/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161123.mbx C L A S S A C T I O N R E P O R T E R Wednesday, November 23, 2016, Vol. 18, No. 234 Headlines AARON'S INC: "Foster" Class Action Dismissed AARON'S INC: "Korrow" Suit Has Limited Pre-Notice Class Discovery AARON'S INC: Court Has Not Issued Briefing Schedule in "Crystal" AARON'S INC: Motion to Dismiss "Winslow" Suit Still Pending AARON'S INC: Peterson's Motion for Class Certification Pending ADVOCATE HEALTH: Nonprofits Urge S.C. to Step Into Pensions Case ALASKA: Dismissal of "Metcalfe" Suit Upheld ALLERGAN PLC: Bidwell Pharmacy Files Anti-Trust Suit ALLERGAN PLC: January 3 Lead Plaintiff Motion Deadline Set ALLSTATE CORP: St. Clair Police Retirement System Files Suit ALLY FINANCIAL: To Defend Against Bucks Cty Retirement Fund Case ALPHA CORP: "Ascher" Sues Over Price-Fixing of Door Fixtures AMERICAN ETC: Quinteros et al. Seeks Unpaid Overtime Wages ATLANTA, GA: McCain et al. Sue Over Disability Life Benefits AUDI OF AMERICA: Faces "Stokar" Lawsuit Over Defeat Device AUSTRALIA: Oakey Residents Sign Up to Toxic Foam Class Action AUSTRALIA: Whistleblower Law Needs Reform, Attorney Says AVALANCHE BIOTECHNOLOGIES: Court Wants Suit Revised by Dec. 2 AVRAHAM BASHAREL: "Weber" Files Suit in Calif. Ct. BAYTOWN C&M: "Comeaux" Suit Seeks to Recover Overtime Pay BISTRO DRAGON: "Severino" Suit Invokes FLSA, Ill., Min. Wage Law CALIFORNIA: Dismissal of Suit v. Parole Board Recommended CAPITAL CONTRACTORS: Sanchez Seeks to Certify Class of Cleaners CAREER EDUCATION: "Surrett" Suit Remains Pending CAREER EDUCATION: "Wilson" Parties Await Decision on Appeal CEMPRA INC: January 3 Lead Plaintiff Motion Deadline Set CITIMORTGAGE INC: Class Suit Dismissal Based on Spokeo Ruling COMMUNITY BANK: "Hesami" Suit Alleges Unlawful Labor Practices CONFIE INSURANCE: Accused by Milton of Misclassifying Agents CONTINENTAL AUTOMOTIVE: Court Denies Dismissal Bid as Premature CONTINENTAL RESOURCES: Negotiations Ongoing in "Strack" Action COORDINATED STAFF: "Sanchez" Alleges Unlawful Labor Practices DEVRY EDUCATION: Lead Plaintiff's Amended Complaint Due DEVRY EDUCATION: Faces Illinois Class Suit by 6 Former Students DEVRY EDUCATION: Faces Class Suit by Jara et al. in N.D. Illinois ECM ENERGY: "Wallace" Suit Invokes FLSA, Penn. Wage Laws EHT PHARMACY: Centerville Clinics Seeks TCPA Class Certification ENGEL BURMAN: Violates Fair Labor Standards Act, Kobeck Alleges EST TRADE: "Rakonczai" Sues Over Vehicle Sale Transaction ETRADE FINANCIAL: Appeal Briefing to Continue Through 2016 ETRADE FINANCIAL: Rayner and Schwab Cases Consolidated EVERYDAY HEALTH: "Means" Suit Wants to Stop Sale to Ziff Davis EXPEDIA: Faces Class Action in Texas Over Homeaway Changes EXXON MOBIL: January 6 Lead Plaintiff Motion Deadline Set FLOTEK INDUSTRIES: Discovery Not Yet Commenced FORMFACTOR INC: "Solak" Case Settlement Remains Pending FORMFACTOR INC: Employee Class Action in Merits Discovery FORT ZUMWALT R-II: Counts 1 and II Class Certification Sought GLAXOSMITHKLINE LLC: Faces "Matthews" Suit Over Zofran Side Effect HEALTHSOURCE GLOBAL: Court Says Class Waiver Invalid HODGSON MILLS: Faces False Advertising Class Action in Illinois HOME DEPOT: Court Approves Data Breach Settlement Agreement HSBC BANK: Faces Deceptive Advertising Class Action in California ICAHN ENTERPRISES: Settlement of Sloan Lawsuit Approved IGT CONSTRUCTION: "Hernandez" Seeks Recovery of "Unpaid" Wages IMMUNOMEDICS INC: To Defend Against Fergus & Becker Class Suits INFUSYSTEM HOLDINGS: January 9 Lead Plaintiff Motion Deadline Set INTERNATIONAL PAPER: Court Rejects Slocum Bid to Remand Suit JANI-KING: "Williams" Ruling May Spark Suits Against Franchisors KAISER PERMANENTE: Court Narrows Claims in "Sidlo" ERISA Suit KAREO INC: Faces "Nazarian" Suit for Breach of Contract KAVAC LLC: "Fuentes" Suit Seeks to Recover Overtime Under FLSA KRISPY KREME: Faces "Saidian" Suit Over Doughnut False Ad LIBERTY MUTUAL: Must Defend Against First State Orthopaedics Suit LIVANOVA PLC: Sorin Group Must Defend Against Lawsuit LIVANOVA PLC: Class Action Filed in Quebec M.I. COURIER: Faces "Rios" Suit Alleging Violations of FLSA MAINE FISH: Seeks Final OK of "Dineen" FLSA Suit Settlement MARCHESE HEALTH: Settles Diluted Chemotherapy Drug Class Action MASIMO CORP: Oral Arguments in Appeal Scheduled for December 13 MEDREMIT INC: Certification of Class Sought in "Boileve" Class MIDDLE MAN: Submits Memorandum for Bid to Certify in Sprint Suit MLS PLAYERS: Files Motion to Dismiss Youth Clubs' Class Action MORGAN STANLEY: Court Trims Claims in Forex Benchmark Rates Suit MORGAN STANLEY: Defendant in Baker v. Bank of America NEC TOKIN: Made Initial Installment Payments NICK AND JAKE'S: Gleason Seeks to Recover Wages for Servers NISSAN NORTH AMERICA: Faces Class Action Over Exploding Sunroofs OCCIDENTAL PETROLEUM: "Simmons" Suit Alleges FLSA Violation PAPA MURPHY'S: Lennartson Seeks More Time to Respond to Motion PELLA CORP: "Tracy" Files Suit Over Defective Windows PRIME TIME: "Mahmoudi" Suit Alleges Employee Misclassification PROFESSIONAL CLAIMS: "Ocampo" FDCPA Claims Tossed QUALCOMM INC: Motion to Dismiss "3226701 Canada" Suit Pending REWALK ROBOTICS: Faces "Hershlikovitz" Suit Over 2014 IPO RUAN TRANSPORTATION: Judge Sends Wage Class Action to State Court SABRE CORPORATION: Continues to Defend NY Antitrust Action SAWYER PROPERTY: Md. Court Affirms Dismissal of Tenants' Suits SCOTTRADE INC: "Hine" Suit Removed From County Court to S.D. Cal. SHIRE PLC: Decision in ELAPRASE Case Pending SKY CHEFS: "Dyson" Cries Foul Over Background Investigation STARWOOD HOTELS: Court Narrows Claims in "Dugas" Data Breach Suit SUFFOLK BANCORP: MOU Reached in Merger-Related Actions TAQUERIA LOS: "Perez" Alleges Violations of FLSA, Ill. Wage Laws TENET HEALTHCARE: Faces Class Action Over Tuberculosis Exposure THERANOS INC: Faces $140MM Walgreens Suit Amid Class Actions TRAVELERS COMMERCIAL: "Jackson" Sues Over Insurance Bad Faith TRUMP UNIVERSITY: Class Action Jury Selection Set for Nov. 28 UNITED RECOVERY: Certification of Class Sought in "Kroell" Suit VASCO DATA: Bid for Lead Plaintiff Appointment Underway VIRGIN AMERICA: "Palkon" Class Action Dismissed VIRGIN AMERICA: "Houston" Class Action Dismissed VIRGIN AMERICA: "Zwang" Class Action Dismissed VOLKSWAGEN AG: Faces "Zink" Suit Over Defeat Devices in Vehicles VOLKSWAGEN AG: Group 1 to Receive $13.2 Million VOGUE NAILS: Violates FLSA, "Lopez-Ramirez" Suit Says WASHINGTON COUNTY, UT: Public Defender System Class Action Nixed WESTON EDUCATIONAL: Waunsch et al. Sue Alleging WARN Act Breach ZILLOW GROUP: Appeal of Class Certification Order Pending ZIMMER GMBH: B.C. Supreme Court Okays Class Action Settlement * Courts Lift Stays in Several ECJ Cases Following FDA Guidance * Supreme Court to Likely Weigh on Class Action Waiver Issues * Trump May Defang Consumer Financial Protection Bureau ********* AARON'S INC: "Foster" Class Action Dismissed -------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the "Foster" class action lawsuit has been dismissed with prejudice. In Foster v. Aaron's, Inc., filed on August 21, 2015, in the United States District Court in Phoenix, Arizona (No. CV-15-1637- PHX-SRB), the plaintiff in this putative class action alleges that the Company violated the Telephone Consumer Protection Act ("TCPA") by placing automated calls to customer references, or otherwise violated the TCPA in the manner in which the Company contacts customer references. The Company's initial responsive pleading was filed on October 7, 2015. A Scheduling Order was entered on January 26, 2016. This case was dismissed with prejudice on August 4, 2016. Aaron's, Inc. is a leader in the sales and lease ownership and specialty retailing of furniture, consumer electronics, computers, and home appliances and accessories throughout the United States and Canada. AARON'S INC: "Korrow" Suit Has Limited Pre-Notice Class Discovery ----------------------------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the New Jeresey Court has allowed limited pre-notice class discovery to proceed in the case, Margaret Korrow, et al. v. Aaron's, Inc. In Margaret Korrow, et al. v. Aaron's, Inc., originally filed in the Superior Court of New Jersey, Middlesex County, Law Division on October 26, 2010, plaintiff filed suit on behalf of herself and others similarly situated alleging that the Company is liable in damages to plaintiff and each class member because the Company's lease agreements issued after March 16, 2006 purportedly violated certain New Jersey state consumer statutes. Plaintiff's complaint seeks treble damages under the New Jersey Consumer Fraud Act, and statutory penalty damages of $100 per violation of all contracts issued in New Jersey, and also claims that there are multiple violations per contract. The Company removed the lawsuit to the United States District Court for the District of New Jersey on December 6, 2010 (Civil Action No.: 10-06317(JAP)(LHG)). Plaintiff on behalf of herself and others similarly situated seeks equitable relief, statutory and treble damages, pre- and post-judgment interest and attorneys' fees. On July 31, 2013, the Court certified a class comprising all persons who entered into a rent-to-own contract with the Company in New Jersey from March 16, 2006 through March 31, 2011. In August 2013, the Court of Appeals denied the Company's request for an interlocutory appeal of the class certification issue. On October 4, 2013, the Company also filed a motion to allow counterclaims against all newly certified class members who may owe legitimate fees or damages to the Company or who failed to return merchandise to the Company prior to obtaining ownership. On August 14, 2015, the Company filed a motion for partial summary judgment seeking judicial dismissal of a portion of the claims in the case. The motion filed October 4, 2013 to allow counterclaims was denied by the magistrate judge on June 30, 2014, and that decision was confirmed by the District Court on November 30, 2015. On December 23, 2015, the Company filed a motion with the District Court requesting permission for an interlocutory appeal of the denial of the motion to add counterclaims, which also remains pending. On February 23, 2016, the Court granted in part and denied in part the Company's motion for partial summary judgment filed August 14, 2015, dismissing plaintiff's claims that the pro-rate violated the New Jersey Consumer Fraud Act, but denying summary judgment on the claim that Aaron's Service Plus violated the same act. On March 7, 2016, the Company moved for limited reconsideration of that ruling. On March 24, 2016, plaintiff filed a motion for approval of issuance of class notice. The Company has filed a motion requesting a stay on issuance of class notice pending the ruling on the request for limited reconsideration of the partial summary judgment ruling and the request for interlocutory review of the denial of the motion to add counterclaims filed on December 23, 2015. Those motions remain pending, but the Court has allowed limited pre-notice class discovery to proceed. Aaron's, Inc. is a leader in the sales and lease ownership and specialty retailing of furniture, consumer electronics, computers, and home appliances and accessories throughout the United States and Canada. AARON'S INC: Court Has Not Issued Briefing Schedule in "Crystal" ---------------------------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that in the case, Crystal and Brian Byrd v. Aaron's, Inc., the District Court has not issued a briefing schedule for evaluating the motion for class certification on remand. In Crystal and Brian Byrd v. Aaron's, Inc., Aspen Way Enterprises, Inc., John Does (1-100) Aaron's Franchisees and Designerware, LLC, filed on May 16, 2011, in the United States District Court, Western District of Pennsylvania (Case No. 1:11-CV-00101-SPB), plaintiffs alleged that the Company and its independently owned and operated franchisee Aspen Way Enterprises ("Aspen Way") knowingly violated plaintiffs' privacy in violation of the Electronic Communications Privacy Act ("ECPA") and the Computer Fraud Abuse Act and sought certification of a putative nationwide class. Plaintiffs based these claims on Aspen Way's use of a software program called "PC Rental Agent." Although the District Court dismissed the Company from the original lawsuit on March 20, 2012, after certain procedural motions, on May 23, 2013, the Court granted plaintiffs' motion for leave to file a third amended complaint, which asserted the claims under the ECPA, common law invasion of privacy, added a request for injunction, and named additional independently owned and operated Company franchisees as defendants. Plaintiffs filed the third amended complaint, and the Company moved to dismiss that complaint on substantially the same grounds as it sought to dismiss plaintiffs' prior complaints. Plaintiffs seek monetary damages as well as injunctive relief. Plaintiffs filed their motion for class certification on July 1, 2013, and the Company's response was filed in August 2013. On March 31, 2014, the United States District Judge dismissed all claims against all franchisees other than Aspen Way Enterprises, LLC. The Court also dismissed claims for invasion of privacy, aiding and abetting, and conspiracy against all defendants. In addition, the Court denied the plaintiffs' motion to certify the class. Finally, the Judge denied the Company's motion to dismiss the violation of ECPA claims. Plaintiffs requested and received immediate appellate review of these rulings by the United States Third Circuit Court of Appeals. On April 10, 2015, the Court of Appeals reversed the denial of class certification on the grounds stated by the District Court, and remanded the case back to the District Court for further consideration of that and the other elements necessary for class certification. The District Court has not issued a briefing schedule for evaluating the motion for class certification on remand. Aaron's, Inc. is a leader in the sales and lease ownership and specialty retailing of furniture, consumer electronics, computers, and home appliances and accessories throughout the United States and Canada. AARON'S INC: Motion to Dismiss "Winslow" Suit Still Pending ----------------------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that in the case, Michael Winslow and Fonda Winslow v. Sultan Financial Corporation, the Company's motions to dismiss and strike certain allegations remain pending. In Michael Winslow and Fonda Winslow v. Sultan Financial Corporation, Aaron's, Inc., John Does (1-10), Aaron's Franchisees and Designerware, LLC, filed on March 5, 2013 in the Los Angeles Superior Court (Case No. BC502304), plaintiffs assert claims against the Company and its independently owned and operated franchisee, Sultan Financial Corporation (as well as certain John Doe franchisees), for unauthorized wiretapping, eavesdropping, electronic stalking, and violation of California's Comprehensive Computer Data Access and Fraud Act and its Unfair Competition Law. Each of these claims arises out of the alleged use of PC Rental Agent software. The plaintiffs are seeking injunctive relief and damages in connection with the allegations of the complaint. Plaintiffs are also seeking certification of a putative California class. Plaintiffs are represented by the same counsel as in the above-described Byrd litigation. In April 2013, the Company timely removed this matter to federal court. On May 8, 2013, the Company filed a motion to stay this litigation pending resolution of the Byrd litigation, a motion to dismiss for failure to state a claim, and a motion to strike certain allegations in the complaint. The Court subsequently stayed the case. The Company's motions to dismiss and strike certain allegations remain pending. On June 6, 2015, the plaintiffs filed a motion to lift the stay, which was denied on July 11, 2015. No further updates were provided in the Company's SEC report. Aaron's, Inc. is a leader in the sales and lease ownership and specialty retailing of furniture, consumer electronics, computers, and home appliances and accessories throughout the United States and Canada. AARON'S INC: Peterson's Motion for Class Certification Pending -------------------------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that a motion for class certification in the class action by Michael Peterson remains pending. In Michael Peterson v. Aaron's, Inc. and Aspen Way Enterprises, Inc., filed on June 19, 2014, in the United States District Court for the Northern District of Georgia (Case No. 1:14-cv-01919-TWT), several plaintiffs allege that they leased computers for use in their law practice. The plaintiffs claim that the Company and Aspen Way knowingly violated plaintiffs' privacy and the privacy of plaintiffs' legal clients in violation of the ECPA and the Computer Fraud Abuse Act. Plaintiffs seek certification of a putative nationwide class. Plaintiffs based these claims on Aspen Way's use of PC Rental Agent software. The plaintiffs claim that information and data obtained by defendants through PC Rental Agent was attorney-client privileged. The Company filed a motion to dismiss plaintiffs' amended complaint. On June 4, 2015, the Court granted the Company's motion to dismiss all claims except a claim for aiding and abetting invasion of privacy. Plaintiffs then filed a second amended complaint alleging only the invasion of privacy claims that survived the June 4, 2015 court order, and adding a claim for unjust enrichment. The Company filed a motion to dismiss the second amended complaint, and on September 16, 2015, the Court granted the Company's motion to dismiss plaintiffs' unjust enrichment claim. The only remaining claim against the Company is a claim for aiding and abetting invasion of privacy. Plaintiffs filed their motion for class certification on March 18, 2016. The Company responded in opposition to that motion, and oral argument was held on September 27, 2016. A decision on that motion is pending. Aaron's, Inc. is a leader in the sales and lease ownership and specialty retailing of furniture, consumer electronics, computers, and home appliances and accessories throughout the United States and Canada. ADVOCATE HEALTH: Nonprofits Urge S.C. to Step Into Pensions Case ---------------------------------------------------------------- Marcia Coyle, writing for Law.com, reports that three religious- affiliated, nonprofit health care systems are asking the U.S. Supreme Court to step into a multimillion-dollar battle with two plaintiffs firms that claim the pension plans of the medical networks are not exempt from federal law. Lisa Blatt -- lisa.blatt@aporter.com -- head of Arnold & Porter's Supreme Court and appellate practice, filed petitions in the high court for three nonprofits that are targets of class actions brought by the Washington firm Cohen Milstein Sellers & Toll and Seattle's Keller Rohrback. Plaintiffs lawyers began suing nonprofit religious employers in 2013, arguing that their pension plans did not qualify as "church plans" that are exempt from the insurance premiums, requirements and protections of the federal Employee Retirement Income Security Act. Those lawsuits, Ms. Blatt argued, defy 30 years of federal administrative rulings that church plans do not have to be established by churches. "As the firms themselves recently observed, these lawyers 'have for years together developed and litigated the innovative theory of liability at issue here,'" Ms. Blatt wrote. She said the firms seek "billions of dollars in retroactive liability and a wholesale upheaval in the administration of pension plans affecting religious employers and employees across the country." In the last three years, plaintiffs firms have filed 36 class actions against hospital systems, claiming their pension plans were not church plans, according to the petitions. The pending cases in the Supreme Court are Advocate Health Care Network v. Stapleton, Dignity Health v. Rollins and Saint Peter's Healthcare System v. Kaplan. Cohen Milstein and Keller Rohrback have urged the justices not to review lower court decisions. The three federal appeals courts -- the Third, Seventh and Ninth circuit -- agreed with the plaintiffs' interpretation that only pension plans "established by a church" are entitled to the church-plan exemption under the Employee Retirement Income Security Act, or ERISA. Advocate Health Care is based in Illinois, Dignity Health in California and Saint Peter's in New Jersey. The plaintiffs firms contend that "hundreds of church-associated hospital conglomerates, often at the urging of 'gotcha' benefit consultants, have in recent decades exploited a misreading of ERISA to lower their costs by claiming church-plan status for plans that had been operated -- correctly -- as ERISA plans." Those plans, Cohen Milstein's Karen Handorf -- khandorf@cohenmilstein.com -- said in a brief, now are often substandard, underfunded and no church stands behind them. The 33,000 putative plaintiffs in the case against Advocate, Ms. Blatt said, seek $110 a day for every day Advocate Health Care did not provide benefit statements of funding notices. "Stated differently, for just one year, respondents seek over $3.9 billion in penalties," Ms. Blatt wrote. In May, In May, Saint Francis Hospital and Medical Center in Connecticut reportedly agreed to settle a church plan lawsuit for $107 million. "Just from a dollars and cents perspective, it's a big issue," said Eric Rassbach of the Becket Fund for Religious Liberty, which filed a brief in support of the health care systems. "You're dealing with a whole lot of pension plans affected by this." 