick, Case No.
607829/2015 (N.Y. Super. Ct., April 14, 2016), seeks to recover
unlawfully retained gratuities owed to the Plaintiff and other
similarly situated persons who are presently or were formerly
employed by the Defendants.
The Defendants operate a restaurant and catering venues located in
New York.
The Plaintiff is represented by:
Brett R. Cohen, Esq.
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
FIDELITY: Must Face NHD Kickback Scheme Class Action
----------------------------------------------------
RE-Insider on April 14 reported that a judge in a class action
lawsuit against Fidelity's Disclosure Source and Valley NHD
("defendants"), and others, Case No. C 15-02030, has ruled against
the defendants' demurrer and will continue the class action suit.
As a result, the defendants in the case still face possible
charges over allegations of illicit RESPA violations, including
illegal kickbacks and fraud, and fines that equate to triple the
profit made.
In this story: Agents and Broker Named in NHD Kickback Class
Action Lawsuit revealed a class action lawsuit filed against real
estate broker Paul M. Zagaris "PMZ", five of his top producing
real estate agents and two natural hazard disclosure companies,
Fidelity's Disclosure Source and Valley NHD, for violation of
California Civil code 1710 (3), California Business and Prof. Code
17200, fraud and others. The Plaintiffs allege, amongst other
things, that Disclosure Source and Valley NHD conspired to earn
secret profits through an elaborate illegal kickback scheme.
The plaintiffs in this case represent a Class of people that have
employed the services of PMZ during a period of time to buy or
sell a residential home in California, in which a natural hazard
disclosure (NHD) report was provided by Valley NHD. Plaintiffs
allege that the Brokerage white labeled a Disclosure Source NHD
report that it purchased for approximately $40.00, and resold it
to the Sellers for $89.00, without making any enhancements to the
report that would account for the additional cost to the client.
This type of resale is the epitome of a RESPA violation.
Additionally, this business arrangement was kept a secret from the
Seller, who had a right to know the Broker had a financial
interest in the NHD report that was chosen.
On March 24, Judge Barry Goode denied the defendants' plea to
dismiss the charges, indicating that the most serious of
allegations remain and will move forward in the court system.
About RE-Insider
RE-Insider.com is a site for California real estate agents and
brokers, reaching over 100,000 industry professionals.
RE-Insider's mission is to bring to light issues affecting the RE
industry in California and to engage in frank discussions on how
to fix them, avoid lawsuits and raise awareness of unscrupulous
activities.
FLINT, MI: Out-of-Town Lawyers File Water Crisis Lawsuits
---------------------------------------------------------
Steve Carmody, writing for Michigan Radio, reports that Flint
residents continue to deal with unsafe lead levels in their water.
Another group is paying very close attention. Lawyers. Lots of
lawyers.
Turn the TV on in Flint and you'll likely hear a commercial with a
very specific question.
"If you've tested positive for the presence of lead in your blood,
experienced nausea, hair loss, skin loss or other issues after
consumption of Flint River water or property damage caused by the
Flint River water system., you need to call . . ." and at that
point the announcer gives the name and contact information for a
New York law firm.
Attorneys are swarming around Flint -- advertising, holding public
meetings and even hosting clinics where adults and children can
have their blood tested.
Anyone who shows up is handed a form asking if they want a lawyer.
Those who do will probably end up in a local local law office.
At a nondescript, one-story office block, where a pop-up law
office opened earlier this month, Kansas Broadnax was waiting to
talk to a lawyer.
He says his two young daughters have been sick since Flint's water
crisis started two years ago.
"I don't want to keep giving my children medicine all the time. I
want them to be better. But if they got to have it, I can't
afford that stuff," says Mr. Broadnax. "They need to be taken
care of in a righteous fashion. I can't do it myself."
Thousands of Flint residents and business owners have already
signed on to about a half-dozen class-action lawsuits.
It's a shotgun approach. The suits seek damages from the
governor, state officials, local officials, former state and local
officials -- even companies that consulted on the decision that
damaged the city's pipes and continue to leach lead into the
drinking water.
And then there are the individual lawsuits: One New York law firm
alone has filed more than 60 on behalf of Flint children. And
more are on the way.
Marc Bern is a New York City lawyer, who's already signed up more
than 400 plaintiffs in his suit. It accuses the governor and
others of racketeering.
Mr. Bern helped win nearly a billion dollars for thousands of
Ground Zero workers who fell ill after cleaning up the site of the
9/11 attack.
"But you know what? That pales today with respect to what is
happening here in Flint," Mr. Bern told reporters when he
announced his Flint water class-action lawsuit.
Mr. Bern and other lawyers are chasing what they hope will be big
settlements.
They're taking cases on contingency.
If their clients win, the lawyers get a percentage of the
settlement or judgment.
Speculating on contingency fees troubles Darren McKinney. He's
with the American Tort Reform Association, a group that lobbies to
limit class-action lawsuits.
While he agrees injured people should get justice, he finds it
unseemly all these out-of-state lawyers flocking into Flint to try
to get a piece of the action.
"It's just a question of which lawyer is going to get the lion's
share of the contingency fee. That's what the rush is all about,"
says Mr. McKinney.
Renee Knake is a legal ethicist at the Michigan State University
Law School. She concedes the system isn't perfect, but it is at
least a way for people in Flint get the legal help they need.
"I guess my larger problem as an ethicist is what does it mean to
be in a country where people with basic needs like clean water
don't have legal representation to help them navigate the system
where government has failed," says Ms. Knake.
One thing most lawyers here agree on is that resolving these
lawsuits could take years. Perhaps more than a decade. That would
mean Flint children who drank lead-tainted tap water when they
were in the first grade might be set to graduate from high school
by the time the legal wrangling is done.
FLORIDA: Appeals Court Affirms DCF's Co-Payment Calculation
-----------------------------------------------------------
Judge Timothy D. Osterhaus of the Florida District Court of
Appeals affirmed the co-payment calculation made by the Florida
Department of Children and Families (DCF) in the case captioned,
GABRIELLE GOODWIN, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN
AND FAMILIES AND DONNA ANSLEY, Appellees, Case No. 1D12-4430 (Fla.
Dist. App.).
Gabrielle Goodwin entered a skilled nursing facility in
Tallahassee after a serious accident injured her spinal cord. She
applied for Institutional Care Program (ICP) benefits through
Florida's Medicaid program to help cover her nursing home costs.
She became eligible in March 2012, retroactive to December 2011.
Beneficiaries in Florida's ICP must contribute to the cost of
their care by remitting a monthly co-pay, called a patient
responsibility amount (PRA), based on their income.
DCF calculated Ms. Goodwin's PRA at roughly $1000 a month,
inclusive of deductions. Ms. Goodwin disputed the calculation. She
argued that DCF should have deducted all of her unpaid, pre-
eligibility nursing care expenses, lowering her PRA. She asked DCF
to recalculate it, deducting approximately $70,000 of these
expenses incurred from November 2010 to November 30, 2011. But DCF
disagreed with her legal interpretation and refused to
recalculate.
Ms. Goodwin appealed to DCF's Office of Appeal Hearings. She
submitted a one-page memorandum arguing that Sec. 1902(r)(1)(A) of
the Social Security Act, 42 U.S.C. Sec.1396a(r)(1)(A)(iii),
required DCF to deduct her outstanding, uncovered nursing home
bills from her PRA. She also alleged that the State Plan didn't
authorize DCF's methodology, and that it was the only mechanism
through which the State could place reasonable limits on the
amount of expenses it deducted from the PRA. Both parties waived a
hearing and the hearing officer issued a Final Order in August
2012.
The Order concluded that the federal statute did not require DCF
to deduct all of Ms. Goodwin's pre-eligibility nursing home
expenses from her PRA because they were Medicaid compensable and
non-recurring expenses.
On appeal, Goodwin claims that Rule 65A-1.7141(1)(g) of the
Florida Administrative Code doesn't apply here, and that Florida
had no rule authorizing DCF to limit PRA deductions when she
became eligible for Medicaid.
In his Opinion dated April 4, 2016 available at
http://is.gd/5oBLvRfrom Leagle.com, Judge Osterhaus found no
error in the Final Order relying upon Rule 65A-1.7141(1)(g). The
judge concluded that DCF need not deduct more from Appellant's PRA
than the three months of pre-eligibility nursing home expenses
that it has already deducted.
Gabrielle Goodwin is represented by Christine Davis Graves, Esq.
-- cgraves@carltonfileds.com -- Robert W. Pass, Esq. --
rpass@carltonfields.com -- Martha Harrell Chumbler, Esq. --
mchumbler@carltonfields.com -- CARLTON FIELDS JORDEN BURT, P.A. &
Cyril V. Smith, Esq. -- csmith@zuckerman.com -- & William K.
Meyer, Esq. -- wmeyer@zuckerman.com -- ZUCKERMAN SPAEDER LLP
Florida Department of Children and Families is represented by:
Rebecca A. Kapusta, Esq.
Herschel C. Minnis, Esq.
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES
200 Opa-locka Blvd
Opa-locka, FL 33054
Tel: (866)762-2237
FUSIONE INC: Faces "Timberlake" Gender-Discrimination Suit
----------------------------------------------------------
Lenell Timberlake, on behalf of himself and all others similarly
situated, the Plaintiff, v. Fusione Inc., a California
corporation, doing business as UNICICASA and SOCIETY UNICI, and
Does 1-100, inclusive, the Defendant, Case No. BC616783 (Cal.
Super. Ct., April 13, 2016), seeks relief necessary to restore to
himself the money and property that Defendant has acquired.
Fusione owns and operates the venue known as Unici Casa or Society
Unici (the Venue) located at 9461 Jefferson Blvd., Culver City,
California 90232. According to the complaint, the Defendant
promoted an event called "Carnevale" wherein it offered free
admission and beverages to women to obtain an economic advantage
over its competitors and in an attempt to lure women to the Venue
by offering extra accommodations and services that men do not
receive. However, male patrons pay for goods and services provided
free of charge to women, which results in gender-based
discrimination.
The Plaintiff is represented by:
David Greifinger, Esq.
1801 Ocean Park Blvd., Suite 201
Santa Monica, CA 90405
Telephone (310) 452 7923
Facsimile (310) 450 4715
E-mail: tracklaw@verizon.net
- and -
Howard A. Goldstein, Esq.
LAW OFFICES OF HOWARD A. GOLDSTEIN
8484 Wilshire Blvd., Suite 515
Beverly Hills, CA 90211
Telephone: (818) 981 1010
Facsimile: (818) 981 1311
E-mail: cyberesqlaw@me.com
- and -
Kenneth M. Lipton, Esq.
5900 Sepulveda Blvd., Suite 400
Van Nuys, CA 91411-2580
Telephone (818) 780 3562
GENERAL MILLS: Faces "Shields" Class Suit in Minnesota
------------------------------------------------------
A lawsuit has been filed against General Mills, Inc. The case is
captioned William Shields, Laurie Bluhm, Charles Nix, Cheryl
Mason, Ann Albertson, Peter Kokemueller, Linda Kloeckner, Laura
Hapsch, Cheryl O'Fallon, Nancy Karls, Paige Miller, Carol
Andraschko, Matthew Lorence, Susan Hayes Jacobson, Rick Marvig,
Annette Olson, Robin Feenie, Ami Anderson, Paul Fazio, Kimberly
Christ, Chris Muntifering, Behroze Mistry, Theresa Panchyshyn,
Juanda White, Karen Cope, Jacki Filippi, Ivan Martinez, Karen
Guerrieri, and Jim Buccellato, for and in behalf of themselves and
other persons similarly situated, the Plaintiff, v. General Mills,
Inc., the Defendant, Case No. 0:16-cv-00954-MJD-LIB (D. Minn.,
April 12, 2016). The Assigned Judge is Hon. Michael J. Davis.
General Mills is an American multinational manufacturer and
marketer of branded consumer foods sold through retail stores. It
is headquartered in the Minneapolis suburb of Golden Valley,
Minnesota.
The Plaintiffs are represented by:
Brent C Snyder, Esq.
Craig A Brandt, Esq.
Stephen J Snyder, Esq.
SNYDER & BRANDT, P.A.
120 South Sixth Street, Suite 2550
Minneapolis, MN 55402
Telephone: (612) 787 3102
Facsimile: (612) 333 9116
E-mail: brent.snyder@snyderattorneys.com
craig.brandt@snyderattorneys.com
stephen.snyder@snyderattorneys.com
GREATER LITTLE: "Wright" Suit Seeks Damages Under FLSA
------------------------------------------------------
Oliver Wright, individually and on behalf of all others similarly
situated, the Plaintiff, v. Greater Little Rock Transportation
Services, LLC, the Defendant, Case No. 4:16-cv-00201-JM (E.D.
Ark., Western Div., April 12, 2016), seeks to recover declaratory
judgment, monetary damages, liquidated damages, prejudgment
interest, civil penalties and costs, including reasonable
attorneys' fees, under the Fair Labor Standards Act (FLSA), and
the Arkansas Minimum Wage Act (AMWA).
Greater Little Rock is a taxicabs company located in Little Rock,
Arkansas.
The Plaintiff is represented by:
Josh Sanford, Esq.
Stephen Rauls, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 S. Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221 0088
Facsimile: (888) 787 2040
E-mail: josh@sanfordlawfirm.com
steve@sanfordlawfirm.com
HCSB FINANCIAL: $2.4M Deal with Sub Debt Holders Has Final OK
-------------------------------------------------------------
HCSB Financial Corporation said in its Form 8-K Report filed with
the Securities and Exchange Commission on March 3, 2016, that the
Court has granted final approval of the class action settlement
agreement with subordinated debt holders.
On March 2, 2016, the Court of Common Pleas for the Fifteenth
Judicial District, State of South Carolina, County of Horry (the
"Court") entered a Final Order of Approval (the "Final Approval
Order") approving the class action settlement agreement (the
"Settlement Agreement") between the Company, the Bank, James R.
Clarkson, Glenn Raymond Bullard, Ron Lee Paige, Sr., and Edward
Lewis Loehr, Jr., the President and Chief Executive Officer,
former Senior Executive Vice President, Executive Vice President,
and Chief Financial Officer of the Company and the Bank,
respectively (collectively, the "Defendants") and Jan W. Snyder,
Acey H. Livingston, and Mark Josephs, on behalf of themselves and
as representatives of a class of similarly situated purchasers of
the Company's subordinated debt notes (collectively, the
"Plaintiffs") (Case No. 2014-CP-26-00204). The Plaintiffs had
previously filed an action seeking an unspecified amount of
damages resulting from alleged wrongful conduct associated with
purchases of the Company's subordinated debt notes, including
fraud, violation of state securities statutes, and negligence. The
Defendants entered into the Settlement Agreement solely to avoid
future inconvenience and protracted, costly litigation and to help
facilitate the recapitalization of the Bank. The Settlement
Agreement does not constitute a concession or admission of
wrongdoing or liability by the Defendants.
The Company will establish a settlement fund of approximately $2.4
million, which represents 20% of the principal of subordinated
debt notes issued by the Company, and class members will be
entitled to receive 20% of their notes, which will be paid from
the settlement fund. In exchange, class members will grant the
Defendants a full and complete release of all claims that were
asserted or could have been asserted in the class action lawsuit.
The Company will also separately pay the approved attorneys' fees,
costs, and expenses of class counsel up to an aggregate of
$250,000.
With the execution of the Stock Purchase Agreement, the TARP
Agreement, and the TruPs Agreement, the Company has satisfied the
three conditions that had to be satisfied prior to the final
hearing by the Court to approve the Settlement Agreement. The
Company must still receive the necessary regulatory approvals or
nonobjections before any payments may be made from the settlement
fund. Assuming these regulatory approvals or nonobjections are
received, the Company anticipates that it will fund the settlement
fund promptly following the closing of the private placement
transaction.
HERTZ CORPORATION: Violated TCPA, "Tillman" Suit Claims
-------------------------------------------------------
Rico Tillman, and all other similarly situated, the Plaintiff, v.
The Hertz Corporation d/b/a Hertz Rent-A-Car, the Defendant, Case
No. 1:16-cv-04242 (N.D. Ill., April 12, 2015), seeks to recover
damages and relief from Defendants' violations of the Telephone
Consumer Protection Act (TCPA).
Hertz Corporation, a subsidiary of Hertz Global Holdings Inc., is
an American car rental company with international locations in 150
countries worldwide. Hertz is the largest U.S. car rental company
by sales.
The Plaintiff is represented by:
David M. Marco, Esq.
SMITHMARCO, P.C.
20 South Clark Street, Suite 2120
Chicago, IL 60603
Telephone: (312) 361 1690
Facsimile: (888) 418 1277
E-mail: dmarco@smithmarco.com
- and -
Alexander H. Burke, Esq.
BURKE LAW OFFICE, LLC
155 North Michigan Avenue, Suite 9020
Chicago, IL 60601
Telephone: (312) 729 5288
Facsimile: (312) 729 5289
E-mail: aburke@burkelawllc.com
HORIZON HEALTH: Court Certifies Miramichi Colposcopy Class Action
-----------------------------------------------------------------
Alan White, writing for CBC News, reports that a class action
lawsuit against Horizon Health Network by women who underwent
medical procedures with unsterilized equipment at a Miramichi
hospital clinic has been certified by the Court of Queen's Bench.
On May 24, 2013, the Miramichi Regional Hospital discovered the
colposcopy clinic at the hospital had not sterilized forceps used
for biopsies in accordance with the longtime standard in
North America. Patients at the clinic were then notified by
Horizon that they may have been treated with unsterilized forceps.
"Colposcopy is a medical diagnostic procedure which provides an
illuminated and magnified view of the cervix and tissues of the
vagina and vulva," states the written decision of Court of Queen's
Bench Justice Jean-Paul Ouellette.
"It is alleged that between 1999 to May 24, 2013, the method used
to clean and disinfect colposcopy biopsy forceps . . . at the
clinic involved a high-level disinfection. Sterilization after
disinfection was not always properly performed as required by the
accepted and adopted North American standard which has been in
place for more than 50 years."
