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/raid1/www/Hosts/bankrupt/CAR_Public/160601.mbx C L A S S A C T I O N R E P O R T E R Wednesday, June 1, 2016, Vol. 18, No. 109 Headlines ACEBO ROOFING: "Robles" Suit Seeks to Recover Overtime Pay APPLE INC: Won't Give Reimbursements for iPhone "Error 53" ARIZONA PUBLIC: 9th Cir. Affirms NERC Class Action Dismissal AUSTRALIA: Insulation Businesses Mull Class Action Over HIP BARCLAYS: 2nd Circuit Upholds Ruling in Antitrust Case BELL CANADA: July 15 Class Action Opt-Out Deadline Set BEYOND SYSTEMS: Consent To Injury Used to Avert Repeat Plaintiffs BOEHRINGER INGELHEIM: Faces Five Class Suits in Conn. Super. Ct. CALIFORNIA: Dept. Faces Class Action Over Fire Prevention Fee CANADA: Lions Club Opts Out of Windsor Bingo Class Action CHARTER COMMUNICATIONS: "Cova" Suit Removed to E.D. Mo. CLINTON ENTERTAINMENT: Certification of Class of Dancers Sought CONTINENTAL CASUALTY: Class Certification Sought in "Daluge" Suit DEVRY UNIVERSITY: Won't Bar Students From Filing Class Actions DISH NETWORK: "Cozart" Suit Seeks to Recover OT Pay Under FLSA DOLAR SHOP: Faces Chen Lin Suit Over FLSA, NY Labor Law Violation DOMINO'S PIZZA: New York AG Files Wage Theft Class Action DOVER, OH: Immigrant Advocacy Group Files Class Action DREAMWORKS ANIMATION: No-Poach Class Action Can Proceed DS SERVICES: Court Denies Prelim. OK of "Eddings" Suit Settlement E&M ASSOCIATES: Landlord Faces Class Action Over Labor Violations EGGCETERA CAFE: Faces "Campos" Class Action in Illinois EPIC SYSTEMS: Can't Use Arbitration to Avert Collective Action FACEBOOK INC: "Gallo" Sues Over Fake Webpage FIDELITY MANAGEMENT: Faces ERISA Class Action Over BrokerageLink FINS CONSTRUCTION: Certification of Class Sought in "Lopez" Suit FLOWERS FOODS: Bid for Class Certification in "Carr" Suit Denied FORD MOTOR: Certification of Ford Explorer Owners Class Sought GENERAL MILLS: Judge Tosses Class Action Over Hazardous Waste GENERAL MOTORS: Fuel Economy Case Settlement May Cost $100MM GERAWAN FARMING: Judge Allows Wage Class Action to Proceed GERBER PRODUCTS: High Court Upholds $3MM Judgment in Wage Suit GOYA FOODS: Faces False Advertising Class Action in California GRUNLEY CONSTRUCTION: Vasquez Seeks Certification of DCMWRA Class HARRIS CTY, TX: McGruder Seeks Certification of Arrestees Class HESKA CORPORATION: Class Certification Sought in "Fauley" Suit HONEST CO: Faces "Cesarini" Suit Over False Product Advertising IRON PROTECTION: "Bartz" Suit Asserts FLSA, Col. Wage Law Breach JEFFERSON PARISH, LA: Begins Refund of Red Light Camera Tickets KCBX TERMINALS: Settles Petcoke Class Action for $1.4 Million LANDRY'S INC: Certification of Class Sought in "Griffith" Action LENDINGCLUB CORPORATION: "Evellard" Sues Over Share Price Drop LEXISNEXIS: CCAF Urges Supreme Court to Review Settlement LIBERTY INN: Faces "Arellano-Castillo" Suit in Illinois LIBERTY MUTUAL: Class Can Bring Simultaneous ERISA Claims LOS ANGELES, CA: Agency on Deafness Seeks Class Certification MARRIOT OWNERSHIP: "Lennen" Suit Alleges Breach of Contract MARRIOTT VACATION: Faces Class Action Over Timeshare Sales MCLEOD EXPRESS: Downs Wants to Send Court-Approved Class Notices MEDSTAR HEALTH: Class of 9 Dept-Specific Collectives Certified MICROSOFT CORP: July 25 Class Action Opt-Out Deadline Set MID-CENTRAL EDUCATIONAL: Faces Class Action Over GEAR UP Grants MONDELEZ INT'L: Faces Class Action Over Snack Foods Slack Fill MOORE STEPHENS: 2nd Cir. Affirms Securities Class Action Ruling NAT'L FOOTBALL: Rejects Improper Influence Claim Over NIH Study NATIONAL COLLEGIATE: "Hermann" Files Suit Over Players' "TBI" NATIONAL COLLEGIATE: Faces "Miller" Suit Over Players' "TBI" NATIONAL COLLEGIATE: Faces "Seals" Suit Over Players' "TBI" NATIONAL COLLEGIATE: Faces "Walthour" Suit Over Players' "TBI" NATIONAL HOCKEY: Concussion Suit in Minn. Advances NEK: Faces Second Class Action Over Alleged Fraud NEW YORK: Bill to Repeal Tampon Sales Tax Gets Final Court OK P.J. 2035: "Elizalde" Suit Seeks to Recover Unpaid Wages PANDA EXPRESS: Doesn't Pay Overtime, Calif. Class Suit Says PAPA'S MEAT MARKET: "Garza" Suit Seeks to Recover Min., OT Pay PERRIGO CO: Faces Securities class Action in New Jersey REAL TIME RESOLUTIONS: Wins Prelim. OK of "Tannlund" Class Deal ROCKHURST UNIVERSITY: Faces Data Breach Class Action ROYAL OAK, MI: Lawmakers Attempt to Avert 2004 Flooding Suits RUCKUS WIRELESS: Faces "Borrego" Lawsuit Over Merger with Brocade SAC CAPITAL: September 23 Settlement Fairness Hearing Set SNAPCHAT: Collects Personal Info, Class Suit Says SOUTHERN WOLF: FLSA Class Certification Sought in "Figueroa" Suit SPOKEO INC: Supreme Court Ruling Also Poses Threats to Defendants SPOTIFY: Lowery, Ferrick's Suits Over Royalties Combined STAR LED LLC: "Reeder" Suit Seeks to Recover Overtime Pay SUNOCO: Class Action Over Fuel Rewards Card Benefits Can Proceed SUPERVALU INC: Class Certification May Lead to Settlement SWIFT TRANSPORTATION: "Castro" Lawsuit Alleges FLSA Violation TANGOE INC: Rosen Law Firm Files Securities Class Action TAURUS: Settles Class Action Over Defective Handguns for $30MM THERANOS INC: Faces False Advertising Class Action TRENCH FLOORING: "Robinson" Suit Seeks to Recover Overtime Pay UNITED KINGDOM: Damages Action in Kenya Mau Mau Case Begins VOLKSWAGEN AG: Class Action Mulled Over Tensioning System VOLKSWAGEN: German Investors Call for Independent Emissions Probe WEATHERFORD INT'L: Faces "Crowder" Suit Seeking OT Pay Under FLSA WILD WELL CONTROL: BTI/WWC Operators Seek Certification of Class WORKFIT MEDICAL: Judge Approves $2.1MM Class Action Settlement WPP GROUP: Faces "Blumberg" Suit Over Tracking Software on TVs WYNN LAS VEGAS: "Barrett" Suit Alleges Invasion of Privacy Act * American Businesses Urge Congress to Weaken Robocall Laws * Arbitration More Helpful to Class Members, Research Shows * Senate Commerce Eyes TCPA Dual-Track Strategy for Legislation ********* ACEBO ROOFING: "Robles" Suit Seeks to Recover Overtime Pay ---------------------------------------------------------- Elder Leopoldo Garcia Robles, Jairo Ovidio Garcia Robles, Fredy Otoniel Valladares Lopez a/k/a Alexandro Barrios, and all others similarly situated under 29 U.S.C. 216(b), Plaintiff, vs. Acebo Roofing Corp., Pedro L Acebo, Octavio E Acebo, Defendants, Case No. 1:16-cv-21817-FAM (S.D. Fla., May 20, 2016) seeks double damages, reasonable attorney fees, all overtime wages still owing, costs, interest and any other relief pursuant to the Fair Labor Standards Act. Plaintiffs worked for Defendants as roofers. They claim to have been denied overtime pay. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM APPLE INC: Won't Give Reimbursements for iPhone "Error 53" ---------------------------------------------------------- Shaun Nichols, writing for The Register, reports that a class of iPhone owners say that Apple has not lived up to its promise to reimburse customers for bricked handsets. A filing in the California Northern District Court seeks to move forward with a class action case against the Cupertino iPhone maker on behalf of customers whose phones were locked when a February firmware update rendered some handsets inoperable. The error was eventually traced back to the use of third-party screen replacements and Apple issued a fix to address the issue, but not before a class action lawsuit was filed on behalf of customers. Earlier this month, Apple moved to dismiss the case, claiming that by issuing an update to remedy the issue and offering to reimburse customers for the hardware repairs, it was no longer liable for the suit. "Apple has already corrected Error 53 for everyone (including Plaintiffs) by releasing a software 'fix' that allows affected devices to be restored and by reimbursing consumers who paid for 'out-of-warranty' repairs or purchased new devices (from Apple or otherwise) because of Error 53," Apple says. "Under the circumstances, there is nothing left to litigate and the claims in the [complaint] are all moot." The plaintiffs, meanwhile, say that Apple has not lived up to its claims of offering reimbursement, and they are now lobbying a challenge to the company's motion to dismiss the case. In their objection, attorneys for the aggrieved iPhone owners say that Apple has not specifically notified any iPhone owners, and has merely posted a web page with information on claiming a reimbursement. "Specifically, Apple's website stated: 'If you believe that you paid for an out-of-warranty device replacement based on an error 53 issue, contact Apple support to ask about reimbursement'," they argue. "Other than this vague reference to request reimbursement from Apple, its website is devoid of any details about the purported reimbursement program." The next hearing date in the case is scheduled for June 16th. ARIZONA PUBLIC: 9th Cir. Affirms NERC Class Action Dismissal ------------------------------------------------------------ Catherine P. McCarthy, Esq. and Blake Urban, Esq., of Bracewell LLP, in an article for The National Law Review, report that on March 2, 2016, in an unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") affirmed the judgment of the district court dismissing a class action suit brought by individuals and business entities located within the State of California (the "Plaintiffs") against the Arizona Public Service Company ("APS"). Waldon v. Ariz. Pub. Serv. Co., No. 14- 55076 (9th Cir. Mar. 2, 2016). The Plaintiffs alleged that APS violated North American Electric Reliability Corporation ("NERC") reliability standards adopted by the Federal Energy Regulatory Commission ("FERC"). They claimed that these violations caused an ensuing cascading blackout in 2011 that started in Arizona and spread to parts of California and Mexico, which resulted in the Plaintiffs incurring economic damages. The Plaintiffs argued that APS was negligent per se under Arizona law. The district court found that California law, not Arizona law, applied and dismissed the case under Fed. R. Civ. P. 12(b)(6) for failure to state a claim under California law. In affirming the district court, the Ninth Circuit found that, while a violation of a statute creates a presumption of negligence, it does not give the plaintiff a negligence cause of action if the law does not otherwise impose a duty on the defendant. "'In the absence of a contract between the utility and the consumer expressly providing for the furnishing of a service for a specific purpose, a public utility owes no duty to a person injured as a result of an interruption of service or a failure to provide service.'" Id. at 2-3 (quoting White v. S. Cal. Edison Co., 30 Cal. Rptr. 2d 431, 435-36 (Ct. App. 1994)). The Ninth Circuit concluded, because the Plaintiffs were not customers of APS and had no contractual claim to damages, the Plaintiffs failed to state a claim under California law. Further, the Ninth Circuit found that the Plaintiffs failed to state a claim under Arizona law because "[f]ederal electric-reliability standards . . . create a duty only between electric utilities and the government, and a violation of the reliability standards does not support a claim of negligence per se under Arizona law." Id. at 4 (citations omitted). Significantly, the Ninth Circuit also found that NERC reliability standards do not "proscribe certain or specific acts," but create "a general standard," which does not support negligence per se. Id. The Ninth Circuit added that "[a]ccepting the plaintiffs' theory would create broad state-law liability for public utilities under a federal statutory and regulatory scheme that would conflict with Arizona public policy." Id. at 5 (citing U.S. Airways, Inc. v. Qwest Corp., 361 P.3d 942, 949 (Ariz. Ct. App. 2015); Lips v. Scottsdale Healthcare Corp., 229 P.3d 1008, 1010 (Ariz. 2010) (en blanc) ("Courts have not recognized a general duty to exercise reasonable care for the purely economic well- being of others, as distinguished from their physical safety of their property. This reticence reflects concerns to avoid imposing onerous and possibly indeterminate liability on defendants and undesirably burdening courts with litigation." AUSTRALIA: Insulation Businesses Mull Class Action Over HIP ----------------------------------------------------------- Peter McCutcheon, writing for ABC News, reports that the botched Home Insulation Program, which dogged Labor during the last federal election, is now shaping up to be a headache for the Coalition Government. A campaign to support a class action for businesses devastated by the sudden collapse of the government program was set to be launched on May 25. It is claimed the payment scheme set up by the Coalition Government for affected businesses was woefully inadequate -- and the plaintiffs are seeking more than $120 million in damages. Matthew Hannam, whose company CIMCO has lost millions, is the lead plaintiff in the class action involving 50 businesses. His once- thriving insulation manufacturing plant in Brisbane lies mostly idle. "We keep it running to stop the thing from basically falling apart," he told 7.30. "We basically just get it up and running in case we ever get demand for the product again, which is not in the foreseeable future at the moment." He's one of hundreds of business owners who fell victim to the collapse of the Rudd government's Home Insulation Program. "It took a business that was basically operating since 1978, turned it upside down and destroyed it," he said. But the anger is now turning to the Coalition Government, with accusations it failed to deliver on promises of compensation. And a class action is in the offing. When the Rudd government introduced the program, it had ambitious plans to insulate more than 2.5 million homes in under three years. But it all came to a sudden halt in early 2010 because of four deaths, poor oversight and widespread fraud, sending many businesses to the wall. "The government had literally hijacked our entire industry and started involving itself in areas that in had no understanding, no expertise, and that was only ever going to end in disaster," Mr. Hannam said. "They reassured us, they promised us and then they pulled out the rug from underneath us right at the height of the program." Then-opposition leader Tony Abbott toured Mr. Hannam's factory -- situated in the heart of Kevin Rudd's electorate -- during the 2013 election campaign. "Government shouldn't let people down," Mr. Abbott said during the visit. "I mean sometimes governments make mistakes but it should never leave people high and dry and that's what's happened in this case." The Government has been deceitful: company owner Three years after Abbott's visit, Mr. Hannam feels he has been abandoned by the Coalition. "I think they've been deceitful," he said. Independent senator Nick Xenophon said insulation businesses had been let down by both Labor and the Coalition. "They are at their wits' end to get a just resolution to this nightmare," Senator Xenophon said. "This whole issue become a political football for the Coalition, now they've been in power for three years they've done nothing to resolve it." The Coalition delivered on its promise to set up a royal commission, but it also promised to help those businesses devastated by the failed program. The Abbott government last year introduced an industry payment scheme, but payouts were limited to registered installers -- manufacturers and deregistered companies missed out. Mark Farrell, the lawyer running the case, said the Government had promised compensation. "What was delivered was not compensation, it was extremely limited in numbers of clients and it excluded large numbers of both pre- existing and new businesses," he said. Industry minister Christopher Pyne was unavailable for an interview, but a spokesman told 7.30 the scheme had paid out nearly $13 million to 92 businesses, which was in line with the recommendations of the royal commission. "This compensation scheme doesn't match the rhetoric and promises of the Coalition," Senator Xenophon said. "It is a compensation scheme that abandons all those legitimate businesses that have lost an enormous amount of money because of the shut down of the scheme, and effectively it has left people high and dry." The liquidators of Mr. Hannam's installation business did receive a pay out, but his manufacturing company got nothing. "Compensating those who were damaged -- that's where they should draw the line, and they haven't done that," he said. Mr. Farrell said his clients were not looking to win the lottery. "All they want is fair compensation and that means compensation that relates to their actual losses -- that is the Australian way," he said. "A government needs to be held to same standard of behavior as they require of their citizens and their corporate citizens. "That's what our clients want." BARCLAYS: 2nd Circuit Upholds Ruling in Antitrust Case ------------------------------------------------------ Alison Frankel, writing for Reuters, reports that common sense has prevailed at the 2nd U.S. Circuit Court of Appeals in litigation over an alleged conspiracy among 16 global banks to manipulate the London Interbank Offered Rate (Libor), a key interest rate benchmark. The appeals court held on May 23 that price-fixing collusion among competitors is a violation of antitrust law, even if it takes place in the context of an ostensibly cooperative rate-setting process. The 2nd Circuit's 61-page opinion, written by Judge Dennis Jacobs for a panel that also included Judges Reena Raggi and Gerard Lynch, vacated a controversial 2013 decision in which U.S. District Judge Naomi Reice Buchwald of Manhattan tossed classwide antitrust claims because the Libor rate-setting process is collaborative, not competitive. The ruling revives the banks' exposure to potentially billions of dollars in damages from investors who say they were victimized by artificial Libor rates. Rate and market-rigging class actions against banks have become all the rage among antitrust plaintiffs' lawyers, who've won nearly $2 billion in settlements in consolidated litigation over alleged tampering with the market for credit default swaps and hundreds of millions of dollars in settlements tied to manipulation of foreign exchange benchmarks. The 2nd Circuit's Libor decision will only make the class action bar more excited about claiming collusion in the rate-setting process. International regulatory and criminal investigators have levied about $9 billion in fines and penalties against some of the banks involved in the Libor rate-setting process, including Barclays, Deutsche Bank and UBS. Internal documents released in government probes have shown some defendants manipulated the rate-setting process to make themselves appear more stable in the financial crisis and to give particular traders an advantage over counterparties. To derive the Libor rate, banks would submit reports of the rate at which other banks were willing to lend them money; those rates were winnowed and averaged to come up with a daily Libor figure. Judge Buchwald had said plaintiffs could not show their injury was tied to antitrust violations because banks did not compete with one another in the rate-setting process. The 2nd Circuit, however, said her reasoning was flawed. As sellers of securities that incorporated the Libor rate, the banks are competitors. Investors in Libor-pegged instruments, according to the appeals court, are buyers affected by the conspiracy. Plain and simple. "Schematically, appellants' claims are uncomplicated," the appellate opinion explained. "They allege that the banks, as sellers, colluded to depress LIBOR, and thereby increased the cost to appellants, as buyers, of various LIBORbased financial instruments, a cost increase reflected in reduced rates of return. In short, appellants allege a horizontal pricefixing conspiracy, 'perhaps the paradigm of an unreasonable restraint of trade.'" The panel rejected as "immaterial" the banks' arguments that Libor itself is not a product or a price and that the rules for setting the rate were implemented by the British Bankers' Association, not by the banks. "The crucial allegation is that the banks circumvented the LIBOR-setting rules, and that joint process thus turned into collusion," the 2nd Circuit said. Investors "have alleged an anticompetitive tendency: the warping of market factors affecting the prices for LIBORbased financial instruments. No further showing of actual adverse effect in the marketplace is necessary." The 2nd Circuit also held there's no question that investors have raised plausible claims of a conspiracy so their case can't be dismissed as inadequately pleaded. "Close cases abound on this issue, but this is not one of them," the opinion said. "These allegations evince a common motive to conspire -- increased profits and the projection of financial soundness -- as well as a high number of inter-firm communications, including Barclays' knowledge of other banks' confidential individual submissions in advance." The one sliver of hope for the banks in the appellate opinion is a remand to Judge Buchwald to determine whether investors in Libor- pegged financial instruments are the right plaintiffs to enforce antitrust law. As the panel pointed out, plaintiffs have to meet two requirements to establish antitrust standing: They have to show an antitrust injury and they have to show that they are "efficient enforcers." Judge Buchwald never reached the second issue in her 2013 decision. Now she will have to decide what the 2nd Circuit called "a closer call" than the question of whether investors properly claimed an antitrust injury. The banks, taking a cue from the appeals court, will doubtless argue on remand that governments around the world are already punishing them for Libor transgressions. "There are many other enforcement mechanisms at work here," the appellate opinions said. "This background context bears upon the need for appellants as instruments for vindicating the Sherman Act." And even the 2nd Circuit agreed that private litigation may turn out to be a bust if, for instance, "the corrupted LIBOR figure on competition was weak and potentially insignificant, given that the financial transactions at issue are complex, LIBOR was not binding, and the worldwide market for financial instruments -- nothing less than the market for money -- is vast, and influenced by multiple benchmarks." Nevertheless, the 2nd Circuit opinion answers a question about benchmark rates and antitrust claims that has divided trial judges in federal court in Manhattan. At least one of Judge Buchwald's colleagues followed her reasoning, in a 2014 opinion dismissing a case alleging manipulation of Japanese yen Libor. But, as Ms. Frankel has written, Judges Lorna Schofield and Jesse Furman squarely rejected Judge Buchwald's interpretation of antitrust injury in more recent decisions. Judges Schofield and Furman, in cases involving supposed tampering with the foreign exchange and ISDAfix benchmark rates, took care to distinguish the facts the in class actions before them from the Libor allegations. In particular, they emphasized that the forex and ISDAfix rates were determined through actual trades, not just by banks' voluntary submissions. They also, however, said Judge Buchwald had misread U.S. Supreme Court precedent to reach her conclusion. In the May 23 opinion, the 2nd Circuit agreed. The important cases to consider, the 2nd Circuit said, are 1940's U.S. v. Socony Vacuum Oil, the seminal ruling on the per se illegality of horizontal price-fixing schemes; and 1982's Blue Shield of Virginia v. McCready, which said consumers can sue over supposedly collusive schemes that ended up costing them money. Investors in the various Libor classes had to go to the U.S. Supreme Court to win the right to bring an interlocutory appeal of Judge Buchwald's antitrust decision to the 2nd Circuit. Thomas Goldstein of Goldstein & Russell, who won the Supreme Court case, argued for plaintiffs at the appeals court as well. (It took an additional nine pages to list all of the plaintiffs' firms and amici involved in the 2nd Circuit appeal.) Robert Wise of Davis Polk & Wardwell, who argued at the 2nd Circuit for all of the banks, declined to comment. BELL CANADA: July 15 Class Action Opt-Out Deadline Set ------------------------------------------------------ Notice to Members of a Class Action Against Bell for Allegedly Undisclosed Fees Superior Court of Montreal No: 500-06-000572-111 On June 9, 2014, the Superior Court of the judicial district of Montreal authorized a class action against Bell Canada and Bell ExpressVu which seeks compensation for customers in Canada who subscribed to home telephone, Internet and/or television services (the "Services") in anyone of the following situations: Any physical person in Canada having subscribed to any one of the Services following a door-to-door visit between December 1, 2007, and June 29, 2011, inclusively and who was charged fees higher than those which had been indicated; Any physical person in Canada having subscribed to any one of the Services on the basis of an advertisement between December 1, 2007, and June 29, 2011, inclusively and who was charged mandatory additional fees such as those relating to Touch-Tone, Internet modern rental, MSN Premium Service network access, digital service, HD services, rental for Fibe TV PVR and/or long-distance network connection. The representative is Ms. Huguette Charbonneau Daneau. If you wish to opt out of the class action, you have until July 15, 2016, to advise the clerk of the Superior Court for the district of Montreal at 1 Notre Dame Street East, Montreal H2Y 1B6. A final judgment ruling in the legality of Bell Canada and Bell ExpressVu's practice with respect to these matters must be rendered before any compensation can be awarded. To obtain a copy of the judgment authorizing the class action, the originating application to institute the class action or the long form of the present notice for further information, visit the website of the representative's lawyers or contact them at: Mtre Guy Paquette PAQUETTE GADLER INC. 300, Place d'Youville, Suite B-10 Montreal, Quebec, H2Y 2B6 Phone: 514-849-0771 Fax: 514-849-4817 www.paquettegadler.com and/or: Laura-Marie Paynter (English inquiries) Yael Kidane (French inquiries) SISKINDS LLP 680 Waterloo Street P.O. Box 2520 London, Ontario, N6A 3V8 Phone: 1-800-461-6166 ext. 4228 (English) 1-800-461-6166 ext. 2409 (French) www.siskinds.com BEYOND SYSTEMS: Consent To Injury Used to Avert Repeat Plaintiffs ----------------------------------------------------------------- Christopher W. Carmichael, Esq., of Holland & Knight LLP, in an article for Lexology, reports that airlines have frequent flyer programs, restaurants and coffee shops have customer loyalty programs, and plaintiff's class action firms have repeat class action plaintiffs. These frequent class plaintiffs are either unlucky or they go looking for trouble. See Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712, 714 (2015) (noting that email spam litigation accounted for 90% of plaintiff's income). Some serial litigants have been the lead plaintiff in multiple class action lawsuits. See Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, 10 (company described "the plaintiff as a 'professional class action plaintiff' who has filed 23 class- action complaints in the past eight years, using the same attorneys that represent him in this action.'"). Unfortunately, the law does not prohibit the same person from filing multiple class action lawsuits. See Gordon v. Virtmundo, Inc., 575 F.3d 1040, 1056 (9th Cir. 2009) (finding that plaintiff's status as a "professional plaintiff" "should not itself undermine one's ability to seek redress for injuries suffered"). There is, however, a way to defend those situations where a person goes looking to file a lawsuit. The common law principle that "no wrong is done to one who consents" provides a means to defeat the serial plaintiff's claim. Beyond Systems, 777 F.3d at 718. Because consumer protection claims are tort claims and common law principles apply to such claims, the consent to injury principle provides a response to the serial plaintiff that goes looking for a cause of action. The consent to injury principle focuses on the serial plaintiff's conduct, in contrast to defenses which focus on and seek to mitigate the defendant's conduct. Shifting the focus to the plaintiff's actions is essential when responding to a serial class action plaintiff. The doctrine volenti non fit injuria, which means "to a willing person it is not a wrong," has been applied where a plaintiff creates the circumstances that lead to the alleged injury. For example, the plaintiff in Beyond Systems created web pages with email accounts that were not visible on its website and could only be found by spam crawlers that located emails for spam message sites. 