'Established and maintained by a church' Church plans have been exempt from the Employee Retirement Income Security Act since that law was enacted in 1974. With the exemption, Congress sought to avoid government scrutiny of confidential church books and activities. In 1974, the employee retirement act defined a church plan as one "established and maintained for its employees by a church or by a convention or association of churches" that is tax-exempt. In 1980, Congress amended the church-plan exemption to include "a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches." The high court battle is over whether the "established and maintained by a church" requirement still applies. Ms. Blatt said in her petition for Advocate Health Care that the IRS in 1983 concluded a pension plan may qualify as a church plan in two ways: "established and maintained by a church," or maintained by a church-controlled or associated organization. Since then, Ms. Blatt told the justices, the Internal Revenue Service has issued more than 500 private letter rulings confirming that the plans of qualifying, church-affiliated organizations -- including her clients -- are exempt regardless of whether they were established by churches. The U.S. Labor Department has issued 70 advisory opinions to that effect, Blatt said. Keller Rohrback's Lynn Sarko -- lsarko@kellerrohrback.com -- urged the justices to give weight to the three appellate court decisions and not to "ex parte, non-binding private letter rulings." Although Congress allowed churches to extend pension benefits to employees of church-associated schools and hospitals, Ms. Sarko said, it did not allow "giant businesses" like Advocate Health Care to create exempt benefits plans simply by claiming a religious affiliation. "Such a pure preference for religiously connected institutions, without any need to accommodate religious faith or practice, would have violated the Establishment Clause," Ms. Sarko told the justices. Finding lawyers The church-plan lawsuits stemmed from concerns raised by the Pension Rights Center in Washington, Karen Ferguson, the center's director, said. "Several groups of employees of nonprofits affiliated with religious organizations came to us," she said. "Exhibit A" was the Hospital Center at Orange, in New Jersey. ALASKA: Dismissal of "Metcalfe" Suit Upheld ------------------------------------------- Justice Daniel Winfree of the Alaska Supreme Court affirmed the dismissal of the case captioned, Peter METCALFE, Individually and on behalf of All Others Similarly Situated, Appellant, v. STATE OF ALASKA, Appellee, Case Nos. S-15528/S-15557, No. 7132 (Alaska), on the ground that Metcalfe has stated no claim for relief under Article XII, section 7 of the Alaska Constitution. Peter Metcalfe was employed briefly by the State in the early 1970s and contributed to the Public Employees' Retirement System (PERS). In 1981 Metcalfe took a refund of his PERS contributions. Under a statute in effect during Metcalfe's employment and when he took his PERS refund, if Metcalfe later secured State employment and returned his refund to PERS with interest, he was entitled to reinstate at his prior PERS service tier and credit. In 2012 Metcalfe inquired about his PERS status. He was informed that even if he were to regain State employment, he could not reinstate to his prior PERS service tier and credit because AS 39.35.350 had been repealed in 2005 and the grace period for reinstatement had ended in 2010. In June 2013 Metcalfe brought a putative class action lawsuit against the State, alleging that the 2005 legislation: (1) violated article XII, section 7 of the Alaska Constitution; (2) deprived a class of former employees of their vested interest in the contractual "benefit to be reinstated to state employment at the tier level they previously held"; and (3) effectively breached the class members' employment contracts. Metcalfe sought damages, but he also asked for a seemingly mutually exclusive declaratory judgment that the State must comply with former AS 39.35.350. The State moved to dismiss Metcalfe's lawsuit for failure to state a claim upon which relief could be granted, arguing that (1) Metcalfe did not have standing to sue because article XII, section 7 of the Alaska Constitution protects only PERS members and Metcalfe no longer was a PERS member after he took a refund of his contributions; (2) Metcalfe's claim was not ripe because he had not secured reemployment with the State and thus failed to meet former AS 39.35.350's PERS reinstatement requirements; and (3) the contract statute of limitations barred Metcalfe's claim because the legislation was passed in 2005 but Metcalfe did not sue until 2013. The superior court tentatively rejected the argument that Metcalfe failed to state a claim upon which relief could be granted, rejected the argument that Metcalfe's claim was not ripe and that he lacked standing, but dismissed Metcalfe's claim as time barred. Metcalfe appealed the superior court's dismissal of his claim based on the statute of limitations. The State cross-appealed the superior court's ruling that Metcalfe's claim was ripe and argued that the superior court's decision could be upheld on the ground that Metcalfe lacked standing to sue. In his Opinion dated November 4, 2016 available at https://is.gd/mq6emu from Leagle.com, Judge Winfree held that because Metcalfe was not a member at the time of the change, and because article XII, section 7 of the Alaska Constitution protects only the benefits of members against diminishment or impairment, he has no claim for relief under the provision. Peter Metclafe is represented by Jon Choate, Esq. at CHOATE LAW FIRM LLC State of Alaska is represented by: Kevin T. Wakley, Esq. Michael C. Geraghty, Esq. Assistant Attorneys General P.O. Box 110300 Juneau, AK 99811 Tel: (907)465-3600 Email: kevin.wakley@alaska.gov ALLERGAN PLC: Bidwell Pharmacy Files Anti-Trust Suit ---------------------------------------------------- Bidwell Pharmacy & Medical Supply, Inc. on behalf of all others similarly situated, Plaintiff v. Allergan PLC, Actavis, PLC, Impax Laboratories, Inc., Lannett Company, Inc., Mylan Pharmaceuticals, Inc., Par Pharmaceutical Companies, Inc., West-Ward Pharmaceuticals Corp., Defendants, Case No. 2:16-cv-02810-CMR (E.D. Pa., November 10, 2016), seeks damages, injunctive relief, and all other relief available under federal antitrust laws, state antitrust laws, and state consumer protection laws. The action accuses Defendants of conspiring to fix, maintain, and/or stabilize the prices of generic digoxin or doxycycline. Plaintiff indirectly purchased, paid, and/or provided reimbursement for these products made by one or more Defendants at supracompetitive prices. Lannett is a Delaware corporation that has its principal place of business in Philadelphia, Pennsylvania. Lannett is a distributor of generic digoxin and generic doxycycline. Impax is a Delaware corporation that has its principal place of business in Hayward, California. Impax's generics division is called Global Pharmaceuticals and is a manufacturer and distributor of generic digoxin. Par is a Delaware corporation with its principal place of business in Chestnut Ridge, New York. It supplies and distributes a generic version of Lanoxin (R) (digoxin) tablets made by Covis Pharma. Allergan PLC is a $23B diversified global pharmaceutical company into global generics, dermatology and aesthetics, CNS, eye care, urology, gastro-intestinal, cystic fibrosis, cardiovascular and infectious diseases. It is based in Dublin, Ireland and U.S. Administrative Headquarters in Parsippany, New Jersey, USA. Actavis plc is a pharmaceutical corporation with its global headquarters in Dublin, Ireland, and with administrative headquarters in New Jersey. Mylan, Inc. is a global generics and specialty pharmaceutical company based in the Netherlands. Plaintiff is represented by: Michael J. Boni, Esq. Joshua D. Snyder Esq. BONI & ZACK LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 Telephone: (610) 822-0200 Facsimile: (610) 822-0206 Email: mboni@bonizack.com jsnyder@bonizack.com - and - Kimberly A. Kralowec, Esq. Kathleen Styles Rogers, Esq. THE KRALOWEC LAW GROUP 44 Montgomery St., Ste. 1210 San Francisco, CA 94104 Telephone: (415) 546-6800 Facsimile: (415) 546-6801 Email: kkralowec@kraloweclaw.com krogers@kraloweclaw.com - and - Joseph J. Tabacco, Jr. Christopher T. Heffelfinger, Esq. Todd A. Seaver, Esq. BERMAN DEV ALERIO One California St., Ste. 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 Email: tseaver@bermandevalerio.com ALLERGAN PLC: January 3 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- Pomerantz LLP on Nov. 8 disclosed that a class action lawsuit has been filed against Allergan plc ("Allergan" or the "Company") and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 16-cv-08661, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired Allergan securities between February 25, 2014 and November 2, 2016, both dates inclusive (the "Class Period"), seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased Allergan securities during the Class Period, you have until January 3, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Allergan, a specialty pharmaceutical company, develops, manufactures, markets, and distributes medical aesthetics, biosimilar, and over-the-counter pharmaceutical products worldwide. The Company was formerly known as Actavis plc and changed its name to Allergan plc in June 2015 after acquiring Allergan Inc. The Company's common stock has traded under the ticker symbol "AGN" since June 15, 2015. Prior to June 15, 2015, the common stock of Actavis plc traded on the NYSE under the ticker symbol "ACT". On July 26, 2015, Allergan entered into a master purchase agreement, under which Teva Pharmaceutical Industries Ltd. agreed to acquire Actavis, the Company's global generic pharmaceuticals business unit. On August 2, 2016, the companies announced the completion of the acquisition. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Allergan's Actavis unit and several of its pharmaceutical industry peers colluded to fix generic drug prices; (ii) the foregoing conduct constituted a violation of federal antitrust laws; (iii) consequently, Allergan's revenues during the Class Period were in part the result of illegal conduct; and (iv) as a result of the foregoing, Allergan's public statements were materially false and misleading at all relevant times. On November 3, 2016, media outlets reported that U.S. prosecutors might file criminal charges by the end of 2016 against Actavis and several other pharmaceutical companies for unlawfully colluding to fix generic drug prices. On this news, Allergan's share price fell $9.07, or 4.58%, to close at $188.82 on November 3, 2016. With offices in New York, Chicago, Florida, and Los Angeles, The Pomerantz Firm, concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. ALLSTATE CORP: St. Clair Police Retirement System Files Suit ------------------------------------------------------------ City of St. Clair Shores Police and Fire Retirement System, individually and on behalf of all others similarly situated, Plaintiff, v. The Allstate Corporation, Thomas J. Wilson, Matthew E. Winter and Patrick Macellaro, Defendants, Case No. 1:16-cv- 10510 (N.D. Ill., November 10, 2016), bring this action as a collective action in accordance with 29 U.S.C. Sec. 216(b) against the defendant on behalf of themselves and all others similarly situated, because of defendant's unlawful deprivation of plaintiffs' rights to overtime compensation under the Fair Labor Standards Act. Allstate is a publicly traded personal lines insurance company that includes homeowner, renter, motorcycle and auto insurance. Allstate embarked on a plan to grow its policies in-force and revenues in its auto insurance segment which turned out to be lower in quality and carried increased risk which caused Allstate's largest increase in frequency of auto claims in nearly five years. Defendants made false and misleading statements regarding the cause of the dramatic increase. As a result of the disappointing disclosures, Allstate's stock price dropped by more than 10% from $69.38 per share on August 3, 2015 to $62.34 per share on August 4, 2015, on an unusually high volume of trading, eliminating more than $2 billion in market capitalization. Thomas J. Wilson, Matthew E. Winter and Patrick Macellaro served in the Board of Directors of Allstate. The City of St. Clair Shores Police and Fire Retirement System purchased the common stock of Allstate and lost substantially. The Plaintiffs are represented by: James E. Barz, Esq. Frank A. Richter, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 200 South Wacker Drive, 31st Floor Chicago, IL 60606 Telephone: (312) 674-4674 Fax: (312) 674-4676 - and - Thomas C. Michaud, Esq. VANOVERBEKE MICHAUD & TIMMONY, P.C. 79 Alfred Street Detroit, MI 48201 Telephone: (313) 578-1200 Fax: (313) 578-1201 ALLY FINANCIAL: To Defend Against Bucks Cty Retirement Fund Case ---------------------------------------------------------------- Ally Financial Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the Company is defending against a securities litigation by Bucks County Employees Retirement Fund. In October 2016, a purported class action -- Bucks County Employees Retirement Fund v. Ally Financial Inc. et al, Case No. 16-013616-CZ -- was filed in the Circuit Court for Wayne County in the State of Michigan. The complaint alleges material misstatements and omissions in connection with Ally's initial public offering in April 2014, including a failure to adequately disclose the severity of rising subprime automotive loan delinquency rates, deficient underwriting measures employed in the origination of subprime automotive loans, and aggressive tactics used with low-income borrowers. The request for relief includes an indeterminate amount of damages, fees, and costs and other remedies. "We intend to vigorously defend against this action," the Company said. ALPHA CORP: "Ascher" Sues Over Price-Fixing of Door Fixtures ------------------------------------------------------------ Halley Ascher, Gregory Asken, Melissa Barron, Kimberly Bennett, David Bernstein, Ron Blau, Tenisha Burgos, Kent Busek, Jennifer Chase, Rita Cornish, Nathan Croom, Lori Curtis, Jessica Decastro, Theresia Dillard, Alena Farrell, Jane Fitzgerald, Carroll Gibbs, Dori Gilels, Jason Grala, Ian Groves, Curtis Gunnerson, Paul Gustafson, Tom Halverson, Curtis Harr, Andrew Hedlund, Gary Arthur Herr, John Hollingsworth, Carol Ann Kashishian, Elizabeth Kaufman, Robert Klingler, Kelly Klosterman, James Marean, Rebecca Lynn Morrow, Edward Muscara, Stacey Nickell, Sophie O'Keefe-Zelman, Roger Olson, William Picotte, Whitney Porter, Cindy Prince, Janne Rice, Robert Rice, Jr., Frances Gammell-Roach, Darrel Senior, Meetesh Shah, Darcy Sherman, Erica Shoaf, Arthur Stukey, Kathleen Tawney, Jane Taylor, Keith Uehara, Michael Wick, and Phillip Young, Plaintiffs, v. Alpha Corporation and Alpha Technology Corporation, Defendants, Case No. 2:16-cv-13997, (E.D. Mich., November 10, 2016), seeks to recover damages, injunctive relief, and other relief pursuant to federal antitrust laws and state antitrust, unfair competition, consumer protection and unjust enrichment laws. Defendants are manufacturers and/or suppliers of inside and outside door handles, tailgate and trunk handles, keys, lock sets and door locks, including free-wheel door locks and electrical/mechanical steering column locks, globally and in the United States. Plaintiff accuse them of engaging in a conspiracy to unlawfully fix, artificially raise, maintain and/or stabilize prices, rig bids for the automotive industry, raising prices for car manufacturers and consumers alike and allocate the market and customers in the United States for these items. Plaintiffs represent all persons and entities who purchased or leased a new four-wheeled passenger automobile, van, sports utility vehicle, crossover, or pickup truck in the United States for personal use and not for resale. Plaintiff is represented by: E. Powell Miller, Esq. Devon P. Allard, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Dr., Ste. 300 Rochester, MI 48307 Telephone: (248) 841-2200 Facsimile: (248) 652-2852 Email: epm@millerlawpc.com dpa@millerlawpc.com - and - Hollis Salzman, Esq. Bernard Persky, Esq. William V. Reiss ROBINS KAPLAN LLP 601 Lexington Avenue, Suite 3400 New York, NY 10022 Telephone: (212) 980-7400 Facsimile: (212) 980-7499 Email: HSalzman@RobinsKaplan.com BPersky@RobinsKaplan.com WReiss@RobinsKaplan.com - and - Steven N. Williams, Esq. Demetrius X. Lambrinos, Esq. Elizabeth Tran, Esq. COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 Email: swilliams@cpmlegal.com dlambrinos@cpmlegal.com etran@cpmlegal.com - and - Marc M. Seltzer, Esq. Steven G. Sklaver, Esq. SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 Email: mseltzer@susmangodfrey.com ssklaver@susmangodfrey.com - and - Terrell W. Oxford, Esq. Chanler A. Langham, Esq. Omar Ochoa, Esq. SUSMAN GODFREY L.L.P. 1000 Louisiana St., Suite 5100 Houston, TX 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 Email: toxford@susmangodfrey.com clangham@susmangodfrey.com oochoa@susmangodfrey.com AMERICAN ETC: Quinteros et al. Seeks Unpaid Overtime Wages ---------------------------------------------------------- Jeovanny Quinteros, Edgar Martinez Preciado, Carlos Sanchez Caballero, Jose Vargas Alonso, Raul Antonio Hernandez, individually and on behalf of others similarly situated, Plaintiffs vs. AMERICAN ETC., INC; DOES 1 through 100, Defendants, Case No. 16CIV02288 (Cal. Super., County of San Mateo, November 8, 2016), alleges failure: to pay overtime wages, provide meal periods and rest periods, to furnish accurate wage statements, pay earned wages upon termination or discharge and unfair competition in violation of the Business & Professions Code. Defendant AMERICAN ETC, INC. is doing business as ROYAL LAUNDRY and owns and operates a linen laundering services business. The Plaintiffs are represented by: Michael H. Kim, Esq. Melanie Massey, Esq. MICHAEL H. KIM, P.C. 475 El Camino Real, Suite 309 Milbrae, CA 94030 Phone: (650) 697-8899 Fax: (650) 697-8896 ATLANTA, GA: McCain et al. Sue Over Disability Life Benefits ------------------------------------------------------------- MICHAEL MCCAIN, LEON K. TANT, MICHAEL BANKS, JAMES M. MAYFIELD, and TERRY C. COOK, individually, and on behalf of all others similarly situated, Plaintiffs, v. CITY OF ATLANTA, Defendant, Case No. 2016CV282497 (Ga. Super., Fulton County, November 9, 2016), asserts that the Defendant has wrongfully denied Plaintiffs Disability Life Benefits under their Group Life and Personal Accident Insurance for Employees and Life Insurance. The City of Atlanta is a municipal corporation organized and existing under the laws of the State of Georgia. The Plaintiffs are represented by: James W. Hurt, Jr., Esq. HURTSTOLZ, P.C. 345 West Hancock Avenue Athens, GA 30601 Phone: (706) 3895-2750 Fax: (866)766-9245 E-mail: jhurt@hurtstolz.com - and - Mary A. Prebula, Esq. Cheri D. Tipton, Esq. PREBULA & ASSOCIATES LLC 3483 Satellite Blvd., N.W., Suite 200 Duluth, GA 30096 Phone: 770-495-9090 Fax: 770-497-2363 E-mail: mprebula@prebulallc.com ctiptont@prebulallc.com AUDI OF AMERICA: Faces "Stokar" Lawsuit Over Defeat Device ---------------------------------------------------------- ELLIOT H. STOKAR, individually and on behalf of all those similarly situated, Plaintiff, v. AUDI OF AMERICA, LLC, and AUDI AG, Defendants, Case No. 1:16-cv-10456 (N.D., Ill., November 8, 2016), seeks damages on behalf of all persons and entities nationwide who purchased or leased an Audi vehicle equipped with a defeat device designed to limit emissions and increase fuel efficiency. Audi America is a wholly-owned U.S. subsidiary of Audi AG, and is engaged in business, including the advertising, marketing and sale of Audi automobiles, in all 50 states. The Plaintiff is represented by: Steve W. Berman, Esq. Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 E-mail: steve@hbsslaw.com tomloeser@hbsslaw.com - and - Elizabeth A. Fegan, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 455 N. Cityfront Plaza Drive, Suite 2410 Chicago, IL 60611 Phone: (708) 628-4960 Fax: (708) 628-4950 E-mail: beth@hbsslaw.com - and - Christian A. Jenkins, Esq. MINNILLO & JENKINS, CO. LPA 2712 Observatory Avenue Cincinnati, OH 45208 Phone: (513) 723-1600 Fax: (513) 723-1620 E-mail: cjenkins@minnillojenkins.com - and - Jeffrey S. Goldenberg, Esq. Todd B. Naylor, Esq. GOLDENBERG SCHNEIDER, LPA One West Fourth Street, 18th Floor Cincinnati, OH 45202 Phone: (513) 345-8291 Fax: (513) 345-8294 E-mail: jgoldenberg@gs-legal.com tnaylor@gs-legal.com rsherwood@gs-legal.com AUSTRALIA: Oakey Residents Sign Up to Toxic Foam Class Action ------------------------------------------------------------- Tom Gillespie, writing for The Chronicle, reports that Brad Hudson is not looking for a cash-grab -- all he wants is the Department of Defence to do the right thing. The Oakey resident, whose property on Walker Lane has one of the most toxic bores in the area declared affected by the water contamination crisis, is one of hundreds of people interested in signing up to a class-action lawsuit against the department. A majority of applicants in the class-action suit want compensation because of reduced property values, but Mr. Hudson said he was on-board because he was running out of options. "I hope it helps people in need, the people who have been affected in their property values," he said. "I'd like to see everyone in Oakey get involved, but there are still going to 30-40 like myself who are going to be affected by health concerns. "I'm not after money -- I just want an uncontaminated block of soil. "It pains me to know that was my retirement egg, but it's so hard to sink money knowing I won't get the property back." Mr. Hudson, who has memories of watching the toxic foam that contained chemicals like PFAS floating from the Oakey army base across his property, is frustrated and angry by the department's failure to act. He also criticised the department's reporting of the findings, saying it had not taken samples from properties with high toxicity levels. "You wouldn't want to eat meat or vegetables from my place, but they're saying it is at an acceptable level. They're saying it's low and acceptable now," he said. "There are lots of flaws in it and I don't know where they get their reports from because they didn't take any samples from my place. "My door is always open, but they don't want to go to any of those extreme areas." Shine Lawyers partner Peter Shannon, who is handling the class- action suit, said the people interested were not looking for a cash-grab. "No one can argue that they came out in July 2014 and said it was a chemical of concern and that this area was contaminated," he said. "Even if they're right that it's not right to be overly concerned, they've managed to create stress among people. "People can't sell their properties and on average these are people who want to live in town and pay rates. "No one wants to join a class-action if they can avoid it -- no one rushes out to litigation, but we've been negotiating for a long time." When asked about the class-action suit, the Department of Defence's Chris Birrer elected not to provide a comment to The Chronicle. While the fight between Oakey residents and the department continues, Mr. Hudson all he was interested in was a future for him and his family. "I've got kids who have been subjected to this and I, for one, will drop my class-action if they come tomorrow and get us a new property," he said. AUSTRALIA: Whistleblower Law Needs Reform, Attorney Says -------------------------------------------------------- Sarah Danckert, writing for The Sydney Morning Herald, reports that laws in Australia that prevent whistleblowers speaking out or leave whistleblowers open to retaliation from the companies accused of wrongdoing need to be changed, according to the lawyer running the class action on behalf of Christmas Island detainees. Maurice Blackburn principal Andrew Watson said he supported bringing in a US-style system that protects whistleblowers from the backlash of their employer and provides anonymity to those speaking out about wrongdoing. The US system also allows the corporate watchdog the Securities Exchange Commission to pay bounties to whistleblowers if their tip leads to a fine of more than $1 million being issued. "In the context of a class action on behalf of Christmas Island detainees, Maurice Blackburn has had to obtain orders from the court in order to speak to whistleblowers without the threat of criminal sanctions," Mr. Watson told the Maurice Blackburn Fairfax Media Class Action Symposium in Sydney. "In a properly functioning system this should not be a matter requiring a crafted and specific court order but something dealt with by way of general policy," Mr. Watson said. Whistleblowers should also be able to go to class action firms so victims of illegal behaviour could have some recourse, he said. It's a view not shared by a senior lawyer who has represented several corporate defendants in class actions. Jenny Campbell said she disagreed with Mr. Watson's call to extend whistleblower disclosure to class action firms, as opposed to a corporate regulator. "The fact is the law has over many many years enshrined the principle that an employee who receives confidential information in the course of their employment is under an obligation to maintain that confidentiality," Ms. Campbell said. "I struggle with the concept of being able to disclose one private entity's information to another private entity. And that is what a disclosure to a class action firm would be," she said. Maurice Blackburn principal Josh Bornstein, who has represented whistleblowers in Fair Work cases, said whistleblowers often came to Maurice Blackburn because the Australian Securities and Investments Commission was so under resourced. "Organisations should not be able to contract out of accountability for unlawful conduct and invoke their contracts with staff to silence them to stop that illegal conduct being ventilated," Mr. Bornstein said. Mr. Watson's and Mr. Bornstein's calls for greater whistleblower protections in Australia was supported by Labaton Sucharow partner Jordan Thomas, who is also a former SEC prosecutor. Mr. Thomas said Australia's current whistleblowing laws mean that "good guys" who call out wrongdoing by corporate entities are afforded fewer protections than those who have broken the law to participate in a cartel, the conference has heard. "It strikes me as a little inconsistent," Mr. Thomas said. "If it's OK to incentivise them to dob when they're bad guys, how about doing it for people who are good guys?" Under Australian law, there are no real protections for whistleblowers of corporate wrongdoing, unless that whistleblower has participated in a cartel. In those instances, a cartel participant can seek immunity if they reveal their illegal activities to the Australian Competition and Consumer Commission. AVALANCHE BIOTECHNOLOGIES: Court Wants Suit Revised by Dec. 2 ------------------------------------------------------------- District Judge James Donato of the United States District Court for the Northern District of California dismissed with leave to amend the complaint in the case captioned, JOE HUANG, et al., Plaintiffs, v. AVALANCHE BIOTECHNOLOGIES, INC., et al., Defendants, Case No. 15-CV-03185-JD (N.D. Cal.). In the securities fraud class action, lead plaintiffs Arpan Bachhawat and Srikanth Koneru sue on behalf of purchasers of publicly traded Avalanche Biotechnologies, Inc. common stock between July 31, 2014 and June 15, 2015. Plaintiffs allege two sets of claims: -- Counts one and two allege