/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160928.mbx C L A S S A C T I O N R E P O R T E R Wednesday, September 28, 2016, Vol. 18, No. 194 Headlines 21ST CENTURY: "Delucchi" Sues Over Data Breach 21ST CENTURY: Data Breach Class Actions in Early Stages A&M CONTRACTORS: Leyva's Bid for Class Cert. Moot, Court Rules A TOP STAR: Faces "Zauderer" Suit in District of Massachusetts ADVANCED DRAINAGE: Motion to Dismiss "Wyche" Underway AIRBNB: Racial Discrimination Class Action Pending ALCON LABORATORIES: America's Health Agrees to Withdraw Cert. Bid ALLY FINANCIAL: Final Approval of Class Action Settlement Upheld ALTA-DENA CERTIFIED: Perez Seeks Cert. of Class and 11 Subclasses AMERICAN AIRLINES: Faces "Huddleston" Suit in Illinois AMERICAN WATER: Motions to Remand, File Sur-Reply Denied AMERICAN RENAL: Wolf Popper Files Securities Class Action ANGIODYNAMICS INC: Purcell Investigates Potential Fiduciary Claim ARCHDIOCESE OF AGANA: Sex Abuse Victims Urged to Join Class Suit ARTHROSCOPIC & LASER: Settles Class Action for $5 Million ASCENA RETAIL: Mediation Scheduled for September 20 in "Linares" AXIALL CORP: Faces Class Action Over Chlorine Gas Leak BARNES AND NOBLE: Faces "Brown" Suit Under FLSA, Ill. Wage Law BLS LIMOUSINE: "Andujar" Seeks Judicial Intervention in Labor Case BLUENRGY GROUP: Rosen Law Firm Files Securities Class Action CELADON GROUP: Appeal in "Wilmoth" Class Action Pending CHARIOT TRANSIT: Faces "Love" Suit in California Superior Court CHC GROUP: Awaits Hearing Date on Motion to Dismiss Class Suit CHESTER COUNTY: Faces "Slivak" Suit in E.D. of Pennsylvania CHIPOTLE: To Go on Hiring Spree Amid Wage Theft Suit COLONIAL FREIGHT: Faces "Davis" Lawsuit Alleging FLSA Violation DELAWARE: DOC Settles Solitary Confinement Class Action DUKE ENERGY: Ind. App. Revives Bellwether Properties Suit EPIQ SYSTEMS: Settled Class Action Related to Merger Deal EXECUTIVE CLEANING: Faces "Acosta" Suit in E.D. of New York EZ DOCTORS: Faces "Ramos" Suit in S.D. of California EZ RX BONITA: Faces Class Suit in Middle District of Florida FACEBOOK INC: Obtains Favorable Ruling in Privacy Class Action FARMER BROS: Court Set Oct. 18 Case Management Conference FENTON & MCGARVEY: Tetik Amends Bid for Certification of Class FIDELITY NATIONAL: 3rd Cir. OKs Bipolar Arbitration in "Chassen" FORD MOTOR: Class Certification in "Agrawal" Reversed FREEPORT-MCMORAN OIL: Class Certification Sought in "Garcia" Suit GANNETT: Loses Bid to Dismiss Privacy Class Action GOLDEN ENTERPRISES: "Goss" Sues BOD Over Sale to Utz Quality GREAT PLAINS ENERGY: Plaintiff Agree to Withdraw Injunction Bid HSBC BANK: NY Court Dismisses "Hill" Amended Complaint HUTCHINSON CITY, KS: Class Action Mulled Over Storm Water Fees ITT EDUCATIONAL: Faces Class Action Over Sudden Mass Layoff JEFFERSON COUNTY PUBLIC: Court Certifies Class in "Cochran" Suit JL INVESTMENT: "Ricardo" Suit Moved from Cir. Ct. to S.D. Fla. JOSHUA BLACKMAN: Files Appeal in "Gascho" Class Action JPMORGAN CHASE: Maine Court Revives "Sabina" Action JUNO THERAPEUTICS: Faces Securities Class Action in Washington KINDRED HEALTHCARE: Agreed to Pay Plaintiffs' Counsel Fee L'OREAL: Faces Class Action Over Amla Legend Hair Relaxer LIFE PROTECT: Parties Agree to Terminate "Primack" Class Suit LINCOLN HERITAGE: Faces "Mckenzie" Suit in E.D. of Pennsylvania LINCOLN PARK, MI: Residents File Class Action Over Flood Damage LINN COUNTY: Class Action v. Forestry Dep't Steps Closer to Trial LOUISIANA: Faces Class Action Over Solar Tax Credit Cap LUMBER LIQUIDATORS: "Frazier" Suit Moved to Dist. S. Carolina MAJOR LEAGUE: Judge Reconsiders Class Certification Motion MARCOAH GROUP: Byer Clinic's Bid to Certify to Be Heard on Oct. 4 MCKEE FOODS: "Martin" Seeks to Certify Class of Cal. Distributors MDL 2646: Settlement Order in Justice Pricing Suits Under Appeal MIAMI, FL: Suit Over Red-Light Camera Fines Ongoing MONTEREY FINANCIAL: Jurisdictional Discovery Held in "Brinkley" NATIONAL MILK: December 16 Settlement Approval Hearing Set NATIONAL RECOVERY: Judge Allows Fee Class Action to Proceed NATIONWIDE MUTUAL: 6th Cir. Says Data Breach Suit Can Proceed NBTY INC: Court Narrows Claims in "Muir" Mislabeling Complaint NETSOL TECHNOLOGIES: Court Granted Final Approval to Settlement NEW YORK: Five Families Mull Class Action Against OPDD NORDIC NATURALS: CA Affirms Dismissal of "Hoffman" Complaint OGEMAW COUNTY: Defendants Win Summary Judgment in Inmates' Suit ONTARIO: Lakefront Owners File $900MM Civil Action v. MNRF PATHEON N.V.: Oral Contraceptive Class Action Pending PERCHERON ENERGY: Landmen File Class Action Over Unpaid OT Wages PERNIX THERAPEUTICS: Bankr. Trustee's Bid to Settle Denied PETRO RIVER: Motion to Alter Judgment in Donelson-Friend Pending PIZZA HUT: Franchise Owner to Appeal Class Action Dismissal POLARIS INDUSTRIES: "Orr" Suit Claims Violation of Securities Act PORTFOLIO RECOVERY: Wins Summary Judgment in "Panico" Case PRECISION OPINION: Faces "Wilber" Suit in District of Arizona PRIME HEALTHCARE: Cal. App. Reverses Dismissal of "Moran" Case PTZ INSURANCE: Pethealth Can't Escape Robocalls Suit QUORUM HEALTH: "Rao" Sues Over Shady Spinoff Deal RADIANT LOGISTICS: Status Conference Continued Until Oct. 31 SAMSUNG ELECTRONICS: Sued Over Exploding Galaxy Note 7 Smartphone SCHWABE NORTH: "Sonner" Seeks Certification of Multi-State Class SLATER & GORDON: Faces Class Action Over Quindell Purchase SN SERVICING: Faces "Tran" Suit in Eastern District of Penn. SQUARE INC: Court Dismisses "White" Amended Complaint STANDARD INNOVATION: Faces Class Action Over We-Vibe Vibrator SWITRONIX INC: Faces "Klein" Suit in New York Supreme Court SYNGENTA AG: Status Hearing in MIR162 Corn MDL Set for October 4 TH HEALTHCARE: Nurse Files Class Action Over Unpaid OT Wages TIME WARNER: Court Upholds Set-Top Box Class Action Dismissal TRANSWORLD SYSTEMS: Faces "Orzel" Suit in E.D. of New York TROPICAL SMOOTHIE: 66 Hepatitis Cases Linked to Virginia Cafes UNITED AUTO: Vinny's Landscaping Suit Survives Dismissal Bid UNITED HEALTHCARE: Faces "Frisk" Suit Seeking OT Pay Under FLSA UNITED STATES: 9th Cir. Reverses Atty. Fees Ruling in "Wood" Case USA TECHNOLOGIES: Expects Appeals Court to Remand Suit UTOPIA HOME: Worker Appeals Class Certification Denial VCA ANTECH: Wins Bid for Summary Judgment in "Graham" Suit VIOLIN MEMORY: Court Granted Final Approval to $7.5MM Settlement VIRGIN AMERICA: "Bernstein" Seeks to Certify Class of Attendants VOLKSWAGEN AG: Lawyer Challenges Irish Court Jurisdiction WARDEN MONMOUTH: 3rd Cir. Vacates Prior Orders in "Gayle" Case WELLS FARGO: Faces "Mitchell" Suit in Utah for Unfair Competition WELSPUN INDIA: Faces Class Actions Over Alleged Fraud WELSPUN INDIA: Faces "Brower" Suit Over Bed Linen Mislabeling WHIRLPOOL: Oct. 11 Washer Settlement Claims Filing Deadline Set WHITESTONE BAGEL: Faces "Arriola" Suit Alleging FLSA Violation ZAIS FINANCIAL: "Dexter" Action Resolved, Except Attorneys' Fees * 2nd Circuit May Reverse Class-Action Waiver Ruling * Evolution of Summary Judgment Seen in Canadian Class-Actions * Municipalities Face Class Actions Over Water, Sewer Fees * Report Reveals Banks with Most Number of Customer Complaints ********* 21ST CENTURY: "Delucchi" Sues Over Data Breach ---------------------------------------------- Veneta Delucchi and Bradley Bernius, individually and on behalf of all others similarly situated, Plaintiffs, v. 21st Century Oncology Holdings, Inc., Defendants, Case No. 2:16-cv-00695, (Cal. Super., September 9, 2016), seeks actual and statutory damages, restitution and disgorgement, equitable, injunctive and declaratory relief, all costs, including experts' fees and attorneys' fees and pre-judgment and post-judgment interest resulting from negligence, breach of implied covenant of good faith and fair dealing, unjust enrichment and violation of the Florida Deceptive and Unfair Trade Practices Act, California Confidentiality of Medical Information Act and Customer Records Act. Cyber thieves hacked into 21st Century Oncology's provider database around October 3, 2015, compromising 2.2 million members' database including that of the Plaintiffs' Social Security numbers and highly sensitive medical information, physician's names, medical diagnoses, treatment information and insurance information. Plaintiff is represented by: Robert C. Gilbert, Esq. KOPELOWITZ OSTROW FERGUSON WElSELBERG GILBERT 2800 Ponce de Leon Blvd., Suite 1100 Coral Gables, FL 33134 Telephone: (305) 529-8858 Facsimile: (954) 525-4300 Email: gilbert@kolawyers.com - and - Gretchen Freeman Cappio, Esq. Cari Campen Laufenberg, Esq. Amy N. L. Hanson, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: gcappio@kellerrohrback.com claufenberg@kellerrohrback.com ahanson@kellerrohrback.com - and - Daniel C. Girard, Esq. Jordan Elias, Esq. Esfand Y. Nalisi, Esq. Linh G. Vuong, Esq. GIRARD CIBBS LLP 601 California Street, l4th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4866 Email: dcg@girardgibbs.com je@girardgibbs.com eyn@girardgibbs.com lgv@girardgibbs.com 21ST CENTURY: Data Breach Class Actions in Early Stages ------------------------------------------------------- 21st Century Oncology Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 20, 2016, for the quarterly period ended June 30, 2016, that the class action complaints related to the data breach isare in the early stages. On November 13, 2015, the Company advised by the Federal Bureau of Investigation (the "FBI") that patient information was illegally obtained by an unauthorized third party who may have gained access to a company database. The Company immediately hired a leading forensic firm to support its investigation, assess its system and bolster its security. Based on its investigation, the Company determined that the intruder may have accessed the database on October 3, 2015. The Company notified approximately 2.2 million current and former patients that certain information may have been copied and transferred. Following the data breach, the Company received notice that class action complaints had been filed against the Company and certain of its affiliates in Florida and California. The complaints allege, among other things, that the Company failed to take the necessary security precautions to protect patient information and prevent the data breach. "We expect certain, if not all, of the claims to be consolidated to the extent permitted by the courts. Because of the early stages of these matters and the uncertainties of litigation, we cannot predict the ultimate resolution of these matters or estimate the amounts of, or ranges of, potential loss, if any, with respect to these proceedings," the Company said. In addition, the Company has received a request for information regarding the data breach and the Company?s response from the Office for Civil Rights as well as additional inquiries from State Attorneys General. The Company has responded to each of those inquiries and provided the information requested. The Company could face fines or penalties as a result of these inquiries. However, due to the early stages of these matters, we cannot predict the ultimate resolution or estimate the amounts of, or ranges of, potential loss, if any. The Company has insurance coverage and contingency plans for certain potential liabilities relating to the data breach. Nevertheless, the coverage may be insufficient to satisfy all claims and liabilities related thereto and the Company will be responsible for deductibles and any other expenses that may be incurred in excess of insurance coverage. A&M CONTRACTORS: Leyva's Bid for Class Cert. Moot, Court Rules -------------------------------------------------------------- The Plaintiff's opposed motion to certify class is moot, according to Judge Melinda Harmon's order entered in the lawsuit titled SANTIAGO LEYVA v. A&M CONTRACTORS, INC., et al, Case No. 4:16-cv- 00631 (S.D. Tex.). According to the Order, since the filing of the Motion, the parties came to an agreement and filed a joint motion for conditional collective action certification and notice, which the Court granted. Therefore, the Court orders that the Motion is moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=skJQjVov A TOP STAR: Faces "Zauderer" Suit in District of Massachusetts -------------------------------------------------------------- A lawsuit has been filed against A Top Star Inc. The case is captioned MARC J ZAUDERER, a Massachusetts resident, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. A Top Star Inc., doing business as Optimus Dental Supply, John Doe, 1, John Doe, 2, John Doe, 3, John Doe, 4, and John Doe, 5, the Defendants, Case No. 1:16-cv-11913- WGY (D. Mass., Sept. 21, 2016). The assigned Judge is Hon. William G. Young. Optimus Dental offers full line of dental supplies including gloves, sanitization pouches, disposables, anesthetics, burs, and endo products. The Plaintiff is represented by: Alan L. Cantor, Esq. SWARTZ & SWARTZ Ten Marshall Street Boston, MA 02108 Telephone: (617) 742 1900 Facsimile: (617) 367 7193 E-mail: acantor@swartzlaw.com ADVANCED DRAINAGE: Motion to Dismiss "Wyche" Underway ----------------------------------------------------- Advanced Drainage Systems, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 15, 2016, for the fiscal year ended March 31, 2016, that the Company will defend against allegations in the stockholder class action by Christopher Wyche. On July 29, 2015, a putative stockholder class action, Christopher Wyche, individually and on behalf of all others similarly situated v. Advanced Drainage Systems, Inc., et al. (Case No. 1:15-cv- 05955-KPF), was commenced in the U.S. District Court for the Southern District of New York, naming the Company, along with Joseph A. Chlapaty, the Company's Chief Executive Officer, and Mark B. Sturgeon, the Company's former Chief Financial Officer, as defendants and alleging violations of the federal securities laws. An amended complaint was filed on April 28, 2016. The amended complaint alleges that the Company made material misrepresentations and/or omissions of material fact in its public disclosures during the period from July 25, 2014 through March 29, 2016, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. Plaintiffs seek an unspecified amount of monetary damages on behalf of the putative class and an award of costs and expenses, including counsel fees and expert fees. The Company believes that it has valid and meritorious defenses and will vigorously defend against these allegations, but litigation is subject to many uncertainties and the outcome of this matter is not predictable with assurance. While it is reasonably possible that this matter ultimately could be decided unfavorably to the Company, the Company is currently unable to estimate the range of the possible losses, but they could be material. * * * The Defendant has filed a motion to dismiss an Amended Complaint and on Sept. 22, 2016, Wyche, on behalf of all others similarly situated, filed a Memorandum of Law in Opposition to Defendant's Motion to Dismiss Amended Class Action Complaint. AIRBNB: Racial Discrimination Class Action Pending -------------------------------------------------- Marissa Melton, writing for VOA, reports that Rohan Gilkes, an African-American entrepreneur, tried to book lodging for his summer vacation this July through Airbnb, a popular worldwide home-sharing company that allows people to rent their rooms, apartments or entire homes on a short-term basis to travelers, through one-on-one transactions. When an Airbnb host declined his request for a reservation, Mr. Gilkes was surprised. "I had heard about #AirbnbWhileBlack," he says, mentioning a Twitter hashtag that circulated widely after African-American users complained publicly about racial discrimination by Airbnb hosts. "So I got one of my [white] friends to apply, and they were approved right away." Airbnb transactions are confirmed using photographs and personal profiles to identify prospective renters and connect them with apartment hosts. Mr. Gilkes was surprised and dismayed by his experience. What was more upsetting, however, was that when he contacted Airbnb about what he saw as discrimination, he said the firm offered little in the way of support. So he wrote down his story and put it online. It went viral. "I woke up to 2,000 emails," he said, from other people who had experienced the same thing. "That's when I realized it was a systemic problem." And no small one. Airbnb says it serves 60 million clients and has more than two million listings in 191 countries. #AirbnbWhileBlack came to national attention several months ago when a lawsuit was filed by Gregory Selden, an African-American man in his 20s from Washington, D.C., who tried to book accommodation last year in Philadelphia, Pennsylvania. Mr. Selden was told by a property owner that the space he wanted to rent was unavailable, but when he altered his Airbnb profile using pictures of a white man's face, his rental was accepted for the same dates. Like Gilkes, Selden complained to Airbnb and was dissatisfied with the result. He initiated a class-action lawsuit, citing complaints from other Airbnb users of color who had had difficulty finding a host who would accept them. Airbnb users must sign a class-action waiver in order to use the service, which could negate the legal action; the case is still pending. Airbnb has been hit by discrimination complaints in the past. A working paper published by Harvard University this month found that not only was it harder for black people to find accommodation through Airbnb, but even black Airbnb hosts were more likely to refuse a black person than white hosts. The finding held true not only for people who were obviously black in their profile photographs, but also people with names that are more common to black people than whites. "The difference persists whether the host is African-American or white, male or female. The difference also persists whether the host shares the property with the guest or not, and whether the property is cheap or expensive," according to the Harvard study, prepared by Benjamin Edelman, Michael Luca and Dan Svirsky. The experts also noted that discrimination costs hosts money: they found that hosts who rejected black guests were only able to find replacement guests 35 percent of the time. Enter Airbnb's new anti-discrimination policy, promised in June and delivered, as promised, in September. Critics say it doesn't go far enough. Many people familiar with the AirbnbWhileBlack phenomenon say user profile pictures are a major source of the discrimination problem. Airbnb has not promised to eliminate use of profile photos, as some of its critics have proposed, but instead says it will work on "reducing the prominence of guest photos in the booking process." The company said photographs are an important element in building trust between hosts and guests. The home-sharing company also says it will encourage customers to use its "instant book" listings, an automatic service that makes reservations without prior host approval of specific guests, based on a pre-approved calendar. And it says it is improving the diversity of its own staff and putting better customer-service policies in place for discrimination complaints. Airbnb's policy statement issued this month promises, "If a guest is not able to book a listing because they have been discriminated against, Airbnb will ensure the guest finds a place to stay." In addition, Airbnb says it recognizes the need to expand its host opportunities in communities of color. But the new policy has its limits. "You can't pass a law or policy to change somebody's mind," says Reid Breitman of Kuzyk Law in Los Angeles. "You can't make somebody trust somebody." Real estate analyst Emile L'Eplattenier of Fit Small Business in New York says Airbnb hosts have good reason to be choosy about their renters. "There have been many stories in the news of Airbnb guests trashing their hosts' apartments, having wild parties, or using them for drug-fueled trysts. Every single one of those guests technically was vetted by Airbnb. Why shouldn't hosts be able to use their own judgment when renting their homes to strangers from the internet?" Meanwhile, Mr. Gilkes says, people of color remain underserved. He and a business partner, Zakkiyah Myers, are about four weeks away from opening their own business designed to provide a more welcoming experience to people of color. Their website, Innclusive, looks very similar to Airbnb's, but Mr. Gilkes says there are some important differences. For one, hosts and guests won't see pictures of each other until after the booking is made. "If you show photographs before the person accepts the guests, you're introducing bias into the platform," Mr. Gilkes says. "People are making decisions based on how they look . . . not whether they'd be good potential guests." Another thing they'll do, something Airbnb has picked up as well, is to close dates to subsequent requests if a host rejects a guest for a particular set of dates. In addition, Mr. Gilkes says, Innclusive is working on a platform that will cooperate with Airbnb's booking system so hosts can list their properties on both sites without fear of double-booking. Innclusive will also pick up one of Airbnb's strong trust-building features, reviews of both guests and hosts. Those reviews, and not racial profiling, Mr. Gilkes says, are the right place to go for information on whether guests and hosts have the same standards of behavior. ALCON LABORATORIES: America's Health Agrees to Withdraw Cert. Bid ----------------------------------------------------------------- The Hon. Thomas M. Durkin signed the parties' stipulation and order withdrawing motion for class certification filed in the lawsuit captioned AMERICA'S HEALTH & RESOURCE CENTER, LTD., an Illinois Corporation, individually and as the representative of a class of similarly-situated persons v. ALCON LABORATORIES, INC., NOVARTIS PHARMACEUTICALS CORPORATION, and JOHN DOES 1-12, Case No. 1:16-cv-04539 (N.D. Ill.). The Stipulation and Order provides that Defendants Alcon Laboratories, Inc., and Novartis Pharmaceuticals Corporation stipulate that they will not make any offer or tender to the Plaintiff, including but not limited to an offer pursuant to Rule 68 of the Federal Rules of Civil Procedure, or a deposit of the full amount of the Plaintiff's individual claim in an account payable to the Plaintiff. However, the Stipulation does not preclude the Defendants from serving an offer or tender to the Plaintiff in these circumstances: (1) If the Defendants send all counsel of record for the Plaintiff an e-mail notifying it that the Defendants intend to serve an offer or tender on an individual basis, then the Defendants may serve such tender or offer beginning on the tenth (10th) day after the e-mail notification was sent (but not before such time); (2) the Defendants may serve an offer or tender on a class-wide basis at any time. In consideration of the foregoing, the Plaintiff stipulates to withdraw the pending motion for class certification without prejudice. A copy of the Stipulation and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=bIbD7wi5 The Plaintiff is represented by: Francis A. Citera, Esq. Gregory E. Ostfeld, Esq. Kyle L. Flynn, Esq. GREENBERG TRAURIG, LLP 777 W. Wacker Drive, Suite 3100 Chicago, IL 60601 Telephone: (312) 456-8400 Facsimile: (312) 456-8435 E-mail: ostfeldg@gtlaw.com citeraf@gtlaw.com flynnk@gtlaw.com The Defendants are represented by: Phillip A. Bock, Esq. Tod A. Lewis, Esq. David M. Oppenheim, Esq. Julia L. Titolo, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@classlawyers.com tod@classlawyers.com david@classlawyers.com julia@classlawyers.com ALLY FINANCIAL: Final Approval of Class Action Settlement Upheld ---------------------------------------------------------------- Judge Patricia Bamattre-Manoukian of the California Court of Appeals affirmed trial court's April 29, 2014 final order and judgment approving and incorporating a class action settlement in which respondent Ally Financial Inc. resolved the claims of a class of persons, including appellants Patricia Trujillo and Joseph Riley, who had defaulted on their auto loans and had their automobiles repossessed by Ally. The appellate case is captioned, ALLY FINANCIAL INC., Plaintiff, Cross-defendant and Respondent, v. ANGELA C. LAZROVICH et al., Defendants and Cross-complainants; PATRICIA TRUJILLO et al., Objectors and Appellants, Case No. H041197 (Cal. App.). In March 2011 Ally filed a complaint against Angela C. Lazrovich alleging that she had defaulted on her auto loan. Ally further alleged that Lazrovich owed a deficiency balance of $28,400.98, which was the loan balance that remained after Ally had repossessed and sold her automobile. Ally sought a judgment in the amount of the deficiency balance plus attorney's fees and costs. Lazrovich responded by filing a class action cross-complaint against Ally in April 2011. In the first amended cross-complaint Lazrovich and two other named cross-complainants, Bobby Jackson and Pamela Jackson, asserted that they did not owe a deficiency balance because Ally's notice of intent to dispose of a repossessed motor vehicle (NOI) was defective. Specifically, they claimed that the NOI was defective because it did not include all of the disclosures mandated by the Automobile Sales Finance Act (Rees-Levering Act). The causes of action in the cross-complaint included (1) violation of the Rees-Levering Act, section 2981; (2) violation of Business and Professions Code section 17200; and (3) conversion. The remedies sought included class certification, declaratory relief, injunctive relief, damages, and attorney's fees. In addition, cross-complaints sought an order requiring Ally to "send a letter to each of the credit reporting agencies instructing them to delete all references to the trade lines3 of class members, including, but not limited to any reference to repossessions, deficiency balances allegedly owed, and/or charge-offs of such balances." The parties entered into a proposed class action settlement that defined the settlement class as "all persons: (a) who purchased a Motor Vehicle in California under a Conditional Sale Contract and whose contract was assigned to Ally; (b) whose Motor Vehicle was repossessed or voluntarily surrendered to Ally; (c) who were issued an NOI by Ally between March 4, 2007 and August 2, 2011; and (d) against whose account a Deficiency Balance was assessed." The trial court's June 18, 2013 order certified the settlement class; preliminarily approved the class action settlement; approved the notice of proposed class action settlement and the claim form that were attached to the settlement agreement. Ally affirms that as of August 1, 2012, there are approximately 16,943 members of the Settlement Class, whose deficiency balances total approximately $173,353.175. However, as part of this settlement, Ally will forgive and stop all efforts to collect the remaining deficiency balances. Ally agrees not to pursue collection of any deficiency balance remaining after the sale of the repossessed vehicles which are the subject of the Action. In January 2014, class counsel filed a motion for final approval of the class action settlement, contending that all of the relevant factors weighed in favor of final approval. Among other factors, class counsel argued that "the class has achieved nearly all the relief it could have obtained had it gone to trial and prevailed on the merits." On March 6, 2014, Trujillo filed a memorandum of points and authorities in opposition to the motion for final approval of the class action settlement. Class counsel filed a reply to Trujillo's opposition, arguing that the opposition was procedurally barred since it was filed more than five months after the September 2013 deadline for filing an objection to the settlement. On March 24, 2014, the day before the hearing on the motion for final approval of class action settlement, Riley filed a request "for opt out and exclusion from final approval of class action settlement." The trial court denied Riley's request for opt out and exclusion during the hearing on the motion for final approval of class action settlement that was held on March 25, 2014. The trial court granted final approval finding that the settlement agreement to be "fair, adequate, and reasonable" and provides that the final judgment incorporates the settlement agreement. The court also found that class counsel and the named plaintiffs had adequately represented the interests of the class; the class was appropriate for certification for settlement purposes; and the class notice constituted the best notice practicable and was in full compliance with due process and the California Rules of Court. The Appeals Court noted that on appeal, Trujillo and Riley contend that the judgment should be reversed because the class action settlement is unfair and unreasonable due to the failure of the defective class notice to disclose to the class members that they would incur federal income tax liability as a result of Ally's debt cancellation and debt forgiveness. They also contend that class members should not have been required to give a "full Section 1542 release" without Ally admitting that its NOIs were defective. In her Opinion dated September 13, 2016 available at https://is.gd/cWLygD from Leagle.com, Judge Bamattre-Manoukian determined that the trial court did not abuse its discretion in (1) denying Riley's request for opt out and exclusion from the class action settlement because he failed to provide a convincing reason for his failure to file his request for opt out and exclusion at any time sooner than the day before the March 25, 2014 hearing on the motion for final approval of the class action settlement; (2) finding that the class notice in the case adequately informed the class members of the potential tax consequences of accepting the settlement benefits. ALTA-DENA CERTIFIED: Perez Seeks Cert. of Class and 11 Subclasses ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled JUAN PEREZ, on behalf of himself and those similarly situated v. ALTA-DENA CERTIFIED DAIRY, LLC, a Delaware Limited Liability Company; and DOES 1 through 10, inclusive, Case No. 2:13-cv-07741-R-FFM (C.D. Cal.), asks the Court to certify these class and subclasses: Plaintiff Class: All persons who were employed by Defendant as a "Driver" in California for as long as the statutory period will allow (the "putative class"). Subclass 1 ("Meal Period Subclass"): All Plaintiff Class Members who worked a shift of five hours or more for Defendant from [February 7, 2008] [May 15, 2009]1 to May 31, 2011. Subclass 2 ("Meal Period Subclass 2008-2011 A") (*alternative to Subclass 1): All Plaintiff Class Members who worked a shift of five hours or more for Defendant from [February 7, 2008] [May 15, 2009] through December 31, 2010. Subclass 3 ("Meal Period Subclass 2008-2011 B") (*alternative to Subclass 1): All Plaintiff Class Members who worked a shift of ten or more for Defendant from [February 7, 2008] [May 15, 2009] through December 31, 2010. Subclass 4 ("Rest Period Subclass"): All Plaintiff Class Members who worked a shift of eight hours or more for Defendant from [February 7, 2008] [May 15, 2009] through December 31, 2010. Subclass 5 ("30 Minute Deduction Subclass - Regular Rate or Minimum Wage"): All Plaintiff Class Members who worked a shift of five hours or more for Defendant from [February 7, 2008] [May 15, 2009] through the date of the Certification Order. Subclass 6 ("30 Minute Deduction Subclass - Overtime"): All Plaintiff Class Members who worked hours eligible for overtime compensation (inclusive of the 30 minute credit for each day such time was automatically deducted) for Defendant from [February 7, 2008] [May 15, 2009] through May 31, 2011. Subclass 7 ("30 Minute Deduction Subclass - Regular Rate or Minimum Wage Based on Defendant's Records") (*alternative to Subclass 4): All Plaintiff Class Members who worked a shift of five hours or more for Defendant from [February 7, 2008] [May 15, 2009] through the date of the Certification Order without recording 30 minutes of off-duty time, but who had 30 minutes of hourly wages automatically deducted by Defendant's auto-deduct policy as shown by Defendant's corporate business and payroll records. Subclass 8 ("30 Minute Deduction Subclass - Overtime") (*alternative to Subclass 5): All Plaintiff Class Members who worked a shift of five hours or more for Defendant from [February 7, 2008] [May 15, 2009] through May 31, 2011 without recording 30 minutes of off-duty time, but who had 30 minutes of hourly wages automatically deducted by Defendant's auto-deduct policy - and who worked hours eligible for overtime compensation, but whose overtime pay was unpaid and/or reduced as a result of Defendant's auto-deduct policy - as shown by Defendant's corporate business and payroll records. Subclass 9 ("Paystub Subclass"): All Plaintiff Class Members who worked for Defendant from [February 7, 2011] [May 15, 2012] to the date established by the Certification Order. Subclass 10 ("The Termination Pay Subclass"): All Plaintiff Class Members whose employment was separated from [February 7, 2009] [May 15, 2010] to the date established by the Certification Order. Subclass 11 ("UCL Subclass"): All Plaintiff Class members who worked for Defendant from [February 7, 2008] [May 15, 2009] through the date of the Certification Order and are owed restitution for "hours worked" without pay [because of Defendant's route restriction policy] or [as shown by Defendant's corporate business and payroll records]. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3JVcD3JV The Court will commence a hearing on October 17, 2016, at 10:00 a.m., to consider the Motion. The Plaintiff is represented by: Timothy B. McCaffrey, Jr., Esq. Natasha Chesler, Esq. THE LAW OFFICES OF TIMOTHY B. McCAFFREY, JR. A PROFESSIONAL CORPORATION 11377 West Olympic Boulevard, Suite 500 Los Angeles, CA 90064-1683 Telephone: (310) 882-6407 Facsimile: (310) 882-6359 E-mail: tmccaffrey@tbmlaw.net nchesler@tbmlaw.net AMERICAN AIRLINES: Faces "Huddleston" Suit in Illinois ------------------------------------------------------ LUCAS HUDDLESTON, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant, Case No. 1:16-cv-09100 (N.D. Ill., September 20, 2016), alleges that American Airlines unilaterally imposes on its passengers a set of rules and requirements called an International General Tariff and yet systematically bars passengers from traveling when they attempt to check in within arbitrary time limits that are not mentioned in, and are not a part of, their Contract. American Airlines, Inc. -- https://www.aa.com/ -- operates as a passenger and cargo air carrier. The Plaintiff is represented by: Daniel Lynch, Esq. James Thompson, Esq. LYNCH THOMPSON LLP 150 S Wacker Drive, Suite 2600 Chicago, IL 60606 Phone: (312) 346-1600 Fax: (312) 896-5883 E-mail: dlynch@lynchthompson.com jthompson@lynchthompson.com - and - Michael J. Boni, Esq. Joshua D. Snyder, Esq. John E. Sindoni, Esq. BONI & ZACK LLC 15 St. Asaphs Rd. Bala Cynwyd, PA 1900 Phone: 610-822-0200 E-mail: mboni@bonizack.com jsnyder@bonizack.com jsindoni@bonizack.com - and - Benjamin Edelman, Esq. 169 Walnut Street Brookline, MA 02445 Phone: (617) 359-3360 E-mail: ben@benedelman.org - and - Oren S. Giskan, Esq. GISKAN SOLOTAROFF & ANDERSON LLP 11 Broadway, #2150 New York, NY 10004 Phone: (212) 847-8315 E-mail: ogiskan@gslawny.com AMERICAN WATER: Motions to Remand, File Sur-Reply Denied -------------------------------------------------------- District Judge Robert B. Kugler of the United States District Court for the District of New Jersey denied Plaintiff's renewed motion to remand and Defendants' motion to request leave to file a sur-reply in the case captioned, SOVANARRA NOP, INDIVIDUALLY AND AS A CLASS REPRESENTATIVE ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiffs, v. AMERICAN WATER RESOURCES, INC. et al., Defendants, Case No. 15-1691 (RBK/AMD) (D.N.J.). Plaintiff Sovanarra Nop, class representative of others similarly situated, originally filed the action in Superior Court of New Jersey, Camden County on or about January 13, 2015. Plaintiff alleges that she purchased a contract from Defendants for protection against unexpected repair costs to her residential property's water and sewage lines. She contends that she paid monthly fees on the contract but that Defendants have refused to repair her broken sewer line, the damage from which has rendered her property's bathrooms unusable. Plaintiff raises her claim under multiple New Jersey state laws and alleges a class action on behalf of "all persons who received the contracts in the state of New Jersey from a period six years prior to the filing of the complaint." On March 6, 2015, Defendants removed this case to the District Court on the basis that there is minimal diversity in satisfaction of the Class Action Fairness Act (CAFA). Specifically, Defendants assert that the class includes "numerous customers" who were domiciled in other states but received the contract on vacation properties, and others who received the contracts at their domiciles in New Jersey but have since established domiciles in other states. Plaintiff originally argued that the Court should decline jurisdiction over the proposed class action because either of two exceptions to CAFA applies in this instance: (1) the "local controversy" exception, 29 U.S.C. Section 1332(d)(2)(A) and (2) the "home state exception," Section 1332(d)(4)(B). Defendants contended, however, that Plaintiff had not satisfied her burden of establishing by a preponderance of the evidence that either CAFA exception applied because Plaintiff did not offer any evidence of the citizenship of the proposed class. Plaintiff then filed the Renewed Motion for Remand. Plaintiff argues that, because 36.7% of Defendants' New Jersey property customer list that had a "service address or current and/or last known mailing address corresponding with a voter name and voter address on a current New Jersey voter registry," at least one- third of the putative class is New Jersey citizens. Further, Plaintiff points to the fact that 97% of the putative class has a current or last known mailing address in New Jersey as further support for the contention that at least one-third of its members are New Jersey citizens. In response, Defendant asserts that this evidence is insufficient to satisfy the home-state exception and the Court should maintain jurisdiction over the case. Defendant has also filed a Motion to Request Leave to file a Sur-Reply. In his Opinion dated September 14, 2016 available at https://is.gd/iV5td1 from Leagle.com, Judge Kugler held that although the evidence does establish that there are members of the putative class that have residences in New Jersey, it does little to confirm the customers are citizens of New Jersey. The Plaintiff's Renewed Motion for Remand cannot be granted without more definitive evidence that would keep the Court from having to infer or guess the state citizenship of individuals in the putative class. Plaintiff failed to conduct any investigation or produce any evidence other than the facts produced by the Defendant. As such, Plaintiff has not met their burden of proof to establish that the home-state exception should apply to the instant case. Sovannara Nop is represented by Lewis G. Adler, Esq. -- lewisadler@verizon.net -- LAW OFFICE OF LEWIS ADLER American Water Resources, Inc, et al. are represented by Michael P. Daly, Esq. -- mdalylaw@gmail.com -- and Daniel Elliot Brewer, Esq. -- daniel.brewer@dbr.com -- DRINKER BIDDLE & REATH AMERICAN RENAL: Wolf Popper Files Securities Class Action --------------------------------------------------------- Wolf Popper LLP on Sept. 6 disclosed that it has filed a class action lawsuit against American Renal Associates Holdings, Inc. ("American Renal") (ARA), and certain of its officers, in the United States District Court for the District of Massachusetts, on behalf of all persons who purchased American Renal securities on the open market and/or pursuant to its April 20, 2016 Registration Statement, during the period April 20, 2016 through August 18, 2016, and were damaged thereby. This action alleges claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. If you are a member of the Class, you may file a motion no later than October 31, 2016 to be appointed lead plaintiff. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Investors who purchased American Renal securities during the Class Period and suffered losses are urged to contact Wolf Popper to discuss their rights. American Renal is a provider of dialysis services. The Complaint charges that prior to and during the Class Period, the company, in order to obtain higher reimbursement rates, conspired to convince Medicare and Medicaid-eligible patients to enroll in private health insurance plans by referring them to an industry-funded not-for-profit, which would pay for their premiums. During the Class Period, defendants issued a series of false and misleading statements, including that American Renal maintained robust compliance, that it followed a disciplined approach to payor interaction and billing matters, and that dialysis patients were increasingly opting for private insurers. Defendants failed to disclose that certain of American Renal's revenue was derived from enticing patients into the private market. On July 1, 2016, following the close of the market, news broke that three affiliates of the insurer UnitedHealth Group Inc. had sued American Renal for a "fraudulent and illegal scheme," in violation of various state anti-kickback and insurance fraud statutes for steering dialysis patients into its health plans. On the next day of trading, the company's shares declined $2.82 per share or nearly 9.88%, to close at $25.71 per share. On August 18, 2016, following the close of the market, it was revealed that the Centers for Medicare and Medicaid Services had launched a probe into whether dialysis centers were improperly steering patients "to an individual market plan for the purpose of obtaining higher payment rates." On this news, American Renal shares declined an additional $2.31 per share or nearly 10.44%, to close at $19.81 per share on August 19, 2016. ANGIODYNAMICS INC: Purcell Investigates Potential Fiduciary Claim ----------------------------------------------------------------- Purcell Julie & Lefkowitz LLP, a class action law firm dedicated to representing shareholders nationwide, is investigating a potential breach of fiduciary duty claim involving the board of directors of AngioDynamics, Inc. If you are a shareholder of AngioDynamics and are interested in obtaining additional information regarding this investigation, free of charge, please visit us at: http://pjlfirm.com/angiodynamics-inc/ You may also contact Robert H. Lefkowitz, Esq. either via email at rl@pjlfirm.com or by telephone at 212-725-1000. One of our attorneys will personally speak with you about the case at no cost or obligation. Purcell Julie & Lefkowitz LLP -- http://pjlfirm.com-- is a law firm exclusively committed to representing shareholders nationwide who are victims of securities fraud, breaches of fiduciary duty and other types of corporate misconduct. ARCHDIOCESE OF AGANA: Sex Abuse Victims Urged to Join Class Suit ---------------------------------------------------------------- Mar-Vic Cagurangan, writing for Marianas Variety, reports that the passage of a bill that would lift the statute of limitation for sex-abuse cases, if signed into law, would open the floodgates for lawsuits against the Archdiocese of Agana and drive the Guam church into financial bankruptcy, Archbishop Savio Hon Tai Fai said Sept. 18. "In other states where similar laws were enacted, the results have been school closures and cessation of vital services," the apostolic administrator said in a message addressed to the faithful and read at Sunday Mass. Hon is now back in Rome to ask Pope Francis to remove Archbishop Anthony S. Apuron as head of the Archdiocese, citing the "gravely serious allegations" that the church will continue to deal with during a canonical trial at the Congregation of the Doctrine of the Faith. The Archdiocese is facing mounting allegations of sex abuse against Apuron, who is accused of molesting altar boys when he was a priest at the Mount Carmel Parish in Agat in the 1970s. At least four former altar boys, the mother of a deceased altar boy and a third-party witness have come out with claims against Apuron, revealing secrets kept for almost five decades. "On behalf of the church, I want to apologize personally to the survivors of sexual abuse everywhere who have suffered so much at the hands of clergy," Hon said. "We cannot undo the betrayal of trust and faith and the horrendous acts that the clergy have committed against the youngest and the most innocent amongst us." Guam is a predominantly Catholic community, and rumors about sex in the pulpit are nothing new, but in earlier years they were just passed around in guilty whispers, if not muffled by the church's policy of simply transferring accused priests to other parishes. In recent years, however, activism against church abuses has been emerging in the mainstream, triggering open discussions in a manner as rabid as politics. The Guam Legislature unanimously passed Bill 326-33 that would allow retroactive sex-abuse cases from decades ago to be brought to court. "We know that time restrictions have been a particularly pressing problem in light of the delicate nature of child-sex crimes as victims often need many years to overcome the pain of their abuse and time to obtain the courage needed to speak out about the abuse that they have suffered," said Sen. Frank Blas, the bill's author. "As the national trend moves toward loosening past restrictions and statutes of limitations, we are now doing the same with the passage of Bill 326-33." Hon is seeking to discourage Guam Gov. Eddie Calvo from signing the bill into law, noting its "damaging unintended consequences." The archbishop warned that retroactive lawsuits would jeopardize the church mission on Guam. "In permitting lawsuits to be revived from decades ago, the Archdiocese will be exposed to unlimited financial liability," Hon said. He said bankruptcy will result in forced sale of church property that currently houses Catholic schools and social services, hence a "devastating effect on education and charitable work." Hon said the possible church shutdown on Guam would affect "good lay people, members of religious orders and devoted clergy who have never done anything wrong." Roy Taitague Quintanilla, 52, was the first to publicly emerge since local advocates launched the "Silent No More" campaign in early May. Mr. Quintanilla accused Apuron of molesting him when he was a 12-year-old altar server at Our Lady of Mt. Carmel Parish in the village of Agat. Walter Denton, Roland Sondia and Doris Concepcion -- for her late son, Joseph "Sonny" Quinata -- followed suit. When the bill was first introduced at the Legislature earlier this year, a group called Concerned Catholics of Guam ran a full-page ad in local print media, urging victims to come forward to sign up for a possible class action. The group is a local arm of Survivors Network of those Abused by Priests or, a national support group for sex-abuse victims. Concerned Catholics of Guam organizers said the newspaper ad has motivated a number of victims to come out. The ad solicited victims of incidents that occurred during specific dates from 1974 to 1984. Former altar boy Ramon Afaisen De Plata, 62, made a public allegation against Apuron, claiming that in March 1964 he witnessed Apuron -- a seminarian at the time -- engaging in sexual activity with a 10-year-old altar boy. ARTHROSCOPIC & LASER: Settles Class Action for $5 Million --------------------------------------------------------- A proposed settlement has been reached in a class action lawsuit involving Arthroscopic & Laser Surgery of San Diego and HealthSouth Corporation. The proposed settlement provides compensation to certain patients of these medical institutions. On May 6, 2016, San Diego Superior Court Judge Ronald L. Styn preliminarily approved a settlement resolving the case Carroll v. HealthSouth Arthroscopic & Laser Surgery Center of San Diego, L.P. The plaintiffs allege that the settling defendants violated California law by concealing certain details about a member of the practice and their fitness to perform surgery. The settling defendants deny that they violated the law in any way as alleged in the lawsuit. The case was settled by the parties without any finding of wrongdoing. Class members are those people who were patients who treated at Arthroscopic & Laser Surgery Center of San Diego, L.P. (and all affiliated entities operating under fictitious business names related thereto); SHC San Diego, Inc.; or HealthSouth Corporation at the HealthSouth Sports Medicine and Rehabilitation Center formerly located at or about 5471 Kearny Villa Road, Suite 202, San Diego, California; and/or who received any surgery or treatment from Defendant Gary Losse, M.D. at Arthroscopic & Laser Surgery of San Diego, L.P. or the Kearny Villa location, at any time from January 1, 1996 through December 15, 2000. Class members may have their legal rights affected by this settlement and are advised to learn more about the proposed settlement and their options. A settlement fund of $5 million is being set up to pay claims to eligible class members, attorneys' fees and costs, incentive award to the named plaintiffs, and the notice and claims administration costs. Class members wishing to be included in this settlement and receive a settlement payment must submit a Claim Form by October 25, 2016. Those wishing to exclude themselves from the settlement, comment or object to the settlement, must do so by October 25, 2016. Class members who do nothing will not receive a share of the settlement and will be bound by the Court's decision (if approved). This press release is only a summary of the full class action settlement. Detailed information on the terms of the settlement, how to file a claim, how to object or exclude yourself from the settlement, and other important information can be found by visiting www.HealthSouthClassAction.com (http://www.HealthSouthClassAction.com),calling toll-free 1-888- 272-1245, or writing to: HealthSouth Claims Administrator, c/o Classaura Class Action Administration, 1718 Peachtree Street NW, Suite 1080, Atlanta, GA 30309. ASCENA RETAIL: Mediation Scheduled for September 20 in "Linares" ---------------------------------------------------------------- Ascena Retail Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 19, 2016, for the fiscal year ended July 30, 2016, that mediation was scheduled for September 20, 2016, in the case, Steven Linares v. ANN INC. On December 29, 2015, plaintiff, Steven Linares, a former sales associate, filed a class action complaint on behalf of all sales leads, sales associates and stock associates working in California from December 29, 2011 through the present, in Los Angeles County Superior Court. Plaintiff alleges on behalf of the class that ANN did not properly provide overtime pay, minimum wage pay, meal and rest breaks, and waiting time pay, among other claims under the California Business and Professions Code and California Labor Code. The case is in its early stages and formal fact discovery has not yet begun, therefore, we are not able to estimate a range of reasonably possible losses. AXIALL CORP: Faces Class Action Over Chlorine Gas Leak ------------------------------------------------------ Kyla Asbury, writing for West Virginia Record, reports that four residents filed a class action lawsuit against Axiall Corporation after they claim chlorine gas leaked traveled from inside the facility to the surrounding community. On Aug. 27, a rail tanker that was inside Axiall's Proctor plant leaked a substantial amount of liquid chlorine, according to a complaint filed Aug. 30 in Marshall Circuit Court. Tim Bohrer, Ronda Bohrer, Roy Yoho and Darlene Yoho claim as a result of the leak, a large chemical cloud was created that caused the toxic substance to travel from the Proctor plant to the surrounding communities, including properties they owned. Individuals living in the communities near the plant were forced to evacuate their homes and leave the area to avoid exposure to the toxic chemical, according to the suit. The plaintiffs claim the chemical cloud and/or chemical exposure damaged their personal and real properties, including their roofs, cars, homes, plants, gardens, grass and trees. Axiall was negligent in allowing the liquid chlorine to leak from the space where it was contained and in failing to control, manage and/or contain the liquid chlorine at the plant in a safe manner, according to the suit. The plaintiffs claim Axiall was also negligent in failing to take actions to limit the spreading of the chemical cloud, in failing to protect the surrounding communities from the hazardous chemical and in failing to exercise due care generally in controlling the liquid chlorine. Axiall's negligent and/or reckless acts and/or omissions directly and proximately caused liquid chlorine to leak from the plant, which caused the hazardous chemical to enter onto the plaintiffs' properties and the result of the defendants' trespass caused the plaintiffs damages, according to the suit. The plaintiffs are seeking compensatory and punitive damages. They are being represented by James G. Bordas Jr., Jeremy M. McGraw and Bryan D. Pasciak of Bordas & Bordas. Marshall Circuit Court case number: 16-C-158 BARNES AND NOBLE: Faces "Brown" Suit Under FLSA, Ill. Wage Law -------------------------------------------------------------- KELLY BROWN, Individually and on behalf of all others similarly situated, as COLLECTIVE AND CLASS Plaintiff, v. BARNES AND NOBLE, INC., Defendant, Case No. 1:16-cv-07333 (S.D.N.Y., September 20, 2016), alleges that the Defendant has violated the rights of its Cafe Managers under the Fair Labor Standards Act, and the Illinois Minimum Wage Law. BARNES AND NOBLE, INC. is an American bookseller. The Plaintiff is represented by: Michael J. Palitz, Esq. SHAVITZ LAW GROUP, P.A. 830 3rd Avenue, 5th Floor New York, NY 10022 Phone: (800) 616-4000 Fax: (561) 447-8831 - and - Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 1515 South Federal Highway, Suite 404 Boca Raton, FL 33432 Phone: (561) 447-8888 Fax: (561) 447-8831 BLS LIMOUSINE: "Andujar" Seeks Judicial Intervention in Labor Case ------------------------------------------------------------------ Felix Andujar, Individually, and on behalf of all others similarly situated, Plaintiff, v. BLS Limousine Service of New York, Inc., Defendant, Case No. 707432/2016, (N.Y. Sup., June 23, 2016), seeks judicial intervention over his labor case on September 9, 2016. Andujar claims unpaid overtime compensation, maximum liquidated damages, reasonable attorneys' fees and costs under the Fair Labor Standards Act, New York Minimum Wage Act and New York Labor Law. Defendant operates a limousine service in Queens County, New York, at 1820 Stein way Street, Astoria, NY 11105, where Plaintiff was employed as a driver. Plaintiff is represented by: Abdul K. Hassan, Esq. 215-28 Hillside Avenue Queens Village, NY 11427 Tel: 718-740-1000 Fax: 718-740-2000 Email: abdul@abdulhassan.com BLUENRGY GROUP: Rosen Law Firm Files Securities Class Action ------------------------------------------------------------ Rosen Law Firm on Sept. 6 disclosed that it has filed a class action lawsuit on behalf of purchasers of BlueNRGY Group Limited, f/k/a CBD Energy Limited stock from June 13, 2014 through October 24, 2014 (the "Class Period"). The lawsuit seeks to recover damages for BlueNRGY investors under the federal securities laws. To join the BlueNRGY class action, go to the website at http://www.rosenlegal.com/cases-411.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. The suit is pending in U.S. District Court for the Southern District of Texas. 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, BlueNRGY issued materially false financial statements during the Class Period. On October 24, 2014, BlueNRGY announced that its previously issued audited financial statements for the fiscal years 2012 and 2013 and interim financial statements for the six months ended December 31, 2013 cannot be relied upon by investors. According to BlueNRGY, certain related party transactions involving its former Executive Chairman and Managing Director, Gerard McGowan, were not accurately disclosed in its financial statements. The failure to disclose and properly account for Mr. McGowan's related party transactions rendered BlueNRGY's financial statements for the fiscal years 2012 and 2013 false and misleading. On this news, shares of BlueNRGY fell sharply on October 24, 2014, damaging investors. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than November 7, 2016. If you wish to join the litigation go http://www.rosenlegal.com/cases-411.htmlor to discuss your rights or interests regarding this class action, please contact, Phillip Kim, Esq. or Kevin Chan, Esq. of The Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. CELADON GROUP: Appeal in "Wilmoth" Class Action Pending ------------------------------------------------------- Celadon Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 13, 2016, for the fiscal year ended June 30, 2016, that the Company's appeal in a class action lawsuit remains pending. The Company's subsidiary has been named as the defendant in Wilmoth et al. v. Celadon Trucking Services, Inc., a class action proceeding. A summary judgment was granted in favor of the plaintiffs. "We have appealed this judgment. We believe that we will be successful on appeal, but it is also reasonably possible the judgment will be upheld. We estimate the possible range of financial exposure associated with this claim to be between $0 and approximately $5.9 million. We currently do not have a contingency reserved for this claim, but will continue to monitor its progress to determine if a reserve is necessary in the future," the Company said. "We had also been named as the defendant in in Day et al. v. Celadon Trucking Services, Inc., a second class action proceeding. A judgment was granted in favor of the plaintiffs. We appealed this judgment, but the judgment was subsequently upheld. The estimated damages of $2.4 million were fully reserved at June 30, 2016." CHARIOT TRANSIT: Faces "Love" Suit in California Superior Court --------------------------------------------------------------- A lawsuit has been filed against Chariot Transit, Inc. The case is titled LOVE, TYRELL AND BROOKS, DAVINA ON BEHALF OF THEMSELLVES AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. DOES 1 TO 10, INCLUSIVE, and CHARIOT TRANSIT, INC. A CALIFORNIA CORPORATION, the Defendants, Case No. CGC 16 554398 (Cal. Super. Ct., Sept. 21, 2016). Chariot Transit provides crowd-sourced transit services in San Francisco. The company offers services through a fleet of vans. CHC GROUP: Awaits Hearing Date on Motion to Dismiss Class Suit -------------------------------------------------------------- CHC Group Ltd. (Debtor-in-Possession) said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2016, for the Quarterly Period Ended July 31, 2016, that CHC is awaiting a hearing date on its motion to dismiss a class action lawsuit. The two securities class action lawsuits that were previously filed against the Company were consolidated into a single action, Rudman et al. v. CHC Group et al., which is pending in federal district court for the Southern District of New York. A consolidated amended complaint was filed on November 6, 2015. The Company said, "The amended complaint alleges that the Company and others failed to disclose in our IPO materials that one of our major customers, Petrobras, had suspended payments on certain contracts due to the global stand-down of Airbus H225 aircraft. The amended complaint seeks class treatment and unspecified damages. CHC has filed a motion to dismiss and is awaiting a hearing date on that motion. The Company maintains adequate insurance to respond to these complaints. Moreover, the Company disputes the allegations in the complaints and will vigorously defend against them." CHESTER COUNTY: Faces "Slivak" Suit in E.D. of Pennsylvania ----------------------------------------------------------- A lawsuit has been filed against Chester County Area Airport Authority. The case is entitled JESSICA SLIVAK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. CHESTER COUNTY AREA AIRPORT AUTHORITY, the Defendant, Case No. 2:16-cv-05050-JHS (E.D. Penn., Sept. 21, 2016). The assigned Judge is Hon. Joel H. Slomsky. The Chester County Area Airport Authority owns Chester County G. O. Carlson Airport, a public airport two miles west of Coatesville, in Chester County, Pennsylvania. The Plaintiff is represented by: Arkady Eric Rayz, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364 5030 Facsimile: (215) 364 5029 E-mail: erayz@kalraylaw.com CHIPOTLE: To Go on Hiring Spree Amid Wage Theft Suit ---------------------------------------------------- Fox31 Denver reports that Chipotle is setting aside its problems and going on a hiring spree. The company, which has struggled in recent months with an E. coli outbreak and a lawsuit accusing it of mistreating workers, plans to offer jobs to 5,000 people across the country on Sept. 28. A spokesman said Chipotle needs the staff as it opens more than 200 of its Mexican-style restaurants this year. Chipotle calls it National Career Day. The first was a year ago, when the chain hired more than 4,000 workers. More than 65,000 registered for interviews. This year, Chipotle plans to interview up to 100 applicants at each of its roughly 2,000 U.S. restaurants. Applicants can register online. Chipotle employs about 60,000 people nationwide. It typically hires for entry-level jobs making burritos and promotes almost all its managers from within. The company reported its first quarterly loss in April and has been besieged by other bad news. Thousands of current and former employees are suing Chipotle, accusing it of making them work without pay after they were clocked out. The company denies wrongdoing. Starting in 2015, hundreds of customers across the country were sickened with E. coli, norovirus and salmonella after eating at Chipotle restaurants. The Centers for Disease Control and Prevention declared the outbreak over in January, but federal authorities have opened a criminal investigation. And in July, a top Chipotle executive was charged with seven counts of cocaine position. The stock has plunged 42 percent over the last year. But there are people who still believe in Chipotle, including Bill Ackman of the hedge fund Pershing Square, who just bought a 9.9 percent stake. In a public filing, Pershing called the company "undervalued" and "an attractive investment." COLONIAL FREIGHT: Faces "Davis" Lawsuit Alleging FLSA Violation --------------------------------------------------------------- THEODUS DAVIS, on behalf of himself and those similarly situated, 4100 White Hall Rd. Pattison, MI 39144 Plaintiff, v. COLONIAL FREIGHT SYSTEMS, INC., 19 Probasco Rd, East Windsor, NJ 08520 and PHOENIX LEASING OF TENNESSEE, INC., C/O COLONIAL FREIGHT SYSTEMS, INC. 19 Probasco Rd, East Windsor, NJ 08520 and RUBY MCBRIDE c/o COLONIAL FREIGHT SYSTEMS, INC. 19 Probasco Rd, East Windsor, NJ 08520 and JOHN DOES 1-10, Defendants, Case No. 3:16-cv-05739-MAS- LHG (D.N.J., September 20, 2016), alleges violations of the Fair Labor Standards Act. COLONIAL FREIGHT SYSTEMS, INC. is a truckload carrier operating throughout the United States. The Plaintiff is represented by: Joshua S. Boyette, Esq. Justin L. Swidler, Esq. Travis Martindale-Jarvis, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Phone: (856) 685-7420 Fax: (856) 685-7417 DELAWARE: DOC Settles Solitary Confinement Class Action ------------------------------------------------------- Open Minds reports that on August 6, 2016, the Delaware Department of Correction (DOC) agreed to a settlement calling for improvement in how the DOC handles solitary confinement of offenders with mental illness. Specifically, the DOC significantly limit the length of time that can be served in disciplinary housing at all DOC prisons. Further, the agreement includes language to support increased behavioral health, additional security staffing, and the creation of a new treatment center at James T. Vaughn Correctional Center in Smyrna. The settlement resolves a class-action lawsuit, Community Legal Aid Society, Inc. v. Coupe & Delaware Department Of Corrections. DUKE ENERGY: Ind. App. Revives Bellwether Properties Suit --------------------------------------------------------- Judge Bailey Brown of the Indiana Court of Appeals reversed a trial court's order granting a motion to dismiss in favor of Duke Energy Indiana, Inc. and remanded the case for further proceedings. The case is captioned, Bellwether Properties, LLC, Appellant- Plaintiff, v. Duke Energy Indiana, LLC, Appellee-Defendant, Case No. 53A04-1511-CT-1880 (Ind. App.). On July 19, 1957, Duke's predecessor in interest, Public Services Company of Indiana, obtained a perpetual Electric Pole Line Easement (the Easement) on land now owned by Bellwether for the installation of overhead electric lines. The Easement, memorialized in an Electric Pole Line Easement which was attached to Bellwether's complaint, states that the Easement is ten feet wide, including five feet on either side of the utility lines, and it provided the owner, currently Duke, with the right to construct, operate, patrol, maintain, reconstruct and remove electrical line, including necessary poles, wires, anchors, guys and fixtures attached thereto, for the transmission of electrical energy over, along, or across the following described real estate situated in the County of Monroe, and State of Indiana. In 1976, the Indiana Utility Regulatory Commission (the IURC) promulgated 170 I.A.C. 4-1-26, adopting standards contained in the 1967 edition of the National Electrical Safety Code (NESC) to govern the clearance needed around electrical lines. The IURC adopted newer editions of the NESC in 1986, 1987, 1990, 1993, and 1998. On November 1, 2002, the IURC amended 170 I.A.C. 4-1-26 to provide that the 2002 edition of the NESC will govern practices involving electrical lines. Following the IURC's incorporation of the 2002 NESC, Bellwether desired to expand a structure on its property and contacted Duke about its plans. Duke indicated that Bellwether could not expand according to the plan submitted because the plan would not provide the horizontal strike clearance required by the 2002 NESC. On June 30, 2015, Bellwether filed a Class Action Complaint and Jury Trial Demand (the Complaint) noting that it was bringing its claim pursuant to Ind. Trial Rule 23 individually and on behalf of a class, which it defined, and alleging one count of inverse condemnation. Bellwether specifically alleged that Duke took property for a public purpose without proceeding with a condemnation action under Ind. Code Section 32-24-1 et seq. and without providing just compensation, noting that, "throughout the State of Indiana, Duke has continued to maintain electrical transmission lines that -- when considering the required horizontal strike clearance -- violate the express limitations of the easements in place." On August 21, 2015, Duke filed a motion to dismiss, arguing that Bellwether's complaint fell outside the six-year statute of limitations for inverse condemnation actions. On October 15, 2015, the trial court held a hearing on Duke's motion, and on October 29, 2015, it issued an order granting Duke's motion to dismiss holding that Bellwether's inverse condemnation action is barred by the six year statute of limitation contained in IC 34-11-2-7(3). On appeal, Bellwether's argument is that the court "erred in conflating two distinct legal concepts: knowledge of the law and the accrual of a cause of action," asserting that although it is charged with knowledge of the law, its claim had not accrued because it did not have knowledge of certain technical facts giving rise to the claim. In his Order dated September 13, 2016 available at https://is.gd/ffwXHv from Leagle.com, Judge Brown concluded that the court erred when it ruled that the six-year statute of limitations on Bellwether's Complaint had expired, finding that the discovery rule's purpose, "to limit the injustice that would arise by requiring a plaintiff to bring his or her claim within the limitation period during which, even with due diligence, he or she could not be aware a cause of action exists" is served by its application to these circumstances. EPIQ SYSTEMS: Settled Class Action Related to Merger Deal --------------------------------------------------------- Epiq Systems, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on September 20, 2016, that a settlement has been reached with the plaintiffs in a consolidated class action related to a merger agreement. This Form 8-K is being filed in connection with an agreement pertaining to certain litigation concerning, among other things, the Agreement and Plan of Merger, dated July 26, 2016, by and among Epiq Systems, Inc., a Missouri corporation (the "Company"), Document Technologies, LLC, a Georgia limited liability company ("Parent"), and DTI Merger Sub, Inc., a Missouri corporation and wholly owned subsidiary of Parent ("Merger Sub") relating to the proposed acquisition of the Company (through Parent) by OMERS Private Equity, the private equity arm of the OMERS pension plan, and funds managed by Harvest Partners, L.P., a leading middle- market private equity fund. Pursuant to the merger agreement, Merger Sub will be merged with and into the Company with the Company being the surviving corporation as a wholly-owned subsidiary of Parent. As previously disclosed in the definitive proxy statement filed with the Securities and Exchange Commission (the "SEC") by the Company on August 24, 2016 (the "Proxy Statement"), putative class action lawsuits challenging the proposed merger have been filed on behalf of Company shareholders in the Circuit Court of Jackson County, Missouri. The consolidated action is captioned Daniel Soffer et al. v. Tom W. Olofson et al., Case No. 1616-CV-18720. The plaintiffs in the consolidated action allege, among other claims, that the Company failed to disclose to shareholders all material information related to the merger. In connection with a settlement with the plaintiffs under the consolidated action, the Company agreed to make the supplemental disclosures contained herein (the "settlement"). The settlement will not affect the merger consideration to be paid to shareholders of the Company in connection with the proposed merger or the timing of the special meeting of shareholders of the Company scheduled for Tuesday, September 27, 2016, beginning at 10:00 a.m., local time, at the Westin Crown Center Hotel, 1 East Pershing Road, Kansas City, Missouri 64108 to vote upon a proposal to approve the merger agreement. EXECUTIVE CLEANING: Faces "Acosta" Suit in E.D. of New York ----------------------------------------------------------- A lawsuit has been filed against Executive Cleaning Services of Long Island LTD. The case is captioned Andres Acosta and Cristian Castaneda, On behalf of himself and others similarly situated, the Plaintiff, v. Executive Cleaning Services of Long Island LTD, St. John's University, and Angel Cardenas, In his individual and professional capacity, the Defendants, Case No. 1:16-cv-05249 (E.D.N.Y., Sept 21, 2016). Executive Cleaning was founded in 1976 by Ayxsa Moss and offers professional, thorough cleaning services. The Plaintiffs appears pro se. EZ DOCTORS: Faces "Ramos" Suit in S.D. of California ---------------------------------------------------- A lawsuit has been filed against EZ Doctors. The case is styled Ron Ramos, individually and on behalf of all others similarly situated, the Plaintiff, v. EZ Doctors, New Benefits, Ltd., and Does 1-10 inclusive and each of them, the Defendants, Case No. 3:16-cv-02378-L-NLS (S.D. Cal., Sept. 21, 2016). The assigned Judge is Hon. M. James Lorenz. EZ Doctor is a service based in Fort Lauderdale that provides patient scheduling and video chats with physicians. The Plaintiff is represented by: Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206 4741 Facsimile: (866) 633 0228 E-mail: tfriedman@AttorneysForConsumers.com EZ RX BONITA: Faces Class Suit in Middle District of Florida ------------------------------------------------------------ A lawsuit has been filed against EZ RX Bonita Springs LLC. The case is captioned Medical & Chiropractic Clinic, Inc., a Florida Corporation, individually and as the representative of a class similarly-situated persons, the Plaintiff, v. EZ RX Bonita Springs LLC, EZ RX Boynton Beach LLC, EZ RX Hallandale, LLC, and John Does 1-5, the Defendants, Case No. 8:16-cv-02709-VMC-AEP (M.D. Fla., Sept. 21, 2016). The assigned Judge is Hon. Virginia M. Hernandez Covington. Ez Rx Bonita Springs is a doctors of medicine offices and clinics. The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON & WANCA 3701 Algonquin Rd., Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 Facsimile: (847) 368 1501 E-mail: rkelly@andersonwanca.com FACEBOOK INC: Obtains Favorable Ruling in Privacy Class Action -------------------------------------------------------------- Zacks Equity Research reports that per Bloomberg news, Facebook Inc. has crushed a bid for a class action lawsuit that accused the social media company of "automatically and surreptitiously" giving advertisers access to personal information of its users. Users claimed that Facebook gave away details like usage of website to advertisers when they clicked on the ads, undermining Facebook's own "explicit privacy promises." The judge cited that plaintiffs "didn't have enough in common to pursue a class action." The lawsuit was first dismissed in 2011 by San Jose Court judge Ronald M. Whyte, only to be overturned by an Appeals Court later on. The report further adds that in June this year, Judge Whyte had dismissed Facebook's petition to reject the case as he ruled that the last plaintiff might be able to prove that "she didn't receive the confidentiality Facebook promised." However, back then, Whyte had also highlighted that the lawsuit had too many individual questions to continue as a class action lawsuit. Facebook has been under constant scrutiny owing to the huge amount of personal data it hosts. This huge database is its primary asset for attracting advertisers. Advertising is the mainstay of Facebook's revenues and comprises nearly 95% of the company's revenues. As a result, the company has been criticized for allegedly selling this personal data to advertisers in order to boost its top line. While Facebook is accused of leaking data to advertisers on the one hand, it is also accused by regulatory bodies in various countries for not divulging information on sensitive matters. Facebook continues to be at loggerheads with Brazilian law enforcement agencies for not disclosing information pertaining to those accused in drug trafficking rackets. FARMER BROS: Court Set Oct. 18 Case Management Conference --------------------------------------------------------- Farmer Bros. Co. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 13, 2016, for the fiscal year ended June 30, 2016, that a California Court has set a case management conference for October 18, 2016, in the case captioned, Steve Hernandez vs. Farmer Bros. Co., Superior Court of State of California, County of Los Angeles. On July 24, 2015, former Company employee Hernandez filed a putative class action complaint for damages alleging a single cause of action for unfair competition under the California Business & Professions Code. The claim purports to seek disgorgement of profits for alleged violations of various provisions of the California Labor Code relating to: failing to pay overtime, failing to provide meal breaks, failing to pay minimum wage, failing to pay wages timely during employment and upon termination, failing to provide accurate and complete wage statements, and failing to reimburse business-related expenses. Hernandez's complaint seeks restitution in an unspecified amount and injunctive relief, in addition to attorneys' fees and expenses. Hernandez alleges that the putative class is all "current and former hourly-paid or non-exempt individuals" for the four (4) years preceding the filing of the complaint through final judgment, and Hernandez also purports to reserve the right to establish sub-classes as appropriate. On November 12, 2015, a separate putative class representative, Monica Zuno, filed claim under the same class action; the Court has related this case to the Hernandez case. On November 17, 2015, the unified case was assigned to a judge, and this judge ordered the stay on discovery to remain intact until after a decision on the Company's demurrer action. The plaintiff filed an Opposition to the Demurrer and, in response, on January 5, 2016, the Company filed a reply to this Opposition to the Demurrer. On February 2, 2016, the Court held a hearing on the demurrer and found in the Company's favor, sustaining the demurrer in its entirety without leave to amend as to the plaintiff Hernandez, and so dismissing Hernandez's claims and the related putative class. Claims on behalf of the plaintiff Zuno remain at this time, pending the filing of an amended complaint on behalf of this remaining plaintiff and reduced putative class. The Company provided responses to discovery following a lift by the Court of the stay on discovery. The Court has set a case management conference for October 18, 2016 to give Plaintiff's counsel time to review the discovery documents the Company produced and determine whether Plaintiff intends to proceed with the case as a putative class action or on an individual basis only. "At this time, we are not able to predict the probability of the outcome or estimate of loss, if any, related to this matter. The Company is a party to various other pending legal and administrative proceedings. It is management's opinion that the outcome of such proceedings will not have a material impact on the Company's financial position, results of operations, or cash flows," the Company said. FENTON & MCGARVEY: Tetik Amends Bid for Certification of Class -------------------------------------------------------------- The Plaintiff in the lawsuit entitled Lisa Tetik, individually and on behalf of all others similarly situated v. Fenton & McGarvey Law Firm, P.S.C., a Kentucky corporation, and Jefferson Capital Systems, LLC, a Georgia limited liability company, Case No. 1:16- cv-04802 (N.D. Ill.), files a second amended motion for class certification. Since she received an identical letter seeking to collect on an account originally owed to Victoria's Secret, Ms. Tetik tells the Court she now seeks to represent a class of all persons, who received an identical collection letter seeking to collect on a debt originally owed to either Dress Barn or Victoria's Secret, for a total putative class of 121 (18 for Dress Barn/103 for Victoria's Secret). The proposed change in the class definition will not cause any undue delay in this matter, since a briefing schedule on the Amended Motion for Class Certification has not been set, Ms. Tetik asserts. A copy of the Amended Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=NwdrxJyh The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Angie K. Robertson, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com angiekrobertson@aol.com FIDELITY NATIONAL: 3rd Cir. OKs Bipolar Arbitration in "Chassen" ---------------------------------------------------------------- Circuit Judge D. Brooks Smith of the Court of Appeals, Third Circuit, remanded a class action lawsuit by New Jersey real estate purchasers and refinancers, with instructions that the District Court compel bipolar arbitration of all Plaintiffs' arbitrable claims in accordance with its May 14, 2015, order and the opinion. The appellate case is captioned, ARTHUR CHASSEN; DEBORAH MEREDITH; JOEL OSTER; DENNIS SCRIMER; GLEN J. DALAKIAN; JACK HOFFMAN; DEBORAH HOFFMAN; KATHLEEN COOPER; RICHARD MURPHY, individually and on behalf of others similarly situated; AMI FELLER, Appellants, v. FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation; FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corporation; CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation; THE FIRST AMERICAN CORPORATION, a California corporation; FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation; LANDAMERICA FINANCIAL GROUP, INC., a Virginia corporation; TRANSNATION TITLE INSURANCE COMPANY, a Nebraska corporation; LAWYERS TITLE INSURANCE CORPORATION, a Nebraska corporation; STEWART INFORMATION SERVICES CORPORATION, a Delaware corporation; STEWART TITLE GUARANTY COMPANY, a Texas corporation; OLD REPUBLIC INTERNATIONAL CORPORATION, a Delaware corporation; OLD REPUBLIC TITLE INSURANCE GROUP, INC., a Delaware corporation; OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota corporation; WEICHERT TITLE AGENCY, Civil No. 15-3789 (3rd Cir.) Plaintiffs represent a putative class of New Jersey real estate purchasers and refinancers who were overcharged between $70 and $350 in fees stemming from the recording of their deeds and mortgage instruments. Plaintiffs allege that the settlement agents -- title agents and attorneys who were, in turn, agents of the Defendants -- intentionally charged Plaintiffs more than the county clerk charged for recording these documents and pocketed the difference. Plaintiffs further allege that the class claims add up to over $50 million, exclusive of treble damages and interest. On January 22, 2009, Plaintiffs filed a complaint in the U.S. District Court for the District of New Jersey alleging both breach of contract and violation of New Jersey law. In response, Defendants sought to dismiss a number of these claims and raised several affirmative defenses. They did not, however, seek to compel arbitration based on the arbitration clauses present in their contracts with Plaintiffs. Because arbitration was not sought, the case was litigated for two and a half years with the focus primarily on class certification. In that time, both sides conducted broad discovery and contested several substantive motions on their merits. Plaintiffs have also extensively documented their efforts in this case and served over 130 non- party subpoenas and spent over $50,000 on experts before Defendants sought bipolar arbitration. Defendants filed a motion in the District Court to compel bipolar arbitration on August 1, 2011. The District Court concluded that any attempt to compel bipolar arbitration prior to AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) would have been futile. In Concepcion, the Supreme Court held that the Federal Arbitration Act (FAA) preempted state laws that had previously prohibited a party from compelling bipolar arbitration in certain situations even when it was specifically agreed to by contract. Accordingly, the District Court granted the motion, stayed the case, and ordered bipolar arbitration. The decision, however, led to a barrage of motions for reconsideration that, as the District Court observed, "has come to resemble a ping pong match between the parties." The District Court conducted an evidentiary hearing and found that all but two Plaintiffs had agreed to bipolar arbitration and it again compelled bipolar arbitration of the remaining claims. Three issues relating to the ruling were certified for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b): (a) Whether the District Court's decision to allow Defendants to assert the affirmative defense of arbitration due to a change in law even though a substantial period of time elapsed between Defendants' answer and filing of the motion to assert the defense was in error; (b) Whether Plaintiffs' claims against Defendants alleging a violation of the New Jersey Consumer Fraud Act, N.J.S.A. Sections 56:8-1 et seq., are barred; and (c) any other issues arising out of the District Court's decision concerning the arbitration of the claims. In his Opinion dated September 8, 2016 available at https://is.gd/mMNzl2 from Leagle.com, Judge Smith concluded that the District Court did not err in compelling bipolar arbitration and the futility exception applies so that the New Jersey Consumer Fraud Act (NJCFA) claims raised are subject to arbitration. He cited in the 1992 ruling of the 3rd Circuit in Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912 which recognized prejudice as the relevant factor in determining whether or not the right to arbitration has been waived. Here, the Plaintiffs were prejudiced such that the Defendants waived their right to arbitrate. FORD MOTOR: Class Certification in "Agrawal" Reversed ----------------------------------------------------- District Judge Kathleen Ann Keough of the Ohio Court of Appeals reversed a trial court's judgment granting the motion of defendant/counter-plaintiff, Sudesh Agrawal, for class certification of a nationwide class and an Ohio subclass under Civ.R. 23(B)(2) and (3) and remanded action for further proceedings in the case captioned, FORD MOTOR CREDIT COMPANY, Plaintiff-Appellant/Counter-Defendant, v. SUDESH AGRAWAL, Defendant-Appellee/Counter-Plaintiff, Case No. 103667 (Ohio App.). In her Journal Entry and Opinion dated September 22, 2016 available at https://is.gd/6FOmfL from Leagle.com, Judge Keough found that the trial court erred in finding that Agrawal had satisfied the requirements of Civ.R. 23(B)(2) because some class members might benefit from declaratory relief does not fulfill Civ.R. 23(B)(2)'s requirement, as unambiguously stated in Cullen, that Agrawal must demonstrate that all class members will benefit from such relief. The controversy arises from defendant/counter-plaintiff, Sudesh Agrawal's lease of a Windstar minivan from a Ford dealer under Ford Credit's Red Carpet Lease (RCL) program in 2000. Lease provisions under the RCL program specify that lessees may be charged for excessive wear based on our standards for normal use and that the lessee is responsible for repairs of All Damages which are not a result of normal wear and use. In May 2003, Agrawal returned his vehicle to the Ford dealership in May 2003, after making all monthly payments on his lease. Upon inspecting his vehicle, the Ford dealer estimated EWU charges of $2,658. Following the First Inspection, and unbeknownst to Agrawal, a Second Inspection found EWU charges in the amount of $194. However, Ford Credit, utilizing the initial estimate, billed Agrawal $2,658.Agrawal disputed the charges and, on March 11, 2004, Ford Credit filed the action in the Shaker Heights Municipal Court, seeking $2,658 in unpaid EWU charges. Agrawal filed a counterclaim against Ford Credit on June 7, 2004. The case was transferred to the Cuyahoga County Court of Common Please based on Agrawal's request for damages in excess of the municipal court's jurisdiction. On February 16, 2006, Agrawal amended his original counterclaim, asserting eight claims against Ford Credit based on Ford Credit's assessment of EWU charges: (1) a class claim for unconscionable leasing practices; (2) a class claim for violation of public policy; (3) a class claim for breach of contract; (4) a class claim for violation of the federal Consumer Leasing Act (CLA), 15 U.S.C. Section 1667a; (5) a class claim for fraud; (6) a class claim for unfair and deceptive trade practices; (7) a claim for unlawful tax, which later was dismissed voluntarily; and (8) an individual claim for violation of the Ohio Consumer Sales Practices Act, R.C. 1345.01. Agrawal argues that Ford Credit misrepresents the applicable standard in the lease and correspondingly fails to conduct an inspection in accordance with the standard stated in the lease. In 2011, the trial court granted class certification of Agrawal's claims, certifying a nationwide class and an Ohio subclass under Civ.R. 23(B)(2) and (3). In Agrawal I, this court affirmed the trial court's judgment granting class certification of a nationwide class and Ohio subclass but reversed class certification of Agrawal's claim for actual damages under the CLA. On appeal, Ford Credit argues that the trial court erred in granting class certification because Agrawal's claims and Ford Credit's defenses require individualized inquiries that preclude classwide adjudication. After the Ohio Supreme Court reversed the judgment of the trial court granting class certification and remanded the action for further proceedings in light of Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614. Upon remand, Ford Credit expanded the record by producing a large sample of VCRs that were prepared by dealers when lessees returned their vehicles. Ford Credit also produced an expert report describing the variations in the conditions of individual. Agrawal did not produce any additional discovery material or expand the class record. He filed a renewed motion to certify the same proposed classes that had been previously certified by the trial court. Upon re-examining the issue of class certification in light of Cullen, the trial court again granted Agrawal's motion for class certification. Ford Motor Credit Company is represented by Brett K. Bacon, Esq. -- bbacon@frantzward.com -- Gregory R. Farkas, Esq. -- gfarkas@frantzward.com -- and Colleen C. Murnane, Esq. -- cmurnane@frantzward.com -- FRANTZ WARD, L.L.P. -- Brian D. Boyle, Esq. -- bboyle@omm.com -- O'MELVENY & MYERS, L.L.P. -- Warren E. Platt, Esq. -- wplatt@swlaw.com -- SNELL & WILMER Sudesh Agrawal is represented by Patrick J. Perotti, Esq. -- pperotti@dworkenlaw.com -- DWORKEN & BERNSTEIN CO., L.P.A. -- Anand N. Misra, Esq. -- misraan@misralaw.com --- THE MISRA LAW FIRM, L.L.C. FREEPORT-MCMORAN OIL: Class Certification Sought in "Garcia" Suit ----------------------------------------------------------------- David A. Garcia asks the Court to certify that the action styled DAVID A. GARCIA, an individual v. FREEPORT-MCMORAN OIL AND GAS, LLC, a Delaware limited liability company; and DOES 1 through 100, inclusive, Case No. 2:16-cv-04320-R-AJW (C.D. Cal.), is maintainable as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Mr. Garcia seeks class certification of this putative class: All hourly and otherwise non-exempt employees of Defendants, who, at any time within four years from the date of filing of this lawsuit, worked on oil platforms off of the California coast for periods of 24 hours or more. The Plaintiff also asks the Court to certify him as class representative and his counsel of record as counsel for the class. The Court will commence a hearing on October 17, 2016, at 10:00 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=rXoI0dxu The Plaintiff is represented by: Anthony R. Strauss, Esq. Aris E. Karakalos, Esq. STRAUSS LAW GROUP, APC 121 N. Fir St., Suite F Ventura, CA 93001 Telephone: (805) 641-9992 Facsimile: (805) 641-9993 E-mail: ars@strausslawgroup.com aek@strausslawgroup.com - and - Paul R. Huff, Esq. JONES & LESTER, LLP 300 E. Esplanade Drive, # 1200 Oxnard, CA 93036 Telephone: (805) 288-6260 Facsimile: (805) 604-2656 E-mail: phuff@nielsonhuff.com GANNETT: Loses Bid to Dismiss Privacy Class Action -------------------------------------------------- Wendy Davis, writing for MediaPost, reports that Gannett has lost another round in a battle over whether it violated a video privacy law by allegedly sending Adobe information about people who downloaded USA Today's app. A federal judge in Boston rejected Gannett's argument that the potential class-action should be dismissed because Massachusetts resident Alexander Yershov wasn't injured by any alleged violation of the privacy law. U.S. District Court Judge F. Dennis Saylor IV ruled that even though Mr. Yershov's alleged harm was "intangible," he could still proceed in court. "The intangible harm allegedly suffered by Yershov . . . is a concrete injury," Saylor wrote in a 19-page ruling. The decision marks the latest setback for Gannett in a high- profile battle over whether USA Today's app runs afoul of the Video Privacy Protection Act -- a 26-year-old law that prohibits video providers from disclosing personally identifiable data about consumers' video-watching history without their consent. Mr. Yershov alleged in a 2014 lawsuit that Gannett violated that law by sharing information about Android users -- including device identifiers, geolocation data and video viewing history -- with Adobe. Gannett previously argued the case should be dismissed at an early stage for several reasons. The company contended that Android device identifiers -- a string of numbers unique to each device -- are not personally identifiable information. The company also says people who download a free app aren't "subscribers." Judge Saylor initially agreed with Gannett and dismissed the lawsuit. But Mr. Yershov appealed to the 1st Circuit Court of Appeals, which revived the case and sent it back to the trial court. The appellate judges wrote in a decision issued in May that device identifiers combined with geolocation data could be personally identifiable. Gannett unsuccessfully asked the appellate court to reconsider that order. The news publisher's efforts were supported by a host of outside companies and organizations, including the Interactive Advertising Bureau, The New York Times and Huffington Post. The groups argued in a friend-of-the-court brief that the appellate court's decision "risks exposing companies to broad class action liability for routine digital transactions that are essential to online content distribution." Earlier this summer, Gannett asked Saylor to throw out the case on the grounds that Mr. Yershov wasn't injured. The company argued that the Supreme Court's recent decision in a matter involving online data broker Spokeo required dismissal of Yershov's lawsuit. The Supreme Court ruled that Spokeo would only have to face a lawsuit for allegedly displaying incorrect information about consumers if the they can first show the errors caused a "concrete" injury. The Spokeo matter was centered on the Fair Credit Reporting Act, as opposed to the video privacy law. But Gannett argued that the Supreme Court's rationale also applies to privacy cases. "Yershov does not identify any concrete injury that he suffered from Gannett's alleged disclosures," Gannett wrote in legal papers filed in late June. "And any injury he can conjure up would require a lengthy chain of assumptions and speculation about what a third-party might do." Mr. Yershov successfully countered that Gannett "concretely harmed" him by allegedly disclosing his video-viewing data. Gannett and Mr. Yershof are expected back in court later this month for further proceedings. GOLDEN ENTERPRISES: "Goss" Sues BOD Over Sale to Utz Quality ------------------------------------------------------------ William M. Goss, on behalf of himself and all others similarly situated, Plaintiff, v. Mark W. McCutcheon, J. Wallace Nall, John P. McKleroy, Randy Paul Bates, David A. Jones, Joann F. Bashinsky, F. Wayne Pate, William Barry Morton, John S. Stein III, John S. P. Samford and Edward R. Pascoe, Defendants, Case No. 59537520, (Del. Ch., September 9, 2016), seeks preliminary and permanent enjoinment from consummating the acquisition of Golden Enterprises by Utz Quality Foods, Inc. The suit further seeks rescissory damages, damages sustained, costs and disbursements of this action, including reasonable attorney, accountant and expert fees and such other and further relief under the Securities and Exchange Act. The Golden Enterprises Board decided to sell the company to Utz Quality Foods for $12.00 per share in cash for a total of approximately $135.5 million. Such transaction was allegedly not fair dealing and does not provide minority stockholders with an acceptable price for the Golden common shares. Defendants are members of its board of directors. Plaintiff is represented by: Brian D. Long, Esq. Seth D. Rigrodsky, Esq. Gina M. Serra, Esq Jeremy J. Riley, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Tel: (302) 295-531 - and - Shannon L. Hopkins, Esq. Stephanie A. Bartone, Esq. 733 Summer Street, Suite 304 Stamford, CT 06901 Tel: (203) 992-452 GREAT PLAINS ENERGY: Plaintiff Agree to Withdraw Injunction Bid --------------------------------------------------------------- Great Plains Energy Incorporated said in its Form 8-K Report filed with the Securities and Exchange Commission on September 19, 2016, that the parties in the Missouri class action have agreed that in exchange for the plaintiff agreeing to withdraw the Injunction Motion, Great Plains Energy would make additional supplemental disclosures to the Joint Proxy Statement/Prospectus. As previously disclosed in the definitive joint proxy statement/prospectus (the "Joint Proxy Statement/Prospectus") filed by each of Great Plains Energy Incorporated ("Great Plains Energy") and Westar Energy, Inc. ("Westar") on August 25, 2016, Great Plains Energy and the members of its board of directors (the "Great Plains Energy Board") have been named as defendants in a putative class action complaint filed in Jackson County, Missouri on July 19, 2016. That case is captioned Kolstad v. Bassham et al., Cause No. 1616-CV17525 (the "Missouri Action"). The complaint in the Missouri Action asserts that the members of the Great Plains Energy Board breached their fiduciary duties of candor in connection with the proposed merger between Great Plains Energy and Westar. The complaint alleges, among other things, that Great Plains Energy's Form S-4 filed on July 14, 2016 (File No. 333-212513) failed to disclose certain material information. The complaint seeks, among other things, injunctive relief enjoining the shareholder vote on the merger and an award for costs, including attorneys' fees and experts' fees. A motion for a preliminary injunction enjoining the shareholder vote was filed with the complaint on July 19, 2016 (the "Injunction Motion"). The defendants believe that the claims asserted against them are without merit. To reduce certain burdens, expenses and uncertainties caused by the Missouri Action and the Injunction Motion, however, Great Plains Energy mooted certain of the alleged omissions described in the complaint by disclosing certain additional information in the Joint Proxy Statement/Prospectus regarding operating efficiencies projected to result from the merger and information regarding compensation received by Great Plains Energy's financial advisor. On September 13, 2016, the parties in the Missouri Action agreed that in exchange for the plaintiff agreeing to withdraw the Injunction Motion, Great Plains Energy would make additional supplemental disclosures to the Joint Proxy Statement/Prospectus to eliminate certain burdens, expenses and uncertainties caused by the Injunction Motion. This agreement does not release or otherwise prejudice any potential claims of any member of the putative class and does not constitute any admission by any of the defendants as to the merits of any claims. HSBC BANK: NY Court Dismisses "Hill" Amended Complaint ------------------------------------------------------ District Judge Laura Taylor Swain of the United States District Court for the Southern District of New York granted Defendants' motion to dismiss the Amended Complaint in the case captioned, STEPHEN HILL et al., Plaintiffs, v. HSBC BANK PLC et al., Defendants, Case No. 14CV09745-LTS (S.D.N.Y.). Plaintiffs brought a class action against the various HSBC- affiliated Defendants (HSBC or HSBC Defendants), who served as custodians and administrators to certain "feeder" funds that invested in Bernie Madoff's Ponzi scheme, alleging four claims: aiding and abetting breach of fiduciary duty (Count Three); aiding and abetting conversion (Count Four); aiding and abetting fraud (Count Five), and unjust enrichment (Count Six). Plaintiffs are individuals who maintained discretionary accounts at Bernard L. Madoff Investment Securities LLC (BLMIS), which gave Madoff and BLMIS complete discretion over which investments they would purportedly make for Plaintiffs. Plaintiffs allege that they never had an expectation that Madoff and/or BLMIS would be purchasing specific securities or other assets for their accounts, or that Madoff would adhere to any specific investment strategy. HSBC moves to dismiss the Amended Complaint as against all Defendants other than HSBC Bank USA, N.A. (Foreign Defendants) for lack of personal jurisdiction. Defendants argue that Securities Litigation Uniform Standard Act of 1998 bars all of the claims in the Amended Complaint because the instant suit is a "covered class action" under the meaning of that statute which provides that "No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging -- (A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or(B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security." In her Memorandum Opinion and Order dated September 15, 2016 available at https://is.gd/BBsv5R from Leagle.com, Judge Swain found that Plaintiffs have failed to demonstrate that Foreign Defendants have transacted business sufficient under Section 302(a)(1) to confer personal jurisdiction over them in New York and that Plaintiffs have failed to demonstrate a basis for personal jurisdiction over the Foreign Defendants, and accordingly, the Court dismisses the Amended Complaint against the Foreign Defendants. As to SLUSA claims, the Court found that Plaintiffs had no control over which particular investment strategy Madoff undertook or specific securities he purchased does not obviate the fact that Plaintiffs were "seeking, directly or indirectly, to purchase covered securities," which the Second Circuit in Herald, 753 F.3d at 113; Kingate, 784 F.3d at 142 has squarely held satisfies the "in connection with" the purchase or sale of a security requirement under SLUSA. Stephen Hill, et al. are represented by Andrew J. Entwistle, Esq. -- aentwistle@entwistle-law.com -- Arthur V. Nealon, Esq. -- anealon@entwistle-law.com -- Robert N. Cappucci, Esq. -- rcappucci@entwistle-law.com -- and Vincent Roger Cappucci, Esq. -- vcappucci@entwistle-law.com -- ENTWISTLE & CAPPUCCI LLP -- Jason Allen Zweig, Esq. -- jason@hbsslaw.com -- Reed R. Kathrein, Esq. -- reed@hbsslaw.com -- and Steve W. Berman, Esq. -- steve@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP HSBC Bank PLC, et al. are represented by Thomas J. Moloney, Esq. -- tmoloney@cgsh.com -- and Joaquin Pablo Terceno, III, Esq. -- jterceno@cgsh.com -- CLEARY GOTTLIEB HUTCHINSON CITY, KS: Class Action Mulled Over Storm Water Fees -------------------------------------------------------------- Adam Stewart, writing for The Hutchinson News, reports that Greg Dovel, owner of Dovel's Plumbing, Heating & Air Conditioning, told the Hutchinson City Council on Sept. 6 that if the city doesn't renegotiate storm water utility fees, which increased this year, he and more than 350 other businesses would file a class- action lawsuit against the city, although he declined to specify what businesses those were. "Mark my word, it will happen," Mr. Dovel said. If it comes to that, Mr. Dovel said he would try to get the Kansas Bureau of Investigation involved to audit city departments. After the meeting, he told The News he planned to hire an attorney for the case. He added that he would seek an injunction to stop the city from collecting the fees and would spearhead a recall effort against all five sitting council members. He said lots of businesses were looking at leaving Hutchinson because of the higher fees. "You guys have turned property values in South Hutch way up," he said. Rates increase in January. The monthly rate for a residential property rose from $2 to $4.75. Businesses are charged on a scale based on the area of impervious surfaces -- parking lots or driveways of asphalt, concrete or compacted materials, as well as building roofs -- they have. That fee is $4.75 a month per 3,120 square feet -- the average impervious area of a residential property -- of impervious surface, but there is no upper limit to that amount. Previously, businesses paid $4 to $128 per month, depending on size. The city council approved the fee structure in January 2015 but delayed implementation until 2016 after the Kansas State Fair -- one of the entities hit hardest by the rate hike -- said its budget for the year already was set without money for increased storm water fees. Fair Manager Susan Sankey wrote in an email to The News that the fair board has not discussed legal action over the fees, but that Mr. Dovel has made several unscheduled visits to the fair offices. Mr. Dovel said he didn't have a problem with the fees being proportional based on size, but he protested the amount. He said if the city had maintained storm water infrastructure all along, the city wouldn't be in the position it's in. Council member Jade Piros de Carvalho said she thought previous councils hadn't raised the fee because they knew it would be unpopular -- as it has proven this year -- but it was something that had to be done. When the council approved the rates, it was told there were about $56 million in storm-water projects that were needed, but the previous fee only generated about $530,000 per year, meaning it would take more than a century to accomplish those projects. A task force that considered the city's direction for storm-water issues determined there were three options to fund projects: property tax, sales tax or a storm-water fee. The new fee generates around $2 million per year, Director of Public Works Brian Clennan said. Mr. Dovel asked for an answer from the council within five days, but council members said they wouldn't vote on anything before then, so he asked when he could expect an answer. Council member Steve Dechant said that if the council doesn't take action, that will be the answer. Mr. Dechant said he wasn't inclined to change a decision the city spent a lot of time and consideration making, especially if it meant turning a 30-year process (with the current fee) back into a 50- or 75-year process. ITT EDUCATIONAL: Faces Class Action Over Sudden Mass Layoff ----------------------------------------------------------- Peg Brickley, writing for The Wall Street Journal, reports that a laid-off teacher and an office staffer at ITT Educational Services filed a lawsuit on Sept. 6 seeking class-action status on behalf of the 8,000 employees caught up in the closure of the embattled for-profit school operator. The lawsuit seeks to hold the Indiana company to account for failing to give the 60-days notice required under federal law when large numbers of employees are terminated en masse. ITT on Sept. 6 suddenly announced it was closing some 130 locations, due to a decision by the federal government to cut off financial aid to new students. A spokeswoman for ITT couldn't immediately be reached for comment on Sept. 6 on the lawsuit, which invokes the federal Worker Adjustment Retraining and Notification Act, or WARN Act. ITT on Sept. 6 blamed government action for its sudden decision to close its doors immediately, and called the federal funding cutoff for new students "inappropriate and unconstitutional." The closure affected some 40,000 students, as well as thousands of employees, It is too soon to tell how many ITT employees can shelter under the WARN Act, said Jack Raisner, the New York lawyer representing the ITT workers in the suit. The law applies only to locations with 50 or more employees. Employees of smaller ITT campuses might be unprotected by the law, which entitles them to pay and benefits in lieu of notice, Mr. Raisner said. Filed in Delaware, the WARN Act lawsuit was brought in the names of a headquarters employee, business analyst Allen Federman, and an instructor at three California campuses, Steve Ryan. Some employees at ITT headquarters said they received emails on Sept. 2 telling them to take an extra-long Labor Day weekend and not to report for work on Sept. 6. "People were blowing money all weekend, not knowing they were fired," Mr. Raisner said. "That's ruffled some feathers." Mr. Raisner also represented employees of Corinthian College, another for-profit school chain that closed down after the federal government withdrew aid. ITT, like Corinthian, could have defenses to claims it violated federal laws with the mass, no-warning layoff, Mr. Raisner said. Unforeseen business circumstances can excuse a WARN Act violation in some instances, and ITT has already said aggressive government tactics left it no choice. JEFFERSON COUNTY PUBLIC: Court Certifies Class in "Cochran" Suit ---------------------------------------------------------------- The Hon. Greg N. Stivers granted the Plaintiffs' motion to certify class filed in the lawsuit entitled JEANNEAN COCHRAN, ET AL., ON BEHALF OF THEMSELVES AND THE CLASS THEY SEEK TO REPRESENT v. JEFFERSON COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION ET AL., Case No. 3:15-cv-00751-GNS-CHL (W.D. Ky.). Judge Stivers ruled that Counts II and III of the action will be maintained as a plaintiff class action by Plaintiff Class Representatives on behalf of the class, defined as: all union nonmember employees who, at any time since September 23, 2014 (and while this action is pending), are or were employed in the Job Family 1A classification and salary schedule for Jefferson County Public Schools and are, were or will be required to pay a compulsory fee to Defendants Jefferson County Association of Educational Support Personnel, American Federation of State, County and Municipal Employees Local 4011 ("Local 4011", American Federation of State, County and Municipal Employees, Indiana-Kentucky Organizing Committee 962 ("Council 962"), and/or American Federation of State, County and Municipal Employees, AFL-CIO pursuant to a compulsory unionism agreement between Local 4011, Council 962, Jefferson County Public Schools Board of Education, and Donna M. Hargens, Superintendent. The Court also appointed the Plaintiffs' counsel, Milton L. Chappell, Esq., Richard L. Masters, Esq., and Sarah E. Hartsfield, Esq., as class counsel. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=LDugwArH JL INVESTMENT: "Ricardo" Suit Moved from Cir. Ct. to S.D. Fla. -------------------------------------------------------------- The class action lawsuit titled Julio Ricardo, and other similarly situated individuals, the Plaintiff, v. JL Investment Group, LLC, doing business as Olivos a Florida profit limited liability company; Andres Amorosi, individually; and Maria Amorosi, individually, Case No. 16-020057 CA 01, was removed from the 11th Judicial Circuit of Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:16-cv-24041-CMA to the proceeding. The assigned Judge is Hon. Cecilia M. Altonaga. JL Investment provides real estate investment services. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: agp@rgpattorneys.com The Defendant is represented by: Gary Andrew Costales, Esq. GARY A. COSTALES 1200 Brickell Ave., Suite 1230 Miami, FL 33131 Telephone: (305) 375 9510 Facsimile: (305) 375 9511 E-mail: costalesgary@hotmail.com JOSHUA BLACKMAN: Files Appeal in "Gascho" Class Action ------------------------------------------------------ Joshua Blackman, Petitioner v. Amber Gascho, on Behalf of Herself and All Others Similarly Situated, et al., Case No. 16-364 (U.S., Sept. 21, 2016), is an appeal filed before the United States Supreme Court from a lower court decision in Case No. 14-3798 (6th Cir., June 20, 2016). Petitioner Joshua Blackman is represented by: Joshua Blackman, Esq. Houston College of Law 1303 San Jacinto Street Houston, TX 77002 Telephone: (202) 294 9003 E-mail: jblackman@hcl.edu JPMORGAN CHASE: Maine Court Revives "Sabina" Action --------------------------------------------------- Justice Ellen A. Gorman of the Maine Supreme Judicial Court partially vacated the judgment dismissing the case captioned, ALEC T. SABINA et al., v. JPMORGAN CHASE BANK, N.A., Case No. BCD-15- 430 (Me.), and remanded the matter for further proceedings. Alec T. and Emma L. Sabina filed their amended complaint against Chase in the Business and Consumer Docket on April 27, 2015. They alleged that in March 2011, the Sabinas received a loan from Chase that was secured by a mortgage on their real property in Portland. When they finished paying off the mortgage in October of 2013, Chase executed a written mortgage release and recorded that document in the Cumberland County Registry of Deeds. The registry then returned the recorded mortgage release to Chase. Chase mailed a copy of the document to the Sabinas, but it retained the actual document that it received from the registry. The Sabinas claimed that Chase violated 33 M.R.S. Sec. 551 by failing to mail them the "original" mortgage release document. Chase moved to dismiss the action pursuant to M.R. Civ. P. 12(b)(6). After a hearing in July of 2015, the court granted Chase's motion and dismissed the case with prejudice. The court concluded that 33 M.R.S. Section 551 is ambiguous as to whether a mortgagee complies with the statute when it mails a copy of the mortgage release, as opposed to the "original," to the mortgagor. Construing section 551 strictly as a "penal" statute, the court concluded that mailing a copy of the recorded document accomplishes the purpose of the statute, noting that the statute does not contain the word "original." On appeal, the Sabinas contend that the trial court abused its discretion when it dismissed the complaint for failure to state a claim upon which relief can be granted pursuant to M.R. Civ. P. 12(b)(6). In her Order dated September 13, 2016 available at https://is.gd/EUj7gc from Leagle.com, Judge Gorman concluded that the trial court erred when it dismissed the action because the allegations that Chase mailed a copy of the recorded mortgage release document that it received from the registry, instead of the actual document, were sufficient to state a claim that Chase violated section 551. The Sabinas also brought their claim as a class action on behalf of similarly situated borrowers. Their class action allegations are not at issue in this appeal. Alec T. Sabina and Emma L. Sabina are represented by Michael R. Bosse, Esq. -- mbosse@bernsteinshur.com -- Daniel J. Mitchell, Esq. -- dmitchell@bernsteinshur.com -- and Meredith C. Eilers, Esq. -- meilers@bernsteinshur.com -- BERNSTEIN SHUR JPMorgan Chase Bank, N.A. is represented by Robert M. Brochin, Esq. -- bobby.brochin@morganlewis.com -- and Brian M. Ercole, Esq. -- brian.ercole@morganlewis.com -- MORGAN, LEWIS & BOCKIUS JUNO THERAPEUTICS: Faces Securities Class Action in Washington -------------------------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against Juno Therapeutics Inc. and certain of its officers. The class action, filed in United States District Court, Western District of Washington, and docketed under 16-cv-01083, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired Juno securities between June 4, 2016 and July 7, 2016 inclusive (the "Class Period"). This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: Defendants made misleading partial disclosures about JCAR015's safety and made public misrepresentations or failed to disclose material facts of the death of patients in its Phase 2 clinical trial. KINDRED HEALTHCARE: Agreed to Pay Plaintiffs' Counsel Fee --------------------------------------------------------- Kindred Healthcare, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on September 16, 2016, that the parties in a class action lawsuit have discussed the payment of the fees and expenses, and in order to avoid the uncertainties and costs associated with a contested application for attorneys' fees and expenses, the Company has agreed to pay plaintiffs' counsel a fee in the amount of $195,000. Gentiva Health Services ("Gentiva"), Kindred Healthcare, Inc. ("Kindred" or the "Company") and the former directors of Gentiva (the "Gentiva Board") were named as defendants in a putative class action captioned In re Gentiva Health Services, Inc. Stockholder Litigation (the "Class Action"). Plaintiffs in the Class Action alleged, among other things, that the members of the Gentiva Board breached their fiduciary duties by agreeing to the merger with Kindred (the "Merger") for inadequate consideration and by agreeing to lock-up the Merger with various deal protection provisions, and misrepresented and failed to disclose in the definitive proxy statement filed by Gentiva on December 18, 2014 with the U.S. Securities and Exchange Commission (the "Proxy Statement") allegedly material information necessary for the stockholders of Gentiva to cast an informed vote on the Merger. Kindred, Gentiva and the Gentiva Board believed strongly that the Class Action claims were without merit. On January 15, 2015, solely to eliminate the burden, expense and risk of further litigation, and without admitting any liability or wrongdoing, Kindred, Gentiva and the Gentiva Board entered into a memorandum of understanding with the plaintiffs in the Class Action to reach an agreement-in-principle to settle the litigation. In consideration for the full settlement and dismissal with prejudice of the Class Action, Gentiva made certain supplemental disclosures to the Proxy Statement (the "Supplemental Disclosures"). While Kindred and Gentiva maintain that the Supplemental Disclosures were neither necessary nor material, they believed that filing the Supplemental Disclosures was not likely to cause harm to the Company and would moot the claims asserted by the plaintiffs, eliminating the possibility that plaintiffs' pursuit of the Class Action claims would delay the closing of the Merger. On June 8, 2016, the parties agreed to and filed a proposed order voluntarily dismissing the Class Action. The Court subsequently signed the order on July 6, 2016, dismissing the Class Action. The Court retained jurisdiction in order to resolve any application by plaintiffs' counsel for an award of attorneys' fees and reimbursement of expenses related to the Class Action. The parties have subsequently discussed the payment of such fees and expenses, and in order to avoid the uncertainties and costs associated with a contested application for attorneys' fees and expenses, the Company has agreed to pay plaintiffs' counsel a fee in the amount of $195,000 (the "Negotiated Attorney Fee"). Plaintiffs' counsel has determined that the payment of the Negotiated Attorney Fee negates any need to petition the Court for any additional attorneys' fees or expenses related to the Class Action. L'OREAL: Faces Class Action Over Amla Legend Hair Relaxer --------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that celebrity attorney Mark Geragos has filed a class action alleging that L'Oreal's Amla Legend hair relaxer has left women with hair loss and scalp burns. The suit, filed on Sept. 14 in federal court in Los Angeles, cites numerous consumer complaints on Amazon.com about the SoftSheen Carson Optimum Amla Legend Relaxer Kit, which is sold to African- American women and promoted by numerous celebrities including Beyonce, Kelly Rowland and the hair stylist to Michelle Obama. In the suit, two California women and one woman in Illinois allege that the product burned their scalps and caused their hair to fall out despite claims that it contained Amla oil, derived from the gooseberry fruit in India -- a less toxic ingredient than lye, which is in many relaxers. "Amla oil is a natural product that had gained substantial popularity within the African-American community as a natural ingredient that was effective," said Ben Meiselas, an attorney at Los Angeles-based Geragos & Geragos, which filed the case with Lori Feldman of New York's Levi & Korsinsky. "Amla is really the last ingredient, and only trace amounts of Amla are in the product itself. The product is really petroleum jelly mixed with a number of hazardous and toxic chemicals." "L'Oreal USA was recently informed of a legal case filed by two people related to Optimum Amla Legend hair relaxer by Softsheen Carson launched a few years ago in the U.S.," the company's chief communications officer said in a statement on Sept. 16. "Relaxers are technical products that can be used safely according to the instructions. We cannot comment on this legal action and L'Oreal USA is investigating the situation." L'Oreal launched the product in 2013 as a safer alternative to relaxers that traditionally contained harsh chemicals. Other celebrities who have helped promote the relaxer, sold at Wal-Mart, Sally Beauty Supply, CVS and other retailers, were "The Real Housewives of Atlanta" star Cynthia Bailey and actress Tracee Ellis Ross. LIFE PROTECT: Parties Agree to Terminate "Primack" Class Suit ------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on September 14, 2016, in the case styled Merrill Primack v. Life Protect 24/7, Inc., et al., Case No. 1:16-cv-05249 (N.D. Ill.), relating to a hearing held before the Honorable Jorge L. Alonso. The minute entry states that: -- a stipulation of dismissal has been filed; -- Plaintiff's individual claims are dismissed with prejudice, and Plaintiff's class claims are dismissed without prejudice; -- Plaintiff's motion for class certification is moot; -- the status hearing date of September 15, 2016 was stricken; and -- civil case is terminated. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=74WkCX8k LINCOLN HERITAGE: Faces "Mckenzie" Suit in E.D. of Pennsylvania --------------------------------------------------------------- A lawsuit has been filed against LINCOLN HERITAGE LIFE INSURANCE COMPANY. The case is captioned BRITTANY L. HOLMES MCKENZIE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED; and CYRUS SCOTT, AS ADMINISTRATOR FOR THE ESTATE OF JOYCE SEGARS-LEVASSEUR, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, v. LINCOLN HERITAGE LIFE INSURANCE COMPANY, and LONDEN INSURANCE GROUP, INC., the Defendants, Case No. 2:16-cv-05052-JHS (E.D. Penn., Sept. 21, 2016). The assigned Judge is Hon. Joel H. Slomsky. Lincoln Heritage provides life insurance for final expense, Medicare supplements and other senior products. The Plaintiffs ares represented by: Richard M. Ochroch, Esq. OCHROCH & ASSOC., P.C. 318 South 16th Street Philadelphia, PA 19102 Telephone: (215) 735 2707 Facsimile: (215) 790 0491 E-mail: rochroch@ochroch-law.com The Defendants are represented by: Glen D. Kimball, Esq. O'CONNOR KIMBALL LLP 1500 John F Kennedy Blvd Ste 1100 Two Penn Ctr Philadelphia, PA 19103 Telephone: (215) 564 0400 E-mail: gkimball@okllp.com LINCOLN PARK, MI: Residents File Class Action Over Flood Damage --------------------------------------------------------------- Dave Spencer, writing for FOX2, reports that major flooding in Lincoln Park has left residents furious about sewage backups in their basements and some are filing a class action suit against the city. Four weeks ago, 2 inches of rain in two hours caused a mountain of problems for people living in the Council Point Park subdivision of Lincoln Park. Now some of them are joining together and suing the city for their flood damage. "Replacing things and building things back together, I'm probably looking at $50,000," said Bob Holbird, a flood victim. Four weeks after the sewers backed up into homes and you can still see who got hit hard. "It's just continuously mounting up," Mr. Holbird said. The repairs left to do now are nothing compared to what Mr. Holbird was dealing with in the immediate aftermath of August 16. "I come flying down the stairs to see what was going on. The whole place was soaked," he said. He's one of the 50 or so named in a class action lawsuit against the city, claiming negligence led to this issue. "This is sewage. It was not water or a broken pipe. It was sewage," said Phillip Bazzo, the class-action lawsuit attorney. Mr. Holbird met Mr. Bazzo shortly during the initial clean up. "When (the attorney) came by I had a 30 yard dumpster almost full," Mr. Holbird said. According to the attorney, what happened to his basement could have been avoided if the city would have restricted the amount of water flowing into the system. "This is not expensive or rocket science. This doesn't require much planning. You just have to have a will to do it," Mr. Bazzo said. He points to the sewer grates as a quick fix. Some in the city have fewer holes than others. In his opinion, they should all be this way. "You want to keep the water in the streets and out of people's basements," Mr. Bazzo said. After hearing this, Mr. Holbird was on board with the lawsuit. "It makes you want turn around take everyone that's in office and throw them out," he said. The City of Lincoln Park acknowledges the problems from the flood on its webpage. Stating the sewer system was overwhelmed and attached a claim form residents with flood damage can fill out, it states those looking for money must prove the system had a defect and the city knew about it. That's something Mr. Holbird says he plans to with the help of his attorney. Mr. Bazzo says if there are others who want to join the lawsuit, they have until Sept. 29 to do so. "The court agrees," Judge Murphy ruled. "If this case survives the summary judgment phase of the case then class certification is entirely appropriate and should go forward promptly." LINN COUNTY: Class Action v. Forestry Dep't Steps Closer to Trial ----------------------------------------------------------------- Alex Paul, writing for Albany Democrat-Herald, reports that if it survives the summary judgment phase of litigation, Linn County's $1.4 billion breach of contract lawsuit against the Oregon Department of Forestry will likely proceed as a class action, Linn County Circuit Court Judge Daniel Murphy ruled late on Sept. 6. The Sept. 6 decision comes in the wake of an Aug. 17 hearing on the lawsuit, filed in March by Linn County on behalf of 145 counties, subdivisions of counties and other taxing districts that receive funds from timber harvesting on state forest trust lands. Linn County contends that the state has broken what amounts to a decades-old contract to manage the lands, which the state acquired from the counties, based on the "greatest permanent value." The lawsuit argues that the phrase "greatest permanent value" requires the state to manage the lands in question for the greatest sustainable timber harvest. As the state has expanded the definition of "greatest permanent value" to include other factors such as watershed preservation and recreation, the suit argues, that has resulted in decreasing timber harvests, which in turn has reduced the amount of money paid to county governments and other entities. The lawsuit seeks $1.4 billion in damages. Lawyers for the state filed motions to dismiss the case, to move it to the Oregon Court of Appeals and to deny the class action. But Judge Murphy ruled the Circuit Court does have jurisdiction to hear the case, because at its heart, the case is about breach of contract, an issue clearly within the court's domain. Judge Murphy also ruled that the requirements for a class action lawsuit apply, although he agreed with the state that it may be too early to certify the class "because the expenses, especially for discovery, arising as a result of the class certification will be substantial and would all prove meaningless if the court certified the class before dispositive motions are resolved." "The court agrees," Judge Murphy ruled. "If this case survives the summary judgment phase of the case then class certification is entirely appropriate and should go forward promptly." Judge Murphy also ruled that the state enjoys sovereign immunity and therefore prejudgment interest cannot be applied. The state argued that Linn County did not "plead a clear and unmistakable term of a statutory contract that required defendants to maximize revenue to the benefit of the plaintiff." But Judge Murphy said documentation exists that "clearly sets out the elements of contracting including transfer of title in land by counties in consideration for certain promises to perform by the state." He added, "A determination of the exact terms of the contract are another matter." At the heart of the matter will be defining "greatest permanent value," Judge Murphy said, but that was to be in "accordance with the best grazing and forest management practices" of the time. But what were those practices in 1941? That, Judge Murphy said, can only be determined by the gathering of evidence to be presented in court. Said Linn County Commissioner Roger Nyquist: "We are grateful to be one step closer to a satisfactory resolution of this matter for communities all over rural Oregon. "To us, this means we are going to trial." He said Judge Murphy's decision "defines our case well. It focuses on what did the term 'greatest permanent value' mean when the parties entered these contracts back in the 1930s and '40s. The decision defines our case well." Mr. Nyquist added, "We look forward to our day in court." LOUISIANA: Faces Class Action Over Solar Tax Credit Cap ------------------------------------------------------- Tara Mapes, writing for Louisiana Record, reports that solar panel customers are suing the state for allegedly violating their constitutional rights when it imposed a cap on refundable solar tax credits in July 2015 and denied claims for systems purchased before the cap went into effect. In 2015, the state legislature sliced tax credits in response to a purported $2 billion budget deficit. It imposed a cap of $10 million per year on the solar tax credits through 2017. The cap drops to $5 million per year for the 2017-2018 fiscal year. In July 2016, the state Department of Revenue acknowledged it had already reached the cap to pay claims on purchased systems through the end of Dec. 31, 2017, writing, "Consumers purchasing residential solar energy systems from this point forward should not expect to receive tax credits from the state." New Orleans Attorney Larry Centola filed the lawsuit on Sept. 9, requesting certification of a class action against the Louisiana Department of Revenue for refusing to pay more than 1,000 homeowners the credit for which they were qualified. Before the tax credit went into effect in July 2015, thousands of Louisiana residents purchased solar panels for their homes. The state promised them a tax credit equal to 50 percent of the purchase price that could be combined with the federal solar tax credit of 30 percent. The Louisiana legislature retroactively applied the cap to the solar tax credit and denied credits to homeowners, however. Mr. Centola is fighting to have the retroactive cap declared unconstitutional under property laws. Part of the new law reads, "Beginning in Fiscal Year 2015-2016, the maximum amount of tax credits for purchased systems which may be granted by the department on any return, regardless of tax year, shall be as follows: for tax credits claimed on returns filed on or after July 1, 2015, and before July 1, 2016, no more than ten million dollars of tax credits shall be granted." The court complaint alleges the language of the modified law harms consumers because it addresses the date consumers file their tax returns rather than the date the solar panels were purchased. Consumers who purchased systems for the first half of 2015 were doing so prior to the law going into effect, but they could not possibly file tax returns for their purchase until 2016. Consequently, the language of the law places the cap on consumers who purchased systems before the law existed, the suit claims. "The right to the tax credit attaches once a consumer puts the panels on their homes," Mr. Centola told The Louisiana Record. "The people who put their panels (up) had that right when putting the panels on the house. The state can't take that right away. In our view, it is clear it was unconstitutional. The amount these consumers could be owed is north of $10 million." Mr. Centola said he believes the motivation for the state to cap the tax credit was that companies were "possibly abusing the tax credits." He explained the tax credit offered 50 percent credits to a system up to $25,000. Some of the systems solar companies were installing weren't worth that much, but they were fraudulently valuing them at the maximum amount. "Our information is that (the solar companies') profit was very large," he said. "The legislature was frustrated by a few bad apples spoiling the bunch so the legislature put a tax cap on credits. Our message to them is that it's not fair to injure the consumers when the people you were going after were the solar companies." Mr. Centola explained a lot of Louisiana consumers signed up for one-year interest-free loans for their solar systems because the government didn't have a cap at the time they signed up. He said consumers now are faced with economic hardships they don't know how to cure. "Here we are a year later and they don't have the $12,500 from the state and their loans will begin accruing 19 percent interest because (the) interest-free time period is about to run out." In addition to the loss from the tax credits, consumers have alleged that solar companies are still misrepresenting that the tax credits are still guaranteed. Mr. Centola is considering filing a second lawsuit against these companies to prevent further harm to consumers. Mr. Centola said his firm is filing a motion to certify the class and the next step will be to request the district court to declare the cap unconstitutional. "We are hoping the lawsuit forces the state to pay the tax credit due to these people who purchased the solar system prior to effective date," Mr. Centola said. "Our lawsuit has gotten the attention of some state officials and we are looking forward to working with them to get a resolution that is beneficial. People are frustrated, people are angry; we are hoping our lawsuit is the vehicle for the state to right a wrong." LUMBER LIQUIDATORS: "Frazier" Suit Moved to Dist. S. Carolina -------------------------------------------------------------- The class action lawsuit titled Joyce Frazier, individually, and on behalf of herself and all others similarly situated, the Plaintiff, v. Lumber Liquidators Inc., a Delaware corporation, the Defendant, Case No. 2:16-cv-06693, was transferred from the the U.S. District Court for the Central District of California, to the U.S. District Court for the District of South Carolina (Charleston). The South Carolina District Court Clerk assigned Case No. 2:16-cv-03177-RBH to the proceeding. The assigned Judge is Hon. R Bryan Harwell. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiff is represented by: Alexander Robertson, IV, Esq. Mark J. Uyeno, Esq. ROBERTSON AND ASSOCIATES LLP 32121 Lindero Canyon Road Suite 200 Westlake Village, CA 91361 Telephone: (818) 851 3850 Facsimile: (818) 851 3851 - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT AND WOLFSON PC 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474 9111 Facsimile: (310) 474 8585 MAJOR LEAGUE: Judge Reconsiders Class Certification Motion ---------------------------------------------------------- Brian MacPherson, writing for Providence Journal, reports that less than a month after he denied a motion by minor-league baseball players to classify their lawsuit against Major League Baseball as a class action, the U.S. district court judge presiding over the case has given the plaintiffs a second chance. In an order issued Aug. 19, Judge Joseph C. Spero granted a motion by the plaintiffs to reconsider his order to deny class certification in the case, said Garrett Broshuis, the lead lawyer for the plaintiffs and a former minor-league pitcher. Nearly 2,000 current and former minor-league players had signed onto the lawsuit after it had been conditionally certified as a class action last October. The scope of the liability Major League Baseball faces in a class-action lawsuit is exponentially higher than the liability it faces if the named plaintiffs involved in the case now have their cases judged separately. The plaintiffs must file a 25-page brief to the judge by Sept. 12. Major League Baseball and its teams must file a response by Oct. 14. A hearing to decide the question is scheduled for Dec. 2. Senne v. the Officer of the Commissioner of Baseball had been scheduled to go to trial next February. That date has been postponed indefinitely while Judge Spero decides the question of class certification. In their lawsuit, the plaintiffs have argued Major League Baseball violates minimum-wage and overtime laws in spring training, in the five-month regular season and in the offseason. The defendants have argued that minor-league baseball players should be classified as seasonal or recreational employees, exempting them from minimum-wage and overtime laws. In denying the motion for class certification in July, Judge Spero accepted the contention of Major League Baseball that players' unpaid offseason activities were not similar enough to be considered collectively under federal and state wage laws. That it at times was difficult to ascertain even which states in which the players had performed their offseason work made the application of state wage laws impossible, he wrote in his decision. In his order granting the motion for reconsideration, the judge ordered the plaintiffs to propose narrower classes to be certified collectively -- narrower than the initial class, which had been all players who had participated in minor-league baseball within the statute of limitations. A bill was introduced in Congress in June that would exempt minor- league baseball players to the Fair Labor Standards Act under which the players have filed suit, undermining the lawsuit. That bill has been referred to the House Committee on Education and the Workforce. MARCOAH GROUP: Byer Clinic's Bid to Certify to Be Heard on Oct. 4 ----------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on September 14, 2016, in the case titled Byer Clinic of Chiropractic, Ltd. v. Marcoah Group USA LLC, et al., Case No. 1:16-cv-05318 (N.D. Ill.), relating to a hearing held before the Honorable Rebecca R. Pallmeyer. The minute entry states that a status hearing was held on September 14, 2016. The Plaintiff's First Amended "Damasco" motion for class certification is entered and continued. A status hearing is set for October 4, 2016, at 9:00 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=nHvpOBbp MCKEE FOODS: "Martin" Seeks to Certify Class of Cal. Distributors ----------------------------------------------------------------- The Plaintiffs ask the Court to certify that the consolidated action captioned BRIAN MARTIN v. MCKEE FOODS CORPORATION, and DOES 1 through 25; and JAMES JUAN v. MCKEE FOODS CORPORATION, and DOES 1 through 50, Inclusive, Case No. 8:15-cv-00732-AG-JCG (C.D. Cal.), is maintainable as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. They ask the Court to certify this class: All distributors that performed work for McKee Foods Corporation in California from April 1, 2011 to the date of certification. The Plaintiffs also ask the Court to appoint them as class representatives and to appoint Gould & Associates and the Law Office of Richard A. Jones as lead class counsel. The Court will commence a hearing on October 31, 2016, at 10:00 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=zCr4cjpx Plaintiff Brian Martin is represented by: Michael A. Gould, Esq. Aarin Zeif, Esq. GOULD & ASSOCIATES, A PROFESSIONAL LAW CORPORATION 17822 East 17th Street, Suite 106 Tustin, CA 92780 Telephone: (714) 669-2850 Facsimile: (714) 544-0800 E-mail: Michael@wageandhourlaw.com Aarin@wageandhourlaw.com Plaintiff James Juan is represented by: Daniel G. Emilio, Esq. Laurie M. Cortez, Esq. EMILIO LAW GROUP, APC 12832 Valley View Street, Suite 106 Garden Grove, CA 92845 Telephone: (714) 379-6239 Facsimile: (714) 379-5444 E-mail: danielemilio@emiliolaw.com LaurieCortez@emiliolaw.com MDL 2646: Settlement Order in Justice Pricing Suits Under Appeal ---------------------------------------------------------------- Ascena Retail Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 19, 2016, for the fiscal year ended July 30, 2016, that the Court's decision granting the parties' joint motion for final approval of settlement has been appealed to the United States Court of Appeals for the Third Circuit. The Company is a defendant in a number of class action lawsuits that allege, among other claims, that Justice's promotional practices violated state comparative pricing laws in connection with advertisements promoting a 40% discount. Mehigan v. Ascena Retail Group, Inc. and Tween Brands, Inc. On February 12, 2015, Melinda Mehigan and Fonda Kubiak, both consumers, filed a purported class action proceeding (the "Mehigan case") against Ascena Retail Group, Inc. and Tween Brands, Inc. (doing business as "Justice") in the United States District Court for the Eastern District of Pennsylvania, on behalf of themselves and all similarly situated consumers who, in the case of Ms. Mehigan in the State of New Jersey, and in the case of Ms. Kubiak in the State of New York, made purchases at Justice from 2009 to 2015 (the "Alleged Class Period"). The lawsuit alleges that Justice violated state comparative pricing laws in connection with advertisements promoting a 40% discount. The plaintiffs further allege false advertising, violation of state consumer protection statutes, breach of contract, breach of express warranty and unfair benefit to Justice. The plaintiffs seek to stop Justice's allegedly unlawful practice and obtain damages for Justice's customers in the named states. They also seek interest and legal fees. On February 17, 2015, the complaint in the Mehigan case was amended to add five more named individual plaintiffs and to add the same allegations against Justice in the States of California, Florida, Illinois and Texas. On April 8, 2015, the complaint in the Mehigan case was amended a second time seeking to make the case a nationwide purported class action lawsuit. As amended, the case covers Justice customers in 47 states. The excluded states are Hawaii, Alaska and Ohio. During the Alleged Class Period, Justice did not operate any stores in Hawaii or Alaska. A similar class action lawsuit making substantially the same allegations as the Mehigan case was settled in December 2014 in Ohio. Cowhey v. Tween Brands, Inc. On February 17, 2015, Carol Cowhey, a consumer, filed a purported class action proceeding (the "Cowhey case") against Ascena Retail Group, Inc. and Tween Brands, Inc. (doing business as "Justice") in the Court of Common Pleas in Philadelphia, Pennsylvania on behalf of herself and all other similarly situated consumers who in the State of Pennsylvania made purchases at Justice during the Alleged Class Period. The allegations in the Cowhey case are substantially the same as those in the Mehigan case. The relief sought in the Cowhey case focuses on remedies available under Pennsylvania law, which the plaintiff claims include treble damages. On March 19, 2015, Justice removed the Cowhey case to federal court in the United States District Court for the Eastern District of Pennsylvania. Consolidation of Mehigan and Cowhey Cases (Rougvie) On April 8, 2015, the United States District Court for the Eastern District of Pennsylvania consolidated the Cowhey case and the Mehigan case. They are now consolidated for all pre-trial purposes in the federal court in the Eastern District of Pennsylvania. On June 2, 2015, the court held a Rule 16 Conference and issued a Scheduling Order and Settlement Conference Order. The Scheduling Order sets a fact and expert discovery deadline of December 4, 2015, with trial scheduled for early 2016. In light of the settlement described below, the trial will not go forward. Traynor-Lufkin v. Tween Brands, Inc. On March 6, 2015, Katie Traynor-Lufkin and three other named plaintiffs, all consumers, filed a purported nationwide class action (the "Traynor-Lufkin case") against Tween Brands, Inc. (doing business as "Justice") in the Court of Common Pleas in Cuyahoga County, Ohio. The Traynor-Lufkin case purports to include a class of Justice customers in 47 states. As with the Mehigan case, the Traynor-Lufkin case excludes Hawaii, Alaska and Ohio. During the Alleged Class Period, Justice did not operate any stores in Hawaii or Alaska. In December 2014, Justice settled a similar class action lawsuit in the State of Ohio. The allegations and damages sought in the Traynor-Lufkin case are substantially the same as those in the Mehigan case. Removal of Traynor-Lufkin Case and Motion to Transfer On April 7, 2015, Justice removed the Traynor-Lufkin case to the United States District Court for the Northern District of Ohio. On April 13, 2015, Justice filed a motion under 28 U.S.C. Sec. 1408(a) to transfer the Traynor-Lufkin case to the United States District Court for the Eastern District of Pennsylvania. In seeking the transfer, Justice argued that there were already two consolidated actions pending in the Eastern District of Pennsylvania and that a forum in Ohio is not appropriate because no Ohio consumers are involved in the case. The Eastern District of Pennsylvania was advised that the Traynor-Lufkin case was related to Rougvie, and the case was reassigned on May 27, 2015. Consolidation of Traynor-Lufkin and Rougvie case On June 18, 2015, the United States District Court for the Eastern District of Pennsylvania consolidated the Cowhey case and the Mehigan case (collectively referred to as Rougvie) and the Traynor-Lufkin matters. The Scheduling and Settlement Conference Orders issued in the Rougvie matter are applicable to all parties in the Traynor-Lufkin and Rougvie cases, including the Company and all of the named plaintiffs in the consolidated actions. Metoyer v. Tween Brands, Inc. On May 29, 2015, Theresa Metoyer, a consumer, filed a purported class action against Tween Brands, Inc. in the United States District Court for the Central Division of California, Eastern Division, on behalf of herself and all other similarly situated consumers who made purchases from Justice stores located in California during the four years preceding the filing of the lawsuit. The allegations in the Metoyer case are substantially the same as those in the other Justice pricing lawsuits described above. The relief sought by plaintiff is substantially the same as that sought in the other lawsuits. On June 18, 2015, Tween Brands, Inc. filed its Answer to the Complaint. The Court issued an Order setting a scheduling conference for August 24, 2015. On August 21, 2015, the Court issued an Order canceling the August 24 conference, directing the parties to file a joint status report, and indicating that the Court would consider resetting a status conference after review of the joint status report. On November 14, 2015, the Court granted the Company's motion to stay this case in light of the broader settlement described below. Gallagher v. Tween Brands, Inc. On June 4, 2015, Robert Gallagher, a consumer, filed a lawsuit against Tween Brands, Inc. in the United States District Court for the Eastern District of Missouri, Eastern Division. This lawsuit includes both national and Missouri purported class actions. The plaintiff seeks monetary damages and reasonable costs and attorneys' fees. On August 27, 2015, the Company filed its Answer to the Complaint. On October 15, 2015, the Court granted the Company's motion to stay this case in light of the broader settlement described below. Kallay v. Tween Brands, Inc. On June 5, 2015, Andrea Kallay, a consumer, filed a purported class action against Tween Brands, Inc. in the United States District Court for the Southern District of Ohio, Eastern Division. This lawsuit includes both national and Wisconsin class actions. The plaintiff seeks monetary damages and reasonable costs and attorneys' fees. On August 28, 2015, the Company filed its Answer to the Complaint. On October 29, 2015, the Court granted the Company's motion to stay this case in light of the broader settlement described below. Joiner v. Tween Brands, Inc. On June 1, 2015, Rebecca Joiner, a consumer, filed a purported class action against Tween Brands, Inc. in the United States District Court for the District of Maryland. This lawsuit includes putative national and Maryland classes. The plaintiff seeks monetary damages and reasonable costs and attorney's fees. On August 28, 2015, the Company filed its Answer to the Complaint. On December 1, 2015, the Court granted the Company's motion to stay this case in light of the broader settlement described below. Loor v. Tween Brands, Inc. On June 11, 2015, Yanetsy Loor, a consumer, filed a purported class action against Tween Brands, Inc. in the United States District Court for the Middle District of Florida. This lawsuit includes putative national and Florida classes. The plaintiff seeks monetary damages and reasonable costs and attorney's fees. On August 21, 2015, the Company filed its Answer to the Complaint. On December 1, 2015, the Court granted the Company's motion to stay this case in light of the broader settlement described below. Legendre v. Tween Brands, Inc. On June 17, 2015, David Legendre, a consumer, filed a purported class action against Tween Brands, Inc. in the United States District Court for the District of New Jersey. This lawsuit includes both national and New Jersey class actions. The plaintiff seeks monetary damages and reasonable costs and attorney's fees. On August 28, 2015, the Company filed its Answer to the Complaint. On December 11, 2015, the Court granted the Company's motion to stay this case in light of the broader settlement described below. In re Tween Brands, Inc., Marketing & Sales Practices Litigation. MDL No. 2646 On June 1, 2015, Andrea Kallay, the plaintiff in Kallay v. Tween Brands, Inc., filed a Motion to Transfer to the United State District Court for the Southern District of Ohio and for creation of a Multidistrict Litigation ("MDL") proceeding styled In re: Tween Brands, Inc., Marketing and Sales Practices Litigation, MDL 2646. Responses to the Motion to Transfer were submitted on June 23, 2015. The majority of plaintiffs in the above listed cases filed response motions in support of transfer and consolidation to the Southern District of Ohio. The Rougvie plaintiffs filed a response motion opposing transfer to the Southern District of Ohio and arguing for transfer to the Eastern District of Pennsylvania. Justice filed a Response in Opposition, supporting transfer and consolidation but arguing that the proper venue for the MDL is the Eastern District of Pennsylvania. The JPML held a hearing on July 30, 2015 on the Motion to Transfer and subsequently denied the Motion to Transfer in an Order issued on August 7, 2015. Settlement Agreed to at July 2, 2015 Mediation and Final Approval In July 2015, an agreement in principle was reached with the plaintiffs in the Rougvie case to settle the lawsuit on a class basis with all Justice customers who made purchases between January 1, 2012 and February 28, 2015 for approximately $51 million, including payments to members of the class, payment of legal fees and expenses of settlement administration (the "Settlement Agreement"). As such, the Company established a reserve for approximately $51 million during Fiscal 2015. The proposed Settlement Agreement was filed with the United States District Court for the Eastern District of Pennsylvania for preliminary approval on September 24, 2015, and received preliminary approval by the court on October 27, 2015. The Company paid approximately $51 million representing the agreed settlement amount into an escrow account on November 16, 2015. Formal notice of settlement was sent to the class members on December 1, 2015. The final approval hearing was held on May 20, 2016. On July 29, 2016, the Court granted the parties' joint motion for final approval of settlement and dismissed the case with prejudice. In reaching this conclusion, the Court rejected virtually all of the objections to the settlement that had been raised, but did reduce the amount of attorneys' fees to be paid to plaintiffs' counsel, which will not affect the overall amount of the settlement. The Court's decision has been appealed to the United States Court of Appeals for the Third Circuit. Once there is a final non-appealable approval of the Settlement Agreement, it will resolve all claims in all of the outstanding class actions on behalf of customers who made purchases between January 1, 2012 and February 28, 2015. Recently, potential claims related to purchases made in 2010 and 2011 have been raised, and it is possible that individual class members who excluded themselves from the settlement may seek to pursue their own individual or class claims not subject to the broader settlement. The Company believes it has strong defenses to any such claims and is prepared to defend against them. The Company believes that the liability associated with any such cases would not be material. If the matters described herein do not occur and the pricing lawsuits are not finally resolved, the ultimate resolution of these matters may or may not result in an additional material loss, which cannot be reasonably estimated at this time. MIAMI, FL: Suit Over Red-Light Camera Fines Ongoing --------------------------------------------------- Dan Sweeney, writing for Sun Sentinel, reports that Floridians hoping for a refund of their red-light-camera fines -- and the cities and counties hoping to keep that money -- are finding the wheels of justice grind slow. A federal lawsuit was filed in May 2015 in district court in Miami demanding cities and counties pay back fines collected under a red-light-camera law ruled illegal by a state appeals court. Lawyers for the local governments went to the federal appeals court in an attempt to get the case dismissed. They told a panel of judges that sovereign immunity protected them, but on Sept. 2, the panel ruled it lacked jurisdiction to hear the case. "Practically speaking, that means if we did nothing else, the case would go back to the district court," said Ed Guedes, the attorney for more than 40 of the cities and counties named in the suit. But Mr. Guedes added he expects the local governments to ask the entire court, not just a panel of judges, to review their sovereign-immunity claim. The roots of the case go back to October 2014, when a state appeals court ruled that the city of Hollywood's red-light-camera program was illegal because it ceded too much police power to a private company, American Traffic Solutions, which reviewed camera footage for law breakers. Because the camera system was illegal, the plaintiffs argue the fines gathered from it were ill-gotten and should be returned. That would mean giving back more than $200 million to those who paid $158 a pop for violating city and county red-light-camera laws. The case is still before the district court in Miami and because that court is still hearing the case, the appeals court panel decided it had no jurisdiction. And while this case has gone on, the legal waters have been further muddied as another state appeals court ruled in July of this year that Aventura's red-light-camera system, which is similar to that ruled illegal in Hollywood, is perfectly legal. Those disparate state appeals court rulings will likely mean the law will be reviewed by the Florida Supreme Court. MONTEREY FINANCIAL: Jurisdictional Discovery Held in "Brinkley" --------------------------------------------------------------- District Judge William Q. Hayes of the United States District Court for the Southern District of California ruled that action stays at federal district court pending results of jurisdictional discovery in the case captioned, TIFFANY BRINKLEY on behalf of herself and other similarly situated, Plaintiff, v. MONTEREY FINANCIAL SERVICES, INC.; DOE MONTEREY FINANCIAL SERVICES, LLC DOES 1 through 100, inclusive, Defendant, Case No. 16CV1103-WQH- WVG (S.D. Cal.). On October 15, 2013, Plaintiff Tiffany Brinkley (Plaintiff) commenced an action against Monterey Financial Services, Inc., in the Superior Court of the State of California for the County of San Diego by filing a Complaint. In the Complaint, Plaintiff asserts that she "was, at all time relevant herein, a natural person and a resident of Tukwila, Washington." Plaintiff seeks, among other things, to certify a putative class that purports to include "all persons who, while physically located or residing in California and Washington who made or received one or more telephone calls with Defendant MONTEREY FINANCIAL SERVICES, INC. during the four year period preceding the filing of this lawsuit (the Class Period) and did not receive notice at the beginning of the telephone call that their telephone conversation may be recorded or monitored" (the Class)." The Complaint asserts causes of action against Defendant for violations of California Penal Code Sections 630, et seq., Washington Rev. Code Section 9.73, et seq., and California Business & Professions Code Section 17200, et seq., based on Defendant's alleged unlawful recording and/or monitoring of telephone calls. On December 10, 2013, Defendant filed a motion to compel arbitration. On April 7, 2014, the state trial court ordered the action to arbitration on an individual basis and dismissed the class claims. On May 29, 2014, Plaintiff filed a Notice of Appeal of the state trial court's order compelling the action to arbitration on an individual basis. On November 19, 2015, the state appellate court affirmed the trial court's order compelling the action to arbitration and reversed the trial court's order dismissing the class claims, leaving the determination to the arbitrator as to whether the matter should be pursued as a class or individually. On December 28, 2015, by joint stipulation, the parties waived their rights to arbitrate Plaintiff's Complaint and agreed to litigate as if there were no arbitration clause. On January 20, 2016, the action was remitted to the state trial court. On May 6, 2016, Defendants removed the action to federal district court pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d)(2), 1453(b). Defendants assert that the Court has jurisdiction under CAFA on the grounds that (1) the number of members of the proposed plaintiff class is not less than one hundred, in the aggregate; (2) the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs; and (3) any member of the class of plaintiffs is a citizen of a State different from any defendant. On May 19, 2016, Plaintiff filed a motion to remand. Plaintiff does not dispute that her citizenship is diverse from Defendants or that the number of putative class members is at least 100. Plaintiff contends that Defendants' notice of removal was untimely; that Defendants waived their right to remove the case, and that the amount in controversy is indeterminate. Plaintiff further contends that exceptions to CAFA apply. Defendants contend that the notice of removal was timely, that they have not waived their right to remove the case, and that they carried their burden to show the amount in controversy. Defendants also contend that exceptions to CAFA do not apply. In his Order dated September 15, 2016 available at https://is.gd/v70K6Z from Leagle.com, Judge Hayes concluded that Defendants' Notice of Removal is timely because they filed the removal less than 30 days after the 30-day removal period was triggered pursuant to 28 U.S.C. Section 1446(b)(3) and that a more satisfactory showing is necessary before it can rule on the amount in controversy and the CAFA exception issues. The court allowed the parties a period of 60 days to engage in limited jurisdictional discovery regarding the amount in controversy requirement and the CAFA exceptions. The parties are directed to file any supplemental responses within 90 days of the Order, and any replies within 14 days of any supplemental response. Tiffany Brinkley, Plaintiff, represented by Christina E. Wickman, Esq. -- Christina@wickmanlaw.com -- and -- Steven Allen Wickman, Esq. -- Steve@wickmanlaw.com -- WICKMAN AND WICKMAN -- Patrick N. Keegan, Esq. -- pkeegan@keeganbaker.com -- KEEGAN & BAKER, LLP Monterey Financial Services, Inc., et al. are represented by Matthew Orr, Esq. -- morr@calljensen.com -- and William Paul Cole, Esq. -- wcole@calljensen.com -- CALL & JENSEN APC NATIONAL MILK: December 16 Settlement Approval Hearing Set ---------------------------------------------------------- Andrea Tucker, writing for Legal Reader, reports that the National Milk Producers Federation class action lawsuit has reached a settlement agreement. The antitrust lawsuit was filed by Matthew Edwards et al. against defendants NMPF, also known as Cooperatives Working Together, Dairy Farmers of America, Land O' Lakes, Dairylea Cooperative, and Agri-Mark in the Northern District Court of California. The suit alleges that the defendants engaged in a nationwide conspiracy to limit milk production with the goal of inflating retail prices of milk and milk products. According to the lawsuit, the defendants actively engaged in recruiting dairy farmers to help fund the CWT herd retirement program. The scheme began in 2003 by requiring farmers to participate by donating a set amount of money per hundredweight of milk that each farm produced during July. At the end of July, CWT began accepting bids from farmers for participation in the program. Farmers that participated were paid for selling all of their dairy cows to slaughter. In this way, CWT was paying the farmers not to produce milk. The result was a loss of 609.2 million pounds of milk, and the premature loss of life of thousands of cows. From 2003 through 2010, the defendants operated the herd retirement program. In 2009, CWT instituted a policy that any farmer that participated in the program must agree not to produce milk for one year. In 2010, 9,672 billion pounds of milk were removed from the market. The program was discontinued in 2011 because CWT was no longer making as much money from it. The result of the program when it was active has been a steady climb in the price of milk and milk products. It has also effectively removed thousands of its competitors from the market over the time span that the program