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/raid1/www/Hosts/bankrupt/CAR_Public/161013.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 13, 2016, Vol. 18, No. 205 Headlines 59TH ST LD: Faces "Wilson" Suit Over Failure to Pay Overtime ALLSTATE INSURANCE: Faces "Thompson" Suit in N.D. of Alabama AMAZON.COM: Delivery Drivers File Class Action Over Job Status AMERICAN RECOVERY: Illegally Collects Debt, "Gentile" Suit Says AN SAN JOSE: Does Not Properly Pay Employees, "Spicker" Suit Says ANTHEM HEALTH: "Pape" Suit Moved from Cir. Ct. to E.D. Ken. ANTONELLI COLLEGE: No Consolidation Yet in "Borden" Suit AUSTRALIA: Oakey Base Contamination Class Action Gets Funding BANK OF NEW YORK: Court Certifies "Becker" Suit as Class BORGESS MEDICAL: Illegally Collects Debt, "Brown" Action Claims CANADA: RCMP to Settle Workplace Harassment Class Actions CAPITAL ACCOUNTS: Faces "Mohammed" Suit in E.D. of Texas CENTRAL FREIGHT: "Henry" Remanded to Sacramento Superior Court CEP AMERICA: Faces "Young" Suit in California Superior Court CIBC: Ontario Court Certifies Securities Class Action CITIMORTGAGE INC: 11th Cir. Drops "Nicklaw" Case Appeal COASTAL INDUSTRIES: Suit Seeks to Recover Unpaid Overtime Wages COGNIZANT TECHNOLOGY: Rosen Law Firm Files Class Action CORELOGIC CREDCO: Sued in Va. Over Inaccurate Credit Reports CSGO LOTTO: Washington Court Dismisses RICO Class Action CST BRANDS: Faces "Savage" Suit Over Proposed Sale to Circle K CST BRANDS: Faces Securities Class Action in Texas CUMBERLAND COUNTY, NC: Employees File Suit Over Severance Pay CYPRESS LAWN: "Correa" Suit to Recover Unpaid Overtime Pay DAYTON, MN: Police Chief Must Address "Orduno" Discovery Order DENSO CORPORATION: Sued in Mich. Over Spark Plug Price-Fixing DOLE PACKAGED: "All Natural" Label Class Decertification Affirmed EAGLE MARINE: Oct. 18 Hearing Set for "O'Neal" FLSA Claims EARLYSHARES.COM: Has Made Unsolicited Calls, Action Claims ECCO SELECT: Faces "Pearce" Suit Over Failure to Pay Overtime EI DUPONT: 3rd Cir. Voids Employer's Practice of Offsetting ESPERANZA MANAGEMENT: Former Servers Sue Over Unpaid Gratuities EVERBANK FINANCIAL: Sued Over Proposed Teachers Insurance Merger FLORIDA POWER: Faces "Gil" Suit in Southern Dist. of Florida FORD MOTOR: Lead Applicant Loses Bid to Halt Settlement Offers GATEWAY PLAZA: Plaintiff Accuses Landlord of Intimidation Tactics GENERAL MILLS: Faces Class Action Over Deceptive "Healthy" Claims GEO GROUP: Faces "Birdsell" Class Suit in C.D. California GLOBAL CREDIT: Faces "Gold" Suit Over Debt Collection Policies GLOBAL CREDIT: Faces "Neuhaus" Suit Over Debt Collection Policies GOOGLE: Age Discrimination Suit Gets Conditional Certification GRANT THORNTON: Dismissed as Defendant in La. Securities Suit GREAT AMERICAN INSURANCE: Shareholders Challenge Merger Deal GUAM: H-2b Visa Class Action May be Necessary to Resolve Issue GUARDIAN EYES: Fails to Pay Employees OT, "McElrafth" Suit Says INDIANA: BMV Challenges Cohen & Malad's Attorney Fees Request INTERNATIONAL BANK: 5th Cir. Sends Overtime Suit to Arbitration JB MEDICAL MANAGEMENT: Faces "Schwanke" Suit in M.D. Fla. KRAFT FOODS: $1.75MM Accord in "Rodriguez" Case Gets Final OK KY UNG WONG MIN: "Allaico" Suit to Recover Unpaid Overtime Pay LABOR READY: Faces "Rezendes" Suit Over Failure to Pay Overtime LANDCAR CASUALTY: Faces "Scholl" Suit in District of Oregon LOYALTYONE: Air Miles Alters Rewards Programs Amid Class Action LTD FINANCIAL: Faces "Bakon" Suit in Eastern District of New York MARICOPA COUNTY, AZ: Sheriff Arpaio Faces Contempt Charges MDC PARTNERS: NY Court Dismisses Shareholder Class Action MDL 2672: Puerto Rico Employee Retirement System to Lead Case MISSISSIPPI: Class Suit Challenges Sodomy Law NATIONWIDE MUTUAL: Sued in Ga. Over Pre-Recorded Advertisements NCAA: Ex-UCLA Football Captain Files Concussion Suit NCAA: Now Facing 43 Concussion-Related Lawsuits NDG COFFEE: Faces "Calle" Suit in S.D.N.Y. NELSON MANDELA METROPOLITAN: Suit Mulled Over Shutdown NEW RESIDENTIAL: Judge Narrows Claims in Securities Action ONE NOTE: Faces "Youngblood" Suit in Southern Dist. of California OPTIMUM HOME: Faces "Khyzhnyy" Suit Over Failure to Pay Overtime PASON SYSTEMS: "Balo" Labor Case Transferred to S.D. Tex. PROBITY HEALTH: Faces "Moody" Suit Over Failure to Pay Overtime PROGRESSIVE INSURANCE: Williams Can't Proceed as Class Action QUALITY DINING: "Cicero" Labor Case Transferred to D.N.J. RAPTOR PHARMACEUTICAL: Shareholder Challenges Horizon Merger RIMAX CONTRACTORS: "Arzola" Labor Case Transferred to M.D. Fla. ROTHENERG VENTURES: Faces "Fanelli" Suit in Cal. Super. Ct. SAINT VINCENT: Sued Over Mandatory Flu Vaccination Policy SBOCA LLC: Faces Gorss Motels Class Suit in Connecticut SERES THERAPEUTICS: Sued Over Misleading Financial Reports SILVERCORP METALS: Obtains Favorable Ruling in Class Action SPECTRUM PHARMACEUTICALS: Sued Over Misleading Financial Reports TALON AIR: Faces "Gonzalez" Suit Over Failure to Pay Overtime SQUARE INC: Court Dismisses "White" for Lack of Standing ST PAUL, MN: Faces Class Action Over Right-of-Way Assessments STEWART'S SHOPS: Judge Certifies Employees' Wage Class Action TENET HEALTHCARE: Shareholder Sues Over Stock Price Drop UNITED STATES: Supreme Court to Hear Post-9/11 Arrest Cases VERITAS ENTERTAINMENT: Golan May File Third Amended Complaint VISA: Class Action Over EMV Car Reader Can Proceed WELLS FARGO: 401(K) Participant Files Class Action in Minneapolis WEST VIRGINIA: Medicaid I/DD Waiver Class Action Can Proceed WILLIAMS-SONOMA: Case Management Conference Moved to Feb. 2017 YAHOO! INC: New York Man Files Data Breach Class Action YAHOO! INC: Lawyers Raise Concern Over Fraud Risks After Hack YAHOO! INC: Illegally Discloses Consumers Info, Suit Says YAHOO! INC: Faces Six Class Actions Over 2014 Security Breach * New York Courts Render CPLR Article 9 Class Action Rulings * Women Lawyers Reflect on Decision to Sue Employers ********* 59TH ST LD: Faces "Wilson" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Angel Wilson, on behalf of herself and all others similarly situated v. 59th St. LD Oklahoma City, LLC d/b/a Little Darlings, Case No. 5:16-cv-01124-C (W.D. Ok., September 27, 2016), is brought against the Defendant for failure to compensate adult entertainers one and one half times minimum wage when their total hours worked exceeded 40 hours. 59th St. LD Oklahoma City, LLC owns and operates the exotic entertainer dance club, Little Darlings located at 1833 S. Morgan Rd., Oklahoma City, OK 73128. The Plaintiff is represented by: William B. Federman, Esq. Joshua D. Wells, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235-1560 Facsimile: (405) 239-2112 E-mail: wbf@federmanlaw.com jdw@federmanlaw.com - and - Cullin A. O'Brien, Esq. CULLIN O'BRIEN LAW, P.A. 6541 NE 21st Way Ft. Lauderdale, FL 33308 Telephone: (561) 676-6370 Facsimile: (561) 320-0285 E-mail: cullin@cullinobrienlaw.com ALLSTATE INSURANCE: Faces "Thompson" Suit in N.D. of Alabama ------------------------------------------------------------ A class action lawsuit has been filed against Allstate Insurance Company. The case is captioned Danny L Thompson, individually and on behalf of a class of persons similarly situated, the Plaintiff, v. Allstate Insurance Company, the Defendant, Case No. 2:16-cv- 01620-KOB (N.D. Ala., Sept. 30, 2016). The case is assigned to Hon. Chief Judge Karon O Bowdre. Allstate is a personal lines insurer in the United States. The company also has personal lines insurance operations in Canada. The Plaintiff is represented by: Garrett Parker Dennis, Esq. ALEXANDER SHUNNARAH INJURY LAWYERS 3626 Clairmont Avenue So. Birmingham, AL 35222 Telephone: (205) 983 8144 Facsimile: (205) 983 8444 E-mail: gdennis@asilpc.com AMAZON.COM: Delivery Drivers File Class Action Over Job Status -------------------------------------------------------------- Angel Gonzalez, writing for Seattle Times, reports that three drivers who have made deliveries on contract for Amazon.com are suing the company, saying they should be considered employees, not contractors. Their case follows similar legal actions against tech firms relying on freelancers to carry the weight of a significant part of their operations. The complaint, filed late on Oct. 4 in U.S. District Court in Seattle, was brought forth by Shannon Liss-Riordan, the attorney who led two class-action lawsuits by discontented drivers against Uber. These suits yielded a proposed $100 million settlement that was later blocked by the court. In the Amazon lawsuit, the drivers allege the tech giant has violated federal labor laws by failing to ensure they earn the minimum wage after paying for gas and maintenance, and by not paying overtime. The lawsuit seeks class-action status. The complaint underscores the conflicts brewing in the so-called "gig economy," in which independent contractors enabled by technology play a critical role but have fewer privileges than traditional full-time workers. It also shows the challenges Amazon faces as it aggressively experiments in the field of logistics. Amazon's rapid growth has strained its traditional logistics partners, and so has its quest to provide nearly immediate gratification to customers. That has prompted Amazon to come up with new solutions for moving its goods around, ranging from a fleet of airplanes to toying with its own last-mile delivery network in several cities. The lawsuit names both Amazon.com Inc. and Amazon Logistics, a program in which the retail juggernaut contracts with local delivery providers, from single drivers to companies with their own employees. Amazon also contracts directly with individuals to provide deliveries through a service called Amazon Flex, an Uber-like program in which individuals sign up. All the drivers suing have worked for Amazon Flex, said Ms. Liss-Riordan. Asked about the suit, Amazon said in a statement that with Amazon Flex "anyone can earn up to $25 per hour by delivering packages when and where they want. We launched the program last year and feedback from Flex drivers has been very positive -- they really enjoy being their own boss." The complaint says the drivers had a direct contract relationship with Amazon. But it argues that instead of independent contractors, they are "actually employees" because they are highly supervised and were trained by the company on how to deal with customers. Drivers must follow "Amazon's instructions regarding where to make deliveries, in what order, and which route to take," the complaint states. These contractors can be fired at Amazon's discretion, and their services are "fully integrated into Amazon's business," making them indistinguishable from other employees. "Amazon is yet another company that is saving on labor costs by hiring delivery drivers who perform the work that the company does and not calling them employees," Ms. Liss-Riordan said in an interview. The plaintiffs are Bernadean Rittmann and Freddie Carroll, Amazon delivery drivers from Las Vegas who previously delivered for the company in Seattle. Another plaintiff in a similar situation, Julia Wehmeyer, lives in Plano, Texas, and still delivers for Amazon there. The plaintiffs say they take care of their own gas and car-maintenance expenses, which makes their wages fall below the federal, state and local minimum levels. It's not the first lawsuit that claims Amazon is wrongly characterizing the status of these workers. Last year, four former delivery drivers for Prime Now sued the company in a similar complaint, according to news reports. Uber, the ride-sharing company, settled two class-action lawsuits led by Ms. Liss-Riordan in April for $84 million (plus an additional $16 million if the company goes public and meets other milestones.) Uber agreed to improvements in drivers' working conditions. At the same time, Uber CEO Travis Kalanick wrote in a blog post that the settlement recognized the drivers should "remain as independent contractors, not employees." But a San Francisco judge rejected the agreement in August because it apparently underestimated the amount of penalties due to the state of California, according to Bloomberg. AMERICAN RECOVERY: Illegally Collects Debt, "Gentile" Suit Says --------------------------------------------------------------- Donald Gentile, on behalf of himself and all others similarly situated v. American Recovery Service Incorporated of California Incorporated in California, registered in Florida as American Recovery Service Incorporated of California, Case No. 9:16-cv- 81649-BB (S.D. Fla., September 28, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. American Recovery Service Incorporated of California is a collection agency with headquarters in Thousand Oaks, California. The Plaintiff is represented by: Sovathary K. Jacobson, Esq. Leo Wassner Desmond, Esq. DESMOND LAW FIRM, P.C. 5070 A1A Suite D Vero Beach, FL 34963 Telephone: (772) 231-9600 Facsimile: (772) 231-0300 E-mail: jacobson@verobeachlegal.com lwd@verobeachlegal.com AN SAN JOSE: Does Not Properly Pay Employees, "Spicker" Suit Says ----------------------------------------------------------------- Dieter Spicker, Ross Clark, and Ben Francia, individually and on behalf of all others similarly situated v. An San Jose Luxury Imports, Inc. d/b/a Mercedes-Benz of Stevens Creek and Park Avenue Motors, Case No. 16CV300466 (Cal. Super. Ct., September 28, 2016), is brought against the Defendants for failure to compensate the class for all hours worked, pay proper minimum wages and overtime wages, maintain proper piece rate records, and properly pay wages at separation. The Defendants operate a used car dealership company in Santa Clara, California. The Plaintiff is represented by: David A. Rosenfeld, Esq. Caren P. Sencer, Esq. Caroline N. Cohen, Esq. WEINBERG, ROGER, & ROSENFELD 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501 Telephone: (510) 337-1001 Facsimile: (510) 337-1023 E-mail: drosenfeld@unioncounsel.net csencer@unioncounsel.net ANTHEM HEALTH: "Pape" Suit Moved from Cir. Ct. to E.D. Ken. ----------------------------------------------------------- The class action lawsuit titled Douglas Pape, on behalf of himself and all others similarly situated, the Plaintiff, v. Anthem Health Plans of Kentucky, Inc., the Defendant, Case No. 16-CI-3207, was removed from the Fayette Circuit Court to the U.S. District Court for the Eastern District of Kentucky (Lexington). The District Court Clerk assigned Case No. 5:16-cv-00373-DCR to the proceeding. The case is assigned to Hon. Judge Danny C. Reeves. Anthem Health provides health insurance products and related services in the state of Kentucky. The Plaintiff is represented by: Jordan Lewis, Esq. Robert R. Sparks STRAUSS & TROY CO., LPA - CINCINNATI 150 E. Fourth Street Federal Reserve Building, Fourth Floor Cincinnati, OH 45202-4018 Telephone: (513) 621 2120 Facsimile: (513) 241 8259 E-mail: rrsparks@strausstroy.com The Defendant is represented by: Darryl W. Durham, Esq. Martin J. Bishop, Esq. Rebecca R. Hanson, Esq. WEBER & ROSE, P.S.C. 471 W Main St., Suite 400 Louisville, KY 40202 Telephone: (502) 589 2200 Facsimile: (502) 589 3400 E-mail: ddurham@weberandrose.com ANTONELLI COLLEGE: No Consolidation Yet in "Borden" Suit -------------------------------------------------------- In the case, ANNIE BORDEN, Individually and on Behalf of Those Similarly Situated, Plaintiffs, v. ANTONELLI COLLEGE, et al., Defendants, TENESHA ADAMS, Individually and on Behalf of Those Similarly Situated, Plaintiffs, v. ANTONELLI COLLEGE, et al., Defendants, Case Nos. 1:16-cv-519, 1:16-cv-520 (S.D. Ohio), District Judge Timothy S. Black denied the motions to consolidate Plaintiff Borden' and Plaintiff Adams' class action claims. The lead plaintiff in each case is or was a student of the Practical Nursing Program (PNP) at Antonelli College, who allegedly suffered harm as a result of the false and deceptive advertising by Antonelli. Each plaintiff seeks to represent a class of current and former students who enrolled in the PNP at Antonelli College between 2013 and the present. The Court held that the consolidation should be evaluated once the Defendant's summary judgment motions are granted. The Court finds that it will actually promote judicial economy to keep the cases separate at the mean time. For purposes of initial discovery, the Court anticipates that a calendar identical to Adams' case will be entered in Borden's case. The Court will revisit the issue of consolidation after the December 15, 2016 status conference, upon request. A copy of the Court's Order dated October 4, 2016 is available at https://goo.gl/WEJyxY from Leagle.com. Annie Borden, Plaintiff, represented by Adam S. Brown -- abrown@cumminsbrownlaw.com -- Cummins & Brown LLC. Annie Borden, Plaintiff, represented by Phyllis Elaine Brown -- phyllis@pebrownlaw.com -- Cummins & Brown LLC & Richard Stuart Wayne -- rswayne@strausstroy.com -- Strauss & Troy. Antonelli College, et al., Defendants, represented by Adam P. Hall, Frost Brown Todd LLC, Ryan Steven Lett, Frost Brown Todd LLC, Kathryn Jean Bushby -- kbushby@maynardcooper.com -- Maynard Cooper & Gale, PC, pro hac vice & Ollie Ancil Tres Cleveland, III, Maynard Cooper & Gale, PC, pro hac vice. AUSTRALIA: Oakey Base Contamination Class Action Gets Funding ------------------------------------------------------------- Katherine Gregory, writing for ABC News, reports that residents of a Darling Downs town affected by contaminated groundwater are one step closer to pursuing a class action against the Federal Government after securing funding, their lawyer says. Toxic firefighting chemicals perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) have leached into groundwater beneath at least 30 Australian Defence bases, including the Oakey Army Aviation Centre in Queensland. A recent United Nations report ruled the chemicals had significant human and environmental health effects. Shine Lawyers' legal partner Peter Shannon said after receiving funding from litigator funders IMF Bentham, the firm now had the green light for legal action and to win residents compensation. "The funding is approved but it has to be conditional upon enough people joining the action to warrant bringing what is an expensive and complex piece of litigation," Mr. Shannon said. "It's fantastic that an organization as large and as experienced as IMF are willing to back funding and assure people of funding." He said the process would be highly regulated. "[It's] very different to normal litigation and widely misunderstood and that's why it will take us a while to explain to people before they make the decision whether they'll want to be involved," Mr. Shannon said. About 300 people are interested in the action. BANK OF NEW YORK: Court Certifies "Becker" Suit as Class -------------------------------------------------------- In the case, LEONARD BECKER v. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, Civil Action. No. 11-6460, Consolidated with No. 12-6412 (E.D. Pa.), District Judge Legrome D. Davis granted Plaintiff Leonard Becker's Motion for Class Certification. The Class in the consolidated civil actions is composed of: all persons or entities who purchased or otherwise acquired the bonds identified as the Borough of Langhorne Manor Higher Education and Health Authority Hospital Revenue Bonds, Series of 1992 (The Lower Bucks Hospital), and who are holders of an Allowed Class A3 Claim pursuant to Section 5.1.3(A)(ii) of the Plan for reorganization of Lower Bucks Hospital, which Plan was confirmed under Chapter 11 of the Bankruptcy Code. Excluded from the class are Defendants and any person, firm, trust, corporation, or other entity related to or affiliated with any Defendant and any officers and directors. The Court appointed Plaintiff Leonard Becker as the class representative and the law firm Barrack, Rodos & Bacine as the class counsel. A copy of the Court's Order dated October 5, 2016 is available at https://goo.gl/51Nuez from Leagle.com. LEONARD BECKER, Plaintiff, represented by DANIEL E. BACINE, BARRACK RODOS & BACINE. LEONARD BECKER, Plaintiff, represented by LISA M. PORT, BARRACK, RODOS & BACINE. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., et al., Defendants, represented by CHRISTINE CESARE -- cbcesare@bryancave.com -- BRYAN CAVE LLP, pro hac vice, HOWARD M. ROGATNICK -- hmrogatnick@bryancave.com -- BRYAN CAVE LLP, pro hac vice, STEPHANIE WICKOUSKI -- stephanie.wickouski@bryancave.com -- BRYAN CAVE LLP, pro hac vice, THOMAS J. SCHELL -- tjschell@bryancave.com -- BRYAN CAVE LLP, pro hac vice, NATALIE D. RAMSEY -- nramsey@mmwr.com -- MONTGOMERY, MC CRACKEN, WALKER & RHOADS & PATRICK T. RYAN -- pryan@mmwr.com -- MONTGOMERY MCCRACKEN WALKER & RHOADS, LLP. SAUL EWING LLP, et al., Respondents, represented by TIMOTHY W. CALLAHAN, II -- tcallahan@saul.com -- SAUL EWING LLP. BLANK ROME LLP, et al., Respondents, represented by JEREMY A. RIST -- Rist@BlankRome.com -- BLANK ROME LLP. BORGESS MEDICAL: Illegally Collects Debt, "Brown" Action Claims --------------------------------------------------------------- Charles G. Brown, on behalf of himself and all others similarly situated v. Borgess Medical Center, Medical Financial Solutions, a division of Accretive Health, Inc., Case No. 1:16-cv-01186-PLM-RSK (W.D. Mich., September 28, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Borgess Medical Center operates a hospital located at 1521 Gull Rd, Kalamazoo, MI 49048. Medical Financial Solutions is in the business of providing collection services to the healthcare industry. The Plaintiff is represented by: Nicholas Allan Reyna, Esq. LAW OFFICES OF NICHOLAS A. REYNA PC 528 Bridge St., Ste. 1A Grand Rapids, MI 49504 Telephone: (616) 235-4444 E-mail: nickreyna7@hotmail.com - and - Brian P. Parker, Esq. LAW OFFICES OF BRIAN P. PARKER, P.C. 2000 Town Center, Ste. 1900 Southfield, MI 48075 Telephone: (248) 642-6268 E-mail: brianparker@collectionstopper.com CANADA: RCMP to Settle Workplace Harassment Class Actions --------------------------------------------------------- Douglas Quan, writing for National Post, reports that the RCMP commissioner is expected to issue an apology as part of a historic settlement reached with the plaintiffs in two proposed class- action lawsuits alleging systemic gender-based harassment and discrimination within the force, sources say. Any female member who experienced harassment or discrimination will be eligible to apply for damages. Amounts will depend on the extent and nature of the injuries experienced by the members, a source said. The potential number of Mounties who could be eligible is in the thousands and compensation could reach $100 million or more. As part of the settlement, the force will also announce new details of how it plans to change the workplace culture. Despite efforts by the Mounties over the years to implement respectful-workplace initiatives, ongoing "harassment litigation" has continued to dog the force. The reaching of a settlement is a significant event, said Angela Workman-Stark, a former RCMP chief superintendent who played a key role in helping the force address harassment and bullying. "For the women, it's a resolution for them. I think it's an acknowledgment of the issues they brought forward. I think it's great for the organization to move forward and take responsibility. Resolution and recognition is an important piece," said Ms. Workman-Stark, who left the force earlier this year. The announcement will take place in Ottawa. Bob Paulson, the commissioner, and Public Safety Minister Ralph Goodale will be joined by the lead plaintiff Linda Gillis Davidson. MaryAnn Mihychuk, the minister of employment, workforce development and labour, will also appear at the press conference. Ms. Davidson, who retired in 2012 as an inspector and previously worked on the prime minister's security detail, alleged in court documents that for most of her 27-year career, she was subjected to bullying and belittling from male officers that left her mentally anguished and even suicidal. The harassment, she alleged, took many forms: unwanted grabbing and kissing; crude jokes, including the placement of ketchup- stained tampons in her locker; and constant questioning about her sexual orientation and abilities. "I experienced this treatment irrespective of my detachment, posting, rank or seniority," she wrote in an affidavit. "I never felt that I could rely on senior officers to protect me." Over the course of her 20-year career as a constable, Ms. Merlo said she endured bullying, crude sexual jokes and double standards, according to court records and a book she published in 2013, No One to Tell. "We kept our mouths shut, and we allowed the horrible things we'd experienced to take root inside us, just as we allowed the rot within our organization to proceed unchecked," she wrote. Reached on Oct. 5 after flying to Ottawa, Ms. Merlo said she was bound by confidentiality and unable to comment prior to the announcement. In order for the settlement to become official, the class-action lawsuits will have to be certified by a judge and the settlements approved. While the announcement is a major step forward, the force will need to continue to be mindful of barriers that prevent people from participating in the workplace, Ms. Workman-Stark said. Members need to know that they are valued and trusted and encouraged to give feedback, she said. These things need to be monitored through surveys, audits and other initiatives, she added. "It can't be a one-time thing." CAPITAL ACCOUNTS: Faces "Mohammed" Suit in E.D. of Texas -------------------------------------------------------- A class action lawsuit has been filed against Capital Accounts, LLC. The case is titled Zohaib Mohammed and Hira Bhura, on behalf of themselves and others similarly situated, the Plaintiffs, v. Capital Accounts, LLC, the Defendant, Case No. 4:16-cv-00755-ALM (E.D. Tex., Sept. 30, 2016). The case is assigned to Hon. Judge Amos L. Mazzant, III. Capital Accounts specializes in the collection of overdue balances. The Plaintiffs are represented by: Aaron David Radbil, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826 5477 Facsimile: (561) 961 5684 E-mail: aradbil@gdrlawfirm.com CENTRAL FREIGHT: "Henry" Remanded to Sacramento Superior Court -------------------------------------------------------------- In the case, RICKEY HENRY, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiff, v. CENTRAL FREIGHT LINES, INC., a Corporation, and DOES 1 through 50, inclusive, Defendants, No. 2:16-cv-0280-JAM-EFB (E.D. Cal.), District