Standard practice in North America is to sterilize forceps after
every use as opposed to disinfecting them. Sterilization is an
additional step which uses heat and pressure or chemicals to kill
all life forms on the treated instruments.
Certification granted
In a Feb. 25 decision that has not been widely reported, Ouellette
granted the plaintiff's motion to certify the lawsuit as a class
action proceeding. Alta Christine Little was appointed as the
representative plaintiff of the class.
The court ordered the class of plaintiffs be defined as "All
patients of the colposcopy clinic at the Miramichi Regional
Hospital, and their matrimonial and common-law partners, who
received correspondence in 2013 from the Horizon Health Network
advising of the risk of infection associated with the colposcopy
clinic for not following recommended cleaning practices on forceps
used for biopsies."
The size of the class is about 2,500 people, said plaintiffs'
lawyer Raymond Wagner of Halifax.
As of Aug. 25, Mr. Wagner had been contacted by 38 people who
expressed an interest in participating in the class action.
The plaintiffs are suing for negligence, breach of contract,
breach of privacy rights, intrusion upon seclusion and battery.
The regional hospital is denying all the allegations.
Damages not established
The amount of financial damages being sought has not yet been
established, said Mr. Wagner.
"Of course, if somebody contracted an ailment as a result of the
contaminated instrument, or the instrument being contaminated, of
course that would be a different level of compensation," said
Mr. Wagner.
The lawyers have not been contacted by anyone who believes they
contracted HIV or hepatitis B or hepatitis C through contact with
unsterilized equipment at the clinic, said Wagner.
Privacy breach alleged
The plaintiffs also contend the method of notification about
"private health issues" used by Horizon was improper. Mr. Wagner
said Little was notified by registered mail and had to pick up a
package of information from Horizon at the post office.
"She had to go to her local post office [where] a number of
individuals were standing around, basically socializing. She
would come out with a package," said Mr. Wagner. "That really
breached her privacy and it was an invasion and an intrusion into
her seclusion.
"The method of communication was improper and breached her right
to privacy."
The next major step in the process is a common issues trial to
determine if Horizon is liable for damages. The lawyers are
proposing to Ouellette that the trial take place in April 2017.
If the trial determines Horizon is liable for damages, the amount
of damages would be determined through an additional court
process.
HP INC: Oral Argument Not Yet Scheduled in Appeal
-------------------------------------------------
HP Inc. said in its Form 10-K Report filed with the Securities and
Exchange Commission on March 3, 2016, for the fiscal year ended
January 31, 2016, that oral argument has not yet been scheduled in
the appeal in the class action by Cement & Concrete Workers
District Council Pension Fund.
Cement & Concrete Workers District Council Pension Fund v.
Hewlett-Packard Company, et al. is a putative securities class
action filed on August 3, 2012 in the United States District Court
for the Northern District of California alleging, among other
things, that from November 13, 2007 to August 6, 2010 the
defendants violated Sections 10(b) and 20(a) of the Exchange Act
by making statements regarding HP's Standards of Business Conduct
("SBC") that were false and misleading because Mr. Hurd, who was
serving as HP's Chairman and Chief Executive Officer during that
period, had been violating the SBC and concealing his misbehavior
in a manner that jeopardized his continued employment with HP.
On February 7, 2013, the defendants moved to dismiss the amended
complaint. On August 9, 2013, the court granted the defendants'
motion to dismiss with leave to amend the complaint by September
9, 2013. The plaintiff filed an amended complaint on September 9,
2013, and the defendants moved to dismiss that complaint on
October 24, 2013.
On June 25, 2014, the court issued an order granting the
defendants' motions to dismiss and on July 25, 2014, plaintiff
filed a notice of appeal to the United States Court of Appeals for
the Ninth Circuit. On November 4, 2014, the plaintiff-appellant
filed its opening brief in the United States Court of Appeals for
the Ninth Circuit. HP filed its answering brief on January 16,
2015 and the plaintiff-appellant's reply brief was filed on March
2, 2015. Oral argument has not yet been scheduled.
HP INC: Appeal in ERISA Litigation Still Pending
------------------------------------------------
HP Inc. said in its Form 10-K Report filed with the Securities and
Exchange Commission on March 3, 2016, for the fiscal year ended
January 31, 2016, that plaintiffs in the HP ERISA Litigation have
appealed the court's order to the United States Court of Appeals
for the Ninth Circuit.
In re HP ERISA Litigation consists of three consolidated putative
class actions filed beginning on December 6, 2012 in the United
States District Court for the Northern District of California
alleging, among other things, that from August 18, 2011 to
November 22, 2012, the defendants breached their fiduciary
obligations to HP's 401(k) Plan and its participants and thereby
violated Sections 404(a)(1) and 405(a) of the Employee Retirement
Income Security Act of 1974, as amended, by concealing negative
information regarding the financial performance of Autonomy and
HP's enterprise services business and by failing to restrict
participants from investing in HP stock. On August 16, 2013, HP
filed a motion to dismiss the lawsuit. On March 31, 2014, the
court granted HP's motion to dismiss this action with leave to
amend. On July 16, 2014, the plaintiffs filed a second amended
complaint containing substantially similar allegations and seeking
substantially similar relief as the first amended complaint. On
June 15, 2015, the court granted HP's motion to dismiss the second
amended complaint in its entirety and denied plaintiffs leave to
file another amended complaint.
On July 2, 2015, plaintiffs have appealed the court's order to the
United States Court of Appeals for the Ninth Circuit.
No further updates were provided in the Company's SEC report.
HR PARKING: Faces "Fernandez" Suit Over Failure to Pay Overtime
---------------------------------------------------------------
Bryan Fernandez and Bryan Fernandez, on behalf of all other
persons similarly situated v. HR Parking Inc. d/b/a Tristate
Valet, Open Road of Manhattan, LLC d/b/a Audi Manhattan, Michael
Morais, Nelson Rodriguez, Rodman Ryan, Case No. 1:16-cv-02762
(S.D.N.Y., April 13, 2016), is brought against the Defendants for
failure to pay overtime wages in violation of the Fair Labor
Standards Act.
The Defendants operate a parking facility in New York.
Bryan Fernandez is a pro se plaintiff.
HUBBS TIRE: Violated FLSA, "Diliberto" Suit Claims
--------------------------------------------------
Timothy Diliberto, and all others similarly situated, Plaintiff,
v. Hubbs Tire & Service, Inc., and Michael Hubbs, the Defendants,
Case No. 9:16-cv-80561-RLR (S.D. Fla., April 13, 2016), seeks to
recover unpaid wages, equal amount in liquidated damages, and
reasonable attorney fees from Defendants, pursuant to the Fair
Labor Standards Act (FLSA).
Hubbs Tire & Service is a one-stop, on-the-spot auto service
headquarters for complete line of quality tires. The Company is
located at Palm Beach, California.
The Plaintiff is represented by:
David Markel, Esq.
THE MARKEL LAW FIRM
777 Brickell Avenue Suite 500
Miami, FL 33131
Telephone: (305) 458 1282
Facsimile: (800) 407 1718
E-mail: David.Markel@markel-law.com
IGNITE RESTAURANT: Motions, Discovery Issues Pending in NY Case
---------------------------------------------------------------
Ignite Restaurant Group, Inc. said in its Form 10-K Report filed
with the Securities and Exchange Commission on March 3, 2016, for
the fiscal year ended December 28, 2015, that there are pending
motions and discovery issues regarding members of the putative
class in a New York class action complaint.
The Company said, "On August 28, 2013, in the United States
District Court, Western District of New York, six former tipped
employees of various Joe's locations filed a complaint against us
and certain of our officers alleging that the employees were not
paid the minimum wage required by federal law as well as the wage-
hour laws of the respective states in which they worked. These
former employees purport to represent a nationwide class of tipped
employees on their federal claims and separate subclasses of
tipped employees regarding their state law claims."
By order dated January 27, 2015, the court granted conditional
certification to the class.
"We are vigorously contesting this matter and have answered and
asserted affirmative defenses. There are pending motions and
discovery issues regarding members of the putative class. At this
early stage, it is impossible to predict with any certainty
whether the former employees will prevail or the amount of damages
they might recover were they to prevail," the Company said.
ILLINOIS: Sued Over Failure to Pay Employees' Insurance
-------------------------------------------------------
Carrie Weeks-Kinowski, individually and on behalf of all others
similarly situated v. Bruce Rauner, Michael Hoffman, Leslie
Geissler Munger, Michael Frerichs, State of Illinois, and Illinois
Department of Central Management Services, Case No. 2016-CH-05194
(Ill. Ch. Ct., April 13, 2016), is an action for damages as a
result of the Defendants' practice of withholding insurance money
from employees' paychecks issued by
the State, for those who are enrolled in the self-insured program,
and failing or refusing to pay the monies over to the Self-Insured
Insurance Companies, who have in time stopped paying hospitals and
doctors for medical costs.
Illinois Department of Central Management Services is a
governmental entity of the State of Illinois.
Bruce Rauner is the Governor of Illinois.
Michael Frerichs is the State Treasurer for the State of Illinois.
Leslie Geissler Munger is the Comptroller of the State of
Illinois.
Michael Hoffman, is the acting Director of Illinois Department of
Central Management Services.
The Plaintiff is represented by:
Karl Silverberg, Esq.
KARL SILVERBERG, P.C.
320 Carleton Ave., Ste. 6400
Central Islip, NY 11722
Telephone: (631) 778-6077
INTERCONTINENTAL HOTELS: Settlement in Phone Calls Suit Okayed
--------------------------------------------------------------
InterContinental Hotels Group PLC said in its Form 20-F Report
filed with the Securities and Exchange Commission on March 3,
2016, for the fiscal year ended December 31, 2015, that a class-
action claim was filed on July 3, 2012 by two claimants alleging
that InterContinental Hotels of San Francisco, Inc. and
InterContinental Hotels Group Resources, Inc. violated California
Penal Code 632.7, based upon the alleged improper recording of
cellular phone calls originating from California to IHG customer
care and reservations centres. The claimants subsequently amended
the claim to include Six Continents Hotels, Inc. The parties
entered into a settlement agreement to resolve all class claims,
and on February 8, 2016, the Court issued an order granting
approval of the settlement.
INTUIT INC: Faces "Rubin" Suit in Dist. of New Jersey
-----------------------------------------------------
A lawsuit has been filed against Intuit Inc. The case is captioned
Aaron Rubin and Fay Rubin, on behalf of themselves and all other
similarly situated consumers, the Plaintiff, v. Intuit Inc., the
Defendant, Case No. 3:16-cv-02029-FLW-LHG (D.N.J., April 12,
2016). The Assigned Judge is Freda L. Wolfson.
Intuit is an American software company that develops financial and
tax preparation software and related services for small
businesses, accountants and individuals. It is incorporated in
Delaware and headquartered in Mountain View, California.
The Plaintiff is represented by:
Fred M. Zemel Esq.
THE ZEMEL LAW FIRM, P.C.
70 Clinton Ave.
Newark, NJ 07114
Telephone: 973-622 5297
Facsimile: 973-824 2446
E-mail: Thezemellawfirm@icloud.com
IT'S ABOUT TIME: Faces "Saul" Suit Over Failure to Pay OT Wages
---------------------------------------------------------------
Ashely Marie Saul v. It's About Time, Inc., Case No. 7:16-cv-
00177-GE (W.D. Va., April 13, 2016), is brought against the
Defendant for failure to pay overtime wages in violation of the
Fair Labor Standards Act.
It's About Time, Inc. provides support to individuals affected
with intellectual and developmental disabilities.
The Plaintiff is represented by:
Thomas E. Strelka, Esq.
L. Leigh R. Strelka, Esq.
STRELKA LAW OFFICE, P.C.
119 Norfolk Avenue, S.W.
Suite 330, Warehouse Row
Roanoke, VA 24011
Telephone: (540) 283-0802
E-mail: thomas@strelkalaw.com
leigh@strelklaw.com
ITC HOLDINGS: Faruqi & Faruqi Files Securities Class Action
-----------------------------------------------------------
Faruqi & Faruqi, LLP on April 14 disclosed that it has filed a
class action lawsuit in the United States District Court for the
Eastern District of Michigan, case no. 2:16-cv-10914, on behalf of
shareholders of ITC Holdings Corporation ("ITC" or the "Company")
who hold ITC securities and have been harmed by ITC's and its
board of directors' (the "Board") alleged violations of Sections
14(a) and 20(a) of the Securities Exchange Act of 1934 (the
"Exchange Act") in connection with the proposed sale of the
Company to Fortis, Inc. ("Fortis").
On February 9, 2016, the Company announced it had entered into an
Agreement and Plan of Merger ("Merger Agreement") under which
Fortis will acquire all of the outstanding shares of ITC through
its wholly-owned U.S. subsidiaries FortisUS, Inc. and Element
Acquisition Sub Inc. (the "Proposed Transaction").
The complaint charges ITC and the Board with violations of
Sections 14(a) and 20(a) the Exchange Act.
If you wish to obtain information concerning this action or view a
copy of the complaint, you can do so by clicking here:
www.faruqilaw.com/ITCnotice
Pursuant to the terms of the Merger Agreement, which was
unanimously approved by the Board, ITC shareholders will receive
$22.57 in cash and 0.7520 shares of Fortis stock ("Merger
Consideration"). According to the complaint, as of March 22,
2016, based on Fortis' stock price and currency exchange rate the
dollar value of the stock portion of the Merger Consideration is
$22.95, for a total consideration of $42.65, a dramatic drop from
the total value of over $53.00 when the Proposed Transaction was
announced.
The complaint alleges that the Form F-4 Registration/Joint Proxy
Statement ("F-4") filed with the Securities and Exchange
Commission ("SEC") on March 17, 2016 provides materially
incomplete and misleading information about the Company and the
Proposed Transaction, in violation of Sections 14(a) and 20(a) of
the Exchange Act. The F-4 fails to provide ITC's shareholders
with material information concerning the financial and procedural
fairness of the Proposed Transaction.
Furthermore, according to the complaint, the Merger Agreement
includes a non-solicitation provision, information and matching
rights provisions, and a $245 million termination fee which
essentially ensure that a superior bidder will not emerge, as any
potential suitor will undoubtedly be deterred from expending the
time, cost, and effort of making a superior proposal while knowing
that Fortis can easily foreclose a competing bid.
Take Action
Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with
extensive experience in prosecuting class actions, and significant
expertise in actions involving corporate fraud. Faruqi & Faruqi,
LLP, was founded in 1995 and the firm maintains its principal
office in New York City, with offices in Delaware, California, and
Pennsylvania.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from April 14, 2016. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. If you wish to discuss this
action, or have any questions concerning this notice or your
rights or interests, please contact:
Juan E. Monteverde, Esq.
FARUQI & FARUQI, LLP
685 3rd Avenue, 26th Floor
New York, NY 10017
Telephone: (877) 247-4292 or (212) 983-9330
E-mail: jmonteverde@faruqilaw.com
JENCARE SKIN: Faces "Scott" Suit Over Failure to Pay Overtime
-------------------------------------------------------------
Dahlia Scott, on behalf of herself and all others similarly
situated v. Jencare Skin Farm Day Spa LLC d/b/a Jencare Day
Spa and Jencare Skin Farm, Inc. d/b/a Jencare Day Spa and Jennifer
Samuda, Peta-Gaye Reanne Samuda, Lloyd Samuda and Michael Samuda,
Case No. 2:16-cv-01773 (E.D.N.Y., April 13, 2016), is brought
against the Defendants for failure to pay overtime wages in
violation of the Fair Labor Standards Act.
The Defendants own and operate health care spas in New York.
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, Suite 307
New York, NY 10007
Telephone: (212) 323-6980
Facsimile: (212) 233-9238
E-mail: jaronauer@aronauerlaw.com
LATTICE SEMICONDUCTOR: Delaware Cases Settled, Calif. Cases Tossed
------------------------------------------------------------------
Lattice Semiconductor Corporation said in its Form 10-K Report
filed with the Securities and Exchange Commission on March 2,
2016, for the fiscal year ended January 2, 2016, that the Delaware
class action cases have been settled and this settlement has been
approved by the court; and the California cases have been
dismissed.
On or about January 29, 2015, Silicon Image, members of its Board,
the Company and the Company's wholly-owned merger acquisition
subsidiary were named as defendants in two complaints filed in
Santa Clara Superior Court by alleged stockholders of Silicon
Image in connection with the proposed merger of Silicon Image and
the Company. Both complaints were dated January 29, 2015 and were
captioned respectively Molland v. George, et al. and Stein v.
Silicon Image, Inc. et. al. Five additional complaints were
subsequently filed on January 30, 2015, February 4, 2015 and
February 9, 2015 in Delaware Chancery Court by alleged
stockholders of Silicon Image, Inc. in connection with the Merger,
captioned respectively Pfeiffer v. Martino et. al.; Lipinski v.
Silicon Image, Inc. et. al.; Feldbaum et. al. v. Silicon Image,
Inc. et. al; Nelson v. Silicon Image, Inc. et. al. and Partansky
v. Silicon Image, Inc. et. al.
The five Delaware matters were subsequently consolidated into an
action captioned In re Silicon Image Stockholders Litigation by
order of the Delaware Chancery Court on February 11, 2015, and a
consolidated amended complaint was filed in the matter on February
13, 2015. Two complaints captioned Tapia v. Silicon Image, Inc.
et. al. and Caldwel v. Silicon Image, Inc. were also filed on
February 4, 2015 and February 9, 2015 in Santa Clara Superior
Court by alleged stockholders in connection with the merger.
