/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161109.mbx C L A S S A C T I O N R E P O R T E R Wednesday, November 9, 2016, Vol. 18, No. 224 Headlines ADEPTUS HEALTH: Robbins Geller Files Securities Class Action ADVANCED MICRO: Court Dismiss "Dickey" Suit Over Bulldozer Chip ALLIANCE HEALTH: TCPA Class Action Can't Proceed, 2nd Cir. Rules ANTHEM BLUE CROSS: "Simon" Suit Alleges Bait-and-Switch Scheme ALTRIA GROUP: 7 Smoking Class Actions Pending in Canada ALTRIA GROUP: 9 Lights/Ultra Lights Cases Pending at October 24 ALTRIA GROUP: Court Approved $32 Million Settlement in "Aspinall" ALTRIA GROUP: Plaintiff's Bid for New Trial in "Larsen" Denied ALTRIA GROUP: $45MM "Miner" Case Settlement Awaits Final Court OK APPCO: Faces Class Action Over Exploitation of Workers APPCO: To Conduct External Probe Following Bullying Claims ASPEN DENTAL: Bageard Alleges Denial of Overtime Premium Pay BEAUMONT PRODUCTS: Faces False Advertising Class Action CANADA: Quebec Lawyer Mulls Class Action Over Photo Radar System CAPITAL ONE: Can't Enforce Arbitration, 11th Circuit Rules CARMAX AUTO: Faces Calif. Suit Over Labor Laws Violation CASH BIZ: Hiawatha, et al. File Appeal in Texas Supreme Court CATHAY PACIFIC: Doesn't Properly Pay Employees, Action Claims CHICAGO: McKenzie-Lopez Sues Over Red Light Ticket Ordinance COMMONWEALTH LAND TITLE: Skyscraper Investors File Class Action CRYPTSY: Owner's Ex-Wife Enters Into $1-Mil. Settlement DE ALBA BAKERY: "Rodas" Seeks to Recover Unpaid Overtime Pay DORIAN B LASAINE: "Wilson" Class Suit Dismissed Without Prejudice EF INTERNATIONAL: Approval of "Russell" Case Settlement Upheld FARMERS GROUP: Faces "Frias" Suit in Cal. Over Breach of Contract FLAGSHIP FACILITY: "Bradford" Seeks Unpaid Wages Under Labor Code FLINT, MI: Judge Allows Water Crisis Class Action to Proceed GLASS NICKEL: Faces "Rogers-Coxhead" Suit Over Failure to Pay OT GO VENTURES: Fails to Pay Employees OT, "Vernon" Suit Claims GOODLIFE: Employees' Class Action Seeks $60MM in Compensation GROVETOWN, GA: Feb. 2017 Hearing Set in Water Bill Class Action GRUNLEY CONSTRUCTION: Hernandez-Rodriguez Sues Over Unpaid OT HOOMAN AUTOMOTIVE: "Soto" Suit Seeks to Recover Unpaid Wages HYUNDAI MOTOR: Settles Fuel Economy Claims with 33 States ILLINOIS, USA: Court Okays Prelim. Settlement in "Morales" Suit IOOF: Class Action Can't Proceed, Victorian Supreme Court Rules JOHN HOPKINS HOSPITAL: Families of Coal Miners File Class Action JUDICIAL CORRECTION: Thurman's Bid for Transfer Denied as Moot KOCH MEAT: "Nicks" Complaint Survives Dismissal Bid LABOR READY: "Jablonski" Suit Seeks Compensation Under FLSA LG ELECTRONICS: Faces Class Action Over Energy-Saving Features LUCAS, OH: "Stuart" Suit Seeks to Recover Unpaid Overtime Wages MCGOVERN & COMPANY: Hi-Tech Metals Sues Over Unpaid Contract Job MDL 2419: 66 Cases Over Meningitis Outbreak Remanded MEMPHIS, TN: 6th Cir. Affirms Class Certification in Police Case MIDEAL FOOD: Faces "Gil" Lawsuit Alleging Violations of FLSA MOHAWK INC: Sued in Michigan Over Unsolicited Advertisements NBTY INC: Bid to Dismiss and Certify Class in "Sweat" Suit Denied NEWS CORP: $244MM Settlement Granted Final Court Approval NORTH BEACH TAVERN: "Barahona" Sues Over Unpaid Overtime OREGON: State Supreme Court Hikes Fees Award in Pension Suit PFIZER INC: Court Tosses Pill Package "Slack Fill" Class Action PHILIP MORRIS: Wins Favorable Ruling in Massachusetts Case PNC BANK: Certification of 10 Classes Sought in "Bland" Suit POTESTIVO & ASSOCIATES: Illegally Collects Debt, Action Claims QBE: Ruling to Encourage Funders to Bring "Open Class" Actions QBE: "Common Fund" Ruling May Spark More Class Actions RAMELLI GROUP: "Escobar" Suit Seeks Unpaid OT Wages Under FLSA RABOBANK NA: Asks 7th Cir. to Reject Suit Over Ch.7 Fees SAMARITAS: "Cole" Action Alleges Unpaid Overtime Pay SIENTRA INC: Settles Shareholder Class Action for $10.9 Million SILVERSTAR LTD: "Bradley" Suit Seeks Unpaid Overtime Pay SIMONTON WINDOWS: Faces Class Action Over Substandard Windows SPEEDPAY INC: Pincus Seeks to Certify Class of Florida Consumers SSM HEALTH: "Feather" Suit Transferred from S.D. Ill. to E.D. Mo. STEEL DYNAMICS: Settles Class Action for $4.6 Million SUNEDISON INC: "Dull" Suit Consolidated in MDL 2742 T&D SOLUTIONS: "Casselberry" Sues Over Unpaid Overtime TERRIBLE HERBST: Nevada Rules Reinforce Minimum Wage Amendment TILE SHOP: Beaver County Retirement Fund Suit Underway TIMEWARNER INC: "Chan" Files Antitrust Suit in Calif. Ct. TITAN MOTOR: "Lopez" Sues Over Unpaid Overtime, Commissions TLC Cleaners: "Chang" Sues Over Unpaid Overtime TRUMP UNIVERSITY: Nov. 10 Hearing on Motions to Exclude Evidence TRUMP UNIVERSITY: Parties Still Disagree on Trial Process UBER TECHNOLOGIES: "Burgos" Sues Over Unpaid Gratuities and Wages UBER TECHNOLOGIES: Faces Wage Theft Class Action in New York VOLKSWAGEN AG: Judge Okays $14.7BB Emissions Settlement WERNER ENTERPRISES: Bid to Certify Classes in "Smith" Suit Denied WERNER ENTERPRISES: Court Denies Abarca's Bid to Certify Classes WEST VIRGINIA: Jury Selection in Chemical Spill Case Moved WOW AIR: Faces Breach of Contract Class Action in California WYNYARD: More Than 1,000 Shareholders Join Class Action YALE ASSOCIATES: Must Defend Against "Noye" FCRA Suit * Few Consumers Claim Share of Class Action Settlement * Manhattan Inst. Balks at NLRB's Stance on Class Action Waivers * New Wave of Class Actions Target 401(k) Sponsors * Sen. Franken Praises FCC Stance on Arbitration Clauses * Trump Faces 75 Pending Suits Amid Presidential Campaign * Western District of New York Court Tackles Class-Action Claims ********* ADEPTUS HEALTH: Robbins Geller Files Securities Class Action ------------------------------------------------------------ Robbins Geller Rudman & Dowd LLP on Oct. 27 announced that a class action has been commenced by an institutional investor on behalf of purchasers of Adeptus Health Inc. ("Adeptus Health" or the "Company") Class A common shares (hereinafter the "common shares" or "common stock") pursuant and/or traceable to the Company's secondary public offering (the "SPO") on or about July 31, 2015, seeking to pursue remedies under the Securities Act of 1933 (the "Securities Act"), as well as purchasers of the Company's common shares between April 23, 2015 and November 16, 2015, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). This action was filed in the United States District Court for the Eastern District of Texas and is captioned Oklahoma Law Enforcement Retirement System v. Adeptus Health Inc., et al., No. 6:16-cv- 01243 (E.D. Tex.). If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 27, 2016. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or Mario Alba Jr. of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/adeptus/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Adeptus Health, certain of its officers and directors and the underwriters of its SPO with violations of the Securities Act and/or the Exchange Act. Adeptus Health owns and operates a network of independent freestanding emergency rooms in the United States. The complaint alleges that defendants misrepresented and failed to disclose material adverse facts regarding the Company's business and prospects, which were known to defendants or recklessly disregarded by them, including that: (a) Adeptus Health had been engaging in widespread predatory billing practices, particularly with respect to lower acuity level patients; (b) Adeptus Health's predatory billing practices subjected the Company to numerous known, but undisclosed, risks, including monetary risks, reputational risks, risks associated with improper financial reporting, civil or criminal sanctions, and even exclusion from federal and state healthcare programs; (c) the Company's financial statements had not been prepared in conformity with generally accepted accounting principles; (d) contrary to defendants' representations about the Company's practice of referring lower acuity patients to urgent care facilities, Adeptus Health routinely treated lower acuity patients and excessively billed them for the services it rendered; and (e) as a result of the foregoing, defendants lacked a reasonable basis for their positive statements about Adeptus Health's then-current business and future financial prospects. On November 17, 2015, KUSA, an NBC-affiliated television station located in Denver, Colorado, aired a 9WANTS To Know investigative report about the billing practices at Adeptus Health's Colorado First Choice emergency rooms ("ERs"). According to the report, which had been based on "months" of investigation, the Company's First Choice ERs engaged in a pattern and practice of predatory overbilling. In response to the airing of the KUSA investigative report, the price of Adeptus Health common stock plummeted more than 22% on very heavy trading volume, falling from $59.87 per share on November 16, 2015 to $46.50 per share on November 17, 2015. Plaintiff seeks to recover damages on behalf of all purchasers of Adeptus Health common stock during the Class Period and/or traceable to the SPO (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller is widely recognized as one of the leading law firms advising U.S. and international institutional investors in securities litigation and portfolio monitoring. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history and was ranked first in both the total amount and number of shareholder class action recoveries in ISS's SCAS Top 50 Report for the last two years. Robbins Geller attorneys have shaped the law in the areas of securities litigation and shareholder rights and have recovered tens of billions of dollars on behalf of the Firm's clients. Robbins Geller not only secures recoveries for defrauded investors, it also strives to implement corporate governance reforms, helping to improve the financial markets for investors worldwide. Please visit rgrdlaw.com/cases/adeptus/ for more information. ADVANCED MICRO: Court Dismiss "Dickey" Suit Over Bulldozer Chip --------------------------------------------------------------- Courthouse News Service reported that a federal judge in San Jose, California, on October 31, dismissed with 14 days leave to amend, a class action accusing Advanced Micro Devices of overstating the number of "cores" in its 8-core Bulldozer chip; cores affect the speed of microprocessors. The case is captioned, TONY DICKEY, et al., Plaintiffs, v. ADVANCED MICRO DEVICES, INC., Defendant., Case No. 15-cv-04922-RMW (N.D.Cal.). This case involves the components of certain AMD central processing units ("CPUs") for personal computers. AMD, a Delaware corporation based in Sunnyvale, California, manufactures CPUs. Plaintiff's allegations involve the number of "cores" in AMD's "Bulldozer" line of CPUs. Plaintiff alleges that "a core is an independent processing unit, which, like early CPUs, performs one calculation at a time." CPU manufacturers sometimes place more than one core on one physical chip to improve performance. As plaintiff describes the technology, each core in a multicore CPU is able to operate (e.g., perform calculations and execute instructions) independently from other cores. According to plaintiff, an eight-core CPU should be able to perform eight calculations simultaneously and independently. Plaintiff is a resident of Alabama. Plaintiff alleges that he visited AMD's website at AMD.com on March 10, 2015. Plaintiff allegedly saw materials on AMD's website indicating that AMD's FX- 9590 Bulldozer chip was "the first native 8-core desktop processor" and "had '8-cores.'" Plaintiff alleges that he then navigated to www.NewEgg.com, the website of an online retailer, and purchased two FX-9590 Bulldozer processors from Newegg.com for $299.99. Plaintiff alleges that the Newegg.com website also contained representations created by AMD indicating that the FX- 9590 Bulldozer was the "first native 8-core desktop processor" and "the industry's first and only native 8-core desktop processor for unmatched multitasking and pure core performance with 'Bulldozer' architecture." Plaintiff further alleges that the packaging materials for the FX-9590 processors he received indicated that the CPU was an "8-core" processor. Plaintiff alleges that AMD's representations regarding the number of cores on each Bulldozer chip were false. In fact, according to the complaint, the Bulldozer chips functionally have only four cores -- not eight, as advertised -- because "AMD built the Bulldozer processors by stripping away components from two cores and combining what was left to make a single 'module.'" As a result, plaintiff alleges, the cores no longer work independently. For example, plaintiff alleges, two of AMD's Bulldozer "module processing units" share a single floating point unit, or FPU. According to plaintiff "[i]f one module processing unit performs a floating point calculation, the other must wait until that resource is free for its own floating point calculation, creating a bottleneck." Plaintiff alleges that the L2 cache2 and other components are also shared between AMD module processing units. Plaintiff alleges that when he used the FX-9590 processors that he purchased, the CPUs "did not perform as well as a CPU with the same clock speed but with eight true cores." Tony Dickey is represented by Alexander Nguyen, Esq. -- anguyen@edelson.com -- Benjamin Scott Thomassen, Esq. -- bthomassen@edelson.com -- Rafey S. Balabanian, Esq. -- rbalabanian@edelson.com -- and Todd M. Logan, Esq. -- tlogan@edelson.com -- EDELSON PC AMD is represented by Matthew David Powers, Esq. -- mpowers@omm.com -- and Edmundo Clay Marquez, Esq. -- emarquez@omm.com -- O'MELVENY & MYERS LLP ALLIANCE HEALTH: TCPA Class Action Can't Proceed, 2nd Cir. Rules ---------------------------------------------------------------- Joseph C. Wylie II, Esq., Molly K. McGinley, Esq. and Nicole C. Mueller, Esq. of K & L Gates, in an article for The National Law Review, report that the Second Circuit recently refused to allow a plaintiff to proceed with a putative class action brought under the Telephone Consumer Protection Act ("TCPA") in Bank v. Alliance Health Networks, LLC, finding that he lacked standing after the District Court entered judgment for Defendant in the amount of an unaccepted offer of judgment on Plaintiff's individual claims. Plaintiff Todd C. Bank, an attorney proceeding pro se, brought individual and class-action claims against Alliance Health Networks, LLC and Medsource Rx Pharmacy, LLC, alleging that those entities made calls to him and others featuring an artificial or prerecorded voice advertising diabetic testing equipment in violation of the TCPA and New York state law. The companies served Bank with an offer of judgment in February 2015 and then moved to dismiss. The trial court dismissed his claim, finding that an offer for more than complete relief mooted Banks' claims. On appeal, the Second Circuit held that Bank lacked standing to pursue the class claims following the satisfaction of the judgment on his individual claims. Referencing Campbell-Ewald v. Gomez, in which the Supreme Court held that an unaccepted Rule 68 offer of judgment will not moot a plaintiff's claims, the Second Circuit determined that "where judgment has been entered and where the plaintiff's claims have been satisfied, as they were here when Bank negotiated the check, any individual claims are rendered moot." It followed that because Bank lacked any connection to a live claim, did not have "any cognizable interest in pursuing the class claims," and there being no other plaintiff in a position to pursue the class claims, the District Court had appropriately dismissed the class claims. Bank argued that his personal stake in the class controversy hinged on the incentive reward that representatives of class actions typically receive. The Second Circuit disagreed, finding that such rewards are not guaranteed and are not sufficiently concrete to meet the standing requirements under the law. Bank filed a motion for rehearing en banc. Courts continue to grapple with how to implement the Supreme Court's ruling in Campbell-Ewald, and it may be some time before a consensus emerges as to whether, and when, defendants can moot class actions through tender of complete relief. ANTHEM BLUE CROSS: "Simon" Suit Alleges Bait-and-Switch Scheme -------------------------------------------------------------- Jon Chown, writing for Courthouse News Service, reported that a class action in Santa Monica, California accuses Anthem Blue Cross of planning a bait-and-switch scheme to begin on Jan. 1, by terminating its Preferred Provider Organization health plans and switching to Exclusive Provider Organization, limiting choice and violating the federal health care law. Los Angeles resident Paul Simon, 42, sued Blue Cross of California dba Anthem Blue Cross on October 31, in Superior Court, for breach of contract, breach of faith and business-code violations. Exclusive Provider Organization plans, or EPOs, unlike PPOs, provide no out-of-network coverage, limiting the choice of physicians and care. Simon has a medical condition that requires him to use several out-of-network providers to which he would lose access, as well as one in-network doctor that he sees, his attorney Laura Antonini said in an interview. "This really affects his personal coverage," said Antonini, who is with Consumer Watchdog in Santa Monica. Antonini said the bait-and-switch mentioned in the lawsuit is the method Anthem uses to renew its coverage. "In an effort to retain its market share, Anthem is failing to adequately inform its members that they are losing out-of-network benefits for 2017," she said. According to the complaint, Anthem lost a lot of customers the last time it canceled its plans and replaced them with less comprehensive coverage. So this time, in September, it sent out a misleading renewal packet that said that, though the plans will "change" on Jan. 1, customers will be automatically re-enrolled in similar coverage. Premiums will increase by 33 percent. "This change leaves customers potentially facing thousands of dollars or more in medical bills that would have been covered under their existing plan," the complaint states. "Anthem knows that if consumers were informed that coverage is being withdrawn from the market and replaced with entirely different coverage as the law requires, consumers would take a closer look at their options, including health plans offered by other companies." Anthem's renewal packet did not fulfill numerous federal and state legal requirements, the complaint states. For example, if Anthem wants to make a change in the type of plan it offers, it must "discontinue the coverage and issue a new product." This requires one form notifying customers of the discontinuation and a different form of notice when a plan is renewed. Since this was not done correctly, and federal and state laws require 90-day notice, Anthem must renew the original plans, according to the complaint. Open enrollment for health coverage began Nov. 1 and consumers who renew their Anthem coverage by that date will be locked in for another year, the lawsuit states. Simon seeks class certification and an order enjoining Anthem to renew the PPO plans through 2017, plus punitive damages and costs of suit. "We believe that Anthem is trying to take advantage of consumers during the open enrollment period," said Travis Corby, another of Simon's attorneys. "They are selling 2017 Affordable Care Act health plans as being the same as their 2016 products. ... Existing customers are being completely misled." Anthem Blue Cross spokesman Darrel Ng said the company is committed to providing access to high-quality, affordable health care and is making the changes so it can keep monthly premiums affordable. "The benefit package being offered in 2017 was approved by the Department of Managed Health Care and Covered California, and is consistent with federal guidance," Ng said. "Affected members have been mailed written notice of this change so they can make an informed decision on their health care needs during the open enrollment period for the coming year. We believe plaintiff's case is without merit." Attorney Corby -- tcorby@shernoff.com -- is with Shernoff Bidart Echeverria in Claremont. ALTRIA GROUP: 7 Smoking Class Actions Pending in Canada ------------------------------------------------------- Altria Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016, that as of October 24, 2016, Philip Morris USA Inc. ("PM USA") and Altria Group, Inc. are named as defendants, along with other cigarette manufacturers, in seven class actions filed in the Canadian provinces of Alberta, Manitoba, Nova Scotia, Saskatchewan, British Columbia and Ontario. Since the dismissal in May 1996 of a purported nationwide class action brought on behalf of allegedly addicted smokers, plaintiffs have filed numerous putative smoking and health class action suits in various state and federal courts. In general, these cases purport to be brought on behalf of residents of a particular state or states (although a few cases purport to be nationwide in scope) and raise addiction claims and, in many cases, claims of physical injury as well. Class certification has been denied or reversed by courts in 60 smoking and health class actions involving PM USA in Arkansas (1), California (1), the District of Columbia (2), Florida (2), Illinois (3), Iowa (1), Kansas (1), Louisiana (1), Maryland (1), Michigan (1), Minnesota (1), Nevada (29), New Jersey (6), New York (2), Ohio (1), Oklahoma (1), Oregon (1), Pennsylvania (1), Puerto Rico (1), South Carolina (1), Texas (1) and Wisconsin (1). As of October 24, 2016, PM USA and Altria Group, Inc. are named as defendants, along with other cigarette manufacturers, in seven class actions filed in the Canadian provinces of Alberta, Manitoba, Nova Scotia, Saskatchewan, British Columbia and Ontario. In Saskatchewan, British Columbia (two separate cases) and Ontario, plaintiffs seek class certification on behalf of individuals who suffer or have suffered from various diseases, including chronic obstructive pulmonary disease, emphysema, heart disease or cancer, after smoking defendants' cigarettes. In the actions filed in Alberta, Manitoba and Nova Scotia, plaintiffs seek certification of classes of all individuals who smoked defendants' cigarettes. ALTRIA GROUP: 9 Lights/Ultra Lights Cases Pending at October 24 --------------------------------------------------------------- Altria Group, Inc. provided updates on various Lights/Ultra Lights cases in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016. As of October 24, 2016, a total of 9 such cases are pending in various U.S. state courts. Plaintiffs in certain pending matters seek certification of their cases as class actions and allege, among other things, that the uses of the terms "Lights" and/or "Ultra Lights" constitute deceptive and unfair trade practices, common law or statutory fraud, unjust enrichment or breach of warranty, and seek injunctive and equitable relief, including restitution and, in certain cases, punitive damages. These class actions have been brought against PM USA and, in certain instances, Altria Group, Inc. or its subsidiaries, on behalf of individuals who purchased and consumed various brands of cigarettes, including Marlboro Lights, Marlboro Ultra Lights, Virginia Slims Lights and Superslims, Merit Lights and Cambridge Lights. Defenses raised in these cases include lack of misrepresentation, lack of causation, injury and damages, the statute of limitations, non-liability under state statutory provisions exempting conduct that complies with federal regulatory directives, and the First Amendment. The Good Case In Good, a purported "Lights" class action, the United States Supreme Court ruled in December 2008 that plaintiffs' claims are not preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA"). The case was returned to federal court in Maine and consolidated with other federal cases in the multidistrict litigation proceeding discussed below. In June 2011, the plaintiffs voluntarily dismissed the case without prejudice. Federal Multidistrict Proceeding and Subsequent Developments Since the December 2008 United States Supreme Court decision in Good, and through October 24, 2016, 26 purported "Lights" class actions were served upon PM USA and, in certain cases, Altria Group, Inc. These cases were filed in 15 states, the U.S. Virgin Islands and the District of Columbia. All of these cases either were filed in federal court or were removed to federal court by PM USA and were transferred and consolidated by the Judicial Panel on Multidistrict Litigation ("JPMDL") before the U.S. District Court for the District of Maine for pretrial proceedings ("MDL proceeding"). In November 2010, the district court in the MDL proceeding denied plaintiffs' motion for class certification in four cases, covering the jurisdictions of California, the District of Columbia, Illinois and Maine. These jurisdictions were selected by the parties as sample cases, with two selected by plaintiffs and two selected by defendants. Plaintiffs sought appellate review of this decision but, in February 2011, the U.S. Court of Appeals for the First Circuit denied plaintiffs' petition for leave to appeal. Later that year, plaintiffs in 13 cases voluntarily dismissed their cases without prejudice. In April 2012, the JPMDL remanded the remaining four cases back to the federal district courts in which the suits originated. These cases were ultimately resolved in a manner favorable to PM USA. "Lights" Cases Dismissed, Not Certified or Ordered De-Certified As of October 24, 2016, in addition to the federal district court in the MDL proceeding, 20 courts in 21 "Lights" cases have refused to certify class actions, dismissed class action allegations, reversed prior class certification decisions or have entered judgment in favor of PM USA. Trial courts in Arizona, Hawaii, Illinois, Kansas, New Jersey, New Mexico, Ohio, Oregon, Tennessee, Washington and Wisconsin have refused to grant class certification or have dismissed plaintiffs' class action allegations. Plaintiffs voluntarily dismissed a case in Michigan after a trial court dismissed the claims plaintiffs asserted under the Michigan Unfair Trade and Consumer Protection Act. Several appellate courts have issued rulings that either affirmed rulings in favor of Altria Group, Inc. and/or PM USA or reversed rulings entered in favor of plaintiffs. In Florida, an intermediate appellate court overturned an order by a trial court that granted class certification in Hines. The Florida Supreme Court denied review in January 2008. The Supreme Court of Illinois overturned a judgment that awarded damages to a certified class in the Price case. See The Price Case below for further discussion. In Louisiana, the U.S. Court of Appeals for the Fifth Circuit dismissed a purported "Lights" class action (Sullivan) on the grounds that plaintiffs' claims were preempted by the FCLAA. In New York, the U.S. Court of Appeals for the Second Circuit overturned a trial court decision in Schwab that granted plaintiffs' motion for certification of a nationwide class of all U.S. residents that purchased cigarettes in the United States that were labeled "Light" or "Lights." In July 2010, plaintiffs in Schwab voluntarily dismissed the case with prejudice. In Ohio, the Ohio Supreme Court overturned class certifications in the Marrone and Phillips cases. Plaintiffs voluntarily dismissed both cases without prejudice in August 2009, but refiled in federal court as the Phillips case discussed above. The Supreme Court of Washington denied a motion for interlocutory review filed by the plaintiffs in the Davies case that sought review of an order by the trial court that refused to certify a class. Plaintiffs subsequently voluntarily dismissed the Davies case with prejudice. In August 2011, the U.S. Court of Appeals for the Seventh Circuit affirmed the Illinois federal district court's dismissal of "Lights" claims brought against PM USA in the Cleary case. In Curtis, a certified class action, in May 2012, the Minnesota Supreme Court affirmed the trial court's entry of summary judgment in favor of PM USA, concluding this litigation. In Lawrence, in August 2012, the New Hampshire Supreme Court reversed the trial court's order to certify a class and subsequently denied plaintiffs' rehearing petition. In October 2012, the case was dismissed after plaintiffs filed a motion to dismiss the case with prejudice, concluding this litigation. ALTRIA GROUP: Court Approved $32 Million Settlement in "Aspinall" ----------------------------------------------------------------- Altria Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016, that the Court has approved the settlement of the Aspinall class action lawsuit in which PM USA agreed to pay approximately $15.3 million to the class and $16.5 million in attorneys' fees and costs. In August 2004, the Massachusetts Supreme Judicial Court affirmed the class certification order. In August 2006, the trial court denied PM USA's motion for summary judgment and granted plaintiffs' cross-motion for summary judgment on the defenses of federal preemption and a state law exemption to Massachusetts' consumer protection statute. On motion of the parties, the trial court subsequently reported its decision to deny summary judgment to the appeals court for review and stayed further proceedings pending completion of the appellate review. In March 2009, the Massachusetts Supreme Judicial Court affirmed the order denying summary judgment to PM USA and granting the plaintiffs' cross-motion. In January 2010, plaintiffs moved for partial summary judgment as to liability claiming collateral estoppel from the findings in the case brought by the Department of Justice. In March 2012, the trial court denied plaintiffs' motion. In February 2013, the trial court, upon agreement of the parties, dismissed without prejudice plaintiffs' claims against Altria Group, Inc. PM USA is now the sole defendant in the case. In September 2013, the case was transferred to the Business Litigation Session of the Massachusetts Superior Court. Also in September 2013, plaintiffs filed a motion for partial summary judgment on the scope of remedies available in the case, which the Massachusetts Superior Court denied in February 2014, concluding that plaintiffs cannot obtain disgorgement of profits as an equitable remedy and that their recovery is limited to actual damages or $25 per class member if they cannot prove actual damages greater than $25. Plaintiffs filed a motion asking the trial court to report its February 2014 ruling to the Massachusetts Appeals Court for review, which the trial court denied. In March 2014, plaintiffs petitioned the Massachusetts Appeals Court for review of the ruling, which the appellate court denied. In August 2015, the trial court denied various pre-trial motions filed by PM USA, including a motion for summary judgment on the ground that plaintiffs have no proof of injury. Trial began in October 2015 and concluded in November 2015. In December 2015, PM USA filed a motion to decertify the class. In February 2016, the trial court issued its "Findings of Fact and Conclusions of Law," finding that (1) PM USA violated Massachusetts consumer protection laws in marketing Marlboro "Lights" and (2) plaintiffs proved that class members were economically injured, but did not prove a specific measure of damages. As a result, the court awarded statutory damages of $25 per class member, for a total of $4.9 million, plus interest, attorneys' fees and costs. In April 2016, the parties agreed to settle all claims for approximately $32 million. The agreement is subject to approval by the court. In the first quarter of 2016, PM USA recorded a provision on its condensed consolidated balance sheet of approximately $32 million for the judgment plus interest and associated costs. In May 2016, PM USA paid approximately $32 million to plaintiffs' escrow agent. In September 2016, the court approved the settlement in which PM USA agreed to pay approximately $15.3 million to the class and $16.5 million in attorneys' fees and costs, and dismissed the case with prejudice. ALTRIA GROUP: Plaintiff's Bid for New Trial in "Larsen" Denied -------------------------------------------------------------- Altria Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016, that the trial court in the Larsen class action lawsuit has denied plaintiffs' motion for a new trial, and plaintiffs filed a notice of appeal and PM USA cross-appealed. In August 2005, a Missouri Court of Appeals affirmed the class certification order. In December 2009, the trial court denied plaintiffs' motion for reconsideration of the period during which potential class members can qualify to become part of the class. The class period remains 1995-2003. In June 2010, PM USA's motion for partial summary judgment regarding plaintiffs' request for punitive damages was denied. In April 2010, plaintiffs moved for partial summary judgment as to an element of liability in the case, claiming collateral estoppel from the findings in the case brought by the Department of Justice. The plaintiffs' motion was denied in December 2010. In June 2011, PM USA filed various summary judgment motions challenging the plaintiffs' claims. In August 2011, the trial court granted PM USA's motion for partial summary judgment, ruling that plaintiffs could not present a damages claim based on allegations that Marlboro Lights are more dangerous than Marlboro Reds. The trial court denied PM USA's remaining summary judgment motions. Trial in the case began in September 2011 and, in October 2011, the court declared a mistrial after the jury failed to reach a verdict. In January 2014, the trial court reversed its prior ruling granting partial summary judgment against plaintiffs' "more dangerous" claim and allowed plaintiffs to pursue that claim. In October 2014, PM USA filed motions to decertify the class and for partial summary judgment on plaintiffs' "more dangerous" claim, which the court denied in June 2015. Upon retrial, in April 2016, the jury returned a verdict in favor of PM USA. In May 2016, plaintiffs filed a motion for a new trial, which PM USA opposed in June 2016. In August 2016, the trial court denied plaintiffs' motion for a new trial, plaintiffs filed a notice of appeal and PM USA cross- appealed. ALTRIA GROUP: $45MM "Miner" Case Settlement Awaits Final Court OK ----------------------------------------------------------------- Altria Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016, that the $45 million settlement of the Miner class action lawsuit remains subject to final approval by the court. In June 2007, the United States Supreme Court reversed the lower court rulings in Miner (formerly known as Watson) that denied plaintiffs' motion to have the case heard in a state, as opposed to federal, trial court. The Supreme Court rejected defendants' contention that the case must be tried in federal court under the "federal officer" statute. Following