/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161025.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 25, 2016, Vol. 18, No. 213 Headlines 1-800 CONTACTS: Faces "Thompson" Class Suit in S.D. Cal. 1944 FIRST: Faces "Reyes" Suit Over Failure to Pay Overtime Wages 21ST CENTURY: MDL Panel Consolidates 16 Data Breach Class Actions 42-15 235TH STREET: Faces "Parra" Suit Over Failure to Pay OT ABBA BAIL: Faces 'Ulten" Suit Over Failure to Pay Overtime Wages AMERICAN EXPEDITING: Does Not Properly Pay Employees, Suit Says ANZA MANAGEMENT: Faces "Sanchez" Suit Over Failure to Pay OT AUSTRALIA: Ex-Camden Students, Staff Inquire About Toxic Case AUSTRALIA: Drivers Mull Suit Over Peninsula Link Speed Fines AVALONBAY COMMUNITIES: Residents Can't Oppose Fire Settlement BA2 LLC: Does Not Properly Pay Employees, "Buchanan" Suit Says BEAVER COUNTY, CA: SolGen Asked to Weigh in on Cyan Inc.'s Case CELTIC ENVIRONMENTAL: Fails to Pay Employees OT, "Mota" Suit Says CHEVRON CORP: Judge's Ruling to Seek Funding Agreement Correct COLLINS & 74TH STREET: Faces "Reyes" Suit Over Failure to Pay OT COMCAST CORPORATION: Faces "Shahlai" Suit Over Failure to Pay OT DELIZIA INC: "Martinez" Suit Seeks to Recover Unpaid Wages DEVRY EDUCATION: Sued in Illinois Over Misleading Advertisement DIRECT HOME: "Mayfield-Dillard" Suit Seeks to Recover Unpaid OT EASTMAN CHEMICAL: Not Bound by Safety Initiative, Judge Rules EMC BUILDERS: Faces "Solorzano" Suit Over Failure to Pay Overtime FRESH & EASY: Judge Refuses to Enforce Class Action Waiver GENSERVE INC: Faces "Carter" Suit Over Failure to Pay Overtime HORIZON CARE: "Royer" Suit Over Seeks to Recover Unpaid Wages KLEINER PERKINS: Sued Over Alleged Breach of Fiduciary Duty LEROY MARTIN: Faces "Robinson" Suit Over Unlawful Bail Policies MARRIOTT VACATION: Responds to Racketeering Class Action METALS USA: Dec. 12 Dura-Loc Class Action Opt-Out Deadline Set MYLAN INC: Faces "Perdue" Suit Over Misleading Financial Reports NEW YORK, NY: DHS Sued Over Failure to Pay Employees Overtime NEWS CORP: Judge Tosses Phone Tapping Scandal Class Action PARIS BAGUETTE: Sued in Cal. Over Failure to Pay Minimum Wages PEOPLE'S BANK: Appellate Court Affirms Ruling on Litigation Costs PHOENIX ACV: Faces "Salas" Suit Over Failure to Pay Overtime PROMPTIME HOME: Faces "Scott" Suit in Tex. Over Failure to Pay OT PSI SERVICES: "Kalbaklian" Suit Seeks to Recover Unpaid Wages SAMSUNG ELECTRONICS: Faces Class Action Over Washing Machines SAUL CHEVROLET: Fails to Pay Workers Overtime, "Rivera" Suit Says SIERRA AUTOCARS: Does Not Properly Pay Employees, Action Claims SOUTH NASSAU: Faces "Foster" Suit Over Failure to Pay Overtime SOUTHERN ILLINOIS: Female Surgeon Files Pay Discrimination Case SPECIALIZED LOAN: Sued Over Improper Loan Modifications STATE FARM: Plaintiffs Respond to Class Action Review Request SURFSTITCH: Appoints New CFO Amid Licensing Deal Class Action TERRAFORM GLOBAL: "Patel" Suit Consolidated in MDL 2742 TERRAFORM GLOBAL: "Simon" Suit Consolidated MDL 2742 TERRAFORM GLOBAL: "Badri" Suit Consolidated in MDL 2742 TERRAFORM GLOBAL: Iron Workers Suit Consolidated in MDL 2742 TRIDENT ASSET: Illegally Collects Debt, "Werner" Suit Claims UBER TECHNOLOGIES: Recent Rulings to Have Major Implications UNITED STATES: Dec. 7 PTIN Class Action Opt-Out Deadline Set UNITEDHEALTH: Artificially Rises Copayment Amounts, Suit Claims VIGO COUNTY, IN: Inmate Files Class Action Over Jail Crowding WAFFLE HOUSE: Court Denies Motion to Dismiss FCRA Class Action WELLS FARGO: Fired Workers Allege Retaliation in Account Probe WEST VIRGINIA PAVING: Plaintiff's List in Asphalt Cases Growing WEYERHAEUSER CO: Averts Class Action Over Retiree Benefit Cuts * Direct-Mail More Effective in Sending Class Action Notices * Opt-Out Clauses May Help Firms Enforce Arbitration Agreements * Senate Mulls Passage of CREATES Act Amid CFPB Proposal * U.S. FDA Aims to Redefine "Healthy" Label Amid Class Actions ********* 1-800 CONTACTS: Faces "Thompson" Class Suit in S.D. Cal. -------------------------------------------------------- J Thompson and William P. Duncanson, individually and on behalf of all others similarly situated v. 1-800 Contacts, Inc., Vision Direct, Inc. and Does 1-15, Case No. 3:16-cv-02552-LAB-KSC (S.D. Cal., October 13, 2016), arises out of the Defendants' overarching scheme to restrain competition in the direct-to-consumer and online markets for contact lenses. 1-800 Contacts, Inc. sells contact lenses and related products over the internet and by telephone throughout the United States. Vision Direct, Inc. is an online retailer of contact lenses and vision care supplies. The Plaintiff is represented by: Patrick J. Coughlin, Esq. David W. Mitchell, Esq. Brian O. O'MARA, Esq. Steven M. Jodlowski, Esq. Carmen A. Medici, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: patc@rgrdlaw.com davidm@rgrdlaw.com bomara@rgrdlaw.com sjodlowski@rgrdlaw.com cmedici@rgrdlaw.com - and - Brian J. Robbins, Esq. George C. Aguilar, Esq. Gregory Del Gaizo, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 E-mail: brobbins@robbinsarroyo.com gaguilar@robbinsarroyo.com gdelgaizo@robbinsarroyo.com 1944 FIRST: Faces "Reyes" Suit Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Pedro Ortiz Reyes and Tomas Soto, individually and on behalf of others similarly situated v. 1944 First Avenue Deli Co., LLC (d/b/a Dave's Gourmet LLC), and Derhim Nasser, Case No. 1:16-cv- 08073 (S.D.N.Y., October 14, 2016), is brought against the Defendants for failure to pay appropriate minimum wage and overtime compensation for work in excess of 40 hours per week. The Defendants own and operate a Deli located at 1944 First Avenue, New York, New York 10029. The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, PC 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 E-mail: Michael@Faillacelaw.com 21ST CENTURY: MDL Panel Consolidates 16 Data Breach Class Actions ----------------------------------------------------------------- Linn Freedman, Esq. -- lfreedman@rc.com -- of Robinson+Cole, in an article for JDSupra, previously reported that 21st Century Oncology suffered a data breach in October 2015 involving an intrusion into its systems which compromised around 2 million patients' records, including their names, Social Security numbers, physicians' names, insurance information, treatment information and diagnoses. As a result of the data breach, sixteen class action cases were filed against the cancer treatment provider in Florida and California. The suits allege various causes of action, but include violation of the Fair Credit Reporting Act, the Florida Deceptive and Unfair Trade Practices Act, and delay in providing notification to the patients, since the breach occurred in October 2015, 21st Century was alerted to the intrusion by the FBI on November 13, 2015, and patients weren't notified until March 4, 2016. 21st Century has indicated that the FBI requested a delay in notifying the patients in order to continue the investigation. The U.S. Judicial Panel on Multidistrict Litigation consolidated all of the cases on October 7, and ordered that the consolidated cases be tried in the Middle District of Florida. 42-15 235TH STREET: Faces "Parra" Suit Over Failure to Pay OT ------------------------------------------------------------- Carlos Parra, individually and on behalf of others similarly situated v. 42-15 235th Street Hospitality LLC (d/b/a Southern Hospitality BBQ), SHNY Restaurant Group LLC). (d/b/a/ Southern Hospitality BBQ), and Eytan Sugarman, Case No. 1:16-cv-08079 (S.D.N.Y., October 14, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate sports bars and southern restaurants located at 1460 second Avenue, New York, NY 10021 and 645 Ninth Avenue, New York, New York 10036. The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, PC 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 E-mail: Michael@Faillacelaw.com ABBA BAIL: Faces 'Ulten" Suit Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Adam Van Ulten, individually, and on behalf of the general public and all others similarly situated v. Abba Bail Bonds, Inc. and DOES 1 through 10, inclusive, Case No. 2:16-at-01291 (E.D. Cal., October 14, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Abba Bail Bonds, Inc. operates in the California Bail Bonds industry, with more than 15 offices throughout California. The Plaintiff is represented by: David D. Deason, Esq. Matthew F. Archbold, Esq. DEASON & ARCHBOLD 17011 Beach Blvd, Suite 900 Huntington Beach, CA 92647 Telephone: (949) 794-9560 E-mail: David@yourlaborlawyers.com Matthew@yourlaborlawyers.com AMERICAN EXPEDITING: Does Not Properly Pay Employees, Suit Says --------------------------------------------------------------- Thomas Morin, on behalf of himself and all others similarly situated v. American Expediting Company and Does 1 through 50, inclusive, Case No. BC637386 (Cal. Super. Ct., October 13, 2016), arises from Defendants' failure to pay employees minimum wages for all hours worked, failure to pay the proper overtime rate, failure to authorize and permit paid rest periods, failure to schedule services to enable all statutory off-duty meal periods to be taken, failure to provide proper wage statements, failure to reimburse employees for expenses incurred in the execution of their work duties, and failure to pay all wages owed at separation to separated employees. American Expediting Company and its subsidiaries or affiliated companies, are engaged in the ownership, management, and operation of distribution and logistics services for California, among other states, offering direct-to-store shipment and related distribution services. The Plaintiff is represented by: Christopher J. Hamner, Esg. HAMNER LAW OFFICES, APC 5023 Parkway Calabasas Calabasas, CA 91302 Telephone: (818) 876-9631 E-mail: chamner@harnnerlaw.com ANZA MANAGEMENT: Faces "Sanchez" Suit Over Failure to Pay OT ------------------------------------------------------------ Luis Sanchez, individually and on behalf of others similarly situated v. Anza Management Company, Inc. and Does 1 through 50, inclusive, Case No. BC637081 (Cal. Super. Ct., October 13, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. Anza Management Company, Inc. operates a property management company located at 2280 University Dr, Newport Beach, CA 92660. The Plaintiff is represented by: Heather Davis, Esq. Amir Nayebdadash, Esq. Nicole R. Clancy, Esq. PROTECTION LAW GROUP, LLP 136 Main Street, Suite A El Segundo, CA 90245 Telephone: (424) 290-3095 Facsimile: (866) 264-7880 E-mail: heather@protectionlawgroup.com amir@protectionlawgroup.com nicole@protectionlawgroup.com AUSTRALIA: Ex-Camden Students, Staff Inquire About Toxic Case ------------------------------------------------------------- Daily Telegraph reports that more than 100 former Camden High School students and staff have contacted Marsdens Law Group about a class action lawsuit against the NSW Education Department, alleging it had failed in its duty of care. The law group has been inundated with inquiries about the suit since new developments were reported across the media. Marsdens is investigating a link between the site which housed a gas works and the health issues suffered by former students and staff until the school's relocation to Cawdor Rd in 2001. Minto father of six Sean Charters is among the former students to join the class action since on Oct 9. He has struggled with gastrointestinal problems and suffered a ruptured bowel and had to have about 45cm of his lower intestine removed three years ago. Mr. Charters was prescribed useless courses of antibiotics or told to change his diet. "It was like having food poisoning every few weeks," Mr. Charters said. He still struggles with pain and can't keep weight on, dropping from a 117kg to 53kg. Doreen Clissold joined the class action when it was launched by late former Camden High student Leonie Curry in 2012, convinced her son Scott's just after his trial HSC in the late 80s was linked to the site. "My son used to come home complaining of the smell at the school. He used to get headaches and have trouble sleeping and then he fell ill and it developed into a brain tumour," she said. Scott fell ill during his HSC trials and was diagnosed with grade four astrocytoma, a serious form of brain tumour, and died in May the next year, two months after his 18th birthday. Sister Sasha Clarke remembered him as a fit and healthy young man until his illness. "He would come home and complain about the stench and tell us about the bubbles in the soil. "He complained about pins and needles during the HSC trials and he went for some tests. After more testing they found the tumour. He was dead after 11 months. Mrs. Clarke said she hoped the class action would help the family find some closure. The class action is expected to be launched in the Supreme Court next year. AUSTRALIA: Drivers Mull Suit Over Peninsula Link Speed Fines ------------------------------------------------------------ Allison Harding, writing for Mornington Peninsula Leader, reports that more than 60 perplexed drivers who discovered they were all fined for travelling at precisely the same speed in the same section of Peninsula Link are considering launching a class action against the State Government. The motorists are wondering if several of the point-to-point cameras on the freeway could be faulty, with many claiming they always used cruise control so it was impossible they had averaged 108km/h. Jacqueline Smith, of Pearcedale, received three $190 fines in less than two weeks in May. She started a Facebook group called Peninsula Link 108's after noticing complaints about unexpected fines -- all at the same speed -- from others who regularly travelled between Skye, Eramaso and Loders roads. "It seemed I was not alone, and all our fines were for 108km/h, which was bizarre," she said. "There seems to be a significant pattern." Mrs. Smith said she was keen to organize a meeting with other bemused drivers at a service station on the freeway to discuss a class action through a high-profile legal firm. "It's power to the people . . . it's something I'm going to follow up," she said. Police said they were not aware of any concerns about the Peninsula Link cameras in the past six months. Acting Sergeant Julie-Anne Newman from Road Policing Command said routine checks of camera accuracy showed they were all operating correctly. "All road safety cameras in Victoria are subject to a rigorous testing, certification and maintenance program," she said. Acting Sgt Newman said police could not comment on specific infringements, but drivers could request internal reviews or elect to go to court. Mrs. Smith, who drives to and from Rosebud every day, appealed her fines after realizing many others were in the same boat. "I'm all for speed cameras -- they protect lives and people slow down," she said. However, she was confident she had not exceeded the speed limit. "I think there are easily at least 100 people querying their fines, and the group already has nearly 60 members," she said. Driver Jarrod Salmon said he had received five fines in five days for travelling at 108km/h in the section of road. When he posted about his fines, he discovered 47 more people had been fined for the same speed. "Something is definitely dodgy," he said. Between April and June this year, 15,861 infringements were detected by the Peninsula Link camera system, totalling $3.6 million in fines. Acting Sgt. Newman said the independent Road Safety Camera Commissioner's 2015-16 annual review confirmed that Victoria's road safety cameras were operating accurately and reliably, in accordance with legislative requirements. Point-to-point fixed speed cameras measure speed at the location of the camera, and the average speed between the subsequent cameras. AVALONBAY COMMUNITIES: Residents Can't Oppose Fire Settlement ------------------------------------------------------------- Tom McParland, writing for New Jersey Law Journal, reports that a group of residents affected by last year's Avalon at Edgewater inferno may not intervene to oppose a settlement in a proposed class action against the operator of the apartment complex, a New Jersey federal judge ruled on Oct. 12. The proposed intervenors, plaintiffs in a state court action against AvalonBay Communities Inc., argued that the offered settlement would force them to release all claims related to the Jan. 21, 2015, fire. And their interests, they said, were in direct conflict with those of the class and its counsel. U.S. Magistrate Judge Joseph A. Dickson, in a 13-page opinion, said the argument implied that the class members and their counsel "are not interested" in maximizing the value of the settlement. But, he noted, that the implication had no factual basis in the record before the court. Judge Dickson said the settlement would have no bearing on the interests of the proposed intervenors because, like class members they would have the choice to participate, object or opt out of the settlement. In fact, they even had the additional option to opt out and proceed with their pending suit in New Jersey Superior Court, he said. "In that regard, it can be argued that they are more protected than all other class members. The Proposed Intervenors have failed to demonstrate that, if they are prevented from intervening, their claims will be impaired," Judge Dickson said. Nor could they show that their interests were not adequately represented in the federal action because the plaintiffs in both the federal and state class actions were trying to maximize their recovery on personal injury claims, he found. And denying intervention as a right, Judge Dickson refused to use the court's discretion to grant intervention permissively. Judge Dickson did, however, allow the proposed intervenors to file an amicus brief on a motion for preliminary approval of the settlement, in order to address other issues raised in their filings. Under the proposed settlement, residents of the Avalon's Russell complex who have not already settled with AvalonBay would be able to recover up to 100 percent of their property damage from the fire, which razed the building but left the adjacent River Mews building intact. The claims would be handled by an independent adjuster, and there would be no cap on the potential payout. Daniel R. Lapinski -- dlapinski@wilentz.com -- acting as a co-lead attorney for the class, said he was happy to have the intervention issue squared away, so that his clients can work toward approval of the proposed settlement. He said the intention of the potential intervenors was just to "make noise" over the terms of a settlement that they would have opted out of anyway. "They weren't coming in to protect their interests," said Mr. Lapinski, a partner in Wilentz, Goldman & Spitzer's