that Avalanche, former CEO Thomas Chalberg (Chalberg), former CFO Linda Bain (Bain), board chairman Mark Blumenkranz (Blumenkranz), and board member Steve Schwartz (Schwartz) made false and misleading public statements in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b), 78t(a), and Securities and Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. Section 240.10b-5. -- Counts three and four allege that Avalanche, Chalberg, Bain, Blumenkranz, Schwartz, board member John McLaughlin (McLaughlin), board member Paul Wachter (Wachter), and the IPO underwriters, Jefferies LLC (Jefferies), Cowen & Co., LLC (Cowen), Piper Jaffray & Co. (Piper Jaffray) and William Blair & Co., LLC (William Blair) made false and misleading statements relating to the IPO registration in violation of Sections 11 and 15 of the Securities Act of 1933, 15 U.S.C. Sections 77k,o. The Avalanche defendants move to dismiss the complaint for failure to state a claim under the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. Section 78u-4 and Federal Rule of Civil Procedure 9(b), joined by the IPO underwriter defendants. In his Order dated November 3, 2016 available at https://is.gd/S2sNXJ from Leagle.com, Judge Donato concluded that Plaintiffs have failed sufficiently to plead falsity and that the Section 11 claims allege the same misrepresentation or non- fraudulent course of conduct from the 10(b) claims thus, it does not applies to the entirety of the complaint and since plaintiffs have not adequately alleged a violation of Section 10(b) or Section 11, plaintiffs' claims under Section 20(a) and Section 15 must also be dismissed. Plaintiffs may file an amended complaint by December 2, 2016. Joe Huang is represented by David Eldridge Bower, Esq. -- dbower@monteverdelaw.com -- MONTEVERDE & ASSOCIATES PC -- Laurence M. Rosen, Esq. -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, P.A. Srikanth Koneru is represented by Barbara Ann Rohr, Esq. -- brohr@faruqilaw.com -- and Richard W. Gonnello, Esq. -- rgonnello@faruqilaw.com -- FARUQI & FARUQI, LLP Avalanche Biotechnologies, Inc., et al., are represented by Adam Isaac Esq. -- Adam.Isaac@mto.com -- and Robert Leo Dell Angelo, Esq. -- Robert.DellAngelo@mto.com -- MUNGER TOLLES & OLSON LLP AVRAHAM BASHAREL: "Weber" Files Suit in Calif. Ct. -------------------------------------------------- SCOTT WEBER, individually, and on behalf of a class of similarly situated individuals, v. AVRAHAM BASHAREL, AS TRUSTEE OF THE BASHAREL FAMILY TRUST DATED MARCH 16,1994, and DOES 1 to 100, Defendants, BC 640016 (Cal. Super., Los Angeles County, November 8, 2016), alleges breach of the warranty of habitability, private nuisance, negligence, and unfair competition, relating to the substandard condition of an apartment building. Defendant AVRAHAM BASHAREL, AS TRUSTEE OF THE BASHAREL FAMILY TRUST, owns a 100-unit residential apartment building. The Plaintiff is represented by: Robert L. Starr, Esq. THE LAW OFFICE OF ROBERT L. STARR, APC 23901 Calabasas Road, Suite 2072 Calabasas, CA 91302 Phone: (818) 225-9040 Fax: (818) 225-9042 E-mail: robert@starrlawmail.com BAYTOWN C&M: "Comeaux" Suit Seeks to Recover Overtime Pay --------------------------------------------------------- Timothy A. Comeaux, individually and on behalf of all others similarly situated, Plaintiff, v. Baytown C & M Equipment Company Inc., Defendant, Case No. 4:16-cv-03329 (S.D. Tex., November 10, 2016), seeks to recover unpaid wages, including overtime pay, and other damages under the Fair Labor Standards Act of 1938. Baytown C & M is based in Baytown, Texas and provides services and goods in the commercial lawn and garden industry. Plaintiff was employed as a Certified Technician and Salesman. The Plaintiff is represented by: Megan A. Daic, Esq. DAIC LAW 12777 Jones Road, Suite 210 Houston, TX 77070 Tel: (713) 808-5246 Fax: (832) 201-0713 Email: megan@daiclaw.com BISTRO DRAGON: "Severino" Suit Invokes FLSA, Ill., Min. Wage Law ---------------------------------------------------------------- JEREMIAS SEVERINO, on behalf of himself and all other persons similarly situated, known and unknown, Plaintiff, v. BISTRO DRAGON, INC., and KEVIN CHEN, individually, Defendants, Case No. 1:16-cv-10475 (N.D. Ill., November 9, 2016), arises under the Fair Labor Standards Act, and the Illinois Minimum Wage Law for Defendants' alleged failure to pay overtime wages to Plaintiff and other similarly-situated persons. Defendant Bistro Dragon -- http://bistrodragon.com/contact/-- operates a restaurant, Bistro Chen. The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS, P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Phone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com sarendt@flsalaw.com flowerree@flsalaw.com CALIFORNIA: Dismissal of Suit v. Parole Board Recommended --------------------------------------------------------- Magistrate Judge Carolyn K. Delaney of the United States District Court for the Eastern District of California recommended the dismissal of Plaintiff's complaint in its entirety in the case captioned, MICHAEL A. VICTORY, Plaintiff, v. BOARD OF PAROLE HEARINGS, et al., Defendants, Case No. 2:16-CV-0997 WBS CKD P (E.D. Cal.). Michael A. Victory, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. Section 1983. Plaintiff names as defendants the three officials at the state's Board of Parole Hearings (BPH), three state court clerks, and two prison officials who denied an inmate appeal related to his claims. Plaintiff asserts seven grounds for relief: (1) Plaintiff asserts that BPH officials' "sub rosa policy of denying parole at 99.6% of initial hearings based on an individual's offense" violates the federal due process rights of life term inmates, including himself; (2) Plaintiff asserts that defendants Anderson and Martin violated his right to remain silent, as plaintiff's silence was a factor in their decision to deny parole; (3) Plaintiff asserts that, at his 2013 parole hearing, Anderson and Martin "relied on evidence that was previously ruled as prejudicial and inadmissible by the trial court in violation to his right to a fair and impartial hearing; (4&5) Plaintiff claims the superior court "failed to properly adjudicate the merits" of his habeas petition and that defendant court clerks "failed to fulfill their ministerial duties" with respect to his state litigation; (6) Plaintiff alleges that defendants Hodges and Lozano denied his inmate appeal seeking access to confidential documents in his Central File in violation of his right to due process; and (7) Plaintiff asserts that defendants at his 2013 hearing imposed an excessive five-year denial of parole in violation of the Ex Post Facto Clause. On June 9, 2016, plaintiff filed a motion to amend the complaint along with a proposed amended complaint. In her Findings and Recommendations dated November 4, 2016 available at https://is.gd/JcPtdA from Leagle.com, Judge Delaney found that the complaint should be dismissed for failure to state a claim; the case should be dismissed without leave to amend because it is clear that the complaint cannot be cured by amendment. CAPITAL CONTRACTORS: Sanchez Seeks to Certify Class of Cleaners --------------------------------------------------------------- The Plaintiffs in the lawsuit captioned LILLIANA SANCHEZ, YOLANDA CAMEY and JUAN CARLOS RAMIREZ, on behalf of themselves and all others similarly situated v. CAPITAL CONTRACTORS INC., a New York Corporation, dba CAPITAL BUILDING MAINTENANCE SERVICES, INC., and DOES 1 through 50, Case No. 3:14-cv-02622-MMC (N.D. Cal.), move the Court for an order certifying this class: All persons who, from April 25, 2010 to final judgment, have been (a) employed by Capital Contractors, Inc. ("Capital") pursuant to contract in the State of California to perform cleaning services at Capital's clients' locations; and (b) classified as an "independent contractor" while performing cleaning services and/or supervising the performance of cleaning services at Capital's clients' properties. The Plaintiffs also seek their appointment as representative plaintiffs on behalf of the class(es) and the appointment of Velton Zegelman, P.C., as class counsel. The Court will commence a hearing on February 24, 2017, at 9:00 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FJ41fefv The Plaintiffs are represented by: Kevin R. Allen, Esq. Daniel Velton, Esq. Hannah R. Salassi, Esq. VELTON ZEGELMAN P.C. 525 W. Remington Drive, Suite 106 Sunnyvale, CA 94087 Telephone: (408) 505-7892 Facsimile: (408) 228-1930 E-mail: kallen@vzfirm.com dvelton@vzfirm.com hannah.salassi@gmail.com CAREER EDUCATION: "Surrett" Suit Remains Pending ------------------------------------------------ Career Education Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the Company continues to defend against the case, Surrett, et al. v. Western Culinary Institute, Ltd. and Career Education Corporation. On March 5, 2008, a complaint was filed in Portland, Oregon in the Circuit Court of the State of Oregon in and for Multnomah County naming Western Culinary Institute, Ltd. ("WCI") and the Company as defendants. Plaintiffs filed the complaint individually and as a putative class action and alleged two claims for equitable relief: violation of Oregon's Unlawful Trade Practices Act ("UTPA") and unjust enrichment. Plaintiffs filed an amended complaint on April 10, 2008, which added two claims for money damages: fraud and breach of contract. Plaintiffs allege WCI made a variety of misrepresentations to them, relating generally to WCI's placement statistics, students' employment prospects upon graduation from WCI, the value and quality of an education at WCI, and the amount of tuition students could expect to pay as compared to salaries they could expect to earn after graduation. WCI subsequently moved to dismiss certain of plaintiffs' claims under Oregon's UTPA; that motion was granted on September 12, 2008. On February 5, 2010, the Court entered a formal Order granting class certification on part of plaintiff's UTPA and fraud claims purportedly based on omissions, denying certification of the rest of those claims and denying certification of the breach of contract and unjust enrichment claims. The class consists of students who enrolled at WCI between March 5, 2006 and March 1, 2010, excluding those who dropped out or were dismissed from the school for academic reasons. Plaintiffs filed a fifth amended complaint on December 7, 2010, which included individual and class allegations by Nathan Surrett. Class notice was sent on April 22, 2011, and the opt-out period expired on June 20, 2011. The class consisted of approximately 2,600 members. They are seeking tuition refunds, interest and certain fees paid in connection with their enrollment at WCI. On May 23, 2012, WCI filed a motion to compel arbitration of claims by 1,062 individual class members who signed enrollment agreements containing express class action waivers. The Court issued an Order denying the motion on July 27, 2012. On August 6, 2012, WCI filed an appeal from the Court's Order and on August 30, 2012, the Court of Appeals issued an Order granting WCI's motion to compel the trial court to cease exercising jurisdiction in the case. The oral argument on the appeal was heard on May 9, 2014 and on January 21, 2016, the appellate court reversed the trial court and held that the claims by the 1,062 individual class members referenced above should be compelled to arbitration. The case has been remanded back to the trial court for further proceedings. The Company said, "Because of the many questions of fact and law that have already arisen and that may arise in the future, the outcome of this legal proceeding is uncertain at this point. Based on information available to us at present, we cannot reasonably estimate a range of potential loss, if any, for this action because of the inherent difficulty in assessing the appropriate measure of damages and the number of class members who might be entitled to recover damages, if we were to be found liable. Accordingly, we have not recognized any liability associated with this action." The Company's academic institutions offer a quality education to a diverse student population in a variety of disciplines through online, campus-based and hybrid learning programs. CAREER EDUCATION: "Wilson" Parties Await Decision on Appeal ----------------------------------------------------------- Career Education Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the parties are awaiting the court's decision on the appeal in the case, Wilson, et al. v. Career Education Corporation. The Company said, "On August 11, 2011, Riley Wilson, a former admissions representative based in Minnesota, filed a complaint in the U.S. District Court for the Northern District of Illinois. The two-count complaint asserts claims of breach of contract and unjust enrichment arising from our decision to terminate our Admissions Representative Supplemental Compensation ("ARSC") Plan. In addition to his individual claims, Wilson also seeks to represent a nationwide class of similarly situated admissions representatives who also were affected by termination of the plan." "On October 6, 2011, we filed a motion to dismiss the complaint. On April 13, 2012, the Court granted our motion to dismiss in its entirety and dismissed plaintiff's complaint for failure to state a claim. The Court dismissed this action with prejudice on May 14, 2012. On June 11, 2012, plaintiff filed a notice of appeal with the U.S. Court of Appeals for the Seventh Circuit appealing the final judgment of the trial court. "Briefing was completed on October 30, 2012, and oral argument was held on December 3, 2012. On August 30, 2013, the Seventh Circuit affirmed the district court's ruling on plaintiff's unjust enrichment claim but reversed and remanded for further proceedings on plaintiff's breach of contract claim. "On September 13, 2013, we filed a petition for rehearing to seek review of the panel's decision on the breach of contract claim and for certification of question to the Illinois Supreme Court, but the petition was denied. "The case was remanded to the district court for further proceedings on the sole question of whether CEC's termination of the ARSC Plan violated the implied covenant of good faith and fair dealing. The parties completed fact discovery as to the issue of liability. "On March 24, 2015, we filed a motion for summary judgment which the Court granted on December 18, 2015. Plaintiff filed his notice of appeal on January 16, 2016. The oral argument on the appeal was heard on September 23, 2016 and the parties are awaiting the court's decision." The Company's academic institutions offer a quality education to a diverse student population in a variety of disciplines through online, campus-based and hybrid learning programs. CEMPRA INC: January 3 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Lundin Law PC, a shareholder rights firm, on Nov. 8 disclosed that a class action lawsuit against Cempra, Inc. ("Cempra" or the "Company") concerning possible violations of federal securities laws between May 1, 2016 and November 1, 2016 inclusive (the "Class Period"). Investors who purchased or otherwise acquired shares during the Class Period should contact the firm prior to the January 3, 2017 lead plaintiff motion deadline. To participate in this class action lawsuit, you can call Brian Lundin, Esquire, of Lundin Law PC, at 888-713-1033, or e-mail him at brian@lundinlawpc.com No class has been certified in the above action. Until a class is certified, you are not considered represented by an attorney. You may also choose to do nothing and be an absent class member. The Complaint alleges that during the Class Period, Cempra made false and/or misleading statements and/or failed to disclose that its drug solithromycin posed significant safety risks for hepatotoxicity, so the Company's public statements were materially false and misleading at all relevant times. On November 2, 2016, the U.S. Food and Drug Administration posted a preliminary review on its website of solithromycin, highlighting a significant safety signal for hepatotoxicity. Lundin Law PC was founded by Brian Lundin, a securities litigator based in Los Angeles dedicated to upholding shareholders' rights. CITIMORTGAGE INC: Class Suit Dismissal Based on Spokeo Ruling ------------------------------------------------------------- Bryan Clark, Esq. -- bclark@vedderprice.com -- of Vedder Price, in an article for The National Law Review, reports that despite claims from the plaintiffs' bar that the Supreme Court's decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016), did not significantly change the landscape for class actions, courts continue to rely on Spokeo to dismiss claims that have no concrete injury beyond a statutory violation. In the last month, two more cases -- including one federal circuit-level decision and one TCPA decision -- were dismissed because the plaintiff was unable to demonstrate Article III standing under Spokeo. These cases demonstrate the important role that Spokeo-related arguments can play in stymying class actions. In Nicklaw v. CitiMortgage, Inc., 2016 U.S. App. LEXIS 18206 (11th Cir. Oct. 6, 2016), the court held that the plaintiff lacked Article III standing to pursue a claim where the class action complaint alleged statutory violations and sought only statutory damages. The only claim asserted by the plaintiff in Nicklaw was that the plaintiff failed to comply with a New York statute requiring it to sign and record a certificate of discharge within 30 days of a mortgage satisfaction. Based on the defendant's alleged failure to do so, the plaintiff sought monetary damages. The court held that plaintiff alleged "neither a harm nor a material risk of harm that the district court could remedy." This opinion marked the first time that the Eleventh Circuit had applied the Spokeo framework and will undoubtedly have a ripple effect on district court cases within the circuit (and beyond) when defendants make similar arguments. Although Nicklaw is not a media or privacy case, it certainly provides a roadmap for all manner of class actions. In fact, a district court handling a TCPA case employed this same reasoning a couple weeks later in Kostmayer Const., LLC, v. Port Pipe & Tube, Inc., 2016 U.S. Dist. LEXIS 145947 (W.D. La. Oct. 19, 2016). In Kostmayer, the plaintiff alleged that the defendant had sent at least six unsolicited faxes in violation of the TCPA. The court noted that, other than its demand for statutory damages, "[t]he complaint does not further explain any alleged damages incurred by the plaintiff." Citing Spokeo, the court also observed that "a plaintiff must still allege 'a concrete injury even in the context of a statutory violation.'" Conclusory damage allegations are inadequate, as is the "bare assurance that an unspecified injury exists." The Nicklaw and Kostmayer cases present the ideal scenario for defense litigators. The decisions show how the Spokeo standard can be used to pursue dismissal in class action litigation, which is a valuable tool that all class action defense lawyers should be considering in every case based on statutory violations and statutory damages. COMMUNITY BANK: "Hesami" Suit Alleges Unlawful Labor Practices -------------------------------------------------------------- Saeed Hesami, individually and on behalf of all others similarly situated, Plaintiff, v. COMMUNITY BANK and DOES 1 through 10, inclusive, Defendants, Case BC 640 235 (Cal. Super., Los Angeles County, November 9, 2016), complains that Business Relationship Managers of the Defendants were (a) not paid overtime compensation; (b) not provided meal and rest breaks; (c) not reimbursed for ordinary business expenses; (d) not provided lawful wage statements, and (d) not timely and properly paid all their wages at time of separation. Community Bank provides financial services with its principal place of business in Pasadena, California. The Plaintiff is represented by: Edward J. Wynne, Esq. WYNNE LAW FIRM Wood Island 80 E. Sir Francis Drake Blvd., Ste. 3G Larkspur, CA 94939 Phone: (415) 461-6400 Fax: (415) 461-3900 E-mail: ewynne@wynnelawfirm.com CONFIE INSURANCE: Accused by Milton of Misclassifying Agents ------------------------------------------------------------ YOTONDA MILTON, individually and on behalf of all others similarly situated v. CONFIE INSURANCE SERVICES, INC., a/k/a CIGH SERVICES, INC.; and INSUREONE INDEPENDENT INSURANCE AGENCY, LLC, Case No. 1:16-cv-10523 (N.D. Ill., November 11, 2016), is a class and collective action brought on behalf of current and former agents, who were misclassified as exempt employees by the Defendants, and who worked over 40 hours in any work week and were not paid at an overtime rate of pay, in violation of the Illinois Minimum Wage Law and the Fair Labor Standards Act. Confie Insurance Services, Inc., also known as Confie Insurance Group Holdings Services, Inc., is a California corporation, headquartered in Plano, Texas. InsureOne Independent Insurance Agency LLC is an Illinois corporation, with its principal place of business located in Plano. According to its Web site, "InsureOne is part of the Confie Insurance Group Holding's family, one of the largest privately-owned insurance agencies/brokers in the United States." The Plaintiff is represented by: Alejandro Caffarelli, Esq. Lorrie T. Peeters, Esq. CAFFARELLI & ASSOCIATES LTD. 224 N. Michigan Ave., Suite 300 Chicago, IL 60604 Telephone: (312) 763-6880 E-mail: acaffarelli@cslaw.com l.peeters@caffarelli.com CONTINENTAL AUTOMOTIVE: Court Denies Dismissal Bid as Premature --------------------------------------------------------------- Chief District Judge Frank D. Whitney of the United States District Court for Western District of North Carolina denied without prejudice Defendants' Motion to Dismiss Plaintiffs' Complaint in the case captioned, MARK WEST, et al., Plaintiffs, v. CONTINENTAL AUTOMOTIVE, INC., et al., Defendants, Case No. 3:16- CV-00502-FDW-DSC (W.D.N.C.). Plaintiffs filed the class action on June 29, 2016, and allege Defendants violated the Employment Retirement Income Security Act of 1974, 29 U.S.C. Section 1001, et seq. (ERISA) when they improperly calculated Plaintiffs' vesting and eligibility service under the plain terms of the pension plan. Plaintiffs' Complaint alleges two causes of action on behalf of the proposed class: (1) Wrongful Denial of Benefits under ERISA Sec. 502(a); and (2) Breach of Fiduciary Duty under ERISA Sections 404 and 502(a). Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that Plaintiffs' wrongful denial of benefits claim is barred for failure to exhaust administrative remedies; and Plaintiffs cannot state a claim for breach of fiduciary duty because the wrongful denial of benefits claim already provides an adequate remedy. In his Order dated November 2, 2016 available at https://is.gd/ooZ1Wh from Leagle.com, Judge Whitney found that it is premature to dismiss Plaintiffs' wrongful denial of benefits claim based on Defendants' failure to exhaust arguments. Mark West, et al. are represented by Caitlin Hale Walton, Esq. -- cwalton@essexrichards.com -- Edward G. Connette, Esq. -- econnette@essexrichards.com -- and Norris Arden Adams, II, Esq. -- nadams@essexrichards.com -- ESSEX RICHARDS Continental Automotive, Inc., et al. are represented by Meredith Anne Pinson, Esq. -- mpinson@mcguirewoods.com -- and Susan Pyle Dion, Esq. -- sdion@mcguirewoods.com -- MCGUIREWOODS LLP CONTINENTAL RESOURCES: Negotiations Ongoing in "Strack" Action -------------------------------------------------------------- Continental Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the parties in the class action complaint by Billy J. Strack and Daniela A. Renner have continued settlement negotiations. In November 2010, a putative class action was filed in the District Court of Blaine County, Oklahoma by Billy J. Strack and Daniela A. Renner as trustees of certain named trusts and on behalf of other similarly situated parties against the Company. The Petition alleged the Company improperly deducted post- production costs from royalties paid to plaintiffs and other royalty interest owners from crude oil and natural gas wells located in Oklahoma. The plaintiffs alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the proposed class. On November 3, 2014, plaintiffs filed an Amended Petition that did not add any substantive claims, but sought a "hybrid class action" in which they sought certification of certain claims for injunctive relief, reserving the right to seek a further class certification on money damages in the future. Plaintiffs filed an Amended Motion for Class Certification on January 9, 2015, that modified the proposed class to royalty owners in Oklahoma production from July 1, 1993, to the present (instead of 1980 to the present) and sought certification of over 45 separate "issues" for injunctive or declaratory relief, again, reserving the right to seek a further class certification of money damages in the future. The Company responded to the petition, its amendment, and the motions for class certification denying the allegations and raising a number of affirmative defenses and legal arguments to each of the claims and filings. Certain discovery was undertaken and the "hybrid" motion was briefed by plaintiffs and the Company. A hearing on the "hybrid" class certification was held on June 1st and 2nd, 2015. On June 11, 2015, the trial court certified a "hybrid" class as requested by plaintiffs. The Company has appealed the trial court's class certification order, which will be reviewed de novo by the appellate court. The appeal briefing is complete and ready for determination by the court. An unsuccessful mediation was conducted on December 7, 2015. The parties have continued settlement negotiations. If such negotiations are unsuccessful, the Company intends to litigate the case to its conclusion. The Company is not currently able to estimate a reasonably possible loss or range of loss or what impact, if any, the action will have on its financial condition, results of operations or cash flows due to the preliminary status of the matter, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the potential size of the class, the scope and types of the properties and agreements involved, the production years involved, and the ultimate potential outcome of the matter. Although not currently at issue in the "hybrid" certification, plaintiffs have alleged underpayments in excess of $200 million that they may claim as damages, which may increase with the passage of time, a majority of which would be comprised of interest. The Company disputes plaintiffs' claims, disputes that the case meets the requirements for a class action and is vigorously defending the case. The Company will continue to assert its defenses to the case as certified as well as any future attempt to certify a money damages class. Continental Resources, Inc.'s principal business is crude oil and natural gas exploration, development and production with properties primarily located in the North, South, and East regions of the United States. COORDINATED STAFF: "Sanchez" Alleges Unlawful Labor Practices ------------------------------------------------------------- Luz Sanchez, on behalf of herself and all others similarly situated, Plaintiffs, v. COORDINATED STAFF, INC., a California corporation; ASSOCIATE MANAGEMENT RESOURCES, INC., a California corporation; SSI STAFFING, INC., a California corporation; ILAD, INC., a California corporation; and DOES 1 through 100, inclusive, Defendants, Case No. BC 640151 (Cal. Super., County of Los Angeles, November 9, 2016), was filed pursuant to the California Code of Regulations, seeking overtime and minimum wages, premium wages for missed meal and rest periods, penalties, and reasonable attorneys' fees and costs. Coordinated Staff, Inc. provides staffing solutions to 3PL; warehousing and distribution industries. The Plaintiff is represented by: Michael Nourmand, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Phone: (310) 553-3600 Fax: (310) 553-3603 - and - Mehrdad Bokhour, Esq. BIBIYAN & BOKHOUR, P.C. 287 S. Robertson Blvd., Suite 303 Beverly Hills, CA 90211 Phone: (310) 438-5555 Fax: (310) 300-1705 DEVRY EDUCATION: Lead Plaintiff's Amended Complaint Due ------------------------------------------------------- DeVry Education Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the Utah Retirement System had until November 8, 2016 to submit an amended compliant as lead plaintiff. On May 13, 2016, a putative class action lawsuit was filed by the Pension Trust Fund for Operation Engineers, individually and on behalf of others similarly situated, against DeVry Group, Daniel Hamburger, Richard M. Gunst, and Timothy J. Wiggins in the United States District Court for the Northern District of Illinois. The complaint was filed on behalf of a putative class of persons who purchased DeVry Group common stock between February 4, 2011 and January 27, 2016. Citing the FTC lawsuit and the U.S. Department of Education's ("ED") January 2016 Notice, the plaintiffs claim that defendants made false or misleading statements regarding DeVry University's graduate employment rate and the earnings of DeVry University graduates relative to the graduates of other universities and colleges. As a result of these false or misleading statements about DeVry University graduate outcomes, plaintiffs allege, defendants overstated DeVry Group's growth, revenue and earnings potential and made false or misleading statements about DeVry Group's business, operations and prospects. The plaintiffs allege direct liability against all defendants for violations of Sec.10(b) and Rule 10b-5 of the Exchange Act and asserted liability against the individual defendants pursuant to Sec. 20(a) of the Exchange Act. The plaintiffs seek monetary damages, interest, attorneys' fees, costs and other unspecified relief. On July 13, 2016, the Utah Retirement System moved for appointment as lead plaintiff and approval of its selection of counsel, which was not opposed by the Pension Trust Fund for Operation Engineers and was approved on August 24, 2016. The Utah Retirement System had until November 8, 2016 to submit an amended compliant as lead plaintiff. Pension Trust Fund for Operating Engineers is represented by Lester Hooker, Esq., at Saxena White; and Norman Rifkind, Esq., at Law Office Of Norman Rifkind. Utah Retirement Systems is represented by Andrew Norcott Dodemaide, Esq., Daniel J Mirarchi, Esq., Robert M. Roseman, Esq., and Mark S Willis, Esq., at Spector Roseman Kodroff & Willis, P.C.; Kenneth A. Wexler, Esq., Amy Elisabeth Keller, Esq., and Mark Richard Miller, Esq., at Wexler Wallace LLP. DeVry et al are represented in the case by Jeffrey A. Fuisz, Esq., Phillip Geraci, Esq., Alan Norris Salpeter, Esq., Aaron Miner, Esq., and Bryan Michael Westhoff, Esq., at Kaye Scholer LLP. DEVRY EDUCATION: Faces Illinois Class Suit by 6 Former Students --------------------------------------------------------------- DeVry Education Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that on October 14, 2016, a putative class action lawsuit was filed by six former DeVry University students, Debbie Petrizzo, Renee Heather Polly, Brandy Van Buren, Melissa Lotzman, Jamison Purry and Cheryl Costello, individually and on behalf of others similarly situated, against the DeVry Group Defendants in the United States District Court for the Northern District of Illinois. The complaint was filed on behalf of a putative class of persons consisting of those who enrolled in and/or attended classes at DeVry University from at least 2002 through the present and who were unable to find employment within their chosen field of study within six months of graduation. Citing the FTC lawsuit, the plaintiffs claim that defendants made false or misleading statements regarding DeVry University's graduate employment rate and assert claims for unjust enrichment and violations of six different states' consumer fraud, unlawful trade practices, and consumer protection laws. The plaintiffs seek monetary, declaratory, injunctive, and other unspecified relief. DEVRY EDUCATION: Faces Class Suit by Jara et al. in N.D. Illinois ----------------------------------------------------------------- DeVry Education Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that on October 28, 2016, a putative class action lawsuit was filed by twelve individuals, Jairo Jara, Elijah Morgan, Steven Nickens, Julie Ramroop, Jorge Rivas, David Viglielmo, Jennifer Wallace, Suzane Apodaca, Jorge Munoz, Alex Haberer, Annette Pearson, and Thomas Pearson, individually and on behalf of others similarly situated, against the DeVry Group Defendants in the United States District Court for the Northern District of Illinois. The individual plaintiffs claim to have graduated from DeVry University in 2001 or later and seek to proceed on behalf of a putative class of persons consisting of those who obtained a degree from DeVry University and who were unable to find employment within their chosen field of study within six months of graduation. Citing the FTC lawsuit, the plaintiffs claim that defendants made false or misleading statements regarding DeVry University's graduate employment rate and assert claims for unjust enrichment and violations of ten different states' consumer fraud, unlawful trade practices, and consumer protection laws. The plaintiffs seek monetary, declaratory, injunctive, and other unspecified relief. ECM ENERGY: "Wallace" Suit Invokes FLSA, Penn. Wage Laws -------------------------------------------------------- WILLIAM WALLACE on behalf of himself and all others similarly situated, Plaintiff, v. ECM ENERGY SERVICE, INC., Defendant, Case No. 2:16-cv-01693-DSC (W.D. Penn., November 9, 2016), was brought under the Fair Labor Standards Act, and the Pennsylvania Minimum Wage Act to recover damages for alleged non-payment of overtime wages. Plaintiff was assigned to and worked at natural gas well sites in and around Washington and Waynesburg, Pennsylvania. ECM ENERGY SERVICE, INC. -- http://ecmenergy.com/-- is an energy services company. The Plaintiff is represented by: Joseph E. Fieschko, Esq. 2230 Koppers Building Pittsburgh, PA 15219 Phone: (412) 281-2204 Fax: (412) 338-9169 E-mail: joe@fieschko.com - and - John R. Linkosky, Esq. 715 Washington Avenue Carnegie, PA 15106-4107 Phone: (412) 278-1280 Fax: (412) 278-1282 E-mail: linklaw@comcast.net EHT PHARMACY: Centerville Clinics Seeks TCPA Class Certification ---------------------------------------------------------------- Centerville Clinics, Inc., asks the Court to enter an order determining that the action styled CENTERVILLE CLINICS, INC., on behalf of plaintiff and the class members defined herein v. EHT PHARMACY, LLC, and SPECIALTY CARE RX LIMITED LIABILITY COMPANY, both doing business as CUREXA, and JOHN DOES 1-10, Case No. 1:16- cv-10536 (N.D. Ill.), alleging violation of the Telephone Consumer Protection Act, may proceed as a class action against the Defendants. The Plaintiff seeks to represent a class consisting of (a) all persons (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. Section 1658), (c) were sent faxes from "Curexa" promoting goods or services for sale (d) which did not contain a compliant opt out notice. Centerville Clinics further asks that it be appointed class representative and that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=o2rgJpE0 The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Dulijaza Clark, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com jclark@edcombs.com ENGEL BURMAN: Violates Fair Labor Standards Act, Kobeck Alleges --------------------------------------------------------------- JOHN KOBECK, on behalf of himself, FLSA Collective Plaintiffs, and Class Members v. ENGEL BURMAN SENIOR HOUSING AT ARMONK, LLC, ARMONK BRISTAL LLC, ARMONK SENIOR CARE LLC, WOODCLIFF LAKE SENIOR CARE, LLC, WOODCLIFF LAKE BRISTAL LLC, SAYVILLE BRISTAL LLC, ENGEL BURMAN SENIOR HOUSING AT MASSAPEQUA, LLC, ENGEL BURMAN SENIOR HOUSING AT EAST MEADOW, LLC, WESTBURY SENIOR LIVING INC., LYNBROOK SENIOR CARE, LLC, ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE, LLC, ENGEL BURMAN SENIOR HOUSING AT NORTH HILLS, LLC, ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS, LLC, EB AT HOLTSVILLE, LLC, ENGEL BURMAN SENIOR HOUSING AT EAST NORTHPORT, LLC, LAKE GROVE SENIOR CARE LLC, EB CARE AT LAKE SUCCESS LLC, EB CARE AT WEST BABYLON LLC, ENGEL BURMAN AT JERICHO, LLC, ENGEL BURMAN AT ENGLEWOOD LLC, ENGEL BURMAN AT WAYNE LLC, ULTIMATE CARE ASSISTED LIVING MANAGEMENT LLC, JAN BURMAN, STEVEN KRIEGER, MARYELLEN MCKEON, LAURIE MUSTO, LORI MALONEY, and SAMANTHA KRIEGER, Case No. 7:16- cv-08770 (S.D.N.Y., November 11, 2016), alleges, pursuant to the Fair Labor Standards Act, that the Plaintiff is entitled to recover from the Defendants: (1) unpaid overtime, (2) compensation for retaliation, (3) liquidated damages and statutory penalties, and (4) attorneys' fees and costs. The Corporate Defendants are each subsidiaries of The Engel Burman Group, a conglomerate with corporate headquarters located in Garden City, New York. The Defendants operate 13 assisted living facilities under the common trade-name "The Bristal." Additionally, the Defendants are advertising and leasing accommodations at five additional assisted living facilities presently under development, all of which are scheduled to commence operations in the near future. All of Defendants' facilities (including both those currently under development) are located in suburban neighborhoods in the greater New York City metropolitan area, with facilities in Westchester County, NY, Nassau County, NY, Suffolk County, NY, Passaic County, NJ, and Bergen County, NJ. The Individual Defendants are each principals and senior executive officers of the Corporate Defendants and are each "employers" of the Plaintiff. The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com anne@leelitigation.com EST TRADE: "Rakonczai" Sues Over Vehicle Sale Transaction --------------------------------------------------------- LASZLO RAKONCZAI, individually and on behalf of those similarly situated, Plaintiff, vs. EST TRADE LLC d/b/a AUTOLINE LLC, HUDSON INSURANCE COMPANY, UNKNOWN INSURANCE COMPANY ONE, UNKNOWN INSURANCE COMPANY TWO and UNKNOWN INSURANCE COMPANY THREE, Defendants, Case Number CACE-16-020556 filed in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida on November 8, 2016, seeks, among others, damages incurred as a result of a vehicle sale transaction that allegedly resulted to the Plaintiff being charged at a higher price than advertised. AUTOLINE LLC is a Hallandale, Florida auto dealer offering used and new cars. The Plaintiff is represented by: Roger D. Mason, II, Esq. Zachary A. Harrington, Esq. Ashley V. Goodman, Esq. 5135 West Cypress Street, Suite 105 Tampa, FL 33607 Phone: (813)304-2131 E-mail: rmasonf@flautolawyer.com zharrington@flautolawyer.com agoodman@flautolawyer.com admin@flautolawyer.com ETRADE FINANCIAL: Appeal Briefing to Continue Through 2016 ---------------------------------------------------------- E*TRADE Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that briefing is scheduled to continue through 2016 in the class action appeal by John Scranton. On pril 30, 2013, a putative class action was filed by John Scranton, on behalf of himself and a class of persons similarly situated, against E*TRADE Financial Corporation and E*TRADE Securities in the Superior Court of California, County of Santa Clara, pursuant to the California procedures for a private Attorney General action. The complaint alleged that the Company misrepresented through its website that it would always automatically exercise options that were in-the-money by $0.01 or more on expiration date. Plaintiffs allege violations of the California Unfair Competition Law, the California Consumer Remedies Act, fraud, misrepresentation, negligent misrepresentation and breach of fiduciary duty. The case has been deemed complex within the meaning of the California Rules of Court, and a case management conference was held on September 13, 2013. The Company's demurrer and motion to strike the complaint were granted by order dated December 20, 2013. The Court granted leave to amend the complaint. A second amended complaint was filed on January 31, 2014. On March 11, 2014, the Company moved to strike and for a demurrer to the second amended complaint. On October 20, 2014, the Court sustained the Company's demurrer, dismissing four counts of the second amended complaint with prejudice and two counts without prejudice. The plaintiffs filed a third amended complaint on November 10, 2014. The Company filed a third demurrer and motion to strike on December 12, 2014. By order dated March 18, 2015, the Superior Court entered a final order sustaining the Company's demurrer on all remaining claims with prejudice. Final judgment was entered in the Company's favor on April 8, 2015. Plaintiff filed a Notice of Appeal April 27, 2015. Briefing is scheduled to continue through 2016. The Company will continue to defend itself vigorously in this matter. E*TRADE Financial Corporation is a financial services company that provides brokerage and related products and services primarily to individual retail investors under the brand "E*TRADE Financial." The Company also provides investor-focused banking products, primarily sweep deposits, to retail investors. ETRADE FINANCIAL: Rayner and Schwab Cases Consolidated ------------------------------------------------------ E*TRADE Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the Rayner case has been consolidated with the Schwab case and both matters are now venued in the Southern District of New York. On March 26, 2015, a putative class action was filed in the U.S. District Court for the Northern District of California by Ty Rayner, on behalf of himself and all others similarly situated, naming E*TRADE Financial Corporation and E*TRADE Securities as defendants. The complaint alleges that E*TRADE breached a fiduciary duty and unjustly enriched itself in connection with the routing of its customers' orders to various market-makers and exchanges. Plaintiff seeks unspecified damages, declaratory relief, restitution, disgorgement of payments received by the Company, and attorneys' fees. By stipulation, the parties have agreed to extend indefinitely the due date for a response to the claim. On July 23, 2016, a putative class action was filed in the U.S. District Court for the Southern District of New York by Craig L. Schwab, on behalf of himself and others similarly situated, naming E*TRADE Financial Corporation, E*TRADE Securities LLC, and former Company executives as defendants. The complaint alleges that E*TRADE violated federal securities laws in connection with the routing of its customers' orders to various market-makers and exchanges. Plaintiff seeks unspecified damages, declaratory relief, restitution, disgorgement of payments received by the Company, and attorneys' fees. By stipulation, the Rayner case has been consolidated with the Schwab case and both matters are now venued in the Southern District of New York. The Company will continue to defend itself vigorously in these matters. E*TRADE Financial Corporation is a financial services company that provides brokerage and related products and services primarily to individual retail investors under the brand "E*TRADE Financial." The Company also provides investor-focused banking products, primarily sweep deposits, to retail investors. EVERYDAY HEALTH: "Means" Suit Wants to Stop Sale to Ziff Davis -------------------------------------------------------------- MICHAEL MEANS, individually and on behalf of all others similarly situated v. EVERYDAY HEALTH, INC., DOUG McCORMICK, BEN WOLIN, HABIB KAIROUZ, DAVID GOLDEN, SHARON WIENBAR, MYRTLE POTTER, DANA EVAN, LAIZER KORNWASSER, ZIFF DAVIS, LLC, PROJECT ECHO ACQUISITION CORP., and J2 GLOBAL, INC., Case No. 1:16-cv-08768 (S.D.N.Y., November 11, 2016), is brought on behalf of the public stockholders of Everyday Health for alleged violations of the Securities Exchange Act of 1934, seeking to enjoin the expiration of a tender offer on a proposed transaction, pursuant to which Everyday Health will be acquired Ziff Davis. On October 21, 2016, Everyday Health announced the definitive Agreement and Plan of Merger pursuant to which each outstanding common share of Everyday Health will be exchanged for $10.50 per share in cash or a transaction value of approximately $465 million. The Proposed Transaction is structured as an all-cash tender offer, which requires a simple majority of Everyday Health shares to be tendered to Ziff by the close of the offer period. Everyday Health is a corporation organized and existing under the laws of the state of Delaware with its principal corporate offices located in New York City. The Company operates digital marketing and communications platform for healthcare marketers primarily in the United States. The Company designs its health content for consumers and healthcare professionals to access anytime and anywhere and to be distributed across various platforms comprising online content, interactive tools, and applications. The Individual Defendants are directors and officers of the Company. Ziff Davis is a Delaware limited liability company with its principal place of business located in New York City. Ziff Davis, a digital media company, engages in the digital publishing of content in gaming, technology, and men's lifestyle categories. Ziff Davis operates PCMag.com, an online brand that provides laboratory-based product reviews, technology news, buying guides, and more for technology buyers; IGN.com, an online source of gaming and entertainment content for 18-34-year old men; and AskMen.com, a men's lifestyle site that serve audience directly in the United States, Canada, the United Kingdom, and Australia, as well as through licensed editions in Germany, Turkey, and the Middle East. Ziff Davis is a subsidiary of j2 Global, Inc. Project Echo Acquisition Corp. is a Delaware corporation and wholly owned subsidiary of Ziff Davis that was created for the purposes of consummating the Proposed Transaction. Defendant j2 Global is a Delaware Corporation and parent of Ziff Davis, with headquarters in Los Angeles, California. j2 Global, Inc., engages in the provision of Internet services worldwide. The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC 240 Mineola Blvd. Mineola, NY 11501 Telephone: (516) 741-4977 Facsimile: (516) 741-0626 E-mail: esmith@brodsky-smith.com EXPEDIA: Faces Class Action in Texas Over Homeaway Changes ---------------------------------------------------------- Monica Nickelsburg, writing for GeekWire, reports that after Expedia acquired HomeAway for $3.9 billion in late 2015, the travel giant shifted the business model of its vacation rental sites to more closely mirror competitor Airbnb, creating tension between Expedia and homeowners who had signed on under a different model. Now the frustration is erupting in the form of a proposed class action lawsuit. James May, a Portland, Ore., man who has been listing his property on HomeAway-owned VRBO for several years, filed a complaint against the company in U.S. District Court in Western Texas, where HomeAway is headquartered. Mr. May accuses the company of "breach of contract, fraud, and violations of consumer protection laws" and "a classic bait-and-switch scheme." Mr. May is seeking class-action status to include other homeowners who feel HomeAway violated their agreements. Over the past year, Expedia modified HomeAway and VRBO to better compete with industry juggernaut Airbnb and meet consumers' expectations. The changes include a "service fee" that travelers pay, a new algorithm to determine which homes are prioritized in search results, and a "Book With Confidence" guarantee, promising to refund customers who book or pay via HomeAway if a listing is fraudulent or misrepresented. Earlier this year, Expedia CEO Dara Khosrowshahi also announced that the tiered annual subscription model, like the one May had been using, would be phased out. Instead, homeowners will be able to list their properties using one annual subscription at a flat rate of $349 if the owner enables online booking and $499 if he or she does not. Homeowners can also list properties for free and pay a percentage of each booking facilitated through HomeAway. In the past, homeowners with annual subscriptions were given priority in search results. Now, those results are more favorable to properties that match search queries and allow online booking. This business model shift is exactly what May and other homeowners are protesting. They are seeking compensation for damages suffered as a result of HomeAway's "breaches of contract, fraud, and violation of consumer protection statutes, punitive damages, as well as other equitable and declaratory relief." Here's how the complaint describes the alleged bait-and-switch: "At the same time that defendants were marketing and promoting prepaid subscription services to Plaintiff and the other members of the Class . . . HomeAway.com, Inc. were actively planning to change their business model by: (i) charging fees to renters, over and above the subscription fees prepaid by Plaintiff and other class members to advertise and list their vacation properties, which would (and did) thereby increase the effective price, and diminish the value, of the prepaid subscription