was in operation. The settlement is for $52 million in recovery for class members. A hearing will be held on December 16, 2016 at the Northern District Court in Oakland, California, when the judge will consider whether to approve the settlement or take some other action. The states that are included in the lawsuit are Arizona, California, Kansas, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, Oregon, South Dakota, Tennessee, Vermont, West Virginia, Wisconsin and the District of Columbia. Individuals in those states that have purchased milk and milk products, including cream, cottage cheese, cream cheese, sour cream, half & half, and yogurt between 2003 and the present date are eligible to submit a claim . The deadline for claims is January 31, 2017. This is a case of big business attempting to make tons of money on the backs of dairy farmers and consumers. It is mind boggling that the program was widely advertised and in operation for seven years with no repercussions. The class action lawsuit was not filed until 2014, four years after the program ended. NATIONAL RECOVERY: Judge Allows Fee Class Action to Proceed ----------------------------------------------------------- Dan Churney, writing for Cook County Record, reports that a Chicago federal judge has given the green light for a case to be litigated as a class action suit against a national collection agency, which allegedly violated federal law by charging debtors with improper fees in an attempt to collect debts owed to Six Flags. U.S. District Judge Gary Feinerman issued the ruling Aug. 30 ruling, granting class action status to a suit brought by Illinois man Joseph Bernal against National Recovery Agency (NRA), which is based in Harrisburg, Penn. NRA operates a nationwide debt collection service. On Feb. 3, Mr. Bernal filed for a class action suit against NRA, alleging NRA violated the federal Fair Debt Collection Practices Act. Mr. Bernal said NRA sent him a letter dated Feb. 17, 2015 telling him he owed a Six Flags amusement park $267. The letter also demanded Bernal pay a flat 16 percent collection fee of $43. Bernal asserted NRA had no right to tack on the fee, and in trying to claim it, allegedly breached the Collection Practices Act, which prohibits "false, deceptive or misleading" statements and "unfair or unconscionable means" to collect a debt. Mr. Bernal noted such a fee can be imposed under the Collection Practices Act, but only if the fee is part of the agreement between the debtor and creditor. Mr. Bernal denied there was any agreement to this effect between him and Six Flags, attaching a copy of his agreement, as an exhibit, to his suit. Mr. Bernal requested permission his suit be pursued as a class action, by including any other Illinois citizens who received an identical NRA letter for a delinquent bill allegedly owed to Six Flags. Mr. Bernal said he believes there are at least 35 such people. NRA said it sent 1,096 collection letters in the same form to other Illinois residents around the time Bernal received his letter. NRA contested Mr. Bernal's request for class action status, but Judge Feinerman found none of NRA's arguments persuasive. Judge Feinerman said NRA failed to show any potential class action participants had agreements with Six Flags that authorized collection fees, or any agreements were made in jurisdictions where the law allows such fees. NRA also questioned the standing of potential class members to engage in the suit, but Judge Feinerman pointed out Mr. Bernal, as the person bringing the suit, is the only participant whose standing can be disputed -- and he clearly has standing. "NRA does not challenge Bernal's standing, and nor could it," Judge Feinerman observed. Judge Feinerman similarly dismissed NRA's other contentions, such as that the putative class was too broad and there were not enough possible members to warrant class action. The judge said the case can be "resolved on a classwide basis, without any individual variation." Overall, in giving the go-ahead for the class action suit, Judge Feinerman concluded NRA's arguments were "meritless" and separate suits against NRA, instead of a class action, "would make no sense." Judge Feinerman also granted Mr. Bernal's request that Mr. Bernal's counsel -- Philipps & Philipps, of southwest suburban Palos Hills -- be allowed to represent the class. A status hearing is set for Sept. 22. NRA is defended by the Chicago firm of Rock, Fusco & Connelly, and by Olson Law Group, of Ann Arbor, Mich. NATIONWIDE MUTUAL: 6th Cir. Says Data Breach Suit Can Proceed ------------------------------------------------------------- David Navetta, Esq. -- david.navetta@nortonrosefulbright.com --and Andrew Hoffman, Esq. -- andrew.hoffman@nortonrosefulbright.com -- of Norton Rose Fulbright, in an article for Data Protection Report, report that the U.S. Court of Appeals for the Sixth Circuit concluded that certain allegations of harm after a data breach caused by hacking are sufficiently concrete to confer Article III standing. This case may make it more difficult for companies defending data breach suits to quickly obtain dismissal of plaintiffs' claims. The Data Breach & Notification Letter In Galaria v. Nationwide Mutual Insurance Co., the plaintiffs in a putative class action alleged that hackers breached Nationwide's computer network and stole their personal information, along with that of 1.1 million other individuals. The plaintiffs learned of the incident when Nationwide sent them a breach notification letter. The letter suggested that plaintiffs monitor their bank account statements and credit report to mitigate misuse of stolen data, offered one year of free credit monitoring and identity- fraud protection, and also suggested that the plaintiffs set up a fraud alert and place a security freeze on their credit reports. Although the credit freezes may cost money to place and remove, the plaintiffs alleged that Nationwide did not offer to pay for the associated expenses. The Lawsuit The plaintiffs sued Nationwide, alleging invasion of privacy, negligence, bailment, and violations of the Fair Credit Reporting Act (FCRA). The plaintiffs alleged that there is an illicit international market for stolen data and that identity thieves may fraudulently use victims' personal information for a variety of purposes. According to the plaintiffs, the breach created an "imminent, immediate and continuing increased risk" that the plaintiffs and class members would be subject to identity fraud. Further, the plaintiffs alleged that victims of identity theft typically spend hundreds of hours of personal time and hundreds of dollars of personal funds. The plaintiffs sought damages for the increased risk of fraud, expenses incurred in mitigating the risk (including the cost of credit freezes), and time spent on mitigation efforts. The Trial Court's Dismissal The trial court dismissed the plaintiffs' claims, concluding that the plaintiffs lacked Article III standing to sue in federal court because they had not alleged a cognizable injury. In addition, the trial court concluded that the plaintiffs did not have "statutory standing" under FCRA so that the court lacked subject- matter jurisdiction over the federal claim. The plaintiffs appealed. The Appeal On appeal, the Sixth Circuit reversed and concluded that the plaintiffs had Article III standing to sue. The court explained that the plaintiffs sufficiently demonstrated that they (1) suffered an injury in fact, (2) that is fairly traceable to Nationwide's conduct, and (3) that is likely to be redressed by a favorable judicial decision. Regarding Article III standing, the appellate court concluded. Injury in Fact The court concluded that the plaintiffs' allegations of a substantial risk of harm, coupled with reasonably incurred mitigation costs, are sufficient to establish injury at the pleading stage. Because the plaintiffs' "data has already been stolen and is now in the hands of ill-intentioned criminals," the court could reasonably infer that hackers would use the victim' data for the fraudulent purposes that the plaintiffs' alleged. Thus, the plaintiffs' allegations were not improper speculative allegations of possible future injury. Notably, the plaintiffs' complaints in Galaria did not allege that any fraud actually occurred. (Although one plaintiff sought to amend the complaint after the trial court had dismissed the action claiming that he had discovered fraudulent attempts to open credit accounts in his name, the appellate court's conclusion that standing exists is not premised upon the plaintiff's later factual allegations.) The Sixth Circuit's decision followed the outcome in two recent data breach cases where the Seventh Circuit found standing based on allegations that fraud occurred after the breach. For example, in Remijas v. Neiman Marcus Group, LLC, hackers stole approximately 350,000 credit card numbers from a luxury retailer, and fraud was discovered on approximately 9,200 of those cards. 794 F.3d 688, 689 (7th Cir. 2015). In Lewert v. P.F. Chang's China Bistro, Inc., one class representative experienced fraudulent charges on his credit card. In addition, Although the Sixth Circuit cited the Supreme Court's recent Spokeo v. Robins decision in its Article III standing analysis, it did so only nominally, relying primarily on older standing decisions. Interestingly, the appellate court referred to Nationwide's breach notification letter to support its conclusion that the plaintiffs suffered an injury. According to the court, "Nationwide seems to recognize the severity of the risk, given its offer to provide credit-monitoring and identity-theft protection for a full year." In addition, the court said that it would be unreasonable to expect the plaintiffs to wait for actual misuse of their information "before taking steps to ensure their own personal and financial security, particularly when Nationwide recommended taking those steps." (emphasis added). Yet, state breach notification laws often require companies to inform individuals of mitigation steps that they can take, such as by providing instructions on how to place a fraud alert or security freeze with a credit bureau, and by advising individuals to monitor their free credit reports. The court also noted that Nationwide recommended but did not cover the cost of credit freezes. Thus, the costs constitute a "concrete injury suffered to mitigate an imminent harm" and satisfy the injury requirement of Article III standing." Fairly Traceable The court concluded that the plaintiffs' allegations that Nationwide failed to implement appropriate safeguards to ensure the security and confidentiality of data was sufficient to allege traceability. The court added that, although hackers were the direct cause of the plaintiffs' injuries, they were able to access the plaintiffs' data "only because Nationwide allegedly failed to secure" the data. Redressability The court concluded that the plaintiffs sought compensatory damages for their injuries, and that a favorable verdict would provide redress. Our Take The Galaria decision may make it more difficult for companies defending against data breach cases to eliminate cases at the pleading stage based on a lack Article III standing. However, the case may not affect all types of data breach cases, particularly those where the facts do not demonstrate that criminals actually targeted personal information (e.g., in cases of lost or stolen computers or storage devices). Nonetheless, this appears to be one of the first appellate decisions decided since the Supreme Court's 2013 Clapper decision that found standing despite the plaintiff's failure to allege experiencing any fraud or identity theft (aside from the post-dismissal attempt to amend the complaint). It will be interesting to see whether Nationwide will appeal to the Supreme Court on grounds that the case is inconsistent with Clapper and Spokeo. Companies that suffer a data breach may also wish to consider the inferences that the court drew regarding Nationwide's letter when deciding how to draft their own breach notification letters. NBTY INC: Court Narrows Claims in "Muir" Mislabeling Complaint -------------------------------------------------------------- District Judge Rebecca R. Pallmeyer of the United States District Court for the Northern District of Illinois granted in part Defendants' motion to dismiss complaint for lack of standing and failure to state a claim in the case captioned, MICHAEL MUIR, individually and on behalf of all others similarly situated, Plaintiff, v. NBTY, INC., REXALL SUNDOWN, INC., NATURE'S ORIGIN, LLC, NATURE'S BOUNTY, INC., VITAMIN WORLD, INC., and PURITAN'S PRIDE, INC., Defendants, Case No. 15 C 9835 (N.D. Ill.). Plaintiff Michael Muir purchased a bottle of the dietary supplement St. John's Wort from a Walgreens store in Illinois in 2015. The label states that the product is "standardized to contain 0.3% Hypericin, 0.9 mg." Muir claims the product actually contains a far lower amount of hypericin, purportedly the active ingredient in St. John's Wort. Muir filed the action on behalf of a nationwide class of persons who purchased St. John's Wort Standardized Extract from any of five different manufacturers. He also seeks to assert consumer fraud claims on behalf of all purchasers in the states of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington, referred to as the "multi-state class." The complaint alleges four counts: A claim of violation of state consumer fraud acts on behalf of the multi-state class (Count I); a claim of violation of the Illinois Consumer Fraud Act, 815 ILCS 505/1, et seq., on behalf of Illinois purchasers (Count II); a claim of unjust enrichment on behalf of the nationwide class (Count III); and a claim of breach of express warranty on behalf of the nationwide class (Count IV). He claims each member of the class has been damaged "in the amount of the purchase price of the products and any consequential damages resulting from the purchases." Defendants have moved to dismiss the complaint in its entirety. They raise several arguments: -- The court has no jurisdiction over the case because Plaintiff has not alleged any harm resulting from the hypericin level in any product he bought, and therefore lacks standing. -- Defendants assert that none of them are subject to personal jurisdiction in the court. -- The complaint fails as a matter of law because federal law expressly preempts his claims and because the sampling method on which the complaint rests is inadequate. -- Plaintiff has not pleaded fraud with particularity, as required by federal pleading standards, and has not established any right to injunctive relief. In her Memorandum Opinion and Order dated September 22, 2016 available at https://is.gd/c00Xet from Leagle.com, Judge Pallmeyer concluded that (1) Plaintiff has standing only to challenge the mislabeling of the product he actually purchased; (2) declined to decide what Plaintiff needs to prove in order to establish its claims, merely holding here that compliance with the 12-sample testing protocol is not a requirement at the pleading stage; (3) denied dismissal of Count III because it will doom the unjust enrichment claim and Defendants have not raised other bases for such; (4) dismissed the breach of warranty claim because Plaintiff has not identified the manufacturer or that bottle, and has not alleged that the bottle he purchased was itself ever tested; and (5) denied dismissal of injunctive relief claim because Plaintiff has standing to seek injunctive relief. Michael Muir is represented by Joseph J. Siprut, Esq. -- jsiprut@siprut.com -- Richard Lane Miller, II, Esq. -- rmiller@siprut.com -- and -- Richard Steven Wilson, Esq. -- rwilson@siprut.com -- SIPRUT PC -- Nick Suciu, III, Esq. - nicksucui@bmslawyers.com -- BARBAT, MANSOUR & SUCIU PLLC NBTY, Inc., et al. are represented by Amanda L. Groves, Esq. -- agroves@winston.com -- Scott M. Ahmad, Esq. -- sahmad@winston.com -- and Scott P. Glauberman, Esq. -- sglauber@winston.com -- WINSTON & STRAWN LLP NETSOL TECHNOLOGIES: Court Granted Final Approval to Settlement --------------------------------------------------------------- Netsol Technologies, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 15, 2016, for the fiscal year ended June 30, 2016, that a California court has issued an order granting the motion for final approval of a class action settlement and plan of allocation and motion for an award of attorneys' fees and case expenses. The Company said, "On July 25, 2014, purported class action lawsuits were filed in the U.S. District Court for the Central District of California against the Company and certain of its current or former officers and/or directors, which have been consolidated under the caption Rand-Heart of New York, Inc. v. NetSol Technologies, Inc., et al., Case No. 2:14-cv-05787 PA (SHx). Plaintiffs subsequently filed consolidated amended complaints, which asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. As a result of the Company's motions, the Court dismissed all of plaintiffs' claims except those related to the scope of the Company's release of its next generation product, NFS Ascent(TM), during the narrow proposed class period of October 24, 2013 to November 8, 2013. The Company filed an answer and affirmative defenses denying the remaining claims. On February 26, 2016, the parties executed a Stipulation of Settlement to fully resolve the consolidated class action lawsuit, and filed a motion seeking the Federal Court's approval of the settlement. On March 28, 2016, the Court issued an order preliminarily approving the settlement and providing for notice to class members. Following class notice and hearing, the Court issued an order granting the motion for final approval of the settlement and plan of allocation and motion for an award of attorneys' fees and case expenses on July 1, 2016. The Court's Judgment approving the settlement on the terms set forth in the Stipulation of Settlement was signed on July 2, 2016. The cost of the settlement was covered by the Company's insurers. NEW YORK: Five Families Mull Class Action Against OPDD ------------------------------------------------------ The Buffalo News reports that New York State just got extra incentive to do the right thing for residents with intellectual disabilities. Five Western New York families have filed a federal lawsuit accusing the state of failing to meet its obligations to provide a sufficient number of group homes to serve the state's population with conditions such as Down syndrome and autism. The state needs to act on this issue rather than spend millions defending the lawsuit. Negotiate a settlement and get moving. It is at least a little reassuring that the state recognizes a problem. In February, the Office for People with Developmental Disabilities issued a report on the matter to the State Legislature. The report acknowledged the concerns and said it is working on them. The state, it said, "is committed to expanding access to home and community-based services, and offer more choice and options." That's a start, but the fundamental questions are whether the state is doing all it reasonably can to serve the basic needs of New Yorkers with developmental disabilities. The lawsuit alleges that Gov. Andrew M. Cuomo and Kerry Delaney, acting commissioner of the OPDD, have violated the Americans With Disabilities Act, which requires the state to provide sufficient appropriate community residential facilities. They hope to have the lawsuit certified as a class action representing more than 2,000 Western New Yorkers in similar circumstances. If so, it stands to improve conditions across the state. Some of these families are approaching crisis. As parents age, they worry that their children will eventually be left without the care that their disabilities require, said Buffalo attorney Bruce A. Goldstein, a longtime advocate for people with disabilities. "These caregivers would like to see their sons and daughters placed in good, stable situations while they are still alive." But what happens too often, the lawsuit claims, is that individuals needing these services are denied a place until their parents die or become too ill to care for them. To move a person at that moment of crisis is both disruptive and upsetting. "The state knows that the vast majority of these people -- the aging caregivers -- will not abandon their adult sons and daughters," Mr. Goldstein said. "I think it's a very cynical and unfair way to address the needs of people with developmental disabilities." If that's the state's approach, then Mr. Goldstein is completely and obviously right. Either way, New York needs to do better. The state does not build or operate such facilities, but it does authorize and regulate them. The plaintiffs' demand is that the state do that. Part of the problem in siting these homes is the opposition of many in the neighborhoods where they could be located. It's a common not-in-my-backyard response, but out of keeping with the nature of these facilities and the kind of neighborliness that Western New Yorkers profess to be theirs. That probably won't change, but what can be different going forward is the level of the state's commitment to authorizing more places for New Yorkers who need that kind of care before those people suffer the inevitable loss of their parents. If the lawsuit helps to speed that along, it will have accomplished something positive. NORDIC NATURALS: CA Affirms Dismissal of "Hoffman" Complaint ------------------------------------------------------------ Circuit Judge Julio M. Fuentes of the Court of Appeals, Third Circuit affirmed the dismissal of Plaintiff's complaint for failure to state a claim in the case captioned, HAROLD M. HOFFMAN, individually and on behalf of those similarly situated, Appellant, v. NORDIC NATURALS, INC, Case No. H041197 (3rd Cir.). Harold M. Hoffman is a serial pro se class action litigant from New Jersey who frequently sues under the New Jersey Consumer Fraud Act. According to the record in the case, Hoffman has sued nearly 100 defendants in New Jersey state court in a period of less than four years. These defendants include Target, Whole Foods Market, GNC, Trader Joes, Barleans Organic Oils LLC, Paradise Herbs & Essentials Inc., Honest Tea Inc., Time Warner Cable, American Express, Bio Nutrition Inc., and many more. In a previous opinion, the Court noted that Hoffman is "an attorney who has made a habit of filing class actions in which he serves as both the sole class representative and sole class counsel." In the instant case, Hoffman chose to sue Nordic Naturals, Inc. for its allegedly false and misleading advertisements for fish oil supplements. Prior to bringing the present action, Hoffman filed a similar lawsuit against Nordic, asserting virtually identical claims based on the same set of facts. The District Court dismissed that first lawsuit for failure to state a claim. The District Court accordingly dismissed the second lawsuit as procedurally barred by the first. On appeal, Hoffman challenges (1) the District Court's subject matter jurisdiction under the Class Action Fairness Act; (2) the District Court's application of New Jersey's entire controversy doctrine; and (3) the District Court's alternative conclusion that the complaint failed to state a claim upon which relief could be granted. In the Opinion dated September 14, 2016 available at https://is.gd/iRFbuc from Leagle.com, Judge Fuentes held that a court is not required to establish jurisdiction before dismissing a case on non-merits ground as pointed out by Sinochem International Co. v. Malaysia International Shipping Corp. As to New Jersey's entire controversy doctrine, the Court held that federal, not New Jersey, claim preclusion principles apply in successive federal diversity actions. The Court rejected Hoffman's contention that his filing of Hoffman II evidenced his intention to not stand on his complaint in Hoffman I holding that filing a new action in a different court does not prevent the District Court's order from ripening into a final order. Hoffman is represented in the case by: Harold M. Hoffman, Esq. OFFICE OF HAROLD M. HOFFMAN 240 Grand Ave Englewood, NJ 07631 Tel: (201)569-0086 OGEMAW COUNTY: Defendants Win Summary Judgment in Inmates' Suit --------------------------------------------------------------- District Judge Thomas L. Ludington of the United States District Court for the Eastern District of Michigan granted in part Defendants Hanft and OCBC's motion for summary judgment on the claims of ten of the named Plaintiffs in the case captioned, STACY McINTYRE, et al. Plaintiffs, v OGEMAW COUNTY BOARD OF COMMISSIONERS, et al., Defendants, Case No. 15-cv-12214 (E.D. Mich.). Plaintiffs in the action are former inmates of the Ogemaw County Jail. Defendant OCBC is a governmental agency which Plaintiffs allege operates the Ogemaw County Sheriff Department. At all relevant times, Defendant Hanft was the Ogemaw County sheriff and Defendant Gustafson's commanding officer. Defendant Gustafson, an employee of Ogemaw County, allegedly ran a Work Program and supervised inmate-participants. The Work Program, which has been in place for many years, allows Ogemaw County inmates to work off a portion of their sentence through supervised community service work. Gustafson was ultimately convicted for criminal sexual conduct based on his conduct with two of the Work Program's female inmates, and is currently incarcerated. In their amended complaint Plaintiffs, who were all female participants in the Work Program at various times, allege that Gustafson assaulted, battered and sexually harassed female inmates who were incarcerated at the Ogemaw County Jail and involved in the Work Program. Plaintiffs also claim that Gustafson's conduct was a "de facto policy" of Ogemaw County and the Ogemaw County Sheriff's department for a substantial period of time. Plaintiffs allege five counts arising from Defendants' conduct: (1) Deprivation of civil rights in violation of 42 U.S.C. Section 1983; (2) Gross negligence; (3) Assault and battery; (4) Invasion of privacy; and (5) Negligent and Intentional infliction of emotional distress. On February 5, 2016, Plaintiffs moved for leave to file a second amended complaint, seeking to add five additional plaintiffs to the putative class. Plaintiffs alleged that two of the proposed class members, Candice McCarthy and Alyssa Oliver, were inmates and participants in the work program. Plaintiffs alleged that the other three proposed class members, Anna Maldonado, Angela Scherer, and Janet Kamen were not participants in the Work Program, but were allegedly assaulted, battered and sexually harassed by Gustafson when they visited family members who were assigned to the Work Program. Plaintiffs' request to expand the class to include family members was denied, and Plaintiffs' request to join Alyssa Oliver was denied because her claims fell outside the relevant statutes of limitation. In the motion, Defendants argue that the claims of Plaintiffs Candy Olstrom, Heather Miles, Tina Bahr, Aleena Grisham, Tammy McElroy and Tina Terkawi should be dismissed for failing to meet the required statute of limitations, Plaintiff June Beach's claims should be dismissed based on a prior release and waiver, and that Plaintiff Kimberly Connor's claims should be dismissed due the consensual nature of her activity. Furthermore, Defendants argue that the claims of Krystal Waterman Rush and Misty Edward should be dismissed for failure to comply with the relevant statute of limitations, and that, even if the five year statute of limitations claim applies pursuant to Michigan Compiled Law Section 600.5805(3) their conduct was consensual. In his Order dated September 15, 2016 available at https://is.gd/JI8ssM from Leagle.com, Judge Ludington dismissed the claims of Plaintiffs Olstrom, Miles, Bahr, Grisham, McElroy, Terkawi, and Conner as to Defendants OCBC and Hanft holding that Plaintiffs' accrual claims are without merit with regard to their federal claims because Plaintiffs knew or should have known they were subject to improper sexual advances and unprivileged touchings at the time those actions occurred and state claims because they are untimely. Plaintiff Beach claims are dismissed with prejudice to all Defendants because she explicitly waived all claims arising out of Ogemaw County's Job Works program, including all Section 1983 claims and all state law tort claims. Plaintiffs Edwards's and Waterman-Rush's Counts 1 (Secton 1983), 2 (gross negligence), 4 (invasion of privacy), and 5 (negligent and intentional infliction of emotional distress) are dismissed with prejudice as to Defendants OCBC and Hanft because their state law assault and battery claims raise novel issues of state law, the Court declines to exercise supplemental jurisdiction over Plaintiffs Edwards and Waterman-Rush's assault and battery claims. Stacy McIntyre, et al. are represented by Joseph F. Lucas, Esq. -- jlucas@onellp.com -- SKUPIN & LUCAS Ogemaw County Board of Commissioners, et al. are represented by Gregory M. Meihn, Esq. -- gmeihn@foleymansfield.com -- and Melinda A. Balian, Esq. -- mbalian@foleymansfield.com -- FOLEY & MANSFIELD ONTARIO: Lakefront Owners File $900MM Civil Action v. MNRF ---------------------------------------------------------- Mary Beth Hartill, writing for Bracebridge Examiner, reports that a $900 million civil action is set to move ahead against the Ministry of Natural Resources and Forestry. Lawyers from Oatley Vigmond met with interested parties at the Port Carling Community Centre on Sunday, Sept. 18 stating they have filed the case with a Barrie court now that they have a claimant named on behalf of the others so that may proceed. Lawyer Roger Oatley states they have promised Peter Burgess, the man named in the civil action suit, he will be protected. They are trying to raise as much as $500,000 in the event that should the claimants lose Mr. Burgess will not be out pocket. He said they have already attained a commitment of about $150,000 toward the case, which does not include their legal fees. Mr. Oatley said they would not collect a penny unless they win, which is indicative of their level of confidence. The money is a war chest of sorts, to protect Burgess who "has been brave enough to stand up" on behalf of other lakefront property owners who sustained significant structural damages this spring with high water levels as ice flows collapsed boathouse walls. For Mr. Burgess the damage was so extensive the structure had to be demolished. He said between demolition, permits and dumping fees the demolition alone has already cost him about $20,000. He has a year to rebuild on the grandfathered site. This said, Mr. Oatley is confident. Mr. Oatley states the firm has sued the province several times in the past with great success, although not as a civil action. "There is no need to feel that it's (the province) some sort of super presence that is unbeatable," he said. He said the province is just an entity like any other and he expects they will more likely face the insurance companies rather than the province itself. Legal partner Troy Lehman, who will be spearheading the case on behalf of the property owners, said water levels not being lowered past March 9 was negligence on the part of the ministry, which resulted in unacceptably high water levels in late March and early April of 2016 that resulted in a significant amount of damage to a number of boathouses. He said the water levels in Muskoka's three biggest lakes, Muskoka, Joseph and Rosseau, were higher than normal and ice flows damaged a number of boathouses. He said their investigation has shown "that it was due to Ministry negligence." The Ministry has already responded to these claims stating despite best efforts to "forecast, prepare for and manage flooding, it's important to remember these events are caused by severe weather conditions out of our control." "We feel strongly about the case based on what our experts are telling us," said Mr. Lehman. "We know there wasn't any extraordinary weather." It is up to a judge to decide if there are grounds for a case but Lehman is confident they have grounds to proceed. Mr. Lehman said the ministry was not following its own Muskoka River Water Management plan that was implemented in 2006, which sets out specific water level targets and said consultations with experts in hydrology state that the ministry failed to follow this plan in the spring of this year. "The plan says you need to bring it down to the end of March or you're going to have trouble," said Mr. Lehman. He said stopping the water level reduction was not only inconsistent with the plan but was also inconsistent with what the ministry has done in previous years. "That's what our experts are telling us. That this was avoidable," he said. He said the next step is to attain the ministry's internal documentation that "will answer the question of what went on." They are currently estimating the amount of the lawsuit at $900 million. "At this time we don't know exactly the amount of damages but we know it's enormous," he said. He said they are also recommending the court order the ministry to follow the plan to prevent this level of damage from occurring in future, which is why they are extending their request for funds beyond the Muskoka cottagers who were directly impacted in 2016. "What about next year?" asked Mr. Oakley. "Are you willing to have it continue year after year." Mr. Lehman said the class action lawsuit will get the province's attention. "One of the goals of this is to change the ministry's behavior," he said. Mr. Oatley said the earliest they will see any preliminary motions is in 2017. However, they are hoping other lakefront property owners who have sustained damage during the spring of 2016 will come forward and lend their evidence to the case. Any waterfront property owners who sustained damage or those willing to put monies toward the war chest can email muskoka.flood@oatleyvigmond.com PATHEON N.V.: Oral Contraceptive Class Action Pending ----------------------------------------------------- Patheon N.V. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2016, for the quarterly period ended July 31, 2016, that two civil actions are pending in the United States (in Georgia and Pennsylvania) against the Company and one of its customers. These actions are in connection with the recall of certain lots of allegedly defective products manufactured by the Company for the customer. The customer has given the Company notice of its intent to seek indemnification from the Company for all damages, costs and expenses, pursuant to the manufacturing services agreement between the customer and the Company. The first action is a two-plaintiff action in United States District Court for the Northern District of Georgia. The two named plaintiffs in this action had previously brought a motion for class certification that would have included 113 other plaintiffs as a class action. Defendants opposed the motion and the motion was denied in November 2015. The action was ordered to proceed on behalf of the two named plaintiffs only. Following denial of class certification in Georgia, plaintiffs' lawyers commenced the second action as a mass action in the State of Pennsylvania on behalf of the 113 other plaintiffs that would have comprised the class in the Georgia action. Defendants removed the state action to the United States District Court for the Eastern District of Pennsylvania and have filed a motion to transfer the Pennsylvania federal action back to the federal district court in Georgia. Following closure of discovery in the Georgia action, plaintiffs filed a motion to transfer the Georgia action to Pennsylvania. Defendants opposed the motion and the motion was denied. Defendants then filed a motion for summary judgment in the Georgia action on August 24, 2016. On August 31, 2016, plaintiffs filed a motion to dismiss the Georgia action (without prejudice). The Court denied plaintiffs' motion to dismiss on September 6, 2016. As the litigation is at an early stage, the Company is unable to estimate the potential damages for which the Company may be directly or indirectly liable. PERCHERON ENERGY: Landmen File Class Action Over Unpaid OT Wages ---------------------------------------------------------------- A lawsuit filed in the Southern District of Texas claims that Percheron Energy, LLC, failed to pay its landmen overtime wages in accordance with the Fair Labor Standard Act ("FLSA"). The lawsuit filed by Bohrer Brady, LLC, entitled Fletcher v. Percheron Energy, LLC, Case No. 4:16-cv-02564 (S.D. Tex), alleges that Percheron Energy, LLC misclassified Petroleum Landmen as "independent contractors" in an attempt to avoid paying its employees overtime wages. Fletcher, the lead plaintiff in the lawsuit and a former landman with Percheron Energy, LLC, filed suit seeking to recover unpaid overtime wages, liquidated damages and attorney's fees for all Petroleum Landmen who were classified as independent contractors within the past three (3) years. The lawsuit alleges that the Landmen routinely worked in excess of forty (40) hours in a workweek without overtime compensation. The lawsuit alleges that the practice of misclassifying employees and not paying overtime compensation violates the FLSA which entitles the workers to unpaid wages, liquidated damages and attorney's fees. Percheron Energy, LLC is a land services company with corporate headquarters located in Katy, Texas. The company has regional and field offices in numerous other states including California, North Dakota, Nevada, New Mexico, Louisiana, Arkansas, Kansas, Tennessee, Georgia, North Carolina, Kentucky, Ohio, West Virginia, Pennsylvania, Virginia, New York and Michigan. The company provides survey and acquisition services for pipeline, electric transmission and right-of-way projects from coast-to-coast. Plaintiff is represented by Philip Bohrer and Scott Brady, Bohrer Brady, LLC, 8712 Jefferson Highway, Suite B, Baton Rouge, Louisiana 70809, (800) 876-3911. Lawsuit: Linda Fletcher v. Percheron Energy, LLC, Case No. 4:16- cv-02564 (Southern District of Texas, Houston Division). PERNIX THERAPEUTICS: Bankr. Trustee's Bid to Settle Denied ---------------------------------------------------------- Bankruptcy Judge Laura K. Grandy of the Southern District of Illinois Bankruptcy Court denied the request of Robert T. Bruegge, the Chapter 7 bankruptcy trustee in the case of Alan Lee Presswood, to compromise the Chapter 7 Debtor's interest in a class action lawsuit. Debtor Alan Presswood (Debtor) filed a Chapter 7 petition on May 29, 2012 and movant Robert T. Bruegge was appointed Trustee of the bankruptcy estate. The bankruptcy case is captioned, IN RE: ALAN LEE PRESSWOOD, Chapter 7, Debtor(s), Case No. 12-60237 (Bankr. S. D. Ill.) At the time that the petition was filed, the Debtor did not schedule or otherwise disclose any pre-petition claims or causes of action in which he may have an interest. On February 25, 2015, Alan Presswood, D.C., P.C. filed a class action lawsuit against Pernix Therapeutics Holdings, Inc. (Pernix) and other defendants in the Circuit Court of St. Louis County, Missouri (Case No.15SL-CC00687) based, inter alia, on alleged violations of the Telephone Consumer Protection Act of 1991 (TCPA). Specifically, the class action complaint alleges that in April 2011, Pernix sent two unsolicited facsimiles to the Debtor in violation of the TCPA. Pernix subsequently removed the suit to the United States District Court for the Eastern District of Missouri (Case No.15-cv-00592-NAB) where it remains pending. To date, the punitive class remains unidentified and uncertified. On September 14, 2015, the Trustee filed the Application to Compromise the bankruptcy estate's claims against Pernix. Pursuant to the agreement, the Trustee requests in his Application that upon payment of the settlement amount, the Debtor be ordered to dismiss the Pernix litigation with prejudice. Alternatively, the Trustee asks that he be authorized to dismiss the action on the Debtor's behalf if the Debtor fails to do so. The Application and proposed settlement were served on all creditors and parties in interest. The only objection was raised by the Debtor, who asserts that the proposed settlement amount grossly exceeds the value of the claim. He contends that the cause of action is worth no more than $500, is fully exempt and, therefore, should be abandoned by the Trustee. Specifically, the Debtor alleges that Pernix's settlement offer constitutes an impermissible attempt