777 F.3d at 714. Since the plaintiff designed a system specifically to receive spam emails, it could not sue when it received the very spam emails it sought. Id. at 718 ("the evidence was 'overwhelming' that Beyond Systems consented to the harm it claims it suffered."). While each case is different, a case filed by a serial class action plaintiff is vulnerable to challenge on the basis that the plaintiff deliberately generated the cause of action. A self- created harm or purposeful action that generates injury does not create a legally cognizable harm. Gordon, 575 F.3d at 1057 ("The fact that Gordon . . . endures no real ISP-type harm . . . demonstrates that he has not been adversely affected by alleged violations of the federal act in any cognizable way."). A plaintiff cannot set "a trap" for the defendant, "induce damages," and then seek to recover. Lopez Lopez v. Aran, 894 F.2d 16, 20 (1st Cir. 1990). The consent to injury doctrine provides a response to a serial class action plaintiff. The doctrine focuses on the reason why the plaintiff filed the action and the circumstances that led to the injury become the focus, rather than the defendant's conduct. If the class plaintiff created the injury, the action is subject to dismissal. BOEHRINGER INGELHEIM: Faces Five Class Suits in Conn. Super. Ct. ---------------------------------------------------------------- Five class action lawsuits have been filed against Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim International GmbH, in Connecticut Superior Court, Hartford Judicial District. The cases are: -- Riley Holman, individually, as next of kin and as personal representative of the estate of Jean Powers, deceased, the Plaintiff, v. Boehringer Ingelheim Pharmaceuticals, Inc.; and Boehringer Ingelheim International Gmbh, the Defendants, Case No. HHD-CV-16-6067757-S, April 28, 2016. The Plaintiff is represented by: Neal L. Moskow, Esq. URY & MOSKOW, LLC 833 Black Rock Turnpike Fairfield, CT 06825 Telephone (203) 610 6393 Facsimile (203) 610 6399 E-mail: neal@urymoskow.com -- Terri Rossi, individually, as next of kin and as personal representative of the Estate of Richard Truzzi, deceased, the Plaintiff, v. Boehringer Ingelheim Pharmaceuticals, Inc.; and Boehringer Ingelheim International Gmbh, the Defendants, HHD-CV- 16-6067805-S, April 28, 2016. The Plaintiff is represented by: Neal L. Moskow, Esq. URY & MOSKOW, LLC 833 Black Rock Turnpike Fairfield, CT 06825 Telephone (203) 610 6393 Facsimile (203) 610 6399 E-mail: neal@urymoskow.com - and - Brian J. Perkins, Esq. MEYERS & FLOWERS, LLC 3 North Second Street, Suite 300 St. Charles, IL 60174 Telephone (630) 232 6333 Facsimile (630) 845 8982 E-mail: bjp@meyers-flowers.com -- Wilma Jean Sheets, and others similarly situated, the Plaintiff, v, Boehringer Ingelheim Pharmaceuticals, Inc.; and Boehringer Ingelheim International Gmbh, the Defendants, Case No. HHD-CV-16-6067764-S, April 28, 2016. The Plaintiff is represented by: Neal L. Moskow, Esq. URY & MOSKOW, LLC 833 Black Rock Turnpike Fairfield, CT 06825 Telephone (203) 610 6393 Facsimile (203) 610 6399 E-mail: neal@urymoskow.com -- John Skrincosky, and others similarly situated, the Plaintiff, v. Boehringer Ingelheim Pharmaceuticals, Inc.; and Boehringer Ingelheim International Gmbh, the Defendants, (Case No. HHD-CV-16- 6067780-S, April 28, 2016. The Plaintiff is represented by: Neal L. Moskow, Esq. URY & MOSKOW, LLC 833 Black Rock Turnpike Fairfield, CT 06825 Telephone (203) 610 6393 Facsimile (203) 610 6399 E-mail: neal@urymoskow.com -- Franklin Willis, and others similarly situated, the Plaintiff, v. Boehringer Ingelheim Pharmaceuticals, Inc.; and Boehringer Ingelheim International Gmbh, the Defendants, (HHD-CV-16-6067781- S, April 28, 2016. The Plaintiff is represented by: Neal L. Moskow, Esq. URY & MOSKOW, LLC 833 Black Rock Turnpike Fairfield, CT 06825 Telephone (203) 610 6393 Facsimile (203) 610 6399 E-mail: neal@urymoskow.com The lawsuits seek compensatory, consequential and punitive damages as a result of Defendants' reckless disregard for safety of patients, to whom Pradaxa (TM) was promoted and sold for use, and as a direct and proximate consequence of Defendants' reckless disregard for patient safety, in violation of the Connecticut Products Liability Act. According to the complaints, the Defendants negligently designed and formulated Pradaxa (TM) and its packaging, labeling, prescribing information and patient medication guide which rendered Pradaxa (TM) defective. The Defendants were engaged in the business of designing, licensing, manufacturing, distributing, selling, marketing, and/or introducing into interstate commerce, either directly or indirectly through third parties or related entities, the prescription anticoagulant drug sold under the name Pradaxa (TM), throughout the State of Connecticut. Pradaxa (TM) helps to prevent platelets in blood from sticking together and forming a blood clot. CALIFORNIA: Dept. Faces Class Action Over Fire Prevention Fee ------------------------------------------------------------- The Foothills Sun-Gazette reports that nearly 1 million rural property owners may be getting some significant money back from the State of California, if a statewide tax payer advocacy group has anything to say about it. In a May 5 letter to the California Farm Bureau, Jon Coupal, president of the Howard Jarvis Taxpayers Association in Sacramento, said the organization has completed its final hurdle to bringing a class action lawsuit against the California Department of Forestry & Fire Protection (Cal Fire) and the Board of Equalization (BOE). The lawsuit claims CDF illegally charged a fire prevention fee and the BOE illegally collected the fee, which was actually a tax illegally passed by the Legislature. HJTA argues that the "fee" "provided no additional or new services to property owners, and many property owners receive no service at all; therefore it clearly meets the Proposition 13 definition of a tax, which requires a two-thirds vote of lawmakers." Under Proposition 13, the levying of any new taxes on existing services would require a two-thirds vote of each house of the Legislature. However, when the fee was passed by the Legislature more than five year ago, it barely garnered a simple majority and should not have become law. The fee was created by Assembly Bill X1 29, which was signed into law July 7, 2011 to establish a fee for fire prevention services in the 31 million acres of State Responsibility Area (SRA). In Tulare County, this largely affects homeowners on the eastside, north of Woodlake and east of Exeter, Lindsay and Porterville up to federal land boundaries, including Three Rivers and Springville. On July 1, 2014, the fee increased from $150 to $152.33 per hospitable structure. If the habitable structure is also within the boundaries of a local agency that provides fire protection services, the property owner will receive a $35.00 reduction for each habitable structure. Cal Fire claims the fee funds a variety of important fire prevention services and activities that lessen risk of wildfire to communities and evacuation routes. These include fuel reduction, defensible space inspections fire prevention engineering, emergency evacuation planning, fire prevention education, fire hazard severity mapping, implementation of the State and local Fire Plans and fire-related law enforcement activities such as arson investigation. Mr. Coupal wrote that HJTA filed its suit shortly after the law was signed by the governor, but that the combination of the backlog in the California courts as well as state attorneys filing mountains of paperwork has delayed the process further. Only 11 property owners of the nearly 1 million effected elected to opt- out of the class action suit prior to the March 7, 2016 deadline. "After HJTA responded to each of the state's challenges--nearly four years of legal work . . . It is our hope and intention that the legal process will now proceed rapidly." Although HJTA attorneys are confident in their case, Mr. Coupal strongly urged homeowners to continue to pay the fee. Property owners have 30 days from the mailing of the bill to pay it. If you are late, there is a 20 percent penalty, plus interest. For every 30 days after that, another 20 percent penalty is added, plus interest. The fee is a lien on property, and failure to pay can result in foreclosure. Under the law, the BOE is responsible for collecting the fee. The bills scheduled for mailing now are for Fiscal Year 2015/16, which includes July 1, 2015 through June 30, 2016. The fee applies to the homeowner of record as of July 1, 2015, for all habitable structures within the SRA. The BOE will mail the bills for Tulare County property owners on June 7, 2016. Cal Fire has established a web site -- www.FirePreventionFee.org - - which contains comprehensive information about the fee and helpful links to maps, the law language, and answers frequently asked questions. Additionally, a customer service call center is staffed Monday-Friday, 8:00 a.m. to 5:00 p.m. (except holidays) to further aid homeowners that have questions about the Fire Prevention Fee. The call center number is 1-888-310-6447. If the Howard Jarvis Taxpayers Association lawsuit is successful, Coupal said the court may order refunds to people who have filed a Petition for Redetermination. For instructions on how to file this form, go to www.hjta.org and click on the Fire Tax Protest banner. Once there, you can also sign up for free informational bulletins on progress of the suit against the fire tax. "Rural property owners have been paying this illegal tax for years, but we remain optimistic that a court will ultimately grant relief from this unconstitutional money grab," Mr. Coupal concluded. CANADA: Lions Club Opts Out of Windsor Bingo Class Action --------------------------------------------------------- Bill Onslow, writing for Windsor Star, reports that the executive board of the Windsor Downtown Lions Club decided to opt out of the class action lawsuit between the bingo charities and the City of Windsor. It was decided that it would not be in the best interest of the city, the public or the club to continue to be part of this class action lawsuit. The Windsor Downtown Lions Club continues to provide the sight- impaired and the hearing-impaired of Windsor and surrounding area with quality service and assistance as well as providing social functions for these residents of our community. We would like to thank the public for their support for the 96 years that we have been providing this service to the community and, with your help, we will continue to do so. CHARTER COMMUNICATIONS: "Cova" Suit Removed to E.D. Mo. ------------------------------------------------------- Charter Communications, Inc. notified the court that on May 13, 2016, it removed the case captioned "Reno Cova, Logan O'Connor, and Zach Splaingard, on behalf of themselves and others similarly situated v. Charter Communications, Inc., Case No. 1622-CC00842," from the Twenty-Second Judicial Circuit, St. Louis City, Missouri to the United States District Court for the Eastern District of Missouri, Eastern Division. This suit focuses on the alleged sale or release by Charter of subscribers' "personally identifiable information" without the knowledge of subscribers. Charter Communications, Inc. is an operator of cable television systems in the US. The Plaintiffs are represented by: Benjamin R. Schmickle, Esq. SWMK LAW, LLC 701 Market St. Suite 1000 St. Louis, MO 63101 Phone: 314.480.5180 Toll Free: 877.205.4250 The Defendant is represented by: Matthew D. Guletz, Esq. Roman P. Wuller, Esq. Matthew D. Guletz, Esq. THOMPSON COBURN LLP One U.S. Bank Plaza, Suite 2500 St. Louis, MO 63101 Phone: (314) 552-6000 Fax: (314) 552-7000 E-mail: rwuller@thompsoncoburn.com mguletz@thompsoncoburn.com CLINTON ENTERTAINMENT: Certification of Class of Dancers Sought --------------------------------------------------------------- The Plaintiffs in the lawsuit titled Michelle Labriola and Anna Lapina individually and on behalf of all persons similarly situated as class representative under Illinois Law and/or as members of the Collective as permitted under the Fair Labor Standards Act v. CLINTON ENTERTAINMENT MANAGEMENT, LLC, DBA as THE PINK MONKEY and John Doe One and Two, Case No. 1:15-cv-04123 (N.D. Ill.), ask the Court for an order: (a) certifying the Plaintiffs' claims pursuant to the Illinois Minimum Wage Law as a class action, authorizing notice to the putative class, and appointing the Plaintiffs' counsel as class counsel; and (b) setting a schedule for the Plaintiffs to file supplemental evidentiary materials, if necessary. The Plaintiffs allege that the Defendant classified the Plaintiffs and Class of similarly situated Dancers as "Independent Contractors" when the Class should have been classified as employees. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PgQQVByF The Plaintiffs are represented by: John C. Ireland, Esq. THE LAW OFFICE OF JOHN C. IRELAND 636 Spruce Street South Elgin, IL 60177 Telephone: (630) 464-9675 Facsimile: (630) 206-0889 E-mail: attorneyireland@gmail.com CONTINENTAL CASUALTY: Class Certification Sought in "Daluge" Suit ----------------------------------------------------------------- The Plaintiffs move to certify the case captioned GWEN B. DALUGE, MURRAY YOUNG, AND HELENE K. BIRNBAUM, Individually and on Behalf of All Others Similarly Situated v. CONTINENTAL CASUALTY COMPANY, Case No. 3:15-cv-00297-wmc (W.D. Wisc.), as a class action. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=hX64tZTa The Plaintiffs are represented by: Lionel Z. Glancy, Esq. Ex Kano S. Sams II, Esq. Kara M. Wolke, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com esams@glancylaw.com kwolke@glancylaw.com - and - Sean K. Collins, Esq. SEAN K. COLLINS, ATTORNEY AT LAW 184 High Street, Suite 503 Boston, MA 02110 Telephone: (617) 320-8485 Facsimile: (617) 227-2843 E-mail: sean@neinsurancelaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Mark D. DeBofsky, Esq. DEBOFSKY & ASSOCIATES, P.C. 200 West Madison Street, Suite 2670 Chicago, IL 60606 Telephone: (312) 561-4040 Facsimile: (312) 929-0309 E-mail: mdebofsky@debofsky.com DEVRY UNIVERSITY: Won't Bar Students From Filing Class Actions -------------------------------------------------------------- Danielle Douglas-Gabriel, writing for The Washington Post, reports that DeVry University and the University of Phoenix will no longer bar students from filing class-action lawsuits or otherwise taking their grievances to the courts, putting an end to mandatory arbitration clauses that consumer advocates say rob students of their rights. For-profit colleges have come under fire for tucking arbitration clauses into their enrollment contracts to protect their financial interests. Students are typically unaware the restriction exists until problems arise and they try to seek redress. And once they do, the chances of a favorable outcome in arbitration are slim. Although DeVry Education Group, the parent company of the for- profit college, did not publicize its decision to eliminate the arbitration clause, spokesman Ernest Gibble said the company took action May 13 as a part of an "overall effort to rethink the student experience." Apollo Education Group, the publicly traded owner of the University of Phoenix, said it would stop including the clause in enrollment agreements at Phoenix and Western International University starting July 1. "We have worked hard to further improve the student experience at all of our institutions, and it's clear that eliminating mandatory arbitration is the right choice for all of our students," Greg Cappelli, chief executive at Apollo, said in a statement. "This decision joins with a host of efforts already underway to improve student outcomes." A study from the Century Foundation found that traditional nonprofit colleges rarely employ mandatory arbitration clauses, which have become a standard feature in many contracts drawn up by for-profit institutions receiving federal financial aid dollars. Researchers say arbitration can be a secretive process that lets companies dictate the terms of negotiations. Because arbitrators rely on a company's repeat business, they are more inclined to rule in the company's favor, the report said. For-profit colleges have argued that they can lower the cost of delivering education by avoiding pricey litigation. They say arbitration is an efficient way to resolve disputes, but federal regulators disagree. The Consumer Financial Protection Bureau has found that the agreements often lead to poor outcomes for consumers. Arbitrators in the cases the bureau examined rarely ruled in favor of consumers, and even when they did, arbitrators awarded paltry sums. The bureau is crafting rules to prevent financial companies from using arbitration clauses to bar consumers from taking part in class-action suits. For its part, the Department of Education is considering an all- out ban or limiting the use of mandatory arbitration clauses in enrollment contracts. The issue came up in March during negotiations to revise borrower defense to repayment, the process by which students can have their federal loans discharged. Advocates petitioned the agency to make it easier for students who feel they've been wronged to hold colleges accountable. They say that making it easier for students to sue schools would lessen the chance of the government having to provide relief, which would save taxpayers from picking up the tab for the misdeeds of private companies. With negotiators failing to reach an agreement, it is now up to the department to write the rules, which may put an end to arbitration clauses in education contracts once and for all. DISH NETWORK: "Cozart" Suit Seeks to Recover OT Pay Under FLSA -------------------------------------------------------------- Christopher M. Cozart, individually on behalf of himself and others similarly situated, Plaintiffs, v. Dish Network Service Corporation, Defendant, Case No. 3:16-cv-00894 (M.D. Tenn., May 16, 2016), seeks unpaid straight time and overtime compensation, liquidated damages, interest and attorney fees and costs pursuant to the Fair Labor Standards Act. Plaintiffs claim to have worked off-the-clock without receiving compensation for all hours worked, including unpaid meal breaks. Dish Network Service Corporation is a direct-broadcast satellite service provider, providing satellite television and satellite Internet access. Plaintiff travelled on pre-set routes, providing installation and repair services for Defendant's customers. The Plaintiff is represented by: Michael L. Russell, Esq. Emily S. Emmons, Esq. GILBERT RUSSELL MCWHERTER SCOTT BOBBITT PLC 341 Cool Springs Boulevard, Suite 230 Franklin, TN 37067 Tel: 615-354-1144 Fax: 731-664-1540 Email: mrussell@gilbertfirm.com eemmons@gilbertfirm.com - and - Clinton H. Scott, Esq. GILBERT RUSSELL MCWHERTER SCOTT BOBBITT PLC 101 North Highland Jackson, TN 38301 Tel: (731) 664-1340 Fax: (731) 664-1540 Email: cscott@gilbertfirm.com DOLAR SHOP: Faces Chen Lin Suit Over FLSA, NY Labor Law Violation ----------------------------------------------------------------- CHEN LIN, JIANQUN ZHANG, DI PAN, BO LIU, and JIALIANG PAN on behalf of themselves and others similarly situated Plaintiffs, v. THE DOLAR SHOP RESTAURANT GROUP, LLC, d/b/a Dolar Shop; YU ZHANG; TZU CHEUNG a/k/a Ken Cheung; XIN FENG WANG a/k/a Ruby Wang; and YING NAN QI a/k/a Frank Qi, Defendants, Case 1:16-cv- 03599 (E.D.N.Y., May 15, 2016), alleges violation of the Federal Labor Standards Act, and of the New York Labor Law. THE DOLAR SHOP RESTAURANT GROUP, LLC d/b/a Dolar Shop operates the New York hotspot store of Dolar Shop, a Chinese hotpot chain based in Shanghai, China, with hot spot locations in Shanghai, Beijing, Nanjing, Hangzhou, Taichang, Wuhan, Changsa, Zhuhai, Macau, Suzhou, Hengyang, Zhuzhou, Wuxi, Zhangjiagang, and Indonesia. The Plaintiffs are represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Phone: (718) 762-1324 DOMINO'S PIZZA: New York AG Files Wage Theft Class Action --------------------------------------------------------- Marc Santora, writing for The New York Times, reports that the system, as outlined in a lawsuit filed by the New York State attorney general, was as simple as it was flawed. A pizza is ordered from Domino's. A pizza is made. A pizza is delivered. The workers who assembled and delivered the pie clock their hours on a computer system, and those workers are then paid. But for years, according to the lawsuit against the corporate franchiser that owns Domino's Pizza, the computer system used by franchises across the state systematically undercounted hours worked by employees, shortchanging them hundreds of thousands of dollars. The lawsuit, announced on May 24, was the latest salvo in a campaign by the attorney general, Eric T. Schneiderman, against what he says is a pattern of corporations shortchanging low-wage workers. Since 2011, Mr. Schneiderman has secured more than $26 million for almost 20,000 workers who were bilked of wages. But unlike past cases, this one directly targets the corporate franchiser. If the state wins, Mr. Schneiderman hopes the case sets a precedent that makes it harder for corporations that run franchise businesses to avoid responsibility for the actions taken by the stores under their corporate umbrella. "Wage theft is an epidemic causing harm to low-wage workers struggling to support their families every single day," Mr. Schneiderman said in a statement. Across the country, lawsuits involving wage theft have been on the rise. Broadly defined, wage theft involves employers' violating minimum-wage and overtime laws and not counting work hours, and management wrongfully taking employees' tips. The surge in lawsuits, according to labor advocates, is a reflection of the changing nature of the American workplace. Increasingly, corporations are using franchises, subcontractors and temp companies to fill jobs. One result is fierce competition to fill jobs with people who will work for the lowest possible wages. And, in turn, corporate franchisers can insulate themselves from charges of wage violations by creating a degree of separation between the corporation and the employees. The Labor Department, through its wage and hour division, has recovered more than $1 billion in unpaid wages across the country since 2010. Still, even with both federal and state prosecutors focused on the issue, the abuses continue, labor advocates say. In 2014, the New York State attorney general lodged a victory against 23 Domino's Pizza outlets in New York for wage theft, securing $448,000 in restitution for workers. That year, Domino's also settled a class-action lawsuit brought by employees for $1.3 million for wage violations in New York. That lawsuit accused a Domino's franchisee, DPNY Inc., of a variety of unfair labor practices, including not giving a legally required lunch break, not paying for uniforms and paying a subminimum tip wage even when the workers did untipped work, like cleaning ovens and floors or distributing fliers. But the new case being brought by Mr. Schneiderman seeks to hold the corporate franchiser, Domino's Pizza L.L.C., responsible. It accuses the company of forcing franchisees to use a computer accounting system even though it was aware it was flawed. "Domino's corporate executives knew about the violations, denied responsibility and failed to take action," he said. "For the first time, we will prove that the Domino's corporate franchiser is legally responsible for rampant wage theft occurring at its stores." In a statement, Domino's defended its conduct, saying that it had worked with the attorney general's office for more than three years and calling the lawsuit baseless. "We were disappointed to learn that the attorney general chose to file a lawsuit that disregards the nature of franchising and demeans the role of small business owners instead of focusing on solutions that could have actually helped the individuals those small businesses employ," the company said. "We believe that every employee deserves to be treated fairly and paid what they are entitled to under the law. We also believe that franchising is a tremendous source of economic opportunity in this country in general and in New York State in particular." In the course of a four-year investigation, the attorney general's office obtained a sample of franchisee records entered into Domino's own computer system. "Those records showed that 78 percent of franchisees listed instances of subminimum wages, and 86 percent of franchisees listed instances of unlawfully low overtime rates," according to Mr. Schneiderman's office. DOVER, OH: Immigrant Advocacy Group Files Class Action ------------------------------------------------------ Michelle Faust, writing for WKSU, reports that an immigrant rights advocacy group has filed a class-action federal civil rights lawsuit against a Tuscarawas County school district. StateImpact Ohio's Michelle Faust reports the court documents allege the Dover City School District failed to educate and systematically discriminated against Latino students. Plaintiffs allege Dover school administrators gave inadequate instruction to English-language learner students, and that records tracking which teachers taught those students were falsified. The suit also claims students were actively encouraged to drop out. Jeff Stewart is the director of the Ohio Immigrant Worker Project -- the advocacy group that is suing. "They're being encouraged not to take classes that will actually have content which will actually count towards their graduation. "Some people in the schools have an attitude that these children are just not capable of learning." The suit was filed by two parents and two students, but the court filing estimates 125 students could have been impacted over a three-year period ending this school year. They allege and that records tracking which teachers taught those students were falsified, that coursework did not