services they were marketing and selling to Plaintiff" Expedia declined to comment on active litigation. When Expedia began rolling out changes to the HomeAway and VRBO platforms, GeekWire documented homeowners' frustrations. "Where once I felt like HomeAway was working for me, now I feel like they are forcing me to work for them," said one homeowner at the time. Expedia CEO Dara Khosrowshahi called protesting homeowners "a vocal minority" during an interview at the GeekWire Summit last month. He said that HomeAway's platform previously had a lot of friction and consumers have come to expect a transactional experience with services on the web. "I think the backlash has turned a lot more positive, recently," said Ms. Khosrowshahi. "I don't want to count my chickens but I think, fundamentally, we've moved HomeAway from a media listings product to a transactional product because consumers just like transactions more." EXXON MOBIL: January 6 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a securities class action has been filed against Exxon Mobil Corporation ("Exxon" or the "Company") and certain of its officers. This class action is on behalf of a class consisting of all persons who purchased Exxon between February 19, 2016 and October 27, 2016, both dates inclusive (the "Class Period"). This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). Exxon Mobil Corp. is an American multinational oil and gas corporation headquartered in Irving, Texas, and is the world's largest publicly traded company. The complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements as it emphasized its business model and its transparency and reported integrity, specifically in connection to its oil and gas reserves and the value of those reserves. Particularly, Exxon's public statements were materially false and misleading when made as they failed to disclose: (1) that Exxon's internal reports about climate change recognized the environmental risks caused by global warming and climate change; (2) that, Exxon knew the risks associated with global warming and climate change, and it would not be able to remove the existing hydrocarbon reserves the Company claimed to have and, therefore, a material portion of Exxon's reserves were stranded and should have been written down; and (3) that Exxon had employed an inaccurate "price of carbon" -- the cost of regulations such as a carbon tax or a cap-and-trade system to push down emissions -- in evaluating the value of certain of its future oil and gas prospects in order to keep the value of its reserves materially overstated. As a result of the Company's hyped up statements, Exxon stock traded at artificially inflated prices, reaching a high during the Class Period of over $95 per share. The rating agencies also upheld Exxon's AAA debt rating -- the highest -- allowing Exxon to sell $12 billion of corporate debt at extremely favorable rates throughout the Class Period. Between August through September 2016, several news sources reported that federal regulators were looking into Exxon's reserve accounting in regards to climate change and global warming, and the Company's lack of documentation of any of its oil and gas reserves in the face of declining global oil prices. Following these news reports, Exxon stock dropped to $82.54 per share on September 20, 2016, or over 13% from the Exxon's Class Period high. Then on October 28, 2016, pre-market, Exxon announced its financial results for the quarter ended September 30, 2016. In it, Exxon revealed that it may be forced to document close 20% of its oil and gas assets. Following this news, Exxon stock dropped over $2 per share on October 28, 2016, on unusually high trading volume. No Class has yet been certified in the above action. To discuss this action, or for any questions, please visit the firm's site: http://www.bgandg.com/xom or contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484 or via email info@bgandg.com. Those who inquire by e-mail are encouraged to include their mailing address and telephone number. If you suffered a loss in Exxon, you have until January 6, 2017 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. FLOTEK INDUSTRIES: Discovery Not Yet Commenced ---------------------------------------------- Flotek Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that discovery has not yet commenced in securities class action lawsuits. In November 2015, four putative securities class action lawsuits were filed in the United States District Court for the Southern District of Texas against the Company and certain of its officers. The lawsuits have been consolidated into a single case, and an amended complaint has been filed. The amended complaint asserts that the Company made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. The complaint seeks an award of damages in an unspecified amount on behalf of a putative class consisting of persons who purchased the Company's common stock between October 23, 2014 and November 9, 2015, inclusive. In January 2016, three derivative lawsuits were filed, two in the District Court of Harris County, Texas (which have since been consolidated into one case) and one in the United States District Court for the Southern District of Texas, on behalf of the Company against certain of its officers and its current directors. The lawsuits allege violations of law, breaches of fiduciary duty, and unjust enrichment against the defendants. The Company believes the class action lawsuit and the derivative lawsuits are without merit, and it intends to vigorously defend against all claims asserted. Discovery has not yet commenced. At this time, the Company is unable to reasonably estimate the outcome of this litigation. Flotek Industries, Inc. ("Flotek" or the "Company") is a global, diversified, technology-driven supplier of energy chemistries and consumer and industrial chemistries and is a global developer and supplier of drilling, completion, and production technologies and related services. FORMFACTOR INC: "Solak" Case Settlement Remains Pending ------------------------------------------------------- FormFactor, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the settlement of the lawsuit, captioned Solak v. Cascade Microtech, Inc., et al., remains pending. On April 8, 2016, an individual plaintiff filed a putative class action lawsuit on behalf of Cascade Microtech's shareholders against Cascade Microtech, its directors, FormFactor and Cascade Merger Sub, in connection with Cascade Microtech and FormFactor entering into a merger agreement. The lawsuit, captioned Solak v. Cascade Microtech, Inc., et al., No. 16CV11809, was filed in Multnomah County Circuit Court in the State of Oregon. The Solak lawsuit alleges that the individual members of Cascade Microtech's board of directors breached their fiduciary duties owed to Cascade Microtech's shareholders by approving the proposed merger for inadequate consideration; approving the merger to obtain unique benefits not shared equally with Cascade Microtech's other shareholders; failing to take steps to maximize the value paid to Cascade Microtech shareholders; failing to take steps to ensure a fair process leading up to the proposed merger; and agreeing to preclusive deal protection devices in the merger agreement. The lawsuit also alleges claims against FormFactor and one of its subsidiaries for aiding and abetting the alleged breaches of fiduciary duties by the individual members of Cascade Microtech's board of directors. In the Solak lawsuit, the plaintiff has sought, among other things, rescission of the merger, plaintiff's attorney's fees and costs, and other relief. Under a memorandum of understanding signed by the parties and filed with the court in the Solak case, Cascade Microtech and FormFactor agreed with the plaintiff's counsel to supplement the disclosures made in connection with the merger. The supplemental disclosures were made on June 14, 2016. Under the memorandum of understanding, the parties to the Solak lawsuit agreed to use their collective best efforts to obtain final approval of the proposed settlement and the dismissal of the Solak litigation with prejudice. Subject to completion of certain confirmatory discovery by counsel to the plaintiff, the memorandum of understanding contemplates that the parties will enter into a stipulation of settlement. The stipulation of settlement will be subject to customary conditions, including court approval following notice to Cascade Microtech's former shareholders within the proposed class. In addition, in connection with the settlement, the parties contemplate that plaintiff's counsel in the Solak lawsuit will file a petition in the Oregon court for an award of attorneys' fees and expenses. Cascade Microtech will pay any attorneys' fees and expenses awarded by the Oregon court. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the Oregon court will approve the settlement even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the memorandum of understanding may be terminated. FORMFACTOR INC: Employee Class Action in Merits Discovery --------------------------------------------------------- FormFactor, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the class action lawsuit by a former employee is proceeding with merits discovery. In August 2013, a former employee filed a class action lawsuit against the Company in the Superior Court of California, alleging violations of California's wage and hour laws and unfair business practices on behalf of himself and all other similarly situated current and former employees at the Company's Livermore facilities from August 21, 2009, to the present. On January 4, 2016, the court certified the plaintiff class. The lawsuit is currently proceeding with merits discovery. The Company denies the allegations contained in the lawsuit, and, based on available information, believes it has significant defenses to the allegations of the lawsuit. FormFactor designs, develops, manufactures, sells and supports advanced semiconductor probe card products. FORT ZUMWALT R-II: Counts 1 and II Class Certification Sought ------------------------------------------------------------- The Plaintiffs in the lawsuit titled JOHN DOE, as Next Friend of JAMES DOE, on behalf of himself and 77 other similarly situated individual minors v. MATTHEW M. HANSEN, et al., Case No. 4:16-cv- 00546-JAR (E.D. Mo.), move to certify Class as to Counts I and II of their second amended complaint. The Plaintiffs are minor children, who were videotaped while nude by Matthew Hansen. Fort Zumwalt R-II School District was the employer of Mr. Hansen. The School District operated a summer camp located at Cuivre River State Park in Lincoln County, Missouri. Mr. Hansen made his video recordings while the students were at the summer camp. The Case seeks compensatory damages on behalf of the minors on legal claims, federal and state, for violations of the United States Constitution, the Child Abuse Victims Rights Act of 1986, as well as Missouri common law claims. On November 7, 2016, counsel for the Plaintiffs and counsel for the Defendants filed a joint motion to certify class under FRCP 23(c) limited to liability only. However, the Joint Motion specifically excluded Defendant Matthew Hansen, who is the named Defendant in Counts I and II of the Second Amended Complaint because counsel for the Defendants does not represent him. There is no current order of class certification related to Defendant Matthew Hansen in Counts I and II of the Second Amended Complaint, the Plaintiffs assert. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=pWmMhomK The Plaintiffs are represented by: Larry A. Bagsby, Esq. THE BAGSBY LAW FIRM 125 North Main Street, Suite 204 St. Charles, MO 63301 Telephone: (636) 244-5595 Facsimile: (636) 244-5596 E-mail: larrybagsby@aol.com - and - Deborah J. Alessi, Esq. SHEA, KOHL, ALESSI & KUHL, LC 400 North Fifth Street, Suite 200 St. Charles, MO 63301 Telephone: (636) 946-9999 Facsimile: (636) 946-8623 E-mail: dalessi@skaklaw.com Defendant Fort Zumwalt R-II School District is represented by: Celynda L. Brasher, Esq. Michael J. Curry, Esq. TUETH, KEENEY, COOPER, MOHAN & JACKSTADT, PC 34 N. Meramec, Suite 600 St. Louis, MO 63105 Telephone: (314) 880-3599 Facsimile: (314) 880-3601 E-mail: cbrasher@tuethkeeney.com mcurry@tuethkeeney.com GLAXOSMITHKLINE LLC: Faces "Matthews" Suit Over Zofran Side Effect ------------------------------------------------------------------ Darla Matthews, Individually and on behalf of her minor child L.T. v. GLAXOSMITHKLINE, LLC, Case No. 1:16-cv-12277-FDS (D. Mass., November 11, 2016), arises from alleged injuries (malrotation and volvulus of child) caused by prenatal exposure to brand Zofran(R). Zofran(R), also known as ondansetron, is a powerful drug developed by GSK to treat only those patients, who were afflicted with the most severe nausea -- that suffered as a result of chemotherapy or radiation treatments in cancer patients. The Plaintiff incorporates by reference the brand long form master complaint and jury demand filed in the multidistrict litigation entitled In re: Zofran (Ondansetron) Products Liability Litigation, MDL No. 1:15-md-2657-FDS, in the U.S. District Court for the District of Massachusetts as Docket No. 255 on the Master Docket. The actions in the litigation share factual questions arising from allegations that Zofran and its generic equivalent, a prescription medication for the treatment of nausea, causes birth defects in children when their mothers ingest the drug while pregnant. The Plaintiff is represented by: Michael P. Kella, Esq. THE SIMON LAW FIRM P.C. 800 Market Street, Suite 1700 St. Louis, MO 63101 Telephone: (855) 809-7080 E-mail: mkella@simonlawpc.com HEALTHSOURCE GLOBAL: Court Says Class Waiver Invalid ---------------------------------------------------- District Judge William H. Orrick of the United States District Court for the Northern District of California denied a motion to compel arbitration and rendered as moot a motion to stay in the case captioned, KAREN MACKALL, Plaintiff, v. HEALTHSOURCE GLOBAL STAFFING, INC., Defendant, Case No. 16-CV-03810-WHO (N.D. Cal.). Plaintiff Karen Mackall brings claims individually and on behalf of a class of employees of HealthSource Global Staffing, Inc. (HSGI), alleging that HSGI failed to provide their employees with meal breaks, rest periods, overtimes wages, and other protections as required under California law. Mackall and putative class members she seeks to represent were employed by HSGI as non-exempt hourly registered nurses at various times in the County of Los Angeles during the last four years. She alleges causes of action against HSGI under (1) the California Labor Code, (2) California Business and Professions Code Section 17200, (3) the Fair Labor Standards Act, and (4) the California PAGA. HSGI moves to compel individual arbitration, arguing Mackall is bound by the arbitration agreement she completed when she filled out HSGI's online job application. HSGI also moves to stay Mackall's California Private Attorneys General Act (PAGA) claim, which is not subject to arbitration. In opposition to the motion to compel, Mackall argues that the arbitration agreement is unconscionable and not enforceable because: (i) it is procedurally unconscionable as a contract of adhesion and (ii) is substantively unconscionable as it does not impose a mutual obligation to arbitrate, does not provide for a written award, and contains a class waiver invalid under the National Labor Relations Act (NLRA). Mackall further alleges that her injunctive relief claim is not arbitrable and the agreement is not enforceable against recently added co-defendant HealthSource Global (HG). In his Order dated November 1, 2016 available at https://is.gd/c5hIYg from Leagle.com, Judge Orrick concluded that the class waiver is invalid under NLRA and Morris v. Ernst & Young, F.3d, 2016 WL 4433080 holding that "a lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is "concerted activity" under Section 7 of the NLRA". As the parties did not contract to pursue class claims in arbitration, the arbitration agreement is unenforceable under the Federal Arbitration Act. The Court also pointed to Stolt-Nielsen S.A. v. Animal Feeds Int'l. Corp., 559 U.S. 662, 684 (2010) holding that a court cannot compel arbitration of class claims where the parties did not contract to submit to class-wide arbitration. Karen Mackall is represented by Kevin Mahoney, Esq. -- info@mahoney-law.net -- Treana Louise Allen, Esq. -- info@mahoney-law.net -- and Na'Shaun Lamar Neal, Esq. -- info@mahoney-law.net -- MAHONEY LAW GROUP, APC Healthsource Global Staffing, Inc. is represented by Adam Ryan Rosenthal, Esq. -- arosenthal@sheppardmullin.com -- Thomas Roy Kaufman, Esq. -- tkaufman@sheppardmullin.com -- and Brian Samuel Fong, Esq. -- bfong@sheppardmullin.com -- SHEPPARD MULLIN RICHTER HAMPTON HODGSON MILLS: Faces False Advertising Class Action in Illinois --------------------------------------------------------------- Michael Abella, writing for Legal Newsline, reports that an Illinois woman alleges a pancake mix is falsely advertised as containing all natural ingredients. Shannah Burton filed a complaint on behalf of all others similarly situated in St. Clair County Circuit Court against Hodgson Mills Inc. alleging that the baked products distributor violated to Illinois Consumer Fraud and Deceptive Business Practices Act and unjust enrichment. According to the complaint, the plaintiff alleges that in January, she purchased the defendant's Buckwheat Pancake Mix at after reviewing the "all natural" label. The plaintiff holds Hodgson Mills Inc. responsible because the defendant allegedly labeled and marketed the product as all natural when in fact it contains synthetic ingredient monocalcium phosphate and distributed the fraudulent mix throughout the state. She alleges that had she known the mix was not all natural, she would have not purchased it. The plaintiff requests a trial by jury and seeks an order certifying this case as a class action and appointing plaintiff and her counsel as representatives, award for compensatory damages, pre- and post-judgment interest, attorney's fees and costs and for such other and further relief. She is represented by Matthew H. Armstrong of Armstrong Law Firm LLC in St. Louis; David C. Nelson of Nelson & Nelson, Attorney at Law PC in Belleville, Illinois; and Stuart L. Cochran of Cochran Law PLLC in Dallas. The defendant is represented by Charles J. Swartwout, Mark M. Favazza and David B. Schneidewind -- dschneidewind@boylebrasher.com -- of Boyle Brasher LLC Belleville. On Sept. 23, the defendant requested that the case be moved to the U.S. District Court for the Southern District of Illinois on the grounds that the class number could easily exceed 100 persons and that the amount in the controversy exceeds $5 million. U.S. District Court for the Southern District of Illinois Case number 3:16-cv-01081 HOME DEPOT: Court Approves Data Breach Settlement Agreement ----------------------------------------------------------- Kateri-Anne Grenier, Esq. -- kateri- anne.grenier@nortonrosefulbright.com -- of Norton Rose Fulbright Canada LLP, in an article for Mondaq, reports that the Ontario Superior Court of Justice recently approved a settlement agreement in the Lowanski v The Home Depot class action, a decision that highlights adequate protection and a sufficient response can significantly reduce the legal risks after a data breach. This class action was filed following a data breach that gave access to personal information such as names, credit card numbers, expiration dates and verification value codes from Home Depot's card payment system for six months during 2014. Although the parties had agreed to settle the class action for more than $1 million, the Honourable Justice Perell reduced the amount to $400,000. Similarly, the agreed-upon counsel fee was reduced from $406,000 to $120,000. He also did not approve any honoraria. Amounts granted by Canadian courts to members of class actions related to data breaches are usually modest, but this judgment is quite surprising since it is unheard of for a court to reduce a settlement amount in a class action approval hearing. The judge's decision centred on the lack of significant damage suffered by the plaintiffs and Home Depot's responsible and prompt response to the data breach. Lack of significant damage Plaintiffs raised three heads of damage from the payment card system breach: (1) The risk of a fraudulent charge on one's credit card; (2) the risk of identity theft; and (3) the inconvenience of checking one's credit card statements. Justice Perell considered that the proof of any consequent damage was in the range of negligible to remote. On the first and second heads of damages, there was no evidence that any class member had suffered a fraudulent charge or that the data breach increased the risk of identity theft since the stolen data was inadequate to fake another's identity. With regard to the last ground of damages, the Ontario Court of Appeal recognized in 2012 that economic loss is not necessary to ground an action in the tort of intrusion on seclusion. Any non- economic damage suffered as a result of a privacy breach may be compensated by granting "symbolic" damages. However, the mere fact that a person is worried about the security of his or her personal information following a data breach does not qualify as a compensable loss. Nor were plaintiffs inconvenienced because they had to check their credit card statements for fraudulent purchases following the Home Depot data breach. According to Justice Perell, any credit card holder already bears such responsibility. The Quebec Superior Court applied the same reasoning in the 2012 cases Sofio c. Organisme canadien de reglementation du commerce des valeurs mobilieres and Mazzona v DaimlerChrysler Financial Services Canada Inc. The courts stated that monitoring account statements for fraudulent activity is an ordinary inconvenience that constitutes part of the cardholder's daily activities and does not warrant compensation. They both relied on Supreme Court case Mustapha c. Culligan du Canada Ltee5 that stated compensable injury must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely accept. Home Depot's response Another decisive factor in the Ontario Superior Court's decision was Home Depot's response following the data breach. The court considered Home Depot's response to be "responsible, prompt, generous and exemplary." They issued a timely press release, sent informative emails to customers and offered free credit monitoring and identity theft insurance. Justice Perell even expressed, notably in view of Home Depot's actions, that he would have approved a discontinuance of the class action on the merits. Regarding the fee approval, Justice Perell underlined it has to be viewed through the lens of access to justice, behaviour modification and judicial economy. Yet, there was no reason to think that Home Depot needed or deserved behaviour modification. After the data breach was discovered, there was no cover-up on Home Depot's part and it responded as a "good corporate citizen" toward the breach. Our take The Ontario Home Depot class action highlights that adequate prevention, detection and response significantly mitigate the legal risks associated with privacy breaches. Preventive and compensatory measures are recognized by the courts as means of mitigating or eliminating potential damages. HSBC BANK: Faces Deceptive Advertising Class Action in California ----------------------------------------------------------------- Legal Newsline reports that a California man alleges his mortgage company charged higher mortgage payments without authorization. Saber Ahmed filed a complaint on behalf of all others similarly situated on Nov. 2 in the U.S. District Court for the Central District of California against HSBC Bank USA, National Association and Does 1-10 alleging unfair business practices, misleading and deceptive advertising and other counts. According to the complaint, the plaintiff entered into a mortgage with the defendant in September and noticed the defendant was charging him for hazard escrow insurance. He alleges this was done without his knowledge and that he already had a hazard escrow policy with another company, about which the plaintiff's insurance company notified the defendant. The plaintiff holds HSBC Bank USA, National Association, and Does 1-10 responsible because the defendants allegedly raised the amount that consumers owed on their mortgage payments without consideration or agreement by these consumers. The plaintiff requests a trial by jury and seeks injunctive, equitable and declaratory