Woodbridge office. Michael J. Epstein, who represented the proposed intervenors, said he was "disappointed" with the ruling, and that he was evaluating how best to raise objections to the decision. And he said he was committed to litigating some 55 cases pending against AvalonBay in Superior Court. "We still feel strongly that the best way to litigate these cases is individually," said Mr. Epstein, a partner at the Epstein Law Firm in Rochelle Park. The Superior Court cases, he said, were still in the discovery phase. BA2 LLC: Does Not Properly Pay Employees, "Buchanan" Suit Says -------------------------------------------------------------- Vincent Buchanan, individually and on behalf of other individuals similarly situated v. BA2, LLC, d/b/a 1933 Group and Does 1 through 25, inclusive, Case No. BC637355 (Cal. Super. Ct., October 14, 2016), is brought against the Defendants for failure to pay minimum wages and overtime compensation in violation of the California Labor Code. BA2, LLC owns and operates bars, night clubs and other related facilities in Los Angeles, California. The Plaintiff is represented by: Young W. Ryu, Esq. Kelly Kim, Esq. LAW OFFICE OF YOUNG W. RYU A PROFESSIONAL LAW CORPORATION 9595 Wilshire Blvd, Suite 900 Beverly Hills, CA 90212 Telephone: (888) 365-8686 Facsimile: (800) 576-1170 E-mail: young.ryu@ywrlaw.com kelly.kim@ywrlaw.com BEAVER COUNTY, CA: SolGen Asked to Weigh in on Cyan Inc.'s Case --------------------------------------------------------------- Kate Jacobson, writing for Northern California Record, reports the U.S. Supreme Court has asked the solicitor general to weigh in on a jurisdiction question for a federal securities lawsuit out of California. The case of Cyan Inc. vs. Beaver County Employees Retirement Fund is currently in front of the nation's highest court. The issue at hand is whether state courts lack subject matter jurisdiction over specific class actions. The case could set a precedent for where class actions are decided. "It will change the way (class action suits) are brought to court," Attorney Boris Feldman told the Northern California Record. "If the Supreme Court takes the case and we prevail, than it will knock out Section 11 suits in state court, which will be a big deal." Mr. Feldman, who represents Cyan Inc. in the federal case, said Section 11 cases deal with false or misleading IPO perspectives. The original class action began in 2013 after investors said Cyan Inc. failed to warn them that the company's revenues were dependent on two limited life projects, and that both projects were coming to a close. Investors argued the company was required to disclose those facts before giving stock options. Under the Securities Act of 1933, class actions suits are to be litigated in state court. Subsequent laws, including the Securities Litigation Uniform Standard Act (SLUSA), altered the rules for covered class action lawsuits to be tried in federal courts. Federal judges were left to decide whether SLUSA eliminated state jurisdiction altogether, which makes the case of Cyan Inc. especially important to case law. Mr. Feldman said the threshold for Section 11 cases is much higher in federal court than it is in state court. "We're pretty confident that if the Cyan case had been brought in federal court it would've been tossed on its ear," he said. Advocates for reform argue that more litigation could harm efforts to raise capital and promote entrepreneurship. This can be especially harmful to areas of California such as Silicon Valley, where tech start-ups and entrepreneurs face turbulent and unpredictable financial landscapes. Mr. Feldman argues that SLUSA should overrule the Securities Act of 1933, and by California still allowing class action suits such as the one brought against Cyan Inc., it's only hurting the state's overall economy. "Our state is an IPO factory, and whenever the price dips from the IPO price you can get sued in state court," he said. "We think it's beneficial to them that if they're sued they can only be sued in federal court. Federal judges are pretty good about throwing out suits that don't have merit." He said he is hopeful the Supreme Court will take up the case and rule in favor of Cyan Inc., not just for the company itself but to eliminate the risk burgeoning companies that offer IPOs face. "We were encouraged that (the U.S. Supreme Court) is looking at it seriously enough that they've asked the solicitor general to share his views," he said. "But beyond that, who knows?" CELTIC ENVIRONMENTAL: Fails to Pay Employees OT, "Mota" Suit Says ----------------------------------------------------------------- Evelio Mota and Mayko Mota, on behalf of themselves and others similarly situated v. Celtic Environmental, Inc., Celtic Environmental Company, and Joseph Smrz, Jr., Case No. 1:16-cv- 09753 (N.D. Ill., October 14, 2016), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants operate an environmental consultancy company located at 8128 47th Street, Lyons, Illinois 60534. The Plaintiff is represented by: Lisa L. Clay, Esq. LISA L. CLAY, ATTORNEY AT LAW 345 North Canal Street, Suite C202 Chicago, IL 60606 Telephone: (312) 753-5302 E-mail: lclayaal@gmail.com - and - Juan M. Soliz, Esq. LAW OFFICE OF JUAN M. SOLIZ & ASSOCIATES 3203 S. Pulaski Road Chicago, IL 60623 Telephone: (773) 277-6155 Facsimile: (773) 277-6157 E-mail: lawsoliz@sbcglobal.net CHEVRON CORP: Judge's Ruling to Seek Funding Agreement Correct -------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that Julia Gewolb, legal counsel at one of the largest litigation finance companies, says a California federal judge was correct to order a plaintiff in a proposed class action against Chevron Corp. to produce his litigation funding agreement -- a rare step taken in cases funded by third parties. "I actually think the order was right," Ms. Gewolb, of Bentham IMF, recently told Legal Newsline. "I think the judge did the right thing in this case. "But I think the reaction to it was blown a little bit out of proportion." On Aug. 5, Judge Susan Illston, of the U.S. District Court for the Northern District of California, granted Chevron's motion requiring plaintiff Natta Iyela Gbarabe to produce his funding agreement. The identity of the funder has not been disclosed yet in court records. The plaintiff filed a proposed class action against the oil giant over a January 2012 gas explosion off the coast of Nigeria. Ms. Gbarabe alleges he and others similarly situated suffered financial and personal losses, including health issues, as a result of the explosion. Judge Illston said in her August ruling that considering the circumstances of the case, the litigation funding agreement was relevant. "The confidentiality provision of the funding agreement does not prohibit plaintiff from producing the agreement, and instead simply states that 'if at any time such a requirement [to produce the agreement] arises or to do so would be prudent . . . the lawyers will promptly take all such steps as reasonably practicable to make such disclosure . . . '" the judge wrote in her seven-page order. Ms. Gewolb said the specifics of a case are what matter. And in Ms. Gbarabe, she said, the plaintiff conceded two of the strongest and most common arguments against production of funding agreements: relevance and privilege. "Here, the plaintiffs attorneys were two lawyers who were working out of their homes and admitted they were uniquely reliant on funding," Ms. Gewolb explained. "Their only argument was the confidentiality agreement within the funding agreement, but it allowed for production pursuant to court order. "So, I think the judge's order made a lot of sense." It has become commonplace for third-party funders to pay the owner of a civil claim upfront in return for the claim owner's promise to convey a portion of the potential recovery. This brings tax advantages for both the third-party funders and class action plaintiffs attorneys, allowing them to defer tax liability on the monetary advancement until the claim pays off while the funders deduct expenses and pay taxes on profit accrued at the lower capital-gains rate. These agreements routinely are entered confidentially. Bentham, which provides funding to plaintiffs and law firms for large legal disputes, established its foothold in Australia before opening an office in the U.S. about five years ago. The company quickly has become a leading litigation funder, dealing in commercial funding, law firm financing, whistleblower funding, appeal funding and some pro bono, public interest cases, according to its website. It does not invest in class actions, Ms. Gewolb noted. "The cases we typically fund involve pretty sophisticated plaintiffs," she said. Ms. Gewolb said most of the cases referred to Bentham come from attorneys and claimants who are looking for funding for a variety of reasons: to cover some or all attorneys fees, the costs of experts or, sometimes, working capital. However, the company always does its due diligence before backing a case, Ms. Gewolb said. Typically, it only invests in about 5 percent of the cases that come through its doors, she said. "We have an open dialogue about the claims, and we do our own research," she explained. "We're all former litigators here, so we know how to evaluate a claim. We know whether it's likely to be successful or not." Bentham is one of three litigation funding companies that have come out against a proposed rules change that would require disclosure of third-party litigation financing. In 2014, it joined Gerchen Keller Capital LLC and Burford Capital LLC in writing a letter to the 15-member Advisory Committee on Civil Rules regarding an amendment to Federal Rule of Procedure 26. The amendment was proposed by the U.S. Chamber's Institute for Legal Reform and others. ILR owns Legal Newsline. ILR President Lisa Rickard wrote in 2014 that the amendment would produce four positive outcomes: -- By identifying persons/entities with a stake in the outcome of the litigation, the contemplated disclosures would allow courts and counsel to ensure compliance with ethical obligations; -- The proposed amendment would satisfy defendants' entitlement to know who is really on the other side of an action; -- A litigation-funding disclosure provision would facilitate a fuller, fairer discussion of motions for cost-shifting in cases involving onerous e-discovery; and -- The disclosure of TPLF arrangements would be important information to have on the record in the event that a court determines it should impose sanctions or other costs. The litigation funders have argued that such a proposed amendment is "unnecessary, untimely and contrary to the purpose of Rule 26." Twice, in 2014 and earlier this year, the committee has considered a disclosure rule. Both times, it decided to keep monitoring the issue, saying it didn't have enough information to proceed. Ms. Gewolb said the committee is right to take a "very measured approach" to the topic. "While it's a very hot topic -- and for a very good reason -- it's still pretty small and still very much developing," she said of third-party litigation funding. She contends that such disclosures should always be fact- dependent. "There's no need for a blanket rule that all funding agreements should be disclosed," Ms. Gewolb said, pointing to a case in the U.S. District Court for the Southern District of New York last year. In Kaplan v. S.A.C. Capital Advisors LP, the federal court denied the defendant's motion to compel. The class action plaintiff objected to producing funding documents on the basis that they were irrelevant to the issues in the case, including adequacy of class action counsel. "Just because there's a funder in a case, that doesn't make it relevant," Ms. Gewolb said. "In that sense, I think the two decisions (Gbarabe and Kaplan) are very consistent with one another." And there's no reason to think that Judge Illston's decision in Ms. Gbarabe will lead to a flood of disclosure in class action cases, Ms. Gewolb said. "I think it will always be a case-by-case thing," she said. "I think the facts in each case are so unique, there can't be any bright-line rule." Not to mention, requiring disclosure of such agreements across the board would make things tougher for plaintiffs, she said. "It could chill good cases, preventing them from being brought because everyone's too worried about the discovery sideshow," Ms. Gewolb said. COLLINS & 74TH STREET: Faces "Reyes" Suit Over Failure to Pay OT ---------------------------------------------------------------- Luis Reyes, and all others similarly situated v. Collins & 74th Street, Inc. and Mohammed S. Hossain, Case No. 1:16-cv-24362-JAL (S.D. Fla., October 14, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a restaurant located at 7446 Collins Ave, Miami Beach, FL, 33141-2714. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: ZABOGADO@AOL.COM COMCAST CORPORATION: Faces "Shahlai" Suit Over Failure to Pay OT ---------------------------------------------------------------- Ramin Shahlai, on his own behalf and on behalf of all others similarly situated v. Comcast Corporation, Case No. 1:16-cv-02556 (D. Col. October 13, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Comcast Corporation is a cable TV and internet service provider. The Plaintiff is represented by: Brandt Milstein, Esq. MILSTEIN LAW OFFICE 595 Canyon Boulevard Boulder, CO 80302 Telephone: (303) 440-8780 E-mail: brandt@milsteinlawoffice.com - and - Andrew Turner, Esq. BUESCHER, KELMAN, PERERA & TURNER, P.C. 600 Grant Street, Suite 450 Denver, CO 80203 Telephone: (303) 333-7751 E-mail: aturner@laborlawdenver.com DELIZIA INC: "Martinez" Suit Seeks to Recover Unpaid Wages ---------------------------------------------------------- Medari Jamileth Rodriguez Martinez, an individual, on behalf of themselves and all others similarly situated v. Delizia Inc., d/b/a Bosco Bakery Cafe, Cake Salon Bosco, Inc., d/b/a Bosco Bakery and Bosco Bakery Cafe, Allink, Inc. d/b/a Bosco Bakery and Bosco Bakery Cafe, and Does 1 through 50, inclusive, Case No. BC637281 (Cal. Super. Ct., October 14, 2016), seeks to recover unpaid wages earned and due, including but not limited to unpaid minimum wages, unpaid and illegally calculated overtime compensation, illegal meal and rest period policies. The Defendants own and operate Bosco Bakery Cafe in Los Angeles, California. The Plaintiff is represented by: Matthew J. Matern, Esq. Dalia Khalili, Esq. Shayna E. Dickstein, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 E-mail: mmatern@matemlawgroup.com dkhalili@maternlawgroup.com sdickstein@maternlawgroup.com DEVRY EDUCATION: Sued in Illinois Over Misleading Advertisement --------------------------------------------------------------- Debbie Petrizzo, Renee Heather Polly, Brandy Van Buren, Melissa Lotzman, Jamison Purry, and Cheryl Costello, individually and on behalf of all others similarly situated v. DeVry Education Group Inc., DeVry University, Inc., and DeVry/New York Inc., Case No. 1:16-cv-09754 (N.D. Ill., October 14, 2016), asserts that the Defendants falsely and misleadingly advertised the employment rates of DeVry graduates in their field. The Defendants operate a private, for-profit, post-secondary educational institution located at 3005 Highland Parkway, Downers Grove, Illinois. The Plaintiff is represented by: Theodore B. Bell, Esq. Carl Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC One Dearborn Street, Suite 2122 Chicago, IL 60603 Telephone: (312) 984-0000 Facsimile: (312) 212-4401 E-mail: tbell@whafh.com malmstrom@whafh.com - and - Thomas H. Burt, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653 E-mail: burt@whafh.com - and - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY MCKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212)983-0383 E-mail: egleston@gme-law.com tjmckenna@gme-law.com DIRECT HOME: "Mayfield-Dillard" Suit Seeks to Recover Unpaid OT --------------------------------------------------------------- Leila Mayfield-Dillard and Cornell Dillard, individually and on behalf of all others similarly situated v. Direct Home Health Care, Inc., Case No. 0:16-cv-03489 (D. Minn., October 14, 2016), seeks to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act. Direct Home Health Care, Inc. owns and operates a home health care facility in Minneapolis, Minnesota. The Plaintiff is represented by: Michele R. Fisher, Esq. NICHOLS KASTER, PLLP 4600 IDS Center, 80 S. 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 215-6870 E-mail: fisher@nka.com - and - Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com EASTMAN CHEMICAL: Not Bound by Safety Initiative, Judge Rules ------------------------------------------------------------- Ken Ward Jr., writing for Charleston Gazette-Mail, reports that a voluntary industry safety initiative does not set up formal standards binding Eastman Chemical, a federal judge ruled on Oct. 13 in another decision that helps frame the upcoming trial of a class-action lawsuit over the January 2014 chemical spill on the Elk River, a federal judge ruled on Oct. 13. U.S. District Judge John Copenhaver Jr. granted a motion from Eastman, which argued that the "Responsible Care" program -- a much-touted effort by a chemical industry lobby group -- did not independently create some duty that Eastman owed to residents and businesses who are suing over the company's role in selling to Freedom Industries Crude MCHM, the primary chemical involved in the spill that contaminated the region's drinking water supply. The ruling is the latest in a series of decisions that Judge Copenhaver has made in the weeks prior to the scheduled start on Oct. 25 of jury selection in the case against Eastman and West Virginia American Water Co. over the water crisis the occurred following the contamination of the area's drinking water after the spill. The lawsuit alleges that West Virginia American did not adequately plan for or respond to the spill, and that Eastman did not properly caution Freedom about the potential dangers of Crude MCHM. Last year, Judge Copenhaver approved the case being pursued as a class-action over the liability, or fault, of the water company and Eastman. The judge did not certify a damages class, meaning damages would be determined later, on some case-by-case basis that has yet to be fully defined. In their case against Eastman, lawyers for residents and businesses argue the Eastman is liable for failing to instruct Freedom about the proper storage of Crude MCHM and not warning of the chemical's potential dangers. Eastman had wanted to block any evidence about whether the Responsible Care program constituted a set of industry standards that the company should have followed in its handling of MCHM matters and dealings with Freedom. Judge Copenhaver ruled that there was no "foundation to conclude that the broad principles of Responsible Care translated into specific practices or actions of companies that are well known and commonly accepted within the industry." In another ruling, Judge Copenhaver on Oct. 12 ruled with Eastman on the company's argument that it had not violated the federal Toxic Substances Control Act, or TSCA, in its handling of MCHM issues. The TSCA issue was not scheduled to be part of the trial, because the parties had agreed to have Judge Copenhaver rule on it as a matter of law. The only issue was that the plaintiffs sought a court injunction to force Eastman to stop the TSCA violations alleged in the lawsuit. Lawyers for the plaintiffs had argued that Eastman violated the law by not reporting certain information about Crude MCHM to the U.S. Environmental Protection Agency. A former top EPA official, Robert Sussman, hired as an expert for the plaintiffs, had said that if Eastman had provided EPA with more information it "may well have led" to additional studies of the chemical and "to great controls on environmental release at coal preparation and related facilities, and these could have prevented the spill from occurring." Judge Copenhaver, though, ruled that such "conjectural or hypothetical" arguments are exactly the sort that the U.S. Supreme Court has dismissed as insufficient to show a legal standing to bring suit. "That is, the plaintiffs cannot show that it would be 'likely' as opposed to merely 'speculative,' that the injury will be redressed by a favorable decision," the judge wrote. Judge Copenhaver said that the injunctive relief sought by the plaintiffs in the TSCA part of their case -- requiring Eastman to correct its failure to report certain MCHM information to EPA's TSCA office and begin keeping records about adverse health effects relating to the chemical -- would not ameliorate any future potential to exposure to MCHM. EMC BUILDERS: Faces "Solorzano" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Honorio E. Solorzano and other similarly-situated individuals v. EMC Builders, L.L.C., Cristobal Narvaez, and Maria Fernandez, Case No. 1:16-cv-24350-PAS (S.D. Fla., October 13, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a construction company in Miami- Dade County, Florida. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com FRESH & EASY: Judge Refuses to Enforce Class Action Waiver ---------------------------------------------------------- Shar Bahmani, Esq., of Squire Patton Boggs (US) LLP, in an article for The National Law Review, reports that the National Labor Relations Board (NLRB) has been steadfast in its position that such waivers run afoul of the NLRA. The Fifth Circuit was the first Circuit Court to weigh in, consistently holding in a pair of decisions in 2012 and 2014, and again in 2016 that class and collective action waivers are permissible and enforceable. The Fifth Circuit rule presented a significant problem for the NLRB's position as employers with sufficient contacts in Fifth Circuit states could appeal an NLRB decision invalidating their arbitration agreements to the Fifth Circuit. However, earlier this year, the Seventh Circuit became the first Circuit Court to agree with the NLRB's stance against class and collective action waivers. Soon thereafter, the Ninth Circuit also joined the Seventh Circuit and the NLRB, thereby widening the split on the enforceability of the waivers. Although the issue has yet to be decided by the Third Circuit, the momentum from the recent Seventh and Ninth Circuit decisions may have trickled eastward to the Third Circuit. Recently, a Delaware bankruptcy judge refused to enforce a class action waiver in an employee arbitration agreement because the Court determined the waiver violated the NLRA. Noting the issue was an issue of first impression in the Third Circuit, Judge Brendan L. Shannon determined "that a class-action waiver provision violates substantive rights at the heart of the NLRA." Notably, the Court separately determined that the entire arbitration agreement was unenforceable as a result of the invalid class action waiver even though it contained an opt-out provision for employees. The Delaware decision is a District Court decision and is not the binding law of the Third Circuit. However, it does serve as a reminder of the deepening split away from the previously unchallenged Fifth Circuit rule. Employers are advised to review the law of the Circuit(s) in which their employees and operations are based. Employers should also be aware that the decision making split between the Circuit Courts will likely lead to review by the U.S. Supreme Court in the near future. The Delaware bankruptcy case is In re: Fresh & Easy, LLC Case No. 1:15-bk-12220 in the U.S. Bankruptcy Court for the District of Delaware. GENSERVE INC: Faces "Carter" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Chris Carter, Dean Mendolia, James Guida, Joseph Venth, Neil Tingwall, Robert Reitz, Jr., Steve Beouch and Thomas Costanza, individually and on behalf of the putative class members v. Genserve, Inc., Generator Holding Corporation, Robert Fortunato, Michael V. Ahling, and Joseph Flynn, Case No. 516354/2016 (N.Y. Super. Ct., October 13, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the New York Labor Law. The Defendants operate a generator contracting business performing maintenance, repair, servicing, and replacement duties on commercial generators and generator components and automatic transfer switches. The Plaintiff is represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-970 E-mail: pelton@peltongraham.com graham@peltongraham.com HORIZON CARE: "Royer" Suit Over Seeks to Recover Unpaid Wages ------------------------------------------------------------- Juliette Royer, on behalf of herself and others similarly situated v. Horizon Care Services, Inc., Case No. 9:16-cv-81726-DMM (S.D. Fla., October 13, 2016), seeks to recover unpaid minimum wage and unpaid overtime compensation, liquidated damages, and costs and reasonable attorneys' fees pursuant to the Fair Labor Standards Act. Horizon Care Services, Inc. owns and operates a business with a principal office in Palm Beach County, Florida providing in-home care and related services. The Plaintiff is represented by: Keith M. Stern, Esq. Hazel Solis Rojas, Esq. LAW OFFICE OF KEITH M. STERN, P.A. One Flagler 14 NE 1st Avenue, Suite 800 Miami, FL 33132 Telephone: (305) 901-1379 Facsimile: (561) 288-9031 E-mail: employlaw@keithstern.com hsolis@workingforyou.com KLEINER PERKINS: Sued Over Alleged Breach of Fiduciary Duty ----------------------------------------------------------- Orgone Capital III, LLC, David Bumidge, Lincolnshire Fisker, LLC, Kenneth A. Steel, Jr., and Robert F. Steel, individually and on behalf of a class of all those similarly situated v. Keith Daubenspeck, Peter McDonnell, Kleiner Perkins Caufield & Byers, Ray Lane, and John Doerr, Case No. 2016-CH-13589 (Ill. Cir. Ct., October 14, 2016), is brought on behalf of all who purchased Fisker Automotive Holdings, Inc. securities through Advanced Equities, Inc., asserting claims of common law fraud, fraudulent concealment of material information, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, negligent misrepresentation, and civil conspiracy in connection with purchases of Fisker Automotive Securities during the Class Period. Kleiner Perkins Caufield & Byers, Ray Lane is a venture capital firm with its headquarters in Menlo Park, California. The Plaintiff is represented by: Kenneth A. Wexler, Esq. Bethany R. Turke, Esq. Adam Prom, Esq. WEXLER WALLACE LLP 55 West Monroe St., Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 E-mail: kaw@wexlerwallace.com brt@wexlerwallacc.com ap@wexlerwallace.com - and - Kurt B. Olsen, Esq. Jeffrey A. Klafter, Esq. Fran L. Rudich, Esq. KLAFTER OLSEN & LESSER LLP 1250 Connecticut Ave., N.W., Suite 200 Washington, DC 20036 Telephone: (202) 261-3553 E-mail: ko@klafterolsen.com jak@klafterolsen.com fr@klafterolsen.com - and - Todd S. Collins, Esq. Barbara A. Podell, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: tcollins@bm.net bpodell@bm.net - and - Nonnan M. Monhait, Esq. P. Bradford de Lecuw, Esq. ROSENTHAL, MONHAJT & GODDESS, P.A. 919 Market Street, Suite 1401 Citizens Bank Center Wilmington, DE 1980 Telephone: (302) 656-4433 Facsimile: (302) 658-7567 E-mail: nmonhait@nngglaw.com bdeleeuw@nngglaw.com LEROY MARTIN: Faces "Robinson" Suit Over Unlawful Bail Policies --------------------------------------------------------------- Zachary Robinson, and Michael Lewis, on behalf of themselves and a class and subclass of similarly situated persons v. Leroy Martin Jr., E. Kenneth Wright, Jr., Peggy Chiampas, Sandra G. Ramos, and Adam D. Bourgeois Jr., et al., on behalf of themselves and a class of similarly situated persons, and Thomas Dart, in his official capacity as Sheriff of Cook County, Illinois, Case No. 2016CH13587 (Ill. Ch. Ct., October 14, 2016), arises out of the Defendants' practice of applying Illinois' bail statute, to set a monetary bail for pretrial arrestees without a meaningful inquiry into the person's ability to pay and in amounts in excess of what the person is able to pay. Leroy Martin, Jr. is a duly elected judge of the Circuit Court of Cook County, and the Presiding Judge of the Criminal Division of the Circuit Court of Cook County. E. Kenneth Wright, Jr. is a duly elected judge of the Circuit Court of Cook County and the Presiding Judge of the Municipal Division of the Circuit Court of Cook County. Peggy Chiampas is an associate judge of the Circuit Court of Cook County, Municipal Department. Sandra G. Ramos is a duly elected judge of the Circuit Court of Cook County, Municipal Department. Adam D. Bourgeois Jr. is an associate judge of the Circuit Court of Cook County, Municipal Department. Thomas Dart is a Sheriff of Cook County, Illinois. The Plaintiff is represented by: Matthew J. Piers, Esq. Chirag G. Badlani, Esq. Kate E. Schwartz, Esq. HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison Street, Suite 4000 Chicago, IL 60602 Telephone: (312) 580-0100 E-mail: mpiers@hsplegal.com cbadlani@hsplegal.com kschwartz@hsplegal.com - and - Locke Bowman, Esq. Alexa VanBrunt, Esq. RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER 375 E Chicago Ave. Chicago, IL 60611 Telephone: (312) 503-1271 E-mail: l-bowman@law.northwestem.edu a-vanbrunt@law.northwestem.edu - and - Alec Karakatsanis, Esq. CIVIL RIGHTS CORPS 916 G Street NW, Suite 701 Washington, DC 20001 Telephone: (202) 681-2409 E-mail: alec@civilrightscorps.org MARRIOTT VACATION: Responds to Racketeering Class Action -------------------------------------------------------- Paul Brinkmann, writing for Orlando Sentinel, reports that Marriott Vacation Club and First American Title Co. are battling a proposed class action lawsuit that alleges MVC's timeshare sales are a racketeering scheme. Marriott's attorneys with Greenberg Traurig in Orlando have filed over 50 pages in its first round of replies to the lawsuit, which started as a proposed class action in May. ""It is evident from these allegations that plaintiffs have misread the statutes that they assert have been violated," Marriott says in a motion to dismiss the case . . ."The allegations are without merit and the MVC Plan fully complies with applicable law." Marriott also seeks to have the dispute moved to a state regulator for review. The lawsuit takes aim at Marriott's points program, which replaced traditional sales of timeshare weeks at specific resorts in 2010. According to the suit, Marriott timeshare customers pay fees associated with owning real estate -- such as closing costs and recording fees -- but don't actually own any real estate. Despite not actually being real estate owners, the lawsuit says, buyers are still paying closing costs, recording fees, title policy premiums and real estate taxes. The suit also targets First American Title Company -- the trustee for Marriott's land trust -- and Orange County and Orange County Comptroller Martha Haynie. The plaintiffs are two timeshare buyers, Anthony and Beth Lennen, who bought a unit at Crystal Shores in Marco Island -- but their deed was recorded in Orange County. Greg Crist, president of the National Timeshare Association, said he would welcome review of the allegations by a state regulator. First American has filed its own 27-page motion to dismiss the case, where the title company alleges that the Lennens made a choice to purchase title insurance, and that they signed agreements that they couldn't sue over the timeshare program itself. Ms. Haynie's office also filed a motion to dismiss her office from the case, arguing that recording a deed doesn't bestow any legal blessing on it. According to the lawsuit, deeds that are recorded in Orange County for Marriott timeshares have completely meaningless codes that only refer to contracts with Marriott, and not to actual real property, which makes them illegal. The lawsuit seeks to abolish Marriott's points program, which attorneys said is unique among timeshare companies. It also seeks the return of fees and costs paid by buyers. First American is represented by Orlando-based Rumberger Kirk & Caldwell, and the Chicago office of Kirkland & Ellis. METALS USA: Dec. 12 Dura-Loc Class Action Opt-Out Deadline Set -------------------------------------------------------------- The following is being released by the law firm of Stonebarger Law, APC regarding Wilson v. Metals USA, Inc., No. 2:12-CV-00568 (E.D. Cal.). On July 5, 2016, the United States District Court for the Eastern District of California certified a class action against Metals USA, Inc. ("MUSA"). What is the Case About? The claim that was certified as a class action is brought under California Commercial Code Section 2313 and alleges the Continental, Shadowline, and Wood Shake stone coated steel roof shingles (the "Tiles") manufactured by Dura-Loc Roofing Systems Limited ("Dura-Loc") suffer from an inherent design defect which results in the surface coating deteriorating well before the warranted 25-year period. Who is Included? You are a part of this class action if you own a home or other structure located in the State of California on which the Dura-Loc Continental, Shadowline, and Wood Shake stone coated steel roof shingles were installed during the period of time beginning July 1, 1996 through May 12, 2006. What are My Options? If you want to stay in the case, you do not need to do anything. If you do not want to participate in this case or want to file your own case, you must mail a letter to MUSA EXCLUSIONS, P.O. Box 2551, Faribault, MN, 55021-9551, stating that you want to be excluded from Wilson, et al v. Metals USA, Inc. Be sure to include your name, address, and sign the letter. Your Request to Be Excluded Must Be Postmarked by December 12, 2016. If you do not exclude yourself from this case, you will be legally bound by the decisions of the Court. An exclusion request is also available at www.SteelRoofShingleClassAction.com Do I Need to Hire a Lawyer? The Court has appointed Gene J. Stonebarger and Richard D. Lambert of Stonebarger Law, APC to represent you and the other members of the Class. You may, but are not required to, enter an appearance through an attorney in this case at your own expense. For more information, go to www.SteelRoofShingleClassAction.com, or call (888) 228-0421, or email info@steelroofshingleclassaction.com MYLAN INC: Faces "Perdue" Suit Over Misleading Financial Reports ---------------------------------------------------------------- Landon W. Perdue, individually and on behalf of all others similarly situated v. Mylan N.V., Mylan Inc., Heather Bresch, Robert J. Coury, Paul B. Campbell, Kenneth S. Parks, and John D. Sheehan, Case No. 1:16-cv-08000 (S.D.N.Y., October 13, 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. Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, branded generic, and specialty pharmaceuticals worldwide. The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc C. Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com NEW YORK, NY: DHS Sued Over Failure to Pay Employees Overtime ------------------------------------------------------------- Monique Murray, Benneth Ekwegbalu, Erik Giordano, Ashley Hamilton, Valentyna Masyk, Jasmine Mcneill, Rosedi Morales, Wayne Neal, Emmett Sealey, Paul Singh, and Allen Stevens, on behalf of themselves and all other similarly situated v. City of New York, New York, Case No. 1:16-cv-08072 (S.D.N.Y., October 14, 2016), is brought against the Defendants for failure to pay employees of the Department of Homeless Services overtime wages in violation of the Fair Labor Standards Act. The New York City Department of Homeless Services (DHS) is an agency within the government of New York City that provides services to the homeless. The Plaintiff is represented by: Gregory K. McGillivary, Esq. David Ricksecker, Esq. Sarah M. Block, Esq. WOODLEY & McGILLIVARY LLP 1101 Vermont Ave., N.W. Suite 1000 Washington, DC 20005 Telephone: (202) 833-8855 E-mail: info@wmlaborlaw.com - and - Hope Pordy, Esq. SPIVAK LIPTON, LLP 1700 Broadway Suite 2100 New York, NY 10019 Telephone: (212) 765-2100 E-mail: hpordy@spivaklipton.com NEWS CORP: Judge Tosses Phone Tapping Scandal Class Action ---------------------------------------------------------- Sarah Danckert, writing for The Sydney Morning Herald, reports that a US judge had thrown out a class action brought against Rupert Murdoch, his son James and News Corp.'s recently reinstated UK boss Rebekah Brooks over the company's phone tapping scandal. The action filed in New York by aggrieved shareholders in 2011 had alleged the company had engaged in securities fraud through a scheme to "conceal the existence and extent of illegal news- gathering practices at the News of the World and The Sun". There's little dispute that News Corp's The Sun and News of the World engaged in some pretty disgraceful behavior in the rush to get yarns and have been raked over the coals for it in what Rupert described as "the most humbling day of my life". However, just Judge Paul Gardephe in the US District Court for the Southern District of New York put an end to the action that has been running for five years. The action related to a extended "class period", which means that any shareholder who bought shares between July 2009 and July 2011 could share in the windfall. But it all came to naught after the court upheld News Corp's request to have the matter dismissed. Judge Gardephe found the New York court did not have jurisdiction to hear the claim against the company as the subsidiary responsible for the scandal was a UK business and "nearly all the alleged misstatements were made before the onset of the alleged class period." PARIS BAGUETTE: Sued in Cal. Over Failure to Pay Minimum Wages -------------------------------------------------------------- Hun Park, individually, and on behalf of all others similarly situated v. Paris Baguette USA, Inc. and Does 1 through 25, inclusive, Case No. BC636984 (Cal. Super. Ct., October 13, 2016), is brought against the Defendants for failure to pay minimum and regular rate wages and compensation in violation of the California Labor Code. Paris Baguette USA, Inc. owns and operates a bakery in Los Angeles, California. The Plaintiff is represented by: Robert W. Skripko Jr., Esq. LAW OFFICE OF ROBERT W. SKRIPKO, JR., PC 1323 N. Broadway, 2nd Floor Santa Ana, CA 92706 Telephone: (714) 543-6200 Facsimile: (714) 543-6140 - and - Peter I. Beck, Esq PETER BECK, APLC 3580 Wilshire Blvd., 17th Floor Los Angeles, CA 90010 Telephone: (213) 637-0120 Facsimile: (213) 637-0246 PEOPLE'S BANK: Appellate Court Affirms Ruling on Litigation Costs ----------------------------------------------------------------- Joe Dyton, writing for Legal Newsline, reports that a North Carolina appellate court recently affirmed that a plaintiff must pay the defendant's court costs after he turned down an offer of judgment. The three-year-old case began when plaintiff Joseph Gay challenged overdraft fees incurred at People's Bank. His lawsuit against People's Bank was for breach of contract, breach of the covenant of good faith and fair dealing, conversion, unjust enrichment and unfair and deceptive trade practices. Meanwhile, the bank argued that all the fees were authorized by account agreements the plaintiff signed. The business court ruled in the bank's favor and granted it summary judgment, which was affirmed by the North Carolina Court of Appeals. The plaintiff must pay the defendant's litigation costs because of Rule 68 of the North Carolina Rules of Civil Procedure. The rule states that when a party rejects a reasonable settlement offer, it must pay any litigation costs incurred if the eventual judgment is less than the offer. The plaintiff listed a number of reasons he shouldn't have to pay the costs, but the business court rejected all of them. Attorneys fees are excluded, but for this case, the plaintiff will be responsible for the costs of deposition transcripts and mediator's fees from the court-ordered mediation. "Usually, a class plaintiff does not worry about the costs of litigating his or her case, because the case is handled on a contingency fee basis by the law firm representing him or her," Brooks Pierce attorney Dan Smith told Legal Newsline. "That is, class plaintiffs don't pay for their attorneys." People's Bank was awarded a modest judgment (less than $6,000), but the big reward is the ruling itself, Mr. Smith said. "For lawyers, the ruling interprets Rule 68 on a point of law that was previously unsettled. Plus it's different from the federal rules of civil procedure. From the litigants' point of view, the ruling shows plaintiffs who aren't successful in their cases on summary judgment are responsible for costs the defendants incur after they make an offer of judgment," Mr. Smith said. The decision will play a big part in litigants' thought processes when it comes to class action cases. Defending a class action lawsuit can be costly, but plaintiffs aren't concerned, since defendants typically pay for their own court costs. Now that plaintiffs know going into a case that they might have to pay for some of these costs, they may think twice before going forward with a class action claim, Smith said. "The possibility of paying the defendant's costs provides a disincentive to bring cases that lack merit," Mr. Smith said. "A plaintiff that loses such a case won't 'lose nothing,' but instead will owe the defendant the costs incurred in the litigation after the offer of judgment." PHOENIX ACV: Faces "Salas" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Raul Salas, Maria Saquisili, Genaro Carbajal, Alfredo Perez, Kris K. Rodas, Cesar Olivos, Juan James, individually, and on behalf of all others similarly situated v. Phoenix ACV Construction Services, LLC, Phoenix RMA Construction Services LLC, Dinallo Construction Corporation, Albee Development LLC, and Michael Leineek, Case No. 1:16-cv-08066 (S.D.N.Y., October 14, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a construction company doing business in New York. The Plaintiff is represented by: Marc A. Rapaport, Esq. RAPAPORT LAW FIRM, PLLC One Penn Plaza, Suite 2430 New York, NY 10119 Telephone: (212) 382-1600 E-mail: mrapaport@rapaportlaw.com PROMPTIME HOME: Faces "Scott" Suit in Tex. Over Failure to Pay OT ----------------------------------------------------------------- Eugenia Scott, individually and on behalf of all others similarly situated v. Promptime Home Healthcare Services, Inc. and Samuel Asadu, Case No. 3:16-cv-02901-M (N.D. Tex., October 14, 2016), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standards Act. Promptime Home Healthcare Services, Inc. operates a home healthcare agency in the Northern District of Texas. The Plaintiff is represented by: Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com - and - Corinna Chandler, Esq. CHANDLER LAW, P.C. 3419 Westminster #343G Dallas, TX 75205 Telephone: (972) 342-8793 Facsimile: (972) 692-5220 E-mail: chandler@chandlerlawpc.com PSI SERVICES: "Kalbaklian" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------------- Elizabeth Kalbaklian, individually and on behalf of all other members of the general public similarly situated v. PSI Services, LLC d/b/a PSI Examination Services and Does 1 through 100, inclusive, Case No. Be 637011 (Cal. Super. Ct., October 14, 2016), seeks to recover unpaid overtime wages and damages pursuant to the California Labor Code. PSI Services, LLC offers employment and individual assessments for business, industry and government. The Plaintiff is represented by: Haig B. Kazandjian, Esq. LAW OFFICES OF HAIG B. KAZANDJIAN 220 South Kenwood Street, Suite 300 Glendale, CA 91206 Telephone: (818) 696-2306 Facsimile: (818) 696-2307 SAMSUNG ELECTRONICS: Faces Class Action Over Washing Machines ------------------------------------------------------------- Tara Mapes, writing for Legal Newsline, reports that three women have filed a class action lawsuit against an electronics company for allegedly manufacturing and distributing washing machines that explode. Suzann Moore, Michelle Soto Fielder and Melissa Thaxton filed a complaint on behalf of themselves and all persons similarly situated Aug. 12 in U.S. District Court for the District of New Jersey against Samsung Electronics America Inc. and Samsung Electronics Co. Ltd., citing breach of implied warranty, negligence and other counts. According to the complaint, the plaintiffs allege that they suffered damage from purchasing Samsung washing machines that exploded when used. The suit states the W400 and W500 models used by the plaintiffs all have high-speed motors and have flawed assembly dampers. Because the dampers are allegedly malfunctioning, the tub becomes unfastened during a spin cycle, causing an explosion. One plaintiff said in the complaint that she heard a loud crash and the entire house shook violently. The complaint describes the washing machine jumping out from the wall several feet, the washer was dislodged from the base of the machine, the metal sides were bent and distorted, electrical wires were hanging out of the back of the machine and damage to personal property had occurred as a result of the explosion. "If my wife or son were in the room when this happened, I have no doubt that they would be in the hospital or possibly even killed," a plaintiff said in the complaint. "I think the best way to get a sense for what is going on is to take a look at photos in the complaint," Jason Lichtman, one of the attorneys for the plaintiffs, told Legal Newsline. The pictures included in the plaintiffs' legal filings show several Samsung washing machines bent and broken, laying on their sides, some with debris covering them, and damage to surrounding personal property. "On Sept. 28, we moved for a temporary restraining order (TRO), a preliminary injunction and expedited discovery, and the court set a hearing on the TRO for Oct. 4," Mr. Lichtman said. In the request for the TRO, Lichtman asks for a court order to prevent Samsung from allegedly destroying "any more evidence." The plaintiffs contend that Samsung has been aware of the exploding washers since at least 2013 when one of its consumers was physically injured during an explosion. The complaint says the customer's injuries required reconstructive jaw surgery and left her permanently disabled. The motion also argues Samsung was sued for the first time in 2014 for the exploding machines, yet instead of remedying the issue by ceasing to sell the machines, Samsung contacted consumers who reported the explosions, offered a replacement machine, then picked up the defective machines and destroyed them. The plaintiff cites at least 25 reports of exploding machines. It also argues Samsung not only destroys the machines but also continues to sell them. The motion reads, "This is a case about washing machines that explode. Defendants Samsung Electronics America Inc. and Samsung Electronics Co., Ltd. (collectively, "Samsung") have known that their washers blow themselves apart since at least Oct. 24, 2013, when one of their washers exploded in California, injuring a woman. Over the past three years, consumers report that at least 25 additional washers have exploded. These explosions are dangerous; they cause property damage and injury." In the plaintiffs' request for expedited discovery, it asks the court to permit inspection of any washing machine in Samsung's control that has blown itself apart, for Samsung to produce technical diagrams of the washing machines, to detail all complaints from consumers alleging their Samsung washing machines exploded and all documents relative to the possibility its machines could explode. "It's difficult to comment on all of these issues at this stage of litigation because Samsung has not yet answered or otherwise responded to our complaint," Mr. Lichtman said. A representative for Samsung told Legal Newsline, "Samsung does not comment on any pending litigation." The plaintiffs request a trial by jury and seek award damages to the plaintiffs, declare that the washing machines are defective, enjoin the defendant from selling the defective machines and restitution. SAUL CHEVROLET: Fails to Pay Workers Overtime, "Rivera" Suit Says ----------------------------------------------------------------- Marcos Rivera, individually, and on behalf of herself, all others similarly situated v. Saul Chevrolet, Inc., Cardinale Automotive Group of Tahoe, Inc., Cardinale Automotive Group, Volkswagen Hyundai, Cardinale Oldsmobile GMC Truck, Inc., Cardinale AG Motorbike, Inc., Cardinale Nissan, Inc., Cardinale Protective Services, Inc., Cardinaleway Nevada AG Inc., Cardinaleway Acura, Cardinale Automotive Group-Arizona, Inc., Cardinaleway Mazda at Peoria, Cardinaleway Mazda at Superstition Springs, and Does 1 through 100, inclusive, Case No. 5:16-cv-05966 (N.D. Cal., October 14, 2016), is brought against the Defendants for failure to pay overtime for work performed in excess of 40 hours per week. The Defendants own and operate a car dealership company throughout California. The Plaintiff is represented by: Kyle Todd, Esq. Jacob J. Larsen, Esq. LAW OFFICES OF KYLE TODD 611 Wilshire Boulevard, Suite 1112 Los Angeles, CA 90017 Telephone: (323) 208-9171 Facsimile: (323) 693-0822 E-mail: kyle@kyletodd.com jacob@kyletodd.com SIERRA AUTOCARS: Does Not Properly Pay Employees, Action Claims --------------------------------------------------------------- Alexus Fraire-Gamell, individually and on behalf of all others similarly situated v. Sierra Autocars, Inc. and Does 1 through 20 inclusive, Case No. BC637255 (Cal. Super. Ct., October 13, 2016), is brought against the Defendants for failure to pay overtime wages and failure to provide meal periods without paying the Plaintiff and class members premium wages for every day said meal periods were not provided in violation of California Labor Code. Sierra Autocars, Inc. is a family-owned group of car dealerships in Monrovia, California. The Plaintiff is represented by: Kashif Haque, Esq. Laura P. Birnbaum, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 SOUTH NASSAU: Faces "Foster" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Lydia Foster, on behalf of herself and all others similarly situated v. South Nassau Communities Hospital, Case No. 607085/2016 (N.Y. Super. Ct., October 13, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the New York Labor Law. South Nassau Communities Hospital operates a hospital in Oceanside, New York. The Plaintiff is represented by: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIS GINSBERG, P.C. 1613 Northern Boulevard Roslyn, NY 11576 Telephone: (516) 625-0105 SOUTHERN ILLINOIS: Female Surgeon Files Pay Discrimination Case --------------------------------------------------------------- Dean Olsen, writing for The State journal Register, reports that Southern Illinois University School of Medicine and its group practice of physicians unfairly pay female doctors less than their male counterparts by wide margins, a former SIU surgeon says in a federal lawsuit. Dr. Sajida Ahad, 41, contends in the suit, pending in Springfield's U.S. District Court, that SIU has consistently paid female physicians less than their male counterparts, in violation of state and federal anti-discrimination and equal-pay laws. In particular, female physician associate and assistant professors averaged $62,000 less in total annual compensation than male physicians of similar experience levels and skills over the past 10 years, the lawsuit says. SIU officials denied Dr. Ahad's overall allegations in court documents filed in response to an earlier version of the suit. Asked to comment on Oct. 13, SIU spokeswoman Karen Carlson said in a written statement: "At the SIU School of Medicine, we value diversity and are committed to our standards of equal employment opportunities for all of our employees. We will continue to conduct all personnel activities in accordance with the letter and spirit of applicable state and federal regulations." Dr. Ahad's 2015 lawsuit, updated with new information and claims, says the Springfield-based medical school isn't unique when it comes to gender-related pay disparities, but the gaps between men and women are larger at SIU than at many other medical schools. SIU pays female doctors "substantially less" than most of its male doctors, with no valid reason, Dr. Ahad's attorney, Michael Brown of Appleton, Wisconsin, told The State Journal-Register. "That's a problem," Mr. Brown said. Dr. Ahad's lawsuit was filed as a potential class-action complaint, meaning it could be expanded in coming months to include more than 40 other female physicians among the total 250 SIU physicians if female doctors are willing to become involved. The suit doesn't ask for a particular amount of money in damages, but SIU could be put at risk of paying millions of dollars in damages if Judge Sue Myerscough certifies it as a class action. Dr. Ahad couldn't be reached for comment but said in a news release, "I want to bring attention to this important issue, not just for myself, but for other female physicians that have been unlawfully underpaid." According to a 2016 study in the Journal of the American Medical Association/Internal Medicine, female doctors at 24 public medical schools averaged almost $20,000 less in annual pay than male doctors. A 2012 JAMA study found a $30,000 difference between female and male doctor salaries. SIU's filing in February in response to the earlier version of the suit, which didn't refer to the 2016 study, took issue with the way Dr. Ahad's attorneys characterized the 2012 study. The 2012 study, according to Dr. Ahad's lawyers, "noted that 'numerous psychological studies suggest the existence of small yet meaningful gender biases, often unconscious, that may ultimately influence the outcomes of women's careers, including hiring, salaries, and promotions . . . (t)hese biases have been demonstrated to be particularly likely to be mobilized when women are mothers.' " Dr. Ahad, a bariatric surgeon and laparoscopic surgery specialist who completed a general surgery residency at Mayo Clinic, was employed by SIU and served patients through group practice SIU HealthCare from 2008 to 2014. She resigned and continues to work as a surgeon in Cedar Rapids, Iowa. The suit says Dr. Ahad was paid a base salary of $125,000 per year and guaranteed total annual earnings of $250,000, including incentive pay for the care of patients, in her first two years of employment. Dr. Ahad's "male replacement," an SIU doctor with similar skills and experience who was hired after she resigned, was paid a starting salary of $200,000, according to the suit. The male doctor also received a $25,000 signing bonus that Dr. Ahad never received and was guaranteed an annual income of more than $300,000, the suit says. SIU provided male doctors "more opportunities" than Dr. Ahad to earn more money by allowing them to serve more patients than her, Dr. Ahad alleges. The medical school "assigned Dr. Ahad far fewer surgeries" than male surgeons had the opportunity to perform even though Dr. Ahad and the men had "the same job and base salary classifications," the suit says. Dr. Ahad was underpaid almost $110,000 between July 2011 and March 2014, the suit says. SIU officials, in a performance evaluation, cited Dr. Ahad's eight-week pregnancy and maternity leave in June 2011 as a lingering reason for her "low clinical productivity," according to the suit. SIU was ordered to pay Dr. Ahad $223,884, plus interest, by an administrative law judge in April after she filed a complaint with the U.S. Department of Labor. The administrative judge in that case said Dr. Ahad was underpaid in comparison to her colleagues at SIU because SIU erred in applying federal wage requirements dealing with workers from other countries for part of the time she was employed by SIU. Dr. Ahad is a native of Pakistan, with a visa status as a permanent U.S. resident. SIU is appealing the decision to the labor department's administrative review board. A decision from that board could come next month, Mr. Brown said. In Dr. Ahad's labor department case, she said her efforts to build a surgical weight-loss program at HSHS St. John's Hospital suffered a "major setback" when SIU restricted her access to Medicaid patients, and when St. John's failed to adequately market the program to the community. The bariatric program at St. John's ended in 2014. St. John's spokeswoman Catie Sheehan declined to comment