advance students towards graduation, and administrators encouraged students to drop out of school. Dover Superintendent Carla Birney released a statement through her lawyer saying the district will follow the legal process, and that the quotes attributed to her in the filing are "absolutely false." DREAMWORKS ANIMATION: No-Poach Class Action Can Proceed ------------------------------------------------------- Ben Hancock, writing for Law.com, reports that a federal judge decided on May 25 that a wage-suppression class action against animation studios including DreamWorks Animation SKG Inc. and The Walt Disney Co.'s Pixar can move forward as a class action. In a victory for thousands of visual-effects workers and their lawyers, U.S. District Judge Lucy Koh of the Northern District of California wrote in an 80-page order that plaintiffs in Nitsch v. DreamWorks had met the burden of showing that the issues are common enough to be tried on a classwide basis. Judge Koh rejected the studios' argument that the suit should be broken apart because there are too many individualized questions about whether certain workers knew of the companies' alleged "no poach" conspiracy before the 2010 statute of limitations cutoff. At a hearing earlier this month, Keker & Van Nest's Robert Van Nest, arguing for DreamWorks, emphasized that there are emails and blog posts suggesting widespread knowledge of the agreements before that time. Mr. Van Nest, whose team on May 25 received a favorable verdict for Google Inc. in its copyright brawl with Oracle Corp., was not immediately available for comment. But Judge Koh saw that as "generalized evidence applicable to wide swaths of the class, rather than evidence truly specific to individual class members." For example, she wrote, "the cited blog posts would have been available to the entire class after the date of posting." At the same time, Judge Koh held open the possibility that the roughly 60 individuals who had sent emails indicating knowledge of the conspiracy could be dealt with separately. "Certification of the proposed class will not deny defendants the ability to raise individualized statute of limitations defenses, should the evidence indicate that the question must be resolved separately as to particular class members," she wrote. The suit stems from an alleged yearslong agreement among DreamWorks Animation, Pixar, LucasFilm Ltd. and other studios not to lure away each other's employees. Plaintiffs lawyers at Hagens Berman Sobol Shapiro and Susman Godfrey contend that the practice held down workers' pay. It is similar to a case involving Silicon Valley heavyweights Google and Apple Inc. that settled in early 2015. In the animators' case, plaintiffs estimate the class size to be roughly 10,000 people, with damages totaling about $650 million. Judge Koh on May 25 denied the plaintiffs' attempt to add the years of 2001 to 2003 to the class period, which now runs from 2004 to 2010, because it had not been fully argued. But she allowed the plaintiffs leave to amend their complaint. The defendants claim that without that 2001-2003 period, the estimated damages would shrink by a third. Jeff Friedman -- jefff@hbsslaw.com -- of Hagens Berman said he was "pleased" with the order. The case is still in discovery, and trial has been set for summer 2017. DS SERVICES: Court Denies Prelim. OK of "Eddings" Suit Settlement ----------------------------------------------------------------- The Hon. Vince Chhabria entered an order denying, without prejudice, the motion for preliminary approval of the settlement of the class action lawsuit styled CHRIS EDDINGS, et al. v. DS SERVICES OF AMERICA, INC., et al., Case No. 15-cv-02576-VC (N.D. Cal.). Judge Chhabria opined that the parties here have not given the Court enough information to evaluate the relative value of the proposed settlement. He noted that the Plaintiffs assert that the value of the settlement fund is "approximately 75% to 90% of the total unpaid overtime owed to Class Members and over 50% of the total unpaid overtime and meal and rest premium pay," but the Court needs more than this type of bare assertion. He said that the Plaintiffs seeking preliminary approval should show their work by explaining the relative value of their claims in significant detail. "A party moving for preliminary approval should cite case law and apply it to explain why each claim or defense in the case is more or less likely to prove meritorious," Judge Chhabria said. He added that the Court expresses no view on the merits of this settlement; rather, it denies the motion for preliminary approval, without prejudice to renewal, because it does not yet have enough information to evaluate the settlement's merits. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=PgBuu7n1 E&M ASSOCIATES: Landlord Faces Class Action Over Labor Violations ----------------------------------------------------------------- Julia Marsh, Kaja Whitehouse and Kevin Sheehan, writing for The New York Post, report that a city landlord who lives in a $3 million Long Island mansion pays his building supers and porters as little as $3.45 an hour while housing them in rat-infested hovels, a new lawsuit charges. Real-estate mogul Irving Langer paid two of his supers a paltry $275 to $400 a week, even though they toiled an average of 80 hours fixing tenants' toilets, taking out their trash and trying to get rid of vermin, according to the men's multimillion-dollar class-action suit filed on May 23 in Manhattan federal court. The former supers added that they were given living quarters that were moldy, leaky and rat-infested. "No bathroom, no sink, no cabinets, no nothing," said one of the plaintiffs, Usvaldo Contrera, 51. The suit seeks back wages and overtime on behalf of more than 250 workers, said their lawyer, Marc Rapaport. A rep for Langer -- who owns 3,000 rental units, mostly in low- income buildings -- and his business, E&M Associates, declined to comment, saying they were not aware of the lawsuit EGGCETERA CAFE: Faces "Campos" Class Action in Illinois ------------------------------------------------------- TEODULO CAMPOS, a/k/a LUIS CAMPOS, on behalf of himself and all other similarly situated persons, known and unknown, Plaintiff, v. EGGCETERA CAFE and DINO BASTAS, individually, Defendant, Case: 1:16-cv-05195 (N.D. Ill., May 13, 2016), was filed pursuant to the Fair Labor Standards Act, and the Illinois Minimum Wage Law. Located in Mokena, Illinois, Eggcetera Cafe offers traditional American breakfast and lunch dishes. The Plaintiff is represented by: Alejandro Caffarelli, Esq. Alexis D. Martin, Esq. CAFFARELLI & ASSOCIATES LTD. 224 S. Michigan Ave., Ste. 300 Chicago, IL 60604 Phone: (312) 763-6880 EPIC SYSTEMS: Can't Use Arbitration to Avert Collective Action -------------------------------------------------------------- Ben Hancock, writing for Law.com, reports that a federal appeals court ruled on May 26 that companies cannot use arbitration agreements to bar employees from taking collective legal action, a decision that some plaintiffs lawyers see as shifting the tide in their favor. Ruling against Wisconsin healthcare software firm Epic Systems Corp., a panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago said that the National Labor Relations Act outlaws agreements that strip workers of their right to sue as a group. "This decision will have a greater effect on workers' ability to protect their workplace rights than any court ruling in decades," Michael Rubin -- mrubin@altber.com -- of Altshuler Berzon in San Francisco said in an email. Chief Judge Diane Wood wrote in Lewis v. Epic that companies may require workers to pursue disputes in arbitration through agreements and still comply with Section 7 of the NLRA. But they may not deny workers both their ability to bring a class action in court and their right to arbitrate collectively, she wrote. "If Epic's provision had permitted collective arbitration, it would not have run afoul of Section 7 either. But it did not, and so it ran up against the substantive right to act collectively that the NLRA gives to employees," Judge Wood wrote. Epic was sued in federal court in 2015 by Jacob Lewis, who was employed as a technical writer. Mr. Lewis alleged that the company had misclassified him and other technical writers as contractors and deprived them of overtime pay. Mr. Lewis is represented by Hawks Quindel and Habush Habush & Rottier in Madison, Wis. The company sent Mr. Lewis and other workers an arbitration agreement in an email in 2014, stating that by continuing to work for the company, they were deemed to have accepted it. The agreement required disputes to be resolved in arbitration and on an individual basis only. The trial court denied Epic's motion to compel arbitration on the basis that it was in violation of the NLRA and thus unenforceable, and the company appealed. The May 26 ruling affirms the district court's decision. Judge Wood acknowledged that the decision creates a split with the U.S. Court of Appeals for the Fifth Circuit, which ruled in D.R. Horton Inc. v. NLRB that the Federal Arbitration Act trumps the NLRA. That was the wrong analysis, she wrote, arguing that while contracts compelling arbitration are permissible, clauses that conflict with federal law are not. Attorneys at Seyfarth Shaw, which argued for Epic, did not respond to an email seeking comment on whether they would petition the Supreme Court to review the case. A similar case, Morris v. Ernst & Young, is pending a decision in the Ninth Circuit following oral arguments last November. Hawks Quindel attorney Caitlin Madden in a written statement called the Seventh Circuit decision a "major victory" for workers. It "makes clear that employees have the right to act together when an employer is not paying them correctly," she said. FACEBOOK INC: "Gallo" Sues Over Fake Webpage -------------------------------------------- Vincent Gallo, an individual, Plaintiff, v. Facebook, Inc. a Delaware Corporation and Does 1-10, inclusive, Defendant, Case No. 2:16-cv-03363 (C.D. Cal., May 16, 2016) seeks special, consequential and general damages with allowable interest, injunction, exemplary and punitive damages resulting from intentional infliction of emotion distress, unfair business practices and for violation of the Lanham Act False Designation of Origin, California Common Law Right of Publicity, California Statutory Right of Publicity, State Common Law Unfair Competition and the California Penal Code. Facebook owns the registered domain name facebook.com. Gallo alleges that there exists a fake account https://www.facebook.com/vincent.gallo.927 containing unauthorized photographs of the Plaintiff and written statements impliedly written by Plaintiff himself despite his claim that he never had a Facebook page. The Plaintiff is represented by: Joseph P. Costa, Esq. Lindsay T. Cinotto, Esq. COSTA BESSER & CHILDRESS 17383 Sunset Blvd., Suite A350 Pacific Palisades, CA 90272 Tel: (310) 394-6611 Fax: (310) 394-6612 FIDELITY MANAGEMENT: Faces ERISA Class Action Over BrokerageLink ---------------------------------------------------------------- Carmen Castro-Pagan, writing for Bloomberg BNA, reports that a proposed class action accuses Fidelity Management Trust Co. of breaching its ERISA fiduciary duties for allegedly receiving unreasonable compensation through its brokerage window feature and a kickback scheme with an investment advice company. According to the complaint, filed May 20, Fidelity selected mutual funds with higher expense ratios for the plan brokerage window that allowed the investment firm to rake "significant amounts" in revenue-sharing payments in violation of the Employee Retirement Income Security Act. The allegations in the complaint are without merit and Fidelity will defend against them vigorously, Stephen Austin, a spokesman for Fidelity, told Bloomberg BNA May 23. The lawsuit was filed in the U.S. District Court for the District of Massachusetts by participants in the Delta Air Lines Inc. retirement plan. According to the complaint, as of 2014 the plan had approximately $7.5 billion in assets, of which more than $2.8 billion where invested through Fidelity's brokerage window-- BrokerageLink. By selecting mutual funds with higher expense rations, Fidelity has exercised its discretionary authority over plan assets in a manner designed to increase its compensation at the expense of participants, the complaint alleges. The participants have paid Fidelity "enormous fees" simply for obtaining access to mutual funds that were already established on Fidelity's platform, the complaint says. Participants also allege that Fidelity earned unreasonable compensation by engaging in a kickback scheme with Financial Engines Advisors, LLC for providing investment advice services. In order to be included as the investment advice service provider on Fidelity's platform, Financial Engines allegedly agreed to pay -- and still pays -- Fidelity a significant percentage of the fees it collects from 401(k) participants. These fees weren't being paid for any substantial service being provided by Fidelity to Financial Engines or to participants, the complaint says. Moreover, the complaint alleges that Fidelity was "doing nothing more than providing an electronic mechanism for implementing instructions the participants could implement on their own." Zelle, LLP represents the participants. FINS CONSTRUCTION: Certification of Class Sought in "Lopez" Suit ---------------------------------------------------------------- Juan Pablo Lopez moves for conditional class certification, judicial notice, and for disclosure of the names and addresses of potential "opt-in" plaintiffs in the lawsuit styled JUAN PABLO LOPEZ, on behalf of himself and other persons similarly situated v. F.I.N.S. CONSTRUCTION, LLC, ROBERT L. ARMBRUSTER, JR. and NICOLE L. ARMBRUSTER, Case No. 2:16-cv-02408-MVL-JCW (E.D. La.). The Action arises from a "generally applicable rule, policy, or practice" pursuant to Section 216(b) of the Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=aoNXyUvC The Plaintiff is represented by: Roberto Luis Costales, Esq. Emily A. Westermeier, Esq. THE COSTALES LAW OFFICE 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534-5005 E-mail: costaleslawoffice@gmail.com emily.costaleslawoffice@gmail.com - and - William H. Beaumont, Esq. WILLIAM BEAUMONT LAW 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 483-8008 E-mail: whbeaumont@gmail.com FLOWERS FOODS: Bid for Class Certification in "Carr" Suit Denied ---------------------------------------------------------------- The Hon. Lawrence F. Stengel entered an order in the lawsuit captioned MATTHEW CARR, TERRY CARR, DAVID TUMBLIN, and GREGORY BROWN, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED INDIVIDUALS v. FLOWERS FOODS, INC. and FLOWERS BAKING CO. OF OXFORD, LLC, Case No. 2:15-cv-06391-LS (E.D. Pa.), granting the Plaintiffs' motion to amend the complaint. The Court further ordered that: (1) Plaintiffs' Motion for Conditional Certification is denied as moot; (2) Defendant's Motion to Modify the Scheduling Order is denied as moot; (3) Section (d), entitled Motion Schedule, of the Scheduling Order dated April 4, 2016, is vacated. The remaining sections of the Scheduling Order shall remain in effect; and (4) The following Motion Schedule shall apply: a. Plaintiffs' motion for conditional certification under Section 216(b) shall be filed by June 1, 2016. Defendants' opposition shall be filed by July 18, 2016. Plaintiffs' reply shall be filed by August 29, 2016; b. Plaintiffs' motion for Rule 23 class certification and defendants' motion for decertification of any conditionally certified FLSA collective action shall be filed within 60 days after the close of discovery or within 90 days after the close of any FLSA notice period; and c. Dispositive motions shall be filed no later than 45 days after the court rules on the plaintiffs' Rule 23 class certification motion. The Action is brought to obtain declaratory, injunctive and monetary relief resulting from the Defendants' alleged misclassification of their Pennsylvania, Maryland, and New York bakery distributor drivers as "independent contractors." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=anHnptB1 The Plaintiffs are represented by: Shawn J. Wanta, Esq. Patricia A. Bloodgood, Esq. Christopher D. Jozwiak, Esq. BAILLON THOME JOZWIAK & WANTA LLP 100 South Fifth Street, Suite 1200 Minneapolis, MN 55402 Telephone: (612) 252-3570 Facsimile: (612) 252-3571 E-mail: sjwanta@baillonthome.com pabloodgood@baillonthome.com cdjozwiak@baillonthome.com - and - Susan E. Ellingstad, Esq. Rachel A. Kitze Collins, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: seellingstad@locklaw.com rakitzecollins@locklaw.com - and - Charles E. Schaffer, Esq. LEVIN FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: cschaffer@lfsblaw.com - and - Gordon Rudd, Esq. David Cialkowski, Esq. ZIMMERMAN REED PLLP 111 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 341-0400 E-mail: Gordon.Rudd@zimmreed.com David.Cialkowski@Zimmreed.com FORD MOTOR: Certification of Ford Explorer Owners Class Sought -------------------------------------------------------------- The Plaintiffs in the lawsuit titled JAMES T. CASSIDY and FAITH H. CASSIDY, individually and as Representatives of others similarly situated v. FORD MOTOR COMPANY, Case No. 2-15-cv-02483 KDE-KWR (E.D La.), move the Court for an order certifying this class: All persons who purchased or leased in Louisiana at least one of the following vehicles: 2011 Ford Explorer, 2012 Ford Explorer, 2013 Ford Explorer, 2014 Ford Explorer or 2015 Ford Explorer. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=yioVTPyQ The Plaintiffs are represented by: Jordan M. Lewis, Esq. KELLEY UUSTAL, PLC 700 S. E. 3rd Avenue, Suite 300 Fort Lauderdale, FL 33316 Telephone: (954) 522-6601 Facsimile: (954) 522-6608 E-mail: jml@kulaw.com - and - Edward J. Womac, Jr., Esq. Brian J. Branch, Esq. EDWARD J. WOMAC, JR. & ASSOCIATES 3501 Canal Street New Orleans, LA 70119 Telephone: (504) 486-9999 Facsimile: (504) 486-4178 E-mail: ewomac@edwardwomac.com bbranch@edwardwomac.com The Defendant is represented by: Keith W. McDaniel, Esq. Lance B. Williams, Esq. Joshua H. Dierker, Esq. McCRANIE, SISTRUNK, ANZELMO, HARDY, McDANIEL & WELCH, LLC 195 Greenbriar Boulevard, Suite 200 Covington, LA 70433 E-mail: kmcdaniel@mcsalaw.com lwilliams@mcsalaw.com jdierker@mcsalaw.com - and - Janet Conigliaro, Esq. DYKEMA GOSSETT PLLC 400 Renaissance Center Detroit, MI 48243 E-mail: jconigliaro@dykema.com - and - Joel Dewey, Esq. Jeffrey M. Yeatman, Esq. DLA PIPER LLP (US) The Marbury Building 6225 Smith Avenue Baltimore, MD 21209-3600 E-mail: Joel.dewey@dlapiper.com Jeffrey.yeatman@dlapiper.com GENERAL MILLS: Judge Tosses Class Action Over Hazardous Waste ------------------------------------------------------------- Robin Bravender, writing for E&E reporter, reports that one of the judges Donald Trump is eyeing for a Supreme Court nomination rejected a class-action lawsuit over hazardous waste buried decades ago by General Mills Inc. Judge Raymond Gruender of the St. Louis-based 8th U.S. Circuit Court of Appeals joined two of his colleagues in an opinion siding with General Mills and reversing a lower court's decision to allow a class-action lawsuit in the environmental contamination case. Judge Gruender, a George W. Bush appointee, was among the 11 judges named by the presumptive Republican presidential nominee on a list of possible judges he'd nominate to the Supreme Court. The case involves property owners who sought to bring a class- action lawsuit against the food manufacturing giant over contamination in the Como neighborhood of Minneapolis. General Mills operated an industrial facility in the area from about 1930 to 1977, and the company buried as much as 1,000 gallons of hazardous substances per year at the site from 1947 until 1962, according to court documents. Local property owners claimed that General Mills released the harmful chemical trichloroethylene (TCE), threatening residents' health and hurting their property values. The three-judge panel on the 8th Circuit said that the case didn't meet the legal standards for a class-action lawsuit and that a lower court had erred by certifying a proposed class. "Although there may be common matters in this litigation that can be decided on a class-wide basis, we think it is clear that individual issues predominate the analysis of causation and damages that must be litigated to resolve the plaintiffs' claims," the opinion issued on May 20 said. "This matter is thus unsuitable for class certification . . . and the district court therefore abused its discretion in certifying the class." General Mills has been conducting groundwater cleanup on the site with federal and state officials for nearly 30 years, according to court documents, and has installed so-called vapor mitigation systems to prevent the intrusion of TCE into buildings above contaminated areas. One of General Mills' experts told the district court that 327 homes in the Como neighborhood had soil vapor testing and didn't have detectable TCE concentrations; General Mills installed mitigation systems in 118 homes in the neighborhood. According to U.S. EPA, TCE -- used as a solvent and refrigerant -- is a toxic chemical that can cause cancer in humans. Acute concentrations of vapors can irritate the respiratory system, and prolonged exposure can harm the liver, kidneys and central nervous system. General Mills argued in its appeal to the 8th Circuit that a class action wasn't warranted due to the "exceedingly complex issues of injury and causation unique to each of the proposed plaintiffs in this class," according to the opinion written by Judge Clarence Beam, a President Reagan appointee. Another Reagan appointee, Judge Roger Wollman, also signed onto the opinion. Before joining the 8th Circuit in 2004, Judge Gruender was an assistant U.S. attorney for the Eastern District of Missouri and was the Missouri state director for Republican Bob Dole's 1996 presidential campaign. His record -- like those of the other 10 judges on the list -- has become fodder for environmentalists and other liberal groups warning that Mr. Trump shouldn't fill the current Supreme Court vacancy or any others that may arise during the next presidential administration. Conservative legal experts and Republicans, however, have lauded Mr. Trump's list, which he released in order to quell concerns on the right about whom he might pick to replace the late Justice Antonin Scalia (Greenwire, May 19). The Washington Post's editorial board slammed Trump for his unusual move of releasing a list of potential Supreme Court picks. By doing so, the board said, "Mr. Trump has practically guaranteed that none of the judges he offered will be seen as fair over the next several months, their every ruling scrutinized for evidence that they are applying for the job -- even if they try to conduct their duties evenhandedly." The editorial board similarly criticized Democratic presidential candidates for describing judicial "litmus tests" they would use to select candidates for the high court, saying doing so "puts the country on a dangerous path." Before Mr. Trump's list, "Sen. Bernie Sanders (I-Vt.) said that if he won the presidency, he would ask President Obama to withdraw Judge Merrick Garland from consideration for the court so that Mr. Sanders could nominate someone who has publicly committed to overturning the Citizens United ruling on campaign finance," the editorial said. "Former secretary of state Hillary Clinton promised that she would have 'a bunch of litmus tests' for her judicial nominees, including on Roe v. Wade, same-sex marriage, the Voting Rights Act and, yes, Citizens United, too." GENERAL MOTORS: Fuel Economy Case Settlement May Cost $100MM ------------------------------------------------------------ Patrick George, writing for Jalopnik, reports that if you bought a 2016 Chevrolet Traverse, GMC Acadia or Buick Enclave, good for you! You're about to get cold, hard cash (in debit card form but still) from General Motors. This is after the automaker screwed up fuel economy labels on nearly 150,000 vehicles, overstating that number by 1-2 MPG. Gas is so cheap right now that most SUV owners may not even care. But here's the benefit to those owners as a result, from Market Watch: Customers who purchased a 2016 Chevrolet Traverse, GMC Acadia or Buick Enclave can choose between a debit card or a 48- month/60,000-mile service protection plan on top of their existing factory warranty, the company said on May 20. Those who leased vehicles will be offered the debit card, GM said. The debit cards are likely to range between $450 and $900, depending on whether customers purchased or leased their vehicles. The type of vehicle and terms of leases will also affect how much customers receive. GM alerted dealers to the program on May 20, and letters were expected to go out to customers starting May 25. How much will GM itself be out because of this? About $100 million, according to Reuters. Also, there's already a class- action lawsuit in the works. That stings. GERAWAN FARMING: Judge Allows Wage Class Action to Proceed ---------------------------------------------------------- Robert Rodriguez, writing for The Fresno Bee, reports that a federal judge in Fresno is allowing a class-action lawsuit to move forward against Gerawan Farming, one of Fresno County's largest agriculture companies. The lawsuit, filed in 2014, alleges that Gerawan has violated state and federal laws, including failing to pay minimum wages, failing to compensate employees for breaks, and failing to pay wages owed. Gerawan's attorney, David Schwarz, said the company had not broken the law. "Class certification motions are often granted, seldom denied, and have nothing to do with the merits of the case," Schwarz said. "Gerawan's history of paying the industry's highest wages is undeniable. Nothing in the allegations disproves nor even alleges otherwise." The May 20 decision by federal Judge Dale A. Drozd means the case can proceed as a class action on behalf of the thousands of workers employed by Gerawan from Feb. 3, 2010, to the present. The number of current or former Gerawan workers who could benefit could be in the thousands. Judge Drozd appointed the Encino law firm Kingsley & Kingsley and the Bakersfield firm Martinez, Aguilasocho & Lynch as co-class counsel to represent the workers. The decision comes at a time when Gerawan Farming and the United Farm Workers union continue to battle over labor issues. Mario Martinez, a co-counsel in the class-action lawsuit, also represents the UFW in other legal matters. GERBER PRODUCTS: High Court Upholds $3MM Judgment in Wage Suit -------------------------------------------------------------- Andrew Demillo, writing for The Associated Press, reports that a sharply divided Arkansas Supreme Court on May 26 said a baby food manufacturer must pay more than $3 million to workers for the time they spent dressing and undressing into uniforms and protective gear. In a 4-3 ruling, the high court upheld a lower court's ruling that Gerber Products Co. should have compensated more than 800 workers at its Fort Smith facility for the time they spent changing into uniforms, donning protective gear such as ear plugs and washing their hands, as well as undressing after their shifts ended. Justices sided with the workers