relief, damages, interest, restitution and disgorgement, all legal fees and any other relief as the court deems just. He is represented by Todd M. Friedman and Adrian R. Bacon of Law Offices of Todd M. Friedman PC in Woodland Hills, California. U.S. District Court for the Central District of California Case number 5:16-cv-02289-JGB-DTB ICAHN ENTERPRISES: Settlement of Sloan Lawsuit Approved ------------------------------------------------------- Icahn Enterprises L.P. and Icahn Enterprises Holdings L.P. said in their Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the United States District Court for the Central District of California has issued an order and judgment approving the settlement of the Sloan class action lawsuit. On April 1, 2016, CVR Partners completed its acquisition of CVR Nitrogen, LP ("CVR Nitrogen") (formerly known as East Dubuque Nitrogen Partners, L.P. and also formerly known as Rentech Nitrogen Partners L.P.) and CVR Nitrogen GP, LLC (formerly known as East Dubuque Nitrogen GP, LLC and also formerly known as Rentech Nitrogen GP, LLC). In connection with this acquisition, CVR Partners issued approximately 40.2 million common units to CVR Nitrogen common unitholders with a fair market value of $336 million and paid $99 million in cash consideration and assumed $368 million fair value of debt. The total fair value of the purchase price consideration to be allocated was $440 million and the estimated fair value of net assets acquired at the acquisition date was $440 million. There were no identifiable intangible assets related to this acquisition. CVR Partners is in the process of finalizing certain customary post-closing adjustments which could affect the estimated fair value of assets acquired and liabilities assumed. Two class action lawsuits were filed in connection with the East Dubuque Merger, (i) the "Mustard Lawsuit", which was filed in the Court of Chancery of the State of Delaware, and (ii) the "Sloan Lawsuit" (together with Mustard Lawsuit, the "Merger Lawsuits"), which was filed in the United States District Court for the Central District of California. The Merger Lawsuits alleged (among other things) breach of fiduciary duties and inadequate disclosure, in each case, in connection with the East Dubuque Merger. In February 2016, the parties to the Merger Lawsuits entered into a memorandum of understanding providing for the proposed settlement of the Merger Lawsuits. The parties subsequently entered into a stipulation of settlement, which was subject to customary conditions including court approval following notice to the CVR Nitrogen unitholders. In July 2016, the Mustard Lawsuit was dismissed, and in October 2016, the United States District Court for the Central District of California issued an order and judgment approving the settlement of the Sloan Lawsuit. The settlement resolves and releases all claims by unitholders of CVR Nitrogen challenging the East Dubuque Merger. The plaintiff's counsel in the Sloan Lawsuit has filed a petition for the award of attorneys' fees, which remains pending with the Court. CVR Partners does not believe the settlement or the award of attorneys' fees will have a material adverse effect on its business, financial condition or results of operation. Icahn Enterprises is a diversified holding company owning subsidiaries currently engaged in the following continuing operating businesses: Investment, Automotive, Energy, Metals, Railcar, Gaming, Mining, Food Packaging, Real Estate and Home Fashion. IGT CONSTRUCTION: "Hernandez" Seeks Recovery of "Unpaid" Wages -------------------------------------------------------------- Gustavo Trujillo Hernandez, an individual, on behalf of himself and all others similarly situated, Plaintiff, v. IGT CONSTRUCTION, INC., a California Corporation d/b/a West Coast Construction, and DOES 1 through 100, Defendants, Case No. BC 640341 (Cal. Super., County of Los Angeles, November 9, 2016), seeks recovery of unpaid wages and penalties under the California Business and Professions Code and Industrial Welfare Commission Wage Order. Plaintiffs' primary job duties included installing drywall, painting and laying concrete. The Plaintiff is represented by: Paul K. Haines, Esq. Gene Williams, Esq. Fletcher W. Schmidt, Esq. Andrew J. Rowbotham, Esq. HAINES LAW GROUP, APC 2274 East Maple Ave. El Segundo, CA 90245 Phone: (424) 292-2350 Fax: (424) 292-2355 E-mail: arowbotham@haineslawgroup.com E-mail: fschmidt@haineslawgroup.com phaines@haineslawgroup.com gwilliams@haineslawgroup.com IMMUNOMEDICS INC: To Defend Against Fergus & Becker Class Suits --------------------------------------------------------------- Immunomedics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that two purported class action cases have been filed in the United States District Court for the District of New Jersey; namely, Fergus v. Immunomedics, Inc., et al., No. 2:16-cv-03335, filed June 9, 2016; and Becker v. Immunomedics, Inc., et al., No. 2:16-cv-03374, filed June 10, 2016. These cases arise from the same alleged facts and circumstances, and seek class certification on behalf of purchasers of our common stock between April 20, 2016 and June 2, 2016 (with respect to the Fergus matter) and between April 20, 2016 and June 3, 2016 (with respect to the Becker matter). These cases concern the Company's statements in press releases, investor conference calls, and SEC filings beginning in April 2016 that the Company would present updated information regarding its IMMU-132 breast cancer drug at the 2016 American Society of Clinical Oncology ("ASCO") conference in Chicago, Illinois. The complaints allege that these statements were false and misleading in light of June 2, 2016 reports that ASCO had cancelled the presentation because it contained previously reported information. The complaints further allege that these statements resulted in artificially inflated prices for our common stock, and that the Company and certain of its officers are thus liable under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. As of the date hereof, service of the initiating papers in these actions has not been made on the Company. Immunomedics is a clinical-stage biopharmaceutical company that develops monoclonal antibody-based products for the targeted treatment of cancer, autoimmune and other serious diseases. INFUSYSTEM HOLDINGS: January 9 Lead Plaintiff Motion Deadline Set ----------------------------------------------------------------- Khang & Khang LLP (the "Firm") on Nov. 8 announced the filing of a class action lawsuit against InfuSystem Holdings, Inc. ("InfuSystem" or the "Company"). Investors who purchased or otherwise acquired shares between May 12, 2015 and November 7, 2016 inclusive (the "Class Period"), are encouraged to contact the Firm in advance of the January 9, 2017 lead plaintiff motion deadline. If you purchased shares of InfuSystem during the Class Period, please contact Joon M. Khang, Esquire, of Khang & Khang LLP, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: 949- 419-3834, or via e-mail at joon@khanglaw.com. There has been no class certification in this case. Until certification occurs, you are not represented by an attorney. You may choose to take no action and remain a passive class member. The complaint alleges that InfuSystem made false and misleading statements and/or failed to disclose: that InfuSystem lacked effective internal control over financial reporting; that the Company's financial statements from back to the beginning of 2015 overstated the estimated accounts receivable collections, which then overstated revenues and pre-tax income by a corresponding amount; that financial statements dating back to the beginning of 2015 could no longer be relied upon; and that as a result of the above, the Company's financial statements were materially false and misleading at all relevant times. When this information was released to the public, shares of InfuSystem declined in value, causing investors harm. If you wish to learn more about this lawsuit at no charge, or if you have any questions regarding this notice or your rights, please contact Joon M. Khang, a prominent litigator for almost two decades, by telephone: 949-419-3834, or via e-mail at joon@khanglaw.com. INTERNATIONAL PAPER: Court Rejects Slocum Bid to Remand Suit ------------------------------------------------------------ District Judge Eldon E. Fallom of the United States District Court for the Eastern District of Louisiana denied Plaintiffs' motion to remand in the case captioned, SHIRLEY SLOCUM, v. INTERNATIONAL PAPER COMPANY, ET AL., SECTION "L" (1), Case No. 16-12563 (E.D. La.). These class action cases arise out of injuries allegedly sustained by Plaintiffs as a result of a discharge of "black liquor" at the Bogalusa Paper Mill. Plaintiffs assert claims against Defendant, International Paper Company, for failure to provide complete and accurate information about the chemical composition and known risks presented by "black liquor" that was allegedly discharged from a ruptured evaporator tank at the Bogalusa Paper Mill. Plaintiffs' theories of liability sound in negligence, strict liability, and nuisance against IP, Bernard Chascin, the plant manager, and IP's insurers in the Parish of Washington, 22nd Judicial District, State of Louisiana. Beginning in July of 2016, Defendants removed these four class actions cases to this Court, asserting federal jurisdiction pursuant to the Class Action Fairness Act (CAFA). Plaintiffs now seek to remand the cases to state court, and argue that CAFA jurisdiction does not apply. Plaintiffs contend that the Court lacks jurisdiction over this case because it was removed pursuant to the Class Action Fairness Act (CAFA), but is unlikely to receive class certification under Fifth Circuit precedent. In his Order and Reasons dated November 4, 2016 available at https://is.gd/vthabs from Leagle.com, Judge Fallon concluded that the Defendants have met the requirements of CAFA jurisdiction. Shirley Slocum, et al. are represented by Shawn C. Reed, Esq. -- sreed@howardandreed.com -- D. Douglas Howard, Jr., Esq. -- dhoward@howardandreed.com -- Jonathan C. Pedersen, Esq. -- jpedersen@howardandreed.com -- Kyle T. Del Hierro, Esq. -- kdelhierro@howardandreed.com -- HOWARD & REED International Paper Company is represented by Tim Gray, Esq. -- tim.gray@formanwatkins.com -- Erin Wedge Latuso, Esq. -- erin.latuso@formanwatkins.com -- and Thomas Peyton Smith, Esq. -- peyton.smith@formanwatkins.com -- FORMAN, WATKINS, & KRUTZ, LLP JANI-KING: "Williams" Ruling May Spark Suits Against Franchisors ---------------------------------------------------------------- Karen Marchiano, writing for Corporate Counsel, reports that in a sharply divided 2-1 decision, the U.S. Court of Appeals for the Third Circuit recently affirmed the grant of class certification against commercial cleaning franchisor Jani-King in a lawsuit alleging that Jani-King's franchisees were misclassified as independent contractors (Williams v. Jani-King of Philadelphia (3d Cir. Sept. 21, 2016)). The Williams decision is the latest significant decision in the franchisee-as-employee arena. Here's what you need to know. 1. What is the impact of franchisors being considered their franchisees' employers? Potentially massive. Depending on the context, an employment versus independent contractor relationship can trigger such requirements as minimum wage and overtime payments, occupational safety and health regulations, income tax withholding obligations, discrimination law requirements and mandated contributions to social security, medicare, workers compensation, and unemployment insurance. If franchisors that exercise a typical level of control over their franchisees are considered their employers, franchising will fundamentally change in nature, be dramatically reduced as a percentage of the U.S. economy, or disappear entirely. As the International Franchise Association (the oldest and largest trade association in the world devoted to the representation of the interests of franchising) states, "Owning a franchise allows you to go into business for yourself, but not by yourself." A franchisor-franchisee employment relationship would dramatically change that dynamic for the more than 600,000 franchised business establishments owned by franchisees-entrepreneurs in the United States in 2016. One of the most appealing aspects of franchising for franchisees is the relative independence franchising provides -- an employment relationship would eviscerate that independence. 2. Will the Williams decision increase franchisors' risk of facing future litigation? Yes. The well-reasoned dissent correctly argued that the majority's opinion will most likely lead to additional class action litigation against other franchisors, at least in federal court in Pennsylvania. Critically, while the Williams decision increases franchisors' risk of facing future class action litigation, the decision does not increase the risk that franchisors will lose such cases and be deemed the employers of their franchisees. The decision carefully states that it is not reaching the merits of the question of whether "system controls inherent in a franchise relationship make a franchisor the employer of its franchise owners under Pennsylvania's multi-factor employment test." Instead, the decision states that "Jani-King may ultimately be correct that the franchise agreement and manual do not contain sufficient controls over the day-do-day work of franchisees to make them employees under Pennsylvania law, and we express no opinion on that matter here." Also, critically, this decision is only predicting Pennsylvania state law. Other courts, including notably the Juarez v. Jani- King decision (N.D. Cal. 2011), reached the exact opposite decision of Williams. 3. What changes should franchisors make to avoid franchisee-as- employee lawsuits? In response to the Williams decision, many franchisors should consider changes to their franchise disclosure documents, franchise agreements, manuals and operational practices. Many franchisors should consider eliminating all unnecessary controls over franchisees, rewriting documents to emphasize required results rather than required methods for obtaining results and differentiating between mandatory standards (tied to protection of the brand and trademark) versus optional recommendations. To emphasize these changes, franchisors should consider renaming their manuals "brand standards manuals" instead of "operations manuals." In addition, many franchisors should consider revising their franchise agreements and manuals to clearly specify that the franchisee is solely responsible for the day-to-day operation of the franchised business, and to require the franchisee to consistently identify itself as an independent contractor and the franchised business as independently owned and operated. Other changes will be industry- and franchisor-specific. 4. How else can franchisors protect themselves from franchisee-as- employee litigation? The franchise industry is seeking a legislative fix. At least eight states (Georgia, Indiana, Louisiana, Oklahoma, Tennessee, Texas, Utah and Wisconsin) have passed legislation limiting the situations in which franchisors will be deemed employers of their franchisees for purposes of state law (such as state laws on workers' compensation, wage-and-hour issues, unemployment insurance, employment discrimination, occupational safety and health and other employment issues). The franchise industry is also pursuing legislation at the federal level and in other states to protect franchising, a critical component of the economy that provided 5.6 percent of all private nonfarm jobs in the United States in 2016. In the meantime, the franchise community will continue to watch developments in the Williams and other franchisee-as-employee cases, including the pending Ninth Circuit appeal of Juarez. The community will also endeavor to educate legislators and the public on the dynamics of the franchise relationship, and its importance to the U.S. economy. KAISER PERMANENTE: Court Narrows Claims in "Sidlo" ERISA Suit ------------------------------------------------------------- District Judge Alan C. Kay of the United States District Court for the District of Hawaii granted in part Plaintiff's motion for summary judgment in the case captioned, TOBY SIDLO, on behalf of himself, and all others similarly situated, Plaintiff(s), v. KAISER PERMANENTE INSURANCE COMPANY, a California non-profit corporation, KAISER FOUNDATION HEALTH PLAN, INC., a foreign non- profit corporation, and DOE DEFENDANTS 1-50, Defendants. KAISER FOUNDATION HEALTH PLAN, INC., a foreign non-profit corporation, Plaintiff, v. HAWAII LIFE FLIGHT CORPORATION, a Hawaii corporation, and AIR MEDICAL RESOURCE GROUP, INC., a Utah Corporation, Defendants. HAWAII LIFE FLIGHT CORPORATION, a Hawaii corporation, Counterclaim Plaintiff, v. KAISER FOUNDATION HEALTH PLAN, INC., a foreign non-profit corporation, Counterclaim Defendant, Case No. 15-00269 ACK-KSC (D. Haw.). On July 15, 2015, Plaintiff Toby Sidlo, on behalf of himself and all others similarly situated, filed a class action complaint against Kaiser Permanente Insurance Company (KPIC) and Kaiser Foundation Health Plan, Inc. (KFHP, and together with KPIC, Defendants). Sidlo alleges claims against Defendants under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Section 1001 et seq. The Complaint raises two counts against Defendants: -- Count I, which arises under 29 U.S.C. Sec. 1132(a)(1)(B), seeks to recover health care benefits, as well as an injunction "clarifying and enforcing Plaintiff's and the class members' rights to payment of those amounts still due and owing"; and -- Count II, arising under 29 U.S.C. Section 1132(a)(3), seeks equitable relief to enjoin Defendants "from denying full coverage based on artificially lowered reimbursement rates" and other appropriate relief. On June 9, 2016, Sidlo filed a motion requesting leave to amend his Complaint which was joined by Nonparties Hawaii Life Flight Corporation (HLF) and Air Medical Resource Group, Inc. (AMRG). In addition to Counts I and II, the FAC alleges four other claims: -- Count III, arising under 29 U.S.C. Section 1022 and Section 1132(a), seeks full legal and equitable relief, including injunctive relief, in connection with KFHP's alleged failure to timely issue Plaintiff and the class a summary of material modifications (SMM) of members' plans' coverage terms; -- Count IV, arising under 29 U.S.C. Section 1132(a), seeks full legal and equitable relief, including injunctive relief, in connection with Defendants' alleged breach of fiduciary duty; -- Count V, arising under 29 U.S.C. Section 1132(a), seeks to equitably estop Defendants "from denying that they are responsible for the copay liability and all sums owed by the Plaintiff and the class to their provider"; and -- Count VI, arising under 29 U.S.C. Section 1132(a), seeks a determination that Defendants "are liable for the full unpaid balances owed by each class member under the doctrine of equitable indemnification as well as all other indemnity requirements imposed by law." On February 18, 2016, KFHP filed a complaint in Kaiser Foundation Health Plan, Inc. v. Hawaii Life Flight Corp., et al., Civ. No. 16-00073 ACK-KSC. D. Haw., Civ. No. 16-00073 ACK-KSC. In the KFHP Complaint, KFHP alleges that HLF and AMRG violated an anti- assignment provision in KFHP's ERISA plans within Hawaii. HLF provides medical air transportation services in Hawaii. KFHP alleges that HLF and/or AMRG "have repeatedly attempted to procure broad assignments of members of the Plans' rights, interest, claims for money due, benefits and/or obligations under the Plans, in violation of the anti-assignment provision." On April 14, 2016, HLF and AMRG filed an answer to KFHP's Complaint and HLF further filed a counterclaim against KFHP. HLF alleges counts of: -- unfair competition in violation of Hawaii Revised Statutes (HRS) Section 480-2; -- tortious interference with contract; -- defamation; and -- trade libel/disparagement. HLF asserts that KFHP, "in connection with its health insurance services, has made written and oral demands that hospitals arrange for emergency transportation of patients exclusively through or as designated by KFHP, even where those hospitals have contracts with HLF and contrary to the federal law that exclusively provides that emergency patient transport is arranged by the treating physician." Before the Court are three motions that seek summary judgment as to the counts alleged in the FAC: Sidlo's Motion, which seeks summary judgment as to Count I, argues that KFHP breached the terms of Sidlo's and other members' healthcare plans and asks the Court to order Defendants to pay Sidlo's healthcare benefits under ERISA Section 502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B). On August 30, 2016, Defendant KFHP filed a Memorandum in Opposition to Sidlo's Motion arguing that because Sidlo bases his arguments on an inapplicable plan term, KFHP is entitled to summary judgment on Counts I and II. In his Order dated October 31, 2016 available at https://is.gd/1gwxe4 from Leagle.com, Judge Kay found that Sidlo has standing to assert his claims. He denied KFHP's Motion for Summary Judgment with respect to Count I and VI and granted in part KFHP's Motion with respect to Counts II, III, IV, and V. Toby Sidlo, Plaintiff, represented by John J. Conway, III, Esq. - jj@jjconwaylaw.com -- JOHN J. CONWAY, P.C.; Michael A. Lilly, Esq. -- michael@nljlaw.com -- and Valerie M. Kato, Esq. -- vkato@nljlaw.com -- NING LILLY & JONES Kaiser Permanente Insurance Company, et al. are represented by Alana Peacott-Ricardos, Esq. -- apeacottricardos@goodsill.com -- Christine A. Terada, Esq. -- cterada@goodsill.com -- Gail Y. Cosgrove, Esq. -- gcosgrove@goodsill.com -- and Lisa W. Munger, Esq. -- lmunger@goodsill.com -- GOODSILL ANDERSON QUINN & STIFEL LLLP -- Alison H. Hong, Esq. -- ahong@seyfarth.com -- Kathleen Cahill Slaught, Esq. -- kslaught@seyfarth.com -- and Michelle M. Scannell, Esq. -- mscannel@seyfarth.com -- SEYFARTH SHAW LLP -- Moe Keshavarzi, Esq. -- mkeshavarzi@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON LLP KAREO INC: Faces "Nazarian" Suit for Breach of Contract ------------------------------------------------------- DAVID NAZARIAN, M.D., d/b/a MY CONCIERGE MD, individually and on behalf of all others similarly situated, Plaintiff, v. KAREO, INC., a California corporation; and Does 1-10, inclusive, Defendant, Case No. 30-2016-00886000-CU-MT-CXC (Cal. Super., County of Orange), alleges breach of contract, fraud and deceit and negligent misrepresentation arising out of Defendant's failure to timely submit its customers' claims to insurance carriers, resulting in noncompliance with time limitations imposed by carriers on submission of claims, and its customers losing recovery on those claims. Defendant is a medical billing software and claims processing company. The Plaintiff is represented by: Justin P. Karczag, Esq. FOLEY BEZEK BEHLE & CURTIS LLP 707 Wilshire Blvd., Suite 3000 Los Angeles, CA 90017 Phone: (213) 357-2525 E-mail: jkarczag@foleybezek.com - and - Dawn M. Coulson, Esq. EPPS & COULSON, LLP 707 Wilshire Blvd., Suite 3000 Los Angeles, CA 90017 Phone: (213) 929-2390 Fax: (213) 929-2394 E-mail: dcoulson@eppscoulson.com KAVAC LLC: "Fuentes" Suit Seeks to Recover Overtime Under FLSA -------------------------------------------------------------- JESUS FUENTES, VICTOR M. OCHOA ALVARADO and PEDRO A. MERCADO VENTURA On Behalf of All Similarly Situated Persons v. KAVAC, LLC d/b/a FISHER HOMES, KAVAC HOLDING COMPANY, LLC and TERRY J. FISHER, Case No. 4:16-cv-03338 (S.D. Tex., November 11, 2016), is brought under the Fair Labor Standards Act as a collective action to recover unpaid overtime compensation, liquidated damages, and attorney's fees owed to the Plaintiffs and all other similarly situated employees employed by, or formerly employed by the Defendants, its subsidiaries and affiliated companies. Kavac, LLC, doing business as Fisher Homes, is a Texas limited liability company that employed the Plaintiffs. Kavac Holding Company, LLC, is a Texas limited liability company that employed the Plaintiffs. Terry J. Fisher is an owner of both Fisher Homes and Kavac Holding. The Plaintiffs are represented by: Josef F. Buenker, Esq. Vijay A. Pattisapu, Esq. 2030 North Loop West, Suite 120 Houston, TX 77018 Telephone: (713) 868-3388 Facsimile: (713) 683-9940 E-mail: jbuenker@buenkerlaw.com vijay@buenkerlaw.com KRISPY KREME: Faces "Saidian" Suit Over Doughnut False Ad --------------------------------------------------------- JASON SAIDIAN, individually and on behalf of all others similarly situated, Plaintiff, v. KRISPY