Judge John A. Mendez approved the Plaintiff's motion to remand the class suit to the Superior Court for the County of Sacramento. The Court cited the Defendant's failure to show that the amount in controversy exceeds the $5 million jurisdictional threshold required by the Class Action Fairness Act. Moreover, the Court can no longer decide on the Defendant's motion to change venue following its decision to remand the case. A copy of the Court's Order dated October 5, 2016 is available at https://goo.gl/H33S1P from Leagle.com. Rickey Henry, Plaintiff, represented by Aparajit Bhowmik -- aj@bamlawlj.com -- Blumenthal, Nordrehaug & Bhowmik. Rickey Henry, Plaintiff, represented by Kyle R. Nordrehaug -- kyle@bamlawca.com -- Blumenthal Nordrehaug and Bhowmik, Norman Blumenthal -- norm@bamlawlj.com -- Blumenthal Nordrehaug & Bhowmik, Ruchira Piya Mukherjee -- piya@bamlawlj.com -- Blumenthal, Nordrehaug & Bhowmik & Victoria Bree Rivapalacio -- victoria@bamlawca.com -- Blumenthal, Nordrehaug & Bhowmik. Central Freight Lines, Inc., Defendant, represented by Jonathan Hisataka Liu -- jonathan.liu@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Timothy L. Johnson -- tim.johnson@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, PC & Spencer C. Skeen -- spencer.skeen@odnss.com -- Ogletree, Deakins, Nash, Smoak & Stewart PC. CEP AMERICA: Faces "Young" Suit in California Superior Court ------------------------------------------------------------ A class action lawsuit has been filed against CEP America, LLC. The case is entitled YOUNG, JEFFREY WON LONG, SAN MATEO, TERESA, and ARAMILLO, CARLOS EDWARD, AS INDIVIDUALS AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, v. MEDAMERICA PHYSICIAN SOLUTIONS, INC., DOES 1-100, and CEP AMERICA, LLC, the Defendants, Case No. CGC 16 554619 (Cal. Super. Ct., Sept. 30, 2016). CEP America provides acute care management and staffing solutions in the United States. CIBC: Ontario Court Certifies Securities Class Action ----------------------------------------------------- Rochon Genova LLP on Oct. 5 disclosed that a Class Action was certified on February 3, 2014 by the Court of Appeal for Ontario (the "Court") in relation to CIBC's representations in connection with its exposure to the U.S. subprime mortgage market through collateralized debt obligations ("CDOs") and credit default swaps ("CDS"), which resulted in CIBC eventually taking gross write-downs on those positions totalling $9.3 billion (the "Action"). The Court also granted leave (permission to proceed) to the plaintiffs to commence an action under the secondary market liability provisions of the Ontario Securities Act, which permit a person who acquires a company's security after a misrepresentation has been made in a company's public disclosure to recover damages without proof of reliance on the misrepresentation, subject to certain defences which may be asserted in this Action. In December 2015, the Supreme Court of Canada upheld the Court's certification and leave orders. The defendants deny that the claims in the Action have merit. The substance and accuracy of the claims have not yet been determined by a court. Who is a Class Member? The Action has been certified on behalf of all persons or entities, excluding U.S. residents, who purchased CIBC common shares between May 31, 2007 and February 28, 2008 on the TSX ("the Class"). What are My Rights? Class Members are automatically included in the Class, will be bound by any judgment (successful or not) and will not be able to bring their own individual action. Class Members are not exposed to any adverse costs. If the Class is successful and a settlement is reached, a settlement notice, describing the terms of the settlement, will be provided to the Class. Class Members who DO NOT want to participate in the Action must opt out by January 3, 2017. A Class Member who opts out will not be entitled to participate in the Action and will not be entitled to share in the amount of any award or any settlement achieved. To opt out, you must submit a signed letter stating that you choose to opt out of the Class to: Attention: CIBC Securities Class Action c/o Crawford Class Action Services Suite 3-505, 133 Weber St N Waterloo, ON N2J 3G9 Fax: 1-888-842-1332 Email: CIBCSecuritiesClassAction@crawco.ca A valid opt-out request must include: (i) the date(s) on which you purchased CIBC securities; (ii) the number of securities purchased; (iii) the price at which you purchased CIBC securities; and (iv) your name, address, telephone number and signature. If you are submitting an opt-out request on behalf of a corporation or other entity, you must state your position and provide your authority to bind the corporation or entity. Class Counsel and Legal Fees The Class is represented by Rochon Genova LLP. Legal fees will be paid on a contingency basis from any amounts recovered and any such fee award to Class Counsel must be approved by the Ontario Superior Court. Legal fees, disbursements and applicable taxes will be payable only in the event of success in the Action. As a Class Member, you will not be required to pay any costs in the event that the Action is unsuccessful. How Do I Get More Information? The claims, orders of the courts and other information are available on Class Counsel's website at www.rochongenova.com. If you have questions, please contact Class Counsel: Joel P. Rochon ROCHON GENOVA LLP 121 Richmond Street West, Suite 900 Toronto, ON M5H 2K1 Tel: 416-363-9893 Email: contact@rochongenova.com The publication of this notice was authorized by the Ontario Superior Court of Justice Please Do Not Contact the Court CITIMORTGAGE INC: 11th Cir. Drops "Nicklaw" Case Appeal ------------------------------------------------------- Circuit Judge William Pryor of the United States Court of Appeals, Eleventh Circuit, dismissed for lack of jurisdiction the case of ROGER NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant- Appellee, No. 15-14216 (11th Cir.) Roger Nicklaw sold real estate and used the proceeds to satisfy a mortgage owned by CitiMortgage, Inc., the New York Property Law required CitiMortgage to file within 30 days a certificate of discharge with the county clerk to record that a mortgagor had satisfied his mortgage. But CitiMortgage failed to record the satisfaction of mortgage until more than 90 days after the date of satisfaction. Nicklaw discovered that the certificate had been recorded late. He filed a putative class action against CitiMortgage in the Southern District of Florida that alleged that CitiMortgage violated sections 275 and 1921 of the New York Property Law by failing to record the certificate of discharge until over 90 days after he satisfied his mortgage. CitiMortgage extended an offer of judgment to Nicklaw, which Nicklaw refused to accept. CitiMortgage filed a motion to dismiss the complaint on the ground that the offer of judgment rendered the case moot. The district court agreed and dismissed Nicklaw's complaint. Nicklaw did not appeal the dismissal. In October 2014, Nicklaw filed a second complaint against CitiMortgage in the Eastern District of Missouri, which was transferred to the Southern District of Florida. The complaint alleges that CitiMortgage violated sections 275 and 1921 when it filed the certificate of discharge more than 90 days after he satisfied his mortgage. It does not allege whether Nicklaw or any other member of the putative class was aware that the certificate of discharge had not been recorded within the statutory time period. It alleges only that the satisfaction of the mortgage was recorded late. CitiMortgage moved to dismiss Nicklaw's second complaint on the ground that the previous dismissal for mootness had preclusive effect. A magistrate judge recommended the complaint be dismissed based on the earlier ruling on mootness, which the district court adopted. Nicklaw filed an appeal and CitiMortgage moved to dismiss the appeal for lack of jurisdiction. Judge Pryor dismissed the appeal for lack of jurisdiction, finding that Nicklaw lacks standing to sue CitiMortgage. Judge Pryor held that Nicklaw has failed to allege that he sustained a concrete injury. He does not allege that his credit suffered or that he or anyone else knew that the certificate of discharge had not been recorded within the statutory period. By alleging only that CitiMortgage recorded the certificate late and nothing else, Nicklaw has failed to establish that he suffered or could suffer any harm that could constitute a concrete injury. A copy of Judge Pryor order dated October 6, 2016, is available at https://goo.gl/pxlYZM from Leagle.com. For Plaintiff-Appellant: Scott Rhead Shepherd, Esq. Nathan C. Zipperian, Esq. Shepherd, Finkelman, Miller & Shah, LLP 875 Third Avenue, Suite 800 New York, NY 10022 Telephone: 212-419-0156 Facsimile: 866-300-7367 - and - Todd S. Garber -- tgarber@fbfglaw.com -- at Finkelstein Blankinship, Frei-Pearson & Garber, LLP Lucia Nale -- lnale@mayerbrown.com -- Thomas V. Panoff -- tpanoff@mayerbrown.com -- Christopher Comstock -- ccomstock@mayerbrown.com -- at Mayer Brown; April Boyer -- april.boyer@klgates.com -- Stephen Allan McGuinness -- stephen.mcguinness@klgates.com -- at K&L Gates; Louis F. Bonacorsi -- lfbonacorsi@bryancave.com -- at Bryan Cave The United States Court of Appeals, Eleventh Circuit panel consists of Circuit Judges William Pryor and Stanley Marcus and District Judge Roger H. Lawson, Jr. COASTAL INDUSTRIES: Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Jose Felix Sarmiento, Jose Luis Sarmiento, and Leonidas Mejia, for themselves and on behalf of all other similarly situated v. Coastal Industries, LLC, Coastal Bridge Company, LLC, and Kelly Sills, Case No. 3:16-cv-00638-BAJ-EWD (M.D. La., September 27, 2016), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standards Act. The Defendants operate a large scale construction company in Baton Rouge, Louisiana. The Plaintiff is represented by: Daniel B. Davis, Esq. Randall E. Estes, Esq. ESTES DAVIS LAW, LLC 850 North Boulevard Baton Rouge, LA 70802 Telephone: (225) 336-3394 Facsimile: (225) 384-5419 E-mail: Dan@EstesDavisLaw.com Randy@EstesDavisLaw.com COGNIZANT TECHNOLOGY: Rosen Law Firm Files Class Action ------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Oct. 6 disclosed that it has filed a class action lawsuit on behalf of purchasers of Cognizant Technology Solutions Corporation securities (CTSH) from February 25, 2016 through September 30, 2016, both dates inclusive (the "Class Period"). To join the Cognizant class action, go to the website at http://www.rosenlegal.com/cases-959.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (1) Cognizant lacked effective internal controls over financial reporting; (2) certain improper payments were for permits and building licenses for some of its 12 facilities in India; and (3) as a result, defendants' statements about Cognizant's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damage. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than December 5, 2016. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-959.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. Kevin Chan, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com kchan@rosenlegal.com www.rosenlegal.com CORELOGIC CREDCO: Sued in Va. Over Inaccurate Credit Reports ------------------------------------------------------------ Ruth Taylor, individually and on behalf of a class of similarly situated individuals v. Corelogic Credco, LLC, Case No. 3:16-cv- 00792-HEH (E.D. Va., September 27, 2016), is brought against the Defendant for violation of the Fair Credit Reporting Act, specifically by failing to establish or to follow reasonable procedures to assure maximum possible accuracy in the preparation of the consumer reports it furnished regarding the Plaintiff and the putative class members by erroneously listing one or more discharged debts as due and owing and past due where it was apparent that the consumer had received a bankruptcy discharge. Corelogic Credco, LLC is engaged in the assembly of information contained in the databases of Equifax, Experian and Trans Union for the purpose of furnishing such information to third parties. The Plaintiff is represented by: Kristi Cahoon Kelly, Esq. Andrew J. Guzzo, Esq. KELLY & CRANDALL, PLC 4084 University Drive, Suite 202A Fairfax, VA 22030 Telephone: (703) 424-7570 Facsimile: (703) 591-0167 E-mail: kkelly@kellyandcrandall.com aguzzo@kellyandcrandall.com - and - Emily Connor Fort, Esq. Mark C. Leffler, Esq. BOLEMAN LAW FINN, P.C. 2104 W. Laburnum Ave., Suite 201 Richmond, VA 23227 Telephone: (804) 358-9900 E-mail: ecfort@bolemanlaw.com CSGO LOTTO: Washington Court Dismisses RICO Class Action -------------------------------------------------------- Sam Nordmark, writing for Daily Dot, reports that a class-action lawsuit against third-party Counter-Strike: Global Offensive skin gambling site CSGO Lotto appears to have been dealt a major blow, after the court overseeing the case ruled that it wouldn't go federal. The ruling, which was given by the Washington Western District Court on Oct. 4, states that the plaintiffs were arguing that gambling site CSGO Lotto and one of its owners, Trevor "TmarTn" Martin, had engaged in fraudulent activity so egregious that it violated the Racketeer Influenced and Corrupt Organizations Act (RICO). Mr. Martin, who is also a part-owner of successful esports team EnVyUs, frequently promoted CSGO Lotto to his massive YouTube following without disclosing that he had an ownership role at the site, leading to community uproar against Martin and CSGO Lotto. In the proceedings, however, the defendants argued that "plaintiffs who enter into transactions knowing that there are a wide range of possible outcomes cannot state a RICO claim when they receive less than favorable outcomes within that range." The court sided with the defendants, and ruled out a RICO standing as it did not consider gambling losses "sufficient injury to 'business or property.'" Additionally, the plaintiffs' second option of taking the case federal via the Class Action Fairness Act (CAFA) also proved to be unsuccessful. In a post on the CS:GO subreddit, esports attorney Bryce Blum offered the following explanation."In order to get federal jurisdiction through CAFA, the matter in controversy has to exceed $5,000,000. While plaintiffs provided facts about the economics of skin betting and Valve's CSGO revenue, they did not assert an actual damages figure an instead relied on 'common sense' arguments that the amount of damages exceeded $5,000,000," Mr. Blum concludes this section by simply writing "The court didn't buy these arguments." Despite this outcome, it doesn't mean the class-action suit itself has been dismissed and the plaintiffs are free to appeal the Washington Western District Court's ruling. CST BRANDS: Faces "Savage" Suit Over Proposed Sale to Circle K -------------------------------------------------------------- Harry Savage, individually and on behalf of all others similarly situated v. CST Brands, Inc., Kim Lubel, Alan Schoenbaum, Donna M. Boles, Roger G. Burton, Rocky B. Dewbre, Thomas (Tad) W. Dickson, Ruben M. Escobedo, Denise Incandela, Joseph E. Reece, Stephen Smith, Joseph V. Topper, Jr., Michael Wargotz, Circle K Stores, Inc., and Ultra Acquisition Corp., Case No. 5:16-cv-00968 (W.D. Tex., September 28, 2016), is brought on behalf of all public shareholders of CST Brands, Inc., to enjoin the proposed acquisition of CST Brands by Circle K Stores Inc. by means of an unfair process and for an unfair price. CST Brands, Inc. is one of the largest independent retail and wholesale distributors of motor fuel, convenience merchandise and services in North America. Circle K Stores, Inc. operates and franchises convenience stores in North America. The Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Telephone: (713) 227-7720 E-mail: tbilek@bileklaw.com - and - Shane T. Rowley, Esq. LEVI & KORSINSKY, LLP 733 Summer Street, Suite 304 Stamford, CT 06901 Telephone: (212) 363-7500 Facsimile: (212) 682-3010 E-mail: srowley@zlk.com CST BRANDS: Faces Securities Class Action in Texas -------------------------------------------------- Gainey McKenna & Egleston on Oct. 5 disclosed that a class action lawsuit has been filed against CST Brands, Inc. ("CST" or the "Company") in the United States District Court for the Western District of Texas on behalf of current stockholders of CST, seeking to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). The Complaint alleges that on August 22, 2016, CST issued a press release announcing that it had entered into an Agreement and Plan of Merger (the "Merger Agreement") to sell CST to Couche-Tard, Inc. ("Couche-Tard"). Under the terms of the Merger Agreement, Couche-Tard will acquire all outstanding shares of CST for $48.53 in cash per CST common share (the "Merger Consideration"). Couche-Tard will also, through its acquisition of CST, acquire CST's interest in CrossAmerica Partners LP ("CrossAmerica" or "CAPL"), a leading wholesale fuels distributor and owner and lessor of real estate used in the retail distribution of motor fuels, and associated Incentive Distribution Rights ("IDRs"). The Complaint alleges that the transaction is the result of an unfair process and provides the Company's shareholders with inadequate consideration. Further, the Complaint alleges that both the value to CST shareholders contemplated in the transaction and the process by which Defendants propose to consummate the transaction are fundamentally unfair to public shareholders of the Company. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com Please visit our website at http://www.gme-law.comfor more information about the firm. CUMBERLAND COUNTY, NC: Employees File Suit Over Severance Pay ------------------------------------------------------------- Mary Pols, writing for Portland Press Herald, reports that saying they were forced to work under vastly different -- and inferior -- - terms by new management, five current and former employees of the Cross Insurance Arena have filed a class action lawsuit against their former employer, the Cumberland County Recreation District. The employees, including the former marketing director, who logged 27 years with the arena, say they are owed severance after all arena employees were fired when new management took over arena operations in 2015, even though some of the employees were subsequently rehired. Their attorneys said at least 120 past and present employees at the arena, formerly the Cumberland County Civic Center, might be eligible to participate in the class action if it is certified. "There may well be quite a bit more," said attorney Roberta de Araujo of the Augusta law firm Johnson, Webbert & Young. The Cumberland County Recreation District turned arena operations over to Global Spectrum -- now known as Spectra, a Philadelphia- based division of Comcast -- in March 2015. Matt Tarasevich -- mtarasevich@bernsteinshur.com -- the Bernstein Shurr attorney who represents the Cumberland County Recreation District, said in an email that the district had received the complaint, is reviewing the claims and "will respond in due course." It's not possible to put a dollar value on the suit at this point, Ms. de Araujo said. State severance pay law requires that any employee who had worked for the arena for at least three years be paid severance equal to one week's pay for every year of employment at the time they were terminated. Employees received a termination letter from the Cumberland County Recreation District (now the Cross Insurance Arena) stating "It is our understanding that Global intends to offer you employment at the Arena, effective March 9, 2015 at 12:00 a.m., in the same position and at the same rate of pay as you had with CIA." The letter also said Global "intends to offer similar benefits." But the employees named in the suit, including former marketing director Roberta Wright and concessions manager Matt Drivas, say they were forced to apply for new jobs with Spectra, that not all of the employees were rehired and that the new terms of employment were "substantially inferior terms." Those terms included fewer paid holidays (the number dropped from 13 to 8), working "significantly" more hours without additional compensation and not being allowed to take comp time for excess hours worked. The complaint also alleges that employees were forced to pay "considerably more" for health insurance. Morever, under their previous employment agreement, employees said they could only be terminated for just cause and could sue if they did not agree there was cause. The lawsuit alleges that Spectra - - as long as it doesn't discriminate unlawfully, can fire employees for good reason, bad reason or no reason at all. Ms. Wright has retired and Ms. Drivas, who says he was told he had to choose between the civic center and a similar job he held with the Portland Sea Dogs, left the civic center in favor of the baseball team. "The loss of my job with the Center cost me the majority of my annual income and retirement," Ms. Drivas said in a news release. The other three plaintiffs, James Leo, Robert Payne Jr. and Gregory Moyes, still work for the arena. Attorneys said they couldn't put a dollar value on the suit because no class action has yet been established. There are some union employees at the civic center, mostly stagehands, according to attorney Jeff Young. But those represented in this suit, who include the three employees still working for the Cross arena in the concessions and operations area, are not union members. Mr. Young said his firm has been in negotiations with the Cumberland County Recreation District for a year. "Unfortunately we were never able to resolve the dispute," Mr. Young said. "So they knew this was coming." CYPRESS LAWN: "Correa" Suit to Recover Unpaid Overtime Pay ---------------------------------------------------------- Filiberto Correa, on behalf of himself and all others similarly situated, Plaintiff, v. Cypress Lawn Specialists, Inc. and Robert F. Ratliff, Defendants, Case No. 1:16-cv-05279 (N.D. Ill., September 22, 2016), seeks relief, including unpaid overtime wages, liquidated damages, state law penalties, other equitable relief and attorney's fees and costs for violation of the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. Cypress offers various landscape maintenance, landscape construction, and snow removal services. Plaintiff worked for the Defendants as a general laborer and worker. He claims to be denied overtime pay. Plaintiff is represented by: Marni Willenson, Esq. WILLENSON LAW, LLC 542 S. Dearborn St., Suite 610 Chicago, IL 60605 Tel: (312) 508-5380 Fax: (312) 508-5382 - and - Meghan A. VanLeuwen FARMWORKER & LANDSCAPER ADVOCACY PROJECT 33 N. LaSalle St., Suite 900 Chicago, IL 60602 Tel: (312) 784-3541 Email: mvanleuwen@flapillinois.org DAYTON, MN: Police Chief Must Address "Orduno" Discovery Order -------------------------------------------------------------- In the case, Samantha Orduno, individually and on behalf of all others similarly situated, Plaintiff, v. Richard Pietrzak, in his individual capacity as the Chief of Police of the City of Dayton; City of Dayton; John and Jane Does (1-120), acting in their individual capacity as supervisors in the City of Dayton, Defendants, Civil No. 14-1393 ADM/JSM (D. Minn.), District Judge Ann D. Montgomery rejects the Defendants' objection to the Discovery Order, which required the Defendants to provide an explanation for Defendant Pietrzak's purpose for accessing the drivers records of 200 individuals, rather than 5,747 individuals. Orduno alleges Defendant Pietrzak, while employed as Chief of Police in the City of Dayton, Minnesota, accessed from the Minnesota Driver and Vehicle Services database the Plaintiff's personal information and that of at least 850 others for a purpose not permitted under the Driver's Privacy Protection Act. While the Defendant argued that the limited discovery request is still overly broad and unduly burdensome, the issuing judge of the Order was mindful of proportionality when she narrowed the Plaintiff's discovery request from the driver's records of over 5,000 individuals to 200. Under the circumstances of the case, the number of individuals and accesses is proportional because the Plaintiff is seeking to demonstrate a pattern of misuse over a period of several years. Additionally, the Court noted that a narrower discovery request is not overly burdensome, particularly given the repetitive nature of many of the accesses on the list. Defendants argue that each of the accesses will require approximately 30 minutes to investigate, resulting in a total of 335 staff hours and $8,921 in staff time. However, the Court held that more than 150 of the accesses -- over 20% -- were of the same individual. The list also includes many groups of individuals with the same last name who were accessed on the same date. Many of the family groups accessed by Defendant Pietrzak include 5 or more individuals, with one group consisting of 17 members. The Court further noted that it is likely a single explanation will apply to multiple accesses of a given individual's information or to accesses of many individuals from the same family, thereby eliminating the need for a full 30 minute investigation of each and every one of the 671 accesses. Under the circumstances, the discovery will not impose an undue burden on the City of Dayton's resources, and any burden is outweighed by the likely benefit of the discovery. A copy of the Court's Order dated October 5, 2016 is available at https://goo.gl/JtemQ9 from Leagle.com. Samantha Orduno, Plaintiff, represented by Jeffrey M. Montpetit -- jeffrey.montpetit@knowyourrights.com -- SiebenCarey. Samantha Orduno, Plaintiff, represented by Jonathan A. Strauss -- JonS@sapientialaw.com -- Sapientia Law Group PLLC, Lorenz F. Fett, Jr., Sapientia Law Group, Marcia K. Miller -- marcia.miller@knowyourrights.com -- SiebenCarey, Sonia L. Miller- Van Oort, Sapientia Law Group & Susan M. Holden -- susan.holden@knowyourrights.com -- SiebenCarey, P.A.. Richard Pietrzak, et al., Defendants, represented by Jon K. Iverson -- jon@irc-law.com -- Iverson Reuvers Condon, Stephanie A. Angolkar -- stephanie@irc-law.com -- Iverson Reuvers Condon & Susan M. Tindal -- susan@irc-law.com -- Iverson Reuvers Condon. DENSO CORPORATION: Sued in Mich. Over Spark Plug Price-Fixing ------------------------------------------------------------- KMB/CT, Inc. d/b/a KMB Warehouse Distributors, Inc., Thrifty Auto Supply, and Irving Levine Automotive Distributors, Inc., individually and on behalf of a class of all others similarly situated v. DENSO Corporation, DENSO International America, Inc., and DENSO Products & Services Americas f/k/a Denso Sales California, Inc., Case No. 2:16-cv-13506-AJT-MKM (E.D. Mich., September 28, 2016), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to rig bids and fix, raise, maintain, or stabilize prices of Spark Plugs sold in the United States and elsewhere at supra-competitive levels. The Defendants manufacture and supply Spark Plugs that are sold throughout the United States, or installed in motor vehicles manufactured or sold throughout the United States. The Plaintiff is represented by: David H. Fink, Esq. Darryl Bressack, Esq. FINK + ASSOCIATES LAW 38500 Woodward Avenue; Suite 350 Bloomfield Hills, MI 48304 Telephone: (248) 971-2500 E-mail: dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com - and - Joseph C. Kohn, Esq. William E. Hoese, Esq. Douglas A. Abrahams, Esq. KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 E-mail: jkohn@kohnswift.com whoese@kohnswift.com dabrahams@kohnswift.com - and - Gregory P. Hansel, Esq. Randall B. Weill, Esq. Michael S. Smith, Esq. PRETI, FLAHERTY, BELIVEAU & PACHIOS LLP One City Center P.O. Box 9546 Portland, ME 04112-9546 Telephone: (207) 791-3000 E-mail: ghansel@preti.com rweill@preti.com msmith@preti.com - and - Steven A. Kanner, Esq. William H. London, Esq. Michael E. Moskovitz, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 E-mail: skanner@fklmlaw.com wlondon@fklmlaw.com mmoskovitz@fklmlaw.com - and - Eugene A. Spector, Esq. William G. Caldes, Esq. Jonathan M. Jagher, Esq. Jeffrey L. Spector, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 496-0300 E-mail: espector@srkw-law.com bcaldes@srkw-law.com jjagher@srkw-law.com jspector@srkw-law.com - and - M. John Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 204 Palm Beach Gardens, FL 33410 Telephone: (561) 515-1400 E-mail: jdominguez@cohenmilstein.com - and - David A. Young, Esq. COHEN, MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., NW, Suite 500 Washington, D.C. 20005 Telephone: (202) 408-4600 E-mail: dyoung@cohenmilstein.com DOLE PACKAGED: "All Natural" Label Class Decertification Affirmed ----------------------------------------------------------------- Charles R.A. Morse -- cramorse@jonesday.com -- Sharyl A. Reisman - - sareisman@jonesday.com -- Louis A. Chaiten -- lachaiten@jonesday.com -- Darren K. Cottriel, Rebekah Byers Kcehowski and David M. Monde, of Jones Day, in an article for Lexology, report that on September 30, 2016, in a closely watched case, the Ninth Circuit affirmed a district court's decertification ruling based on a faulty damages model but reversed in part the district court's ruling that "All Natural Fruit" labeling on Dole products is not likely to deceive consumers. Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th Cir. Sept. 30, 2016) (unpublished). The opinion is unpublished but will likely have repercussions for class actions in and out of the Ninth Circuit. District Court -- Decertifying the Class and Granting Summary Judgment The plaintiff in Brazil claimed Dole's "All Natural" label was misleading because the products contained synthetic citric and ascorbic acids. Among other claims, he alleged violations of various California consumer protection statutes and sought to certify a class. Initially, the district court certified an injunction class under Rule 23(b)(2) and a damages class under Rule 23(b)(3). On Dole's motion, the district court later decertified the damages class based on lack of predominance, because the plaintiff's damages model did not accurately measure the value of the "All Natural" claim and, thus, did not permit restitution on a classwide basis. More specifically, the plaintiff's hedonic regression analysis was not "capable of controlling for all other factors and isolating the price premium attributable to Dole's 'All Natural' label only." Brazil v. Dole Packaged Foods, LLC, No. 12-cv-01831-LHK, 2014 WL 5794873, at *13 (N.D. Cal. Nov. 6, 2014). On the merits, and based on a standard set forth in nonbinding 2013 FDA guidance about the use of the word "natural" to describe food products, the court granted summary judgment to Dole. There was, according to the court, no evidence that reasonable consumers would not normally expect to find citric and ascorbic acids in "natural" fruit. Ninth Circuit -- Affirming Decertification and Reversing Summary Judgment The Ninth Circuit affirmed in part and reversed in part. The court affirmed the district court's order decertifying the damages class. On the merits of Brazil's individual damages case, however, the Ninth Circuit reversed the district court's order granting summary judgment to Dole. Class Certification. The Ninth Circuit affirmed the district court's decertification order, finding the plaintiff's damages must be limited to "the price premium attributable to Dole's 'All Natural Fruit' labels" and that the plaintiff "did not explain how this premium could be calculated with proof common to the class." No. 14-17480, slip op. at 6-7. The Ninth Circuit also rejected the plaintiff's claim that under a theory of "nonrestitutionary disgorgement," the class could recover without establishing the price premium attributable to the "All Natural" claim. The Ninth Circuit observed that "restitution and disgorgement are functionally the same remedy." Id. at 7. The injunction class action, which was never decertified, will be permitted to proceed. The Merits (Plaintiff's Individual Claim). The district court granted Dole's motion for summary judgment because the plaintiff "offered no evidence that citric acid and ascorbic acid, the two allegedly synthetic ingredients found in the challenged Dole products, 'would not normally be expected to be in' those products." Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831- LHK, 2014 WL 6901867, at *5 (N.D. Cal. Dec. 8, 2014). The "would- not-normally-be-expected" standard was set forth in 2013 FDA guidance relating to the use of the word "natural" in food labels. Id. The Ninth Circuit reversed. It relied on more recent FDA warning letters to food sellers, which advised that "foods that naturally contain citric acid (such as tomatoes) may not be labeled 'all natural' if synthetic citric acid is added to them." No. 14-17480, slip op. at 4. The Ninth Circuit concluded that those letters, along with the plaintiff's testimony that he was deceived, conflicting expert witness testimony regarding the naturalness of synthetic citric and ascorbic acids, and the label itself "could allow a trier of fact to conclude that Dole's description of its products as 'All Natural Fruit' is misleading to a reasonable consumer." Id. at 3. The court did, however, reject the plaintiff's claims for the sale of "illegal products." The plaintiff argued Dole's sales were illegal under California law because Dole had made deceptive misrepresentations about the fruit on its website. Because "Brazil did not see the allegedly offending statements before he purchased the fruit," the claims could not have influenced Brazil's purchase; that is, he could not have relied on the claim (a necessary element for his unfair competition claim). The court also rejected Brazil's "outlandish theory" that he could be liable for possessing "illegal" fruit. Id. at 6. Implications The Ninth Circuit's opinion will likely prove useful for both defendants and plaintiffs. For defendants, the ruling on class certification reaffirms that class-action plaintiffs seeking to recover money (as distinguished from injunctive relief) must provide an adequate damages model that shows the price premium (the "value") attributable to the alleged misleading product label ("All Natural" in Brazil). To satisfy the predominance requirement for certification of a damages class under Rule 23(b)(3), plaintiffs must "explain how this premium could be calculated with proof common to the class." Id. Challenging putative class-action plaintiffs on this score is often successful, but it requires detailed analysis and convincing expert testimony. The Ninth Circuit's decision confirms the importance of damages models in class-action cases involving food labels. On the other hand, plaintiffs suing over "All Natural" labels will take some comfort in the merits portion of the Ninth Circuit's decision -- including the Ninth Circuit's treatment of the FDA warning letters and plaintiff's testimony of deception. By moving away from the district court's notion that a plaintiff alleging deception must show that a reasonable consumer would not expect to find the added substance in the product, the Ninth Circuit has made it easier for plaintiffs to pursue "All Natural" claims based on small disparities between a product's label and the product's contents. Under the Ninth Circuit's approach, plaintiffs may bring such claims even if reasonable consumers would expect the natural version of a synthetic ingredient to be in the product. Nonetheless, on the plus side for class-action defendants, the Ninth Circuit rejected Brazil's claim that the sale of Dole's "All Natural" fruit was "illegal" under the Unfair Competition Law because Brazil did not see the label before purchasing the product. EAGLE MARINE: Oct. 18 Hearing Set for "O'Neal" FLSA Claims ---------------------------------------------------------- In the case, IVAN O'NEAL, on behalf of himself and all other similarly situated persons, Plaintiff, v. EAGLE MARINE CONTRACTING, LLC d/b/a EM CONTRACTING and d/b/a EM CONTRACTING LLC, RAPHAEL G. BURCHFIELD, Defendants, Civil Action No. 16-cv- 00401-KD-B (S.D. Ala.), District Judge Kristi K. DuBose will hold a hearing for the collective action complaint under the Fair Labor Standards Act ("FLSA") on October 18, 2016. The Plaintiff was also ordered to file an amended response, due on October 12, 2016, clarifying whether he has been fully compensated for his claim of unpaid overtime compensation and liquidated damages. The Court noted that if the Plaintiff asserts that the Defendants' direct deposit did not fully compensate him for his claimed amounts of unpaid overtime compensation and liquidated damages, Plaintiff shall state what amounts he claims he is owed for unpaid overtime compensation and liquidated damages. A copy of the Court's Order dated October 5, 2016 is available at https://goo.gl/rVajf3 from Leagle.com. Ivan O'Neal, Plaintiff, represented by Ian David Rosenthal, Rosenthal Parks LLP. Ivan O'Neal, Plaintiff, represented by Richard W. Fuquay. Eagle Marine Contracting, LLC, et al., Defendants, represented by Arnold W. Umbach, III -- tumbach@starneslaw.com -- Starnes Davis Florie LLP & Breanna Harris Young -- byoung@starneslaw.com. EARLYSHARES.COM: Has Made Unsolicited Calls, Action Claims ---------------------------------------------------------- Lawrence E. Schwanke d/b/a Back to Basics Family Chiropractic DC, individually and as the representative of a class of similarly-situated persons v. EarlyShares.com, Inc. and John Does 1-12, Case No. 5:16-cv-00593-CEM-PRL (M.D. Fla., September 28, 2016), seeks to stop the Defendants' practice of using an artificial and prerecorded voice to deliver a message without prior express consent of the called party. EarlyShares.com, Inc. operates a financial service company located at 1200 Brickell Ave. Suite 510 Miami, FL 33131. The Plaintiff is represented by: Phillip Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N La Salle St Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 E-mail: phil@bockhatchllc.com ECCO SELECT: Faces "Pearce" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Roxanne Pearce, on behalf of herself and all others similarly situated v. ECCO Select Corporation, Case No. 4:16-cv-01051-DW (W.D. Miss., September 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. ECCO Select Corporation is a nationwide IT support company incorporated in Missouri, with its principal place of business in Kansas City, Missouri. The Plaintiff is represented by: Eric L. Dirks, Esq. Jordan Baehr, Esq. WILLIAMS DIRKS DAMERON, LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 876-2600 Facsimile: (816) 221-8763 E-mail: dirks@williamsdirks.com jbaehr@williamsdirks.com EI DUPONT: 3rd Cir. Voids Employer's Practice of Offsetting ----------------------------------------------------------- Circuit Judge Marjorie O. Rendell of the United States Court of Appeals, Third Circuit, reversed the district court's decision and remanded the case, entitled BOBBI-JO SMILEY; AMBER BLOW; KELSEY TURNER, Appellants, v. E.I. DUPONT DE NEMOURS AND COMPANY; ADECCO USA, INC, No. 14-4583 (3d Cir.) Plaintiffs Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner worked 12-hour shifts at DuPont De Nemours & Company's manufacturing plant in Towanda, Pennsylvania. In addition to working their 12- hour shifts, plaintiffs had to be on-site before and after their shifts to don and doff uniforms and protective gear. DuPont also required them to participate in shift relief, which involved employees from the outgoing shift sharing information about the status of work with incoming shift employees. The time spent donning, doffing, and providing shift relief varied, but ranged from approximately 30 to 60 minutes a day. DuPont chose to compensate plaintiffs for meal breaks, despite no Fair Labor Standards Act requirement to do so during their 12-hour shifts. Employees who worked 12-hour, four-shift schedules, were entitled to one 30-minute paid lunch break per shift, in addition to two non-consecutive 30-minute breaks. The paid break time always exceeded the amount of time plaintiffs spent donning and doffing and providing shift relief. DuPont treated the compensation for meal breaks similarly to other types of compensation given to employees. It included the compensation given for paid meal breaks when it calculated employees' regular rate of pay, and meal break time was included in employees' paystubs as part of their total hours worked each week. Plaintiffs brought a putative collective action and class action against DuPont, claiming that DuPont violated the Fair Labor Standards Act and Pennsylvania's Wage Payment and Collection Law by requiring plaintiffs to work before and after their 12-hour shifts without paying them overtime. Plaintiffs sought to recover overtime compensation for time spent donning and doffing their uniforms and protective gear and performing shift relief. DuPont argued that their claims fail because it could offset the paid breaks DuPont voluntarily provided plaintiffs against the unpaid donning and doffing and shift-relief time. Plaintiffs filed a motion to conditionally certify a FLSA collective action, which the District Court granted. DuPont filed a motion for summary judgment, which the district court granted, holding that the FLSA allowed DuPont to use paid non-work time to offset the required overtime and dismissing the lawsuit entirely. The district court held that plaintiffs were not owed any additional compensation because the amount of paid non- work time exceeded unpaid work time. Although it recognized that the FLSA does not expressly grant employers permission to use paid non-work time to offset unpaid work time, the district court nonetheless concluded offset was not specifically prohibited and therefore granted summary judgment in favor of DuPont. Plaintiffs appealed. Judge Rendell held that the FLSA and applicable regulations, as well as the precedent decision in Wheeler v. Hampton, compel the opposite result. In Wheeler, the court held that an employer may not use a compensation to offset other compensation owed under the FLSA and that offsetting was limited to the type addressed by section 207(h), which only pertains to extra compensation, which is distinct from regular straight time pay. Given the decision in Wheeler, where limiting offsetting to extra compensation is not included in the regular rate. Judge Rendell reversed the district court's order and remanded the case for further proceeding. A copy of Judge Rendell's opinion dated October 7, 2016, is available at https://goo.gl/mqrGhF from Leagle.com. Patricia V. Pierce -- p.pierce@gpeff.com -- at Greenblatt Pierce Engle Funt & Flores; Thomas M. Marrone -- at More Marrone, Counsel for Appellants, Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner David S. Fryman -- fryman@ballardspahr.com -- Amy L. Bashore -- bashorea@ballardspahr.com -- at Ballard Spahr, Counsel for Appellee, E. I. du Pont de Nemours and Company A. Patricia Diulus-Myers -- DiulusMP@jacksonlewis.com -- Eric R. Magnus -- MagnusE@jacksonlewis.com -- at Jackson Lewis, Counsel for Appellee, Adecco USA, Inc. Counsel for Amicus Curiae, Secretary, United States, Department of Labor: Richel Goldberg, Esq. United States Department of Labor Division of Fair Labor Standards Room N2716, 200 Constitution Avenue, N.W. Washington, DC 20210 The United States Court of Appeals, Third Circuit panel consists of Judges Marjorie O. Rendell, Thomas I. Vanaskie and Cheryl Ann Krause. ESPERANZA MANAGEMENT: Former Servers Sue Over Unpaid Gratuities --------------------------------------------------------------- John Christensen, writing for The Chronicle-Express, reports that two former servers at the Esperanza Mansion (currently up for sale in an online auction) have filed a class action lawsuit against the business and its owner, David Wegman. The named plaintiffs, Shari Folts and Gail Owen, on behalf of themselves and all others employed at Esperanza (through their attorneys, Justin M. Cardello, Cordello Law PLLC and Robert L. Mullin, Ferr & Mullin P.C.) have brought a class action complaint against Esperanza Management LLC, Esperanza Properties LLC, the Wegman Group LLC; as well as David Wegman individually and as owner of those businesses. The lawsuit seeks to recover damages for unpaid wages on behalf of banquet service workers, including servers, bartenders, and bussers who have worked at Esperanza Mansion, claiming Esperanza illegally retained gratuities customers paid as service charges during the previous six years in violation of N.Y. Labor Law. According to the documents filed in Yates County Court, Folts worked as a banquet server at the mansion from approximately Sept. 2008 until Oct. 2012, as did Owen from June 2011 until Oct. 2012, and were paid on an hourly basis. "The Class" plaintiffs are estimated at more than 40 banquet service staff including servers, bussers, and bartenders from six years prior to the lawsuit and continuing through its final judgment. The suit claims Esperanza and Wegman illegally kept mandatory charges collected from customers in violation of the law instead of passing them on to his employees. Referred to as a "service charge" on menus, the plaintiffs contend it failed to include the necessary disclaimers indicating that these mandatory charges were in fact kept by Wegman, and not distributed to banquet service employees who provided service to the guests. "Instead, defendants retained the mandatory charge, and plaintiffs are paid on an hourly basis and do not receive any of the collected mandatory charge for service," states the suit. "As a result of defendants' policy, the named plaintiffs and the class are owed the gratuities illegally retained by defendants from service charges paid by customers." The suit claims Wegman failed to operate Esperanza as legally separate by corporate formalities necessary to operate as corporations; failing to hold annual meetings or maintaining appropriate corporate records; transferring assets and debts freely between all the entities; operating them for his own benefit and maintaining control over these entities as closed companies; and intermingling assets and debts of his own with Esperanza Management to avoid full liability to protect his own interests. When contacted, Wegman deferred requests for comment to his attorney, Colleen Holland of Boylan Code LLP in Rochester, who says she cannot comment on the details, "but we plan to vigorously defend against the allegations made by these former servers." No response to the suit has been filed with the Yates County Clerk's Office. The plaintiffs are demanding an order restraining the alleged pay violations plus the unpaid gratuities and costs. EVERBANK FINANCIAL: Sued Over Proposed Teachers Insurance Merger ---------------------------------------------------------------- Paul Parshall, individually and on behalf of all others similarly situated v. Everbank Financial Corp., Robert Clements, Blake Wilson, Scott M. Sturt, Joseph D. Hikel, Merrick R. Kleeman, W. Radford Lovett, II, Arrington H. Mixon, Robert J. Mylod, Jr., Russell B. Newton, III, William Sanford, Richard P. Schifter, Teachers Insurance and Annuity Association of America, TCT Holdings, Inc., and Dolphin Sub Corporation, Case No. 3:16-cv- 01235-TJC-PDB (M.D. Fla., September 27, 2016), is brought on behalf of all public stockholders of Everbank Financial Corp., to enjoin the proposed merger of Everbank and Teachers Insurance and Annuity Association of America, through a flawed process and inadequate consideration. Everbank Financial Corp. is a unitary savings and loan holding company headquartered in Jacksonville, Florida. Teachers Insurance and Annuity Association of America is a financial services organization that is a retirement provider for people who work in the academic, research, medical and cultural fields. The Plaintiff is represented by: Christopher S. Polaszek, Esq. THE POLASZEK LAW FIRM, PLLC 3407 W. Kennedy Blvd. Tampa, FL 33609 Telephone: (813) 574-778 E-mail: chris@polaszeklaw.com - and - Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (302) 295-5310 E-mail: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com jjr@rl-legal.com FLORIDA POWER: Faces "Gil" Suit in Southern Dist. of Florida ------------------------------------------------------------ A class action lawsuit has been filed against Florida Power and Light Company. The case is captioned Juan Carlos Gil and Andres Gomez, on their own behalf, and on behalf of all other individuals similarly situated, the Plaintiff, v. Florida Power and Light Company, the Defendant, Case No. 1:16-cv-24180-UU (S.D. Fla., Sept. 30, 2016). The case is assigned to Hon. Judge Ursula Ungaro. Florida Power & Light Company, the principal subsidiary of NextEra Energy Inc., is a Juno Beach, Florida-based power utility company serving roughly 4.7 million accounts and 9 million people in Florida. The Plaintiffs are represented by: Scott Richard Dinin, Esq. SCOTT R. DININ, P.A. 4200 NW 7th Avenue Miami, FL 33127 Telephone: (786) 431 1333 Facsimile: (786) 513 7700 E-mail: srd@dininlaw.com FORD MOTOR: Lead Applicant Loses Bid to Halt Settlement Offers -------------------------------------------------------------- King & Wood Mallesons reports that recent class action judgments have considered the potential for conflicts of interests arising in the course of class actions. The latest example of this arose in the Ford class action where Justice Perram of the Federal Court refused to grant orders sought by the lead applicant to restrain the respondent from communicating offers of settlement to group members. In doing so, his Honour, emphasized the role the Court plays in protecting the interests of non-party group members (ie group members who have not retained the lead applicant's lawyers). In this case, his Honour found that non-party group members were not being unfairly treated by the direct offers being made: rather, it was the lead applicant and her lawyers whose interests might be affected by a reduction in the size of the class if people accepted the offers. Why did the lead applicant want these orders? In May 2016, a class action was commenced against Ford Motor Company of Australia Limited, claiming that: -- Ford had imported, sold, supplied and distributed vehicles with automatic transmissions that were defective, in breach of a statutory guarantee under the Australian Consumer Law; and -- Ford's promotional materials failed to mention the existence of the alleged problems, and therefore constituted misleading or deceptive conduct. This is an 'open' class action, with the class being persons who had purchased the affected vehicles within the relevant timeframe. As is common, the firm representing the applicant, Bannister Law, has a dedicated website through which persons can register their interest in participating in the class action and enter into a fee agreement with Bannister Law (on a no-win no-fee basis). To date, not all purchasers of the allegedly defective vehicles have contacted Bannister Law. In fact, many approached Ford directly and, in some of these cases, Ford has communicated offers of settlement to vehicle owners which have included releases of the owner's rights and confidentiality clauses. The lead applicant sought orders restraining Ford from (among other things): -- sending letters offering settlement to group members; and -- communicating with group members other than in accordance with a protocol proposed by the applicant. The Court's jurisdiction and role as guardian The Court accepted that it had power to restrain the ability of a respondent to communicate with group members under s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), using its general power to make orders that it thinks "appropriate or necessary to ensure that justice is done in the proceeding." Perram J emphasized the need for the Court to ensure that group members not before the Court were not unjustly disadvantaged by the actions of the parties who were. His Honour noted that in using its jurisdiction, the Court must look out for the interests of the non-party group members, rather than the interests of those running the class action. In exercising its powers, Perram J noted, the Court's role is akin to that of a guardian. Unfairness and injustice in settlement offers Turning to whether Ford's direct settlement offers to group members were fair and just, Perram J cited the decision of Courtney v Medtel, in which Sackville J held the following conditions were appropriate for settlement offers: -- the offer be in writing; -- the consequences of accepting and not accepting the offer be explained; -- the period for acceptance be sufficient for a Group Member who wishes to do so to have a genuine opportunity to obtain legal advice; and -- making it clear that the Group Member is