Amended complaints were filed in the Molland and Stein actions on
February 11, 2015. Each of these lawsuits were purported class
actions brought on behalf of Silicon Image stockholders, asserting
claims against each member of the Silicon Image Board for breach
of fiduciary duty, and against various officers of the Silicon
Image, the Company, and the Company's wholly-owned merger
subsidiary for aiding and abetting breach of fiduciary duty. The
lawsuits alleged that the Merger did not appropriately value
Silicon Image, was the result of an inadequate process, and
included preclusive deal devices. The amended complaints also
asserted that the Silicon Image's disclosures regarding the Merger
in its Schedule 14D-9 omitted material information regarding the
Merger. Each of these complaints purported to seek unspecified
damages.
The Delaware cases have been settled and this settlement has been
approved by the court. The settlement did not have a material
adverse effect on Lattice's financial position. The California
cases were dismissed with prejudice on February 29, 2016.
LICCIARDELLO'S SANITATION: O'Hara Suit Seeks to Recover OT Wages
----------------------------------------------------------------
Ed O'Hara, James Sharar, Da'Quan Stinnie, Gabriel Nadal and others
similarly situated v. Licciardello's Sanitation Services, Inc.,
and Arron Licciardello, Case No. 5:16-cv-00272-MMH-PRL (M.D. Fla.,
April 13, 2016), seeks to recover unpaid overtime wages and
damages pursuant to the Fair Labor Standards Act.
The Defendants are a hauling business located in Marion County,
Florida.
The Plaintiff is represented by:
Constantine W. Papas, Esq.
LAW OFFICE OF CONSTANTINE W. PAPAS, PA
Suite 106, 1277 N. Semoran Blvd.
Orlando, FL 32807
Telephone: (407) 347-6502
Facsimile: (407) 206-3655
E-mail: cwp@deanpapaslaw.com
MASSACHUSETTS: Judge Dismisses Class Action Against MBTA
--------------------------------------------------------
Massachusetts Lawyers Weekly reports that a Superior Court judge
has dismissed a class action against the Massachusetts Bay
Transportation Authority and its commuter rail contractor over
service provided during the winter of 2015. The plaintiff, Raquel
Rodriguez, on behalf of herself and all other similarly situated
purchasers of monthly commuter rail passes, sued to recover the
economic damages.
MERCEDES-BENZ: Diesel Car Owners File Emissions Class Action
------------------------------------------------------------
Cristian Gnaticov , writing for CarScoops, reports that despite
German authorities concluding that VW Group diesels were the only
ones fitted with emission cheating devices, not all are of the
same mind.
In the latest chapter of the now infamous Dieselgate, owners of
Mercedes-Benz diesel cars from 13 states in the US have filed a
class action lawsuit against the automaker in the District Court
of New Jersey, New York.
They state the automaker "deceived consumers by knowingly
programming its BlueTEC vehicles to release illegal levels of
emissions in virtually all real world driving conditions" -- and
they claim they have substantial evidence.
"When put to the test of real world conditions, Mercedes' 'clean'
diesel cars fail at nearly every opportunity to live up to the
ecofriendly branding Mercedes plastered onto these vehicles," said
Steve Berman, managing partner of law firm Hagens Berman who
represents the owners. "According to our research, all signs
point to Mercedes installing a defeat device, similar to what
Volkswagen implemented, to cheat emissions tests. We intend to
unveil everything Mercedes knows."
Mercede-Benz USA denied all accusations: "We consider this class
action lawsuit to be unfounded. Our position remains unchanged: A
component that inadmissibly reduces emissions is not used in
Mercedes-Benz vehicles".
On their part, the owners cite a study conducted by TNO for the
Dutch Ministry of Infrastructure and the Environment showing that,
in real world testing, the C-Class 220 emits much higher NOx than
in controlled dynamometer tests, adding that "in most
circumstances arising in normal situations on the road, the
systems scarcely succeed in any effective reduction of NOx
emissions."
Moreover, they claim that, at low temperatures and variable
speeds, BlueTEC diesels produced emissions as high as 30.8 times
the standard and, thus, not only does Merc break several laws, but
its practice "constitutes breach of contract and fraudulent
concealment."
The law firm advises owners of the ML 320 and 350, GL 320, E320,
S350, R320, E-Class, GL-Class, ML-Class, R-Class, S-Class, GLK-
Class, GLE-Class and Sprinter fitted with a BlueTEC diesel engine
to contact it and learn more about the case.
MICHAUD COOLEY: Violated FLSA, "Brodsho" Suit Claims
----------------------------------------------------
Brady Brodsho, individually, on behalf of a proposed FLSA
Collective and a Putative Rule 23 Class, the Plaintiffs, v.
Michaud, Cooley, Erickson & Associates, Inc., the Defendant, Case
No. 0:16-cv-00967 (D. Minn., April 13, 2016), seeks to recover
damages and other relief relating to violations of the Fair Labor
Standards Act (FLSA), the Minnesota Fair Labor Standards Act
(MFLSA), the Minnesota Whistleblower Act (MWA), and the Minnesota
Occupational Safety and Health Act (MOSHA).
Defendant provides engineering consulting services used to design
the internal systems of variously sized buildings.
The Plaintiff is represented by:
Matthew H. Morgan, Esq.
Reena I. Desai, Esq.
Rebekah L. Bailey, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Telephone (612) 256 3200
Facsimile (612) 215 6870
E-mail: morgan@nka.com
rdesai@nka.com
bailey@nka.com
MONDELEZ INTERNATIONAL: Judge Tosses Consumer Fraud Class Action
----------------------------------------------------------------
Dana Herra, writing for CookCountyRecord.com, reports that a
northwest suburban woman who claimed she was duped by the
advertising slogan on a box of breakfast biscuits lost her attempt
at filing a class action lawsuit when a federal judge dismissed
her claim.
U.S. District Court Judge Thomas M. Durkin ruled March 31 to
dismiss the case, filed in May 2015 by Judy Spector, of Buffalo
Grove, against food product maker Mondelez International,
manufacturer of belVita breakfast biscuits. According to the
lawsuit, Ms. Spector bought two boxes of belVita in 2015. Her
decision to buy the biscuits was made in part by belVita's
advertising claim that a serving of the biscuits provides four
hours of "nutritious steady energy," she said.
In her complaint, she stated that "in other countries" Mondelez
advertises belVita as providing four hours of "nutritious steady
energy" only when consumed with a serving of milk. The suit said
belVita's Australian website has placed an asterisk next to its
"four hours of energy" claim to draw attention to a note
explaining that in the study cited, the biscuits were consumed
with milk.
"Nowhere (on the U.S. website) does (Mondelez) alert consumers to
the fact that, to obtain the purported four hours of 'nutritious
steady energy,' the consumer must combine the Products with at
least a serving of low-fat milk," the lawsuit states.
The suit contends the studies Mondelez relies upon in making the
"four hours of energy" claim require dairy be consumed with the
biscuits -- which Ms. Spector claimed also negates belVita's
marketing of the biscuits as "convenient" for those "on the go."
The suit alleged Mondelez had violated the Illinois Consumer Fraud
and Deceptive Business Practices Act, and had breached an express
warranty and had been unjustly enriched through its alleged
misleading marketing.
In dismissing the litigation, Durkin noted that nowhere in her
suit did Ms. Spector say belVita actually failed to live up to its
advertising -- that is, she never claimed that the biscuits, eaten
alone, failed to provide the expected four hours of steady energy.
"Plaintiff has pleaded no facts, such as personal experience or
third-party studies, showing that (belVita biscuits) do not
provide 'nutritious steady energy' as promised," he wrote. "[I]f
Plaintiff does not have any idea whether the Products provided her
with four hours of nutritious steady energy, then the Court does
not see how she can have a good faith basis for alleging that the
. . . representation is false."
Without demonstrating injury, the court wrote, the breach of
warranty and unjust enrichment claims fall apart. The crux of the
deceptive advertising claim hinged largely on the studies
referenced on the Australian website, on which the "four hours of
energy" claims are asterisked, and the addition of milk is noted.
The plaintiff claimed the omission of these caveats on U.S.
marketing equates to deliberately misleading American consumers,
but Durkin addressed the argument as essentially a
misunderstanding.
"It is Plaintiff who presumes that the statement 'belVita plus a
glass of milk' necessarily means that a glass of milk is required.
The actual statements do no more than refer to the fact that milk
was consumed with the Products in the cited studies," the court
wrote. "Plaintiff commits the classic error of inferring a causal
connection from a scientific study which merely references the
variables in the study."
The court has allowed Ms. Spector until May 13 to amend her
complaint; if no amendment has been filed by then, the case will
be dismissed with prejudice.
Ms. Spector was represented by attorneys with the firms of Wolf
Haldenstein Adler Freeman & Herz LLP, with offices in Chicago and
New York, and Pomerantz LLP, of Chicago.
Mondelez is defended by the firm of Jenner & Block, of Chicago.
NATIONWIDE CREDIT: Faces "Gutman" Suit in E.D.N.Y.
--------------------------------------------------
A lawsuit has been filed against Nationwide Credit, Inc. The case
is captioned Moshe Gutman, on behalf of himself and all other
similarly situated consumers, the Plaintiff, v. Nationwide Credit,
Inc., the Defendant, Case No. 1:16-cv-01819 (E.D.N.Y., April 14,
2016).
Nationwide Credit, a collection agency, provides customer
relationship and accounts receivable management services.
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
NEUTROGENA CORP: Judge Tosses Deceptive Marketing Class Action
--------------------------------------------------------------
Vanessa Van Voorhis, writing for Legal Newsline, reports that most
often, a plaintiff will hire an attorney for representation in a
lawsuit. However, sometimes an attorney will recruit a plaintiff
to be the designated injured party for a lawsuit the attorney
wishes bring, typically involving a large company perceived as
more inclined to settle rather than fight.
The latter was the likely scenario with a consumer class action
lawsuit seeking in excess of $5 million from skin care company
Neutrogena Corp., said Alexander Kaplan, an attorney specializing
in copyright, false advertising and trademark at Proskauer Rose
LLP in Manhattan.
The 29-page lawsuit, filed by attorney Kopelowitz Ostrow of KO
Lawyers in Miami on behalf of plaintiff Nathan Dapeer and
"others," sought damages and restitution from Neutrogena for
"deceptive and misleading labeling and marketing" of its
sunscreens.
The plaintiffs' damages, however, were more skin-related than
monetary. The lawsuit states Mr. Dapeer and other customers were
deceived into purchasing Neutrogena's higher-price products based
on its high SPF and water-resistant labeling.
But Judge Edwin Torres for the U.S. District Court for the
Southern District of Florida refused to allow the lawsuit to
proceed after the plaintiff said he could not recollect some basic
information about the product. Specifically, from where he
purchased it, the price he paid for it and whether there was a
price difference between the Neutrogena product he purchased and
others available for sale.
"It would seem the plaintiff's counsel did not vet their client
very carefully or prepare him well for his deposition,"
Mr. Kaplan recently told Legal Newsline. "You would think that in
selecting a lead plaintiff, the firm would be more careful."
He said it is the first time he has ever heard of a case in which
"the plaintiff could not recall simple details about his or her
purchase and use of the product."
As a result of the plaintiff's lack of recollection, the judge
found the plaintiff could not establish that he had been harmed
and that the lawsuit lacked the requirement of "typicality,"
meaning the lead plaintiff's injury could not be typical of other
members of the proposed class, Mr. Kaplan explained.
In March, the case settled out of court: the parties agreed to
forego the lawsuit and pay their own legal fees.
The judge's decision not to certify the class action lawsuit
likely will discourage others firms from bringing similar claims
against the company in the future, Mr. Kaplan noted.
"From our experience, typically where class cert is denied, you
don't see another firm trying to bring another class action with
that first decision on the books," he said. "It acts as a real
deterrent to new claims."
As Mr. Kaplan noted in a blog post, "The case serves as a reminder
that defense counsel should always assess the credibility and
specific experience of the lead plaintiff in consumer class
actions."
Neutrogena continues to sell water-resistant sunscreens with a
high SPF rating.
Under sunscreen regulations issued by the FDA in May 2011,
companies cannot use the term "waterproof" in their labeling
because there is no such thing. "Water resistant" is the correct
term and simply means it is less likely wash off in the water
during a short duration of time.
The FDA also had proposed a regulation that would require
sunscreen products that have a SPF value higher than 50 to be
labeled at "SPF 50+" because the agency does not have adequate
data demonstrating that SPFs above this level provide additional
protection.
NEW CENTURY: Violated FLSA, "Covarrubia" Suit Claims
----------------------------------------------------
Theresa Covarrubia, on behalf of herself and all others similarly
situated, the Plaintiff, v. New Century Hospice, Inc., Curo Health
Services, LLC, and David C. Gasmire, individually, the Defendants,
Case No. 5:16-cv-00369-FB (W.D. Tex., April 13, 2016), seeks to
recover overtime and minimum wage compensation, compensatory
damages, liquidated damages, attorney's fees, litigation costs,
costs of court, and pre-judgment and post-judgment interest under
the provisions of the Fair Labor Standards Act of 1938 (FLSA).
New Century Hospice has 17 locations in six states including
Colorado (Colorado Springs & Denver), Georgia (Alpharetta &
Atlanta), Louisiana (Baton Rouge), Oklahoma (Tulsa), Texas
(Austin, Beaumont, Corpus Christi, Dallas, Fort Worth, Houston,
North Houston, Killeen, San Antonio, and Waco) & Virginia
(Richmond). The corporate office is located in Downtown Dallas.
The Plaintiff is represented by:
Douglas B. Welmaker, Esq.
DUNHAM & JONES, P.C.
1800 Guadalupe Street
Austin, TX 78701
Telephone: (512) 777 7777
Facsimile: (512) 340 4051
E-Mail: doug@dunhamlaw.com
NEW YORK: Subclasses Decertified in Suit v. Mental Health Office
----------------------------------------------------------------
In the case captioned GREGORY MONACO, on behalf of himself and
other similarly situated individuals, et al., Plaintiffs, v.
MICHAEL HOGAN, Ph.D., in his official capacity as Commissioner of
the New York State Office of Mental Health, et al., Defendants,
No. 98-CV-3386 (NGG) (RML) (E.D.N.Y.), Judge Nicholas G. Garaufis
granted the State defendants' motion to decertify the plaintiff
classes, as well as defendant William Packard, M.D.'s motion for
partial summary judgment.
The court previously certified a Plaintiff class and several
Plaintiff subclasses. The defendants sought to decertify the
Civil Commitment Subclass and the Incompetency Subclass.
The Law Clinic alone represented the Civil Commitment Subclass,
but the parties have filed a joint stipulation stating that the
Law Clinic "lacks standing to be a plaintiff in this action.", and
that "Gregory Monaco, an individual, is now the only plaintiff in
this action." However, in 2002, Judge Sifton -- then the district
judge assigned to this case -- found that Monaco was collaterally
estopped from litigating his dangerousness, and so he could not
serve as a class representative of the Civil Commitment Subclass.
Monaco also represented the Incompetency Subclass. However, Judge
Garaufis likewise found, as Judge Sifton did, that Monaco cannot
serve as class representative if the class' claims center on
nondangerousness. Thus, the judge concluded that Monaco can no
longer serve as class representative of the Incompetency Subclass
because each of the Incompetency Subclass' claims revolves around
nondangerousness.
Considering that neither subclass has a proper representative,
Judge Garaufis found it proper to decertify both the Civil
Commitment Subclass and the Incompetency Subclass.
Also before the court were Packard's and Monaco's cross-motions
for summary judgment. Monaco argued that Packard was deliberately
indifferent to his medical needs when Packard failed to prescribe
him Lithium. Packard argued that he is entitled to summary
judgment because "there is no record evidence that Dr. Packard
actually drew the inference that not prescribing Lithium would
result in a substantial risk of harm."
Judge Garaufis found no genuine issue of material fact with regard
to whether Packard actually perceived that there was a risk of not
prescribing Lithium and thus, granted Packard's motion for summary
judgment and denied the plaintiffs' motion.
A full-text copy of Judge Garaufis' March 31, 2016 memorandum and
order is available at http://is.gd/FTPVk1from Leagle.com.
Gregory R. Monaco, Mental Disability Law Clinic, Plaintiffs,
represented by Michelle Marie Buescher, The City of New York Law
Department & William M. Brooks, Touro College Jacob D. Fuchsberg
Law Center.
Touro Law Center, Plaintiff, represented by William M. Brooks,
Touro College Jacob D. Fuchsberg Law Center.
Alfred Tisch, Defendant, represented by Christopher M. Gatto,
Suffolk County Attorney's Office.
M.D. Marc Sedler, Ph.D Michael Hogan, Defendants, represented by
Michael E. Peeples, New York State Attorney General Litigation
Bureau.
M.D. Nyapati Rao, Defendant, represented by Seth Lawrence Berman
-- sberman@nixonpeabody.com -- Nixon Peabody LLP.
William Packard, M.D., Defendant, represented by Christopher M.
Gatto, Suffolk County Attorney's Office.
NISSAN: Pathfinder Owners Sue Over Transmission Issues
------------------------------------------------------
Jason Stoogenke, writing for wsoctv.com, reports that some Nissan
Pathfinders owners have a class action lawsuit against the
automaker.
They said 2013 and 2014 Pathfinders have transmission issues.
The plaintiffs estimate 100,000 of them are on the road. They use
words like "juddering, "violent shuddering, and "acceleration
failure" to describe the alleged issues, call the alleged issues a
"true safety hazard."
Those drivers said Nissan knew about it, didn't warn people and
"continues to conceal the defect."
They are asking for $5 million in damages.
The lawsuit said more than 100 consumers complained about the
transmission to federal safety officials, something Action 9 was
in the process of confirming on April 14.
East Charlotte resident Sabrina Gedees is pregnant with her third
child. She decided it was time for a bigger vehicle.
In 2014, she bought a new Pathfinder, but she said three months
later, the transmission started "jerking, shaking."
Then she said she put the SUV in reverse and that it jolted
forward, slamming into the garage wall and that her 2-year-old was
in the SUV with her.
"I was frightened. I was terrified," she said. "I just don't feel
safe driving the car. Not with my kids in there."