on Dr. Ahad's labor department case and lawsuit. SPECIALIZED LOAN: Sued Over Improper Loan Modifications ------------------------------------------------------------- Tycko & Zavareei LLP on Oct. 13 disclosed that a class action lawsuit filed on October 7, 2016 alleges Specialized Loan Servicing (SLS) improperly processed loan modification applications for customers in California that often led to overpayments on the loan and unjust foreclosures of the borrower's home. To stem the tide of defaults and foreclosures after the Great Recession of 2007 and 2008, the U.S. Consumer Financial Protection Bureau (CFPB) implemented a series of guidelines designed to force banks and mortgage servicers to process loan modification requests quickly, accurately, and transparently. The guidelines went into effect in January 2014 and give homeowners the right to sue mortgage servicers who violate them. This class action lawsuit alleges that SLS violated the U.S. Consumer Financial Protection Bureau's new guidelines and failed to bring its system for processing loan modification applications into compliance. Specifically, the lawsuit alleges that SLS, among other things: (1) Failed to timely respond to loan modification applications; (2) Failed to inform borrowers what information was missing in order to process their loan modification application; (3) Falsely told borrowers their application was missing information that had already been provided on numerous occasions; (4) Denied borrowers' loan modification requests without an appropriate explanation; and (5) Wrongfully threatened foreclosure while a borrower's application was still under review. Margarette Smith, an 88-year old homeowner and the named plaintiff in the lawsuit, experienced all of the above behavior as she attempted to comply with the requirements set forth by SLS in numerous letters each month. Despite providing SLS with all the paperwork requested, often several times, Ms. Smith was still denied a proper loan modification. Consequently, the inability to modify her mortgage means Ms. Smith may lose her home. We are interested in hearing from consumers nationwide. Homeowners who have applied for a home loan modification with SLS since January 2014 and were denied a modification, or believe their application was processed improperly, may contact Tycko & Zavareei for a free consultation by calling Kristen Sagafi at 510- 254-6810 or Lorenzo Cellini at 202-417-3660 or by using this link. Tycko & Zavareei LLP -- http://www.tzlegal.com-- is a bicoastal law firm with offices in Washington, D.C. and Oakland, CA, and has a long, successful record of litigating complex cases. The firm routinely handles large and complex matters throughout the country, advocating on behalf of individuals fighting for their civil rights, employees asking for their rightful wages, consumers seeking redress for unfair business practices, whistleblowers exposing fraud and corruption, and non-profit entities and businesses facing difficult litigation. STATE FARM: Plaintiffs Respond to Class Action Review Request ------------------------------------------------------------- Phillip Thompson, writing for glassBYTEs.com, reports that plaintiffs in a class-action suit against State Farm Mutual Automobile Insurance Co. responded October 10 to a request by the insurance company for a stay to have the case reviewed. State Farm customers brought a class-action suit against the insurance company, originating in 2012, claiming it helped elect a judge and block a billion-dollar award against State Farm. The suit was certified as a class-action suit following a federal judge's ruling September 16. State Farm asked the Illinois Southern District of the U.S. District Court on September 30 to review that certification. In their response, the plaintiffs, about 5 million State Farm customers, note "that fact discovery is not yet completed, expert discovery has not yet started, and a trial date has not yet been set. Plaintiffs therefore do not object to the Court vacating the current October 15, 2016 deadline for meeting and conferring on specific notice plans, and submitting a joint or competing notice plans." However, the plaintiffs proposed any stay of notice discovery and class notice last no longer at least six months prior to trial. Further, the plaintiffs made clear they " . . . do not agree that any stay relating to class notice should be untethered to the scheduling of trial in this case." The class-action suit accuses State Farm of defrauding the plaintiffs by secretly bankrolling Lloyd Karmeier's 2004 campaign. Further, the case alleges, State Farm " . . . created and conducted [a] RICO enterprise . . . to enable State Farm to evade payment of a $1.05 billion judgment affirmed in favor of approximately 4.7 million State Farm policyholders by the Illinois Appellate Court." SURFSTITCH: Appoints New CFO Amid Licensing Deal Class Action ------------------------------------------------------------- Jenny Rogers, writing for Gold Coast Bulletin, reports that struggling Gold Coast online action sports retailer SurfStitch has turned to a rival troubled surf company's former finance boss and its own recently appointed legal counsel to help it stay afloat. The Burleigh-based retailer has appointed Nigel Phillips as its chief financial officer and Stephanie Belton as company secretary. They will replace Karen Birner, who held both roles at SurfStitch before her resignation in September. SurfStitch said Nigel Phillips has more than 20 years' finance, operations and commercial experience in action sports sales, marketing and distribution. He worked with surf company Quiksilver for 18 years. Mr. Phillips was chief financial officer for the Asia Pacific region at Quiksilver from January 2006 until May 2016 and its Chief Operating Officer for the Asia Pacific from late 2010. He held both roles at Quiksilver for just over a year. "We are very pleased to have secured someone of Nigel's experience across both finance and operations in the action sports category," SurfStitch CEO Mike Sonand said. "Coming from one of our key brand partners he understands, and is well connected within the industry and will be a valuable addition to the team." New company secretary Stephanie Belton was appointed general counsel for SurfStitch in September. She has more than 20 years' corporate and commercial experience in Australia and the UK including at Qantas, P&O Group, Linklaters and Helloworld. Mr. Phillips will take on the job from October 24. Ms. Belton will take on the new role from November 1. Karen Birner's resignation came after a series of blows for SurfStitch. She was the third senior executive, including two CEOs and its chairman, to depart this year The embattled company crashed to a $155 million loss which saw its shares plummet in August to their lowest-ever level at 10.5õ. The online retailer also revealed it is facing legal action over a content licensing deal gone wrong and a possible $500 million class action over market disclosures of its financial position. TERRAFORM GLOBAL: "Patel" Suit Consolidated in MDL 2742 ------------------------------------------------------- The class action lawsuit titled Mitesh Patel, individually and on behalf of all others similarly situated, the Plaintiff, v. Terraform Global, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, Carlos Domenech Zornoza, Jeremy Avenier, J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., BTG Pactual US Capital LLC, ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc., the Defendants, Case No. 5:16-cv-02272, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Southern District of New York (Foley Square). The New York Southern District Court Clerk assigned Case No. 1:16-cv-08001-PKC to the proceeding. The Patel case is being consolidated with MDL 2742 in re: Sunedison, Inc., Securities Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 6, 2016. The Wieland case is being consolidated with MDL 2742. This litigation arises out of the operation and demise of SunEdison, Inc., a company engaged in renewable energy development - the financing, construction and operation of solar, wind and hydroelectric power plants- throughout the world. The Defendants support centralization in the Southern District of New York but do not object to transfer to any of the districts in which the actions are pending. In its October 16, 2015 Order, the MDL Panel found that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The actions share factual issues arising from allegedly inaccurate statements concerning SunEdison's operational and financial condition- e.g., its liquidity, classification of debt (roughly $750 million in debt was reclassified from non-recourse to recourse debt in November 2015), and internal financial controls- and the alleged impropriety of its public filings. Presiding Judge in the MDL is Hon. Sarah S. Vance, United States District Judge. TerraForm Global is a globally diversified owner of clean power generation assets in attractive, high-growth emerging markets. The Plaintiff is represented by: Laurence M Rosen, Esq. THE ROSEN LAW FIRM PA 355 South Grand Avenue Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785 2610 Facsimile: (213) 226 4684 E-mail: lrosen@rosenlegal.com Terraform Global, Inc. is represented by: Michael G. Bongiorno, Esq. Rachel Lee Gargiulo, Esq. Jessica L Lewis, Esq. Tiffany N. Tejeda-Rodriguez, Esq. Timothy J. Perla, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP (NYC) 7 World Trade Center 250 Greenwich St. New York, NY 10007 Telephone: (212) 230 8800 Facsimile: (212) 230 8888 E-mail: michael.bongiorno@wilmerhale.com jessica.lewis@wilmerhale.com rachel.gargiulo@wilmerhale.com tiffany.tejeda-rodriguez@wilmerhale.com timothy.perla@wilmerhale.com Sunedison, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, and Jeremy Avenier are represented by: Sara B. Brody, Esq. SIDLEY AUSTIN LLP (SF) 555 California Street San Francisco, CA 94104 Telephone: (415) 772 1200 Facsimile: (415) 772 7400 E-mail:sbrody@sidley.com Carlos Domenech Zornoza is represented by: Kevin J. O'Connor, Esq. James L. Tuxbury, Esq. Rhiannon A Campbell, Esq. HINCKLEY ALLEN SNYDER 28 State Street Boston, MA 02109 Telephone: (617) 378 4394 E-mail: koconnor@hinckleyallen.com jtuxbury@hinckleyallen.com rcampbell@hinckleyallen.com - and - Ismail Jomo Ramsey, Esq. Katharine Ann Kates, Esq. RAMSEY & EHRLICH LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: (510) 548 3600 Facsimile: (510) 291 3060 E-mail: izzy@ramsey-ehrlich.com katharine@ramsey-ehrlich.com J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated Deutsche Bank Securities Inc., BTG Pactual US Capital LLC ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc. are represented by: Patrick David Robbins, Esq. Adam S. Hakki, Esq. Jonah Platt Ross, Esq. SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, CA 94105 Telephone: (415) 616 1100 Facsimile: (415) 616 1199 E-mail: probbins@shearman.com ahakki@shearman.com jonah.ross@shearman.com TERRAFORM GLOBAL: "Simon" Suit Consolidated MDL 2742 ---------------------------------------------------- The class action lawsuit titled Fraser Simon, individually and on behalf of all others similarly situated, the Plaintiff, v. Terraform Global, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, Carlos Domenech Zornoza, Jeremy Avenier, J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., BTG Pactual US Capital LLC, ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc., the Defendants, Case No. 5:16-cv-02273, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Southern District of New York (Foley Square). The New York Southern District Court Clerk assigned Case No: 1:16-cv-08003-PKC. to the proceeding. The Simon case is being consolidated with MDL 2742 in re: Sunedison, Inc., Securities Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 6, 2016. The Wieland case is being consolidated with MDL 2742. This litigation arises out of the operation and demise of SunEdison, Inc., a company engaged in renewable energy development - the financing, construction and operation of solar, wind and hydroelectric power plants- throughout the world. The Defendants support centralization in the Southern District of New York but do not object to transfer to any of the districts in which the actions are pending. In its October 16, 2015 Order, the MDL Panel found that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The actions share factual issues arising from allegedly inaccurate statements concerning SunEdison's operational and financial condition- e.g., its liquidity, classification of debt (roughly $750 million in debt was reclassified from non-recourse to recourse debt in November 2015), and internal financial controls- and the alleged impropriety of its public filings. Presiding Judge in the MDL is Hon. Sarah S. Vance, United States District Judge. TerraForm Global is a globally diversified owner of clean power generation assets in attractive, high-growth emerging markets. The Plaintiff is represented by: Ex Kanos S Sams, II, Esq. Lionel Z. Glancy, Esq. Robert Vincent Prongay, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201 9150 Facsimile: (310) 201 9160 E-mail: esams@glancylaw.com lglancy@glancylaw.com rprongay@glancylaw.com Terraform Global, Inc. is represented by: Michael G. Bongiorno, Esq. Rachel Lee Gargiulo, Esq. Jessica L Lewis, Esq. Tiffany N. Tejeda-Rodriguez, Esq. Timothy J. Perla, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP (NYC) 7 World Trade Center 250 Greenwich St. New York, NY 10007 Telephone: (212) 230 8800 Facsimile: (212) 230 8888 E-mail: michael.bongiorno@wilmerhale.com jessica.lewis@wilmerhale.com rachel.gargiulo@wilmerhale.com tiffany.tejeda-rodriguez@wilmerhale.com timothy.perla@wilmerhale.com Sunedison, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, and Jeremy Avenier are represented by: Sara B. Brody, Esq. SIDLEY AUSTIN LLP (SF) 555 California Street San Francisco, CA 94104 Telephone: (415) 772 1200 Facsimile: (415) 772 7400 E-mail:sbrody@sidley.com Carlos Domenech Zornoza is represented by: Kevin J. O'Connor, Esq. James L. Tuxbury, Esq. Rhiannon A Campbell, Esq. HINCKLEY ALLEN SNYDER 28 State Street Boston, MA 02109 Telephone: (617) 378 4394 E-mail: koconnor@hinckleyallen.com jtuxbury@hinckleyallen.com rcampbell@hinckleyallen.com - and - Ismail Jomo Ramsey, Esq. Katharine Ann Kates, Esq. RAMSEY & EHRLICH LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: (510) 548 3600 Facsimile: (510) 291 3060 E-mail: izzy@ramsey-ehrlich.com katharine@ramsey-ehrlich.com J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated Deutsche Bank Securities Inc., BTG Pactual US Capital LLC ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc. are represented by: Patrick David Robbins, Esq. Adam S. Hakki, Esq. Jonah Platt Ross, Esq. SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, CA 94105 Telephone: (415) 616 1100 Facsimile: (415) 616 1199 E-mail: probbins@shearman.com ahakki@shearman.com jonah.ross@shearman.com TERRAFORM GLOBAL: "Badri" Suit Consolidated in MDL 2742 ------------------------------------------------------- The class action lawsuit titled Anton S. Badri, individually and on behalf of all others similarly situated, the Plaintiffs, v. Terraform Global, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, Carlos Domenech Zornoza, Jeremy Avenier, J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., BTG Pactual US Capital LLC, ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc., the Defendants, Case No. 5:16-cv-02269, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Southern District of New York (Foley Square). The New York Southern District Court Clerk assigned Case No. 1:16-cv-07996-PKC to the proceeding. The Badri case is being consolidated with MDL 2742 in re: Sunedison, Inc., Securities Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 6, 2016. The Wieland case is being consolidated with MDL 2742. This litigation arises out of the operation and demise of SunEdison, Inc., a company engaged in renewable energy development - the financing, construction and operation of solar, wind and hydroelectric power plants- throughout the world. The Defendants support centralization in the Southern District of New York but do not object to transfer to any of the districts in which the actions are pending. In its October 16, 2015 Order, the MDL Panel found that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The actions share factual issues arising from allegedly inaccurate statements concerning SunEdison's operational and financial condition- e.g., its liquidity, classification of debt (roughly $750 million in debt was reclassified from non-recourse to recourse debt in November 2015), and internal financial controls- and the alleged impropriety of its public filings. Presiding Judge in the MDL is Hon. Sarah S. Vance, United States District Judge. TerraForm Global is a globally diversified owner of clean power generation assets in attractive, high-growth emerging markets. The Plaintiff is represented by: Francis A Bottini, Jr., Esq. Albert Y Chang, Esq. Yury A. Kolesnikov, Esq. BOTTINI AND BOTTINI INC 7817 Ivanhoe Avenue Suite 102 La Jolla, CA 92037 Telephone: (858) 914 2001 Facsimile: (858) 914 2002 E-mail: fbottini@bottinilaw.com achang@bottinilaw.com sammirati@bottinilaw.com Terraform Global, Inc. is represented by: Michael G. Bongiorno, Esq. Rachel Lee Gargiulo, Esq. Jessica L Lewis, Esq. Tiffany N. Tejeda-Rodriguez, Esq. Timothy J. Perla, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP (NYC) 7 World Trade Center 250 Greenwich St. New York, NY 10007 Telephone: (212) 230 8800 Facsimile: (212) 230 8888 E-mail: michael.bongiorno@wilmerhale.com jessica.lewis@wilmerhale.com rachel.gargiulo@wilmerhale.com tiffany.tejeda-rodriguez@wilmerhale.com timothy.perla@wilmerhale.com Sunedison, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, and Jeremy Avenier are represented by: Sara B. Brody, Esq. SIDLEY AUSTIN LLP (SF) 555 California Street San Francisco, CA 94104 Telephone: (415) 772 1200 Facsimile: (415) 772 7400 E-mail:sbrody@sidley.com Carlos Domenech Zornoza is represented by: Kevin J. O'Connor, Esq. James L. Tuxbury, Esq. Rhiannon A Campbell, Esq. HINCKLEY ALLEN SNYDER 28 State Street Boston, MA 02109 Telephone: (617) 378 4394 E-mail: koconnor@hinckleyallen.com jtuxbury@hinckleyallen.com rcampbell@hinckleyallen.com - and - Ismail Jomo Ramsey, Esq. Katharine Ann Kates, Esq. RAMSEY & EHRLICH LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: (510) 548 3600 Facsimile: (510) 291 3060 E-mail: izzy@ramsey-ehrlich.com katharine@ramsey-ehrlich.com J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated Deutsche Bank Securities Inc., BTG Pactual US Capital LLC ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc. are