KREME DOUGHNUTS, INC., Defendant, Case 2:16-cv-08338 (C.D. Cal., November 9, 2016), alleges false and misleading business practices with respect to the marketing and sale of its "Chocolate Iced Raspberry Filled" and "Glazed Raspberry Filled" donuts, "Maple Iced Glazed" and "Maple Bar" donuts, and "Glazed Blueberry Cake" donuts and the "Glazed Blueberry Cake" donut holes at Krispy Kreme company and franchise stores. Krispy Kreme directly and/or through its agents, formulates, manufactures markets, distributes, and sells donuts nationwide. The Plaintiff is represented by: Barbara A. Rohr, Esq. Benjamin Heikali, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Phone: (424) 256-2884 Fax: (424) 256-2885 E-mail: brohr@faruqilaw.com bheikali@faruqilaw.com LIBERTY MUTUAL: Must Defend Against First State Orthopaedics Suit ----------------------------------------------------------------- Judge William C. Carpenter, Jr. of the Delaware Superior Court vacated denied Defendant's Motion to Dismiss in the case captioned, FIRST STATE ORTHOPAEDICS, P.A., on behalf of itself and all others similarly situated, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant, Case No. N15C-12-054 WCC CCLD (Del. Super.). Plaintiff First State Orthopaedics, P.A.'s (FSO) brings the proposed class action on behalf of all Delaware health care providers who, at any time since December 4, 2012, submitted health care invoices to Liberty Mutual for care provided to Delaware workers' compensation claimants where either (i) the invoice was never contested by Liberty, (ii) the invoice was unsuccessfully contested by Liberty through the statutory utilization review process, or (iii) though ultimately paid by Liberty, payment occurred only after the expiration of the 30-day period under 19 Del. C. Section 2322F(h), and Liberty Mutual failed to pay the required statutory interest. The Complaint alleges Liberty Mutual routinely failed to pay statutory interest it indisputably owed on claims not contested within 30 days of receipt and claims it unsuccessfully disputed in the utilization review process. FSO therefore maintains that Liberty Mutual owes interest accrued under Section 2322F(h) to FSO and others similarly situated. As a result, FSO requests that the Court grant class action certification and award declaratory relief in addition to compensatory and punitive damages. Liberty Mutual moved to dismiss the Complaint, asserting no private right of action exists under the statute. According to Liberty Mutual, only the Board has the authority to decide the interest rate dispute. In his Opinion dated November 1, 2016 available at https://is.gd/pqp0Ci from Leagle.com, Judge Carpenter, Jr. found that the pleadings, as alleged, are sufficient to place Defendant on notice of the claims and that those pleadings assert that FSO has suffered a loss. As such, there is no basis to justify dismissal for lack of standing at the juncture in the litigation. As such, the Court finds the two arguments advanced in Defendant's Motion to Dismiss Count I are without merit. First State Orthopaedics, PA is represented by John S. Spadaro, Esq. -- JSPADARO@JOHNSHEEHANSPADARO.COM -- JOHN SHEEHAN SPADARO, LLC Liberty Mutual Insurance Company is represented by Tiffany Powers, Esq. -- tiffany.powers@alston.com -- and Andrew Hatchett, Esq. -- andrew.hatchett@alston.com -- ALSTON & BIRD LLP. Liberty is also represented by: Colin M. Shalk, Esq. CASARINO CHRISTMAN SHALK RANSOM & DOSS, P.A. 1007 Orange Street Suite 1100 Wilmington, DE 19801 Tel: (302)595-4500 LIVANOVA PLC: Sorin Group Must Defend Against Lawsuit ----------------------------------------------------- LivaNova PLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that a Pennsylvania court has dismissed LivaNova PLC from the case, Baker, Miller et al v. LivaNova PLC, but denied the Company's motion to dismiss Sorin Group Deutschland GmbH and Sorin Group USA, Inc. from the lawsuit. On February 12, 2016, LivaNova was alerted that a class action complaint had been filed in the U.S. District Court for the Middle District of Pennsylvania with respect to the Company's 3T Heater Cooler devices, naming as evidence, in part, the Warning Letter issued by the FDA in December 2015. The named plaintiffs to the complaint are two individuals who underwent open heart surgeries at WellSpan York Hospital and Penn State Milton S. Hershey Medical Center in 2015, and the complaint alleges that: (i) patients were exposed to a harmful form of bacteria, known as nontuberculous mycobacterium ("NTM"), from LivaNova's 3T Heater Cooler devices; and (ii) LivaNova knew or should have known that design or manufacturing defects in 3T Heater Cooler devices can lead to NTM bacterial colonization, regardless of the cleaning and disinfection procedures used (and recommended by the Company). Named plaintiffs seek to certify a class of plaintiffs consisting of all Pennsylvania residents who underwent open heart surgery at WellSpan York Hospital and Penn State Milton S. Hershey Medical Center between 2011 and 2015 and who are currently asymptomatic for NTM infection (approximately 3,600 patients). The putative class action, which has not been certified, seeks: (i) declaratory relief finding the 3T Heater Cooler devices are defective and unsafe for intended uses; (ii) medical monitoring; (iii) general damages; and (iv) attorneys' fees. On March 21, 2016, the plaintiffs filed a First Amended Complaint adding Sorin Group Deutschland GmbH and Sorin Group USA, Inc. as defendants. On September 29, 2016 the Court dismissed LivaNova PLC from the case, and on October 11, 2016, the Court denied the Company's motion to dismiss Sorin Group Deutschland GmbH and Sorin Group USA, Inc. from the lawsuit. LivaNova is a global medical device company focused on the development and delivery of important therapeutic solutions for the benefit of patients, healthcare professionals and healthcare systems throughout the world. LIVANOVA PLC: Class Action Filed in Quebec ------------------------------------------ LivaNova PLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that a class action petition has been brought against the Montreal Heart Institute and LivaNova PLC in the Province of Quebec, Canada related to surgical cases at the Montreal Heart Institute. The Company has recently been served with lawsuits related to surgical cases in which a 3T Heater Cooler device was allegedly used. Six complaints have been filed in Pennsylvania State Court in York, PA (five against the Company and Wellspan York Hospital, and one solely against the Company, all related to surgical cases at York Hospital), one complaint has been filed in Pennsylvania State Court in Dauphin County, PA against the Company and Milton S. Hershey Medical Center related to a surgical case at Hershey Medical Center and one complaint has been filed in Pennsylvania State Court against the Company and University of Pennsylvania related to a surgical case at Penn Presbyterian Hospital. Nine complaints have been filed in the U.S. District Court for the District of South Carolina related to surgical cases at Greenville Health System Hospital in Greenville, SC. One additional case has been filed against the Company in the U.S. District Court for the Southern District of Iowa related to a surgical case at the University of Iowa Hospital. Finally, on October 30, 2016, the Company learned of a class action petition brought against the Montreal Heart Institute and LivaNova PLC in the Province of Quebec, Canada related to surgical cases at the Montreal Heart Institute. The Company has not yet been served with the complaint in this case. "At LivaNova, patient safety is of the utmost importance, and significant resources are dedicated to the delivery of safe, high- quality products. We intend to vigorously defend each of these claims. Given the early stage of this matters, we cannot, however, give any assurances that additional legal proceedings making the same or similar allegations will not be filed against LivaNova PLC or one of its subsidiaries, nor that the resolution of these complaints or other related litigation in connection therewith will not have a material adverse effect on our business, results of operations, financial condition and/or liquidity," the Company said. LivaNova is a global medical device company focused on the development and delivery of important therapeutic solutions for the benefit of patients, healthcare professionals and healthcare systems throughout the world. M.I. COURIER: Faces "Rios" Suit Alleging Violations of FLSA ----------------------------------------------------------- JEFFREY RIOS, and others similarly-situated, Plaintiff, vs. M.I. COURIER SERVICES INC. A/K/A M.I. COURIER SERVICES INC. OF NEW YORK, and JULIUS C. GOTAY, Defendants, Case No. 9:16-cv-81856-DMM (S.D. Fla., November 9, 2016), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for alleged willful violations the laws of the United States and the Fair Labor Standards Act. M.I. COURIER SERVICES INC. a/k/a M.I. COURIER SERVICES INC. OF NEW YORK operated as an organization which handled goods and/or materials, such as pharmaceutical drugs, that originated outside the state of Florida, to customers in the State of Florida. The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. Co-Counsel for Plaintiff 2847 Hollywood Blvd. Hollywood, FL 33020 Phone: (305) 308-5619 Email: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. THE LAW OFFICE OF ISAAC MAMANE, PA 1150 Kane Concourse, Fourth Floor Bay Harbor Islands, FL 33154 Phone: (786) 704 - 8898 E-mail: mamane@gmail.com MAINE FISH: Seeks Final OK of "Dineen" FLSA Suit Settlement ----------------------------------------------------------- The parties in the lawsuit entitled KRISTEN DINEEN and JOHN TEDONE, on behalf of themselves and all others similarly situated v. MAINE FISH MARKET RESTAURANT, INC. d/b/a MAINE FISH MARKET and NICHOLAS VAMVILIS, Case No. 3:15-cv-01554-WIG (D. Conn.), file with the Court their joint motion for final approval of class action settlement, certification of the settlement class, and approval of their settlement under the Fair Labor Standards Act. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=Jai6mTd1 The Plaintiffs are represented by: Louis Pechman, Esq. Laura Rodriguez, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue, 11th Floor New York, NY 10022 Telephone: (212) 583-9500 E-mail: pechman@pechmanlaw.com rodriguez@pechmanlaw.com - and - William G. Madsen, Esq. MADSEN, PRESTLEY & PARENTEAU, LLC 402 Asylum Street Hartford, CT 06103 Telephone: (860) 246-2466 Facsimile: (860) 246-1794 E-mail: wmadsen@mppjustice.com The Defendants are represented by: Miguel A. Escalera, Esq. Shel D. Myers, Esq. KAINEN, ESCALERA & MCHALE, P.C. 21 Oak Street, Suite 601 Hartford, CT 06106 Telephone: (860) 493-0870 Facsimile: (860) 493-0871 E-mail: mescalera@kemlaw.com smyers@kemlaw.com MARCHESE HEALTH: Settles Diluted Chemotherapy Drug Class Action --------------------------------------------------------------- Hank Daniszewski, writing for The London Free Press, reports that more than three years after 1,200 Southwestern Ontario cancer patients received diluted chemotherapy drugs, a class-action suit has been resolved with a nearly $2.4-million settlement. The suit was filed against MedBuy, a London-based bulk buying agency for hospitals, and Hamilton-based Marchese Hospital Solutions, which supplied the drugs. The suit was filed by legal firms Mackenzie Lake LLP of London and Sutts, Strosberg LLP of Windsor. In April 2013, health-care officials said bags of saline solution containing two chemotherapy drugs had a lower dose of the drugs than the label indicated. The diluted chemotherapy solutions had been used to treat about 1,200 patients across Canada, including 665 at London Health Sciences Centre and the rest at hospitals in Windsor, Oshawa, Peterborough and Saint John, N.B. A probe ordered by the province of Ontario, headed by Dr. Jake Thiessen of the University of Waterloo's pharmacology school, found "no evidence of any malicious or deliberate drug-sparing dilution" and that the dilution had been so slight, it was unlikely to have adversely affected patient care. Sabrina Lombardi of Mackenzie Lake said the class action was started before Mr. Thiessen's report was filed. "When we learned there was no impact on prognosis, there was no case left," said Ms. Lombardi. "This is not a lot of money, but it is a token acknowledgment of the stress faced by patients and their families." About $1.8 million of the settlement will be divided equally among the 1,200 patients, with the rest going to administration, legal fees and provincial health insurers. The settlement works out to about $1,500 a patient. As part of the settlement, Marchese and Medbuy will file statements detailing how the error occurred and changes made to prevent similar errors in future. "There were mistakes on many links on the health-care chain here, but none were negligent . . . There was no smoking gun in terms of what caused the mistake," said Lombardi. Patients or relatives of patients affected by the diluted chemo drugs have been contacted by the hospitals and are eligible to receive the settlement. The class-action settlement is subject to review by affected patients. Final court approval is expected Jan. 10. MASIMO CORP: Oral Arguments in Appeal Scheduled for December 13 --------------------------------------------------------------- Masimo Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended October 1, 2016, that oral arguments before the Eleventh Circuit Court of Appeals are currently scheduled for December 13, 2016. On January 2, 2014, a putative class action complaint was filed against the Company in the U.S. District Court for the Central District of California by Physicians Healthsource, Inc. The complaint alleges that the Company sent unsolicited facsimile advertisements in violation of the Junk Fax Protection Act of 2005 and related regulations. The complaint seeks $500 for each alleged violation, treble damages if the District Court finds the alleged violations to be knowing, plus interest, costs and injunctive relief. On April 14, 2014, the Company filed a motion to stay the case pending a decision on a related petition filed by the Company with the Federal Communications Commission (FCC). On May 22, 2014, the District Court granted the motion and stayed the case pending a ruling by the FCC on the petition. On October 30, 2014, the FCC granted some of the relief and denied some of the relief requested in the Company's petition. Both parties appealed the FCC's decision on the petition. On November 25, 2014, the District Court granted the parties' joint request that the stay remain in place pending a decision on the appeal. The appellate hearing in the D.C. Circuit Court of Appeals is currently scheduled for November 7, 2016. The Company believes it has good and substantial defenses to the claims, but there is no guarantee that the Company will prevail. The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company as of the date of filing of this Quarterly Report on Form 10-Q. On January 31, 2014, an amended putative class action complaint was filed against the Company in the U.S. District Court for the Northern District of Alabama by and on behalf of two participants in the Surfactant, Positive Pressure, and Oxygenation Randomized Trial at the University of Alabama. On April 21, 2014, a further amended complaint was filed adding a third participant. The complaint alleges product liability and negligence claims in connection with pulse oximeters the Company modified and provided at the request of study investigators for use in the trial. On August 13, 2015, the U.S. District Court for the Northern District of Alabama granted summary judgment in favor of the Company on all claims. The plaintiffs have appealed the U.S. District Court for the Northern District of Alabama's decision. Oral arguments before the Eleventh Circuit Court of Appeals are currently scheduled for December 13, 2016. The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company as of the date of filing of this Quarterly Report on Form 10-Q. Masimo is a global medical technology company that develops, manufactures and markets a variety of noninvasive patient monitoring technologies. MEDREMIT INC: Certification of Class Sought in "Boileve" Class -------------------------------------------------------------- The Plaintiff in the lawsuit styled CARLOS M. BOILEVE, DC, MCS-P, individually and as the representative of a class of similarly- situated persons v. MEDREMIT INC., a California corporation, PRAKASH DASOT and JOHN DOES 1-5, Case No. 1:16-cv-07662 (N.D. Ill.), submits a first amended motion for class certification pursuant to Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011). The Plaintiff proposes this class definition: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) from which Defendants did not have prior express invitation or permission, and/or (4) which did not display a proper opt-out notice. The Plaintiff also asks to be appointed as class representative, and to appoint the Plaintiff's attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=uS9BFRCn The Plaintiff is represented by: Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com MIDDLE MAN: Submits Memorandum for Bid to Certify in Sprint Suit ---------------------------------------------------------------- Counterclaimant The Middle Man, Inc., submits a memorandum in support of its renewed motion for class certification on Count I of its counterclaim against Counterclaim Defendant Sprint Nextel Corporation in the lawsuit titled SPRINT NEXTEL CORPORATION v. THE MIDDLE MAN, INC. and BRIAN K. VAZQUEZ, Case No. 2:12-cv-02159-JTM (D. Kan.). Before the court is The Middle Man's renewed motion for class certification on Count I of its counterclaim against Sprint. Count I asks the Court to declare "that consumers purchasing new wireless phones originally programmed to operate on the Sprint network are not precluded by the Terms and Conditions that accompany those phones from reselling the phones to members of the class." The Middle Man asks this relief to confirm the legality of its business model, which has been called into question by Sprint's 13-count Complaint and accompanying motion for preliminary injunction. The Middle Man seeks the relief on a class-wide basis because these issues are not unique to The Middle Man, but instead, impact every reseller of Sprint pre-owned wireless phones. A copy of the Memorandum is available at no charge at http://d.classactionreporternewsletter.com/u?f=Mok8Ngb2 Counterclaimant The Middle Man, Inc., is represented by: James J. Kernell, Esq. Kyle D. Donnelly, Esq. ERICKSON KERNELL IP, LLC 8900 State Line Road, Suite 500 Leawood, KS 66206 Telephone: (913) 549-4700 Facsimile: (913) 549-4646 E-mail: jjk@kcpatentlaw.com kdd@kcpatentlaw.com - and - David L. Marcus, Esq. BARTLE & MARCUS LLC 116 West 47th Street, Suite 200 Kansas City, MO 64112 Telephone: (816) 285-3888 Facsimile: (816) 222-0534 E-mail: dmarcus@bmlawkc.com MLS PLAYERS: Files Motion to Dismiss Youth Clubs' Class Action -------------------------------------------------------------- Jeff Carlisle, writing for ESPN FC, reports that The MLS Players Union, along with Michael Bradley, Clint Dempsey and DeAndre Yedlin, has filed a motion to dismiss a class action lawsuit filed against them by three youth clubs. The motion argues that the U.S. Court for the Eastern District of Texas lacks "personal jurisdiction" over the MLSPU and the players named in the original lawsuit. The MLSPU also filed a separate motion that if the suit is not dismissed, the MLSPU requests a change of venue to Massachusetts. The original class action lawsuit -- filed by Redmond, Washington's Crossfire Premier club, the Chicago Sockers and the Dallas Texans -- aims to settle the question of whether FIFA's Regulations on the Status and Transfer of Players (RSTP) are legal in the U.S., and whether the youth clubs in question can then recoup training fees for the players it developed who later become professionals. At one point, Bradley played for the Chicago Sockers, Dempsey for the Dallas Texans, and Yedlin for Crossfire Premier. RSTP stipulates that training compensation is charged when a player signs his or her first pro contract and there is a change of national association, while solidarity payments are collected when a player is transferred before the expiration of their contract, and there is a change of national association. The U.S. Soccer Federation, citing U.S. law, has long forbidden U.S. youth clubs from collecting training compensation and solidarity fees, and MLS has followed that lead. Specifically, the concern is that implementing RSTP in the U.S. could result in a restraint of trade and thus violate U.S. anti-trust law. Underpinning the USSF's position is a consent decree involving the USSF and MLS that came as a result of the lawsuit Fraser vs. MLS. The decree, a copy of which has been obtained by ESPN FC, stated that the "USSF will not impose, implement, or enforce in any way, those roles, statues, or regulations adopted by the Federation Internationale de Football Association relating to the payment of transfer fees or training and development fees ['transfer fee rules'] for professional soccer players who are free of contractual obligations to other teams ['out of contract players']." The decree goes on to add: "USSF will not directly or indirectly prevent a player from playing in Major League Soccer [MLS] by failing to register an out of contract player in the United States because MLS has not complied with the transfer free rules with respect to out of contract players." Nowhere in the consent decree does it mention what should happen in the case of players who are still under contract. In a bid to collect the fees they feel are owed them, the three clubs have taken their case to FIFA's Dispute Resolution Chamber, and are awaiting a decision. Meanwhile, they are also moving to establish the system's legality in the U.S. Lance Reich, the attorney representing the three youth clubs declined to comment, but in a previous interview he admitted that the lawsuit was a preemptive strike against the MLSPU, which in a meeting earlier this year threatened to sue the clubs on anti-trust grounds if a system of training compensation and solidarity payments was implemented. The motion argues that the MLSPU has minimal contacts in Texas, doesn't have any offices there, and that its Collective Bargaining Agreement is with MLS and not any entity in Texas. For those reasons the motion argues, the U.S. District Court for the Eastern District of Texas does not have jurisdiction in the case. As for the players, the motion argues that they "lack sufficient contact with the state of Texas" for them to be under jurisdiction by the U.S. District Court for the Eastern District of Texas. The reason that the MLSPU wants a change of venue to Massachusetts is that the Massachusetts District is where Fraser vs. MLS was tried, and the consent decree issued. "The District Court for the District of Massachusetts is surely best qualified to determine the effect of the consent order issued by that court," the motion reads. MORGAN STANLEY: Court Trims Claims in Forex Benchmark Rates Suit ---------------------------------------------------------------- Morgan Stanley said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that on September 20, 2016, the court in In Re Foreign Exchange Benchmark Rates Antitrust Litigation granted in part and denied in part the Firm's motion to dismiss the amended complaint. MORGAN STANLEY: Defendant in Baker v. Bank of America ----------------------------------------------------- Morgan Stanley said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that on September 29, 2016, a purported antitrust action was filed on behalf of indirect foreign exchange purchasers in the United States District Court for the Southern District of New York. The action, styled Baker v. Bank of America et al., names the Firm and 15 other foreign exchange dealers as defendants, and asserts claims under state antitrust and consumer protection laws. NEC TOKIN: Made Initial Installment Payments -------------------------------------------- Kemet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that NEC TOKIN has paid the initial installment payments into the two plaintiff classes' respective escrow accounts. On May 2, 2016, NEC TOKIN reached a preliminary settlement, followed by definitive settlement agreements on July 15, 2016 which are subject to court approval, in two antitrust suits filed with the United States District Court, Northern District of California as In re: Capacitors Antitrust Litigation, No. 