Ms. Gedees said she took her Pathfinder to the dealer multiple
times, but that the problem continued. She said her SUV was there
on April 14, waiting on a part to come in, which she hoped would
resolve the situation.
She also wants in on the class action lawsuit and said she's been
in touch with lawyers on the case.
Nissan said it can't "comment on active litigation."
Action 9's Jason Stoogenke hadn't found any proof the transmission
led to death or even serious injury.
If you have the problem, you can try bringing it to the dealer.
Mr. Stoogenke found conflicting reports on whether that's worth it
in this case.
OLD NATIONAL: Settles Overdraft Fee Class Action for $4.75MM
------------------------------------------------------------
Mark Wilson, writing for Evansville Courier & Press, reports that
Old National Bank has agreed to settle a class action lawsuit
alleging it posted certain checking account transactions in a way
that increased depositors' overdraft fees.
Vanderburgh Circuit Court Judge David Kiely on April 14 approved a
motion giving preliminary approval to the $4.75 million proposed
settlement and determined it was fair -- the first part of a two-
step approval process.
Members of the class represented in the lawsuit can now be
notified of the settlement terms and the June 13 final hearing on
its fairness. Class actions allow one or more people to file a
lawsuit on behalf of a larger group.
The lawsuit accused the Evansville-based bank with purposefully
posting debit card and ATM transactions so as to increase
depositors' overdraft fees.
Attorney Rhett Gonterman, representing Old National Bank, said on
April 14 that the financial institution was remained adamant that
it had committed no wrong doing.
"This case has been pending since 2010 and it's in the best
interest of our shareholders for this to be settled and put to
rest rather than incur the cost of continued litigation," he said.
He said the settlement was approved by ONB's board of directors in
December.
Kathy Schoettlin, the bank's vice president of public relations,
said the bank has not changed any of its practices or procedures.
"This is the way that 99 percent of other banks do it," she said.
Mr. Gonterman said the bank is under no legal obligation to change
anything.
William Sweetnam, lead attorney for the plaintiffs, said that he
was aware of at least 20 similar lawsuits across the nation but
that the ONB lawsuit was one of the last to be settled. He said
the $4.75 million settlement represents about 90 percent of the
damages incurred by the class members participating in the lawsuit
-- making it a larger settlement than achieved in most of those
similar lawsuits.
The cost of administering the settlement, as well as $1.9 million
in attorney fees, are included in the settlement amount.
Former Old National customers Steven Kelly, Jon Cook and Rebecca
Cook, who filed the lawsuit in Vanderburgh Circuit Court in
December 2010, will each receive $10,000 -- 40 percent of which
will be covered out of Mr. Sweetnam's legal fees.
Refunds will automatically be distributed on a pro-rated basis to
current ONB customers who were depositors between November 2008
and August 2010, and Indiana residents, and who incurred two or
more overdraft fees in a single day, Mr. Sweetnam said. Former
ONB depositors who fit that class will receive the same pro-rated
refunds but will need to apply either electronically or by mail.
The settlement calls for any funds remaining after the
reimbursements to be shared between the Indiana Bar Association,
Old National Bank Foundation -- which is operated separately from
the bank -- and other Indiana organizations for use promoting
financial literacy education.
Judge Kiely approved expanding the lawsuit to a class action in a
2014 ruling and the Indiana Court of Appeals affirmed it in an
April 2015 ruling. That decision was left standing by the Indiana
Supreme Court's denial of the bank's petition to transfer the
case.
The April 2015 appeals court ruling eliminated the lawsuit's other
claims. Those included conversion, unconscionability, and unjust
enrichment claims that alleged Old National Bank intentionally
exerted unauthorized control over deposits, as well as a claim
that the bank violated the Indiana Crime Victim Relief Act.
Judge Kiely was scheduled to hear the case in a bench trial May 9
on the issue of whether Old National Bank had breached an implied
duty to deal in good faith with customers. That trial date has
now been cancelled. Instead, there will be a final hearing on the
fairness of the settlement at 2:00 p.m. June 13 in Circuit Court.
ON DECK: New York Court Consolidates 2 Class Suits
--------------------------------------------------
On Deck Capital, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that two putative class
action lawsuits have been consolidated.
The Company said, "Two separate putative class actions were filed
in August 2015 in the United States District Court for the
Southern District of New York against us, certain of our executive
officers, our directors and certain or all of the underwriters of
our initial public offering. The suits allege that the
registration statement for our IPO contained materially false and
misleading statements regarding, or failed to disclose, specified
information in violation of the Securities Act of 1933, as
amended. The suits seek a determination that the case is a proper
class action and/or certification of the plaintiff as a class
representative, rescission or a rescissory measure of damages
and/or unspecified damages, interest, attorneys' fees and other
fees and costs."
"On February 18, 2016 the court issued an order (1) consolidating
the two cases, (2) selecting the lead plaintiff and (3) appointing
lead class counsel. Under the order, the plaintiffs are directed
to file a consolidated complaint by March 18, 2016. Within 30 days
of the filing of any consolidated complaint, the defendants are to
answer the complaint or request a pre-motion conference with the
court seeking permission to file a motion to dismiss.
"We intend to defend ourselves vigorously in these consolidated
matters, although at this time we cannot predict the outcome."
ORLEANS SHORING: Fails to Pay Workers Overtime, "Nunez" Suit Says
-----------------------------------------------------------------
Wilson Nunez and Luis Mejia, on behalf of themselves and other
persons similarly situated v. Orleans Shoring, LLC, Santicima
Trinidad, LLC and La Divina Misericordia, LLC and Antonio Nunez
and Antonio Nunez Reyes, Case No. 2:16-cv-0300 (E.D. Lo., April
13, 2016), is brought against the Defendants for failure to pay
overtime wages for all hours worked in excess of 40 hours a
workweek.
The Defendants are in the business of home elevation and
foundation repair for commercial and residential projects all over
Southern Louisiana.
The Plaintiff is represented by:
Roberto Luis Costales, Esq.
Emily A. Westermeier, Esq.
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534-5005
Facsimile: (504) 272-2956
E-mail: costaleslawoffice@gmail.com
emily.costaleslawoffice@gmail.com
- and -
William H. Beaumont, Esq.
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 483-8008
E-mail: whbeaumont@gmail.com
PAIN THERAPEUTICS: March 2017 Trial Date Set in KB Action
---------------------------------------------------------
Pain Therapeutics, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that a new trial date is set
for March 2017 in the case, KB Partners I, L.P., Individually and
On Behalf of All Others Similarly Situated v. Pain Therapeutics,
Inc., Remi Barbier, Nadav Friedmann and Peter S. Roddy.
The Company said, "On December 2, 2011, a purported class action
was filed against us and our executive officers in the U.S.
District Court for the Western District of Texas. This complaint
alleges, among other things, violations of Section 10(b), Rule
10b-5, and Section 20(a) of the Exchange Act arising out of
allegedly untrue or misleading statements of material facts made
by us regarding REMOXY's development and regulatory status during
the purported class period, February 3, 2011 through June 23,
2011. The complaint states that monetary damages are being sought,
but no amounts are specified. On June 3, 2013, the Court certified
a class consisting of all purchasers of our common stock and a
class period of December 27, 2010 through June 26, 2011."
In a July 7, 2015 order, the Court directed plaintiffs to file an
amended complaint and set a new trial date, if necessary, for
March 2017. Plaintiffs filed their amended complaint on July 27,
2015.
PM REALTY: 9th Cir. Reverses District Court's Ruling in "Branch"
----------------------------------------------------------------
A three-judge panel of the U.S. Court of Appeals, Ninth Circuit,
reversed the district court's ruling that PM Realty Group, L.P.,
failed to identify evidence to support an assumed violation rate
of at least two meal and two rest breaks per week worked per
employee and remanded for further proceedings the case in the case
captioned, DANIEL BRANCH, as an individual and on behalf of all
similarly situated employees, Plaintiff-Appellee, v. PM REALTY
GROUP, L.P., Defendant-Appellant, Case No. 16-55200 (9th Cir.).
Daniel Branch filed a class action against PM Realty Group, LP
(PMRG) alleging violations of California's Labor Code. The
complaint alleged, inter alia, that PMRG failed to provide timely,
workfree meal and rest breaks to nonexempt employees. PMRG removed
the action to federal court pursuant to the Class Action Fairness
Act (CAFA).
In support of its assertion jurisdiction was proper, PMRG made
assumptions about the number of meal and rest breaks put at issue
by Branch's complaint. The district court remanded the case to
state court, concluding the record did not support the most
conservative of PMRG's assumptions as to the number of meal and
rest breaks at issue. It left unresolved numerous factual and
legal disputes about other assumptions underlying PMRG's theory of
damages, both as to Branch's meal and rest break claims and other
claimed violations.
Branch moved to remand the case, challenging PMRG's contention
that the amount in controversy exceeded $5,000,000. A few days
later, he filed a motion for class certification. That motion
alleged that PMRG's failure to provide proper meal and rest breaks
flowed from California-law-noncompliant policies in employee
handbooks that applied uniformly to all class members.
The district court granted Branch's motion to remand concluding
that though the record perhaps demonstrated Branch missed two meal
and two rest breaks per week, that violation rate could not be
extended to the entire class because the evidence identified by
PMRG said nothing of the frequency of which PMRG would deprive
class members of their entitled meal periods or rest periods.
On appeal, Branch asserted (1) the class was not as large as
utilized in PMRG's damages assumptions because the parties had
stipulated to a smaller class, and (2) PMRG did not explain why an
average hourly wage was the statistically appropriate variable for
calculating the amount in controversy with regard to rest and meal
breaks.
In the Memorandum dated April 4, 2016 available at
http://is.gd/nSAu0sfrom Leagle.com, the Ninth Circuit found that
the district court erred in ruling PMRG failed to identify
evidence to support an assumed violation rate of at least two meal
and two rest breaks per week worked per employee. The matter is
remanded to the district court for further proceedings. To
accurately determine whether PMRG has demonstrated that the claims
of the putative class exceed $5,000,000, the district court should
determine the amount placed in controversy by each of the alleged
violations of the California Labor Code and each of the numerous
additional issues it did not reach in its original remand order.
RENEGADE TORQUE: Violated FLSA, "Bushart" Suit Claims
-----------------------------------------------------
Brian Bushart, individually and on behalf of all others similarly
situated, the Plaintiff, v. Renegade Torque, Test & Fluids, LLC
and Suzanne D. Kubala, the Defendants, Case No. 5:16-cv-00372
(W.D. Tex., April 13, 2016), seeks to recover compensation,
liquidated damages, attorneys' fees, and costs, pursuant to the
Fair Labor Standards Act of 1938 (FLSA).
Renegade provides testing, wrenching, and fluid services.
The Plaintiff is represented by:
Clif Alexander, Esq.
PHIPPS ANDERSON DEACON LLP
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452 1279
Facsimile: (361) 452 1284
E-mail: calexander@phippsandersondeacon.com
RUBY TUESDAY: Court Narrows Securities Fraud Claims in "Kyrstek"
----------------------------------------------------------------
In the case captioned DENNIS KYRSTEK, Individually And on Behalf
of All Others Similarly Situated, Plaintiffs, v. RUBY TUESDAY,
INC., JAMES J. BUETTGEN, MICHAEL O. MOORE, And KIMBERLY S. GRANT,
Defendants, No. 3:14-cv-01119 (M.D. Tenn.), Judge Kevin H. Sharp
granted in part and denied, in part, the defendants' motion to
dismiss the consolidated complaint and denied the plaintiffs'
motion to strike as moot.
Dennis Krystek and Alaska Electrical Pension Fund filed a suit on
behalf of themselves and others who are similarly situated against
Ruby Tuesday, Inc., from whom the plaintiffs purchased common
stock during the class period, which ran from April 10, 2013 until
October 10, 2013. Also named as defendants were James J.
Buettgen, President and CEO of Ruby Tuesday; Michael O. Moore,
Executive Vice President and Chief Financial Officer of Ruby
Tuesday; and Kimberly S. Grant, former Chief Operations Officer of
Ruby Tuesday.
The plaintiffs alleged that during the class period, the
defendants engaged in a scheme to fraudulently: (1) overstate
progress toward Ruby Tuesday's brand repositioning; and (2)
conceal the poor performance of the Lime Fresh restaurants
operated by Ruby Tuesday. The consolidated complaint asserts a
claim against Ruby Tuesday and the individual defendants under
Section 10(b) of the Exchange Act and Rule 10b-5 promulgated
thereunder. The consolidated complaint also asserts a control-
person claim against the individual defendants under Section 20(a)
of the Exchange Act. The defendants moved to dismiss all claims
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Judge Sharp found that the plaintiffs' have not adequately pleaded
a material misrepresentation regarding the Ruby Tuesday
repositioning plan, and thus dismissed the consolidated
complaint's Section 20(a) allegations with regard to forward-
looking statements about the repositioning plan.
Judge Sharp held, however, that the consolidated complaint's
Section 20(a) allegations with regard to the material omissions
regarding Lime Fresh's performance are sufficient to survive the
motion to dismiss. The judge found that the plaintiffs have
adequately shown that the defendants omitted material information
about Lime Fresh's performance and that the defendants acted
recklessly in making these omissions. Judge Sharp further found
that the plaintiffs have also shown that the defendants' material
omissions caused the class's losses.
The plaintiffs had sought to strike Exhibits N and O to the
Declaration of Brian H. Polovoy as not integral to the complaint
and as being improperly offered for the truth. However, Judge
Sharp held that the court does not even rely on either of the
contested exhibits when reaching its decision on the defendants'
motion to dismiss. Thus, the judge denied the plaintiffs' motion
to strike as moot.
A full-text copy of Judge Sharp's March 31, 2016 memorandum is
available at http://is.gd/03sKOPfrom Leagle.com.
Dennis Krystek, Plaintiff, represented by Jerry E. Martin --
jmartin@barrettjohnston.com -- Barrett Johnston Martin & Garrison,
LLC, Mary K. Blasy -- mblasy@rgrdlaw.com -- Robbins Geller Rudman
& Dowd LLP,Samuel H. Rudman -- srudman@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Scott P. Tift --
stift@barrettjohnston.com -- Barrett Johnston Martin & Garrison,
LLC, Timothy L. Miles -- tmiles@barrettjohnston.com -- Barrett
Johnston, LLC, Ashley M. Price -- aprice@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP, Christopher M. Wood -- cwood@rgrdlaw.com
-- Robbins Geller Rudman & Dowd LLP, pro hac vice, Danielle S.
Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP &
Laurie L. Largent -- llargent@rgrdlaw.com -- Robbins Geller Rudman
& Dowd LLP.
Ruby Tuesday, Inc., James J. Buettgen, Michael O. Moore, Kimberly
S. Grant, Defendants, represented by Brian Polovoy --
bpolovoy@shearman.com -- Shearman & Sterling, Britt K. Latham --
blatham@bassberry.com -- Bass, Berry & Sims, Daniel H.R. Laguardia
-- daniel.laguardia@shearman.com -- Shearman & Sterling, Joseph B.
Crace, Jr. -- jcrace@bassberry.com -- Bass, Berry & Sims & Stuart
J. Baskin -- sbaskin@shearman.com -- Shearman & Sterling.
RUCKUS WIRELESS: "Shirley" Suit Seeks to Enjoin Brocade Merger
--------------------------------------------------------------
Shirley Macuire, on behalf of herself and all others similarly
situated, the Plaintiff, v. Ruckus Wireless, Inc., Selina Y.
Lo, Gaura V Garg, Mohan Gy Ani Georges Antoun, Richard Lynch, Stew
Art Grierson, Bart Burstein, Brocade Communications Systems, Inc.,
and Stallion Merger Sud Inc., the Defendants, Case No. 16CV293800
(Cal. Super. Ct., April 12, 2016), seeks to enjoin the proposed
merger between Ruckus Wireless, Inc. and Brocade Communications
Systems, Inc., and compel the Individual Defendants to properly
exercise their fiduciary duties to Ruckus stockholders.
On April 3, 2016, the Company filed a definitive Agreement and
Plan of Merger (the Merger Agreement) on Form 8-K with the
Securities and Exchange Commission (SEC). The Merger Agreement
contemplates that the proposed acquisition will be completed via
an exchange offer (the Offer) that will be scheduled to expire on
the 20th business day following the commencement of the Offer.
Based on the closing price of Brocade's stock on April, 2016, the
transaction values Ruckus at a price of $14.43 per common share,
or approximately $1.5 billion. Plaintiff asserts that stockholders
will be ultimately stripped of their respective equity interests
through the Proposed Acquisition.
Ruckus Wireless is a global supplier of advanced wireless systems
for the mobile internet infrastructure market. The company is
headquartered in Sunnyvale, California.
The Plaintiff is represented by:
Evan J. Smith, Esq.
BRODSKY & SMITH, LLC
9595 Wilshire Blvd., Ste. 900
Beverly Hills, CA 90212
Telephone: (877) 534 2590
Facsimile: (310) 247 0160
E-mail: esmith@brodsky-smith.com
SCHILLER LODGES: Faces "Rebolledo" Suit Over Failure to Pay OT
--------------------------------------------------------------
Lilia Rebolledo, individually and on behalf of other employees
similarly situated, Plaintiffs v. Schiller Lodges, LLC d/b/a
Quality Inn O'Hare and Ron Kammo, Defendants, Case No. 1:16-cv-
04276 (N.D. Ill., April 13, 2016), is brought against the
Defendants for failure to pay overtime wages in violation of the
Fair Labor Standards Act.
The Defendants own and operate hotels and motels located in
Schiller Park, Illinois.
The Plaintiff is represented by:
Raisa Alicea, Esq.
CONSUMER LAW GROUP, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Telephone: (312) 800-1017
E-mail: ralicea@yourclg.com
SECURITY CREDIT: Faces "Roberts" Suit in E.D.N.Y.
-------------------------------------------------
A lawsuit has been filed against Security Credit Systems, Inc. The
case is captioned Jerome Roberts, as assignee of, on behalf of
Himself and all others similarly situated, the Plaintiff, v.