who said Arkansas' Minimum Wage Act required the company to compensate for the activities despite an agreement with the union. "We hold that the donning and doffing activities constitute compensable work under the AMWA, despite the custom and practice under the collective-bargaining agreement," Justice Karen Baker wrote in the majority opinion. The ruling drew sharp objections from three justices, who said in a dissenting opinion that because of the decision "the floodgates will open to litigation at the enormous cost to businesses in Arkansas." "In addition, the majority undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements," Justice Rhonda Wood wrote. Gerber had argued the workers' union had agreed to not be paid for the time in a contract that also included larger wage increases for the employees. The company said in a statement it was disappointed with the ruling and was evaluating its options. "Gerber has always honored its responsibilities to its employees as part of the collective bargaining process and under the collective bargaining agreement," the company said. "Gerber will continue its commitment to fully comply with all federal and state wage and hour laws, regulations and all other employment laws." John Holleman, an attorney for the workers, called the decision "landmark" and said it will benefit other workers around the state who aren't being for similar activities that are required as part of their job. "This is a situation where clearly we had both the law and basic principles of fairness and justice on our side," Mr. Holleman said. "These people are clearly working at this time and they deserve to be paid." GOYA FOODS: Faces False Advertising Class Action in California -------------------------------------------------------------- Jacquelyn Ferry, Esq., of Proskauer Rose LLP, in an article for Mondaq, report that a new putative consumer class action claiming damages in excess of $5,000,000 was filed earlier this month in the Northern District of California against Goya Foods, Inc. ("Goya"). The plaintiff, a purchaser of Goya octopus products from the website Amazon.com, alleges that Goya tricked consumers into purchasing its products by labeling them as octopus when in reality, the products contained jumbo squid. The plaintiff alleges that independent DNA testing showed that Goya's products were in fact jumbo squid, which is significantly cheaper and of lower quality than octopus. The plaintiff alleges that the cost of octopus has increased in recent years due to diminishing octopus populations as a result of over-fishing. Octopus populations had allegedly fallen by 45% in 2014, causing a sharp rise in the price of octopus. While octopus populations have been suffering, jumbo squid populations have been thriving, potentially due to squid's ability to adapt to the changing ocean conditions caused by global warming. As a result, the cost of octopus has risen dramatically compared to the cost of squid. There are four Goya products at issue in this litigation: (1) Octopus in Garlic; (2) Octopus in Olive Oil; (3) Octopus in Pickled Sauce (Marinara); and (4) Octopus in Hot Sauce. The word "Octopus" is front and center on each box, and there is no indication that the products contain any form of squid, the plaintiff alleges. Other than the fact that octopus and squid have similar textures and are both cephalopods (i.e., they have bilateral body symmetry, a prominent head, and a set of tentacles), they are completely different species. As a result of Goya's actions, the plaintiff alleges that he and other purchaser of Goya octopus products would not have purchased those products on the same terms if they had known that the products really contained squid. The plaintiff claims that Goya has intentionally replaced the octopus with squid as a cost cutting measure. The plaintiff asserts a host of claims on behalf of himself and a putative nationwide class of potentially millions of purchasers of Goya octopus products. Those claims include breach of express warranty, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, unjust enrichment, violation of California's Consumer Legal Remedies Act ("CLRA"), violation of California's Unfair Competition Law ("UCL"), violation of California's False Advertising Law ("FAL"), negligent misrepresentation, and fraud. Both the CLRA and UCL are powerful tools for California class action plaintiffs. The UCL forbids "unfair, unlawful and fraudulent" conduct in connection with a broad array of business activities. Cal. Bus. & Prof. Code Sec. 17200. And the CLRA applies to "consumer" transactions involving the "sale or lease of goods or services," and prohibits 24 separate business acts or practices. Cal. Civ. Code Secs. 1761, 1770. The sweeping liability standards of the UCL and CLRA may present a challenge for Goya as it decides whether to answer the complaint or move to dismiss in early June. New False Advertising Class Action against Goya Foods, Inc. Claims Octopus Is Missing from Products GRUNLEY CONSTRUCTION: Vasquez Seeks Certification of DCMWRA Class ----------------------------------------------------------------- Luis Alexander Vasquez moves for conditional certification of his class under the District of Columbia Minimum Wage Revision Act in his purported class action lawsuit captioned LUIS ALEXANDER VASQUEZ A/K/A WILBER ALEXANDER on behalf of himself and all similarly situated individuals v. GRUNLEY CONSTRUCTION CO., C.R. CALDERON CONSTR. CO. INC, GARFIAS DRYWALL & FINISH, LLC, Case No. 1:15:cv-02106 (GMH) (D.D.C.). Mr. Vasquez contends that the 2015 Amendments to the DCMWRA expand the collective action remedies available to him to include both an opt-in collective action analogous to Fair Labor Standards Act Rule 216(b), and an opt-out class action pursuant to Federal Rules of Civil Procedure Rule 23. Alternatively, if the Court denies the Motion, the Plaintiff moves to file an Amended Complaint adding the opt-in Plaintiffs as named Plaintiffs. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Ny6tfle3 The Plaintiff is represented by: Virginia R. Diamond, Esq. ASHCRAFT & GEREL LLP 4900 Seminary Road, Suite 650 Alexandria, VA 22311 Telephone: (703) 627-5510 Facsimile: (703) 820-0630 E-mail: vdiamond@ashcraftlaw.com - and - Rebekah Miller, Esq. Benjamin Douglas, Esq. ASHCRAFT & GEREL LLP 1825 K Street, NW, Suite 700 Washington, DC 20006 Telephone: (202) 783-6400 Facsimile: (202) 416-6392 HARRIS CTY, TX: McGruder Seeks Certification of Arrestees Class --------------------------------------------------------------- The Plaintiffs in the purported class action lawsuit styled LOETHA SHANTA MCGRUDER, ROBERT RYAN FORD, On behalf of themselves and all others similarly situated v. SHERIFF RON HICKMAN, ERIC STEWART HAGSTETTE, JOSEPH LICATA III, RONALD NICHOLAS, BLANCA ESTELA VILLAGOMEZ, JILL WALLACE, Case No. 4:16-cv-01436 (S.D. Tex.), ask the Court to certify a declaratory and injunctive class. According to the Motion, this case is about Harris County jailing some of its poorest people because of their inability to pay a small amount of money. The Plaintiffs are arrestees, who are imprisoned by the County because they cannot afford to pay the amount of money generically set by the fixed "bail schedule" used by Harris County and the jail with which it contracts. On behalf of the many other individuals subjected to the Defendants' illegal post-arrest wealth-based detention scheme, the Plaintiffs challenge in this action the use of Harris County's predetermined schedule of money bail that operates to detain only the most impoverished of arrestees. The Plaintiffs also ask to join in the Motion for Class Certification filed in related case ODonnell v. Harris County. They assert that they represent the same Class of similarly situated individuals seeking declaratory and injunctive relief in ODonnell v. Harris County: All individuals who are or will be detained by Harris County for any amount of time after arrest because they are unable to pay money bail. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=IK7cu9U7 The Plaintiffs are represented by: Neal S. Manne, Esq. Lexie G. White, Esq. SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, TX 77002 Telephone: (713) 651-9366 E-mail: nmanne@susmangodfrey.com lwhite@susmangodfrey.com - and - Michael Gervais, Esq. SUSMAN GODFREY L.L.P. 560 Lexington Avenue, 15th Floor New York, NY 10022 Telephone: (212) 336-8330 E-mail: mgervais@susmangodfrey.com - and - Rebecca Bernhardt, Esq. TEXAS FAIR DEFENSE PROJECT 314 E. Highland Mall Blvd., Suite 108 Austin, TX 78752 Telephone: (512) 637-5220 E-mail: rbernhardt@fairdefense.org - and - Alec Karakatsanis, Esq. Elizabeth Rossi, Esq. ATTORNEYS, EQUAL JUSTICE UNDER LAW 601 Pennsylvania Ave. NW South Building, 9th Floor Washington, DC 20004 Telephone: (202) 670-1004 E-mail: alec@equaljusticeunderlaw.org erossi@equaljusticeunderlaw.org HESKA CORPORATION: Class Certification Sought in "Fauley" Suit -------------------------------------------------------------- The Plaintiff in the lawsuit titled SHAUN FAULEY, individually and as the representative of a class of similarly-situated persons v. HESKA CORPORATION and JOHN DOES 1-10, Case No. 1:15-cv-02171 (N.D. Ill.), seeks an order from the Court certifying this class: All persons or entities who were successfully sent one or more facsimiles regarding Heska Corporation's goods or services from March 12, 2011, through July 21, 2014, that either (1) contain no "opt-out notice" explaining how to stop future faxes or (2) contain an opt-out notice stating, "To unsubscribe from Heska's promotional faxes, please call 800-464-3752, ext. 4565 or fax (970) 619-3008, and indicate your clinic name and fax number." The Case arises out of Heska Corporation's alleged practice of sending faxes advertising its veterinary products across the country. The Plaintiff alleges that the Plaintiff received 20 such faxes from 2011 to 2014, and brought a lawsuit alleging that Heska's faxes violated the Telephone Consumer Protection Act of 1991. According to the Motion, records produced in discovery and reviewed by both parties' experts show that Heska sent many thousands of faxes during the four-year class period. The Plaintiff alleges these faxes are unsolicited advertisements, and that they lack the "opt-out notice" required for a fax sender to claim "established business relationship" or "prior express invitation or permission." The Plaintiff also asks the Court to appoint Plaintiff as class representative and appoint the law firm of Anderson + Wanca as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=e3lu3B6w The Plaintiff is represented by: Brian J. Wanca, Esq. Glenn L. Hara, Esq. Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com GHara@andersonwanca.com RKelly@andersonwanca.com HONEST CO: Faces "Cesarini" Suit Over False Product Advertising --------------------------------------------------------------- MICHAEL CESARINI, an individual on behalf of himself and all others similarly situated, Plaintiff v. THE HONEST COMPANY, INC. and DOES 1 through 25, inclusive, Defendants, Case 8:16-cv-00880 (C.D. Cal., May 13, 2016), claims violations by the Defendants of the California Consumer Legal Remedies Act, California Unfair Competition Law, California False Advertising Law, breach of express warranty and negligent misrepresentation in relation to their advertising of foaming hand soap, honest auto dishwasher gel, honest dish soap and other honest brand products. THE HONEST COMPANY, INC. markets and sells home cleaning and personal care products throughout California and the United States, through various retailers including Target, Costco, and others. The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 West Pacific Coast Highway, Suite 350 Newport Beach, CA 92663 Phone: (949)263-5992 Fax: (949)209-1948 E-mail: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq., Esq. 111 W. Ocean Blvd., Suite 400 Long Beach, CA 90802 Phone: (562) 612-1708 Fax: (562) 394-9556 E-mail: ross.law@me.com IRON PROTECTION: "Bartz" Suit Asserts FLSA, Col. Wage Law Breach ---------------------------------------------------------------- PATRICK BARTZ, Individually, and On Behalf of All Others Similarly Situated, Plaintiff, v. IRON PROTECTION GROUP, LLC, GENERAL CANNABIS CORP., HUNTER GARTH, GLENN WEATHERLY, and ROBERT FRICHTEL, Defendants, Case 1:16-cv-01078 (D. Col., May 11, 2016), alleges willful violations by the Defendants of the federal Fair Labor Standards Act, Colorado Wage Act, and Colorado Minimum Wage Order. Iron Protection Group is a wholly owned subsidiary of General Cannabis. IPG provides security and training services to government agencies, multinational corporations, diplomats, dignitaries and non-profit organizations, both domestic and abroad. The Plaintiff is represented by: Jason T. Brown, Esq. JTB LAW GROUP, LLC Phone: (877) 561-0000 Fax: (855) 582-5297 E-mail: jtb@jtblawgroup.com JEFFERSON PARISH, LA: Begins Refund of Red Light Camera Tickets --------------------------------------------------------------- Heather Miller, writing for WGNO, reports that if you paid a ticket through the Jefferson Parish red light camera program, you might be owed a refund. According to a news release from the state Treasurer's Office, a class action suit filed in Jefferson Parish led to refunds for more than 50,000 people who paid red light camera tickets. The treasurer's office said there are $1.3 million worth of checks that were never cashed. Most people will get a $23.18 refund, the treasurer's office said. The red light ticket program operated in Jefferson Parish from 2007-2010. Officials abandoned the program after questionable payments came to light from the Arizona-based red light camera company to local lobbyists. Louisiana residents are encouraged to search the treasurer's unclaimed property database online or call the Treasury's toll- free hotline at 1-888-925-4127 (Monday-Friday, 8 a.m. to 4:30 p.m.). KCBX TERMINALS: Settles Petcoke Class Action for $1.4 Million ------------------------------------------------------------- Joseph S. Pete, writing for The Times, reports that companies that handled petcoke on the Calumet River have agreed to pay more than $1.4 million to settle a class-action lawsuit after clouds of the black, powdery oil refining byproduct swept across Chicago's Southeast Side in 2014. Residents sued KCBX Terminals, Koch Carbon, Chicago Fuels Terminal, Calumet Transload Railroad, and Hammond-based Beemsterboer Slag and Ballast Corp. for "failing to take reasonable and adequate measures to prevent petroleum coke and coal dust from contaminating communities located in Chicago, Illinois." The companies agreed to pay $1.455 million into a settlement fund that will be divided among affected people who submit claim forms. People who own property between Torrence Avenue on the west, 95th Street on the north, the Illinois-Indiana border on the east and 114th Street on the south are eligible for cash payments. Claims in the class-action lawsuit must be filed before Sept. 24. Beemsterboer Slag Corp. and KCBX closed petcoke storage facilities on the Calumet River last year after the city, state and federal authorities cracked down, requiring that any petcoke be enclosed so winds couldn't again blow it around the residential neighborhood. KCBX continues to operate a petcoke facility at 108th Street, where the grainy substance is shipped off so it can be burned in energy plants and steel mills, often abroad. LANDRY'S INC: Certification of Class Sought in "Griffith" Action ---------------------------------------------------------------- The Plaintiffs in the lawsuit styled JEFFREY GRIFFITH, JONATHAN BLOCHER, ANNETTE RODRIGUEZ, And JOSEPH LEVI, on behalf of themselves and all others similarly situated v. LANDRY'S, INC., CHLN, INC. D/B/A/ CHART HOUSE F/K/A LANDRY'S SEAFOOD HOUSE, Case No. 8:14-cv-03213-MSS-JSS (M.D. Fla.), file with the Court their motion for class certification. Plaintiff Jonathan Blocher, on behalf of himself and other former and current tipped employees of the Defendants' restaurants, challenges the legality of Landry's Employee Discount Program -- a program that the Defendants have implemented and administer in a uniform way at all of their restaurants. The Plaintiff moves for certification of this class: All individuals who worked at Chart House and/or Landry's Seafood House restaurants in Florida at any time during the Relevant Class Liability Period [beginning December 14, 2009] for whom Defendants claimed a tip credit to meet Defendants' minimum wage obligations under Article X, Section 24 of the Florida Constitution and who participated in Defendants' Employee Discount Program. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kWzS8ObZ The Plaintiffs are represented by: Sam J. Smith, Esq. Loren B. Donnell, Esq. Tamra Givens, Esq. BURR & SMITH, LLP 111 2nd Avenue N.E., Suite 1100 St. Petersburg, FL 33701 Telephone: (813) 253-2010 E-mail: ssmith@burrandsmithlaw.com ldonnell@burrandsmithlaw.com tgivens@burrandsmithlaw.com - and - Hillary Schwab, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3261 E-mail: hillary@fairworklaw.com LENDINGCLUB CORPORATION: "Evellard" Sues Over Share Price Drop -------------------------------------------------------------- Steeve Evellard, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Lendingclub Corporation, Renaud Laplanche and Carrie L. Dolan, Defendants, Case No. 3:16-cv-02627 (N.D. Cal., May 16, 2016) seeks to recover compensable damages for violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. The complaint says the Defendant made materially false and misleading statements about its business, operational and compliance policies with regards to its initial public offering. Plaintiff alleges that internal controls were inadequate to ensure that loans conformed to customer criteria and third-party transactions were fully and timely disclosed. LendingClub's stock fell $2.48 per share, or nearly 35%, to close at $4.62 per share on May 9, 2016. Plaintiff purchased LendingClub common stock and lost substantially. LendingClub operates as an online marketplace that connects borrowers and investors in the United States. Its marketplace facilitates various types of loan products for consumers and small businesses, including unsecured personal loans, super prime consumer loans, unsecured education and patient finance loans, and unsecured small business loans. The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 468 North Camden Drive Beverly Hills, CA 90210 Telephone: (818) 532-6449 Email: jpafiti@pomlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 Email: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Facsimile (212) 697-7296 Email: peretz@bgandg.com LEXISNEXIS: CCAF Urges Supreme Court to Review Settlement --------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a Washington, D.C.-based public interest law firm filed a petition with the U.S. Supreme Court, urging the court to review a class action settlement that it argues is unfair to class members. On May 19, the Competitive Enterprise Institute's Center for Class Action Fairness, or CCAF, filed its petition for writ of certiorari with the nation's highest court. CCAF's petition was filed after a federal appeals court refused to review the deal -- one of two reached over the sale of personal data reports to debt collectors -- for a second time. The U.S. Court of Appeals for the Fourth Circuit initially ruled against CCAF in a Dec. 4, 2015 decision. Two weeks later, the center asked the Fourth Circuit to rehear the case against LexisNexis, a company known for providing computer- assisted legal research and business research and risk management services. The appeals court denied CCAF's petition for rehearing and rehearing en banc Jan. 4. CCAF argues the Fourth Circuit failed to follow governing Supreme Court law that recognizes the "inherent potential for abuses" of the class action settlement process. "The Supreme Court has an opportunity to bring clarity for thousands of class members who want to opt out of class actions," said Adam Schulman, a CEI attorney. If the Supreme Court agrees to hear the case, it could resolve splits in circuit court decisions over whether the law provides damages claimants the right to opt out of class actions and, if not, whether the Due Process Clause guarantees that right. The sole statute at issue in the litigation, the Fair Credit Reporting Act, does not permit private parties to seek injunctive relief. "Review by this Court is needed to resolve such conflicts and to protect the due process rights of literally hundreds of millions of absent class members in this and other cases," CCAF's 29-page petition states. The center argues the settlement was unfair to the class and that class attorneys sought excessive fees -- more than $5 million, on top of their fees from a related settlement. The class action centered around LexisNexis Risk and Information Analytics Group's sale of personal data reports to debt collectors -- in particular, its Accurint reports. The reports are used to locate people and assets, authenticate identities and verify credentials. The Accurint database contains information on more than 200 million people, and millions of such reports are sold each year. The action claims the defendants -- including LexisNexis Risk & Information Analytics Group Inc., now LexisNexis Risk Solutions FL Inc.; Seisint Inc., now LexisNexis Risk Data Management Inc.; and Reed Elsevier Inc. -- prepared and sold Accurint searches and reports, that these reports were "consumer reports" under the Fair Credit Reporting Act, and that the defendants failed to follow certain FCRA requirements that apply to consumer reports, including handling disputes about the reports' contents and providing consumers with full copies of reports about them. A federal district court did not decide whether the reports were consumer reports, or that either side was right or wrong. Instead, both sides agreed to settle, thus resolving the case and providing benefits to consumers. Two settlements were proposed -- by the same group of lawyers. Class counsel included Leonard Bennett of Consumer Litigation Associates PC in Newport News, Va.; Dale Pittman of the Law Office of Dale W. Pittman PC in Petersburg, Va.; Michael Caddell and Cynthia Chapman of Caddell & Chapman in Houston, Texas; and James Francis of Francis & Mailman PC in Philadelphia. One deal, on behalf of 31,000 people, established a $13.5 million settlement fund covering payments to class members, $3.375 million in attorneys' fees and expenses, and incentive awards totaling $30,000 to the class representatives. CCAF did not object to that settlement, but to another deal, on behalf of 200 million people. The second settlement established no fund, rather it put in place a new regime for the next several years with regards to Lexis' reports and paid the attorneys $5.5 million -- on top of their fees from the other settlement -- and did not allow class members to opt out. Judge James R. Spencer of the U.S. District Court for the Eastern District of Virginia ruled on Sept. 5, 2014 that both proposed settlements were a "fair, reasonable and adequate bargain" between the defendants and the plaintiffs. However, some class members objected to the settlements, and filed a notice of appeal with the Fourth Circuit. The objectors argued that Lexis violated the FCRA "willfully," making statutory damages of $100 and $1,000 available to all of the class members. The Fourth Circuit, in its Dec. 4, 2015 ruling, found no error in the district court's release of the statutory damages claims as part of the settlement, and affirmed. "Willfulness is a high standard, requiring knowing or reckless disregard of the FCRA's requirements," the appeals court wrote. The objectors also took issue with certification of the settlement class under Rule 23(b)(2), on the grounds that the monetary relief sought was not incidental to injunctive or declaratory relief. The Fourth Circuit disagreed, finding that the terms of the deal made opt-out rights unnecessary. CCAF has argued the appeals court's decision sets an "unfortunate precedent" for future class action cases. "The Fifth, Seventh, Eleventh circuits and even the Supreme Court have all found differently -- injunctive relief is only appropriate where class members' claims allow for injunctive relief," Mr. Schulman said following the Fourth Circuit's ruling last year. LIBERTY INN: Faces "Arellano-Castillo" Suit in Illinois ------------------------------------------------------- Edgar Maximo Arellano-Castillo individually and on behalf of other employees similarly situated, Plaintiff v. Liberty Inn, Inc. dba Liberty Restaurant and George Frangos, individually, Defendants, Case: 1:16-cv-05280, (N.D. Ill., May 17, 2016), was filed pursuant to the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. Defendants operate a restaurant called "Liberty Restaurant" located at 419 South Milwaukee Avenue, Illinois 60048. The Plaintiff is represented by: Valentin T. Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Phone: 312-878-1302 E-mail: vnarvaez@yourclg.com LIBERTY MUTUAL: Class Can Bring Simultaneous ERISA Claims --------------------------------------------------------- Carmen Castro-Pagan, writing for Bloomberg BNA, reports that a class of participants in Liberty Mutual Insurance Co.'s pension plan seeking past service credit can bring simultaneous claims for recovery of benefits and equitable relief under ERISA, the U.S. Court of Appeals for the Ninth Circuit ruled. In its May 20 decision, the three-judge appellate panel held that under CIGNA Corp. v Amara, 563 U.S. 421 (2011), if participants are unable to recover benefits based on plan interpretation and enforcement, they can still receive reformation of the plan as an equitable remedy. The appeals court agreed with the U.S. Court of Appeals for the Eighth Circuit's application of Amara in Silva v. Metro. Life Ins. Co., 762 F.3d 711 (8th Cir. 2014). There, the Eighth Circuit held that a plaintiff may seek both a claim for benefits under Employee Retirement Income Security Act Section 502(a)(1)(B) and equitable relief under ERISA Section 502(a)(3) (153 PBD, 8/8/14). The dispute at issue stems from Liberty's acquisition of Golden Eagle Insurance Co. in 1997. A group of former Golden Eagle employees filed an ERISA class action against Liberty to recover benefits. They also asked the court to award them equitable remedies--something that is available under ERISA Section 502(a)(3)'s catchall provision. They alleged that during the acquisition, Liberty told them that they could participate in Liberty's defined benefit pension plan with full credit for the years of service they worked at Golden Eagle. Upon retirement, they learned they wouldn't get such credit. The district court certified the class and later granted summary judgment to Liberty, holding that the administrator didn't abuse its discretion in calculating benefits without reference to their service at Golden Eagle (128 PBD, 7/3/13). The district court also held that the participants couldn't simultaneously seek benefits under Section 502(a)(1)(B) and equitable relief under Section 502(a)(3). Alternative Theories of Liability The appeals court agreed that under the plain language of the plan, it was reasonable to determine that the participants' service time with Golden Eagle was excluded from benefit accruals. However, it reversed the district court's decision that the participants' equitable claims were in essence claims for monetary relief of their denial past service credit benefits. Participants may present both claims as alternative -- rather than duplicative -- theories of liability, the appeals court said. This approach is an accurate application of U.S. Supreme Court precedent because it allows participants to plead alternative theories of relief without obtaining double recoveries, the court said. The district court also erred in granting summary judgment to Liberty since there was a factual dispute of whether Liberty breached its fiduciary duty by failing to inform Golden Eagle employees that past service credit for the purpose of benefit accrual didn't include the period prior to October 1997, the court said. The opinion was written by Judge Harry Pregerson and joined by Judge Consuelo M. Callahan and District Judge Stanley A. Bastian, sitting by designation. The Butler Firm, Jack Winters Jr., and Nicholas & Tomasevic represented the participants. Jackson Lewis PC represented Liberty. LOS ANGELES, CA: Agency on Deafness Seeks Class Certification ------------------------------------------------------------- The Plaintiffs in the lawsuit entitled GREATER LOS ANGELES AGENCY ON DEAFNESS, INC., a 501(c)3 nonprofit organization; RONDOL HOBART v. COUNTY OF LOS ANGELES, a public entity; DOES 10-10, Inclusive, Case No. 2:14-cv-04269-CJC (JPRx) (C.D. Cal.), filed with the Court their second amended motion to certify the proceeding as a class action. A hearing will be held on July 11, 2016, at 1:30 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=2YnXzciC The Plaintiffs are represented by: Greg W. Garrotto, Esq. LAW OFFICES OF GARROTTO & GARROTTO 1925 Century Park East, Suite 2000 Los Angeles, CA 90067 Telephone: (310) 229-9200 Facsimile: (310) 229-9209 E-mail: jjggarrotto@msn.com MARRIOT OWNERSHIP: "Lennen" Suit Alleges Breach of Contract ----------------------------------------------------------- Anthony Lennen and Beth Lennen, Individually and on behalf of all others similarly situated, Plaintiffs, v. Marriott Ownership Resorts, Inc., Marriott Vacations Worldwide Corporation, Marriott Resorts Travel Company, Inc., Marriott Title Insurance, MVC Trust Owners Association, First American Financial, First American Trust, FSB, First American Title Company, Orange County Florida and Orange County Comptroller, Martha O. Haynie, Defendants, Case No. 6:16-cv-00855-CEM-TBS (M.D. Fla., May 20, 2016), seeks punitive damages, attorney's fees and costs, pre-judgment interest and any other relief under the Racketeer Influenced and Corrupt Organization Act. Anthony and Beth Lennen purchased Marriott's points-based timeshare product which, they were made to believe, conveys a Florida timeshare estate and a beneficial interest in a Florida land trust. Plaintiffs allege that it was all a farce and it was just a use license for selected corporately-owned timeshare estates in 44 locations in 11 different states. Marriott International, Inc. is a Delaware corporation with its principle place of business located in Baltimore, Maryland and is into the hotel and condominium business. Marriott Ownership Resorts, Inc. is a Delaware Corporation with its principal place of business in Orlando, Florida. It is a developer that operates a timeshare plan. Marriott Resorts, Travel Company, Inc. is a Delaware Corporation with its principle place of business located in Orlando, Florida. Marriott Resorts Hospitality Corporation, Inc. is a South Carolina Corporation with its principle place of business in Orlando, Florida and is a management firm. Plaintiff is represented by: Christopher Stephen Polaszek THE POLOSZEK LAW FIRM, PLLC 3407 W. Kennedy Blvd. Tampa, FL 33609 Tel: (813) 574-7678 Email: chris@polaszeklaw.com - and - Lucas A. Ferrara, Esq. Jeffrey M. Norton, Esq. Roger A. Sachar, Jr., Esq. 1250 Broadway, 27th Fl. New York, NY 10001 Tel: (212) 619-5400 E-mail: lferrara@nflllp.com jnortong@nflllp.com rsachar@nfllp.com - and - Soomi Kim, Esq. 2400 South College Drive High Point, NC 27260 Tel: (336) 471-8769 E-mail: soomiwork@gmail.com MARRIOTT VACATION: Faces Class Action Over Timeshare Sales ---------------------------------------------------------- Paul Brinkmann, writing for Orlando Sentinel, reports that Marriott Vacation Club's timeshare sales are actually an illegal "racketeering" scheme, a new proposed class-action lawsuit says. The lawsuit takes aim at Marriott's points program, which replaced traditional sales of timeshare weeks at specific resorts in 2010. According to the suit, Marriott timeshare customers pay fees associated with owning real estate -- such as closing costs and recording fees -- but don't actually own any real estate. The suit also targets First American Title Company -- the trustee for Marriott's land trust -- and Orange County and Orange County Comptroller Martha Haynie. The plaintiffs are two timeshare buyers, Anthony and Beth Lennen. The lawsuit says Marriott timeshare buyers "are being duped into believing they are obtaining title to a real-property interest . . . . when, in fact, they are merely getting a right-to-use license," the lawsuit says. MCLEOD EXPRESS: Downs Wants to Send Court-Approved Class Notices ---------------------------------------------------------------- The Plaintiff in the lawsuit styled MICHELLE D. DOWNS, on behalf of herself and all others similarly situated v. MCLEOD EXPRESS LLC, and MARK R. MCLEOD, an individual, Case No. 2:16-cv-02060-HAB (C.D. Ill.), asks the Court for an order: (1) directing the Defendants to provide forthwith to counsel for the Plaintiff a list of the names and last known addresses of each individual they employed as a driver within the City Division to transport corn meal and corn germ at ADM in Decatur, Illinois, at any time during the period beginning March 8, 2013, and ending March 8, 2016; and (2) approving the proposed form of notice. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=9DXhEh8h The Plaintiff is represented by: James A. Devine, Esq. JAMES A. DEVINE, ATTORNEY AT LAW 607 East Adams, Suite 1510 Springfield, IL 62701 Telephone: (217) 788-0798 Facsimile: (217) 788-1660 E-mail: jamesalbertdevine@gmail.com - and - John A. Baker, Esq. BAKER, BAKER & KRAJEWSKI, LLC 415 South Seventh Street Springfield, IL 62701 Telephone: (217) 522-3445 Facsimile: (217) 522-8234 E-mail: jab@bbklegal.com MEDSTAR HEALTH: Class of 9 Dept-Specific Collectives Certified -------------------------------------------------------------- The Hon. Colleen Kollar-Kotelly entered a memorandum opinion and order in the lawsuit titled DANIELLE FREEMAN, et al. v. MEDSTAR HEALTH INC., et al., Case No. 14-628 (CKK) (D.D.C.), granting-in- part and denying-in-part the Plaintiffs' revised motion for order authorizing notice to similarly situated persons. The Plaintiffs are current and former hospital employees, who bring claims against MedStar Health, Inc. and against six MedStar hospitals. In addition to the individual claims that they bring in the Action, the Plaintiffs seek to bring collective action claims under the Fair Labor Standards Act with respect to 20 departments of four hospitals at which they, severally, have worked -- Franklin Square Hospital, Harbor Hospital, Union Memorial Hospital, and Washington Hospital Center. The Court grants the motion as to nine proposed department- specific collectives unaffected by the motion for partial summary judgment. The Court conditionally certifies these nine collectives, and authorizes the sending of notices to all employees, who worked in any of these nine departments within three years of the date of this Order: -- MedStar Franklin Square Medical Center: * Intensive Care Unit; and * Pharmacy Department; -- MedStar Harbor Hospital: * Oncology Department; * Orthopedic Department; * Pediatric Department; * Telemetry Department; and -- MedStar Washington Hospital Center: * Cardiac Arrhythmia Center; * Unit 4D; and * Trauma Department The Court also ordered that the Revised Motion is denied as to all proposed collectives other than the nine collectives. The Court says it will definitively resolve the final form of the notice to be sent to the employees in those collectives after providing the parties an opportunity to resolve several remaining issues regarding the notice and the methodology for distributing that notice. The Court directed the parties to confer regarding the remaining issues pertaining to the notice, and must file a Joint Status Report regarding the parties' attempt to resolve those issues jointly by no later than June 3, 2016. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZYqUrdv0 MICROSOFT CORP: July 25 Class Action Opt-Out Deadline Set --------------------------------------------------------- If You Bought Microsoft Software or a Computer with Microsoft Software Between December 23, 1998 and March 11, 2010 (inclusive) You May Have Legal Rights in a Class Action Lawsuit WHAT'S THIS ABOUT? Class action proceedings have been certified or authorized by the courts of British Columbia, Ontario and Quebec alleging that beginning in 1988, Microsoft engaged in anticompetitive conduct resulting in overcharges for the following Intel-compatible personal computer ("PC") operating systems and Intel-compatible PC applications software: Word, Excel, Office, Works Suite, Home Essentials, MS-DOS, and Windows ("Microsoft Software"). The Courts have not yet made any decision on the merits of the claim or the defences in any of the three separate class actions. WHO IS INCLUDED? You are a class member in one of the class actions if you live in Canada at the time of this notice and, between December 23, 1998, and March 11, 2010 (inclusive) you purchased for your own use (not for resale) genuine Microsoft Software or a PC loaded with genuine Microsoft Software from someone other than Microsoft, and do not opt out of the appropriate class action (the "Class Members"). WHAT DO I NEED TO DO? If you are a Class Member, you do not need to do anything to continue to be included in the appropriate class action. You will be bound by any decisions in the appropriate class action and you may share in any money that may ultimately be paid to Class Members. Unless you exclude yourself from the appropriate class action, you cannot bring your own lawsuit. You should preserve any records relating to proof of purchase and the purchase amount of any Microsoft Software or PC loaded with Microsoft Software. WHAT DO I NEED TO DO IF I DON'T WANT TO BE BOUND? If you do not want to be a Class Member who is legally bound by these class actions, you must exclude yourself by July 25, 2016. To learn how to exclude yourself, contact class counsel at the address and website information below. If you exclude yourself by the deadline, you may be able to bring your own lawsuit, but you cannot collect any money that may ultimately be paid to Class Members as a result of these class actions. WHO PAYS THE LAWYERS? If the class actions are successful, class counsel have agreements with the representative plaintiffs in each of the class actions that they are paid a percentage of the total amount that they obtain for the Class Members. The agreements can only be enforced if approved by the courts. The courts will also have to approve the amount that is paid to class counsel. WHERE CAN I GET MORE INFORMATION? More information can be found at www.cfmlawyers.ca/microsoft/ or www.bptavocats.com or www.strosbergco.com/microsoft You can also contact class counsel at the contact information below. It is strongly recommended that you review the long form of this Legal Notice which can be obtained on class counsel's websites. If you are resident in B.C., contact: Camp Fiorante Matthews Mogerman 400-856 Homer Street, Vancouver, BC V6B 2W5 1-800-689-2322 or (604) 689-7555 www.cfmlawyers.ca/microsoft Attn: Linnae Roach microsoft@cfmlawyers.ca If you are resident in Quebec, contact: Bouchard Page Tremblay, s.e.n.c 510-825 boul. Lebourgneuf, Quebec, QC, G2J 0B9 1-855-768-6667 or (418) 622-6699 www.bptavocats.com Attn: Brian A. Garneau recourscollectifs@bptavocats.com All other Canadian residents, contact: Sutts, Strosberg LLP 600 - 251 Goyeau Street Windsor, ON, N9A 6V4 1-800-229-5323 extn.8296 www.strosbergco.com/microsoft Attn: Heather Rumble Peterson microsoft@strosbergco.com This notice contains a summary of some of the terms of the certification/authorization orders in the class actions. If there is a conflict between the provisions of this notice and the orders, including the schedules to the orders, the terms of the courts' certification/authorization orders in each class action shall prevail. MID-CENTRAL EDUCATIONAL: Faces Class Action Over GEAR UP Grants --------------------------------------------------------------- Michael Wyland, writing for Nonprofit Quarterly, reports that a Native American college student in South Dakota has filed a class action lawsuit against Mid-Central Educational Cooperative, a local public education agency serving 13 rural school districts. Alyssa Black Bear alleges that Mid-Central failed to honor its contract with the South Dakota Department of Education as it administered two federal grants intended to help Native American and other low-income youth in the state prepare for and be successful in college. The lawsuit does not request a specific amount in damages and does not name any additional plaintiffs, though more aggrieved former and current students may join the suit at a later time. NPQ readers may remember allegations that Mid-Central's administration of up to $62 million in federal GEAR UP program grants was riddled with waste, fraud, poor record-keeping, and countless conflicts of interest. Black Bear's 13-page complaint identifies state agencies, several nonprofit organizations, and several individuals that had some role in administering and/or evaluating the grant funded program. Mid-Central has 30 days to respond to the complaint. Meanwhile, Mid-Central is suing one of its former nonprofit partners, the American Indian Institute for Innovation (AIII), for unspecified damages for "breach of contract, as well as fraud and deceit and taking Mid-Central's property for its own use," according to the story reporting the lawsuit. AIII's founder and chief financial officer was Scott Westerhuis, who was also the longtime senior finance official at Mid-Central. Last September, Westerhuis murdered his wife and four children, burned the family home to the ground, and committed suicide less than a day after being told that the state had suddenly cancelled Mid-Central's GEAR UP management contract. Mid-Central had previously sued the Westerhuis estate for more than $2 million related to GEAR UP, alleging that there was a "reasonable chance" that he has misappropriated funds from Mid-Central. AIII, for its part, is also suing the Westerhuis estate in an attempt to recover GEAR UP funds it says were misappropriated. In the wake of the scandal and as a consequence of the state education department's decision to terminate all contractual agreements with it, Mid-Central has decided to dissolve in 2017. Its member school districts will align with other educational cooperatives in the state to share costs and curriculum for special education, related services, and professional development provided to their students and employees. Will Mid-Central have any money left for Black Bear and other plaintiffs to collect? Can they sue the school districts that make up Mid-Central, or the state education department that failed to exercise proper oversight as it promised to the federal government, or will sovereign immunity protect these governmental entitles from responsibility to the students who were shortchanged? MONDELEZ INT'L: Faces Class Action Over Snack Foods Slack Fill -------------------------------------------------------------- Jamie Kelly, writing for Legal Newsline, reports that a class action lawsuit against food and beverage company Mondelez International claiming some of its packaging contains non- functional slack fill is just the latest example of customers suing over what they see as deceptive marketing, a consumer advocate says. "We have seen great number of cases being brought in regard to non-functional slack fill," Bonnie Patten, executive director of truthinadvertising.org, recently told Legal Newsline. "I think there were 34 cases in 2015, and it looks like 2016 is on track to have similar number of cases. It's definitely a hot item for class actions at the moment." The lawsuit, filed in U.S. District Court for the Northern California District, alleges that the company's "Go Paks," which contain snack foods such as Teddy Grahams, are under-filled by 25 percent or more. Ms. Patten said that one of the reasons consumers have been more file such class action suits over slack fill is likely because they can easily see the amount in a package. "Because it's a very visual issue, consumers can readily understand this issue," she said. "They have an expectation of how much they're going to receive when they buy something, so they really do feel misled when they open the package and only, say, 60 percent of the volume is taken up by the good." She pointed to the fact that as many as a dozen cases were filed against spice maker McCormick between June and November 2015. In those cases, consumers allege that McCormick reduced the amount of black pepper in a container by 25 percent, but kept the same size container and charged the same price. "If I've been buying the same product for 'x' number of years, there's an assumption that it stayed the same," she said. Even as they become more popular, such cases aren't necessarily easy to win, Ms. Patten said. At the federal level, food, drugs and cosmetics are covered by the Fair Packaging and Labeling Act, which doesn't allow private individuals to file suits about misleading packaging. States, however, are free to write their own laws that do allow such lawsuits. There isn't much case law on the subject, and that can be a strong defense, so it's difficult to predict an outcome, she said. Even when consumers do prevail, though, it isn't necessarily a big payday for any of the litigants. "I don't think plaintiffs will get an economic windfall in these kinds of cases," Ms. Patten said. "My best guess is that if there's a settlement, you're going to see a change in packaging, which obviously is very costly for corporations. And then what I would guess is that consumers will either get a rebate or a coupon, because the claims here are about quantity of product, not that they didn't want the product in the first place." A spokeswoman for Mondelez International declined to comment, citing a corporate policy against speaking about pending lawsuits. MOORE STEPHENS: 2nd Cir. Affirms Securities Class Action Ruling --------------------------------------------------------------- Michael Cohn, writing for Accounting Today, reports that Moore Stephens' Hong Kong firm won a victory in a New York federal appeals court on a case that could have a far-reaching impact on class-action lawsuits involving audit reports. The U.S. Court of Appeals for the Second Circuit affirmed on May 20 prior rulings in a securities class-action lawsuit against Moore Stephens Hong Kong for its audits of Puda Coal, a publicly traded, U.S.-listed company headquartered in China, which at one time held a 90 percent ownership stake in a Chinese coal company, Shanxi Puda Coal Group Co. In September 2009, Puda's chairman transferred Puda's entire interest in Shanxi Coal to himself, leaving Puda a shell company. The transfer was reflected in shareholder meeting minutes and in documents filed in China's State Administration of Industry and Commerce. But Puda's financial statements for 2009 and 2010 included all of the assets, liabilities, revenues, expenses, and net income for Shanxi Coal. Nevertheless, Moore Stephens Hong Kong issued clean audit opinions for Puda's 2009 and 2010 financial statements under Public Company Accounting Oversight Board standards. When the Shanxi Coal transfer became public knowledge in April 2011, Moore Stephens resigned as Puda's auditor and announced that its 2009 and 2010 audit opinions could no longer be relied upon. Puda's investors filed a securities class-action lawsuit shortly after news broke of the Shanxi Coal transfer, alleging that Moore Stephens (and others) violated Section 11 of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 (and Rule 10b-5). At the trial, a witness, Anita C.M. Hou, testified that Moore Stephens failed to comply with the auditing standards of Hong Kong and/or the People's Republic of China. However, she also admitted that she was not an expert on PCAOB standards and could not opine on whether the audits complied with PCAOB standards. Moore Stephens brought forward Alexander H. Mackintosh as its own expert witness on PCAOB standards. He opined that Moore Stephens' 2009 and 2010 audits fully complied with PCAOB standards. The district court struck out Hou's testimony and granted summary judgment in favor of Moore Stephens on the grounds that Hou did not have the necessary expertise to offer opinions on matters relevant to the case. The appeals court agreed with the lower court and also found Moore Stephens did not act recklessly or with the intent to deceive, manipulate or defraud. The court cited a 2015 Supreme Court case, Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, which found that statements of opinion are actionable under Section 11 of the Securities Act of 1933 as false or misleading only if the issuer of the opinion held a subjective belief inconsistent with the opinion, or if the opinion omits material facts about the issuer's inquiry into or knowledge concerning a statement of opinion if those facts conflict with what a reasonable investor would take from the statements of opinion itself. "Audit reports, labeled 'opinions' and involving considerable subjective judgment, are statements of opinion subject to the Omnicare standard for Section 11 claims," said the Second Circuit in its ruling on May 20. "There is no evidence that Moore Stephens did not believe its 'clean audit opinions' for Puda's 2009 or 2010 financial statements. Nor is there evidence that Moore Stephens omitted material facts about the basis for its audit reports. Plaintiffs-appellants cannot sustain their Section 11 claim." Of critical importance for accountants, the Second Circuit held that audit reports involve significant subjective judgment and are statements of opinion subject to the Supreme Court's ruling in Omnicare. "The court ruled it is essentially an opinion on the financial statements, and you have to meet the standard under a Supreme Court decision called Omnicare to show that the auditors either didn't believe that opinion at the time that they offered it, or omitted facts that would make the opinion untrue, which is a pretty big step up in the proof you would have to make against an auditor than merely showing that the underlying financial statements have an error," said Brian Massengill, a partner at the law firm Mayer Brown LLP, which represented Moore Stephens in the case. The ruling could be influential on future cases involving audit firms, even if it doesn't establish a direct precedent. However, the Second Circuit includes the Southern District of New York, where most securities lawsuits are brought, including this one. "Because they did it in a summary order, it is not precedential, so it doesn't require any court to follow it," said Mr. Massengill. "But it is the reasoning of a panel in the Second Circuit, so I think courts would certainly look to this decision and the Second Circuit's reasoning under Section 11." The chances of a successful appeal to the full court or the Supreme Court are remote, as the full appeals court agrees to hear only a tiny fraction of cases decided by the panel that handed down the ruling. NAT'L FOOTBALL: Rejects Improper Influence Claim Over NIH Study --------------------------------------------------------------- Mike Florio, writing for Pro Football, reports that the NFL has remained silent in the hours since news emerged of a Congressional report that the league unduly influenced the selection of a researcher to lead a National Institutes of Health study regarding head trauma. While the NFL still has not yet provided specifics, the league has issued a categorical rejection of the conclusion. "We are reviewing the report but categorically reject any suggestion of improper influence," NFL spokesman Brian McCarthy told PFT via email. Given the league's position, and based on the precedent created by the league's zealous opposition to a New York Times report regarding flawed concussion research and (tenuous) links between Big Shield and Big Tobacco, it's safe to assume that, eventually, a lengthy and detailed response will be provided by the NFL. Whether that persuades the media or the public or otherwise undoes the preliminary damage from the 91-page report remains to be seen. For now, the report has created an impression that the league wanted to steer a study regarding Chronic Traumatic Encephalopathy in living patients away from someone whom the league regarded as being adverse to its interests. Regardless of whether the league did or didn't exert undue influence, it's not a surprise that the league would have concern about a test for detecting CTE in players who have not yet died. If/when a test is developed and if/when it results in the widespread detection of CTE in NFL, college, and/or high school players, the NFL could experience something far more dangerous to the future of the league than a class-action lawsuit. NATIONAL COLLEGIATE: "Hermann" Files Suit Over Players' "TBI" ------------------------------------------------------------- RONALD W. HERMANN, II, individually and on behalf of all others similarly situated, Plaintiff, v. SOUTHEASTERN CONFERENCE and THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants, Case 2:16- cv-01042-KJM-AC, (E.D. Cal., May 17, 2016), alleges that Defendants failed to implement procedures to protect Plaintiff and other Georgia football players from the long-term dangers associated with "traumatic brain injuries" or "TBIs" that resulted from playing college football. SOUTHEASTERN CONFERENCE is a collegiate athletic conference with its principal office located 2201 Richard Arrington Jr. Blvd. North, Birmingham, Alabama 35203. The Plaintiff is represented by: Todd M. Logan, Esq. Rafey S. Balabanian, Esq. EDELSON PC 329 Bryant Street San Francisco, CA 94107 Phone: 415.234.5260 Fax: 415.373.9495 E-mail: tlogan@edelson.com rbalabanian@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 844.456.4823 Fax: 713.554.9098 E-mail: jraizner@raiznerlaw.com - and - John Driscoll, Esq. THE DRISCOLL FIRM, P.C. 211 North Broadway, 40th Floor St. Louis, MO 63102 Phone: 314.932.3232 E-mail: john@thedriscollfirm.com NATIONAL COLLEGIATE: Faces "Miller" Suit Over Players' "TBI" ------------------------------------------------------------ JOSEPH MILLER, individually and on behalf of all others similarly situated, Plaintiff, v. SOUTHEASTERN CONFERENCE, and THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants, Case 1:16-cv-01222- TWP-MJD (S.D. Ind., May 17, 2016), alleges that the Defendants failed to implement procedures to protect Plaintiff and other Auburn University football players from the long-term dangers associated with "traumatic brain injuries" or "TBIs" that resulted from playing college football. Defendant Southeastern Conference is a collegiate athletic conference with its principal office located 2201 Richard Arrington Jr. Boulevard North, Birmingham, Alabama 35203 and with member institutions in eleven states. The Plaintiff is represented by: William Winingham, Esq. WILSON KEHOE WININGHAM LLC 2859 North Meridian Street Indianapolis, IN 46208 Phone: 317.920.6400 Fax: 317.920.6405 E-mail: winingham@wkw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Benjamin S. Thomassen, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 E-mail: jedelson@edelson.com brichman@edelson.com bthomassen@edelson.com - and - Rafey S. Balabanian, Esq. Todd M. Logan, Esq. EDELSON PC 329 Bryant Street San Francisco, CA 94107 Phone: 415.234.5342 Fax: 415.373.9495 E-mail: rbalabanian@edelson.com tlogan@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 844.456.4823 Fax: 713.554-9098 E-mail: jraizner@raiznerlaw.com - and - John Driscoll, Esq. THE DRISCOLL FIRM, P.C. 211 North Broadway, 40th Floor St. Louis, MO 63102 Phone: 314.932.3232 E-mail: john@thedriscollfirm.com NATIONAL COLLEGIATE: Faces "Seals" Suit Over Players' "TBI" ----------------------------------------------------------- RICHARD SEALS, individually and on behalf of all others similarly situated, Plaintiff, v. WESTERN ATHLETIC CONFERENCE and THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants, Case 2:16- cv-00412-RJS (D. Utah, May 17, 2016), alleges that Defendants failed to implement procedures to protect Plaintiff and other University of Utah football players from the long-term dangers associated with "traumatic brain injuries" or "TBIs" that resulted from playing college football. Defendant WAC is a collegiate athletic conference with its principal office located at 9250 East Costilla Avenue, Suite 300, Englewood, Colorado 80112. The Plaintiff is represented by: Mark F. James, Esq. HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, UT 84101 Phone: 801.363.6363 Fax: 801.363.6666 E-mail: mjames@hjdlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Benjamin S. Thomassen, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 E-mail: jedelson@edelson.com brichman@edelson.com bthomassen@edelson.com - and - Rafey S. Balabanian, Esq. Todd M. Logan, Esq. EDELSON PC 329 Bryant Street San Francisco, CA 94107 Phone: 415.234.5342 Fax: 415.373.9495 E-mail: rbalabanian@edelson.com tlogan@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 844.456.4823 Fax: 713.554-9098 E-mail: jraizner@raiznerlaw.com - and - John Driscoll, Esq. THE DRISCOLL FIRM, P.C. 211 North Broadway, 40th Floor St. Louis, MO 63102 Phone: 314.932.3232 E-mail: john@thedriscollfirm.com NATIONAL COLLEGIATE: Faces "Walthour" Suit Over Players' "TBI" -------------------------------------------------------------- Brandon Walthour, individually and on behalf of all others similarly situated, Plaintiff, v. Vanderbilt University, Southeastern Conference and The National Collegiate Athletic Association, Defendants, Case 6:16-cv-00834-CEM-TBS, (M.D. Fla., May 17, 2016), alleges that Defendants failed to implement procedures to protect Plaintiff and other Vanderbilt football players from the long-term dangers associated with "traumatic brain injuries" or "TBIs" that resulted from playing college football. Vanderbilt University is a private university located at 2201 West End Ave., Nashville, Tennessee 37235. The Plaintiff is represented by: David P. Healy, Esq. DUDLEY, SELLERS, HEALY & HEATH, PLLC SunTrust Financial Center 3522 Thomasville Road, Suite 301 Tallahassee, FL 32309 Phone: 850.222.5400 Fax: 850.222.7339 E-mail: dhealy@davidhealylaw.com - and - Rafey S. Balabanian, Esq. 329 Bryant Street San Francisco, CA 94107 Phone: 415.212.9300 Fax: 45.373.9435 E-mail: rbalabanian@edelson.com - and - Benjamin S. Thomassen, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 E-mail: bthomassen@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 844.456.4823 Fax: 713.554-9098 E-mail: jraizer@raiznerlaw.com - and - John Driscoll, Esq. THE DRISCOLL FIRM, P.C. 211 North Broadway, 40th Floor St. Louis, MO 63102 Phone: 314.932.3232 E-mail: john@thedriscollfirm.com NATIONAL HOCKEY: Concussion Suit in Minn. Advances -------------------------------------------------- Rose Bouboushian, writing for Courthouse News Service, reported that the National Hockey League must face claims that former players developed long-term neurological conditions from too many concussions, a federal judge ruled. A complaint the players filed in St. Paul, Minnesota, says the concussion program the league created in 1997, which led to documentation of game-related head injuries through 2004, shows that the league knew concussions could ultimately lead to neurocognitive illness. Files from this program that the litigation has since brought to light includes an August 2014 email wherein NHL spokesman Gary Meagher said the league "has never been in the business of trying to make the game safer at all levels." U.S. District Judge Susan Nelson refused May 16, to dismiss the master complaint based on the NHL's claim about labor law pre- emption. "Not one of the eight [union contracts] in effect during that 40- year timeframe is mentioned in the amended complaint," the ruling states. Nelson also emphasized that each plaintiff in this class action is retired and no longer subject to any collective bargaining agreement. "At this stage of the proceedings, the court must rely only on the pleadings, or documents fairly embraced by the pleadings, and not a cherry-picked record introduced solely to contradict plaintiffs' allegations," she wrote. Though the NHL also wanted a stay, Nelson said "discovery is necessary to shed light on the nature of plaintiffs' claims, when those claims accrued, and which -- if any -- [collective bargaining agreements] might be relevant." "If a full record ultimately reveals that plaintiffs' claims accrued while they were subject to a [collective bargaining agreement], and that those claims are substantially dependent on interpretation of the [agreement], then the court could properly determine that the claims are preempted by labor law preemption," she added. "In the meantime, however, defendant's motion to dismiss is premature and must be denied, and, therefore, defendant's motion to stay is denied as moot." The plaintiffs are represented by Zimmerman Reed in Minneapolis; Chestnut Cambronne; Bassford Remele; Heins Mills & Olson; Lockridge, Grindal, Nauen; and Gustafson Gluek. Zimmerman Reed in Scottsdale, Arizona, represents the plaintiffs as well, as do Silverman, Thompson, Slutkin & White in Baltimore; Corboy & Demetrio in Chicago; Goldman, Scarlato & Penny in Wayne, Pennsylvania; the Levine Law Firm in Fort Lauderdale, Florida; Namanny, Byrne, & Owens in Lake Forest, California; Hellmuth & Johnson in Edina, Minnesota; Robbins, Geller, Rudman & Dowd; Stuart Davidson, Janine Arno, Kathleen Douglas, and Mark Dearman in Boca Raton, Florida, and Leonard Simon in San Diego. Faegre Baker Daniels in Minneapolis represents the league, along with Proskauer Rose in New York; Skadden, Arps, Slate, Meagher & Flom; Geoffrey Wyatt, John Beisner, and Jessica Miller in Washington, D.C.; and Shepard Goldfein, James Keyte, Michael Menitove, and Matthew Martino in New York. The attorneys did not respond to requests for comment May 20. NEK: Faces Second Class Action Over Alleged Fraud ------------------------------------------------- WCAX News reports that there are new developments tied to allegations of hundreds of millions of dollars in fraud in the Northeast Kingdom. A second class-action lawsuit has been filed against a pair of developers and their financial managers. Three foreign investors who each ponied up a half million dollars for projects at Jay Peak are seeking punitive damages against Ariel Quiros and Bill Stenger, and also Raymond James Financial and People's United Bank. The complaint echoes claims made by the Securities and Exchange Commission that the developers misused and diverted investor's funds in a Ponzi-like scheme. NEW YORK: Bill to Repeal Tampon Sales Tax Gets Final Court OK ------------------------------------------------------------- Joel Stashenko, writing for New York Law Journal, reports that the state Senate gave final legislative approval on May 25 to a bill to repeal New York state's sales tax on tampons and other feminine hygiene products--the so-called "Tampon Tax." The bill (A7555/S7838) goes to Gov. Andrew Cuomo, who praised the Legislature on May 25 for voting to repeal a "regressive and unfair tax on women" and said he would sign it into law. Proponents say that if he does, New York will join a growing number of states that have eliminated sales taxes on tampons, sanitary napkins and panty liners as discriminatory against women. Massachusetts, New Jersey and Pennsylvania are among the other states to have enacted similar tax repeals in recent years (NYLJ, April 13). The Senate approved the bill 56-0. It passed the Assembly on May 16 by a 141-0 margin. Its chief sponsors are Sen. Sue Serino, R-Hyde Park, and Assemblywoman Linda Rosenthal, D-Manhattan. A class-action complaint, Seibert v. New York State Department of Taxation and Finance, 1514/2016, was filed earlier this year seeking a declaration in Manhattan state Supreme Court that the 4 percent sales tax on feminine hygiene products is unconstitutional (NYLJ, March 4). P.J. 2035: "Elizalde" Suit Seeks to Recover Unpaid Wages -------------------------------------------------------- Arturo Ortega Elizalde, Individually, and on behalf of all others similarly situated, Plaintiff, v. P.J. 2035 NY Corp., d/b/a Huntington Station Food Plaza and Porfino Tineo, Defendants, Case No. 2:16-cv-02589 (E.D.N.Y., May 20, 2016), seeks unpaid wages, liquidated damages and attorney fees pursuant to the Fair Labor Standards Act, New York Minimum Wage Act; and compensation for not receiving notices and statements required by New York Labor Laws. P.J. 2035 NY Corp. operates a supermarket in Suffolk County, New York, at 2035 New York Avenue, Huntington Station, NY 11746, where Plaintiff was employed as a stocker. Ortega claims to have been denied overtime pay as well as pay stubs reflecting his actual work hours rendered. The Plaintiff is represented by: Abdul K. Hassan, Esq. Abdul Hassan Law Group, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Tel: 718-740-1000 Fax: 718-355-9668 Email: abdul@abdulhassan.com PANDA EXPRESS: Doesn't Pay Overtime, Calif. Class Suit Says ----------------------------------------------------------- Courthouse News Service reported that a class action in Los Angeles Superior Court accuses Panda Express of stiffing workers for overtime. PAPA'S MEAT MARKET: "Garza" Suit Seeks to Recover Min., OT Pay -------------------------------------------------------------- Francisco Garza, on behalf of himself and all others similarly situated, Plaintiff, v. Papa's Meat Market Inc., Gabino Infante, individually and Maria Infante, individually, Defendants, Case No. 2:16-cv-14166-DMM (S.D. Fla., May 16, 2016), seeks unpaid minimum wage and overtime compensation, liquidated damages, costs, interests, reasonable attorney fees and costs, and injunctive relief and such other and further relief under the Fair Labor Standards Act. Defendants used to operate a full-service meat market in Venice, Florida where Plaintiff worked. He claims to have received below the mandated minimum wage rate. The Defendants are represented by: Diane P. Perez, Esq. DIANE PEREZ, P.A. 201 Alhambra Circle, Suite 1200 Coral Gables, FL 33134 Telephone: (305) 985-5676 Facsimile: (305) 985-5677 E-mail: diane@dianeperezlaw.com PERRIGO CO: Faces Securities class Action in New Jersey ------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on May 24 disclosed that a class action complaint was filed against Perrigo Company plc in the U.S. District Court for the District of New Jersey. The complaint is brought on behalf of all purchasers of Perrigo Company plc ("Perrigo") securities between April 21, 2015 and May 11, 2016, and on behalf of all investors in Perrigo as of November 13, 2015, for alleged violations of the Securities Exchange Act of 1934 by Perrigo's officers and directors. Perrigo, together with its subsidiaries, develops, manufactures, markets, and distributes over-the-counter ("OTC") consumer goods and pharmaceutical products worldwide. Perrigo Accused of Improperly Dissuading Investors From Agreeing to Tender Offer According to the complaint, on April 8, 2015, competing drug manufacturer Mylan offered to purchase Perrigo for $205 per share, representing a nearly 30% premium to Perrigo's total market capitalization. On April 21, 2015, Perrigo publicly rejected Mylan's offer and falsely told investors that it "substantially undervalues Perrigo and its growth prospects" and that the offer does not take into account the full benefits of its acquisition of Omega Pharma, a large OTC healthcare company in Europe. Even though Mylan subsequently raised its offer to approximately $235 per share, Perrigo continued to engage in a public campaign to convince shareholders to reject Mylan's proposal, citing the 5-10% organic revenue growth that it would achieve as a standalone company. The complaint alleges that these statements were misleading because Perrigo knew that: (1) Mylan's offer did not undervalue Perrigo; (2) Perrigo would not be able to achieve 5-10% organic growth as a standalone company; (3) the company's "durable competitive position and durable growth strategy" was rapidly deteriorating; and (4) Perrigo was experiencing serious issues integrating the Omega acquisition and significantly overpaid for Omega's business. On November 13, 2015, the majority of Perrigo's shareholders declined to tender their shares, making the Mylan tender offer a failure. On February 18, 2016, Perrigo reported disappointing fourth quarter 2015 financial results, and announced that it would need to take a $185 million impairment charge related to its restructuring of the Omega business. On April 22, 2016, Reuters reported that Perrigo's Chief Executive Officer ("CEO") would be appointed as the new CEO of competing pharmaceutical company Valeant Pharmaceuticals. Then, on April 25, 2016, Perrigo drastically lowered its earnings guidance for 2016 and disclosed issues with the integration of Omega, and said that it was contemplating another impairment charge associated with the Omega acquisition. Since news of Perrigo's financial struggles became public, Perrigo stock declined over 43% to close at $89.04 per share on May 12, 2016. Perrigo Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Darnell R. Donahue at (800) 350-6003, DDonahue@robbinsarroyo.com or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a shareholder rights law firm. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. REAL TIME RESOLUTIONS: Wins Prelim. OK of "Tannlund" Class Deal --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on May 24, 2016, in the case entitled Michelle Lee Tannlund v. Real Time Resolutions, Inc., Case No. 1:14-cv-05149 (N.D. Ill.), relating to a hearing held before the Honorable James B. Zagel. The minute entry states that: -- status hearing was held on May 24, 2016; -- Petitioner's Motion for Leave to File Excess is granted; -- Petitioner's Motion for Preliminary Approval of Revised Class Settlement is granted and Richard Hurrle's Motion to Intervene is denied; -- all other pending motions are denied without prejudice; -- a final approval hearing will take place on September 8, 2016, at 12:00 p.m.; and -- next status hearing is set for August 9, 2016, at 9:15 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=d1o3bPN3 Plaintiff Michelle Lee Tannlund filed this class action complaint on July 7, 2014, on behalf of herself and a proposed nationwide class alleging that Defendant, Real Time Resolutions, Inc., had violated the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 ("TCPA"), by making non-emergency calls to class members' cellular telephones using an automatic telephone dialing system without the consent of the called party. Plaintiffs and Defendant entered into a written Revised Settlement Agreement and Release, which settles the dispute on a class-wide basis. The Revised Settlement Agreement is substantially different from a settlement proposal that was filed earlier in this litigation. The Revised Settlement Agreement contemplates a non- reversionary common fund of $1.3 million with costs of notice and administration paid by Defendant separately outside the fund, with approximately 345,000 persons eligible to make a claim by submitting a simple form stating that they received unconsented calls. A copy of the Court's Memorandum is available at https://is.gd/D5p0yh from Leagle.com. Michelle Lee Tannlund, Petitioner, represented by Mark Daniel Ankcorn, Ankcorn Law Firm, PC. Real Time Resolutions, Inc., Defendant, represented by Bryant Todd Lamer -- blamer@spencerfane.com -- Spencer Fanc Britt & Browne LLP, Abraham J. Colman -- acolman@reedsmith.com -- Reed Smith LLP, David S. Almeida -- dalmeida@sheppardmullin.com -- Sheppard Mullin Richter & Hampton, LLP, David Mitchell Poell -- dpoell@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton, LLP & Henry Pietrkowski -- hpietrkowski@reedsmith.com -- Reed Smith LLP. Richard Hurrle, Intervenor, represented by Alexander Holmes Burke, Burke Law Offices, LLC, Beth Ellen Terrell, Terrell Marshall Law Group PLLC, Daniel J. Marovitch, Burke Law Offices, LLC, Jennifer Rust Murray, Terrell Marshall Law Group PLLC & Mary B. Reiten, Terrell Marshall Law Group PLLC. ROCKHURST UNIVERSITY: Faces Data Breach Class Action ---------------------------------------------------- Joe Robertson, writing for The Kansas City Star, reports that a Rockhurst University employee hopes to represent some 1,200 school staffers in seeking damages for a data breach in April. Someone duped university staff into supplying information on IRS W-2 forms, including Social Security numbers, in an act of fraud April 4. The lawsuit filed on May 19 in Jackson County Circuit Court by Alexandria Stobbe said the university was willful and reckless in exposing the personal information in "flagrant disregard" for the employees' rights to privacy and property. The lawsuit is asking the court to allow a class-action litigation on behalf of all the affected employees. University staff are at "an imminent, immediate and continuing increased risk of identity theft, identity fraud and medical fraud," the lawsuit said. The university harmed them, it said, by failing to establish and implement appropriate administrative safeguards to protect the information. A Rockhurst spokesman said the university would not comment on the pending lawsuit. In April, Rockhurst University President Thomas B. Curran said in a letter to employees that he was angry the institution had been victimized and that the university was working with the IRS to monitor any fraud from the action. The university also said it would provide free services to employees for two years to arrange protections of their credit cards and protect against identity theft. The university reported in April that the fraud was committed by someone who impersonated a university administrator, requested W-2 information and provided a fake email address. Mr. Curran said in his letter at the time that the university was taking steps to notify and train staff about data fraud schemes. Ms. Stobbe's lawsuit states that the fraud committed against the university has damaged employees' peace of mind and personal security, compelling many of them to purchase credit card reporting services and Internet monitoring services, to purchase and review credit reports and bank statements, and to institute credit freezes or close accounts. The employees "have suffered and will continue to suffer such damages for the foreseeable future," it said. The theft of Social Security numbers presents a particularly difficult process for those who may need to get them changed, the lawsuit added. The employees also have been deprived of the value of their personal information, which many services collect and sell to solicitors and other users. The lawsuit seeks actual, unspecified amounts of damages, plus legal fees. ROYAL OAK, MI: Lawmakers Attempt to Avert 2004 Flooding Suits ------------------------------------------------------------- Dave Spencer, writing for WJBK, reports that it was August 2014 when a day of rain caused the worst flooding our area has ever seen. Now almost two years later, flood victims are suing their cities and some lawmakers are trying to stop lawsuits like these from taking place. FOX 2's Dave Spencer takes us to one Royal Oak neighborhood that was one of the hardest hit areas. Now, nearly 600 homeowners in that city alone are part of a class action lawsuit against the county for that flood. "Everything that was in the sewage water had to be thrown away," said Joe Schramski. Having a finished basement in their Royal Oak neighborhood meant costly repairs after the flood. "Two months about $15,000 in damage," said Matthew Voss. But as for who or what is responsible for the flood -- that's up for debate. "Someone has to be held accountable other than homeowners," Mr. Voss said. "The sewers generally work good, they've worked for about 100 years or however long they were put in," said Mr. Schramski. "It was unforeseeable." Neither of these two homeowners joined a class action lawsuit, but hundreds of their neighbors have -- accusing Jim Nash, the Oakland Water Resource commissioner, the county and the cities they serve of ignoring a system defect when it comes to sewage disposal. RUCKUS WIRELESS: Faces "Borrego" Lawsuit Over Merger with Brocade ----------------------------------------------------------------- ROBERT D. BORREGO, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. RUCKUS WIRELESS, INC., GEORGES ANTOUN, BARTON BURSTEIN, GAURAV GARG, STEWART GRIERSON, MOHAN GYANI, RICHARD LYNCH, and SELINA Y. LO, Defendants, Case 1:16-cv- 00340-UNA (D. Del., May 11, 2016), is a securities lawsuit over the planned merger of Ruckus and Brocade Communications Systems, Inc. Ruckus Wireless, Inc. is a wireless technology company. It is a global supplier of carrier-class, "Smar Wi-Fi" products and technologies. The Plaintiff is represented by: James R. Banko, Esq. Derrick B. Farrell, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Phone: (302) 482-3182 Email: jbanko@faruqilaw.com dfarrell@faruqilaw.com - and - Juan E. Monteverde James M. Wilson, Jr. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Fl. New York, NY 10017 Phone: (212) 983-9330 Fax: (212) 983-9331 Email: jmonteverde@faruqilaw.com jwilson@faruqilaw.com SAC CAPITAL: September 23 Settlement Fairness Hearing Set --------------------------------------------------------- The following statement is being issued by Scott + Scott, Attorneys at Law, LLP and Motley Rice LLC regarding the Wyeth SAC Capital Shareholders Litigation Settlement. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK BIRMINGHAM RETIREMENT AND RELIEF SYSTEM, et al., Plaintiffs, v. S.A.C. CAPITAL ADVISORS, L.P., et al., Defendants. No. 13 Civ. 2459 (VM) (KNF) ECF CASE REVISED COURT ORDERED DATE DEADLINES FOR REQUESTS FOR EXCLUSIONS, OBJECTIONS, CLAIM FORM FILING AND HEARING DATE. SUMMARY NOTICE OF (I) PROPOSED SETTLEMENT OF CLASS ACTION AND PLAN OF ALLOCATION; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: (a) All persons or entities who sold shares of Wyeth common stock during the period January 14, 2008 through and including July 18, 2008; and (b) All persons or entities who purchased shares of Wyeth common stock during the period July 21, 2008 through and including July 29, 2008 at 4:00 p.m. EDT (the "Class"). THIS NOTICE WAS AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED that a hearing will be held on September 23, 2016 at 11:00 a.m., before the Honorable Victor Marrero at the United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Courtroom 11B, New York, New York, 10007-1312, to determine whether: (1) the proposed settlement (the "Settlement") of the above-captioned action ("Action") for $10,000,000 in cash should be approved by the Court as fair, reasonable and adequate; (2) the Final Judgment as provided under the Stipulation and Agreement of Settlement ("Stipulation") should be entered, dismissing the Action on the merits and with prejudice; (3) the release by the Class of the Released Wyeth Lead Plaintiffs' Claims, as set forth in the Stipulation, should be provided to the SAC Capital Defendants' Releasees; (4) this Action satisfies the applicable prerequisites for class action treatment under Rule 23 of the Federal Rules of Civil Procedure; (5) to award Lead Counsel attorneys' fees and litigation expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Action ("Notice"), which is discussed below); (6) to grant the Wyeth Lead Plaintiffs' requests for reimbursement of their costs and expenses incurred, in connection with their role in prosecuting this action on behalf of the Class out of the Settlement Fund; and (7) the Plan of Allocation should be approved by the Court. IF YOU SOLD WYETH SHARES BETWEEN JANUARY 14, 2008 THROUGH AND INCLUDING JULY 18, 2008 OR YOU PURCHASED WYETH SHARES DURING THE PERIOD JULY 21, 2008 THROUGH AND INCLUDING JULY 29, 2008 AT 4 P.M. EDT, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS ACTION. To share in the distribution of the Settlement Fund, you must establish your rights by filing a Proof of Claim on or before September 12, 2016. Your failure to submit your Proof of Claim by September 12, 2016 will subject your claim to rejection and preclude your receiving any of the recovery in connection with the Settlement of this Action. If you are a Member of the Class and do not request exclusion therefrom, you will be bound by the Settlement and any judgment and release entered in the Action, including, but not limited to, the Final Judgment, whether or not you submit a Proof of Claim. If you have not received a copy of the Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement), and a Proof of Claim form, you may obtain these documents, as well as a copy of the Stipulation (which, among other things, contains definitions for the defined terms used in this Summary Notice), online at www.Wyethsaccapitalsecuritieslitigation.com or by writing to: Wyeth SAC Capital Shareholders Litigation Settlement c/o Heffler Claims Group P.O. Box 58697 Philadelphia, PA 19102-8697 Phone: 1-844-777-8058 Inquiries should NOT be directed to Defendants, the Court, or the Clerk of the Court. Inquiries, other than requests for the Notice or for a Proof of Claim form, may be made to Wyeth Lead Counsel: SCOTT+SCOTT, ATTORNEYS AT LAW, LLP Deborah Clark-Weintraub The Chrysler Building 405 Lexington Avenue, 40th Floor New York, NY 10174 Tel: (212) 223-6444 MOTLEY RICE LLC Gregg S. Levin 28 Bridgeside Boulevard Mt. Pleasant, South Carolina 29464 Tel: (843) 216-9000 IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION BY AUGUST 24, 2016, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE CLASS WILL BE BOUND BY THE SETTLEMENT ENTERED IN THE ACTION EVEN IF THEY DO NOT FILE A TIMELY PROOF OF CLAIM. Dated: May 23, 2016 SNAPCHAT: Collects Personal Info, Class Suit Says ------------------------------------------------- Courthouse News Service, reported that Snapchat violates Illinois law by collecting, storing, selling and