entitled to seek and might benefit from independent legal advice. Perram J considered the context of the offer to be critical in considering the settlement offers: in each instance, the communication process was initiated by the customer and not Ford, in that it was the customer and not Ford who made initial contact regarding the allegedly defective vehicle. Ford was not "actively seeking out group members to persuade them to surrender their rights as group members" and the fact that vehicle owners were seeking out Ford meant that there was nothing exploitative about the situation. The four criteria referred to above were held to have been met by Ford. Conflicts of interest The lead applicant made several submissions in respect of content that she considered should have been included in Ford's offers of settlement, including: -- naming Bannister Law as a potential source of advice in terms of deciding whether to accept each offer; -- noting that the vehicle owner might get more or less in the class action; -- requiring the vehicle owner when accepting the offer to say whether they had, or had not, obtained legal advice; and -- notifying vehicle owners of ways of finding out about the class action, specifically via Bannister Law's website. Perram J rejected each of these submissions. In doing so, His Honour highlighted a concern in the conduct of class actions regarding the conflicts of interest which may arise. Perram J stated that there was no legitimate basis upon which s 33ZF(1) might warrant any intervention by the Court. His Honour went on to note that: It is not necessary to resolve . . . the question whether Bannister Law might itself have a conflict between its own potential interest in expanding the class and its duty to give disinterested advice to a vehicle owner on whether to stay in the class action or accept Ford's offer and be removed from it. The very nature of class actions is such that conflicts may arise in relation to litigation funding arrangements, fee arrangements with law firms, disclosures to group members and the terms of proposed settlements. In considering the proposed settlement of the Willmott Forests class action, Murphy J noted that several potential conflicts of interest existed under the terms of settlement proposed, including between: His Honour refused to approve the proposed settlement on the basis that the settlements may constitute a significant detriment for non-participating (and largely non-client) class members, stating that: The settlements should not be approved until the conflicts are recognized and properly dealt with. The Federal Court's draft Class Actions Practice Note expressly requires applicant's solicitors and litigation funders to disclose any potential conflicts of interests to the applicant and class members. King & Wood Mallesons expects this practice note to be finalized later this year. The case is Capic v Ford Motor Company of Australia Limited. GATEWAY PLAZA: Plaintiff Accuses Landlord of Intimidation Tactics ----------------------------------------------------------------- Colin Mixson, writing for Downtown Express, reports that the ongoing class-action lawsuit against the landlord and management of Battery Park City's Gateway Plaza is getting nasty, with a former deputy mayor accusing the head of the tenants association of intimidating plaintiffs on behalf of Gateway's landlord -- a charge he vehemently denies. Gateway tenant and chairwoman of Community Board 1's Battery Park City Committee Ninfa Segarra says that shortly after she agreed to join the lawsuit, Gateway Plaza Tenants Association president Glenn Plaskin threatened her lease. "Mr. Plaskin told me he found out I joined the Gateway class action . . . then asked me if I understood the 'dangers' involved in the case," Ms. Segarra testified in a Sept. 6 affidavit filed in support of a cease-and-desist motion accusing Mr. Plaskin of acting on behalf Gateway's management and landlord to convince plaintiffs to drop out of the lawsuit. Mr. Plaskin emphatically rejected Ms. Segarra's accusations in a responding affidavit, denying that he has ever threatened a Gateway tenant, or ever acted as an agent of the lawsuit defendants. "I have never threatened any tenant, nor would I," said Mr. Plaskin. "As President of the Gateway Plaza Tenants Association, I advocate for the rights of the tenants and for improving the quality of life at Gateway. I absolutely do not work for Gateway management." Ms. Segarra, who served as a deputy mayor for Rudy Giuliani, had agreed to join the lawsuit to replace other plaintiffs representing the class who dropped out, potentially scuttling the class-action suit. The class action was first brought against Marina Towers Associates and Gateway Plaza Management in 2014 by two Gateway tenants, Maureen Koetz and Jennifer Rajkumar, who alleged that tenants were forced to endure freezing temperatures and pay exorbitant heating bills as a result of "defective" windows and heating units at the six-building, 1,712-unit complex. The suit had to be refiled, however, after Ms. Rajkumar was accused of plagiarizing complaint documents that law firms Morgan & Morgan and Newman Ferrara claimed to have written. The two firms later joined the refiled suit, and tenants Barbara Stoebel and David Spencer replaced Ms. Rajkumar and Ms. Koetz as representative plaintiffs. In August, the plaintiffs' attorneys filed another motion requesting that Ms. Stoebel and Mr. Spencer be replaced as the suit's named plaintiffs by Gateway tenants Pauline Wolf -- who has since withdrawn from the suit -- and Ms. Segarra, who will become the sole remaining plaintiff when and if the judge approves the motion. Ms. Segarra alleges that she was approached by Mr. Plaskin just days after the motion to include her as a named plaintiff were filed with the courts, and that he insinuated that Gateway's landlord would refuse to renew her lease if she was indeed named in the suit, according to court documents. "[Plaskin] stated something to the effect of: "Don't you want to get a lease renewal? Participating in a lawsuit can cause you problems," read the affidavit filed earlier this month. The plaintiffs' attorneys are now leveraging Ms. Segarra's testimony against Mr. Plaskin in order to obtain a cease-and- desist order against the tenant's association president, and approve discovery of any correspondences between Mr. Plaskin and the defendants, according to court documents. In his response, Mr. Plaskin said that Ms. Segarra had distorted his comments to her, and that he actually told her the lawsuit was complicating his ongoing efforts renew an agreement with Gateway Plaza's landlord, the LeFrak Organization to extend rent stabilization beyond 2020. Furthermore, Mr. Plaskin said that, as president of the tenants association, he has remained neutral in regards to the class action lawsuit and, as such, has in the past declined to provide interviews on the suit or provide any statements at tenant association meetings other than to state that the GPTA board voted unanimously to remain neutral, he testified in an affidavit filed on Sept. 24. Mr. Plaskin acknowledged that did call one of the plaintiffs' lawyers earlier this year about dropping the suit, testifying in his affidavit that he initially expressed concern that the lawsuit may harm the building's ability to retain its rent stabilized status, before inquiring as to whether it could be dropped. LeFrak has already begun to resolve the underlying cause of the lawsuit's main grievance, agreeing a year ago to replace all 10,000 of its notoriously drafty windows. "Gateway has commenced a window replacement project," said a spokesperson for the management. "The project is expected to be complete by fall 2017 pending any unforeseen delays." GENERAL MILLS: Faces Class Action Over Deceptive "Healthy" Claims ----------------------------------------------------------------- Steve Myers, writing for Natural Products Insider, reports that General Mills touts its products as healthy, but they contain unhealthy levels of sugar, according to a class action lawsuit filed by consumers. The suit, filed Aug. 29 in U.S. District Court for the Northern District of California, San Francisco, alleged General Mills made false claims for a number of its cereals and breakfast bars, including Cheerios, Fiber One and Nature Valley brands. In the filing, plaintiffs Bev Truxel and Stephen Hadley stated the science on the dangers of excessive sugar intake is "compelling," yet General Mills has marketed its high-sugar products using health and wellness claims. "These claims, however, are deceptive because they are incompatible with the significant dangers of the excessive added sugar consumption to which these foods contribute," they argued, in the complaint. The lawsuit noted that of all the forms of sugar used as sweeteners, fructose appears to be the most dangerous, and an addiction to sugar has created a vicious cycle leading to epidemic obesity and chronic illness, including type 2 diabetes, cardiovascular disease, Alzheimer's, liver disease and some cancers. "In 2014, the cereal industry used 816 million pounds of sugar, or about 2.5 lbs. for each of the 318.9 million people in the U.S. in 2014," the suit stated. "That is 1,134 grams per person, or 3 grams per person, per day, for every man, woman, and child in the United States. That totals more than 361 billion grams of sugar in one year." According to the complaint, General Mills is the sixth largest food company in the world, and produces the top-selling cereal in United States -- Honey Nut Cheerios (US$502.2 million in 2015 sales). "General Mills has maintained . . . to this day . . . a policy and practice of labeling high-sugar foods -- those that contribute significantly more than 5 percent of calories from sugar, and thus whose regular consumption is likely to contribute to increased risk for, and contraction of chronic disease -- with various health and wellness claims that suggest its foods are healthy, when they are not," the plaintiffs alleged. General Mills is accused in the suit of both originating and repeating aggressive health and wellness claims. The plaintiffs listed out numerous instances of misleading statements associated with General Mills products, including "whole grain," "lightly sweetened" "wholesome," "nourish," "goodness" and "no high fructose corn syrup." One quirky statement in the lawsuit indicates the plaintiffs are willing to continue their longstanding loyalty as consumers of General Mills products if certain changes are made. "If they could be assured through prospective injunctive relief that, if a General Mills food label sets forth health and wellness claims, the product does not contain excess sugar, they would consider purchasing General Mills products bearing such claims in the future." The class action filing, which specifically alleged violations of California's False advertising Law, Consumers Legal Remedies Act and Unfair Competition Law, asks the court to make General Mills change its practice of false and misleading claims and advertising, as well as pay restitution to cover the money consumers paid for products marketed and advertised with such claims. At press time, attorneys for General Mills had not responded to INSIDER's request for comment. GEO GROUP: Faces "Birdsell" Class Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been commenced against The GEO Group Inc. The case is captioned Angela Birdsell, on behalf of herself and all others similarly situated v. The GEO Group Inc. and Does 1-10, inclusive, Case No. 5:16-cv-02054 (C.D. Cal., September 27, 2016). The GEO Group Inc. is a Florida-based company specializing in corrections, detention and mental health treatment. Angela Birdsell is a pro se plaintiff. GLOBAL CREDIT: Faces "Gold" Suit Over Debt Collection Policies -------------------------------------------------------------- Libby Gold, on behalf of herself and all other similarly situated consumers v. Global Credit & Collection Corp., Case No. 1:16-cv- 05404 (E.D.N.Y., September 27, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Global Credit & Collection Corp. operates a debt collection firm in New York. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, P.C. 735 Central Avenue Woodmere, NY 11598 Telephone: (516) 668-6945 E-mail: fishbeinadamj@gmail.com GLOBAL CREDIT: Faces "Neuhaus" Suit Over Debt Collection Policies ----------------------------------------------------------------- David Neuhaus, on behalf of himself and all other similarly situated consumers v. Global Credit & Collection Corp., Case No. 1:16-cv-05414 (E.D.N.Y., September 28, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Global Credit & Collection Corp. operates a debt collection firm in New York. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, P.C. 735 Central Avenue Woodmere, NY 11598 Telephone: (516) 668-6945 E-mail: fishbeinadamj@gmail.com GOOGLE: Age Discrimination Suit Gets Conditional Certification -------------------------------------------------------------- Ethan Baron, writing for SiliconBeat, reports that an age- discrimination lawsuit against Google has cleared a hurdle -- over Google's objections -- and received conditional certification as a class action. "How does age factor into one's Googleyness?" Judge Beth Freeman of U.S. District Court in San Jose wrote at the start of her order handed down on Oct. 5. Conditional certification is the first of two stages in approving a lawsuit as a class action and allows court-authorized notices to be sent to potential plaintiffs who could join the lawsuit. Plaintiff Cheryl Fillekes claims Google interviewed her in person for four different jobs from 2007 to 2014, "including some occasions when Google affirmatively reached out to her about the opening based on her impressive qualifications and didn't hire her," according to a court filing. She was 47 when first interviewed, the document said. Ms. Fillekes' lawsuit also revealed that Google is under federal investigation over age-discrimination complaints. Judge Freeman said she found none of Google's arguments against Ms. Fillekes' motion for class certification to be compelling. Google had argued, for example, that it had a policy against age discrimination. "Having such a policy does not necessarily shield a company from a discrimination suit, particularly in light of the evidence and allegations presented here," the judge wrote. Among Ms. Fillekes' allegations is her claim that a Google recruiter told her to put her graduation dates on her resume so the company could see how old she was. Ms. Fillekes also submitted to the court declarations from seven people she claimed had experiences with Google similar to hers. A Google spokesperson described the lawsuit's allegations as "without merit," and said the company would continue to defend its position vigorously. "We have strong policies against discrimination on any unlawful basis, including age," the spokesperson said. While the lawsuit has cleared a hurdle, it was a relatively easy one to get over, as evidentiary requirements in the first stage of class action certification are "relaxed," Judge Freeman noted. The second stage, when the class action may be legally certified, has more stringent requirements for evidence. GRANT THORNTON: Dismissed as Defendant in La. Securities Suit ------------------------------------------------------------- Stroock & Stroock & Lavan LLP client Grant Thornton International Ltd. was dismissed from a federal lawsuit seeking $100 million in damages from numerous defendants for alleged securities law violations. On September 15, 2016, District Court Judge Shelley D. Dick of the Middle District of Louisiana dismissed all claims against Grant Thornton International Ltd., which have been pending since 2013, for lack of personal jurisdiction. The victory follows Stroock's earlier successful appeal to the United States Court of Appeals for the Fifth Circuit, which in a matter of first impression, vacated the District Court's prior order remanding the case to state court and directed that the case proceed in federal court under the Court's bankruptcy subject matter jurisdiction. Stroock then continued to advocate for dismissal of Grant Thornton International Ltd. for lack of personal jurisdiction. This is an actively evolving area of the law where it has become increasingly difficult to bring claims against foreign entities in US courts when those claims do not arise from contacts between those entities and the relevant forum in the US. The Court agreed that was the case here. Stroock attorneys representing Grant Thornton International Ltd. were James L. Bernard -- jbernard@stroock.com -- and David M. Cheifetz -- dcheifetz@stroock.com -- along with Craig Isenberg -- cisenberg@barrassousdin.com -- and Stephen L. Miles -- smiles@barrassousdin.com -- of Barrasso, Usdin, Kupperman, Freeman & Sarver in New Orleans. Stroock's Bernard and Cheifetz said, "We are extremely pleased with the Court's decision, including that Grant Thornton International Ltd. is a non-practicing UK-based umbrella entity that had nothing to do with the audit reports or transactions at issue in this case and had no relevant contacts with the US that would subject it to the jurisdiction of US courts." Additional Matter Details Plaintiffs were several Louisiana municipal pension funds that brought various claims in Louisiana state court seeking to recover their alleged $100 million lost investment in a bankrupt Cayman Islands hedge fund. Plaintiffs alleged that Grant Thornton International Ltd was liable for plaintiffs' losses in connection with audit reports prepared for the fund. The Court found that Grant Thornton International Ltd. is a non-practicing international umbrella entity, incorporated in England and Wales and headquartered in London, which performs no audit work. The Court then evaluated Grant Thornton International Ltd's alleged contacts with the United States and found that it had insufficient contacts with the United States for either general or specific personal jurisdiction. The Court agreed with Stroock's argument that absent exceptional circumstances, which were not present in this case, controlling authority from the United States Supreme Court excluded the possibility for general jurisdiction in the United States over a United Kingdom entity such as Grant Thornton International Ltd. The Court further agreed that the plaintiffs did not meet their burden to establish specific jurisdiction over Grant Thornton International Ltd. because the plaintiffs did not plead any direct or purposeful communication by Grant Thornton International Ltd directed at the United States from which the claims arose. Earlier in the proceedings, after defendants removed the case to federal court, Judge Dick decided to abstain from exercising federal subject matter jurisdiction and ordered the case remanded to Louisiana state court without deciding Grant Thornton International Ltd's pending motion to dismiss. Stroock successfully led the appeal of that decision on various bankruptcy-related grounds to the Fifth Circuit Court of Appeals, which, after considering several issues of first impression, unanimously vacated the District Court's abstention and remand order and required the District Court to exercise its federal jurisdiction over the claims. Following the Supreme Court's denial of plaintiffs' petition for certiorari, to which Stroock filed an opposition, Judge Dick then granted Grant Thornton International Ltd's motion to dismiss for lack of personal jurisdiction. Stroock & Stroock & Lavan LLP -- http://www.stroock.com-- is a law firm providing transactional, regulatory and litigation guidance to financial institutions, multinational corporations, investment funds and entrepreneurs in the U.S. and abroad. With a rich history dating back 140 years, the firm has offices in New York, Washington, DC, Los Angeles and Miami. GREAT AMERICAN INSURANCE: Shareholders Challenge Merger Deal ------------------------------------------------------------ Courthouse News Service reported that shareholders claim in a federal class action in Cleveland, that Great American Insurance Co. is trying to buy National Interstate Corp. stock too cheaply by issuing misleading financial information to get the proposed merger approved. GUAM: H-2b Visa Class Action May be Necessary to Resolve Issue -------------------------------------------------------------- Ken Quintanilla, writing for KUAM, reports that Congresswoman Madeleine Bordallo says a class action lawsuit over the denial of H-2b visas is unfortunate, but believes it may be "necessary to resolve the current impasse in a more permanent fashion." On Oct. 5, Attorney Jennifer Davis on behalf of 12 companies on Guam filed the lawsuit in the District Court of Guam against officials from the federal government. Ms. Bordallo says the nearly 100% denial rate of H-2b visas over the past year continues to negatively impact our island. She adds the denial of visas is concerning as Guam's organic workforce cannot meet our current labor demands especially with the specialties that many of these H-2b workers provide. Ms. Bordallo says she will fight for the inclusion of her legislative fix for this problem in the Fiscal Year 2017 defense authorization bill. GUARDIAN EYES: Fails to Pay Employees OT, "McElrafth" Suit Says --------------------------------------------------------------- Shandra McElrafth, on behalf of herself and all others similarly situated v. Guardian Eyes LLC, Case No. 5:16-cv-02394 (N.D. Ohio, September 27, 2016), is brought against the Defendant for failure to pay non-exempt home health aides, overtime compensation at the rate of one and one-half times their regular rate of pay for the hours they worked over 40 each workweek. Guardian Eyes LLC is a home health care business. The Plaintiff is represented by: David J. Steiner, Esq. Chastity L. Christy, Esq. Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 E-mail: david@lazzarolawfirm.com chastity@lazzarolawfirm.com anthony@lazzarolawfirm.com lori@lazzarolawfirm.com INDIANA: BMV Challenges Cohen & Malad's Attorney Fees Request ------------------------------------------------------------- The Indiana Lawyer reports that the Indiana Bureau of Motor Vehicles is once again challenging an Indianapolis law firm's motion to collect attorney fees in the class action it brought against the BMV for years of customer overcharges. After plaintiff's counsel in Tammy Raab v. Kent W. Abernathy, Indiana Bureau of Motor Vehicles, 49D11-1310-PL-038001, filed a motion for attorney fees for creating a $28.75 million common fund to benefit customers who had been overcharged for BMV services for several years, the BMV's counsel filed an opposition to the motion on Oct. 4, saying that the common fund does not exist and that Cohen & Malad, the firm representing the class, is trying to capitalize on a moot lawsuit. Earlier in September, Irwin Levin -- ilevin@cohenandmalad.com -- filed an application for a temporary restraining order and a preliminary injunction for the attorney fees, a motion the BMV also opposed. The Marion Superior Court rejected that application on Sept. 16. In a memorandum of support filed along with the motion for attorney fees on Sept. 19, Mr. Levin, a Cohen & Malad attorney who has acted as lead plaintiff's counsel in the class action, said that because a $28.75 million common fund was created for the refunds as a direct result of his firm's efforts in the suit, he and the firm are entitled to one-third of the total as attorney fees. In his filing, Mr. Levin wrote that the efforts of the class's counsel in the suit had forced the BMV to identify more than 100 additional customer overcharges in 2015 that the bureau had not previously identified. Because the plaintiff's counsel had led to the identification of the additional overcharges, a $28.75 million common fund had been created, and existing caselaw required that part of that fund be put toward attorney fees, Mr. Levin said. In his Oct. 4 response to Mr. Levin's latest filing, Carl Hayes, lead counsel for the BMV in the case, maintained that the common fund does not exist. The Indiana Court of Appeals has held that a common fund exists when a class action ends in a settlement or a judgment for the class, two things that have not happened in the Raab v. Abernathy case, Mr. Hayes wrote. Further, Mr. Hayes argued that a common fund must exist "under the supervision of the court." The BMV began distributing the funds one month before the class-action suit was filed, Mr. Hayes said, so the refunds were never under court supervision. In his September filing, Levin had argued that the BMV began distributing the $28.75 in refunds without court approval in an attempt to "execute an end-run around the Court and the certified Class, to avoid facing a determination of liability by the Court and the prevent the Court from awarding attorneys' fees to Class Counsel for their efforts in obtaining the very benefits sought through this lawsuit." But Mr. Hayes argued in his Oct. 4 filing that the class action was moot at the time of its filing in October 2013. The BMV had already begun the refund process in September 2013, Mr. Hayes wrote, so the suit had no legal merit. "Plaintiff's Counsel presumes they are entitled to fees for filing and litigating a moot, legally deficient lawsuit that never had the potential to benefit anyone but Plaintiff's Counsel," Mr. Hayes wrote in the opposition filing. A bench trial was held Sept. 28 on the case in Marion Superior Court, Civil Division 11. The judge, John Hanley, asked for additional time to issue a ruling on the case. INTERNATIONAL BANK: 5th Cir. Sends Overtime Suit to Arbitration --------------------------------------------------------------- Robert Iafolla, writing for Reuters, reports that a federal appeals court sent a collective action for overtime claims against a Texas bank to arbitration, ruling that a former bank teller's arbitration agreement should have been addressed at the outset of the litigation. In a unanimous decision handed down on Oct. 4, a three-judge panel of the 5th U.S. Circuit Court of Appeals reversed a federal judge in Corpus Christi, Texas who held that a bid by the International Bank of Commerce (IBC) to force the claims into arbitration must wait until after the decision as to whether to certify the collective is made. JB MEDICAL MANAGEMENT: Faces "Schwanke" Suit in