Security Credit Systems, Inc., the Defendant, Case No. 1:16-cv-
01762 (E.D.N.Y., April 12, 2016).
Security Credit Systems Inc. was founded in 1983. The company's
line of business includes collection and adjustment services on
claims and other insurance related issues.
The Plaintiff appears pro se.
SEEKONK: BOA Faces 320 Fall River Suit in Mass.
-----------------------------------------------
A lawsuit has been filed against Town of Seekonk Board of
Assessors. The case is captioned 320 Fall River LLC, individually
and as trustee of The Firefly CCRC Condominium Trust, u/d/t
December 29, 2014 and on behalf of others similarly situated, the
Plaintiff, Theodora Gabriel, Tax Assessor on behalf of Town of
Seekonk, and Town of Seekonk Board of Assessors, the Defendants,
Case No. 1673CV00356 (Mass. Super. Ct., April 12, 2016).
Seekonk is a town in Bristol County, Massachusetts, United States,
on the Massachusetts border. It was incorporated in 1812 from the
western half of Rehoboth. The population was 13,722 at the 2010
census. Board of Assessors is responsible for the valuation of
real and personal property for the purposes of levying the
property tax.
The Plaintiff is represented by:
Eric S. Brainsky, Esq.
BRAINSKY LEVINSON, LLC
1547 Fall River Avenue, Suite 3
Seekonk, MA 02771
Telephone: (508) 557 1910
Facsimile: (508) 557 1905
E-mail: ebrainsky@brainskylevinson.com
SHILOH INDUSTRIES: Amended Complaint Filed in Securities Action
---------------------------------------------------------------
Shiloh Industries, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended January 31, 2016, that a securities class action
lawsuit was filed on September 21, 2015 in the United States
District Court for the Southern District of New York against the
Company and certain of its officers (Mr. Ramzi Hermiz and Mr.
Thomas Dugan). As amended, the lawsuit claims in part that the
Company issued inaccurate information to investors about, among
other things, the Company's earnings and income and its internal
controls over financial reporting for fiscal 2014 and the first
and second fiscal quarters of 2015 in violation of the Securities
Exchange Act of 1934. The amended complaint seeks an award of
damages in an unspecified amount on behalf of a putative class
consisting of persons who purchased the Company's common stock
between January 12, 2015 and September 14, 2015, inclusive.
No further updates were provided in the Company's SEC Report.
SODEXO INC: Faces "Riestra" Suit Over Labor Code Violation
----------------------------------------------------------
Maria Riestra, on behalf of herself and others similarly situated,
the Plaintiff, v. Sodexo, Inc., a Delaware corporation,
SDH Services West, LLC, a Delaware limited liability company; and
Does 1-50, inclusive, the Defendant, Case No. BC616945 (Cal.
Super. Ct., April 13, 2016), seeks injunctive relief, restitution,
and disgorgement of all benefits Defendants have enjoyed from
their violations of the Labor Code.
Sodexo designs, manages, and delivers on-site, benefits and
rewards, and personal and home services in the United States,
Canada, and Mexico. It provides quality of life services in
corporate, education, government, health care, senior living,
sports and leisure, and remote site segments. The Company was
formerly known as Sodexho, Inc. and changed its name to Sodexo,
Inc. in April 2008. The company was founded in 1966 and is based
in Gaithersburg, Maryland.
The Plaintiff is represented by:
David Yeremian, Esq.
DAVID YEREMIAN & ASSOCIATES, INC
535 N. Brand Blvd., Suite 705
Glendale, CA 91203
Telephone: (818) 230-8380
Facsimile: (818) 230:0308
E-mail: david@yeremianlaw.com
SONY CORP: Settles Employees' Data Breach Class Action
------------------------------------------------------
Linn Freedman, Esq. -- lfreedman@rc.com -- of Robinson+Cole, in an
article for JDSupra, reports that the Sony data breach in 2014 was
one of the most significant breaches experienced and was a first
on many fronts. It was alleged to have been caused by North Korean
hackers (calling themselves Guardians of Peace) seeking to disrupt
the release of the movie "The Interview," which did not look
kindly on North Korean leader Kim Jong-Un.
The hack caused substantial damage to Sony's computer system and
data and the release of confidential emails reverberated
throughout the entertainment industry. The intrusion also
included access to and posting the personal information of Sony's
employees on line.
As a result of the hacking incident, Sony employees filed a class
action lawsuit against Sony alleging poor security practices that
resulted in the release of their personal information. The class
included 437,000 certified class members. Although the settlement
was announced last fall, it was recently approved by a federal
judge in California.
The terms of the settlement include up to $10,000 per individual
who suffered identity theft losses, plus $1,000-$3,000 for the
initial named plaintiffs, providing identity theft protection
services for the class members through 2017, and a fund to
compensate members who paid for their own credit monitoring
following the breach. And on top of that, the settlement includes
$3.4 million for the attorneys.
SOUTH CAROLINA: "Rodriguez" Suit v. CHE Survives Bid to Dismiss
---------------------------------------------------------------
Judge Bruce Howe Hendricks denied the defendants' motion to
dismiss the case captioned ANTONIO ROJAS RODRIGUEZ, CRISTAL
CARRENO, and ALAN VELASQUEZ, on behalf of themselves and others
similarly situated, Plaintiffs, v. JOHN L. FINAN, et al.,
Defendants, Civil Action No. 2:15-CV-2317-BHH (D.S.C.). The judge
also denied the plaintiffs' motion for class certification with
permission to refile once an adequate factual record has been
developed.
The case is about regulations promulgated by the South Carolina
Commission on Higher Education (CHE) that have been interpreted to
classify students who are U.S. citizens residing in the State of
South Carolina, and dependent upon parents with undocumented
federal immigration status also residing in South Carolina, as
non-residents for purposes of in-state tuition, state financial
aid, and state scholarship eligibility. The plaintiffs alleged
that this classification as non-residents is unjustly and
unconstitutionally applied to them solely because of their
parents' unlawful immigration status, and violates their right to
equal protection of the laws under the Fourteenth Amendment to the
U.S. Constitution.
The plaintiffs filed their motion for class certification on June
12, 2015. The CHE defendants filed their motion to dismiss or for
judgment on the pleadings on July 27, 2015, seeking dismissal on
the basis of absolute legislative immunity.
The CHE defendants argued that the plaintiffs' motion for class
certification was premature, and requested that the motion not be
heard until such time as discovery directed at class
certification-related issues could be completed. Judge Hendricks
agreed with the CHE defendants and denied the motion for class
certification with permission to refile once relevant discovery
has been completed.
On the other hand, the plaintiffs' argued that the CHE defendants'
claim to legislative immunity is misplaced because the actions
they are challenging as unconstitutional were taken in an
administrative or enforcement capacity. Judge Hendricks, however,
found that the face of the complaint is entirely non-specific as
to what "administrative and enforcement" actions CHE defendants
may have taken that resulted in the alleged consitutional harm.
Nonetheless, the judge found that the plaintiffs have alleged a
plausible claim for relief, and denied the defendants' motion to
dismiss.
A full-text copy of Judge Hendricks' March 31, 2016 opinion and
order is available at http://is.gd/7tu9wHfrom Leagle.com.
Antonio Rojas Rodriguez, Cristal Carreno, Alan Velasquez,
Plaintiffs, represented by Steve Suggs, SC Appleseed Legal Justice
Center, Tammy Lynn Besherse, SC Appleseed Legal Justice Center,
Eunice Hyunhye Cho, Southern Poverty Law Center, pro hac
vice,Gillian Brett Gillers, Southern Poverty Law Center, pro hac
vice, James M Knoepp, Southern Poverty Law Center, pro hac vice,
Michelle Rose Lapointe, Southern Poverty Law Center, pro hac vice
& Susan Beth Berkowitz, SC Appleseed Legal Justice Center.
John L Finan, Clark Parker, Jennifer Settlemyer, Tim Hofferth,
Terrye Seckinger, Charles Munns, Bettie Rose Horne, Dianne Kuhl,
Kim Phillips, Hood Temple, Louis Lynn, Allison Dean Love, Paul
Batson, Evans Whitaker, Julie Carullo, Defendants, represented by
Andrew F Lindemann -- alindemann@dml-law.com -- Davidson Morrison
and Lindemann.
STERLING INFOSYSTEMS: "Nunez" Suit Seeks Damages Under FCRA
-----------------------------------------------------------
Arian Nunez, individually and on behalf of the classes, the
Plaintiff, v. Sterling Infosystems, Inc., the Defendant, Case No.
1:16-cv-02738 (S.D.N.Y., April 12, 2016), seeks statutory damages,
punitive damages, injunctive relief, reasonable costs and
attorneys' fees, and other appropriate relief as determined by the
Court, under the Fair Credit Reporting Act (FCRA).
Defendant provides consumer reports for employment purposes, i.e.
providing background checks to employers for their use in making
decisions about people who may work for them, including for use in
taking adverse employment action, e.g., termination, failure to
hire, and failure to promote.
The Plaintiff is represented by:
Joseph A. Fitapelli, Esq.
Nicholas P. Melito, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street
New York, NY 10005
Telephone: (212) 300 0375
- and -
Kai H. Richter, Esq.
Anna P. Prakash, Esq.
Brock J. Specht, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256 3200
TERRAFORM POWER: June 3 Lead Plaintiff Bid Deadline Set
-------------------------------------------------------
Hagens Berman Sobol Shapiro LLP, a national investor-rights law
firm, alerts TerraForm Power, Inc. investors of the June 3, 2016
lead plaintiff deadline in the securities class action lawsuit
related to defendants' alleged false and misleading statements
and/or failures to disclose the ineffectiveness of TerraForm
Power's internal controls.
If you suffered significant losses because of your purchases of
TerraForm Power stock between May 7, 2015 and March 15, 2016 or
have information that will help our investigation contact Hagens
Berman Partner Reed Kathrein, who is leading the firm's
investigation by calling 510-725-3000, emailing TERP@hbsslaw.com
or visiting https://www.hbsslaw.com/cases/TERP
The lawsuit was filed in the U.S. District Court for the District
of Maryland, Greenbelt Division and investors have until June 3,
2016 to move the court to participate as a lead plaintiff.
The class action complaint alleges that Defendants made false
and/or misleading statements and/or failed to disclose that: (1)
TerraForm's Management Services Agreement with SunEdison exposed
TerraForm to risks associated with SunEdison's internal financial
controls and any deficiencies therein; (2) consequently, TerraForm
lacked effective internal financial controls; and, (3) as a
result, TerraForm's public statements were materially false and
misleading at all relevant times.
On February 29, 2016, SunEdison announced that it would not timely
file its 2015 Form 10-K with the SEC because, in part, its Audit
Committee was investigating whether SunEdison's anticipated
financial position was accurate. The same day, TerraForm also
announced it would not timely file its 2015 Form 10-K because of
"the need to complete all steps and tasks necessary to finalize
the Company's annual financial statements and other
disclosures[.]" Both companies stated they expected to file their
Forms 10-K by March 15, 2016. On March 16, 2016, both companies
announced further delays in their filings. SunEdison explained its
management identified material weaknesses in its internal
controls. TerraForm explained "if there are control deficiencies
at SunEdison, including with respect to the systems we utilize, it
is necessary for us to assess whether those deficiencies could
affect our financial reporting[.]" On this news, TerraForm stock
fell $0.83, or 7.87%, to close at $9.72 on March 16, 2016.
Whistleblowers: Persons with non-public information regarding
TerraForm Power, Inc. should consider their options to help in the
investigation or take advantage of the SEC Whistleblower program.
Under the new SEC whistleblower program, whistleblowers who
provide original information may receive rewards totaling up to 30
percent of any successful recovery made by the SEC. For more
information, call Reed Kathrein at 510-725-3000 or email
TERP@hbsslaw.com
About Hagens Berman
Hagens Berman -- http://www.hbsslaw.com-- is headquartered in
Seattle, Washington with offices in 10 cities. The Firm
represents investors, whistleblowers, workers and consumers in
complex litigation.
THIRD AVENUE: "Matthews" Class Suit Transferred to S.D. New York
----------------------------------------------------------------
The class action lawsuit entitled Scott Matthews, individually and
on behalf of all others similarly situated v. Third Avenue
Management LLC; Third Avenue Trust; M.J. Whitman LLC; Martin J.
Whitman; David M. Barse; Jack W. Aber; William E. Chapman, II;
Lucinda Franks; Edward J. Kaier; Marvin Moser; Eric Rakowski;
Martin Shubik; Charles C. Walden; Vincent J. Dugan; W. James Hall
III; Michael Buono; Thomas Lapointe; Nathaniel Kirk; Edwin Tai;
and Joseph Zalewski, Case Number: 2:16-cv-00770, was transferred
from the United States District Court - District of California
Central to the U.S. District Court Southern District of New York
(Foley Square). The District Court Clerk assigned Case No. 1:16-
cv-02760-PKC to the proceeding.
The case asserts claims for Securities Act violation.
Third Avenue Management LLC operates an open-end management
investment company that consists of different investment series.
The Plaintiff is represented by:
J. Alexander Hood, Esq.
Jeremy Alan Lieberman, Esq.
POMERANTZ LLP
600 Third Avenue 20th Floor
New York, CA 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: ahood@pomlaw.com
jalieberman@pomlaw.com
- and -
Patrick Vincent Dahlstrom, Esq.
POMERANTZ LLP
10 South LaSalle Street, Suite 3505
Chicago, IL 60603
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: pdahlstrom@pomlaw.com
- and -
Jennifer Pafiti, Esq.
POMERANTZ LLP
468 North Camden Drive
Beverly Hills, CA 90210
Telephone: (310) 285-5330
Facsimile: (212) 661-8665
E-mail: jpafiti@pomlaw.com
The Defendant is represented by:
Robert David Weber, Esq.
DLA PIPER US LLP
North Tower
2000 Avenue of the Stars Suite 400
Los Angeles, CA 90067-4704
Telephone: (310) 595-3000
Facsimile: (310) 595-3309
E-mail: robert.weber@dlapiper.com
- and -
John P. Coffey, Esq.
Jonathan M. Wagner, Esq.
KRAMER LEVIN NAFTALIS AND FRANKEL LLP
1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 715-9456
Facsimile: (212) 715-8456
E-mail: scoffey@kramerlevin.com
jwagner@kramerlevin.com
THIRD AVENUE: Violated Securities Act, "Bhat" Suit Claims
---------------------------------------------------------
Suprabha Bhat, individually and on behalf of all others similarly
situated, the Plaintiff, v. Third Avenue Management LLC, Third
Avenue Trust, M.J. Whitman LLC, Martin J. Whitman, David M. Barse,
Jack W. Aber, William E. Chapman II, Lucinda Franks, Edward J.
Kaier, Marvin Moser, Eric Rakowski, Martin Shubik,
Charles C. Walden, Vincent J. Dugan, W. James Hall III, Michael
Buono, Thomas Lapointe, Nathaniel Kirk, Edwin Tai, and Joseph
Kalewski, the Defendants, Case No. 1:16-cv-02761-UA (C.D. Cal.,
April 13, 2016), seeks rescissory damage, costs, expenses
including reasonable attorneys' fees, accountants' fees, experts'
fees and other disbursements, pursuant to the Securities Act of
1933.
Plaintiff alleges that the Third Avenue Focused Credit Fund
(Fund), its investment advisor, underwriter, trustees, officers,
and other Defendants violated the Securities Act by registering,
offering, and selling shares of the Fund pursuant to false and
misleading registration statements and prospectuses.
Third Avenue Management (Adviser) is the manager and investment
adviser of the Fund and chooses the Fund's investments and handles
its day-to-day business. The Adviser is headquartered at 622 Third
Avenue, New York, New York 10017.
The Plaintiff is represented by:
Valerie L. Chang, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
11755 Wilshire Blvd., 15th Floor
Los Angeles, CA 90025
Telephone: (323) 510 4060
Facsimile: (866) 300 7367
E-mail: vchang@sfmslaw.com
THIRD AVENUE: Violated Securities Act, "Tran" Suit Claims
---------------------------------------------------------
Loi Tran, and on behalf of persons who purchased Institutional and
Investor class shares of Third Avenue Focused Credit Fund (Fund)
(Ticker Symbols: TFCIX (Institutional shares) and TFCVX (Investor
shares), the Plaintiffs, v. Third Avenue Management LLC; Third
Avenue Trust; M.J. Whitman LLC; Martin J. Whitman; David M. Barse;
Jack W. Aber; William E. Chapman, II; Lucinda Franks; Edward J.
Kaier; Marvin Moser; Eric Rakowski; Martin Shubik; Charles C.
Walden; Vincent J. Dugan; W. James Hall Iii; Michael Buono; Thomas
Lapointe; Nathaniel Kirk; Edwin Tai; and Joseph Zalewski; the
Defendants, Case No. 1:16-cv-02758-UA (C.D. Cal., April 13, 2016),
enjoins Defendants from continuing to engage in the violations of
law, and seeks pre-judgment and post-judgment interest, reasonable
costs and expenses incurred, including counsel fees and expert
fees, equitable, injunctive or other relief, pursuant to the
Securities Act of 1933 (Securities Act).
Plaintiff alleges that the Fund, its investment advisor,
underwriter, trustees, officers, and other Defendants violated the
Securities Act by registering, offering, and selling shares of the
Fund pursuant to false and misleading registration statements and
prospectuses.
Third Avenue Management (Adviser) is the manager and investment
adviser of the Fund and chooses the Fund's investments and handles
its day-to-day business. The Adviser is headquartered at 622 Third
Avenue, New York, New York 10017.
The Plaintiff is represented by:
Alan W. Sparer, Esq.
Marc Haber, Esq.