sharing biometric information, a class action claims in Los Angeles Federal Court. SOUTHERN WOLF: FLSA Class Certification Sought in "Figueroa" Suit ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled RAMON FIGUEROA, on behalf of himself and other persons similarly situated v. SOUTHERN WOLF CONSTRUCTION, LLC, and JOSE RAMON LOBO, Case No. 2:16-cv-00674- EEF-MBN (E.D. La.), moves for conditional class certification, judicial notice, and for disclosure of the names and addresses of potential "opt-in" plaintiffs. The Action arises from a "generally applicable rule, policy, or practice" pursuant to Section 216(b) of the Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=XdAzjWay The Plaintiff is represented by: Roberto Luis Costales, Esq. Emily A. Westermeier, Esq. THE COSTALES LAW OFFICE 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534-5005 E-mail: costaleslawoffice@gmail.com emily.costaleslawoffice@gmail.com - and - William H. Beaumont, Esq. WILLIAM BEAUMONT LAW 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 483-8008 E-mail: whbeaumont@gmail.com SPOKEO INC: Supreme Court Ruling Also Poses Threats to Defendants ----------------------------------------------------------------- Hunton & Williams LLP reports that the Supreme Court's decision in Spokeo v. Robins, 578 U.S. __ (2016), has been nearly universally lauded by defense counsel as a new bulwark against class actions alleging technical violations of federal statutes. It may be that. But Spokeo also poses a significant threat to defendants by defeating their ability to remove exactly the types of cases that defendants most want in federal court. The decision circumscribes the federal jurisdiction, with all its advantages, that defendants have enjoyed under Class Action Fairness Act (CAFA) for the past decade. Under Spokeo, a plaintiff needs more than a statutory right of action in order to sue; he or she also needs a concrete, particularized injury traditionally required by Article III. The plaintiff, Robins, accused Spokeo of violating the Fair Credit Reporting Act (FCRA) by reporting information about him that was not true: specifically, that he is married, has children, has a job, is relatively affluent and holds a graduate degree. Slip. Op. at 4. All false, according to Robins. The Supreme Court found that while Robins had sufficiently alleged a statutory violation, he had not alleged a concrete injury sufficient to create Article III standing. The Court held that not every violation of a statute gives rise to federal standing, even where Congress has created a right of action for statutory violations. For instance, while reporting an incorrect zip code might technically violate the FCRA, "[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm." Id. at 11. Defendants can now move to dismiss cases alleging technical statutory violations but no actual injury. But already, courts applying Spokeo have revealed that the decision is anything but an unalloyed boon to defendants. In Khan v. Children's National Health System, Case No. 8:15-cv-02125, 2016 U.S. Dist. LEXIS 66404 (D. Md. May 19, 2016), Judge Chuang considered a motion to dismiss a putative class action seeking recovery under a variety of consumer protection statutes for a data breach of a health care provider. The defendant had removed the case under CAFA. Relying on Spokeo, the court agreed that the plaintiff had not suffered a concrete injury and lacked standing -- but instead of dismissing the case, Judge Chuang remanded it to state court. There lies the hidden danger of Spokeo. Since 2005, defendants have been able to remove putative class actions from state courts under 28 U.S.C. 1332(d) upon a showing of minimal diversity and a $5 million amount in controversy. With CAFA, defendants could escape the more plaintiff-friendly standards some states use in class actions, and take advantage of federal standards for class certification, summary judgment and admissibility of expert testimony, among other things. But defendants cannot invoke CAFA jurisdiction (or any other type of jurisdiction) in cases in which the named plaintiffs lack Article III standing. See, e.g., Wallace v. ConAgra Foods Inc., 747 F.3d 1025 (8th Cir. 2014) (remanding action to state court after CAFA removal because named plaintiffs lacked Article III standing); Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011) (affirming dismissal of data breach class action for lack of Article III standing). That would pose no problem for defendants if every state applied the same standing requirements as do federal courts. Of course, that is not true. Many states have virtually no standing requirement. For instance, the California Supreme Court has noted that while "Article III of the federal Constitution imposes a 'case-or-controversy' limitation on federal jurisdiction . . . [t]here is no similar requirement in our state Constitution." Grosset v. Wenaas, 42 Cal.4th 110, 1117 n.13, 175 P.3d 1184 (Cal. 2008). To sue in California, a plaintiff need only be a real party in interest -- there is no "injury in fact" requirement. Id. at 434-35 & n.5 (distinguishing claims arising under California Unfair Competition Law, for which standing requirement was created by referendum). Similarly, in Massachusetts, a plaintiff need not have suffered a concrete injury to recover statutory damages under some consumer protection statutes. For instance, to recover under Massachusetts General Law Chapter 93A, which proscribes deceptive trade practices, a plaintiff need not actually incur a loss -- "if he or she is ready, willing, and able to purchase the product or service at a price consistent with the relevant statute," that is typically injury enough. Herman v. Admit One Ticket Agency LLC, 454 Mass. 611, 618, 912 N.E.2d 450, 456 (Mass. 2009). Chapter 93A entitles plaintiffs to recover statutory damages even in the absence of proof of actual damages (in addition to equitable relief, attorney's fees and other remedies). See Aspinall v. Philip Morris Cos., Inc., 442 Mass. 381, 400, 813 N.E.2d 476 (Mass. 2004). And Chapter 93A specifically authorizes class actions. See Mass. Ge. L. ch. 93A, 9(2). Plaintiffs seeking recovery under these sorts of state consumer protection statutes -- where actual harm is not necessarily required and statutory damages can be ruinous -- might now be protected from removal to federal court. Thus, in the very cases for which CAFA was devised, it might no longer apply. Moreover, Spokeo may incentivize the filing of cases with named plaintiffs that barely chin the bar -- those who can allege a statutory violation with no concrete injury -- to avoid federal court and also maximize the size of the putative class. So, for instance, a plaintiff could file a putative class action in California state court seeking recovery under the Song-Beverly Credit Card Act, Cal. Civ. Code 1747, et seq., alleging that a store wrongfully asked for his or her zip code during a credit card transaction. Without more, is there a concrete injury? Maybe not. After all, it's a fact pattern closely parallel to Judge Alito's example in Spokeo of what wouldn't suffice as a concrete injury for Article III purposes: zip code missteps. But it is also a fact pattern in which federal jurisdiction has been a benefit to defendants.2 See Yeoman v. Ikea U.S.A. West, Inc., Case No. 11-cv-00701, 2014 U.S. Dist. LEXIS 168968 (S.D. Cal. Dec. 4, 2014) (decertifying class seeking recovery under Song-Beverly for improper request for zip code). And it is a fact pattern that might no longer be susceptible to federal jurisdiction. Moreover, Spokeo might not merely roll back CAFA jurisdiction over class actions seeking recovery under state consumer protection statutes. There is a very real possibility that it could limit federal question jurisdiction in unintended ways. Spokeo itself, after all, addressed FCRA violations. Robins likely could have filed suit in California state court seeking recovery for the same statutory violation. Post-Spokeo, a defendant could not remove a procedural injury case, even on federal question grounds. The same is true for other federal statutes for which Congress has created concurrent federal and state jurisdiction, like the Truth in Lending Act or the Telephone Consumer Protection Act. After Spokeo, state courts -- at least those that have a lower standing bar than federal courts -- will essentially have exclusive jurisdiction over federal statutory actions that allow statutory damages for technical or procedural violations. Spokeo is a limitation on federal jurisdiction, and whatever the immediate benefits to defendants, limitations on federal jurisdiction will rarely inure solely to their advantage. The defense bar must develop strategies for countering the tactical pleading that is likely to be part of Spokeo's legacy. SPOTIFY: Lowery, Ferrick's Suits Over Royalties Combined -------------------------------------------------------- Andrew Flanagan, writing for Billboard, reports that in December and January, Spotify was hit with back-to-back lawsuits from David Lowery and Melissa Ferrick -- both professors and artists -- who sought class action certification over royalties they allege have gone unpaid to songwriters by the world's largest streaming service. Lowery sought $150 million in damages in his suit, while Ferrick sought $200 million. Those suits were essentially the same in purpose and aim, and now Judge Beverly Reid O'Connell of the Central District of California has granted a motion for them to be consolidated. Spotify will, the Judge writes, shortly file a motion to dismiss and/or to move the case to New York. At the time of Mr. Lowery's filing, Spotify said of the suit that "the data necessary to confirm the appropriate rights holders is often missing, wrong, or incomplete. When rights holders are not immediately clear, we set aside the royalties we owe until we are able to confirm their identities. We are working closely with the National Music Publishers Association [NMPA] to find the best way to correctly pay the royalties we have set aside and we are investing in the resources and technical expertise to build a comprehensive publishing administration system to solve this problem for good." Not long after that statement, Spotify and the NMPA reached a $30 million settlement over those "black boxed" royalties. "Spotify is larded with unlicensed tracks. And it still will be, even after the NMPA settlement. It is an infringement machine. What investors in Spotify own is a copyright infringement machine. My understanding is that the only ways to get rid of all the infringement is to go the class action route," Lowery told Billboard after filing his suit. A separate motion filed by Mr. Lowery sought to have the communications between the NMPA, Spotify and those eligible to take part in that $30 million settlement released to him, that argument being that the private communications could be misleading to potential members of Mr. Lowery -- and now Ms. Ferrick's -- class action suit, accusing the two of "'intent to threaten to influence the choice of remedies' of prospective class members." Mr. Lowery also argued that the settlement was reached through illegal communications between Spotify and the NMPA. On the first, Judge O'Connell found "no justification on this record" that suggests inappropriate or misleading communications with those eligible for the NMPA settlement. On the latter point, Judge O'Connell writes that she "cannot make any specific findings of abusive or unethical conduct based on the record here. The content of the agreement between Spotify and the NMPA itself does not warrant corrective action." STAR LED LLC: "Reeder" Suit Seeks to Recover Overtime Pay --------------------------------------------------------- Frank Reeder, Plaintiff, v. Star Led, LLC, Defendant, Case No. 0:16-cv-61086-WJZ (S.D. Fla., May 20, 2016) seeks all overtime wages, double damages and reasonable attorney fees and any other relief pursuant to the Fair Labor Standards Act. Star LED, LLC, owns and operates a high efficiency lighting business and maintains a corporate office in Fort Lauderdale, Florida, where Plaintiff worked as an inside sales representative. He claims to have been denied overtime pay. The Plaintiff is represented by: J. Dennis Card, Jr., Esq. CONSUMER LAW ORGANIZATION, P.A. 721 US Highway 1 North Palm Beach , FL 33408 Telephone: (954) 921-9994 Facsimile: (305) 574-0132 Email: dcard@consumerlaworg.com - and - Chad T. Van Horn, Esq. Matthew T. Moore, Esq. Van Horn Law Group, P.A. 330 N. Andrews Ave. Suite 450 Fort Lauderdale, FL 33301 Tel: (954) 765-3166 Fax: (954) 756-7103 Email: matthew@cvhlawgroup.com chad@cvhlawgroup.com SUNOCO: Class Action Over Fuel Rewards Card Benefits Can Proceed ---------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that a federal judge has rejected Sunoco's bid to arbitrate a proposed class action over alleged false advertising of its fuel rewards card benefits. U.S. District Judge Paul S. Diamond of the Eastern District of Pennsylvania denied Sunoco's motion to compel arbitration in lead plaintiff Donald White's proposed class action against the company because Sunoco was not contractually entitled to arbitration. While the cardholder agreement does provide for arbitration, Judge Diamond wrote in his memorandum, it only does so for cardholders and the issuer of the cards, Citibank. Sunoco was not a party to that agreement. "Here it is apparent that the cardholder agreement was 'entered into by the parties directly and primarily for the benefit of' Citibank," Judge Diamond said. "The agreement does not even mention Sunoco or the rewards program." He continued, "Rather, the record confirms that, like virtually all credit card contracts, this agreement sets out the terms and conditions by which the credit card provider (i.e. Citibank) makes credit available to the cardholder." Additionally, the judge said Mr. White, a Florida resident, did not bring the class action on the basis of a breach of the agreement with Citibank, but over alleged fraud, negligent misrepresentation, unjust enrichment and violations of Florida's Deceptive and Unfair Trade Practices Act. While Mr. White claimed he was denied the five-cent-per-gallon discount offered by Sunoco through the rewards program, Diamond said Sunoco's promotional materials never stated that some independently owned and operated Sunoco stations would not provide the discount. Mr. White alleged Sunoco knew its representations were "false and misleading" and were intended to "induce customers to sign up for the Sunoco Rewards credit card so they frequent Sunoco locations," according to Judge Diamond. Judge Diamond said that courts have allowed nonsignatory parties to enforce a contract when that party is incorporated into the contract, or an alter ego of a signatory. However, "Sunoco has not even suggested, much less shown, that any of these theories is relevant here. Accordingly, it cannot seek enforcement of the cardholder agreement's arbitration provision." Neither has Sunoco shown that it was an agent of Citibank, Judge Diamond said. "Sunoco alone is responsible for ensuring the fuel discount is properly applied," Judge Diamond said. "Sunoco has admitted that neither company is a 'corporate affiliate' of the other." "Finally, plaintiff has not alleged that Sunoco engaged in concerted action with Citibank or even that Citibank committed any wrongdoing," Judge Diamond added. Lastly, Judge Diamond held that estoppel did not require White to arbitrate his dispute with Sunoco. Judge Diamond explained that under alternative estoppel, a nonsignatory can seek enforcement of arbitration if it can show there is a close relationship between it and the signatory and the alleged wrongs are related to the nonsignatory's contractual obligations. However, the judge said the theory did not apply in the case against Sunoco. SUPERVALU INC: Class Certification May Lead to Settlement --------------------------------------------------------- Rebecca Campbell, writing for Legal Newsline, reports that Illinois resident Yvonne Averhart was one of many who filed a class action lawsuit against SuperValu Inc. in April, alleging that the company represents that its grated Parmesan cheese product is composed of 100 percent cheese when it actually consists of a mixture of cheese and non-cheese filler substance derived from wood chips. In her suit, filed on April 4 in the U.S. District Court for the Northern District of Illinois, Averhart alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of express and implied warranties, negligent misrepresentation, fraud, and unjust enrichment. In order to provide the validity of the case, an American Tort Reform Association (ATRA) spokesman said the judge should require Averhart's lawyers to show minimum evidence that the cheese product is insufficiently cheesy before certifying the class. "If a class is certified, the defendant will almost certainly settle rather than risk a catastrophic verdict at trial," Darren McKinney, spokesman for the American Tort Reform Association, told Legal Newsline. After Bloomberg News wrote about some brands of parmesan containing no cheese at all earlier this year, a number of class action suits started popping up around the country, naming such companies as Kraft Heinz, Castle Cheese Inc. and Target as defendants. The cheese -- or non-cheese -- in question contains substitutes and fillers such as cellulose, also known as an anti-clumping agent derived from wood pulp, according to the U.S. Food and Drug Administration. While the substitutes and fillers have not been found to be harmful for human consumption, the legal issue here is how products have been misrepresented. McKinney claims, however, that the suits are nothing more than a game for class action lawyers. "They know that if they can convince a judge to certify a class, virtually every defendant will promptly seek to settle, regardless of the facts of the case and/or whether the defendant earnestly believes it did no wrong," he said. SWIFT TRANSPORTATION: "Castro" Lawsuit Alleges FLSA Violation ------------------------------------------------------------- SALVADOR CASTRO, on behalf of himself and those similarly situated, Plaintiffs, v. SWIFT TRANSPORTATION COMPANY, SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, SWIFT TRANSPORTATION SERVICES, LLC, and DOES 1-10, inclusive, Defendants, Case 2:16-cv-03232 (C.D. Cal., May 11, 2016), was filed pursuant to the Fair Labor Standards Act, California Unfair Competition Law, California Labor Code, and the California Business and Professions Code. SWIFT TRANSPORTATION COMPANY is a multi-faceted transportation services company and the largest truckload carrier in North America. The Plaintiff is represented by: Benjamin Schonbrun, Esq. Michael D. Seplow, Esq. Aidan C. McGlaze, Esq. SCHONBRUN SEPLOW HARRIS & HOFFMAN LLP 723 Ocean Front Walk, Suite 100 Venice, CA 90291 Phone: (310) 396-0731 Fax: (310) 399-7040 E-mail: schonbrun.ben@gmail.com mseplow@gmail.com amcglaze@sshhlaw.com - and - Matt Dunn, Esq. Lesley Tse, Esq. GETMAN & SWEENEY, PLLC 9 Paradies Lane New Paltz, NY 12561 Phone: (845) 255-9370 Fax: (845) 255-8649 E-mail: mdunn@getmansweeney.com ltse@getmansweeney.com TANGOE INC: Rosen Law Firm Files Securities Class Action -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on May 24 disclosed that it has filed a class action lawsuit on behalf of purchasers of Tangoe, Inc. securities from March 18, 2014 through March 7, 2016, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for Tangoe investors under the federal securities laws. To join the Tangoe class action, go to the firm's website at http://rosenlegal.com/cases-853.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 more 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 issued false and misleading statements to investors and/or failed to disclose that: (1) defendants made errors in recognizing Tangoe's revenue; (2) Tangoe's financial results were overstated; and (3) as a result, statements about Tangoe'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 July 25, 2016. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to the firm's website at http://rosenlegal.com/cases-853.htmlfor more information. You may also contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. TAURUS: Settles Class Action Over Defective Handguns for $30MM -------------------------------------------------------------- David Kopel, writing for The Washington Post, reports that Taurus, which has agreed to pay up to $30 million (plus $9 million in attorneys' fees) to settle a class action involving allegedly defective Taurus handguns. The class action Carter v. Forjas Taurus, S.A. alleges that some Taurus models fire when they are accidentally dropped. The U.S. District Court for the Southern District of Florida has scheduled a July 18 hearing on the proposed class action final settlement; in the proposal, Taurus does not admit the plaintiffs' factual claims. THERANOS INC: Faces False Advertising Class Action -------------------------------------------------- Cheryl Miller, writing The Recorder, reports that six days after Theranos Inc. confirmed it was forced to void thousands of unreliable blood test results, the Palo Alto-based startup was hit on May 25 with a class action complaint alleging fraud, unfair business practices and false advertising. Attorneys with McCuneWright, representing a plaintiff identified only as M.P.B., are seeking to certify a national class and an Arizona subclass of Theranos customers. McCuneWright partner Joseph Sauder -- jgs@mccunewright.com -- said the firm believes its complaint is the first to be filed after Theranos' May 19 announcement. "Theranos assured its customers that these tests were highly accurate, industry leading in quality, and developed and validated under, and compliant with, federal guidelines," states the complaint filed in the U.S. District Court for the Northern District of California. "However, the Edison machines did not work, and Theranos' tests were not accurate. . . . As a result, tens of thousands of patients may have been given incorrect blood- test results, been subject to unnecessary or potentially harmful treatments, and/or been denied the opportunity to seek treatment for a treatable condition." Theranos spokeswoman Brooke Buchanan said the lawsuit is "without merit." "The company will vigorously defend itself against these claims," Ms. Buchanan said. The lawsuit -- and those sure to follow -- is the latest round of trouble for the company with a quintessential Silicon Valley history. Founded in 2003 by Stanford University dropout Elizabeth Holmes, Theranos developed what's known as the Edison device. A tiny vial collects a few drops of blood to be analyzed by the Edison, which transmits the results to a Theranos database at a fraction of the costs of a traditional laboratory test and without the usual needle stick. The company was valued at as much as $9 billion. Theranos announced a partnership with Walgreens in 2013 and opened 40 "wellness centers" in Arizona stores and one in a California pharmacy, according to the suit. But the company didn't have U.S. Food and Drug Administration approval to use the Edison device outside of a laboratory setting for anything but a herpes simplex test, McCuneWright alleges. In March, the Centers for Medicare and Medicaid Services found serious problems with operations at the company's labs in Newark and in Scottsdale, Arizona, revelations first reported by The Wall Street Journal. Regulators have proposed revoking the license for Theranos' Newark lab and banning Holmes from the business for two years. The company said in statement that it has made significant changes at its Newark lab. Earlier this month, Theranos announced that Sunny Balwani, president and chief operating officer of the company, was stepping down and retiring. The suit seeks damages of more than $5 million. TRENCH FLOORING: "Robinson" Suit Seeks to Recover Overtime Pay -------------------------------------------------------------- Kalgeri Robinson, Anthony J. Jackson and Juan Vargas (Garcia), Plaintiffs, v. Trench Flooring & Remodeling, LLC, and Paul O. Trench, Defendants, Case No. 1:16-cv-01564-JFM, (D.Md. May 20, 2016), seeks to recover unpaid wages, liquidated damages, interests, reasonable attorney fees and costs under the Federal Fair Labor Standards Act of 1938, Maryland Wage and Hour Law and Maryland Wage Payment and Collection Law. Trench Hauling Services, LLC is a trucking company in the State of Maryland that has been forfeited with Paul O. Trench as the Trustee of Assets. Plaintiffs worked as handyman, field coordinator and drivers at various times during their employment. They claim to have been denied overtime pay. Plaintiff is represented by: George E. Swegman, Esq. Benjamin L. Davis, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Phone No.: (410) 244-7005 Fax No.: (410) 244-8454 Email: gswegman@nicholllaw.com bdavis@nicholllaw.com UNITED KINGDOM: Damages Action in Kenya Mau Mau Case Begins ----------------------------------------------------------- BBC News reports that a damages action on behalf of 44,000 people who say they were ill-treated in the state of emergency in Kenya in the 1950s has started at the High Court. Lawyers for the group want compensation for personal injuries allegedly caused by the British colonial administration when it put down a guerrilla uprising. The contested hearing, lasting six months, will consider 27 test cases. The UK Foreign and Commonwealth Office, to which legal liability has passed, is expected to apply to adjourn the case. 