to "buy off" the Debtor in the TCPA litigation and should not be approved by this Court. In reply, the Trustee requests that these objections be overruled as the Debtor lacks standing to challenge the proposed settlement. In her Opinion dated September 15, 2016 available at https://is.gd/g2OiZH from Leagle.com, Judge Grandy found that the Debtor's whole interest in the TCPA claim has been exempted, it is excluded from the bankruptcy estate and beyond the reach of the Trustee. The Trustee has no standing to settle a claim that is not property of the estate. The Court concluded that Pernix is attempting to "buy off" not only the estate's claim but those of all of the other putative class members as well because Pernix offered to settle the estate's claim for $10,000, which is over three times more than the highest possible recovery under the relevant sections of the TCPA and twenty times the value supported by the evidence. Alan Lee Presswood is represented by Robert E. Eggmann, Esq. -- reggmann@demlawllc.com -- and Danielle Suberi, Esq. -- dsuberi@demlawllc.com -- DESAI EGGMANN MASON LLC Robert T. Bruegge is represented by: Steven M. Wallace, Esq. HEPLERBROOM LLC 820 East Terra Cotta Suite 139 Crystal Lake, IL Tel: (815)444-0250 PETRO RIVER: Motion to Alter Judgment in Donelson-Friend Pending ---------------------------------------------------------------- Petro River Oil Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2016, for the quarterly period ended July 31, 2016, that in the class action lawsuit by Martha Donelson and John Friend, Plaintiffs' three motions: a Motion to Amend or Alter the Judgment; a Motion to Amend the Complaint; and a Motion to Vacate Order, remain pending. On August 11, 2014, Martha Donelson and John Friend amended their complaint in an existing lawsuit by filing a class action complaint styled: Martha Donelson and John Friend, et al. v. United States of America, Department of the Interior, Bureau of Indian Affairs and Devon Energy Production, LP, et al., Case No. 14-CV-316-JHP-TLW, United States District Court for the Northern District of Oklahoma (the "Proceeding"). The plaintiffs added as defendants twenty-seven (27) specifically named operators, including the Spyglass Energy, LLC ("Spyglass"), a wholly owned Subsidiary of Bandolier Energy, LLC, as well as all Osage County lessees and operators who have obtained a concession agreement, lease or drilling permit approved by the Bureau of Indian Affairs ("BIA") in Osage County allegedly in violation of National Environmental Policy Act ("NEPA"). Plaintiffs seek a declaratory judgment that the BIA improperly approved oil and gas leases, concession agreements and drilling permits prior to August 12, 2014, without satisfying the BIA's obligations under federal regulations or NEPA, and seek a determination that such oil and gas leases, concession agreements and drilling permits are void ab initio. Plaintiffs are seeking damages against the defendants for alleged nuisance, trespass, negligence and unjust enrichment. The potential consequences of such complaint could jeopardize the corresponding leases. On October 7, 2014, Spyglass, along with other defendants, filed a Motion to Dismiss the August 11, 2014 Amended Complaint on various procedural and legal grounds. Following the significant briefing, the Court, on March 31, 2016, granted the Motion to Dismiss as to all defendants and entered a judgment in favor of the defendants against the plaintiffs. On April 14, 2016, Spyglass with the other defendants, filed a Motion seeking its attorneys' fees and costs. The motion remains pending. On April 28, 2016, the plaintiffs filed three motions: a Motion to Amend or Alter the Judgment; a Motion to Amend the Complaint; and a Motion to Vacate Order. All three Motions are pending as of the effective date of this response. There is no specific timeline by which the Court must render a ruling. Spyglass intends to continue to vigorously defend its interest in this matter. PIZZA HUT: Franchise Owner to Appeal Class Action Dismissal ----------------------------------------------------------- The Age reports that Pizza Hut was Adam Gordon's life. He started washing dishes and making dough for the family restaurant at 14, he was a shift manager at 17, an assistant manager at 18 and a store manager at 20. "I know the Pizza Hut system," he says. "I breathed it." But not any more. Last year, the 34-year-old Australian man sold his two Pizza Hut franchises, walking away with just A$10,000 (NZ $10,300). Everything else was gone -- except his resolve. He is hoping to force the fast-food giant back to court to compensate franchisees for losing fistfuls of dough selling unprofitable pizzas, as the culmination of legal action first launched against the global giant two years ago. Pizza Hut slashed the prices of its pizzas in 2014 to compete with rival Dominos, with its cheapest pizzas selling for A$4.95 (now A$5 - NZ$5.15). The cheapest pizzas currently sell for NZ$5 throughout New Zealand. After a group of franchisees failed to get an injunction to stop the price cuts going ahead, more than 280 franchisees from across Australia began a class action against Pizza Hut's then-owner Yum Restaurants in 2015, claiming its aggressive pricing policies were forcing mum-and-dad operators to the wall. Mr. Gordon said once wages, rent, franchise costs, royalties, marketing and delivery costs were taken into account, it cost him A$5.50 (NZ $5.67) to make a A$4.95 (NZ $5.10) pizza. An estimated 90 per cent of franchisees claimed losses and business collapses as a direct consequence of orders they slash the price of pizzas by up to 50 per cent, to take market share from rivals. The class action, initially led by Sydney franchisee Danny Diab, alleged unconscionable conduct under the franchising code. While Mr. Diab walked away from the class action, concerned for the impact it was having on his family (he declined to speak about the case to Fairfax, citing a confidentiality agreement signed as part of the settlement), the rest stayed -- and lost. Yum defended the action and in March the Federal Court threw out the class action. Now, Mr. Gordon wants to lead an appeal against the decision, and has launched a crowd-funding appeal to try to raise the cash to go back to court. "We have suffered financially and emotionally with many of us still trapped in this unequal arrangement," he said. "[We're] buried under a mountain of debt and unable to even sell our business to cut our losses without the intervention of the franchisor." Mr. Gordon is trying to raise A$300,000 (NZ $309,000) to fight the appeal, which has to be lodged by the end of September or not at all. If he manages to raise the cash, Gordon will employ Sydney-based lawyer Jim Kartsounis, who ran the Federal Court case, to run the appeal. If he can't raise the cash, he plans to donate it to charity. "It is important that we do not give up the fight; if only because this case will set a precedent for this kind of class action in Australia," he said. "This case will help shape judgments in years to come, if small business owners band together against unjust and commercially irresponsible decisions made by their franchisor." Earlier this month, Australian private equity firm Allegro and three former McDonalds executives acquired the master franchisees license from Yum Restaurants. In a statement, Allegro founding partner Chester Moynihan said the group's immediate focus would be to strengthen the network of Pizza Hut stores across the country. Yum and Pizza Hut did not return calls and messages on Sept. 18. POLARIS INDUSTRIES: "Orr" Suit Claims Violation of Securities Act ----------------------------------------------------------------- TREVOR ORR, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. POLARIS INDUSTRIES, INC., SCOTT W. WINE, and MICHAEL T. SPEETZEN, Defendants, Case No. 0:16-cv-03108-WMW- KMM (D. Minn., September 16, 2016), is a federal securities suit on behalf of a purported class consisting of all persons other than Defendants who purchased or otherwise acquired Polaris securities between January 26, 2016 and September 11, 2016, both dates inclusive. POLARIS INDUSTRIES, INC., together with its subsidiaries, designs, engineers, manufactures, and markets off-road vehicles, snowmobiles, motorcycles, and on-road vehicles in the United States, Canada, Western Europe, Australia, and Mexico. The Plaintiff is represented by: Gregg M. Fishbein, Esq. Kate M. Baxter-Kauf, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Phone: (612) 339-6900 Fax: (612) 339-0981 E-mail: gmfishbein@locklaw.com kmbaxter-kauf@locklaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc C. Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Phone: (212) 661-1100 Fax: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Phone: (312) 377-1181 Fax: (312) 377-1184 Email: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 E. 42nd Street, Suite 4600 New York, NY 10165 Phone: (212) 697-6484 Fax: (212) 697-7296 E-mail: peretz@bgandg.com PORTFOLIO RECOVERY: Wins Summary Judgment in "Panico" Case ---------------------------------------------------------- District Judge Brian R. Martinotti of the United States District Court for the District of New Jersey granted Defendant's motion for summary judgment in the case captioned, ANDREW PANICO, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, Case No. 15-1566-BRM-DEA (D.N.J.). On or after October 20, 2014, Portfolio Recovery Associates, LLC (PRA) filed a complaint in the Law Division of the Superior Court of New Jersey which commenced a civil action against Plaintiff entitled Portfolio Recovery Associates, LLC A/P/O FIA Card Services, N.A. v. Andrew Panico, Docket No. SOM-L-1432-14. The State Court Complaint alleged that Panico incurred a financial obligation on a certain credit card account which was in default and the creditor's rights to the Debt had been assigned to PRA. The State Court Complaint alleged that Panico incurred a financial obligation on a certain credit card account (the Account) which was in default and the creditor's rights to the Debt had been assigned to PRA. The Debt arose out of one or more transactions in which the money, property, insurance, or services which were the subject of those transactions were primarily for personal, family, or household purposes. The Account from which the Debt arose was governed by a written credit card agreement which provides that the Agreement is made in Delaware. It is governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and by any applicable federal laws. And that any litigation regarding the Account or the Agreement shall be brought in a court located in the State of Delaware. The Account was considered to be "delinquent" on June 18, 2010, at which time the outstanding balance was $43,970.16. On March 2, 2015, Plaintiff, individually and behalf of all others similarly situated, filed a two-count Class Action Complaint alleging the State Court Action was filed by PRA after the applicable statute of limitations in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Section 1692, and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2. The Parties submitted a joint letter to the Court on April 11, 2016, outlining their mutual decision to pursue summary judgment on the central issue of Plaintiff's claim under the FDCPA. Defendant argues that the plain language of Delaware's statute of limitations and related tolling provision make timely PRA's underlying State Court Action against Plaintiff, thus warranting summary judgment in its favor. In his Opinion dated September 14, 2016 available at https://is.gd/h8ojBD from Leagle.com, Judge Martinotti concluded that PRA is entitled to summary judgment in its favor pursuant to the tolling provision of Section 8117 so that Plaintiff's clams under the FDCPA, 15 U.S.C. Section 1692, and New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, fail as a matter of law. The Court held that Plaintiff is not a Delaware resident, has never visited Delaware, owns no property in Delaware, has never been amenable to service of process in Delaware, and has never been subject to personal jurisdiction in Delaware. Andrew Panico is represented by: Andrew T. Thomasson, Esq. Philip D. Stern, Esq. STERN THOMASSON LLP 150 Morris Ave., 2nd Floor Springfield, NJ 07081 Tel: (973)379-7500 Portfolio Recovery Associates, LLC is represented by Amanda Lyn Genovese, Esq. -- amanda.genovese@troutmansanders.com -- TROUTMAN SANDERS LLP PRECISION OPINION: Faces "Wilber" Suit in District of Arizona ------------------------------------------------------------- A lawsuit has been filed against Precision Opinion Incorporated. The case is styled Richard Wilber, individually, and on behalf of others similarly situated, the Plaintiff, v, Precision Opinion Incorporated, a Nevada corporation, the Defendant, Case No. 2:16- cv-03195-DKD (D. Ariz., Sept. 21, 2016). The assigned Magistrate Judge is Hon. David K Duncan. Precision Opinion provides market research services to corporations and agencies in the area of social science research and public opinion polling. The Plaintiff is represented by: Scott B Seymann, Esq. Steven Jay German, Esq. Adelman German PLC 8245 N 85th Way Scottsdale, AZ 85258 Telephone: (480) 607 9166 Facsimile: (480) 607 9031 E-mail: scott@adelmangerman.com steve@adelmangerman.com PRIME HEALTHCARE: Cal. App. Reverses Dismissal of "Moran" Case -------------------------------------------------------------- Judge Eileen C. Moore of the California Court of Appeals reversed the trial court's dismissal Plaintiff's complaint in the case captioned, GENE MORAN, Plaintiff and Appellant, v. PRIME HEALTHCARE MANAGEMENT, INC., et al., Defendants and Respondents, Case No. G051391 (Cal. App.). On three occasions in October 2013, plaintiff Gene Moran, "a self- pay patient," went to the emergency room of a hospital owned and operated by defendants Prime Healthcare Management, Inc., Prime Healthcare Services, Inc., Prime Healthcare Foundation, Inc., and Prime Healthcare Huntington Beach, LLC. Each time, he signed a preprinted Conditions of Admission agreement (Contract) and received medical treatment. Subsequently, plaintiff received bills from the hospital for the treatment provided during the three visits that exceeded $10,000. In November 2013, plaintiff filed this putative class action against defendants. The initial complaint stated causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Unfair Competition Law or UCL, restitutionary relief under the Consumer Legal Remedies Act or CLRA, and declaratory relief. Plaintiff subsequently dropped the first and second counts. His first amended complaint also expanded the scope of the CLRA cause of action to include a request for damages by alleging that he complied with the statutory requirement of giving defendants notice of the purportedly unlawful practice and a demand for correction of it. Each iteration of the complaint is based on allegations the rates defendants charge self-pay patients are discriminatory, exceed the reasonable value of the treatment, and are "artificially inflated and grossly excessive." Defendants demurred to the first and the second amended complaints, arguing the counts in each pleading failed to allege facts sufficient to state a cause of action. The trial court sustained both demurrers with leave to amend. Plaintiff filed a third amended complaint (TAC), again stating causes of action for violations of the UCL, CLRA, and declaratory relief. The TAC also alleges that, "before receiving bills, Plaintiff sent correspondence to [the] Hospital," informing it that he "was currently unemployed and uninsured and asking that the hospital 'take into consideration my financial status of being unemployed and not having insurance in addressing the bill,'" and expressing his desire "'to take care of this immediately with what he had available right now, not knowing what his future monetary situation will be during this recession.'" According to the TAC, the hospital never responded to plaintiff's correspondence. Defendants demurred to the TAC, again arguing each of its counts failed to state a cause of action. The trial court sustained the demurrer without leave to amend, primarily concluding plaintiff had failed to allege sufficient facts to establish his standing to maintain the action. On appeal, Plaintiff argues he satisfied the standing requirement because "he received a bill from defendants, paid a portion of that bill, and (until defendants later unilaterally returned his payment and eliminated all charges), remained liable on the balance." The allegation supports plaintiff's claim that he suffered the requisite economic injury required to maintain a private enforcement action under the UCL. In the Opinion dated September 14, 2016 available at https://is.gd/FQDtKY from Leagle.com, Judge Moore concluded that the Plaintiff has sufficiently alleged facts supporting a conclusion he has standing to claim the amount of the charges defendants' hospital bills self-pay patients is unconscionable. The matter remanded to the superior court for further proceedings. Gene Moran is represented by Gretchen Carpenter, Esq. -- gretchen@gcarpenterlaw.com -- CARPENTER LAW -- and -- Barry L. Kramer, Esq. Law OFFICE OF BARRY KRAMER 9550 S Eastern Ave Ste 253 Las Vegas, NV 89123 Tel: (702) 778-6090 Prime Healthcare Management, et al. are represented by Ronald S. Hodges, Esq. -- rhodges@shbllp.com -- Gary A. Pemberton, Esq. -- gpemberton@shbllp.com -- and -- Heather B. Dillion, Esq. -- hdillion@shbllp.com -- SHULMAN HODGES & BASTIAN PTZ INSURANCE: Pethealth Can't Escape Robocalls Suit ---------------------------------------------------- District Judge Robert W. Gettleman of the United States District Court for the Northern District of Illinois denied Pethealth, Inc.'s motion for summary judgment in the case captioned, CHRISTOPHER LEGG, PAGE LOZANO, individually and on behalf of all others similarly situated, Plaintiffs, v. PTZ INSURANCE AGENCY, LTD., and PETHEALTH, INC., Defendants, Case No. 15-2299 (N.D. Ill.). Plaintiffs Christopher Legg and Page Lozano, individually and on behalf of all others similarly situated, have brought an amended putative class action complaint against defendant PTZ Insurance Agency, Ltd. and its parent company, Pethealth, Inc. (Pethealth) alleging that defendants violated the Telephone Consumer Protection Act (the TCPA), 47 U.S.C. Section 227 et seq., by calling their cellular telephones using an automated dialing system, or "robocall," without their express written consent. Plaintiff Legg adopted a kitten from the Florida Human Society on November 8, 2014. As part of the adoption process a microchip was placed in the kitten and registered with 24 PetWatch. Legg claims that he subsequently received three phone calls on his cellular phone from No. 877-291-1524 which is listed in 24 PetWatch's promotional materials. The recorded message indicated that it was from "Playful PetWatch Pet Insurance" to remind Legg of his free gift. Legg claims that he did not give PTZ or any other related company permission to call his cellular phone and that his cell number is listed on the National Do Not Call Directory. Pethealth has moved for summary judgment arguing that the undisputed facts demonstrate that it did not initiate the calls in question and cannot be held vicariously liable for the entity that did. Plaintiff counters that even if Pethealth did not physically place the calls it can be held directly liable because it controls everything that PTZ Agency and PTZ Brokers do. In his Memorandum Opinion and Order dated September 14, 2016 available at https://is.gd/labSha from Leagle.com, Judge Gettleman concluded that the evidence suggests that Pethealth and its wholly owned subsidiaries share a number of officers, directors, employees and offices and that plaintiff has presented evidence from which a reasonable juror could conclude that Pethealth "was so involved in the placing" of the robocalls as to be directly liable. Christopher Legg, et al. are represented by: Keith James Keogh, Esq. Amy L. Wells, Esq. Michael S. Hilicki, Esq. Michael R. Karnuth, Esq. Timothy J. Sostrin, Esq. KEOGH LAW, LTD 55 W Monroe St #3390 Chicago, IL 60603 Tel: (312)726-1092 -- and -- Patrick Christopher Crotty, Esq. Scott D Owens, Esq. SCOTT D. OWENS, P.A. 3800 S Ocean Dr #235, Hollywood, FL 33019 Tel: (954)-589-0588 PTZ Insurance Agency, LTD and PetHealth, Inc. are represented by Eric L. Samore, Esq. -- esamore@salawus.com -- John C. Ochoa, Esq. -- jochoa@salawus.com -- Molly Anne Arranz, Esq. -- marranz@salawus.com -- Ronald David Balfour, Esq. -- rbalfour@salawus.com -- and Yesha Sutaria Hoeppner, Esq. -- yhoeppner@salawus.com -- SMITHAMUNDSEN LLC QUORUM HEALTH: "Rao" Sues Over Shady Spinoff Deal ------------------------------------------------- Aparna Rao, individually and on behalf of all others similarly situated, Plaintiff, v. Quorum Health Corporation, Thomas D. Miller and Michael Culotta, Defendants, Case No. 3:16-cv-02475, (M.D. Tenn., September 10, 2016), seeks to recover compensable damages for violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. Plaintiff purchased Quorum securities under a false and misleading Registration Statement issued in connection with the Company's spinoff from Community Health Systems, Inc. (CHS), in which the Defendant failed to disclose that a number of Quorum's hospitals were underperforming at the time of the spin-off from CHS. Quorum is an independent operator and manager of general acute- care hospitals and outpatient services in the United States, with facilities in 16 states. Under the terms of the spin-off, CHS stockholders who held CHS common stock as of April 22, 2016, received a distribution of one share of Quorum common stock for every four shares of CHS common stock, plus cash in lieu of any fractional shares. CHS's stockholders owned all of the outstanding common stock of Quorum upon completion of the spinoff. Plaintiff is represented by: Paul Kent Bramlett, Esq. Robert Preston Bramlett, Esq. BRAMLETT LAW OFFICES 40 Burton Hills Blvd., Suite 200 P.O. Box 150734 Nashville, TN 37215 Telephone: 615.248.2828 Facsimile: 866.816.4116 E-Mails: Robert@BramlettLawOffices.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc Gorrie, Esq. 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, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 Email: pdahlstrom@pomlaw.com RADIANT LOGISTICS: Status Conference Continued Until Oct. 31 ------------------------------------------------------------ Radiant Logistics, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 13, 2016, for the fiscal year ended June 30, 2016, that in the case, Ingrid Barahona v. Accountabilities, Inc. d/b/a Accountabilities Staffing, Inc., Radiant Global Logistics, Inc. and DBA Distribution Services, Superior Court of the State of California, Los Angeles County, Case No. BC525802, a status conference has since been continued until October 31, 2016 so the parties can attempt to obtain the necessary documents. The Company said, "On October 25, 2013, plaintiff Ingrid Barahona filed a purported class action lawsuit against Radiant Global Logistics, Inc. ("Radiant"), DBA, and two third-party staffing companies (collectively, the "Staffing Defendants") with whom Radiant and DBA contracted for temporary employees. In the lawsuit, Ms. Barahona, on behalf of herself and the putative class, seeks damages and penalties under California law, plus interest, attorneys' fees, and costs, along with equitable remedies, alleging that she and the putative class were the subject of unfair and unlawful business practices, including certain wage and hour violations relating to, among others, failure to provide meal and rest periods, failure to pay minimum wages and overtime, and failure to reimburse employees for work- related expenses. Ms. Barahona alleges that she and the putative class members were jointly employed by the staffing companies and Radiant and DBA. "Radiant and DBA deny Ms. Barahona's allegations in their entirety, deny that we are liable to Ms. Barahona or the putative class members in any way, and are vigorously defending against these allegations based upon our preliminary evaluation of applicable records and legal standards. "If Ms. Barahona's allegations were to prevail on all claims we, as well as our co-defendants, could be liable for uninsured damages in an amount that, while not significant when evaluated against either our assets or current and expected level of annual earnings, could be material when judged against our earnings in the particular quarter in which any such damages arose, if at all. However, based upon our preliminary evaluation of the matter, we do not believe we are likely to incur material damages, if at all, since, among others: (i) the amount of any potential damages remains highly speculative at this stage of the proceedings; (ii) we do not believe as a matter of law we should be characterized as Ms. Barahona's employer; (iii) any settlement will be properly apportioned between all named defendants and Radiant and DBA will not exclusively fund the settlement; (iv) wage and hour class actions of this nature typically settle for amounts significantly less than plaintiffs' demands because of the uncertainly with litigation and the difficulty in taking these types of cases to trial; and (v) Plaintiff has indicated her desire to resolve this matter through a mediated settlement. "Plaintiff recently admitted in a report to the court that she is unable to prosecute the case because the payroll and personnel records she needs are in the possession of Tri-State and/or Accountabilities, and the case has been stayed as to them pending resolution of their chapter 11 bankruptcy proceedings. In January 2016, the court held a status conference, which has since been continued until October 31, 2016 so the parties can attempt to obtain the necessary documents. DBA and Radiant are currently attempting to obtain the necessary records through the Tri-State and Accountabilities' Trustee. At this time, we are unable to express an opinion as to the likely outcome of the matter." SAMSUNG ELECTRONICS: Sued Over Exploding Galaxy Note 7 Smartphone ----------------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that Samsung Electronics Co. was sued on Sept. 16 by a Florida man who said he suffered severe burns after his Galaxy Note 7 smartphone exploded in his front pants pocket. The lawsuit by Jonathan Strobel may be the first in the United States by a Samsung phone user against the South Korean company over a battery defect linked to the Note 7. It was filed one day after Samsung recalled about 1 million Note 7s sold in the United States. Samsung has received 92 reports of batteries overheating in the United States, including 26 reports of burns and 55 reports of property damage, U.S. safety regulators said. "We don't comment on pending litigation," Samsung spokeswoman Danielle Meister Cohen said in an email. "We are urging all Note 7 owners to power their device down and exchange it immediately." Mr. Strobel, 28, of Boca Raton, said he was in a Costco store in Palm Beach Gardens on Sept. 9 when his Note 7 exploded. He said the phone burned directly through his pants, resulting in severe burns on his right leg. Mr. Strobel said he was also severely burned on his left thumb, after he reached over to try to remove the phone from his pants. "He has a deep second-degree burn, roughly the size of the phone, on his right thigh," Mr. Strobel's lawyer Keith Pierro said. "Unfortunately for my client the recall came too late." The lawsuit seeks unspecified damages for medical bills, lost wages, pain and suffering, and other alleged injuries. It was filed in a Florida state court in Palm Beach County. The case is Strobel v Samsung Electronics America Inc et al, Florida Circuit Court, 15th Judicial District, Palm Beach County. SCHWABE NORTH: "Sonner" Seeks Certification of Multi-State Class ---------------------------------------------------------------- The Plaintiff in the lawsuit entitled KATHLEEN SONNER on Behalf of of Herself and All Others Similarly Situated v. SCHWABE NORTH AMERICA, INC. and NATURE'S WAY PRODUCTS, LLC, Case No. 5:15-cv- 01358-VAP-SP (C.D. Cal.), moves for an order certifying this grouping of states for violations of each state's respective consumer laws (the "Multi-State Class"): All persons who purchased in California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York and Washington, Defendant's Ginkgold and Ginkgold Max products from July 7, 2011, until the date notice is provided to the Class ("class period"). Excluded from the proposed Class are Defendant, its officers, directors and employees, and those who purchased Ginkgold or Ginkgold Max for the purpose of resale. In the alternative, the Plaintiff seeks certification of this California-only class (the "California Class") for violations of California's Unfair Competition Law and Consumers Legal Remedies Act: All persons who purchased in California, Defendant's Ginkgold and Ginkgold Max products from July 7, 2011, until the date notice is provided to the Class ("class period"). Excluded from the proposed Classes are the Defendant, its officers, directors and employees, and those who purchased Ginkgold or Ginkgold Max for the purpose of resale. Ms. Sonner also seeks certification of her claims for breach of express warranty on behalf of the California Class. Ms. Sonner also seek for an order appointing her as Class Representative and appointing Timothy G. Blood, Esq., of the law firm of Blood Hurst & O'Reardon, LLP, as Class Counsel. The Court will commence a hearing on January 9, 2017, at 2:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=WBCwsRRg The Plaintiff is represented by: Timothy G. Blood, Esq. Thomas J. O'Reardon II, Esq. Paula R. Brown, Esq. BLOOD HURST & O'REARDON, LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com toreardon@bholaw.com pbrown@bholaw.com - and - Todd D. Carpenter, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 756-6994 Facsimile: (619) 756-6991 E-mail: tcarpenter@carlsonlynch.com SLATER & GORDON: Faces Class Action Over Quindell Purchase ---------------------------------------------------------- The Financial Times reports that Slater & Gordon, the Australian- listed law firm, plans to sue Watchstone Group following its disastrous GBP673 million acquisition of the UK company's professional services arm last year. The Melbourne-based law firm booked an A$879.5 million impairment charge in the year to the end of June related to the purchase and is now battling to cut its A$680m net debt burden. Slater & Gordon also faces a class action law suit from investors related to the acquisition, which took place when Watchstone -- an insurance and technology group -- was known as Quindell. S&G told the Australian Securities and Exchange Commission on Sept. 19 that it intended to bring claims against Watchstone arising from its purchase of Quindell's professional services division. S&G did not reveal the basis for the claims but said GBP50 million of the purchase price for Quindell, which is held in an escrow account, may not be released unless the claims are resolved. Ian Ramsey, professor of law at Melbourne University, said it was possible that S&G would argue they were misled by Quindell at the time of the acquisition. But there is also an obligation on companies to engage in sound legal and commercial due diligence, he said. "It's hard to predict where all of this will end up when and if it gets into the court," said Mr. Ramsey. Watchstone said on Sept. 19 it "does not believe that there are grounds for a claim to be brought and will defend it robustly". "Watchstone conducted a professional and transparent disposal process of the professional services division assisted and advised by leading specialists. In addition, Watchstone allowed Slater & Gordon the opportunity to complete an extensive and detailed due diligence process with the assistance and advice of a similarly specialist team," it said. Not long after S&G made the purchase, Quindell came under investigation by the UK's Serious Fraud Office for its historic business and accounting practices. When S&G announced its acquisition of Quindell's professional services arm and raised A$890 million equity from investors, the law firm said it would be "transformational" for the group. But the acquisition soon began to unravel and in November S&G experienced a further blow when the UK government flagged plans to limit the number of personal injury claims. S&G announced a net loss of A$1 billion in the 12 months to June, compared with net profit of A$62.4 million the previous year. In May, S&G reached a deal with lenders on its debt repayment schedule. At its full-year result in August, the company said its performance in the six months to June 30 was more encouraging as its turnround of its UK business began to bear fruit. Maurice Blackburn, which has initiated a class action law suit against S&G, said the announcement of legal action by S&G cast doubt on the firm's due diligence on Quindell. "Slater and Gordon has on a number of occasions told the market that it conducted extensive due diligence for the Quindell purchase and did not rely solely on Quindell's accounts," said Lee Taylor, special counsel for Maurice Blackburn. "The problems that have emerged so far -- and there are many -- might just be the tip of the iceberg." SN SERVICING: Faces "Tran" Suit in Eastern District of Penn. ------------------------------------------------------------ A lawsuit has been filed against SN Servicing Corporation. The case is titled CHUONG VAN TRAN and TUYET HONG NGUYEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, v. SN SERVICING CORPORATION, MV051, LLC, and DOES 1-10, INCLUSIVE, the Defendants, Case No. 2:16-cv-05048-JS (E.D. Penn., Sept. 21, 2016). The assigned Judge is Hon. Juan R. Sanchez. SN Servicing engages in the management and sale of real estate owned properties in the United States. The Plaintiffs are represented by: Arkady Eric Rayz, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364 5030 Facsimile: (215) 364 5029 E-mail: erayz@kalraylaw.com SQUARE INC: Court Dismisses "White" Amended Complaint ----------------------------------------------------- District Judge Jon S. Tigar of the United States District Court for the Northern District of California granted with prejudice Defendant's motion to dismiss the Second Amended Complaint in the case captioned, ROBERT E. WHITE, Plaintiff, v. SQUARE, INC., Defendant, Case No. 15-CV-04539-JST (N.D. Cal.). Defendant Square provides a service which enables individuals and businesses "to accept electronic payments without themselves directly opening up a merchant account with any Visa or MasterCard member bank." Plaintiff Robert E. White is the principal of a law firm and "actively practices bankruptcy law on behalf of his creditor clients." On October 1, 2015, White filed the putative class action against Square, raising a single claim under California's Unruh Civil Rights Act. On December 21, 2015, White filed a First Amended Complaint (FAC), seeking to represent a class of "all Persons -- other than persons who fall within Category 1 of Section 6 -- who have ever had their Accommodations terminated by Square based on their violation of Section 6 or who have ever been dissuaded from seeking Accommodations from [Square] based on their unwillingness to violate Section 6." On April 19, 2016, the Court granted Square's motion to dismiss the FAC concluding that "California case law requires the Court to grant Square's motion to dismiss because Plaintiff has not sufficiently pleaded statutory standing under the Unruh Act." On April 29, 2016, White filed his Second Amended Complaint (SAC). White alleges that "there are several hundred thousand Class members." Because the minimum statutory damage award under the Unruh Act is $4,000, Cal. Civ. Code Sec. 52, White has pleaded that the amount in controversy exceeds $5,000,000, as required by 28 U.S.C. 1332(d)(2). In his Order dated September 14, 2016 available at https://is.gd/DXpGrV from Leagle.com, Judge Tigar held that White did not have statutory standing to sue Square under the Unruh Act because White did not "allege that he attempted to subscribe to Square's services," but instead "merely alleged that became aware of Square's policy and was then dissuaded from seeking to become a Square customer." Robert E. White is represented by William McGrane, Esq. -- william.mcgrane@mcgranepc.com -- MCGRANE PC Robert E. White is represented by: Frank R. Ubhaus, Esq. BERLINER COHEN LLP Berliner Cohen LLP 10 Almaden Blvd Fl 11 San Jose, CA 95113 Tel:(408) 286-5800 Square, Inc. is represented by Colleen Bal, Esq. -- cbal@wsgr.com -- David H. Kramer, Esq. -- dkramer@wsgr.com -- and Sara Elizabeth Rowe, Esq. -- srowe@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI STANDARD INNOVATION: Faces Class Action Over We-Vibe Vibrator ------------------------------------------------------------- Don Crothers, writing for Inquisitr, reports that a Canadian sex toy manufacturer, Standard Innovation, is being sued by an Illinois woman known only as N.P. for "monitoring and recording" her "intimate details . . . in real time" while using the device. According to a report from Vocativ, the woman first purchased a We-Vibe Rave "smart" vibrator from an Illinois retailer in May for $130. The We-Vibe connects to the user's smartphone, allowing them to customize their experience and unlock "bonus" vibration patterns that can only be triggered by linking the vibrator to the smartphone app, including "cha-cha-cha" and "crest." The app can also be used to create "playlists" and can even pair with another user over the internet, allowing partners to "connect and play together from anywhere in the world." N.P. bought her We-Vibe Rave and used it "several times," until a pair of hackers known as "followr" and "g0ldfisk" told an audience at the Defcon hacking convention that smart vibrators actually gather a lot of information about their users -- and transmit it back home; they discovered the volume of data when they were looking for security vulnerabilities in the device to exploit. According to Motherboard, smart sex toys have been hacked before, and the data they were broadcasting collected. After the conference, a spokesperson for Standard Innovation indicated that they would clarify their terms and conditions to make it more plain that "mostly anonymized" data was being collected for "market research," and would offer vibrator end- users a chance to pull out. Standard Innovation followed this up with a post detailing their "commitment to customer privacy and security" on their website. N.P. wasn't satisfied. Or possibly it was just too little, too late. According to Courthouse News, she filed a five-complaint suit against Standard Innovation in the U.S. District Court for the Northern District of Illinois under the Federal Wiretap Act and the Illinois Eavesdropping Statute, in addition to alleging consumer fraud, unjust enrichment, and intrusion upon seclusion -- all as a class-action lawsuit potentially representing tens of thousands of customers. The complaint indicates that the company neglected to mention "that it transmits the collected private usage information to its servers in Canada." "Intimate details [are revealed] including the date and time of each use, the vibration intensity level selected by the user, the vibration mode or pattern selected by the user, and incredibly, the email address of We-Vibe customers." "[Standard Innovation's] conduct demonstrates a wholesale disregard for consumer privacy rights and violated numerous state and federal laws." N.P. is seeking both an immediate injunction for Standard Innovation to plug the leak and an unspecified amount in punitive damages. Standard Innovation says that the information was collected purely for market research and product development, and say that the information was both protected and not sold for profit. "There's been no allegation that any of our customers' data has been compromised. However, given the intimate nature of our products, the privacy and security of our customers' data is of utmost importance to our company. Accordingly, we take concerns about customer privacy and our data practices seriously." "This is one of the most incredible invasions of privacy we've ever dealt with," said Eve-Lynn Rapp -- erapp@edelson.com -- one of the attorneys with Edelson PC in Chicago, who are handling the case. As of their last comment, Standard Innovation indicated that they