M.D. Fla. --------------------------------------------------------- A class action lawsuit has been filed against JB Medical Management Solutions, Inc. The case is styled Lawrence E. Schwanke, doing business as Back to Basics Family Chiropractic DC, a Florida resident, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. JB Medical Management Solutions, Inc., McKesson Corporation, McKesson Business Performance Services, McKesson Technology Solutions, McKesson Provider Technologies, McKesson Technologies, Inc., and John Does 1-12, the Defendants, Case No. 5:16-cv-00597-JSM-PRL (M.D. Fla., Sept. 30, 2016). The case is assigned to Hon. Judge James S. Moody, Jr. JB Medical is a billing service provider. The Plaintiff is represented by: Phillip Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N La Salle St Suite 1000 Chicago, IL 60602 Telephone: (312) 658 5500 E-mail: phil@bockhatchllc.com KRAFT FOODS: $1.75MM Accord in "Rodriguez" Case Gets Final OK ------------------------------------------------------------- In the case, JOSE RODRIGUEZ, on behalf of himself and of all others similarly situated, Plaintiffs, v. KRAFT FOODS GROUP, INC., a Virginia corporation, and DOES 1 through 100, inclusive, Defendant, Case No. 1:14-cv-1137-LJO-EPG (E.D. Cal.), District Judge Erica P. Grosjean granted the Plaintiffs' Motion for Final Approval of Class Action Settlement. For purposes of the Settlement, the Settlement Class shall consist of all persons, who were employed by Kraft Heinz in California as hourly paid production employees at any time between June 5, 2010, through March 3, 2016. Under the terms of the settlement, the total settlement amount is $1,750,000.00, without a reversion. The Court ordered that: (a) the law firm of Westrup and Associates be appointed as class counsel for the settlement class, and should be awarded $448,549.69 in attorneys' fees and $13,507.84 in costs; (b) the Notice of Lien filed on August 26, 2016 against Duane Westrup and all the named entities in the Notice should be released; (c) Plaintiff Jose Rodriguez be appointed as a suitable class representative for the settlement class and be awarded $10,000.00 as a representative service payment; (d) the settlement administrator CPT Group Inc., be awarded $15,000.00; (e) the parties be directed to effectuate the settlement terms as set forth in the settlement agreement, and the settlement administrator should calculate and pay the claims of the class members in accordance with the terms set in the Settlement Agreement; and, (f) the Private Attorneys General Act (PAGA) penalties of $7,500.00 should be distributed as follows: 75% (approximately $5,625.00) to the Labor and Workforce Development Agency, and the remaining 25% (approximately $1,875.00) paid on a pro rata basis to class members. The Court ordered that the action be dismissed and judgment be entered in accordance with the terms of the settlement agreement; however, the Court shall retain continuing jurisdiction to interpret, implement, and enforce the settlement, and all related orders and judgments. A copy of the Court's FINDINGS AND RECOMMENDATIONS REGARDING: (1) PLAINTIFFS' MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT and (2) PLAINTIFFS' MOTION FOR ATTORNEYS' FEES, COSTS, EXPENSES AND CLASS REPRESENTATIVE INCENTIVE AWARDS dated Oct. 4, 2016, is available at https://is.gd/2gN6vW from Leagle.com. Jose Rodriguez, Plaintiff, represented by Cat Nguyen Bulaon, Westrup & Associates. Jose Rodriguez, Plaintiff, represented by Phillip R. Poliner, Westrup Klick LLP & R. Duane Westrup, Westrup Klick LLP. Kraft Foods Group, Inc., Defendant, represented by Douglas J. Farmer, Ogletree Deakins Nash Smoak & Stewart, PC & Victoria Lyons Tallman, Ogletree Deakins Nash Smoak & Stewart, P.C.. FINDINGS AND RECOMMENDATIONS REGARDING: (1) PLAINTIFFS' MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT and (2) PLAINTIFFS' MOTION FOR ATTORNEYS' FEES, COSTS, EXPENSES AND CLASS REPRESENTATIVE INCENTIVE AWARDS Jose Rodriguez, Plaintiff, represented by Cat Nguyen Bulaon, Westrup & Associates. Jose Rodriguez, Plaintiff, represented by Phillip R. Poliner, Westrup Klick LLP & R. Duane Westrup, Westrup Klick LLP. Kraft Foods Group, Inc., Defendant, represented by Douglas J. Farmer -- douglas.farmer@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, PC & Victoria Lyons Tallman -- victoriatallman@dwt.com -- Ogletree Deakins Nash Smoak & Stewart, P.C.. KY UNG WONG MIN: "Allaico" Suit to Recover Unpaid Overtime Pay -------------------------------------------------------------- Avelino Tenezaca Allaico, individually and on behalf of others similarly situated, Plaintiff, v. Ky Ung Wong Min, individually and 45 Queens Electric Supply Co. Inc., Defendants, Case No. 1:16- cv-05279 (E.D. N.Y., September 22, 2016), seeks unpaid overtime compensation, liquidated damages, penalties, pre-judgment and post-judgment interest, attorneys' fees and costs pursuant to the Fair Labor Standards and New York Labor Laws. 45 Queens Electric Supply Co. employed Plaintiff as a salesman at their store located at 45-36 3rd St., Long Island NY 11101. Plaintiff is represented by: Darren P.B. Rumack, Esq. THE KLEIN LAW GROUP 11 Broadway Suite 960 New York, NY 10004 Phone: 212-344-9022 Fax: 212-344-0301 LABOR READY: Faces "Rezendes" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Raymondo Rezendes, on his own behalf and on behalf of all others similarly situated v. Labor Ready Northeast Inc., Case No. 2:16- cv-00495-GZS (D. Me., September 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Labor Ready Northeast Inc. provides temporary manual labor to its customers through various locations throughout the country, including three locations in Maine. The Plaintiff is represented by: Andrew Schmidt, Esq. Peter Mancuso, Esq ANDREW SCHMIDT LAW, PLLC 97 India St. Portland, ME 0410 Telephone: (207) 619-0320 E-mail: andy@maineworkerjustice.com LANDCAR CASUALTY: Faces "Scholl" Suit in District of Oregon ----------------------------------------------------------- A class action lawsuit has been filed against Landcar Casualty Company. The case is captioned Patrick Scholl, on behalf of himself and all others similarly situated, the Plaintiff, v. Landcar Casualty Company, the Defendant, Case No. 3:16-cv-01922-AC (D. Oreg., Sept. 30, 2016). The case is assigned to Hon. Magistrate Judge John V. Acosta. Landcar Insurance is a Utah-based casualty insurance provider originally founded in 1989. The Plaintiff is represented by: Keil M. Mueller, Esq. Steve D. Larson, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227 1600 Facsimile: (503) 227 6840 E-mail: kmueller@stollberne.com slarson@stollberne.com LOYALTYONE: Air Miles Alters Rewards Programs Amid Class Action --------------------------------------------------------------- Sophia Harris, writing for CBC News, reports that after hearing complaints from customers this summer, Air Miles said it has changed the rules of its loyalty program. It explains that it previously gave members access to different rewards based on their individual personal preferences. But Air Miles says members' access to rewards is now solely based on their status level or tier within the program: blue, gold or onyx. According to the new rules, gold status -- achieved by collecting at least 1,000 miles in a year -- gives members access to a bigger selection of flights and merchandise. Elite onyx members -- those who earn at least 6,000 miles in a year -- get an even wider selection of those rewards. The shift brings Air Miles more in line with some other rewards programs that offer extra perks to users who pile up more points. It made the change because the original formula of tailoring rewards to personal tastes "was confusing to collectors," spokeswoman Natasha Lasiuk said in an email to CBC News. Air Miles has been under fire in the past for how it doled out -- or said it doled out -- member access to merchandise. Rewards expert Patrick Sojka says its new approach appears more transparent. But, based on recent developments with the rewards program, he questions if Air Miles is being upfront even now. "I need to have proof in the pudding that that's not just what they're saying, that that is actually happening," said Mr. Sojka, with the Calgary-based information site Rewards Canada. Playing a 'shady game'? The shift to tiers comes around the same time a proposed class- action lawsuit was launched against Air Miles' owner, Toronto- based LoyaltyOne. The suit alleges the rewards program made it "increasingly difficult" for members to redeem miles that start expiring on Jan. 1. Prior to the legal action, CBC News ran stories over the summer in which Air Miles collectors complained that when they logged in to the Air Miles website with a membership with few miles, they got access to premium rewards they couldn't afford. But when they logged in with a different account -- with enough miles to acquire those premium products -- the same items vanished. "It seems like a shady game they are playing," collector Tara Wells, of Sackville, N.B., told CBC News in July. She said she saw great rewards including a vacuum, a food processor, a digital camera and a 3-D printer when logging in using her husband's blue account. He didn't have enough miles to buy the items. But when Ms. Wells logged in using her father's gold account, which had enough miles to buy the items, they were nowhere to be found. The loyalty program tells CBC News that "from time to time," up until the new change, it based what rewards people could access according to their personal preferences and shopping habits "to give collectors a tailored experience." That explanation doesn't make sense to Ms. Wells. "There was no rhyme or reason to what I was seeing in my husband's account and my father's account. They were just random things. Like, neither of them have babies, but there was baby stuff." New recruits saw inaccessible rewards Air Miles now also offers another explanation why people with few miles had access to rewards they couldn't afford. Spokeswoman Lasiuk explained that over the past 12 months, new collectors saw premium merchandise to encourage them "to be more engaged in the program, to essentially show them what they could get if they got more miles." Ms. Wells says her husband has been an Air Miles member for 16 years, so this explanation doesn't make sense either. "That's just words, empty words," Ms. Wells said. "I mean, there was no reason for us to see this digital 3-D printer for 15,000 points that we couldn't have gotten and then my father couldn't see it and he could have gotten it." Mr. Sojka suggests the reason various members were blocked from accessing some rewards was because the program was creating roadblocks to redeeming soon-to-expire miles. "They're probably trying to cover their butt to make sure that they do write off however many dollars worth of miles at the end of this year," he said. At the close of 2011, Air Miles introduced a five-year expiry date on reward miles. That means on Jan.1, 2017, any unused miles collected before 2012 will expire and become worthless. Retailers pay Air Miles to supply them with miles they can offer customers as an incentive to shop at their stores. In return, the loyalty program must supply collectors with rewards. So unredeemed miles generate the biggest profit. However, Ms. Lasiuk told CBC News that the program provides a bigger rewards selection than ever before and that members are finding numerous ways to redeem their miles. Collector Wells says she believes Air Miles could still do a better job of providing members with reward choices. She believes all collectors should have access to all the program's items, regardless of personal preferences, one's tier or anything else. "Everybody should see everything," she said. "Then you could choose what you could afford and what you want." LTD FINANCIAL: Faces "Bakon" Suit in Eastern District of New York ----------------------------------------------------------------- A class action lawsuit has been filed against LTD Financial Services, L.P. The case is titled Michael Bakon, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. LTD Financial Services, L.P., the Defendant, Case No. 1:16-cv- 05461 (E.D.N.Y. Fla., Sept. 30, 2016). LTD Financial is a debt collector. The Plaintiff appears pro se. MARICOPA COUNTY, AZ: Sheriff Arpaio Faces Contempt Charges ---------------------------------------------------------- Jamie Ross, writing for Courthouse News Service, reported that the Justice Department in Phoenix, will pursue criminal contempt charges against Maricopa County Sheriff Joe Arpaio over violations of a federal judge's order to stop racially profiling Latinos. The announcement came on October 11, morning during a status conference scheduled following a criminal referral from U.S. District Judge G. Murray Snow in August against Arpaio, Chief Deputy Gerald Sheridan, Capt. Steve Bailey, and Arpaio's former attorney Michele Iafrate. Meanwhile, early voting begins on October 12, in Maricopa County, where Arpaio is up for re-election. The self-proclaimed "America's Toughest Sheriff" has suffered waning popularity following the eight-year racial profiling case, which has cost taxpayers nearly $50 million in legal fees. John Keller, an attorney for the U.S. Department of Justice, indicated that the government would not pursue criminal charges against Sheridan, Bailey and Iafrate, however, over the concealment and obstruction of evidence because the statute of limitations has run out. U.S. District Judge Susan Bolton, who will oversee criminal contempt proceedings, said she would need to look into the matter further due to a delay in the civil contempt proceedings following a motion by Arpaio to disqualify Snow. "They were adjourned for a substantial period of time for a motion to disqualify the judge, so they could not continue while that was considered," Bolton said. The charges stem from proceedings held in 2015 that led to Snow finding Arpaio, Sheridan, and two other sheriff's aides guilty of civil contempt for violating orders to stop racially profiling Latinos following a 2007 class action. Snow had issued a preliminary injunction in the class action in 2011, banning sheriff's deputies from stopping and detaining Latinos based on their race. Shortly after the injunction, Arpaio issued a statement saying, "I will continue to enforce illegal immigration laws." Three months later, the department issued another statement saying, "Arpaio remains adamant about the fact that his office will continue to enforce both state and federal illegal immigrations laws as long as the laws are on the books." Snow found those statements to be evidence the six-term lawman was aware of the preliminary injunction but unlawfully continued to enforce all federal immigration laws. Due to concerns about the statute of limitations, Bolton agreed to separate the criminal contempt charge over violation of the preliminary injunction against Arpaio from the other charges. Keller asked Bolton to accept a sentencing cap of six months against the 84-year-old Arpaio due to his age, and to proceed with the criminal contempt charges as a bench trial rather than before a jury. But Mel McDonald, Arpaio's attorney, raised concerns with a bench trial. "We would need to do some research on the issue of whether or not we would be entitled to a jury trial," McDonald told Bolton. McDonald asked Bolton to prepare "some type of a charging document," to officially lodge criminal contempt charges against Arpaio. Bolton agreed, and will issue an order to show cause that will include Judge Snow's order "as the essential facts constituting the charged contempt." The criminal contempt trial against Arpaio is scheduled for Dec. 6. McDonald said he would ask for additional time to prepare. Arpaio will not be arrested or arraigned on the charges, and McDonald said he would enter a not guilty plea on behalf of the lawman. While Arpaio easily won his primary race in August with 66 percent of the vote, the battle against Democratic challenger Paul Penzone is expected to be close. Arpaio narrowly beat Penzone, a former Phoenix police officer, in 2012, with 50 percent of the vote. A July poll conducted by the Lincoln Strategy Group showed Penzone ahead of Arpaio, 52.3 percent to 47.7 percent. Penzone filed a defamation lawsuit against Arpaio last month, claiming Arpaio's campaign is airing attack ads falsely accusing Penzone of assaulting his ex-wife. MDC PARTNERS: NY Court Dismisses Shareholder Class Action --------------------------------------------------------- MDC Partners Inc. ("MDC Partners" or the "Company") on Oct. 5 disclosed that the U.S. District Court presiding over North Collier Fire Control and Rescue District Firefighter Pension Plan, et al v. MDC Partners Inc., et al, No. 15 Civ. 6034 (S.D.N.Y.), granted the Company's motion to dismiss the plaintiffs' amended complaint in its entirety with prejudice, and directed the Clerk of the Court to "close the case." "We are extremely pleased with the Court's decision," said Scott L. Kauffman, MDC Partners' Chairman and Chief Executive Officer. "We defended and promptly moved to dismiss this suit because we believed strongly that the plaintiffs' allegations concerning the Company's accounting practices and disclosures were without merit, and it is gratifying that the Court dismissed this class action case in its entirety." Lead Plaintiffs North Collier Fire Control and Rescue District Firefighter Pension Plan ("North Collier Fire") and Plymouth County Retirement Association ("Plymouth County" and, collectively with North Collier Fire, "Plaintiffs") bring this putative class action lawsuit against MDC Partners, Inc. ("MDC") and four of MDC's current and former officers and directors. Plaintiffs allege that, throughout the period from October 28, 2013 through April 27, 2015 (the "Class Period"), MDC overstated goodwill associated with certain poorly performing or defunct subsidiaries; reported earnings using a misleading version of EBITDA (earnings before interest, taxes, depreciation, and amortization); failed to disclose all of the compensation paid to MDC's then-CEO, president, and chairman; and falsely reported that its internal controls over financial reporting were adequate. Plaintiffs assert that their reliance on these four categories of false or misleading statements caused injury to them and to all other persons who acquired MDC's Class A subordinate voting shares during the Class Period, in violation of Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Sec. 78j(b); Securities and Exchange Commission ("SEC") Rule 10b- 5, 17 C.F.R. Sec. 240.10b-5; and Section 20(a) of the Exchange Act, 15 U.S.C. Sec. 78t(a). A copy of Judge Richard J. Sullivan's Sept. 30 Opinion and Order is available at https://is.gd/2Ay3eo from Leagle.com. About MDC Partners Inc. MDC Partners -- http://www.mdc-partners.com-- is one of the fastest-growing and most influential marketing and communications networks in the world. Its 50+ advertising, public relations, media, branding, digital, social and event marketing agencies are responsible for some of the most memorable and engaging campaigns for the world's most respected brands. As "The Place Where Great Talent Lives," MDC Partners is known for its unique partnership model, empowering the most entrepreneurial and innovative talent to drive competitive advantage and business growth for clients. By leveraging technology, data analytics, insights, and strategic consulting solutions, MDC Partners drives measurable results and optimizes return on marketing investment for over 1,700 clients worldwide. MDL 2672: Puerto Rico Employee Retirement System to Lead Case ------------------------------------------------------------- Courthouse News Service reported that a federal judge in San Francisco on October 11, made Puerto Rico's public employees' retirement system the lead plaintiff in a securities class action against Volkswagen related to the emissions cheating scandal, given the fund's $66 million loss. U.S. District Judge Charles Breyer also made the fund's attorneys at Abraham, Frutcher & Twersky the putative class' lead counsel. The case is captioned, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2672 CRB (JSC) (N.D. Cal). MISSISSIPPI: Class Suit Challenges Sodomy Law --------------------------------------------- Erik De La Garza, writing for Courthouse News Service, reported that a federal class action in Jackson, Miss., filed more than a decade after the Supreme Court struck down state sodomy laws challenges a Mississippi statute that requires people convicted of having anal sex to register as sex offenders. The lawsuit was filed on behalf of five Mississippi residents who say they were convicted under various sodomy prohibitions, including the "unnatural intercourse" law, and Louisiana's "crime against nature by solicitation" law. Their convictions in Mississippi, or out-of-state convictions for violations of sodomy statutes "that Mississippi deems equivalent to unnatural intercourse," requires them to register as sex offenders, according to the lawsuit, which was filed on October 7, in Southern Mississippi federal court. The plaintiffs -- who used pseudonyms in the lawsuit to protect their identities -- say the law is discriminatory and unenforceable in light of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating all state laws against gay sex as unconstitutional. They sued Mississippi Attorney General Jim Hood and four other officials, including law enforcement leaders. "Despite this clear proclamation made more than a decade ago, Mississippi continues to enforce its criminal statute prohibiting sodomy, title unnatural intercourse, by requiring people convicted of unnatural intercourse to register as sex offenders and follow myriad, onerous prescriptions on their everyday life," the 29-page complaint states. All five plaintiffs have been convicted of a "crime against nature committed with mankind," one dating back to 1979. Arthur Doe says in the complaint that he has one conviction under the state's unnatural intercourse law and no other convictions that would trigger registration requirements in Mississippi. Still, the man says, when he was released from prison in 2008 after serving a 30-month sentence for a nonviolent crime, his federal probation officer advised him that the 1979 unnatural- intercourse conviction triggered the registration requirement. "Arthur Doe has suffered harm, including loss of housing and physical assault when exposed as a registrant," the complaint says. Registering as a sex offender causes humiliation and shame, and places significant barriers for people to find employment and housing, according to the federal lawsuit. The plaintiffs say the Mississippi law is "indistinguishable from the sodomy statute struck down as facially unconstitutional by the Supreme Court." They want the law enjoined as unconstitutional, and their names expunged from the registry. The proposed class is represented by Jackson attorney Robert McDuff with McDuff & Byrd, and Ghita Schwarz with the Center for Constitutional Rights in New York City. The Mississippi attorney general's office did not immediately respond on October 11, to an emailed request for comment. NATIONWIDE MUTUAL: Sued in Ga. Over Pre-Recorded Advertisements --------------------------------------------------------------- Dianne Rice-Redding, Ricky Coleman, and Ken Johansen, individually and on behalf of all others similarly situated v. Nationwide Mutual Insurance Company, Case No. 1:16-cv-03634-TCB (N.D. Ga., September 27, 2016), seeks to end the Defendant's practice of marketing services through use of pre-recorded messages. Nationwide Mutual Insurance Company operates an insurance and financial services company headquartered in Columbus, Ohio. The Plaintiff is represented by: Steven H. Koval, Esq. THE KOVAL FIRM, LLC 3575 Piedmont Road Building 15, Suite 120 Atlanta, GA 30305 Telephone: (404) 513-6651 Facsimile: (404) 549-4654 E-mail: shkoval@aol.com NCAA: Ex-UCLA Football Captain Files Concussion Suit ---------------------------------------------------- Nathan Fenno, writing for Los Angeles Times, reports that a former UCLA football captain sued the NCAA and Pac-12 Conference over concussions on Oct. 4 in a case that seeks to include every Bruins football player from 1959 to 2010. Tom Sullivan, who played 35 games as a defensive back from 1979 to 1982, alleged in the class-action lawsuit filed in U.S. District Court in Indiana that he sustained more than 20 concussions during his college career. "As a result of these injuries, Mr. Sullivan now suffers from memory loss, a decline in cognitive functioning, light sensitivity, anxiety, headaches and other debilitating issues," the complaint said. Seventeen other concussion lawsuits against the NCAA were filed in federal court on Oct. 4 and Oct. 5 by Chicago-based Edelson PC, the law firm representing Mr. Sullivan. Many of the complaints used language similar to that in his case. In a statement, Donald Remy, the NCAA's chief legal officer, called the lawsuits "mere copycats" and "questionable class actions." "This strategy will not work," the statement said. "The NCAA does not believe that these complaints present legitimate legal arguments and expects that they can be disposed of early by the court." The Pac-12 didn't immediately respond to a request for comment. A UCLA spokesman declined comment. Mr. Sullivan's lawsuit said the NCAA and Pac-12 "actively concealed" the long-term consequences of traumatic brain injuries "to protect the very profitable business of 'amateur' college football." Though UCLA isn't a defendant in the case, the lawsuit alleged the school didn't provide "appropriate medical treatment" for Sullivan's concussions and had "no adequate concussion management protocols or policies in place" through at least 2010. "In fact, although Sullivan sustained repetitive concussive and sub-concussive hits in practices and games for their profit and promotion, the NCAA and the Pac-12 failed to adopt or implement adequate concussion management safety protocols or return to play guidelines," the complaint said. "Accordingly, every time Sullivan suffered a concussive or sub-concussive hit, he would quickly be returned to the field of play." The lawsuit's six counts include negligence and fraudulent concealment. The suit seeks unspecified monetary damages. NCAA: Now Facing 43 Concussion-Related Lawsuits ----------------------------------------------- The Associated Press reports that the NCAA is now facing 43 class- action lawsuits related to the handling of concussions by Division I football programs after 18 more were recently filed . The complaints also name college conferences and in some cases schools. The Chicago-based law firm Edelson PC has been filing the lawsuits in batches since May. The latest were filed on Oct. 4 on behalf of former players from Texas A&M, UCLA, Maryland, Richmond, Idaho, South Carolina, Mississippi, Syracuse, Pittsburgh, Georgia Tech, Notre Dame, Alabama and Iowa. On Oct. 3, former players from Memphis, Ball State, Rutgers, Eastern Michigan and Florida A&M filed lawsuits. The players are seeking damages for injuries they claim are the result of mishandled concussions they suffered while playing college football. A judge in a previous case ruled one large class-action concussion lawsuit could not be filed against the NCAA. NDG COFFEE: Faces "Calle" Suit in S.D.N.Y. ------------------------------------------ A class action lawsuit has been filed against NDG Coffee Shop Inc. The case is captioned Jose Wilmer Calle, Severiano Castaneda Rivera, Hitler Calle, Victor Anibal Ugsha Chugchilan, Pedro Ramirez Lozano, and Marino Casteneda Rivera, individually and on behalf of others similarly situated, the Plaintiffs, v. NDG Coffee Shop Inc., doing business as: Big Nick's Burger & Pizza Joint Too; Pizza Joint Too Inc., doing business as Big Nick's Burger & Pizza Joint Too; Dimitrios Galanopoulos; and Niko Galanopolous, the Defendants, Case No.: 1:16-cv-07702 (S.D.N.Y., Sept. 30, 2016). NDG is engaged in the restaurants business in New York, New York. The Plaintiffs appear pro se. NELSON MANDELA METROPOLITAN: Suit Mulled Over Shutdown ------------------------------------------------------ Derrick Spies, writing for News24, reports that a group of parents and students is planning to take legal action against the Nelson Mandela Metropolitan University if it does not allow students to complete their 2016 academic year. The Concerned Association of Parents and Others for Tertiary Education at Universities was formed at a special meeting at the German Club in Port Elizabeth on Oct. 5. Attorney Brin Brody told about 200 parents, students and other residents of the proposal to seek a high court interdict against the university to force it to open its doors. The intention was to bring a class action suit against the university. A number of those present signed powers of attorney and a committee was formed. Kobus Gerber, of the Nelson Mandela Bay Ratepayers Association, was elected chairperson. The committee was set to travel to Grahamstown on Oct. 6 to consult Mr. Brody and his associates. A letter of demand would be drafted to the university to demand that academic work resume as a matter of urgency. Mr. Brody said he would seek the assistance of advocates Izack Smuts, Bruce Dyke, and Hannelie Bakker. Breach of contractual obligations Should the university fail to take action, they will lodge an urgent application at the Grahamstown High Court on Oct. 4. They were concerned that protesting students could disrupt proceedings if it was lodged in Port Elizabeth. The application would consist of four parts: that the matter was urgent; that the university take the necessary steps to reopen; take steps to protect its property and ensure the safety of staff and students and; if necessary, call police and security guards. Mr. Brody said the basis of the application would be that the university was in breach of contractual obligations entered into with paying students in terms of the Consumer Protection Act. Should the university not open, it could be sued for damages. Not only would students be able to sue for their fees paid for the 2016 academic year, but the university could face lawsuits relating to future loss of income. NEW RESIDENTIAL: Judge Narrows Claims in Securities Action ---------------------------------------------------------- Vice Chancellor Tamika Montgomery-Reeves of the Court of Chancery of Delaware, granted in part and denied in part defendants' motion to dismiss, in the case CHESTER COUNTY EMPLOYEES' RETIREMENT FUND, Plaintiff, v. NEW RESIDENTIAL INVESTMENT CORP., WESLEY R. EDENS, MICHAEL NIERENBERG, ALAN L. TYSON, DAVID SALTZMAN, KEVIN J. FINNERTY, DOUGLAS L. JACOBS, FIG LLC, FORTRESS INVESTMENT GROUP LLC and FORTRESS OPERATING ENTITY I LP, Defendants, C.A. No. 11058-VCMR. (Del. Ch.) Plaintiff Chester County Employees' Retirement Fund is a stockholder of New Residential. Nominal defendant New Residential is a publically traded Real Estate Investment Trust (REIT) that primarily invests in and manages residential real estate, including excess mortgage servicing rights and residential mortgage-backed securities. Newcastle Investment Corp. (formed New Residential as a wholly owned subsidiary and spun it off to Newcastle stockholders on May 15, 2013. New Residential is a permanent capital vehicle in the Fortress web of companies. New Residential stock trades on the New York Stock Exchange under the symbol NRZ. Defendant FIG LLC (FIG) managed New Residential pursuant to the Second Amended and Restated Management and Advisory Agreement, dated August 5, 2014. All New Residential officers and employees are FIG employees. Defendant Fortress Operating Entity I LP (FOE I) is the sole managing member of FIG. Defendant Fortress Investment Group LLC (Fortress) allegedly owns 100% of the stock of FIG Corp. Defendants Wesley R. Edens, Kevin J. Finnerty, Douglas L. Jacobs, Michael Nierenberg, David Saltzman, and Alan L. Tyson are New Residential directors. Nationstar Mortgage Holdings, Inc. are companies in which Fortress indirectly owns majority equity stakes. Fortress affiliates own 74.7% of Nationstar and 85.3% of Springleaf Financial Holdings LLC. Springleaf Financial Holdings LLC owns 74.8% of the equity of Springleaf. Home Loan Servicing Solutions, Ltd. (HLSS) is a publicly traded company that owns mortgage-servicing rights (MSRs), which are rights to fees from servicing mortgage loans, and Excess MSRs, which are rights to fees on mortgages serviced by another party. Plaintiff filed its original complaint on May 22, 2015 and the amended complaint on October 30, 2015. Plaintiff asserts direct and derivative breach of fiduciary duty claims against the members of the New Residential board of directors, New Residential's manager FIG LLC, FIG's owner FOE I, and Fortress, which allegedly controls New Residential, FIG, and FOE I. Plaintiff alleges that the defendants caused New Residential to overpay for the assets of HLSS in order to advantage other real estate assets of Fortress and to maximize management fees, incentive compensation, and stock option awards to Fortress and its affiliates (count I and count II). Plaintiff also seeks a declaratory judgment that certain limitations on the fiduciary duties of Fortress affiliates in the New Residential certificate of incorporation and limitations on FIG's liability in the New Residential management agreement are not valid defenses in this case. Similarly, plaintiff seeks a declaratory judgment that a termination agreement between HLSS and New Residential purporting to release all New Residential stockholder claims against HLSS is not a valid defense in this action (count III). Defendants move to dismiss the complaint under Court of Chancery Rules 23.1 and 12(b)(6). Defendants argue that all of plaintiff's claims are derivative because they amount to claims for corporate overpayment. Defendants contend that a majority of the New Residential board is disinterested and independent, and that even if a majority of the board is beholden to Fortress, Fortress is not interested in the underlying transactions. Defendants also argue that the complaint should be dismissed as to Fortress, FOE I, and FIG because they do not owe fiduciary duties to New Residential. As to the declaratory judgment claims, defendants contend that plaintiff's claims are not ripe because defendants have not raised the certificate of incorporation, management agreement, or termination agreement as defenses. Vice Chancellor Montgomery-Reeves granted defendants' motion to dismiss as to counts I and II with leave to replead. Defendants' motion to dismiss Count III as unripe is granted as to the Termination Agreement, the Management Agreement, and the as applied challenge to the New Residential certificate of incorporation, with leave to replead. The motion is denied as to the facial validity challenge to the certificate of incorporation. Vice Chancellor Montgomery-Reeves held that plaintiff has not alleged that the options FOE I received and the fees FIG received were material to Fortress and plaintiff has not cast a reasonable doubt on the New Residential directors' independence. A copy of Vice Chancellor Montgomery-Reeves's memorandum opinion dated October 7, 2016, is available at https://goo.gl/wZEwr1 from Leagle.com. Michael Hanrahan -- MHanrahan@Prickett.com -- Paul A. Fioravanti, Jr. -- PAFioravanti@Prickett.com -- Corinne Elise Amato -- CEAmato@prickett.com -- Kevin H. Davenport -- KHDavenport@Prickett.com --at JONES & ELLIOTT, P.A.; Mark A. Topaz -- mtopaz@ktmc.com -- Lee D. Rudy -- lrudy@ktmc.com -- Michael C. Wagner -- mwagner@ktmc.com -- Justin O. Reliford -- jreliford@ktmc.com -- at KESSLER TOPAZ MELTZER & CHECK LLP, Attorneys for Plaintiff Robert S. Saunders -- rob.saunders@skadden.com -- Ronald N. Brown, III -- ron.brown@skadden.com -- Sarah R. Martin -- sarah.martin@skadden.com -- Scott D. Musoff -- scott.musoff@skadden.com -- at SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Attorneys for Defendants ONE NOTE: Faces "Youngblood" Suit in Southern Dist. of California ----------------------------------------------------------------- A lawsuit has been filed against One Note Capital. The case is entitled Antonio Youngblood, individually and on behalf of all others similarly situated, the Plaintiff, v. One Note Capital and Does 1-10, inclusive, the Defendant, Case No. 3:16-cv-02469-L-BGS (S.D. Cal., Sept. 30, 2016). The case is assigned to Hon. Judge M. James Lorenz. One Note is engaged in the money lending business. 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 OPTIMUM HOME: Faces "Khyzhnyy" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Andriy Khyzhnyy, individually and on behalf of all others similarly situated v. Optimum Home Care LLC d/b/a Home Care Solutions and Loreta Colombo, Case No. 1:16-cv-07596 (S.D.N.Y., September 28, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Optimum Home Care LLC operates home health care service company in New York. Andriy Khyzhnyy is a pro se plaintiff. PASON SYSTEMS: "Balo" Labor Case Transferred to S.D. Tex. --------------------------------------------------------- The case captioned Christian Balo, on behalf of himself and all others similarly situated, Plaintiff, v. Pason Systems USA Corp. Defendant, Case No. 2:16-cv-91 (D.N.M., April 18, 2016), was transferred to the U.S. District Court for the Southern District of Texas on September 22, 2016, and assigned Case No. 4:16-cv- 02857. Plaintiff seeks overtime, damages, including liquidated damages, costs and expenses of this action including reasonable attorneys' fees and expert fees, pre-judgment and post-judgment interest and all such other and further legal and equitable relief under the Fair Labor Standards Act. Plaintiffs are represented by: George Zachary Goldberg, Esq. Rachael Rustmann, Esq. James Mark Loren, Esq. GOLDBERG & LOREN, PA 3102 Maple Avenue, Ste. 450 Dallas, TX 75201 Tel: (800) 719-1617 ext 1002 Email: ggoldberg@goldbergdohan.com rrustmann@goldbergloren.com jloren@lorenlaw.com Defendants are represented by: Donald L. Samuels, Esq. BRYAN CAVE LLP 1700 Lincoln St., Ste. 4100 Denver, CO 80203 Tel: (303) 866-0548 Fax: (303) 866-0200 Email: donald.samuels@bryancave.com PROBITY HEALTH: Faces "Moody" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Kyona Moody, individually and on behalf of all similarly situated individuals v. Probity Health, Inc., Case No. 1:16-cv-03271-JFM (D. Md., September 28, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Probity Health, Inc. provides skilled nursing and aide services to older adults, adults and younger adults. The Plaintiff is represented by: Robert K. Jenner, Esq. Justin A. Browne, Esq. JANET, JENNER & SUGGS, LLC Commerce Center East 1777 Reisterstown Road, Suite 165 Baltimore, MD 21208 Telephone: (410) 653-3200 Facsimile: (410) 653-6903 E-mail: Rjenner@Myadvocates.com Jbrowne@Myadvocates.com - and - Jacob R. Rusch, Esq. David H. Grounds, Esq. Molly E. Nephew, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1800 Facsimile: (612) 436-1801 E-mail: jrusch@johnsonbecker.com dgrounds@johnsonbecker.com mnephew@johnsonbecker.com PROGRESSIVE INSURANCE: Williams Can't Proceed as Class Action ------------------------------------------------------------- In the case, MAURICE WILLIAMS, Plaintiff, v. PROGRESSIVE INSURANCE CO., Defendant, No. 4:16-CV-01214 JAR (E.D. Mo.), District Judge John A. Ross granted the Defendant's motion to strike the class action claim in the Plaintiff's complaint. The case attempts to invoke the rule that class representatives cannot appear pro se. The Plaintiff may bring her own claims to the federal court without counsel, but not the claims of others, the Court said. A copy of the Court's Order dated October 4, 2016 is available at https://goo.gl/hWawTY from Leagle.com. Maurice Williams, Plaintiff, Pro se. Progressive Insurance Company, Defendant, represented by: Daniel E. Wilke, Esq. James A. Wilke, Esq. WILKE AND WILKE, P.C. 2708 Olive St St. Louis, MO 63103 Tel: 314-371-0800 QUALITY DINING: "Cicero" Labor Case Transferred to D.N.J. --------------------------------------------------------- The case captioned Cynthia Cicero, on behalf of herself and similarly situated employees, Plaintiff, v. Quality Dining, Inc., Southwest Dining, Inc., Grayling Corporation, Defendants, Case No. 3:16-cv-00512 (N.D. Ind., August 4, 2016), was transferred to the U.S. District Court for the District of New Jersey on September 21, 2016, and assigned Case No. 1:16-cv-05806. Defendant operates 46 Chili's Grill franchises all over the U.S. Plaintiff worked at their Delran, New Jersey location as a server. Cicero complained about the tip-credit being implemented, making their wages fall below the minimum. Plaintiff is represented by: Edward J. Chester, Esq. CHESTER LAW OFFICE 230 N. Main St., Suite 2 Elkhart, IN 46516 Phone: (574) 296-1515 Fax: (574) 295-9316 Email: ed@chesterlawoffice.com - and - Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 - and - Jerry Martin, Esq. Seth Hyatt, Esq. BARRETT JOHNSTON MARTIN & GARRISON LLC 414 Union Street, Suite 900 Nashville, TN 37219 RAPTOR PHARMACEUTICAL: Shareholder Challenges Horizon Merger ------------------------------------------------------------ Sean Kelly, writing for Courthouse News Service, reported that in a federal class action in Wilmington, Del., a shareholder of orphan drug-maker Raptor Pharmaceutical Corp. claims its directors are selling it on the cheap to Horizon Pharma, on unreasonable terms that stifle competing offers. Jesse Jordan claims that Horizon's offer of $9 per share resulted from a flawed and inadequate process that "fails to adequately compensate Raptor shareholders for their stake in the Company, despite its strategic positioning as a leader in an expanding marketplace." He cites Raptor's "strong growth over the last few months," which is expected to continue, but says if the merger goes through, "stockholders will have no participation in the success of the future combined companies." Raptor makes the orphan drugs Quinsair and Procysbi. Orphan drugs are drugs targeted at diseases so rare there is no financial incentive for a company to do the research and development on it. To encourage the research, the federal Orphan Drug Act of 1983 gave drug-makers opportunities for tax credits, extended patent protection, research and development grants, and waived FDA fees to develop drugs and vaccines for diseases that affect fewer than 200,000 Americans. The Rare Diseases Act of 2002 strengthened the Orphan Drug Act. Procysbi is used to treat a rare metabolic disorder known as nephropathic cystinosis in the United States. Quinsair is used to manage pulmonary infections in cystic fibrosis patients in the European Union and Canada. Analysts of the deal say the Raptor deal will provide an immediate revenue boost to Horizon. Jordan claims: "The sale of the company is being timed in an effort to curb any future increase in the share price of Raptor common stock, thus ensuring that Horizon can effectuate its takeover on the cheap." Among the onerous deal protection devices that preclude other bidders from topping Horizon's offer are strict nonsolicitation and "last look" provisions, Jordan says. "Defendants agreed to certain onerous and preclusive deal protection devices that operate conjunctively to make the tender offer a fait accompli and ensure that no competing offers will emerge for the company." He says the merger agreement forbids Raptor from seeking superior bids without giving Horizon "unfettered access to confidential, nonpublic information about competing proposals from third parties" to top the bid. It also gives Horizon four days to come up with a counteroffer "that only matches the superior third-party offer." And in the unlikely event that the company decides to pursue an alternative offer, Raptor has to pay Horizon a termination fee of $30 million. Jordan says Raptor's SEC filings to solicit stockholders to tender their Raptor shares in the proposed $800 million deal are "materially deficient." He criticizes Raptor's financial advisers for the deal, Centerview Partners LLC and Leerink Partners LLC. He says their financial projections omit pertinent information shareholders need to determine whether the tender offer is fair. "Centerview and Leerink's fairness opinion and analyses fails to include key inputs and assumptions underlying these analyses," Jordan says, and without this information, "Raptor's public stockholders are unable to fully understand these analyses." Jordan wants the merger enjoined for violating the Securities Exchange Act, and because of its "material misstatements and omissions." He is represented by Brian Long with Rigrodsky & Long in Wilmington, and by Shane Rowley with Levi & Korsinsky in Stamford, Conn. RIMAX CONTRACTORS: "Arzola" Labor Case Transferred to M.D. Fla. --------------------------------------------------------------- The case captioned Jesus Arzola and Maynor Martinez, on behalf of themselves and other persons similarly situated, Plaintiffs, v. Rimax Contractors, Inc., Defendant, Case No. 2:16-cv-00718 (E.D. La., August 15, 2016), was transferred to the U.S. District Court for the Middle District of Florida on September 22, 2016. Plaintiffs seek to recover from Defendant unpaid wages, interest, liquidated damages, and attorneys' fees and costs under the Fair Labor Standards Act. Plaintiffs are represented by: Roberto L. Costales, Esq. Emily Westermeier COSTALES LAW OFFICE 3801 Canal Street, Suite 207 New Orleans, LA 70119 Tel: (504) 534-5005 - and - William Henry Beaumont, Esq. WILLIAM H. BEAUMONT LAW 3801 Canal Street, Suite 207 New Orleans, LA 70119 Tel: (504) 483-8008 Rimax is represented by: Tiffany Delome Downs, Esq. FORD & HARRISON, LLP (ATLANTA) 271 17th St., NW, Suite 1900 Atlanta, GA 30363 Tel: (404) 888-3961 Fax: (404) 888-3863 ROTHENERG VENTURES: Faces "Fanelli" Suit in Cal. Super. Ct. ----------------------------------------------------------- A lawsuit has been filed against Rothenerg Ventures Management Company LLC. The case is styled FANELLI, KATIE AN INDIVIDUAL AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. ROTHENERG VENTURES MANAGEMENT COMPANY LLC and DOES 1-50 INCLUSIVE, the Defendant, Case No. CGC 16 554609 (Cal. Super. Ct., Sept. 30, 2016). Rothenberg Ventures operates as a venture capital firm. SAINT VINCENT: Sued Over Mandatory Flu Vaccination Policy --------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that the Equal Employment Opportunity Commission has taken up the case of a group of nurses and medical workers who claim they were fired from an Erie-based hospital over their religious objections to mandatory flu vaccinations. In a complaint filed against Saint Vincent Health Center in the U.S. District Court for the Middle District of Pennsylvania, the commission alleged that the hospital failed to accommodate the religious beliefs of the six plaintiffs, all adherents of different religious sects. The suit focused on Saint Vincent's mandatory flu vaccination policy, which requires all employees to either receive the shot, or wear a face mask for the duration of flu season. The parties filing suit, made up of a sonographer, a clerk, and four registered nurses, argued that Saint Vincent's policy -- and their subsequent firings for failing to comply -- were discriminatory. Each plaintiff requested a religious exemption from the hospital and provided passages from religious texts explaining their positions, according to the commission's complaint. Each was also allegedly denied an exemption for not providing "proof of religious doctrine." "In religious accommodation cases, the standard is not whether company officials agree with the employee's religious beliefs or whether those beliefs are the recognized position or official doctrine of any particular religious organization or group," EEOC Philadelphia regional attorney Debra M. Lawrence said in a statement. "Absent proof establishing an undue hardship, federal law requires an employer to provide reasonable accommodations for sincerely held employee religious beliefs, even if some may consider those beliefs idiosyncratic." The hospital has not yet responded in court filings. "Saint Vincent Hospital's mandatory flu vaccination policy allows employees to apply for an exemption to the policy based upon religious beliefs or health concerns," a Saint Vincent spokesperson said in an email. "Requests for exemption are always given careful and appropriate consideration. We respectfully disagree with the EEOC's position and characterization of how the employee claims outlined in its lawsuit were handled by the hospital." A similar case filed in the Eastern District was dismissed in August. In that case, the court granted Mercy Fitzgerald Hospital's motion to toss plaintiff Paul Fallon's suit, reasoning that the former psychiatric crisis intake worker had no religious discrimination claim based on his refusal to accept a flu shot and subsequent termination. U.S. District Judge Gerald J. Pappert of the Eastern District of Pennsylvania held that Fallon, who did not "belong to a religious congregation," did not hold a constitutionally protected religious belief, according to Judge Pappert's opinion. "Fallon's stated opposition to vaccinations is entirely personal, political, sociological and economic -- the very definition of secular philosophy as opposed to -- religious orientation," Judge Pappert said. SBOCA LLC: Faces Gorss Motels Class Suit in Connecticut ------------------------------------------------------- A class action lawsuit has been commenced against Sboca, LLC and John Does 1-5. The case is captioned Gorss Motels Inc., individually and as the representative of a class of similarly-situated persons v. Sboca, LLC and John Does 1-5, Case No. 3:16-cv-01630 (D. Conn., September 28, 2016). The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plains, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: aytan.bellin@bellinlaw.com SERES THERAPEUTICS: Sued Over Misleading Financial Reports ---------------------------------------------------------- Mariusz Mazurek, individually and on behalf of all others similarly situated v. Seres Therapeutics, Inc., Roger J. Pomerantz, and Eric D. Shaff, Case No. 1:16-cv-11943 (D. Mass., September 28, 2016), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Seres Therapeutics, Inc. is a clinical stage biopharmaceutical company with a focus on microbiome therapeutics. The Plaintiff is represented by: Shannon L. Hopkins, Esq. LEVI & KORSINSKY, LLP 733 Summer Street, Suite 304 Stamford, CO 06901 Telephone: (203) 992-4523 Facsimile: (212) 363-7171 E-mail: shopkins@zlk.com SILVERCORP METALS: Obtains Favorable Ruling in Class Action ----------------------------------------------------------- John F. Nucci, Esq. -- JFNucci@mintz.com -- of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., in an article for The National Law Review, reports that the Canadian court system has issued a number of decisions which have altered the practice of bringing -- or defending against -- a securities class action for secondary market misrepresentation. In its recent decision in Mask v. Silvercorp Metals, Inc. ("Mask"), the Court of Appeals for Ontario further clarified the evidentiary standard to be applied on a motion for leave and certification of a proposed class action. Its decidedly defendant-friendly decision is relevant to any entity which finds itself defending against such a claim in Ontario. Background At issue in Mask was a proposed class action claim against defendant Silvercorp Metals, Inc. ("Silvercorp"), a Canadian company which operates mining properties in China. In 2010 and 2011, Silvercorp periodically released public reports about a mining project in China. Those releases contained technical reports prepared by BK Exploration Associates ("BK"), which provided estimates of the silver, lead, and zinc resources and reserves at the mining project. On September 2 and September 13, 2011, anonymous internet postings questioned Silvercorp's accounting and alleged that it overstated the quantity and quality of its mineral resources and reserves. This caused Silvercorp's share price to plummet by 30 percent, and forced Silvercorp to issue a press release refuting the anonymous allegations. The Trial Court Denies Leave to Bring a Class Action In 2014, the plaintiff shareholder brought suit against Silvercorp, alleging statutory and common law claims for misrepresentation, failure to make timely disclosure, and negligence in publishing the 2010 and 2011 reports. The plaintiff moved for leave to bring a class action. As required by Section 138.8(1) of the Ontario Securities Act, the plaintiff produced evidence purporting to show that a) the action was brought in good faith, and b) there was a reasonable possibility that the action