represented by: Patrick David Robbins, Esq. Adam S. Hakki, Esq. Jonah Platt Ross, Esq. SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, CA 94105 Telephone: (415) 616 1100 Facsimile: (415) 616 1199 E-mail: probbins@shearman.com ahakki@shearman.com jonah.ross@shearman.com TERRAFORM GLOBAL: Iron Workers Suit Consolidated in MDL 2742 ------------------------------------------------------------ The class action lawsuit titled Iron Workers Mid-South Pension Fund, on Behalf of Itself and All Others Similarly Situated, the Plaintiffs, v. Terraform Global, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, Carlos Domenech Zornoza, Jeremy Avenier, J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., BTG Pactual US Capital LLC, ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc., the Defendants, Case No. 5:16-cv-02270, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Southern District of New York (Foley Square). The New York Southern District Court Clerk assigned Case No. 1:16-cv-07997-PKC to the proceeding. The Iron Workers case is being consolidated with MDL 2742 in re: Sunedison, Inc., Securities Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 6, 2016. The Wieland case is being consolidated with MDL 2742. This litigation arises out of the operation and demise of SunEdison, Inc., a company engaged in renewable energy development - the financing, construction and operation of solar, wind and hydroelectric power plants- throughout the world. The Defendants support centralization in the Southern District of New York but do not object to transfer to any of the districts in which the actions are pending. In its October 16, 2015 Order, the MDL Panel found that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The actions share factual issues arising from allegedly inaccurate statements concerning SunEdison's operational and financial condition- e.g., its liquidity, classification of debt (roughly $750 million in debt was reclassified from non-recourse to recourse debt in November 2015), and internal financial controls- and the alleged impropriety of its public filings. Presiding Judge in the MDL is Hon. Sarah S. Vance, United States District Judge. TerraForm Global is a globally diversified owner of clean power generation assets in attractive, high-growth emerging markets. The Plaintiff is represented by: Brian James Robbins, Esq. George Carlos Aguilar, Esq. Jay Nabil Razzouk, Esq. ROBBINS ARROYO, LLP 600 "B" Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525 3990 Facsimile: (619) 525 3991 E-mail: notice@robbinsarroyo.com gaguilar@robbinsarroyo.com jrazzouk@robbinsarroyo.com Terraform Global, Inc. is represented by: Michael G. Bongiorno, Esq. Rachel Lee Gargiulo, Esq. Jessica L Lewis, Esq. Tiffany N. Tejeda-Rodriguez, Esq. Timothy J. Perla, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP (NYC) 7 World Trade Center 250 Greenwich St. New York, NY 10007 Telephone: (212) 230 8800 Facsimile: (212) 230 8888 E-mail: michael.bongiorno@wilmerhale.com jessica.lewis@wilmerhale.com rachel.gargiulo@wilmerhale.com tiffany.tejeda-rodriguez@wilmerhale.com timothy.perla@wilmerhale.com Sunedison, Inc., Brian Wuebbels, Ahmad Chatila, Martin Truong, and Jeremy Avenier are represented by: Sara B. Brody, Esq. SIDLEY AUSTIN LLP (SF) 555 California Street San Francisco, CA 94104 Telephone: (415) 772 1200 Facsimile: (415) 772 7400 E-mail:sbrody@sidley.com Carlos Domenech Zornoza is represented by: Kevin J. O'Connor, Esq. James L. Tuxbury, Esq. Rhiannon A Campbell, Esq. HINCKLEY ALLEN SNYDER 28 State Street Boston, MA 02109 Telephone: (617) 378 4394 E-mail: koconnor@hinckleyallen.com jtuxbury@hinckleyallen.com rcampbell@hinckleyallen.com - and - Ismail Jomo Ramsey, Esq. Katharine Ann Kates, Esq. RAMSEY & EHRLICH LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: (510) 548 3600 Facsimile: (510) 291 3060 E-mail: izzy@ramsey-ehrlich.com katharine@ramsey-ehrlich.com J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated Deutsche Bank Securities Inc., BTG Pactual US Capital LLC ITAU BBA USA Securities, Inc., SMBC Nikko Securities Americas, Inc., SG Americas Securities, LLC, and Kotak Mahindra, Inc. are represented by: Patrick David Robbins, Esq. Adam S. Hakki, Esq. Jonah Platt Ross, Esq. SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, CA 94105 Telephone: (415) 616 1100 Facsimile: (415) 616 1199 E-mail: probbins@shearman.com ahakki@shearman.com jonah.ross@shearman.com TRIDENT ASSET: Illegally Collects Debt, "Werner" Suit Claims ------------------------------------------------------------ Yehoshua Werner, on behalf of himself and all others similarly situated v. Trident Asset Management, LLC, Case No. 607974/2016 (N.Y. Sup. Ct., October 14, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Trident Asset Management, LLC is a collection agency with a principal place of business at 53 Perimeter Ctr. E, Ste. 440, Atlanta, GA 30346. The Plaintiff is represented by: Aryeh L. Pomerantz, Esq. POMERANTZ & POMERANTZ, PLLC 3 Whisper Lane Suffern, NY 10901 Telephone: (845) 547-2600 Facsimile: (845) 547-2601 E-mail: aryeh@pom-law.com UBER TECHNOLOGIES: Recent Rulings to Have Major Implications ------------------------------------------------------------ Anders Keitz, writing for Real Money, reports that an ongoing debate about Uber, and other ride-hailing companies such as Lyft, continues: Are their drivers employees or should they at least be considered as such? At the moment, Uber's business model has its drivers operating as independent contractors -- a designation that has helped the San Francisco-based company stay profitable. But two Uber drivers have been ruled eligible for unemployment payments in the state of New York, the New York Times first reported. While the rulings by the New York State Department of Labor apply only to the drivers' unemployment insurance claims and "do not directly affect other drivers or extend to other protections normally accorded employees," the Times reported, it puts the employee vs. independent contractor issue in the spotlight, again. Considering that the ruling is specific to only two drivers, it leaves open the possibility that Uber treats some of its drivers differently, said Baruch College Professor Steven Melnik during a phone interview with Real Money on Oct. 13. Given that two former drivers were already determined eligible, more might push for the same designation to become eligible for unemployment benefits and possibly other benefits. "Unless Uber can show that other drivers were treated differently, which is highly unlikely, the New York State Board will have to issue the same ruling for all other drivers," Mr. Melnik said. "It certainly has major implications on Uber's business model and for all its drivers." Furthermore, Mr. Melnik pointed out that if drivers think they are employees, "they should've filed that way," even before a court ruling. And, if they didn't, meaning they filed their taxes as independent contractors, then they will have to correct their taxes. Uber has taken a staunch stance against the employee designation, even proposing a $100 million settlement to a class action employee misclassification suit in California and Massachusetts -- - a proposal that was rejected by a federal judge in mid-August. But it is also facing class-action suits in Florida and Illinois, in which drivers are looking to recover unpaid overtime wages and work-related expenses, according to the Los Angeles Times. So, the ride-hailing company's fight for contractors is far from over. Currently, Uber seems more than willing to continue to shell out settlement money in the millions of dollars, rather than alter its drivers-as-contractors designation. Sure, the company has a valuation of $68 billion -- on paper. But New York University Professor of Finance Aswath Damodaran pointed out in an August blog post that Uber has a "flawed business model," one that puts Uber's worth at $28 billion, according to his calculations. It will likely take a court ruling to determine whether Uber drivers are worthy of employee status. But if that were to happen, as Mr. Melnik told Real Money in July, Uber would be on the hook to retroactively pay for employee-related taxes, worker's compensation insurance and other rights -- a situation that would certainly cost Uber more than a multi-million-dollar settlement. UNITED STATES: Dec. 7 PTIN Class Action Opt-Out Deadline Set ------------------------------------------------------------ Alistair M. Nevius, Esq., writing for Journal of Accountancy, reports that tax practitioners across the country have started receiving emails notifying them that if they do not opt out, they will be included in the class of plaintiffs in a lawsuit that is currently pending before the U.S. District Court for the District of Columbia. The class action lawsuit includes as plaintiffs everyone who paid the IRS money to obtain or renew a preparer tax identification number (PTIN) on or after Sept. 30, 2010, unless they choose to opt out of the class. Practitioners have until Dec. 7, 2016, to opt out. The plaintiffs in the case estimate that some 700,000 to 1,200,000 preparers are affected (Plaintiffs' Amended Class Action Complaint 32 (8/7/15)). The case, Steele, No. 1:14-cv-01523-RCL (D.D.C.), was filed by three tax return preparers who are challenging the legality of the IRS's PTIN fees. The questions raised by the plaintiffs include: Does the IRS have the legal authority to charge a fee to obtain a PTIN? Does the IRS have the legal authority to charge a fee to renew a PTIN? Are the fees imposed excessive? The plaintiffs argue that PTIN fees are illegal for two reasons: First, that the IRS has no authority to charge the fees because tax return preparers receive no special benefit in return for the fees, only an identifying number. And, second, that even if the IRS is authorized to charge PTIN fees, the amount it charges is far in excess of the costs the IRS incurs to issue the PTIN. (The IRS currently charges $50 (including a third-party vendor fee) to obtain or renew a PTIN.) PTIN fees were originally introduced by the IRS to fund its tax return preparer regulation program, which was struck down by a federal appeals court in Loving, 742 F.3d 1014 (D.C. Cir. 2014). Although the program was struck down, the IRS continued to require the use of PTINs and to charge a fee. (Until 2010, the use of PTINs was not mandatory, and the IRS charged no fee to issue them.) The plaintiffs allege that the IRS has collected over $175 million in PTIN fees (Plaintiffs' Amended Class Action Complaint 26 (8/7/15)). They are seeking the recovery of either all PTIN fees paid or the excessive portion of the PTIN fees. The district court granted the plaintiffs' motion to certify the lawsuit as a class action on Feb. 9, 2016. Lawyers representing the plaintiffs are now contacting members of the class (return preparers who have paid to obtain and/or renew a PTIN) notifying them of the suit and that if they want to opt out of the class, they must do so by Dec. 7. The notice tells recipients that only preparers who remain in the class will have the possibility of receiving money or benefits from the class action lawsuit. If the plaintiffs prevail in the lawsuit (or settle) and obtain money or benefits as a result, class members will be notified of how to apply for their share. By participating in the class, practitioners are agreeing to pay class counsel and co-counsel up to 30% of any recovery obtained in the lawsuit. However, the notice warns, class members who do not opt out give up the right to sue the IRS on their own behalf about the same legal claims that are the subject of the suit -- regardless of whether the plaintiffs ultimately win or lose the class action suit. The notice contains instructions on how potential class members can opt out of the lawsuit, which involves sending a letter with specified information in it to the lawsuit's administrator by Dec. 7. The AICPA is not involved in this lawsuit and has no position regarding the suit. UNITEDHEALTH: Artificially Rises Copayment Amounts, Suit Claims --------------------------------------------------------------- Sherry Stevens, on behalf of herself and all others similarly situated v. UnitedHealth Group, Inc., United Healthcare Services, Inc., UnitedHealthcare of Alabama, Inc., and OptumRX, Inc., Case No. 0:16-cv-03496-ADM-SER (D. Minn., October 14, 2016), is an action for monetary damages, injunctive relief, and other remedies resulting from the Defendants' common fraudulent and deceptive pricing scheme to artificially inflate prescription copayment amounts causing consumers to pay more than they otherwise would on purchases of medically necessary, covered prescription drugs. The Defendants own and operate a health insurance company with its principal place of business located at 9900 Bren Road East, Minnetonka, Minnesota 55343. The Plaintiff is represented by: Brian C. Gudmundson, Esq. ZIMMERMAN REED, LLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 341-0400 Facsimile: (612) 341-0844 E-mail: brian.gudmundson@zimmreed.com - and - Joseph P. Guglielmo, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jguglielmo@scott-scott.com - and - Erin Green Comite, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 E-mail: ecomite@scott-scott.com - and - E. Kirk Wood, Esq. WOOD LAW FIRM, LLC P.O. Box 382434 Birmingham, AL 35238-2434 Telephone: (205) 908-4906 Facsimile: (866) 747-3905 E-mail: ekirkwood1@bellsouth.net - and - Nicholas A. Palerino, Esq. P.O. Box 904 Opelika, AL 36803 Telephone: (334) 750-7583 E-mail: Nickpalerino@gmail.com - and - Andrew A. Lemmon, Esq. LEMMON LAW FIRM P.O. Box 904 15058 River Road Hahnville, LA 70057 Telephone: (985) 783-6789 Facsimile: (985) 783-1333 E-mail: andrew@lemmonlawfirm.com VIGO COUNTY, IN: Inmate Files Class Action Over Jail Crowding ------------------------------------------------------------- Lisa Trigg, writing for Tribune-Star, reports that claiming chronic overcrowding and exposure to disease, a new lawsuit on behalf of Vigo County Jail inmates has been filed in federal court. Sheriff Greg Ewing is named as a defendant, as are three Vigo County commissioners and seven county council members in the class-action complaint entered on Oct. 13 in the Terre Haute Division of the U.S. District Court, Southern District of Indiana. Indianapolis attorney Michael Sutherlin filed the action on behalf of inmate Jauston Huerta and all current and future inmates of the jail, claiming the jail population regularly exceeds a 268-inmate cap set in 2002 to settle another class-action complaint regarding overcrowding and conditions. This lawsuit asks the court to enter a preliminary injunction prohibiting county officials from continuing what are alleged to be overcrowded and unsanitary situations in the jail and seeks to make the county appropriate funds to repair the current jail or build a new jail. Mr. Huerta's individual allegations are that he was injured while sleeping on the floor as the fifth man housed in a four-person cell. An inmate on a top bunk fell onto Huerta, causing multiple injuries to Mr. Huerta on Sept. 15, according to the lawsuit. The suit also states that the policy to transfer inmates to other facilities due to lack of bed space creates undue hardship for those inmates because they are placed in jails up to 229 miles away from Vigo County. Inmates have difficulty meeting in person with their attorneys due to the distance, the suit claims. The action also claims that inmates are deprived their rights to meet privately and confidentially with their attorneys due to the video conferencing the jail provides to various Vigo superior courts. Other allegations include substandard inmate classification and segregation; failure to provide adequate medical care, isolation and treatment of illnesses; inadequate recreation space and time as required by law; lack of educational programs; and denial of psychiatric and mental health services. Attempts to reach Sheriff Ewing via phone, text message and email were not immediately successful on Oct. 13. County Commissioner Jon Marvel -- a former two-term sheriff who preceded Ewing in office -- was contacted and said he was unaware of the new federal lawsuit. County officials have been working with the American Civil Liberties Union and attorney Ken Faulk to resolve the jail overcrowding issues, Mr. Marvel said. The county has already hired an architect and construction manager to move the jail project forward. The next step is for the county council to find a way to fund the project, he said. In 2000, a class action complaint was filed against Vigo County officials alleging overcrowding and unsanitary conditions in the jail. A contract was entered in 2002 to resolve that federal lawsuit. The ACLU filed a breach of contract complaint in 2013 due to ongoing overcrowding. In the current suit, Mr. Sutherlin contends the county has taken "minor steps and still has not resolved the size of the jail to be built, the location of the jail to be build, the funding process necessary, and to address adequate funds for adequate staffing for a jail with 650 beds." The current jail was originally constructed in 1981, then expanded in 2002. County officials have up to 60 days to respond to the lawsuit. WAFFLE HOUSE: Court Denies Motion to Dismiss FCRA Class Action -------------------------------------------------------------- Jana P. Grimm, Esq. -- jana.grimm@steptoe-johnson.com -- of Steptoe & Johnson PLLC, in an article for The National Law Review, reports that if you set goals late last year or early this year for workplace compliance to be completed in 2016 and have not yet met your goals, now is the time to revisit them. It is critical to allocate time and energy now to review your policies and achieve compliance with various statutes including the National Labor Relations Act, the Fair Labor Standards Act and the Fair Credit Reporting Act ("FCRA") as the repercussions to employers for failing to do so are proving to be very costly. As was predicted for 2016, the trend of filing class actions for failure to comply with the requirements of the FCRA has and continues to grow. When an employer uses a third party consumer reporting agency to conduct a background check on an applicant, the FCRA requires certain specific notices to be given to the applicant concerning his/her rights and requires the employer to provide such notices. These notices are designed to make the employee aware of the background check as a part of the application process, provide information on the consumer reporting agency to be used, provide a copy of the consumer report to the applicant, and allow opportunity for the applicant to respond to the consumer report before an employment decision is made. Failure to have a written policy in place regarding these requirements exposes the employer to liability; and in fact, many of the actions that have been filed could have been prevented if such a policy had been implemented and enforced in the workplace. Recently, embattled Uber Technologies, Inc. tentatively settled a pending federal court case for the sum of $7.5 million to resolve class actions alleging that Uber violated the FCRA by using credit reports during background checks to deny employment without properly notifying the applicant or obtaining the applicant's authorization. The case filed in the United States District Court for the Northern District of California in November 2014 also alleged that the company failed to provide the required pre- adverse action notices and a reasonable opportunity to dispute the information before denying applications to drive for the company. The lead plaintiff alleged that he did not receive a copy of his consumer report and his rights under the FCRA. As part of the settlement, Uber retains the right to pursue further appeal to the Ninth Circuit Court of Appeals, but should it lose, withdraw, or the appeal be rendered moot, the settlement figure climbs to $9 million dollars. The settlement is awaiting approval by the Court. Similarly, a proposed nationwide class of Waffle House job applicants has asked a Florida court for class certification in its pending lawsuit alleging that the company violated the FCRA. The allegations again surround the failure to give proper notices to the applicants as required by the statute. In this case, the Plaintiff had worked at various Waffle House restaurants without incident but was denied a job based on a background check when he re-applied at a Waffle House in Florida in 2014. The background check performed by a third party, also a defendant in the lawsuit, indicated a history of criminal convictions. Plaintiff alleges that he was not made aware of the background check and was not given the necessary notices as mandated by the FCRA. As with the Uber case, the lead plaintiff alleges that he did not receive a copy of his report or information about the third party consumer reporting agency used. The Florida court recently denied Waffle House's motion to dismiss the action against it. A motion to certify the class remains outstanding, but if approved, the class could include thousands of individuals classified into various subgroups. Based on the above cases and others like them, the best employment practice for any employer would be to implement a written, detailed background check policy that notifies all potential applicants that the company uses a pre-employment background check as part of its employment procedures and contracts with an outside agency to perform the background checks. The policy should detail the procedure for the background investigation, including the notices that will be provided to allow the applicant the opportunity to contest or refute the information disclosed by the background check and the reasons for not hiring if a decision is made based upon the results of the background check. Confidentiality of the process should also be disclosed in such a policy. WELLS FARGO: Fired Workers Allege Retaliation in Account Probe -------------------------------------------------------------- Lewis Wallace, writing for Marketplace, reports that CEO John Stumpf's resignation, announced on Oct. 12, doesn't come close to ending the troubles at Wells Fargo. The bank is still the subject of criminal probes and boycotts. It's also facing at least two class-action lawsuits from workers who say they were fired, not for participating in the fake account scandal, but for refusing to participate. When Claudia Ponce de Leon started working for Wells Fargo in 2000, she was 22, and she was good at her job: She advanced from a teller, to a banker, to assistant manager and then manager, moving through several branches. By 2011, she was managing a branch in Pomona, California. Daily sales quotas had been in place for quite awhile, but they varied in intensity based on the region and the season. At this new branch, she noticed one of her staff tricking customers to make them think they were required to open new accounts, a tactic known as "gaming," which is forbidden by Wells Fargo's ethics policy. Ms. Ponce de Leon said she reported the person to her managers, human resources and the ethics hotline. "I thought I was doing the right thing," she said. But within a month she was fired for reasons she said were made up. She was accused of physically striking another employee, something she said she would never do. Since then, lots of stories have come out alleging this kind of retaliation against workers who reported those who were gaming and opening fake accounts. Ms. Ponce de Leon is not surprised by that. "A lot of people knew, but they turned the other way because at the end of the day, everyone gets an incentive," she said. Those incentives were key: Wells Fargo doesn't deny that bankers and their managers were rewarded for high sales numbers, and former CEO John Stumpf touted the numbers to investors even as Wells Fargo was conducting its own investigation into thousands of workers who participated in the scam. Attorney Jonathan Delshad recently filed a class action lawsuit in California and a federal suit, both on behalf of employees who said they were fired after refusing to cheat to meet quotas. Many said the people who did cheat were kept on or even promoted. "Over a thousand former employees have contacted me," he said. "Each one of their stories is pretty much cookie-cutter the same." These stories fly directly in the face of what Wells Fargo has said, which is that it fired anyone involved in cheating, end of story. The company has now stopped using individual sales goals, apologized to its customers and in a statement said it doesn't tolerate retaliation of any kind. The company has declined multiple requests for interviews with Marketplace. Anastasia Christman with the National Employment Law Project said the bankers who were subjected to this pressure-cooker environment were vulnerable. "They tend to be very low-paid," she said. In a study of low-level bank workers and sales tactics, she also found the workers are disproportionately women and people of color. Ms. Ponce de Leon said after Wells Fargo fired her, she lost her home, her savings and was out of work for two years; now she's 39 and basically starting over. After she was fired, she filed a complaint with the Occupational Safety and Health Administration, which the federal agency never seems to have investigated. But since the federal fine was levied against Wells Fargo in September and two rough congressional hearings for John Stumpf, she said, OSHA has proposed setting up mediation between her and Wells Fargo. Marketplace reached out to OSHA and hasn't heard back. Since all this attention has been on Wells Fargo, Ponce de Leon said one other thing has gotten better. "Finally, you know, people believe me," she said. She lost close friends when she lost her job at Wells Fargo, after putting nearly 12 years into the company. "Just having the truth come out, more than anything, is just a relief." WEST VIRGINIA PAVING: Plaintiff's List in Asphalt Cases Growing --------------------------------------------------------------- MetroNews reports that one of the attorneys leading a lawsuit against West Virginia Paving claims the asphalt supplier has manipulated the market to insure it gets the bulk of all paving jobs in West Virginia. Mike Hissam -- mhissam@baileyglasser.com -- attorney with Bailey and Glasser in Charleston, says there is ample evidence the company systematically stamped out competition. "The companies we have sued have gained control of at least 15 asphalt plants in West Virginia that once competed against each other," Mr. Hissam said in an appearance on "580 Live" on MetroNews affiliate WCHS. The firm filed four class action lawsuits on behalf of four West Virginia cities, but the plaintiff's list is growing. "It is important people realize this is not just the city of Charleston, Bluefield, Beckley and Parkersburg suing for damages to them," he said. "They're stepping up, putting their foot forward and saying we're suing on behalf of all West Virginians affected, that includes individuals and small businesses." Mr. Hissam alleged anybody who purchased asphalt from West Virginia Paving from 2006 until the present is potentially harmed by increased prices brought on by a lack of competition. The overall parent company is Ireland based Old Castle Materials which has worldwide holdings in aggregates, concrete, and asphalt. Here in the United States the company operates with a host of subsidiary companies. Those included in the lawsuit are West Virginia Paving and Southern West Virginia Paving, which has stifled any potential competition through aggressive growth according to Mr. Hissam. "If the defendants and related entities control the supply of aggregate which you need to make asphalt, they can jack up the price and make it uneconomical for you to do your work," he explained. "If you have a partner they can come in and buy out your partner for a ridiculous amount of money." Mr. Hissam added there are also cases of new out-of-state companies who have opened brand new asphalt plants in the Kanawha Valley only to be immediately bought out by West Virginia Paving and the brand new plant immediately dismantled. The suit further alleges the company has created a way to skirt the competitive bid requirements for public paving jobs. "They submitted bids aimed at tricking Charleston into believing they were entertaining a competitive option, in reality the city was dealing with one monopolous pretending to be two companies," Mr. Hissam explained. "Almost mockingly, the bids were within one dollar of each other." The suit's class action status allows for more plaintiffs and since the news hit, Mr. Hissam claimed more companies who have experienced problems with the alleged monopoly have reached out to them. He would not indicate if the state of West Virginia and the Attorney General might also be considering joining the suit. Lawyers for the plaintiffs claim the practice has driven up the cost of paving in West Virginia by 40 percent. The suit used eastern Kentucky's paving costs as the comparison, but because of the nature of hot asphalt mix buying asphalt from Kentucky and transporting it to West Virginia is not a competitive alternative. West Virginia Paving has not commented on the suit when contacted by MetroNews. WEYERHAEUSER CO: Averts Class Action Over Retiree Benefit Cuts -------------------------------------------------------------- Carmen Castro-Pagan, writing for Bloomberg BNA, reports that Weyerhaeuser Co., one of the world's largest private owners of timberland, dodged a proposed class action by retirees alleging the company illegally terminated their vested lifetime health-care benefits (Kepner v. Weyerhaeuser Co., D. Or., No. 6:16-cv-01040- AA, 10/10/16). The retirees failed to identify language in the plan documents that "clearly and expressly" manifested an intent to vest health- care benefits for life, Judge Ann Aiken of the U.S. District Court for the District of Oregon said in her Oct. 10 opinion. They therefore failed to state a claim for vested lifetime benefits under the Employee Retirement Income Security Act, Judge Aiken concluded. Lifetime health-care coverage for retirees has been a hot issue for years, and activity has picked up recently with retirees suing a number of companies this year, including Honeywell International Inc. and Raytheon Co. Federal courts, however, have been ruling against retirees. In March, a federal judge in Pennsylvania held that Johnson Controls Inc. retirees weren't entitled to unlimited lifetime health-care benefits. The U.S. Court of Appeals for the Sixth Circuit reached a similar ruling against Moen Inc. retirees. A petition for review by Moen retirees is pending at the U.S. Supreme Court. At issue in the Weyerhaeuser case was the language of a 1979 summary plan description, which described the health-care coverage then available to company retirees. The SPD was amended over the years and in 2015, the company unilaterally terminated some contributions to the plan. 'Clear and Express' Language In dismissing the retirees' lawsuit, Judge Aiken said that the 1979 SPD failed to meet the standard for contractual vesting. The SPD didn't include a promise for vested lifetime health-care benefits, she said. The court followed the reasoning adopted by the Third, Fourth, Fifth, Sixth and Ninth circuits that retirees must point to "clear and express language" in plan documents to state a claim for contractually vested benefits. The First, Second and Seventh circuits have held otherwise, reasoning that the lack of explicit language isn't determinative at the summary judgment stage. Aiken rejected the retirees' argument that the "clear and express" rule created a presumption against vesting and was irreconcilable with "ordinary principles of contract interpretation" and the U.S. Supreme Court decision in M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (U.S. 2015). The clear-and-express rule requires a clear manifestation of the parties' intent to vest benefits for life, a requirement consistent with Tackett, the judge said. Weyerhaeuser didn't intend to promise vested lifetime benefits. A clause giving employees the option to continue coverage for an indefinite period can't reasonably be interpreted to vest employees with irrevocable lifetime benefits, Judge Aiken concluded. A Weyerhaeuser spokesman declined to comment. Counsel for the class didn't immediately reply to Bloomberg BNA's request for comment. Haglund Kelley LLP represented the proposed class. Morgan Lewis & Bockius LLP and Arnold Gallagher Saydack Percell Roberts & Potter PC represented Weyerhaeuser. * Direct-Mail More Effective in Sending Class Action Notices ------------------------------------------------------------ Neil Zola of JND Legal Administration, in an article for Law360, reports that class action notice has long followed a basic tenet: when a complete list of class members exists, sending notice via first-class mail is the gold standard. But in many class actions, such lists are simply not available. In those cases, mostly brought on behalf of consumers, settlement administrators commonly turn to indirect outreach via media channels, including magazine, newspaper and internet ads, with a summary of the notice and instructions to find more information. Sure, a cadre of experts will testify that indirect notice provides sufficient due process. However, it doesn't take an expert to see that a direct-mail program, which is sent to identifiable class members, is more targeted and effective than a media campaign that may, by design, miss one (or more) of every five class members. Going back decades, before an industry of notice experts began opining on the merits of a program with 70 percent "reach" versus one with 80 percent, securities practitioners essentially built the foundation for issuing notice in a securities class action -- one that remains the tried and true method today. This process has been upheld by courts in thousands of cases, despite the fact that class member lists are not directly available in a securities case. While little has changed in the notice blueprint, practical refinement over the years has been necessary. Resourceful professionals drive consistent innovation and refinement of time-tested methods, leveraging external sources and alternative strategies as part of a systematic approach to notification. Securities class action settlements -- with their complexities and challenges -- provide the ideal illustration of an industry solving a problem through practical application of available resources. The playbook is quite simple. Upon settlement, a defendant company provides an administration firm with the transfer agent list; that is, the names of people and entities who purchased the company's stock directly from the company. This, of course, only gets at a small subset of the class, as most people do not buy stock directly from a company; rather, they buy stock through their broker. In addition to mailing notice to those direct purchasers on the transfer agent list, class action administration firms also mail to the brokerage community and, in turn, ask those brokers to provide names of their clients or customers who purchased the stock during the time period in question. The administrators then mail potential class members found in these many lists provided by various brokerage firms. In theory, it is a rather foolproof method. In practice? Not quite. The main reason for this is the incentive level of the brokerage firms; in short, they don't always have an incentive to comply and even when brokers comply, there is an inherent time lag that can jeopardize potentially tight timelines. When these challenges coalesce and leave class members in the dark, counsel, administrators and class members alike face significant consequences. Perils of Inadequate Notice Unfortunately, most notification issues come to light when class members complain to courts that they did not receive timely notice. Resolving their concerns requires counsel to go through the embarrassing process of asking for court assistance to fix the shortcomings. They must negotiate supplemental notices, file additional briefings to get them approved, and oversee more rounds of publication and mailings by the administrator. In some cases, fully approved settlements must be re-opened to accommodate extra class members. For class members, the associated costs further reduce settlement funds, and delay final distribution and receipt of recovery monies. Counsel may suffer credibility hits with judges, not receive compensation for their additional legal work or be compelled to pay the extra costs themselves; meanwhile, extending final approval delays their fee awards and expense reimbursement. In one instance this year, more than a half dozen class members and their counsel complained to the court that the settlement administrator had mailed them notices at or after the claim filing date. Acknowledging "issues with regard to the timing of the notice provided to class members," the court vacated the fairness hearing, extended objection and claim filing deadlines by two months, and set a new approval hearing three months later than the first. In a similar instance in 2013, class members didn't receive timely notices due to the defendant's transfer agent giving the administrator "an incorrect list" of record shareholders and "certain brokerage firms" providing beneficiary lists too late for the claims administrator to mail notices