could not comment on the suit itself as they had not yet been served. SWITRONIX INC: Faces "Klein" Suit in New York Supreme Court ----------------------------------------------------------- A lawsuit has been filed against Switronix, Inc. The case is captioned KLEIN, ARTHUR, INDIVIDUALLY AND AS A SHAREHOLDER OF SWITRONIX, INC. ON BEHALF OF HIMSELF AND ALL OTHER SHAREHOLDERS OF SWITRONIX, INC., SIMILARLY SITUATED, AND IN THE RIGHT OF NOMINAL DEFENDANT SWITHRONIX, INC., the Plaintiff, v. KANAREK, ROSS, and SWITRONIX, INC., the Defendants, Case No. 6795/2016 (N.Y. Sup. Ct., Sep 21, 2016). The assigned Judge is Hon. Timothy S. Driscoll. Switronix supplies batteries and charging solutions in the professional film and video industry. The Plaintiff is represented by: SALTZMAN CHETKOF ROSENBERG LLP 300 Garden City Plaza no. 130, Garden City, NY 11530, Telephone: (516) 873 7200 The Defendants are represented by: OTTERBOURG, PC 230 Park Ave New York, NY 10169 Telephone: (212) 661 9100 E-mail: info@otterbourg.com SYNGENTA AG: Status Hearing in MIR162 Corn MDL Set for October 4 ---------------------------------------------------------------- The parties in the multidistrict litigation captioned In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md-02591-JWL-JPO, presented argument regarding the Producer Plaintiff's motion to certify class, according to a minute sheet in a hearing held before the Hon. John W. Lungstrum. The U.S. District Court for the District of Kansas takes this matter under advisement and will issue a written order, according to the Minute Sheet. The Court schedules a follow up status conference for October 4, 2016, at 9:00 a.m. The cases in the litigation concern the Syngenta Defendants' decision to allegedly commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. The Plaintiffs allege that corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. A copy of the Minute Sheet is available at no charge at http://d.classactionreporternewsletter.com/u?f=qMJOAVSR The Plaintiff is represented by: Patrick Stueve, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7110 E-mail: stueve@stuevesiegel.com - and - Don Downing, Esq. GRAY, RITTER & GRAHAM, P.C. 701 Market Street, Suite 800 St. Louis, MO 63101 Toll Free: (888) 743-4054 Telephone: (314) 732-0728 Facsimile: (314) 241-4140 E-mail: ddowning@grgpc.com - and - William Chaney, Esq. GRAY REED & MCGRAW, P.C. 1601 Elm Street, Suite 4600 Dallas, TX 75201 Telephone: (469) 320-6031 E-mail: wchaney@grayreed.com - and - Scott Powell, Esq. HARE WYNN NEWELL & NEWTON 2025 3rd Ave. North, Suite 800 Birmingham, AL 35203 Telephone: (205) 328-5330 Facsimile: (205) 324-2165 E-mail: scott@hwnn.com - and - Daniel Gustafson, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Facsimile: (612) 339-6622 E-mail: dgustafson@gustafsongluek.com The Defendants are represented by: Thomas P. Schult, Esq. BERKOWITZ OLIVER WILLIAMS SHAW & EISENBRANDT LLP 2600 Grand Boulevard, Suite 1200 Kansas City, MO 64108 Telephone: (816) 561-7007 Facsimile: (816) 561-1888 E-mail: tschult@berkowitzoliver.com - and - Edwin John U, Esq. Michael D. Jones, Esq. Patrick Philbin, Esq. Ragan Naresh, Esq. KIRKLAND & ELLIS LLP 655 15th Street N.W., Suite 1200 Washington, DC 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 E-mail: edwin.u@kirkland.com mjones@kirkland.com patrick.philbin@kirkland.com ragan.naresh@kirkland.com TH HEALTHCARE: Nurse Files Class Action Over Unpaid OT Wages ------------------------------------------------------------ Philip Gonzales, writing for SE Texas Record, reports that a nurse has filed a class-action lawsuit against a medical care provider alleging she is owed overtime compensation. Amber Li filed a complaint on behalf of all others similarly situated on July 26 in the Houston Division of the Southern District of Texas against TH Healthcare LTD, doing business as Park Plaza Hospital, alleging that the medical care provider violated the Fair Labor Standards Act. According to the complaint, the plaintiff alleges that she regularly worked for more than 40 hours per week without receiving full compensation for those extra hours. The plaintiff holds TH Healthcare LTD responsible because the defendant allegedly also failed to take into account all remunerations when calculating the regular hourly and overtime rates. The plaintiff requests a trial by jury and seeks compensation for all unpaid overtime wages, an equal amount as liquidated damages, attorneys' fees, costs, and expenses and such other relief to which she may be entitled. She is represented by Todd Slobin -- tslobin@eeoc.net -- and Ricardo J. Prieto -- rprieto@eeoc.net -- of Shellist | Lazarz | Slobin LLP in Houston. Houston Division of the Southern District of Texas Case number 4:16-cv-02229 TIME WARNER: Court Upholds Set-Top Box Class Action Dismissal ------------------------------------------------------------- Alexis Kramer, writing for Bloomberg BNA, reports that a federal appellate court Sept. 2 upheld a lower court's dismissal of an antitrust lawsuit claiming that Time Warner Inc. illegally required customers of premium cable channels to lease set-top boxes from the company (In re Time Warner Inc. Set-Top Cable Television Box Antitrust Litig., 2d Cir., No. 11-02512, 9/2/16 ). The plaintiffs in the class action case didn't sufficiently allege that the cable services and set-top boxes were in separate product markets and that Time Warner had market power over premium cable services, the U.S. Court of Appeals for the Second Circuit ruled in a 2-1 decision. They failed to show "consumers are coerced into 'leasing' set-top boxes from Time Warner that they would otherwise purchase elsewhere," the court said. The decision comes as the Federal Communications Commission continues to work on a plan to open the set-top box market to competition. The agency's March proposal would require pay-TV providers to deliver three core information streams to parties that make alternatives to traditional set-top boxes (2016 TLN 6, 3/1/16). Equipment manufacturers, app developers or other parties would then have access to those information streams through open technical standards. The FCC may be considering a revised approach after receiving criticism from lawmakers, the cable industry and the copyright community (2016 TLN 9, 9/1/16). Time Warner spokesman Justin Venech told Bloomberg BNA the company is pleased with the decision. Robert I. Harwood -- rharwood@hfesq.com -- senior partner at Harwood Feffer LLP in New York, who represented the plaintiffs in the case, said that "Judge Droney got it right," referring to Judge Christopher F. Droney's dissenting opinion. Same Market Subscribers of Time Warner's cable services alleged that tying premium cable channel subscriptions to the leasing of set-top boxes violated the Sherman Act, 15 U.S.C. Sec. 1. A federal district court in New York dismissed the plaintiffs' third amended complaint because it failed to allege anti-competitive effects. A tying arrangement is an agreement in which a party will sell a product only on the condition that the buyer also purchase a different product. To state a claim under the Sherman Act over a tying arrangement, a plaintiff must show that the two products are separate, and that the seller has sufficient market power over the tying product. The Second Circuit said the plaintiffs failed to allege that set- top boxes and cable services are sold separately in the U.S. The court rejected their argument that Time Warner doesn't manufacture its own set-top boxes, and that set-top boxes are sold separately outside the country. Time Warner's lack of manufacturing operations doesn't address consumer demand, the court said. The plaintiffs didn't allege that the foreign set-top box markets were sufficiently similar to the U.S. market, it also said. The court said the FCC's failure as of yet to separate set-top boxes from the cable services they deliver "bolsters our conclusion that the plaintiffs have not plausibly alleged separate product markets." Also, the plaintiffs failed to plead market power over premium cable services, the court said. The plaintiffs alleged that Time Warner has power over the market for basic cable, but they alleged no facts showing Time Warner's share of the market for premium services, it said. Harwood Feffer LLP represented the plaintiffs. Latham & Watkins LLP represented Time Warner. TRANSWORLD SYSTEMS: Faces "Orzel" Suit in E.D. of New York ---------------------------------------------------------- A lawsuit has been filed against Transworld Systems Inc. The case is captioned Usher Orzel, on behalf of himself and all others similarly situated, the Plaintiff, v. Transworld Systems Inc., the Defendant, Case No. 1:16-cv-05251 (E.D.N.Y., Sept. 21, 2016). Transworld Systems provides accounts receivable, debt recovery, and past due accounts services for businesses, medical companies, and dental companies. The Plaintiff is represented by: Alan J Sasson, Esq. LAW OFFICE OF ALAN J. SASSON, P.C. 2687 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Telephone: (718) 339 0856 Facsimile: (347) 244 7178 E-mail: alan@sassonlaw.com TROPICAL SMOOTHIE: 66 Hepatitis Cases Linked to Virginia Cafes -------------------------------------------------------------- Becca Mitchell, writing for WTKR, reports that according to the Virginia Department of Health there are now 66 confirmed cases of hepatitis A that are connected to frozen strawberries from Egypt used at Tropical Smoothie Cafes across Virginia. The VDH says onsets of the illness for the 66 cases range from early May through August. Previously, Department of Health said that only people who consumed smoothies with frozen strawberries from Tropical Smoothie Cafe on August 5, 6, 7 or 8 may be at risk. "Onsets of illness for the 40 cases range from early May through mid-August. The common exposure shared by ill persons was not hypothesized until August, at which time VDH re-interviewed persons reported earlier in the year to confirm the link with smoothie consumption," VDH said in a statement on their website. Of the 66 confirmed cases, 13 are in the Eastern region of Virginia that includes Hampton Roads, 37 are in the Northern region, 10 are in the Northwest and six are in the Central region The 66 ill residents range in age from 14-68. Approximately 42% of the residents have been hospitalized for their illness. Tropical Smoothie Cafe voluntarily withdrew all of the strawberries sourced from Egypt and found an alternate supply. A class action class action lawsuit representing all of the victims of the outbreak has been filed. UNITED AUTO: Vinny's Landscaping Suit Survives Dismissal Bid ------------------------------------------------------------ District Judge Sean F. Cox of the United States District Court for the Eastern District of Michigan denied Defendants' motion to dismiss the complaint in the case captioned, Vinny's Landscaping, Inc., Plaintiff, v. United Auto Credit Corporation, et al., Defendants, Case No. 16-10275(E.D. Mich.). In the putative class action, Plaintiff Vinny's Landscaping, Inc., (Plaintiff) alleges that Defendants violated the Telephone Consumer Protection Act (the TCPA), 47 U.S.C. Sec. 227, as amended by the Junk Fax Prevention Act of 2005 by sending an unsolicited facsimile advertisement to Plaintiff and a class of similarly situated persons. Plaintiff Vinny's Landscaping Inc. brings the TCPA suit against the following defendants: (1) United Auto Credit Corporation (UACC); (2) United Panam Financial Corp. (UPFC); (3) Unitas Holdings Corp. (UHC); and (4) John Does 1-10. Plaintiff alleges that, on or about December 5, 2012, Defendants transmitted by telephone facsimile machine an unsolicited facsimile to Plaintiff. Plaintiff alleges that Defendants did not have Plaintiff's prior invitation or permission to send advertisements to Plaintiff's fax machine. In lieu of filing an Answer, Defendants UACC, UPFC and UHC filed the instant Motion to Dismiss. Defendants argue that Plaintiff's complaint against all defendants fails as a matter of law because the challenged fax is not an advertisement. Defendants also argue that, even if the fax at issue is an advertisement, Plaintiff has failed to sufficiently allege that the bank holding defendants, UPFC and UHC, are the "senders" of the fax as is required under the TCPA. In his Opinion and Order dated September 14, 2016 available at https://is.gd/ZnfTUE from Leagle.com, Judge Cox found that Plaintiff's allegations, taken together with the Fax at issue, are sufficient to withstand dismissal at the 12(b)(6) stage. Defendants' dismissal request on Plaintiff's complaint on the basis that the fax is not an advertisement as a matter of law is denied. Vinny's Landscaping, Inc. is represented by Ross M. Good, Esq. -- jesse.goodman@grandroundshealth.com -- ANDERSON WANCA Vinny's Landscaping, Inc. is represented by Ryan M. Kelly, Esq. -- RKelly@andersonwanca.com -- and Brian J. Wanca, Esq. -- BWanca@andersonwanca.com -- ANDERSON & WANCA United Auto Credit Corporation and United Auto Credit Corporation are represented by Bradley Joseph Andreozzi, Esq. -- bradley.andreozzi@dbr.com -- DRINKER BIDDLE & REATH LLP -- Daniel J. Ferris, Esq. -- dferris@kerr-russell.com -- and Fred K. Herrmann, Esq. -- fherrmann@kerr-russell.com -- KERR, RUSSELL UNITED HEALTHCARE: Faces "Frisk" Suit Seeking OT Pay Under FLSA --------------------------------------------------------------- Holly Frisk, Susan Marie Caruso, and Medina Yasin, individually and on behalf of all others similarly situated, Plaintiffs, v. United HealthCare, Inc., Defendant, Case No. 2:16-cv-14411-KAM (S.D. Fla., September 20, 2016), alleges that Plaintiffs were denied overtime pay required under the Fair Labor Standards Act. United HealthCare, Inc. provides managed care to customers, including medical assistance and long term care for eligible enrollees under the Medicaid program. The Plaintiffs are represented by: Jeremiah J. Talbott, Esq. JEREMIAH J. TALBOTT, P.A. 900 East Moreno St. Pensacola, FL, 32503 Phone: (850) 437-9600 Fax: (850) 437-0906 E-mail: jjtalbott@talbottlawfirm.com - and - Sean Culliton, Esq. SEAN CULLITON, ESQ., LLC 150 John Knox Road Tallahassee, FL 32303 Phone: (850) 385-9455 Fax: (813) 441-1999 E-mail: Sean.Culliton@gmail.com - and - John C. Davis, Esq. LAW OFFICE OF JOHN C. DAVIS 623 Beard St. Tallahassee, FL 32303 Phone: (850) 222-4770 Fax: (850) 222-3119 E-mail: john@johndavislaw.net UNITED STATES: 9th Cir. Reverses Atty. Fees Ruling in "Wood" Case ----------------------------------------------------------------- Circuit Judge M. Margaret McKeown of the Court of Appeals, Ninth Circuit, reversed a trial court's order denying the Wood plaintiffs' motion for attorneys' fees on the ground that they were not the "prevailing party" and remanded case for further proceedings in the case captioned, FLINT WOOD; PHONESAGNAM SILIVONGXAY; CYNTHIA ROBERTS; FLISHA MUMAW, on behalf of themselves and all others similarly situated, Plaintiffs- Appellants, v. SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services, Defendant- Appellee, Case No. 14-15356 (9th Cir.). This appeal is the latest in a decade-long conflict over the cost of copayments and medication for low-income Arizonans who qualify for a state Medicaid demonstration project covering childless adults. The sole issue is whether the members of a class action suit against the Secretary of the Department of Health and Human Services ("DHHS" or the "Secretary") were the "prevailing part[ies]" for purposes of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. In 2000, Arizona voters opted to expand the Arizona Medicaid demonstration program to cover low-income childless adults who would not otherwise be eligible for Medicaid. Arizona applied to the Department of Health and Human Services (DHHS) to create a project for eligible adults to receive health services with nominal copayments. Under this plan, healthcare providers could not refuse services because of an inability to pay. DHHS approved the demonstration project in 2001. With DHHS approval, Arizona modified the program in 2003 to include higher copays (the Copayment Rule) and to permit healthcare providers to refuse services for inability to pay. A group of affected individuals filed suit in federal court challenging the modified program (Newton-Nations v. Rodgers, No. CV-03-2506-PHX-EHC (D. Ariz. Mar. 29, 2010)). On appeal, the Appeals Court determined that the Secretary's approval of the Copayment Rule violated the Administrative Procedure Act. Thus, the Secretary's decision was arbitrary and capricious within the meaning of the APA insofar as it entirely failed to consider an important aspect of the problem." When the first demonstration project expired in 2011, Arizona sought approval for a new demonstration project, which also included the Copayment Rule. DHHS approved the new project through 2016, although the Copayment Rule expired in 2013. At around the same time that the new project was approved, the Appeals Court remanded the Newton-Nations case to the district court with an order to vacate and remand to the Secretary for further consideration. On remand, the district court dismissed the case as moot because of the intervening 2011-2016 demonstration project, a dismissal the Court affirmed on appeal, and awarded the plaintiffs attorneys' fees under the Equal Access to Justice Act (EAJA). In 2012, the Wood plaintiffs, who were recipients of health coverage under the Arizona Medicaid demonstration project, filed suit on essentially the same grounds as the Newton-Nations plaintiffs against the Secretary of the Department of Health and Human Services (DHHS or the Secretary). The complaint challenged her approval of a new Arizona project that raised copayments for medical visits and medications and that permitted healthcare providers to refuse non-emergency services based on an inability to pay. The complaint alleged that the Secretary once again failed to review or analyze a number of issues related to the Copayment Rule, such as whether it was justified by any ground other than cost-saving. The plaintiffs sought declaratory and injunctive relief under the Due Process Clause of the Fourteenth Amendment, the APA, and the Social Security Act ("SSA"). They requested that the Secretary be enjoined from implementing the Copayment Rule, but did not specifically request a remand to the agency. The district court denied the Wood plaintiffs' motion for a preliminary injunction because the court determined that it could not enjoin the Copayment Rule without enjoining the entire demonstration project, a remedy that the plaintiffs did not seek. In 2013, the district court partially granted the plaintiffs' motion for summary judgment and remanded for the Secretary to address the deficiencies in her approval of the 2011 demonstration project. According to the district court, the Secretary's approval of the new demonstration project was arbitrary and capricious in violation of the APA. Upon remand and reconsideration, the Secretary came to the same conclusion as before and approved the 2011-2016 demonstration project in a letter dated April 8, 2013 reasoning that that in the letter "the Secretary explained her rationale for disagreeing with the substance of the Wood plaintiffs' evidence" and "was not required to do more," the court granted the Secretary's motion for summary judgment. The district court later denied the Wood plaintiffs' motion for attorneys' fees under the EAJA on the ground that they were not the "prevailing party." On appeal, the Wood plaintiffs alleged that the government acted improperly in not following prescribed administrative review. The government points to two factors that it contends alter the prevailing party analysis: (1) the Wood plaintiffs obtained procedural relief, but not the substantive relief they sought; and (2) the district court remanded to the agency without vacatur, while retaining jurisdiction. The Appeals Court disagrees with the government's claim that this "procedural posture made all the difference." In her Opinion dated September 14, 2016 available at https://is.gd/GDXgD1 from Leagle.com, Judge McKewon concluded that the district court erred as a matter of law in holding that the Wood plaintiffs were not a prevailing party because the posture of the case did not fundamentally affect the prevailing party inquiry set out in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604-05 (2001) pointing that a fee-seeking party must show that (1) there has been a material alteration in the legal relationship of the parties and (2) it was judicially sanctioned. The retention of jurisdiction for practical and equitable reasons did not undermine the reality that the Wood plaintiffs were a prevailing party. The remand was not interim relief, but rather represented success on the APA challenge. The Appeals Court held that the Wood plaintiffs are entitled to prevailing party status with respect to the February 6, 2013 order remanding the approval of the Medicaid demonstration project to the Secretary. The Court remanded the action to the district court to consider whether the government's position was "substantially justified" under the EAJA. Flint Wood, et al. are represented by Richard Rothschild, Esq. -- rrothschild@wclp.org -- WESTERN CENTER ON LAW AND POVERTY -- Jane Perkins, Esq. -- perkins@healthlaw.org -- NATIONAL HEALTH LAW PROGRAM Sylvia Mathews Burwell, et al. are represented by: Sushma Soni, Esq. Michael Jay Singer, Esq. Appellate Staff US Department of Justice 950 Pennsylvania Ave., NW Room 7519 Washington, DC 20530 Tel: (202)305-1754 -- and -- John S. Leonardo, Esq. UNITED STATES ATTORNEY Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 Tel:(602) 514-7500 USA TECHNOLOGIES: Expects Appeals Court to Remand Suit ------------------------------------------------------ USA Technologies, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 13, 2016, for the fiscal year ended June 30, 2016, that it is anticipated that a Court of Appeals will remand a class action lawsuit to the District Court pending the District Court's ruling on the plaintiff's Motion For Relief From Final Judgment with the District Court. On October 1, 2015, a purported class action was filed in the United States District Court for the Eastern District of Pennsylvania against the Company and its executive officers alleging violations under the Securities Exchange Act of 1934. On December 15, 2015, the court appointed a lead plaintiff, and on January 18, 2016, the plaintiff filed an amended complaint that set forth the same causes of action and requested substantially the same relief as the original complaint. On February 1, 2016, the Company filed a motion to dismiss the amended complaint. On April 11, 2016, the Court held oral argument on the Company's motion, and on April 14, 2016, the Court issued an order granting the Company's motion to dismiss the amended complaint without leave to amend. On May 13, 2016, the plaintiff appealed the Court's order to the United States Court of Appeals for the Third Circuit. On August 16, 2016, the plaintiff filed a Motion For Relief From Final Judgment with the District Court seeking an order modifying the District Court's April 14, 2016, order dismissing the complaint, and permitting the plaintiff to now file an amended complaint due to alleged newly discovered evidence. By Order dated September 6, 2016, the District Court found that the Motion raised a substantial issue, and directed the plaintiff to notify the Court of Appeals thereof. On September 7, 2016, the plaintiff so notified the Court of Appeals. It is anticipated that the Court of Appeals will remand the case to the District Court pending the District Court's ruling on the Motion. The Company's response to the Motion was due by no later than September 15, 2016. The Company believes that the Motion has no merit and intends to vigorously oppose the Motion. UTOPIA HOME: Worker Appeals Class Certification Denial ------------------------------------------------------ Kathleen McGuire Gilbert, writing for Legal Newsline, reports that Magistrate Judge Steven Locke of the Eastern District New York, recently denied conditional certification under the Fair Labor Standards Act (FLSA) in the Cowell v. Utopia Home Care case. This decision prevents the Utopia Home Care employees from filing a class action suit and potentially changes the legal landscape in the New York home health industry. The plaintiff has already filed an appeal. The plaintiff's attorneys argued that up to 5,000 home health aides and personal care attendants should be able to participate in a class action suit to collect unpaid wages. The wages in question would have represented hours worked and overtime pay for a three-year period prior to the implementation of the U.S. Department of Labor's final rule on application of the FLSA to domestic service workers, which eliminated overtime exemptions for home care workers. The rule was released in January 2015 but did not take effect until Oct. 13, 2015. "Essentially, it's one of the first, if not the first, decision specifically addressing the companionship services exemption at the conditional certification stage where a court declined to conditionally certify a group of home health aides," Phil Davidoff, a member of the defendant's legal team, told Legal Newsline. The decision hinged on the proportion of time that a home health worker spent on tasks that fell outside the companionship work exemption -- general household work considered unrelated to patient care. In order to consider an employee to be outside of the companionship services exemption, the employee would need to have spent more than 20 percent of the work week performing general household work. "What we argued, and what the court accepted, is that even the household work that they say these employees performed was related to the care of the patient, because it's in the plan of care," Mr. Davidoff said. "And if the plan of care said 'make the bed,' that's related, by definition, to the care of the patient." Plans of care are detailed documents that reflect both the patient's condition and available resources. A patient with mobility problems and little or no family support, for example, might well have a plan of care that includes assistance keeping the bathroom clean. Another patient with more severe problems but family members willing to maintain the home might have a care plan without any housework included. "For an individual plaintiff, you have to look at the condition of the house, other family members who are there . . . it involves very fact-specific, individualized assessments," Mr. Davidoff said. Because every household and every patient differ, a class action suit would not foster judicial efficiency, the defendant argued. "That's what the court agreed with," Mr. Davidoff said. Traditionally, it had been assumed under federal law that home care aides were exempt from overtime pay. "For the most part, that assumption was correct," Mr. Davidoff said. Cases like this one involve actions that happened before the Department of Labor changed the FLSA guidelines in 2015. The statute of limitations is up to three years on the federal law and up to six years in New York, creating a potentially lucrative window of opportunity. In the wake of the change removing the companionship services exemption, a large number of class action suits would have been likely. The decision therefore strikes a blow to plaintiffs seeking past compensation, as well as to their attorneys, as the courts must evaluate each plaintiff's case individually. "It's in the interest of plaintiffs attorneys to get the larger class, because that's obviously going to be more lucrative for them," Mr. Davidoff said. VCA ANTECH: Wins Bid for Summary Judgment in "Graham" Suit ---------------------------------------------------------- The Hon. Christina A. Snyder granted the Defendants' motion for summary judgment filed in the lawsuit styled TONY M. GRAHAM v. VCA ANTECH, INC., et al., Case No. 2:14-cv-08614-CAS-JC (C.D. Cal.). The Plaintiffs' motion for class certification is denied as moot. In their complaint, the Plaintiffs allege that the Defendants, who own and operate over 600 veterinary facilities in 41 states, "engaged in a scheme of charging bogus fees to illegally upcharge" their customers for veterinary boarding services. Specifically, the Plaintiffs allege that the Defendants routinely imposed fraudulent "Biohazard Waste Management" fees in a "guise that is designed . . . to imply," among other things, that "the surcharges are government mandated or required." In the civil minutes, Judge Snyder explains that as to Plaintiff Elizabeth P. Brockwell, her common law claims fail because her testimony demonstrates that she never actually noticed the Bio Fee on her invoices and never discussed the Fee with VCA; accordingly, any misrepresentation regarding the fee cannot be the cause of her decision to treat her pet at VCA. Judge Snyder adds that Mr. Graham's claims of deceit and fraud fail because the Oklahoma Consumer Protection Act's "bait and switch" provision does not apply here. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=Avjbifub VIOLIN MEMORY: Court Granted Final Approval to $7.5MM Settlement ---------------------------------------------------------------- Violin Memory, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2016, for the quarterly period ended July 31, 2016, that a California court has granted final approval of the $7.5 million class action settlement. Beginning on November 26, 2013, four putative class action lawsuits were filed in the United States District Court for the Northern District of California naming the Company and a number of our present or former directors and officers, and the underwriters of the Company's September 27, 2013 initial public offering (the "IPO"). The four complaints were consolidated into a single, putative class action, and on March 28, 2014, the plaintiffs filed a consolidated complaint purporting to assert claims under the federal securities laws, based upon seven categories of alleged omissions, on behalf of purchasers of the Company's common stock issued in the IPO. On July 28, 2016, the court issued an order granting final approval of class settlement, judgment and order of dismissal with prejudice. The class settlement included, among other things, the establishment of a settlement fund of $7.5 million, which was disbursed as provided in the settlement agreement and the court's orders. The settlement fund was paid by the Company's insurance carrier and did not result in incurring any additional expense in the current quarter. VIRGIN AMERICA: "Bernstein" Seeks to Certify Class of Attendants ---------------------------------------------------------------- The Plaintiffs in the lawsuit titled JUILIA BERNSTEIN, LISA MARIE SMITH, and ESTHER GARCIA, on behalf of themselves and all others similarly situated v. VIRGIN AMERICA, INC.; and DOES 1 to 10, inclusive, Case No. 3:15-cv-02277-JST (N.D. Cal.), move the Court for certification of these Class and Subclasses and the appointment of class counsel: Class: All individuals who have worked as California-based flight attendants of Virgin America, Inc. at any time during the period from March 18, 2011 (four years from the filing of the original Complaint) through the date established by the Court for notice of certification of the Class (the "Class Period"). California Resident Subclass: All individuals who have worked as California-based flight attendants of Virgin America, Inc. while residing in California at any time during the Class Period. Waiting Time Penalties Subclass: All individuals who have worked as California-based flight attendants of Virgin America, Inc. and have separated from their employment at any time since March 18, 2012. The Court will commence a hearing on October 6, 2016, at 2:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=W7OGjT4m The Plaintiffs are represented by: Monique Olivier, Esq. DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 Bush Street, Suite 1800 San Francisco, CA 94104 Telephone: (415) 433-0333 Facsimile: (415) 449-6556 E-mail: monique@dplolaw.com - and - Alison Kosinski, Esq. Emily Thiagaraj, Esq. KOSINSKI + THIAGARAJ, LLP 351 California Street, Suite 300 San Francisco, CA 94104 Telephone: (415) 230-2860 Facsimile: (415) 723-7099 E-mail: alison@ktlawsf.com emily@ktlawsf.com VOLKSWAGEN AG: Lawyer Challenges Irish Court Jurisdiction --------------------------------------------------------- Peter Flanagan, writing for Bloomberg News, reports that Volkswagen AG challenged the right of an Irish court to hear a case over cheating on diesel emissions tests as it fought to keep an employee from testifying for the first time in the scandal. Paul Fogarty, a lawyer for VW, walked out of court to demonstrate that he didn't accept a judge's decision to hear evidence before the jurisdictional issue is decided. Mr. Fogarty exited as the first witness was called by lawyers representing customers that are suing the company. "The court has no jurisdiction to hear these matters," Mr. Fogarty said on Sept. 6 at the hearing in Castlebar, Mayo, in western Ireland. The case in the tiny courtroom, a three-hour drive from Dublin, has bigger significance throughout Europe, with lawyers seeking evidence that will support lawsuits against the carmaker. Hausfeld, a law firm that was involved in a U.S. class-action lawsuit against Volkswagen, is working with Irish lawyers to gather material for cases in Germany, which has limited discovery rules compared with Ireland or the U.S. A VW executive from Ireland had been scheduled to testify about an affidavit submitted in July. Judge Mary Devins resumed the hearing after Mr. Fogarty walked out and the document was instead read out in court. Uneven Recoveries "The proceedings are being progressed inappropriately," Nicolai Laude, a spokesman for Volkswagen, said in an e-mail. Volkswagen application challenging the court's jurisdiction won't be heard until Sept. 16, but in the meantime the judge went ahead with the hearing anyway, Mr. Laude said. "Volkswagen's lawyers considered this to be improper and unfair," Mr. Laude said. They also said they'd appeal. The lawyers walked out to avoid making it seem like they accepted the court had jurisdiction over the case, Laude said. European politicians and consumer groups remain unhappy about the limited compensation being offered to VW customers in the region compared with the U.S., where car owners are getting as much as $10,000 after their car is repaired or repurchased. Consumer Feedback On Sept. 5, European Union Justice and Consumer Affairs Commissioner Vera Jourova said almost all national consumer- protection organizations and authorities asked by the EU for feedback said the company hasn't provided enough information. She said she'll meet this month with the organizations, authorities and VW officials to collect more information. Michael Kremer, an attorney in Clifford Chance's Dusseldorf office, said a group of corporate trial lawyers that meet regularly to talk about litigation trends discussed the Irish VW case. Undermine German Rules "If the attempt to get more information via Ireland succeeds, it would be quite a boost for plaintiff lawyers," Mr. Kremer said. "That would practically undermine the very restrictive German rules." Volkswagen's cheating on emissions tests has reverberated across the globe since it erupted at the group's car operations a year ago. Ms. Jourova announced plans in July to work with European consumer groups and regulators to pressure the company to give payouts to affected owners. Despite Ms. Jourova's pressure, potential compensation or punishment of VW is out of her hands and up to regulators or courts. WARDEN MONMOUTH: 3rd Cir. Vacates Prior Orders in "Gayle" Case -------------------------------------------------------------- Circuit Judge Cheryl Ann Krause of the Court of Appeals, Third Circuit vacated the judgment entering injunctive relief on Appellants' individual claims and denied class certification on the ground that it was not "necessary" in view of that injunction in the case captioned, GARFIELD GAYLE; NEVILLE SUKHU; SHELDON FRANCOIS, Appellants, v. WARDEN MONMOUTH COUNTY CORRECTIONAL INSTITUTION; SCOTT A. WEBER, in his official capacity as Newark Field Office Director for Detention and Removal; *SARAH R. SALDANA, in her official capacity as Assistant Secretary of U.S. Immigration and Customs Enforcement; SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA; JUAN OSUNA, in his official capacity as Director of Executive Office of Immigration Review; JOHN TSOUKARIS, in his official capacity as Field Office Director for Enforcement and Removal Operations, Newark Field Office of U.S. Immigration and Customs Enforcement; CHRISTOPHER SHANAHAN, in his official capacity as Field Office Director for Enforcement and Removal Operations, New York Field Office of U.S. Immigration and Customs Enforcement; WARDEN BERGEN COUNTY JAIL; JOSEPH TRABUCCO, in his official capacity as Director of the Delaney Hall Detention Facility; WARDEN ELIZABETH COUNTY DETENTION CENTER; WARDEN ESSEX COUNTY CORRECTIONAL FACILITY; OSCAR AVILES, in his official capacity as Director of the Hudson County Correctional Facility *Pursuant to Fed. R. App. P. 43(c), Case No. 15-1785 (3rd Cir.). Appellants Garfield Gayle, Neville Sukhu, and Sheldon Francois are foreign nationals and Lawful Permanent Residents of the United States who were detained pursuant to 8 U.S.C. Sec. 1226(c), which provides that where ICE has "reason to believe" that an alien is "deportable" or "inadmissible" by virtue of having committed one of a number of specified crimes or being involved in activities threatening national security, that alien "shall" be taken into custody "when the alien is released [from detention for those crimes], without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense." Over the course of the last four years, Appellants have been litigating, and the Government, defending, a purported class action to challenge the constitutionality of 8 U.S.C. Sec. 1226(c), the section of the Immigration and Nationality Act that requires the mandatory detention of aliens who have committed specified crimes. The District Court's rulings on Appellants' Third Amended Petition, filed on August 5, 2013, and their third motion to certify a class, filed on May 12, 2014. The Third Amended Petition raised individual claims on behalf of Sukhu and two claims on behalf of a putative class of aliens who are being or will be mandatorily detained pursuant to Sec. 1226(c). In an order dated January 28, 2015 (Gayle II), the District Court resolved the remaining claims -- i.e., the adequacy of Joseph hearing procedures -- on cross-motions for summary judgment, and denied Appellants' motion to certify a class. On appeal, Appellants, joined by numerous amici, challenge the merits of the District Court's substantive and procedural due process rulings, as well as its denial of their motion to certify a class, and the Government has responded point by point. In the Opinion dated September 22, 2016 available at https://is.gd/nycDcy from Leagle.com, Judge Krause concluded that the District Court exceeded its jurisdiction by adjudicating the merits issues because (1) the claims of the individual class representatives were long ago moot and no mootness exception applies; (2) the motion to certify a class was filed at a point in time when at least one putative representative had a live claim; and (3) in denying the motion to certify a class, the District Court erred by disregarding the Rule 23 criteria and instead relying exclusively on the ground that a class action was "unnecessary" because it would serve no useful purpose given the District Court's merits rulings. Garfield Gayle, et al. are represented by Judy Rabinovitz, Esq. -- jrabinovitz@aclu.org -- and Michael K.T. Tan, Esq. -- mtan@aclu.org -- AMERICAN CIVIL LIBERTIES UNION IMMIGRANTS' RIGHTS PROJECT Warden Monmouth County Correctional Institution, et al. are represented by: Craig W. Kuhn, Esq. Elizabeth J. Stevens, Esq. UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Tel: (202)353-1555 WELLS FARGO: Faces "Mitchell" Suit in Utah for Unfair Competition ----------------------------------------------------------------- Lawrence J. Mitchell, Kay Mitchell, Matthew C. Bishop, et al. and unknown Plaintiffs 1-1,000,000, Plaintiffs, v. Wells Fargo Bank, National Association, a National Banking Association, and Wells Fargo & Company, a Delaware Corporation, and Does, 1-5,300 Defendants, Case No. 2:16-cv-00966-CW (D. Utah, September 16, 2016), alleges violation of Utah Unfair Competition Act, invasion of privacy (intrusion, public disclosure of private facts, misappropriation of likeness and identity, and Utah constitutional right to privacy), negligence, breach of contract and bailment, conversion and fraud. Wells Fargo & Company is a financial services company, providing banking, insurance, investments, mortgage, and consumer and commercial finance through more than 9,000 locations, 12,000 ATMs, and via Internet. The Plaintiffs are represented by: Zane L. Christensen, Esq. Steven A. Christensen, Esq. CHRISTENSEN YOUNG & ASSOCIATES, PLLC 9980 South 300 West #200 Sandy, UT 84070 Phone: (801) 676-6447 Fax: (888) 569-2786 WELSPUN INDIA: Faces Class Actions Over Alleged Fraud ----------------------------------------------------- The Financial Express reports that that two class action lawsuits have been filed against Welspun India and its US subsidiaries alleging it perpetrated "widespread fraud" for years. WELSPUN INDIA: Faces "Brower" Suit Over Bed Linen Mislabeling ------------------------------------------------------------- HAROLD BROWER and JUDI TALILI, individually and on behalf of all others similarly situated, Plaintiffs, v. WELSPUN INDIA LTD. and WELSPUN USA, INC., Defendants, Case No. 1:16-cv-07318 (S.D.N.Y., September 20, 2016), alleges that Defendants marketed and sold bed linens that, despite being labeled as "100% Egyptian cotton," were not 100% Egyptian cotton. Defendant Welspun India Ltd. is a textile company based in Mumbai, India. It is one of the world's largest textile manufacturers. More than 68 percent of its production is exported to the United States. Defendant Welspun USA Inc. is a textile company and wholly owned subsidiary of Welspun India Ltd. The Plaintiffs are represented by: Scott A. Bursor, Esq. Joseph I. Marchese, Esq. Frederick J. Klorczyk III, Esq. 888 Seventh Avenue New York, NY 10019 Phone: (646) 837-7150 Fax: (212) 989-9163 Email: scott@bursor.com jmarchese@bursor.com fklorczyk@bursor.com WHIRLPOOL: Oct. 11 Washer Settlement Claims Filing Deadline Set --------------------------------------------------------------- Katie Delong, writing for Fox6Now.com, reports that a deadline is approaching for those who have purchased, acquired or received as a gift a new Whirlpool, Kenmore or Maytag front-loading washing machine manufactured between 2001 and 2010 as part of a class action settlement. A settlement has been reached with Whirlpool Corporation and Sears, Roebuck and Co. in several class action lawsuits claiming that certain front-loading washing machines manufactured between 2001 and 2010 fail to adequately self-clean themselves of laundry residue, resulting in mold or mildew buildup that can cause bad odors and ruined laundry. The defendants deny they did anything wrong. A complete list of impacted washing machines can be found at: http://www.washersettlement.com/pdf/Eligible_Washer_Models.pdf If you have one of these washing machines, you may qualify for one of a variety of benefits including a cash payment, a rebate on the purchase of a new washing machine or dryer, or reimbursement for out-of-pocket expenses incurred due to past mold or odor problems in your washing machine. You must complete and submit a Claim Form, including required documentation. Your Claim Form and documentation must be submitted online no later than, or mailed via U.S. Mail with a postmark no later than, October 11, 2016. You can file a claim online at https://washersettlementclaim.com/ Meanwhile, a hearing is set for September 21st at the U.S. District Court for the Northern District of Ohio in Cleveland. It is a "Fairness Hearing," to determine whether this settlement is fair, adequate and reasonable, and whether it should receive final approval. The court may also decide the amount of fees, costs and expenses to award to the class. You can contact the settlement administrator as follows: MAIL: In re Whirlpool Corp. Front-Loading Washers Settlement, 1801 Market Street, Suite 660, Philadelphia, PA 19103 EMAIL: info@washersettlement.com TOLL-FREE: 1-844-824-5781 WHITESTONE BAGEL: Faces "Arriola" Suit Alleging FLSA Violation -------------------------------------------------------------- DANI MANOLO PIRIQUE ARRIOLA, and GILMA SANTOS, individually and on behalf of others similarly situated, Plaintiffs, v. WHITESTONE BAGEL FACTORY INC.