SPARER LAW GROUP
100 Pine Street, 33rd Floor
San Francisco, CA 94111-5128
Telephone: (415) 217 7300
Facsimile: (415) 217 7307
E-mail: asparer@sparerlaw.com
mhaber@sparerlaw.com
THIRD AVENUE: Faces Inter-Marketing Securities Class Action
-----------------------------------------------------------
Inter-Marketing Group USA, Inc., individually and on behalf of all
others similarly situated, the Plaintiff, v. Third Avenue Trust,
Third Avenue Management LLC, M.J. Whitman LLC, Martin J.
Whitman, David M. Barse, Vincent J. Dugan, William E. Chapman, II,
Lucinda Franks, Edward J. Kaier, Eric Rakowski, Martin Shubik,
Charles C. Walden and Patrick Reinkemeyer, the Defendants, Case
No. 1:16-cv-02759-UA (C.D. Cal., April 13, 2016), seeks damages
and interest, rescission and/or a rescissory measure of damages,
reasonable costs, including attorneys' fees, and
equitable/injunctive or other relief pursuant to Securities Act.
Plaintiff alleges that the Fund, its investment advisor,
underwriter, trustees, officers, and other Defendants violated the
Securities Act by registering, offering, and selling shares of the
Fund pursuant to false and misleading registration statements and
prospectuses.
Third Avenue is an open-ended management investment company
focused on value investing, and specifically the purchase of
undervalued assets based on fundamental analysis. Third Avenue
Focused Credit Fund ("Focused Credit Fund" or the "Fund") is a
mutual fund within the Third Avenue family of investment funds
that seeks to achieve long-term total returns mainly by investing
in bonds and other types of credit instruments, including in a
substantial proportion of non-investment grade assets commonly
known as "high-yield" or "junk" bonds.
The Plaintiff is represented by:
David Conrad Walton, Esq.
Brian E. Cochran, Esq.
Samuel H. Rudman, Esq.
David A. Rosenfeld, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Telephone: (619) 231 1058
E-mail: davew@rgrdlaw.com
bcochran@rgrdlaw.com
srudman@rgrdlaw.com
drosenfield@rgrdlaw.com
TOBIRA THERAPEUTICS: Class Action Settlement in the Works
---------------------------------------------------------
Tobira Therapeutics, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that the parties in the
stockholder class actions related to a merger are preparing a
stipulation of settlement to be submitted to the Court for
approval.
On May 4, 2015, Regado Biosciences, Inc., or Regado, completed its
business combination with Tobira Development, Inc. (formerly known
as Tobira Therapeutics, Inc.) in accordance with the terms of an
Agreement and Plan of Merger and Reorganization, dated January 14,
2015 and amended on January 23, 2015, or the Merger Agreement.
On February 2, 2015, a purported stockholder of Regado filed a
putative class-action lawsuit (captioned Maiman v. Regado
Biosciences, Inc., C.A. No. 10606-CB) in the Court of Chancery for
the State of Delaware, or the Court, challenging the proposed
stock-for-stock merger of Regado with Tobira, or the Proposed
Merger.
On February 25, 2015, a second, related putative class action
(captioned Gilboa v. Regado Biosciences, Inc., C.A. No. 10720-CB)
was filed in the Court challenging the Proposed Merger. On May 4,
2014, the Proposed Merger was consummated and Tobira became a
wholly-owned subsidiary of Regado and changed its name to Tobira
Development, Inc.
The complaints name as defendants: (i) each member of Regado's
Board of Directors, (ii) Regado, (iii) Private Tobira, and (iv)
Landmark Merger Sub Inc. Plaintiffs alleged that Regado's
directors breached their fiduciary duties to Regado's stockholders
by, among other things, (a) agreeing to merge Regado with Private
Tobira for inadequate consideration, (b) implementing a process
that was distorted by conflicts of interest, and (c) agreeing to
certain provisions of the Merger Agreement that are alleged to
favor Private Tobira and deter alternative bids. Plaintiffs also
generally alleged that the entity defendants aided and abetted the
purported breaches of fiduciary duty by the directors.
On March 25, 2015, the Court consolidated the two actions and
assigned lead counsel for plaintiffs (captioned In re Regado
Biosciences, Inc. Stockholder Litigation, Consolidated C.A. No.
10606-CB). On March 27, 2015, plaintiffs filed a consolidated
amended complaint, a motion for expedited proceedings and a motion
for preliminary injunction.
On April 20, 2015, the parties agreed in principle to resolve the
litigation (subject to approval by the Court) and signed a
memorandum of understanding setting forth the terms of a proposed
settlement to provide additional disclosures related to the Merger
Agreement and to cover Court-awarded fees. On April 23, 2015, as
part of the proposed settlement, Regado provided additional
disclosures to its stockholders. Since then, the parties have
engaged in confirmatory discovery and are currently preparing a
stipulation of settlement to be submitted to the Court for
approval.
As of December 31, 2015, the Company is unable to reasonably
estimate an amount and/or a range of loss until the Company is
made aware of the fees awarded by the Court to the plaintiffs
under the proposed settlement, if any, as administered under
settlement law. The Company maintains D&O insurance and tail
coverage with deductibles of $2.0 million and $1.5 million,
respectively.
TOSHIBA AMERICA: Faces "Martinez" Suit Over False Advertising
-----------------------------------------------------------
Brandon Martinez, Jeff Pile and Diana Rodriguez, on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
Toshiba America Information Systems, Inc., Toshiba Corporation,
Toshiba Lifestyle Products & Services Corporation, the Defendants,
Case No. 2:16-cv-02551 (C.D. Cal., February 18, 2016), seeks to
recover damages and restitution in connection with the purchase of
Toshiba-brand televisions that were allegedly marketed and
advertised by Toshiba as "LED TVs", "LED HDTVs" or "LED
televisions".
According to the complaint, the televisions at issue are not "LED
TVs", but instead are LCD TVs that use light emitting diodes
(LEDs) instead of cold cathode fluorescent lights (CCFLs) to light
the liquid crystal display (LCD) panel that is present in each of
the televisions.
Plaintiffs also seek an injunction: (a) requiring Toshiba to
engage in a corrective advertising campaign to alert consumers as
to the true nature of these televisions; (b) prohibiting Toshiba
from continuing falsely to market and advertise such televisions
as "LED TVs, " "LED HDTVs, " or "LED televisions, "and (c)
requiring Toshiba to recall and re-label all such televisions that
have already been distributed for re-sale, but not yet sold to
retail customers.
Toshiba America Information Systems, through its subsidiaries,
manufactures electronics products in the United States. The
company's products include notebook and desktop computers; laptop
and tablet personal computers; laptop accessories; projectors;
servers; digital business telephone systems; voice processing
systems; industrial video products; system solutions for the cable
industry; digital, medical, and PC cameras; digital camcorders;
Blu-ray disc players, a line of LED and LCD HDTVs; security
imaging systems; and USB-powered mobile LCD monitors and portable
hard disk drives.
The Plaintiff is represented by:
Jonathan Shub, Esq.
KOHN SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Telephone: (215) 238 1700
Facsimile: (215) 238 1968
E-mail: jshub@kohnswift.com
TRAVELERS INSURANCE: Data Breach Class Action Ruling Affirmed
-------------------------------------------------------------
Jo-Ellyn Sakowitz Klein, Esq. -- jsklein@akingump.com -- Natasha
Kohne, Esq. -- nkohne@akingump.com -- Michelle Reed, Esq. --
mreed@akingump.com -- David Turetsky, Esq. --
dturetsky@akingump.com -- and Lauren York, Esq. --
lyork@akingump.com -- of Akin Gump Strauss Hauer & Feld LLP, in an
article for JDSupra, report that the Fourth Circuit affirmed that
Travelers Insurance ("Travelers") must defend Portal, a medical
records company, against a class action suit stemming from an
alleged cyber "publication" of its customers' personal health
information. Most importantly, the court held that availability
on the internet to the general public qualified as "publication,"
as the term is contemplated in the general liability policy
Travelers provided to Portal. Courts have previously split on
whether cyber breaches are covered under such commercial general
liability ("CGL") policies. The holding strengthens the tenet
that making any document or information available on the internet
is "publication," even though internet publication is different
from more traditional print media publication.
Background
In April 2013, Portal was sued in a class action in New York by
two plaintiffs who Googled their names and found the first search
result linked to their confidential medical records, hosted on a
website maintained by Portal. The plaintiffs alleged negligence,
breach of warranty and breach of contract, arguing that their
private medical records were freely accessible online for four
months as a result of Portal's tortious conduct.
Portal sought coverage for the class action under its CGL.
Travelers insured Portal under two policies: one that spanned the
period from January 2012 to January 2013 and one that spanned from
January 2013 to January 2014. These policies provided that
Travelers must insure against damages arising from "electronic
publication of material that" gives "unreasonable publicity to" or
"discloses information" about a "person's private life."
Travelers rejected coverage and instead sued Portal in the Eastern
District of Virginia, seeking a declaration that it was under no
obligation to defend Portal, because the class action complaint
failed to allege a "publication" and thus failed to fall within
the scope of Portal's general liability policy. See Travelers
Indem. Co. v. Portal Healthcare Solutions, LLC, 35 F. Supp.3d 765
(E.D. Va. 2014).
The district court employed the "Eight Corners Rule," which
instructs courts to look to the four corners of the underlying
complaint as well as the four corners of the underlying insurance
policies. Accordingly, the court looked at the plain meaning of
the Travelers policy. First, the district court adopted the
dictionary definition of "publication" to mean "to place before
the public (as through a mass medium)." The court determined that
the general availability of the records online was "publication"
within this plain meaning. Travelers mounted two arguments that
the availability of the records online did not qualify as
publication: (1) the "entire purpose" of Portal's services was to
keep medical information confidential and (2) because no third
party was alleged to have viewed the information, there could be
no publication. The court dismissed both easily, reasoning that
neither a party's intent to publish the information nor a third
party's viewing of the information was required by the definition.
Next, the district court defined "publicity" as "the quality or
state of being obvious or exposed to the general view," and
"disclosure" as "the act or process of making known something that
was previously unknown; a revelation of facts." The court stated
definitively that "[t]here can be no question that posting medical
records online without security restrictions exposes the records
to the general view and thus, gives the records 'publicity' since,
quite literally, any member of the public can view, download, or
copy those records." Travelers argued that no "publicity"
occurred when Portal posted the records online because Portal did
not take steps designed to attract public interest, and that
Portal's conduct did not "disclose" the patients' privates lives
because the patients in the class action only viewed their own
records.
Ultimately, the district court concluded that the complaint at
least "potentially or arguably" alleged a "publication" of private
medical information that would constitute conduct under the two
policies. Thus, Travelers was responsible for defending Portal in
the class action suit.
On appeal, the 4th Circuit noted the district court's "sound legal
analysis" and held that "[g]iven the eight corners of the
pertinent documents, Travelers's efforts to parse alternative
dictionary definitions do not absolve it of the duty to defend
Portal." Travelers Indem. Co. v. Portal Healthcare Solutions, LLC,
No. 14-1944 (4th Cir. Apr. 11, 2016).
Analysis and Potential Impact of the Travelers Decision
While the Portal decision is a big win for companies, its impact
will likely be limited by the CGL policies currently being issued.
CGL policies typically cover insureds for damages due to injury to
"tangible" property and/or due to an invasion of the right to
privacy (e.g., publication of private information). Data breaches
present unusual circumstances and consequences for CGL policies.
Millions of individuals can be affected by a single data breach
that may have existed for years undetected. Given this
uncertainty, most insurers have tightened up CGL policies to
specifically exclude data breaches.
While the Travelers court applied Virginia's Eight Corners
doctrine, regardless of circuit or state law, the court's decision
points to perhaps a broader understanding of "publication" in a
digital age. When records or other information are posted online
without encryption, they are generally accessible in the same way
a book in a library is accessible. Whether a third party views
the information is likely to become less important in courts'
future analysis of elements like "publication" in the insurance
context when considered in a digital setting.
TREASURY WINE: Investor Can't Use US Procedure for Discovery
------------------------------------------------------------
Alan Mitchell, Esq. -- alan.mitchell@hsf.com -- and Helen Mould,
Esq. -- helen.mould@hsf.com -- of Herbert Smith Freehills LLP, in
an article for Lexology, report that a plaintiff in an Australian
shareholder class action has been unsuccessful in his attempt to
use US procedure to depose the defendant's former employees who
live in New York and California.
Handed down on April 13 by the Full Federal Court, the decision in
Jones v Treasury Wine Estates Limited [2016] FCAFC 59,1 also
restrained a US-based institutional investor (a group member in
the class action) from using the US procedure.
Background
In September/October 2015, lawyers for the plaintiff and an
institutional investor filed proceedings in the United States
District Courts (Northern District of California and the Southern
District of New York) seeking to invoke a US procedure (under 28
USC Sec 1782 of the US Federal Rules of Civil Procedure) to
conduct discovery for use in a foreign proceeding (namely, the
Australian class action). The discovery was sought to be obtained
through examination by oral questions, or deposition.
The US proceedings were issued without notice to the defendant or
the Australian Court, and before their existence was notified to
the defendant, the Californian Court had made orders permitting
the issue of subpoenas for the taking of depositions from two of
the named individuals, and the New York Court had ordered that a
third individual show cause as to why orders should not be made
permitting the issue of a subpoena to him.
Application to prevent depositions
The defendant applied to the Federal Court for an anti-suit
injunction to restrain the plaintiff and investor from pursuing or
participating in the depositions.
The Chief Justice of the Federal Court determined that the matter
was of sufficient importance that it be referred directly to the
Full Court for hearing.
Defendant's application for anti-suit injunction successful
The Full Court granted the relief sought by the defendant. The
Full Court accepted the defendant's submission that the Court's
recent discovery reforms and case management regime would, in the
circumstances of the case, be undermined by the US proceedings
unless the injunctive relief were granted. The Court found that
the applications for depositions were patently made in order to
obtain the benefit of processes not usually available in the
Australian Court.
The Full Court's judgment states that it is vital that its
proceedings and pre-trial processes are solely subject to
supervision by it, particularly in the context of a class action.
The Court observed that anti-suit injunctions have been granted
previously by the Federal Court and other Australian Courts in
order to protect their processes (eg in Pathway Investments Pty
Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495).
Approach in future matters?
The Court did not rule out that Australian parties' legal
representatives might invoke the US procedure in future, but it
held that orders for depositions under the US Sec. 1782 procedure
will only be permitted in exceptional cases and such orders should
not be obtained without notice to the other party and without the
prior knowledge and endorsement of the Australian Court.
TRI-STATE WATER: "Bauer" Suit Moved to S.D. Illinois
----------------------------------------------------
Michael Bauer and Stacey Bauer, individually and on behalf of
others similarly situated, the Plaintiffs, v. Tri-State Water
Treatment, Inc., Tri-State Water Treatment, Inc., Home Depot
U.S.A., Inc., and Aquion Inc. doing business as: Rainsoft, the
Defendants, Case No. 15-SC-1407, was removed from the Madison
County Court, to the US District Court for the Southern District
of Illinois (East St. Louis). The District Court assigned Case No.
3:16-cv-00419 to the proceeding.
Tri-State Water Treatment provides RainSoft(TM) water and products
to customers in the St. Louis, Illinois and surrounding areas.
The Plaintiffs are represented by:
Troy E. Walton, Esq.
SCHOEN WALTON TELKEN & FOSTER, LLC - EDWARDSVILLE
241 North Main St.
Edwardsville, IL 62025
Telephone: (618) 307 9880
E-mail: twalton@schoenwalton.com
The Defendants are represented by:
Russell K. Scott, Esq.
GREENSFELDER, HEMKER & GALE PC - SWANSEA
12 Wolf Creek Drive, Suite 100
Swansea, IL 62226
Telephone: (618) 257 7308
E-mail: rks@greensfelder.com
TRIBUNE CO: 2nd Cir. Affirms Dismissal of Unsec. Creditors Claims
-----------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit has affirmed a
lower court order dismissing claims by Tribune Company unsecured
creditors against Tribune's former shareholders.
The case before the Second Circuit is, In Re Tribune Company
Fraudulent Conveyance Litigation, Docket Nos. 13-3992-cv, 13-3875-
cv, 13-4178-cv, 13-4196-cv.
Representatives of certain unsecured creditors of the Chapter 11
debtor Tribune Company appeal from Judge Sullivan's grant of a
motion to dismiss their state law, constructive fraudulent
conveyance claims brought against Tribune's former shareholders.
Appellants seek to recover an amount sufficient to satisfy
Tribune's debts to them by avoiding (recovering) payments by
Tribune to shareholders that purchased all of its stock. The
payments occurred in a transaction commonly called a leveraged
buyout, soon after which Tribune went into Chapter 11 bankruptcy.
The unsecured creditors appeal the district court's dismissal for
lack of statutory standing. The appellees cross-appeal from the
district court's rejection of their argument that appellants'
claims are preempted.
In its decision dated March 29, 2016, a copy of which is available
at http://is.gd/EeE3Llfrom Leagle.com, the Second Circuit
addressed two issues:
(i) whether appellants are barred by the Bankruptcy Code's
automatic stay provision from bringing state law, constructive
fraudulent conveyance claims while avoidance proceedings against
the same transfers brought by a party exercising the powers of a
bankruptcy trustee on an intentional fraud theory are ongoing; and
(ii) if not, whether the creditors' state law, constructive
fraudulent conveyance claims are preempted by Bankruptcy Code
Section 546(e).
"On issue (i), we hold that appellants are not barred by the
Code's automatic stay because they have been freed from its
restrictions by orders of the bankruptcy court and by the debtors'
confirmed reorganization plan. On issue (ii), the subject of
appellees' cross-appeal, we hold that appellants' claims are
preempted by Section 546(e)," Judge Ralph K. Winter, Jr., writing
for the Second Circuit panel, held. "That Section shields from
avoidance proceedings brought by a bankruptcy trustee transfers by
or to financial intermediaries effectuating settlement payments in
securities transactions or made in connection with a securities
contract, except through an intentional fraudulent conveyance
claim."
"We therefore affirm," Judge Winter said.