would be resolved at trial in favor of the plaintiff. Specifically, the plaintiff produced expert evidence from a professional geologist named Mohan Srivastava, in the form of a report from June 12, 2013, which criticized the quality of BK's report and pointed out differences between predictions and actual production. The defendant, in response, produced uncontroverted evidence to the contrary. Silvercorp produced as evidence subsequent reports prepared by its own expert, Patrick Stephenson. Mr. Stephenson's report provided detailed evidence showing that there was, in fact, "no material discrepancy" between the predictions and production. His report made clear that Silvercorp had not made any material misrepresentation, and that it had simply been the victim of the anonymous posters who had shorted its shares in order to make a profit when the price fell. Notably, Mr. Srivastava's subsequently filed report -- prepared and presented on behalf of the plaintiff -- did not address Mr. Stephenson's evidence. Faced with this evidence, the motion judge found that the plaintiff's secondary market misrepresentation claim was "so weak or has been so successfully rebutted by the defendants that it has no reasonable possibility of success." The claim was summarily dismissed. The Appeals Court Affirms On appeal, the plaintiff argued that the motion judge misapplied the test for leave. In support, the plaintiff cited Theratechnologies Inc. v. 121851 Canada Inc., where the Supreme Court of Canada held that a plaintiff must only show "a plausible analysis of the applicable legislative provisions and some credible evidence in support of the claim." The plaintiff's position was that once he presented some credible evidence in support of his claim, the test was satisfied and leave should be granted without considering the evidence submitted by the defendant. The Court disagreed. In doing so, it noted that the reason Section 138.8(1) was enacted was to prevent unmeritorious claims from going forward. As such, the statute requires "a reasoned consideration of the evidence to ensure that the action has some merit." That purpose would be completely defeated if the court could only "reasonably consider" the self-serving evidence presented by a prospective class representative, particularly where, as here, the defendant's proffered evidence shows that the claim lacks merit. Thus, the Court was correct in not only allowing, but requiring a motion judge to consider all evidence in determining whether the bar for leave is met. The Takeaway This decision is particularly noteworthy to parties facing claims of secondary market misrepresentation in Canada. Canadian courts have repeatedly reinforced their desire to weed out meritless claims as early as possible. As Mask reinforces, a party defending against such a claim can -- and should -- take full advantage of that position by presenting evidence in its favor immediately. SPECTRUM PHARMACEUTICALS: Sued Over Misleading Financial Reports ---------------------------------------------------------------- Glen Hartsock, individually and on behalf of all others similarly situated v. Spectrum Pharmaceuticals, Inc., and Rajesh Shrotriya, Case No. 2:16-cv-02279 (D. Nev., September 28, 2016), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Spectrum Pharmaceuticals, Inc. is a pharmaceutical company in Henderson, Nevada. The Plaintiff is represented by: Jeffrey C. Block, Esq. Joel A. Fleming, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Telephone: (617) 398-5600 Facsimile: (617) 507-6020 E-mail: jeff@blockesq.com joel@blockesq.com - and - Telia U. Williams, Esq. LAW OFFICE OF TELIA U. WILLIAMS 9359 10161 Park Run Drive, Suite 150 Las Vegas, NV 89145 Telephone: (702) 835-6866 Facsimile: (702) 363-8851 E-mail: telia@telialaw.com TALON AIR: Faces "Gonzalez" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Margarita Gonzalez, individually, and on behalf of all others similarly situated v. Talon Air Inc., and Adam Katz, Case No. 516962/2016 (N.Y. Super. Ct., September 27, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the New York Labor Law. The Defendants were in the business of providing charter flights, and aircraft management and maintenance services. The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 740-2000 E-mail: abdul@abdulhassan.com SQUARE INC: Court Dismisses "White" for Lack of Standing -------------------------------------------------------- Robert S. Gebhard, Esq., of Sedgwick LLP, in an article for Lexology, reports that a recent decision by the United States District Court in Robert E. White v. Square, Inc., (N.D. Cal. 2016) provides an interesting discussion of the standing requirements for the assertion of discrimination claims against online businesses pursuant to the California Unruh Civil Rights Act. Key Facts The defendant provided point of sale processing of debit and credit card transactions on smartphones and computer tablets. The service allowed individuals and businesses to accept electronic payments without directly creating and maintaining merchant accounts. In order to subscribe to these services, users were required to create an online account pursuant to a seller agreement, which required specific confirmation that no payments would be processed for certain business activities, including transactions with bankruptcy attorneys or collection agencies engaged in the collection of debt. The plaintiff, a bankruptcy attorney, filed a class action suit against the card processor for unlawful discrimination after learning of the specific prohibition against bankruptcy attorney transactions. The class action complaint was brought under California's Unruh Civil Rights Act, which generally prohibits arbitrary occupational discrimination. The bankruptcy attorney did not attempt to subscribe to the service by creating an online account, nor was he denied the service after attempting to process payments for his bankruptcy services. Instead, the attorney alleged that he was dissuaded from seeking to become a customer based on his awareness of the card processor's prohibition against the processing of payments to bankruptcy attorneys. Procedural History The suit was filed after the court had dismissed an earlier suit brought by a different bankruptcy law firm. In that earlier suit, the law firm had signed up for the card processing service, but the account was terminated after the card processor learned that the firm was violating the service agreement. The court dismissed that suit and sent the parties to arbitration because the online subscriber agreement contained an arbitration clause requiring the parties to arbitrate their dispute. In the new suit, the bankruptcy attorney alleged that he was a personal friend and colleague of the two partners of the law firm that had commenced the first action. He further alleged that he had read the court's file for the first action and learned of the card processor's allegedly discriminatory practices. He also alleged that he had visited the processor's website on several occasions with the intent of subscribing, but refused to click on the link to open an account based on his knowledge of the processor's prohibition against bankruptcy attorney transactions. California Unruh Civil Rights Act The suit was filed pursuant to the California Unruh Civil Rights Act, which guarantees "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments" regardless of race, color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation. The Act also specifically provides that no business establishment shall discriminate against or refuse to contract with persons who have one or more of these characteristics. Courts have interpreted this Act as also generally prohibiting any arbitrary occupational discrimination. The Act imposes actual damages for each offense, along with possible treble damages, but not less than $4,000 for each violation, plus attorney's fees. Key Arguments The processor moved to dismiss the new suit arguing that the attorney was a mere bystander who had not suffered any asserted discrimination because he had not attempted to create an online account, and thus was never rejected or terminated pursuant to the allegedly discriminatory policy. The processor also alleged that the suit was an improper attempt to sidestep the arbitration requirement which was a stated term of the subscriber agreement that must be executed as a condition to creating the online account. The bankruptcy attorney urged the court to reject the processor's "no click/no standing" defense asserting that he had at least attempted to subscribe to the card processor's service within the meaning of the law. The attorney also argued that that he should not be required to engage in the "futile gesture" of subjecting himself to the actual discrimination, i.e. refusal of service or termination of the online account, as a condition to bringing the suit. Court's Ruling The court dismissed the suit for lack of standing after finding that the attorney had not suffered a cognizable injury under the statute because he had not tendered the purchase price to the processor and was not refused service. The court followed a California state appellate decision upholding the dismissal of discrimination claims by a male plaintiff against an internet dating service that offered certain free services to woman, but not to men, after finding that the male plaintiff lacked to standing to sue because he had never subscribed to the dating service. The court also rejected application of the "futile gesture rule" to California's Unruh Act. The bankruptcy attorney has recently moved for reconsideration based on certain newly discovered evidence. ST PAUL, MN: Faces Class Action Over Right-of-Way Assessments ------------------------------------------------------------- Jessie Van Berkel, writing for Star Tribune, reports that three attorneys told St. Paul leaders on Oct. 5 they will file a class- action lawsuit on behalf of all property owners in the city if St. Paul continues to move forward with its unusual -- and, according to the attorneys, illegal -- process for funding street maintenance. The City Council nevertheless confirmed the 2016 right-of-way assessment costs on Oct. 5, since most of the work the assessments paid for has already been completed. But city officials said they are looking into changing the process, following a Minnesota Supreme Court ruling that determined the assessment is actually a tax. Most cities, like Minneapolis, assess residents for certain projects that benefit their property. In St. Paul, the city assesses almost all property owners annually based on their street or alley frontage. St. Paul expects to get $32.5 million from assessments in 2017, $2.2 million more than it received this year. The city relies on the money to pay for services from street sweeping to snow removal to tree trimming. The state Supreme Court ruled in August that the assessments are an additional tax -- not a fee, as the city argued -- and that they are subject to tax restrictions. That ruling spurred the attorneys to look into a class-action lawsuit. It also prompted policymakers to evaluate potential changes to the assessment program, City Attorney Samuel Clark said. "Ultimately, that decision is going to be up to the council," he said. As for the potential class-action lawsuit, Mr. Clark said, "I can't respond to a case that hasn't been filed yet." Council members on Oct. 5 scheduled a public hearing for Nov. 2 on the proposed 2017 assessments. But Council President Russ Stark said the city could change its assessment process after the hearing. Currently, how much a property owner is assessed depends on the property type, its location in the city and what sort of right-of- way runs alongside it. For example, a homeowner with 50 feet of frontage on an arterial street is expected to pay $217.50 next year, $14 more than this year. But downtown, owners of all types of properties, except condominiums, would pay $20.63 for every foot located along a paved street, up $1.35 from 2016. Shifting, sharing the costs St. Paul began assessing nearly all properties with right-of-way footage in 2002, under Mayor Randy Kelly. Attorney Jack Hoeschler, one of the attorneys who plans to bring the class-action suit, said the assessments allowed cash-strapped city officials to gather more money from residents without appearing to increase taxes. "They shifted a whole bunch of these costs from above the line on your tax statement . . . into this special category. And it appeared below the line and allowed elected officials to say, 'We are holding the line on taxes,'" Mr. Hoeschler said. A 2011 policy document gives another reason for the assessments: It is a way for the city to distribute the cost of street maintenance more broadly, on both taxable and tax-exempt properties. St. Paul has an unusually high number of tax-exempt properties, including religious, government and educational institutions. About one-third of the properties in the city do not have to pay property taxes. The individual property assessments have been relatively small, so for many years no one fought the policy, Mr. Hoeschler said. A challenge from churches In 2011, he started representing two downtown churches that challenged the city over what they felt were unfair assessment burdens. That case made its way to the state Supreme Court, which in August sent it back to the District Court, saying that an essential question remains unanswered: Are the churches paying more for assessments than they are seeing in benefits? State law dictates that cities can charge assessments to fund public improvements, such as replacing streetlights and patching up streets, but only if the property owners who are assessed get a special benefit from the improvement program. That benefit -- measured by how much the property value increases -- must be equal or greater than the assessment. A trial to determine the answer to that question is scheduled for early December, Mr. Hoeschler said. STEWART'S SHOPS: Judge Certifies Employees' Wage Class Action ------------------------------------------------------------- Michael DeMasi, writing for Albany Business Review, reports that a lawsuit alleging Stewart's Shops didn't pay employees for all the hours they worked on the job has been certified as a "class action" by a federal judge, according to the plaintiffs' attorneys. U.S. District Court Judge Thomas J. McAvoy ruled Sept. 28 the case meets the requirements to proceed as a class action, according to lawyers at E. Stewart Jones Hacker Murphy, LLP. "The next step in the process is to send out notifications to the employees and former employees who may have been adversely affected by the pay practices in Stewart's Shops locations," the attorneys said in a prepared statement. In response, a spokeswoman for Stewart's, Maria D'Amelia, released the following statement: "Two-thirds of the original charges brought against us have already been denied class status. We feel strongly that the remaining will be denied class status as well, once all the evidence can be considered. "It should be noted that with federal law, letters to employees have to go out before a judge can review the evidence. These notices are solely a step in the process and in no way an admission or indication of guilt. It is unfortunate that we have to go through this process, as this same change on the state level has already been thrown out. "We value our partners, who are part owners in our company, and have a long history of being fair to them, both with pay and benefits." The Malta-based convenience store chain has 335 stores in upstate New York and Vermont, and $1.5 billion in sales. The company was sued in January 2014 by a former employee claiming she and other workers were not paid for all of the hours they were on the job. The lawsuit sought $20 million in damages and class- action status on behalf of all non-exempt hourly employees who worked for the company the previous three years. Judge McAvoy ruled the case met the requirements as a class action for claims that employees were not paid mandatory call-in pay for store meetings and were deprived of an uninterrupted meal break, according to the plaintiffs' attorneys, Ryan M. Finn and David I. Iversen. They said that under federal law a collective action has been certified for full-time employees who worked more than forty hours in any given week and were deprived of overtime compensation. The firm is also representing clients with similar wage and hour claims against Wal-Mart, Speedway, and Suit-Kote Corporation. TENET HEALTHCARE: Shareholder Sues Over Stock Price Drop -------------------------------------------------------- Courthouse News Service reported that Tenet Healthcare Corp. shares fell by 4 percent after the company settled kickback allegations for $514 million, shareholders claim in a federal class action in Dallas. UNITED STATES: Supreme Court to Hear Post-9/11 Arrest Cases ----------------------------------------------------------- William Dotinga, writing for Courthouse News Service, reported that the Supreme Court on October 11, agreed to wade into a 14-year-old class action brought by undocumented Muslims and Arabs who were rounded up on the thinnest of pretexts and abused in jail in the months following the 9/11 terror attacks. Lead plaintiff Ibrahim Turkmen brought his class action in 2002, claiming that then-Federal Bureau of Investigation director Robert Mueller's directive to follow up on all of the 96,000 leads gleaned from a tip hotline he set up following the attacks created a dragnet that led to hundreds of mostly Muslim held in abusive custody at Metropolitan Detention Center in Brooklyn and Passaic County Jail in New Jersey. Turkmen's lawsuit gained traction with the release of two scathing reports by the FBI's inspector general detailing how MDC officials slammed detainees against a wall, kept them in lockdown 23 hours a day, and placed them in solitary confinement. The men blame discrimination for their rough treatment in custody. Prison staff allegedly referred to the men as "camel[s]," "fucking Muslims," and "Arabic asshole[s]." Although officials said the lockups were a necessity given post- 9/11 national security concerns, a Second Circuit panel ruled in 2015 that a climate of "hysteria" following the attacks caused the men's suffering and that it would take further discovery to determine whether "concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built." The panel ordered Mueller, former U.S. Attorney General John Ashcroft, former immigration chief James Ziglar and MDC wardens Dennis Hasty and James Sherman to face the class' due process, equal protection and conspiracy claims. Claims of class members held at Passaic County Jail were dismissed. The full Second Circuit refused to revisit its panel's decision this past December, saying "it's time to move the case forward." In taking up appeals brought by both the class and the government, the Supreme Court agreed to consider three questions: Whether the Second Circuit panel improperly refused the class' request for damages on their Fifth Amendment claims because the claims did not arise in a "new context" under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics; whether the panel improperly denied Ziglar qualified immunity; and whether the panel improperly advanced the class' fourth amended complaint, which the government says relied on hypothetical possibilities, assumption and insinuations of discrimination not backed by evidence. Per its custom, the high court did not comment on its decision to hear the case. VERITAS ENTERTAINMENT: Golan May File Third Amended Complaint ------------------------------------------------------------- In the case, RON GOLAN, et al., Plaintiff, v. VERITAS ENTERTAINMENT, LLC, et al., Defendants, No. 4:14CV00069 ERW (E.D. Mo.), Senior District Judge E. Richard Webber granted the Plaintiffs' Motion for Leave to File the Attached Third Amended Class Action Complaint invoking the Telephone Consumer Protection Act. As regards the Plaintiffs' Motion to Compel, the Defendants asserted that the reports sought by the Plaintiffs have already been produced in prior discovery. The Court noted that if the Defendants' responses were not true, the Plaintiffs will be permitted to renew their Motion to Compel as it relates to their requests. Otherwise, the Court will deny the portion of the Motion to Compel, as moot. A copy of the Court's Order dated October 5, 2016 is available at https://goo.gl/ah8H1w from Leagle.com. Dorit Golan, et al., Plaintiffs, represented by Robert Schultz, SCHULTZ AND ASSOCIATES, L.L.P. & Ronald J. Eisenberg, SCHULTZ AND ASSOCIATES, L.L.P.. Veritas Entertainment, LLC, Defendant, Pro Se. Veritas Marketing Group, LLC, et al., Defendants, represented by Ari Nicholas Rothman, VENABLE LLP, Cicely I. Lubben -- cicely.lubben@stinson.com -- STINSON AND LEONARD LLP, Ronald M. Jacobs -- rmjacobs@Venable.com -- VENABLE LLP & Danielle E. Sunberg -- desunberg@Venable.com -- VENABLE LLP. FreeEats.com, Inc., et al., Defendants, represented by Steven H. Schwartz -- sschwartz@bjpc.com -- BROWN AND JAMES, P.C., Elizabeth S. Silker, BROWN AND JAMES, P.C. & Teresa M. Young -- tyoung@bjpc.com -- BROWN AND JAMES, P.C.. VISA: Class Action Over EMV Car Reader Can Proceed -------------------------------------------------- PYMNTS reports that it's been a year since the EMV card reader deadline. Now, the big card companies -- Visa, Mastercard, American Express and others -- are all facing a class-action lawsuit brought by retailers over the new chip readers. Florida-based B&R Supermarket Inc. and Grove Liquors LLC are suing on behalf of merchants nationwide, alleging that the credit card companies conspired to dump fraudulent transactions on merchants that didn't make the EMV card deadline. The complaint was filed as a violation of the Sherman Antitrust Act. A San Francisco-based federal judge permitted the suit to proceed, saying that the two merchants "plausibly allege an impermissible conspiracy" by the card companies to impose the penalty on merchants who had not implemented the card reader by the deadline of Oct. 1, 2015. The complaint includes the example that some merchants have been allegedly responsible for more than $10,000 in fraudulent transactions and fees. The plaintiffs are seeking an unspecified amount of damages, on top of costs and attorneys fees. "This is a pretty big whack for the small merchants," the merchants' attorney, Patrick J. Coughlin, told Law360. "It's very punitive for them." According to Bloomberg, Mastercard representatives have expressed their disappointment with the status of the case but are hoping to put the issue behind them and build relationships with customers. American Express has declined to comment, and Visa has not responded. Banks that were originally named as defendants were dismissed from the case, but time will tell if they are added back in, which is something U.S. District Judge William Alsup said is being considered. WELLS FARGO: 401(K) Participant Files Class Action in Minneapolis ----------------------------------------------------------------- Courthouse News Service reported that a Wells Fargo employee and 401(k) participant claims in a federal class action in Minneapolis that the bank's withholding of information about the creation of unauthorized customer accounts caused company stock to drop 12 percent. WEST VIRGINIA: Medicaid I/DD Waiver Class Action Can Proceed ------------------------------------------------------------ Lori Kersey, writing for Charleston Gazette-Mail, reports that more people who are affected by cuts to West Virginia's Medicaid Intellectual/Developmental Disabilities waiver program may join a lawsuit against the state Department of Health and Human Resources, a federal judge has ruled. In a ruling filed Sept. 30, U.S. District Judge Thomas Johnston granted class-action status to a lawsuit filed by the nonprofit law firm Mountain State Justice on behalf of five disabled residents over the cuts. The judge has scheduled a settlement conference in the case for Oct. 28 in Charleston and denied the DHHR's request to dismiss a portion of the lawsuit. The lawsuit argues that the way the DHHR has run its I/DD waiver program violates the Americans with Disabilities Act. Mountain State Justice attorneys asked for an injunction against the DHHR last year, on behalf of five waiver recipients, to make the agency reverse course on cuts to the program that went into effect this year. MSJ attorneys Gary Smith, Bren Pomponio and Lydia Milnes have been appointed counsel for the class. The I/DD waiver program provides severely disabled West Virginia Medicaid recipients money for in-home services and community-based programs. The state Bureau for Medical Services, which administers the Medicaid program, contracts with APS Healthcare Inc. to conduct an "annual assessment of each program participant's abilities and needs," according to last month's order. Each person's budget from APS is determined by a "secret and proprietary computer algorithm." Before fall 2014, APS made independent decisions on granting funds exceeding a participant's budget, and routinely granted them, an earlier order states. That changed in September 2014, when Bureau of Medical Services employees saw that the program was exceeding its budget and told APS to stop unilaterally approving program plans that exceed the budgets, the order stated. "These denials resulted in substantial decreases from 2014 to 2015 in the total benefits Plaintiffs received through the I/DD waiver program, even though Plaintiffs' need for services did not diminish during this time period," the judge wrote. "This lower funding correspondingly results in a reduction of services Plaintiffs can purchase." Last month, Judge Johnston issued a preliminary injunction ordering the DHHR to reinstate the five plaintiffs' individualized budgets to the amounts they received in 2014. In the order, the judge did not rule on whether those in the class-action lawsuit will have their 2014 budgets reinstated. The class will be defined as, "All persons who were or will be at any time on or after Oct. 1, 2014, qualified individuals with disabilities resident in West Virginia who are eligible recipients of I/DD Home and Community-Based Waiver Program services and subject to a benefit and service eligibility process utilizing APS's proprietary budget calculation," the