remand, the case was removed again to federal court in Arkansas and transferred to the MDL proceeding. In November 2010, the district court in the MDL proceeding remanded the case to Arkansas state court. In December 2011, plaintiffs voluntarily dismissed their claims against Altria Group, Inc. without prejudice. In March 2013, plaintiffs filed a class certification motion. In November 2013, the trial court granted class certification. The certified class includes those individuals who, from November 1, 1971 through June 22, 2010, purchased Marlboro Lights and Marlboro Ultra Lights for personal consumption in Arkansas. PM USA filed a notice of appeal of the class certification ruling to the Arkansas Supreme Court in December 2013. In February 2015, the Arkansas Supreme Court affirmed the trial court's class certification order. In May 2015, PM USA filed a motion for partial summary judgment seeking to foreclose any recovery for cigarette purchases prior to 1999, when a private right of action was added to the consumer protection statute under which plaintiffs are suing. The trial court denied the motion in July 2015. In June 2016, the trial court granted PM USA's motion for partial summary judgment to limit any damages claimed by the plaintiffs' class to purchases made prior to May 2003. In July 2016, the parties agreed to settle all claims for $45 million. The settlement was preliminarily approved by the trial court in August 2016 and is subject to final approval by the court. In the third quarter of 2016, PM USA recorded a provision on its condensed consolidated balance sheet of $45 million. APPCO: Faces Class Action Over Exploitation of Workers ------------------------------------------------------ Nick Toscano, writing for The Sydney Morning Herald, reports that some of Australia's best-known charities are urgently demanding explanations and are considering cutting ties with fundraising giant Appco, as young donation-collectors claim they were exploited, underpaid and bullied. A large class action lawsuit looms in the Federal Court against marketing company Appco to attempt to recover up to $80 million for up to 8000 former workers who rattled collection tins and sold merchandise in public places on behalf of major charities. They are alleging they were illegally classified by Appco as contractors instead of as employees, and some claim their overall wages were as little as $2.50 an hour. It is also alleged that employees were subjected to bullying when they raised questions about their workplace rights. Many of the nation's biggest charities use Appco as a third-party fundraiser, but several organizations are now reviewing their contracts in light of the allegations. CanTeen, a charity supporting young Australians with cancer, held a meeting with Appco's Australian chief executive "as a matter of urgency" on Oct. 24, the first business day after the claims were reported. "We are very concerned by the allegations raised and are taking them extremely seriously," a spokeswoman said. CanTeen said Appco had assured its representatives that it was investigating the specific allegations and reviewing its practices. CanTeen has requested daily updates from Appco, and is reviewing its relationship with the company. "As with any supplier, we regularly review our relationship with Appco and will be doing so again as we gain a more thorough understanding of the situation in the coming days and weeks," the spokeswoman said. Fairfax Media has confirmed that other Australian charities have begun reviewing their contractual arrangements in light of the troubling claims. A number of charities have sought urgent explanations and clarifications from Appco. "The alleged employment practices are unacceptable," a spokeswoman for youth homelessness charity Ladder said. "We have raised the issue with the agency that manages the third- party relationship with Appco." Children's charity The Alannah & Madeline Foundation said it expected that its partners "abide by the law in all respects". "The Foundation expects all employees and independent contractors to be paid properly, especially young people," a spokesman said. Appco said it was yet to be officially advised of the class action, but rejected allegations of "sham contracting". Central to the legal action is the argument that fundraising workers -- sometimes referred to as "charity muggers" or "chuggers" -- were in fact employees of Appco, not independent contractors, and should have been paid accordingly. "Appco is committed to operating a responsible independent contractor model and strongly disputes the claims around employment made in the media," Appco said. The case also includes claims of ritualistic humiliation of young Appco fundraising workers. Former staff claim that "underperformers" were made to dress up like chickens and fight each other. Others said they had to slither on the floor in a "sluggie race" in front of their colleagues. "The bullying allegations raised in the media have not been reported to Appco, but it absolutely does not condone the activities described," the company's statement said. Other major Appco clients -- the Starlight Children's Foundation and Camp Quality -- declined to comment to Fairfax Media. APPCO: To Conduct External Probe Following Bullying Claims ---------------------------------------------------------- Nick Toscano, writing for The Age, reports that the owner of a marketing firm at the centre of an alleged bullying scandal has stood down from his job, as fundraising giant Appco launches an urgent investigation into the treatment of donation-collectors. Appco has ordered all of its 64 other marketing agencies to turn over any details of "suspected or known" bullying and harassment, and provide written assurances that they are not tolerating such behavior. Appco chief executive Martin Gaffney said agencies that could not give this assurance would risk losing their business with Appco. "We will not tolerate, condone or turn a blind eye to the type of behavior alleged," he said. The move comes amid the fallout from explosive allegations that workers sent to rattle collection tins in public places were wrongly classed and paid as contractors instead of employees. It is also alleged workers were subjected to bullying and humiliation rituals if they "underperformed". Legal firm Chamberlains is leading a class action against Appco, aiming to recoup lost wages and damages for up to 8000 former fundraising workers, although Appco is yet to be served with the lawsuit. Many of the nation's biggest charities use Appco as a third-party fundraiser, but several well-known organizations are now reviewing their contracts in light of the allegations. Mr. Gaffney said Appco had engaged a top-tier law firm, Baker and McKenzie, to carry out an investigation into the bullying and harassment claims. Former staff claim they were made to dress up like chickens and fight each other, while others said they had to slither on the floor in a "sluggie race" in front of their colleagues. The Canberra-based marketing agency where the alleged practices took place has voluntarily agreed to step aside while the inquiry takes place. Mr. Gaffney said he did not believe improper practices were "widespread or systemic". But the law firm launching the class action, Chamberlains, says its evidence suggests "there has been systemic abuse of team members throughout Australia and not isolated to one marketing company." It says the central issue remains that there has been "sham contracting" -- wrongly engaging and paying workers as contractors when they are in fact employees -- and other measures taken to underpay team members. Baker and McKenzie has also been engaged by Appco to investigate allegations of sham contracting. "We have nothing to hide," Mr. Gaffney said. "There is no way we will tolerate bullying or harassment or any behavior that breaches employment law." Appco on Oct. 28 launched its strongest defense yet of its independent contracting model, which it said was regularly scrutinized through independent legal reviews. Mr. Gaffney said there had never been an adverse finding against the company by the Fair Work Ombudsman, the Fair Work Commission or other regulators, and had not previously heard of allegations contained in the looming lawsuit. "Our business is built on an entrepreneurial philosophy which allows individuals to build their own businesses," Mr. Gaffney said. Appco claims to reach 50,000 people face-to-face every day and to have raised $800 million in Australia for key charities and sporting bodies. Appco's current and former clients include some of Australia's most high-profile and respected charities, such as Starlight Children's Foundation, Camp Quality and the National Breast Cancer Foundation. ASPEN DENTAL: Bageard Alleges Denial of Overtime Premium Pay ------------------------------------------------------------ Lori Bageard, individually and on behalf of all others similarly situated, Plaintiff, v. Aspen Dental Management, Inc., Defendant, Case No. 5:16-cv-06268 (M.D. Fla., November 1, 2016), seeks unpaid wages, overtime premium pay, liquidated damages and reasonable attorneys' fees and costs of this action under the Fair Labor Standards Act. Plaintiff was employed by Defendant as an office manager from January 2013 until about March 2015, at the Aspen Dental office located in Lakeland, Florida. Plaintiff is represented by: Greg I. Shavitz, Esq. Susan H. Stern, Esq. SHAVITZ LAW GROUP PA 1515 South Federal Highway, Suite 404 Boca Raton, FL 33432 Tel: (561) 447-8888 Fax: (561) 447-8831 Email: gshavitz@shavitzlaw.com sstern@shavitzlaw.com BEAUMONT PRODUCTS: Faces False Advertising Class Action ------------------------------------------------------- Wadi Reformado, writing for Legal Newsline, reports that a New York consumer is suing a Georgia body products business, alleging negligent misrepresentation. Silvio Ciancio of Dutchess County filed a class action lawsuit, individually and on behalf of all others similarly situated, Oct. 18 in U.S. District Court for the Southern District of New York against Beaumont Products Incorporated, doing business as Clearly Natural Essentials, alleging the defendant made false claims regarding its products in order to misled customers. According to the complaint, Mr. Ciancio suffered monetary damages from being misled into purchasing a falsely advertised product. The plaintiff alleges Clearly Natural Essentials advertises its products as "natural" despite them having synthetic and artificial ingredients. Mr. Ciancio seeks trial by jury, injunctive relief, monetary damages, treble damages, punitive damages, all legal fees and all other relief the court deems just. He is represented by attorneys Jason P. Sultzer, Joseph Lipari and Adam Gonnelli of The Sultzer Law Group PC in Poughkeepsie, New York. U.S. District Court for the Southern District of New York Case number 7:16-cv-08124-KMK CANADA: Quebec Lawyer Mulls Class Action Over Photo Radar System ---------------------------------------------------------------- CTV Montreal reports that a Quebec City lawyer is hoping to prove that photo radar is unconstitutional. Jean-Roch Parent plans to file a class-action lawsuit because, he argues, using photo radar to detect speeding removes the presumption of innocence from the owner of the vehicle. Mr. Parent's argument is that the photo radar ticketing system assumes the car's owner is at fault for the infraction and not the person driving. "The owner of a car has to prove that he was not driving the car at the time of the offence," he said. "This statute is against the Charter of Rights and Freedoms . . . (which) says clearly that in Canada, in criminal matters, the Crown has to prove beyond a reasonable doubt that you have committed the offence. It's not you who has to prove you are not guilty." Anyone who is interested in joining the lawsuit may do so by visiting his website. Mr. Parent said since 2009, almost 690,000 photo radar tickets have been issued from Quebec's 151 units. They have generated more than $92 million in revenue for the Quebec government. Bernard Levy-Soussan of Ticket 911, a law firm representing people charged with traffic violations and criminal charges related to driving, is unsure how Parent's battle will play out. "He has merits to his case. To what extent he will be successful is a different story," said Mr. Levy-Soussan, adding that the government would probably take the case all the way to the Supreme Court of Canada if possible, because of the renevue the tickets generate for the government. He said most people tend to weigh the outcomes and decide not to proceed. "At the end of the day, people don't want to pay legal fees and don't want to lose half a day or a day of work to go to court. They'd rather pay the ticket and just get it over with. That's the reality of it," he said. Mr. Parent is not the first to take up the constitutional challenge against photo radar. British Columbia businessman Doug Stead battled for five years in a futile battle over a 1996 photo radar speeding ticket. Stead claimed he spent $120,000 to fight the $117 ticket. CAPITAL ONE: Can't Enforce Arbitration, 11th Circuit Rules ---------------------------------------------------------- Mark A. Olthoff, Esq. -- molthoff@polsinelli.com -- of Polsinelli PC, in an article for The National Law Review, reports that a recent decision from the United States District Court for the Southern District of Florida is a reminder that if a litigant intends to enforce its contractual arbitration provision, the issue must be raised at an early opportunity. Otherwise, the risk remains that the provision will not be enforced and the right to compel arbitration may be lost. In the case, In re Checking Account Overdraft Litigation, 09-MD- 02036-JLK, the court held that the defendant bank could not force unnamed class members' claims into arbitration. The court concluded that the bank had litigated the matters for several years, resulting in the expenditure of substantial court resources and the parties' time and money. Thus, ordering the classes to arbitrate would be prejudicial. The lawsuits were filed in 2008 and 2009. At the time, the bank argued for multidistrict litigation and that it would promote judicial efficiency and prevent the possibility of conflicting rulings. Later, the court entered an order directing the defendants to file motions to compel arbitration or to dismiss. The bank, however, did not invoke arbitration or notify the court or parties it intended to move to compel arbitration later. Instead, it joined an omnibus motion to dismiss, which the court largely denied. Thereafter, the court provided the parties a second opportunity to demand arbitration. In response, the defendant specifically informed the court it would not pursue arbitration of the matters. When it then filed its answer and affirmative defenses, the bank did not assert arbitration as an affirmative avoidance of the litigation. Following the pleadings phase, the bank engaged in substantial discovery, including the nature and scope of the class action and the merits of the claims. Nearly a year later, the bank moved to compel arbitration of the named plaintiffs' claims for the first time. Again, this was well after the deadline set by the court to file any arbitration motion and after the parties had engaged in significant discovery extending substantial time and money. The court rejected the bank's argument and denied the motion to compel arbitration, finding that any right to compel arbitration had been waived and the motion was untimely. After an unsuccessful appeal, the bank again invoked the court's litigation machinery for several more months. While simultaneously opposing the named plaintiffs' class certification motion, the bank filed a "conditional motion" to compel arbitration as to unnamed class members pending a determination of the class certification motion. That conditional motion was denied and the case was certified. Once the court granted certification, the bank filed another motion to compel arbitration for the claims of the unnamed class members. Just as it had done before, the court determined that the bank had waived any rights that it may have had to demand arbitration on the unnamed class members' claims. According to the court, the bank had acted inconsistently with its arbitration rights in several respects, including engaging in substantial discovery and motion practice. This caused the court to expend enormous amounts of time and resources, and requiring significant expense by all parties: "The bank's conduct reflects a deliberate strategy on its part to try to earn through litigation a complete victory affecting the rights, not only of the few named plaintiffs, but of the entire class." The court also noted that the bank twice had declined previously to pursue arbitration by the clear deadlines set by the court. While the unnamed class members did not obtain official "party" status until the court entered its certification order, the bank knew the case was a putative class action lawsuit from the beginning and that the class claims were driving the cases since the time they were filed. The bulk of the litigation activity would not have occurred if only the modest claims of the plaintiffs were at stake. The bank's activities were geared toward defeating both the claims of the named plaintiffs and the unnamed class members. The court stated: "Under the circumstances, it would be unfair, and fundamentally at odds with the principles underlying the Federal Arbitration Act, to permit [the bank] to effectively 'wait in the weeds' and invoke arbitration, years after litigation, now that the alternate path the bank chose did not turn out as it had hoped." If successful, the bank's strategy would render the extensive resources spent a complete waste, resulting in gross inefficiency and conflicting with one of the fundamental tenets underlying class action practice. The court would not allow the bank to simply reverse course after failing to achieve in litigation the sweeping victory it had hoped to achieve. Its decision and corresponding conduct over the years contradicted an intent to arbitrate against either the named plaintiffs or the unnamed members of the class. The court plainly believed that the bank had rested on its rights. Whether the bank desired to pursue arbitration with the named plaintiffs in the cases, it still had an opportunity to preserve its ability to pursue arbitration with unnamed class members, had it acted early enough. Having sat on its rights, however, the court determined that it was simply too late in the action to raise arbitration with the unnamed class members after so much time and money had been expended. The case presents a stark reminder that arbitration provisions are a contractual right that must be asserted early (and often) or the value placed on arbitration may be lost. CARMAX AUTO: Faces Calif. Suit Over Labor Laws Violation -------------------------------------------------------- Courthouse News Service reported that Carmax Auto Superstores California stiffs workers for overtime and violates other labor laws, a class action claims in Los Angeles Superior Court. CASH BIZ: Hiawatha, et al. File Appeal in Texas Supreme Court ------------------------------------------------------------- Norris, Montray, Henry, Hiawatha, Harris, Addie, and Coleman, Jr., Roosevelt, and all Similarly Situated Plaintiffs, the Petitioners, v. Cash Biz, L.P., Cash Zone, LLC d/b/a Cash Biz Redwood Financials, LLC, the Respondents, and Texas Appleseed, Amicus Curiae, Case No. 16-0854 (Tex Sup. Ct., Oct. 22, 2016), is an appeal filed before the Supreme Court of Texas, from a lower court decision in Case No. 04-15-00469-CV (4th Cir). The Petitioners are represented by: H. Mark Burck, Esq. Daniel R. Dutko, Esq. Hanszen Laporte LLP 11767 Katy Freeway, Suite 850 Houston, TX 77079 Telephone: (713) 522 9444 Facsimile: (713) 524 2580 The Respondents are represented by: Patrick E. Gaas, Esq. Edward S. Hubbard, Esq. COATS ROSE 9 Greenway Plz., Ste. 1100 Houston, TX 77046-0307 CATHAY PACIFIC: Doesn't Properly Pay Employees, Action Claims ------------------------------------------------------------- Margaret Tumampos, on her behalf and others similarly situated v. Cathay Pacific Airways Ltd., Case No. 4:16-cv-06208-DMR (N.D. Cal., October 26, 2016), is brought against the Defendants for failure to pay overtime wages and failure to provide meal periods and rest periods to its California flight attendants. Cathay Pacific Airways Ltd. is an international airline that employs flight attendants in California and New York. The Plaintiff is represented by: Brandon R. McKelvey, Esq. Alexander M. Medina, Esq. Timothy B. Nelson, Esq. MEDINA McKELVEY LLP 983 Reserve Dr. Roseville, CA 95678 Telephone: (916) 960-2211 Facsimile: (916) 742-5151 E-mail: brandon@medinamckelvey.com alex@medinamckelvey.com tim@medinamckelvey.com - and - Alfredo A. Bismonte, Esq. Ronald C. Finley, Esq. Kimberly P. Zapata, Esq. BECK, BISMONTE & FINLEY, LLP 150 Almaden Blvd., 10th Floor San Jose, CA 95113 Telephone: (408) 938-7900 Facsimile: (408) 938-0790 E-mail: rfinley@beckllp.com abismonte@beckllp.com kzapata@beckllp.com CHICAGO: McKenzie-Lopez Sues Over Red Light Ticket Ordinance ------------------------------------------------------------ Rose Bouboushian, writing for Courthouse News Service, reported that Chicagoans sued the city for passing an ordinance that will allow it to issue new tickets for red-light and speed violations that a judge declared void earlier this year. "Once upon a time, there was a mayor out of luck," the complaint begins, with a 14-line poem that accuses Mayor Rahm Emanuel of spending "his city's last buck." With Rumpelstiltskin on staff, "you can always balance the budget," the poem continues. Yet "this is no fairy tale," according to the class-action complaint filed on November 1, in Cook County Circuit Court. "It is just the latest chapter in the city of Chicago's scandal- plagued speed and red light camera program." Lead plaintiffs Delyn McKenzie-Lopez and Erica Lieschke claim that Chicago has collected "hundreds of millions of dollars in fines and penalties from individuals accused of speed and red light camera violations" over the past decade, through the 2003 automated traffic law and 2012 automated speed enforcement programs. "Because the city failed to properly notify these individuals of their alleged violations and illegally sped up the imposition of liability, a judge in the Circuit Court of Cook County recently held that those fines and penalties are illegal and void," the complaint states. That order, issued in February by Judge Kathleen Kennedy in Simpson v. City of Chicago, allegedly led the mayor to "spin straw into gold to raise revenue." That is, on Sept. 21, Emanuel signed into law "an ordinance that purports to allow it to issue new tickets and initiate new hearings that will create new liabilities, fines, and penalties based on tickets issued years ago that a judge has already ruled were void," November 1, lawsuit states. (Emphasis in original). But, according to McKenzie-Lopez and Lieschke, "it is abundantly clear that the [2016] ordinance was not passed to benefit the citizens of Chicago, but rather was a misguided and erroneous effort to make an end-run around the court's finding in the Simpson litigation that the liability, fines and penalties assessed in connection with past [automated traffic law, or ATL] and [automated speed enforcement, or ASE] violations are illegal and void." The plaintiffs scoff at the city's alleged attempt to create new liabilities for past offenses. "How, one might ask, can that occur in the United States of America?" the complaint asks. "The answer is that it cannot." The lawsuit continues, "While the mayor and the city council are free to change their own local laws to their benefit and at the expense of Chicagoans -- a practice which they have repeatedly and unabashedly engaged in since the filing of the Simpson suit -- they are, thankfully, still bound by the laws of the state of Illinois and the Constitutions of the state of Illinois and the United States." McKenzie-Lopez and Lieschke seek to represent a class of Chicagoans who did not receive a hearing or pay the fine before liability was determined for traffic tickets mailed from March 23, 2010 through May 14, 2015. Lieschke also seeks to represent all those who did not receive a hearing or pay the fine before liability was determined for a ticket mailed before March 23, 2010. McKenzie-Lopez says she paid fines for one of four alleged speed and red-light camera violations in 2014, while Lieschke says she paid for two red-light violations that allegedly occurred in 2007 and 2010. "Unfortunately for the city, in the real world Rumpelstiltskin cannot save the day," the lawsuit states. "That is because the Illinois Vehicle Code and the Illinois and United States Constitutions specifically prohibit the procedures the ordinance purports to authorize." The seven-count complaint asserts violations of home-rule authority, prohibition of adjudication of offenses, the 90-day notice provision, due process and equal protection, as well as a claim for illegal assessment of late-payment penalty. The plaintiffs seek declaratory and injunctive relief and a jury trial. They are represented by Jacie Zolna with Myron Cherry & Associates in Chicago. The city did not return a request for comment emailed November 2. COMMONWEALTH LAND TITLE: Skyscraper Investors File Class Action --------------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that a group of investors who purchased space in a Philadelphia skyscraper in a massive $152 million deal claim their broker and lender cheated them out of millions. Lead plaintiffs Dennis Dierenfield, William Gilmer and others say their broker Commonwealth Land Title Company cheated them out of millions when they purchased property at 1818 Market Street in Philadelphia in 2006. The class action was filed Oct. 26 in San Diego Superior Court. The class of less than 100 plaintiffs purchased property at the 40-story skyscraper, which houses business offices in downtown Philadelphia. They claim their lender, defendant Wells Fargo's predecessor Wachovia Mortgage, breached escrow instructions by tacking on a $9.6 million unauthorized mortgage loan which was used to pay out kickbacks, including $5.9 million in commission to an unlicensed real estate broker. According to the 39-page complaint, each plaintiff paid a proportionate share of $47.8 million as an equity contribution in what was supposed to be $132 million loan, putting down $478,000 each for a 1 percent ownership interest in the property. A final "buyer closing statement" provided by defendant TICOR Title Company of California to each of the plaintiffs does not show any payments inconsistent with the closing instructions, the plaintiffs claim. They also point out they did not "receive or authorize any other instructions that would be in conflict with the instructions." It wasn't until eight years later, in October 2014, that the plaintiffs say they discovered the defendants breached escrow instructions when closing on the massive property. They say they learned about the illegal and unauthorized loan used to pay kickbacks to promoters -- including the $5.9 million kickback to Triple Net Properties Realty, which the plaintiffs claim was not a licensed broker at the time of the transaction -- from attorneys involved in separate litigation related to the property who investigated and found three mortgages against the property and unauthorized distributions from escrow, the plaintiffs say. Triple Net Properties is not a party to the class action. The plaintiffs say TICOR "engaged in an atypical escrow arrangement" and disbursed the entirety of plaintiffs $33 million in deposits without delivering the required deed, "contrary to well-recognized and established industry practices and procedures for the protection of escrow clients such as plaintiffs." The money was wired to an account controlled by Triple Net Properties, where plaintiffs' deposits were combined with loan proceeds from three loans, establishing lender reserves and millions which were paid in undisclosed kickbacks, according to the complaint. That illegal third mortgage increased the total mortgage debt to 91 percent and reduced plaintiffs' equity, the plaintiffs say in their complaint. They also claim there were only supposed to be two loans totaling $132 million, but there were three loans disbursed to acquire the property for $152.8 million as determined from transfer tax stamps discovered by the plaintiffs' attorneys. The class action involves 11 causes of action including breach of escrow contract, implied contract, statutory duties applied to escrow companies and fiduciary duty of escrow company; constructive fraud; negligence; breach of mortgage agreement; aiding and abetting breach of fiduciary duty; breach of title policy; estoppel; and unfair business practices. The lawsuit is being brought on behalf of those who provided equity funds to directly or indirectly acquire tenant in common interests in the property in 2006. Attached to the complaint are 158 pages in exhibits. The plaintiffs seek unspecified damages, a temporary restraining order and preliminary and permanent injunctions to prevent the defendants from engaging in unlawful business practices. Defendants include Commonwealth Land Title Company and its insurance company, TICOR Title Company of California and Wells Fargo Bank. The plaintiffs are represented by Kenneth Catanzarite of Anaheim, California, who did not wish to comment on the case. Commonwealth Land Title Company did not return a phone request for comment. CRYPTSY: Owner's Ex-Wife Enters Into $1-Mil. Settlement ------------------------------------------------------- NewsBTC reports that there have been few new developments in the ongoing class action lawsuit against the now defunct cryptocurrency exchange, Cryptsy. The Bitcoin exchange based out of Florida stopped its operations earlier this year. At the time of shutting down, the platform allegedly had accommodated liabilities of over $10 million, of which $5 million belonged to the customers. The class action lawsuit was filed by disgruntled Cryptsy customers with an intention of recovering at least a portion of their lost funds. Until now, there wasn't much progress in the case as one of the defendants, Paul Vernon -- the founder of Cryptsy -- has been on the run. While Mr. Vernon is suspected to have fled to China to escape prosecution, it can't be said the same to his ex-wife who is said to have entered into a settlement with the plaintiffs. A recent legal document filed with the United States District Court for the Southern District of Florida reflects the class action settlement between Lorie Ann Nettles and Brandon Leidel, Michael Wilson and other plaintiffs who are part of the lawsuit. The settlement amount is estimated to be around $1 million. Nettles became part of the class action lawsuit after the plaintiffs concluded that she was a beneficiary of ill-gotten Cryptsy's customer funds in the form of a Palm Beach County waterfront property worth $1.375 million. The property in question was transferred to Nettles as part of a divorce settlement between her and Vernon. The preliminary settlement between Nettles and the plaintiffs was mediated by Judge Howard Tescher. Terms of the arguably unfair settlement require Nettles to hand over/liquidate the following assets whose proceeds will go towards the Settlement Fund. The assets include: 1. A diamond ring 2. The Palm Beach County property 3. All monies received from the sale of the cryptocurrency holdings 4. All monies received from the sale of personal property belonging to Nettles 5. All monies received from the sale of Infiniti QX60 automobile belonging to Nettles 6. Any other asset and monies obtained by Plaintiff's lead counsel The settlement terms allow the attorneys to charge a maximum of 33.33% of the total value of the settlement fund. In the case of attorneys' fees exceeding the above-mentioned percentage, they will be required to reduce it to meet the requirement. After handing over all the assets, Nettles will be left with just enough to provide basic living necessities for herself and her children. While the customers of Cryptsy are entitled to recover their lost funds, the whole exercise of the settlement between Nettles and Plaintiffs appears to go against natural justice, making one person a scapegoat for the whole fiasco. The Plaintiffs and the US Court seems to have forced this settlement out of desperation as they fear that they won't be able to recover the cryptocurrency and other related assets, right now in the possession of Vernon. Even though the terms of the settlement are still subject to final approval, it shouldn't be a problem as the court is expected to approve it. DE ALBA BAKERY: "Rodas" Seeks to Recover Unpaid Overtime Pay ------------------------------------------------------------ Adilio Arcadio Cortez Rodas, Juan L. Lozano Gonzalez, Joel Medina Torres, Jesus Munoz Gutierrez, Juan Carlos Obregon Garcia, Ulises Perales, Oscar Manuel Garcia Fuentes, Myriam E. Garcia Molina, Plaintiffs, v. Ana Beth De Alba, Uriel De Alba, Dora De Alba, De Alba Bakery Management LLC, De Alba Bakery Holdings Ltd, De Alba Foods, LLC, De Alba Bakery Cage, LLC, De Alba Bakery Closner, LLC, De Alba Bakery Conway, LLC, De Alba Bakery Pecan, LLC, De Alba Real Estate Company, LLC, Defendants, Case No. 7:16-CV-635 (S.D. Tex., November, 2016), seeks to recover unpaid overtime compensation, liquidated damages and attorney's fees under the Fair Labor Standards Act and Texas Contract Law, both as an individual action and as a collective action. The family-owned De Alba group of companies are into baked products and bakeries where plaintiffs were employed as cashiers, cooks and bakers in Defendants' stores. They all claim to be denied overtime pay. Plaintiff is represented by: Juan M. Gonzalez, Esq. LAW OFFICE OF JUAN M. GONZALEZ 8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 Tel: (210) 587-4002 Fax: (210) 587-4001 Email: jgonzalez@mgo-law.com - and - Javier N. Maldonado, Esq. Law Office of Javier N. Maldonado, PC 8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 Tel: (210) 277-1603 Fax: (210) 587-4001 Email: jmaldonado.law@gmail.com DORIAN B LASAINE: "Wilson" Class Suit Dismissed Without Prejudice ----------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on October 28, 2016, in the case entitled Kathleen M. Wilson v. Dorian B. LaSaine, et al., Case No. 1:14-cv-03599 (N.D. Ill.), relating to a hearing held before the Honorable James B. Zagel. The minute entry states that pursuant to the parties' joint stipulation for dismissal, the matter is dismissed in its entirety without prejudice. The civil case is terminated. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=3FCzaa17 EF INTERNATIONAL: Approval of "Russell" Case Settlement Upheld -------------------------------------------------------------- Presiding Justice Frances Rothschild of the Court of Appeals of California, Second District, Division One, affirmed the trial court's approval of settlement in the appealed case entitled, NADINE RUSSELL, Plaintiff and Respondent, v. EF INTERNATIONAL LANGUAGE SCHOOLS, INC., Defendant and Respondent, ANDREA JESSE et al. Objectors and Appellants, No. B263612 (Cal. Ct. App.) EF International Schools, Inc. employs teachers who provide English language instruction to foreign students. Most of its classes are scheduled to last 80 minutes. Teachers were paid a combination of a piece work rate and an hourly rate. Teachers are also paid for rest breaks, calculated at the rate of 3.33 minutes of break time for each 80-minute class taught--the equivalent of 10 minutes per four hours of class time. EF International's employee handbook provides that employees are entitled to overtime pay at the rate of one and one-half the regular pay rate for work in excess of either eight hours in one day or 40 hours in one week. On March 23, 2012, Nadine Russell filed a putative class action complaint against EF International. The complaint alleged the following causes of action: (1) Failure to pay employees for all hours worked under California law (2) Waiting time penalties; (3) Failure to provide accurate wage statements; (4) Failure to indemnify; (5) Unfair Competition; and (6) Civil penalties under the Private Attorneys General Act of 2004. The alleged class consisted of defendant's hourly teachers employed since March 23, 2008. During mediation, the parties reached an agreement in principle to settle the matter. At that time, the parties expected that there were about 610 class members. About 11 months later, in January 2014, the parties executed a written settlement agreement. Under the agreement, defendant agreed to pay a maximum amount of $575,000, up to one-third of which would be paid to plaintiff's attorneys. The agreement allocated approximately $18,000 for litigation costs and claims administration expenses. Plaintiff would receive a reasonable enhancement award of $15,000, and $1,000 was designated as PAGA penalties. The total amount available to the class was approximately $349,000. Each class member who submitted a valid claim would receive a pro rata share of the available settlement amount based upon his or her gross wages during the class period. As part of the settlement, the parties stipulated to the filing of a first amended complaint. The new pleading re-alleged the original six causes of action and added two more: (1) Failure to pay employees for all hours worked under the Fair Labor Standards Act and (2) Failure to provide meal and rest periods. The settlement agreement included a general release by the class members of claims related to the allegations asserted in the first amended complaint. The release applies to all such claims arising at any point prior to the court's preliminary approval of the Settlement. On January 22, 2014, plaintiff filed a motion for preliminary approval of the settlement. While the motion for preliminary approval was pending, Andrea Jesse filed a putative class action complaint against defendant in San Francisco Superior Court alleging violations of wage and hour laws. At that time, neither Jesse nor her counsel, Michael Sachs, were aware of plaintiff's action. On March 21, 2014, the court granted preliminary approval of the settlement. Approximately 67 percent of the class -- 336 members submitted claims. Based on the claims made, the payments would range from $7.48 to $6,144.44, and the average settlement payment would be $879.93. One person opted out of the class and 11 class members, including Jesse, objected to the settlement. The objectors, whom Sachs represented, objected to the settlement. Plaintiff, with defendant's support, filed a response to the objections and moved for final approval of the settlement. After a hearing, the court overruled the objections and approved the settlement, finding that it was entered into in good faith and was fair, reasonable and adequate. After judgment was entered, the objectors appealed. Presiding Justice Rothschild affirmed the trial court's approval of the settlement declaring that the approval of the settlement was not done in abuse of discretion. Presiding Justice Rothschild concluded that the record before the trial court was sufficient to allow counsel and the court to act intelligently in evaluating the settlement and thus a presumption of fairness is therefore appropriate in the case. A copy of Presiding Justice Rothschild's opinion dated October 27, 2016, is available at https://goo.gl/NLgnYQ from Leagle.com. David J. Becht -- dbecht@ansbb.com -- Michael Sachs -- msachs@adamsnye.com -- Mythily Sivarajah -- msivarajah@adamsnyeemployment.com -- at Adams|Nye|Becht, for Objectors and Appellants Andrea Jesse et al Christian J. Rowley -- crowley@seyfarth.com -- at Seyfarth Shaw, for Defendant and Respondent EF International Language Schools, Inc. David Spivak -- david@spivaklaw.com -- Louis Benowitz -- at The Spivak Law Firm, for Plaintiff and Respondent Nadine Russell The Court of Appeals of California, Second District, Division One, panel consists of Presiding Justice Frances Rothschild, and Justices Jeffrey W. Johnson and Elwood Lui. FARMERS GROUP: Faces "Frias" Suit in Cal. Over Breach of Contract ----------------------------------------------------------------- Ismael Frias, on behalf of himself and all others similarly situated v. Farmers Group, Inc., Fire Insurance Exchange, Midcentury Insurance Company, and Does 1-100, inclusive, Case No. BC638626 (Cal. Super. Ct., October 26, 2016), is a class action for breach of contract, bad faith, and unfair business practices against the Defendants, arising out of the improper handling of wildfire smoke damage claims, and utilization of an unlawful $5,000.00 sublimit for claims resulting from wild fire smoke, soot, char, ash, and odor damage. The Defendants operate an insurance company in Los Angeles, California. The Plaintiff is represented by: Joshua H. Haffner, Esq Levi M. Plesset, Esq. HAFFNER LA WPC 445 S. Figueroa Street, Suite 2325 Los Angeles, CA 90071 Telephone: (213) 514-5681 Facsimile: (213) 514-5682 E-mail: Ghh@haffuer1awyers.com lp@haffuerlawyers.com FLAGSHIP FACILITY: "Bradford" Seeks Unpaid Wages Under Labor Code ----------------------------------------------------------------- GREGORY A. BRADFORD, individually and on behalf of all others similarly situated, the Plaintiffs, v. FLAGSHIP FACILITY SERVICES, INC., a California Corporation, and DOES 1-50, inclusive, the Defendants, Case No. 18CV301652 (Cal. Super. Ct., Oct. 26, 2016), seeks to recover unpaid wages pursuant to the California Labor Code. The Defendants allegedly failed to pay Plaintiff and the Class for time spent working yet were automatically deducted 30 minutes of time as if a meal period was taken and not paid for this time, including regular hours and for hours Plaintiff and Class Members worked 19 in excess of eight hours per day and/or 40 hours per week, and double time wages for work over 12 hours in a day. Flagship Facility provides facilities maintenance and cleaning services. The company's services include floor care, event preparation and cleanup. The Plaintiffs are represented by: James R. Hawkins, Esq. Gregory Mauro, Esq. JAMES HAWKINS APLC 9RRO Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387 7200 Facsimile: (949) 387 6676 E-mail: James@jameshawkinsaplc.com Greg@jameshawkinsaplc.com FLINT, MI: Judge Allows Water Crisis Class Action to Proceed ------------------------------------------------------------ David Eggert, writing for The Associated Press, reports that a Michigan judge ruled in favor of Flint residents who filed a class-action lawsuit against the state and state officials over the city's lead-contaminated water, rejecting a motion to dismiss the case entirely. The ruling made public on Oct. 27 is the first major decision to be issued in a slew of civil suits stemming from Flint's ongoing water emergency. It lets the plaintiffs proceed under two constitutional claims: a violation of their right to "bodily integrity" and inverse condemnation, by which they are seeking compensation for plumbing damage and reduced property values. The suit filed in January alleges that state officials caused and covered up the growing public health threat posed by tap water that was improperly treated after a 2014 switch to the Flint River while the city of nearly 1000,000 people was under state management, leaching toxic lead from aging pipes into the supply and exposing people to deadly Legionella bacteria. Court of Claims Judge Mark Boonstra said on Oct. 26 that the six residents' allegations, if proven, would be "so arbitrary, in a constitutional sense, as to shock the conscience." State agencies and officials are generally immune from legal liability for exercising governmental functions. But Judge Boonstra concluded that financial damages can be sought for alleged violations of the state constitution. He added that because Gov. Rick Snyder and two state-appointed emergency managers were sued in their official capacity, the "state alone remains accountable for any resulting damage liability." "It's a breakthrough," said Michael Pitt, a Royal Oak-based lawyer for the residents in the case that could grow to 6,000 plaintiffs if class-action status is granted. "We're very, very gratified. It's overall favorable. . . . Hopefully things will start to move at a much quicker pace." Judge Boonstra did throw out two other claims against the defendants, who include Snyder, former Flint emergency managers Darnell Earley and Jerry Ambrose, the state of Michigan, and the Departments of Environmental Quality and Health and Human Services. He rejected an argument that the counts against the managers should be dismissed because the Court of Claims handles cases only against state and they were local officials. Earley and Ambrose "operated as officers of the state," Judge Boonstra said. The state could appeal. A spokeswoman for Michigan Attorney General Bill Schuette referred questions to the governor, whose spokeswoman declined to comment. So far, the crisis has led to criminal charges against eight current or former state employees and a Flint water official. As of earlier in October, the state was defending itself against 12 Flint-related lawsuits and had received more than 2,000 notices of intent to sue. Mr. Schuette has hinted that charges against higher-ranking officials may follow. He also has sued two water engineering companies for negligence. Judge Boonstra was appointed to the state Court of Appeals by Snyder in 2012 and has subsequently been elected twice. He and three appellate judges also serve on the Court of Claims. GLASS NICKEL: Faces "Rogers-Coxhead" Suit Over Failure to Pay OT ---------------------------------------------------------------- Chad Rogers-Coxhead and Shaun Taliaferro, individually and on behalf of all those similarly situated v. Glass Nickel Pizzza Co. d/b/a Madison's Dough Boys, Inc., Case No. 3:16-cv-00706 (W.D. Wis., October 26, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Glass Nickel Pizzza Co. owns and operates a restaurant located at 2916 Atwood Avenue, Madison, Wisconsin. The Plaintiff is represented by: David C. Zoeller, Esq. Caitlin M. Madden, Esq. HAWKS QUINDEL, S.C. Post Office Box 2155 Madison, WI 53701-2155 Telephone: (608) 257-0040 Facsimile: (608) 256-0236 E-mail: dzoeller@hq-law.com cmadden@hq-law.com GO VENTURES: Fails to Pay Employees OT, "Vernon" Suit Claims ------------------------------------------------------------ Kimberly Vernon, individually and on behalf of all others similarly situated v. Go Ventures, LLC, Go Ventures-Rolly, LLC, Tangaroo Creek, Drake Enterprises, LLC, Drake Enterprises-Holly, LLC, Greg Taylor & Wynn Taylor, Case No. 2:16-cv-13818-GAD-EAS (E.D. Mich., October 26, 2016), is brought against the Defendants for failure pay overtime wages for work over 40 hours per week. The Defendants own and operate numerous campgrounds and other lodging facilities in multiple states, including, without, limitation, Michigan, Tennessee, New York, Alabama, and Missouri. The Plaintiff is represented by: David A. Kotwicki, Esq. DAVID A. KOTWICKI P.L.C. 48000 Van Dyke Shelby Township, MI 48317 Telephone: (586) 739-9888 Facsimile: (586) 739-9892 E-mail: dk@michemplaw.com GOODLIFE: Employees' Class Action Seeks $60MM in Compensation ------------------------------------------------------------- Hank Daniszewski, writing for The London Free Press, reports that the sleek new headquarters of GoodLife Fitness include a coffee bar, employee fitness centre and meeting rooms named for Jimmy Buffett songs. The company's website boasts of its status as one of the country's 50 best managed companies and 50 most engaged workplaces. David Patchell-Evans -- who built GoodLife from a single gym in 1979 to Canada's biggest fitness chain -- said in an interview in September that "Canadian values" are the secret to the company's success. "Our company is run with Canadian values -- caring is the No. 1 criteria -- that's not the criteria of our (American) competitors. They run like (Donald) Trump." But with the paint barely dry on its new west London headquarters, GoodLife is cutting 60 jobs at its head office and 225 positions at clubs across Canada. One staffer facing layoff said he's offended chief executive Patchell-Evans didn't break the news personally, noting some workers found out by e-mail. Staff facing layoff include five pregnant women, people with young families who had just bought homes and older workers unlikely to find other work, said the employee, who asked not to be identified. The atmosphere among staff is "anxious and uneasy," the staffer said. "Not knowing what's next . . . . But knowing once we're no longer useful to the company, and we have served their purpose, we're gone." The layoffs come about a month after the company moved into the new 60,000-square-foot headquarters on Proudfoot Lane. About 300 staff moved into the building built to accommodate 500. GoodLife Fitness has told employees it is installing a new management software system in its clubs next spring that will make some jobs redundant. Jane Riddell, the company's chief operating officer, said the company is working to transfer some affected employees to other jobs, including new "senior motivator" posts at the clubs. "Our hope is that we can retain many of these great employees in this role, or in one of the hundreds of other available positions." Mr. Patchell-Evans said the chain plans to expand to 1,000 clubs while fending off competition from U.S. chains, such as Planet Fitness and Anytime Fitness, entering the Canadian market. GoodLife also has to contend with a potential class-action suit. The suit, filed by Toronto law firm Goldblatt Partners, seeks $60 million in compensation for current and former GoodLife employees, especially personal trainers, who have worked at Ontario clubs since October 2014. The suit alleges GoodLife "required or permitted its employees to work many additional unpaid hours beyond those for which they were scheduled . . . to meet their sales targets and complete the duties required of them." Ms. Riddell said GoodLife is in the process of reviewing and assessing the allegations to prepare a defense. "At GoodLife, one of our key priorities is providing a fair and supportive work environment for all of our employees. We disagree with the allegations outlined in this claim." The suit must be certified by a court before it can proceed, a process that likely will take at least six months. Charles Sinclair, one of the lawyers handling the case, said Ontario law requires employers to record and pay employees for overtime work, even if it was done voluntarily. But in many non-union shops, "there is a culture in place where there's an expectation they (employees) work extra time for which they don't get paid." Goldblatt Partners has filed similar class-action suits against other large employers, including Scotiabank that settled out of court. GoodLife Fitness is dealing with a union drive at clubs in the Toronto area. About 650 personal trainers at Toronto-area clubs voted in July to join Workers United Canada. More recently, some workers in GoodLife's Ajax clubs followed suit, a union official said. GROVETOWN, GA: Feb. 2017 Hearing Set in Water Bill Class Action --------------------------------------------------------------- Alma McCarty, writing for WRDW/WAGT, reports that on Oct. 27, a lawsuit filed against the City of Grovetown moves forward, slowly but surely, according to attorneys. People in the city are trying to make this a class action suit, after alleging illegal water billing practices. Both sides headed to the Oct. 27 scheduling conference in Richmond County Superior Court, to figure out a timeline. The next hearing will most likely be in February 2017. "We're alleging some serious wrongs and the city needs to come up with a game plan," said attorney Jeffery Piel, "We believe everyone in the city of Grovetown was affected." Because of that, Mr. Piel says they're looking to file a class action suit. "What we're saying is everyone in the city of Grovetown -- we're going to resolve every dispute you may have with the water department in one big mass action," he explained. The main complaints stem from water billing, and over-billing problems. So, if they get the go-ahead by the judge, the attorneys will reach out to every home in the city eligible for damages. "I don't get nearly the number of complaints I was receiving three and four months ago," said Mayor Gary Jones. The city brought in the Georgia Municipal Association to look over the billing process. GMA says this was the first time they've reviewed that specific process for a city. At the conclusion of the review, they had some recommendations. "We not only made some changes as far as procedural and paperwork wise -- to be a little bit more uniform -- but we've also ordered 2,200 radio frequency water meters," said Mr. Jones. About half the city already has the new meters. The cost for the final batch is just under 400 thousand dollars, to be installed starting January first. That process will take about a year to a year and a half to complete. GRUNLEY CONSTRUCTION: Hernandez-Rodriguez Sues Over Unpaid OT ------------------------------------------------------------- Victor Hernandez-Rodriguez and David Vargas-Ledezma, Plaintiffs, on behalf of themselves and all similarly-situated individuals v. Grunley Construction Co., Inc., C.R. Calderon Construction, Inc., Pedro & Pablo's Construction Company., Inc. and Pedro Esteban Gonzalez-Amaya, Defendants, Case No. 1:16-cv-02167, (D.C., October 31, 2016), seeks to recover overtime pay and damages under the Fair Labor Standards Act, District of Columbia Minimum Wage Act, District of Columbia Wage Payment and Collection Law and the D.C. Workplace Fraud Act. Defendants are construction contractors who have employed the Plaintiffs as carpenters at one time for their construction work. Plaintiffs claim to have been misclassified as independent contractors, thus denied overtime wages. Plaintiff is represented by: Andrew Hass, Esq. D.C. EMPLOYMENT JUSTICE CENTER 1413 K St. NW, 5th Floor Washington, DC 20005 Phone: (202) 645-6356 Fax: (202) 828-9190 Email: ahass@dcejc.org - and - Virginia Diamond, Esq. 1911 Virginia Ave., McLean, VA 22101 Phone: 703-627-5510 Email: diamondvir@aol.com HOOMAN AUTOMOTIVE: "Soto" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------------ Antonio Soto Jr. v. Hooman Automotive, Inc., d/b/a HNL Automotive Inc., Hooman Chrysler Dodge Jeep Ram, Hooman Chevrolet, Hooman Acura, Hooman Nissan, Hooman Hyundai, and Does 1 through 16 50, Inclusive, Case No. BC638374 (Cal. Super. Ct., October 26, 2016), seeks to recover unpaid wages, penalties, liquidated damages, injunctive and other equitable relief, interest and reasonable attorneys' fees and costs pursuant to the Fair Labor Standards Act. The Defendants own, operate and manage multiple retail stores in California. The Plaintiff is represented by: Zachary Cantor, Esq. Shalini Dogra, Esq. CANTOR LAW 1112 Montana Avenue, Ste C Santa Monica, CA 90403 Telephone: (310) 393-6620 Facsimile: (310) 393-6680 E-mail: info@cantorlawyers.com - and - Rodney Mesriani, Esq. MESRIANI LAW GROUP 5723 Melrose Ave, Ste 202 Los Angeles, CA 90038 Telephone: (310) 826-6300 Facsimile: (310) 820-1258 HYUNDAI MOTOR: Settles Fuel Economy Claims with 33 States --------------------------------------------------------- The Associated Press reports that South Korean automakers Hyundai Motor Co. and Kia Motors Corp. will pay $41.2 million to 33 states and the District of Columbia to settle an investigation into their fuel economy ratings. The fine is the latest in the ongoing fallout from misstated mileage numbers on more than 1.2 million vehicles in the U.S. According to the Virginia Attorney General's Office, Virginia will receive $1,181.999.07. Look to the right of your screen or scroll below to see the statement about the settlement from Virginia Attorney General Mark Herring. In 2012, Hyundai and Kia restated the mileage on one-quarter of their 2011-2013 model year vehicles after the U.S. Environmental Protection Agency questioned their mileage numbers. The companies deny they violated the law, and instead cite lack of clarity in EPA test procedures. The companies paid $300 million in penalties to the U.S. government in 2014. They say they have also reimbursed around 75 percent of customers. A class action lawsuit remains subject to an ongoing appeal. ILLINOIS, USA: Court Okays Prelim. Settlement in "Morales" Suit --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on October 27, 2016, in the case captioned Moises Morales, et al. v. Adam Monreal, et al., Case No. 1:13-cv-07572 (N.D. Ill.), relating to a hearing held before the Honorable Amy J. St. Eve. The minute entry states that: -- Status hearing was held on October 27, 2016; -- Joint motion for class certification and joint motion for preliminary approval of proposed settlement agreement are granted; -- Motion for final approval will be filed by January 13, 2017; and -- Fairness hearing is set for January 25, 2017, at 8:30 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=FMq8I3mb IOOF: Class Action Can't Proceed, Victorian Supreme Court Rules --------------------------------------------------------------- The Australian Associated Press reports that a proposed class action against financial services company IOOF has been prohibited by the Victorian Supreme Court. Maurice Blackburn Lawyers had planned to pursue a class action on behalf of tens of thousands of IOOF shareholders over the company's handling of allegations of corporate misconduct. IOOF shares dropped 13 per cent in June 2015 when allegations were raised by the media of problems with the compliance culture of its research team. The company said the issues had been dealt with appropriately at the time, but Maurice Blackburn claimed IOOF breached its continuous disclosure obligations by not previously informing the market of the issues. The Victorian Supreme Court on Oct. 28 issued orders prohibiting Maurice Blackburn from proceeding with the class action. "We have always maintained that the proposed class action was misconceived both factually and at law," IOOF managing director Christopher Kelaher said. Maurice Blackburn principal Jacob Varghese said the orders highlight extreme inadequacies in laws related to the use of information from whistleblowers by class action lawyers. JOHN HOPKINS HOSPITAL: Families of Coal Miners File Class Action ---------------------------------------------------------------- Daniel W. Staples, writing for Courthouse News Service, reported that after shutting down its "black lung" program more than a year ago, Johns Hopkins Hospital is under fire for claims it didn't follow federal guidelines in determining hundreds of coal miners were not qualified for disability benefits. The estates of Michael Steven Day Sr. and Junior McCoy Barr filed a class-action lawsuit in Baltimore against Johns Hopkins University, its hospital and Dr. Paul Wheeler in Baltimore City Circuit Court on October 28, claiming doctors skirted the law to deny benefits to miners. The alleged improprieties by Johns Hopkins Imaging doctors was uncovered in a 2013 report by the Center for Public Integrity finding that Wheeler deviated from the International Labour Organization's standards for determining if coal miners suffered from coal worker's pneumoconiosis, or CWP. CWP is also known as "black lung disease," court records show. Johns Hopkins established its "black lung program" to help determine the presence or absence of CWP in coal miners seeking benefits under the Federal Coal Mine Health and Safety Act of 1969. Johns Hopkins shut down its black-lung unit shortly after the Center for Public Integrity's Pulitzer Prize-winning series that uncovered improprieties of the doctors reading chest x-rays used to determine if sufferers of the disease qualified for disability benefits. "The black lung program failed to identify black lung disease in hundreds of coal workers, many of which were denied benefits as a direct and proximate result," according to the 31-page lawsuit. The estates of Day and Barr claim that Johns Hopkins and Wheeler "were paid by employer coal companies" for their opinions. In an interview with a reporter for the Center for Public Integrity, Wheeler allegedly admitted that the standards for B- readers, radiological experts certified to interpret chest x-rays for the presence of CWP, set by the International Labour Organization, or ILO, have "some quality issues." Wheeler also admitted during the interview that "he has intentionally disregarded the ILO classification system, due to his beliefs as to what the law should be," according to the lawsuit, which quoted Wheeler as saying, "If you think it's appropriate for somebody with sarcoid to be paid for [black lung] because he has masses and nodules - do you think that's appropriate? I don't think so." According to the estate plaintiffs, Wheeler's statement flies in the face of the standards set by the ILO. Wheeler reportedly told the Center for Public Integrity, "I don't care about the law." The doctor's determinations were used to deny benefits in cases before administrative law judges, according to the complaint. Regulations say that if two or more opinions are in conflict, the qualifications of the physicians interpreting the x-rays can be taken into consideration. According to the lawsuit, the opinions of Wheeler, who obtained his undergraduate and medical degree from Harvard University and Medical School, often outweighed other doctors' interpretations. "By intentionally deviating from the ILO system, and substituting non-conforming standards for x-ray findings, Johns Hopkins and Dr. Wheeler were successful on denying lawfully earned federal benefits to injured coal miners," the complaint states. Michael Steven Day Sr. and Junior McCoy Barr had both worked for 33 years as coal miners in West Virginia. They were both initially awarded benefits under the law, according to their estates, but their benefit determinations were overturned after readings by Wheeler and a fellow black-lung unit physician. Following Day's death in 2014, an autopsy concluded he suffered from CWP and he was posthumously awarded benefits. Barr's autopsy after his 2011 death also concluded that he suffered from simple CWP, but his estate never recovered benefits. Day and Barr's estates seek at least $75,000, including punitive damages, for claims of fraud, interference with economic interests, RICO violations and misrepresentation. Jonathan Nace of the Washington firm Nidel Law, who represents the plaintiffs, was not immediately available for comment on November 1. A spokesman for Johns Hopkins did not immediately respond on November 1, to an email request for comment. JUDICIAL CORRECTION: Thurman's Bid for Transfer Denied as Moot -------------------------------------------------------------- The Hon. R. David Proctor entered an order in the lawsuit entitled LINDA THURMAN, et al. v. JUDICIAL CORRECTION SERVICES, INC., et al., Case No. 2:12-cv-00724-RDP-TFM (M.D. Ala.), denying as moot the Plaintiffs' motion for transfer. "The court held a hearing on the Motion for Transfer (Doc. # 144) on October 28, 2016. During that hearing, the court also discussed the appropriate schedule for deciding the outstanding dispositive motions and class certification motion. For the reasons discussed on the record during the hearing, and by agreement of the parties, the Motion for Transfer (Doc. # 144) is DENIED AS MOOT," Judge Proctor wrote in the Order. Furthermore, Judge Proctor held that the Plaintiffs' motion for class certification is administratively terminated, subject to re- filing after the Court rules on the outstanding dispositive motions. The Plaintiffs have asserted that the dispositive motions in this case should be decided before the class certification motion, Judge Proctor stated. The Court agrees with this proposed order of operations and recognizes that the legal landscape of this case could be quite different once the dispositive motions are decided. Moreover, according to the Order, that change in landscape could affect the arguments for class certification and the scope of the proposed class. Finally, the parties in this case and the parties in Ray, et al. v. Judicial Correction Services, Inc., et al., Case Number 2:12-cv-02819-RDP (N.D. Ala.), have acknowledged that the proposed classes in these cases overlap, and rulings on the dispositive motions and any revisions to class definitions may help resolve the overlap, Judge Proctor noted. Therefore, the Court concludes that the most prudent course is for the class certification motion to be re-filed after the Court addresses the dispositive motions. "In light of the administrative termination of Document 92, the deadline for filing class certification motions is hereby EXTENDED and SHALL be set by a later order," Judge Proctor opined. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=lhZkrQlT KOCH MEAT: "Nicks" Complaint Survives Dismissal Bid --------------------------------------------------- District Judge Amy J. St. Eve of the Northern District of Illinois, Eastern Division, denied defendant's motion to dismiss, in the case JIMMY R. NICKS and JAMES EARL PATRICK, individually and on behalf of all persons similarly situated, Plaintiffs, v. KOCH MEAT CO., INC., d/b/a KOCH FOODS, KOCH FOODS OF MISSISSIPPI, LLC, and JET POULTRY SERVICES, INC., Defendants, No. 16-cv-6446 (N.D. Ill.) Plaintiffs Jimmy R. Nicks and James Earl Patrick are Mississippi residents who were previously employed by defendants Koch Meat Co., Inc. d/b/a Koch Foods (Koch Meat), Koch Foods of Mississippi, LLC (Koch Foods of Mississippi), and JET Poultry Services, Inc. (JET), to catch and cage chickens as members of a live-haul crew. Koch defendants operate one of the largest vertically integrated poultry processors in the United States, with locations across Alabama, Georgia, Illinois, Mississippi, Ohio and Tennessee. As part of their enterprise, the Koch defendants engage third-party contractors such as JET to employ chicken catchers such as Nicks and Patrick for their live-haul crews. According to plaintiffs, all 3 defendants play a role in hiring live-haul crews, supervising live-haul crews, and determining and recording the piece rate and number of loads captured in order to compensate the live-haul crews. Plaintiffs alleged that defendants paid them and the Fair Labor Standards Act (FLSA) Collective a piece rate basis, regardless of the number of hours worked, and failed to pay overtime as required by federal law. Plaintiffs brought a claim for overtime wage violations against the Koch defendants and JET as joint employers under the FLSA. Plaintiffs brought the FLSA collective action on behalf of all individuals employed by Koch Meat, Koch Foods, and/or JET as members of live-haul, chicken catching crews in the United States, and who were paid on a piece rate and did not receive overtime compensation from the 3 years preceding the date of the filing of the complaint. JET moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and/or improper venue. The Koch defendants separately moved to dismiss the complaint on similar grounds. In the alternative to dismissal, all defendants request a transfer to the Southern District of Mississippi pursuant to 28 U.S.C. Sections 1404 or 1406. Judge St. Eve denied the Koch defendants' motion to dismiss, without prejudice to refile the same after conducting the limited jurisdictional and venue discovery. The court permits limited venue discovery concerning who sets and/or controls the relevant wage and employment policies for individual chicken catchers in Mississippi. Plaintiffs may issue 3 targeted interrogatories on the topic to each of the Koch defendants, in addition to examining Lance Buckert concerning paragraph 4 of his supplemental declaration. Plaintiffs must issue the written interrogatories by November 1, 2016, and the Koch defendants must provide written responses by November 11, 2016. The parties must complete the Buckert oral examination by November 18, 2016. Judge St. Eve observed that the plaintiffs are suing Koch Meat Co., Inc., d/b/a Koch Foods. Lance Buckert, the Chief Financial Officer of Koch Foods Incorporated with personal knowledge of the assets and operations of its subsidiaries, attested that Koch Foods Incorporated is the sole member of Koch Foods of Mississippi, LLC and is the sole stockholder of Koch Meat Co., Inc. Koch Foods, Inc. not Koch Meat likewise appears in many of plaintiffs' referenced exhibits. Given this ambiguity, the court permits plaintiffs to take the deposition of Lance Buckert concerning paragraphs 2-3 of his initial declaration. Plaintiffs may inquire about the assets and operations of Koch Foods of Mississippi and/or Koch Farms of Mississippi as related to an alter ego showing. A copy of Judge St. Eve's memorandum opinion and order dated October 27, 2016, is available at https://goo.gl/zMu5e2 from Leagle.com. Plaintiffs, represented by Sarah Rebecca Schalman-bergen -- sschalman-bergen@bm.net -- Alexandra Koropey Piazza -- apiazza@bm.net -- Camille Fundora -- cfundora@bm.net -- Shanon J. Carson -- scarson@bm.net -- at Berger & Montague, P.C.; David Alan Hughes -- at Hardin & Hughes, LLP; Katrina Carroll -- kcarroll@litedepalma.com -- Kyle Alan Shamberg -- kshamberg@litedepalma.com -- at Lite DePalma Greenberg LLC Koch Meat Co., Inc. and Koch Foods of Mississippi, LLC, Defendants, represented by Stephen Novack -- snovack@novackmacey.com -- Andrew P. Shelby -- ashelby@novackmacey.com -- Courtney D Tedrowe -- cdt@novackmacey.com -- at Novack and Macey LLP; Russell W. Gray -- rgray@bakerdonelson.com -- Scott W. Pedigo -- spedigo@bakerdonelson.com -- at Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. J.E.T. Poultry Services, Inc., Defendant, represented by Adam Stone -- astone@joneswalker.com -- Kaytie M. Pickett -- kpickett@joneswalker.com -- at Jones Walker LLP; Erin D. Fowler -- ef@franczek.com -- Staci Ketay Rotman -- at Franczek Radelet P.C. LABOR READY: "Jablonski" Suit Seeks Compensation Under FLSA ---------------------------------------------------------- KAREN JABLONSKI, on behalf of herself and others similarly situated, the Plaintiff, v. LABOR READY SOUTHEAST, INC., Defendant, Case No. 1:16-cv-00330-MW-GRJ (N.D. Fla., Oct. 26, 2016), seeks to recover compensatory and liquidated damages, attorney fees, and other relief from Defendant for violations of the Fair Labor Standards Act (FLSA). Around August, 2013, Defendant hired Plaintiff to work in payroll. She was later promoted to the position of Customer Service Representative. The Plaintiff was paid on an hourly basis pursuant to a scheme under which when she exceeded 40 hours in a week, additional hours worked that week would be taken away from her schedule the following week and she would be paid at her regular rate of pay instead of at a rate of time and one-half for her overtime work. Despite working at the direction and knowledge of Defendant, Plaintiff and those similarly situated were not paid at an overtime rate of pay when they worked overtime. The Defendant was a Washington corporation which provided temporary staffing services with multiple locations including an agency in Alachua County, Florida and it is that agency where Plaintiff was employed. The Plaintiff is represented by: Matthew W. Birk, Esq. THE LAW OFFICE OF MATTHEW BIRK Gainesville, FL 32601 Telephone: (352) 244 2069 Facsimile: (352) 372 3464 E-mail: mbirk@gainesvilleemploymentlaw.com LG ELECTRONICS: Faces Class Action Over Energy-Saving Features -------------------------------------------------------------- According to HD Guru's Gregg Tarr, the Natural Resources Defense Council's (NRDC) recent report citing LG, Samsung and Vizio for allegedly using more energy than is stated on Energy Guide labeling and advertising, has started influencing a series of class-action lawsuits from disgruntled customers. Three recent cases have been filed against the companies following the NRDC report issued on Sept. 21, 2016 stating that the International Electrotechnical Commission (IEC)-standardized test that Department of Energy (DOE) uses in its test procedure is not representative of how people view programming. The NRDC alleged that "Samsung and LG appear to be exploiting these anomalies to achieve lower energy use levels during the test than in real-world viewing." LG and Samsung TVs, specifically, were said to use energy-saving motion-dimming functions that automatically darken the screen during frequent scene changes or fast-action scenes. Pat Remick, an NRDC spokesperson, told HD Guru: "We have no association with any class action lawsuits or the parties who filed them. Nor do we have a financial or legal stake in them. However, we completely stand behind our research and will continue our advocacy efforts to update the Department of Energy's TV testing method and improve the energy efficiency of new TVs. "We recently responded to the Department of Energy's request for information regarding improvements to the TV testing method, and hope that our suggested changes are made as they are consistent with the recommendations made in the report," Mr. Remick continued. "To the extent television energy efficiency is improved as a result of the outcome of this or a similar lawsuit, such result would be consistent with NRDC's advocacy goals." Although Vizio's displays don't use a motion-dimming system, the environmental group said Vizio, like LG and Samsung, use an energy-saving automatic brightness control that adjusts picture brightness to suit ambient viewing conditions. But those systems are defeated by displays from all three brands without the knowledge of the user when the viewer adjusts picture settings. In the process, this turns off the default Eco Mode the displays are set to out of the box. Following the report's release, class-action lawsuits have emerged against each of the three companies named by the NRDC. According to advertising watchdog web site Truth In Advertising, one of the most recent was filed Oct. 12, 2016 against Vizio for allegedly marketing its televisions as "energy efficient" and "Energy Star" certified when, in reality, software automatically disables energy-saving features whenever picture settings are changed. The complaint alleges this was not adequately disclosed to consumers, causing them to incur additional charges on their electricity bills. The lawsuit was filed by James Unice in U.S. District Court for the Western District of Pennsylvania against Vizio, allegedly after Unice suffered damages from being misled into purchasing a falsely advertised television. Unice is seeking a trial by jury and an order preventing Vizio from destroying any records that could serve as evidence, statutory damages, punitive damages, compensatory damages, restitution, declaratory and injunctive relief, a corrective advertising campaign, court costs and any further relief the court grants. A similar complaint was filed by Andrew Schwartz, a Cook County, Ill., resident, who alleges Vizio "falsely and misleadingly" concealed the fact that changing picture settings caused its displays to surpass Energy Guide energy consumption labeling "thereby increasing purchasers' electricity costs." A representative for Vizio did not return HD Guru's requests for comment. The law firm handling the case -- Lemberg Law, LLC in Wilton, Conn. -- also filed similar class-action complaints against LG and Samsung. Earlier in October, a claim was made by Timothy Coghlan against Samsung in U.S. District Court in Chicago (Case No. 16-cv-9658, N. D. IL) for allegedly "misleadingly concealing that its televisions use more energy than the Energy Guide labeling and advertising." Mr. Coughlan alleges that energy-saving features, such as an automatic brightness control (ABC) on the Samsung TV he purchased are disabled "without warning whenever the factory-default picture settings are changed," the complaint states. The complaint also picks up on the NRDC's suggestion that Samsung and LG allegedly use energy savings features that were "primarily designed as a method by which to circumvent the Department of Energy testing video used on all Defendant's televisions," the complaint against Samsung states. Mr. Coghlan's case alleges that neither he nor any members of the class-action would have purchased the TVs or would have paid less for them had they known the TVs would use more energy than was claimed in labels and advertising. Potential parties called out in the class-action case includes all U.S. consumers who bought Samsung TVs since 2011 with the ABC or motion-dimming features. A Samsung spokesman told HD Guru that the company does not comment on pending litigation, but following the NRDC report on Sept. 21st, a statement was issued saying: "Samsung firmly rejects the accusation that we are misleading consumers. Our Energy Star rating is based on the default setting of our TVs. The majority of users stay within the default viewing settings through the lifetime of their television. Furthermore, we strongly believe that consumers should always have the option to customize the viewing experience on their TV." The company also noted after the NRDC report announcement that Samsung TV purchasers are told in owners' manuals that adjusting picture settings will turn off energy saving features. One of the first class-action cases to emerge from the NRDC report surfaced in the U.S. District Court for the Northern District of California (Munoz et al v. LG Electronics U.S.A., Inc., Case No. 16-cv-5546, N. D. CA.) in September against LG Electronics for allegedly marketing its televisions as "energy efficient" and "Energy Star" certified, although the energy-saving features are automatically disabled when picture settings are changed. That case also alleges that LG did not adequately disclose the fact to consumers, causing them to incur additional charges to their electricity bills. A spokesman for LG said the company could not comment on pending litigation, but like Samsung, it issued a statement immediately following the announcement of the NRDC report denying any intent to manipulate a loophole in the DOE test procedures. "LG has followed both the letter and spirit of the DOE test procedure for TV energy testing, and we take great exception to the assertion that LG is `exploiting a loophole' in the government test procedure," LG's statement said. LG said it continues to work with DOE and others on developing energy standards and "for now, the IEC test clip is the standard that the industry must follow according to applicable law." Furthermore, "LG is implementing software for consumer notifications on 2016 and 2015 models that inform consumers that changing picture modes may impact energy consumption. It also allows consumers to turn on energy saving features in various picture modes." "LG's 2017 TV models also will include a number of enhancements to the automatic brightness control (ABC) and motion eye care (MEC) features. Specifically, the ABC feature will be implemented as the default in all picture modes (except HDR modes). What's more, consumers will be able to activate MEC in all picture modes," LG's stated last September. In its study, the NRDC said it tested a total of 21 TVs including: two Samsung, one LG and one Vizio in the lab with the rest tested in stores encompassing a variety of makes and models. Most were 4K Ultra HD TVs, all of which were 55-inches or larger. Although the NRDC's goal might be to reduce global carbon emissions, some believe their focus on television sets as a class of offending technology has drawn the ire of picture quality experts. Kevin Miller, a founding member of the Imaging Science Foundation (ISF) and a professional television calibrator, told HD Guru that Eco Mode and similar energy saving features "are stupid" from the standpoint of good picture quality, and lamented the fact that ever-escalating energy consumption requirements contributed, in part, to the end of plasma TVs, which many picture quality experts embraced for their numerous benefits over LCD TVs. Mr. Miller said he agrees that providing an on-screen warning indicator prior to changing a picture setting would make sense, but he added that ultimately it should be up consumers to choose to use more power to get a better picture when they want to, just as some automobiles provide more torque and use more gas in sport mode than in eco mode. Mr. Miller confirmed the NRDC's finding that Samsung, LG and Vizio TVs defeat energy savings features when picture settings are changed, and affirmed that Sony and Philips sets, which were recognized for accolades by the NRDC, allowed keeping a TV in energy savings mode even after adjustments are made to picture settings. "You have to actually take Sony TVs out of ambient light sensor mode," Mr. Miller said. "That does have a lot to do with affecting Energy Star levels." LUCAS, OH: "Stuart" Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Brandon Stuard, Patrick Mangold, and Mike Ilia, individually and on behalf of all other similarly situated individuals v. Lucas County, Ohio, Lucas County, Ohio Auditor, Lucas County, Ohio Sheriff's Office, and Lucas County, Ohio Juvenile Detention Center, Case No. 3:16-cv-02616 (N.D. Ohio, October 26, 2016), seeks to recover unpaid overtime wages, damages, liquidated damages, costs, attorneys' fees and other relief pursuant to the Fair Labor Standards Act. The Defendants are political subdivisions of the State of Ohio, governmental entities, and public agencies. The Plaintiff is represented by: John D. Franklin, Esq. Kera L. Paoff, Esq. WIDMAN & FRANKLIN, LLC 405 Madison Ave., Suite 1550 Toledo, OH 43604 Telephone: (419) 243-9005 Facsimile: (419) 243-9404 E-mail: john@wflawfirm.com kera@wflawfirm.com MCGOVERN & COMPANY: Hi-Tech Metals Sues Over Unpaid Contract Job ---------------------------------------------------------------- Hi-Tech Metals Mfg. LLC, on behalf of itself and all other persons similarly situated as trust fund beneficiaries of Lien Law trusts, Plaintiff, v. McGovern & Company, LLC., Daniel G. McGovern, Atlantic Specialty Insurance Company, John Doe 1-10 and ABC Corp. 1-10, Defendants, Case No. 655748/2016 (N.Y. Sup., October 31, 2016), seeks damages in the amount of $49,000.00 plus interest, costs and disbursement of the action resulting from breach of contract, foreclosure of mechanic's lien, unjust enrichment and trust fund diversion in violation of the New York Lien Law. McGovern & Company, LLC, is a domestic limited liability company duly existing pursuant to the laws of the State of New York and is engaged in the construction business with offices located at 286 Madison Avenue, 6th Floor, New York, NY. Plaintiff provided various labor, services, equipment and/or materials to and/or on behalf of the Defendant for its Madison Ave. project. McGovern failed to pay the Plaintiff for the services rendered and as a result, Plaintiff is requesting the court to foreclose on the mechanic's lien and order Atlantic Specialty Insurance Company to pay the aforementioned discharge bond. Plaintiff is represented by: Robert L. Bernstein, Jr. BAKER GREENSPAN & BERNSTEIN 2099 Bellmore Avenue Bellmore, NY 11710 Tel: (516) 783-3300 MDL 2419: 66 Cases Over Meningitis Outbreak Remanded ---------------------------------------------------- In the case captioned IN RE: NEW ENGLAND COMPOUNDING PHARMACY, INC., PRODUCTS LIABILITY LITIGATION, MDL No. 2419 (JPML), the United States Judicial Panel on Multidistrict Litigation issued a conditional remand order for 66 actions to be remanded to their respective transferor courts. The dispute stems from an outbreak of fungal meningitis caused by contaminated methylprednisolone acetate (MPA) manufactured and sold by the New England Compounding Pharmacy, Inc., d/b/a New England Compounding Center (NECC). NECC operated a compounding pharmacy in Framingham, Massachusetts, that combined and mixed ingredients to create specific formulations of pharmaceutical products. In the fall of 2012, health officials traced a number of cases of fungal meningitis to vials of MPA that had been manufactured by NECC. NECC initiated a recall of several contaminated batches of MPA before eventually surrendering its pharmacy license and ceasing production of all pharmaceutical products. NECC filed for bankruptcy in December 2012. The catastrophic outbreak of fungal meningitis resulted in (among other proceedings) hundreds of individual tort lawsuits that were eventually consolidated into multidistrict litigation (MDL). Significant pretrial litigation and discovery has been conducted in the MDL, and remains ongoing with regard to certain cases. That said, the transferee court concluded that for 66 cases, the efficiencies of the MDL mechanism have been exhausted, and it is time for these actions to go their separate ways. Therefore, the transferee court suggested that the Judicial Panel on Multidistrict Litigation remand or transfer each of the 66 actions to its court of origin for further proceedings. A full-text copy of the Panel's October 18, 2016 conditional remand order is available at https://is.gd/wInNhV from Leagle.com. About New England Compounding Pharmacy New England Compounding Pharmacy Inc., filed a Chapter 11 petition (Bankr. D. Mass. Case No. 12-19882) in Boston on Dec. 21, 2012, after a meningitis outbreak linked to an injectable steroid, methylprednisolone acetate ("MPA"), manufactured by NECC, killed 39 people and sickened 656 in 19 states, though no illnesses have been reported in Massachusetts. The Debtor owns and operates the New England Compounding Center is located in Framingham, Mass. In October 2012, the company recalled all its products, not just those associated with the outbreak. MEMPHIS, TN: 6th Cir. Affirms Class Certification in Police Case ---------------------------------------------------------------- Locke Beatty, Esq. -- lbeatty@mcguirewoods.com -- of McGuireWoods LLP, in an article for JDSupra, considers the Sixth Circuit's take on how Rule 23's ascertainability requirement overlaps with the different pathways to certification under Rule 23(b), as well as some post-Spokeo dismissals of putative class actions for lack of standing. Sixth Circuit Holds No Showing of Ascertainability Required for 23(b)(2) Class Action: The contours of Rule 23's implicit "ascertainability" requirement are rarely clearly defined, and often differ between circuits. In affirming the district court's certification of a class of individuals contesting the police department's method of clearing the streets at 3:00 a.m., the Sixth Circuit reminded practitioners that the prong of Rule 23(b) that the class invokes also bears on the applicability of the ascertainability requirement. In Cole v. City of Memphis, the court held that a class seeking injunctive relief and proceeding under Rule 23(b)(2) need not demonstrate that the class is ascertainable. The court reasoned that because "[t]he main purpose of a (b)(2) class is to provide relief through a single injunction or declaratory judgment," the concerns about administrative feasibility that the ascertainability requirement is designed to address are not at play. Accordingly, the court joined the First, Third, and Tenth Circuits in holding that the ascertainability requirement was inapplicable to Rule 23(b)(2) classes. District Courts Split on Standing Requirements for FACTA Claims Post-Spokeo: Two months ago, we looked at a decision from the Southern District of Florida holding that a plaintiff asserting a claim under FACTA for extraneous credit card information printed on a retailer's receipts could withstand a standing challenge on a motion to dismiss, even without specifically identifying an increased risk of identity theft. Earlier this month, the U.S. District Court for the Western District of Missouri went the opposite way when presented with almost the exact same scenario. In Thompson v. Rally House of Kansas City, Inc., the plaintiff brought a putative class claim alleging that a sporting goods store violated FACTA by including too many credit card digits on its receipts. The court held that because the plaintiff failed to allege his receipt was ever at risk of exposure to would-be identify thieves (or even left his possession), and otherwise failed to identify any exposure of his credit card information, he had alleged "only a mere violation" of the statute without actual or imminent concrete harm sufficient to confer standing under Spokeo. Consumer's "Failure to Disclose" Class Action Cannot Survive Spokeo Challenge: In another post-Spokeo dismissal of a putative class action, the U.S. District Court for the District of New Jersey held that a class representative's claims against a rental car company based on its failure to disclose whether certain loyalty program terms were void in New Jersey failed for lack of concrete injury. The court held that even if plaintiff identified a technical violation of New Jersey's Truth-in-Consumer Contract, Warranty, and Notice Act, he alleged only "bare procedural harm, divorced from any concrete harm." The court focused in particular on the plaintiff's failure to allege whether any of the terms in question were in fact void under New Jersey law, reasoning that "if those provisions are ultimately applicable, it is hard to imagine what concrete harm Plaintiff suffered." Settlement of "All Natural" Product Labeling Suit Drives Home Import of Injunctive Relief Side Door: We considered a decision in an "all natural" product-labeling case that decertified the class for the purposes of calculating damages but not for obtaining class-wide injunctive relief, and noted that limiting available class relief in this manner still left plenty of incentive for class counsel to pursue similar actions in the future due to the availability of attorneys' fees. To put a finer point on that, we need look no further than the preliminary approval of a settlement agreement in the Southern District of New York that called for the removal of "All Natural" and "100% Natural" from the defendant's labels, and established a $4.5 million fund for covering class members' claims and payment of attorneys' fees. Although the relief afforded class members in this settlement was not limited to injunctive relief alone, class counsel working under that limitation in future actions will argue that getting the "natural" references removed from product labels still justifies substantial fees. MIDEAL FOOD: Faces "Gil" Lawsuit Alleging Violations of FLSA ------------------------------------------------------------ Eliani Gil, and other similarly situated individuals, Plaintiff, v. MIDEAL FOOD SERVICE LLC, a Florida Profit Limited Liability Company, d/b/a PUNTO LATINO RESTAURANT AND BAKERY, individually; LEONARDO G. CORREIA, individually; MANUEL JIMENEZ, individually IDEAL FOOD DISTRIBUTORS LLC, a Florida Profit Limited Liability Company, individually; EDWIN B. PEREZ, individually; Defendant, Case No. 6:16-cv-01826-JA-GJK (M.D. Fla., October 20, 2016), seeks to recover alleged unpaid wages under the Fair Labor Standards Act. The district judge presiding over the case, Judge John Antoon II referred the case to Magistrate Judge Gregory J. Kelly, according to case docket dated October 21, 2016. MIDEAL FOOD SERVICE LLC is in the food service business. The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler St., Suite 2200 Miami, FL 33130 Phone: 305-416-5000 Fax: 305-416-5005 E-mail: agp@rgattorneys.com apetisco@rgattorneys.com rregueiro@rgattorneys.com pn@rgattorneys.com MOHAWK INC: Sued in Michigan Over Unsolicited Advertisements ------------------------------------------------------------ HEALTH ONE MEDICAL CENTER, EASTPOINTE P.L.L.C., a Michigan Professional Limited Liability Company, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. Mohawk, Inc. d/b/a Mohawk Medical, the Defendant, Case No. 2:16-cv-13815-JEL-SDD (E.D. Mich., Oct. 26, 2016), seeks statutory damages for Defendants violation of the Telephone Consumer Protection Act (TCPA). Defendant allegedly sent advertisements by facsimile to Plaintiff and a class of similarly-situated persons. The Plaintiff has received at least two of Defendant's advertisements by facsimile. Mohawk is a pharmaceutical wholesaler that sells controlled substances and other physician supply products in Arkansas, Georgia, Illinois, Kentucky, Michigan, Minnesota, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, North Carolina, and Virginia. The Plaintiff is represented by: Phillip A. Bock, Esq. Tod A. Lewis, Esq. David M. Oppenheim, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Telephone: (312) 658 5500 Facsimile: (312) 658 5555 NBTY INC: Bid to Dismiss and Certify Class in "Sweat" Suit Denied ----------------------------------------------------------------- The Hon. Marcia Morales Howard denied as moot the Defendant's motion to dismiss the lawsuit styled JENNIFER SWEAT, on behalf of herself and all others similarly situated v. NBTY, INC., Case No. 3:16-cv-00940-MMH-PDB (M.D. Fla.), and the motion and memorandum for class certification and for leave to supplement after discovery. According to the Order, the Plaintiff filed her First Amended Class Action Complaint on October 24, 2016, which rendered moot the parties' previous pleadings. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=lRgD8wDB NEWS CORP: $244MM Settlement Granted Final Court Approval --------------------------------------------------------- Josh Russell, writing for Courthouse News Service, reported that a federal judge in Manhattan approved a $244 million settlement in a class-action lawsuit claiming a News Corp. subsidiary monopolized the market for in-store promotions. Calling the settlement "fair, reasonable, and adequate", U.S. District Judge William Pauley granted final approval of the deal in October 31, along with $48 million in attorneys' fees and $7.5 million in expenses. Pauley also added incentive awards in the amount of $50,000 each to plaintiffs Henkel Consumer Goods, formerly Dial Corporation, Kraft Heinz Foods, Foster Poultry Farms, Smithfield Foods, HP Hood LLC and BEF Foods. The settlement provides that News Corp. and its subsidiaries will pay $244 million into a common settlement fund to be distributed on a pro-rata basis to the class members, determined by the amount of in-store promotions purchased by each plaintiff during the class period. Lead plaintiff Dial Corporation filed its class-action lawsuit against News Corp. and its subsidiaries News America, News America Marketing FSI, and News America Marketing In-Store Services in 2012, in Eastern Michigan federal court. Dial and the other plaintiffs accused Rupert Murdoch's news empire of a 20-year scheme to suppress the promotion of "a massive number of consumer goods in forty thousand retail stores, and scores of newspapers nationwide, to acquire and maintain two unlawful monopolies and earn large monopoly profits at the expense of its purchasers." In September 2013, the case was transferred to the Southern New York, where Pauley granted class certification in June 2015. News Corp. announced the settlement on Feb. 29 of this year, ending a trial seeking $674.6 million in damages, which could have ballooned to $2 billion under federal antitrust law. The media giant said in a statement at the time that it denied any wrongdoing by subsidiary News America Marketing. "We are pleased to have concluded this settlement, which allows us to avoid the expense and uncertainty of further litigating this matter," News Corp. said. "While we had full confidence in our case, we believe this decision is in the best interests of our company and stockholders." Attorneys for the plaintiffs had initially sought $73.2 million in fees, or 30 percent of the settlement fund. Pauley took umbrage at the counsel's "bloated billing," which he says was "saturated by excessive partner time and timekeeper rates." The judge adjusted the attorneys' fees down to $48 million. Pauley acknowledged in October 31, ruling that the News Corp. defendants are "part of a multi-billion dollar conglomerate recognized as one of the world's largest and most powerful enterprises." "Although they have now resolved this action through a $244 million settlement, the notion that Defendants could withstand a judgment in the amount of Plaintiffs' damages estimate is not far- fetched," the judge wrote in his 26-page opinion. The settlement includes several forms of structural relief designed to protect the class of plaintiffs against the anticompetitive conduct alleged in their complaint. Such relief includes preventing News Corp. and its subsidiaries, for the next five years, from entering into any exclusive in-store promotions contracts with a retailer for a term longer than 30 months, other than to meet competition or at the written request of the retailer. The settlement agreement also stipulates that the defendants cannot prohibit retailers from disclosing the termination dates of their in-store promotions contracts to prospective competitors. The plaintiffs were represented in the case by R. Stephen Berry of Berry Law PLLC in Washington, D.C. The case is captioned, DIAL CORPORATION, et al., Plaintiffs, against NEWS CORPORATION, et al., Defendants., 13cv6802 (S.D.N.Y.). NORTH BEACH TAVERN: "Barahona" Sues Over Unpaid Overtime ----------------------------------------------- Florencio Alvarenga Barahona and all others similarly situated, Plaintiff, vs. North Beach Tavern LLC, Lara Yagiro, Defendants, Case No. 1:16-cv-24556 (S.D. Fla., November 1, 2016), requests overtime wages still owing, double damages and reasonable attorney fees, jointly and severally, pursuant to the Fair Labor Standards Act. North Beach Tavern operates as Norman's Tavern, a limited liability corporation in Dade County where Plaintiff worked as a dishwasher from on or about June 1, 2015 through on or about October 13, 2016. He claims to have been denied overtime pay. Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM OREGON: State Supreme Court Hikes Fees Award in Pension Suit ------------------------------------------------------------ Chief Justice Thomas A. Balmer of the Supreme Court of Oregon increased the award of attorney's fees and costs, in the case Everice MORO; Terri Domenigoni; Charles Custer; John Hawkins; Michael Arken; Eugene Ditter; John O'Kief; Michael Smith; Lane Johnson; Greg Clouser; Brandon Silence; Alison Vickery; and Jin Voek, Petitioners, v. STATE OF OREGON; State of Oregon, by and through the Department of Corrections; Linn County; City of Portland; City of Salem; Tualatin Valley Fire & Rescue; Estacada School District; Oregon City School District; Ontario School District; Beaverton School District; West Linn School District; Bend School District; and Public Employees Retirement Board, Respondents, and LEAGUE OF OREGON CITIES; Oregon School Boards Association; and Association of Oregon Counties, Intervenors, and CENTRAL OREGON IRRIGATION DISTRICT, Intervenor below. Wayne Stanley JONES, Petitioner, v. PUBLIC EMPLOYEES RETIREMENT BOARD; Ellen Rosenblum, Attorney General; and Kate Brown, Governor, Respondents. Michael D. REYNOLDS, Petitioner, v. PUBLIC EMPLOYEES RETIREMENT BOARD, State of Oregon; and Kate Brown, Governor, State of Oregon, Respondents. George A. RIEMER, Petitioner, v. STATE OF OREGON; Oregon Governor Kate Brown; Oregon Attorney General Ellen Rosenblum; Oregon Public Employees Retirement Board; and Oregon Public Employees Retirement System, Respondents. George A. RIEMER, Petitioner, v. STATE OF OREGON, Oregon Governor Kate Brown, Oregon Attorney General Ellen Rosenblum, Public Employees Retirement Board, and Public Employees Retirement System, Respondents, S061452 (Control), S06143, S061454, S061475, S061860 (Or.) Following the decision in Moro v. State of Oregon, claimants petitioned for attorney fees and costs. Claimants were petitioners or represented petitioners who challenged legislation passed in 2013 that changed the pension benefits paid to certain members of the Public Employee Retirement System (PERS) by limiting the statutory cost-of-living adjustment (COLA) and eliminating a PERS income-tax offset for out-of-state retirees. Four claimants seek compensation; one claimant is the law firm Bennett, Hartman, Morris & Kaplan, LLP, which represented the Moro group of petitioners. The 3 additional claimants Reynolds, Riemer, and Jones are PERS members who acted as pro se petitioners in the underlying litigation. Reynolds and Riemer, although pro se petitioners, also are attorneys and seek both attorney fees and costs. Jones seeks only his costs. Claimants who seek attorney fees have calculated their fees using the lodestar method. As it relates to costs, Bennett Hartman seeks $62,066.13; Reynolds seeks $1,214.48; Riemer seeks $1,159.15; and Jones seeks $1,479.24. Bennett Hartman's cost request is substantially higher because it includes the costs of an expert witness who testified in support of petitioners in the underlying litigation. Bennett Hartman and Reynolds rely on the common-fund doctrine, while Riemer relies on both the common-fund doctrine and on the court's decision in Deras v. Myers. Respondents agree that a fee award may be justified under the common-fund doctrine, but they dispute the applicability of Deras, and county/school district respondents additionally argue that a portion of the fee award should be justified under the substantial-benefit doctrine. Respondents also contend that, regardless of which doctrine justifies a fee award, no fees should be awarded to Reynolds and Riemer because of their status as pro se petitioners, rather than attorneys serving in a representative capacity. Chief Justice Balmer awarded Bennett Hartman $902,665.32 in costs and attorney fees; Reynolds is entitled to $29,314.48 in costs and attorney fees; Riemer is entitled to $10,434.15 in costs and attorney fees; and Jones is entitled to $1,379.24 in costs. PERB shall determine how to pay the award from the accounts held in PERF and shall pay the amounts awarded. Chief Justice Balmer concluded that fees should be awarded based on the common-fund and substantial-benefit doctrines; that the self-represented attorneys are eligible to receive a fee award under those doctrines; that a reasonable fee award under the lodestar approach must be based on reasonable hourly rates and refb02ect reductions to account for duplicative work and work on unsuccessful claims; and that an award in the case should be paid for as determined by the Public Employees Retirement Board (PERB) in a manner that is consistent with its statutory authority and fiduciary obligations. A copy of Chief Justice Balmer's opinion dated October 27, 2016, is available at https://goo.gl/krBE57 from Leagle.com. Gregory A. Hartman -- hartmang@bennetthartman.com -- at Bennett, Harman, Morris & Kaplan, LLP, for petitioners Everice Moro, Terri Domenigoni, Charles Custer, John Hawkins, Michael Arken, Eugene Ditter, John O'Kief, Michael Smith, Lane Johnson, Greg Clouser, Brandon Silence, Alison Vickery, and Jin Voek. Also on the petition was Aruna A. Masih. George A. Riemer, pro se. Michael D. Reynolds, pro se. Wayne Stanley Jones, pro se. William F. Gary -- william.f.gary@harrang.com -- at Harrang Long Gary Rudnick P.C., filed the objections to petitions for attorney fees and costs for respondents Linn County, Estacada School District, Oregon City School District, Ontario School District, West Linn School District, Beaverton School District, and Bend School District and intervenors Oregon School Boards Association and Association of Oregon Counties. Also on the objections was Sharon A. Rudnick. Keith L. Kutler, Assistant Attorney General, Salem, filed the objections to petitions for attorney fees and costs for state respondents. Also on the objections were Anna M. Joyce, Solicitor General, and Michael A. Casper and Matthew J. Merritt, Assistant Attorneys General. Robert F. Blackmore, Innova Legal Advisors PC, Lake Oswego, filed the objections to petitions for attorney fees and costs for respondent Tualatin Valley Fire and Rescue. With him on the objections was Heidi W. Mason. The Supreme Court of Oregon panel consists of Chief Justice Thomas A. Balmer and Justices Rives Kistler, Martha Lee Walters, David V. Brewer, Richard C. Baldwin and Lynn Nakamoto. PFIZER INC: Court Tosses Pill Package "Slack Fill" Class Action --------------------------------------------------------------- Steven Boranian, Esq. -- sboranian@reedsmith.com -- of Reed Smith, in an article for Mondaq, reports that the term slack fill refers to empty space, like the extra air in a bag of chips. The variant "nonfunctional slack fill" refers to pointless empty space. It's just there, serving no purpose, just like a recent slack fill class action that recently met its demise in the Eastern District of New York, Fermin v. Pfizer, Inc., No. 15-cv-2133, 2016 U.S. Dist. LEXIS 144851 (E.D.N.Y. Oct. 18, 2016). In Fermin, the plaintiffs' alleged that they were "tricked" into purchasing ibuprofen because the containers were too big. Id. at *1. Never mind that the labels prominently and accurately stated exactly what was in the bottles, down to the number of pills. These plaintiffs alleged that the "excessive empty space" in the packaging misled them into purchasing the product, and they purported to represent a class of purchasers under the consumer laws of multiple states. Id. The district court had no patience for these allegations. In granting the defendant's motion to dismiss, the district court noted that the plaintiffs had to allege that the packaging was "likely to mislead . . . a reasonable consumer acting reasonably under the circumstances." Id. at **3-4. In other words, it is an objective standard, and that turned out to be the plaintiffs' undoing. As the court bluntly held, no one could reasonably have been deceived when the pill counts were right there on the bottles: Plaintiffs provide no basis for disregarding the clearly stated pill-counts on the labels, nor do they dispute the fact that the tablet-count is clearly and prominently displayed on each of the labels. Plaintiffs' own exhibits show that the labels plainly negate any supposed "reliance" on the size of the packaging as it is impossible to view the products without also reading the total number of pill contained in each package. It defies logic to accept that the reasonable consumer would not rely upon the stated pill count. Id. at *5 (emphasis added). Recall that this is on a motion to dismiss. Not only did the plaintiffs' allegations "defy logic," they failed to describe any deceptive practice as a matter of law. That's pretty good, and the district court was very direct in so ruling. Here is what else the court said: This Court finds, as a matter of law, that it is not probable or even possible that [the defendant's] packaging could have misled a reasonable consumer. . . . The suggestion that [product packaging] laws should cover [the plaintiffs'] failure to read an unambiguous tablet-count does not pass the proverbial laugh test. Id. at **5-6. The court did not explain how "the proverbial laugh test" meshes with pleading standards under Rule 12(b)(6), but it made its point loud and clear. With accurate pill counts staring consumers right in their faces, containers with extra space cannot possibly deceive anyone. To add insult to injury, the district court also held that the plaintiffs failed to establish subject matter jurisdiction because they placed no amount in controversy. Zero. The plaintiffs received "exactly what they paid for and suffered no loss." Id. at **6-7. We understand that the amount in controversy can be a barrier to diversity jurisdiction or CAFA jurisdiction in "no injury" cases like this one. We also wonder what the lack of subject matter jurisdiction does to the rest of the order. Is it still res judicata? Could these plaintiffs try to re-file in another court (at the risk of again failing the "proverbial laugh test")? We don't know, but we do know that this judge was particularly blunt: "[N]o plaintiff would be able to prove damage under the facts pleaded here." Id. at *7. Or, as we would paraphrase it, this class action was nothing more than pointless empty space. PHILIP MORRIS: Wins Favorable Ruling in Massachusetts Case ---------------------------------------------------------- Altria Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016, that the U.S. District Court for the District of Massachusetts has ruled in favor of Philip Morris USA Inc. ("PM USA") on plaintiffs' Massachusetts Consumer Protection Act claim and entered final judgment in favor of PM USA. In medical monitoring actions, plaintiffs have sought to recover the cost for, or otherwise the implementation of, court-supervised programs for ongoing medical monitoring purportedly on behalf of a class of individual plaintiffs. Plaintiffs in these cases have sought to impose liability under various product-based causes of action and the creation of a court-supervised program providing members of the purported class Low Dose CT ("LDCT") scanning in order to identify and diagnose lung cancer. Plaintiffs in these cases have not sought punitive damages, although plaintiffs in Donovan sought permission from the court to seek to treble any damages awarded, which the court denied. The defense of any future medical monitoring cases may be negatively impacted by evolving medical standards and practice. In Donovan, filed in December 2006 in the U.S. District Court for the District of Massachusetts, plaintiffs purportedly brought the action on behalf of the state's residents who are: age 50 or older; have smoked the Marlboro brand for 20 pack-years or more; and have neither been diagnosed with lung cancer nor are under investigation by a physician for suspected lung cancer. The Supreme Judicial Court of Massachusetts, in answering questions certified to it by the district court, held in October 2009 that under certain circumstances state law recognizes a claim by individual smokers for medical monitoring despite the absence of an actual injury. The court also ruled that whether or not the case is barred by the applicable statute of limitations is a factual issue to be determined at trial. The case was remanded to federal court for further proceedings. In June 2010, the district court granted in part the plaintiffs' motion for class certification, certifying the class as to plaintiffs' claims for breach of implied warranty and violation of the Massachusetts Consumer Protection Act, but denying certification as to plaintiffs' negligence claim. In July 2010, PM USA petitioned the U.S. Court of Appeals for the First Circuit for appellate review of the class certification decision. The petition was denied in September 2010. As a remedy, plaintiffs have proposed a 28-year medical monitoring program with a cost in excess of $190 million. In October 2011, PM USA filed a motion for class decertification, which motion was denied in March 2012. In February 2013, the district court amended the class definition to extend to individuals who satisfy the class membership criteria through February 26, 2013, and to exclude any individual who was not a Massachusetts resident as of February 26, 2013. In July 2015, both parties filed various motions, including motions for partial summary judgment and to exclude certain evidence. In October 2015, the district court granted PM USA's motion for partial summary judgment holding that e-vapor products may not be deemed an alternative design for ordinary cigarettes. In February 2016, the trial court jury returned a verdict in favor of PM USA on the warranty claim. In March 2016, PM USA filed a motion for judgment on plaintiffs' Massachusetts Consumer Protection Act claim based on the jury's verdict, which the court denied in April 2016, ruling that it would function as the finder of fact with respect to the Massachusetts Consumer Protection Act. In September 2016, the U.S. District Court for the District of Massachusetts ruled in favor of PM USA on plaintiffs' Massachusetts Consumer Protection Act claim and entered final judgment in favor of PM USA. Plaintiff did not appeal the judgment, concluding this litigation. PNC BANK: Certification of 10 Classes Sought in "Bland" Suit ------------------------------------------------------------ The Plaintiffs in the lawsuits titled LEMUEL BLAND, et al. v. PNC BANK, N.A., Case No. 2:15-cv-01042-AJS; and MARAT GOKHBERG, et al. v. THE PNC FINANCIAL SERVICES GROUP, INC., et al., Case No. 2:15- cv-01700-AJS, both pending in the U.S. District Court for the Western District of Pennsylvania, move the Court for an order certifying these classes: 1. A class of all current and former MLOs who worked for PNC throughout the United States for violations of Pennsylvania law and the common law; 2. A class of all current and former MLOs who worked for PNC in California for violations of California law; 3. A class of all current and former MLOs who worked for PNC in Ohio for violations of Ohio law; 4. A class of all current and former MLOs who worked for PNC in Illinois for violations of Illinois law; 5. A class of all current and former MLOs who worked for PNC in Missouri for violations of Missouri law; 6. A class of all current and former MLOs who worked for PNC in New Jersey for violations of New Jersey law; 7. A class of all current and former MLOs who worked for PNC in Indiana for violations of Indiana law; 8. A class of all current and former MLOs who worked for PNC in Kentucky for violations of Kentucky law; 9. A class of all current and former MLOs who worked for PNC in Washington for violations of Washington law; and 10. A class of all current and former MLOs who worked for PNC in New York for violations of New York law. The Plaintiffs also ask the Court to appoint them as class representatives of their respective classes, to appoint Justin L. Swidler, Esq., Richard S. Swartz, Esq., Joshua S. Boyette, Esq., Robert D. Soloff, Esq., and Marc A. Silverman, Esq., as class counsel for all classes but New York, and to appoint Woodley & McGillivary LLP and Spivak Lipton LLP as class counsel for the New York Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PgMgVifw The Plaintiffs are represented by: Justin L. Swidler, Esq. Richard S. Swartz, Esq. Joshua S. Boyette, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com rswartz@swartz-legal.com jboyette@swartz-legal.com - and - Robert D. Soloff, Esq. ROBERT D. SOLOFF, P.A. 7805 SW 7th Court Plantation, FL 33324 Telephone: (954) 472-0002 Facsimile: (954) 472-0052 E-mail: robert@solofflaw.com - and - Marc A. Silverman, Esq. FRANK WEINBERG BLACK, P.A. 7805 SW 7th Court Plantation, FL 33324 Telephone: (954) 474-8000 Facsimile: (954) 474-9850 E-mail: msilverman@fwblaw.net The New York Named Plaintiffs and New York Class Members are represented by: Gregory K. McGillivary, Esq. Molly A. Elkin, Esq. Diana J. Nobile, Esq. Sarah Block, Esq. WOODLEY & McGILLIVARY LLP 1101 Vermont Ave., N.W., Suite 1000 Washington, DC 20005 Telephone: (202) 833-8855 E-mail: gkm@wmlaborlaw.com mae@wmlaborlaw.com djn@wmlaborlaw.com smb@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 POTESTIVO & ASSOCIATES: Illegally Collects Debt, Action Claims -------------------------------------------------------------- Eileen and Lawrence T. Maloney, individually and on behalf of a class of others similarly situated v. Potestivo & Associates PC and RBS Citizens Bank NA Successor to Charter One Bank FSB, Case No. 2016CH14019 (Ill. Ch. Ct., October 26, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. RBS Citizens Bank NA is a bank and holder of mortgagers in Cook County. The Plaintiff is represented by: Samuel A. Shelist, Esq. SHELIST LAW FIRM, LLC, 29 E. Madison St, Suite 1000 Chicago, IL 60602 Telephone (312) 644-3900 E-mail: sshelist@muchshelist.com QBE: Ruling to Encourage Funders to Bring "Open Class" Actions -------------------------------------------------------------- Moira Saville, Esq. -- moira.saville@au.kwm.com -- Peta Stevenson, Esq. -- peta.stevenson@au.kwm.com -- and James Emmerig, Esq. of King & Wood Mallesons, in an article for Lexology, report that on October 26, 2016, the Full Court of the Federal Court handed down its decision in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited [2016] FCAFC 148, approving for the first time an application to conduct a class action on a "common fund" basis. This decision is a game changer in Australian class action litigation, paving the way for litigation funders in "open class" actions to obtain fees from class members without the need to enter into funding agreements. In a joint judgment, Murphy, Gleeson and Beach JJ declared: "It is time that the Court gives further consideration to the interests of class members in relation to the reasonableness of litigation funding charges". The Court supported orders imposing the burden of funders' fees equally upon all class members who stand to benefit from the proceeding, whether or not they had previously entered into a funding agreement, with the Court to determine the reasonable rate of the commission to be paid to the funder at the end of the proceeding. The Court also indicated that it is "highly likely" that the rate approved will be lower than under the existing funding agreements. This decision may encourage funders to bring "open class" actions with potentially larger classes, but with the payout being determined by the Court. It also foreshadows an increased willingness on the part of the Federal Court to intervene to effectively supervise funding arrangements and, in particular, the commission paid to the funder. Why is the "common fund" issue so significant? To date, litigation funders have only been able to derive fees from those class members who enter into funding agreements with them. The preferred model of litigation funding has been a "closed class" action, where all class members have signed up to funding agreements. If a funder pursued an "open class" action, this would result in a division between "funded class members" and "unfunded class members". Courts have previously sought to address the perceived inequity which arises where the "funded class members" bear the obligation to compensate the funder while "unfunded class members" enjoy a "free ride", while at the same time seeking to avoid payment to the funder of a fee greater than its contractual entitlement. In some cases, Courts have sought to address the issue by making "funding equalisation orders" to redistribute the additional amounts received "in hand" by unfunded class members pro rata across the class as a whole.[1] Courts have previously rejected the "common fund" solution, whereby the funder is recompensed from the common fund of proceeds obtained by the class as a whole in any settlement or judgment, although they did not rule out the possibility of this solution being applied in appropriate circumstances.[2] In this decision, the Federal Court has for the first time applied the common fund solution. The decision The common fund application was heard by the Full Federal Court at the direction of the Chief Justice. On October 26, 2016, Murphy, Gleeson and Beach JJ approved, in substance, common fund orders sought by the applicant (other than in relation to the funding commission rate), inviting the parties to make further submissions before the orders are formally made. The proposed orders require all class members, whether or not they have entered into a funding agreement with the funder (International Litigation Funding Partners Pte Ltd or "ILFP") to pay the ILFP's commission for funding the action, in addition to other costs. This is subject to ILFP, the applicant's solicitors (Maurice Blackburn) and the applicant entering into undertakings to comply with the funding terms specified by the Court. Importantly, the Court has taken on responsibility for setting a reasonable "Court-approved funding commission", but only at a later stage of the proceeding (most likely at settlement approval or judgment). Significantly, the Court has stipulated that: -- the fee is "highly likely" to be less than the 32.5% or 35% funding commission agreed under the existing funding agreements; and -- as a "safeguard", the fees to be paid to ILFP must not exceed the amount which it would otherwise have received, to ensure that ILFP is no better off under the common fund arrangement than under alternative arrangements (such as the funding equalisation orders). Other observations -- Court's power to make common fund orders: Section 33ZF of the Federal Court of Australia Act 1976 (Cth) (the "Act"), which empowers the Court to "make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding", was held to provide a valid basis for making common fund orders. The Court rejected QBE's contentions that the Court lacked the requisite power, including the argument that the orders were not a valid exercise of judicial power. -- Funding commission rate: The Court indicated that the funding commission rate would only be set at a later stage in the proceeding when more probative and complete information becomes available to the Court to assess its reasonableness (notwithstanding that the applicant had proposed a lower rate of 30% to apply to all class members under a common fund model). Their Honours emphasised that the rate set is "highly likely" to be less than the rate already agreed with funded class members. -- Protection of class members' interests: The Court considered that common fund orders would better protect class members' interests in this case, in comparison to funding equalisation orders, which would "saddle" the unfunded class members with a deduction equivalent to the funding rate charged to funded class members. -- Opting out: The Court observed generally that any unfunded class members who are unhappy with a proposed common fund regime can "opt out" of a proceeding and commence a separate proceeding with or without funding. This was considered a sufficient safeguard for class members' interests, provided that they are given proper notice and a right to object. -- Policy considerations: The Court found that a common fund approach to litigation funding charges and legal costs is consistent with the broad policy aims of the regime in Part IVA of the Act in light of the regime's aims of enhancing access to justice and increasing the efficient use of judicial resources, and because the regime provides for an "opt out" model which makes it unnecessary to obtain the consent of a person to be a class member. As such, the Court noted that "closed class" actions have given rise to "a number of significant problems" (including reducing access to justice) and anticipated that common fund orders would enhance access to justice by "encouraging open class representative proceedings". -- Impact on litigation funders: While noting that a funder "may be discomforted" by the prospect of funding a proceeding in which its fee is set by the Court at the end of the proceeding, the Court considered this a "matter for the funder" and noted that, should a funder not wish to pursue common fund orders, it may simply decline to give the required undertaking and rely on its existing contractual arrangements. The Court made clear, however, that: "We expect that the courts will approve funding commission rates that avoid excessive or disproportionate charges to class members but which recognise the important role of litigation funding in providing access to justice, are commercially realistic and properly reflect the costs and risks taken by the funder, and which avoid hindsight bias." Implications This decision paves the way for an increase in "open class" actions in Australia using the common fund model. Whether this will become a common fixture depends, among other things, on funders' willingness to take on the risk and uncertainties inherent in funding litigation in circumstances where the potential reward for doing so is determined by the Court, only at the end of the proceedings, and the Court's calculation will be counterbalanced by its desire to protect class members' interests. QBE: "Common Fund" Ruling May Spark More Class Actions ------------------------------------------------------ Financial Review reports that lawyers have warned of a possible "rush" to the courts to file class actions after the full Federal Court gave the green light to controversial common funds, allowing anyone affected in a lawsuit to be included in a payout and requiring them to hand a commission to funders. The decision, in a matter involving insurer QBE brought by litigator Maurice Blackburn, is the most significant handed down since the court approved litigation funding in 2006, said Herbert Smith Freehills partner Jason Betts. Last year, corporate Australia paid out $1 billion in settling class action disputes. Mr. Betts -- Jason.Betts@hsf.com -- warned that the judgment would encourage the filing of larger class actions -- as the larger the class the greater the return to funders -- and that business will carry the cost. "It may also promote a 'rush to the courthouse' by class action promoters -- especially newer players -- seeking to capture the class before their competitors can," he said. There was a risk that this would occur at the expense of "proper due diligence on the merits of the class action, often linked to the book-building process", he warned. Under the ruling, the court will allow costs sharing and a commission to the litigation funder on all of the group members that benefit, regardless of whether or not they signed an agreement. Safeguards include that the court will determine the commission rate and may impose a cap on the total. Mr. Betts said that it may mark the end of "closed classes" which include only those who have signed up with the litigation funder. A "big unknown" was how the court will decide the level of commission that should go to the funder, he said. Fewer "copycat" proceedings was among possible advantages, but he warned that businesses would carry the cost of bigger and better-funded class actions. "The court appears to accept that burden as the price of greater levels of access to justice." 'Wrong way to go' Jones Day's head of class action defense in Australia, John Emmerig -- jemmerig@jonesday.com -- said reform was "urgently needed" to turn the ruling around, saying that common fund orders were "the wrong way to go". "Funders drive the class action market and they stand to make a lot of money from the QBE decision," he said. "If this development stands . . . it will ultimately be at the expense of class members and bring with it a bigger burden on the entire system. "Class actions will get larger, harder to resolve and we will see an increase in poorly considered and poorly investigated claims being filed as funders engage in a race to the registry to get their class action filed first to try and 'capture the ground' because common fund arrangements cut out the need for funders to spend time book-building before they file." Maurice Blackburn has championed the win as one that will drive down costs for claimants and increase access to justice. The win follows a previous failed attempt by the firm to get court approval for a common fund in a shareholder class action against Allco. The parties to the matter must now file submissions on the "precise form of the orders and the undertaking, including the funding terms", before the court rules on the fund. Victorian court fielding more claims On Oct. 27, Victorian Supreme Court chief justice Marilyn Warren said that the court was "increasingly attracting large-scale litigation to our jurisdiction, including investor-based, consumer and personal injury class actions, and claims for disaster damages". RAMELLI GROUP: "Escobar" Suit Seeks Unpaid OT Wages Under FLSA -------------------------------------------------------------- DARWIN ESCOBAR, RIGOBERTO GARCIA, SELVIN A. PORTILLO, GUSTAVO A. REYES RAMIREZ, and SELVIN VASQUEZ, individually and on behalf of all others similarly situated, the Plaintiffs, v. RAMELLI GROUP, L.L.C.; RAMELLI JANITORIAL SERVICE, INC., ROBERT C. RAMELLI; and K.C. STAFFING LLC, the Defendants, Case No. 2:16-cv-15848 (E.D. La., Oct. 26, 2016), seeks unpaid overtime compensation and other relief, pursuant to the Fair Labor Standards Act (FLSA). The Defendants employ individuals as manual laborers and pay those individuals on an hourly basis. The Plaintiffs and all others similarly situated work or worked for Defendants as manual laborers and have routinely worked more than 40 hours per workweek without being paid an overtime rate of one and one-half times their regular hourly rate of pay for hours worked in excess of 40 hours per workweek. Ramelli Group provides a variety of services to its customers in the New Orleans area and nationwide. Ramelli Group utilizes manual laborers to provide these services. The Plaintiffs are represented by: Daniel B. Davis, Esq. Randall E. Estes, Esq. ESTES DAVIS LAW, LLC 850 North Boulevard Baton Rouge, LA 70802 Telephone: (225) 336 3394 Facsimile: (225) 384 5419 E-mail: dan@estesdavislaw.com randy@estesdavislaw.com - and - Gabriel O. Mondino, Esq. BURGOS & ASSOCIATES, L.L.C. 3535 Canal Street New Orleans, LA 70119-6135 Telephone: (504) 488 3722 Facsimile: (504) 482 8525 E-mail: gmondino@burgoslawfirm.com - and - Matthew T. Lofaso, Esq. LOFASO LAW FIRM, LLC 11404 N. Lake Sherwood Ave., Ste A Baton Rouge, LA 70816 Telephone: (225) 293 6330 Facsimile: (225) 293 6332 E-mail: matt@lofasolawfirm.com RABOBANK NA: Asks 7th Cir. to Reject Suit Over Ch.7 Fees -------------------------------------------------------- Jessica Corso, writing for Bankruptcy Law360, reported that Rabobank NA has told the U.S. Court of Appeals for the Seventh Circuit that there was no unlawful collusion between the company and Bankruptcy Management Solutions, a software management business, to skim Chapter 7 fees, arguing against a Chicago law firm's suggestion that a dismissed lawsuit be reopened. Rabobank said U.S. District Judge Milton Shadur was right to rule that a deal it struck with BMS to serve as the depository bank for Chapter 7 bankruptcy cases does not constitute unlawful tying. McGarry & McGarry, LLC, commenced class action lawsuits, first against Rabobank in June, and then against BMS in September. According to a report by the Class Action Reporter, the suit filed by McGarry against Rabobank captioned McGarry & McGarry, LLC, Plaintiff, v. Rabobank, N.A., Defendant., Case No. 1:16-cv-05978 (N.D. Ill., June 8, 2016), seeks to recover treble damages, compensatory damages and attorney fees resulting from the anti- competitive effects of contracts concerning bankruptcy services in violation of the Bank Company Holding Act. McGarry is a limited liability company organized and existing under the laws of the State of Illinois, with its place of business in Chicago, Illinois. Rabobank is a corporation organized and existing under the laws of the United States, with its principal place of business in Roseville, California. McGarry is represented by: Marianne C. Holzhall, Esq. McGarry & McGarry, LLC 120 North LaSalle Street, Suite 1100 Chicago, IL 60602 Tel: (312) 345-4600 Email: mch@mcgarryllc.com - and - DUNNEGAN & SCILEPPI LLC 350 Fifth Avenue New York, NY 10118 Tel: (212) 332-8300 According to another report by the Class Action Reporter, in the suit filed by McGarry agianst BMS captioned MCGARRY & MCGARRY, LLC, Plaintiff, v. BANKRUPTCY MANAGEMENT SOLUTIONS, INC., Defendant, Case No. 1:16-cv-08914 (N.D. Ill., September 14, 2016), McGarry, on behalf of itself and those similarly situated, alleges that BMS has conspired with its two largest competitors to fix the manner of charging Chapter 7 Bankruptcy Estates for bankruptcy software services in violation of the Sherman Act and the Illinois Antitrust Act. BMS is the largest provider of bankruptcy software services in the United States. BMS also provides ancillary services, such as data entry or check preparation. Jonathan Bilyk, writing for the Cook County Record, reported that a district judge on Aug. 12, dismissed McGarry's lawsuit against Rabobank, which argued it did not violate federal banking laws by "tying" its services to any non-banking product, nor did it receive any benefit from such a "tying arrangement." Rabobank told the district judge that "the only benefit Rabobank received was the right to provide deposit banking services, which is not an improper anticompetitive practice." McGarry appealed the dismissal of that lawsuit. As the appeal is pending, McGarry launched the separate lawsuit against BMS. In the lawsuit against BMS, McGarry alleged that prior to the financial crisis that began in 2008, BMS did not charge fees for bankruptcy software services directly to any Estate. Rather, BMS directed the Trustees to deposit all of the funds of the Estates they administer in a selected bank, the bank would earn money from the deposits of the Estates, and the bank would pay BMS a fee. The bank would then pay interest to the Estate. As a result of the financial crisis that began in 2008, interest rates declined. As a result of this decline in interest rates, the amount of money that the bank could earn from the deposits of the Estates also declined, as did the bank's ability to pay BMS a fee. Before January 2011, to increase its profits without providing any additional services, BMS considered directly charging Estates a fee for bankruptcy software services. BMS considered charging that fee to Estates in different ways, including on a (a) per Trustee basis, (b) per case basis, and (c) per transaction basis, such as per report generated. However, upon information and belief, BMS never charged a fee to any Estate or Trustee in any of these ways. Before January 2011, BMS considered a non-traditional way of charging its fees for bankruptcy software services. Specifically, BMS considered selling bankruptcy software services only in combination with bankruptcy banking services and directly charging Estates a fee for those combined services based upon a percentage of the money in the bank account of the Estate. BMS preferred this non-traditional way of charging fees over the alternatives that BMS had considered. This non-traditional way of charging fees would mask the extent to which BMS, as opposed to its bank, ultimately received the fees. This non-traditional manner of charging fees would also make it more difficult for the Trustees to determine whether the fee in any case was modest, reasonable, or excessive. BMS understood that the marketplace would accept this non- traditional manner of charging fees if, and only if, the three major providers of bankruptcy software services -- BMS, Epiq and TrusteSolutions -- did not charge for bankruptcy software services separately from the bankruptcy banking services. According to the lawsuit, in or before January 2011, BMS proposed to Epiq and TrusteSolutions that they, inter alia, sell bankruptcy software services only in combination with bankruptcy banking services, and charge no fee to an Estate for those combined services other than a percentage of the amount in the bank account of the Estate. Epiq and TrusteSolutions each accepted this proposal of BMS. Before January 2011, BMS understood that although the Bankruptcy Court had authority to approve actual and necessary administrative expenses, charging an Estate a fee for combined services could violate the rule of the U.S. Trustee that prohibited Trustees from paying bank fees from Estate accounts. BMS, Epiq and TrusteSolutions requested in or before January 2011 that the U.S. Trustee suspend that rule, and allow Trustees to pay bank fees from Estate accounts. On April 29, 2011, the U.S. Trustee suspended its rule prohibiting Trustees from paying bank fees from Estate accounts. The U.S. Trustee, however, did not approve any amount, or rate, for those fees, and did not approve any manner of charging those fees. After the U.S. Trustee suspended its rule prohibiting Trustees from paying bank fees from Estate accounts, BMS, Epic and TrusteSolutions reaffirmed their conspiracy. After April 29, 2011, BMS, Epic, and TrusteSolutions acted on their conspiracy to sell Estates bankruptcy software services only in combination with bankruptcy banking services, and to charge no fee to an Estate for those combined services other than a percentage of the amount in the bank account of the Estate. BMS and its selected bank entered into agreements with Trustees that required an Estate to pay a combined fee for bankruptcy software services and bankruptcy banking services based upon a percentage of the money in the account of the Estate. After April 29, 2011, BMS and its selected bank then began deducting as a fee for those combined services a percentage of the money in the bank account of the Estate. Neither BMS, Epiq nor TrusteSolutions has consistently charged a fee for bankruptcy software services on a (a) per Trustee basis, (b) per case basis, or (c) per transaction basis, such as per report generated. Pursuant to its conspiracy with Epiq and TrusteSolutions, BMS continues to sell bankruptcy software services only in combination with bankruptcy banking services, and charges the Estate no fee for those combined services other than a percentage of the amount in the bank account of the Estate. Currently, with certain later developed minimums, BMS and Rabobank charge fees at the rate of 1.75 percent, Epiq and its banks charge fees at the rate of 1.75 percent, and TrusteSolutions and its banks charge fees at the rate of 1.9 percent, of the amount in the bank account of the Estate. The lawsuit says BMS has limited competition in the national market for bankruptcy software services. As measured by the number of Trustees in the United States, BMS has more than a 50 percent share, Epiq has about a 35 percent share and TrusteSolutions has less than a 15 percent share of the national market for bankruptcy software services. Trustees do not, at any one time, use more than one bankruptcy software service provider. The suit also claims that Rabobank now holds all of the funds of the Estates of each Trustee that uses BMS bankruptcy software services to administer an Estate. Rabobank currently holds about $2,000,000,000 in deposits from Trustees who contract with BMS. Integrated Genomics, Inc. filed a Chapter 7 bankruptcy petition (Bankr. N.D. Ill. Case No. No. 11-19086) on May 4, 2011. The U.S. Trustee appointed Eugene Crane as the Chapter 7 Trustee of the Integrated Estate. On March 24, 2014, Crane deposited the funds of the Integrated Estate at Rabobank. Prior to the closing of the Integrated bankruptcy case, Rabobank deducted $514.16 from this account. Rabobank never paid any interest on the funds in the account of the Integrated Estate. McGarry, an unsecured creditor of the Integrated Estate, received from the Integrated Estate $12,472.55 on McGarry's allowed claim of $78,308.94. Crane filed his final account and distribution report on April 14, 2014. Shortly thereafter, the Integrated case ended and the Integrated Estate closed. McGarry thereafter learned that Rabobank had deducted $514.16 from the Integrated Estate's account as a fee. Rabobank paid most, if not all, of this amount to BMS pursuant to their contract. Neither Rabobank nor BMS had any permission from the Bankruptcy Court to withdraw any funds from the Integrated Estate to pay either BMS or Rabobank. The amount that Rabobank deducted in fees and paid to BMS, the lawsuit contends, was greater than the amount of the fees that would have resulted in the absence of the conspiracy. Absent the overcharge of BMS for bankruptcy software services resulting from the conspiracy, McGarry would have received a greater distribution from the Integrated Estate. BMS was represented in the prior case by the firms of LeonardMeyer LLP, of Chicago, and Dorsey & Whitney, of New York. Rabobank was represented in the prior case by the firms of Jenner & Block, of Chicago, and Davis Wright Tremaine, with offices in San Francisco and Washington, D.C. SAMARITAS: "Cole" Action Alleges Unpaid Overtime Pay ---------------------------------------------------- Jashanna Cole, individually and on behalf of others similarly situated, Plaintiff, v. Samaritas, Defendant, Case No. 1:16-cv- 01276 (S.D. Fla., October 28, 2016), seeks to recover unpaid wages, liquidated damages, and an award of attorney fees and costs pursuant to the Fair Labor Standards Act. Samaritas is a Michigan Corporation whose company headquarters and principal place of business is located at 8115 E. Jefferson Avenue, Detroit, Michigan where Plaintiff provided general care- giving services. Cole claims to have been denied overtime pay. Plaintiff is represented by: Robert Anthony Alvarez, Esq. AVANTI LAW GROUP, PLLC 600 28th Street SW Wyoming, MI 49509 Tel: (616) 257-6807 Email: ralvarez@avantilaw.com SIENTRA INC: Settles Shareholder Class Action for $10.9 Million --------------------------------------------------------------- Sientra, Inc., on Oct. 28 announced that it has reached an agreement to settle all shareholder class action litigation previously disclosed in the Company's public filings with the Securities and Exchange Commission. The settlement, which will be memorialized in a stipulation of settlement, is subject to certain conditions, including applicable court approvals. The parties intend to file the stipulation of settlement and joint motions for preliminary approval promptly. Pursuant to the terms of the settlement, defendants will cause to be paid $10.9M (of which the Company's D&O insurance carriers will pay $9.3M and the Company will pay $1.6M). SILVERSTAR LTD: "Bradley" Suit Seeks Unpaid Overtime Pay -------------------------------------------------------- Theron Bradley and Tommy Jenkins on behalf of themselves and similarly situated individuals, Plaintiffs, v. Silverstar, Ltd, Gold Standard Transportation, Inc. and Amazon.com, LLC, Defendant, Case No. 1:16-cv-10259 (N.D. Ill., November 1, 2016), seeks to recover unpaid wages, liquidated damages, and an award of attorney fees and costs pursuant to the Fair Labor Standards Act. Silverstar and Gold Standard operate a carrier and logistics business, and among other activities, provide trucks and/or drivers to deliver goods for Amazon customers in Illinois where Plaintiffs worked as delivery personnel. Plaintiff is represented by: Alvar Ayala, Esq. Christopher J. Williams, Esq. WORKERS' LAW OFFICE, P.C. 53 W. Jackson Blvd, Suite 701 Chicago, IL 60604 Tel: (312) 795-9121 SIMONTON WINDOWS: Faces Class Action Over Substandard Windows ------------------------------------------------------------- Trey Barrineau, writing for Door & Window Market Magazine, reports that Simonton Windows is facing a class-action lawsuit from a group of homeowners who say the company distributed substandard windows. The suit was filed on October 17, 2016 in the U.S. District Court for the District of Minnesota against Simonton Building Products LLC, formerly known as Simonton Building Products Inc., and other related companies. It alleges breach of warranty, design defect, failure to warn, fraud, liability, negligence, product liability and unjust enrichment. According to the complaint, the plaintiffs say the insulated glass windows have shown defects early on, including internal condensation, corrosion of the metallic films and/or improper glass preparation leading to visible finger prints and smudges. The suit says the plaintiffs suffered inconvenience, aggravation, loss of use of their windows and/or other damages. Reflections, Asure, Prism, Impressions, StormBreaker Plus, ProFinish, DaylightMax, Madeira and Lumera are among the former or current Simonton lines named in the suit. The plaintiffs also claim that Simonton's windows contain "multiple discrete design and manufacturing defects and deficiencies," including lack of edge deletion on the low-e coatings on the windows; lack of dessicant or inadequate dessicant inside the spacer; edge seal defects; and lack of secondary window seals. The plaintiffs also allege that Simonton did not adequately test its windows before selling them to the public. On its website, Simonton says its "windows and doors are tested to the advanced AAMA Gold Label Certification Program. The Gold Certification is AAMA's highest level of testing with windows and doors being tested for thermal performance as well as air, water and structural integrity. The standard AAMA silver label only requires thermal testing. Simonton's Product Development Center is an ATI-certified lab site that enables us to perform thorough, in-house structural and thermal testing. An AAMA gold label certifies that the units assembled on the production lines are using the same process and components as the unit that was tested." The plaintiffs are seeking a jury trial. DWM contacted Simonton for a comment on the lawsuit, but did not receive a response by press time. SPEEDPAY INC: Pincus Seeks to Certify Class of Florida Consumers ---------------------------------------------------------------- Caryn Pincus submits her combined motion and memorandum in support of class certification in her lawsuit titled CARYN PINCUS v. SPEEDPAY, INC, a New York Corporation, Case No. 9:15-cv-80164-KAM (S.D. Fla.). She asks the Court to certify this class of similarly situated persons: All (i) persons in Florida (ii) who paid Speedpay, Inc. a fee for using Speedpay, Inc.'s electronic payment services (iii) during the five year period prior to the filing of the complaint in this action through the present. Ms. Pincus further asks that the Court appoint her as class representative, and Michael Karnuth, Esq., Bret Lusskin, Esq. and Scott Owens, Esq. as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=xtLvMGX8 The Plaintiff is represented by: Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Drive, Suite 235 Hollywood, FL 33019 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 E-mail: scott@scottdowens.com - and - Bret L. Lusskin, Esq. BRET LUSSKIN, P.A. 20803 Biscayne Blvd., Suite 302 Aventura, FL 33180 Telephone: (954) 454-5844 E-mail: blusskin@lusskinlaw.com - and - Michael R. Karnuth, Esq. KEOGH LAW, LTD 55 West Monroe Street, Suite 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: mkarnuth@keoghlaw.com SSM HEALTH: "Feather" Suit Transferred from S.D. Ill. to E.D. Mo. ---------------------------------------------------------------- The class action lawsuit titled LISA FEATHER, on behalf of herself, individually, and on behalf of all others similarly situated, and on behalf of the SSM Plan, the Plaintiff, v. SSM HEALTH, a Missouri Non-profit Corporation, THE PENSION COMMITTEE FOR THE RETIREMENT PLAN FOR SSM EMPLOYEES, JOHN and JANE DOES 1- 20, MEMBERS OF THE PENSION COMMITTEE FOR THE RETIREMENT PLAN FOR SSM EMPLOYEES, each an individual, and JOHN and JANE DOES 21- 40, each an individual, the Defendants, Case No. 4:16-cv-01669-HEA, was transferred from the U.S. District Court for the Southern District of Illinois, to the U.S. District Court for the Eastern District of Missouri. The District Court Clerk assigned Case No. 4:16-cv-01669-HEA to the proceeding. The case is assigned to District Judge Henry Edward Autrey. The case seeks an Order requiring SSM Health to comply with Employee Retirement Income Security Act (ERISA) and afford the Class all the protections of ERISA with respect to SSM Health's defined benefit pension plans, as well as an Order finding that the Church Plan exemption, as claimed by SSM Health, is unconstitutional because it violates the Establishment Clause of the First Amendment. According to the complaint, the ERISA Church Plan exemption, as claimed by SSM Health, is an attempt to extend the accommodation beyond churches and associations of churches, to SSM Health -- a non-profit hospital conglomerate that has chosen to compete with commercial businesses, including other non-profits as well as for- profits, by entering the economic arena and trafficking in the marketplace. Extension of the Church Plan exemption to SSM Health violates the Establishment Clause because it (A) is not necessary to further the stated purposes of the exemption, (B) harms SSM Health workers, (C) puts SSM Health competitors at an economic disadvantage, (D) relieves SSM Health of no genuine religious burden created by ERISA, and (E) creates more government entanglement with alleged religious beliefs than compliance with ERISA creates. SSM Health is a Catholic, not-for-profit United States health care system. More than 1,300 physicians and 29,500 others employees in four states are employed by SSM. SSM is one of the largest employers in the cities it serves. The Plaintiff is represented by: Matthew H. Armstrong, Esq. ARMSTRONG LAW FIRM LLC 8816 Manchester Road, No. 109 St. Louis MO 63144 Telephone: (314) 258 0212 E-mail: matt@mattarmstronglaw.com - and - Karen L. Handorf, Esq. Michelle C. Yau, Esq. Mary J. Bortscheller, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: khandorf@cohenmilstein.com myau@cohenmilstein.com mbortscheller@cohenmilstein.com - and - Lynn Lincoln Sarko, Esq. Erin M. Riley, Esq. Ron Kilgard, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623 1900 Facsimile: (206) 623 3384 E-mail: lsarko@kellerrohrback.com eriley@kellerrohrback.com rkilgard@kellerrohrback.com STEEL DYNAMICS: Settles Class Action for $4.6 Million ----------------------------------------------------- Recycling Today reports that Steel Dynamics Inc., a steel producer headquartered in Fort Wayne, Indiana, has entered into an agreement to settle the direct purchaser class-action litigation, Standard Iron Works v. Arcelor Mittal, et al, for $4.6 million. The lawsuit was brought in Chicago federal court in 2008 by a class of direct steel purchasers, alleging that the company, among other steel producers, had participated in a conspiracy with other steel manufacturers to restrict steel production. A motion for summary judgment, earlier filed by SDI, was pending at the time of settlement. The settlement requires preliminary and final approval by the court, which the company anticipates it will receive. Following preliminary approval by the court, members of the class will be given an opportunity to opt out of the settlement. Following court approval and payment, SDI will receive a full release of all claims that were or could have been brought by all participating class members. An existing, separate claim by "indirect" purchasers is not affected by this settlement, though SDI and the other defendants have filed a Motion to Dismiss. In a news release announcing the settlement, Mark Millett, president and CEO of SDI, says, "While we had great confidence that we would prevail on the facts and the law, we felt it was prudent at this time to exit this costly, protracted and distracting litigation. We maintained at all times that the lawsuit was without merit and that we did not conspire to limit steel production. To the contrary, the facts amply demonstrated that we both increased existing production and expanded our production capabilities during the relevant time period, and we believe plaintiffs ultimately recognized these facts." SUNEDISON INC: "Dull" Suit Consolidated in MDL 2742 --------------------------------------------------- The case captioned JULIE DULL and ERIC O'DAY, individually and on behalf of the SunEdison Retirement Savings Plan, and all other similarly situated Plan participants and beneficiaries, Plaintiffs, vs. SUNEDISON, INC. INVESTMENT COMMITTEE, SUNEDISON, INC., STATE STREET BANK & TRUST CO., JAMES B. WILLIAMS, RANDY H. ZWIRN, AHMAD R. CHATILA, EMMANUEL T. HERNANDEZ, ANTONIO R. ALVAREZ, PETER BLACKMORE, CLAYTON C. DALEY, JR., GEORGANNE C. PROCTOR, STEVEN V. TESORIERE, MATTHEW HERZBERG, and DOE DEFENDANTS 1-10, Defendants, Case No. 4:16-cv-00173 (E.D. Mo., February 9, 2016) was transferred from the United States District Court for the Eastern District of Missouri to the to the U.S. District Court for the Southern District of New York. The New York District Court Clerk assigned Case No. 1:16-cv-08163 to the proceeding. The Case is consolidated in the multidistrict litigation titled In re: Sunedison, Inc., Securities Litigation, MDL No. 1:16-md-02742- PKC. According to an order entered by the United States Judicial Panel on Multidistrict Litigation, it appears that the actions in the litigation involve questions of fact that are common to the actions previously transferred to the Southern District of New York and assigned to Judge P. Kevin Castel. In her complaint, Ms. Dull seeks recovery for alleged damages caused to Plaintiffs and the purported Class due to the failure of the Defendants, fiduciaries of the Plan, to protect the interests of Plan Participants in violation of the Defendants' obligations under the Employee Retirement Income Security Act. Defendants allegedly breached their fiduciary duties under ERISA by retaining SunEdison common stock as an investment option under the Plan, when a reasonable fiduciary using the care, skill, prudence, and diligence that a prudent man acting in a like capacity and familiar with such matters would have done otherwise. Initial Conference in MDL 2742 is set for December 19, 2016, at 2:00 p.m. in Courtroom 11D, 500 Pearl Street, New York, NY 10007 before Judge P. Kevin Castel, according to a docket entry dated October 26, 2016. SunEdison is a Delaware corporation headquartered in Maryland Heights, Missouri. SunEdison finances, builds, owns, and operates various solar and wind power plants, having developed over 1,300 solar and wind projects in 20 countries. Originally a silicon- wafer manufacturer established in 1959 as the Monsanto Electronic Materials Company, the Company began as a manufacturer of silicon wafers, a basic element of semiconductor-chip manufacturing. The Company entered the solar energy market in 2006 and changed its name to SunEdison in May 2013 to reflect the Company's move into solar energy. In May 2014, SunEdison formally separated its electronics-wafer business from its solar-wafer and solar-energy business, creating the new corporate entity SunEdison Semiconductor, Ltd., with SunEdison, Inc. maintaining a majority stake as the largest shareholder. The Plaintiffs are represented by: Richard B. Hein, Esq. THE HEIN LAW FIRM, L.C. 7750 Clayton Road, Suite 102 St. Louis, MO 63117 Phone: (314) 645-7900 Fax: (314) 645-7901 - and - Francis A. Bottini, Jr., Esq. Albert Y. Chang, Esq. Yury A. Kolesnikov, Esq. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Phone: (858) 914-2001 Fax: (858) 914-2002 T&D SOLUTIONS: "Casselberry" Sues Over Unpaid Overtime -------------------------------------------------------- Brent Casselberry, Cody Brummett, Brannon Reed and Tom Miech, individually and on behalf of all others similarly situated Plaintiffs, v. T&D Solutions, LLC, Defendant, Case No. 1:16-cv- 01180 (W.D. Tex., October 28, 2016), seeks to recover unpaid overtime wages under the Fair Labor Standards Act. T&D Solutions, LLC, is a provider of construction and maintenance services for electric transmission and distribution lines throughout the Southwest. Plaintiff is represented by: W. Jackson Wisdom, Esq. MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, TX 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 Email: wisdom@mdjwlaw.com TERRIBLE HERBST: Nevada Rules Reinforce Minimum Wage Amendment -------------------------------------------------------------- Justice Kristina Pickering of the Supreme Court of Nevada, affirmed the district court's order granting respondent's motion for judgment on the pleadings, in the case DEBORAH PERRY, AN INDIVIDUAL, ON BEHALF OF HERSELF AND ALL SIMILARLY SITUATED INDIVIDUALS, Appellant, v. TERRIBLE HERBST, INC., A NEVADA CORPORATION, D/B/A TERRIBLE HERBST, Respondent, No. 68030 (Nev.) Appellant Deborah Perry worked as a cashier at one of respondent Terrible Herbst, Inc.'s convenience and gas station stores in Clark County, Nevada, from May 2007 until March 2012. More than two years after she last worked for Terrible Herbst, in July of 2014, Perry filed a class action lawsuit, alleging that Terrible Herbst failed to pay her and other similarly situated employees the minimum wage required by the Minimum Wage Amendment (MWA) to the Nevada Constitution. In her complaint, Perry asserted that she was paid less than $8.25 an hour even though Terrible Herbst failed to provide her with a qualifying health insurance plan. The complaint was later amended to name other plaintiffs with similar claims against Terrible Herbst. Terrible Herbst filed a motion for judgment on the pleadings under NRCP 12(c). Citing the two-year statute of limitations in NRS 608.260, Terrible Herbst sought judgment in its favor on all claims for damages that were more than two years old in July 2014, when Perry filed suit. The district court granted the motion for judgment on the pleadings under NRCP 12(c). Justice Pickering affirmed the district court's order granting respondent's motion for judgment on the pleadings, stating that when a right of action does not have an express limitation period, the most closely analogous limitations period will be applied. Since the MWA does not expressly indicate which limitations period applies and the most closely analogous statute to the MWA is NRS 608.260, as both permit an employee to sue his employer for failure to pay the minimum wage and by applying the NRS 608.260 limitations period which is consistent with Nevada minimum wage law, the district court's order granting Terrible Herbst's motion for judgment on the pleadings is affirmed and Perry's claim is dismissed. A copy of Justice Pickering's opinion dated October 27, 2016, is available at https://goo.gl/XOmEMs from Leagle.com. Bradley S. Schrager -- bschrager@wrslawyers.com -- Daniel Bravo -- dbravo@wrslawyers.com -- Don Springmeyer -- dspringmeyer@wrslawyers.com -- at Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, for Appellant Montgomery Y. Paek -- mpaek@littler.com -- Kathryn B. Blakey -- kblakey@littler.com -- Roger L. Grandgenett, II -- rgrandgenett@littler.com -- Rick D. Roskelley -- rroskelley@littler.com -- at Littler Mendelson, P.C., for Respondent The Supreme Court of Nevada panel consists of Justices James W. Hardesty, Kristina Pickering, Mark Gibbons, Michael A. Cherry nad Ron D. Parraguirre. TILE SHOP: Beaver County Retirement Fund Suit Underway ------------------------------------------------------ Tile Shop Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 27, 2016, for the quarterly period ended September 30, 2016, that the parties in the case, Beaver County Employees' Retirement Fund, et al. v. Tile Shop Holdings, Inc., et al., are in the process of briefing and arguing dispositive motions. The Company, two of its former executive officers, five of its outside directors, and certain companies affiliated with the directors, are defendants in a consolidated class action brought under the federal securities laws and now pending in the United States District Court for the District of Minnesota under the caption Beaver County Employees' Retirement Fund, et al. v. Tile Shop Holdings, Inc., et al. Several related actions were filed in 2013 and subsequently consolidated. The plaintiffs are three investors who represent classes consisting of (1) all purchasers of Tile Shop common stock between August 22, 2012 and January 28, 2014 (the "class period"), seeking to pursue remedies under the Securities Exchange Act of 1934; and (2) all purchasers of Tile Shop common stock pursuant and/or traceable to the Company's December 2012 registration statement, seeking to pursue remedies under the Securities Act of 1933. Six firms who were underwriters in the December 2012 secondary public offering are also named as defendants. The plaintiffs allege that during the class period, defendants failed to disclose certain related party transactions in the Company's SEC filings and press releases. The plaintiffs assert claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, and under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. In addition to attorneys' fees and costs, the plaintiffs seek to recover damages on behalf of class members. Discovery has closed, and the parties are in the process of briefing and arguing dispositive motions. Ghe Company is a specialty retailer of manufactured and natural stone tiles, setting and maintenance materials, and related accessories in the United States. The Company manufactures its own setting and maintenance materials, such as thinset, grout, and sealers. The Company's primary market is retail sales to consumers, contractors, designers and home builders. As of September 30, 2016, the Company had 120 stores in 31 states and an on-line retail operation. The Company also has distribution centers located in Michigan, New Jersey, Oklahoma, Virginia, and Wisconsin. The Company has a sourcing operation located in China. TIMEWARNER INC: "Chan" Files Antitrust Suit in Calif. Ct. --------------------------------------------------------- Peng Chan, on behalf of himself and all others similarly situated, Plaintiff, v. TimeWarner, Inc., Mazher Mahmood, Jim Barksdale, John Hanke, Chris DeWolfe, News Corporation, Inc., Alphabet, Inc., Barry D iller, Edgar Bronfman, Jr., Defendants, Case No. 5:16-cv- 06268 (N.D. Cal., October 30, 2016), seeks pre-judgment and post- judgment interest provided by law or allowed in equity, costs of this litigation, nominal damages, compensatory damages, restitution of all monies due, disgorged profits from unlawful business practices, treble damages and all such other and further relief resulting from fraudulent concealment, a Blasius violation, Interference with Economic Advantage under California Law, fraud, deceit and concealment, unjust enrichment under California Law and violation of the Sherman Act, Clayton Act, California's Cartwright Act and California's Unfair Competition Statute and Lanham Act provision 1125 against Defendants News Corporation, IAC, AskJeeves, DeWolfe, Rosenblatt, Yang, Carlick, Brewer, Orrick Law. The class action challenges an antitrust conspiracy to depress the value of Plaintiff's and Intermix Media, Inc. shareholders' shares between October 30, 2003 and September 30, 2005 at the time of its sale to News Corporation. Plaintiffs owned registrable securities or common stock in Intermix. Intermix was the controlling and majority shareholder and owner of MySpace, Inc., a shell corporation set up to sell-off at an unfairly low prices. Plaintiff is represented by: Jared Peterson, Esq. LAW OFFICE OF JARED PETERSON 2003 South El Camino Real, Suite 119 Oceanside, CA 92054 Tel: (866) 328-4060 Email: jplaw1@protonmail.com TITAN MOTOR: "Lopez" Sues Over Unpaid Overtime, Commissions ----------------------------------------------------------- David Lopez, on behalf of himself and others similarly situated, Plaintiffs, v. Titan Motor Group, LLC, Sunrise Infiniti, LLC dba Infiniti of Lynbrook, Joseph Valentino and Scott Reback, Defendants, Case No. 608342/2016, (N.Y. Sup., October 27, 2016), seeks to recover unpaid commissions, overtime compensation, penalties, interest, damages, attorneys' fees and costs under New York Labor Laws. Defendants, operating under the business name Atlantic Automotive Group, employed Plaintiff as an inventory swap manager at their dealership, Infinity of Lynnbrook. Plaintiff is represented by: Michael A. Tompkins LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 TLC Cleaners: "Chang" Sues Over Unpaid Overtime ----------------------------------------------- Yujin Chang, Plaintiff, v. Jong Ho Kim, Young E. Kim, Yorktown Cleaners, Inc. and TLC Cleaners at Sully Station, Defendants, Case No. 5:16-cv-00636 (E.D. Va., October 28, 2016), seeks to recover unpaid overtime wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Fair Labor Standards Act. Chang seeks designation of this action as a collective action on behalf of herself and those similarly situated. Defendants are engaged in the laundry business where Plaintiff and other similarly situated employees worked as laborers at Defendants' stores. Chang worked as a cashier and helper. Plaintiff is represented by: Hyunkweon Ryu RYU & RYU, PLC 301 Maple Ave West, Suite 620 Vienna VA 22180 Phone: (703) 319-0001 Fax: (703) 562-0787 TRUMP UNIVERSITY: Nov. 10 Hearing on Motions to Exclude Evidence ---------------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that former Trump University students suing Republican presidential nominee Donald Trump say things he's said and have been said about him on the campaign trail should be fair game during a class action trial in San Diego, later this month. In an opposition to Trump's motion to exclude election fodder filed November 1, Sonny Low and the other plaintiffs say Trump's request demands "the court create a new category of immunity to protect him from himself." The class sued Trump in 2010, claiming he defrauded Trump University students with a "get rich quick" scheme that was supposed to teach real estate secrets to those hoping to cash in on the foreclosure crisis. Some students paid upwards of $35,000 for advice they claim was little more than an infomercial. In the final countdown to the post-election trial, both parties filed a host of documents on Oct. 20 detailing evidence they'd like U.S. District Judge Gonzalo Curiel to exclude from trial. Most notably, Trump wants everything he said or has been said about him during his presidential stump -- including things he's said about the case, plaintiffs and judge -- from being allowed as evidence. The candidate claims he will be prejudiced if evidence that "has nothing to do with the trial" but everything to do with the election is allowed by Curiel. But the plaintiffs say Trump wants to "rig" the trial by "hiding the jury from his own words." They say no court has provided the kind of "blanket immunity" Trump wants, simply because the comments he's made are "so numerous Trump does not even try to identify them all." The plaintiffs want Curiel to deny Trump's blanket order, saying the candidate "has only himself to blame." Trump's motion should be denied outright for vagueness, since it is "practically boundless" and does not specify what evidence Trump and his legal team want to exclude, they add. "By casting such an overbroad net, defendants hope to ensnare even admissible evidence with a sweeping ruling that would inflict maximum collateral damage on plaintiffs' ability to put on their case-in-chief, impeach witnesses or rebut evidence," according to the opposition. Because Trump is an individual defendant in the case and it's primarily about his conduct related to Trump University, what he's said and has been said about him the past 1 « years should not be excluded by a blanket order, the plaintiffs say. "As they have demonstrated throughout this litigation, plaintiffs have no desire to politicize this case. On the other hand, Trump has repeatedly done so," the class says. They add they should not have to do Trump's work "for him" by trying to identify what he wants excluded. "He chose not to identify a single statement he wishes to exclude, and neither the court nor the plaintiffs should attempt to fill in this gigantic blank by identifying examples of inadmissible and admissible statements," the class says. Among the list of vague topics Trump seeks to exclude is information related to his other business ventures -- including Trump Organization, which the plaintiffs say was interconnected with Trump University. Trump also wants to exclude statements made by politicians or public servants, including a finding by the New York State Education Department that Trump University unlawfully called itself a "university." The class claims the evidence is not unfairly prejudicial, but could be harmful to Trump's defense. They even point to a "Saturday Night Live" sketch where actor Alec Baldwin, playing Trump, said the election was rigged by "taking all of the things I say, and all of the things I do, and putting them on TV." According to the class, "Simply because evidence tends to undercut Trump's defense or ability to appear as a credible witness cannot warrant its exclusion." Without specifics, the plaintiffs say the court has no "way of sensibly ruling" on Trump's motion to exclude other than to deny it. A hearing on the motions to exclude evidence is scheduled for Nov. 10. The trial kicks off Nov. 28. The case is captioned, SONNY LOW, J.R. EVERETT and JOHN BROWN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, vs. TRUMP UNIVERSITY, LLC, a New York Limited Liability Company and DONALD J. TRUMP, Defendants., No. 3:10-cv- 0940-GPC(WVG)(N.D.Cal.). TRUMP UNIVERSITY: Parties Still Disagree on Trial Process --------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that with the first Trump University class action approaching its post- election trial date, recently filed court documents reveal attorneys on both sides still can't agree on how the trial should be litigated. Attorneys for both parties in the Low v. Trump University class action have submitted the first of their proposed jury instructions and special verdict forms which will advise the jury of the issues at hand in the consumer protection case. Sonny Low and the other plaintiffs sued Republican presidential nominee Donald Trump and his now-defunct real estate school in 2010, claiming they were duped into paying upwards of $35,000 to learn insider real estate secrets from instructors purported to be handpicked by Trump himself. It turned out Trump was not involved much in the selection of teachers, and his attorneys have since said the school relied on "sales puffery" common in the advertising world to market itself as relying heavily on Trump's celebrity. The trial will be two phases, with the jury tasked to decide in phase one if Trump is liable for using false advertising to get thousands of people to invest in Trump University. If Trump is found liable, phase two will determine what damages should be awarded to the former students. In a host of court documents filed over the past few months, attorneys on both sides have revealed their inability to cooperate as the trial nears. Months after the trial date was set by U.S. District Judge Gonzalo Curiel, Trump's lead attorney Daniel Petrocelli tried to get the trial date pushed back due to a conflicting trial scheduled in another federal court. The plaintiffs' attorney Jason Forge vehemently opposed the request, calling it a "tactical decision that should not be rewarded by the court," and Curiel denied pushing back the 6 «-year-old case. The latest trial documents filed Oct. 28 by the plaintiffs say the class "did their best" to jointly submit proposed jury instructions agreed upon by both parties, but Trump and the other defendants failed to respond to the plaintiffs' edits. They claim Trump tried to "limit plaintiffs' ability to respond to newly cited authorities" and refused to authorize the filing because plaintiffs' "corrected defendants' last-minute misrepresentation of a prior order of this court, among other changes." The class adds, "Plaintiffs remain ready and willing to collaborate with defendants and reach agreement to the extent possible, but cannot do so on their own." Nearly every jury instruction in the massive 148-page filing was disputed by the plaintiffs or defendants. The plaintiffs want Curiel to allow them to respond to any further changes made by Trump and the others to the jury instruction document which Curiel will read to the jury before the trial begins. That supposed misrepresentation cited by the class is regarding the "sales puffery" argument that's been a main sticking point for the parties throughout the past year. The plaintiffs say Trump University misrepresented to consumers instructors were handpicked by Trump himself in violation of California Consumers Legal Remedy Act. That misrepresentation was material, the plaintiffs say, in that consumers relied on it in deciding to purchase a Trump University education and the defendants knew consumers would rely on the misrepresentation when making a purchase decision. Low and the other plaintiffs object to Trump's proposed jury instructions on materiality and puffery, saying the defendants "misleadingly" put brackets around Curiel's prior order on puffery -- adding nothing to the analysis in an improper "attempt to insert the issue as a separate inquiry for trial." The plaintiffs also say the separate jury instruction on puffery "improperly engraft additional elements onto plaintiffs' claims" and argue the definition of puffery is "subsumed" by the definition of material making it unnecessary to distinguish between the two. They also claim jury instructions on puffery are "rarely, if ever, given." Surprisingly, the parties agreed on instructions prohibiting jurors from discussing the details of the high-profile case in person or electronically, a standard instruction read to jurors deciding civil cases. It does not appear the jurors will be subject to heightened security concerns surrounding the case, but more information could be revealed in a jury questionnaire not yet filed with the court. The Low v. Trump University trial is set begin Nov. 28. The case is captioned, SONNY LOW, J.R. EVERETT and JOHN BROWN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, vs. TRUMP UNIVERSITY, LLC, a New York Limited Liability Company and DONALD J. TRUMP, Defendants. No. 3:10-cv- 0940-GPC(WVG)(S.D.Cal.). UBER TECHNOLOGIES: "Burgos" Sues Over Unpaid Gratuities and Wages ----------------------------------------------------------------- Matthew B. Burgos, individually and on behalf of all similarly situated employees, Plaintiff, v. Uber Technologies, Inc. and Portier, LLC, Defendants, Case No. 1:16-cv-08512, (S.D. N.Y. November 1, 2016), seeks reimbursement of all gratuities earned, legal tools-of-the-trade expenses, and minimum wages under the Fair Labor Standards Act, New York Labor Laws and the Fair Play Act. Matthew B. Burgos worked as a foot and bike courier for the Defendants. UBER launched UBEReats, a food delivery service that employed bike and foot messengers to deliver packages. Plaintiff is represented by: Richard M. Garbarini, Esq. GARBARINI FITZGERALD P.C. 250 Park Avenue, 7th Floor New York, NY 10177 Telephone: (212) 300-5358 Facsimile: (347) 218-9478 UBER TECHNOLOGIES: Faces Wage Theft Class Action in New York ----------------------------------------------------------- Kevin McGowan, writing for Bloomberg BNA, reports that a New York City taxi drivers' union and individual drivers sued Uber Technologies Inc. for the second time in four months, claiming the ride-sharing company engages in "wage theft" by not paying drivers either the minimum wage or for overtime (N.Y. Taxi Workers All. v. Uber Techs, Inc., S.D.N.Y., No. 16-8299, complaint filed 10/24/16). The parties' original lawsuit, filed June 2 in federal district court in Manhattan, alleged Uber violates the Fair Labor Standards Act and the New York Labor Law. In a tactical move, four of 10 drivers named in the original class action Oct. 24 filed a second complaint that makes the same substantive claims. Those drivers, who haven't opted out of arbitration agreements with Uber, will contend the National Labor Relations Act bars arbitration pacts containing class action waivers, said attorney Jeanne E. Mirer, who represents the union and drivers in both cases. They will argue Uber can't compel them to arbitrate the employment dispute, Mirer told Bloomberg BNA Oct. 26. Meanwhile, the union and the six drivers in the original lawsuit who opted out of arbitration can more quickly move for court consideration of their "wage theft" claims, she said. Uber representatives weren't immediately available for comment Oct. 26. Whether Uber drivers are employees or independent contractors is being litigated in multiple venues nationwide. Courts have split on whether drivers' claims against Uber regarding their employee status, wages or other working conditions must be arbitrated or may proceed as class actions. In a separate case, a federal judge in New Jersey Oct. 24 dismissed some drivers' Fair Credit Reporting Act claims against Uber and a background check firm after the parties settled the lawsuit for an undisclosed sum. Class Action Waiver Issue Federal appeals courts are split on whether class action waivers violate workers' NLRA rights to engage in concerted activities. The Seventh Circuit and the Ninth Circuit agreed with the National Labor Relations Board that arbitration pacts with such waivers violate workers' rights under the NLRA. But other federal appeals courts, including the Second Circuit, rejected the NLRB's position and upheld class action waivers in arbitration. Multiple petitions for U.S. Supreme Court review are pending, and the justices could decide to hear the NLRA issue this term. After the Uber drivers filed their original complaint in June, the Second Circuit said arbitration pacts with class action waivers are enforceable. The Uber drivers therefore decided to split their lawsuit, Ms. Mirer said, "We definitely want to take part in challenging" the legality of arbitration agreements with class action waivers, she said. In their complaint, the Uber drivers said they lacked the "bargaining power" to resist the "one-sided" arbitration agreements the company presses them to sign. Those agreements require "all claims generally applicable to workers" to be arbitrated while not requiring arbitration on claims that an employer typically would bring, the complaint said. Pay Reduced to Unlawful Levels The two lawsuits are the first class actions filed against Uber for "New York-specific wage theft," the taxi workers' union said in an Oct. 24 statement. Uber deducts sales tax and a surcharge for an injured workers' fund from drivers' pay, after the company takes its own commission, the union said. By contrast, other car service companies in New York add the sales tax and surcharge to the passenger's fare, the union said. Uber's pay practices mean many drivers working more than eight hours a shift earn less than minimum wage and receive no overtime pay, the union said. Uber breached its contracts with the drivers in addition to violating federal and state wage laws, the complaint alleged. No attorney has yet entered an appearance for Uber in the latest case. Littler Mendelson P.C. represents Uber in the original case filed in June. VOLKSWAGEN AG: Judge Okays $14.7BB Emissions Settlement ------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a federal judge approved a $14.7 billion settlement in the class action lawsuits filed against Volkswagen over its emissions scandal. On Oct. 25, Judge Charles Breyer of the U.S. District Court for the Northern District of California granted final approval to the settlement agreement between Volkswagen and private plaintiffs represented by a court-appointed Plaintiffs' Steering Committee (PSC) to resolve civil claims regarding eligible Volkswagen and Audi 2.0L TDI vehicles in the United States. Judge Breyer also approved a Consent Decree between Volkswagen and the U.S. Department of Justice on behalf of the Environmental Protection Agency (EPA) and the State of California by and through the California Air Resources Board (CARB) and the California Attorney General; and a Consent Order between Volkswagen and the U.S. Federal Trade Commission. Under the settlement, the German automaker is required to spend up to $10 billion on vehicle buybacks and owner compensation. It also must pay $2.7 billion into a trust to support environmental programs and reduce emissions, and spend an additional $2 billion on investments and promotion of zero emissions vehicles. According to the final approval order, the settlement also requires Volkswagen to pay reasonable attorneys' fees and costs. Class counsel has agreed to seek no more than $324 million, plus no more than $8.5 million in actual and reasonable out-of-pocket costs, for expenses incurred through Oct. 18, 2016. Judge Breyer said the settlement, considered to be the largest auto-scandal settlement in U.S. history, is "fair, reasonable and adequate." "Given the risks of prolonged litigation, the immediate settlement of this matter is far preferable," the judge noted in the final approval order. "As the Court stated at the outset, the priority was to get the polluting cars off the road as soon as possible. The Settlement does that. It requires Volkswagen to make the funds to compensate Class Members available within ten days of the Court's final approval order, and the Buyback program will begin immediately upon final approval of the Settlement and entry of the United States' Consent Decree." The judge continued, "For those Class Members who elect a Fix, the Consent Decree sets forth a schedule for Volkswagen to submit proposed Fixes; the last deadline for Volkswagen's final submittal is October 30, 2017. And, if no Fix is approved, Class Members may instead participate in a Buyback. The Settlement thus ensures Class Members that a remedy -- whether a Buyback or a Fix -- is available immediately or, at the latest, 2018." In particular, under the settlement, Volkswagen has agreed to: buy back, terminate leases or provide approved emissions modifications for nearly 475,000 2.0-liter TDI diesel cars in the United States; provide cash payments to owners/lessees?; pay for environmental remediation; and promote zero emissions vehicle technology. The following 2.0L TDI engine vehicles are included in the settlement program: VW Beetle, 2013-15; VW Golf, 2010-15; VW Jetta, 2009-15; VW Passat, 2012-15; and Audi A3, 2010-13 and 2015. Basically, owners and lessees can choose to have Volkswagen buy back their cars or do an early lease termination, and receive cash; or they can have their cars modified to improve emissions and receive a cash payment. However, any modifications must be approved by the EPA and CARB. Last year, Volkswagen admitted to intentionally programming turbocharged direct injection, or TDI, diesel engines to activate certain emissions controls only during laboratory emissions testing. Volkswagen and Audi owners began filing class actions soon after, claiming fraud and breach of contract due to expected reductions in horsepower and fuel efficiency. Investors lawsuits also were filed to seek compensation for the drop in stock value due to the scandal. "Final approval of the 2.0L TDI settlement is an important milestone in our journey to making things right in the United States, and we appreciate the efforts of all parties involved in this process," said Hinrich J. Woebcken, president and CEO of Volkswagen Group of America Inc. "Volkswagen is committed to ensuring that the program is now carried out as seamlessly as possible for our affected customers and has devoted significant resources and personnel to making their experience a positive one." The company said it "remains focused" on resolving other outstanding issues in the United States and continues to work towards an agreed resolution for customers with affected 3.0L TDI V6 diesel engines. California Attorney General Kamala Harris, whose office helped negotiate the settlement, said she was pleased with the settlement's terms. "Curbing emissions is vital to protecting our planet for future generations and the deceit Volkswagen practiced in pursuit of profit is unconscionable," she said in a statement. "This agreement holds the company accountable for violating California and federal environmental protection laws and requires major investments in our environment and zero emission technology, including over a billion dollars for California alone." In addition to providing consumer relief funding, California will receive $1.18 billion, representing more than one-quarter of the funding VW must provide for environmental projects in states injured by the company's conduct and investments it must make in zero emission technology. Ms. Harris also secured an additional $86 million in civil penalties as part of a second partial settlement over the company's use of "defeat devices" to evade emissions testing in its diesel vehicles. But not all were pleased with the terms of the agreement. The Competitive Enterprise Institute's Center for Class Action Fairness called it "disappointing." The Washington, D.C.-based public-interest law firm, which represents class members against unfair class action procedures and settlements, argues the agreement provides zero marginal benefit for the class. "This $10 billion settlement is a bad deal for consumers -- the actual value to consumers will be far less than that and would have been available to consumers even without this class action settlement," said CEI attorney Anna St. John, who argued against the settlement approval before the court in San Francisco. "What's worse is how inadequately the plaintiffs' attorneys represented their clients in this case. "Class counsel violated their fiduciary duty by misinforming and ultimately duping 475,000 class members into a settlement that will potentially pay their attorneys hundreds of millions of dollars for providing them next to nothing. These dollars should be going to the class, but instead, the lawyers' decision to structure the settlement with self-dealing gimmicks may have cost Volkswagen owners more than a billion dollars." St. John put down Breyer's adoption of class counsel's claim that the attorneys' fees will not diminish the benefits award to class members under the settlement. "Volkswagen is an economic actor with rational expectations, and the expected excessive attorney-fee request was baked into its reservation price and adversely affected what consumers received," she said. According to a January order by the federal court, Elizabeth J. Cabraser of San Francisco firm Lieff Cabraser Heimann & Bernstein LLP was appointed plaintiffs' lead counsel and chair of the PSC. Among those firms listed as members of the steering committee were Charleston, W.Va., firm Bailey and Glasser LLP; Seattle firm Keller Rohrback LLP; South Carolina firm Motley Rice LLC; New York firm Weitz & Luxenberg PC; Seattle firm Hagens Berman Sobol Shapiro LLP; and Encino, Calif., firm Baron Budd PC. WERNER ENTERPRISES: Bid to Certify Classes in "Smith" Suit Denied ----------------------------------------------------------------- The Hon. Lyle E. Strom denied without prejudice the Plaintiffs' motion for class certification as to both the California and Nebraska Classes in the consolidated lawsuits styled EZEQUIEL OLIVARES ABARCA, individually and on behalf of all those similarly situated, ALFREDO ALESNA JR., individually and on behalf of all those similarly situated, DAVID CAGLE, individually and on behalf of all those similarly situated, STEPHEN L. DAVIS, individually and on behalf of all those similarly situated, FRANK EADS, individually and on behalf of all those similarly situated, and KENNETH J. SURMAN, individually and on behalf of all those similarly situated v. WERNER ENTERPRISES, INC., and DOES 1-100, inclusive, Case No. 8:14CV319; and WILLIAM SMITH, on behalf of himself, all others similarly situated, and on behalf of the general public v. WERNER ENTERPRISES, INC., a corporation, and DOES 1-100, inclusive, Case No. 8:15-cv-00287-LES-FG3, both pending in the U.S. District Court for the District of Nebraska. The Plaintiffs "assert violations of California law" and "violations of Nebraska law" causing "some form of injury" due to the Defendants' uniform policy and practice of not paying all wages owed, not paying for all time worked, making improper deductions from pay for work performed, and not providing properly itemized pay statements that accurately reflect hours worked. Judge Strom ruled that the Plaintiffs are granted leave to amend their complaint and the Plaintiffs' amendments to the third amended complaint will be limited to only attempting to provide the Court with an adequately defined and clearly ascertainable definition for the California Class. The Plaintiffs' amendments to the third amended complaint will not substantively alter the current complaint in any other way; including, but not limited to, adding additional claims, parties, classes, and/or causes of action. The Plaintiffs' fourth amended complaint will be filed by November 9, 2016, Judge Strom said. The Defendants will have 14 days after the filing of the fourth amended complaint to file an answer. Judge Strom also denied as moot the Defendants' motion for leave to submit additional authority. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=mDJTEfHF WERNER ENTERPRISES: Court Denies Abarca's Bid to Certify Classes ---------------------------------------------------------------- The Hon. Lyle E. Strom denied without prejudice the Plaintiffs' motion for class certification as to both the California and Nebraska Classes in the consolidated lawsuits styled EZEQUIEL OLIVARES ABARCA, individually and on behalf of all those similarly situated, ALFREDO ALESNA JR., individually and on behalf of all those similarly situated, DAVID CAGLE, individually and on behalf of all those similarly situated, STEPHEN L. DAVIS, individually and on behalf of all those similarly situated, FRANK EADS, individually and on behalf of all those similarly situated, and KENNETH J. SURMAN, individually and on behalf of all those similarly situated v. WERNER ENTERPRISES, INC., and DOES 1-100, inclusive, Case No. 8:14-cv-00319-LES-FG3; and WILLIAM SMITH, on behalf of himself, all others similarly situated, and on behalf of the general public v. WERNER ENTERPRISES, INC., a corporation, and DOES 1-100, inclusive, Case No. 8:15CV287, both pending in the U.S. District Court for the District of Nebraska. The Plaintiffs "assert violations of California law" and "violations of Nebraska law" causing "some form of injury" due to the Defendants' uniform policy and practice of not paying all wages owed, not paying for all time worked, making improper deductions from pay for work performed, and not providing properly itemized pay statements that accurately reflect hours worked. Judge Strom ruled that the Plaintiffs are granted leave to amend their complaint and the Plaintiffs' amendments to the third amended complaint will be limited to only attempting to provide the Court with an adequately defined and clearly ascertainable definition for the California Class. The Plaintiffs' amendments to the third amended complaint will not substantively alter the current complaint in any other way; including, but not limited to, adding additional claims, parties, classes, and/or causes of action. The Plaintiffs' fourth amended complaint will be filed by November 9, 2016, Judge Strom said. The Defendants will have 14 days after the filing of the fourth amended complaint to file an answer. Judge Strom also denied as moot the Defendants' motion for leave to submit additional authority. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Hp0Sg65L WEST VIRGINIA: Jury Selection in Chemical Spill Case Moved ---------------------------------------------------------- The Associated Press reports that a federal judge has again postponed the trial against the water company accused of insufficiently safeguarding West Virginia's capital city from a chemical spill that polluted the drinking water of thousands of people in 2014. According to court officials, U.S. District Judge John Copenhaver has moved jury selection from Oct. 28 to Oct. 31. Attorneys for Charleston-area residents and West Virginia American Water have been discussing a possible settlement. Eastman Chemical, maker of the chemical, and plaintiffs' lawyers reached a proposed settlement on Oct. 27 for undisclosed terms. Settlements would apply to about 225,000 people and more than 7,000 businesses whose tap water was contaminated for several days. The chemical leaked from a storage tank of now bankrupt Freedom Industries into the Elk River in January 2014, upstream from the water system intake. WOW AIR: Faces Breach of Contract Class Action in California ------------------------------------------------------------ Jenie Mallari-Torres, writing for Legal Newsline, reports that two California customers are suing an Icelandic airline, alleging breach of contract. Brenda Leerar of Marin County and Samantha Robman of Los Angeles County filed a class action complaint, on behalf of themselves and all others similarly situated, Oct. 18 in U.S. District Court for the Northern District of California against Wow Air EHF, alleging breach of duty of good faith and fair dealing. According to the complaint, Ms. Leerar, Ms. Robman and those similarly situated individuals suffered substantial monetary damages as a result of having their flights from California to Reykjavik, Iceland, abruptly canceled or delayed for at least three hours or more for unknown reasons. The suit says the class members were not offered rerouting and compensation due under Regulation 261. The plaintiffs allege Wow Air failed to provide compensation to passengers on delayed or canceled flights and caused plaintiffs to retain and pay legal fees. Ms. Leerar and Ms. Robman seek trial by jury, judgment against the defendant, certifying the case as a class action, damages, interest, attorney fees, litigation expenses, costs of suit and all other relief the court deems just. They are represented by attorneys Gordon W. Renneisen -- grenneisen@cornerlaw.com -- and Paul J. Byrne -- pbyrne@cornerlaw.com -- of Cornerstone Law Group in San Francisco. U.S. District Court for the Northern District of California Case number 3:16-cv-06011 WYNYARD: More Than 1,000 Shareholders Join Class Action ------------------------------------------------------- NZCity reports that the organizer of a proposed class action against the directors of failed intelligence software company Wynyard said there has been a rash of shareholders sign up this since the board appointed voluntary administrators. Logic Funds manager Greg Marshall said more than 1,000 Wynyard shareholders have put their names forward to join the proposed class action, including 200 on Oct. 26 alone. KordaMentha's Neale Jackson and Grant Graham have been appointed administrators to explore options to retain value in the business after the board gave up on drawing a $10 million loan from major shareholder Skipton Building Society or trying to raise new capital. The Auckland-based company had burned through cash and struggled to deliver on revenue guidance, and its shares had plunged to 21.5 cents when trading in them was halted. Mr. Marshall, who successfully waged a campaign that led to a $60 million settlement for Credit Sails investors, said the appointment of administrators is helpful to the planned action which will still go ahead against the company's current and former directors. If anything, the move "buttresses our claims that this company has misled investors and potentially employees", he said. Wynyard, which develops software used by governments and companies to fight crime and corruption, listed on the NZX in July 2013 selling shares in an initial public offering at $1.15 each. The potential claim by investors has been extended to cover the period from the IPO to Oct. 27 instead of the originally proposed period of August 1, 2015, to February 16, 2016. The claim will centre on Wynyard having misled investors over statements relating to the $26m reported revenue for 2015 falling well short of its guidance of $40m-$45m and director comments on the status of the deeply-discounted $30m capital raising in March at $2 per share. Due to the extended period the class action will cover, different groups of shareholders have suffered varying losses. Mr Marshall said the current discussions he's having with "aggressive legal minds in Australia" is how to run parallel cases for each shareholder group under one umbrella class action. Shareholders will not be asked to pay anything towards the proposed action. Mr. Marshall said he hopes to have a "more solid legal plan" together by the end of this year and for the legal action to start rolling out next March. "It will take time. Credit Sails took three-and-a-half years and this one will take two-to-three years is my guess," he said. "We want to step out with the most impressive claim and Rolls Royce advisers so we can force a settlement rather than have to slug it out." YALE ASSOCIATES: Must Defend Against "Noye" FCRA Suit ----------------------------------------------------- District Judge Yvette Kane of the Middle District of Pennsylvania, denied defendant's motion to strike class allegation and partially dismiss the complaint, entitled T JASON NOYE, individually and on behalf of all others similarly situated, Plaintiffs, v. YALE ASSOCIATES, INC., Defendant, No. 1:15-cv-2253 (M.D. Pa.) Yale Associates, Inc. operates a national database of public records and furnishes consumer reports for employers. Jason Noye applied for the position of Operations Supervisor with Johnson & Johnson through a staffing company, Kelly Services, Inc. (Kelly). Noye was offered and accepted the position on February 11, 2015. In his application, Noye indicated that he had been convicted of a crime. Kelly requested information about Noye's conviction, and Noye provided the additional documentation shortly thereafter. On March 13, 2015, Kelly informed Noye that Johnson & Johnson would not hire him based on a background report obtained from Yale Associates. Noye alleges that Yale misreported 4 summary offenses as misdemeanors and 3 summary offenses as safety violations in Noye's background report. On November 24, 2015, Noye initiated an action against Yale for violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. Sections 1681 et seq. In count I of the complaint, Noye alleges that Yale violated the FCRA's requirement to notify the fact that adverse public and criminal record information is being provided to employers or prospective employers and maintain strict procedures to insure that the public record information it sells to employers is complete and up to date. In count II, Noye alleges that Yale willfully and negligently misreported summary offenses in Pennsylvania as misdemeanors or more serious offenses, thus failing, to follow reasonable procedures to assure maximum possible accuracy of the information. Noye brought the action on behalf of himself and a putative class and seeks to certify the proposed classes pursuant to Rule 23 and recover statutory damages, punitive damages, as well as reasonable attorneys' fees and costs. On March 17, 2016, Yale filed a motion to strike Noye's class allegations, strike punitive damage requests, and dismiss Count I of the complaint. Judge Kane denied defendant's motion, as the motion to strike plaintiff's class allegation is premature. The court declines to dismiss count I on the basis that plaintiff alleges that defendant failed to comply with both Section 1681k(a)(1) and Section 1681k(a)(2). The court will deny, at the current stage of the proceeding, defendant's motion to strike plaintiff's claims for punitive damages. A copy of Judge Kane's memorandum dated October 27, 2016, is available at https://goo.gl/NdPpW0 from Leagle.com. T. Jason Noye, Plaintiff, represented by David A. Searles -- dsearles@consumerlawfirm.com -- James A. Francis -- jfrancis@consumerlawfirm.com -- John Soumilas -- jsoumilas@consumerlawfirm.com -- at Francis & Mailman, PC; Marielle R. Macher -- Megan Lovett -- at Community Justice Project Yale Associates, Inc., Defendant, represented by Kristi A. Buchholz -- kristi.buchholz@wilsonelser.com -- Louis J. Isaacsohn -- louis.isaacsohn@wilsonelser.com -- at Wilson, Elser, Moskowitz, Edelman & Dicker LLP Monty Pennell and Pennell & Associates, Inc., Amici, represented by James F. Logue -- jflogue@zarwin.com -- at Zarwin, Baum, DeVito, Kaplan, Schaer Toddy * Few Consumers Claim Share of Class Action Settlement ------------------------------------------------------ CBS SF reports that from misleading advertising claims to exposing their customers to identity theft, companies pay tens of millions of dollars each year to settle class action lawsuits aimed at addressing ways they may have wronged their customers. Despite this, relatively few consumers ever claim their share of the awards being offered. "I think consumers would be very surprised at just how many class action lawsuits they are a part of," said Joe Ridout of the organization Consumer Action. He says hundreds of suits are filed each year and dozens are settled. "In very few cases does it reach a tenth of the people who are eligible," explained Mr. Ridout. So, his organization has compiled the searchable Consumer Action Class Action Lawsuit Database that helps consumers check. Current payouts range from 50 cents for Californians who bought a breakfast sandwich at Starbucks between April and August of 2015 to thousands of dollars for those compromised by the 2014 Home Depot data breach. Some require proof of purchase or other documentation, but some do not. "Even for some of these very large amounts, it's not necessarily a high burden of proof," Mr. Ridout said. KPIX 5 legal analyst Melissa Caen points out, it's the lawyers who take home the biggest cut. But she says the threat of a law suit does help to keep companies honest. "The biggest benefit to consumers is that the threat of the lawsuit," said Ms. Caen. Leftover funds are distributed to consumer organizations like Mr. Ridout's, though he'd prefer you get your cut. "We want to get the word out before it's too late," said Mr. Ridout. But beware: applying for a share of settlement you don't deserve is considered fraud. * Manhattan Inst. Balks at NLRB's Stance on Class Action Waivers ---------------------------------------------------------------- Joe Dyton, writing for Legal Newsline, reports that the National Labor Relations Board (NLRB) recently asked the U.S. Supreme Court to determine if arbitration agreements that prohibit employees from pursuing class or collective actions are unlawful under the National Labor Relations Act (NLRA) and unenforceable under the Federal Arbitration Act. On Sept. 9, the NLRB asked the Supreme Court to review and reverse the U.S. Court of Appeals for the Fifth Circuit's ruling that rejected the NLRB's decision that the aforementioned agreements unlawfully interfere with workers' NLRA rights to engage in a concerted activity. While the Second and Eight circuits also rejected the NLRB's position, the Seventh and Ninth circuits supported the NLRB's view. On the other side, employers are filing Supreme Court petitions of their own in hopes of reversing the Seventh and Ninth circuit rulings, which means the court has its hands full with cases presenting the class and collective waiver issue. "I think in a normal situation, in other words, if we had a full, nine-member court, the Supreme Court would be pretty likely to hear this case," Jim Copland, senior fellow at the Manhattan Institute and director of Legal Policy told Legal Newsline. "We have a situation where a circuit is coming out with a holding in the circuit and the NLRB is saying, 'We're not going to acquiesce in that holding.' (But) because of the eight-member court, I think it's questionable what they will grant because there's the chance that it'll be a 4-4 split. It's a tricky situation." Currently, employment arbitration agreements often contain class action waivers and employers would want to hold on to those agreements. The Consumer Financial Protection Bureau is attempting to pass a rule that would prohibit those class action waivers. The current circuit split on the waivers has put businesses in an "unworkable" situation in which they're unsure about the enforceability of the waivers, according to Robert F. Friedman -- rfriedman@littler.com -- Littler Mendelson P.C.'s Dallas office shareholder and co-chair of the firm's Alternative Dispute Resolution Practice Group. A Supreme Court Ruling in favor of the NLRB's position would be a big loss for employers, as they wouldn't be able to enforce class action waivers against the non-supervisory employees they covered. There's also a chance the number of class or collective actions in employment cases could increase. On the employees' side of things, they turn to the NLRA, which grants employees the right to engage in collective action to improve wages, hours and working conditions. If employers can require their employees to sign away their rights to engage in such activity, those statutory rights, "don't mean very much," according to Christine O'Brien, an attorney and labor and employment law professor at Boston College's Carroll School of Management. Mr. Copland said he thinks the NLRB's stance is wrong. "The Federal Arbitration Act is a broad grant of authority to private parties to contract for arbitration and presumptively enforceable; the Supreme Court has clarified that that's the case in both consumer contracts and Anti-Trust context in a pair of decisions," Mr. Copland said. "I don't see any reason why the administrative agencies should be able to override the broad statutory requirement of the Federal Arbitration Act." Mr. Copland doesn't believe the NLRB's actions will have too much impact on the CFPB's proposal and vice versa. "My guess would be that a holding in this case would not necessarily affect the consideration of the CFPB rule-making, so I don't think it'll control that outcome, but I do think it's a parallel situation," he said. "I think at the end of the day, the CFPB and NLRB are both wrong, but they'll be decided somewhat different in terms of analysis the courts will use." * New Wave of Class Actions Target 401(k) Sponsors -------------------------------------------------- Bruce Love, writing for Financial Advisor IQ, reports that a cursory glance at court dockets across the U.S. would leave the casual observer thinking there was something seriously wrong with the way retirement plans are managed in America. The last few years have seen case after case brought against all manner of plan sponsors and their financial-service providers. In August alone several high-profile suits were brought in various courts across the country. As previously reported, in mid-August a $150 million class action suit against Morgan Stanley alleged the firm mismanaged its employees' retirement funds. A week later, national independent financial advisor network Edward Jones became the latest financial services business to be targeted by such a suit from its own employees, joining the ranks of Allianz, American Century, Deutsche Bank, Franklin Templeton, Neuberger Berman, New York Life Investment Management and Putnam. In January a lawsuit against Anthem, Inc. alleged the health insurance company was stacking its 401(k) retirement plan with higher-priced share classes in mutual funds, ignoring lower-cost options. Then in May, as previously reported, Delta Air Lines employees filed suit against their 401(k) plan provider, Fidelity Investments, for alleged fiduciary breaches in the company's record-keeping by accepting a portion of subcontractor Financial Engines' advice fee without adding any value to earn the fee. Other companies recently hit by such suits include aerospace companies Boeing and Lockheed Martin, which last year both agreed to settle for $57 million and $62 million respectively -- so far the largest retirement plan settlements. So is the 401(k) market woefully mismanaged and in need of a major overhaul or has it simply become an easy target for opportunistic trial lawyers in search of their next prey? Jerome Schlichter, senior partner at St. Louis firm Schlichter Bogard & Denton, says in a country where research firm Cerulli Associates estimates there are more than 530,000 401(k) plans serving 56.1 million participants, these "relatively few" lawsuits serve to lower fees and force providers to take their investment choices seriously. "I've heard the argument time and again from opposing counsel that the sky will fall and American employers will be too scared of litigation to risk offering retirement plans. But there's more 401(k) funds with more assets under management than ever before," says Mr. Schlichter. On the country's relatively small retirement plan plaintiffs bar, Mr. Schlichter is widely known by the judiciary and media as the field's pioneer. Like the attorneys who challenged Big Tobacco in the 1990s, Mr. Schlichter's tool of choice is the class action suit, working on contingency in the hopes of grand payouts for his clients -- and himself. About a decade ago Mr. Schlichter said he noticed a dramatic uptick in U.S. retirement plans moving from defined benefit plans -- in which employers promise beneficiaries specific monthly payments on retirement -- to 401(k) defined contribution schemes -- where the employee takes on market risk. Although by 2006, when he filed the first class action in the space, the 401(k) model had become America's predominant retirement system with over 465,400 plans and 48.4 million participants, according to Cerulli Associates data, Mr. Schlichter says there had never been much legal probing of plan fees and investment choices. "We were hearing from plan participants who were confused about the complicated fee structures and investment choices their providers were making," says Mr. Schlichter. While most of these suits are settled out of court, last year one of Mr. Schlichter's cases went all the way to the U.S. Supreme Court, becoming a landmark case in 401(k) litigation. The most common line of attack in class actions against plan sponsors is to allege a violation of the sponsor's duty of loyalty and prudence under the Employee Retirement Income Security Act of 1974, says Charles Field -- cfield@sanfordheisler.com -- a partner in the San Diego office of Sanford Heisler. Mr. Field, the attorney behind the recent suit against Morgan Stanley, accuses the wealth manager of "self-dealing" in its own funds -- stacking the 401(k) with Morgan Stanley vehicles that "consistently underperform compared to other similar collective investment funds" without "thoroughly investigating" whether other third- party funds would