'Wrongful conduct' The Mau Mau, a guerrilla group, began a violent campaign against white settlers in 1952 which led to a state of emergency being declared in Kenya. The claimants, 2,000 of whom have died since proceedings began, were detained in screening centers, prisons, detention camps and under a program known as "villagization", in which people were forcibly resettled to keep them under control. Simon Myerson QC told Mr. Justice Stewart that the group was subjected to "unlawful and unjustifiable" conduct. "This is not a moral crusade and these proceedings will not be judged on any basis other than that set out in law," he said. "But that does not prevent anyone drawing the conclusion that what we -- the United Kingdom and its government -- did in Kenya during the Emergency was wrong. "It is because the facts demonstrate wrongful conduct that the law affords redress." He told the judge in London: "The men and women who suffered in this way were not enemy insurgents upon whom a war had been declared and who were casualties of the horrors that soldiers sometimes see. "They were, to a man, woman, and child, British subjects." Forced labor Mr. Myerson said all the test claimants gave evidence of violence, abuse and suffering, and it led to the death of infant children of four of them. A third of them were sexually assaulted, and all but one subjected to forced labor, he said. Three years ago, after a separate class action, the then Foreign Secretary William Hague announced that Britain would pay GBP19.9 million to 5,228 elderly Kenyans who suffered torture and abuse during the Mau Mau uprising. The UK government continued to deny liability and said it would contest future claims. Kenya gained independence in 1963. VOLKSWAGEN AG: Class Action Mulled Over Tensioning System --------------------------------------------------------- Baron & Budd is investigating a potential class action lawsuit against Volkswagen (VW) and Audi involving alleged timing chain defects that can lead to thousands of dollars in engine damage. A similar case has been filed in the U.S. District Court, District of New Jersey (In Re: Case No. 2:16-cv-02765). In the suit, the plaintiff is alleging that VW and Audi knowingly concealed a defect in the timing chain tensioning system of certain models manufactured between the years 2008 and 2013 with 2.0L engines. The plaintiff alleges that the tensioning system can fail at any time, resulting in severe engine damage that can necessitate either repair or replacement of a damaged part -- or potentially the entire engine. In addition, the plaintiff alleges that the defect is a substantial safety hazard. If the timing chain fails, the affected vehicle can lose engine power. This can lead to several hazardous problems, such as the ability of the vehicle to accelerate, a loss of steering control and an inability to use the brakes. According to the complaint, the drivers of the affected vehicles, as well as their passengers, are at a risk for rear-end collisions and other accidents. The plaintiff alleges that VW and Audi knew of the defect, yet failed to disclose the problem and the corresponding safety risks. Models with the alleged defect include: 2008-2010 and 2012 VW Beetle 2009-2013 VW CC 2008-2012 VW EOS 2008-2012 VW Golf 2008-2012 VW GTI 2008-2012 VW Jetta 2008-2012 VW Passat 2008-2011 VW R32 2008-2010 VW Rabbit 2009-2012 VW Routan 2008-2012 VW Tiguan 2008-2013 VW Touareg 2011 VW Touareg Hybrid 2008-2012 Audi A3 2008-2012 Audi A4 2008-2012 Audi A5 2010-2012 Audi A6 2012 Audi A7 2008-2012 Audi TT 2010-2012 Audi Q3 2009-2012 Audi Q5 2012 Audi Q7 "These alleged actions on the part of VW and Audi are not only extremely deceptive, but can also put drivers and their passengers at a substantial risk of injury or death," said Roland Tellis, head of the Consumer Class Action group at the national law firm of Baron & Budd. "No car buyer should be expected to have to deal with this type of serious defect, much less be expected to pay thousands of dollars should that defect lead to potentially catastrophic engine damage." If you bought or leased a 2008 to 2013 model year VW or Audi vehicle that has this defect, you may qualify to take legal action. Please call the national law firm of Baron & Budd at 1 (866) 700-8994 to learn more. About Baron & Budd, P.C. The law firm of Baron & Budd, P.C., with offices in Dallas, Baton Rouge, New Orleans, Austin and Los Angeles, represents individuals and government and business entities in areas as diverse as dangerous pharmaceuticals and medical devices, environmental contamination, the Gulf oil spill, financial fraud, overtime violations, deceptive advertising, automotive defects, trucking accidents, nursing home abuse, and asbestos-related illnesses such as mesothelioma. VOLKSWAGEN: German Investors Call for Independent Emissions Probe ----------------------------------------------------------------- William Wilkes, writing for Marketwatch, reports that Germany's largest investor association on May 23 called for an independent investigation into Volkswagen AG's emissions-cheating scandal on behalf of shareholders. DSW, which represents around 25,000 Germany-based investors, said it would table a motion at the auto maker's annual general meeting in June to open an independent inquiry, on top of the one being conducted internally. The inquiry would specifically address the amount of money set aside by Volkswagen to cover the costs of the emissions scandal, which erupted last autumn when the company admitted it had installed software in nearly 11 million vehicles to artificially improve their performance in pollution tests. Volkswagen said in April it had set aside EUR8 billion ($9 billion) to repurchase tainted diesel-powered cars and around EUR7 billion more for potential legal claims, penalties and compensation. DSW said an investigation was needed to clarify whether those provisions were sufficient and to make sure that controls and checks have been put in place to prevent further scandals. "That's something that shareholders would certainly prefer to have established by an independent investigator rather than Volkswagen itself," DSW President Ulrich Hocker said. DSW wants the independent inquiry to be complete in time for the results to be published at Volkswagen's 2017 AGM. The association said additional unexpected costs could have a grave negative impact on Volkswagen's results and thus are of particular concern to Volkswagen shareholders. DSW claims to have the backing of a sufficient number of shareholders to force the question of an independent investigation on to the agenda for the June 22 meeting. However it will have little chance of pushing its agenda through without the backing of Volkswagen's core shareholders. Three big shareholders -- the heirs to Beetle designer Ferdinand Porsche, the state of Lower Saxony, and the Qatar sovereign-wealth fund -- own about 92% of Volkswagen's voting capital. These shareholders have since September resisted calls for a fully independent investigation of the emissions-cheating scandal. When the scandal was disclosed in September, the 'big three' backed Volkswagen's decision to have U.S. law firm Jones Day conduct and internal investigation. However, Volkswagen management and not Jones Day has the last word on publication of the results of that investigation, which is expected to be concluded by the end of the year. DSW's move is the latest headache for Volkswagen following news that the Norwegian sovereign-wealth fund will join a class-action filed by 278 investors against the car maker over the emissions scandal. News of the association's campaign also comes in the wake of shareholder frustration about the continuing internal investigation, whose findings haven't been released. Volkswagen had originally planned to publish the findings this spring, but now claims they must be withheld until the conclusion of an inquiry by the U.S. Justice Department on behalf of the Environmental Protection Agency. If the Justice Department finds that Volkswagen is interfering in its investigation, the auto maker could face legal penalties. A Volkswagen spokesman declined to comment. WEATHERFORD INT'L: Faces "Crowder" Suit Seeking OT Pay Under FLSA ----------------------------------------------------------------- KURT CROWDER, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. WEATHERFORD INTERNATIONAL, LLC, Defendant, Case 4:16-cv-01356 (S.D. Tex., May 13, 2016), alleges that the Defendant misclassified Plaintiff as exempt from overtime under the Fair Labor Standards Act. WEATHERFORD INTERNATIONAL, LLC is an oil and gas service company with a presence in every major oil and gas region of the world. The Plaintiff is represented by: Galvin B. Kennedy, Esq. KENNEDY HODGES, LLP 711 W. Alabama Street Houston, TX 77006 Phone: (713) 523-0001 Fax: (713) 523-1116 E-mail: gkennedy@kennedyhodges.com WILD WELL CONTROL: BTI/WWC Operators Seek Certification of Class ---------------------------------------------------------------- The Plaintiffs in these two lawsuits, which are now consolidated, ask the Court to conditionally certify a class of "All operators employed by BTI/WWC during the past 3 years who were paid a salary and/or a bonus, but no overtime compensation:" (1) MICHEAL ALLEN and NATHAN SCOTT HARRIS v. WILD WELL CONTROL, INC. AND WARRIOR ENERGY SERVICES CORP., Case No. 4:15-cv-03711 (S.D. Tex.); and (2) TAYLOR WATKINS, individually and on behalf of all others similarly situated v. WILD WELL CONTROL, INC., Case No. 4:14-cv-00352 (S.D. Tex.). The collective action lawsuits are filed pursuant to the Fair Labor Standards Act to recover alleged unpaid overtime wages, liquidated damages, attorney fees, and costs owed to current and former employees of BTI Services, Inc. (BTI), now known as Wild Well Control, Inc. (WWC), over the past three years, who were misclassified as exempt and paid a salary and a bonus, but no overtime compensation. The Plaintiffs also seek the issuance of notice to all Putative Class Members and the disclosure of the names, contact information (including the addresses, e-mail addresses, and telephone numbers) and dates of employment of the Putative Class Members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ofDVdAMk The Plaintiffs are represented by: Michael A. Josephson, Esq. Jessica M. Bresler, Esq. Lindsay R. Itkin, Esq. Andrew Dunlap, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 Bissonnet St. Houston, TX 77005 Telephone: (713) 751-0025 Facsimile: (713) 751-0030 E-mail: mjosephson@fibichlaw.com jbresler@fibichlaw.com litkin@fibichlaw.com adunlap@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com WORKFIT MEDICAL: Judge Approves $2.1MM Class Action Settlement -------------------------------------------------------------- Joel Stashenko, writing for New York Law Journal, reports that a federal judge approved a $2.1 million settlement in a federal class-action suit against a health care facility staffing agency, including more than $700,000 in attorney fees and costs to two firms that represented some 900 aggrieved workers. Western District Judge Elizabeth Wolford said the contingency fee payment to Thomas & Solomon of Rochester and Klafehn Heise & Johnson of Brockport, while about one-third larger than what the firms would have received if paid by the hour, was "not unreasonable on its face" for class-action representation. "It is clear that plaintiffs' counsel performed significant work on this matter," Judge Wolford wrote in Acevedo v. Workfit Medical, 6:14-cv-06221/6:15-cv-06186. "Although this litigation did not involve as many potential class members as some wage claim actions, it was moderately complex, involving federal law and state law, and required plaintiffs' counsel to perform significant investigation." Judge Wolford noted that by taking the case on a contingency basis, the firms took the risk of receiving nothing in return for the 2,000-plus hours their attorneys said they put in on the case. Judge Wolford also approved just under $36,000 for plaintiffs' counsel in costs. The action involved workers' complaints that Workfit illegally denied them overtime when they worked more than 40 hours a week, instead offering only compensatory time off, in violation of state and federal labor law. The settlement provides for payments of $7,150 each to 200 plaintiffs and of $743 each to the 700 other members of the class based on the hours they worked without overtime compensation, according to the settlement. Kevin Mulvehill -- kmulvehill@phillipslytle.com -- and Linda Prestegaard -- lprestegaard@phillipslytle.com -- partners at Phillips Lytle in Rochester, represented Workfit. WPP GROUP: Faces "Blumberg" Suit Over Tracking Software on TVs -------------------------------------------------------------- Fred Blumberg, individually and on behalf of all others similarly situated, Plaintiff, v. WPP GROUP USA, INC., THE INTERPUBLIC GROUP OF COMPANIES, INC., ALPHONSO, INC., TAPAD, INC., ISPOT.TV, INC., LOTAME SOLUTIONS, INC., XAXIS, INC., TUBEMOGUL, INC., AUDIENCE XPRESS LLC, VIZIO HOLDINGS, INC., VIZIO INC., VIZIO INSCAPE SERVICES, LLC, VIZIO INSCAPE TECHNOLOGIES, LLC, COGNITIVE MEDIA NETWORKS, INC., AND DOES 1-50, DEFENDANT, Case 3:16-cv-02670-PGS- LHG (D.N.J., May 11, 2016), alleges that Vizio collaborated with Cognitive to clandestinely include tracking software on its Smart TVs in violation of the purchasers' privacy. Vizio Holdings Inc. is a major manufacturer of Smart TVs. The Plaintiff is represented by: Sol H. Weiss, Esq. David S. Senoff, Esq. Melissa Fry Hague, Esq. Paola Pearsan, Esq. ANAPOL WEISS One Logan Square 130 North 18th St., Suite 1600 Philadelphia, PA 19103 Phone: (215) 790-1130 WYNN LAS VEGAS: "Barrett" Suit Alleges Invasion of Privacy Act -------------------------------------------------------------- TIMOTHY BARRETT and SHAYAN KAMRAVA, Individually And On Behalf Of All Others Similarly Situated, Plaintiffs, v. WYNN LAS VEGAS, LLC; and WYNN RESORTS HOLDINGS, LLC, Nevada limited liability companies, Defendants, Case 3:16-cv-01138-BAS-KSC (S.D. Cal., May 11, 2016), alleges that Defendants' policy and practice of recording telephone calls to and from their telephonic room reservation's department without the consent of all parties violates California's Invasion of Privacy Act. WYNN RESORTS HOLDINGS, LLC is in the business of hotel hospitality and operates a casino in the United States. The Plaintiffs are represented by: Abbas Kazerounian, Esq. Jason A. Ibey, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Phone: (800) 400-6806 Fax: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com - and - S. Masih Kazerouni, Esq. RKR LEGAL, APC Costa Mesa, CA 92626 245 Fischer Ave., Suite D1 Phone: (866) 502-0787 Fax: (866) 502-5065 E-mail: mk@rkrlegal.com sr@rkrlegal.com * American Businesses Urge Congress to Weaken Robocall Laws ----------------------------------------------------------- Herb Weisbaum, writing for NBC News, reports that it's one thing Americans agree on: We hate robocalls and we want them stopped. Companies realize this -- and yet, they're asking Congress to weaken the rules and reduce the possible penalties for making illegal robocalls. Consumer groups vow that isn't going to happen without a fight. In the first four months of this year, the Federal Trade Commission received more than 1.6 million complaints about unwanted calls. Sixty-four percent, or 1.1 million complaints, were for robocalls. "In the last few years, we've seen an explosion of these illegal calls," said Bikram Bandy, who runs the FTC's National Do Not Call Registry. "Many of the complaints about robocalls are linked to companies that are trying to defraud consumers." There are 220-million landline and cellphone numbers on the Do Not Call list, but scammers don't care who they call, when they call, or how many times they call. Consumer Reports estimates that 35 percent of all phone calls placed in the U.S. are now robocalls. Joel Fischman is one of nearly 33,000 people who have shared their robocall horror stories on the End Robocalls website run by Consumers Union. 'Robocall' Cellphones Mr. Fischman, who lives in the Washington, D.C. area, told NBC News that he is inundated with robocalls to his landline and cell phone. At one point, he was getting a dozen robocalls a day. "It's an intrusion and I resent it very much," he said. "Many of these calls are offensive and sinister. All robocalls should be banned." The rules: Who can and cannot call you Federal regulations define robocalls as unsolicited pre-recorded telemarketing calls to residential landline phones, and all autodialed or prerecorded calls or text messages to wireless numbers. All robocalls are not illegal. The rules are different for landline and mobile phones. A business must have your written permission -- on paper or electronically -- to make a telemarketing robocall to your phone. Robocalls are allowed to a landline phone without this prior consent if the caller is not trying to sell you something. This would include calls from charities, political parties and survey companies. Informational messages, such as a school closing or flight delay are also exempt. All autodialed or prerecorded non-emergency calls or texts to wireless phones are prohibited without prior written consent, regardless of the reason for the call. The FCC does allow a few specific exemptions to this rule as long as the person receiving the call or text is not charged for it. These are for financial alerts -- such as possible fraud on a bank account -- and health alerts for something like a reminder about a prescription refill. Even so, the consumer has the right to opt- out of getting these permitted alerts at any time. Brad Herrmann is founder and CEO of Call-Em-All, a company in Frisco, Texas that makes about 10 million legal robocalls to people who want to know about school closings or severe weather alerts and have given prior permission to be contacted. Clients include Amazon, The American Red Cross, Texas Tech University and H&R Block. "There are times when people need to be contacted quickly and efficiently," Mr. Herrmann told NBC News. "Robocall is such a negative word, but people rely on us. They don't think of it as a robocall, it is just information they want." Mr. Herrmann said robocalls are an important means of communication for schools, employers, neighborhood associations, apartment complex managers and religious groups and organizations. "We loath spam phone calls," he said. "I desperately want the law to get these illegal robocallers, so my business can thrive." Congress gave debt collectors a pass A provision in the Bipartisan Budget Act of 2015 made it easier for debt collectors to make robocalls when trying to contact someone about a federal debt, such as a student loan. In response to this, the FCC has proposed rules that would give consumers the right to stop these unwanted debt collection calls, restrict who can be called (not friends or relatives of a debtor) and limit the number of calls per month. The Commission is taking public comment through June 6. The Telephone Consumer Protection Act (TCPA) gives the FCC authority to regulate robocalls. Violating the rules can result in fines ranging from $500 to $1,500 per call. Companies also face class action lawsuits from those who received the calls. Consumer advocates say the ability to take robocallers to court encourages companies to follow the rules. Businesses say it's hurting their ability to communicate with their customers and punishes them for honest mistakes. And they're asking Congress for help. At a hearing, Sen. John Thune (R-South Dakota), chairman of the Commerce Committee, said TCPA litigation has become "a booming business." Robocall lawsuits are now the second most-filed type of cases in federal courts, he said. Last year, 3,710 TCPA lawsuits were filed, a 45 percent increase from 2014. Sen. Bill Nelson (D-Florida), the ranking member on the committee said the TCPA is "one of the preeminent and most loved consumer protection statues" on the books. The idea of allowing greater access for robocalls to mobile phones without the customer's consent "is an idea that is dead on arrival with the American people," he said in his opening statement. Arguments for changing the law The U.S. Chamber of Commerce is asking Congress to make changes to the TCPA. The chamber says it does not want to abolish the law, just update it to balance consumer protection with the potential harm to legitimate businesses. The "explosion of class action litigation" involving prohibited robocalls to mobile phones -- with potential penalties that could reach into the billions -- is a serious problem, said Harold Kim, executive vice president of the U.S. Chamber of Commerce Institute for Legal Reform. "This litigation has created an enormous amount of risk and has had a chilling effect on legitimate businesses, large and small, who are trying to communicate with their customers," Kim told NBC News. Faced with damages that could put them out of business, many companies prefer to settle rather than go to court, he said. The Chamber argues that a law passed in 1991, when few people had cell phones and texting did not exist, needs to be modified to reflect reality. It's estimated that 90 percent of Americans have a cell phone and for nearly half of them, a mobile device is their only form of phone service. Business groups want, among other things: a cap on damage awards, a statute of limitations, an exemption from legal action for a company acting in good faith or that called a reassigned mobile number that had belonged to a previous customer. Arguments against weakening the law Consumer groups are opposed to any changes in the Telephone Communications Protection Act that would reduce liability for calling the wrong number. They say it could result in more robocalls or texts to cellphones. "If robocalls were a disease, they would be an epidemic," Margot Saunders with the National Consumer Law Center told the Senate hearing. Ms. Saunders testified on behalf of 10 major consumer advocacy groups. Most consumers who receive robocalls do not take the time to complain to a federal agency, and even a tinier percentage (less than two tenths of 1 percent) actually files a lawsuit, she said in her written testimony. She cited one lawsuit where the consumer took legal action after receiving nearly 28,000 unwanted text messages. The company refused to stop despite repeated requests. "There's no constitutional right to make robocalls," Ms. Saunders told NBC News "The problem is not that there are too many lawsuits, the problem is that there are too many robocalls." Consumer advocates see it this way: The consent requirement is not over-burdensome. A company can ask a customer if they want to be contacted via robocall or text. And they say, if you provide your mobile number as your contact number, you've given that company or organization -- whether it's your utility, hospital or airline -- permission to use that number to contact you. They also suggest creating a database of reassigned wireless numbers that companies could check to update their customer robocall permissions. "If there weren't any illegal robocalls, then there wouldn't be any lawsuits, would there?" said Tim Marvin, who heads up Consumers Union's End Robocalls campaign. "The law should not be weakened. There should not be more legal robocalls. If anything, we should do a better job of stopping these calls and restricting who can make them." What you can do There are free services that can help you spot or block robocalls or spam text messages. NOMROBO works on Internet-based (VOIP) phone networks. It will roll out an app for both Android and iOS smartphones in early June. These apps can also help: TrueCaller and Hiya (Android and Apple), and PrivacyStar (Android) and WhoApp (Apple). These apps all have access to your contacts. * Arbitration More Helpful to Class Members, Research Shows ----------------------------------------------------------- Legal Newsline reports that the recent media "barnstorm" against arbitration clauses that prevent class action lawsuits doesn't paint a complete picture, a Chicago attorney says, though the federal Consumer Financial Protection Bureau is planning to ban them. Matt Stromquist -- mstromquist@pilgrimchristakis.com -- a partner at the Chicago-based Pilgrim Christakis -- a nine-person litigation boutique firm focused on consumer finance and class action litigation -- says the CFPB's own research shows that arbitration is more helpful to class members. "I think arbitration can, in many ways, be a much better avenue for people, consumers especially, than joining a class action," he recently told Legal Newsline. "And I think statistics from the Consumer Financial Protection Bureau's own study bear that out." The CFPB, which was created to regulate the financial services industry, released its set of proposed rules prohibiting mandatory arbitration clauses that prevent class action lawsuits in conjunction with a field hearing in Albuquerque, NM, earlier this month. The field hearing was the third such hearing it has held on arbitration. The first was held last March and the second was held in October. Under the CFPB's proposal, companies would be prohibited from putting mandatory arbitration clauses in new contracts. "We have investigated arbitration, and our research found that very few consumers know anything about these 'gotcha' clauses," CFPB Director Richard Cordray said at the Albuquerque hearing. "Even fewer consumers know how they actually work." * Senate Commerce Eyes TCPA Dual-Track Strategy for Legislation --------------------------------------------------------------- Kyle Daly, writing for Bloomberg BNA, reports that the Senate Commerce, Science and Transportation Committee is eyeing a dual- track strategy for moving legislation that would update the Telephone Consumer Protection Act. Sen. Roy Blunt (R-Mo.) suggested during a May 18 panel hearing on the law that the committee consider acting on different bills that would focus on alleged litigation abuses and consumer harms, respectively. "If we could figure out how to divide this discussion into those two categories, we're much more likely to find a solution to both problems," Sen. Blunt said. Committee chairman John Thune (R-S.D.) said the suggestion of splitting TCPA update efforts into two separate initiatives is "one we might want to take a look at if everybody agrees that would make sense." Despite the potential strategy, it's unclear whether or how soon the committee will act on such legislation this year to amend the law, which limits the use of automated phone calls, or robocalls, to consumers. Lawmakers have already introduced two bills focusing on consumer protection issues in recent months. The committee has yet to act on either the Help Americans Never Get Unwanted Phone Calls Act of 2015, or HANGUP Act (S. 2235), which would roll back an exemption from TCPA limitations for federal government debt collection included as an amendment to the Bipartisan Budget Act of 2015, or the Spoofing Prevention Act of 2016 (S. 2558), which would expand a ban on falsifying caller ID information to include text messages and calls from outside the U.S. Senators and witnesses testifying at the hearing said the 25-year- old TCPA is showing its age. Sen. Steve Daines (R-Mont.) illustrated the changes the telecom world has seen since the law was passed by bringing to the hearing a brick-sized cell phone from 1992. Sen. Thune said consumer behaviors and expectations "would be unrecognizable to Congress 25 years ago." Several witnesses and lawmakers suggested the law is being abused by attorneys launching class actions against legitimate companies mistakenly making robocalls to wrong numbers. Sen. Daines said there's a running joke that TCPA stands for "total cash for plaintiffs' attorneys." Becca Wahlquist, testifying on behalf of the U.S. Chamber Institute of Legal Reform, called on the committee to advance legislation addressing the "huge amount of litigation" brought under TCPA. Ms. Wahlquist said such litigation has resulted in millions of dollars in attorneys' fees, minimal compensation for class action members and considerable costs for legitimate businesses that have erroneously called or texted numbers that have been reassigned to people other than those they're trying to reach. Other hearing participants focused on consumer harms related to robocalls. Sen. Richard Blumenthal (D-Conn.) said if lawmakers overlook the "anger" about such calls, they would be "doing a great disservice to the people of America." Sen. Blumenthal, several other committee members and witnesses said phone carriers, lawmakers and regulators should all be doing more to protect consumers from harassment by robocallers, especially scam artists using robocalls to pull off their schemes. Committee Republicans tended to focus more on abuse of the law in their comments and lines of questioning. Democrats, on the other hand, seemed more worried about consumer protection questions. Yet members of both parties appeared sympathetic to both concerns, prompting Sen. Blunt's suggestion. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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