judge wrote. Reached for comment on Oct. 5, DHHR spokeswoman Allison Adler said the department hadn't received official notification of the ruling. "We will be happy to comment after that is issued and reviewed," she wrote in an email to the Gazette-Mail. Later in the day, Jeremiah Samples, deputy secretary of the DHHR, said the department will comply with the order and is considering its options. "As the State of West Virginia continues to face difficult financial issues, the DHHR remains committed to providing services to our most vulnerable citizens," Mr. Samples said in a written statement. WILLIAMS-SONOMA: Case Management Conference Moved to Feb. 2017 -------------------------------------------------------------- District Judge William H. Orrick ordered that a Case Management Conference shall be continued until February 7, 2017 in the case styled, WILLIAM RUSHING, Individually and on Behalf of all Others Similarly Situated, Plaintiff, v. WILLIAMS-SONOMA, INC., a Delaware corporation, also d/b/a Williams-Sonoma, and Williams- Sonoma Home, Pottery Barn, PB Teen, and PB Dorm, Pottery Barn Kids, Pottery Barn Baby, and West Elm; WILLIAMS-SONOMA DTC, INC., a California corporation; WILLIAMS-SONOMA ADVERTISING, INC., a California corporation; and DOES 1-30, Defendants, Case No. 3:16- cv-01421-WHO (N.D. Cal.). The Court further set the hearing on the Defendant's motion to dismiss for January 11, 2017. The Court's Orders are entered pursuant to the parties' stipulation that: (a) if the Plaintiff files a Fifth Amended Complaint by October 24, 2016, Defendants' obligation to respond to the Fourth Amended Complaint will become moot, and Defendants will respond to the Fifth Amended Complaint on or before November 14, 2016; (b) if the Defendants file a motion to dismiss the Fifth Amended Complaint, the following briefing schedule shall Apply: (i) Plaintiff shall file his opposition on or before December 6, 2016; and (ii) Defendants shall file their reply on or before December 20, 2016; (c) if the Plaintiff advises Defendants that he intends to file a Fifth Amended Complaint after October 24, 2016, the parties agree to confer regarding the briefing schedule for any motion to dismiss the Fifth Amended Complaint; (d) if the Plaintiff does not file a Fifth Amended Complaint by October 24, 2016 and advises Defendants that he will not be filing a Fifth Amended Complaint on or before October 24, 2016, Defendants' deadline to respond to the Fourth Amended Complaint shall be November 14, 2016; (e) if the Defendants file a motion to dismiss the Fourth Amended Complaint, the following briefing schedule shall apply: (i) Plaintiff shall file his opposition on or before December 6, 2016; and (ii) Defendants shall file their reply on or before December 20, 2016; and, (f) the CMC, currently set for November 8, 2016, and all related deadlines are continued until at least 30 days after ruling on Defendants' motion to dismiss either the Fourth Amended Complaint or Fifth Amended Complaint. A copy of the Court's Order dated October 5, 2016 is available at https://goo.gl/Tyuozf from Leagle.com. William Rushing, Plaintiff, represented by George Richard Baker -- richard@bakerlawpc.com -- Baker Law PC. William Rushing, Plaintiff, represented by Audra Elizabeth Petrolle, Rose Law Group, pro hac vice, Kathryn Honecker -- khonecker@roselawgroup.com -- Rose Law Group, pc, pro hac vice & Lauren Marie Nageotte, Rose Law Group, pc, pro hac vice. Williams-Sonoma, Inc., et al., Defendants, represented by Eric James DiIulio -- ediiulio@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, Benjamin Okhaifo Aigboboh -- baigboboh@sheppardmullin.com -- Sheppard Mullin Richter Hampton LLP, Dylan John Price -- dprice@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP & P. Craig Cardon -- ccardon@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP. YAHOO! INC: New York Man Files Data Breach Class Action ------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that a New York man alleges a Sunnyvale corporation failed to properly secure its users' personal information and has filed a class-action suit. Ronald Schwartz filed a complaint on behalf of all others similarly situated on Sept. 23 in the U.S. District Court for the Northern District of California, San Jose Division against Yahoo! Inc. alleging gross negligence. According to the complaint, the plaintiff alleges that he suffered damages from having his personal information stolen in a 2014 data breach that was announced in September. The plaintiff holds Yahoo! Inc. responsible because the defendant allegedly failed to implement necessary steps in securing plaintiff's personal information. The plaintiff requests a trial by jury and seeks damages, injunctive and equitable relief, all legal fees plus interest and any other relief as the court deems just. He is represented by Shawn A. Williams -- shawnw@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP in San Francisco, Paul J. Geller and Stuart A. Davidson -- SDavidson@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP in Boca Raton, Florida; and Joel H. Bernstein -- jbernstein@labaton.com -- Corban S. Rhodes -- crhodes@labaton.com -- and Ross M. Kamhi -- rkamhi@labaton.com -- of Labaton Sucharow LLP in New York. U.S. District Court for the Northern District of California, San Jose Division Case number 5:16-cv-05456-NC YAHOO! INC: Lawyers Raise Concern Over Fraud Risks After Hack ------------------------------------------------------------- Jack Detsch, writing for The Christian Science Monitor, reports lawyers behind a class action lawsuit against Yahoo over its recently disclosed data breach say fraudsters are now looking to dupe victims with tech support scams. In the weeks since Yahoo announced the digital attack, which initially occurred in 2014 and exposed information about 500 million accounts, scammers posing as company officials have attempted to trick users into paying hundreds of dollars for phony security upgrades. "As Yahoo put the knife in the backs of its customers by recklessly failing to secure their data, criminals are now twisting those knives by setting up fake Yahoo customer service phone numbers," said Stuart Davidson, an attorney at the law firm Robbins Geller Rudman & Dowd. "All of this would not have happened had Yahoo upheld its promise to protect its customers' data." Mr. Davidson is part of the legal team representing Ronald Schwartz, who filed a class action suit against Yahoo over the breach. Mr. Davidson said he's spoken with at least six people who have been scammed by calling phony tech support hotlines that have surfaced online. Fraudsters are demanding up to $500 to "secure" victims' computers from further harm, he said. In a letter to users, Yahoo recommended users promptly change passwords and security questions, and adopt a different means of verifying their accounts such as two-factor authentication. But the potential harm for users exposed in the breach could stretch beyond just their Yahoo accounts. While the breach did not include financial data, cybersecurity experts worry that victims in the breach could face problems with other digital accounts, too, especially if people reused their Yahoo passwords. Yahoo said that "state-sponsored" hackers were responsible for stealing the data but did not name any specific country or group. In an unrelated case, Reuters reported on Oct. 4 that Yahoo built a custom tool last year for the US government to scan users' emails. That news, coupled with revelations of the breach, caused many tech reporters, journalists, and privacy advocates to urge users to delete their Yahoo accounts. When asked about US intelligence efforts to search Yahoo emails, National Security Agency Director Adm. Michael Rogers on Oct. 5 refused to confirm or deny the Reuters story. It's unclear if revelations of Yahoo's alleged willingness to allow the government to search emails without users consent will compel additional legal action against the company. "It does certainly dovetail with our allegations," said Mr. Davidson, the lawyer in the class action case. "What I find most interesting is that, if the story is true that Yahoo has been giving the government access to user emails, Yahoo cannot blame criminals this time. This one is all on Yahoo." YAHOO! INC: Illegally Discloses Consumers Info, Suit Says --------------------------------------------------------- Brendan Quinn, individually and on behalf of all others similarly situated v. Yahoo!, Incorporated, and Does 1 through 200, inclusive, Case No. BC635382 (Cal. Super. Ct., September 27, 2016), seeks redress for the Defendant's unlawful and negligent disclosure of millions of users' account information, including their names, e-mail address, telephone numbers, dates of birth, passwords and, in some cases, encrypted or unencrypted security questions and answers. Yahoo!, Incorporated is a large technology company that provides various services, including personal e-mail accounts. The Plaintiff is represented by: Nathan M. Smith, Esq. BROWN NERI, SMITH & KHAN LLP 11766 Wilshire Blvd., Suite 1670 Los Angeles, CA 90025 Telephone: (310) 593-9890 Facsimile: (310) 593-9980 E-mail: nate@bnsklaw.com - and - D. Greg Blankinship, Esq. Jeremiah Frei-Pearson, Esq. FINKELSTEIN, BLANKlNSIDP, FREI-PEARSON & GARBER, LLP 445 Hamilton Ave, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3281 Facsimile: (914) 908-6709 E-mail: gblankinship@fbfglaw.com Jfrei-pearson@fbfglaw.com YAHOO! INC: Faces Six Class Actions Over 2014 Security Breach ------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that at least six class actions have been filed against Yahoo! Inc. in the wake of the announcement of a security breach that compromised an estimated 500 million account holders. Yahoo said on Sept. 22 that the accounts had been stolen in 2014 by what it called a "state-sponsored actor," compromising customer names, email addresses, telephone numbers, birth dates and passwords. The suits are all consumer class actions filed in federal and state courts in California and Illinois -- many by lawyers who've brought successful data-breach cases before. As with most data-breach cases, plaintiffs lawyers could face an uphill battle in arguing that most customers were actually injured by the hack. To that end, they have asserted in the lawsuits that financial information like bank and credit and debit card information might have been compromised, despite Yahoo's assurances to the contrary. "It depends on how a user uses email," said John Yanchunis of Morgan & Morgan's Tampa office, who filed a class action in the U.S. District Court for the Northern District of California on behalf of a New York man who claims he had to change all his bank accounts since the breach. Mr. Yanchunis has been lead counsel in data-breach litigation against Target Corp., Home Depot Inc. and the U.S. Office of Personnel Management. "They can buy consumer purchases, provide debit card, credit card information, other sensitive information about their personal lives because in essence this is the way people communicate. It's a treasure trove of information." David Casey -- dcasey@cglaw.com -- managing partner of Casey Gerry Schenk Francavilla Blatt & Penfield in San Diego, who has filed cases in the U.S. District Court for the Southern District of California and San Diego Superior Court against Yahoo, said he's talked to consumers who've already reported that their financial information was stolen. "A number of people who have contacted us have had financial information breached and didn't know why it was occurring," he said. "We're in the early stages, but had a number of people coming in complaining about that." One suit notes that consumers have had to pay to freeze their credit and debit accounts. The suits all were brought under negligence and other common law claims, consumer statutes in California and Illinois, as well as California and federal data- breach statutes. All the cases allege that Yahoo's failure to identify the breach for two years is longer than most companies have taken when hacked. In fact, questions have been raised about whether Yahoo CEO Marissa Mayer might have known about the breach in July, when the company was finishing its $4.8 billion sale to Verizon Communications Inc. To that point, U.S. Senator Mark Warner, D-Virginia, co-founder of the Senate cybersecurity caucus, wrote a letter on Sept. 26 to U.S. Securities and Exchange Commission Chairwoman Mary Jo White to look into whether Yahoo was in violation of federal securities laws by failing to notify investors of its breach four days after identifying the breach. "The public ought to know what senior executives at Yahoo knew of the breach, and when they knew it," he said in a statement. So far, no shareholder class actions have been filed. Yahoo spokeswoman Megan Levinson declined to comment. * New York Courts Render CPLR Article 9 Class Action Rulings ------------------------------------------------------------ Thomas A. Dickerson and Leonard B. Austin, writing for New York Law Journal, report that a number of trial court and appellate court decisions were rendered in 2016 interpreting CPLR Article 9, New York State's class action statute. Since the Court of Appeals rendered its seminal decision in Borden v. 400 East 55th Street Associates,1 24 N.Y. 3d 382 (2014), there has been a noticeable change in the receptivity of New York courts in making our class action statute more readily available to groups of litigants, especially consumers, employees and tenants. This year the courts dealt with a variety of class action issues including whether non-residents are entitled to receive notice to opt out of a derivative class action seeking declaratory and injunctive relief, the certifiability of labor law class actions seeking back pay for interns and unpaid funds earned by Buffalo Jills cheerleaders, the impact of a mandatory arbitration clause on commonality in an action by waitstaff seeking a share of gratuities, breach of contract claims by customers who received inferior and adulterated heating oil, injunctive relief sought by customers of Macy's suspected of shoplifting and when is notice to putative class members of a pre-certification discontinuance necessary. Opt-Out Notice InJiannaras v. Alfant, 27 N.Y.3d 349 (2016), aff'g 124 A.D.3d 582 (2d Dept. 2015) the Court of Appeals, after examining a proposed no opt-out settlement of a shareholders' class action seeking, primarily, equitable relief in challenging a proposed merger, determined that opt-out notice must be given to those non-resident class members who also sought monetary damages in addition to equitable relief, relying upon Matter of Colt Industries Shareholder Litigation, 77 N.Y.2d 185 (1991). As noted by the court, "The proposed settlement would release and extinguish any and all damage claims relating to the merger without affording class members an opportunity to 'opt-out,' thereby prohibiting class members from pursuing any individual claims that are separate and apart from the class settlement." While the proposed no-opt-out settlement may be appropriate for New York State residents in a class action seeking, primarily, equitable relief ["We held [in Colt] that 'there is no due process right to opt out of a class that seeks predominantly equitable relief'"], it is not appropriate to "bind [non-resident class members] with no ties to New York State to a settlement that purported to extinguish [their] rights to bring an action in damages in another jurisdiction." The court also stated that "As we recognized in [Colt], 'unlike rule 23' which defines three types of class actions and requires notice and opt-out rights only as to one type of class, the New York statute 'contemplates that a Judge may choose to exercise discretion to permit a class member to opt out of a class' Indeed, the CPLR authorizes trial judges to expand due process rights where a class settlement would extinguish out-of-state class members' damages claims separate from class-wide equitable relief." Interns Want to Be Paid In Rodriquez v. 5W Public Relations, 156571/14 (J. Kern) (Sup. Ct. N.Y. Co. July 29, 2016), a class of interns sought to recover unpaid wages claiming a violation of Labor Law Section 663 and 12 NYCRR 142.2.1 [failure to pay minimum wages] and Labor Law Section 198 [failure to pay any wages]. In denying class certification the New York Supreme Court, New York County, found that common questions did not predominate over individual questions since whether defendants' internship program created employment relationships could only be answered with individualized proof taking into consideration both the benefit of the work to the employer and the experiences of the individual intern. The Buffalo Jills In Ferrari v. Mateczun, 804125-2014, NYLJ (J. Drury) (N.Y. Sup. Ct. Erie Co. Jan. 4, 2016) a class of Buffalo Jills sought compensation for their work as cheerleaders for the Buffalo Bills football team. The Jills claimed that they were forced to sign "Agreements" wherein they agreed that "at all times [they] are independent contractors" yet were bound by "The Code of Conduct [which] detailed stringent conditions for [their] work as a Jill which called into question [their] status as an independent contractor." In granting certification of the Jills' Labor Law claims, the Supreme Court, Erie County, noted that the predominating common question is the "misclassification of the Jills cheerleaders as independent contractors." The court also found that the plaintiff could testify, through representative proof, for the members of the class (134) since they were all treated the same way. Gratuities for Waitstaff In Maor v. Hornblower, 51 Misc.3d 1231 (Sup. Ct. N.Y. Co. 2016), a class of waitstaff sought a share of the 20 percent to 22 percent gratuities charged to customers which was withheld allegedly in violation of Labor Law Section 196-d. In opposition to class certification the defendants asserted that there was a lack of commonality and typicality because unlike the named "temp" plaintiffs, all waitstaff hired internally "signed mandatory arbitration clauses." In granting certification, the Supreme Court, New York Co., found the arbitration clause unenforceable. "New York's standard for class certification is more forgiving than the federal standard and New York has articulated a preference for allowing wage claims to proceed as class actions' It is beyond improbable' that any [class member] would try to recover her tips when, compelled' to travel from New York to San Francisco to appear before an arbitrator." Adulterated Fuel Oil In BMW Group v. Castle Oil Corporation, 139 A.D.3d 78 (1st Dept. 2016) a class of customers sued heating-oil suppliers for breach of contract and Uniform Commercial Code (UCC) warranties alleging that defendants provided an inferior, adulterated heating oil, specifically that the "fuel oil that was delivered to them contained oils of lesser value mixed into the ordered grade of fuel oil, so that the delivered product did not meet the standards of the parties' contracts." In reversing the trial court's dismissal of the complaint on the grounds that plaintiffs did not allege that any injury was caused to them by the use or the burning of the blended oil, the Appellate Division, First Department, found otherwise in that plaintiffs alleged that the waste oil contaminants "impair the performance of the heating systems in which they are introduced and the fuel oil adulterated with waste oil has a lower heat content so that [the customers] needed to purchase more oil than they would have if they had received 100% fuel oil." Accused Shoplifters In Orellana v. Macy's Retail Holdings, 2016 WL 3917637 (Sup. Ct. N.Y. Co. 2016). a class of customers sought to preliminarily enjoin Macy's from demanding payment of civil penalties from individuals suspected of shoplifting while they were in Macy's custody. The class action, the genesis of which was plaintiff's detention for an alleged shoplifting incident, asserted the illegality of, inter alia, "Macy's shoplifting prevention practice, including Macy's alleged practice of coercing unsuspecting consumers into signing confessions while being detained for alleged shoplifting and exacting monetary penalties from accused shoplifters at the time they are detained." At issue was the proper interpretation of General Business Law (GBL) Section 218 and General Obligations Law (GOL) Section 11-105 which when combined give retail stores the ability to detain and demand payment of civil penalties if upon investigation it is determined that the individual was shoplifting. In granting a preliminary injunction, the Supreme Court, New York County, found that Macy's misused these statutes to deny the due process rights of suspected shoplifters by denying them an opportunity to "object, have a hearing, or receive guidance from counsel before signing a confession of shoplifting, and/or agreeing to pay civil penalties because the civil penalties, are being demanded at the time the individual is under detention by Macy's." The injunction was limited to demanding payment of civil penalties while a suspected shoplifter is detained in Macy's custody. Discontinuances On occasion a purported class action may be discontinued prior to class certification. However, the court must be vigilant in approving such discontinuances and should consider, if necessary, ordering class notice. In Desrosiers v. Ellis, 139 A.D.3d 473 (1st Dept. 2016). The First Department reversed a trial court decision which denied plaintiff's cross-motion pursuant to CPLR 908 to notify putative class members of a pre-class certification discontinuance. At issue was the timing of the cross-motion and whether it was time-barred by the 60-day period in which to seek class certification pursuant to CPLR 902. In finding that CPLR 908 "is not rendered inoperable simply because the time to move for class certification has expired," the court relied upon the rule that the commencement of a class action tolls the running of the statute of limitations until a final decision on the appropriateness of class-action status. * Women Lawyers Reflect on Decision to Sue Employers ---------------------------------------------------- Nell Gluckman, writing for The American Lawyer, reports that in August, Chadbourne & Parke partner Kerrie Campbell made headlines when she sued her firm for gender discrimination, claiming that it pays female partners less and denies them leadership opportunities. (Chadbourne denies the allegations.) She joins at least three other female lawyers at big firms who have filed gender discrimination suits in 2016. But it's a good bet that such suits are filed by only a small percentage of female lawyers who feel that they have experienced discrimination. Most aren't willing to put their jobs on the line. What happens to the women who do? We tracked down several former plaintiffs who had sued law firms, and found that their fates varied -- but none have stayed in Big Law. Amy Cherry-Abitbol, a former associate in the Tokyo office of now- defunct Cou-dert Brothers, sued Coudert in the 1990s. She claimed that the firm refused to give her work and told her to leave the firm's office after she returned from maternity leave in 1991. The case went to trial in Manhattan Supreme Court, but Cherry- Abitbol settled for a reported $500,000 to $750,000. After leaving Coudert, Cherry-Abitbol took a job in-house at American International Group Inc. until she left in 1997 to start a boutique firm with her husband. After a stint doing residential development on eastern Long Island ended during the 2008 economic downturn, Cherry-Abitbol attended Harvard Business School's New Path program for women seeking to change careers. Now she's opening a wellness center near her home in the Hamptons, with plans to begin construction in early 2017. "Sometimes the entrepreneurial route is the way to go," she says. "I can see sometimes that men will bristle a bit taking instructions from women, but it doesn't matter because you're in control." Francine Griesing, a former Greenberg Traurig shareholder, also chose the entrepreneurial route. She sued Greenberg Traurig in 2012, claiming that the firm paid its female attorneys less and that she was forced to leave the firm after complaining about allegedly unfair pay practices. She settled with Greenberg Traurig the following year under undisclosed terms. Ms. Griesing says she considered joining another big firm, but her family and friends encouraged her to open her own firm. Griesing Law started in Philadelphia in 2010 with Ms. Griesing, an associate and her assistant. Now the full-service firm employs 14 lawyers, including 13 women, and has 300 clients. At Ms. Griesing's firm, there are no origination credits because, she says, "everyone contributes to bringing in the work and serving it." Most of the lawyers have children. If they can't make it to the office for a meeting, someone will cover for them; it's not taken as a sign they're not committed to the job, Ms. Griesing says. Not all the lawyers who sued their former firms speak so highly about their post-settlement career trajectories. "It had a devastating effect on me," says Bonnie Porter, a former Boies, Schiller & Flexner associate who sued the firm in 2002, claiming that it routinely routed women away from the partnership track. Ms. Porter, who joined Hinkley, Allen & Snyder after leaving Boies Schiller, says that the firm gathered statements from female attorneys that undermined her claims. Feeling betrayed by former colleagues and deciding that they could not afford to litigate the case properly, she and her co-plaintiff settled for $37,500 each. In 2003, the Equal Employment Opportunity Commission found reasonable cause to believe that women at the firm were not treated the same as men. A spokesman for the firm said: "As the firm and its lawyers, including her women colleagues, said at the time, Ms. Porter's lawsuit was without merit." Ms. Porter worked at Brune & Richard for Hillary Richard, who had represented her in the discrimination case, before moving to Maine, where she's now a writer. At Hinkley Allen, however, she suspected that people treated her differently because of her case. "I thought people would look at me like 'Wow, she's a really courageous person.' Instead, it was 'I don't want to be tainted by her,'" she says. ********* 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 * * *