* * *
Tribune Media Company said in its Form 10-K Report filed with the
Securities and Exchange Commission on February 29, 2016, for the
fiscal year ended December 31, 2015, that on or about June 2,
2011, Deutsche Bank, Law Debenture and Wilmington Trust Company,
as indenture trustees for Tribune Company's senior noteholders and
PHONES, and, separately, certain retirees, filed approximately 50
complaints in over 20 different federal and state courts, seeking
to recover amounts paid to all former shareholders of Tribune
Company whose stock was purchased or cash settled in conjunction
with the Leveraged ESOP Transactions under state law constructive
fraudulent transfer causes of action (collectively and as
subsequently amended, the "SLCFC Actions").
Those complaints named over 2,000 individuals and entities as
defendants, included thousands of "doe" defendants, and also
asserted defendant class actions against the balance of the
approximately 38,000 individuals or entities who held stock that
was purchased or redeemed via the Leveraged ESOP Transactions. The
named defendants also included a Debtor subsidiary of Reorganized
Tribune Company, certain current employees of Reorganized Tribune
Company and certain benefit plans of Reorganized Tribune Company.
The SLCFC Actions were independent of the Litigation Trust
Preserved Causes of Action and were brought for the sole benefit
of the senior noteholders and PHONES and/or certain retirees and
not for the benefit of all of the Company's creditors.
On August 16, 2011, the plaintiffs in the SLCFC Actions filed a
motion to have all the SLCFC Actions removed to federal court
during the pre-trial stages through multi-district litigation
("MDL") proceedings before a single judge. All but one of these
actions were transferred on December 19, 2011 (or by additional
orders filed in early January 2012) to the United States District
Court for the Southern District of New York (the "NY District
Court") under the consolidated docket numbers 1:11-md-02296 and
1:12-mc-02296 for pre-trial proceedings. The NY District Court
entered a case management order on February 23, 2012 allowing all
pending motions to amend the complaints in the SLCFC Actions and
directing the defendants to form an executive committee
representing defendants with aligned common interests. The NY
District Court imposed a stay of proceedings with respect to the
SLCFC Actions for all other purposes.
The one SLCFC Action that was not transferred to the NY District
Court is pending before a state court. However, no current or
former employees, directors, officers or subsidiaries of
Reorganized Tribune Company are named defendants in that action.
In related actions, on December 19, 2011, the Zell Entity and
related entities filed two lawsuits in Illinois state court
alleging constructive fraudulent transfer against former
shareholders of Tribune Company. These suits proposed to protect
the Zell Entity's right to share in any recovery from fraudulent
conveyance actions against former shareholders. These actions were
independent of the Litigation Trust Preserved Causes of Action.
By order dated June 11, 2012, the MDL panel transferred one of the
lawsuits to the NY District Court to be heard with the
consolidated SLCFC Actions in the MDL proceedings, while the other
was subsequently voluntarily dismissed.
On March 15, 2012, the Bankruptcy Court entered an order,
effective June 1, 2012, lifting the stay in each of the SLCFC
Actions and the FitzSimons Complaint. On March 20, 2012, the MDL
panel entered an order transferring the FitzSimons Complaint to
the NY District Court to be heard with the consolidated SLCFC
Actions in the MDL proceedings.
By order dated August 3, 2012, the MDL panel transferred the
Committee Advisor Complaint to the NY District Court to be heard
with the FitzSimons Complaint and the consolidated SLCFC Actions
in the MDL proceedings. By order dated May 21, 2013, the MDL panel
transferred 18 Preference Actions seeking to recover certain
payments made by Tribune Company to certain of its current and
former executives in connection with the Leveraged ESOP
Transactions from the Bankruptcy Court to the NY District Court
for coordinated or consolidated pretrial proceedings with the
other MDL proceedings.
The NY District Court presiding over the MDL proceedings held a
case management conference on July 10, 2012 for the purpose of
establishing the organizational structure of the cases, a schedule
for motions to dismiss and discovery and other issues related to
the administration of such proceedings, but otherwise stayed all
other activity. On September 7, 2012, the NY District Court issued
a case management order ("Master Case Order No. 3") designating
liaison counsel for the plaintiffs and various defendant groups
and approved the formation of the executive committee for
plaintiffs' counsel and defendants' counsel.
In accordance with Master Case Order No. 3, counsel for the
defendants filed motions to dismiss the SLCFC Actions based on
certain statutory and jurisdictional defenses (the "Phase One
Motions to Dismiss").
The plaintiffs filed their responses to the Phase One Motions to
Dismiss on December 21, 2012. The NY District Court heard oral
arguments on the Phase One Motions to Dismiss on May 23, 2013 and
on May 29, 2013 issued an order denying certain of those motions
in their entirety and reserving a decision on certain defenses
raised by the defendants.
On September 23, 2013, the NY District Court entered an order
dismissing the SLCFC Actions (except for the one action, pending
in California state court, which had not been transferred to the
MDL) and the related action filed by the Zell Entity that was
consolidated with the SLCFC Actions. The plaintiffs in the SLCFC
Actions filed a notice of appeal of that order on September 30,
2013.
The defendants' liaison counsel filed a joint notice of cross-
appeal of that order on behalf of all represented defendants on
October 28, 2013.
The U.S. Court of Appeals for the Second Circuit heard oral
arguments on the appeals on November 5, 2014. The appeals remain
pending. No appeal of the order was lodged by the Zell Entity.
Tribune Media Company is a diversified media and entertainment
business.
TRIFECTA PHARMACEUTICALS: Faces ARcare Suit in S. D. Fla.
---------------------------------------------------------
A lawsuit has been filed against Trifecta Pharmaceuticals USA,
LLC. The case is captioned ARcare, doing business as: Parkin Drug
Store, on behalf of itself and all others similarly situated, the
Plaintiff, v. Trifecta Pharmaceuticals USA, LLC, the Defendant,
Case No. 0:16-cv-60825-CMA (S. D. Fla., April 14, 2016). The
Assigned Judge is Hon. Cecilia M. Altonaga.
Trifecta manufactures and supplies pharmaceuticals,
nutraceuticals, and medical devices.
The Plaintiff is represented by:
Louis I. Mussman, Esq.
Brian Tse-Hua Ku, Esq.
KU & MUSSMAN PA
6001 NW 153 STREET, Suite 100
Miami Lakes, FL 33014
Telephone: (305) 891 1322
Facsimile: (305) 891 4512
E-mail: louis@kumussman.com
brian@kumussman.com
TRISTAR PRODUCTS: "Celmins" Suit Moved to District of New Jersey
----------------------------------------------------------------
Susan Celmins, On behalf of herself and all others similarly
situated, the Plaintiff, v. Tristar Products, Inc., and Does 1-10,
the Defendants, Case No. ESX-L-01575-16, was removed from Superior
Court of New Jersey Essex County, to the US District Court for the
District of New Jersey (Newark). The District Court assigned Case
No. 2:16-cv-02068-SDW-LDW to the proceeding.
Tristar Products engages in the manufacture and sale of home
appliances, fitness equipment, sports gears, and health and beauty
programs. The Company is based in Fairfield, New Jersey.
The Plaintiff is represented by:
Bruce Daniel Greenberg, Esq.
LITE DEPALMA GREENBERG, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623 3000
E-mail: bgreenberg@litedepalma.com
The Defendants are represented by:
Liza M. Walsh, Esq.
CONNELL FOLEY LLP
One Newark Center
1085 Raymond Blvd., 19th Floor
Newark, NJ 07102
Telephone: (973) 757 1100
E-mail: lwalsh@connellfoley.com
UBER TECHNOLOGIES: "Zawada" Suit Seeks Damages Under FLSA
---------------------------------------------------------
Artur Zawada and Nashat Farha, individually and on behalf of all
others similarly situated, the Plaintiffs, v. Uber Technologies,
Inc. and Raiser, LLC, the Defendants, Case No. 2:16-cv-11334-LJM-
SDD (E.D. Mich., April 12, 2016), seeks to recover damages and
other appropriate equitable and injunctive relief, pursuant to the
Fair Labor Standards Act (FLSA).
The Defendant allegedly failed to remit the drivers the gratuities
that Uber improperly retains for itself; and misclassified the
drivers as independent contractors, when in fact they are
employees under state law, depriving them of statutorily required
benefits including minimum wage, overtime pay, workers'
compensation, and health insurance.
Uber Technologies provides e-commerce services for car hire. The
company offers a website that allows users to request a car for
hire from any mobile device text message. Uber serves customer
worldwide and is based in San Francisco California.
The Plaintiff is represented by:
Bruce T. Wallace, Esq.
William J. Stapleton, Esq.
Oscar A. Rodriguez, Esq.
Adam M. Linkner, Esq.
126 South Main Street
Ann Arbor, MI 48104
Telephone: (734) 662 4426
E-mail: bwallace@hooperhathaway.com
wstapleton@hooperhathway.com
orod@hooperhathaway.com
alinkner@hooperhathaway.com
UNITED RECOVERY: Faces "Ballaj" Suit in Dist. New Jersey
--------------------------------------------------------
A lawsuit has been filed against United Recovery Systems, LP. The
case is being captioned Valbona Ballaj, on behalf of herself and
those similarly situated, the the Plaintiff, v. United Recovery
Systems, LP, and John Does 1-10, the Defendant, Case No. 2:16-cv-
02089-KM-JBC (D.N.J., April 14, 2016). The Assigned Judge is Hon.
Kevin McNulty.
United Recovery Systems provides accounts receivable management
services to issuers in credit card, retail, commercial, and
deficiency loan industries. It offers services in the areas of
credit card, home finance, auto finance, and insurance. United
Recovery Systems, LP was founded in 1977 and is based in Houston,
Texas with additional offices in Texas, Oklahoma, Arizona,
Illinois, Kentucky, and Maryland.
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Ave., 2 Fl.
Hackensack, NJ 07601
Telephone: (201) 273 7117
Facsimile: (201) 273 7117
E-mail: ykim@kimlf.com
UNITED SERVICES: Fewer Than 5% of Victims Filed Claims
------------------------------------------------------
Mark Friedman, writing for Arkansas Business, reports that fewer
than 5 percent of the victims in a controversial class-action case
returned claim forms, according to a letter released on April 14
by the federal judge who is considering sanctions against the
attorneys involved in the case.
During a show-cause hearing held in February, U.S. District Judge
P.K. Holmes III asked how many claims had been made in the case of
Mark and Katherine Adams v. United Services Automobile
Association. That case had been in Holmes' court for 17 months
before it was dismissed in June 2015 and refiled the next day in
Polk County Circuit Court for purposes of settling the case.
Judge Holmes has threatened the 17 attorneys with sanctions for
abuse of the court system, but the attorneys representing both the
plaintiffs and defendant have denied doing anything wrong. Holmes
has not yet issued a decision on sanctions.
David Matthews of Rogers, an attorney representing the USAA's
counsel in the case, wrote the letter labeled "confidential" to
Holmes on Feb. 23. The court docket doesn't indicate why the
letter was released on April 14.
Mr. Matthews said in the letter that, as of Feb. 22, a total of
14,988 notices were mailed to potential class members and an
additional 39 notices were mailed to those who requested them. As
of Feb. 20, only 651 claim forms had been returned. USAA had not
determined the value of those claims, he said.
"The information being provided herein regarding the number of
claims made in the state court settlement is not relevent to the
[federal] court's sanctions inquiry because this information was
not known until long after the federal court proceeding
concluded," Mr. Matthews wrote.
The terms of the settlement called for the plaintiffs' firms to
receive $1.85 million in attorneys' fees and expenses while USAA
would have to set aside $3.4 million to pay potential claims.
Any money not claimed by members of the plaintiff class would be
returned to USAA.
Usually the percentage of claims made in a class-action settlement
is low, according to court filings by Ted Frank, director of the
Competitive Enterprise Institute's Center for Class Action
Fairness in Washington.
"If we generously assume that the claims rate in this case is
around 20 percent . . . the class will receive about $0.7
million," Mr. Frank said in a court filing in the case. The
actual percentage was 4.3 percent, according to the results
revealed in Mr. Matthews' letter.
UNITED SERVICES: Judge to Impose Nonmonetary Sanctions on Lawyers
-----------------------------------------------------------------
Patrick Danner, writing forSan Antonio Express-News, reports that
an Arkansas federal judge intends to impose nonmonetary sanctions
on lawyers for San Antonio-based USAA, as well as those
representing thousands of its members, after finding elements of
"collusion" in settlement negotiations that "benefited everyone
but" the members who sued the company.
Chief U.S. District Judge P.K. Holmes III in Fort Smith, Arkansas,
found the attorneys abused the judicial process by using the
federal court system as a "bargaining chip," he said in his ruling
on April 14. USAA lawyers, in particular, used the court to
negotiate a settlement designed to result in a lower payout for
the members in exchange for higher fees for their lawyers.
Judge Holmes found that the lawyers sought to avoid his review of
a negotiated settlement by agreeing to dismiss a class-action
lawsuit filed on behalf of some 14,000 USAA members in federal
court and then refiling it the very next day in state court, where
the lawyers knew the settlement would receive more favorable
treatment.
"This gamesmanship is improper in any case," Judge Holmes wrote in
his 32-page ruling.
Finding the lawyers actions "a serious violation," Judge Holmes
ruled that he intends to make them disclose in any future motions
to settle class-action cases in Arkansas federal courts that they
have been sanctioned for "improper conduct." USAA, itself, was
not sanctioned.
The USAA members originally sued the insurer over its homeowners
insurance practices in late 2013 in Polk County Circuit Court in
Arkansas, but the company moved the case in early 2014 to federal
court.
The lawsuit accused USAA of improperly calculating the costs --
and reimbursements -- for labor and other expenses to repair
damaged property as part of a homeowner's claim. USAA disputed the
allegations.
According to a previous order from Holmes, the lawyers on June 16
signed settlement papers that referenced the legal venue as Polk
County Circuit Court even though the case remained in federal
court. A motion to dismiss the case was filed in federal court
three days later on June 19. The dismissal was granted June 22.
The state court certified the settlement class and gave
preliminary approval for the settlement on Aug. 22.
While more than 15,000 notices had been sent out to USAA members,
Holmes noted only 651 claims were filed as of Feb. 20. Though the
class stands to receive $3.4 million from the settlement, the
judge wrote he "can conceive of no set of circumstances" where the
payout to the 651 claims will result in a payout of the entire
settlement amount.
"Despite this 4% claims rate, when the settlement was given final
approval (the members') counsel were simultaneously awarded
$1,850,000 in fees and expenses," Judge Holmes wrote. The USAA
members' lawyers "have embraced the practice of negotiating
lucrative attorney's fees from various defendants using the threat
of class action as leverage, as evidenced by their willingness
here to negotiate a settlement that primarily benefits (them) and
USAA."
Judge Holmes added that "the rights of class members to object and
to appeal the settlement have been significantly curtailed through
a settlement that has at least some hallmarks of collusion."
USAA has been represented in the class-action lawsuit by the law
firms Robinson & Cole LLP of Hartford, Connecticut, and Mitchell,
WIlliams, Selig, Gates & Woodyard PLLC of Little Rock, Arkansas.
USAA spokesman Roger Wildermuth referred questions to the law
firms, saying the "sanctions are targeted at the lawyers
representing both sides in this case, and not USAA." Lawyers for
both firms couldn't immediately be reached for comment.
Judge Holmes indicated he will issue a final order imposing
sanctions after a hearing on June 16, unless he decides otherwise.
Paul Love, an Arkansas lawyer for the Center for Class Action
Fairness, said he expects the lawyers will appeal the ruling.
"As severe as this sanction is, the judge showed remarkable
restraint," Love said. "He could have done worse." He added that
it's the practice of forum shopping that is the villain, not the
lawyers.
"The attorneys are going to survive, but the effect will be to
stop this practice," he said.
UNITED SERVICES: Attorneys' Conduct Abuse of Judicial System
------------------------------------------------------------
Arkansas Democrat-Gazette reports that Chief U.S. District Judge
P.K. Holmes described the actions of attorneys in Adams v. United
Services Automobile Association (USAA) as an abuse of the judicial
system during the class-action case's movement between state and
federal courts. A timeline of events as listed in the judge's
April 14 order:
Dec. 5, 2013 -- Plaintiffs' lawyers file case in Polk County
Circuit Court.
Jan. 15, 2014 -- Case is "properly removed" to federal court in
Arkansas' Western District and assigned to Holmes.
May 5, 2014 -- Court stays the case to allow for mediation on
joint motion of both sides.
September 2014 -- During that mediation, the possibility of
dismissing this action and refiling in Arkansas state court
"became a term in negotiations."
December 2014-March 2015 -- Holmes grants two more stays to allow
mediation.
March 16, 2015 -- Lawyers say they have almost reached a
settlement and ask for a one-month extension of the stay. Holmes
denies it and asks for a written update.
March 31, 2015 -- "The parties reached a settlement agreement in
principle." The terms include "dismissal of this action and
refiling in Polk County, Arkansas" state court.
April 15, 2015 -- Attorneys file a report with Holmes "proposing
"several dates for continued litigation of this action in this
Court."
May 5, 2015 -- Holmes enters "a final scheduling order" based on
the April 15 report.
June 16, 2015 -- Without Holmes' knowledge, the parties execute "a
settlement agreement identifying the reviewing court as the
Circuit Court of Polk County."
June 19, 2015 -- Plaintiff and defense attorneys jointly dismiss
the case in federal court.
June 23, 2015 -- Attorneys refile the case in Polk County, asking
for approval of a settlement "that the parties had negotiated and
executed while appearing in this [federal court] action."
Aug. 26, 2015 -- Polk County Circuit Court approves a preliminary
settlement agreement. "Only 651 claims" were filed by the class
suing USAA, but the final settlement awarded "$1.85 million in
fees and expenses to plaintiffs' attorneys," Judge Holmes notes in
the April 14 order.
Dec. 14, 2015 -- Holmes first learns that the case had been
refiled in Polk County (after an article in Arkansas Business).