(d/b/a WHITESTONE BAGEL FACTORY), ALESSANDRO TESTA, and NADIA TESTA, Defendants, Case No. 1:16-cv- 05157 (E.D.N.Y., September 16, 2016), seeks to recover alleged unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act. The suit also alleges violations of the New York Labor Law. Defendants own, operate, or control a bagel factory in Flushing, New York under the name Whitestone Bagel Factory. The Plaintiffs are represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Phone: (212) 317-1200 Fax: (212) 317-1620 ZAIS FINANCIAL: "Dexter" Action Resolved, Except Attorneys' Fees ---------------------------------------------------------------- ZAIS Financial Corp., said in its Form 8-K Report filed with the Securities and Exchange Commission on September 19, 2016, that plaintiff Sean Dexter has voluntarily withdrew the motion for a preliminary injunction, the Court cancelled the preliminary injunction hearing, and the class action lawsuit is resolved but for the Court's consideration of plaintiff's attorneys' fees, if any. The Form 8-K filing relates to the proposed merger (the "Sutherland Merger") of Sutherland Asset Management Corporation, a Maryland corporation ("Sutherland"), with a wholly owned subsidiary of ZAIS Financial Corp., a Maryland corporation ("ZAIS Financial" or the "Company") pursuant to the terms of that certain Agreement and Plan of Merger, dated as of April 6, 2016, as amended as of May 9, 2016 and August 4, 2016 (the "Merger Agreement"), by and among the Company, ZAIS Financial Partners, L.P., ZAIS Merger Sub, LLC, Sutherland and Sutherland Partners, L.P. On September 19, 2016, ZAIS Financial, issued a press release announcing that Institutional Shareholder Services, Inc. and Glass Lewis & Co., leading independent proxy advisory firms, have recommended that ZAIS Financial stockholders vote "FOR" the issuance of shares in connection with the Sutherland Merger. Additionally, the Company is supplementing its disclosure regarding the Sutherland Merger in connection with litigation brought by a purported stockholder of the Company. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein, and the Company and the other named defendants continue to deny any wrongdoing alleged in the litigation. As previously announced, on August 24, 2016, a putative class action lawsuit, captioned Sean Dexter, Individually and On Behalf of All Others Similarly Situated v. ZAIS Financial Corp., et al. (the "Complaint"), was filed in the Circuit Court for the City of Baltimore, Maryland (the "Court") against the Company, its directors, Sutherland and Sutherland Partners, L.P., alleging that the Company?s board of directors breached their fiduciary duties in certain respects regarding the Sutherland Merger and that the Sutherland parties aided and abetted the alleged breach of fiduciary duties. The Complaint sought various forms of relief, including compensatory damages and preliminary and/or permanent injunctive relief enjoining the consummation of the proposed Sutherland Merger. On August 30, 2016, the plaintiff filed a motion for a preliminary injunction seeking to enjoin the proposed shareholder vote on the proposed issuance of shares in connection with the Sutherland Merger. The Company and the other named defendants continue to believe that the claims asserted in the Complaint are without merit, and further believe that no supplemental disclosure is required under applicable laws. However, the Company wishes to make certain supplemental disclosures related to the Sutherland Merger, and on September 19, 2016, in connection with the filing of these supplemental disclosures, plaintiff Sean Dexter voluntarily withdrew the motion for a preliminary injunction, the Court cancelled the preliminary injunction hearing, and the lawsuit is resolved but for the Court's consideration of plaintiff's attorneys' fees, if any. * 2nd Circuit May Reverse Class-Action Waiver Ruling ---------------------------------------------------- Robert Iafolla, writing for Reuters, reports that a federal appeals court on Sept. 2 rejected the position of the National Relations Labor Board that federal labor law prohibits class- action waivers in workers' arbitration agreements, but hinted that it may rule the other way on en banc review. In a nonprecedential per curiam order, a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals said that it was bound by its 2013 decision finding that class-action waivers are enforceable in another case involving a worker's claims for unpaid wages, even though that holding came in a brief footnote. * Evolution of Summary Judgment Seen in Canadian Class-Actions -------------------------------------------------------------- Julius Melnitzer, writing for Lexpert Magazine, reports that class action lawyers have been fond of pointing to the swinging pendulum of jurisprudence that shifts its ever-roving eye over the class-action battleground. In recent years, however, that pendulum may have begun to settle down, as definitive rulings pile up and legal principles become entrenched. It's been almost a quarter of a century since Ontario became the first common-law province to adopt class-action legislation, and almost 40 years since Quebec laid the groundwork for the rest of the country. The pendulum is still shifting, but there's a difference: it now hovers over a battleground that has started to take real shape, developing defined parameters within which the pendulum moves. So while it may be easy to say that the past year has been less than ideal for class-action plaintiffs, and that the pendulum has swung over to the defense side, it's also a simplistic approach. The truth is that the jurisprudence is increasingly refining the parameters, with less need to define them. "We used to be all over the map, but now we're getting closer to knowing what's a blip and what is permanent and how it's going to work," says Tristram Mallett of Osler, Hoskin & Harcourt LLP in Calgary. "We're not all the way there yet but we're getting closer. What's gone for sure are the days when lawyers would spend two days arguing about what the test for certification is." Daniel Bach -- daniel.bach@siskinds.com -- of Siskinds LLP in Toronto says the evolution of the summary judgment procedure in the class-action context also demonstrates the emerging maturity of the jurisprudence. We're at the point now, he says, where summary judgments in class actions are going to the Court of Appeal, where substantive legal questions can get the attention they deserve. Ultimately, what seems to be shaping up is a healthy balance that augurs well for resolution of the issues that still need clarification. On the defense side of the ledger, courts have increasingly questioned practices that have until now benefitted plaintiffs. They have, for instance, given real teeth to the leave provisions that govern the commencement of statutory secondary-market misrepresentation proceedings. They've also questioned the historic characterization of product-liability cases as "quintessential" class actions, and set the stage for a final ruling by the Supreme Court of Canada on whether the Competition Act and other statutes constitute a "complete code" that govern civil claims arising from breaches of their provisions. Plaintiffs' lawyers, for their part, got a boost from the Ontario Court of Appeal's ruling in Ramdath v. George Brown College, which gave the concept of "aggregate damages" a definitive nod. "Ramdath is probably one of the most important class-action decisions ever because it confirms that individual damages need not be proven in certain cases," says Won Kim of Kim Orr Barristers P.C. in Toronto, who represented the class. Plaintiffs are also discovering fertile new ground in a host of other areas. Privacy and cybersecurity breach proceedings are flourishing. Judges are coming down harder on abuse and delay by defendants. The SCC is poised to pronounce on national class actions. The administration of settlements is achieving new levels of maturity. And more and more cases are making their way to trial, proving that many class actions are in fact "manageable" and chipping away at defense arguments that certification should not be granted because of procedural hurdles. With all these countervailing trends competing for permanence, there's certainly no paucity of controversy or issues on the substantive side of class actions -- and the ingenuity of counsel on both sides is thriving as they learn to work within, and around, new legal frameworks -- but with all these developments, it may just be that the Wild West era of Canadian class actions has finally faded into the past. As Wendy Berman of Cassels Brock & Blackwell LLP puts it, "Our system has definitely grown up." LEAVES WITH TEETH For securities class actions, the elusive standard for granting leave to commence secondary-market misrepresentations has long played head games with judges as well as lawyers on both sides of the fence. Here, perhaps, is where the jurisprudence has seen the most dramatic change. The SCC released two landmark securities class action decisions in 2015: Theratechnologies v. 121851 Canada Inc., which dealt with the leave test in Quebec's Civil Code, and the trilogy around CIBC v. Green, which dealt with the corresponding provision of Ontario's Securities Act. As it turns out, the language in the Quebec Code is substantially the same as the language that populates the corresponding provisions in the common-law provinces. The appellate decisions that preceded these two cases set a very low standard for meeting the key requirement of the leave test that there be a reasonable possibility of success for the plaintiff. Put simply, plaintiffs had only to show that they had "some chance of success." The environment was definitely plaintiff-friendly. But the Supreme Court set a considerably higher standard -- one that created a meaningful screening mechanism. The threshold, the court concluded, was more than a "speed bump": plaintiffs had to provide credible evidence that withstood reasoned consideration from the court to demonstrate that they had a reasonable or realistic chance of success. Lower courts have since put real teeth into the standard. Coffin v. Atlantic Power, an Ontario Superior Court of Justice decision that considered Theratechnologies before the SCC decided Green, set the stage by confirming that courts would scrutinize not only the pleadings, but the evidence, on a leave application. Another decision, Rahimi v. SouthGobi Resources (also decided after Theratechnologies but before Green), established that defendants could use statutory defences on leave applications to considerable effect. In Rahimi, Justice Edward Belobaba of the Ontario Superior Court of Justice refused leave for the plaintiff to proceed against individual corporate defendants. He reasoned that these defendants had established that there was no reasonable possibility that the plaintiffs could overcome the Securities Act's "reasonable investigation" defence at trial. What's compelling is that Justice Belobaba went into the evidence presented on the leave motion at considerable length. "When the leave test was combined with the requirements of the reasonable investigation defence, the court was required to consider the 'compelling and voluminous evidence of the defendants' under a high-powered microscope," says John Campion -- jcampion@fasken.com -- of Fasken Martineau DuMoulin LLP in Toronto, who represented SouthGobi and five of the six individual defendants. More recently, defendants have been further heartened by the decision of Justice Helen Rady in Bradley v. Eastern Platinum Ltd., released after the SCC's ruling in Green. Brian Bradley, the proposed representative plaintiff, alleged that Eastern had failed to disclose a complete or partial shutdown of its platinum mine in South Africa in 2011. The claim was then amended to allege that the introduction of certain support technologies at the mine had caused the decreased production. Eastern responded with uncontradicted affidavit, documentary and transcript evidence from employees showing that there had been no mine shutdown or introduction of new technology at the relevant time. Instead, the evidence revealed that the decreased production had been caused by unforeseen rock falls. Justice Rady concluded that the plaintiff's interpretation of events was "simply not supported by the overwhelming weight of the evidence that points to the opposite conclusion." She was not prepared to "disregard what I view to be very compelling and persuasive evidence" that could be undermined only by the unproven conclusion that Eastern's witnesses gave or fabricated false evidence. Justice Rady ruled that Green required courts to undertake "a robust, meaningful examination and critical evaluation of the evidence (or absence of evidence)" in order to determine whether the action had some merit. As Justice Rady saw it, the test for leave was more akin to a motion for summary judgment, which required judges to weigh the evidence, than a motion to strike, which had to be decided on the pleadings. "Eastern Platinum makes it clear that the leave threshold is going to be a meaningful merits test, which is what the leave test was always intended to be," says Alan D'Silva -- adsilva@stikeman.com -- of Stikeman Elliott LLP in Toronto, who represented the defendant company. "The upshot is that motions for leave will result in a comprehensive analysis on the merits, forcing parties to lead with their best foot," says Kevin O'Brien -- kobrien@osler.com -- in the Toronto office of Osler, Hoskin & Harcourt LLP. "That's not to say that the plaintiffs will have to prove their case, but they will have to show a realistic possibility that they will ultimately be successful." Siskinds' Bach, who represented Bradley, acknowledged his client's disappointment in the result. "It's a case where the court decided to prefer one side's evidence over that of the other," he says. "We believe, however, that it will be some time before the courts have enough experience to come up with a definitive approach where there are competing evidentiary narratives." However that may be, Bradley does demonstrate the importance of presenting defense evidence. "Defendants are going to have a hard time defeating leave applications if they fail to put forward rebuttals to the plaintiff's case," Mr. D'Silva says. This could represent an innovative litigation strategy, given that such challenges haven't always been seen as the most prudent course of action. "When courts were treating leave applications like rubber stamps, there was always a real discussion as to whether the defence should consent to leave instead of subjecting clients to invasive cross-examinations," says Andrea Laing -- andrea.laing@blakes.com -- in the Toronto office of Blake, Cassels & Graydon LLP. "But now that the test has teeth, there's more upside to fighting leave vigorously." The leave application, Ms. Laing maintains, has become a predominant strategic consideration for defendants in secondary- market cases. "It's fair to say that certification pales by comparison," she says. "Once leave is granted, it will be very difficult to deny certification. But facilitating certification in appropriate cases was really part of the purpose of the legislation enacting the leave requirement." From plaintiffs' perspective, the hurdles now built into the requirement for statutory action may also portend a change in their approach to misrepresentation cases. Kirk Baert of Koskie Minsky LLP in Toronto believes that what may emerge is a trend to filing common-law misrepresentation cases without resort to the Class Proceedings Act -- despite the fact that common-law claims would require proof of reliance on the misrepresentation. "A common-law misrepresentation action that had a large number of institutional plaintiffs affected by the misrepresentation could be financially viable, and it could proceed without the various statutory restrictions," he says. Mr. Baert doesn't see proof of reliance as a significant hurdle. "Reliance can be proven at trial like any other issue," he says. "It won't be that hard if a bunch of pension funds come forward and say 'of course we relied on the misrepresentation.'" If Mr. Baert's prognostication is correct, the euphoria the defense Bar may be enjoying about the raised standard for leave may be vulnerable to an old adage about being careful what you wish for. But that's for another day. "For the time being, there's definitely a chill on securities class actions," Ms. Berman says. HEIGHTENED SCRUTINY Plaintiffs are also facing challenges in product-liability and consumer class actions, two fields that their lawyers have traditionally ploughed to fertility with a fair degree of success. The challenges are perhaps most significant with regard to product-liability cases. "These cases are getting a lot more scrutiny, even though judges have in the past referred to them as quintessential class proceedings," says Michael Eizenga -- eizengam@bennettjones.com -- of Bennett Jones LLP in Toronto. One key issue is whether courts should allow certification of class proceedings by genre, where plaintiffs combine claims against multiple products in a case without showing a common design defect. Here, the law remains unclear. "Judges are moving down different tracks," says Derek Ricci -- dricci@dwpv.com -- of Davies Ward Phillips & Vineberg LLP in Toronto. Mr. Ricci cites a number of conflicting decisions in Ontario arising from Superior Court Justice Edward Belobaba's certification of a class in Dine v. Biomet, in which Ricci was co- counsel with colleague Kent Thomson (leave to appeal denied), and Justice Paul Perell's refusal to grant certification in O'Brien v. Bard Canada and in Vester v. Boston Scientific. "In some cases, judges are taking a hard look at the evidence to see whether the products are similar enough," Mr. Ricci says. "In others, judges are criticizing counsel for even leading evidence on the issue." Plaintiffs are also coming up against the "complete code" principle in product-liability cases and in consumer class actions generally. The principle states that if Parliament intends a statutory cause of action to be the sole remedy for a statutory breach, common-law and equitable claims are barred. The British Columbia Court of Appeal has been particularly supportive of the complete code defense. In three separate cases, the court held that the availability of statutory remedies in the BC Business Practices and Consumer Protection Act (Koubi v. Mazda Canada), the federal Competition Act (Wakelam v. Wyeth Consumer Healthcare) and the federal Patent Act (Low v. Pfizer Canada) barred claims for other types of relief. In Koubi, the BCCA decertified a waiver of tort claim; in Wakelam, the court extended Koubi to restitutionary misleading advertising claims; and in Low, the court held that the patent regime, despite the fact that it did not provide consumer remedies, was a complete code that foreclosed civil claims for unlawful interference with economic relation and unjust enrichment. The scope of the principle, however, is yet to be determined, particularly as it applies to competition law. In Watson v. Bank of America, for example, the BCCA agreed that the Competition Act did not bar conspiracy claims based on breaches of the Competition Act. But in Ontario, Justice Paul Perell disagreed. In Shah v. LG Chem, he opined that the BCCA had applied the wrong test in Watson. "Bringing some clarity to these issues is important because competition law is a very significant part of the class- action landscape," says Louis Sokolov -- lsokolov@sotosllp.com -- of Sotos LLP in Toronto. Indeed, the effect of the "competition trilogy" released by the SCC in 2013 is emerging. "I see a lot of pent-up activity in competition class actions because of the trilogy's release," says Cheryl Woodin -- CWoodin@blg.com -- of Borden Ladner Gervais LLP. "We now see about 50 cases moving through the civil courts at the same pace. The meat of these cases is in a very fluid state and there's a lot of new law being generated." JURISDICTION FRICTION While class-action lawyers in common-law jurisdictions struggle to keep up with the changes, the Quebec Bar is wrestling with the nuances of the new Code of Civil Procedure, which came into force on January 1, 2016, and brought significant changes to the rules governing class actions in the province. Most importantly, defendants will for the first time have the right to seek leave to appeal a judgment granting authorization of a class action. Plaintiffs may continue to appeal as of right. At press time, defendants are seeking leave in three cases: DuProprio c. Federation des chambres immobilieres; Energie eolienne des Moulins c. Labranche; and Centrale des syndicats c. Allen. Counsel in each of these cases have been invited to submit a brief before a special panel of three judges as to the criteria that should guide the Court of Appeal in allowing leave. "It is an open question," says Jean Saint-Onge -- jsaintonge@lavery.ca -- in the Montreal office of Lavery, de Billy L.L.P., as to "whether the Court of Appeal will adopt a restrictive approach by limiting defendants' right of appeal only to cases where, as the plaintiffs are likely to argue, the judgment of the Superior Court would cause serious injustice if not appealed." Other changes to the Civil Code affect standing to commence a class action, no longer limited to companies with less than 50 employees, and multijurisdictional proceedings. Lawyers both in and outside la belle province will agree, any legislative guidance on multijurisdictional issues would be welcome. Some order to a chaotic situation has likely been restored by decisions from five appellate courts shutting down duplicative class actions as an abuse of process. "In the last year, counsel have been able to collaborate by mutual agreement to avoid multiple proceedings in multiple jurisdictions," Ms. Woodin says, citing the telecommunication cases relating to system access fees and the Volkswagen emission litigation. Even the top court has weighed in with a novel approach to multiple jurisdictions. In two cases, Parsons v. The Canadian Red Cross Society and Endean v. Canadian Red Cross Society, the SCC has granted leave to hear arguments on whether judges from one province can sit with judges from other provinces to hear arguments on multijurisdictional class actions. The entire class-action Bar is hopeful that the SCC will provide guidance on steps that could further facilitate dealing with such cases. "The uncertain situation in Canada is ridiculous in this world of multijurisdictional litigation," says Mr. Sokolov. "It doesn't serve anyone, including the courts and especially the class members." Compounding the problem are carriage issues, which have become more heated than ever. "There is definitely a rise in carriage fights," Ms. Berman says. "The problem is that counsel appear to be moving away from their prior approach of working out carriage disputes [amongst themselves] to letting the courts sort them out." As Mr. Baert sees it, the courts aren't doing enough to sort out the mess. Despite the fact that his firm was part of the consortium appointed as class counsel, he cites the most recent decision on carriage, Kowalyshyn v. Valeant Pharmaceuticals International as indicative of the problematic nature of the issue. "Carriage motions continue to be expensive, complex and hard fought, as evidenced by the fact that the Kowalyshyn ruling is 250 paragraphs long," he says. "We need a better, more objective system to determine carriage." GLIMPSES OF CLARITY Not every procedural issue around class actions is fraught with uncertainty. Judges, for instance, are scrutinizing settlements more closely and settlement administration is sorting itself out. "In Ontario, courts have been giving settlements a lot of healthy scrutiny," Mr. Sokolov says. "They're taking their role as guardians of the class very, very seriously." So much so that the Ontario Divisional Court recently appointed Eizenga as amicus curiae in Waldman v. Thomson Reuters Canada (publisher of Lexpert), a case in which the court ultimately overturned Justice Paul Perell's refusal to approve a settlement in a copyright-infringement case. "There is some suggestion that an amicus should be appointed in all cases, and we may see more of that," Mr. Sokolov says. The effort by plaintiffs' counsel to increase class participation rates puts even more emphasis on settlement approval. In the litigation relating to the DRAM memory chips, J.J. Camp and his team at Camp Fiorante Matthews Mogerman LLP in Vancouver used radio, TV and social media advertising to publicize an $80-million settlement. "To my knowledge, 17,000 was the largest number of consumers who participated in a price-fixing class action before this particular settlement," Mr. Camp says. "We mailed out some 880,000 cheques to Canadian households." That kind of uptick -- driven by the power of social media to connect millions of plaintiffs -- is one that's likely to send a chill down the spine of defendant corporations and their counsel. So, when it comes to class actions, the West may not be as wild as it once was -- but neither has it been won outright. * Municipalities Face Class Actions Over Water, Sewer Fees ---------------------------------------------------------- Crystal A. Proxmire, writing for Oakland County One-Fifteen News, reports that class action lawsuits against municipalities are becoming more common, particularly those over water and sewer billing. Litigation attorney Soni Mithani, a Principal at Miller Canfield in Ann Arbor, took time to educate officials about these types of suits at the Michigan Municipal League Convention on Sept. 15. The Bolt case happened in 1998, and it said that since residents had a right to vote on taxes, cities had to be careful that fees were not really taxes in disguise. The main question for cities, Ms. Mithani said, is "What is a valid fee and what is an unlawful tax?" Prior to Bolt, fees were "presumed reasonable unless proven otherwise." This meant that fighting fees in court was a challenge. In 1978 the Headlee Amendment declared that taxes be put to a vote of the people, which is why there are so many ballot questions asking residents for tax approval. In 1994 the Headlee Blue Ribbon Commission determined that fees should be evaluated to see if they are taxes in disguise. The lawsuit Bolt v. City of Lansing in 1998 came about because the owner of a parking lot did not believe he should be responsible for a sewer fee because the fee also was being used to pay off infrastructure improvements that separated the water and sewer system through the city. The owner did not want to pay for something that he was not using, and he called it a "rain Go Comedy Ad yellowtax" because he felt that he had not asked for the rain nor had asked the city to remove it from his property. The Supreme Court decided to figure out what was a fee and what was a tax. This came down to three points that Ms. Mithani outlined. A "fee" must be (1) regulatory, (2) proportional and (3) voluntary. REGULATORY The court determined that an ordinance (including those that pertain to fees) must have a regulatory purpose. "What is the purpose of the fee or ordinance? Do you seek to protect the citizenry? Does the language seek to raise health, safety and welfare of the community?" She noted that the ultimate goal is to protect the public, and she recommends framing ordinances HowesLocationusing language that makes this purpose clear. PROPORTIONAL "A fee has to cover the actual cost of use," Ms.Mithani said. She said fees cannot be used to be applied towards a fund balance, or even to save for future costs. They must cover the cost of service that a property owner is using. VOLUNTARY Another feature of a fee is that property owners should have some level of control to avoid or reduce the fee. For example, sewer fees based on water consumption or usage are more legally sound than flat fees. The rise of litigation involving fees happens in part because class action cases can be heard in the Circuit Court as opposed to through a fax tribunal. "It's a really attractive way for GT ad 05attorneys to get their cuts," she said. Ms. Mithani shared what the basis of recent lawsuits have been about: -- Attorneys are challenging fees for infrastructure. -- Fees for general benefits like fire protection are being challenged. -- Fees that generate a high percentage of working capital are being challenged. -- Fees that go to the general fund are being challenged. -- New fees for things once covered by the general fund are being challenged. -- Keeping services consistent but raising fees can prompt a challenge. -- Fees for pension costs and administrative costs are being challenged. She notes that any fee can be challenged, and that while the Headlee limits the time-frame for lawsuits, there are other avenues through which cities are being sued. Among the basis' are unjust enrichment, ordinance violations, statutory violations, due process and equal protection. One recommendation that can reduce the risk of lawsuit is to put fees to a vote of the people. Municipalities should also be prepared to show the relationship between the fee and the value of the service, Mithani said. To learn more about Miller Canfield visit http://www.millercanfield.com/.lisaschmidt law Recently several communities were sued based on sewer fees. Check out how Ferndale, Birmingham and Royal Oak fared at http://oaklandcounty115.com/2015/12/24/royal-oak-birmingham-and- ferndale-see-different-results-from-water-lawsuit/. The Michigan Municipal League is dedicated to making Michigan's communities better by thoughtfully innovating programs, energetically connecting ideas and people, actively serving members with resources and services, and passionately inspiring positive change for Michigan's greatest centers of potential: its communities. The MML has supported the oc115 with a scholarship to the conference. Learn more about MML www.mml.org. * Report Reveals Banks with Most Number of Customer Complaints -------------------------------------------------------------- Matt Krantz, writing for USA TODAY, reports that you're supposed to be able to trust your bank. But multimillion-dollar settlements, tens of thousands of customer complaints and class- action lawsuits make that tough. Data show where the most complaints lie. Regions Financial (RF) ranks as the most complained-against regional bank, and Comerica (CMA) gets the most gripes among diversified banks relative to the value of their total deposit bases, according to a USA TODAY analysis of data through from the Consumer Financial Protection Bureau and S&P Global Market Intelligence. Regions received 16.6 complaints per billion dollars in customer deposits and Comerica got 10.6. By comparison, giant banks Bank of America (BAC) and Wells Fargo (WFC) lead in the absolute largest number of complaints entered in the CFPB system, with 11,666 and 10,773 complaints respectively, which accounted for 9.6 and 8.6 complains per billion dollars in deposits. The analysis only looked at complaints associated with bank accounts or services. Complaints range dramatically, from disagreement over the size and appropriateness of fees to the way consumers feel they were treated by employees. All told, the 17 regional and diversified banks in the Standard & Poor's posted an average of 9.8 complaints per billion dollars in deposits. While the number of complaints is higher than banks would probably like, these levels are low enough to highlight the level of discontent doesn't indicate a "huge problem," says Jim Sinegal, banking analyst at Morningstar. "Ten complaints to $1 billion in deposits doesn't seem like a huge problem." But complaints against banks run deeper than just from disgruntled consumers, including: Securities class-action lawsuits. The financial sector has been the No. 1 target of securities class-action lawsuits from 2001 to 2015, according to market research firm Cornerstone Research. On average, 9.3% of financial companies were subject to new class- action lawsuits, which tops the second-most sued sector, health care, at 8.6%. Massive government fines. Banks and other financial companies were responsible for half the cases and paid 90% of the penalties handed down by the Department of Justice and 14 regulatory agencies since 2010, says corporate watchdog Good Jobs First. From 2010 through June, U.S. and foreign banks paid $160 billion in penalties from these agencies, with Bank of America (BAC) paying $56 billion and JPMorgan Chase (JPM) paying $28 billion. Only penalties of $100 million or more were included in the analysis. The CFPB's database of banking complaints goes back to roughly 2012 as the government agency was commissioned in 2011 to be a watchdog for consumer protection in the financial sector. The agency was created out of regulation following the 2008 financial crisis and gained attention this month by hitting Wells Fargo (WFC) with a multimillion-dollar fine following allegations bankers were secretly opening accounts under customers' names. There are caveats to the CFPB's complaint data. Complaints can be entered into the system even if the items consumers are complaining about aren't fraudulent, wrong or could even be the result of their own mistakes. Comparing complaints to total deposits also makes global banks look better than regional banks, because they do more investment banking, which doesn't generate consumer complaints, Mr. Sinegal says. These complaints may also not include issues consumers enter directly at the bank's website. Despite the newness of the CFPB, banks say they are paying attention to the complaints. "Any CFPB complaints are addressed quickly and closed. We pride ourselves in exceeding our customers' expectation," says Wayne Mielke, spokesman for Comerica Bank. "We take all customer feedback very seriously, including those through the CFPB." "Providing high-quality service is a top priority for Regions. We consistently receive top industry marks for customer satisfaction and are committed to promptly resolving any issues our customers bring to our attention," says Regions spokeswoman Evelyn Mitchell. Given the massive size of markets banks play in, it's natural to expect the penalties to be massive, says Robert Hockett, professor of law at Cornell Law School. The U.S. mortgage market, for instance, addresses the roughly $9 trillion housing market, which is bigger than any other asset class. Big markets generate large fines when there's wrongdoing, he says. These companies are also among the biggest in the world, many that would rank among the largest nations in the world economically, Mr. Hockett says. That creates a challenge for management and regulators to track. But given the size of these markets and the massive money to be made, the fines aren't much of a deterrent, he says, either. "The fines paid are minuscule compared to the profits," he says. Employees know the firm might pay a fine and jail time is unlikely, so they look at complaints and fines as the cost of doing business." WHICH BANKS GET THE MOST HATE Bank, symbol, CPFB complaints/$1 billion in deposits, total complaints*, type of bank Regions Financial, RF, 16.6, 1,611, regional Citizens Financial, CFG, 16.2, 1,724, regional SunTrust Banks, STI, 14.0, 2,135, regional Fifth Third Bancorp, FITB, 12.5, 1,271, regional The PNC Financial Services, PNC, 11.8, 2,956, regional Huntington Bancshares, HBAN, 11.8, 650, regional Comerica, CMA, 10.6, 595, diversified U.S. Bancorp, USB, 9.9, 3,132, diversified Bank of America, BAC, 9.6, 11,666, diversified BB&T, BBT, 9.0, 1,426, regional KeyCorp., KEY, 8.9, 670, regional M&T Bank, MTB, 8.8, 833, regional Wells Fargo, WFC, 8.6, 10,773, diversified People's United, PBCT, 6.5, 189, regional JPMorgan Chase, JPM, 6.0, 8,025, diversified Citigroup, C, 3.7, 3,494, diversified Zions Bancorporation, ZION, 2.8, 141, regional Source: CFPB, S&P Global Market Intelligence * Including only complaints associated with accounts and services in CFPB database ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *