/raid1/www/Hosts/bankrupt/CAR_Public/161115.mbx              C L A S S   A C T I O N   R E P O R T E R

           Tuesday, November 15, 2016, Vol. 18, No. 228


ADP LLC: Appeals Court Revives Portions of "Goonewardene" Suit
AG ADRIANO: Settlement in "Paz" Case Has Final Approval
AIRBNB: Averts Potential Racial Discrimination Class Action
ALL WEB: Faces Class Action in California Over Unwanted Calls
ANTHEM BLUE: Data Breach Victims Seek Details of Security Audit

ANTHEM BLUE: Consumer Group Files Class Action Over Health Plans
AUSTRALIA: Class Action Launched Over RAAF Base Contamination
AUSTRALIA: Class Action v. MDBA Over Lake Hume Flooding Looms
AUTOZONE PARTS: Faces Class Action Over Awards Programs
BANK OF AMERICA: Judge Grants Summary Judgment in FCRA Case

BLUE CROSS: Judge Dismissed ERISA Claims in "Cox" Suit
BROADVIEW FERTILITY: Faces Class Action Over Doctor's Conduct
CANADA: Autism Montreal Mulls Class Action Over Autism Treatment
CARDINAL LOGISTICS: Settlement in "Holmby" Suit Gets Final OK
CAREER POINT: Student Sues Over Deceptive Business Practices

CEPHALON: 3rd Cir. Reverses Ruling in Modafinil Antitrust Suit
CHICAGO, IL: Ex-CPS Bus Attendant Files Wage Class Action
CHICAGO, IL: Judge Approves Red Light Camera Class Action
CHINACAST EDUCATION: Files for Chapter 11 Bankruptcy Protection
COLGATE-PALMOLIVE CO: Faces False Advertising Class Action

CONSOL ENERGY: Retired Nonunion Miners File Class Action
COUNTY DISPOSAL: Faces Class Action Over Trash Service
CREDIT SUISSE: Plaintiff Lawyer Reprimanded by Idaho Bar Counsel
CTS OF CANADA: Auto Parts Workers File Summary Judgment Motion
EOS: Settles Class Action Over Lip Balm Side Effects

FACEBOOK INC: Faces Class Action Over Video Metric Error
FACEBOOK INC: Faces Discrimination Suit in Calif. Over Ad Tool
FIRSTSOURCE SOLUTIONS: Class Action Over Robocalls Can Proceed
FLORIDA: "Wheeler" Class Action Dismissed
FORD MOTOR: Judge Granted Bid to Dismiss "Schiesser" Suit

FREDDIE MAC: Ohio Public Employees Retirement Sys. Action Ongoing
FRESH & EASY: Class Action Waiver Violates NRLA, Court Rules
GEO GROUP: Prisoner Can Amend Portion of Complaint
GLOBAL FITNESS: Brief Questions Fairness of Settlement
GOULD & GOODRICH: Jury Issues $2.6MM Verdict in Holster Case

HEALTH CARE SERVICE: Prime Therapeutics Dropped from Lawsuit
HERSHEY CO: Faces False Advertising Class Action in New York
HERTZ CORP: Faces Class Action in Calif. Over Unpaid Toll Fee
HP INC: Faces Class Action in Alabama Over Firmware Update
HUNTINGTON BANCSHARES: Wins Dismissal of Majestic Building's Suit

INDYMAC: Ex-Judges Call for SCOTUS to Address Opt-Out Issue
JOHNS HOPKINS: Faces Class Action Over Alleged Fraud
JOHNSON & JOHNSON: Vows to Appeal $70MM Talc Case Verdict
L'OREAL: Faces $5MM Class Action Over Hair Straightening Product
LENDINGCLUB CORP: Administrative Motion in "Evellard" Classified

LENOVO GROUP: Class Action Over Superfish Software Can Proceed
LEON COUNTY, FL: Fairfax Class Certification Bid Denied
LINC ENERGY: Class Action Obtains Conditional Funding Approval
LOWE'S COS: Settlement in "Brown" Case Has Final Approval
LYFT: Teamsters, Drivers Object to Class Action Settlement

MAPCO: Settles 2013 Data Breach Class Action, Jan. 9 Hearing Set
MAPLEWOOD, MO: Faces Class Action Over Biased Cash Bail System
MDL 2143: Cal. Judge Rules in ODD Litigation
MDL 2656: Amended Complaint Survives Bid to Dismiss
MGM RESORTS: Faces Class Action in Washington Over Gift Cards

MICHIGAN: Judge Hears Arguments in Marijuana Class Action
NATIONWIDE INSURANCE: Data Breach Class Action Can Proceed
NEW JERSEY: Faces Class Action Over Questionable DWI Convictions
NFL: Ordered to Reveal Details on Concussion Measures
NISSAN: Plaintiffs Attorneys in Altima Case Seek $1.6MM in Fees

NORTHERN RESOLUTION: Sued Over "Massive" Debt Collection Scheme
PAPA JOHN'S: Judge Approves Sales Tax Class Action Settlement
PETROBRAS: Appeals Court Hears Argument in Securities Case
PETROQUEST ENERGY: Faces Class Action Over Unpaid Royalties
PHILIP MORRIS: Attorney Faces Sanction Over 5-Hour Deposition

PRE-EMPLOY.COM: "Marchioli" Suit Transferred to C.D. Cal.
S2VERIFY: $1.09MM Settlement in "Hawkins" Preliminarily Approved
SAFEWAY INC: Court Grants Summary Judgment in TCPA Class Action
SAMSUNG ELECTRONICS: Fails to Address Note 7 Issues Promptly
SAMSUNG ELECTRONICS: Folsom Law Firm Files Note 7 Class Action

SAN FRANCISCO, CA: Faces Class Action Over Unfair Bail System
SCHLUMBERGER TECH: "Mascagani" Suit Stays in Monroe Division, La.
STAFFING SOLUTIONS: $100,000 Settlement Has Preliminary Approval
STATE STREET: Court Approves $300MM Class Action Settlement
SWIFT TRANSPORTATION: "Nilsen" Class Suit in Calif. Remains Stayed

SWIFT TRANSPORTATION: "Christopher" Suit Proceeds to Discovery
SWIFT TRANSPORTATION: "Fritsch" Suit Over Yard Hostlers Amended
SWIFT TRANSPORTATION: Barker et al. Class Suit in Discovery
SWIFT TRANSPORTATION: "Castro" Class Action in Discovery Stage
SWIFT TRANSPORTATION: To Challenge Certification of "Julian" Case

SWIFT TRANSPORTATION: Slack et al. Action in Discovery Stage
SWIFT TRANSPORTATION: "Hedglin" Action to Proceed in Discovery
SWIFT TRANSPORTATION: Adds Reserves Due to Pending FLSA Case
TAISHAN GYPSUM: Chinese Drywall Class Action Stalls
TESCO: Investors File Class Action Over Accounting Scandal

THERANOS INC: Stockholder Sue Over Alleged Securities Fraud
TRUMP UNIVERSITY: Motions Filed Ahead of November 28 Trial
UBER TECHNOLOGIES: Sued Over Unauthorized Bank Account Debit
UBER TECHNOLOGIES: NLRB Takes Side with Drivers in Class Action
UBER TECHNOLOGIES: Judge Allows NLRB to Issue Subpoenas

UBER TECHNOLOGIES: 9th Cir. Upholds Use of Class Action Waivers
WAL-MART ASSOCIATES: Welch et al. May File Amended Complaint
WAL-MART STORES: Jury Instructions Given in Drivers' Suit
WARNER/CHAPPELL: Judge Approves Happy Birthday Song Settlement
WELLS FARGO: Cal. Judge Denies Motion to Stay "Gardner" Suit

WELLS FARGO: Settles Homeowners' Class Action Over Appraisal Fees
WELLS FARGO: Democratic Senators Propose Clawback Rule
WEST VIRGINIA: Chemical Spill Class Action Settlement Okayed
WESTERN HOCKEY: Major Junior Players File Wage Class Action
WRIGHT MEDICAL: Settles Faulty Hip Implant Cases for $240 Million

YAHOO INC: Judge Koh Preferred to Preside Data Breach Cases

* Australian Courts to Regulate Class Action Funding Industry
* Concerns Raised Over Use of Facial Recognition Software
* FTC Issues Guidance on "No Poaching," "Wage Fixing" Agreements
* Obama Federal Appeals Court Appointees Less Business Friendly
* Playing Field Safety Concerns May Spark Future Class Actions

* Supreme Court Set to Tackle Issue on Arbitration Agreements
* TCPA Class Action Filings Up 80% to 767 in 2016
* Thornton Law Firm's Political Contributions Questioned


ADP LLC: Appeals Court Revives Portions of "Goonewardene" Suit
Justice Nora M. Manella of the Court of Appeals of California,
Second District, Division Four, affirmed in part, reversed in part
and remanded the case of SHARMALEE GOONEWARDENE, Plaintiff and
Appellant, v. ADP, LLC et al., Defendants and Respondents, No.
B267010 (Cal. Ct. App.)

In April 2012, Sharmalene Goonewardene filed a complaint against
Altour International Inc. and Alexandre Chemla, a California and
New York Corporation respectively. Goonewardene asserted claims
for wrongful termination, breach of contract, violations of the
Labor Code, and related causes of action predicated on allegations
that Goonewardene was employed by Altour, which failed to
compensate her in accordance with the Labor Code and wrongfully
terminated her when she brought the misconduct to its attention.

In March 2015, Goonewardene filed her fourth amended complaint
(4AC), which, in addition to the claims previously alleged against
Altour, included a single cause of action against respondent ADP,
LLC, namely, a claim for unfair business practices under the
unfair competition law (UCL; Bus. & Prof. Code, Section 17200 et
seq.). In connection with that claim, the complaint alleged that
ADP, LLC, failed to provide appellant with adequate documentation
and records regarding her compensation.

After ADP LLC, demurred to the 4AC, appellant informed the trial
court that she wished to assert additional claims against ADP,
LLC. The trial court deferred ruling on the demurrer to permit
appellant to submit a motion for leave to file the fifth amended
complaint (5AC), which contained claims against all three
respondents for wrongful termination, violations of the Labor Code
and federal labor laws, breach of contract, unfair business
practices, false advertising, negligence, and negligent

In ruling on the pending demurrer to the 4AC and the motion for
leave to file the 5AC, the trial court sustained the demurrer to
all claims founded on the assumption that ADP, LLC was appellant's
employer, co-employer, or joint employer. The court denied
appellant leave to amend with respect to those claims, and ordered
them dismissed with prejudice. The court otherwise permitted
appellant to file the 5AC, on the condition that appellant assert
only the remaining claims against respondents.

While order was pending, appellant submitted a motion for
reconsideration and a proposed sixth amended complaint (6AC),
which materially resembles the 5AC, as originally proposed. The
6AC contains claims similar to those in the original 5AC including
the claims relying on the theory that respondents were appellant's
employers, with additional factual allegations. The motion for
reconsideration requested leave to file the 6AC.

On August 5, 2015, without expressly denying the motion for
reconsideration, the trial court entered a final order sustaining
respondents' demurrer to the 5AC without leave to amend, and a
judgment of dismissal in favor of respondents. Goonewardene
contends the court abused its discretion in denying her leave to
amend, arguing that her proposed sixth amended complaint states
claims against respondents. Appeal followed.

Justice Manella affirmed in part, reversed in part the trial
court's ruling and remanded the case with instructions to permit
appellant to file a complaint against respondents asserting claims
only for breach of contract, negligent misrepresentation, and

A copy of Justice Manella's opinion dated November 4, 2016, is
available at https://goo.gl/YG2uhq from Leagle.com.

Glen Broemer, for Plaintiff and Appellants.

Robert A. Lewis -- robert.lewis@morganlewis.com -- Thomas M.
Peterson -- thomas.peterson@morganlewis.com -- Zachary Hill --
zachary.hill@morganlewis.com -- at Morgan Lewis & Bockius

The Court of Appeals of California, Second District, Division Four
panel consists of Presiding Justice Norman L. Epstein and Justices
Thomas L. Willhite and Nora M. Manella.

AG ADRIANO: Settlement in "Paz" Case Has Final Approval
In the case, DAVID PAZ, an individual, and on behalf of all others
similarly situated, Plaintiff, v. AG ADRIANO GOLDSCHMIED, INC., a
California corporation; NORDSTROM, INC., a Washington Corporation;
and DOES 1 through 100, inclusive, Defendants, Case No. 3:14-cv-
01372-DMS-DHB (S.D. Cal.), District Judge Dana M. Sabraw issued an
Order Granting Final Approval of Class Action Settlement.

For purposes of the Settlement, the "class" shall mean all persons
in California who purchased a "Made in USA" or "Made in USA of
Imported Fabric". Also, the "Class Members" shall mean all persons
who are members of the Class and who have not timely exercised
their rights to opt out of participation in the Settlement.

The Court finds that named Plaintiff David Paz and Class Counsel
fairly and adequately represent the Class Members and satisfy the
requirements to be representatives of and counsel to Class Members
for settlement purposes.

Moreover, the Court noted that David Paz and all Class Members are
permanently barred and enjoined from commencing or continuing to
prosecute or otherwise asserting the Released Claims, or any of
them, in whole or in part, whether class or individual, against
the Defendant and/or Released Parties.

A copy of the Court's Order dated October 28, 2016 is available at
https://goo.gl/59ystz from Leagle.com.

David Paz, Plaintiff, represented by Camille Joy DeCamp, Del Mar
Law Group, LLP.

David Paz, Plaintiff, represented by John H. Donboli, Del Mar Law
Group, LLP.

AG Adriano Goldschmied, Inc., et al., Defendants, represented by
Kalley R. Aman -- kaman@buchalter.com -- Buchalet Nemer & Mark T.
Cramer -- mcramer@buchalter.com -- Buchalter Nemer.

AIRBNB: Averts Potential Racial Discrimination Class Action
Katie Benner, writing for The New York Times, reports that Airbnb
on Nov. 1 avoided a potential class-action lawsuit by customers
who accused hosts of racial discrimination when a federal judge
ruled that the company's arbitration policy prohibited its users
from suing.

The case began this year when Gregory Selden, who is African-
American, claimed that a host on Airbnb would not rent him a room
because of his race.  In May, Mr. Selden sued Airbnb, a short-term
home rental company, for violating civil rights laws that forbid
housing discrimination.

But on Nov. 1, a federal judge said Mr. Selden needed to adhere to
Airbnb's user agreement, which says that disputes must be settled
in private arbitration and that users waive their right to trial
by jury or to participate in class-action lawsuits.

So long as arbitration provisions are made known to consumers,
they are "enforceable, in commercial disputes and discrimination
cases alike," Judge Christopher R. Cooper of the United States
District Court for the District of Columbia wrote in his ruling.

The decision makes it unlikely that Airbnb will be embroiled in a
drawn-out legal battle over whether the company is responsible
when hosts discriminate against guests based on their race,
religion, gender or other factors.

Mr. Selden plans to appeal the judge's decision, said his lawyer,
Ikechukwu Emejuru.

"By placing Mr. Selden's claims into arbitration, a consumer's
constitutional right to a jury trial and access to the courts of
law continues to be whittled down gradually but surely,"
Mr. Emejuru said in a statement.

Airbnb has been grappling with the issue of discrimination on its
service for months. Last December, a working paper by Harvard
University researchers found it was harder for guests with
African-American-sounding names to rent rooms through the site.

While it is illegal for hotels to turn away guests based on their
race or other factors, Airbnb hosts have typically had more leeway
in terms of whom to rent to.  The company has worked to narrow
that wiggle room.  In September, it took several actions to combat
discrimination, including requiring hosts to agree to a "community
commitment" starting on Nov. 1 and hewing to a new
nondiscrimination policy.

"We have launched an aggressive effort to ensure our platform is
fair for everyone, and we will continue to work as hard as we know
how to fight bias," Airbnb said in a statement.

ALL WEB: Faces Class Action in California Over Unwanted Calls
Louie Torres, writing for Legal Newsline, reports that an
individual has filed a class-action lawsuit against All Web Leads,
Inc., d/b/a Bankrateinsurance.com, alleging he received unwanted
calls despite being placed on the Do Not Call Registry.

Ron Ramos filed a complaint on behalf of all others similarly
situated on Oct. 5, in the U.S. District Court for the Southern
District of California against the defendants, alleging they
contacted plaintiff in an attempt to solicit their services.

According to the complaint, the plaintiff alleges that, in October
2015, he suffered damages from receiving several unwanted phone
calls.  The plaintiff holds Bankrateinsurance.com responsible
because it allegedly contacted plaintiff despite being added to
the Do Not Call Registry since 2004.

The plaintiff requests a trial by jury and seeks $1,500 in
statutory damages, $500 in statutory damages, treble damages of
$1,500, and any further relief this court grants.  He is
represented by Todd M. Friedman, Adrian R. Bacon and Meghan E.
George of Law Offices of Todd M. Friedman, P.C. in Woodland Hills,

U.S. District Court for the Southern District of California Case
number 3:16-cv-02490-JAH-JLB

ANTHEM BLUE: Data Breach Victims Seek Details of Security Audit
Dark Reading, citing Modern Healthcare, reports that victims of a
data breach at health insurer Anthem in February 2015 have filed a
class-action lawsuit against the company and are seeking details
of an audit by the U.S. Office of Personnel Management (OPM) on
Anthem's network security.  In the cyberattack, hackers
compromised personal details of around 80 million Anthem, Blue
Cross and Blue Shield members, many of whom have since reported
payment card account misuse.

As per the court filing, OPM, which manages the Federal Employees
Health Benefit Program, had first carried out a security audit at
Anthem in 2013 and pointed out vulnerabilities in its system.  It
wanted to conduct tests, but this was reportedly turned down by
Anthem citing "corporate policy" issues.  Shortly after the 2015
cyberattack, OPM conducted a second audit, but its findings were
not made public.

The plaintiffs say in their subpoena that if the audit had
discovered security flaws, then appropriate action by Anthem would
have prevented the subsequent breach and so it was vital the
report be disclosed.

ANTHEM BLUE: Consumer Group Files Class Action Over Health Plans
Tracy Seipel, writing for Mercury News, reports that calling it a
classic "bait and switch," a California consumer group on Nov. 1
lashed out at Anthem Blue Cross of California, claiming it failed
to adequately warn customers they were being shifted in 2017 to
brand-new, stripped-down plans.

Santa Monica-based Consumer Watchdog announced it has filed a
class action lawsuit against the health insurance giant after
Anthem moved hundreds of thousands of its Preferred Provider
Organization customers to Exclusive Provider Organization plans
for 2017 -- all the while calling the new plans "similar

PPO plans cover a portion of out-of-network costs, while EPO plans
cover none of them.

The change is significant, according to the advocacy group, and
may not immediately be evident to consumers as they review their
re-enrollment notices.

As a result, the nonprofit group alleges, Anthem customers could
potentially face thousands of dollars or more in medical bills
next year that their existing plans covered.

"They have received a misleading message in the mail that promises
they will be automatically enrolled in similar coverage for 2017,
if they do nothing," Jerry Flanagan, lead attorney at Consumer
Watchdog, said during a news conference on Nov. 1.

If consumers rely on that information, he said, they may not
realize their PPO plan is not actually being renewed "and you will
not know to shop around to get coverage before Dec. 15," he said.

The change does not apply to employer plans, only those
individuals who buy private health plans.

The Nov. 1 announcement of the lawsuit came on the first day of
open enrollment for 2017 health care plans under the Affordable
Care Act, also known as Obamacare. Enrollment continues through
Jan. 31.

However, in order for consumers to have health insurance Jan. 1,
they must either re-enroll or change health insurance plans by
Dec. 15.

Sherman Oaks stock trader Paul Simon, 42, the lead plaintiff in
the case, said he received his renewal notification in September.

He did not realize that a change from a PPO to an EPO plan meant
that the same doctor who has treated his ulcerative colitis for
decades, and the dermatologist who diagnosed his melanoma -- both
out of network -- will no longer be partially paid by Anthem in

Under the new EPO plan, if he wants to keep either doctor, he will
now have to pay 100 percent out of pocket, or investigate whether
those doctors are included in a Blue Shield PPO plan.

"My premium is going up from $491 to $655 next year, for what? I'm
getting shafted, basically," said Mr. Simon.

Anthem spokesman Darrel Ng acknowledged that Anthem is moving its
California Anthem PPO customers enrolled in 14 of 19 regions of
the state's health insurance exchange, called Covered California,
to EPO plans.

Mostly, he said, that's due to increased use of medical services
and added costs of drugs and medical therapies that "put upward
pressure on rates."

For 2017, Anthem premiums in the individual market have increased
by an average of 17 percent, one of the highest in the state.

But Ng said the company believes the lawsuit is without merit.

"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," said Mr. Ng.

Spokeswomen with both entities confirmed that their organizations
either reviewed and approved Anthem's modification or

"We believe the notices were very clear about a consumer's
option," said Lizelda Lopez of Covered California.  "There was a
specific bullet in the notices that spoke to the plan change from
PPO to EPO."

Mr. Ng said that affected members have been mailed written notices
about the change so they can make an informed decision on their
health care needs during the open enrollment period for the coming

But Consumer Watchdog said whether or not a state regulator
approved the conversion, the company has violated both federal and
state laws by breaching its insurance contracts with its 2016
members by failing to provide "guaranteed renewal" of existing
coverage that is required under the contract.

Anthem, said Mr. Flanagan, is legally obligated to notify
customers when a plan is being cancelled, which it did not do.

The lawsuit seeks to require Anthem to renew the PPO health plans
for the 2017 calendar year and demands reimbursement of money paid
by consumers that will result from Anthem's acts.

AUSTRALIA: Class Action Launched Over RAAF Base Contamination
Katherine Gregory, writing for ABC, reports that New South Wales
residents have officially launched a class action against the
Defence Department, seeking compensation for contaminated
groundwater from the RAAF Williamtown base.

More than 400 people from Salt Ash, Williamtown and Fullerton Cove
say their property values have declined and they have suffered
mental anguish since finding out their groundwater contains the
toxins PFOS and PFOA.

Resident Lindsay Clout said residents wanted to force Defence to
deal with the problem and clean up the area.

"Banks are withholding loans in the area, valuers are not coming
to site when they find out it's in the exclusion zone," he said.

"Those people are locked into no-man's land.  They have no future
because they have no equity in their property."

Lawyer Ben Allen, who is representing the residents, said he filed
the proceedings on Nov. 2 on instruction from those unhappy with
the Department's response to a letter of demand sent several weeks

Mr. Allen said that letter asked for remediation and compensation
out of court.

"The response from Defence as far as my client was concerned was
wholly unsatisfactory and a slap in the face for them," Mr. Allen

"What we received from Defence was a one-and-a-half page response
which indicated they aren't in a position to respond to demands
being made, that they required a whole-of-government response."

Residents near Williamtown were told about 18 months ago their
groundwater was contaminated with PFOS and PFOA, which were used
in firefighting foam at RAAF Williamtown until about five years

The contamination means residents cannot drink their bore water or
eat home-grown vegetables or eggs from farmyard chickens.

Other communities 'similarly devastated'

Mr. Allan said 17 other RAAF sites around Australia were similarly
affected, including the Queensland town of Oakey in the Darling
Downs, which is also working toward a class action.

"I think this means that other communities similarly devastated
around the country will also need to look to how this is
progressing and take action in their own communities, and Defence
will need to engage in a serious way," Mr. Allen said.

Law professor Vince Morabito from Monash University said he
believed this was the first class action against Defence.

He said while the class action was significant in Australia, since
environmental litigation is rare, it was too soon to determine if
it would set a precedent.

"A class action is a procedural device that allows claims by
numerous people, it makes those claims financially rational to be
litigated," Professor Morabito said.

"At the end of the day the perception or the assessment by the
plaintiff lawyers on how strong the substantive claims are is
likely to become the most important factor.

The Defence Department has been contacted for comment.

AUSTRALIA: Class Action v. MDBA Over Lake Hume Flooding Looms
Anthony Bunn, writing for The Border Mail, reports that lawyers
are urging flood-hit landholders to join a mega dollar class
action against Lake Hume's operators.

A claim is being prepared alleging dam administrators, including
the Murray-Darling Basin Authority, were negligent for failing to
release water when it was safe to do so in August-September.

Law firm Harwood Andrews, which has an Albury office, is combining
with sister practice Adley Burstyner on the case.

The firms allege large releases in October could have been avoided
and also plan to seek damages for what they say was "manmade and
avoidable flooding".

Adley Burstyner principal David Burstyner said the matter would
centre on the MDBA's use of a so-called playbook to keep the dam
99 per cent full.

"This case is about 'did they do what that playbook says' and if
they did the playbook is wrong," Mr. Burstyner said.

"It's bizarre there isn't widespread knowledge about what the
playbook is.

"To stakeholders it's not clear to them what the playbook is and
the authority hasn't communicated that well and that raises

Mr. Burstyner said 40 to 50 people had already shown interest in
joining the action, they include farmers and owners of caravan
parks and motels.

A decision on whether it proceeds will depend on those who sign up
over the next two to four weeks.

Mr. Burstyner said up to tens of millions of dollars could be
sought with a writ three to six months away from being lodged.

Melbourne-based Mr. Burstyner is working with Harwood Andrews
Albury principal Allison Bruce.

He said a class action against the operators of the Wivenhoe dam
in relation to Brisbane's 2011 floods could provide a precedent.

"If it goes against them it will help or be neutral, it certainly
won't be bad," Mr. Burstyner said.

"We're hoping it establishes some guidance on the duty of care

Murray Valley Action Group's Richard Sargood, who represents
downstream property owners, was unsure about class action.

"We will look at it and assess it on its merits," he said.

"I don't know what the appetite for a class action is, there has
been a lot of talk but whether there is the appetite to take it
further is a matter for conjecture."

AUTOZONE PARTS: Faces Class Action Over Awards Programs
Louie Torres, writing for Legal Newsline, reports that a
California couple are suing Autozone, alleging the defendants made
false claims to consumers regarding its awards programs.

Mary Ruth Hughes and Kevin Shenkman filed a class action
complaint, individually and on behalf of all others similarly
situated, Oct. 27 in Superior Court of the State of California
against Autozone Parts Inc., Autozone Inc., Autozone.com, Inc. and
Does 1-20, alleging breach of contract, fraud and negligent

The defendant removed the lawsuit to U.S. District Court for the
Central District of California on Oct. 27.

According to the complaint, Ms. Hughes and Mr. Shenkman suffered
monetary damages from being misled into participating in the
Autzone rewards program.  The plaintiffs allege the defendants
changed the expiration date of the credits accumulated by their
consumers including the plaintiffs.

Ms. Hughes and Mr. Shenkman seek trial by jury, compensatory and
general damages, interest, an order for the defendant to make a
payment to a cy pres fund, court costs and any further relief the
court grants.  They are represented by attorneys Todd W. Bonder
-- tbonder@rmslaw.com -- and Ryan M. Lapine -- rlapine@rmslaw.com
-- of Rosenfeld, Meyer & Susman LLP in Beverly Hills, California,
and by Seth Yohalem of Waskowski Johnson Yohalem LLP in Chicago.

Superior Court of the State of California Case number 2:16-cv-

BANK OF AMERICA: Judge Grants Summary Judgment in FCRA Case
Ross D. Andre, Esq. -- ross.andre@troutmansanders.com --
David N. Anthony, Esq. -- ross.andre@troutmansanders.com -- and
Alan D. Wingfield, Esq. -- alan.wingfield@troutmansanders.com --
of Troutman Sanders LLP, in an article for Mondaq, report that on
October 13, Judge Christina A. Snyder of the United States
District Court for the Central District of California granted
summary judgment in favor of Bank of America and other defendants
in a putative Fair Credit Reporting Act class action. In Robert
Berrellez v. Pontoon Solutions, Inc. et al., No. 2:15-cv-01898,
the plaintiff alleged that the defendants procured a consumer
report about the plaintiff without providing an FCRA-compliant
disclosure and without informing the plaintiff of his right to
receive a summary of his rights under the statute.  In response to
a motion to dismiss, the plaintiff amended his case to include
claims under California's Investigative Consumer Reporting
Agencies Act and Consumer Credit Reporting Agencies Act.

As part of a June 2012 application to do temporary contract work
for Bank of America, a contract staffing agency provided
Mr. Berrellez with a background check authorization and release
form as part of a standard employment packet.  Mr. Berrellez did
not sign that authorization, and it was not the basis for any
subsequent action by any defendant.  Instead, Bank of America
independently provided its own background check disclosure and
authorization form, which Mr. Berrellez signed and which was the
basis for procuring a consumer report about him.  Nonetheless,
Mr. Berrellez's claims were based only on the form provided by the
staffing agency, not Bank of America's own forms.

Mr. Berrellez alleged that the staffing agency's form violated the
15 U.S.C. Sec. 1681b(b)(2)(A) requirement that a disclosure form
consist "solely" of the disclosure because it contained a release
of liability.  He also alleged that the defendants procured
investigative consumer reports about him without informing him,
under 15 U.S.C. Sec. 1681d(a)(1), of his right to request a
written summary of his statutory rights.

Judge Snyder granted summary judgment for the defendants on all
claims.  She concluded that Mr. Berrellez had not proven he had
Article III standing because he could not show a link between the
defendants' conduct and any harm he suffered.  Specifically, she
found that because Mr. Berrellez's claims were based entirely on a
disclosure and authorization form that he never signed and upon
which no defendant took action, any legal failures in that release
were unrelated to his alleged injuries.

The court also found that the claims were barred by the FCRA's
two-year statute of limitations.  Mr. Berrellez argued that the
statute began to run only when he discovered that the defendants
had procured a report about him, which he learned within the two
years preceding his lawsuit.  The court disagreed.  Judge Snyder
noted that (1) the disclosure forms all stated that successfully
passing a background check was a prerequisite to employment, and
(2) that Mr. Berrellez did, in fact, get the job.  Therefore, she
reasoned, Mr. Berrellez should have known -- at least by the time
he began his employment -- that Bank of America had actually
procured a consumer report about him.  Moreover, the court
recognized that Mr. Berrellez had been contacted by the background
check company and had gone for fingerprinting as part of the
report process, all of which put him on notice that the defendants
had procured a consumer report.

The court ultimately concluded that the Article III and statutory
time bars warranted judgment for the defendants on all claims and
dismissed the case in its entirety.  Judge Snyder also rejected
the plaintiff's suggestion that if the court found a lack of
standing, it should dismiss the case without prejudice to allow
him to pursue his claims in state court.

BLUE CROSS: Judge Dismissed ERISA Claims in "Cox" Suit
District Judge Mark A. Goldsmith of the Eastern District of
Michigan, Southern Division, granted defendant's motion to
dismiss, in the case KIMBERLY COX, et al., Plaintiffs, v. BLUE
CROSS BLUE SHIELD OF MICHIGAN, Defendant, Case No. 14-cv-13556
(E.D. Mich.)

From June 2005 to December 2013, plaintiff Kimberly Cox was a
participant and beneficiary of a Blue Cross Blue Shield of
Michigan (BCBSM) administered plan provided by her employer,
Genesys Regional Medical Center. From October 1996 to present,
plaintiff Heather Claus has been a beneficiary of a BCBSM
administered plan through her late husband's membership in
Operating Engineers Local 324. Plan sponsors for the Genesys plan
and the Operating Engineers plan entered into Administrative
Services Contracts (ASCs) with BCBSM, which set forth the rights
and responsibilities of each party with regard to BCBSM's
administration of the plans.

Plaintiffs alleged that BCBSM engaged in self-dealing and breached
its fiduciary duties by illegally paying itself additional
administrative fees, which plaintiffs refer to as hidden fees, and
failing to disclose the misappropriated funds to its principals,
contrary to the ASCs and in violation of the Employment Retirement
Income Security Act (ERISA), 29 U.S.C. Section 1001 et seq.

On September 12, 2014, plaintiffs filed a putative class action
pursuant to 29 U.S.C. Section 1132(a)(3). Plaintiffs seek both
injunctive relief under Section 1132(a)(3)(A) and other
appropriate equitable relief under Section 1132(a)(3)(B) in the
form of restitution, disgorgement, surcharge, and the imposition
of a constructive trust or equitable lien.

In its opinion granting BCBSM's motion to dismiss the third
amended complaint, the court concluded that plaintiffs failed to
set forth sufficient allegations in their third amended complaint
to establish statutory standing to pursue their requested
equitable relief under Section 1132(a)(3)(B). The court also held
that the complaint lacked sufficient allegations to establish
constitutional standing to pursue plaintiffs' requested injunctive
relief under Section 1132(a)(3)(A).  While dismissing the third
amended complaint, the court granted plaintiffs leave to file a
motion to amend their complaint, which they did.

After the court granted the motion to amend in part, plaintiffs
filed their fourth amended complaint, which BCBSM filed a motion
to dismiss the fourth amended complaint, claiming that plaintiffs
lack standing in bringing the action.

Judge Goldsmith granted defendant's motion to dismiss the fourth
amended complaint. Plaintiffs have amended their complaint on four
occasions, and they do not seek to amend it a fifth time. The
omission and plaintiffs' past and continuing inability to make
their case despite a fair opportunity to do so lead the court to
exercise its discretion to dismiss this case with prejudice.

He added that at some point, a court must decide that a plaintiff
has had fair opportunity to make his case, if, after that time, a
cause of action has not been established, the court should finally
dismiss the suit.

A copy of Judge Goldsmith's opinion and order dated October 28,
2016, is available at https://goo.gl/wxHzbR from Leagle.com.

Kimberly Cox, Plaintiffs, represented by David M. Honigman --
dhonigman@manteselaw.com -- Fatima M. Mansour; John J. Conway,
III, and Sara Klettke MacWilliams -- smacwilliams@manteselaw.com -
- Gerard V. Mantese -- gmantese@manteselaw.com -- at Mantese
Honigman, PC

Blue Cross and Blue Shield of Michigan, Defendant, represented by
Aimee R. Gibbs -- agibbs@dickinsonwright.com -- Kathleen A. Lang -
- klang@dickinsonwright.com -- Michelle L. Alamo --
malamo@dickinsonwright.com -- at Dickinson Wright PLLC; Eric S.
Mattson -- emattson@sidley.com -- Kathleen Carlson --
kathleen.carlson@sidley.com -- at Sidley Austin LLP; Michelle R.
Heikka -- at Blue Cross Blue Shield of Michigan; Rebecca D.
O'Reilly -- at RDO Benefits Counsel PLLC

Genesys Health System, Respondent, represented by Larry R. Jensen,
Jr. -- ljensen@hallrender.com -- at Hall, Render, Killian, Heath &
Lyman, PLLC

BROADVIEW FERTILITY: Faces Class Action Over Doctor's Conduct
Alison Motluk, writing for The Globe and Mail, reports that a
former Ottawa fertility doctor used his own sperm to inseminate
patients without their knowledge or consent, a family alleges in a
new lawsuit that claims DNA tests show he is the father of at
least two women whose parents sought help conceiving at his

A statement of claim filed on Nov. 2 alleges that Norman Barwin
told plaintiffs Daniel and Davina Dixon he used Mr. Dixon's sperm
during fertility treatments the couple had at the Broadview
Fertility Clinic in the late 1980s, but they now believe
Mr. Barwin is the biological father of their daughter, Rebecca,
who is also a plaintiff.

The lawsuit says a DNA test confirmed that Rebecca is a
half-sibling on the paternal side to a woman who was also
conceived at the clinic.

Lawyers from Nelligan O'Brien Payne LLP are seeking to have the
suit certified as a class action and are asking that Mr. Barwin be
ordered to provide a sample of his DNA so other children conceived
at his clinic can find out if they are his offspring.

"Dr. Barwin knowingly, recklessly and/or carelessly
misrepresented, by his words and actions, the paternity of all
members of Rebecca's Plaintiff class to the Plaintiffs and the
members of their Plaintiff classes when he knew or ought to have
known that Rebecca and the members of her Plaintiff class were not
of the biological material selected by their parents at the time
of their conception," the statement of claim alleges.

"Furthermore, Dr. Barwin knowingly, recklessly, or carelessly
concealed from the Plaintiffs and the members of their Plaintiff
classes the true paternity of Rebecca and the members of her
class, including that he may be their biological father."

The allegations have yet to be tested in court.  Reached by
e-mail, Mr. Barwin's lawyer, Karen Hamway, declined to comment.

Mr. Barwin is not new to controversy.  In 2013, he was suspended
from practice for two months after admitting at a College of
Physicians and Surgeons of Ontario hearing that he mixed up sperm
in three cases.  Two of those cases were the subject of a lawsuit
filed in 2010 that has been resolved.  He resigned as a physician
in 2014.

Rebecca Dixon, 26, learned she was not biologically related to her
father earlier this year.

She has a darker complexion than her parents and, as a child, was
occasionally asked if she was adopted.  But her parents assured
her she was their biological daughter.

In the spring, she was diagnosed with celiac disease, which tends
to run in families.  Around the same time, her mother read that
two blue-eyed parents could not have a brown-eyed child like

The family decided to investigate further. A test of blood types
revealed that the man Ms. Dixon had always known as her father
could not be biologically related to her: He was type AB and she
was type O-positive.

An April, 2016, paternity test confirmed Mr. Dixon is not
Rebecca's biological father, according to the statement of claim.

"I was shocked," Ms. Dixon said in an interview.  "Your first
reaction is to say it doesn't matter.  My parents are the ones who
raised me.  I'm like them."

The case began after a Vancouver woman started searching for her
biological relatives.

Kat Palmer, 25, learned as a teenager that she was conceived using
sperm from a donor.  An only child, she hoped to find

Ms. Palmer said in an interview she called Mr. Barwin's office
three years ago to ask for information about her donor, including
records, but Mr. Barwin told her he had none.

She said she then met Mr. Barwin in person.  "He said, 'You're an
adult.  You've got a career.  You have a healthy relationship,'"
she recalled.  "'Isn't that enough?'"

The statement of claim says Ms. Palmer turned to online genetic
testing.  She said her parents told her the unnamed sperm donor
was of German and Irish descent, but when she entered her DNA into
the commercial database Family Tree DNA, it revealed her paternal
line was Ashkenazi Jewish.  The claim says the database later
connected her genetically to a second cousin in New York who
turned out to be a relative of Mr. Barwin.

The lawsuit says that in 2015, after that discovery, Ms. Palmer
contacted Mr. Barwin again and he arranged a paternity test.
According to the statement of claim, he later confirmed in an
e-mail to Ms. Palmer that the test revealed he was her biological

In September, Ms. Palmer was introduced to Ms. Dixon, who was
conceived in Mr. Barwin's clinic about six months before
Ms. Palmer.

A genetic test confirmed Ms. Palmer and Ms. Dixon are half-sisters
through their paternal line.  If Mr. Barwin is
Ms. Palmer's biological father, he must be Ms. Dixon's as well,
the court filing says.

The two women attended the same Ottawa specialty arts school, and
although they did not know each other, their circle of friends
overlapped.  They now communicate almost every day, and plan to
meet in December.

"Keeping this a big secret makes it seem something to be ashamed
of.  It isn't," Ms. Dixon says.  "It's just a fact about my life."

CANADA: Autism Montreal Mulls Class Action Over Autism Treatment
Anne Leclair, writing for Global News, reports that
Charlotte Kuhn, a five-year-old girl living with autism, and her
family have received an outpouring of support in response to their
call for help.

Their GoFundMe campaign has collected more than $5,000, which
means they can finally pay for six months of private speech
therapy for Charlotte.  The girl has been waiting for years to
gain access to specialized health services through the province of

Autism Montreal is now calling for a class action lawsuit against
the government, and one lawyer is already examining that

"This is unacceptable that we are not providing this kind of
treatment," lawyer Jean-Pierre Menard said.  "It is a clear
infringement of the patient's rights."

Mr. Menard already launched a class action lawsuit against the
Quebec government over access to services for autistic children
back in the year 2000.  At the time, the government agreed to
inject $32 million into early childhood intervention services,
which was enough to withdraw the lawsuit.

The government is currently working on an action plan that's
expected to invest $5 million, which many claim is nothing more
than a drop in the bucket.

"We know since several years now that the rate of diagnosis of
autism has increased dramatically, it is not something new for the
health system.  It belongs to the health system to adjust the
level of services," Mr. Menard said.

An estimated one in every 68 individuals is diagnosed with autism.
Many have to wait up to two years for a diagnosis in the public
health care system followed by another waiting list of up to three
years before they can access services.

"That's what the government has been doing for so long, they've
just been playing around with the waiting list for so long," said
Electra Dalamagas -- edalamagas@autisme-montreal.com -- from
Autism Montreal.  "I think having a class action lawsuit is the
only way to force the government to have to look at the problem."

Mr. Menard will take a closer look at the file before confirming
that he will go ahead with a civil lawsuit, but families are
relieved that someone has stepped in to help.

"We are overjoyed, other parents are overjoyed," Charlotte's
father Sam Kuhn said.  "It's been completely overwhelming and it
just shows that Quebecers are outraged at what's unfolding here."

CARDINAL LOGISTICS: Settlement in "Holmby" Suit Gets Final OK
In the case, JUSTIN HOLMBY and RUBEN SILVA, individually and on
behalf of all others similarly situated, Plaintiffs, v. CARDINAL
LOGISTICS MANAGEMENT CORPORATION, Defendant, Case No. 15-cv-03382-
RS (N.D. Cal.), District Judge Richard Seeborg granted the
parties' Joint Stipulation for Class Action Settlement and Release
of Claims.

The Court granted the Class Counsel's requests for a Fee Award in
the amount of 25% of the Settlement Fund, and an Expense Award in
the amount of $22,568.98 for actual expenses. The Fee Award should
be calculated from the Settlement Fund after attorney expenses
($22,568.98) and administrative expenses ($13,000.00) are
subtracted, resulting in a final Fee Award of $491,107.75.

Named Plaintiffs' request for Class Representative Service
Payments in the amount of $15,000.00 each is also granted.

The Court also granted the request for settlement administration
costs in the amount of $13,000.00. The amount will be paid to the
Settlement Administrator, CPT Group.

The request for civil penalties under Private Attorneys General
Act (PAGA) in the amount of $5,000.00 is also granted. 75% or
$3,750.00 of which, shall be paid to the California Labor &
Workforce Development Agency. The remaining 25% or $1,250.00 shall
be allocated to the Net Settlement Fund.

A copy of the Court's Order dated November 4, 2016 is available at
https://goo.gl/X3njkd from Leagle.com.

Justin Holmby, Plaintiff, represented by William David Turley --
bturley@turleylawfirm.com -- The Turley Law Firm, APLC.

Justin Holmby, Plaintiff, represented by Christina Ann Humphrey --
christina@humphreyrist.com -- Humphrey & Rist LLP, David Thomas
Mara -- dmara@turleylawfirm.com -- The Turley Law Firm, APLC &
Jamie Kathryn Serb -- jserb@turleylawfirm.com -- The Turley Law
Firm, APLC.

Cardinal Logistics Management Corporation, Defendant, represented
by Drew Robert Hansen -- dhansen@tocounsel.com -- Theodora
Oringher, PC, Kenneth E. Johnson -- kjohnson@tocounsel.com --
Theodora Oringher PC, Thomas Peter Gies -- tgies@crowell.com --
Crowell and Moring LLP, pro hac vice & Walter Pena --
wpena@tocounsel.com -- Theodora Oringher PC.

CAREER POINT: Student Sues Over Deceptive Business Practices
Cydney Baron, writing for The Times, reports that when Career
Point College went under, a Mayes County student was among those
left in the lurch -- with a transcript full of failing grades.

A class action petition was filed in Mayes County District Court.
The petition was drafted by attorney Ben Sherrer and and Wilfred
K. Wright Jr., of Wright Law PLC of Claremore on behalf of
Carlie James "and all others similarly situated."

The petition states that Ms. James and class members entered into
agreements with Career Point College "such that Career Point
College would pay $16,326 by each student class member in
consideration for Career Point College educating them in medical
assistant or medical billing certification programs with the
students' expectation to be licensed by the Oklahoma State Board
of Licensure and Supervision upon graduation from Career Point
College usually to occur after about 12 months of education."

Ms. James and the other students reportedly received an email from
the college informing them "Career Point College had shut it's
doors and the students were no longer able to complete their
certificate program."

According to the petition Ms. James had paid $16,325 with the
expectation of being educated and receiving a certificate and was
unable to do so.

Additionally, according to the petition, Ms. James received an
official transcript on Oct. 18 from Career Point that reflected an
"F" in the five courses rather than an incomplete.  Prior to this
Ms. James was reportedly an "A" student.

"Such business practices are deceptive, wrongful, unfair,
unscrupulous and substantially injurious to the plaintiff and the
class members who now have in their official transcript fraudulent
grades, where they are powerless to correct without the assistance
of this course," according to the petition.

The class allegations include several claims including: breach of
contract, violation of the Oklahoma Consumer Protection Act,
negligence, breach of fiduciary duty and detrimental reliance.

Ms. James is seeking, from the court, an order certifying that
this action may be maintained as a class action.

The court is also being asked to award James and class members
full and equitable restitution, compensatory damages in excess of
$100,000 but not more than $5,000,000, punitive damages,
attorney's fees and costs.

The petition further seeks "whatever relief available to resolve
the fraudulent 'official transcripts' that disparage and
fraudulently represent student letter grades that are not factual
or truthful but are intentional and/or negligent

CEPHALON: 3rd Cir. Reverses Ruling in Modafinil Antitrust Suit
Annie Dike, writing for National Law Review, reports that
22 class members was not enough "strength in numbers" to pass the
Third Circuit's "particularly rigorous" under-40 numerosity
review.  In a recent opinion, a divided panel of the Third Circuit
issued a detailed, arduous scrutiny of numerosity sufficient to
warrant class certification finding, essentially, that 15 is too
few, and 40 is plenty while offering 6 new-merosity factors
district courts should consider before granting class

Although numerosity is the first factor listed in Fed. R. Civ. P.
23 for class certification, it is not the factor that generally
attracts the most laborious review.  Most class-action lawsuits
are built upon a group in the hundreds if not thousands.  In these
cases, class-action lawyers are used to fighting over commonality
and typicality, but the In re: Modafinil Antitrust Litigation
opinion will give them clear grounds to fight over numerosity when
there are between 15 and 40 class members.

The 22 plaintiffs, direct wholesale purchasers of Provigil
(Cephalon's branded version of the generic modafinil), a
medication used to treat sleep disorders, sued Cephalon alleging a
monopoly and an antitrust conspiracy between it and four other
manufacturers of the generic modafinil.  The alleged conspirators
entered into reverse-payment settlements whereby an upfront cash
incentive is offered to keep competition from generic
manufacturers at bay for a set period of time.  The plaintiffs
claim Cephalon's payments to competitors were allowing it to reign
as "king of the Provigil hill" and name its price for the drug.

So, what was wrong with the modafinil class? Nothing according to
the district court, which certified its 22 members.  The district
court found the numerosity requirement was satisfied because
judicial economy was best served in that case by certification as
a class action because litigation had reached such a late stage.
That was where the Third Circuit took issue, reversed, and
remanded.  The Third Circuit's critique of the district court was
that it improperly emphasized the stage of the litigation rather
than exploring the ability of the 22 class members to prosecute
their claims through joinder.  The true test of Rule 23(a)(1), is
that the class is "so numerous that joinder of all members is

Allowing the late stage of the litigation to satisfy a numerosity
requirement, according to Justice Smith, who wrote the majority
opinion, would incline all complex, long-lived litigation towards
class certification merely because it was complex and required
extensive discovery.  While Justice Smith noted the text of the
Rule offers no numerical requirement, he did etch out a new
"particularly rigorous" area of numerical scrutiny: any class
greater than 15 but fewer than 40.  As this case has so few
plaintiffs, a "late stage" argument cannot be sufficient.

To satisfy the requirement of particular rigor, Justice Smith
outlined six non-exhaustive factors to be considered in analyzing
numerosity: 1) judicial economy; 2) the claimants' ability and
motivation to litigate as joined plaintiffs (a.k.a.
"practicality"); 3) the financial resources of class members; 4)
the geographic dispersion of class members; 5) the ability to
identify future claimants; and 6) whether the claims are for
injunctive relief or for damages.  The court stressed that the
first two factors, judicial economy and practicality, are "of
primary importance."  Importantly, practicality refers to the
possibility of litigating as joined plaintiffs, not as
individuals.  Six of the class members have claims of less than
$1M, and it might be impractical for them to pursue individual
litigation, but that is not the test.  As Justice Smith
emphasized, the burden lies with the plaintiff to prove that
joinder would be impractical.

Another huge strike for the plaintiffs was the fact that the 3
class members with claims over $1B, comprising 97% of the total
value of the case, were unnamed.  They would not be subject to
individual discovery or the typical burdens of traditional
litigation.  In all, it appeared to the Third Circuit that the 3
unnamed members were utilizing the class device to their advantage
rather than as a practical procedural need.  The court stressed
class certification should only be awarded where it is proven it
will be "substantially more efficient than joinder," which is
usually the case when there are numerous (more than 40) small
value or negative claims.  That was certainly not the case here.

The takeaway from this opinion is a very detailed, concrete
approach to certification of classes with members ranging from 15
to 40 and the "particularly rigorous" hurdles they will need to
overcome to obtain certification.  In all, class-action
plaintiffs' counsel with classes falling in this numerical 15-40
"gray zone" should take extra measures to prove that joinder is
not practicable.  The Third Circuit has stressed that this is the
plaintiff's burden.  The plaintiff may show either that the claims
are small or negative value, that the cost of litigating them
individually may outweigh the potential benefit, or that the case
is so complex or the plaintiffs spread so far apart that judicial
economy will be accomplished if discovery is consolidated.

CHICAGO, IL: Ex-CPS Bus Attendant Files Wage Class Action
Dana Herra, writing for Cook County Record, reports that a former
bus attendant for the Chicago Public Schools has delivered a class
action lawsuit against the state's largest school district
alleging he and others like him worked hours for which they were
never paid.

The lawsuit was brought by plaintiff Aaron Walker, who once worked
for the school district as a child welfare attendant assisting
special needs students on school buses provided by third-party
busing companies.  He filed the four-count complaint against the
district demanding lost wages on behalf of himself and others
performing the same work for the district.

According to the lawsuit, Mr. Walker worked for Lincoln Park High
School during the 2013-14 school year.  The suit alleges he was
consistently required to remain on the bus "attending to and
supervising the transport of special needs students" after his
shift had ended, but he was not paid for the extra time put in
after the end of his shift.  Mr. Walker contends he should have
been paid his regular wage for the extra time, and during the
weeks the additional time extended his work week beyond 40 hours
he should have been paid time-and-a-half.

The first count of the complaint alleges violation of the Fair
Labor Standards Act.  The second count alleges willful violation
of the act, claiming that Chicago Public Schools knew Mr. Walker
was working past the end of his regular shift and that the
additional hours were in violation of the law.

The third count claims that because the district did not
compensate Walker according to statute, its actions "were not
based upon good faith or reasonable grounds" and says he is
entitled to liquidated damages.

The fourth count is a supplemental state law claim arguing that
Chicago Public Schools violated the Illinois Minimum Wage Law.
Under state law, an employer who fails to pay the minimum wage is
liable for not only the amount of the unpaid wages, but an
additional 2 percent penalty for each month the wages remain

Under the first two counts, Mr. Walker is asking the court to
award back pay for the unpaid overtime, prejudgment interest,
court costs and any additional relief the court deems appropriate.
On the third count, he requests liquidated damages in the amount
of the unpaid wages.

Under the state count, Mr. Walker seeks damages to be determined
by the court plus court costs.

The lawsuit does not estimate how many other potential plaintiffs
may be included in the action, nor how many other such child
welfare attendants are employed by CPS; neither does it specify
how much money plaintiffs may demand CPS pay as a result of this

Mr. Walker is represented by attorney John W. Billhorn of the
Billhorn Law Firm, of Chicago.

CHICAGO, IL: Judge Approves Red Light Camera Class Action
David Kidwell, writing for Chicago Tribune, reports that a Cook
County judge approved class-action status on Nov. 2 for a lawsuit
over the city's failure to give adequate notice to red light
camera and speed camera violators, substantially increasing the
city's potential liability.

The lawsuit contends that Mayor Rahm Emanuel's administration
broke state law when it shortened the time that ticket holders had
to contest their violations or pay their fines.

The decision by Judge Kathleen Kennedy to approve the proposed
class-action means as many as 1.5 million motorists could have a
stake in the outcome, not just the two plaintiffs who were named
when the lawsuit was first filed.

The development came as no surprise to city lawyers, who have been
working to stave off the onslaught of claims.  In September, the
Emanuel administration moved to pass an ordinance that gives those
ticket holders affected by the errors a second chance to challenge
their tickets retroactively, in some cases years after they had
already paid their fines and late fees.

Lawyers for the Emanuel administration have tried to downplay the
significance of the case, arguing that accelerating the time that
people have to pay fines does not change the fact they were
speeding or running a red light.

But plaintiffs' attorney Jacie Zolna argues that the tickets
themselves are fatally flawed because the administration violated
due process and should not be allowed a do-over.  He is suing to
recover all fines and late fees associated with those tickets.

"It's big," he said after court on Nov. 2.  "It essentially means
that every ruling in this case could affect millions of people."

Judge Kennedy's ruling was just the latest blow in a lucrative
automated camera enforcement program mired in corruption and
mismanagement since it began almost 15 years ago.

Later this month, the former CEO of Chicago's original camera
vendor -- Redflex Traffic Systems Inc. -- is set to be sentenced
for her role in a decadelong $2 million conspiracy to bribe a City
Hall insider for every new red light camera that went up
throughout the city.

At its peak, the program -- still the largest in the nation --
peppered the city with 384 cameras that have raked in more than
$600 million in fines.

A Tribune investigation found tens of thousands of tickets were
issued improperly at malfunctioning cameras, where yellow lights
were too short or city oversight was lacking.  In addition, a
Tribune-sponsored study found no reduction in injury-related,
right-angle crashes at nearly 40 percent of camera locations,
while the cameras caused a 22 percent increase in injuries from
rear-end collisions throughout the city.

Mr. Emanuel and his transportation officials insist the program is
designed to keep the streets safer -- not to raise revenue for a
cash-strapped city.

The Nov. 2 ruling affects drivers who were ticketed through
May 2015 who were issued a "notice of final determination" before
the 21-day window required by law and those who failed to get a
second notice and were assessed late fees before the required 25
days had passed.

Mr. Zolna said that anyone who believes they may fall into this
class does not need to take any action at this time.  They will be
identified and notified of their involvement in the case, he said.

If the Emanuel administration gets its way, they will be offered
another chance to contest their violation.  If Mr. Zolna wins,
each of them would get a full refund.

CHINACAST EDUCATION: Files for Chapter 11 Bankruptcy Protection
ChinaCast Education Corp. sought bankruptcy protection with the
goal of maximizing the value of its enterprise by continuing to
wind-up its affairs without the distraction and substantial costs
of having to defend against a class action suit.

Formerly engaged in the business of providing college-level
education to students in China, ChinaCast was left in financial
ruin, has no current operations, and is winding up its affairs as
a result of its founder's alleged looting of the Company in 2012,
as disclosed in the court filing.

According to Douglas Woodrum, chief financial officer and a member
of the Board of Directors of ChinaCast, Ron Chan Tze Ngon was
removed as chairman and CEO of ChinaCast in March 2012 for his
attempt to thwart an annual audit of the Company.  Following his
departure, ChinaCast had "uncovered questionable activities and
transactions which raise the specter of possible illegal conduct
by Ron Chan and his accomplices," and prompted a further

Mr. Woodrum said the Company investigated the possible transfer of
interests in certain of its schools to unauthorized parties,
potentially involving Mr. Chan and other individuals.  The Company
also investigated the wrongful withdrawal of approximately $120
million from Company accounts.  The Company also believed Mr. Chan
may have transferred control of its interests in certain of the
schools it operated without authorization.

These events prompted the initiation of an initial securities
fraud class action complaint filed against ChinaCast on May 25,

Following the consolidation of several related actions against the
Company and others, and the appointment of lead plaintiffs, a
consolidated class action complaint styled In re ChinaCast
Education Corporation Securities Litigation was filed in the
United States District Court for the Central District of
California, Case No. CV 12-04621-JFW (PLAx) on Sept. 17, 2012.
The Class Action Complaint asserted causes of action under, inter
alia, section 10(b) of Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder against ChinaCast, as well as Derek
Feng, Stephen Marksheid, Ned Sherwood and Daniel Tseung, the
members of the Board during the time of Mr. Chan's looting of the
Company.  Mr. Chan was not named as a defendant in the Class
Action Complaint.

On Oct. 15, 2012, ChinaCast and the Independent Directors moved to
dismiss the Class Action Complaint.  On Dec. 7, 2012, the District
Court granted the motion to dismiss.  The District Court ruled
among other things, that (i) the plaintiffs failed to adequately
plead the level of scienter by each of ChinaCast and the
Independent Directors required to sustain a private cause of
action under section 10(b) and Rule 10b-5 and under the Private
Securities Litigation Reform Act; (ii) that Mr. Chan's state of
mind could not be imputed to the Company because of the so-called
"adverse interest" exception to agency common law; and (ii)
because the Independent Directors had no knowledge of Mr. Chan's
concealed looting of the Company or facts sufficient to constitute
"reckless disregard" of facts that would have caused the
Independent Directors to know of Chan's looting of the Company,
the claims against them had to be dismissed.

The plaintiffs in the Class Action appealed the District Court
Decision, but solely as to ChinaCast.  Almost three years after
the District Court Decision, on Oct. 23, 2015, the United States
Court of Appeals for the Ninth Circuit reversed the District Court
in a published decision ruling that "the adverse interest
exception itself had exceptions when necessary to protect the
rights of a third party who dealt with the principal in good

Upon remand, without sufficient resources to defend against the
Class Action any further, the Company did not answer the Class
Action Complaint.  A hearing on the plaintiffs' motion for entry
of a default judgment is scheduled for Nov. 14, 2016.

Prior to the Petition Date, the Debtor commenced seven recovery
actions that are currently pending in the United States and in
Hong Kong.

The Debtor expects to promptly file a Chapter 11 plan that
establishes a litigation trust, which will then continue pursuit
of the Recovery Actions until completed.

Founded in 1999 by Ron Chan Tze Ngon, ChinaCast is a publicly-held
corporation organized under the law of Delaware.  On
March 1, 2014, the Secretary of State of Delaware proclaimed that
the Debtor was no longer in good standing for failure to pay
taxes.  As a result, the Debtor is winding up its affairs within
the limitations provided by Section 278 of the Delaware General
Corporation Law.

ChinaCast owned and operated three universities in China: the
Foreign Trade and Business College of Chongqing Normal University,
the Lijiang College of Guangxi Normal University and the Hubei
Industrial University Business College, in addition to
internet-based interactive distance learning applications,
multimedia education content delivery, and vocational training

As of the Petition Date, the Recovery Action Debt outstanding
totaled approximately $9,380,647.  In addition to the Recovery
Action Debt, the Debtor owes vendors, professionals and other
commercial parties approximately $12,893,088 in the aggregate, as
disclosed in court papers.

The Chapter 11 case is pending in the U.S. Bankruptcy Court for
the Southern District of New York (Case No. 16-13121) before
Judge Mary Kay Vyskocil.

Klestadt Winters Jureller serves as counsel to the Debtor.  Reid
Collins & Tsai LLP acts as the Debtor's special litigation

The Debtor estimated assets in the range of $500 million to $1
billion and debts in the range of $10 million to $50 million as of
the bankruptcy filing.

A full-text copy of Douglas Woodrum's declaration in support of
the petition is available for free at:


COLGATE-PALMOLIVE CO: Faces False Advertising Class Action
Wadi Reformado, writing for Legal Newsline, reports that consumers
have filed a class action lawsuit against Colgate-Palmolive Co.
and Tom's of Maine Inc., New York corporation, citing alleged
negligent misrepresentation.

Anne De Lacour and Andrea Wright filed a complaint on behalf of
all others similarly situated on Oct. 27, in the U.S. District
Court for the Southern District of New York against the defendants
alleging that they made false and misleading claims regarding
their product.

According to the complaint, the plaintiffs allege that Anne De
Lacour and Andrea Wright suffered damages from purchasing a
falsely advertised product.  The plaintiffs holds Colgate-
Palmolive Co. and Tom's of Maine Inc. responsible because the
defendants allegedly claim that their product is made up of
natural ingredients in order to be able to sell them at a premium

The plaintiffs request a trial by jury and seek compensatory,
statutory and punitive damages, injunctive relief, restitution and
disgorgement, all legal fees and any other relief as this court
deems just.  They are represented by Scott A. Bursor, Joshua D.
Arisohn and Philip L. Fraietta of Bursor & Fisher, P.A. in New

U.S. District Court for the Southern District of New York Case
number 1:16-cv-08364-RA

CONSOL ENERGY: Retired Nonunion Miners File Class Action
Charles Boothe, writing foor The Register-Herald, reports that
papers have been filed in federal court in West Virginia seeking a
class action lawsuit on behalf of about 2,000 nonunion retired
miners who say CONSOL Energy Corp. wrongfully ended their health

Mountain State Justice, a non-profit law firm based in Charleston,
filed the papers on Oct. 17.

Sam Petsonk, an attorney with the firm, said lifetime benefit
plans were withheld or terminated by the company at the end of

"What we are arguing is . . . the company promised to provide the
benefits," he said.  "They made a promise . . . we have brought
this class action lawsuit to enforce that promise to pay health
care benefit to those retirees."

Mr. Petsonk said the promise was verbal, but the miners declined
to belong to a union because of that promise of benefits.

"They accepted the company's verbal promises," he said.  "We are
seeking for the company to restore those benefits after
terminating them, to reestablish the insurance pool for these
miners who were left out of it."

The suit seeks remedies under the Employee Retirement Income
Security Act (ERISA), which include restoring the full $2,500 per
year per retiree in health spending accounts which they believe
they are due under the terms of their collectively bargained
retirement benefits plan.

Mr. Petsonk said although the promise was verbal, enforcing it
does fall under the federal ERISA.

According to a report filed on the Bloomberg business news
website, court papers allege that key information about the
company's lifetime health benefits were withheld from the miners,
who rejected unionization in exchange for certain company
concessions, until after they became eligible for retirement.

The nonunion employees who accepted lower wages on the promise of
lifetime benefits say they were not told of a clause allowing the
company to terminate their health benefits at any time, the report

"They believe the company is acting illegally and seek to prevent
CONSOL from terminating or withholding these benefits or
discriminating against the retired miners on the basis of their
health status," according to the report.

The miners also complain in the suit that they were not offered
the same lump-sum payments given to other employees when the
company terminated their health benefits.

CONSOL does not comment on pending legal action.

CONSOL Energy, a publicly owned Pittsburgh-based producer of
natural gas and coal, has been selling coal mining operations in
the region in recent years.

In February, the Buchanan Mine in Buchanan County, Va., was sold
to a Connecticut company for $420 million.

The company has turned its attention more toward natural gas,
according to various reports.

COUNTY DISPOSAL: Faces Class Action Over Trash Service
Liz Lohuis, writing for WSMV, reports that they may be in the
trash business, but customers filing a class action lawsuit
against County Disposal say the service is garbage as well.

The Rutherford County residents say their trash hasn't been picked
up for weeks, making their neighborhood resemble a landfill.

"We would walk our dogs and it would smell like a landfill.  There
was maggots all over the ground," Kim Kasler said.

"The smell is horrific," Denessa Bell said.

They say even though the service stopped, the bills have not.
Customers continue to be charged for the service.

"That's a lot of money that they are sitting back and holding,"
Ms. Kasler said.

Ms. Kasler signed up for automatic withdrawal through County
Disposal, but even after canceling the service and alerting her
bank, she was still having money taken out.

She eventually had to cancel her debit card and get a new one.

"People just don't have money laying around to literally throw in
the trash can," Ms. Bell said.

Ms. Bell said she recorded crews taking back her trash cans with
no explanation and then continuing to charge her for the service.

"We have given County Disposal multiple, multiple times to get
back with us and refund us money that belongs to us, but they
don't, so now it's time for civil action and I will get justice,"
Ms. Bell said.

Seven people are on the class action lawsuit being filed against
County Disposal.

The owner of the company did not want to go on camera, but told
Channel 4's Liz Lohuis that he is doing everything he can to
refund those unfairly charged.

He said he ran into bad luck. All of his trucks broke down, and
several of his employees quit because he said they were getting
harassed by customers.

He also said there have been issues with the phone lines.

Ms. Bell doesn't buy it.

"If they think I am going to drop it they are crazy," Ms. Bell

According to the Better Business Bureau, this isn't the first time
County Disposal faced allegations like these.  In 2014, the BBB
also received complaints from customers who say they never got the
services they paid for.

CREDIT SUISSE: Plaintiff Lawyer Reprimanded by Idaho Bar Counsel
Chief Justice Jim Jones of the Supreme Court of Idaho, Boise,
affirmed the Hearing Committee's affirmance of the Bar Counsel's
imposition of a private remand against petitioner, in the case
JOHN DOE (2016-20), Petitioner, v. IDAHO STATE BAR, Respondent
Docket No. 44219 (Idaho)

Petitioner John Doe was counsel for plaintiffs in a class action
entitled Gibson v. Credit Suisse, CV 10-1-EJL-REB, filed in the
United States District Court for the District of Idaho on January
3, 2010.

While the report and recommendation was pending before Judge
Lodge, plaintiffs filed a motion for an order to issue a subpoena
for Michael Miller, the Senior Director of the appraisal division
of defendant Cushman & Wakefield (C&W). Attached to the motion was
an affidavit sworn by Doe in which he stated that Miller had
provided incriminating testimony about Credit Suisse and C&W in
front of Doe and other attorneys on March 19, 2011.

Plaintiffs had been relying on Miller's unsigned declaration from
March 2011 through February 2012. However, Miller had signed an
affidavit on May 9, 2011, and Miller's counsel sent that affidavit
to Doe shortly thereafter. Miller's signed affidavit differed from
the unsigned declaration in a number of respects. Doe did not
disclose the existence or the contents of Miller's signed
affidavit to the district court or defendants.

On April 27, 2012, defendant C&W received a copy of Miller's
signed affidavit from Miller's counsel. C&W filed a motion for
sanctions, arguing that plaintiffs and their counsel committed
misconduct by relying on Miller's unsigned declaration for over a
year while Doe knew of the existence of the signed affidavit and
failed to disclose it to the court. Judge Bush imposed sanctions
against plaintiffs and counsel, finding in part that counsel
violated Idaho Rule of Professional Conduct (I.R.P.C.) 3.3.  Judge
Lodge affirmed the order on October 17, 2014.

On September 13, 2013, the Bar Counsel asked Doe to respond to the
issues raised in Judge Bush's order imposing sanctions. After an
investigation, the Bar Counsel issued a letter to Doe detailing
its conclusion that Doe violated I.R.P.C. 3.3 by knowingly making
a false statement of fact to a tribunal or failing to correct a
false statement of material fact.  The Bar Counsel found that
after Doe received the signed declaration his representations to
the court that Miller refused to provide sworn testimony absent a
deposition were no longer true. In the letter, the Bar Counsel
also concluded that Doe's conduct was prejudicial to the
administration of justice in violation of I.R.P.C. 8.4(d) because
his actions unnecessarily and unreasonably multiplied the
proceedings, and required the expenditure of additional resources'
by the parties and the court.  The Bar Counsel imposed a private
reprimand for the above violations and informed Doe that he may
seek review by a hearing committee of the Professional Conduct

Doe requested reconsideration from the Bar Counsel, which was
denied on September 30, 2015. Doe then filed a written request for
review by the Professional Conduct Board on October 14, 2015, and
a hearing committee was appointed. A hearing was held before the
appointed Hearing Committee on March 7, 2016 and issued a decision
that day, affirming the decision of the Bar Counsel. The
Committee's decision did not include findings of fact or
conclusions of law.

Doe sought reconsideration of the Committee's decision, arguing
that the Committee was required to make independent findings of
fact and conclusions of law when reviewing the Bar Counsel's
decision and that there was not clear and convincing evidence
supporting the Bar Counsel's finding that Doe violated I.R.P.C.
3.3 and 8.4(d).  The Committee issued an order denying
reconsideration on May 16, 2016, concluding that it was not
required to make independent findings of fact and conclusions of
law when conducting a review hearing.  Doe filed a petition for

Chief Justice Jones affirmed the Hearing Committee's affirmance of
the Bar Counsel's decision to impose a private reprimand against

Chief Justice Jones held that the Committee did not err by failing
to issue independent findings of fact and conclusions of law when
approving the Bar Counsel's imposition of a private reprimand.

Chief Justice Jones goes on to say that Doe made false statements
to the tribunal by continuing to rely on the unsigned declaration
after receiving the signed affidavit and representing to the court
that Miller was unwilling to sign an affidavit when he had already
done so. I.R.P.C. 3.3(a) recognizes that an attorney has a duty to
take reasonable remedial measures where he or she has provided
information to the court that later turns out to be false, even if
the attorney believed that the information was true at the time it
was provided. In sum, there was substantial evidence to support
the Bar Counsel's conclusion that Doe violated I.R.P.C. 3.3(a)(1),
and the Committee's affirmance of his decision was not clearly

A copy of Justice Jones's decision dated November 3, 2016, is
available at https://goo.gl/iO4g0b from Leagle.com.

Merlyn W. Clark -- mclark@hawleytroxell.com -- at Hawley, Troxell,
Ennis & Hawley, LLP, for Petitioner

Bradley G. Andrews -- Idaho State Bar, Boise, for Respondent

The Supreme Court of Idaho panel consists of Chief Justice Jim
Jones and Justices Daniel Eismann, Roger Burdick, Warren Jones and
Joel Horton.

CTS OF CANADA: Auto Parts Workers File Summary Judgment Motion
Alex Robinson, writing for Canadian Lawyer, reports that lawyers
say a $2.5 million class action lawsuit against an auto parts
maker highlights the need for employers to alert the Ministry of
Labour early when closing down a facility.

Plaintiff lawyer Stephen Moreau -- smoreau@cavalluzzo.com -- a
partner with Cavalluzzo Shilton McIntyre Cornish LLP, says an auto
parts maker neglected to inform the Ministry of Labour of a plant

Nearly 100 auto parts workers are represented on the lawsuit,
which was brought against their former employer, CTS of Canada
Co., after it shut down its Mississauga plant in 2015.

The workers recently filed a summary judgment motion against CTS
to have their day in court without having to go to trial.

The claim alleged the American car parts manufacturer failed to
give them proper notice when it closed down the plant to sell the
land and move its operations to Mexico and China.

At issue is whether CTS filed a Form 1 with the Ministry of Labour
when the company gave its employees notice the plant would be

Under the Employment Standards Act, employers who lay off more
than 50 employees must submit the form to the ministry in order
for their notice of mass termination to come into effect.

A copy of the form must also be posted in the workplace on the
first day of the notice period in addition to providing employees
with individual notice.

"Form 1, even though it's a technical requirement, it's part of a
scheme that is supposed to apply when you have group notice under
the act.  It's an important part of it because it gives the
Ministry of Labour notice of what's happening," says
Landon Young, the managing partner of Stringer LLP, who is not
involved in the case.

In their claim, the workers alleged CTS did not file the form,
rendering their severance letters null and void.

"What we've alleged and I think we've clearly proven here is they
neglected to actually inform the Ministry of Labour that this
plant was closing," says the plaintiffs' lawyer, Stephen Moreau, a
partner with Cavalluzzo Shilton McIntyre Cornish LLP.

"When you close a plant, you're supposed to tell the Ministry of
Labour so that the labour ministry can get involved and help
people reintegrate into the workforce."

CTS announced the plant would close in Feb. 2014, which was more
than a year before the intended closure date.  In April of that
year, the company gave individual severance letters to its
employees, letting them know the plant would stop manufacturing by
March 2015.

In their statement of defence, CTS said that the company
discovered "its error" in not submitting a Form 1 initially and
did so in May 2015, informing the ministry of their plans to close
the plant in June.

CTS argued that the fact that the Form 1 was not submitted at the
time the severance letters were issued did not void them, as they
were only required to submit a Form 1 within four weeks of

"CTS denies that any of the Plaintiffs were wrongfully dismissed,"
said the company's statement of defence.

"CTS states that all of the Plaintiffs received reasonable notice
of the termination of their employment and many of them received
far greater than reasonable notice of the termination of their
employment due to the extended length of the working notice period

Moreau says the fact that CTS was nearly 13 months late in filing
its Form 1 meant that the Ministry of Labour could not conduct the
proper employment services for the employees.

"The notice is not a trifling matter," he says.

Employment lawyers say this case highlights the importance of
filing a Form 1 early in the process.

"That's an essential first step.  That's the first thing we do is
we get the client to fill out that form," says Hendrik Nieuwland -
- hnieuwland@somlaw.ca -- a partner at Shields O'Donnell MacKillop
LLP, who is not involved in the case.

Mr. Nieuwland says that if the claim is successful, giving workers
one year of advanced working notice might have all been for
nothing and that the employer might end up having to pay the
former employees minimum notice amounts in addition to the year of
work they completed.

Kristin Taylor, of Cassels Brock & Blackwell LLP, who has
represented CTS in the class action proceedings, declined to
comment, as the lawsuit, which was certified in January, is

The plaintiffs expect their summary judgment motion will be heard
in July 2017.

EOS: Settles Class Action Over Lip Balm Side Effects
Greg Seals, writing for Allure, reports that with their bright
packaging and iconic shape, EOS lip balms have become a staple for
many of beauty editors, as well as a novelty item and a
collector's item for celebs such as Miley Cyrus.  But the
much-beloved brand recently experienced a shake-up when it was hit
with a class action lawsuit in January of 2016, alleging that
customers had experienced rashes, blisters, and other negative
side effects as a result of using the product.

To jog your memory, the original plaintiff, Rachael Cronin, claims
that after buying an EOS lip balm at a local Target on December 4,
2015, she ended up with severely cracked, bleeding, blistering,
and flaking lips.  "Within hours, her lips became substantially
dry and coarse, what Ms. Cronin describes as feeling like
'sandpaper,'" the lawsuit stated.  "Ms. Cronin's lips and
surrounding skin area had severe blistering and rashes causing her
to seek medical care." It also said the packaging contained no
warnings about potential adverse side effects.
Ms. Cronin also happened to post the photos to Facebook, which
made the story go viral, of course.  Social media, right?! That
suit, though, was settled in just 15 days.

However, it seems that EOS may be facing more legal action.
According to Buzzfeed News, EOS will be reportedly settling at
least ten more class action lawsuits and offering compensation.
Though the preliminary agreement still requires a signature from a
judge, affected consumers could receive products, cash, or more
depending on their reactions to the product.  "Affected consumers
are eligible to receive either $75 for verified medical expenses,
a $15 cash award, $20 worth of EOS products, or up to $4,000
depending on their injuries," Buzzfeed News reports.

Allure reached out to EOS for comment, and a spokesperson for the
brand provided the following statement:

"We are pleased with this amicable resolution of the lawsuits
brought against EOS earlier this year.  We stand behind our
products and the ingredients we use, and the settlement does not
warrant any changes to our product formulations.  All of our
products meet or exceed all safety and quality standards set by
our industry and are validated by rigorous safety testing
conducted by independent labs.  Our customers are always our top
priority, and we remain committed to delivering innovative beauty
products that are safe, effective, and bring joy to eos fans."

FACEBOOK INC: Faces Class Action Over Video Metric Error
Keri Bruce, Esq. -- kbruce@reedsmith.com -- and Michael Strauss,
Esq. -- mstrauss@reedsmith.com -- of Reed Smith, in an article for
JDSupra, report that a putative class action lawsuit has been
filed against Facebook, Inc. just one month after Facebook
announced that an erroneous formula had caused it to inflate a key
video metric for the past two years.

Facebook admitted the error in a September 23, 2016 post on the
Facebook business page.  The metric at issue -- the average time
users spend watching videos (the duration metric) -- is a critical
measurement that advertisers rely upon when making purchasing
decisions about where to place their advertising.  But according
to the September Facebook post, the formula used to produce the
duration metric was wrong: while "[t]he metric should have
reflected the total time spent watching a video divided by the
total number of people who played the video," it did not.
Instead, the calculation was based on the "total time spent
watching a video divided by only the number of "views" of a video
(that is, when the video was watched for three or more seconds)."
In other words, the duration metric should have reflected a
significantly lower average because it should have incorporated
those people who played a video for three seconds or less.

This surprising revelation was exacerbated by The Wall Street
Journal's report that Facebook told its business partners the
miscalculation caused the duration metric to be artificially
inflated by between sixty and eighty percent.

Citing Facebook's September admission and the WSJ article, the
putative class contends that Facebook's misrepresentation about
the duration metric induced them to purchase (at a higher rate
than what they would have paid) or continue purchasing advertising
with Facebook.  This misrepresentation, the complaint asserts,
violates a host of California statutes related to unfair business

Takeaway: Whether big-time advertisers will join this putative
class or bring a claim independently remains to be seen.
Regardless, advertising measurement on digital media continues to
be rife with error and a lack of transparency.  Advertisers should
ensure their media buying agencies establish viewability
standards, monitor publisher compliance and press for the ability
to use an accredited third-party verification provider in
connection with their digital advertisement placements.

FACEBOOK INC: Faces Discrimination Suit in Calif. Over Ad Tool
Ross Todd, writing for Law.com, reports that Facebook Inc. has
been hit with a lawsuit claiming that it violates federal anti-
discrimination laws for housing and employment by allowing
advertisers to exclude certain groups on the basis of race, gender
or religion in social media ads.

In a complaint filed in U.S. District Court for the Northern
District of California on Nov. 3, a New York woman and two
African-American Louisiana residents claim that Facebook's
advertising portal allows ad-purchasers to target or exclude
certain "ethnic affinities," including "African-American," "Asian-
American," and four categories of "Hispanic US."

According to the complaint, plaintiffs have all used Facebook in
searches for housing and employment in the past year.  Plaintiffs
claim that a button in Facebook's ad tool labeled "Exclude People"
can be used to publish discriminatory ads in violation of the Fair
Housing Act and Title VII of the Civil Rights Act of 1964.

The lawsuit appears to be the first targeting Facebook with
discrimination claims after an Oct. 28 article from public
interest journalism site ProPublica reported that Facebook's
advertising portal includes options to exclude people by racial
affinity.  The suit seeks to certify a class of all Facebook users
who have been screened out of advertising in the past two years
based on race, color, religion, sex, familial status, or national

Steve Satterfield, a privacy and public policy manager at
Facebook, told ProPublica that company policies prohibit
advertisers from using the targeting options for discriminatory

"We take a strong stand against advertisers misusing our platform:
Our policies prohibit using our targeting options to discriminate,
and they require compliance with the law,"
Mr. Satterfield said.  "We take prompt enforcement action when we
determine that ads violate our policies."

A Facebook spokesperson echoed Satterfield's remarks in an emailed
statement on Nov. 4 called the lawsuit "utterly without merit."

"Multicultural marketing is a common practice in the ad industry
and helps brands reach audiences with more relevant advertising,"
the spokesperson said.  "Our policies prohibit using our targeting
options to discriminate, and they require compliance with the

The Nov. 4 complaint, however, points out that two ProPublica
reporters were able to purchase a Facebook ad targeting house
shoppers that excluded anyone with an African-American,
Asian-American or Hispanic affinity and have it approved by
Facebook in 15 minutes.

According to the lawsuit, Facebook builds a profile of users that
include affinity groups to determine, among other things, the ads
users see on the site.  While Facebook claims that its affinity
groups identify people who are "interested in and likely to
respond well" to multicultural content, plaintiffs claim that they
serve as "a proxy for characteristics such as a user's race,
gender, family status and national origin."  Plaintiffs also claim
the platform allows exclusion by familial status ("Divorced,"
"Parents (All)," and "Expectant parents"), by sex ("Moms"), and
based on religion ("Christian," "Muslim," or "Sunni Islam.")

New Orleans solo practitioners William Most and Jason Flanders and
Sarah Hoffman of Aqua Terra Aeris Law Group in Albany, California,
the attorneys who filed the suit, point out that there's "no
option in Facebook's platform to exclude the 'demographic' of
White or Caucasian Americans from the target audience."

Reached by phone on Nov. 4, Mr. Most declined to comment.

FIRSTSOURCE SOLUTIONS: Class Action Over Robocalls Can Proceed
Samantha Joseph, writing for Daily Business Review, reports that
Miami corporate lawyer Patrick Barthet didn't expect a hospital
visit with his mother to turn into a battle with telemarketers.

But the Barthet Firm principal is now the named plaintiff in a
putative class action against a marketing company working for
Mount Sinai Medical Center in Miami Beach.  He filed suit against
FirstSource Solutions USA LLC, doing business as MedAssist,
alleging harassing phone calls in violation of federal law.
Mr. Barthet claims the company did not obtain express written
consent and "abandoned" more than three percent of its calls by
not immediately switching to human operators once consumers
answered the phone.

The suit survived its first obstacle Oct. 24 when U.S. district
Senior Judge James Lawrence King denied MedAssist's motion to

"Now we have an opportunity to proceed with discovery and present
our case to a jury," said Mr. Barthet's attorney, Lance Harke of
Harke Clasby & Bushman in Miami.

Mr. Barthet accompanied his mother to the hospital in 2015 and
signed paperwork that included a dialing and texting disclosure
statement consenting to calls from "any dialing equipment or
artificial voice."

That waiver released the hospital and its business associates and
contractors from liability under the Telephone Consumer Protection
Act, which limits so-called robocalls by automatic dialing systems
with artificial or prerecorded voice messages.
But Mr. Harke said that instead of medical updates, his client
received a series of calls "every seven days, like clockwork" on
his cell phone from an automated system with no opt-out selection.

"He answered every call, and it was a recorded message,"
Mr. Harke said.  "The problem is it was advertisements and
solicitation, which he didn't agree to receive."

MedAssist, which provides health care financial services to
clients like Mount Sinai, countered that the messages were
informational -- not soliciting -- and sent for billing and
benefit eligibility purposes.  It argued Mr. Barthet's suit "fails
as a matter of law" because of his consent to receive calls.  It
also argued he never claimed to receive any abandoned phone calls
-- a move that showed he lacked standing to sue for violation of
the TCPA's call abandonment regulations.

The suit "fails at the threshold because the regulations at issue
pertain only to telemarketing or advertising calls," MedAssist
attorney, Armando Rubio of Fields Howell in Miami, argued in the
motion to dismiss.

Having survived the dismissal, Mr. Harke plans to seek class

FLORIDA: "Wheeler" Class Action Dismissed
In the case, JIMMY LEE WHEELER, Plaintiff, v. JULIE JONES, et al.,
Defendants, Case No. 5:16-cv-00130-MP-GRJ (N.D. Fla.), Senior
District Judge Maurice M. Paul dismissed the Plaintiff's class
complaint, without prejudice, and directed the Clerk to close the

The Court likewise adopted the Magistrate Judge's Report and
Recommendation that a prisoner cannot join with other inmates in a
suit. Moreover, the Court agrees that a pro se prisoner cannot
adequately represent the interests of the class.

The Court also noted that the Plaintiff admits in his complaint
that he has not exhausted his administrative remedies because he
did not allow the Secretary sufficient time to respond to his
emergency grievance before filing suit. Therefore, when plaintiff
has not exhausted his administrative, it warrants dismissal.

A copy of the Court's Order dated November 4, 2016 is available at
https://goo.gl/AqkIUH from Leagle.com.

JIMMY LEE WHEELER, Plaintiff, Pro Se

FORD MOTOR: Judge Granted Bid to Dismiss "Schiesser" Suit
District Judge John W. Darrah of the Northern District of
Illinois, Eastern Division, granted defendant's motion to dismiss,
in the case DAVID SCHIESSER, on behalf of himself and all others
similarly situated, Plaintiff, v. FORD MOTOR COMPANY, Defendant,
Case No. 16-cv-00730 (N.D. Ill.)

David Schiesser, an Illinois resident, purchased a model year 2013
Ford Explorer vehicle manufactured by Ford Motor Company on June
2012. In September 2015, Schiesser began to notice exhaust odor
accumulating in the passenger cabin of his vehicle and, in October
2015, Schiesser brought his vehicle to the dealership where he
purchased it, to service the problem. After being contacted by
Schiesser's dealership, Ford Motor allegedly proposed two repairs
costing between $800 and $900, and neither was guaranteed to fix
the defect.

Schiesser claims that the dealership informed him that Ford Motor
knew of the defect but had no means to fix it. Schiesser alleges
that he did not elect to attempt to repair the defect because
neither repair was guaranteed. As a result, Schiesser claims to
have suffered loss of use and diminished value in his vehicle.

Schiesser acknowledges that the warranty had already expired when
he brought the vehicle into the dealership for service. Schiesser
alleges that the warranty is procedurally and substantively
unconscionable and that at the time he purchased his vehicle, Ford
Motor knew of the defect because Ford's internal testing systems
likely demonstrated the defect since before the first vehicles
were sold in 2010 and Ford has received numerous complaints on the
issue in 2011 and 2012, prior to the time that he purchased the

In his first amended complaint, Schiesser alleges breach of
express warranty, violations of the Magnuson-Moss Warranty Act,
violations of the Illinois Uniform Deceptive Trade Practices Act
(IUDTPA), violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act (ICFA) and common-law fraud.

Ford Motor filed a motion to dismiss the first amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim for which relief can be granted.

As to the allegation of breach of express warranty, Judge Darrah
held that plaintiff has not alleged enough to substantiate
allegations that the Warranty is procedurally or substantively
unconscionable. On count II plaintiff has not met the threshold
requirements under the Magnuson-Moss Act to bring a suit for
damages and other legal equitable relief in a federal district

In count III, the court held that while plaintiff asserts that
Ford should stop its continued representations, the first amended
complaint does not specify the type of injunctive relief he is
actually seeking. With count IV, the court held that plaintiff
does not allege that he was deceived by a statement, advertisement
or any communication in the first amended complaint. His
allegations alone without additional detail, do not meet the Rule
9(b) specificity standard.  Lastly with count V, the held that
plaintiff has not alleged the specifics of Ford's alleged
misrepresentations, actions or omissions. Plaintiff has not
pointed to a specific communication or advertisement that he
relied upon when he purchased his Vehicle. The fires amended
complaint does not contain additional detail to meet the Rule 9(b)
specificity standard.

Judge Darrah granted defendant's motion to dismiss and within 30
days, plaintiff may file an amended complaint, if he can do so in
compliance with Rule 11.

A copy of Judge Darrah's memorandum opinion and order dated
October 28, 2016, is available at https://goo.gl/YVVQx6 from

David Schiesser, Plaintiff, represented by Adam Michael Prom --
ap@wexlerwallace.com -- Amy Elisabeth Keller --
aek@wexlerwallace.com -- Edward A. Wallace --
eaw@wexlerwallace.com -- at Wexler Wallace LLP; Steven Richard
Weinmann -- sweinmann@audetlaw.com -- William M. Audet --
waudet@audetlaw.com -- at Audet & Partners, LLP

Ford Motor Company, Defendant, represented by Eric Michael Roberts
-- eric.roberts@dlapiper.com -- Jeffrey Yeatman --
jeffrey.yeatman@dlapiper.com -- Joel A. Dewey --
joel.dewey@dlapiper.com -- at DLA Piper LLP

FREDDIE MAC: Ohio Public Employees Retirement Sys. Action Ongoing
Federal Home Loan Mortgage Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 1, 2016, for the quarterly period ended September 30,
2016, that the Company continues to defend the case Ohio Public
Employees Retirement System vs. Freddie Mac, Syron, et al.

This putative securities class action lawsuit was filed against
Freddie Mac and certain former officers on January 18, 2008 in the
U.S. District Court for the Northern District of Ohio purportedly
on behalf of a class of purchasers of Freddie Mac stock from
August 1, 2006 through November 20, 2007.  The Federal Housing
Finance Agency later intervened as Conservator, and the plaintiff
amended its complaint on several occasions. The plaintiff alleged,
among other things, that the defendants violated federal
securities laws by making false and misleading statements
concerning our business, risk management, and the procedures we
put into place to protect the company from problems in the
mortgage industry. The plaintiff seeks unspecified damages and
interest, and reasonable costs and expenses, including attorney
and expert fees.

In October 2013, defendants filed motions to dismiss the
complaint. In October 2014, the District Court granted defendants'
motions and dismissed the case in its entirety against all
defendants, with prejudice. In November 2014, plaintiff filed a
notice of appeal in the U.S. Court of Appeals for the Sixth

On July 20, 2016, the Court of Appeals reversed the District
Court's dismissal and remanded the case to the District Court for
further proceedings.

The Company said, "At present, it is not possible for us to
predict the probable outcome of this lawsuit or any potential
effect on our business, financial condition, liquidity, or results
of operations. In addition, we are unable to reasonably estimate
the possible loss or range of possible loss in the event of an
adverse judgment in the foregoing matter due to the following
factors, among others: the inherent uncertainty of pre-trial
litigation and the fact that the District Court has not yet ruled
upon motions for class certification or summary judgment. In
particular, absent the certification of a class, the
identification of a class period, and the identification of the
alleged statement or statements that survive dispositive motions,
we cannot reasonably estimate any possible loss or range of
possible loss."

FRESH & EASY: Class Action Waiver Violates NRLA, Court Rules
Jana P. Grimm, Esq., of Steptoe & Johnson PLLC, in an article for
The National Law Review, reports that recently, in a case of first
impression in the Third Circuit, a Delaware bankruptcy judge
presiding over an adversary action in the Chapter 11 bankruptcy of
Fresh & Easy LLC ruled that a class action waiver in an employment
arbitration agreement violates the National Labor Relations Act

In this action, the employee, Diana Chan, had signed an agreement
that mandated her to resolve all employer-related disputes through
arbitration and only permitted her to bring claims against the
company in her individual capacity and not as part of a class.
This agreement contained an opt-out provision of 30 days which the
employee failed to exercise.  Contrary to the agreement, the
employee filed a class action lawsuit pursuant to the Worker
Adjustment and Retraining Notification Act (WARN) alleging that
the company did not give the required 60 days notice for layoffs
when the grocery chain ceased doing business. Fresh & Easy took
the position that the Federal Arbitration Act required that the
employee's WARN claims be heard in arbitration per her signed

Ms. Chan successfully argued that the provisions of the agreement
barring her right to file a class action lawsuit violated the NLRA
as it restricted her ability to engage in collective bargaining
activities.  The court ruled that the right to file a class action
is not a procedural tool that can be changed by the agreement, but
is a substantive right protected by Section 7 of the NLRA.
Section 7 of the NLRA states in relevant part that "Employees
shall have the right . . . to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protections . . ."

The court then took the reasoning one step further and found that
not only did the class action waiver fail as a matter of law as it
"interferes and burdens the exercise of Section 7 rights," but
that the agreement in its entirety failed because the class action
waiver clause was a critical tenet of the agreement.  The court
refused to sever the issues because the waiver clause was central
to the parties' agreement.  Despite language in the agreement that
should have saved the remainder of the agreement if any provision
was held to be unenforceable, the court exercised its discretion
to find the entire agreement illegal.

Interestingly, prior to this decision, the same judge in another
adversary action involving the same employer under very similar
facts held that he had no authority to prevent the employer from
enforcing its agreement.  It remains to be seen how the court will
ultimately resolve its newly created conflict of reasoning.

GEO GROUP: Prisoner Can Amend Portion of Complaint
District Judge Larry J. McKinney of the Southern District of
Indiana, Indianapolis Division, granted in part and denied in part
plaintiff's motions, in the case JASON A. REED, Plaintiff, v. P.
No. 1:15-cv-00165-LJM-DML (S.D. Ind.)

In his original complaint, Jason A. Reed, proceeding pro se, Reed
complains that he has been denied constitutionally adequate
conditions of confinement in violation of the Eighth Amendment and
state law. He seeks compensatory and punitive damages and
declaratory relief.

The Southern District of Indiana, Indianapolis Division, screened
the original complaint and found that two plausible claims were
alleged. The first claim is that the defendants violated the
plaintiff's Eighth Amendment rights by denying him
constitutionally adequate conditions of confinement. The second
claim is a state law negligence claim based on the theory that the
defendants had a duty to provide Reed a safe living environment,
specially a bottom bunk, and that such duty was breached which
proximately caused Reed's injuries.

On March 28, 2016, counsel was recruited by the court to represent
Reed. Reed seeks to amend his complaint to include new plaintiffs,
defendants and claims. The new plaintiffs are a class of similarly
situated persons. The new defendants are The GEO Group, Inc., the
Commissioner of the Indiana Department of Correction (IDOC), and
the IDOC. Finally, new claims are asserted pursuant to the
Americans with Disabilities Act, Section 504 of the Rehabilitation
Act, the Fourteenth Amendment and a state law breach of contract
claim. The amended complaint appears to abandon any state law
negligence claim.

Judge McKinney granted in part and denied in part the motion to
amend and granted in part and denied in part the motion to join
new parties. The only amendment which shall be permitted is a new
claim against GEO, based on the theory that GEO had a policy or
practice or lack thereof which resulted in the plaintiff's
improper placement on a top bunk in violation of the Eighth
Amendment. All other proposed amendments are denied. The IDOC and
Commissioner did not receive notice of the action and they would
be prejudiced in defending on the merits. The motion to join new
defendants to include claims against the IDOC and Commissioner is

A copy of Judge McKinney's entry dated October 28, 2016, is
available at https://goo.gl/YahhVD from Leagle.com.

JASON A. REED, Plaintiff, represented by:

Kent Hull, Esq.
401 E Colfax Ave, Ste 116
South Bend, IN 46617

represented by Adam Garth Forrest -- aforrest@bbkcc.com -- at

THE GEO GROUP, INC., Defendant, Pro Se

GLOBAL FITNESS: Brief Questions Fairness of Settlement
Dee Thompson, writing for Legal Newsline, reports that a friend-
of-the court brief recently filed with the U.S. Supreme Court in
the case of Joshua Blackman v. Amber Gascho asks if it is fair for
attorneys in class action settlements to receive more in fees than
the class members receive in settlement.

Plaintiff Joshua Blackman is represented by Adam E. Schulman of
the Center for Class Action Fairness and Theodore J. Froncek.  In
May, the U.S. Court of Appeals for the Sixth Circuit approved a
settlement involving Global Fitness Holdings, LLC.

Global was sued by Amber Gascho and others who alleged the gym's
membership fees charged between 2006 and 2012 were unreasonable.
The gym memberships sold by the company allegedly included
excessive fees for facility maintenance, cancellation and personal
training contracts.

In 2013, after more than two years of litigation, the case was
settled for $8.5 million.  Yet the plaintiffs in the class only
received $1.6 million.

In order to be eligible for funds under the "claims-made"
settlement, class members had to correctly file a claim.  Out of a
total of more than 606,246 potential class members, only 49,808
gym members actually received any funds after two years of
litigation.  Each member of the class who correctly filed a claim
got between $5 and $75 in the settlement.

In such cases, the attorneys fees are based on the funds made
available -- the $8.5 million -- instead of the amount actually
paid out to class members, the $1.6 million.

The Sixth Circuit found that the settlement amount was fair and
that the claims process for class members was not onerous.

An amicus brief filed by the Cato Institute -- a public policy
research organization -- says the Global Fitness settlement is a
violation of Fifth Amendment rights, or the rights of due process.
The brief states that "The Fifth Amendment's Due Process Clause
protects class members rights both to adequate representation and
to pursue their legal claims against the Defendant."

Jeremy Kidd, associate professor of law at Mercer University and
one of the authors of the brief, said he is not optimistic about
the U.S. Supreme Court hearing arguments on this case.

"On a couple of other cases, they gave the indication they were
going to start policing bad acts by class action attorneys and
defendants, but I've written four amicus briefs now because there
have been four good cases where it's fairly obvious that there is
collusion between defendants and counsel, and the Supreme Court
never bothers to hear them," he told Legal Newsline.

"The Supreme Court refuses to police the kind of bad behavior that
we see."

Treatment of class members varies by jurisdiction, he says -- "If
you live in a jurisdiction that protects class members' rights,
good for you, if not, so sorry for you."

Mr. Kidd said he thinks the two lower courts ruled against
Mr. Blackman because it's easier to uphold the status quo than to
really investigate the behavior of the attorneys.

"Trial courts love when things settle because they don't have to
deal with it," he said.

"It's far easier for the courts to accept the settlement as
presented to them.  It would take some effort to actually look at
the settlements, make sure there's no collusion, there's no self-
dealing, and make sure that the absent class members' rights are

Mr. Kidd said he feels that "class counsel and defendants want to
eliminate as many claims as they can while actually paying as few
[claims] as they can."

GOULD & GOODRICH: Jury Issues $2.6MM Verdict in Holster Case
Max Mitchell, writing for Law.com, reports that a Philadelphia
jury has hit a firearms accessories manufacturer with a $2.6
million verdict for an allegedly defective holster that caused a
state trooper's gun to fire into his leg while he was exiting his

The jury awarded Pennsylvania State Police Officer Jesse Oleksza
the money on Oct. 18 after finding that a holster designed and
manufactured by Gould & Goodrich Inc. was defective.  Philadelphia
Court of Common Pleas Judge Daniel J. Anders oversaw the case.

The case was not only a decisive win for the plaintiff, but it is
also one of the first wave of products liability cases to hit
trial after the state Supreme Court's seminal decision in Tincher
v. Omega Flex, said Sacchetta and Baldino attorney Gerald B.
Baldino, who represented Mr. Oleksza.

"Post-Tincher, at this point, it's the Wild, Wild West,"
Mr. Baldino said. He added that, although there were numerous
summary judgment motions and motions in limine regarding uncharted
products liability issues, Anders was very "thorough" and open to
arguments from all sides to ensure he made the right legal

Mr. Baldino said the number of witnesses who testified for
Mr. Oleksza, including about ten state troopers, and the factual
evidence that was considered was effective in front of the jury.

"In almost all cases, it's either putting the gun in the holster,
or pulling it out of the holster, where the trigger is pulled, but
in this case, all the evidence indicated it was in the holster,"
he said, adding that gunshot residue and scuffmarks on the holster
also provided key factual evidence indicating the gun was in the
holster when it fired.

Mr. Baldino said the jury was also shown other holsters that
provided for more trigger protection,

The jury was asked to decide whether the defect was a cause of
harm under the consumer expectations test and the risk utility
test, both of which are tests that Tincher recommended be
incorporated into products liability cases.

Due to the dispute over whether the holster allowed a foreign
object to get into the trigger area, the jury questionnaire also
included a set of questions asking whether the gun holster simply
malfunctioned.  Finding that there was a defect in the holster,
the jury did not reach those questions.

According to Mr. Oleksza's pretrial memo, he was returning his
police vehicle to the station and was attempting to retrieve his
gym bag when the gun, a Glock 37 semiautomatic pistol, went off.
The gun had been holstered in a Gould & Goodrich double retention
holster on his right hip.

At first Mr. Oleksza thought the shotgun in his vehicle, which his
gym bag had been attached to, had fired, the memo said. However,
according to the memo, a foreign object, likely a key, had lodged
itself in the holster and caused the gun to fire.  The memo said
Mr. Oleksza had been holding a set of keys when he tried to
retrieve his gym bag, and added that there was also a set of keys
attached to his duty bag and another set attached to his duty

The memo said an internal affairs investigation cleared
Mr. Oleksza of any wrongdoing, and an analysis from the
Pennsylvania State Police Bureau of Forensic Services also
confirmed that the gun could be discharged by inserting a key into
the holster and then applying pressure, the memo said.

In the lawsuit, Mr. Oleksza contended that the holster was
defective for failing to properly protect the trigger.  He sought
recovery on negligence, strict liability and breach of implied
warranty claims.

The bullet, according to Mr. Oleksza's memo, hit his thigh and
lodged in his ankle after it transected the peroneal nerve in his
knee.  He contended that the injuries led to permanent scarring
and numbness in his leg, and also led to hip problems.

Gould & Goodrich, in its pretrial memo, contended that the
warnings on the holster included making sure foreign objects
stayed out of the holster while the gun was holstered, and, as
part of his training, Mr. Oleksza had been aware of the need to
keep objects out of the holster.  The memo also said a state
police investigation found no holster defect.

Gould & Goodrich also contended that it was not possible to design
a holster that prevents all objects from getting inside, and
argued that it was more likely that Mr. Oleksza had accidentally
pulled the trigger while he was distracted.

Defendant Markl, which had supplied the holster to the state
police, contended that it played no role in selection or designing
the holster.  Markl noted in its pretrial memo that it had a cross
claim against Gould & Goodrich for common-law indemnity.

Attorney Mark Merlini -- mmerlini@moodklaw.com -- of Marks,
O'Neill, O'Brien, Doherty & Kelly, which represented Gould &
Goodrich, and Todd B. Narvol of Thomas, Thomas & Hafer declined to

HEALTH CARE SERVICE: Prime Therapeutics Dropped from Lawsuit
District Judge Harry D. Leinenweber of the Northern District of
Illinois, Eastern Division, granted defendant's motion to dismiss,
in the case MARK A. SHANK, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, v. HEALTH CARE SERVICE
THERAPEUTICS LLC, Defendants, Case No. 16 C 3993 (N.D. Ill.)

Mark A. Shank was party to a contract for health insurance
coverage with Health Care Service Corporation (HCSC). Prime
Therapeutics LLC is a pharmacy benefit management company that
acts as a third-party administrator of prescription drug benefits
for various health insurance plans.

Shank filed a putative class action lawsuit, alleging that the
defendants HCSC, BlueCross BlueShield of Illinois (a division of
HCSC), and Prime, unlawfully refused to provide insurance coverage
for the drug Harvoni, a treatment for Hepatitis C.

Count 1 of his complaint is a breach of contract claim against the
defendants. Prime has moved to dismiss Shank's complaint against
it for breach of contract, arguing that it was never a party to
the health insurance policy Shank had with HCSC.

Judge Leinenweber granted defendant's motion to dismiss. Judge
Leinenweber observes that Shank has failed to make a coherent case
for why Prime should be named as a defendant. As a pharmacy
benefit manager, Prime appears to be an intermediary between
patients like Shank and health insurers. It would be strange to
assume that Prime had any authority to deny Shank or any other
HCSC beneficiary coverage for Harvoni under an insurance policy to
which it is not a party.

A copy of Judge Leinenweber's order dated November 3, 2016, is
available at https://goo.gl/XjxlVv from Leagle.com.

Mark Shank, Plaintiff, represented by:

Edward W. Ciolko, Esq.
Zachary P. Arbitman, Esq.
Natalie Lesser, Esq.
Kessler Topaz Meltzer & Check LLP
280 King of Prussia Rd
Radnor, PA 19087
Telephone: 610-667-7706

     - and -

David Henry Thompson, Esq.
Peter A. Patterson, Esq.
William C. Marra, Esq.
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Telephone: 202-220-9600
Facsimile: 202-220-9601

     - and -

Norman Rifkind, Esq.
Law Office of Norman Rifkind
100 E Huron Street, Suite 1306
Chicago, IL 60611

Health Care Service Corporation, Defendant, represented by Brian
Patrick Kavanaugh -- brian.kavanaugh@kirkland.com -- Martin R.
Martos, II -- martin.martos@kirkland.com -- at Kirkland & Ellis

Prime Theraputics LLC, Defendant, represented by Kevin Dale
Tessier -- ktessier@reedsmith.com -- Martin J. Bishop --
mbishop@reedsmith.com -- at Reed Smith LLP

HERSHEY CO: Faces False Advertising Class Action in New York
Louie Torres, writing for Legal Newsline, reports that a consumer
has filed a class action lawsuit against a candy company alleging
that it falsely advertises the total content of a certain brand of
its chocolates.

Christopher Huppert filed a complaint on behalf of all others
similarly situated in the U.S. District Court for the Southern
District of New York against The Hershey Co. alleging violation of
New York general business laws.

According to the complaint, the plaintiff alleges that the
defendant falsely advertises the amount of candy in its Classic
Bag of Hershey's Kisses.  He alleges that although the bags appear
to be of a similar size, some flavors only contain 11 ounces or
less but are sold at the same price as a 12 ounce Classic Bag of
Milk Chocolate Kisses.

The plaintiff requests a trial by jury and seeks award damages to
plaintiff, enjoin the defendant, treble damages, court costs and
any further relief the court grants.  He is represented by Jeffrey
I. Carton -- jcarton@denleacarton.com  -- and Robert J. Berg --
rberg@denleacarton.com -- of Denlea & Carton LLP in White Plains,
New York.

U.S. District Court for the Southern District of New York Case
number 7:16-cv-07338-CS

HERTZ CORP: Faces Class Action in Calif. Over Unpaid Toll Fee
Wadi Reformado, writing for Legal Newsline, reports that an Ohio
consumer and business are suing Hertz, alleging breach of contract
and fraud.

Edward Schwartz, Org Holdings and Org Portfolio Management LLC
filed a class action complaint, individually and on behalf of all
others similarly situated Oct. 17 in U.S. District Court for the
Central District of California against The Hertz Corporation,
alleging the defendant charged excess administrative fees to its

According to the complaint, the plaintiffs suffered monetary
damages from being overcharged.  The plaintiffs allege Hertz
charges its gold members a $30 fee despite only being charged
pennies per transaction fee for an unpaid Southern California
highway toll.

The plaintiffs seek trial by jury, damages, compensatory damages,
all legal fees and interest, plus any relief the court deems just.
They are represented by attorneys Mike Arias --
mike@asstlawyers.com -- and Alfredo Torrijos --
alfredo@asstlawyers.com -- of Arias Sanguinett Stahle & Torrijos
LLP in Los Angeles, Jason S. Hartley -- hartley@stuevesiegel.com -
- of Stueve Siegel Hanson LLP in San Diego and by Daniel R. Karon
-- dkaron@karonllc.com -- and Beau D. Hollowell --
bhollowell@karonllc.com -- of Karon LLC in Cleveland.

U.S. District Court for the Central District of California Case
number 2:16-cv-07713-PA-SS

HP INC: Faces Class Action in Alabama Over Firmware Update
Louie Torres, writing for Legal Newsline, reports that a Jefferson
County, Alabama, consumer has filed a class action lawsuit against
a printer manufacturer over a firmware update.

Dan Bayse filed a complaint on behalf of all others similarly
situated in the U.S. District Court for the Northern District of
Alabama against HP Inc. alleging negligence and other counts and
seeking injunctive relief.

According to the complaint, the plaintiff owns a HP OfficeJet Pro
8600 printer that he purchased in 2014.  The suit states that he
is a heavy user of the printer and frequently buys cartridges.  He
alleges that he is concerned the defendant will raise the price of
its ink cartridges after the firmware update and that the firmware
will not allow him to use third-party cartridges.

The plaintiff holds HP Inc. responsible because the defendant
allegedly forced updated its OfficeJet printers to makes them
unable to accept refilled or any third-party ink cartridges.

The plaintiff requests a trial by jury and seeks enjoin the
defendant, award all damages to plaintiff, statutory damages and
interest, injunctive and/or declaratory relief, court costs and
any further relief the court grants.  He is represented by W.
Lewis Garrison Jr. -- wlgarrison@hgdlawfirm.com -- Taylor Bartlett
-- taylor@hgdlawfirm.com -- Mark Ekonen, and Christopher Hood --
chood@hgdlawfirm.com -- of Heninger Garrison Davis LLC in
Birmingham, Alabama.

U.S. District Court for the Northern District of Alabama Case
number 2:16-cv-01583-JEO

HUNTINGTON BANCSHARES: Wins Dismissal of Majestic Building's Suit
District Judge James L. Graham of the Southern District of Ohio,
Eastern Division, granted defendant's motion to dismiss, in the
case Majestic Building Maintenance, Inc., Plaintiff, v. Huntington
Bancshares Inc. dba The Huntington National Bank, Defendant, Case
No. 2:15-cv-3023 (S.D. Ohio)

Majestic Building Maintenance, Inc. is an Ohio corporation which
specializes in commercial cleaning services, while Huntington
National Bank has its principal place of business in Columbus,

In November 2010, Majestic opened a business checking account with
Huntington with Luther McNeil, Majestic's president as the only
authorized signatory on the account.

On November 24, 2014, McNeil was reviewing the account online and
noticed that unauthorized checks had been cleared from the account
on that same day. Upon examination, McNeil found that four checks
totaling $3,973.96 had been debited from the account. Each check
contained a forgery of his signature and each one was made payable
to an individual who was unknown to McNeil or Majestic. McNeil
immediately contacted Huntington about the forged checks and
filled out paperwork for a fraud complaint and a request for

Huntington denied his request for reimbursement on the grounds
that he had not enrolled in Huntington's Check Positive
Pay/Reverse Positive Pay service.

Following Huntington's denial of the request for reimbursement,
Majestic filed an action and alleges that Huntington violated
Section 4-401 of the Uniform Commercial Code (U.C.C.), which
provides for the default rule that a customer is not liable for a
check which is not properly payable. Majestic further alleges that
Huntington violated Section 4-103(a) of the U.C.C. because it
breached its duty of good faith and ordinary care by attempting to
contractually shift liability for forged checks to a customer.
Majestic seeks to represent a six-state class of Huntington
business accounts holders who suffered a financial loss from
Huntington making payments out of their accounts for items which
were not properly payable. The complaint alleges that Huntington
has violated the U.C.C. by attempting to shift liability for
unauthorized checks upon business account customers unless they
enroll in Check Positive Pay, Reverse Positive Pay or a similar
fraud detection service.

Huntington filed a motion to dismiss the complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure, arguing that
under the terms of the Master Services Agreement governing
Majestic's business account, the risk of loss for unauthorized
checks was placed on Majestic.

Judge Graham granted defendant's motion to dismiss, taking into
account that Majestic's interpretation of the agreement is not a
natural or reasonable one. The agreement does not limit the shift
in liability to only those instances in which an enumerated
product would have prevented the fraud. Instead, the agreement
broadly frames the shift in liability in terms of those products
that were designed to discover or prevent the type of loss
suffered by the customer. It is undisputed that Check Positive Pay
was designed to discover or prevent the type of loss suffered by
Majestic. Under the agreement, Huntington is not liable for the

A copy of Judge Graham's opinion and order dated November 3, 2016,
is available at https://goo.gl/Qh9s4f from Leagle.com.

Majestic Building Maintenance, Inc., Plaintiff, represented by
Troy John Doucet

Huntington Bancshares Incorporated, Defendant, represented by
Brett A. Wall -- bwall@bakerlaw.com -- at Baker & Hostetler

INDYMAC: Ex-Judges Call for SCOTUS to Address Opt-Out Issue
Alison Frankel, writing for Reuters, reports that the primary
question posed in the California Public Employees' Retirement
System's recent petition for U.S. Supreme Court review is almost
as arcane as an elven rune: Does the filing of a class action toll
the statute of repose -- as opposed to the statute of limitations
-- for class members in securities fraud litigation brought the
Securities Act? But as six retired federal judges argued in an
amicus brief urging the Supreme Court to take the case, the answer
to that question has real consequences for trial courts overseeing
securities class actions, potentially undermining some of the
reforms Congress passed more than 20 years ago.

If this statute of repose issue sounds vaguely familiar, that's
because the Supreme Court was poised in 2014 to resolve a split
between the 2nd and 10th U.S. Circuit Courts of Appeal on whether
the 1973 American Pipe rule -- which holds that the filing of a
class action tolls the statute of limitations for class members
--- also applies to the statute of repose.  The justices had
granted certiorari to review the 2nd Circuit's conclusion in In re
IndyMac that individual Securities Act plaintiffs must sue within
the statute's three-year statute of repose, even if a class action
raising the same allegations is already under way. (The appellate
court's reasoning was very subtle but basically, the judges
concluded that regardless of whether American Pipe is an equitable
or legal rule, it doesn't cover defendants' substantive right to
be free of new claims after the statute of repose has run.)

Just weeks before IndyMac was to have been argued, the Supreme
Court dismissed the case as improvidently granted after a
settlement in the underlying securities class action.  Since then,
as Reuters' Frankel reported last year and the Calpers' petition
elucidates, courts have only become more confused about whether
the filing of a class action tolls the statute of repose in
securities litigation.  Just within the last year, the 6th and
11th Circuits sided with the 2nd Circuit to hold that American
Pipe does not toll the statute of repose.  Trial judges in the
3rd, 5th and 9th Circuits, however, have reached contrary
conclusions in 2015 and 2016. (Calpers' Supreme Court petition
also asks the court to decide a related question, not before the
justices in IndyMac, that has split the circuits: May a putative
class member file an individual suit on the same causes of action
before class certification is decided, notwithstanding the
expiration of relevant time limitations?)

Calpers' Supreme Court lawyers at Goldstein & Russell argued in
the fund's cert petition that even the 2nd Circuit panel that
decided its case -- affirming the dismissal on timeliness grounds
of the fund's securities suit against underwriters of Lehman
Brothers debt offerings -- said the class action tolling issue was
ripe for Supreme Court review.  Several other states that oversee
big pension funds for state employees agreed in an amicus brief
that the Supreme Court should take the case because, by their
account, the 2nd Circuit's IndyMac and Calpers decisions have
effectively imposed new burdens on state pension funds to monitor
securities claims.

The retired judges' brief, filed by Zuckerman Spaeder, does a
great job of explaining the practical implications of the 2nd
Circuit's position.  The statute of repose in the Securities Act
is three years.  Securities class actions generally take more than
three years to reach a resolution.  So if investors want to
preserve their right eventually to part ways with the class and
bring their own suit, they must either file placeholder complaints
or move to intervene in the class action.

"These filings will complicate the already difficult process of
choosing a lead plaintiff in a securities class action," the
judges' brief said.  "They may also create competing factions of
plaintiffs who may burden federal courts with duplicative filings
and intra-party disputes."

The whole point of class actions, the retired judges said, is to
enhance the efficiency of litigation by grouping together
plaintiffs with the same claim.  That purpose will be defeated if
investors must file intervention motions to preserve their right
to bring a future opt-out suit or to bring their own case if the
investor class is not certified.  And intervention motions, the
brief said, must be decided individually, eating up court time.

Plaintiffs' lawyers who represent institutional investors will
have to advise funds that they cannot assume someone else's class
action preserves their right to sue in the future, the ex-judges
pointed out.  Lead plaintiffs' lawyers may even have a fiduciary
duty to inform potential class members when the statute of repose
is running out -- adding a notice requirement, the brief said, to
those enumerated in the federal rules for class actions and 1995
legislation governing private securities litigation.

It will be harder for judges to pick lead plaintiffs and lead
counsel in accord with the 1995 law if a plethora of institutional
investors pile into cases, according to the
ex-judges.  It will also be harder for judges to manage cases when
investors are speaking with a multitude of voices.

Securities class actions are already among the most complex cases
on the dockets of federal judges, the brief said.  Upholding the
2nd Circuit's ruling on the statute of repose "would exacerbate
district courts' administrative and judicial difficulties in
managing" them.

The ex-judges who signed the brief are Frank Damrell, William
Furgeson, Nancy Gertner, Patrick Murphy, John Ward and Alexander
Williams. (All six previously filed an amicus brief in IndyMac
raising similar arguments.)

The defendants' counsel of record in the Calpers case is Victor
Hou -- vhou@cgsh.com -- of Cleary Gottlieb Steen & Hamilton.  The
defendants' brief opposing certiorari is due on Nov. 23.

JOHNS HOPKINS: Faces Class Action Over Alleged Fraud
Chris Hamby, writing for Center for Public Integrity, reports that
one of America's most renowned medical centers -- The Johns
Hopkins Hospital -- intentionally defrauded hundreds of sick coal
miners out of compensation and health benefits while pocketing
large sums from coal companies, according to a class action
lawsuit filed by the families of two coal miners who died of black
lung disease.

The lawsuit, which also targets a longtime Hopkins doctor, draws
heavily from revelations in an investigative report by the Center
for Public Integrity, in partnership with ABC News, about a unit
of radiologists who for decades provided coal companies X-ray
readings that almost always said the miner didn't have black lung,
helping the companies avoid paying benefits under a program
administered by the federal government.

In response to a request for comment, a Johns Hopkins spokesperson
said, "We are reviewing the complaint."

The Center investigation found that the longtime leader of the
unit, Dr. Paul Wheeler, had read X-rays in more than 1,500 cases
just since 2000 but never once found a case of severe black lung,
despite the fact that other doctors looking at the same films
found evidence of the disease hundreds of times.  Dr. Wheeler's
credentials and longtime affiliation with Johns Hopkins often
trumped those of all other doctors involved, and administrative
judges credited his reports over those of other doctors and denied
more than 800 claims.

Yet the Center found that in more than 100 cases, biopsies or
autopsies proved Wheeler wrong.

That is what happened in the case of longtime miner Steve Day,
whose family members are lead plaintiffs in the new lawsuit, filed
in the Circuit Court for Baltimore City.  After more than 30 years
working in the mines, Mr. Day applied in 2005 for benefits through
a program administered by the federal government.  A half-dozen
doctors saw advanced black lung on his X-rays and CT scans.  But
the judge deferred to the credentials of Wheeler and two
colleagues at Johns Hopkins who said they saw no evidence of the
disease, denying Mr. Day's claim.  After the Center featured Mr.
Day's story, he reapplied for benefits but died while the case was
ongoing.  An autopsy revealed a severe case of black lung, and his
surviving family members continued and won the benefits claim.

A similar story played out in the claim of Junior Barr, whose
family members are the other lead plaintiffs in the suit.  The Day
and Barr families, represented by lawyers Jonathan Nace and Chris
Nidel, say in the complaint that their cases are representative of
perhaps hundreds of others and ask a Baltimore City judge to allow
the case to proceed as a class action.

This story is part of Breathless and Burdened. Dying from black
lung, buried by law and medicine.

The allegations against Johns Hopkins and Dr. Wheeler in the
complaint include fraud, unjust enrichment, and violation of the
Racketeer Influenced and Corrupt Organizations Act, the federal
law best known as a tool used against organized crime.  Johns
Hopkins and Dr. Wheeler "have engaged in a pattern and practice
with the intent to defraud at least hundreds of toxically injured
coal miners of federally earned benefits," the lawsuit alleges.

The focus of the suit is the method Dr. Wheeler used to interpret
X-rays.  Doctors who want to read X-rays as part of the benefits
program overseen by the Labor Department have to follow standards
established by the International Labour Organization.  But records
reviewed by the Center in its investigation showed that he didn't
follow these rules, and Dr. Wheeler himself confirmed this in an

He said he has his own criteria for what black lung looks like on
an X-ray, leading him to mark some films as negative for disease
even though federal rules say he should have marked them positive.

The lawsuit claims that this "willful refusal to interpret chest
X-rays in compliance with the ILO classification system" has led
to the wrongful denials of hundreds of miners' claims.

After the Center investigation, released in 2013, Johns Hopkins
suspended the work of Dr. Wheeler's unit and began an internal
review.  Two years later, after concluding the review, the
hospital said that it had permanently ended the unit's work and
that Dr. Wheeler had retired.

JOHNSON & JOHNSON: Vows to Appeal $70MM Talc Case Verdict
Amanda Bronstad, writing for Law.com, reports that hit with a
third large verdict in a case alleging its baby powder caused a
woman's ovarian cancer, Johnson & Johnson plans to argue on appeal
that the problem isn't its product -- it's a Missouri courtroom
and the science behind the lawsuits.

A jury returned the $70 million verdict on Oct. 27 in the 22nd
Circuit Court in the city of St. Louis, where two other awards of
$72 million and $55 million came out earlier this year.  The
stinging awards don't bode well for Johnson & Johnson, which faces
lawsuits by more than 1,700 women claiming they got ovarian cancer
from prolonged use of its talcum powder products.

But Johnson & Johnson is hardly backing down. In fact, in vowing
to appeal the Oct. 27 verdict, Johnson & Johnson and another
defendant, Imerys Talc America Inc., which supplies the talcum
powder, continued to attack the science that plaintiffs' lawyers
introduced at trial.

And this time, both companies have a new weapon that could
strengthen their case on appeal.

On Sept. 2, Atlantic County Superior Court Judge Nelson Johnson
tossed out two upcoming trials on summary judgment after finding
that the plaintiffs' experts -- the same who testified in the all
three Missouri trials -- had gaps in their "made-for-litigation"
scientific methods and failed to explain how talcum powder
specifically caused ovarian cancer.

In statements following the Oct. 27 verdict, both companies
quickly contrasted the Missouri trial with the New Jersey ruling.
They also cited significant lawyer advertising seen in St. Louis.
The ad campaign prompted Johnson & Johnson to seek another venue
earlier in October on the ground that the juries there would be
biased by them.

"The verdicts this year all came in a jurisdiction where plaintiff
lawyers have subjected the jury pool to a high volume of
misleading advertising against the product and where scientific
evidence standards are not as stringent as other jurisdictions,"
said Johnson & Johnson attorney John Beisner --
john.beisner@skadden.com -- leader of the mass torts, insurance
and consumer litigation group at Skadden, Arps, Slate, Meagher &
Flom.  "Contrast these proceedings with what happened in New
Jersey, where a judge dismissed two cases, concluding that
plaintiffs' proposed evidence that talc causes ovarian cancer was
so speculative that it could not be presented to a jury."

Plaintiffs lawyers have appealed the ruling in New Jersey and
insist they will prevail in the Missouri appeals.  And although
the scientific evidence was much the same this time around, they
were quick to point out a big difference in the October trial:
Plaintiffs lawyers called a witness at a call center who testified
that she was told to alter reports of consumer complaints about
Johnson & Johnson's products.

With that new evidence, plaintiffs attorney Ted Meadows said his
team felt confident about asking for $285 million.

"We thought that would support a larger punitive award," said
Mr. Meadows, a principal at Beasley, Allen, Crow, Methvin, Portis
& Miles in Montgomery, Alabama.

But in the end, the jury awarded $65 million in punitive damages -
- slightly more than that in prior trials.

L'OREAL: Faces $5MM Class Action Over Hair Straightening Product
NewsOne reports that a woman, who claims she went bald after using
a L'Oreal hair straightening product, has filed a $5 million
class-action lawsuit against the beauty company, according to TMZ.

Delicia Taylor, whose city of residence was not disclosed by the
news outlet, alleges in the suit that she was left bald after
using L'Oreal's SoftSheen-Carson Optimum Alma Legend No-Mix,
No-Lye Relaxer, the report says.

In legal papers obtained by TMZ, Ms. Taylor says the product left
her with "bald spots, burns and blistering scabs on her scalp."

It is the latest lawsuit filed against the company.  In September,
prominent lawyer Mark Garagos filed a class-action suit against
the company on behalf of women who lost hair after using the same
product, writes TMZ:

According to the class action lawsuit, filed by famed attorney
Mark Geragos, the product is short on oil and long on danger,
causing hair loss, breakage, scalp irritation, blisters and burns.

The suit claims L'Oreal lured unsuspecting women into buying its
product by getting celebs like 'RHOA' star Cynthia Bailey, Tracee
Ellis Ross and even Michelle Obama's hairstylist to tout it.

The suit includes a list of consumer complaints on Amazon,
including, "I am completely bald on the front portion of my head,"
and, "My 26 year old daughter is upstairs crying her eyes out
because her hair is gone."

L'Oreal did not respond to phone calls from TMZ about the suit
filed by Mr. Geragos.  TMZ's latest story does not make clear if
Ms. Taylor is part of the class-action suit filed by Mr. Geragos.

LENDINGCLUB CORP: Administrative Motion in "Evellard" Classified
In the case, STEEVE EVELLARD, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, v. LENDINGCLUB CORPORATION,
et al., Defendants, Case No. 3:16-cv-02627-WHA (N.D. Cal.),
District Judge William Alsup granted the Lead Plaintiff's
Administrative Motion to File Under Seal.

The Administrative Motion is supported by a declaration of Jason
A. Forge and Alan L. Manning. The declarations are also to be
filed under seal.

A copy of the Court's Order dated October 28, 2016 is available at
https://goo.gl/9up8vf from Leagle.com.

LendingClub Corporation, et al., Defendants, represented by Kevin
Peter Muck -- kmuck@fenwick.com -- Fenwick & West LLP, Carly Lee
Bittman -- cbittman@fenwick.com -- Fenwick and West, Jay L.
Pomerantz -- jpomerantz@fenwick.com -- Fenwick & West, Marie
Caroline Bafus -- mbafus@fenwick.com -- Fenwick and West LLP, Nair
Diana Chang -- dchang@fenwick.com -- Fenwick & West LLP &
Sebastian Elan Kaplan -- skaplan@fenwick.com -- Fenwick and West

Renaud LaPlanche, Defendant, represented by Robert John Liubicic
-- rliubicic@milbank.com -- Milbank Tweed & Sarah L. Rothenberg
-- srothenberg@milbank.com -- Milbank, Tweed, Hadley McCloy LLP.

LENOVO GROUP: Class Action Over Superfish Software Can Proceed
Ross Todd, writing for The Recorder, reports that Lenovo Group
Ltd. must face a class action over the pre-installed software that
consumers claim compromised the performance of notebook computers
and left them vulnerable to cyberattacks, a federal judge ruled on
Oct. 27.

U.S. District Judge Ronald Whyte of the Northern District of
California denied Lenovo's request to dismiss a wide swath of
plaintiffs' privacy and consumer protection claims.  The judge
certified a nationwide class of consumers who purchased the
laptops from someone other than Lenovo, but declined to certify a
class of consumers who purchased directly from Lenovo.

Judge Whyte, who is set to retire from the bench in November, has
been overseeing In re Lenovo Adware Litigation, 15-2624, since the
Judicial Panel on Multidistrict Litigation transferred the cases
to him in June 2015 for pretrial proceedings.

The Oct. 27 ruling is likely the swan song for the veteran
Northern District jurist in the cases which accuse Lenovo of
installing adware designed by Superfish Inc. onto some of its
laptops that created security vulnerabilities, drained battery
life and negatively affected the computer's speed and performance.

Superfish, which is represented by Fenwick & West, agreed to pay
$1 million to consumers and cooperate with plaintiffs in deal
reached in February. But Lenovo and its lawyers at K&L Gates have
fought on.

In Lenovo's motion to dismiss, K&L Gates partner Daniel Stephenson
argued that the company acted quickly to address the security
glitch, no customers were actually hacked and the plaintiffs have
suffered no harm.  Mr. Stephenson also argued that the federal and
state wiretapping laws plaintiffs applied to Superfish rather than
Lenovo since his client never intercepted communications or
received users' personal data.

But in a 40-page order, Judge Whyte let claims move forward under
a theory that Lenovo executives conspired to allow Superfish
access to consumers' data.  JudgeWhyte will also allow consumer
protection claims stand against Lenovo for failing to disclose
that Superfish's VisualDiscovery software had been loaded onto
computers -- allegedly slowing internet upload speeds on the
machines by as much as 55 percent.

Judge Whyte wrote that "plaintiffs not only speculate that
VisualDiscovery might allow for future hacking by third parties --
plaintiffs also allege that the operation of VisualDiscovery --
the privacy violations and performance effects it caused --
actually decreased the value of their laptops."

Whyte certified a class of California purchasers, a nationwide
indirect purchaser class, and appointed Pritzker Levine; Cotchett,
Pitre & McCarthy; and Girard Gibbs as class counsel.

Whyte, however, declined to certify a class of consumers who
purchased their computers directly from Lenovo. The parties
previously stipulated that New York law governs Lenovo's contract
with consumers and the judge found that plaintiffs hadn't shown
that any of their claims under New York or federal law were
appropriate for class treatment.

K&L Gates' Stephenson and Cotchett's Phillip Gregory didn't
respond to messages on Oct. 27.

LEON COUNTY, FL: Fairfax Class Certification Bid Denied
In the case, CLIFFORD J. FAIRFAX, Plaintiff, v. MIKE WOOD, LEON
COUNTY, et al., Defendants, Case No. 4:16cv526-MW/CAS (N.D. Fla.),
District Judge Mark E. Walker accepted and adopted the Magistrate
Judge's Report and Recommendation over Plaintiff's objections.

Thus, Plaintiff's motion to certify action as a class action is
denied and the case is remanded to the Magistrate Judge for
further proceedings.

A copy of the Court's Order dated November 1, 2016 is available at
https://goo.gl/XoYtSz from Leagle.com.

CLIFFORD J FAIRFAX, Plaintiff, Pro Se.

MIKE WOOD, et al., Defendants, represented by KAYLA ELIZABETH

MICHAEL PETERSEN, et al., Defendants, represented by RANDALL GLEN
Valerie.Dray@csklegal.com -- COLE SCOTT & KISSANE PA.

DEBORAH SELLERS, et al., Defendants, represented by GREGG A.
TOOMEY -- gat@thetoomeylawfirm.com -- TOOMEY LAW FIRM LLC.

LINC ENERGY: Class Action Obtains Conditional Funding Approval
Matthew Newton, writing for Chinchilla News, reports that a
landholder class action against Linc Energy and the Queensland
Government has received conditional funding approval from a
London-based litigation funder.

A group of Hopeland land owners, led by Pam Bender -- wife of the
late George Bender -- have been working with solicitors and
barristers to build a case since late 2015.

Tom Marland -- tom@marlandlaw.com.au -- principal solicitor for
Marland Law, said the secured funding was a "shot of confidence"
for the class action.

"An institutional litigation funder from London thinks the case
has got merit and is willing to put significant amount of capital
forward to allow us to run the case," he said.

"It's taken a long time and a lot of hard work behind the scenes
to get (the case) to where it is now and it is good to see it
coming to fruition."

However, funding from London-based firm Woodsford Litigation
Funding is conditional upon the number of landholders that sign on
to the class action.

In February 2015, the Queensland Government established a 300 sq
km Excavation Caution Zone (ECZ) around the Linc Energy
Underground Coal Gasification trial site because of evidence of
alleged soil and groundwater contamination caused by the facility.

The presence of the ECZ, which lawyers say has created a "stigma"
over the affected land, has the potential to significantly devalue
the properties over which it is placed.

The class action has engaged a valuation firm, Leichardt Group, to
undertake preliminary valuations to provide an estimate of
potential damages.

Of the 134 separate landowners within the ECZ, around 40% have so
far signed onto the class action.

Marland Law estimates that around 75% of the land contained within
the ECZ must be part of the group for the action to be viable.

"We've got a viable action, we've got funding . . . it really does
need the community to get on board with it otherwise it's just not
going to happen," Mr Marland said.

A community meeting had been called for 3pm on Nov. 4 at the Club
Hotel, 131 Heeney Street, Chinchilla, to discuss the new

Linc Energy is currently facing five charges of wilfully and
unlawfully causing serious environmental harm in breach of the
Environmental Protection Act (1994) at its Hopeland underground
coal gasification plant between 2007 and 2013.

Linc Energy has continued to refute all charges brought against it
by the Queensland Government.

The company went into voluntary administration in April and is
currently in liquidation.

LOWE'S COS: Settlement in "Brown" Case Has Final Approval
individually and on behalf of all others similarly situated,
SOLUTIONS, INC., Defendants. APRIL INGRAM-FLEMING, individually
and on behalf of all others similarly situated, Plaintiff, v.
LOWE'S HOME CENTERS, LLC, d/b/a LOWE'S, Defendant, Nos. 5:13-CV-
00079-RLV-DSC, 5:15-CV-00018-RLV-DSC (W.D.N.C.), District Judge
Richard L. Voorhees granted the Plaintiffs' motions for final
approval of class action settlement and for approval of attorneys'
fees and expenses.

For purposes of settlement only,

     (a) the settlement class is consist of thousands of
         individuals, and joinder of all members is

     (b) there exists questions of fact and law common to the
         settlement class members;

     (c) the claims of the named plaintiffs are typical of the
         claims of the settlement class members;

     (d) the named plaintiffs and class counsel will fairly and
         adequately protect the interests of the settlement

     (e) the questions of law or fact that are common to
         settlement class members, and which are relevant for
         settlement purposes, predominate over questions
         affecting only individual settlement class members; and,

     (f) the Resolution of the litigation in the manner proposed
         by the Parties' Settlement Agreement is superior to
         other available methods for a fair and efficient
         adjudication of the litigation.

The Court, on a final basis, appoints Caddell & Chapman, Consumer
Litigation Associates, P.C., O'Toole, McLaughlin, Dooley & Pecora,
Co., LPA, Lyngklip & Associates Consumer Law Center, PLC, Sellers,
Hinshaw, Ayers, Dortch & Lyons, P.A., Wenzel, Fenton, Cabassa,
P.A., and Wallace & Graham, P.A. as class counsel for the
settlement class.

The Court further awards the attorneys' fees and costs to class
counsel in the amount of $752,540, constituting one-third of the
Maximum Settlement Amount as described in the Settlement

Moreover, the Court finally appoints Plaintiffs Jason Brown,
Laszlo Bozso, and April Ingram-Fleming as the class
representatives. Each of the class representatives will receive
$5,000 as service awards.

American Legal Claim Services acts as the claims administrator.

A copy of the Court's Order dated November 1, 2016 is available at
https://goo.gl/80rEMM from Leagle.com.

Lowe's Companies, Inc., et al., Defendants, represented by Brent
Alan Rosser -- brosser@hunton.com -- Hunton & Williams, Kevin
James White -- kwhite@hunton.com -- Hunton & Williams LLP, pro hac
vice & Robert T. Quackenboss -- rquackenboss@hunton.com -- Hunton
& Williams, LLP, pro hac vice.

First Advantage Background Corp., Defendant, represented by C.
Knox Withers -- knox.withers@agg.com -- Arnall Golden Gregory,
LLP, pro hac vice, Edward Patrick Cadagin --
edward.cadagin@agg.com -- Arnall Golden Gregory LLP, pro hac vice,
Henry R. Chalmers, Arnall Golden Gregory, LLP, pro hac vice,
Jeffrey S. Jacobovitz -- jeffrey.jacobovitz@agg.com -- Arnall
Golden Gregory, LLP, pro hac vice, Pearlynn Gilleece Houck --
phouck@robinsonbradshaw.com -- Robinson, Bradshaw & Hinson, PA &
Robert Walker Fuller, III -- rfuller@robinsonbradshaw.com --
Robinson, Bradshaw & Hinson, P. A..

LYFT: Teamsters, Drivers Object to Class Action Settlement
Lyft drivers, the Uber Lyft Teamsters Rideshare Alliance (ULTRA),
Teamsters Joint Council 7 and Teamsters Joint Council 42 have
filed legal objections to a class-action lawsuit settlement which
would continue to misclassify Lyft employees in California as
independent contractors.

The objections were filed late on Oct. 31 in federal district
court in San Francisco.  The case is being heard by Judge Vince

In their filing, the objectors stated that the proposed settlement
"does not provide sufficient monetary compensation to the class,
and the non-monetary components of the settlement are of dubious
value or do not substantially change Lyft's practices."

The proposed settlement does not include any money for workers
resulting from Lyft's violations of the minimum wage, violations
of the law requiring accurate wage statements, unpaid meal and
rest breaks, prompt payment violations and reporting time

After Lyft drivers and the Teamsters filed objections to a
preliminary settlement in this case in March, Judge Chhabria
ordered the attorneys to go back to the table to correct
deficiencies in the monetary value of the settlement covering
100,000 California drivers.

The current $27 million settlement was adjusted from the
preliminary settlement amount of $12.5 million because of
inaccuracies in calculating the mileage logged by drivers.  The
proposed final settlement covers only 17 percent of estimated
damages for the drivers' reimbursement claim. Of that amount,
$3.675 million will go to attorneys' fees.

The settlement leaves in place Lyft's misclassification of its
drivers as independent contractors, and permits Lyft to deprive
its drivers of their right to bring class actions in the future,
while also forcing them into costly arbitrations of disputes
involving their compensation and bonuses.

Due to various carve-outs contained in the settlement, the
arbitration provision provides less protection than state law.

Unlike employees, independent contractors do not have the rights
to receive overtime pay, reimbursement for expenses and many other
rights under the California Labor Code.

"This proposed settlement will not change Lyft's business model of
misclassifying its employees as independent contractors and that
is one of the many reasons we object.  Lyft makes its profits by
undercutting workers and taxpayers.  This is an unfair settlement
and drivers have earned more and deserve better," said Rome
Aloise, President of Joint Council 7.

Mr. Aloise heads the California Teamsters Public Affairs Council,
along with Joint Council 42 President Randy Cammack.

Teamsters have been engaged in an ongoing effort to organize TNC
drivers in the Bay Area.

Also in the high tech industry, hundreds of drivers at tech
companies, including Facebook, Yahoo, Apple, eBay and others in
Silicon Valley, have organized in the past year with the
Teamsters.  The union has negotiated strong contracts for the
drivers, including good wages, benefits and workplace protections.

The Teamsters Union is part of a growing movement of labor, faith
and community-based organizations and workers challenging income
inequality in Silicon Valley through an innovative partnership
called Silicon Valley Rising.

For more information on tech worker organizing with the Teamsters,
visit http://teamster.org/tech-drivers-deserve-union.

Founded in 1903, the International Brotherhood of Teamsters --
http://www.teamster.org-- represents 1.4 million hardworking men
and women in the United States and Canada.

MAPCO: Settles 2013 Data Breach Class Action, Jan. 9 Hearing Set
J.R. Lind, writing for Brentwood Patch, reports that shop at a
Mapco and pay with a card sometime in March or April of 2013?
Chances are pretty good, considering the ubiquity of the
Brentwood-based convenience store operator in Middle Tennessee.
And the chances are good, then, that you might be in line for some
settlement money.

Mapco's data systems were hacked in the spring of 2013 and an
untold amount of credit card information was accessed.  A
class-action suit was filed in the U.S. District Court for the
Middle District of Tennessee in August 2014, claiming, among other
things, that Mapco was negligent in failing to prevent the breach.

Now the parties are ready to settle and the attorneys are
accepting claims under the terms of the proposed settlement.

To qualify, you must reside in the United States and your personal
or financial data was stolen from Mapco's data systems and if you
were damaged by the data breach disclosed by Mapco.  If you used a
credit card or debit card to make a purchase at a store owned and
operated by Mapco Express between March 1, 2013 and April 30,
2013, there's a chance you were affected.

Under the terms of the settlement, claimants will be paid up to
$500 for documented out-of-pocket losses, unreimbursed charges, or
time spent remedying issues related to the breach (up to five
hours at $15 per hour).  Don't have documentation, but still spent
time checking to see if your data was stolen? Mapco will pay for
two hours of lost time at $15 per hour without documentation.

A claim can be filed on the web and more information is available
on the site.  The judge will be asked to approve the settlement
January 9 and the deadline to join the class-action is January 26.

MAPLEWOOD, MO: Faces Class Action Over Biased Cash Bail System
Sarah Fenske, writing for Riverfront Times, reports that a new
lawsuit filed by the nonprofit firm ArchCity Defenders alleges
that Maplewood has implemented and enforced a racially biased bail
system that exploits poor people to generate revenue.

The suit alleges that the system has been an open secret within
the metro area -- one that has the poor actively avoiding the St.
Louis suburb.

"Poor people and people of color have known about Maplewood's
policies for years," Thomas Harvey, Executive Director of ArchCity
Defenders, said in a press release.  "Our clients say Maplewood's
police and court practices have prohibited them from driving
through, shopping, and even living in Maplewood."

According to the suit, the system requires anyone contacting the
city to cancel an arrest warrant to first pay up.  A voicemail
recording announces that they need to make a cash payment before
taking any further steps.

Per the press release from ArchCity Defenders announcing the suit:

Maplewood's court does not inquire into a person's ability to pay
their subsequent tickets and court fines, rather, it demands
payment or threatens jail time.  People have diverted income from
disability checks, and part-time paychecks in order to avoid
jailing. If a person cannot afford to pay or is not able to come
to court, Maplewood charges a "warrant recall bond."

The "warrant recall bond" is the cash bond that blocks access to
justice by creating a "pay-to-play" system that only the wealthy
can afford.  In this scenario, a Defendant must pay Maplewood
$500-800 in order to recall the warrant, receive information on
her charges, schedule a new court date, see a judge, or file a
motion to reduce the amount of her bond. To require money in order
to access the justice system, is contrary to our legal system's
fundamental values.

ArchCity Defenders has filed numerous lawsuits against
municipalities in the greater St. Louis area, including one on
Oct. 31 alleging that Florissant was running a debtors' prison.

But for many south-of-Delmar St. Louis residents, who've shaken
their heads sadly at the injustices propagated by north county
municipalities, this one may hit a bit closer to home.  In recent
years, Maplewood has become something of a mecca for hip
restaurants, indie stores and young homebuyers seeking good
schools -- the suggestion it's balancing its books on the backs of
the poor surely won't sit well with some of its residents.

MDL 2143: Cal. Judge Rules in ODD Litigation
Nos. 10-md-02143-RS, 15-cv-03248-RS, 15-cv-06325-RS (N.D. Cal.),
District Judge Richard Seeborg denied both the Defendants'
collective and separate motions.

In the collective motion, the Defendants dispute whether
Plaintiffs' claims permissibly extend to camcorders, DVD players,
and game consoles. Accordingly, the Court clarified that the
camcorders, DVD players, and game consoles are not within the
scope of Plaintiffs' complaints. Thus, the Defendants' arguments
warrant dismissal.

On the other hand, the separate motion of both Defendants, Lite-On
Sales & Distribution Inc. (LSDI) and Philips Electronics North
America Corporation (PENAC), averred on the Plaintiffs' failure to
state sufficient facts on their alleged conspiracy. The Court
ruled that it would be inappropriate to conclude at the pleading
stage the allegations regarding conduct undertaken on behalf of
the corporate families is so factually devoid as to permit
dismissal of both Defendants. The Court said the Plaintiffs will
be expected to exercise the utmost good faith in evaluating
whether the claims against any particular defendant should be
maintained as these cases go forward.

A copy of the Court's Order dated November 4, 2016 is available at
https://goo.gl/cX20RG from Leagle.com.

LG Electronics, Inc., et al., Defendants, represented by Ameri
Rose Klafeta -- aklafeta@eimerstahl.com -- Eimer Stahl LLP, Arin
Charles Aragona -- aaragona@eimerstahl.com -- Eimer Stahl LLP, pro
hac vice, Ian T. Simmons -- isimmons@omm.com -- O'Melveny & Myers
LLP, Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP,
Samuel R. Miller, Sidley Austin LLP, Sarah Hargadon, Eimer Stahl
LLP & Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com --
Eimer Stahl LLP, pro hac vice.

Hitachi-LG Data Storage, Inc., et al., Defendants, represented by
Anthony C. Biagioli Anthony.Biagioli@ropesgray.com -- Ropes & Grat
LLP, Emily Jessica Derr -- Emily.Derr@ropesgray.com -- Ropes and
Gray LLP, pro hac vice, Jane E. Willis --
Jane.Willis@ropesgray.com -- Ropes & Gray LLP, Mark Samuel
Popofsky -- Mark.Popofsky@ropesgray.com -- Ropes and Gray LLP &
Michelle Lynn Visser -- Michelle.Visser@ropesgray.com -- Ropes and
Gray LLP.

MDL 2656: Amended Complaint Survives Bid to Dismiss
District Judge Colleen Kollar-Kotelly of District of Columbia,
denied defendants' motion to dismiss plaintiffs' consolidated
amended complaint, in the case IN RE DOMESTIC AIRLINE TRAVEL
2656, Misc. No. 15-1404 (CKK)(D.C)

Defendants, American Airlines, Inc. (American), Delta Air Lines,
Inc. (Delta), Southwest Airlines Co. (Southwest), and United
Airlines, Inc. (United), are the 4 largest commercial air
passenger carriers in the United States. In addition to the four
named defendants, plaintiffs allege that U.S. Airways prior to its
merger with American, Air Canada, and the International Air
Transport Association (IATA) willingly conspired with defendants
to unlawfully restrain trade.

Plaintiffs are purchasers of air passenger transportation for
domestic travel directly from defendants or their predecessors
and/or through websites including Travelocity.com, Orbitz.com,
Priceline.com, Expedia.com, and Flyfar.ca. Plaintiffs allege that
defendants colluded to limit capacity on their respective airlines
in a conspiracy to fix, raise, maintain, and/or stabilize prices
for air passenger transportation services within the United
States, its territories, and the District of Columbia in violation
of Sections 1 and 3 of the Sherman Antitrust Act (15 U.S.C.
Sections 1, 3), and that plaintiffs suffered pecuniary injury by
paying artificially inflated ticket prices as a result of this
purported antitrust violation. Plaintiffs allege that the
conspiracy commenced in the first quarter of 2009 and continues
until the present, and seek to recover treble damages for the
period of July 1, 2011, to the present.

The United States Judicial Panel on Multidistrict Litigation
consolidated 23 actions pending in 7 districts involving claims
that four major airlines fixed prices for domestic airline tickets
by keeping capacity artificially low. The Panel transferred the
consolidated actions to the District of Columbia on October 13,

On February 4, 2016, the court entered an order appointing
plaintiffs' interim class counsel and, on February 26, 2016, set a
schedule for plaintiffs to file their consolidated amended
complaint and for defendants to file any responsive pleadings or
motions. On March 25, 2016, plaintiffs filed their consolidated
amended class action complaint and on May 11, 2016, defendants
filed their motion to dismiss plaintiffs' consolidated amended
complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1)
and 12(b)(6). Defendants allege that the consolidated amended
complaint should be dismissed because plaintiffs failed to plead
facts sufficient to demonstrate that plaintiffs suffered injury-
in-fact and because plaintiffs failed to plead factual allegations
of a plausible price-fixing conspiracy in violation of federal
antitrust laws.

Judge Kollar-Kotelly denied defendants' motion to dismiss
plaintiffs' consolidated amended complaint.

The court concludes that plaintiffs adequately established
standing to bring the claim and pled a plausible claim pursuant to
Section 1 of the Sherman Act with respect to each defendant. The
court held that the plaintiffs met their burden at the motion to
dismiss phase and are entitled to proceed.

The court shall require defendants to file an answer to the
complaint by November 28, 2016. By separate order, the court shall
set this matter for an Initial Scheduling and Case Management

A copy of Judge Kollar-Kotelly memorandum opinion dated October
28, 2016, is available at https://goo.gl/tlOsna from Leagle.com.

WILLIAM YOUMANS, Plaintiff, represented by Kit A. Pierson --
kpierson@cohenmilstein.com -- at COHEN MILSTEIN SELLERS & TOLL

SHAWN JAIN, Plaintiff, represented by Gary Edward Mason, WHITFIELD

RACHEL GOLIAN, Plaintiff, represented by Ronald J. Aranoff -- at

COLLEEN PANZINO, Plaintiff, represented by W. Scott Simmer -- at

CHRISTOPHER DEVIVO, Plaintiff, represented by Mark I. Labaton --

represented by Barbara J. Hart -- bhart@lowey.com -- at LOWEY

LILIAN M. RAJI, Plaintiff, represented by Todd S. Garber --
tgarber@fbfglaw.com -- at FINKELSTEIN, BLANKINSHIP, FREI-PEARSON &

STEVEN HERSH and CURTIS PALMER, Plaintiffs, represented by Linda
P. Nussbaum -- lnussbaum@nussbaumpc.com -- at NUSSBAUM LAW GROUP,

BRADFORD TOMLIN, and WHITNEY TOMLIN, Plaintiffs, represented by
Warren T. Burns -- wburns@burnscharest.com -- at BURNS CHAREST LLP

RICHARD WARCHOL, and KAYLA REPAN, Plaintiffs, represented by
Patrick J. Coughlin -- patc@rgrdlaw.com -- at ROBBINS GELLER

STATE-BOSTON RETIREMENT SYSTEM, Plaintiff, represented by Jay L.
Himes -- jhimes@labaton.com -- at Labaton Sucharow LLP

CHARLES CURLEY and STELLA BANGIYEVA, Plaintiffs, represented by
Gregory E. Del Gaizo -- gdelgaizo@robbinsarroyo.com -- at ROBBINS

EILEEN SILVER, Plaintiff, represented by Jayne Arnold Goldstein --
jagoldstein@pomlaw.com -- at Pomerantz Grossman Hufford Dahlstrom
& Gross, LLP

AMY BESS and KATHRYN LAVIN, Plaintiffs, represented by Kimberly A.
Kralowec -- kkralowec@kraloweclaw.com -- at KRALOWEC LAW GROUP;
Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

MICHELE ANDRADE, Plaintiff, represented by Allan Steyer --
asteyer@steyerlaw.com -- at STEYER LOWENTHAL BOODROOKAS ALVAREZ &
SMITH LLP; Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

MICHAEL BACKUS, Plaintiff, represented by Raymond J. Farrow --
rfarrow@kellerrohrback.com -- at KELLER ROHRBACK LLP; Lesley
Elizabeth Weaver -- at BLOCK & LEVITON LLP

BARBARA E. HARTLEY, Plaintiff, represented by Francis O. Scarpulla
-- fos@scarpullalaw.com -- at LAW OFFICES OF FRANCIS O. SCARPULLA;
Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

represented by Shpetim Ademi -- sademi@ademilaw.com -- at ADEMI &

LOIS GIORDANO, Plaintiff, represented by Benjamin F. Johns --
BenJohns@chimicles.com -- at CHIMICLES & TIKELLIS, LLP; Lesley
Elizabeth Weaver -- at BLOCK & LEVITON LLP

PETER EVERITT and YVETTE WHEELERs, Plaintiff, represented by
Warren T. Burns -- wburns@burnscharest.com -- at BURNS CHAREST
LLP; Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

CHONG HUMMEL and ELSIE M. JONES, Plaintiffs, represented by
Kimberly A. Justice -- kjustice@ktmc.com -- at KESSLER TOPAZ

JEFFREY HARDIMON, Plaintiff, represented by Marc H. Edelson -- at

RON COATS and LEON COATS, Plaintiffs, represented by Allan Kanner
-- a.kanner@kanner-law.com -- at KANNER & WHITELEY, L.L.C.;Lesley
Elizabeth Weaver -- at BLOCK & LEVITON LLP

SOLOMON FRIEDMAN, Plaintiff, represented by Nancy A. Kulesa -- at
SCHATZ NOBEL IZARD, P.C.; Lesley Elizabeth Weaver -- at BLOCK &

LARRY MORRISON, Plaintiff, represented by Jeffrey S. Abraham --
jabraham@aftlaw.com -- at ABRAHAM FRUCHTER & TWERSKY LLP

GABRIEL WATKINS, Plaintiff, represented by Michael Goldberg --
michael.goldberg@bakerbotts.com -- at BAKER BOTTS L.L.P.

JAMES L. STEWART, Plaintiff, represented by Azra Z. Mehdi --
Azram@themehdifirm.com -- at MEHDI FIRM, PC; Lesley Elizabeth
Weaver -- at BLOCK & LEVITON LLP

STEPHANIE JUNG, Plaintiff, represented by Steven N. Williams --
swilliams@cpmlegal.com -- Adam J. Zapala -- azapala@cpmlegal.com -

RICHARD P. IEYOUB, SR and JUDAH NATHANSON, Plaintiffs, represented
by Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

JENNIFER BERDAY, Plaintiff, represented by Lynn A. Toops --
ltoops@cohenandmalad.com -- Richard E. Shevitz --
rshevitz@cohenandmalad.com -- at COHEN & MALAD LLP; Lesley
Elizabeth Weaver -- at BLOCK & LEVITON LLP

RAJESH PATEL and KUMAR PATEL, Plaintiffs, represented by Natalie

THERESA BROWN and AARON LAY, Plaintiffs, represented by Gregory F.
Coleman -- greg@gregcolemanlaw.com -- at GREG COLEMAN LAW PC

represented by George A. Zelcs -- gzelcs@koreintillery.com -- at

RICHARD E. KRAFT and VINCENT PANFIL, Plaintiffs, represented by
John R. Malkinson -- jmalkinson@mhtriallaw.com -- at MALKINSON &

LARISSA D. KOSITS, Plaintiff, represented by Elizabet C. Pritzker
-- ecp@pritzkerlevine.com -- at PRITZKER LEVINE LLP

JONATHAN SCHUMACHER, Plaintiff, represented by W. Joseph Bruckner
-- wjbruckner@locklaw.com -- at LOCKRIDGE GRINDAL NAUEN P.L.L.P.

ELIZABETH WALKER, Plaintiff, represented by Archie I. Grubb, II --
archie.grubb@beasleyallen.com -- at BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, P.C.; Lesley Elizabeth Weaver -- at BLOCK &

MARTIN POMEROY, Plaintiff, represented by David Andrew Bain --
dbain@bain-law.com -- at LAW OFFICES OF DAVID A. BAIN, LLC

NELSON VALDES, Plaintiff, represented by Louis I. Mussman --
louis@kumussman.com -- at Ku & Mussman, PA;& Lesley Elizabeth
Weaver -- at BLOCK & LEVITON LLP

CLUB, III, LTD., Plaintiffs, represented by Lesley Elizabeth
Weaver -- at BLOCK & LEVITON LLP

LINDA WILLIAMS, Plaintiff, represented by Joseph M. Alioto -- at

BRIAN BANK, Plaintiff, represented by Adam C. Belsky -- adam@gba-
law.com -- Terry Gross -- terry@gba-law.com -- at GROSS BELSKY
ALONSO LLP; Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

BREANNA JACKSON and GLORIA GOLDBLATT, Plaintiffs, represented by
Eric B. Fastiff -- efastiff@lchb.com -- at LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP; Lesley Elizabeth Weaver -- at BLOCK & LEVITON

SETH LYONS and DAVID MCENERNEY, Plaintiffs, represented by John D.
Radice -- jradice@radicelawfirm.com -- at RADICE LAW FIRM PC;
Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

Plaintiffs, represented by Manfred P. Muecke -- mmuecke@bffb.com -
Weaver -- at BLOCK & LEVITON LLP

EDWARD PARK, Plaintiff, represented by Jack W. Lee --
jlee@MinamiTamaki.com -- at MINAMI TAMAKI LLP; Lesley Elizabeth
Weaver -- at BLOCK & LEVITON LLP

KEITH ANDERSON and SARAH TRAN, Plaintiff, represented by Michael
Glenn McLellan -- mmclellan@finkelsteinthompson.com -- at
FINKELSTEIN THOMPSON LLP; Lesley Elizabeth Weaver -- at BLOCK &

CHEROKII VERDUZCO, Plaintiff, represented by Guido Saveri -- at
SAVERI & SAVERI, INC.; Lesley Elizabeth Weaver -- at BLOCK &

MINGLI CHEN, Plaintiff, represented by Jiangxiao Athena Hou -- at
ZELLE LLP; Lesley Elizabeth Weaver -- at BLOCK & LEVITON LLP

RICHARD KING, Plaintiff, represented by Hilary K. Scherrer --
hscherrer@hausfeld.com -- at HAUSFELD LLP; Lesley Elizabeth Weaver

MICHAEL COFFEY, JR., Plaintiff, represented by Lesley Elizabeth

CHARLES CARTE, Plaintiff, represented by Lee Albert --
lalbert@glancylaw.com -- at GLANCY PRONGAY & MURRAY LLP; Lesley
Elizabeth Weaver -- at BLOCK & LEVITON LLP

CRAIG KELLY, Plaintiff, represented by Christopher T. Micheletti -
- cmicheletti@zelle.com -- at ZELLE LLP; Lesley Elizabeth Weaver -

RICHARD PRICE, Plaintiff, represented by Peter Leckman -- at

ANDREW NEMIT and JON KELLAM, Plaintiffs, represented by Craig L.
Briskin -- cbriskin@findjustice.com -- at MEHRI & SKALET, PLLC

ISRAEL KATZ, Plaintiff, represented by Ronald J. Aranoff --
Aranoff@bernlieb.com -- at BERNSTEIN LIEBHARD, LLP

LEVIN SIMES LLP, Plaintiff, represented by Daniel T. LeBel -- at

STEVEN YENINAS, Plaintiff, represented by Jeannine M. Kenney --
jkenney@hausfeld.com -- Bonny E. Sweeney -- bsweeney@hausfeld.com

and on behalf of all others similarly situated, Plaintiff,
represented by David M. Cialkowski --
david.cialkowski@zimmreed.com -- at ZIMMERMAN REED, LLP

represented by James M. Dombroski -- jdomski@aol.com -- at LAW

KENT BUSEK and STEVEN M. TRAUT WELLS, INC., doing business as
TRAUT WELLS, Plaintiff, represented by Daniel E. Gustafson --
dgustafson@gustafsongluek.com -- at GUSTAFSON GLUEK PLLC; Lesley
Elizabeth Weaver -- at BLOCK & LEVITON LLP

ROBERT ROLLAND and TIMOTHY ST. CYR, individually and on behalf of
all others similarly situated,  Plaintiffs, represented by Richard
M. Hagstrom -- rhagstrom@hjlawfirm.com -- at HELLMUTH & JOHNSON,

JAY TILAK, Plaintiff, represented by Dianne M. Nast --
dnast@nastlaw.com -- at NastLaw LLC

KATHERINE ROSE WARNOCK, Plaintiffs, represented by Daniel J. Mogin
-- dmogin@moginlaw.com -- at MOGIN LAW FIRM, P.C

MICHAEL MARTIN and EDWARD LAWRENCE, Plaintiff, represented by
Joseph M. Alioto -- josephalioto@aliotolaw.com -- at ALIOTO LAW

UNION LABOR LIFE INSURANCE COMPANY, Plaintiff, represented by Paul

HOWARD SLOAN KOLLER GROUP, Plaintiff, represented by Robert N.
Kaplan -- rkaplan@kaplanfox.com -- at KAPLAN FOX & KILSHEIMER LLP

ULLICO INC., On behalf of itself and all others similarly
situated, Plaintiff, represented by Jay L. Himes --
jhimes@labaton.com -- at Labaton Sucharow LLP

Plaintiffs, represented by Allan Kanner -- a.kanner@kanner-law.com
-- at KANNER & WHITELEY, L.L.C. & Lesley Elizabeth Weaver, BLOCK &

ERIC STETZLER, Plaintiff, represented by Thomas P. Pier -- at
ALIOTO LAW FIRM, pro hac vice

ALL PLAINTIFFS, Plaintiff, represented by Michael David Hausfeld -
- mhausfeld@hausfeld.com -- at HAUSFELD LLP

WILLIAM RUBINSOHN, Plaintiff, represented by Lingel H. Winters --
sawmill2@aol.com -- at LAW OFFICES OF LINGEL H. WINTERS

AMERICAN AIRLINES, INC., Defendant, represented by Benjamin
Bradshaw -- bbradshaw@omm.com -- Jeffrey Allen Nuxoll Kopczynski -
- jkopczynski@omm.com -- Katrina M. Robson -- krobson@omm.com --
Richard G. Parker -- rparker@omm.com -- Robert A. Siegel --
rsiegel@omm.com -- Sloane Ackerman -- sackerman@omm.com -- at
O'MELVENY & MYERS LLP; Carolyn Hazard --
carolyn.hazard@dechert.com -- Paul Thomas Denis --
paul.denis@dechert.com -- at DECHERT, LLP

DELTA AIRLINES, INC, Defendant, represented by James Peter
Denvir, III -- jdenvir@bsfllp.com -- John F. Cove, Jr. -- Michael
S. Mitchell -- mmitchell@bsfllp.com -- Abby L. Dennis --
adennis@bsfllp.com -- William A. Isaacson -- wisaacson@bsfllp.com

SOUTHWEST AIRLINES CO., Defendant, represented by Alden Lewis
Atkins -- aatkins@velaw.com -- Craig D. Margolis --
cmargolis@velaw.com -- Matthew J. Jacobs -- mjacobs@velaw.com --
Michael L. Charlson -- mcharlson@velaw.com -- Mortimer H. Hartwell
-- mhartwell@velaw.com -- Vincent van Panhuys --
vvanpanhuys@velaw.com -- at VINSON & ELKINS LLP; William Parker
Sanders -- psanders@sgrlaw.com -- at SMITH, GAMBRELL & RUSSELL,

Defendant, represented by Kent Alan Gardiner --
kgardiner@crowell.com -- at CROWELL & MORING LLP; Paul Laurence
Yde -- paul.yde@freshfields.com -- at FRESHFIELDS BRUCKHAUS

FREDERICK ISAACSON, Defendant, represented by W. Scott Simmer --

AMERICAN AIRLINES GROUP, INC., Defendant, represented by Katrina
M. Robson -- krobson@omm.com -- at O'MELVENY & MYERS LLP, pro hac

MGM RESORTS: Faces Class Action in Washington Over Gift Cards
Louie Torres, writing for Legal Newsline, reports that a
Washington state consumer is suing MGM Resorts and Coscto,
alleging breach of contract regarding gift cards.

David Hanson filed a class action complaint, individually and on
behalf of all others similarly situated, Oct. 24 in U.S. District
Court for the Western District of Washington against MGM Resorts
International and Costco Wholesale Corporation, alleging they
failed to disclose to the plaintiff and other consumers their
rights upon purchasing gift cards.

According to the complaint, Mr. Hanson suffered monetary damages
from being misled into purchasing gift cards which can only be
used at MGM hotels, resorts and casinos.  The plaintiff alleges
the defendants failed to inform the plaintiff and the class the
actual terms of the gift cards.

Mr. Hanson seeks trial by jury, damages, court costs, interest and
all relief the court grants. He is represented by attorneys Kim D.
Stephens -- kstephens@tousley.com -- and Kevin A. Bay --
kbay@tousley.com -- of Tousley Brain Stephens PLLC in Seattle, by
Rafey S. Balabanian, Eve-Lynn Rapp and Stewart Pollock of Edelson
PC in San Francisco, and by Alexander Darr of Darr Law Offices in
Fishers, Indiana.

U.S. District Court for the Western District of Washington Case
number 2:16-cv-01661-RAJ

MICHIGAN: Judge Hears Arguments in Marijuana Class Action
Dana Chicklas, writing for FOX17, reports that a judge on Nov. 2
heard arguments in a federal class action lawsuit filed by medical
marijuana patients and caregivers against several Michigan law
enforcement and crime lab officials.

The suit, filed in June, claims that because of false lab reports,
prosecutors are charging people with felonies without proof,
illegally arresting them and seizing assets.  Four patients and
caregivers are suing the directors of the Michigan State Police,
their crime labs and the publicly-operated Oakland County lab and
that county's sheriff.

Chief Judge Denise Page Hood of the U.S. District Court for the
Eastern District of Michigan in Detroit said she will issue an
opinion and decide whether the labs' marijuana reporting policies
violate the Fourth Amendment and due process rights of the medical
marijuana patients and caregivers.

One of the four plaintiffs, Max Lorincz from Spring Lake,
testified to having hash oil, but was charged with a felony for
having synthetic THC.  He lost custody of his 6-year-old son to
foster care for 18 months until his case was dismissed; a case and
statewide scandal FOX 17 broke last year.

"The problem is, the way that the Oakland County lab and the
Michigan State Forensic Science Division is reporting still would
allow for arrests, still would allow for these patients and
caregivers to not have immunity because they're reporting it as
something other than marijuana," said Michael Komorn, the
plaintiffs' attorney.  "And the law enforcement community, as far
as we know, is still arresting people for possessing these

In court on Nov. 2, Defense Attorney Rock Wood with the Michigan
Attorney General's office representing the state police and crime
labs' directors, along with Defense Attorney Nicole Tabin
representing the Oakland County lab's director and sheriff,
declined requests for comment.  Mr. Wood argued this is not a case
involving altered, hidden or destroyed evidence. Instead, the
defense writes in their motion to dismiss the case:

"The MSP policy is consistent with the current national standard
for testing of seized drugs and avoids speculation as to the
source of chemical components unless there is zero qualitative

Ultimately, the labs' policy states that unless there is marijuana
plant matter seen along with THC, scientists label it "Schedule 1
THC, origin unknown," instead of marijuana.  This is the
difference between a felony, or a marijuana possession misdemeanor
which patients and caregivers can be immune for under the Michigan
Medical Marijuana Act.

The plaintiffs' attorneys and their experts say that 100 percent
certainty for any evidence, even DNA is not possible.

"You know that nobody's going to go through the trouble of
synthesizing THC, along with other cannabinoids," said
Timothy Daniels, another attorney representing the plaintiffs.
"And therefore you know to almost a 100 percent, and I won't say
100 percent, let's say 99 percent certainty, that is marijuana,
not synthetic."

Overall, the Michigan Medical Marijuana Act protects licensed
patients and caregivers from charges and prosecution for having
limited amounts of usable marijuana, not THC with an unknown
origin.  It's this lab policy the suit is working to stop.

"It's a little troubling that the defense is still suggesting
their reporting practices are honorable," said Mr. Komorn.

Statewide, as crime labs continue to report THC and marijuana in
ways that many call controversial, the decision now rests in the
judge's hands.  It's a decision that could potentially reopen
hundreds of cases across Michigan.

Meanwhile, recently passed legislation now legalizes medical
marijuana patients and caregivers use of marijuana extracts like
oils and edibles.  The defense argued the lawsuit is moot in part
due to this, however the plaintiffs' attorneys stand firm that
people continue to be unlawfully arrested, charged, and prosecuted
for possession of extracts due to the labs' reporting policy.

NATIONWIDE INSURANCE: Data Breach Class Action Can Proceed
Michelle de Leon, writing for Legal Newsline, reports that a panel
of judges at the U.S. Court of Appeals for the Sixth Circuit has
declared the victims of a data breach suffered by Nationwide
Insurance no longer need to establish their standing to prove that
they are in danger.

The victims of the 2012 data breach committed against the
Nationwide Mutual Insurance Co. were declared to successfully
establish the risks that could stem from the incident.

The Sixth Circuit decided the plaintiffs are eligible to claim
their rights under the Fair Credit Reporting Act (FCRA) against
the defendant.  With the reversal of the trial court's ruling, the
panel sided with the victims' claims that they are exposed to "a
substantial risk of harm" and have "incurred mitigation costs."

In October 2012, Nationwide faced a data breach that compromised
the confidential information of its clients.  The data stolen
included personally identifiable information such as their
passport numbers, IP addresses, credit card numbers, Social
Security numbers, employment information, home addresses and
national identification numbers.

The hackers gained access to all these data using the computer
network of Nationwide, which contained 1.1 million people.

Six weeks following the data breach, the insurance company reached
out the affected clients by sending them a letter. According to
the plaintiffs, Nationwide advised them to be more vigilant in
checking their credit reports as well as their other financial
documents.  To compensate, the insurance company offered free
credit monitoring and identity theft protection for an entire

The first cases linked to this data breach against Nationwide came
in early 2013.  These were filed by Mohammad Galaria of Minnesota
and Anthony Hancox of Kansas in the District of Southern District
of Ohio and the District of Kansas, respectively.

In their court documents, both victims accused Nationwide of
breaching FCRA guidelines.  They also alleged the company had been
negligent as indicated by the data breach.  In March 2013, the
cases of Galaria and Hancox were consolidated in an Ohio federal

In February 2014, the case was dismissed by the trial court.
Nationwide won the legal battle as the district court found the
plaintiffs to be lacking in standing to be able to invoke their
allegations related to the FCRA violations.

The lower court's ruling also found the claims of risks of future
identity thefts raised by the plaintiffs to be unsubstantiated,
noting the possible damages could not be supported with facts. The
district court further pointed out that Messrs. Galaria and Hancox
lacked standing to use Article III of the U.S. Constitution as
their basis.  Upon appeal, however, the Sixth Circuit declared

"[P]laintiffs' allegations of a substantial risk of harm, coupled
with reasonably incurred mitigation costs, are sufficient to
establish a cognizable Article III injury at the pleading stage of
the litigation," wrote Circuit Judge Helene N. White in the

The Sixth Circuit judge added, "There is no need for speculation
where the plaintiffs allege that their data has already been
stolen and is now in the hands of ill-intentioned criminals.
Indeed, Nationwide seems to recognize the severity of the risk,
given its offer to provide credit monitoring and identity theft
protection for a full year.  Where a data breach targets personal
information, a reasonable inference can be drawn that the hackers
will use the victims' data for the fraudulent purposes alleged in
the plaintiffs' complaints."

Messrs. Galaria and Hancox are represented by The Coffman Law Firm
in Beaumont, Texas.  Meanwhile, the insurance company is
represented by Carpenter, Lipps & Leland in Columbus as well as
Ropes & Gray in Boston.

NEW JERSEY: Faces Class Action Over Questionable DWI Convictions
Sergio Bichao, writing for New Jersey 101.5, reports that a
federal class action lawsuit seeks to throw out thousands of DWI
convictions in New Jersey after a State Police sergeant was
accused of botching the calibration of breathalyzers police use on
suspected drunk drivers.

The lawsuit was filed in October in federal district court of  New
Jersey by an Ocean County woman who was convicted last year based
on a breathalyzer test reading showing .09 percent blood-alcohol
content.  The legal BAC limit in New Jersey is .08 percent.

The complaint says BAC readings from breathalyzer tests have been
thrown into question after the state Attorney General's Office
charged Sgt. Marc Dennis with records tampering, alleging he
skipped a critical step in the required six-month recalibration of
all Alcotest instruments manufactured by Draeger Safety
Diagnostics.  Sgt. Dennis has denied wrongdoing.

The state in September said Dennis had botched the recalibration
of at least three instruments that may have been used in more than
20,600 cases in Middlesex, Monmouth, Ocean, Somerset and Union
counties.  It wasn't clear how many of those cases have led to

But Lisa J. Rodriguez -- ljrodriguez@schnader.com -- the attorney
representing plaintiff Ashley Ortiz, on Nov. 2 said that number
could be higher if it's discovered that Sgt. Dennis mishandled
other devices.

The lawsuit seeks to include all people convicted of driving while
intoxicated in New Jersey whose cases involved breathalyzer
readings from devices handled by Sgt. Dennis since 2009, the year
he was hired.

A spokesman for the state Attorney General's Office, which is
named as a defendant along with the State Police and Dennis,
declined to comment on pending litigation.

This is the latest lawsuit in response to an evidence-testing
scandal in New Jersey.

Earlier this year, state officials charged Kamalkant Shah, a
forensic scientist with the State Police North Regional
Laboratory, with falsely reporting marijuana results on evidence
that he hadn't actually tested.  Mr. Shah's lab had been used for
as many as 8,000 drug prosecutions in Bergen, Essex, Hudson,
Hunterson, Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset,
Sussex, Union and Warren counties.

In March, Sussex County attorney George T. Daggett put the state
on notice that he intends to sue on behalf of at least a dozen
clients who had been convicted based on evidence handled by Shah's
lab.  Prosecutors earlier this year said they would review cases
to find evidence that may have been handled by Mr. Shah. In April,
the state Supreme Court appointed a special judge to handle
potential challenges to such cases.

In some cases, the suspected drugs could be retested.  But
retesting would not be an option with a breathalyzer test device,
which reads a person's breath at the time of suspected impairment.

Ms. Ortiz's class-action lawsuit references the Shah case, saying
the state sat on evidence of Mr. Shah's wrongdoing for months,
allowing prosecutions to go forward on cases that relied on
questionable evidence.  It alleges a similar pattern in Dennis'

Ms. Ortiz was pulled over in Wall Township for a broken light on
Aug. 31, 2015.  She was arrested after failing a field sobriety
test and administered an Alcotest at the police station.  A judge
suspended her license for three months after she pleaded guilty.
Her lawsuit says she wouldn't have taken the plea if her attorney
had known about the allegations against Sgt. Dennis.

The lawsuit says Ms. Ortiz and others "have reason to call into
question the accuracy and integrity of all the state's Alcotest
results obtained from Alcotest instruments allegedly calibrated or
recalibrated" by Dennis during his tenure.

The state Supreme Court ruled in 2008 that breath results are
admissible scientific evidence in DWI cases.

But to be admissible, the device had to have been in working order
and inspected according to procedure; used by a certified
operator; and administered according to official procedure.  The
most recent calibration reports and the credentials of the
coordinator who performed the test have to be entered into
evidence along with the BAC reading.

"Because Dennis fabricated the calibration reports for various
Alcotest instruments, the state now lacks credible documents that
are foundational prerequisites for introduction of any BAC result
produced by an Alcotest instrument certified, calibrated or
recalibrated" by Sgt. Dennis, Ms. Ortiz's lawsuit says.

The five-count complaint, alleging 14th Amendment due process
violations, seeks an unspecified amount of damages as well as
court orders requiring the state to review all DWI cases
potentially involving Sgt. Dennis in order to determine whether
any convictions should be reversed as well as refunding all DWI
fines, wiping convictions from driver and criminal records, and
blocking further prosecutions of cases involving tests from
instruments handled by Sgt. Dennis.

Ms. Rodriguez is with the Cherry Hill firm Schnader Harrison Segal
& Lewis.

NFL: Ordered to Reveal Details on Concussion Measures
Ken Belson, writing for The New York Times, reports that a
New York judge is forcing the N.F.L. to reveal something it has
desperately tried to keep secret: how the league's medical
officials handled the issue of brain injuries over the last two

On Oct. 31, Justice Jeffrey K. Oing of New York State Supreme
Court issued an order that will let insurance companies that wrote
policies for the N.F.L. determine if the league knew about the
dangers of concussions and deliberately concealed them from
players.  The issue is central to whether the insurers will pay
for a class-action settlement brought by more than 5,000 retired
players who accused the league of fraud and negligence because
they were not told about the risks of repeated head hits.

The N.F.L. is likely to appeal Justice Oing's ruling.

The settlement, which covers all retirees except for a few dozen
players who have opted out, has been completed but is under
appeal.  The league has agreed to pay an unlimited amount of
damages to players who have been found to have severe neurological
conditions like Parkinson's disease and Alzheimer's disease, as
well as pay for medical monitoring.  Players can each receive up
to $5 million, based on their condition, when it was diagnosed and
how long they were in the league.

The cost of the settlement could reach $1 billion.

The settlement was reached in August 2013, before plaintiffs'
lawyers could depose witnesses and look through the N.F.L.'s
records to determine whether fraud or negligence had been

The N.F.L. asked the 30 or so insurers that wrote policies for the
league dating to the late 1960s to pay for the settlement, as well
as cover its legal costs.

The insurers, though, have refused to pay because they have been
unable to determine if the league committed fraud, which they feel
would absolve them of responsibility to pay out.

The insurers declined to comment on the judge's ruling on
Oct. 31.  The N.F.L. did not respond to an email requesting

Justice Oing delayed ruling on the case while the settlement was
being completed.  In a last-ditch effort, players objecting to the
settlement have appealed to the United States Supreme Court. Legal
experts consider the appeal a long shot, which is why Justice Oing
resumed hearing arguments in the insurance case.

After unsuccessfully pressing the sides to come to an agreement,
Justice Oing has now decided to allow the insurers to proceed with
discovery, which could unearth damaging records.  Most of those
records would be treated as confidential, although some could end
up appearing in the public court record if the case proceeded to

Even if the N.F.L. appeals Justice Oing's ruling, the insurers
might be allowed to proceed with discovery while the appeal is
heard.  That could prompt the N.F.L. to settle with the insurers
by agreeing to pay for some or all of the settlement, which would
ensure that the N.F.L. would not have to disclose what it knew
about concussions years ago.

NISSAN: Plaintiffs Attorneys in Altima Case Seek $1.6MM in Fees
Samantha Joseph, writing for Law.com, reports that a class action
lawsuit over melting dashboards in Nissan Altima vehicles could
see plaintiffs attorneys drive away with a $1.6 million payday.

Attorneys at Gibbs Law Group in Miami Beach, Morgan & Morgan in
Tampa and Greg Coleman Law in Knoxville, Tennessee, filed a motion
on Oct. 14 in federal court in Fort Lauderdale for $1.3 million in
fees and $348,000 in expenses.  They also asked Chief Judge K.
Michael Moore in the U.S. District for the Southern District of
Florida for a $5,000 service award for each of the named
plaintiffs, Tracy Sanborn and Louis Lucrezia.

Miami Beach attorneys Amy Zeman and Eric Gibbs teamed with several
co-counsel, including John Yanchunis and James Young of Tampa, and
Tennessee lawyers Gregory Coleman and Adam Edwards to bring suit
against Nissan North America Inc. in 2014.  They pressed the hard-
fought case for two years, defeating a motion to dismiss,
opposition to class certification, an attempt at summary judgment,
a Daubert motion to exclude all plaintiff expert witnesses and six
motions in limine.  Their motion shows the firms worked nearly
4,176 hours, for an average hourly rate of about $311.

The attorneys say their bill would have reached about $2.21
million under the lodestar method for calculating legal fees based
on reasonable hourly rates.

The Morgan & Morgan partners have the highest billing rates.
Mr. Yanchunis charges $950 per hour or about $31,350 for 33 hours'
worth of work in the Nissan case, according to court documents.
His partner Marcio Valladares, who charges $750 per hour, would
have made $30,825.

Miami Beach attorney Mr. Gibbs' 81.2 hours are worth $57,652,
while his partner Dylan Hughes would have collected $149,875 for
about 240 hours.

"Class counsel pursued this case because of the high level of
complaints that they received from Altima owners -- over 800 of
which contacted them directly -- and that they observed on online
complaint sites and in the local news media," the attorneys wrote
in the pending motion filed Oct. 14.  "Melting dashboards posed a
serious problem for many Altima owners.  Not only did they produce
a sticky mess, the glare produced by melted dashboards often
impaired drivers' vision."

The parties reached a settlement about a week before their
calendar call, striking a deal in which Nissan would cover most of
the $1,500-$2,000 required to replace each deteriorating
dashboard, while class members would each pay about $250.  They
were unclear as to the number of affected vehicles, valuing the
settlement from $5.3 million to $59.3 million.

The requested fees would amount to about 25 percent of the low end
of award -- reflecting the 11th Circuit's benchmark for awarding
fees -- and about 2.3 percent of the settlement's highest
potential value.

Plaintiffs attorneys also requested a service award to compensate
named plaintiffs for the time and effort required to bring suit on
behalf of others. In one instance, Sanborn allowed class counsel
to cut chunks from her dashboard to send for expert analysis.

"She is still driving around with holes patched with surgical
tape," according to the motion.

Miami lawyers John Carl Seipp Jr. --
john.seipp@bowmanandbrooke.com -- and Donald Blackwell --
don.blackwell@bowmanandbrooke.com -- of Bowman and Brooke
collaborated with Jenner & Block attorneys Daniel Welsh --
dwelsh@jenner.com -- Devi Rao -- drao@jenner.com -- Peter Brennan
-- pbrennan@jenner.com -- and Elin Park -- EPark@jenner.com -- to
represent Nissan.  They did not immediately respond to requests
for comment.

The joint settlement motion filed on Oct. 17 is pending before
Judge Moore.

NORTHERN RESOLUTION: Sued Over "Massive" Debt Collection Scheme
Joel Stashenko, writing for Law.com, reports that a Buffalo-based
debt collection company improperly threatened legal action against
millions of consumers nationally, added unauthorized charges to
bills, and engaged in other practices outlawed by federal and
state laws in a "massive" scheme, a federal suit filed the Nov. 2

The Western District complaint was brought jointly by state
Attorney General Eric Schneiderman's office and the Consumer
Financial Protection Bureau against entities operated by
Douglas MacKinnon and Mark Gray.

"Our lawsuit asserts that millions of consumers were harassed,
threatened, and deceived as part of a massive scheme to collect
inflated debts," said CFPB Director Richard Cordray in a news

The suit, Consumer Financial Protection Bureau v. MacKinnon,
alleges the pair operated under the names Northern Resolution
Group, Enhanced Acquisitions, Delray Capital and as many as 60
related entities, attempting to collect debts that
Messrs. MacKinnon and Gray had acquired from others.

Among the prohibited practices, the complaint alleged, was adding
$200 to each debt the company acquired, regardless of the state
debtors lived in; using "spoofing" technologies to make it appear
as if their calls were coming from government agencies or courts;
and falsely accusing consumers of committing crimes and
threatening them with immediate arrest.

Among the laws the complaint says the companies violated are the
Fair Debt Collection Practices Act and the Consumer Protection Act
and New York state debt-collection and business statutes.

The actions ask the court to order the companies to halt abusive
practices, pay civil penalties and reimburse consumers who were
abused by their practices or paid illegal charges on debts.

The complaint was prepared by Stefanie Isser Goldblatt and Jade
Burns of the Consumer Financial Protection Bureau in Washington,
D.C., and Assistant Attorney General James Morrissey in Buffalo.

A message left at a number for the Northern Resolution Group was
not returned.

PAPA JOHN'S: Judge Approves Sales Tax Class Action Settlement
Heather Isringhausen Gvillo, writing for Madison-St. Clair Record,
reports that Madison County Circuit Judge Andreas Matoesian
granted final approval of a settlement in a class action alleging
Pape John's Pizza wrongly charged sales tax on delivery fees.

Judge Matoesian granted the settlement on Oct. 14.

Plaintiff Zachary Tucker filed a motion for final approval of the
class action settlement on Sept. 28 through attorneys
Tiffany Yiatras and Francis "Casey" Flynn Jr. of Carey Danis &
Lowe in St. Louis and Alan Wagner of Wagner McLaughlin in Tamp,

Larry Hepler -- lhepler@heplerbroom.com -- and W. Jason Rankin --
jrankin@heplerbroom.com -- of HeplerBroom in Edwardsville
represented Papa John's.

The class action settlement was preliminarily approved on May 6.

In the memorandum in support of his motion for final approval of
the settlement, Mr. Tucker's attorneys state that the defendants
"have denied, and continue to deny every allegation of liability,
wrongdoing, and damages, as they have substantial factual and
legal defenses to all class allegations and claims in the
Litigation.  Defendants have always maintained, and continue to
maintain, that sales taxes that are voluntarily paid by customers
and remitted to the State of Illinois are not recoverable under
Illinois law.

"Nonetheless, Defendants have concluded that because continuing to
defend the Litigation would be protracted and expensive, and would
present risks and uncertainties, including whether Plaintiff might
prevail on all or some of his claims at trial or on appeal, it is
prudent to fully and finally settle the Litigation on a class-wide
basis on the terms and conditions set forth in the proposed
Settlement Agreement."

The memorandum states that the proposed settlement provides
"significant benefits to the proposed class," including purchase
discounts on future delivery orders ranging from $1-$3.

The settlement agreement also provides "significant benefits to
the Settlement Class," including both monetary relief and
prospective business practice changes.

"The Settlement was reached after hard fought arms'-length
negotiations," the memorandum states.

Papa John's also ceased charging sales tax on delivery fees on
Oct. 1, 2015.  The defendant agreed not to resume the tax unless
it is required to do so by a change in governing tax laws or
regulations or is directed to do so by the Illinois Department of

"Plaintiff and Class Counsel submit that the Settlement is fair,
reasonable, and adequate, is in the best interests of the class,
and satisfies all of the criteria for final approval and class
certification under Illinois law," the memorandum states.

Mr. Tucker also seeks attorneys' fees and an award as class
representative not to exceed $2,000.

The settlement class is described as "any person or entity that
ordered Papa John's food or other products for delivery from a
Papa John's restaurant located in the State of Illinois, and who
was charged and thereafter paid sales tax on a delivery fee,
during the Settlement Class Period."

The case was originally filed in Madison County in May 2014 and
was later removed to federal court.  After two failed attempts to
remand to Madison County, the parties engaged in settlement
discussions and reached an agreement in principle to settle.

As part of the settlement, the federal court action was dismissed
on Sept. 23, 2015, and refiled in Madison County on Jan. 13.

Madison County Circuit Court case number 16-L-49

PETROBRAS: Appeals Court Hears Argument in Securities Case
Mica Rosenberg, writing for Reuters, reports that attorneys for
Brazil's state-controlled oil company, Petroleo Brasileiro SA,
asked a U.S. federal appeals court on Nov. 2 to decertify a class
of investors trying to recoup billions of dollars in losses
stemming from a sprawling corruption scandal.

Petrobras, as the company is known, and its bank underwriters
argued that it is not clear buyers and sellers of the company's
securities, traded on exchanges all around the world, were doing
transactions in the Unites States.  Only securities traded in the
United States can be included in the class action.

The attorneys also argued before the Second Circuit Court of
Appeals in New York that the plaintiffs had failed to adequately
show the news of the bribery and political kickback scandal in
Brazil had a downward effect on the company's stock price.

Petrobras wants to reverse a decision made in February by lower-
court Judge Jed Rakoff in Manhattan that certified two classes of
plaintiffs, saying their claims are similar enough to be pursued
as groups.

Class certification can make it easier for investors to recoup
larger sums than if they sued individually, though it does not
guarantee they will be recover.

Prosecutors in Brazil have accused former Petrobras executives of
accepting more than $2 billion of bribes over a decade, mainly to
from construction and engineering companies.  Petrobras has said
that it was a victim of the scheme by corrupt individuals.

The scandal has contributed to a plunge in Petrobras' market value
to below $20 billion from nearly $300 billion fewer than eight
years ago, according to Reuters data, and investors in the company
want a payout.

Jeremy Lieberman, an attorney at Pomerantz representing the
shareholders, argued that Judge Rakoff's decision was correct and
the district court would easily be able to "call balls and
strikes" to determine who should be included and left out of the

He also said there was a clear link between bad news about
developments in the Petrobras investigation in Brazil and a drop
in share price.

One class approved by Judge Rakoff bought various Petrobras
securities from January 2010 to July 2015 and will be led by
Universities Superannuation Scheme of Liverpool, England.  The
other bought debt securities from offerings in 2013 and 2014, and
is led by North Carolina's treasurer and the Employees' Retirement
System of Hawaii.

The case is In re: Petrobras Securities Litigation, U.S. District
Court, Southern District of New York, No. 14-09662.

PETROQUEST ENERGY: Faces Class Action Over Unpaid Royalties
Louie Torres, writing for Legal Newsline, reports that an Oklahoma
man is suing two energy companies, alleging failure to pay
royalties to him and a prospective class.

Kevin Hoog filed a class action complaint, individually and on
behalf of all others similarly situated, Oct. 25 in U.S. District
Court for the Eastern District of Oklahoma against Petroquest
Energy LLC and WSGP Gas Producing LLC, alleging breach of duty and

According to the complaint, Mr. Hoog suffered damages from not
being paid any royalties for the gas wells used by the defendants.
The plaintiff alleges the defendants used improper accounting
methods in order to avoid paying Mr. Hoog the correct amount of

Mr. Hoog seeks trial by jury, actual damages, interest,
compensatory damages and punitive damages, court costs and any
further relief the court grants.  He is represented by attorneys
Reagan E. Bradford and W. Mark Lanier of The Lanier Law Firm in

U.S. District Court for the Eastern District of Oklahoma Case
number 6:16-cv-00463-JHP

PHILIP MORRIS: Attorney Faces Sanction Over 5-Hour Deposition
Celia Ampel, writing for Law.com, reports that a Miami tobacco
defense attorney was sanctioned for wasting a witness' time during
a deposition -- a practice the judge said "gives the entire bar a
black eye."

Luis Suarez of Boies, Schiller & Flexner spent five hours
questioning a smoker's treating oncologist in a Brevard Circuit
Court wrongful death case.

Plaintiffs counsel complained Suarez, representing Philip Morris
USA, spent two of those hours asking about treatment that happened
before the doctor saw the patient.  He then asked for four more
hours to complete the deposition. Counsel for the other defendant,
R.J. Reynolds Tobacco Co., did not have a chance to ask the
witness any questions.

Brevard Circuit Judge Charles Roberts granted defense counsel two
more hours of deposition time: one for Suarez and one for R.J.
Reynolds' lawyer.  But as sanctions, the judge ruled the defense
must pay attorney fees for the additional two hours, including
travel expenses.  "The word needs to go out to the entire bar that
these things cannot be countenanced by the court and they make us
all look bad," Judge Roberts said in an Oct. 26 hearing in Viera,
near Melbourne.

Mr. Suarez did not respond to requests for comment by deadline.

The ruling came after plaintiffs counsel filed a motion to prevent
any further deposition of the oncologist, Dr. Lee Scheinbart of
Melbourne.  Laura Shamp -- shamp@ssjwlaw.com -- of Shamp Speed
Jordan Woodward in Atlanta, who represents plaintiff Abagail
Dubinsky, wrote Mr. Suarez was "harassing, intimidating and
condescending to the doctor."

Sanctions against tobacco defense lawyers are rare -- plaintiffs
lawyers often hesitate to raise issues that could distract from
getting a speedy trial for sick, elderly clients.  Ms. Shamp said
she usually tries to resolve disputes with opposing counsel
without involving the judge, but Mr. Suarez' behavior struck her
as particularly egregious.

Mr. Suarez interrupted and argued with Dr. Scheinbart and implied
he wasn't answering questions truthfully, she said.

"He asked the witness four times during the course of the
deposition whether he understood he was under oath," Ms. Shamp
said. "This is a fellowship-trained oncologist."

Mr. Suarez' co-counsel, Scott Kaiser -- skaiser@shb.com -- of
Shook, Hardy & Bacon in Kansas City, Missouri, told the judge
"there's no question" the deposition took longer than it needed
to.  But, he said, that was primarily because Dr. Scheinbart did
not review all 87 pages of his now-deceased patient Paul
Dubinsky's medical records before the deposition.

Mr. Kaiser, who did not respond to a request for comment, told the
judge Mr. Suarez needed to ask Dr. Scheinbart about the patient's
previous treatment because of a key question in the case: whether
Mr. Dubinsky died of skin cancer or of chronic obstructive
pulmonary disease.

Dr. Scheinbart signed the death certificate, listing COPD as
Dubinsky's cause of death, with skin cancer as a contributing
factor.  Dr. Scheinbart treated Mr. Dubinsky for skin cancer in
the last eight months of the patient's life.

"Some of the questions about his earlier treatment are simply to
explore what does he know about Mr. Dubinsky -- before Mr.
Dubinsky comes in his care and treatment, what does he know Mr.
Dubinsky's COPD or what does he not know," Mr. Kaiser said during
the hearing.

Judge Roberts didn't find the explanation convincing.  He ruled
the deposition "certainly" could have been wrapped up in five

"I'm going to have to agree with the plaintiff that the manner the
deposition was taken was inappropriate, and that it was a waste of
time in some respects," the judge said.  "I realize it needs to be
a discovery deposition, but it is this type of practice that gives
the entire bar a black eye."

PRE-EMPLOY.COM: "Marchioli" Suit Transferred to C.D. Cal.
District Judge Morrison C. England, Jr., of the Eastern District
of California granted defendant's motion to transfer venue, in the
2:16-cv-01115-MCE-AC (E.D. Cal.)

Defendant Pre-Employ.com, Inc. is a corporation incorporated in
California with its principal place of business in Redding,
California.  Marc Marchioli, a resident of Pittsburgh,
Pennsylvania, applied for employment with defendant Eisenhower
Medical Center (EMC), a not-for-profit corporation incorporated in
California, with its principal place of business in Rancho Mirage,
California. As part of the application process, Marchioli was
required to submit to a background check performed by defendant

On May 23, 2016, Marchioli filed a class action complaint in the
Eastern District of California against defendants Pre-Employ.com,
EMC, and Does 1 through 10, alleging that defendants violated
certain requirements of the Fair Credit Reporting Act (FCRA), 15
USC Section 1681a et seq., thereby also violating California's
Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Section 17200
et seq. Plaintiff alleges that all defendants violated the FCRA
and UCL by improperly investigating, preparing, procuring, or
causing procurement of credit or consumer reports of plaintiff and
class members without providing proper notice, making the proper
disclosures, or obtaining the proper authorizations or

Defendant EMC filed a motion to transfer venue to the Central
District of California. EMC argues that the Central District has a
greater interest in ensuring that its local businesses comply with
the law because "at the heart of this action is alleged conduct by
EMC and its employees.

Judge England granted EMC's motion to transfer venue, stating that
the convenience of the parties tips in favor of transfer because
the plaintiff's choice of forum is given little weight under the
circumstances, and both venues are equally inconvenient to
plaintiff, that the transfer is likely more convenient to a
greater number of plaintiff class members and the only party
likely to be inconvenienced by transfer has expressed its consent.

A copy of Judge England's memorandum and order dated November 3,
2016, is available at https://goo.gl/oFWs0V from Leagle.com.

Marc Marchioli, Plaintiff, represented by Anna Marie Rossi --
amrossi@amrossilaw.com -- Duncan Scott MacDonald --
dmacdonald@ardmlaw.com -- at Rossi & Macdonald, APC; Edward Zusman
-- ezusman@mzclaw.com -- Kevin Karwing Eng -- keng@mzclaw.com --
at Markun Zusman Freniere & Compton LLP

Pre-Employ.Com, Inc., Defendant, represented by Lawrence Borys --
lawrence.borys@rmkb.com -- Timothy James Lepore --
timothy.lepore@rmkb.com -- at Ropers Majeski Kohn & Bentley

Eisenhhower Medical Center, Defendant, represented by Adam Ryan
Rosenthal -- arosenthal@sheppardmullin.com -- Nancy E. Pritikin --
npritikin@sheppardmullin.com -- at Sheppard Mullin Richter &
Hampton LLP

S2VERIFY: $1.09MM Settlement in "Hawkins" Preliminarily Approved
In the case, REGMON L. HAWKINS, individually and on behalf of all
others similarly situated, Plaintiff, v. S2VERIFY, a foreign LLC,
Defendant, No. C 15-03502 WHA (N.D. Cal.), District Judge William
Alsup granted the parties' motion for preliminary approval of an
amended proposed settlement agreement that narrows the Defendant's
scope of release.

The proposed settlement agreement would release the Defendant from
only the surviving class claims in the case, namely, claims under
sections 1681c and 1681n of Fair Credit Reporting Act (FCRA)
arising out of class members' consumer reports prepared by the

The parties' joint motion indicates "Class Counsel will request an
attorneys' fees award of 25% of the Settlement Fund," and "a
service award of $1,000" for lead plaintiff Hawkins.

The proposed settlement agreement provides for a settlement fund
of $1,090,750.  Divided among the estimated 4,363 class members,
this amounts to approximately $250 per class member prior to
deductions for the proposed attorneys' fees, service award, and
costs of settlement administration.  After deductions, each class
member would receive a payout of approximately $172.

The final approval hearing of the case shall take place on
February 9, 2017.

A copy of the Court's Order dated November 4, 2016 is available at
https://goo.gl/NRRGOL from Leagle.com.

Regmon L. Hawkins, Plaintiff, represented by Devin Heng Fok --
devin@devinfoklaw.com -- DHF Law P.C..

Regmon L. Hawkins, Plaintiff, represented by Benjamin Charles
Wickert, Caddell and Chapman & Michael A. Caddell --
mac@cadellchapman.com -- Caddell & Chapman.

S2Verify, Defendant, represented by Brian H. Gunn --
bhgunn@wolfewyman.com -- Wolfe & Wyman LLP, Pamela Quigley Devata
-- pdevata@seyfarth.com -- Seyfarth Shaw LLP, pro hac vice &
Andrew An Bao -- aabao@wolfewyman.com -- Wolfe & Wyman LLP.

SAFEWAY INC: Court Grants Summary Judgment in TCPA Class Action
Julie D. Hoffmeister, Esq. --julie.hoffmeister@troutmansanders.com
-- and David N. Anthony, Esq. -- david.anthony@troutmansanders.com
-- of Troutman Sanders LLP, in an article for Mondaq, report that
on October 11, 2016, the District Court for the Northern District
of California granted summary judgment to Safeway, Inc. in a
Telephone Consumer Protection Act (TCPA) putative class action
arising from the receipt of prerecorded telephone messages
promoting Safeway's flu shots.

Plaintiff first received a seasonal flu shot from Safeway in 2014.
In connection with her flu-shot visit, Plaintiff completed a
Consent and Release form, where she provided her cell phone number
to Safeway.  Later, Safeway contacted their existing pharmacy
patients, including Plaintiff, to remind them to get a flu shot
for the new flu season.  Plaintiff subsequently filed suit against
Safeway alleging that the flu shot reminders violated the TCPA.

Safeway requested summary judgment on three alternative grounds:
(1) Plaintiff gave Safeway prior express consent to call her cell
phone about the flu shots; (2) the flu shot calls are exempt from
the TCPA as emergency calls; and (3) the flu shot calls fall
within the FCC's 2015 exemption from the TCPA for certain exigent
health care calls not charged to the called party.  The Court
granted summary judgment based on grounds (1) and (3).

As to the first ground, the Court held that the flu shot call
delivered a "health care" message and was within the scope of
Plaintiff's prior express consent.  "[E]very reasonable trier of
fact would have to find that Safeway's flu shot reminder calls to
Plaintiff for future flu seasons bear sufficient relation to the
original reason for which Plaintiff provided her number -- namely,
for her to receive flu shots from Safeway[.]"

With respect to the third ground, the Court concluded that "every
reasonably trier of fact would have to find that the flu shot
calls qualify for the Exigent Healthcare Treatment Exemption"
under the TCPA, which exempts certain wellness checkup calls from
the TCPA's consent requirement.

The Troutman Sanders' Consumer Financial Services Law Monitor blog
offers timely updates regarding the financial services industry to
inform you of recent changes in the law, upcoming regulatory
deadlines and significant judicial opinions that may impact your

SAMSUNG ELECTRONICS: Fails to Address Note 7 Issues Promptly
Miriam Rozen, writing for Law.com, reports that although the
cellular world moves fast, Samsung Electronics has taken too much
time to address reports that multiple generations of its devices'
batteries overheat and pose a danger, according to a plaintiffs'
lawyer who filed one of the most recent in a string of lawsuits
filed against the Seoul, Korea-based maker of smartphones.

"My view is that Samsung has swept these problems under the rug.
They first surfaced five years ago.  But Samsung has dragged their
feet and caused consumers to have a false sense of security," said
Frank Pitre -- fpitre@cpmlegal.com -- of Cotchett, Pitre &
McCarthy in the San Francisco Bay Area said.

His clients' complaint, filed in a Northern California federal
court alleges that a Samsung Galaxy S6 -- not a Galaxy
Note 7, the model that is the subject of previously filed lawsuits
-- exploded on a dresser while the family slept. Instead of fixing
the problem with the phone, Samsung Electronics merely replaced
the device, the complaint alleges.  Samsung was aware based on
consumer complaints of the overheating problems of multiple
generations of Galaxy phones, the complaint alleges.  But the
company has concealed the problems and marketed the Galaxy S6 as
"indestructible and better than ever," the complaint alleges.

Samsung Electronics' representatives did not respond to multiple
requests for comment for this article.

On Oct. 11, the company's New Jersey-based subsidiary announced it
was expanding a voluntary recall of the Galaxy Note 7 to include
all original and replacement Galaxy Note 7 devices sold or
exchanged in the United States before and after an initial mid-
September recall.  The company also reported that it has halted
production of the Galaxy Note 7.

"We appreciate the patience of our consumers, carrier and retail
partners for carrying the burden during these challenging times.
We are committed to doing everything we can to make this right,"
Tim Baxter, president and chief operating officer, Samsung
Electronics America, said in written statement.

The company offered $100 credit for another Samsung Electronics
smart phone, or $25 credit if consumers opted for an alternative
brand phone.

In mid-September, close to the timing of Samsung Electronics'
initial recall, a plaintiff filed in a New Jersey state court most
likely the first lawsuit against smartphone maker about the
allegations related to a Galaxy S7 Edge.  In that case, the
plaintiff alleged his device had exploded in his pants pocket and
left him with third degree burns.

According to the allegations in his complaint, drafted by lawyers
from New Jersey's Simon & Simon and Florida's Morgan & Morgan, the
plaintiff burned his fingers as he removed the phone, and, after
his clothes caught fire, was left with third-degree burns on his
thigh that required skin graft surgery.

So far, the only proposed class action apparently yet filed
against Samsung Electronics focuses on breach of warranty, breach
of good faith and common law fraud claims.  The proposed class
action lawsuit is filed in a Newark, New Jersey federal court, by
a legal team led by Joseph Sauder in the Berwyn, Pennsylvania,
office of McCune Wright.  The lawsuit asks the court to certify a
nationwide class of Note 7 buyers and it names three plaintiffs.
Sauder did not provide comments for this story by press time.
But the complaint his firm filed alleges that Samsung Electronics
failed to provide consumers with an adequate replacement when they
recalled the Galaxy Note 7 smartphones.

"[C]onsumers continued to incur monthly device and plan charges
from their cellular carriers for phones they could not safely
use," the complaint states.  Prospective class members have
"incurred millions of dollars in fees, and have otherwise been
harmed by Samsung's conduct," the complaint states.

Samsung Electronics must address questions broader than those
swirling about the Galaxy Note 7 model and its recall, according
to Mr. Pitre, whose clients filed the more recent complaint about
the Galaxy S6 model.

SAMSUNG ELECTRONICS: Folsom Law Firm Files Note 7 Class Action
Kathy Park, writing for KCRA 3, reports that a Folsom law firm
filed a class action lawsuit -- the first one in the nation --
identifying other Samsung phones as dangerous, beyond the Galaxy
Note 7, on Nov. 2.


-- Folsom attorney files class action lawsuit against Samsung
smartphones other than Note 7
-- Lawsuit cites S6 and S7 models, plus Note 5 as fire hazards
-- Suit applies to people who made purchases in California over
the last four years

Omar Atebar said he's a wary owner of a Samsung S7, a smartphone
he's had since April.  Despite warning signs of overheating, he
said he's stuck with the device.

"Because I don't want something to go haywire, I take the phone
physically off of the stand and I put it in front of my AC vent of
the car," Mr. Atebar said.  "I'm not a rich guy, I can't go fork
over hundreds of bucks for another one or an alternate model.  I
guess it is what it is."

He's part of the class action lawsuit, that seeks reimbursement
and a recall for several Samsung devices including: S6, S6 Edge,
S6 Active, S6 Edge+, S7, S7 Edge, S7 Active and Note 5.

"Those are the phones that have substantially similar lithium ion
batteries that exist in Note 7," attorney Gene Stonebarger said.
"Some of them have batteries even more powerful than the Note 7.
It's become clear that the problem extend beyond the Note 7."

Samsung announced plans in October to stop sales and production of
the model -- and issued a recall.

UC Davis Law School Dean Kevin R. Johnson said class action
lawsuits typically end in a settlement.  If the suit is certified,
consumers have the option to participate or opt out, he added.

"I think we're looking at a multi-year process and consumers
aren't going to hear much for a number of years," Mr. Johnson

Some people like Patterson resident Daniel Ramirez, who KCRA 3
profiled back in September, are filing a separate suit.  He said
his Galaxy S7 Edge melted in his pants, leaving him scarred
physically and emotionally.

"It was like a torch going off in my pocket," Mr. Ramirez said.

SAN FRANCISCO, CA: Faces Class Action Over Unfair Bail System
Caleb Pershan, writing for sfist, reports that a lawsuit filed by
Washington, DC-based civil rights nonprofit Equal Justice Under
Law almost exactly a year ago has a pretty good point about
San Francisco's unfair bail system, concedes City Attorney
Dennis Herrera, and he won't defend against the arguments of that
suit.  Those charges: San Francisco perpetrates a "wealth-based
pretrial detention scheme, which operates to jail some of San
Francisco's poorest residents solely because they cannot pay an
arbitrary amount of money."  The suit goes on to argue that that
would constitute a violation of the 14th amendment and its legal
assurances of due process and equal protection under the law.

The Equal Justice Under Law class-action suit was filed on behalf
of two local women and named the state and the city as defendants,
later adding Sheriff Vicki Hennessy, who was not yet at her
current post.  The claims against the city and state were
dismissed, but those against Hennessy remained, and the City
Attorney's Office acted as her legal counsel.  The class-action
suit was one in a series of several such legal actions aimed at
reforming bail systems around the country.  That push was
successful in smaller cities within Alabama, Kansas, Missouri,
Mississippi, and Louisiana, where municipal bail practices have
been altered.

"Keeping people locked up for no reason other than they can't
afford to post bail can have far-reaching consequences,"
Mr. Herrera said according to a press release.  "People lose their
jobs and their homes.  Families fall apart.  Taxpayers shoulder
the cost of jailing people who don't need to be there. In other
words, the current bail system is not just unconstitutional, it's
bad public policy."

Per Mr. Herrera's court filing on Nov. 1: "This two-tiered system
of pretrial justice does not serve the interests of the government
or the public, and unfairly discriminates against the poor.  It
transforms money bail from its limited purpose in securing the
appearance of the accused at trial into an all-purpose denial of
liberty for the indigent.  The sheriff is required to enforce the
state's law, and she will, unless and until its
unconstitutionality is established in the courts.  But she is not
required to defend it, and she will not."  In the past, Sheriff
Hennessy has observed that an estimated 80 to 85 percent of
inmates in city jails are awaiting trial.  Longer
pre-trial periods are associated with unemployment, lost housing,
and even considered a contributing factor to the nation's mass
incarceration epidemic.

In his own reform effort, District Attorney George Gascon was
trotting out an algorithmic approach this summer, a less arbitrary
method intended to counterbalance a person's pending charges, age,
rap sheet, and record of appearing in court.  "When we talk about
releasing people based on money, we are really ignoring the risk
that that person presents or does not present to public safety,"
Mr. Gascon explained.

SCHLUMBERGER TECH: "Mascagani" Suit Stays in Monroe Division, La.
Action No. 6:16-0439 (W.D. La.), Magistrate Judge Robert G. James
denied the Plaintiff's Motion to Transfer the suit from the Monroe
Division to the Alexandria Division of the Western District of

The Court held that the Plaintiff failed to demonstrate that a
transfer would be warranted for the convenience of parties and
witnesses and in the interest of justice. The Court further opined
that a transfer would unnecessarily delay the final resolution of
the matter.

A copy of the Court's Order dated November 2, 2016 is available at
https://goo.gl/DxOfsZ from Leagle.com.

Charles Mascagni, Plaintiff, represented by Jonathan H. Adams --
jadams@koeppelllc.com -- Koeppel Clark Turner.

Schlumberger Tech Corp, Defendant, represented by Robert P.
Lombardi -- rpl@kullmanlaw.com -- Kullman Firm, Geoffrey Andrew
Mitchell -- gam@kullmanlaw.com -- Kullman Firm & Sam Zurik, III
-- sz@kullmanlaw.com -- Kullman Firm.

STAFFING SOLUTIONS: $100,000 Settlement Has Preliminary Approval
Chief District Judge Michael J. Reagan of the Southern District of
Illinois, granted plaintiff's motions in the case HAROLD WYMS,
individually and on behalf of all others similarly situated,
Plaintiff, v. STAFFING SOLUTIONS SOUTHEAST, INC., Defendant, Case
No. 15-cv-0643-MJR-PMF (S.D. Ill.)

Staffing Solutions Southeast, Inc., which does business as
ProLogistix, is a staffing company that places workers into
temporary positions at various warehousing outfits and then pays
them for the temporary work done for those companies. It placed
Harold Wyms and a number of other forklift operators into jobs at
an Edwardsville facility operated by another company, but
allegedly didn't pay those workers enough for the time they worked
there -- the forklift operators were purportedly not paid for some
of the preparatory work done at the start of their shifts.

In 2015, Wyms filed a class and collective action complaint
against ProLogistix, alleging that its failure to pay Wyms and
other forklift operators for pre-shift work ran afoul of federal
and state law.

With the aid of Judge Frazier, the parties have settled the case,
and Wyms has submitted a motion for preliminary approval of the
state class settlement, a motion for approval of the Fair Labor
Standards Act settlement as to Wyms alone, a motion for notice
approval, and a motion to certify the state class for settlement.

The parties have agreed to settle the Illinois class members'
state law wage and hour claims through a settlement fund created
by ProLogistix in the amount of $100,000.00, inclusive of
attorneys' fees and costs, a service award to lead plaintiff Wyms,
payroll taxes on a portion of the award allocated to wage
recovery, and any administrative costs associated with the
settlement. The fund will be distributed to class members based on
an equitable formula linked to eligible weeks that each member
worked during the class period and wage rates earned during that
time period.

Chief District Judge Reagan granted plaintiff's motions. The court
certifies a class consisting of "all current and former forklift
operators employed by ProLogistix at the Edwardsville Facilities
from June 9, 2012 until October 28, 2016." Chief District Judge
Reagan appoints Harold Wyms as class representative, and appoints
Richard Paul, III, Jack McInnes, and Mark Potashnick as class

The court grants the motion for approval, and preliminarily
approves the settlement agreement. The determination is not final,
but rather permits cause to submit the settlement agreement to the
class members and to hold a final hearing to consider the fairness
of the settlement. In addition, the Court granted Wyms' motion for
individual approval of his Fair Labor Standards Act settlement.

The Court approves, subject to the modifications laid out, the
proposed notice and notice plan submitted by Wyms. Notice shall be
provided to the class members no later than November 28, 2016. The
Court orders any member of the settlement class who wishes to
exclude himself or herself from the settlement class to submit an
appropriate, timely request for exclusion, in accordance with the
terms set forth in the settlement agreement, postmarked no later
than January 30, 2017, to the settlement administrator at the
address on the notice. Any class member who does not submit a
timely, written request for exclusion from the settlement class
shall be bound by any order, judgment, or release entered in this
lawsuit as to the settlement.

Any settlement class member who wishes to object to the settlement
or appear at the final approval hearing must do so in accordance
with the procedures set forth in the settlement agreement.
Objections, notice, and written statements of appearance must be
filed no later than January 30, 2017. Any class member who does
not properly and timely object to the settlement in accordance
with the procedures set forth in the settlement agreement shall be
deemed to have waived such objection and shall be barred from
raising any objections to the fairness, adequacy, or
reasonableness of the terms of the settlement agreement; to
counsel's request for attorneys' fees; and to any other matters
pertaining to the settlement or to this lawsuit.

A final fairness hearing is set for March 23, 2017, at 9:30 a.m.
in the East Saint Louis Courthouse, to consider and finally
determine whether the settlement should be approved by the court
as fair, reasonable, and adequate; whether attorney's fees and
reimbursement of expenses should be awarded to class counsel; and
whether a final order and judgment should be entered. Papers in
support of the final approval of settlement and any application by
class counsel for an award of fees shall be filed with the Court
on or before February 23, 2017.

A copy of Judge Reagan's memorandum and order dated October 28,
2016, is available at https://goo.gl/RKbq3M from Leagle.com.

Harold Wyms, Plaintiff, represented by Richard M. Paul, III --
paul@paulmcinnes.com -- Jack D. McInnes -- mcinnes@paulmcinnes.com
-- at Paul McInnes LLP; Mark A. Potashnick -- at Weinhaus &
Staffing Solutions Southeast, Inc., Defendant, represented by
Gerald L. Maatman, Jr. -- gmaatman@seyfarth.com -- Jason J.
Englund -- Matthew J. Gagnon -- mgagnon@seyfarth.com -- Rebecca P.
DeGroff -- at Seyfarth Shaw LLP

STATE STREET: Court Approves $300MM Class Action Settlement
Labaton Sucharow LLP on Nov. 2 announced the final court approval
of a $300 million settlement with Boston-based financial services
company, State Street Corporation (State Street).  The Firm serves
as lead counsel on behalf of the plaintiff Arkansas Teacher
Retirement System (ATRS) in Arkansas Teacher Retirement System v.
State Street Corp. et al., No. 11-cv-10230 (D. Mass.). Two other
class actions alleging claims under the Employee Retirement Income
Security Act of 1974 (ERISA) were consolidated into this ATRS

Represented by Labaton Sucharow Chairman Lawrence A. Sucharow and
partners Eric J. Belfi, David J. Goldsmith, and Michael H. Rogers,
ATRS alleges that State Street and certain affiliated entities
misled members of the class in connection with certain foreign
currency exchange (FX) trades.  After surviving a motion to
dismiss, review and analysis of several million pages of
documents, consultation with experts, and multiple negotiation and
mediation sessions, the parties came to an agreed-upon settlement.
State Street also separately entered into agreements with the U.S.
Department of Justice (DOJ), the U.S. Securities and Exchange
Commission (SEC), and the U.S. Department of Labor (DOL) for a
total of $530 million.

"We're gratified that Judge Wolf has granted final approval to
this extraordinary cash settlement, and we look forward to seeing
the proceeds of the settlement distributed to members of the
class," Mr. Goldsmith remarked after the settlement hearing.
"We're also gratified that the court recognized the efforts of our
client, the Arkansas Teacher Retirement System, which took a risk
and stepped forward to right a perceived wrong."

George Hopkins, Executive Director of ATRS, stated, "The Arkansas
Teacher Retirement System represents the retirement security for
the educators of Arkansas. ATRS is focused on protecting the trust
fund that ensures that retirement security.  Labaton Sucharow is a
top-notch firm that continuously impressed me during this
litigation.  The Firm's team worked effectively and tirelessly to
obtain quality results for the class."

SWIFT TRANSPORTATION: "Nilsen" Class Suit in Calif. Remains Stayed
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the class
action lawsuit by Thor Nilsen remains stayed.

On October 15, 2015, a class action lawsuit was filed in the
Superior Court of California, County of Riverside: Thor Nilsen v.
Swift Transportation Co. of Arizona, LLC (the "Nilsen Complaint").
The Nilsen Complaint alleges violations of California law similar
to the Burnell, Rudsell, Peck, Mares, and McKinsty Complaints. On
December 9, 2015, upon motion by Swift, the matter was removed to
the California Court, Case No. 15-CV-02504-VAP. The Nilsen
Complaint was stayed January 29, 2016, pending resolution of the
earlier filed cases.

No further updates were provided in the Company's SEC report.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: "Christopher" Suit Proceeds to Discovery
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the class
action lawsuit by Theron Christopher is expected to move into

On July 8, 2016, a class action lawsuit was filed by Theron
Christopher on behalf of himself and all other similarly-situated
persons against Swift Transportation Co. of Arizona, LLC, in the
Superior Court of California, County of Riverside (the
"Christopher Complaint"). The plaintiff purports to represent all
current and former employees employed by Swift in California and
alleges that Swift violated California law by failing to timely
pay wages and failing to reimburse employees for business
expenses. The matter is in its initial phases and is expected to
move into discovery.

The Company retains all of its defenses against liability and
damages. The Company intends to vigorously defend against the
merits of these claims and to challenge certification. The final
disposition of this case and the impact of such final disposition
of this case cannot be determined at this time.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: "Fritsch" Suit Over Yard Hostlers Amended
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that Grant
Fritsch amended his complaint to clarify the class he was seeking
to represent a class of individuals employed by Swift as yard
hostlers in California.

On January 28, 2016, a class action lawsuit was filed by Grant
Fritsch, individually and on behalf of all other similarly-
situated persons against Swift Transportation Services, LLC and
Swift Transportation Company in the Superior Court of California,
County of San Bernardino (the "Fritsch Complaint"). The plaintiff
worked for Swift as a yard hostler and purports to represent a
class of "non-exempt maintenance and service employees" of Swift
Transportation Services, LLC and/or Swift Transportation Company.

The Fritsch Complaint alleges that Swift failed to pay overtime
and doubletime wages required by California law, failed to provide
proper meal and rest periods, failed to provide accurate itemized
wage statements, and failed to timely pay wages upon separation
from employment. The Fritsch Complaint also includes a claim under
the Private Attorneys General Act.

The Company filed a motion to dismiss based upon the wrong party
being named in the lawsuit, and the plaintiff agreed to amend the
complaint, which was served June 17, 2016.

On August 30, 2016, the plaintiff again amended his complaint to
clarify the class he was seeking to represent a class of
individuals employed by Swift as yard hostlers in California.

The Company retains all of its defenses against liability and
damages. The Company intends to vigorously defend against the
merits of these claims and to challenge certification. The final
disposition of this case and the impact of such final disposition
of this case cannot be determined at this time.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: Barker et al. Class Suit in Discovery
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the class
action lawsuit by Bill Barker, Tab Bachman, and William Yingling
is expected to move into discovery.

On April 1, 2016, a class action lawsuit was filed by Bill Barker,
Tab Bachman, and William Yingling, on behalf of all other
similarly-situated persons against Swift Transportation Company of
Arizona, LLC, in the Superior Court of California, County of
Sacramento (the "Barker Complaint"). The Barker Complaint alleges
that Swift failed to pay minimum wage and overtime, failed to
reimburse for business expenses, failed to provide proper meal and
rest periods, failed to provide accurate itemized wage statements,
and failed to timely pay wages upon separation from employment.

On July 5, 2016, upon motion by Swift, the matter was removed to
the United States District Court for the Eastern District of
California, Case No. 2:16-CV-01532-TLN-CKD. The matter is in its
initial phases and is expected to move into discovery.

The Company retains all of its defenses against liability and
damages. The Company intends to vigorously defend against the
merits of these claims and to challenge certification. The final
disposition of this case and the impact of such final disposition
of this case cannot be determined at this time.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: "Castro" Class Action in Discovery Stage
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the
parties in the class action lawsuit by Salvador Castro are in

On May 11, 2016, a collective and class action was filed by a
former Swift customer service representative level four ("CSR
IV"), Salvador Castro, individually and on behalf of herself and
all similarly-situated persons against Swift Transportation Co. of
Arizona, LLC in the United States District Court for the Central
District of California, Case No. CV 16-3232 (the "Castro
Complaint"). The operative complaint alleges failure to pay
overtime under the FLSA, as well as California state law claims
including failure to pay timely final wages, failure to provide
meal and rest periods, failure to pay overtime, and violation of
the unfair competition. So far five plaintiffs have opted in to
the lawsuit. The matter is in its initial phases and the parties
are conducting discovery.

The Company retains all of its defenses against liability and
damages. The Company intends to vigorously defend against the
merits of these claims and to challenge certification. The final
disposition of this case and the impact of such final disposition
of this case cannot be determined at this time.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: To Challenge Certification of "Julian" Case
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the
company intends to challenge certification of the Arizona Fair
Labor Standards Act Class Action Litigation by Pamela Julian.

On December 29, 2015, a class action lawsuit was filed by Pamela
Julian, individually and on behalf of all other similarly-situated
persons against Swift Transportation, Inc., et al. in the United
States District Court for the District of Delaware, Case No. 1:15-
CV-01212-UNA (the "Julian Compliant"). The Julian Complaint
alleges that Swift violated the FLSA by failing to pay its trainee
drivers minimum wage for all work performed and by failing to pay

On February 29, 2016, upon Stipulation of the Parties, the court
transferred the case to the United States District Court for the
District of Arizona, Case No. 2:16-CV-00576-ROS. On March 9, 2016,
Swift filed a motion to dismiss the plaintiffs' overtime claims,
which was granted by the District Court on May 31, 2016.

The Company retains all of its defenses against liability and
damages for the remaining claims. The Company intends to
vigorously defend against the merits of these claims and to
challenge certification. The final disposition of this case and
the impact of such final disposition of this case cannot be
determined at this time.
Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: Slack et al. Action in Discovery Stage
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the
parties in the Washington overtime class actions by Troy Slack, et
al. are in discovery.

On September 9, 2011, a class action lawsuit was filed by Troy
Slack and several other drivers on behalf of themselves, and all
similarly-situated persons, against Swift Transportation: Troy
Slack, et al. v. Swift Transportation Co. of Arizona, LLC and
Swift Transportation Corporation in the State Court of Washington,
Pierce County (the "Slack Complaint"). The Slack Complaint was
removed to the United States District Court for the Western
District of Washington (the "Court") on October 12, 2011, case
number 11-2-114380. The putative class includes all current and
former Washington state-based employee drivers during the three-
year statutory period prior to the filing of the lawsuit, and
through the present, and alleges that they were not paid minimum
wage and overtime in accordance with Washington state law and that
they suffered unlawful deductions from wages.

On November 23, 2013, the court entered an order on the
plaintiffs' motion to certify the class. The court only certified
the class as it pertains to "dedicated" drivers and did not
certify any other class, including any class related to over-the-
road drivers.

On September 2, 2015, new counsel was appointed for the plaintiffs
and on November 16, 2015, new legal counsel was substituted for
the Company. As a result of the substitution of counsel for both
parties, the court extended all existing dates by ten months.

On April 1, 2016, the court entered an order approving the
plaintiffs' proposed class notice. The matter is now in discovery.

The Company retains all of its defenses against liability and
damages. The Company intends to vigorously defend against the
merits of these claims and to challenge certification. The final
disposition of this case and the impact of such final disposition
of this case cannot be determined at this time.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: "Hedglin" Action to Proceed in Discovery
Swift Transportation Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 1, 2016,
for the quarterly period ended September 30, 2016, that the
parties in the class action lawsuit by Julie Hedglin are expected
to move into discovery.

On January 14, 2016, a class action lawsuit was filed by Julie
Hedglin, individually and on behalf of all others similarly
situated against Swift Transportation Co. of Arizona, LLC in the
State Court of Washington, Pierce County (the "Hedglin
Complaint"). The Hedglin Complaint was removed to the Court on
February 18, 2016, 3:16-CV-05127-RJB. The putative class includes
all current and former Washington heavy haul drivers and alleges
the class was not paid for meal and rest periods, was not paid for
overtime, was not paid all wages due at established pay periods,
and was not provided accurate wage statements. The matter is in
its initial phases and is expected to move into discovery.

The Company retains all of its defenses against liability and
damages. The Company intends to vigorously defend against the
merits of these claims and to challenge certification. The final
disposition of this case and the impact of such final disposition
of this case cannot be determined at this time.

Swift is a transportation solutions provider, headquartered in
Phoenix, Arizona. As of September 30, 2016, the Company's fleet of
revenue equipment included 19,157 tractors (comprised of 14,380
company tractors and 4,777 owner-operator tractors), 62,727
trailers, and 9,131 intermodal containers. The Company's four
reportable segments are Truckload, Dedicated, Swift Refrigerated,
and Intermodal.

SWIFT TRANSPORTATION: Adds Reserves Due to Pending FLSA Case
Transport Topics reports that Swift Transportation reversed course
after reporting third-quarter earnings were up 4.7%
year-over-year to $38 million on Oct. 24, lowering the number to
$24 million, or a 34% decline lower than a year ago.

The Phoenix-based company wrote in a letter to investors Nov. 1
that pending litigation forced it to add $22 million in legal
reserves, lowering earnings before tax and interest.

As a result, Swift also will pay $8 million less in taxes and thus
the total impact is a $14 million decline in overall earnings.

"Subsequent to the issuance of our letter to the stockholders, but
prior to the filing of our quarterly report on form 10-Q with the
Securities and Exchange Commission, we received new, unfavorable
information regarding certain litigation that was outstanding as
of September 30, 2016, related to our Swift Refrigerated segment,"
the company said.

The company is referring to the Utah Collective and Individual
Arbitration, according to Co-CEO Richard Stocking.  Former
employees Gabriel Cilluffo, Kevin Shire and Bryan Ratterree filed
a class-action lawsuit against Central Refrigerated Service in
June 2012, alleging that they were misclassified as independent
contractors rather than employees and thus violated the Fair Labor
Standards Act.

The U.S. District Court ordered the case into arbitration, which
affected more than 3,000 owner-operators who leased a vehicle from
subsidiary Central Leasing Inc. on or after June 1, 2009.  When
Swift bought Central Refrigerated, it became defendants in the

"On October 26, 2016 the arbitrator assigned to the case ruled
that approximately 1,300 Central Refrigerated drivers involved in
the collective arbitration have been misclassified as independent
contractors and that they should have been compensated as
employees," according to a Swift spokesperson.

An attorney for the plaintiffs couldn't be reached for comment.

The legal reserve reduced earnings per share a dime to 18 cents,
from the 28 cents it reported on Oct. 24.  That compares with
year-ago earnings of $36.2 million, or 25 cents.

The new projections don't affect the $1.01 billion in overall
revenue, or the revenues for the truckload, dedicated,
refrigerated and intermodal segments.  However, the lawsuit
deteriorated the operating ratio from 123.8 to 127.  The overall
operating ratio, or the company's operating expenses as a
percentage of revenue, deteriorated to 94 from 91.7.  An operating
ratio greater than 100 means there were more expenses than
revenues, resulting in a net loss, rather than net income.

The truckload unit, Swift's largest division, reported a 4.2% drop
in revenue to $469 million after fuel surcharges were removed.
Weekly revenue per truck fell to $3,460 from $3,492 one year ago.
Total loaded miles decreased 1.8%.  Swift Refrigerated revenues
dropped 8.6% to $85 million.  Loaded miles fell 4.1% because the
company said some shippers took advantage of a low spot market
rates.  But the company said prices in both the truckload and
refrigerated markets should rebound soon.

"It seems as if they both have bottomed based in what we're
seeing, rates have been pressured in both, but do not appear to be
dropping further," Co-CEO Jerry Moyes said.

Dedicated contract carriage revenue climbed 8.9% to $234.4
million, and weekly revenue per tractor was up 8.1% to $3,603.

Intermodal revenue dropped 8.6% to $92.3 million, and intermodal
loads dropped 7% because of difficulty securing freight without
compromising on price, the company said.

Swift, which ranks No. 6 on the Transport Topics Top 100 list of
the largest U.S. and Canadian for-hire carriers, also lowered
full-year earnings 11 cents to between $1.09 and $1.19 from $1.20
to $1.30 due to the litigation.

TAISHAN GYPSUM: Chinese Drywall Class Action Stalls
Christopher O'Donnell, John Martin and Sara DiNatale, writing for
Tampa Bay Times, report that sulfurous fumes seep from the walls
of Valentine Hendrix's home, slowly attacking her appliances and
light fixtures, her lungs and sinuses.

It's been that way for almost nine years.

In 2008, Ms. Hendrix's family was one of 12 poor black families
encouraged by the Tampa Housing Authority to become first-time
home buyers in east Tampa.  With down payment help from federal
and city grants, they took out mortgages for new homes that cost
up to $175,000.

But the homes were built with tainted Chinese drywall, the same
material that marred an estimated 100,000 U.S. homes built during
last decade's boom and bust.  Within months, light fixtures and
wall sockets stopped working.  Air-conditioning units kept
breaking down.

The toll was human, too, with residents complaining of headaches,
rashes, nosebleeds and breathing difficulties.

After the problems came to light, the developer and the Housing
Authority argued over who was responsible.  They still disagree
today.  Meanwhile, a class-action lawsuit against the Chinese
drywall manufacturer has stalled.

With no help in sight, eight of the 12 families eventually walked
away from their homes, their credit ratings ruined.

The rest remain, stuck making hefty mortgage payments on virtually
worthless homes, still fearing for their health and future.

Ms. Hendrix, 51, is one of them, working two jobs to afford her
$800 monthly payment.

She rides the bus to Tampa General Hospital for an eight-hour
shift as a therapy rehab technician.  Twice a week, she scrambles
across the bridge from Davis Islands to a second job at an
assisted living facility where her shift doesn't end until 11 p.m.

All that hard work and eight years of payments have gotten her to

She still owes $79,000 on her two-bedroom bungalow.

The home is valued at just $6,000.

Won't give up

But she won't give up on the place where her grandchildren learned
to walk and where she wants to bring her 90-year-old mother to
live out her days.

So Ms. Hendrix stays, living without air conditioning, without a
working stove, without hope that things will get better.

"Sometimes I cry.  I got to work; I got to keep paying this
mortgage, paying these bills," she said.  "This is I what I worked
hard for.  I'm not going to walk away from my house."

The home in east Tampa's Belmont Heights neighborhood should have
been a second act for Hendrix, one made up of grandchildren and
retirement plans after raising four children as a single mother.

Most of her life was spent in Central Park Village, a blighted
public housing project within sight of the shiny skyscrapers of
downtown Tampa.

She was already pregnant with her first child, Tara, when she
graduated from Robinson High School. she juggled motherhood and
classes while studying for a criminal justice degree at
Hillsborough Community College.  Then her father died of cancer.

She left home but didn't go far -- an apartment in the same
housing project where she had three more children.

So she worked and raised her kids, imagining one day living in a
home where noise from adjoining apartments didn't intrude, a place
with its own yard and space to breathe.

Most of her kids were already grown before she got that chance
through a home ownership program offered by the Housing Authority.
It was aimed at public housing residents who, like her, had a
history of steady employment.

She took the mandatory twice-weekly classes in finance and home
maintenance, and qualified for a $52,500 grant from the city of
Tampa and a $30,000 federal grant.  To make up the rest of the
$165,000 asking price for the home on East 31st Avenue, she took
out an $89,000 mortgage.

She owed more money than she could picture but, finally, the roof
over her head was her own.  She said it felt special when she
turned the key in the door for the first time.

But she was opening the door to a real estate crash and a housing
health disaster, all wrapped into a home built by a company that
had already gone bankrupt.

Built with toxic walls

In most regards, the Belmont Heights project was a success.

Funded through a $35 million federal Hope VI grant, it replaced
College Hill Homes and Ponce de Leon Courts, two aging and
dilapidated public housing complexes.  Crime in the area fell and
the project won awards from the American Association of
Architects, among others.

The inclusion of single-family homes amid more than 800 low-rent
and Section 8 apartments was meant to give residents a stake in
their community.  The 12 homes were built on three different
streets but close together.  They had small front porches and
angular columns.

In all, almost $900,000 in tax dollars helped pay for the homes
built with toxic walls.

The Housing Authority hired Michaels Development Co. as master
developer of the project, leasing the land to the New Jersey

Michaels built the apartments but bid out construction of the
single-family homes to Banner Homes of Florida, a small family
company operating out of an office on Busch Boulevard.

Banner's main drywall supplier was Clearwater company Black Bear
Gypsum, said Dennis Mead, a Banner employee whose son David Mead
owned the firm.

At the time, many suppliers had turned to Chinese manufacturers to
keep up with the huge demand created by the housing boom and two
busy hurricane seasons, said Will Spates, principal of Indoor
Environmental Technologies, a Clearwater company that has
inspected hundreds of homes for toxic drywall.

No one was aware then of the sulfur emissions that blackened and
corroded copper coils and wiring and played havoc with smoke

As many as 30,000 Florida homes may have been affected, Spates

Banner Homes would likely have been found liable in court for
using tainted drywall, as happened to other home builders.

But that hope vanished for Hendrix and her neighbors in bizarre

In May 2007, Mr. Mead sold a controlling interest in his company
to James Harvey, a 64-year-old investor.  Mr. Harvey installed his
girlfriend, Martina Hood, a 30-year-old Russian-born real estate
agent, as company president and fired the Meads.

Months later, Banner filed for bankruptcy, long before any of the
residents were aware of the toxic drywall.  In the years that
followed, both Mr. Harvey and his girlfriend died, Mr. Hood after
a leap from her 29th-floor SkyPoint condo in downtown Tampa.

David Mead left the construction field to become a missionary
pilot.  He did not return calls for comment.

"Banner Homes is rather an unpleasant memory for him the way it
ended," said his father, Dennis Mead.

Most of the eight abandoned homes have been snapped up at cut-rate
prices by developers who have rehabbed them and rented them out.

At least three of them are used as Section 8 housing. That means
taxpayers paid to build the homes and are now helping to pay the

Excitement, then suffering

Tonia Grant was so excited to be moving into her own home in
Belmont Heights, she doodled designs on how she would lay out her

In 2008, with down payment assistance from the government, she
took out an $83,000 mortgage on a three-bedroom, two-bathroom home
just four doors down from Ms. Hendrix.

"I knew I would put my couch here, my TV here.  I had it all drawn
out," she said.  "That was the happiest packing I ever did in my

She first heard about the Chinese drywall from one of her
neighbors a few months after moving in. Then her air conditioning
unit broke.

She began to suffer from headaches and would leave the windows
open to get fresh air.  She had to pay for frequent repairs to the
air conditioner because of corrosion of its copper coils.

She lost her job as a data entry specialist for the city of Tampa
because she kept getting sick, she said.  It was when one of her
mirrors turned black that she decided she had to leave her home.

"That's when I got scared," she said.  "If it's doing this to the
mirror, turning it black inside, what is it doing to me and my

After five years of paying her mortgage, she let her home go into
foreclosure.  Her credit rating went from good to terrible.

Now 45, Ms. Grant is trying to rebuild her life.  She lives in an
apartment in Riverview and works at the Amazon warehouse in

"I thought that was my last chance to be a homeowner and it was
gone, it was completely gone, and all the work and money I had put
into it to make it the way I wanted was thrown out the window,"
she said.

Walking away from her home was equally traumatic for Diane Hicks,
who works as a cardiac monitor technician at Tampa General.

Inspectors found that 90 percent of her home was built with toxic

Her sinuses were often irritated and she had shortness of breath.
Later, she had an operation to have 3 inches of intestine removed.
It was black, she said.

After she moved out in 2010, the city of Tampa wrote to her saying
she would have to pay back the $55,000 in down payment assistance
since she did not stay there for at least five years.

She was able to persuade them to drop that, but moving out
resulted in her filing for bankruptcy and the repossession of her
car, she said.

Now 61, she still wants to one day own a home.

It seems a distant dream.

"I ran into depression because of that house," Hicks said.  "I
still haven't got my life back.  I still haven't recovered."

No one takes responsibility

While the public and private sector worked together on the Belmont
Heights project, neither wants to own the Chinese drywall problem.

Emails show that the Housing Authority knew about problems with
the drywall in 2011.  That year, it wrote a letter to Michaels
saying that as master developer it should accept responsibility, a
position chief operating officer Leroy Moore rejects to this day.

"We didn't sell the homes. We didn't build the homes," Mr. Moore
said.  "If there's more we could have done, I'd like someone to
look at that and tell us where."

But Michaels has refused to get involved, arguing that Banner
Homes should be liable. Michaels employs 1,800 people and manages
360 rental communities nationwide.

"We are sympathetic to these homeowners," said Laura Zaner, vice
president of marketing.  "We believe there is pending litigation
against the responsible parties -- Banner Homes and the Chinese
drywall provider.  Michaels has no involvement in this situation
other than the initial land development."

Officials at the city of Tampa, which contributed toward the down-
payment grants, heard about the drywall issue but said they were
not contacted for help.

Five years after the problem came to light, the Housing Authority
this summer decided to assist the four remaining families in
applying for an owner-occupier rehab grant that the city

It was the first contact most of the families had with the
authority for several years and came only after local black
activist Connie Burton repeatedly raised the plight of the
families at a Housing Authority board meeting.

The grant is unlikely to be enough.  The city has received almost
300 applications for the $1 million pot, and the maximum
individual award is $40,000.

The four families will get priority, officials said, but builders
estimate replacing drywall throughout a home could cost up to

"I'm not going to speculate on whether we've done enough," said
Thom Snelling, city director of planning and development.  "We're
doing as much as we're able to."

Courts are last hope

The residents' last hope for full compensation seems to lie in the

They are among 4,000 plaintiffs in a case filed in a Louisiana
federal court against Taishan Gypsum Co., the state-owned Chinese
drywall manufacturer.

A federal judge has ruled in the plaintiff's favor and banned the
company from working in the United States.  But China's Ministry
of Justice has refused to recognize the court's jurisdiction over
Chinese companies.

The legal stalemate could last for years, said Arnold Levin, a
lawyer with Levin Fishbein Sedran & Berman and lead counsel for
the plaintiffs.

Burton, the activist, put most of the blame on the Housing
Authority. It let the residents down by not pursuing compensation
from Michaels, she said.

She plans to keep pushing awareness of their plight until someone
steps up to help the last four families.

"These people believed in that process, and they were betrayed and
led astray," she said.

TESCO: Investors File Class Action Over Accounting Scandal
Ashley Armstrong, writing for The Telegraph, reports that Tesco
has been hit with a GBP100m legal claim from 125 institutional
investors who claim they lost money as a result of the
supermarket's accounting scandal two years ago.

The legal action, filed on Oct. 31, will seek to prove that the
grocer made "misleading statements to the stock market", which
investors relied upon by flattering its earnings.

The class action is being represented by Stewarts Law and is being
bankrolled by Bentham Europe, a firm that specialises in funding

The lawsuit is a setback to Tesco chief executive Dave Lewis's
attempts to put the darkest days of its accounting scandal behind
the company.

Around GBP2bn was wiped off Tesco's stock market value in
September 2014 after the company warned that it had uncovered
"serious issues" in its accounts.  The company was plunged into
its worst ever crisis and its market value tumbled by a further
GBP1bn one month later when Tesco reported a 92pc drop in interim
profits and admitted that the accounting hole had grown to
GBP263m, greater than expected.

THERANOS INC: Stockholder Sue Over Alleged Securities Fraud
Tom McParland, writing for Delaware Business Court Insider,
reports that a stockholder's recently unsealed complaint lays out
the "disturbing details" surrounding the collapse of blood
diagnostics company Theranos Inc., accusing its chief executive
and former president of committing securities fraud and
intentionally misleading investors into funding a now-abandoned
business model.

TRUMP UNIVERSITY: Motions Filed Ahead of November 28 Trial
Amanda Bronstad, writing for Law.com, reports that the gloves are
off not just in the presidential campaign but in the case over
Trump University, with lawyers on each side accusing the other of
gamesmanship ahead of this month's scheduled trial.

Such skirmishing is not new to the case, now six years old. But
the courtroom fights have increased in intensity as both sides
filed pretrial motions in October ahead of the Nov. 28 trial date.

Plaintiffs' lawyers at San Diego's Robbins Geller Rudman and Dowd
have accused Mr. Trump's legal team at O'Melveny & Myers of
attempting to "set up a trial by ambush," most recently by
introducing previously undisclosed witnesses and documents into
the case and dumping thousands of pages of exhibits on them.

"Defendant Donald Trump's defiant response to his clear violation
of this court's order confirms that his gamesmanship will continue
unless it results in some sort of meaningful consequence," wrote
plaintiffs attorney Jason Forge in a motion to strike a
declaration that had 1,584 pages of exhibits -- about 1,500 pages
more than allowed.

In court papers, Mr. Trump's lead lawyer, Daniel Petrocelli,
called the strike motion "disingenuous."  U.S. District Judge
Gonzalo Curiel struck the Trump team's declaration on Oct. 24 but
allowed for it to be refiled.

Forge declined to comment, and Mr. Petrocelli did not respond to a
request for comment.

But in court papers, plaintiffs' lawyers claim the lengthy
attachments come "right out of the same playbook" that Trump has
used in past matters to avoid going to trial.

In September, Mr. Petrocelli unsuccessfully sought to continue the
trial by at least another month because of a conflict with another

Plaintiffs' lawyers called the request a last-minute "tactical
decision" to cement a post-election trial date.  They also said
the request was filed with the hope of postponing a trial
indefinitely should Mr. Trump be elected president.

And in a pretrial motion, plaintiffs lawyers have asked the court
to prohibit Trump's team from bombarding them with dozens of
previously-undisclosed witnesses and documents.

Judge Curiel is set to hear pretrial motions on Nov. 10 -- two
days after the election.  Responses to pretrial motions are due
Nov. 1.

The case was filed by former students of Trump University who paid
$1,500 to $35,000 each for real estate seminars.  This month's
trial will focus on a first phase of liability to establish
whether prospective students in California, New York and Florida
were misled into believing that Donald Trump himself hand-picked
the instructors and that Trump University was an "accredited
university."  If Mr. Trump is found liable, a second phase would
determine damages.

Although a jury won't be seated until after the election, both
sides anticipate that the trial may become politically-charged.

Donald Trump's lawyers, for instance, don't want jurors to hear
about statements he's made on the campaign trail as the Republican
presidential nominee, including those he's made about the case, or
references to his "character or controversial behavior," according
to one pretrial motion.  Outside court,
Mr. Trump has repeatedly criticized Judge Curiel for his rulings
and said the Mexican heritage of the Indiana-born judge makes him

"Plaintiffs have no right to cross those lines in an attempt to
inflame and prejudice the jury," Mr. Petrocelli wrote.  "The court
must exercise extreme vigilance to prevent the passions and
prejudices from a partisan political process from impairing the
integrity of the trial."

Meanwhile, plaintiffs' lawyer have sought in a pretrial motion to
prohibit Trump from introducing their firm's ties to disgraced
attorney Bill Lerach, who pleaded guilty about a decade ago to
charges related to paying kickbacks to lead plaintiffs. Plaintiffs
attorney X.  Jay Alvarez noted that Trump has referred to class
action lawyers as "scam artists."

"Likewise, on numerous occasions, both in proceedings before this
court and in the media, defendants have demonstrated an apparent
desire to turn the trial into a referendum on plaintiffs,
plaintiffs' counsel, and purported 'lawyer-driven' litigation,'"
he wrote.

UBER TECHNOLOGIES: Sued Over Unauthorized Bank Account Debit
Louie Torres, writing for Legal Newsline, reports that a
California consumer is suing Uber, alleging the unauthorized
removal of funds from the plaintiff's bank account.

Janette Iniguez filed a class action complaint, individually and
on behalf of all others similarly situated, Oct. 24 in U.S.
District Court for the Northern District of California against
Uber Technologies, Inc. and Does 1-10, alleging they automatically
debited plaintiff's bank accounts without authorization.

According to the complaint, Iniguez suffered monetary damages
because the defendants debited the plaintiff's bank account
without her knowledge.

Iniguez seeks trial by jury, statutory damages of $1,000 per class
member, actual damages, court costs, interest and any further
relief the court grants.  She is represented by attorneys Todd M.
Friedman, Adrian R. Bacon and Meghan E. George of Law Offices of
Todd M. Friedman, P.C. in Woodland Hills, California.

U.S. District Court for the Northern District of California Case
number 3:16-cv-06126-LB

UBER TECHNOLOGIES: NLRB Takes Side with Drivers in Class Action
Joel Rosenblatt, writing for Bloomberg News, reports that the U.S.
labor-protection watchdog is taking sides with Uber Technologies
Inc. drivers in their fight to be treated better than independent

As part of a broader review of how gig-economy companies treat
workers, the National Labor Relations Board wants a federal
appeals court to consider its view before before reaching a
decision that could eviscerate a class-action lawsuit on behalf of
hundreds of thousands of drivers seeking to secure the protections
and benefits of employees.

The NLRB on Nov. 2 urged the court in a filing to find Uber's
contract provisions illegally block drivers from joining class-
action lawsuits.  Unless they opt out of the standard contract,
which few do, drivers are required to resolve disputes with the
company in private arbitration, where the company can fight them

The issue is one of "national significance" because it affects so
many cases across the country, the NLRB told the U.S. Court of
Appeals in San Francisco in an Oct. 12 filing.

The court "has already held that our arbitration agreements are
enforceable and do not violate" the National Labor Relations Act,
Uber spokesman Matt Kallman said in an e-mail.

The drivers' lawyer, Ms. Shannon Liss-Riordan, said it's rare for
the NLRB to intervene this way, which shows the agency "sees this
case as raising a significant issue."  The NLRB declined to

The lawsuit on behalf of 385,000 current and former drivers in
California and Massachusetts is considered the most significant
legal threat in the U.S. to the business model used by Uber, and
most sharing-economy companies.  That model saddles drivers with
expenses, such as car mileage and maintenance, while the company
saves money by avoiding the cost of benefits including sick leave
and health insurance.

The Uber case has been in limbo since September. Just weeks after
a lower-court judge rejected a $100 million offer to settle the
drivers' case, the San Francisco appeals court ruled in a
different case that Uber's arbitration agreements are largely
valid and enforceable. That gave the company leverage to hold out
for an even more favorable deal.

The drivers are now trying to convince the appeals court that the
arbitration provision waiving their right to pursue class actions
violates the National Labor Relations Act -- the law the NLRB is
charged with enforcing to investigate worker complaints and
adjudicate disputes with management.  If the court agrees, that
may swing the advantage back to the drivers as the case eventually
heads toward trial.

No U.S. court has determined that sharing-economy workers are
entitled to employee status, although some state labor agencies

Airbnb's arbitration agreement for users upheld

Separately, the NLRB is investigating claims by Uber drivers that
the company has violated their rights to collective actions.  The
agency must first determine they're employees before pursuing
remedies.  Uber can challenge its findings in court.

The NLRB has a "good shot" at convincing the court that including
an opt-out provision in an arbitration agreement doesn't allow a
company to stop workers from pursuing class actions, said
Charlotte Garden, a Seattle University associate law professor who
has followed the Uber case.

Citing another case in which a court concluded workers could band
together to argue employers violated the law, "it is not much of a
further stretch to hold that employees can't be asked to give up
that right before a dispute arises," she said.

The appeals court case is O'Connor v. Uber Technologies Inc., 15-
17420, U.S. Circuit Court of Appeals for the Ninth Circuit (San
Francisco). The lower-court case is O'Connor v. Uber Technologies
Inc., 13-cv-03826, U.S. District Court, Northern District of
California (San Francisco).

UBER TECHNOLOGIES: Judge Allows NLRB to Issue Subpoenas
Rebekah Mintzer, writing for The National Law Journal, reports
that a federal magistrate judge in California on Oct. 19 granted
the National Labor Relations Board permission to issue nationwide
subpoenas to investigate whether Uber drivers who brought
complaints against the ride-hailing company are statutory
employees with the ability to sue under the National Labor
Relations Act.

U.S. Magistrate Judge Sallie Kim of the Northern District of
California cited Uber Technologies Inc.'s failure to comply with
rules about objections to agency subpoenas.  She also pointed to
the relevance of the labor board's nationwide request.

The magistrate's decision said the National Labor Relations Act
requires parties objecting to a subpoena from the NLRB to file a
formal petition within five days of receiving it to try to get it
revoked, a condition Uber did not meet, the judge said.

"It is undisputed that Uber did not file a petition to revoke the
subpoenas," Judge Kim wrote.  The company, she noted, had written
to the board's lawyers with concerns about the subpoena's scope,
but had not filed the proper formal petition.

Although Judge Kim's decision focused mainly on the procedural
problems with Uber's actions, Judge Kim also said that "upholding
Uber's objections [to the subpoena] would deny the board access to
potentially voluminous relevant evidence" about the relationship
between Uber and its drivers.  The company classifies its drivers
as independent contractors.

The board, which declined to comment on Judge Kim's decision, has
said it wants the nationwide subpoenas to get more information
about the relationship between Uber and its drivers to determine
whether they are employees.  Only statutory employees can bring
claims under the National Labor Relations Act.

Uber, represented by attorneys at Littler Mendelson, had argued
that the request from the board was "overly broad and burdensome."
They said the NLRB subpoena should not be expanded beyond the
claims of two drivers in California who lodged unfair-labor

Uber's lawyers did not immediately respond to request for comment.

UBER TECHNOLOGIES: 9th Cir. Upholds Use of Class Action Waivers
Andrew Serrao, Esq. -- aserrao@bakerlaw.com -- of BakerHostetler,
in an article JDSupra, reports that recently, in a major win for
employers and companies that transact business on the internet,
the Ninth Circuit upheld the use of arbitration class-action
waivers in so-called clickwrap agreements.  These types of
agreements are commonplace -- consumers installing software or
signing up for a service are presented with a company's terms and
conditions on their screen, and are required to click "I agree" to

Like many other modern agreements, clickwrap agreements often
include arbitration clauses, including arbitration clauses
containing class-action waivers. Such is the case with certain
contracts used by Uber Technologies, Inc. ("Uber"), a popular car
service that connects customers with drivers through a cell phone
application. Recently, former Uber drivers brought suit against
Uber concerning the termination of their employment, and the
validity of their agreements with Uber was questioned. In Mohamed
v. Uber Technologies, Inc., -- F.3d --, Nos. 15-16178, 15-16181,
15-16250, 2016 WL 4651409 (9th Cir. Sept. 7, 2016), the Ninth
Circuit held that the drivers' contracts with Uber were valid, and
that the parties were required to resolve their disputes in

In Mohamed, two former Uber drivers asserted putative class claims
under the federal Fair Credit Reporting Act (FCRA) and various
state statutes, alleging that Uber improperly used information
contained in their consumer credit reports as a basis for their
termination.  When the drivers began working as Uber drivers, they
entered into certain agreements with Uber that required them to
submit to arbitration to resolve disputes with Uber, including
whether disputes were arbitrable, and to waive their right to
bring disputes as a class action.  Although Uber's agreements
allowed the drivers to opt out of these provisions, they failed to
do so.  Nevertheless, the district court denied Uber's motion to
compel arbitration in each case, holding that the arbitration
provisions were unconscionable, and therefore unenforceable,
because the provisions were hidden in a "prolix form," employees
felt pressure to not opt out of arbitration and Uber failed to
notify drivers of the drawbacks of arbitration.

Under governing California law, unconscionability has both a
procedural element and a substantive element.  The procedural
element focuses on the inequality of bargaining power, while the
substantive element focuses on overly harsh and one-sided results.
Both elements must be present to support a finding of
unconscionability.  Focusing on the procedural element, the Ninth
Circuit held that the arbitration clause was not unconscionable
because drivers had the opportunity to opt out of the arbitration
clauses.  And, in fact, some drivers did opt out of the
arbitration clauses.  The court found that, even though the opt-
out provision was "buried in the agreement," it did not change the
court's conclusion because "'one who signs a contract is bound by
its provisions and cannot complain of unfamiliarity with the
language of the instrument.'"  Mohamed, 2016 WL 4651409 at *6
(quoting Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1200
(9th Cir. 2002)).  The court observed that "the option to opt out
meant that Uber drivers were not required 'to accept a class-
action waiver as a condition of employment,'" and thus Uber did
not coerce its drivers into waiving their rights in violation of
the National Labor Relations Act (NLRA). Mohamed, 2016 WL 4651409
at *6 n.6 (quoting Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d
1072, 1075 (9th Cir. 2014)).  Because the agreements were not
procedurally unconscionable, the court declined to address whether
the agreements were substantively unconscionable.

The Mohamed decision is important for companies and vendors who
use clickwrap agreements, but it is important to understand its
potential limitations.  First, the opt-out provisions in Uber's
agreements were crucial to the Ninth Circuit's decision.  Second,
while the Ninth Circuit focused only on procedural
unconscionability, the district court also found substantive
unconscionability, mainly because the drivers would have been
subject to significant arbitration fees under the agreements.  The
district court ruled in this manner even though Uber later offered
to pay the arbitration fees.  In light of Mohamed, companies
looking to rely on arbitration class-action waivers in their
clickwrap agreements should be sure to review their opt-out and
arbitration fee-sharing provisions.

WAL-MART ASSOCIATES: Welch et al. May File Amended Complaint
In the case, KELLY WELCH, et al., individuals, Plaintiffs, v. WAL-
MART ASSOCIATES, INC., a corporation; and DOES 1-50, inclusive,
Defendants, Case No. 2:16-CV-02202-MCE-DB (E.D. Cal.), District
Judge Vince Chhabria granted the parties' stipulation for
Plaintiffs to file a First Amended Complaint and the Defendant to
file a response 30 days after the filing and service of the First
Amended Complaint.

The Plaintiffs seek to file a First Amended Complaint to add a
cause of action pursuant to the Private Attorneys General Act
(PAGA) and allegations pursuant to California Business &
Professions Code Sec. 17200 et seq. for Defendant's alleged
failure to pay reporting time wages.

The Plaintiffs are employed by the Defendant in California as
Assistant Store Managers. At all times relevant during their
employment with the Defendant, the Plaintiffs were classified as
salaried employees exempt from overtime wages and other related
benefits.  The Plaintiffs cite as causes of action the

     (1) unlawful business practice;

     (2) failure to pay overtime compensation;

     (3) failure to provide accurate itemized statements;

     (4) failure to pay wages when due; and,

     (5) violation of the Private Attorneys General Act;

The Plaintiffs seek against each Defendant, jointly and severally
to receive:

     (a) compensatory damages, according to proof at trial,
         including compensatory damages for overtime compensation
         due Plaintiffs plus interest thereon at the statutory

     (b) wages of all terminated Plaintiffs as a penalty from the
         due date thereof at the same rate until paid or until an
         action therefore is commenced, in accordance with Cal.
         Labor Code Se. 203;

     (c) the greater of all actual damages or $50 for the initial
         pay period in which a violation occurs and $100 of each
         Plaintiffs for each violation in a subsequent pay
         period, not exceeding an aggregate penalty of $4,000,
         and an award of costs for violation of Cal. Labor Code
         Sec. 226.

Plaintiffs demand jury trial on issues triable to a jury. A copy
of the Court's Order dated November 3, 2016 is available at
https://goo.gl/8rJpq6 from Leagle.com.

Kelly Welch, et al., Plaintiffs, represented by Norman Blumenthal
-- norm@bamlawca.com -- Blumenthal Nordrehaug & Bhowmik.

Kelly Welch, et al., Plaintiffs, represented by Victoria Bree
Rivapalacio -- victoria@bamlawca.com -- Blumenthal, Nordrehaug &

Wal-Mart Associates, Inc., Defendant, represented by Alice Y. Chu
-- chua@gtlaw.com -- Greenberg Traurig, LLP, Robert James
Herrington -- herringtonr@gtlaw.com -- Greenberg Traurig LLP &
William Jeffrey Goines -- goinesw@gtlaw.com -- Greenberg Traurig,

WAL-MART STORES: Jury Instructions Given in Drivers' Suit
In the case, CHARLES RIDGEWAY, et al., Plaintiffs, v. WAL-MART
STORES INC., Defendant, Case No. 08-cv-05221-SI (N.D. Cal.),
District Judge Susan Illston presents an Introductory Jury
Instructions to the jury prior to the counsels' opening

The class in the case is composed of all persons employed in
California by the Defendant in the position of Private Fleet
Driver at any time from October 10, 2004 to October 15, 2015. They
alleged that Wal-Mart failed to pay them the minimum wage for all
of the time they worked.

Judge Illston started the first introductory instruction by
providing the duty of the jury. This is followed by the
presentation of claims and defenses which also includes the
introduction of the parties.

The next following instructions concern on:

     (a) presentation of the burden of proof;

     (b) presentation of the evidence;

     (c) presentation of what is not an evidence;

     (d) presentation of the evidence for a limited purpose;

     (e) introduction of direct and circumstantial evidence;

     (f) ruling on objections;

     (g) credibility of witnesses; and,

     (h) conduct of the jury;

Judge Illston also informed the jury that there will be no
transcript available to them during their deliberations. Thus,
they are advised to take notes. The notes should be left in the
jury room when a jury leaves.

Further, Judge Illston discussed the rules on bench conferences
and recesses. The outline of the trial is as follows:

     (1) each side may make an opening statement;

     (2) Plaintiffs will then present evidence;

     (3) counsel for Wal-Mart may cross-examine;

     (4) Wal-Mart may present evidence;

     (5) counsel for Plaintiffs may cross-examine;

     (6) after the evidence has been presented, the attorneys
         will make closing arguments; and,

     (7) the jury will go to the jury room to deliberate on the

A copy of the Court' Introductory Jury Instructions dated October
28, 2016 is available at https://goo.gl/ogLHwU from Leagle.com.

Wal-Mart Stores Inc., Defendant, represented by Catherine A.
Conway -- cconway@gibsondunn.com -- Gibson, Dunn & Crutcher LLP,
George Charles Nierlich, III -- gnierlich@gibsondunn.com -- Gibson
Dunn & Crutcher LLP, Julian Wing-Kai Poon -- jpoon@gibsondunn.com
-- Gibson, Dunn & Crutcher LLP, Adam Carl Smedstad --
asmedstad@scopelitis.com -- Scopelitis Garvin Light Hanson &
Feary, P.C., pro hac vice, Angela Yue-Man Poon --
apoon@gibsondunn.com -- Gibson, Dunn and Crutcher LLP, Blaine H.
Evanson -- bevanson@gibsondunn.com -- Gibson Dunn and Crutcher
LLP, Christopher Chad McNatt -- cmcnatt@scopelitis.com -- Jr.,
Scopelitis Garvin Light Hanson & Feary, LLP, James H. Hanson --
jhanson@scopelitis.com -- Scopelitis, Garvin, Light & Hanson,
Jenna Musselman Yott -- jyott@gibsondunn.com -- Gibson Dunn and
Crutcher, Jesse A. Cripps, Jr. -- jcripps@gibsondunn.com -- Gibson
Dunn & Crutcher LLP, Michael Li-Ming Wong -- mwong@gibsondunn.com
-- Gibson, Dunn & Crutcher LLP, Rachel S. Brass --
rbrass@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Scott Alan
Edelman -- sedelman@gibsondunn.com -- Gibson Dunn & Crutcher LLP.

WARNER/CHAPPELL: Judge Approves Happy Birthday Song Settlement
Dee Thompson, writing for Legal Newsline, reports that up until
this past August, two California music companies were enforcing
the copyright of the song "Happy Birthday" and requiring
television shows and movies to pay royalties to use the song.

But a class action lawsuit brought against the two music companies
resulted in a settlement stating that the copyright to the lyrics
would not pass to the music company's successors in interest.  In
other words, no more royalties would be paid -- "Happy Birthday"
is in the public domain.

Judge George King in the Central District of California approved a
settlement authorizing a $14 million fund to reimburse the
plaintiffs who had, in the past, paid royalties to use the song.
Another $4 million was authorized for attorneys' fees.

The song "Happy Birthday" began as "Good Morning to All" in 1893
when it was composed by sisters Mildred and Patty Hill.  It's not
known who changed the lyrics or when they were changed.  A book
published in 1911, "The Elementary Worker and His Work," saw the
publication of the lyrics for the first time.  No author was

In the years since 1911, suits and countersuits have been filed
regarding copyright registrations of the lyrics to "Happy
Birthday."  Now that the song is in the public domain, anyone can
sing the song on film or in performance without having to pay a
fee, and the lyrics may also be changed if they are a parody.

Atlanta attorney John Seay of The Seay firm practices in the area
of intellectual property law.  He said that generally, "The
question of when a song enters the public domain is complicated.
Anything published before 1923 is in the public domain.  Note that
'published' basically means distributed for public consumption."

Litigating whether or not a song is in the public domain can be
time-consuming and tricky.  Such cases are difficult to prove.  In
the case of "Happy Birthday," the plaintiffs felt it was worth it.
Mr. Seay said.

"Almost no one actually files a lawsuit because of the expense and
uncertainty involved," he said.  "Normally the plaintiff would be
a film production company.

"Much cheaper and quicker just to pay the license fee, which is
what the corporate rights-holders want.  Warner/Chappell made $2
million per year on royalties for Happy Birthday -- you bet they
didn't want to lose that right and had no problem spending big
bucks to litigate the case."

Normally, a settlement agreement is confidential and applies to
only the plaintiffs bringing suit.  In the case of "Happy
Birthday," the plaintiffs prevailed, and Mr. Seay said that "the
plaintiffs stuck to their guns and achieved a result that is good
not only for them, but for other filmmakers, production companies
and really everyone."

WELLS FARGO: Cal. Judge Denies Motion to Stay "Gardner" Suit
In the case, SANDRA GARDNER, individually and on behalf of all
others similarly situated, Plaintiff, v. WELLS FARGO & COMPANY, a
Delaware Corporation, and WELLS FARGO BANK, N.A., a National
Banking Association, Defendants, Case No. 3:16-cv-02467-BEN-JMA
(S.D. Cal.), District Judge Roger T. Benitez denied the parties'
Joint Motion to Stay Case.

The parties have filed a Joint Motion to Stay Case until 30 days
after the earliest of the following events: (i) final approval of
the class action settlement in Jabbari v. Wells Fargo & Co., No.
3:15-cv-02159 (N.D. Cal.); (ii) transfer of this action to a
multidistrict litigation proceeding; or (iii) January 31, 2017.

In the case, the Court exercises it discretion and denied the
Joint Motion based on the Court's inherent power to control its

A copy of the Court's Order dated November 4, 2016 is available at
https://goo.gl/W8iG6R from Leagle.com.

Sandra Gardner, Plaintiff, represented by Natasha N. Serino, Law
Offices of Alexander M. Schack.

Wells Fargo & Company, et al., Defendants, represented by Erin
Joan Cox -- Erin.Cox@mto.com -- Munger Tolles and Olsen LLP.

WELLS FARGO: Settles Homeowners' Class Action Over Appraisal Fees
Matt Krantz, writing for USA TODAY, reports that Wells Fargo (WFC)
on Oct. 28 agreed to pay a $50 million settlement arising out of
allegations the bank bilked roughly 250,000 homeowners by padding
appraisal fees.

The settlement, which still awaits approval by an Oakland, Calif.
court, is centered around alleged appraisal markups the banks
charged to homeowners who defaulted on mortgage loans.  Homeowners
who default are traditionally charged fees for appraisals.  But
the private lawsuit filed in 2012 suggested Wells Fargo
overcharged these homeowners, assessing total fees of $95 to $125,
according to the lawsuit.  The actual cost for the appraisals is
often $30 or less according to National Association of BPO
Professionals, which is cited in the lawsuit.  The fees were
difficult to detect since they were shown as "other charges," the
lawsuit says.

This settlement piles on top of other legal issues Wells Fargo is
facing following this year's scandal where thousands of bank
employees allegedly opened accounts unknown to customers in order
to reach sales goals.

Tom Goyda, a spokesman for Wells Fargo, says the bank stands by
its procedures and is settling this suit to avoid prolonged
litigation.  He says the settlement is part of a private class
action lawsuit where the payment goes to members of the class but
also legal costs and attorney fees.  "While we believe our
practices related to Broker Price Opinions were proper and
disagree with the claims in the lawsuit, we have agreed to settle
the matter to avoid further litigation," Mr. Goyda told USA TODAY.

WELLS FARGO: Democratic Senators Propose Clawback Rule
C. Ryan Barber, writing for The National Law Journal, reports that
seizing on the Wells Fargo sales scandal, a group of 15 Democratic
senators on Oct. 26 urged federal regulators to make it mandatory
for executives to give back millions of dollars in compensation
for misconduct and to wait longer to receive full bonus pay.

In a letter to six regulatory agencies, including the Federal
Reserve and the U.S. Securities and Exchange Commission, the
senators acknowledged that former Wells Fargo CEO John Stumpf
forfeited $41 million in unvested equity awards in the fallout
from accusations the bank opened as many as 2 million unauthorized
accounts.  But the Wells Fargo board only took that step "in the
face of intense negative publicity," the senators said.  The bank,
they said, reclaimed a "small fraction" of
Mr. Stumpf's compensation.

The Democratic lawmakers, led by U.S. Sens. Bob Menendez, Tammy
Baldwin and Al Franken, said Mr. Stumpf and Carrie Tolstedt, the
Wells Fargo executive who oversaw the bank's retail business,
still left with millions of dollars earned from "fraudulent
activity."  It was just the latest example, they said, of a major
bank not holding its executives accountable for misconduct.
Months before Wells Fargo reached a $185 million settlement with
California and federal regulators, six agencies jointly proposed a
ruled mandated by Dodd-Frank to prohibit incentive-based pay
arrangements that encourage inappropriate risk-taking.
Among other measures, the rule would require senior executives at
the country's largest firms to defer more than half of their bonus
pay for four years.  The rule -- jointly proposed by the Federal
Reserve, SEC and the Office of the Comptroller of the Currency,
along with three other agencies -- would also require at least a
seven-year period for firms to "claw back" pay if it turns out
that significant misconduct occurred under an executive's watch.

While a clawback provision would be required in incentive-based
pay arrangements, the rule would not mandate that firms reduce or
recoup bonus compensation.  Noting that many large firms already
have such provisions but rarely use them, the senators pressed for
the rule to require sharper claws.

"A discretionary clawback provision is not likely to have much if
any practical deterrent effect against inappropriate risk-taking.
The reluctance of companies to exercise clawback, and the legal
difficulties in clawing back executive pay once granted, have
meant that such optional clawback provisions have rarely been
exercised," the Democratic senators wrote in their letter.

The senators also urged regulators to extend the deferral period
from four years, arguing that "it often takes more than four years
for the full scope of wrongdoing to be apparent."

"Wells Fargo is a case in point; the institution has been opening
fraudulent accounts since at least 2011, and likely well before
that date," they wrote.  "Further, financial crisis penalties were
not levied until approximately a decade after the fraudulent
activities occurred."

Between June and July, the rule drew nearly 2,500 comments --
including at least one from Wells Fargo.

On July 22, Wells Fargo said it "has long believed in strong and
effective risk management practices, which help us to better serve
our customers, maintain and improve our position in the market and
protect the long-term safety, soundness and reputation of our
institution."  About a month-and-a-half later, regulators alleged
that thousands of the bank's employees created unauthorized
accounts, sometimes by creating phony emails for their customers,
in a widespread scheme driven by sales goals and salary bonuses.

Wells Fargo's comment raised concerns that the clawback proposal
would create an uneven playing field, subjecting less-risky lines
of business within banks to compensation rules that their non-bank
competitors will not have to follow.  Wells Fargo pointed to its
asset management and insurance brokerage businesses as examples,
saying that they have lower risk profiles than many of their
larger non-bank competitors but would be subject to higher
requirements under the proposed rule.

"We believe this inconsistent treatment of businesses across the
industry would result in multiple undesirable regulatory
outcomes," Hope Hardison, the bank's chief administrative officer
and director of human resources, wrote.  "Inconsistent treatment
could create an unlevel playing field, driving high-quality talent
away from Systemically Important Financial Institutions, such as
Wells Fargo, to less regulated institutions or outside the

Hardison said the "unlevel playing field created by the Proposed
Rule could reduce the benefits of Wells Fargo's business model."

WEST VIRGINIA: Chemical Spill Class Action Settlement Okayed
Kyla Asbury, writing for West Virginia Record, reports that
District Judge John Copenhaver Jr. has approved a $151 million
settlement in the class action lawsuit between West Virginia
American Water, Eastman Chemical and residents and businesses
affected by the 2014 chemical spill into the Elk River.

West Virginia American Water has agreed to pay $126 million and
Eastman has agreed to pay $25 million.

Each qualifying residential class member may receive a single
uniform payment, in an amount to be negotiated; and each
qualifying business customer may receive a single uniform payment
in an amount to be negotiated that will be treated as compensation
for all claims or potential claims by that business customer,
according to the settlement fact sheet filed Oct. 31 in the U.S.
District Court for the Southern District of West Virginia.

Of the $126 million from WVAW, $50 million will be dedicated to
claims-based payments for class members that wish to forego the
standard payment, as well as wage earners who were not WVAW
customers that assert they lost wages due to the closure of
business customers.

There are more than 230,000 residents and business owners included
in the class action lawsuit.

The class claimed that West Virginia American Water did not
adequately prepare for or respond to the spill and that Eastman,
the company who manufactured MCHM, did not properly warn Freedom
Industries of the dangers of the chemical.

In an earlier hearing on Oct. 31, Judge Copenhaver called language
in the proposed settlement unacceptable, stating it would have
left the door open for WVAW to recover the cost of the settlement
from its customers in a rate case with the state Public Service

The language was changed and WVAW has agreed not to seek rate
recovery for the $4 million cost of the water emergency or the
$126 settlement amount.

A hearing is scheduled for Nov. 14 to finalize the settlement.

Nine counties in West Virginia -- almost 300,000 residents -- were
affected by the water contamination when the spill occurred in
January 2014.  A tank at Freedom Industries had leaked MCHM into
the river.

The plaintiffs are represented by Kevin W. Thompson and David R.
Barney Jr. of Thompson Barney; Van Bunch -- vbunch@bffb.com -- of
Bonnett Fairbourn Friedman & Balint PC; Stuart Calwell, Alex
McLaughlin and D. Christopher Hedges of The Calwell Practice LC.

U.S. District Court for the Southern District of West Virginia
case number: 2:14-cv-01374

WESTERN HOCKEY: Major Junior Players File Wage Class Action
Bob Mackin, writing for Business Vancouver, reports that are major
junior hockey players apprentices or interns that are reasonably
rewarded with college scholarships? Or are they professionals who
risk injury for entertainment and rightfully deserve to be paid
$10,000 a year?

That question is before courts in a proposed class-action lawsuit
that points to the three top-tier junior leagues and their teams
in Canada and the U.S. as multimillion-dollar businesses with
multiple revenue streams.

Charney Lawyers in Toronto is seeking certification of a class-
action lawsuit in Alberta and Ontario for outstanding wages,
overtime and vacation pay.

In February, the BC Liberal government quietly inserted a clause
in the Employment Standards Regulation to exempt B.C.'s six
Western Hockey League (WHL) franchises from the Employment
Standards Act, "if the player is entitled to receive a scholarship
equal to or greater than the eligible cost of a post-secondary
program of the player's choice."

Vancouver Giants owner Ron Toigo and Victoria Royals owner Graham
Lee have, coincidentally, donated $161,925 and $66,650,
respectively, to the BC Liberals since 2005, and Labour Minister
Shirley Bond is a Prince George Cougars fan.

The B.C. amendment happened in contrast to the public process that
unfolded south of the border in Washington state, which has four
WHL teams.  Gov. Jay Inslee signed the bill in May 2015 that said
those aged 16 to 20 who play for a junior hockey team in an arena
owned, operated or managed by a public body are not subject to
labour laws.

The state's Labor & Industries office received a complaint from
the nascent Canadian Hockey League Players' Association alleging
WHL teams paid players as little as $35 a week to practise, play
and travel 50 hours a week.

The WHL argues that its play-a-year, study-a-year scholarship
policy -- some 3,500 players have received $11 million in free
post-secondary education since 1993 -- is adequate compensation.

An October 2014 legal opinion by the state attorney general's
office said WHL owners claim their players are trainees, "engaged
in amateur sports with a goal of developing their skills to
perhaps one day play professionally."

The legal opinion said the players are different from high school
and college athletes, because they play for commercial businesses
that "receive an immediate advantage from the players'

Washington cited a November 2000 Canadian tax court order for the
Brandon Wheat Kings to pay unemployment taxes for players.  Yet it
acknowledged the chance that courts could decide that the players
benefit more than their teams, in the long run, from their time in
the WHL.

"Major junior hockey is not a recreational activity. It is a full-
time job," testified Langley's Lukas Walter in an affidavit.

The former Tri-City American and Saint John Sea Dog is one of two
proposed representative plaintiffs in the class-action lawsuit.
Walter's affidavit said he was paid just $200 a month in his first
WHL season with Tri-City and $476.66 a week plus $90 a week for
accommodation as an over-age 20-year-old with the Sea Dogs of the
Quebec league.