Dec. 21, 2015 -- The Polk County Circuit Court enters a final
order approving settlement and awarding attorneys' fees.
Dec. 21, 2015 -- The same day as the state court order, Holmes
issues a show-cause order for more than two dozen attorneys
involved in Adams v. USAA to explain why they shouldn't be
sanctioned for unethical behavior involving court forum-shopping
to benefit themselves, wasting government resources and
"inappropriate procedural gamesmanship."
WENDY'S COMPANY: Faces "Torres" Class Action in Florida
-------------------------------------------------------
The Wendy's Company said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that the Company was named as
a defendant in a civil complaint that was filed in the U.S.
District Court for the Middle District of Florida on February 8,
2016 by plaintiff Jonathan Torres. The complaint asserts claims of
breach of implied contract, negligence and violations of the
Florida Unfair and Deceptive Trade Practices Act arising from the
Company's alleged failure to safeguard customer credit card
information and the alleged failure to provide notice that credit
card information had been compromised. The complaint seeks
certification of a putative nationwide class of consumers impacted
by the alleged failures. The plaintiff seeks monetary damages,
injunctive and equitable relief, attorneys' fees, and costs. The
Company believes it has meritorious defenses to the action and
intends to vigorously oppose the claims asserted in the complaint.
WEST BANCORPORATION: Iowa Supreme Court Rules in "Legg" Appeal
--------------------------------------------------------------
West Bancorporation, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 3, 2016, for the
fiscal year ended December 31, 2015, that the Iowa Supreme Court
has affirmed and reversed parts of a trial court's rulings in a
class action lawsuit.
On September 29, 2010, West Bank was sued in a class action
lawsuit filed in the Iowa District Court for Polk County.
Plaintiffs, Darla and Jason T. Legg, asserted nonsufficient funds
fees charged by West Bank on debit card transactions were usurious
under the Iowa Consumer Credit Code and that the sequence West
Bank formerly used to post debit card transactions for payment
violated various alleged duties of good faith and ordinary care.
Plaintiffs sought alternative remedies including injunctive
relief, damages (including treble damages), punitive damages,
refund of bank fees, and attorney fees.
The trial court entered orders on preliminary motions on March 4,
2014. It dismissed one of Plaintiffs' claims and found that
factual disputes precluded summary judgment in West Bank's favor
on the remaining claims. In addition, the court certified two
classes for further proceedings. West Bank appealed the adverse
rulings to the Iowa Supreme Court.
On January 22, 2016, the Iowa Supreme Court filed two opinions
that affirmed and reversed parts of the trial court rulings. The
court reversed the trial court by holding the Iowa Consumer Credit
Code usury claim and an unjust enrichment claim should be
dismissed. Certification of classes on those claims was also
reversed. The court affirmed the trial court by holding that the
Plaintiffs can proceed with a breach of express contract claim
based on a 2006 change in debit card payment sequencing coupled
with the alleged lack of notice concerning that change.
West Bank believes it has additional defenses to this claim and
intends to continue vigorously defending the action after it is
remanded to the district court. The amount of potential loss, if
any, cannot now be reasonably estimated due to significant
additional unresolved factual and legal issues that must be
determined through further proceedings.
ZIMMER DENTAL: Seeks Approval of Junk Fax Class Action Settlement
-----------------------------------------------------------------
Robert Patrick, writing for St. Louis Post-Dispatch, reports that
a federal judge here was asked on April 14 to approve a $1.6
million class action settlement that could mean up to $180 per
copy for dental businesses that claimed an Indiana company sent
tens of thousands of unsolicited "junk" faxes.
The Sunset Hills dental office that filed the suit stands to get
$10,000 as the class representative.
But Sunset Tower Family Dentistry office manager Barney dePenaloz
said that he was not motivated by the money. "I was getting 40
faxes a day," he said, from multiple senders. "You can't get them
to stop."
The dental office's 2015 lawsuit against Zimmer Dental Inc. and an
employee said that they were subjected to a "prolonged junk fax
assault" of 19 faxes from Zimmer in seven months, some coming only
seven days apart. He said that he started collecting the Zimmer
faxes several months after they began arriving.
Zimmer, based in Indiana, sells dental implants and other
products. The company denied any wrongdoing as part of the
settlement. A spokesperson did not respond to a call seeking
comment, and its lawyer deferred to the company.
The lawsuit says the Zimmer faxes were unwanted and did not
provide a fax number, as required by law. They also did not
provide the mandatory opt-out notice stating that "failure to
comply, within 30 days, of a recipient's request to the sender not
to send future faxed advertisements is unlawful," the suit says.
The faxes did show a phone number to a voice line.
In court on April 14, lawyer Ronald J. Eisenberg told U.S.
District Judge Ronnie White that it was a "great outcome" that
came after "a lot of challenges." Judge White had stayed the case
while Zimmer applied to the Federal Communications Commission for
a waiver, he said, and while three cases with potential to impact
the suit went to the U.S. Supreme Court.
Mr. Eisenberg called the settlement "unique," citing the minimum
settlement of $1.6 million that meant at least $100 would go to
members of the class for each fax. Of 36,215 potential fax
recipients, just over 10 percent, or 3,709, responded to a mailed,
or faxed, notice of the settlement.
Of those, 486 went to Missouri and 1,530 went to Illinois, court
filings show.
Mr. Eisenberg said that 3,600 submitted a simple claim that will
likely earn $180 for each fax. In a separate category, the 109
with proof of the number of faxes they received will get $180 per
fax.
He said that the second group averaged 20 faxes, and therefore
will receive an average of $3,600.
"Which is pretty much unheard of in a TCPA class-action
settlement," Eisenberg said, referring to the Telephone Consumer
Protection Act.
The plaintiffs' lawyers will receive $533,333.
Zimmer lawyer David Almeida agreed with much of what
Mr. Eisenberg said, calling the settlement "incredibly robust." He
encouraged White to approve it.
Judge White granted preliminary approval of the settlement in
November. The claims deadline expired in February. Judge White
told lawyers on April 14 that he would take their motion to
approve the settlement under advisement.
The class included anyone who received one of Zimmer's faxes since
Feb. 17, 2011, as long as the recipient didn't either have an
established business relationship with Zimmer or hadn't given the
company permission to send a fax. The faxes also had to be
lacking notices that the recipient could halt them by calling or
faxing a number.
The TCPA regulates telemarketing calls and faxes, and carries a
potential penalty of $1,500 per fax for "knowing and willful"
violations. The law has been cited in a recent wave of class
action lawsuits that have netted multimillion-dollar settlements.
The U.S. Chamber of Commerce said that the suits are surging and
have gone beyond targeting telemarketers to target individual
businesses.
WebRecon LLC, which primarily tracks suits against debt
collectors, said that TCPA lawsuits representing 14 litigants were
filed in 2007. By 2015, that number, which includes all types of
TCPA lawsuits, had skyrocketed to 3,710.
* House Democrats Call for Limits on Use of Mandatory Arbitration
-----------------------------------------------------------------
Jessic Silver-Greenberg and Michael Corkery, writing for The
New York Times, report that a handful of House Democrats took to
the floor of Congress on April 14 to call for an overhaul of
arbitration, a private justice system for resolving disputes that
is often slanted against consumers.
Beginning the unusual session was Representative Hank Johnson of
Georgia, a ranking member of the House Judiciary Committee. He
implored Congress to strictly curtail the use of mandatory
arbitration, in which judges and juries are supplanted by
arbitrators who often consider the companies their clients.
Joined by lawmakers from across the country, Mr. Johnson urged the
passage of a bill he introduced that would prevent civil rights
cases, like employment discrimination disputes, and other critical
lawsuits from being pushed into arbitration. The impact of
arbitration clauses, he noted, is especially devastating for women
trying to fight gender discrimination in the workplace.
"Buried in the fine print of everything from consumer contracts
and employee handbooks to nursing home agreements, forced
arbitration clauses insulate corporations from accountability by
eliminating access to the courts for untold consumers and
workers," Mr. Johnson said.
The special session is part of diverse efforts across the country
to prevent companies from inserting arbitration clauses in
contracts.
Also on April 14, Representative David N. Cicilline, Democrat of
Rhode Island, announced plans to introduce a bill in the coming
weeks that would ensure that service members can go to court.
It is an uphill battle.
Today, it is virtually impossible to rent a car, get a job, borrow
money for college or enroll an elderly parent in a nursing home
without signing away the right to go to court. The clauses,
buried in the fine print of tens of millions of contracts, bar
Americans from banding together in a class-action lawsuit, the
only realistic way that an individual with limited resources can
fight a wealthy corporation.
In his remarks on April 14, Mr. Johnson cited an investigation by
The New York Times, saying that it "pulled back the curtain and
cataloged the immense harms of forced arbitration."
In its investigation, based on thousands of court records and
interviews with hundreds of lawyers, judges and arbitrators in 35
states, The Times found that, by using arbitration clauses,
corporations can circumvent the courts and quash challenges to
elder abuse, discrimination, rape, predatory lending and even
wrongful death.
Corporations, casting the lawsuits as little more than frivolous
litigation, have said that class actions are not needed because
arbitration allows individuals to resolve their grievances, one by
one, without the headaches of court. But The Times found that
once blocked from going to court, most people simply dropped their
claims.
The Times found, for example, that from 2010 through 2014, only
505 consumers went to arbitration over a dispute involving $2,500
or less.
Those who do go confront a system that gives companies so much
latitude that, in some cases, they can require customers to go to
Christian arbitration, which is bound by the Bible rather than
state or federal law.
Since the series by The Times, which was published last year,
lawmakers have increased the pressure on the Obama administration
to use executive authority to prohibit federal contractors from
requiring arbitration. Efforts to curtail arbitration go beyond
the White House.
Last year, attorneys general from 16 states and the District of
Columbia urged the federal government to deny Medicaid and
Medicare money to nursing homes that use the clauses. Other
efforts to scale back arbitration are underway. In a preliminary
step, the Department of Education is discussing whether to deny
federal funds to schools that include arbitration clauses in their
enrollment contracts.
Representative Maxine Waters, Democrat of California, introduced a
bill last year that would cut off student aid funding for schools
that use arbitration clauses.
"It is time for Congress to reconsider the value of predispute
mandatory arbitration agreements," Representative John Conyers
Jr., Democrat of Michigan, said in a statement on April 14,
arguing that Congress should also back the Arbitration Fairness
Act, a bill that would give consumers a choice, once a dispute
arises, to go to court or arbitration.
"Legislation that protects consumers and employees is a common-
sense solution for all Americans," he said.
* Most of 2015 Securities Class Action Filings Disclosure-Related
-----------------------------------------------------------------
Thomas Gorman, Esq. -- gorman.tom@dorsey.com -- of Dorsey &
Whitney LLP, in an article for JDSupra, reports that a new report
on securities class actions records an increase in the number of
filings in 2015. Most of those actions were brought against
smaller issuers, according to the report. PWC, Small Companies,
Big Targets -- 2015 Securities Litigation Study (April
2016)(here).
Over the last decade the number of securities class actions filed
each year has generally increased. Last year 195 actions were
filed compared to 110 in 2006. In contrast there were 169 filings
in 2014, 160 in 2014 and 149 in 2012. The highest number of cases
brought in the last ten years was 209 in 2008 followed by 187 in
2011. The number of filings over the last three years has been an
inverse reflection of the S&P 500 -- as the index dropped the
number of cases filed increased, according to the findings of PWC.
Perhaps of more interest is the target of the suits -- "no company
is too small" as the report states. In 2015 the largest number of
cases were brought against small cap issuers, that is, those with
a market cap of $300 million to $2 billion. The next largest
group of suits targeted micro cap issuers -- those with a market
cap of under $300 million. Indeed, the largest group of issuers
targeted in securities class actions in 2012, 2013 and 2014 were
also those in the small cap and micro cap range.
Other key findings of the study include:
Accounting issues: Accounting issues were alleged in only 26% of
the cases filed in 2015, down from the prior year. Of those
brought, about 42% centered on revenue recognition while 30%
involved the understatement of liabilities and expenses. Overall
since 2011 the number of securities class actions centered on
accounting issues has generally declined.
Disclosure issues: In 2015 most of the cases brought involved
disclosure related issues. Those included issues involving IPOs,
M&A transactions, false or misleading statements and the late
disclosure of negative information.
Foreign issuers: Last year the number of cases filed involving
foreign issuers increased slightly to 22% compared to 21% the
prior year. Most of the actions filed in 2015 targeted China and
Canada related firms. Over the last decade the largest percentage
of actions filed against foreign issues was in 2011 at 33%.
SEC: The SEC filed 135 accounting and disclosure cases in fiscal
2015 of the 807 total cases initiated by the agency. That
represents an increase from the 96 accounting and disclosure cases
filed in fiscal 2014 and 68 in 2013. The 135 SEC actions filed
last year only resulted in one follow-on action. In contrast, the
disclosure by an issuer of an SEC and/or DOJ investigation or
inquiry triggered at least six
accounting-related cases in 2015.
* German Law Allows Data Breach Class Actions Against Businesses
----------------------------------------------------------------
Dechert LLp reports that a German law recently came into effect
that permits consumer protection associations and other
associations to bring "class action"-like claims1 against
businesses and file for injunctions for breach of German data
protection law.2
Under this law, consumer protection associations, industry and
commerce chambers and other approved business associations now
have legal standing to bring lawsuits against businesses for non-
compliance with data protection laws. These associations and
industry and commerce chambers are separate from the data
protection authorities of the German states and did not have this
authority before. The new law essentially creates a new
independent private supervisory authority in these associations
and industry and commerce chambers and will likely encourage
inspections of improper use of consumer data. Consequently, this
law will significantly strengthen the enforcement of data
protection laws in Germany and may potentially result in a wave of
collective legal actions for data protection breaches.
The new enforcement powers of these associations and chambers will
also have a noteworthy impact on foreign companies outside
Germany, including those that have their headquarters or
affiliates in the U.S. and that receive personal data from
Germany.
Background on data protection claims
Before Germany adopted this law, affected individuals, data
protection authorities and German criminal prosecutors were the
only plaintiffs that had legal standing to sue businesses for
violations of German data protection law. Especially for affected
individuals, it was often difficult, expensive and intimidating to
identify and challenge violations of data protection laws of big
corporations.
Consumer protection associations were only permitted to sue
businesses in data protection cases if contract clauses or
business conditions violated consumer protection law. The new law
amends Germany's Act on Actions for Injunctions. The amendment
enables consumer protection associations and the other mentioned
associations to allege claims against companies for improper use
of consumer data. These associations now have legal standing if
the processing is for the following purposes: advertising,
marketing and opinion research, creation of personal profiles,
addresses or data trading and similar commercial data processing
operations.
What is the impact on businesses?
Businesses that process personal data for these purposes may now
face an augmented risk that their processing of data protection
will be subject to strict scrutiny by affected consumers and
various associations -- increasing the likelihood that data
protection violations will be detected. It will be important for
businesses to avoid claims for violations of data protection laws
and the negative reputational effects that businesses may suffer
after a lawsuit for a breach of data protection.
Protection for companies that used "Safe Harbor" in international
data transfer
Consumer protection associations and industry and commerce
chambers cannot bring claims for violations of international data
transfer rules, if the businesses relied on the "Safe Harbor"
agreement between the U.S. and Europe and based the data transfer
on this agreement before the Court of Justice to the European
Union ("CJEU") decision on October 6, 2015, Schrems v. Data
Protection Commissioner of Ireland which declared this agreement
invalid on the basis that it did not provide enough guarantees
that data on EU citizens will remain safe when transferred to the
U.S.3
This explicit exclusion of claims for data transfer based on the
Safe Harbor agreement is to prevent disadvantaging German
businesses that relied on that framework in good faith prior to it
being declared invalid. The exclusion will be effective until
September 30, 2016. It does not apply to any further data
transfers and German businesses that transfer personal data for
the aforementioned purposes to the U.S. will need to ensure that
another legitimizing method to ensure "adequacy" of the protection
of that data is utilized (such as model contracts or -- when it is
adopted [expected shortly] -- Privacy Shield).
Other EU member states and the future
Germany's move to permit actions by consumer associations and
chambers goes further than most prominent European countries.
Italy, Spain and the UK do not permit such actions, and though
France permits claims by consumer groups, its limited scope does
not cover data protection breach. However, there is a general
movement throughout Europe (on this and other consumer issues) to
allow collective redress. In data protection, further changes
will be effective as part of the coming into force of the General
Data Protection Regulation ("GDPR") (to be formally adopted in
April 2016) in 2018. The GDPR contains two relevant provisions:
It contains a right for a data subject to mandate a representative
body (which fulfills certain requirements including that it is not
for profit and that it has the public interest as its statutory
objective) to exercise some of its rights; namely, to lodge a
complaint with a regulator, to seek a judicial remedy against the
regulator and to seek an effective judicial remedy against a
controller or a processor. In addition, the member states may
allow the representative body (mandated by the individual) to
exercise the individual's right to compensation, but this
provision is not obligatory.
It also allows (but does not oblige) a member state to allow the
representative body to bring actions directly against regulators,
controllers or processors (even without a data subject mandate).
In other words, there will be partial harmonization on this area,
following the entry into force of the GDPR, but not full
harmonization in respect of certain important rights (the right to
allow a body to bring an action for compensation and the option on
direct actions). However, the new legal standing of the German
associations and industry and commerce chambers to bring a claim
would be available for corresponding groups throughout Europe. The
position will still vary from country to country.
Conclusion
It remains to be seen whether the new German law will lead to
significant activity by the German associations and industry and
commerce chambers and whether this type of action (strictly, not a
"class action" as understood in U.S. law) will have significant
effect for the benefit of protecting consumer rights. Nonetheless,
German companies (and indeed companies throughout the EU and the
U.S. as the GDPR looms) should be expecting closer scrutiny from
regulators and will be well advised to ensure their compliance
programs are refreshed.
*********
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.
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