be better for participants, according to the complaint. When contacted by FA-IQ, a spokesperson from Morgan Stanley said the company had no comment on the allegations. Mr. Field says Morgan Stanley's alleged breach of the duty it owes to its employees as a plan sponsor is "typical" of those companies which come under fire in such cases. "Companies which offer retirement plans have a continuing duty to monitor and choose the investments in their plans and remove the imprudent ones. If they don't, it's a breach of their duty of prudence." Mr. Field's language closely resembles the decision in Tibble v. Edison International -- the Supreme Court case Mr. Schlichter won last year and has arguably refueled plaintiff trial lawyers for a fresh attack on retirement plan sponsors. Mr. Schlichter himself has recently launched a series of suits on the retirement schemes of high-profile universities which operate 403(b) schemes -- a form of retirement plan open to employees of schools and some tax-exempt organizations. In August Mr. Schlichter filed suits against Columbia, Cornell, Duke, Emory, Johns Hopkins, Massachusetts Institute of Technology, NYU, Northwestern, Penn, USC, Vanderbilt and Yale. While MIT would not comment on the specific allegations in the lawsuit, a spokesperson said the institute offers a comprehensive and competitive suite of retirement benefits to faculty and staff, including a defined benefit pension plan funded entirely by the institute and a supplemental 401(k) plan with a 100% MIT match on employee contributions up to 5% of their pay. "We intend to vigorously defend against the claims asserted in this lawsuit," the spokesperson said in a statement. Mr. Schlichter insists he has been looking into university plans for more than a year. "While fees have come down dramatically in the 401(k) industry following our work, this has not happened in some university plans, and this work culminated in filing the cases," he says. Law firm Sanford Heisler has also levelled a suit at Columbia University alleging fiduciary breaches that include "excessively duplicative" investment choices and offering underperforming funds. A spokesperson for Columbia said in a statement that the university is "proud of the retirement benefits" offered to its faculty and staff and "takes its responsibility as a fiduciary seriously." David DeMuro, a lawyer at Neal, Gerber & Eisenberg who represents securities companies, says there is no question that these suits have adverse effects on 401(k) plans. "This is impacting not only large corporates but also smaller plans with few assets and resources," says Mr. DeMuro. He believes the threat of litigation creates a dilemma for smaller plans which cannot afford to manage a wide selection of investments and could become overly focused on fees. "If cost becomes the only thing that matters in a plan, you would be crazy to offer anything but cheap index funds. This ultimately means less choice for participants," says Mr. DeMuro. James Carroll -- james.carroll@skadden.com -- who heads the Boston litigation practice at international law firm Skadden, Arps, Slate, Meagher & Flom, is currently leading the defense of companies in various lawsuits brought by plaintiffs alleging fiduciary breaches in companies' record-keeping responsibilities. Speaking generally about the defense of cases in the retirement space, Mr. Carroll says in a field where more and more class action and speculative lawyers see the 401(k) world as increasingly easier pickings, it has become a fact of life for many plan sponsors that they will eventually be sued, no matter how diligently they try to execute their fiduciary duties. "Some plans will simply have to fight," says Mr. Carroll. "If someone doesn't stand up to these frivolous suits, employers may end up deciding that instead of voluntarily contributing to their employee's funds, they will need to earmark that money to pay to defend themselves in court." * Sen. Franken Praises FCC Stance on Arbitration Clauses -------------------------------------------------------- John Eggerton, writing for Multichannel News, reports that Sen. Al Franken (D-Minn.) praised FCC Chairman Tom Wheeler's commitment to taking action on mandatory arbitration clauses. Those are contractual requirements -- unless a user opts out -- that a sub seek private arbitration, rather than lawsuits (particularly class action suits) -- to settle disputes with their cable or Internet service provider. "This is huge news for nearly every American who signs a television, internet, or phone contract," Sen. Franken said. The senator and FCC Commissioner Mignon Clyburn had written an op ed on the Time web site pledging a dual-front assault on what they saw as the anti-consumer contracts. Mr. Clyburn had also worked to make a prohibition part of the FCC's broadband privacy order voted Oct. 27, but that didn't happen. While prohibiting the clauses did not make it into the order, Wheeler said an inquiry had already been launched into the potential harmful effects of those clauses, with the goal of a Notice of Proposed Rulemaking by February, though he may or may not still be in the post by then. That pledge of action in a separate proceeding did not prevent Mr. Clyburn from only concurring in part of the privacy order as a way to show her disappointment at its absence, but the pledge was drawing praise from Franken. "For decades, big corporations have locked the courtroom doors on their customers by slipping mandatory forced arbitration clauses into contracts. And ever since joining the Senate, I've made it a priority of mine to change that, because I believe if you're wronged, you should be able to seek justice in our legal system. We've seen a lot of good steps recently to tackle forced arbitration, and this one could be a true game changer. I want to thank FCC Commissioner Mignon Clyburn for her hard work on this important issue, and I look forward to continuing to work with the FCC as it fights against forced arbitration." * Trump Faces 75 Pending Suits Amid Presidential Campaign --------------------------------------------------------- Nick Penzenstadler and John Kelly, writing for CNBC, report that on the first anniversary of the start of his presidential campaign, Donald Trump spent much of the day in a setting he knows well -- a room full of high-priced lawyers battling out a civil lawsuit. Trump paused his campaigning June 16 to answer questions under oath in one of his lawsuits against two celebrity chefs. He had sued Geoffrey Zakarian and Jose Andres after they backed out of a restaurant deal in response to Trump's inflammatory statements about Mexican immigrants. The two-hour deposition was at least the third time Trump had to leave the campaign trail to be deposed by attorneys in one of his organization's many lawsuits. Just two weeks before Election Day, at least 75 of the 4,000-plus lawsuits involving Trump and his businesses remain open, according to an ongoing, nationwide analysis of state and federal court records by USA TODAY. Trump is running well behind Democrat Hillary Clinton in most polls -- about 5 points behind in the popular vote in RealClearPolitics' rolling average of national polls. But if Trump were to win, the number of unresolved cases is unprecedented for a presidential candidate, according to political scientists and historians. Trump faces significant open litigation tied to his businesses: angry members at his Jupiter, Fla. golf course say they were cheated out of refunds on their dues and a former employee at the same club claims she was fired after reporting sexual harassment. There's a fraud case brought by Trump University students who say the mogul's company ripped them off for tens of thousands in tuition for a sham real estate course. Trump is also defending lawsuits tied to his campaign. A disgruntled GOP political consultant sued for $4 million saying Trump defamed her. Another suit, a class action, says the campaign violated consumer protection laws by sending unsolicited text messages. If elected, the open lawsuits will tag along with Trump. He would not be entitled to immunity, and could be required to give depositions or even testify in open court. That could chew up time and expose a litany of uncomfortable private and business dealings to the public. One Trump case, over non-payment of tips to caterers at Trump SoHo Hotel in New York City, is scheduled to go to trial a week before Election Day. Even in the waning days of the campaign, in a speech in Gettysburg outlining his first actions if he wins the White House, Trump threatened to sue all of the women who've accused him of unwanted sexual advances, saying all of them are lying. Chapter 1 Potential Conflicts of Interest? The open cases raise questions about potential conflicts of interest that could become difficult for Trump to navigate. For instance, could his judicial appointments be influenced by his own court cases? This summer, he attacked a federal judge who is presiding over the lawsuit against Trump University, saying District Judge Gonzalo Curiel is biased against Trump because the judge is of Mexican descent and Trump proposes a "great wall" along the Mexican border. Another potential issue: Would lawyers, parties in cases and even judges seek to curry favor with a powerful individual in a way that might alter the outcome? Norm Eisen, who founded the nonpartisan watchdog organization Citizens for Responsibility and Ethics in 2003 and later was the top White House ethics lawyer for President Obama in 2009 and 2010, ticked off a series of potential conflicts. The lawsuits against Trump University could raise questions about who Trump would appoint as Education secretary, Eisen said. "Somebody with favor to for-profit colleges?" Trump's development of the Old Post Office building in Washington is being overseen by the federal government, which leases the historic building to Trump, and lawsuits involving the development could involve government officials. "Will he really put someone in charge that would testify against his business?" Eisen wonders. "And the mother of all conflict could be the IRS audit," he said. "What if they suggest civil penalties, or even criminal proceedings?" Alan Garten, general counsel for Trump and his business interests, downplayed the significance of the cases. Garten said only about 30 significant cases are open. The others are run-of-the-mill cases involving one Trump holding or another, frivolous causes or suits destined to be dismissed. "The reality is we're an operating company. We'll treat all cases the same way if he's elected or not -- and the results shouldn't be different in the eyes of the law." Clinton has her own share of litigation heading toward Election Day. Media groups are suing her trying to get more emails from her private server. They've also argued for the release of deposition videos. The email lawsuit is among about 30 open civil cases Clinton faces. Dozens will likely be tossed out because of immunity doctrines as she acted in her official role as secretary of State. In nearly all cases, Clinton is named solely in her government capacity, often among a laundry list of other public officials. In a small fraction, like with the email server, some argue she should be held accountable as a private individual. Clinton's campaign staff did not respond to questions about the open cases. Chapter 2 Cases expose Trump's history USA TODAY Network reporters spent more than six months gathering court records in more than 4,000 lawsuits involving Trump and his companies. They traveled to courthouses, studied thousands of pages of records and contacted lawyers, litigants and witnesses across the country. For comparison, the newspaper also pieced together the record of Clinton's court cases. The exclusive analysis found an unprecedented mountain of legal battles for a presidential candidate, ranging from skirmishes with pageant contestants to multimillion dollar real estate lawsuits. The cases offer clues to the leadership style the billionaire would bring to the White House. The review shows that Trump frequently responds to even small disputes with overwhelming legal force, not hesitating to use his tremendous wealth and legal firepower against adversaries with limited resources. He has repeatedly refused to pay people and small businesses for their work, forcing them to spend time and legal fees if they want to recover their losses. At least 60 lawsuits -- plus hundreds of additional liens, judgments, and other government filings reviewed by reporters -- documented cases where people accused Trump and his businesses of failing to pay them what they were owed for their work. Among them: painters, glassmakers, real estate agents, bartenders and hourly workers at Trump resorts coast to coast. Even his own lawyers. The review also shows Trump and his companies have been accused for years of mistreating women. In at least 20 separate lawsuits, plaintiffs accused Trump and managers at his companies of discriminating against women, ignoring sexual harassment complaints and even participating in the harassment themselves. Women in those disputes have testified they were fired for complaining. Trump's companies have been engaged in battles over taxes almost every year from the 1980s until as recently as last spring, when New York had to take legal action to collect $8,578 in unpaid taxes on the Trump-owned company that owns the trademark Boeing 757 that jetted the mogul to campaign rallies across the country. The review found that people who say something Trump doesn't like will frequently get threatened with a lawsuit. "I'll sue you" was a Trump mantra long before "Build a wall." The analysis of lawsuits, however, showed that he rarely follows through with his threatened lawsuits over people's words and almost always loses when he does. The lone win was a lawsuit against Miss Pennsylvania -- over her claim on Facebook that Trump's Miss USA pageant was rigged. Chapter 3 Distracted and potentially sidetracked If Trump is elected president, it won't change the way his lawsuits are handled. His companies face open cases of sexual discrimination and fraud, unpaid bills and contract disputes. In any of the open cases, litigants would have the right to demand testimony from Trump or people close to him, some of whom could become senior White House aides. Such legal action can -- and often does -- unlock private financial and other records that could then become public. Even if Trump broke no laws or committed no wrongdoing, that kind of inside information could be used by political opponents to try to embarrass him or weaken him politically. Clinton could face similar challenges as litigation over her refusal to turn over emails from her time as secretary of State moves forward. "It could pose a problem for both sides in the presidency," said Julian Zelizer, a history professor at Princeton University. "They could produce damaging information, and given the partisan environment, any kind of scandal or investigation could be used to stifle a president." Those kinds of tactics have impacted past presidencies. President Grant was among the early commanders in chief beset by scandal. He was forced to testify under oath at the White House in a high-profile federal prosecution of an illegal whiskey running scheme that ensnared some of his closest political associates. Grant's testimony helped get his top aide off the hook and further soiled the public perception of his administration. Today, he is widely considered one of the least effective presidents in U.S. history. In more modern times, President Nixon's administration was ensnared by repeated legal woes, scandals, botched cover-ups and ultimately his resignation. Bill Clinton faced legal issues tied to Whitewater, Paula Jones and ultimately White House intern Monica Lewinsky. Clinton was forced to give a deposition in one sex-scandal case involving Jones and later faced an impeachment trial over his relations with Lewinsky at the White House. In the latter, Clinton became the first sitting president to testify before a grand jury investigating his own conduct, which became a years- long distraction. Yet, no president had litigation in the volume of a potential President Trump. "Because of the Supreme Court case related to Bill Clinton, there's no automatic shield for the president from civil action," said Samuel Issacharoff, a law professor at New York University. "If he were president and called to testify and hostilities break out in the Middle East a court would probably postpone -- but of course it's a major dislocation to be going through these civil trials while he's running an administration." Chapter 4 Lingering fraud case Among the many Trump lawsuits, the most problematic could be the Trump University cases. Former students from across the country have sued in two class actions, accusing the school of charging them up to $35,000 and lying about the value of the lessons they would receive. New York Attorney General Eric Schneiderman sued in 2013 and has since described Trump University as a "fraud" and a "scam." While the open cases are civil, some legal scholars raise the prospect that a court could ultimately find Trump University or even Trump personally liable for fraud. In the worst case, a finding that fraud took place -- even by a civil court -- could provide Congress with the grounds to consider impeachment proceedings. "These claims are different in an important way than most of his other cases," said Christopher Peterson, a law professor at the University of Utah who's researched the Trump University cases. Even though the burden of proof would be lower in civil court to prove Trump liable for fraud or racketeering, Peterson said, "The evidence that you would use to prove those claims would be interchangeable. It's the same kind of claims that you would get the mob for in a concrete scam." At a minimum, if the cases go forward, additional testimony by instructors and students about predatory sales tactics would become public. Trump's already been deposed about the university. He downplayed his role, but could be called to testify at a trial. If that happens, Trump would become the first modern sitting president to do so in open court. Bill Clinton gave testimony to a grand jury investigating the Monica Lewinsky scandal in 1998. For years Trump's legal team has successfully kept secret much of the financial information disclosed in his court cases. The vast majority of settlement payments Trump has made to litigants is secret under non-disclosure agreements. Trump's attorneys also regularly ask judges to seal records that come out during the cases, something that is often done for plaintiffs and defendants in civil cases. If Trump is elected President, the already immense pressure to release records could escalate even further. "You don't know what you don't know," said Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, a plaintiff seeking to liberate some of the sealed records. "Either way these documents would be newsworthy, before or after the election." Already Trump's candidacy has prompted court battles to get records in his cases unsealed. In September, a judge ruled against USA TODAY and The New York Times in an attempt to unseal court files from Trump's 1990 divorce from his first wife, Ivana. District Court Judge Gonzalo Curiel ruled over the summer to keep private the video recording of depositions in the Trump University cases, partly for fear they would add to the political tint of the case and since transcripts are already available. But in September, Trump attorneys lost battles to keep videotapes sealed in cases involving his Washington hotel and Jupiter, Fla., golf club. And a group of journalists are battling to unseal the settlement in a 1983 case tied to the destruction of Bonwit Tower in midtown Manhattan to make way for Trump Tower. The suit alleged undocumented Polish workers performed the work off-the-books. The settlement is still secret. A judge ruled against unsealing those records this summer, but the journalist group is appealing. Chapter 5 Drawn off the job to testify In June, in the days after the deadliest mass shooting in American history, as both presidential candidates and the rest of the nation were coming to grips with the terror attack on Orlando's Pulse nightclub, Trump was also being deposed in Washington in one of his two lawsuits against the chefs, Zakarian and Andres. The duo wanted no part of the eatery they'd planned to open in Trump's luxury hotel in the Old Post Office Building just down the street from the White House. Their reason: their reputations and their brand were badly damaged by associating with Trump after his comments a year earlier branding Mexican immigrants as rapists, murderers and criminals. As they sought to establish the idea that such statements could be bad for any business, the chef's attorneys asked Trump about the fallout for his businesses from his incendiary comments. They pressed him about whether he thought his words might keep Hispanics from going to a restaurant in one of his hotels or to any of his other properties. Trump's response: The election and the attention he's getting for the words he's using are only going to be good for business. "I'm running for office. I obviously have credibility because I now, as it turns out, became the Republican nominee running against, we have a total of 17 people that were mostly senators and governors, highly respected people," he said under oath. After explaining the "very dishonest" media distorted his remarks about Mexican immigrants, he added: "I think, you know, most people think I'm right." His booming popularity would only help the restaurant succeed, he testified. But, he conceded, the comments could turn some Hispanic patrons off. "It is always possible," Trump said. "I just don't know. I mean, I don't know how to answer that question. It's possible." * Western District of New York Court Tackles Class-Action Claims ---------------------------------------------------------------- Sharon M. Porcellio, writing for New York Law Journal, reports that at any given time, a cursory glance at the Western District docket reveals that there is typically no shortage of interesting cases. This quarter was no exception. From the three cases discussed below emerge important takeaways for plaintiffs' and defendants' attorneys alike, particularly those litigating class- action claims. Defamation Claims Among the various employment discrimination cases decided this quarter, Senior District Judge David G. Larimer's decision in Whipple v. Reed Eye Assocs., No. 15-CV-6759L, 2016 U.S. Dist. LEXIS 136903 (W.D.N.Y. Oct. 3, 2016) stands out. What makes this case interesting, however, is not necessarily its potential impact on anti-discrimination jurisprudence, but, rather, the analysis of common law claims that were seemingly tangential to the plaintiff's allegations of sexual harassment and retaliation. In Whipple v. Reed Eye Assocs., a female physician commenced an action against her former employer and named several individuals as defendants. The plaintiff claimed that after complaining of sexual harassment, her alleged harasser refused to work with her and the administrative director to whom she complained took no action to investigate her complaints. According to Judge Larimer, these allegations were insufficient to state a New York State Human Rights Law claim of retaliation against these individuals under an "aiding and abetting" theory. With respect to both defendants, the plaintiff failed to allege that she suffered any adverse employment action as a result of their alleged refusal to work with her or to investigate her complaints. Somewhat more interesting was Judge Larimer's analysis with respect to the claims that did survive dismissal. Those included claims of tortious interference and defamation based on allegations that one of the owners of the medical practice where she was allegedly mistreated warned a different physician not to hire her. The owner allegedly told this other physician that "plaintiff 'got real bitchy at the end [of her employment with defendants].'" Id. at *8. Judge Larimer sustained, in part, plaintiff's defamation claim against the medical practice owner who referred to her as "bitchy" to a prospective employer. His reasoning focused not solely on the words that were uttered, but rather, on the circumstances in which they were said. As Judge Larimer acknowledged, "the mere use of the term 'bitch' has generally been held to be non- actionable opinion." Id. at *10. Yet, in this case, the term was used during a discussion between the plaintiff's former employer and a prospective employer concerning "'the end'" of plaintiff's employment. Id. at *10. Under these circumstances, "the statement could also be interpreted as an actionable 'mixed opinion' hinting at the reasons for plaintiff's termination, one which is unaccompanied by any supporting facts and 'implies that it is based upon undisclosed detrimental facts which justify the opinion but are unknown to those . . . hearing it.'" Id. at *10-11. On the other hand, however, allegations that another owner of the medical practice distributed a memorandum which "characterized plaintiff's sexual harassment complaints as a 'distraction' that 'creates an unhealthy work environment,' and urged the partners to focus solely on patient care" did not state a viable defamation claim against that owner. Id. at *12. Finally, plaintiff defeated defendants' motion to dismiss one of her tortious interference claims. She alleged that a local optometrist had extended her an offer of employment, but it was withdrawn before plaintiff could accept it because another owner of her former employer threatened retribution against the optometrist and her husband if the optometrist hired plaintiff. Because the optometrist's husband worked for the defendant employer, the owner who made the threats could exercise supervisory control over him. Arbitration Agreement Amid a circuit split regarding the enforceability of class-action waivers in arbitration agreements, Senior District Judge Charles J. Siragusa granted a motion to compel arbitration in an unpaid wage action brought against a restaurant chain, finding that an arbitration agreement in a non-binding employee handbook is sufficient for dismissal of plaintiffs' claims. Ekryss v. Ignite Rest. Grp., No. 15-CV-6742 CJS, 2016 U.S. Dist. LEXIS 120818 (W.D.N.Y. Sept. 7, 2016). Like most employers, Macaroni Grill maintained certain work rules, which were set forth in a 54-page employee handbook titled "Employment Guidelines." The Employment Guidelines covered various topics, including policies concerning substance abuse and anti- harassment. Incorporated into the Employment Guidelines -- not in a separate document -- were a "Dispute Resolution Program" and a "Confidentiality/Non-Compete/Non-Solicitation Agreement." The Dispute Resolution Program provided that any claims related to employment with the restaurant must be resolved by arbitration. In addition, such claims must be arbitrated on an individual basis, not on a class or collective basis. The handbook made clear that the Employment Guidelines did not create a contract between Macaroni Grill and its employees. To this end, the manual stated that the Employment Guidelines "'aren't a contract (with the specific exception of the Dispute Resolution Program and the Confidentiality/Non-Compete/Non- Solicitation Agreement)'" (emphasis in original). All employees were required to sign an acknowledgement form which reiterated these two points: (1) "except where indicated," the Employment Guidelines were "not a contract"; and (2) the employee agreed to arbitrate any employment-related claims. In December 2015, a proposed class of plaintiffs brought an action against Macaroni Grill for unpaid wages, alleging that the restaurant violated the Fair Labor Standards Act and various state minimum-wage laws. Asserting that the Dispute Resolution Program contained within the Employment Guidelines constituted a valid and binding agreement, the restaurant moved to dismiss the complaint. To determine whether the Employment Guidelines created an enforceable agreement to arbitrate, the court applied Texas law, which, as stated in the Employment Guidelines, governed the employment relationship between Macaroni Gill and its employees. Under Texas law, and elsewhere, a valid agreement to arbitrate must be supported by consideration. Plaintiffs focused on this fundamental element of contract formation in opposing the motion. They argued that because the Employment Guidelines expressly stated that Macaroni Grill reserved the right to "'revise, delete and/or add to the provisions of the Guidelines,'" the agreement was unenforceable. Judge Siragusa acknowledged that if Macaroni Grill's right to unilaterally, with virtually no limitation, amend the Employment Guidelines extended to the Dispute Resolution Program, the arbitration agreement would be illusory and, therefore, unenforceable. Relying upon conflicting Texas appellate court decisions, Judge Siragusa determined that the Dispute Resolution Program was an enforceable arbitration agreement, which was distinct from the Employment Guidelines, despite that it was part of the greater non-binding manual. Critical to this determination was the "self- contain[ing]" nature of the arbitration provision in that it did not reference or incorporate the other rules set forth in the Employment Guidelines; it contained its own choice-of-law provision and savings clause; and nothing in the Dispute Resolution Program allowed Macaroni Grill to amend or modify the specific language of that provision. Thus, Judge Siragusa granted Macaroni Grill's motion to dismiss and compelled arbitration. Although this case was decided under Texas law, it nevertheless has interesting implications for those litigating class-action claims in New York, especially actions involving national companies whose headquarters are located elsewhere. Class Action Standing In another case involving class-action plaintiffs, Zink v. First Niagara Bank, No. 13-CV-01076-RJA-JJM, 2016 U.S. Dist. LEXIS 98104 (W.D.N.Y. July 1, 2016), Magistrate Judge Jeremiah McCarthy analyzed the legal landscape concerning class-action standing following a recent U.S. Supreme Court decision, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). The plaintiff in Zink commenced an action against First Niagara Bank seeking to recover class penalties pursuant to certain sections of the New York Real Property Law and the Real Property Actions and Proceedings Law due to the bank's alleged failure to provide the county clerk with proof that mortgages had been satisfied. The provisions set forth statutory penalties for failure to file the satisfaction within specific time periods. The purported class did not allege any adverse consequence suffered by the belated filings but rather sought statutory damages based on the length of the delay in providing the satisfaction as set forth in the statutes. Last June, Magistrate Judge McCarthy recommended that plaintiff's first uncontested motion seeking conditional certification of a settlement class and preliminary approval of a class-action settlement be denied. The plaintiff subsequently filed a second uncontested motion in January 2016. The case was, however, stayed pending a decision by the U.S. Supreme Court in Spokeo, Inc. v. Robins, in which the Supreme Court considered "whether a violation of a federal statute entitling a consumer to civil penalties where no economic injury is suffered confers Article III standing." Zink, 2016 U.S. Dist. LEXIS 98104 at *8. On May 16, 2016, the Supreme Court rendered its decision in Spokeo. By way of background, Spokeo operates a "people search engine." When you enter a person's name, email address or phone number into Spokeo's website, the site generates information about that person. The plaintiff alleged that the information disseminated about him was incorrect, and he filed an action under the Fair Credit Reporting Act. In reviewing whether the plaintiff had Article III standing, the court focused on the injury-in-fact element. "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Spokeo, 136 S. Ct. at 1548. In a somewhat anti-climactic holding, the court remanded the case to the U.S. Court of Appeals for the Ninth Circuit, which had failed to consider the requirement of "concreteness," rendering its analysis incomplete. Although the Supreme Court in Spokeo "did not definitively decide which types of statutory violations suffice to create Article III standing," McCarthy analyzed the implications of the court's decisions, determining that "some portions of the opinion could lead to the conclusion that standing does not exist in this case." Zink, 2016 U.S. Dist. LEXIS 98104 at *10-11. Citing to the concurring opinion in Spokeo, Judge McCarthy focused on the idea that deprivation of a procedural right is insufficient to establish standing where there is no concrete interest. Specifically, he stated: It could be argued that First Niagara's failure to timely file a mortgage satisfaction was a mere procedural violation which did not affect any concrete interest of plaintiff, since he does not allege that he suffered any adverse consequences (such as inability to sell the property) from the belated filing. Id. at *11. Judge McCarthy balanced this assertion with the idea that a "concrete injury is not necessarily synonymous with tangible." Id. at *11 (internal quotation marks omitted). He relied upon an older U.S. Supreme Court case, Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In Havens Realty Corp., individuals known as "testers" posed as renters (without the intention of actually renting or purchasing an apartment or home) in order to determine whether realty corporations were engaging in discriminatory practices in violation of the Fair Housing Act. Those testers had standing to sue. Based on this threshold, Judge McCarthy pointed out that "plaintiff Zink's injury is no more ephemeral than that of the testers in Havens." Id. at *15. Although Judge McCarthy ultimately decided that the plaintiff had Article III standing to pursue claims on behalf of himself and the class, he also stated that "the substantial possibility that a higher court might eventually rule otherwise . . . warrants the settlement agreement's significant reduction from full value of the class members' claims." Id. at *16. To the extent this occurs before the final resolution of the action, Judge McCarthy noted that the case would have to be dismissed for lack of subject- matter jurisdiction. Given that the Supreme Court returned the pivotal standing issue back to the Ninth Circuit in Spokeo, it remains to be seen how courts will apply the law and how it will impact attorneys both advocating on behalf of and defending class actions. ********* 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. 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