In major junior, the officials are paid and several arenas hold
10,000 paying fans.  Advertising is plastered throughout the
venues that sell alcohol, food and branded merchandise.  There are
advertising-supported broadcasts on TV, radio and the Internet.

"If you did not know any better, you would not be able to tell the
difference between a CHL [Canadian Hockey League] game and an NHL
[National Hockey League] game, except maybe in the size of the
players, given our ages," said Walter's affidavit.

Sportsnet's 50-game-a-season CHL and MasterCard Memorial Cup
broadcast deal runs through the 2025-26 season.  The NHL grants
the CHL $10 million a season, which is shared with the 60 teams.

The Kamloops Blazers sold for $7.95 million in 2007 and the
Cougars for $7.08 million in 2014.  The Mississauga IceDogs
garnered $10.68 million 10 years ago (adjusted for inflation),
moved to St. Catharines, Ontario, and became the Niagara IceDogs.
Court documents show that in 2013-14, their televised home games
helped sell ads on rink boards for $4,000 to $5,000, in-ice logos
for $8,000 and score clock panels for $10,000.  They took all net
revenue of ad sales in the arena and all revenue from the arena's
retail store, plus 50% from the sale or lease of suites and club
seats and beer-pouring rights.

Elsewhere, the Kitchener Rangers scored almost $6.3 million in
revenue in 2014, including $3.34 million in tickets and $2.38
million in sponsorship.

So why not a minimum wage?

Brock University assistant professor Kevin Mongeon was hired as an
expert by Charney and concluded that a minimum wage would have a
negligible effect on teams. Based on a 40-hour work week for 25
players over 25 weeks at $11.25 an hour, Ontario teams would spend
$281,250. (About $10,000 less in B.C., where the minimum wage rose
to $10.85 this fall.) Mr. Mongeon wrote that owners have strategic
reasons to plead poverty, because claims of losses enhance their
position to negotiate for better arena leases.

WRIGHT MEDICAL: Settles Faulty Hip Implant Cases for $240 Million
R. Robin McDonald, writing for Daily Report, reports that a hip
implant device manufacturer that for five years has been the
subject of multidistrict product liability litigation on two
coasts will pay $240 million to settle an estimated 1,300 claims
associated with the implants' failures.

Wright Medical Group announced the settlement on Nov. 2 on behalf
of its wholly-owned subsidiary, Wright Medical Technology.
Wright, which two years ago sold the hip and knee implant division
that produced the allegedly defective replacement hip devices to a
Chinese firm, will settle claims by patients whose Wright-made hip
implants failed in a time frame ranging from 150 days to eight
years after hip replacement surgery, lawyers for the plaintiffs

As part of that agreement, Wright will pay $170,000 to each
claimant implanted with the Conserve Cup device, and $120,000 to
each claimant implanted with either a Dynasty or Lineage
replacement hip.  Wright also agreed to establish a fund to
reimburse patients who suffered "extraordinary injury" as a result
of an implant failure.

The flaw that led to the implant failures was a metal-on-metal
design that caused metal wear, according to court records in the
case.  The implant shed metallic debris into the surrounding
tissue, leading to a condition known as metallosis, which inflamed
and poisoned tissue, dissolved bone that anchored the implant and
ultimately caused the implant to fail, court records said.

The settlement affects multidistrict litigation now pending in
federal court in Atlanta and consolidated litigation in Los
Angeles Superior Court in California.

Wright Medical's ability to reach and fund a settlement had long
been hampered by a dispute with its insurers, which was partially
resolved earlier this year, according to plaintiffs counsel.  A
bond issue eventually was used by the company in combination with
negotiated payouts from three of Wright's insurance carriers to
finance the settlement, plaintiffs lawyers said.

Wright said in a news release announcing the settlement that its
insurers have agreed to pay $60 million to finance the settlement,
and an additional $180 million was funded from "cash on hand."

Robert Palmisano, Wright's president and chief executive officer,
said the company was "very pleased" to have reached a settlement
agreement.  He said the settlement addresses roughly 85 percent of
the known U.S. claims involving failed implants that required
replacement "and removes a great deal of the uncertainty that has
been associated with this litigation."

Wright was defended by a team of Duane Morris attorneys in
Philadelphia, Los Angeles, San Diego, Chicago and Atlanta led by
Philadelphia partner Dana Ash.  Ms. Ash -- DJAsh@duanemorris.com -
- could not be reached.

Atlanta attorney Michael McGlamry -- mmcglamry@popemcglamry.com
-- partner at Pope McGlamry, served as co-lead counsel with
Woodland Hills, California, attorney Raymond Boucher during the
litigation and represents 350 plaintiffs.  "We think under these
circumstances -- and particularly with Wright Medical's financial
situation -- that this is a wonderful settlement," he said on Nov.
3.  It will provide official, quick and objective recoveries for
people who have suffered for many years."  Mr. McGlamry said he
also anticipates there might be one more round of settlements to
resolve claims where more than eight years elapsed before an
implant failed, where the statute of limitations may have expired
before a claim was made, or new cases where the devices fail.

The settlement followed an $11 million jury verdict, including $10
million in punitive damages, in a bellwether case against Wright
that Mr. McGlamry tried in federal court in Atlanta late last
year.  U.S. District Court judge William Duffey Jr. eventually
lopped $9 million off the jury's punitive damages award, reducing
the judgment for 73-year-old Salt Lake City ski instructor Robyn
Christiansen to $2.1 million.  Mr. McGlamry said the Christiansen
verdict, despite Judge Duffey's decision to slash the punitive
damages award, was significant because, "It showed Wright these
were viable, meaningful cases, and that we could get a verdict in
a very conservative federal court against them, which meant these
cases had value and would need to be resolved."

YAHOO INC: Judge Koh Preferred to Preside Data Breach Cases
Amanda Bronstad, writing for The Recorder, reports that lawyers
who have filed 18 consumer class actions over Yahoo's data breach
are converging on where the litigation should be heard:
California's Northern District and, in particular, before U.S.
District Judge Lucy Koh.

Their choice of Judge Koh comes as no surprise.  Judge Koh
previously issued one of the few favorable rulings for plaintiffs
in data breach cases, in which consumers -- who struggle to show
actual injury from the hacks -- have generally not fared well. She
also sits in San Jose, near Yahoo's headquarters in Sunnyvale,

"Judge Koh has been at the cutting edge in her decisions of this
area of the law," said John Yanchunis of Morgan & Morgan in Tampa,
Florida, who filed the initial motion to transfer all the Yahoo
data breach cases to Judge Koh.  "One of the things she's also
recognized, and some judges are becoming more attuned to this, is
this information remains with the defendant. So a consumer has an
interest in ensuring that, moving forward, this information is
better protected."

Eight of the Yahoo cases so far have been consolidated before Koh,
most recently on Oct. 27.  Judge Koh also is overseeing more than
100 class actions filed over a 2015 breach affecting Anthem Inc.
The U.S. Judicial Panel on Multidistrict Litigation is set to hear
arguments about the Yahoo litigation on Dec. 1. So far, no lawyers
have opposed California's Northern District, including Yahoo,
though some have named another San Jose judge,
Edward Davila, as an alternative given Judge Koh's involvement in
the Anthem litigation.

Lead attorney Ann Mortimer, a partner at Hunton & Williams in Los
Angeles, did not respond to a request for comment.  A Yahoo
spokeswoman also declined to comment for this story.

The Yahoo breach, which became public knowledge on Sept. 22,
affected 500 million account holders worldwide.  Yahoo in its
announcement blamed the breach, which compromised customer names,
email addresses, phone numbers, birth dates and passwords in 2014,
on what it called a "state-sponsored actor."  In October, Verizon
Communications Inc. general counsel Craig Silliman cautioned that
the breach could affect the company's planned $4.8 billion
acquisition of Yahoo.

The suits, filed in California and Illinois, were brought
primarily under negligence and other common-law claims and various
consumer statutes in California, Colorado, Illinois, Maryland,
Massachusetts, New Jersey, Ohio and Texas.  Many focus on Yahoo's
failure to identify the breach for two years -- much longer than
most companies that have been hacked.  Some raised questions about
whether Yahoo CEO Marissa Mayer might have known about the breach
in July, when the company was engaged in talks that resulted in
its sale to Verizon.

* Australian Courts to Regulate Class Action Funding Industry
Michael Duffy, writing for The Conversation, reports that third
party litigation funding, once illegal, is now on the rise in
Australia and the courts are stepping in to regulate it in the
absence of government.

Thanks to a recent court decision, the court can now approve
"common funds" for litigation, meaning funders can lend money to
claimants for their legal costs, in return for a share of the

Previously if there was no agreement for third party litigation
funders to get a cut of the damages after a case, these funders
would partly miss out.  Now even without an agreement, the court
can decide that third party litigation funders can receive part of
the damages.

This came about because of a decision in the Full Federal Court
against insurance business QBE where the court approved a "common
fund" for third party litigation funders.

This may seem like it will help third party litigation funders to
receive extra commissions but there is a potential sting in the
tail for the industry.  The court may now be the one to decide the
amount of commissions they receive.

The court approved the proposal in the QBE case, though did not
set a commission rate.  The decision hints that courts may be
willing to get into the business of reviewing contractual
arrangements between funders and litigants, in the interests of

The rise of the third party litigation industry

Courts used to call third party litigation funding "champerty" and
frowned upon it.  However since the Australian High Court decision
in Fostif in 2006, third party litigation funding has become not
only legal, but a growth industry.

Mr. Duffy has studied 19 major Australian investor class actions
and more than 60% appear to have had a third-party funder.  Many
in the legal profession say this funding is a positive development
encouraging access to justice.

Others believe it may be negative, leading to third-party funders
stirring up litigation which would otherwise not occur. Litigation
funders counter by saying it would be bad business for them to
prosecute cases that have no merit and are unlikely to succeed.

Protection of litigants, as consumers of litigation funding, is an
important issue but it is not clear that court supervision through
the provision of these "common funds" will solve all problems.

Problems with third-party litigation

One problem is whether litigation funders will have the cash
reserves to pay adverse legal costs if the claims are
unsuccessful.  This could be helped by a system of licensing for
this industry to ensure it has adequate capital to meet adverse
legal costs, where an unsuccessful plaintiff is ordered to pay the
defendant's costs.

The Federal Court decision may also encourage "open class" rather
than "closed class" actions.  An open class covers all victims of
illegal conduct, whereas a closed class usually only covers those
who sign up with a funder or lawyer.

Open classes will tend to widen access to justice and remove a
potential conflict of interest that lawyers may have between
funded and unfunded claimants (because open classes with common
funds mean no unfunded claimants).  This also means that more
people may, unless they specifically opt out, find themselves
involved in a class action (for example, small investors in public
companies which have made misleading statements or

Open classes will not remove all lawyers' conflicts of interests.
Lawyers will still have incentives to want to please both litigant
clients and their third party litigation funders, whose interests
may differ.

My research suggests that three party agreements between litigant,
lawyer and litigation funders have potential problems, as there
are incentives for two of the parties to collude to the detriment
of the third.  The problem is that the interests of the funder and
litigant may be different.

This might happen for example when a settlement offer is made and
the funder wants to accept but the litigant doesn't (or vice
versa).  The lawyer is supposed to follow the client litigant's
instructions but may prefer the client to do what the funder
wants, as the funder is paying the fees and is a source of work to
the lawyer.

A partial solution with merit is requiring funders to maintain a
small compulsory excess of a few thousand dollars, as insurers do
(this is so litigants aren't completely indemnified).  Litigants
would then still have to pay some adverse costs which would better
align their interests with funders (reducing potential conflicts
of interest) and it would also discourage litigants from bringing
frivolous claims.

ASIC already has acted to partly regulate these issues by
publishing a regulatory guide but further laws may be needed.
These could establish that the funder has overriding duties of
good faith to the litigant, which cannot be contractually altered.

Australia is leading the way in third party litigation funding so
that overseas experience might not help us to decide which course
of action is best.  Australian courts can look after some aspects
of third party litigation funding but some legislative and
prudential regulation is still needed.

* Concerns Raised Over Use of Facial Recognition Software
Philip Perry, writing for Big Think, reports that 117 million
Americans have had their faces scanned by facial recognition
software, and put into databases searchable by local, state, and
federal authorities, a Georgetown University report finds.  This
accounts for about half of all US adults.  Researchers at the
Center on Privacy and Technology penned this worrisome report
entitled, "The Perpetual Lineup."  Any person it seems can be
accessed or followed at any time and for any reason, calling into
question just how important citizen's privacy actually is.  If you
have a driver's license photo, chances are you are in this
everlasting lineup.

Another revelation, such software carries a racial bias.  African
Americans and other minorities were far more likely to have been
entered into a database.  50 civil liberties groups, including the
ACLU, petitioned the Justice Department to investigate this
software's use, as regulation of any kind was absent in almost all

106 police departments were included in this report.  Today, local
police rely on real-time facial recognition programs more and
more.  Go for a stroll in one of several major American cities,
and the police could be monitoring you without your knowledge.
Some department's even used driver's license databases to catalog

New report shows that local police and the FBI use facial
recognition software with little oversight.

The ACLU cited the software's use in Baltimore as an example, a
predominantly black city.  Tens of thousands of arrests took place
for minor offenses there over the last few years.  Often,
prosecutors drop the charges in such cases.  Yet, those same
people, innocent in the eyes of the law, had their faces logged
into a database, and could easily be monitored by law enforcement
on any level.

Stephen Moyer is the secretary of the Maryland department of
public safety and correctional services.  This is the agency
responsible for the employment of facial recognition software in
Baltimore and elsewhere in the state.  Mr. Moyer defended the
program in a statement, saying, "Maryland law enforcement agencies
make use of all legally available technology to aggressively
pursue all criminals." Georgetown's report does not blame any
particular police agency, but the lack of oversight and regulation
itself.  Yet, out of 52 local police departments evaluated, only
one had provisions to protect citizen's first amendment rights.

In Baltimore, the ACLU uncovered that police used facial
recognition software to target demonstrators at the Freddie Gray
protest last year.  The software scanned social media activity, so
police could identify and arrest those protesters with outstanding
warrants.  A company called Geofeedia monitors social media on
behalf of law enforcement.  It was revealed that Twitter and
Facebook provided Geofeedia with users' data, helping police
recognize those with outstanding warrants.  Geofeedia is no longer
receiving such data, we are told.

The ACLU found that facial recognition software helped Baltimore
police target Freddy Gray protesters last year.

If you find these actions surprising, consider that Facebook and
Google are currently embroiled in a class action lawsuit in
Illinois, where each company allegedly added users' facial images
to a database without their permission.  Legislators have also
been approached by representatives of both companies about
removing laws pertaining to user consent.

The unearthing of the FBI's "face recognition unit" was
particularly chilling, as it was made up mostly of "non-criminal
entries," or normal, everyday citizens.  Here, facial images were
obtained via passport photos, visa applications, and driver's
license photos.  16 states have reported allowed the FBI access to
their driver's license database.

Georgetown researchers spent a year and issued 100 police document
requests, in order to complete this study.  It is the most
comprehensive report on facial recognition software use by law
enforcement to date.  Investigators suggest a legislative approach
to prevent police departments from using driver's license photos
and relying on mugshots, instead. Another thorny issue is
inaccuracy.  Only one out of every seven matches is correct,
according to the FBI's own figures. That means a lot of erroneous
matches, and the possibility of innocent people being monitored,
or worse.

According to a 2012 study, which this report corroborates, the
algorithms used in such software is 10% less accurate when it
comes to people of color, young people, and women.  It has a
particularly hard time identifying those with dark skin.  Since a
lot security cameras are perched up high, many of the shots are of
the top of someone's head, which makes positive identification
even harder.

Facial recognition software is often wrong, especially when it
comes to people of color, which may mean a lot of false arrests
and more tensions between minority communities and police.

The Georgetown report calls for more accurate technology be used.
Meanwhile, the coalition of civil rights organizations asked the
DOJ to focus its investigation on those departments using such
software who are already under investigation for racial bias in
policing.  They also asked for assurances that these systems won't
purposely target minorities.

The ACLU's legislative counselor Neema Singh Guliani said the
results could stifle free speech, if no oversight is employed.
This technology became pervasive before restrictions could be
applied, she said.  Now hopefully the problem will be rectified.
"That's really a backwards way to approach it," she said.  "This
is already being used against communities it's designed to

* FTC Issues Guidance on "No Poaching," "Wage Fixing" Agreements
Rebekah Mintzer, writing for Corporate Counsel, reports that the
Federal Trade Commission and the Antitrust Division of the U.S.
Department of Justice have issued guidance signaling their
interest in further cracking down on companies that make
agreements with others that have the effect of limiting employees'
mobility or keeping their wages down.

The guidance issued by the agencies to human resource
professionals and others involved with hiring and compensation
clarifies that so-called no-poaching and wage-fixing agreements
between employers are violations of antitrust law, potentially
punishable with criminal charges.

"These types of agreements eliminate competition in the same
irredeemable way as agreements to fix product prices or allocate
consumers, which have traditionally been criminally investigated
and prosecuted as hard-core cartel conduct," the guidance said.
But Anthony Haller -- Haller@BlankRome.com -- a partner at Blank
Rome in Philadelphia, who represents employers in employment
cases, noted that the guidance seems to go against pro-pay
transparency moves from the Obama administration, such as a pay
transparency executive order and the National Labor Relations
Board's continued efforts to protect employee rights to discuss

The Justice Department, which along with the FTC declined to
comment on the guidance, already has taken companies, like Apple
Inc., eBay Inc. and Google Inc. to task in civil actions for
antitrust violations they allegedly committed by making pacts that
limited employees' abilities to find new jobs in the technology

The new guidance states the agencies' intentions to seek
enforcement against individuals or companies that form oral or
written agreements to ban soliciting or hiring each other's
employees in a no-poaching arrangement, or set uniform salaries
across a set of companies through a wage-fixing agreement to keep
employees from leaving a company for a better-paying job at a

The Justice Department and commission also warned in the guidance
that even without an explicit agreement to fix compensation,
exchanging information about it with other companies could be
evidence of an "implicit illegal agreement."  In an industry or
area with relatively few employers, the guidance explained, shared
compensation data could hurt competition by allowing companies to
set lower wages.

The agency guidelines come in the wake of some major antitrust
hiring cases.

In 2010, the Justice Department alleged that Apple, Google and
four other tech companies violated the Sherman Act by agreeing not
to cold-call each other's employees to offer them jobs.  The case
was settled in 2011, but the investigation of misconduct led to a
major class action lawsuit brought by employees of the tech
companies in California federal court, which settled in 2015 for a
hefty $415 million.

There are some exceptions where information sharing about employee
wages could be lawful, though, such as when information is
aggregated so that it can't be linked to an individual company, or
when the information is relatively old, according to the guidance.
If the data is used during an M&A deal or joint venture, it might
be shareable under antitrust law as well.
Peter Altieri, a partner at Epstein Becker & Green in New York,
who represents companies in antitrust and employment matters, said
that companies should integrate this guidance into their

"It should be included in HR compliance and training and risk
training," he said.  "And even an amendment to the code of conduct
for some companies would make sense."

Mr. Haller said that "in some ways the government is really
pushing for more transparency, but in this [antitrust guidance]
they are saying if you discuss this outside the four corners of
your own company, particularly with a competitor, then there's
risk," he said.  "I find that a little bit ironic."

* Obama Federal Appeals Court Appointees Less Business Friendly
Zoe Tillman, writing for Law.com, reports that backing workers in
discrimination suits.  Signing off on a $1 billion class action
judgment.  Spurning attacks on federal regulations.

President Barack Obama's appointees to the federal appeals courts
have started to leave their mark on the business world, to the
chagrin of corporate executives.  Appellate lawyers say it's too
early to see major swings in the law, but individual rulings on
labor, class actions and administrative law show signs of a shift
to the left.

"Over the last eight years the courts of appeals have become
decidedly less friendly to business overall, though the Supreme
Court has served as something as a check on those courts," said
Kannon Shanmugam -- kshanmugam@wc.com -- who leads the appellate
practice at Williams & Connolly.

Fifty-five judges have been confirmed to the federal appeals
courts since 2009, with 31 of those judges replacing Republican
appointees.  Obama's appointees make up just under a third of all
active judges on the circuit courts, although their influence is
less pronounced when senior judges are included in the tally.
Newer judges' influence on their respective courts varies.
There's been a noticeable ideological flip on the Fourth Circuit,
covering Virginia, Maryland, West Virginia, North Carolina and
South Carolina, which has six Obama appointees out of 15 active
judges.  The majority of judges on that court, which was among the
most conservative in the nation when Obama took office, are now
Democratic appointees.  On the Seventh Circuit, on the other hand,
Obama has seated just one judge.

Rex Heinke -- rheinke@akingump.com -- co-leader of the appellate
practice at Akin Gump Strauss Hauer & Feld, said he hasn't
observed an overhaul in areas of law affecting business over the
past eight years, although the president's nominees to the bench
"are certainly more liberal than the judiciary when he came into
"There would be a dramatic shift if there were liberal justices
added to the Supreme Court," Mr. Heinke said.  "For example, there
have been all sorts of decisions on the Supreme Court in recent
years about the use of arbitration to settle disputes, and the
court has been very sympathetic to claims that agreements to
arbitration be upheld.  I suspect a more liberal justice on the
Supreme Court might well have a different view."

Lawyers say the change they see in the appeals courts -- the last
litigation stop for the majority of cases -- has been incremental.
Mary Helen Wimberly, an appellate litigator at Hogan Lovells,
noted a few key rulings by Obama appointees siding with class
action plaintiffs.  She pointed to a Sixth Circuit decision in
2015 by Judge Jane Stranch that reversed the dismissal of a gender
discrimination class action against Walmart Stores Inc.

Judge Stranch, who was confirmed in 2010, ruled that female
Walmart employees weren't prohibited by time restrictions from
pursuing a regionally-focused lawsuit against the mega-retailer
after the U.S. Supreme Court in 2011 rejected certification of a
nationwide class of plaintiffs in Wal-Mart Stores v. Dukes.

"Courts may be required to decide whether a follow-on class action
or particular issues raised within it are precluded by earlier
litigation, but we would eviscerate Rule 23 if we were to approve
the blanket rule advocated by Wal-Mart," Judge Stranch wrote.

Tenth Circuit Judge Robert Bacharach, who was confirmed in 2013,
wrote a decision in 2014 that upheld a $1 billion judgment against
the Dow Chemical Co. in favor of purchasers of polyurethane
products alleging a price-fixing conspiracy.  The court rejected
Dow Chemical's challenge to the certification of a class under the
tougher standard set out in Dukes.

Judges confirmed since 2009 have written decisions in employment
cases hailed by the plaintiffs bar.  Eleventh Circuit Judge
Beverly Martin, confirmed in 2010, wrote a 2015 opinion that held
that job applicants, not just current employees, could bring
claims against an employer alleging that a company policy
discriminated against older individuals.  She was reversed by a
full sitting of the court in October; Judge Martin wrote a strong

* Playing Field Safety Concerns May Spark Future Class Actions
Zac Pingle, writing for US Recall News, reports that a controversy
regarding the safety of tire crumb (a material found on many
artificial turf playing fields) may lead to another large class
action in the near future.


During the late 1990s, the EPA found a way to recycle old tires by
using them as filling on turf playing fields.  Since then, nearly
11,000 playgrounds and playing fields across the United States
have been built using tire crumb as a result.

Many scientists have speculated that the tire crumb found on these
turf fields may cause cancer in players who frequent the fields.
Studies have been conducted with different conclusions. A study
conducted by the Environmental Protection Agency (EPA), for
example, concluded that the materials that comprised the tire
crumb "were below levels considered harmful."  However, this data
was based on only four study sites which may limit the accuracy of
the conclusion.  Another report conducted in 2010 by the
Connecticut Department of Environmental Health found that tire
crumb posed "no elevated health risks."

On the other hand, the California EPA concluded that there was a
human health risk of inhaling air just above synthetic turf.  In
2009, a University of Washington soccer coach, Amy Griffin,
discovered that many of her goalies suffered from cancer, more
than any other players on the field.  Ms. Griffin later conducted
studies of her own, and found a list of 230 athletes who had
cancer.  This list contains 183 soccer players, 114 of which are

In an article published by Bloomberg BNA, Ms. Griffin states
"During a practice, [goalkeepers] hit the ground more than 100
times easily and are covered in those black dots."

Environmental and Human Health Inc. (EHHI) began to question the
safety of tire crumb in 2007, and commissioned a study by
professor Gaboury Benoit of Yale University to assess the
carcinogenic materials that may be found in tire crumb.

The study found the following carcinogens within tire crumb:

Bis (2-ethylhexyl) phthalate

The EPA is currently conducting another study that will be due at
the end of this year.  Ted Tredennick -- tredennick@dtlawyers.com
-- of Daniels & Tredennick stated "At this point, we see indicia,
which we always see before there's adequate proof of causation . .
. We see clusters of people getting the same type of diseases with
the only common link being exposure to these fields."

There still remains a problem of causality, specifically the
cause-and-effect of how crumbs of tire rubber can cause cancer.
There still remains very little research regarding the risks of
tire crumb, as its use on playfields has only been enacted within
the past two decades.

"These fields are relatively new," said Mr. Tredennick.  "It's
been less than two decades and the number of people exposed is
going up. The statistical pool has to get to the point where we
can do statistical analysis."

Another attorney, Don Arbitblit, had parallel opinion of the
circumstance, stating "If the government comes up with new data or
new information making it more viable, we'd consider it."

* Supreme Court Set to Tackle Issue on Arbitration Agreements
Robert G. Brody and Katherine M. Bogard, writing for The
Connecticut Law Tribune, report that in the labor and employment
world, one big question for employers is: Does an employer violate
the National Labor Relations Act ("NLRA") by requiring employees
to sign an agreement to arbitrate any claims concerning their
wages, hours, and terms and conditions of employment only on an
individual basis, rather than in a class or collective action?
More simply, can an employer require employees to waive their
right to file class and collective actions if they want to work at
the company? (Class and collective actions are lawsuits involving
large numbers of plaintiffs all sharing similar claims, e.g., a
class of employees all claiming they have been improperly
classified as exempt from overtime.)

Meyers Roman Friedberg And Amp; Lewis

NLRA Covers Most Private Employers
The first issue: Does the NLRA apply? The NLRA applies to most
private-sector employers, including manufacturers, retailers,
private universities, and health-care facilities.  The NLRA does
not apply to federal, state, or local governments, employers who
employ only agricultural workers, and employers subject to the
Railway Labor Act.  The NLRA covers most employees employed in the
private sector but does not cover agricultural laborers,
independent contractors, and supervisors.  Based on the broad
reach of the NLRA, this question is pertinent to most employers.

1. Class Action Waivers: Are They Enforceable or Not? That is the
Question of the Year.

D.R. Horton Signals a Change
Since 2012 the application of class and collective action waivers
has been up for debate. In January 2012, in D.R. Horton, Inc., 357
NLRB 2277 (2012), the National Labor Relations Board ("NLRB") held
mandatory arbitration agreements that bar class or collective
claims over wages or other working conditions are unlawful.  In
2014, despite the rejection of its position by some Circuit Courts
of Appeal, the NLRB reaffirmed its position in Murphy Oil USA,
Inc., 361 NLRB No. 72 (2014).

Court of Appeals Reject NLRB View
Since the NLRB's holdings in D.R. Horton and Murphy Oil, Inc.,
various circuit courts of appeal have weighed in on the issue. For
instance, the Fifth Circuit has twice rejected the NLRB's position
and held that individual employment agreements containing class
and collective action waivers are lawful and enforceable under the
Federal Arbitration Act ("FAA").  See D.R. Horton, Inc. v. NLRB,
737 F.3d 344 (5th Cir. 2013) (enforcement of NLRB order denied in
relevant part), Murphy Oil v. NLRB, 808 F.3d 1013 (5th Cir. 2015)
(enforcement of NLRB order denied in relevant part).  The FAA
applies to any written provision in any maritime transaction or a
contract evidencing a transaction involving commerce, including
employment agreements.  The Fifth Circuit's reasoning is that the
FAA's policy favoring arbitration overrides any concerted activity
rights employees have to class or collective action pursuant to
the NLRA.

The Second, Eighth, and Eleventh Circuits also reject the NLRB's
position.  For instance, in Sutherland v. Ernst & Young, 726 F.3d
290 (2d Cir. 2013), the Second Circuit upheld a class action
waiver in an arbitration agreement and refused to defer to the
NLRB's decision in D.R. Horton.  In Owen v. Bristol Care, Inc.,
702 F.3d 1050 (8th Cir. 2013), the Eighth Circuit upheld a class
action waiver in such an agreement, stating it did not owe
deference to the NLRB's reasoning in D.R. Horton, and in Walthour
v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014),
the Eleventh Circuit found the FLSA does not prohibit an employer
from including a collective action waiver in an arbitration

Ninth and Seventh Circuit Court of Appeals Break Rank
The Seventh and Ninth Circuits, however, agree with the NLRB. Last
August, the Ninth Circuit considered the question in Morris v.
Ernst & Young, LLP, 2016 U.S. App. LEXIS 15638 (9th Cir. Aug. 22,
2016), and held such class or collective action waivers do violate
the NLRA.  The Ninth Circuit, agreeing with the board, held E&Y's
"separate proceedings" clause was the "very antithesis of Sec 7's
substantive right to pursue concerted work-related legal claims."
The court also noted this is a substantive right that is non-
waivable.  Thus, the focus of the Ninth Circuit's opinion was on
barring workers from acting as a group.

The Seventh Circuit also agreed with the NLRB in Lewis v. Epic
Systems, 823 F.3d 1147 (7th Cir. 2016), holding that arbitration
waiver clauses violate Sections 7 and 8 of the NLRA and are
unenforceable under the Federal Arbitration Act.  The court
adopted the views of the NLRB in D.R. Horton and Murphy Oil, and
noted that the NLRB's view that mandatory arbitration interferes
with employees' rights under section 7 is a "sensible way to
understand the statutory language" of section 7 of the act and,
for that reason, "we must follow it."

For Ernst & Young, one of the "big four" accounting firms, the
Ninth Circuit's decision creates quite the conundrum since the
Second Circuit held a similar clause is lawful.  Therefore, in
September 2016, Ernst & Young asked the U.S. Supreme Court to hear
its case to resolve the split amongst the Circuits.  The Supreme
Court is expected to hear the case in light of the split in

2. The NLRB Maintains Class Action Waivers are Unenforceable.
Despite all the differing opinions in the Circuit Court of Appeals
across the country, the NLRB continues to stay the course.  For
instance, in September, in Gray v. Select Temporaries, LLC, the
issue presented to the administrative law judge (and separately to
a court) was whether an arbitration provision that, when enforced,
only allowed for individual claims, was lawful -- even when the
agreement itself did not state that class or collective actions
were prohibited.  Not surprisingly, the ALJ found it was not

The facts are not in dispute.  Prior to starting work, plaintiff
Gray was sent new-hire paperwork that contained two mutual
agreements to arbitrate -- both of which she initialed.  She also
electronically initialed a "Personnel Practices Agreement."  She
then began work.  When her employment ended a little over a year
and a half later, she filed a class action and representative
action complaint against Select in Superior Court in California
alleging wage-and-hour claims.  Select moved to compel arbitration
of Gray's individual claims and to dismiss the class claims,
citing the agreements she signed upon hire.  The court granted
Select's motion in part, and Gray appealed.

Separate and apart from the California state court litigation,
Gray filed an unfair labor practice charge against Select, arguing
the arbitration provision, although silent on a class action
waiver, violated the NLRA.  The ALJ noted that because Select not
only sought to compel arbitration but also to dismiss the class
allegations of her wage and hour claims, the arbitration provision
violated the NLRA.  Select also argued that the agreements did not
violate the NLRA because they included a carve-out provision that
allowed the employee to file charges with the NLRB.  The ALJ,
however, rejected this argument, finding that one but not both of
the agreements Gray signed included this carve-out.

Ultimately, the ALJ found that Select's arbitration agreement
would be reasonably construed to prohibit employees from engaging
in conduct protected by section 7 of the NLRA and interfere with
the board and its processes.  Therefore, yet again, the ALJ
maintained the Board's position that these types of agreements are
simply unenforceable.

Where Does All this Conflict Leave Employers?
Location, location, location -- is (at least for now) the answer
for the enforceability of these types of provisions for employers.
Right now, these types of provisions are enforceable in the Second
Circuit, which covers Connecticut, New York, and Vermont.
However, it remains to be seen if this will remain true if and
when the Supreme Court decides the issue.  Even with the Second
Circuit allowing such provisions, this does not stop unfair labor
practice charges against companies that have agreements with these
types of provisions.  Moreover, with the Supreme Court split four-
to-four into liberal and conservative wings, the answer to this
looming question may be impacted by the appointment of a ninth
justice to fill the seat left vacant by conservative Justice
Antonin Scalia's death early this year.

* TCPA Class Action Filings Up 80% to 767 in 2016
Eric Troutman, Esq., of Dorsey & Whitney LLP, in an article for
JDSupra, reports that TCPA filings are up over 40% year to date.
Indeed, the TCPA is now officially obeying Moore's Law and
doubling every two years.  This year we're on track to scrape
5,000 filings.  If the trend continues we'll be at 7,400 filings
next year and flirting with 10k by the end of 2018.

Notably, we've already seen as many TCPA filings through the end
of September (3,712) as all of last year.  And there were 449 TCPA
suits filed in September, 2016 alone.

But the truly *terrifying* part is the pace of TCPA class action
filings.  They're exploding -- up 80% YTD! There have already been
767 class action filings this year compared with 585 for all of
last year.

The FCC is obviously to blame here.  Prior to the Omnibus ruling
in 2015 TCPA class actions were filed at an average of about 20.6
per month.  Since the Omnibus they've more than doubled to 73.4
per month.  Take a look:

Indeed, there were as many class action suits filed July-Sept.,
2016 as there were the entire year preceding the Omnibus.  And
there were 119 TCPA class action suits filed in September, 2016

* Thornton Law Firm's Political Contributions Questioned
Jasper Craven, writing for VTDigger, reports that two members of
Vermont's congressional delegation are among those who received
political contributions through a Boston law firm's legally
dubious system in which donations from employees were offset by
bonus payments.

The firm's staff gave millions to prominent national politicians
over several years, including thousands to Sen. Patrick Leahy and
Rep. Peter Welch, both Vermont Democrats.

The contribution system, which was executed by top lawyers at the
Thornton Law Firm, was the subject of a recent Boston Globe
Spotlight report.  Larry Noble, general counsel at the Campaign
Legal Center, told the Globe that "using straw donors to make
contributions is illegal.  People can go and have gone to prison
for this."

The Globe said that while the practice was widespread in the firm
for years, there's no indication any of the politicians who
received the donations knew about the reimbursement system.

Mr. Welch has received a total of $37,900 in campaign
contributions since 2008 from Michael Thornton, his wife and
employees of his law firm.

After the publication of the Globe story, Mr. Welch said he would
return the money.

"Congressman Welch was disturbed to read the Boston Globe story,"
said Bob Rogan, Mr. Welch's chief of staff.  "Consistent with the
paper's reporting, he was unaware of the law firm's internal
practices related to campaign contributions.  In accordance with
(Federal Election Commission) guidelines for situations like this,
we will immediately return these contributions."

The Thornton Law Firm's political advocacy has largely focused on
preventing changes to the asbestos litigation system.

One 2016 bill, the Furthering Asbestos Claim Transparency Act,
would have required that all members of a class action suit
provide evidence of injury from asbestos.

Mr. Welch, as well as other recipients of Thornton donations,
voted against the Republican-backed bill, which passed the House
but died in the Senate.

Mr. Welch invoked another legal case in arguing against the logic
of the bill.  "In a case of current moment, of real corporate
misconduct and actual deceit, Volkswagen lying about its emissions
control and, really, fudging the numbers on its mileage, the 3,000
Vermonters and 11 million Americans would have to file individual
suits unless each suffered the same exact economic loss," Mr.
Welch said in a floor speech.  "What is the justification for
building this barrier to access to the courts? There is none."

He received a combined $12,500 from four partners in the firm on
March 9, three weeks or so before the bill was introduced in the

"Congressman Welch is a strong advocate in Congress for the
consumers' right to access the judicial system to obtain justice,"
Mr. Rogan told VTDigger.  "He has consistently opposed Republican
efforts to limit access to justice.  His vote on this bill is
consistent with his longstanding record fighting for consumer

Sen. Leahy has also accepted money from lawyers at Thornton,
though not for more than a decade.

On Aug. 22, 2003, Sen. Leahy received $5,000 from lawyers in the
firm. Those donors were Michael Thornton ($2,000), David McMorris
($2,000) and Robert Naumes ($1,000), according to the Center For
Responsive Politics, which collaborated on the story with the

Sen. Leahy's Republican opponent this year, Scott Milne, alleges
that the donations influenced Leahy's opposition to the 2003 Class
Action Fairness Act, a bill promoted by then-President George W.

The bill -- which became law in 2005 -- was heavily pushed by
business groups and aimed to curb supposed abuse in class action
claims.  According to the Globe, the bill allowed "victims of
asbestos exposure to file their claims for compensation directly
to a national trust fund -- bypassing lawyers who typically
receive a third of any award."

Sen. Leahy made clear his opposition to the bill -- which was
being debated in the Senate Judiciary Committee -- in late July
2003.  A few weeks later, his donations from Thornton came in.

In the late July statement during a markup meeting in Judiciary,
Sen. Leahy and some of his colleagues cautioned that "while the
legislation is described by some of its proponents as a simple
procedural fix, it represents a radical revision of the class
action rules and diversity jurisdiction requirements."

"In fact," the statement continued, "we believe it would bar most
state class actions from being heard in state courts."

Both Sen. Leahy and Mr. Welch have long advocated for greater
access to the court system and against what they consider undue
restrictions on class action suits.  But Republican Milne called
on Leahy to return his Thornton contributions.

"Once again, we see that Sen. Leahy is accepting special interest
contributions linked to business before his committee, only this
time there is clear evidence based on the Boston Globe's
investigation that these contributions were outright illegal,"
Milne said in a statement on Oct. 31.

Sen. Leahy campaign spokesman Jay Tilton said Mr. Milne's charge
was baseless and that Leahy's donations do not sway his positions.
Asked in an email if Leahy would return the donations, Mr. Tilton
criticized Mr. Milne for making an issue of it.

"Rather than focusing on the issues facing Vermonters, Mr. Milne
is desperately grasping at any attack he can in hopes that it will
somehow damage Sen. Leahy's reputation," Mr. Tilton said. "Sen.
Leahy has not received any contributions from this law firm in
more than a decade and was not included in the Boston Globe


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
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