in time. The court vacated the fairness hearing, ordered republication of a summary notice and mailing of amended notices, required further briefing from counsel, and postponed final approval for three months. No Incentives for Brokers As these cases demonstrate, many of the problems with notice in securities cases result from cooperation issues from the brokerage community. This isn't surprising because, in large part, the entirety of the process is relying on the diligence of brokerage firms who, at best, have nothing at stake and, at worst, see several disincentives. First, a broker may not want to remind his or her current client about a stock that lost money; and they have no real incentive to provide extra services to former clients. Moreover, the payment that brokerage firms receive for doing the research required is not substantial. Based on the language of most preliminary approval orders, the brokers are to be reimbursed only their reasonable out of pocket costs; in fact, claims administrators have done a good job cracking down on the once excessive costs that brokers tried to recoup. Even where brokerage firms are determined to play their part in the process, timing can become another issue. Sometimes firms need to research multiple CUSIPS and search their databases for tens of thousands of names. Complying is one thing. Complying on time is another issue, and just as problematic. The administration firm handling the case needs enough time to receive the names, enter them in their own database and put them in the mail stream. Strategies to Fill the Gap What tools are available to lawyers and administrators to ensure notice doesn't just comply with due process, but is actually effective? First, it is important that the mailing list to brokers and other nominees is as robust and current as possible. The job of creating those lists has fallen to administration firms, but companies that have been in business for many years may have lists that are stale. Not only should an administrator update its list regularly, it should engage outside experts and consultants to audit the list. In many large securities class action settlements, a process audit is built into the settlement agreement. But that audit never takes into account the notice efforts, just the claims processing efforts. It is the administrator's responsibility to engage an outside firm to audit and make sure the initial list is robust, complete, accurate and current. Second, administrators should rely on other external resources. One of the best is the network of third-party claims filers. When this market segment started some 20 years ago, the companies attracted suspicion for their high fees -- as much as 30 percent of each claimant's recovery -- and their unproven value. Now, with some 50 third-party claims filers across the country, competition has reduced fees and expanded the companies' services to include portfolio monitoring and more. Even if a potential client has no interest in using one of these firms, their existence alone helps administrators by making it more likely that a client will see the notice. Third, an administrator should consider and/or recommend instituting follow-up procedures to ensure that brokers are on notice that they need to comply in a timely manner. This could include sending out reminder postcards to unresponsive brokerage firms and other nominees, or simply conducting telephone outreach to make sure firms are aware of important deadlines in the case. In addition, it is important for an administrator to perform rolling mailings as they receive data from nominees. Some administrators, in the interest of saving money, will aggregate names from several different nominees and then do one mailing en masse weeks or longer after the initial mailing. However, this increases the risk of late mailings. Even if class members receive the mailing on time, it may be very close to the opt-out deadline, giving them very little opportunity to weigh their decision. Counsel need to do their part too. In crafting a timeline, it is imperative to understand that the first notice mailing is not the real trigger date, as all that will do is start the process in motion. A more realistic -- and ultimately effective -- timeline takes into account the inherent multistep process, including a back and forth with the brokerage community. Overall, effective class action administrators employ a full spectrum of notice strategies to supplement notification methods and increase the amount and precision of direct mail notification. By better understanding the realities of the process, counsel and their administrators can minimize notice problems and the resulting disruptions to ensure an orderly settlement administration. * Opt-Out Clauses May Help Firms Enforce Arbitration Agreements --------------------------------------------------------------- Christopher Lepore, Esq. -- christopher.lepore@akerman.com -- of Akerman LLP, in an article for JDSupra, reports that ironically, giving employees the right to decline to resolve their employment claims in binding arbitration may actually help employers enforce arbitration agreements in some parts of the country. Agreements compelling employees to arbitrate their employment claims on an individual basis -- and waive class action claims (and similar collective action claims like those brought under the federal wage and hour laws) -- were generally upheld until recent challenges under the National Labor Relations Act. Now, there is a split among the federal appellate courts. In particular, the Seventh and Ninth Circuit Courts of Appeal have said employers cannot require employees to waive their right to bring class and collective actions because the NLRA provides employees with a substantive right to bring class and collective actions and does not conflict with the Federal Arbitration Act. Several other federal appellate circuits (the Second, Fifth and Eighth Circuits) have rejected that position and maintained arbitration agreements with class and collective action waivers are enforceable. A recent appellate case out of the Ninth Circuit may pave the way for employers trying to navigate this tricky terrain. In that case, the Court rejected a challenge by Uber drivers to an arbitration provision which waived their right to bring class or collective claims, but permitted them to opt out of arbitration. The Court said any challenge under the NLRA would fail because "the option to opt-out meant that Uber drivers were not required 'to accept a class-action waiver as a condition of employment,' and thus there was 'no basis for concluding that [Uber] coerced [Plaintiffs] into waiving [their] right to file a class action' in violation of the NLRA." In light of this case, employers in the Seventh and Ninth Circuits should consider revising arbitration agreements with class and collective waivers to include opt-out clauses. Notably, however, opt-out clauses should typically: (a) clearly inform employees of their right to opt out of arbitration; and (b) require employees to affirmatively notify their employer, in writing, of their desire to opt out of arbitration within a specified time period after executing an employment agreement. Of course, before adopting opt-out provisions in their arbitration agreements, employers should carefully weigh the risk that employees will, in fact, choose to opt out of arbitration against the possibility that arbitration clauses with class and collective waivers might be rendered entirely unenforceable. * Senate Mulls Passage of CREATES Act Amid CFPB Proposal -------------------------------------------------------- Joe Colangelo, writing for Morning Consult, reports that one of the troubling aspects of the current administration is its wholehearted embrace of regulatory and legislative approaches that promote private litigation as a means to a public policy end. Usually framed as attempts to make corporations more accountable to consumers, these mostly hurt consumers by increasing prices and hampering innovation. Perhaps the most glaring example of this flawed approach is the Consumer Financial Protection Bureau's intention to prohibit arbitration clauses on credit card contracts. These clauses in credit card contracts state that consumers must resolve contract disputes through arbitration rather than litigation. The CFPB wants to prohibit these agreements because it claims that allowing consumers only this form of redress gives credit card companies the upper hand. While there is an honest and admirable desire to give consumers access to the best legal recourse in all situations, the current "best alternative" to arbitration clauses are class-action lawsuits, which contrary to popular belief do not lead to great rewards for consumers. According to one study, "in five of six cases where settlement distribution data was actually available, the percentage of class members who actually got money ranged from a high of 12% down to a low of 0.000006%." Additionally, a Mercatus Center report shows that, contrary to the CFPB's data, "for many and perhaps most class actions fewer [sic] than 10% of the class actually receive compensation." Arbitration is also much faster, taking only several months, as opposed to the years of a typical class-action suit. The real beneficiary of the CFPB's proposal, which will likely go into effect next year, would be class-action attorneys, who are in line to earn millions of dollars unavailable to them through arbitration hearings -- while class members themselves receive very little. The CFPB is not alone in seeking to open the Pandora's box of litigation. In a supposed attempt to improve affordability of certain prescription drugs, the Senate is considering passage of the CREATES Act. The bill's bi-partisan sponsors claim it would keep the cost of prescription drugs down by making it easier for a certain class of generics to reach the market. But in fact, the bill would really be a wonder drug for trial attorneys, who stand to gain considerably from the opportunities for litigation that the bill creates. Under current law, a company seeking to manufacture a generic version of a marketed drug that is in a high risk category has to apply to the company owning the patent for that drug so that they can run tests showing the generic version is bioequivalent to the original. To speed this process, the CREATES Act would grant generic manufacturers the ability to sue a brand-name company if it fails to provide "sufficient quantities of the covered product on commercially reasonable, market-based terms" within 31 days of receiving either the FDA's authorization or the company's request. While the intent of the legislation is to help "fast track" potentially lower cost generic drugs to market, in the end it will only serve to put lawyers' interests above that of consumers and consumer safety. First, the CREATES Act would compromise consumer safety. Certain drugs used to treat potentially life-threatening conditions are so potent, they pose serious health risks to others if not used properly. In the case of these kinds of drugs, some of which can only be used in a hospital or other controlled medical settings, the FDA requires strict protocols known as Risk Evaluation & Mitigation Strategies with Elements to Assure Safe Use (REMS with ETASU). Currently, if a generic manufacturer seeks to produce a prescription subject to these guidelines, it must first demonstrate that they can meet these required high safety standards. But under the CREATES Act, the rush to produce and get generic drugs to market faster could potentially lead, in some cases, to important safeguards being overlooked for the sake of expediency. In September, in a letter to Congress, the Patients Alliance for Drug Safety Protections, a patient advocacy group, expressed concern that under the CREATES Act, the "FDA would be precluded from investigating whether the generic developer has the safety track record and capability to follow a rigorous risk management system," which in turn "could put patients at risk of significant harm." Second, the notion that this approach would lower costs is suspect. The companies behind these innovative pharmaceuticals spend significant time and financial resources to make sure they are effective and safe. If the serious threat of litigation doesn't deter these companies from developing the drugs completely, the litigation and fines would raise the cost of production -- and therefore the price consumers pay. Finally, the act could in the long-term discourage companies from investing in cutting-edge innovation because the monetary damages posed by legal threats would outweigh the funding cost associated with research, development, and production. According to the Tufts Center for the Study of Drug Development, the cost to bring a new drug to market in 2016 was $2.6 Billion, up over 300% from 2003. Whether we are talking financial services or, more importantly, healthcare, it is difficult enough for public policy to strike the right balance between rewarding innovation and maximizing competition. However, handing a giant litigation club to one side of that careful balance does not help consumers in the long run. * U.S. FDA Aims to Redefine "Healthy" Label Amid Class Actions -------------------------------------------------------------- Adam Chandler, writing for The Atlantic, reports that in late September, the U.S. Food and Drug Administration invited Americans to help redefine "healthy," a perpetually squishy term that has applied to Pop-Tarts for years, but almonds as of only two weeks ago. According to the agency, the aim of the revision is two-fold: to help consumers and to pressure food companies to produce more nutritious fare. "By updating the definition, we hope more companies will use the 'healthy' claim as the basis for new product innovation and reformulation, providing consumers with a greater variety of 'healthy' choices in the marketplace," Dr. Douglas Balentine wrote on the FDA's blog. In the meantime, the subjectiveness of "healthy" and similar claims, such as "natural," remain a matter of intense controversy, animated by two of America's most cherished pastimes: advertising and class-action lawsuits. Days before the FDA asked the public to weigh in on "healthy," Nature Valley, the General Mills-owned granola-bar maker, became the target of three class-action lawsuits over its products, which have labels that claim that they are made with "100% natural whole grain oats," but are said to contain trace amounts of pesticides. (Frustratingly for Nature Valley's legal team, the "100% natural whole grain oats" phrasing was actually the replacement copy for "100% natural," for which the company was sued in 2012 after it was determined that its products contain genetically modified and processed ingredients.) Nature Valley's woes are hardly an anomaly. Naked Juice, which is owned by PepsiCo, was sued by the Center for Science in the Public Interest, a consumer-advocacy group, which maintains that the purveyor of sugary, bottled juice exaggerates health claims in its labeling and advertising. "PepsiCo misleadingly markets Naked Juices as predominantly containing high-value ingredients such as acai berry, blueberries, kale, and mango, when in fact the predominant ingredient in the product line is usually cheap, nutrient-poor apple juice," reads the lawsuit. Like Nature Valley, Naked Juice faced another lawsuit (which it then settled) over its use of the term "all natural" three years ago after some accused the company of using GMOs in its products. These cases are representative of a burgeoning legal battle against food companies whose products, generally speaking, don't cause serious harm to consumers. Or as Ted Craig, a lawyer who specializes in consumer class actions, told Quartz's Deena Shanker after the snack-bar maker KIND faced three class-action lawsuits over its use of the word "healthy" last year, these suits appear to be "solely for purposes of recovering money damages and not in the name of protecting consumers." The breadth of the roster of food companies and conglomerates that have faced labeling lawsuits in recent years is more dizzying than any sugar (or pesticide) high. It includes Kraft Heinz, Dr. Pepper Snapple Group, Campbell Soup, Trader Joe's, Ben & Jerry's, Kashi, and Skinnygirl. Earlier this year, Quaker Oats was sued over its instant-oatmeal line, the packaging of which features the words "maple sugar" and a picture of maple syrup, even though it doesn't contain actual maple syrup. Perhaps the most infamous case in this genre was one in which a federal judge dismissed a suit that centered on the fact that Cap'n Crunch's Crunch Berries are not real fruit. While some may dismiss these legal efforts as frivolous, the question of whether a product is as "healthy" or "natural" as promised dovetails with a broader movement about what's actually in the items on American grocery shelves. Take, for example, the debate over GMO labeling, the proponents of which argue is simply a way for consumers to know what they're getting in their food, despite the scientific consensus arguing that GMOs don't pose any health risks. "What's happening here is more and more people are concerned about what they're putting in their bodies, concerned about processed foods and the things added to them," Michael Moss, a reporter covering the food industry, told The Chicago Tribune in May. Of the lawsuits, he added, "I love it that consumer agitation can cause companies to respond without government intervention." This era of ambiguity and federal reluctance may be (very slowly) nearing its end. Earlier this year, the FDA ended a public- comment period over the term "natural" and may rule on the term in the coming months, which is good news for U.S. consumers. "Americans spend more than $40 billion a year on cereals, breads, yogurts, beverages, and other foods identified as 'all natural,'" noted Anahad O'Connor in The New York Times in May. "Surveys show that consumers seek out the 'all natural' label because they believe -- wrongly -- that it means the food was produced without genetically modified organisms, hormones, pesticides and artificial ingredients." Similarly, behind the FDA's initiative to redefine "healthy" is the prodding of consumers, food companies, lawmakers, and the courts, all of which seek an update to the 1994 standards by which the term is regulated. Given that what's healthy constantly seems to be evolving and the general controversy surrounded the term, it may be years before a new definition enters the dietary vernacular. Until then, Frosted Flakes can be called "healthy," salmon can't, and I'll see you in court. ********* 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 * * *