3:14-cv- 03264-JD (the "Class Action Suits"). Pursuant to the terms of the settlement agreements, in consideration of the release of NEC TOKIN and its subsidiaries (including NEC TOKIN America, Inc.) from claims asserted in the Class Action Suits, NEC TOKIN will pay an aggregate $37.3 million to a settlement class of direct purchasers of capacitors and a settlement class of indirect purchasers of capacitors. Each of the respective class payments is payable in five installments, the first of which became due on July 29, 2016, the next three of which are due each year thereafter on the anniversary of the initial payment, and the final payment is due by December 31, 2019. NEC TOKIN has paid the initial installment payments into the two plaintiff classes' respective escrow accounts. NICK AND JAKE'S: Gleason Seeks to Recover Wages for Servers ----------------------------------------------------------- JOHN GLEASON, on behalf of himself and all other similarly situated persons v. NICK AND JAKE'S, INC., NICK AND JAKE'S PARKVILLE, INC. d/b/a NICK AND JAKE'S, and NICK AND JAKE'S MAIN, INC. d/b/a NICK AND JAKE'S, Case No. 5:16-cv-06149-GAF (W.D. Mo., November 11, 2016), is brought as a collective action under the Fair Labor Standards Act and as a state law class under Rule 23 of the Federal Rules of Civil Procedure to recover alleged unpaid wages and related penalties and damages owed to Plaintiff, and all other similarly situated servers. Nick & Jake's is a restaurant chain that operates three restaurants in the Kansas City metropolitan area. Nick and Jake's, Inc., is a Kansas corporation with its principal place of business located in Overland Park, Kansas. Nick and Jake's Parkville, Inc. d/b/a Nick and Jake's, is a Missouri corporation with its principal place of business located in Overland Park. Nick and Jake's Main, Inc. d/b/a Nick and Jake's, is a Missouri corporation with its principal place of business located in Kansas City, Missouri. The Plaintiff is represented by: Virginia Stevens Crimmins, Esq. Laura C. Fellows, Esq. CRIMMINS LAW FIRM LLC 214 S. Spring Street Independence, MO 64050 Telephone: (816) 974-7220 Facsimile: (855) 974-7020 E-mail: v.crimmins@crimminslawfirm.com l.fellows@crimminslawfirm.com - and - Nicole Fisher, Esq. FISHER LAW, LLC 4310 Madison Ave #100 Kansas City, MO 64111 Telephone: (816) 471-7008 Facsimile: (816) 471-1701 E-mail: nicole@wrightfisher.com NISSAN NORTH AMERICA: Faces Class Action Over Exploding Sunroofs ---------------------------------------------------------------- Jim Walsh, writing for Courier-Post, reports that a Maple Shade man has brought a proposed class-action lawsuit against Nissan North America, claiming the carmaker sells vehicles with "exploding" sunroofs. Harry Gunsenhouser says the "panoramic" sunroof of his 2015 Nissan Rogue broke apart as his wife drove the vehicle through their neighborhood in August 2015. In a lawsuit seeking more than $5 million in damages, Mr. Gunsenhouser contends more than 60 Nissan drivers have told the company their panoramic sunroofs "shattered suddenly and without warning." The suit says "some startled drivers have compared the sound to a gunshot followed by shards of glass hitting the vehicle's occupants." It alleges Nissan "not only refuses to warn drivers of the danger, but also continues to sell and lease the vehicles without disclosing the defect to consumers." Nissan spokesman Steven Yaeger said the firm does not comment on pending litigation. The North America unit, based in Franklin, Tennessee, reported record sales of just more than 2 million vehicles in its last fiscal year. Mr. Gunsenhouser's lawsuit, which also names Nissan Motor Co. of Japan as a defendant, seeks to represent New Jersey drivers whose vehicles have the alleged sunroof defect. The suit contends the defective sunroofs are factory-installed upgrades in five Nissan models made since 2008 -- the Rogue, Maxima, Sentra, Pathfinder and Altima. It also seeks to represent motorists with panoramic sunroofs in Murano models made since 2009 and Juke models made since 2011. "These sunroofs are both wider and longer than traditional sunroofs, covering most of the vehicle's roof," the lawsuit notes. It asserts the panoramic sunroofs are susceptible to "compromise" because they're made of thin sheets of tempered glass that feature large areas of ceramic paint. It also contends the sunroofs are fastened in such a way that "flexing and vibration in ordinary driving can impose stress and ultimately shattering of the glass." Mr. Gunsenhouser's complaint, filed Nov. 2 in federal court in Camden, is similar to suits previously filed over sunroofs with the same alleged defect in panoramic sunroofs offered by Kia, Hyundai and Ford. Attorneys from a Tennessee law firm, Greg Coleman Law LLC of Knoxville, are among the lawyers representing drivers in all of the suits. Mr. Gunsenhouser's lawsuit asserts a South Jersey Nissan dealer refused to repair his sunroof under warranty, even though the vehicle met the terms of the protection program. As a result, Mr. Gunsenhouser had to pay a deductible to his insurance carrier for the repair and another deductible for a vehicle rental while his Rogue was in the shop. Among other claims, Mr. Gunsenhouser's suit seeks damages for unjust enrichment by Nissan and for violations of the state's Consumer Fraud Act, which would expose the carmaker to triple damages. OCCIDENTAL PETROLEUM: "Simmons" Suit Alleges FLSA Violation ----------------------------------------------------------- ABNER ROBERT SIMMONS, individually and on behalf of all others similarly situated, Plaintiff, v. OCCIDENTAL PETROLEUM CORPORATION, Defendant, Case No. 4:16-cv-03300 (S.D. Tex., November 8, 2016), seeks to recover alleged unpaid overtime wages and other damages under the Fair Labor Standards Act. OCCIDENTAL PETROLEUM CORPORATION is a global oil and gas exploration and production company operating worldwide and throughout the United States, including in Texas. The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Lindsay R. Itkin, Esq. Jessica M. Bresler, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 Bissonnet Houston, TX 77005 Phone: 713-751-0025 Fax: 713-751-0030 E-mail: mjosephson@fibichlaw.com adunlap@fibichlaw.com litkin@fibichlaw.com jbresler@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: 713-877-8788 Fax: 713-877-8065 E-mail: rburch@brucknerburch.com PAPA MURPHY'S: Lennartson Seeks More Time to Respond to Motion -------------------------------------------------------------- Papa Murphy's Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 26, 2016, that Plaintiff John Lennartson has filed a motion seeking to extend the time to respond to the summary judgment motion. The Company is currently named as a defendant in a putative class action lawsuit filed by plaintiff John Lennartson on May 8, 2015, in the United States District Court for the Western District of Washington. The lawsuit alleges the Company failed to comply with the requirements of the Telephone Consumer Protection Act (TCPA) when it sent SMS text messages to consumers. The plaintiff in the lawsuit asks that the court certify the putative class and that statutory damages under the TCPA be awarded to plaintiff and each class member. On October 14, 2016, the Federal Communications Commission (FCC) granted the Company a limited waiver from the TCPA's written consent requirements for certain text messages that the Company sent between October 16, 2013 and October 7, 2015 to individuals who, like the plaintiff, provided written consent prior to October 16, 2013. The Company believes that the FCC's waiver eliminates the legal basis for the plaintiff's claim and has filed a motion for summary judgment seeking dismissal. Plaintiff has filed a motion seeking to extend the time to respond to the summary judgment motion on the basis that he intends to appeal the FCC's waiver. While the Company believes the plaintiff's interpretation of law is incorrect and the claim should be dismissed and it will continue to vigorously defend ourselves in the lawsuit, it provides no assurance that it will be successful in this action. An adverse judgment or settlement related to this lawsuit could have a material adverse effect on the Company's consolidated financial position, results of operations, or cash flows. Papa Murphy's Holdings, Inc., together with its subsidiaries, is a franchisor and operator of a Take 'N' Bake pizza chain. The Company franchises the right to operate Papa Murphy's Take 'N' Bake pizza franchises and operates Papa Murphy's Take 'N' Bake pizza stores owned by the Company. PELLA CORP: "Tracy" Files Suit Over Defective Windows ----------------------------------------------------- Christopher Tracy, on behalf of himself and on behalf of all others similarly situated, Plaintiff v. PELLA CORPORATION, an Iowa Corporation, Defendant, Case 6:16-cv-01963-CEM-KRS (M.D. Fla., November 9, 2016), alleges that Pella's acts and omissions in connection with its design, manufacture, warrant, sale and delivery of allegedly defective Pella Architect series windows constitute fraud, negligence, breach of implied warranty, breach of express warranty and unjust enrichment. PELLA CORPORATION -- http://www.pella.com/-- designs, tests, manufactures, and installs windows and doors for new construction, remodeling, and replacement applications for home and commercial markets. The Plaintiff is represented by: Panagiotis "Pete" V. Albanis, Esq. MORGAN & MORGAN - COMPLEX LITIGATION GROUP 12800 University Drive, Suite 600 Fort Myers, FL 33907 Phone: (239) 432-6605 Fax: (239) 433-6836 Email: palbanis@forthepeople.com - and - Frank M. Petosa, Esq. MORGAN & MORGAN - COMPLEX LITIGATION GROUP 600 North Pine Island Road, Suite 400 Plantation, FL 33324 Phone: (954) 318-0268 Fax: (954) 327-3018 Email: fpetosa@forthepeople.com PRIME TIME: "Mahmoudi" Suit Alleges Employee Misclassification -------------------------------------------------------------- Hassan Mahmoudi, an individual on behalf of himself and all others similarly situated, Plaintiff, v. PRIME TIME SHUTTLE, INC., a California Corporation; RIDESHARE PORT MANAGEMENT, LLC dba PRIME TIME SHUTTLE, a California Limited Liability Company; AIRFLYER TRANSPORT ASSOCIATES, LLC, a California Limited Liability Company; and DOES 1 through 50, inclusive, Defendants, Case No. BC 640240 (Cal. Super., County of Los Angeles, November 9, 2016), alleges wage and labor violations arising out of, among other things, Defendants' misclassification of employees, failure to pay wages, pay overtime, and provide meal and rest breaks to its employee drivers and crewmembers. Defendants provide airport transportation services within the State of California. The Plaintiff is represented by: Joshua H. Haffner, Esq. Levi M. Plesset, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Phone: (213) 514-5681 Fax: (213) 514-5682 E-mail: jhh@haffnerlawyers.com lp@haffnerlawyers.com - and - Alexander J. Perez, Esq. ABIR COHEN TREYZON SALO, LLP One Sansome Street, Suite 3500 San Francisco, CA 91404 Phone: (415) 590-4910 Fax: (424) 288-4368 E-mail: aperez@actslaw.com PROFESSIONAL CLAIMS: "Ocampo" FDCPA Claims Tossed ------------------------------------------------- Magistrate Judge Steven I. Locke of the United States District Court of the Eastern District of New York dismissed Plaintiff's claims and entered judgment in favor of Defendant in the case captioned, JOHN OCAMPO, individually and on behalf of all others similarly situated, Plaintiff, v. PROFESSIONAL CLAIMS BUREAU, INC. and DOES, 1 through 10 inclusive, Defendants, Case No. 14-CV-4983 (SIL) (E.D.N.Y.). On August 21, 2014, Plaintiff John Ocampo commenced the action alleging violations of sections 1692(e) and (g) of the Fair Debt Collection Practices Act (FDCPA), seeking to recover: (1) statutory, actual, and treble damages pursuant to 15 U.S.C. Section 1692k; and (2) costs and reasonable attorneys' fees pursuant to 15 U.S.C Section 1692k. The suit arises out of a debt incurred in connection with his wife's surgery at a hospital. In the Amended Complaint, Ocampo alleges that the parties' dispute arises from a debt incurred in connection with his wife's stay at a hospital. Defendant, a debt collector, sent Ocampo a "dunning letter" to collect the money allegedly owed. On January 12, 2016, the parties agreed to a bench trial, which was held on July 27, 2016. Ocampo testified at trial that he received the first collection notice on May 15, 2014 or May 16, 2014. He had no documentary evidence to support his recollection and he did not keep the envelope in which the letter arrived. Rather, he recalled calculating that he had "to handle it by June 15 or June 16." The Court declines to credit Ocampo's testimony, as it conflicts with his allegations in the pleadings and attempted to make the receipt date more ambiguous, alleging that he received the first letter "subsequent to and no earlier than May 9, 2014." The Court issued its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure (Fed. R. Civ. P.) 52(a). In his Findings dated November 4, 2016 available at https://is.gd/NuOYN0 from Leagle.com, Judge Locke concluded that Plaintiff failed to establish a violation of the FDCPA. John Ocampo is represented by Amir J. Goldstein, Esq. -- ajg@consumercounselgroup.com -- AMIR J. GOLDSTEIN Professional Claims Bureau, Inc. is represented by Arthur Sanders, Esq. -- Asanders@bn-lawyers.com - BARRON & NEWBURGER, P.C. QUALCOMM INC: Motion to Dismiss "3226701 Canada" Suit Pending ------------------------------------------------------------- QUALCOMM Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the Company's Motion to Dismiss the case, 3226701 Canada, Inc. v. Qualcomm Incorporated et al., remains pending. On November 30, 2015, plaintiffs filed a securities class action complaint against the Company and certain of its current and former officers in the United States District Court for the Southern District of California. On April 29, 2016, plaintiffs filed an amended complaint alleging that the Company and certain of its current and former officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, by making false and misleading statements regarding the Company's business outlook and product development between April 7, 2014 and July 22, 2015. The amended complaint seeks unspecified damages, interest, attorneys' fees and other costs. On June 28, 2016, the Company filed a Motion to Dismiss. The Company believes the plaintiffs' claims are without merit. REWALK ROBOTICS: Faces "Hershlikovitz" Suit Over 2014 IPO --------------------------------------------------------- David Hershlikovitz, Individually and on behalf of all others similarly situated, Plaintiff v. REWALK ROBOTICS LTD., LARRY JASINSKI, AMI KRAFT, AMIT GOFFER, JEFF DYKAN, HADAR RON, ASAF SHINA, WAYNE B. WEISMAN, YASUSHI ICHIKI, ARYEH DAN, GLENN MUIR, BARCLAYS CAPITAL INC., JFEFFRIES LLC AND CANACCORD GENUITY INC., Defendants, Case No. 16 CIV 02313 (Cal. Super., County of San Mateo), is a securities suit that arose because the Defendant allegedly failed to disclose on its Registration Statement for a 2014 Initial Public Offering that it was wholly unprepared or unable to comply with the extensive postmarket regulatory requirements set forth by the United States Food and Drug Administration. REWALK ROBOTICS LTD. is a medical device company that designs develops and markets wearable robotic exoskeletons for people with spinal cord injuries. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: 310-201-9150 Fax: 310-201-9160 Email: clienhan@glancylaw.com RUAN TRANSPORTATION: Judge Sends Wage Class Action to State Court ----------------------------------------------------------------- Federal Judge Honorable Virginia Phillips has sent a truck driver wage class action lawsuit back to California State Court. The Riverside Employment law lawyers at Blumenthal Nordrehaug and Bhowmik originally brought the case in San Bernardino County alleging that Ruan Transportation failed to pay their truck drivers minimum wages and provide the legally required meal and rest breaks. The Ruan Transportation class action is pending in the San Bernardino County Superior Court for the State of California, Case No. CIVDS1605897. According to the District Court's opinion, "If defendants wish to remove a case before discovery occurs, 'there are methods of determining a reasoned basis for the calculations such as random sampling and . . . using actual numbers, rather than averages to determine the amount put in controversy by the Complaint.'" The District Court agreed with Plaintiff and concluded, "For the reasons stated above, the Court finds Defendant has failed to sustain its evidentiary burden for the purposes of removal. Accordingly the Court grants Plaintiff's Motion and directs the Clerk to Remand this action to the Superior Court of the State of California for the County of San Bernardino." According to the District Court's Order, the lawsuit will now continue in State Court. According to the Complaint, the class is defined as all truck driver employees who were employed by Ruan Transport Corporation in California since April of 2012. Blumenthal, Nordrehaug & Bhowmik is a California and Chicago employment law firm with offices located in San Diego, San Francisco, Los Angeles, Riverside, Sacramento and Chicago. The firm dedicates its practice to contingency fee employment law work for issues involving overtime pay, wrongful termination, discrimination and other labor laws. Contact an experienced employment lawyer today by calling (800) 568-8020. SABRE CORPORATION: Continues to Defend NY Antitrust Action ---------------------------------------------------------- Sabre Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the court has declined to dismiss plaintiffs' claim seeking an injunction under federal antitrust law. The Company said, "In July 2015, a putative class action lawsuit was filed against us and two other GDSs, in the United States District Court for the Southern District of New York. The plaintiffs, who are asserting claims on behalf of a putative class of consumers in various states, are generally alleging that the GDSs conspired to negotiate for full content from the airlines, resulting in higher ticket prices for consumers, in violation of various federal and state laws. The plaintiffs sought an unspecified amount of damages in connection with their state law claims, and they requested injunctive relief in connection with their federal claim." "In July 2016, the court granted, in part, our motion to dismiss the lawsuit, finding that plaintiffs' state law claims are preempted by federal law, thereby precluding their claims for damages. The court declined to dismiss plaintiffs' claim seeking an injunction under federal antitrust law. The plaintiffs may appeal the court's dismissal of their state law claims upon a final judgment. "We may incur significant fees, costs and expenses for as long as this litigation is ongoing. We intend to vigorously defend against the remaining claims." Sabre is a technology solutions provider to the global travel and tourism industry. SAWYER PROPERTY: Md. Court Affirms Dismissal of Tenants' Suits -------------------------------------------------------------- Judge Kevin F. Arthur of the Maryland Court of Special Appeals affirmed the judgments granting the motion to dismiss the case captioned, KHARYN RAMSAY, et al., v. SAWYER PROPERTY MANAGEMENT OF MARYLAND, LLC, et al., Case No. 1673, September Term, 2015 (Md. Spec. App.). Three groups of residential tenants brought three, separate class- action complaints against Sawyer Property Management of Maryland, LLC that manage their apartment buildings, as well as the attorney for the management companies. The tenants allege that: -- the management companies have acted as unlicensed debt collectors in violation of Maryland law by collecting consumer claims for another person; and -- the management companies and their attorney engaged in unfair and deceptive trade practices by placing a stamp on district court forms stating that the documents were communications from a debt collector. When tenants defaulted on their rent payments, Sawyer Property retained Jeffrey Tapper, a Maryland attorney and licensed Maryland collection agent, to collect amounts owed under the leases. In 2010 and 2011, Tapper filed suits on behalf of Sawyer Property against tenants Kharyn Ramsay, Bryan Bookman, and Andrei Tarasov. On the district court complaint forms, Tapper named Sawyer Property as the plaintiff, and on the lines below he wrote "Agent for" the respective property owner, followed by Sawyer Property's address. When Ramsay, Bookman, Tarasov, and Cheryl Bell failed to attend their respective show-cause hearings, the court issued body attachments against them. Each (except Bell) was arrested and released shortly thereafter. The Circuit Court for Baltimore County consolidated the three actions and granted the defendants' motions to dismiss relying on grounds that were largely common to the three actions. On appeal, the tenants contend that the circuit court erred when it determined that the complaints did not adequately allege that Sawyer Property and JK2 Westminster were doing business as unlicensed collection agencies. In his Opinion dated November 4, 2016 available at https://is.gd/1xqbRZ from Leagle.com, Judge Arthur concluded that each complaint failed to state a claim under the Consumer Debt Collection Act or under the Consumer Protection Act. The factual allegations were insufficient to show that the management companies or their attorney attempted to enforce a right with knowledge that the right did not exist, insufficient to show that the management companies or their attorney made a false or misleading statement in the collection of a debt, and insufficient to show that the tenants reasonably relied on any such statement to their detriment. SCOTTRADE INC: "Hine" Suit Removed From County Court to S.D. Cal. ----------------------------------------------------------------- Scottrade, Inc., removed the lawsuit captioned STEPHEN HINE, on Behalf of Himself and All Others Similarly Situated v. SCOTTRADE, INC., and DOES 1 through 25, inclusive, Case No. 37-2016-00035493- CU-MC-CTL, from the Superior Court of the State of California for the County of San Diego, to the U.S. District Court for the Southern District of California. The District Court Clerk assigned Case No. 3:16-cv-02787-JM-JLB to the proceeding. Scottrade is a securities brokerage firm based in St. Louis, Missouri, that provides brokerage and other services to its customers. Approximately three years ago, cybercriminals hacked into Scottrade's secure computer systems and accessed databases that contained information for certain of Scottrade's customers. In his complaint, inter alia, the Plaintiff alleged that he and a putative class of "[a]ll California residents whose personal or financial information was compromised as a result of the data breach first disclosed by Scottrade on or about October 2, 2015" are entitled to monetary and other damages from Scottrade due to Scottrade's alleged failure to maintain adequate cybersecurity measures, which he alleges resulted in the cybersecurity incident at issue. The Plaintiff is represented by: Timothy G. Blood, Esq. Thomas J. O'Reardon, II, Esq. Paula R. Brown, Esq. BLOOD HURST & O'REARDON, LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com toreardon@bholaw.com pbrown@bholaw.com - and - Joseph J. Siprut, Esq. Richard L. Miller II, Esq. Richard S. Wilson, Esq. SIPRUT PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 878-1342 E-mail: jsiprut@siprut.com rmiller@siprut.com rwilson@siprut.com - and - Anthony G. Simon, Esq. John M. Simon, Esq. THE SIMON LAW FIRM, P.C. 800 Market Street, Suite 1700 St. Louis, MO 63101 Telephone: (314) 241-2929 Facsimile: (314) 241-2029 E-mail: asimon@simonlawpc.com jsimon@simonlawpc.com - and - Katrina Carroll, Esq. Kyle A. Shamberg, Esq. LITE DE PALMA GREENBERG 211 W. Wacker Drive, Suite 500 Chicago, IL 60606 Telephone: (312) 750-1265 Facsimile: (312) 212-5919 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com - and - Timothy D. Cohelan, Esq. J. Jason Hill, Esq. COHELAN KHOURY & SINGER 605 C Street, Suite 200 San Diego, CA 92101 Telephone: (619) 595-3001 Facsimile: (619) 595-3000 E-mail: tcohelan@ckslaw.com jhill@ckslaw.com - and - Geoff Spreter, Esq. Jeffrey Bennion, Esq. SPRETER LAW FIRM, APC 601 3rd Street Coronado, CA 92118 Telephone: (619) 865-7986 E-mail: geoff@spreterlaw.com - and - E. Elliot Adler, Esq. Adler Law Group, APLC 402 W. Broadway, Suite 860 San Diego, CA 2101 Telephone: (619) 531-8700 Facsimile: (619) 342-9600 E-mail: elliotadler@gmail.com - and - Anthony Anderson Benton Dogali, Esq. Geoffrey F. Parmer, Esq. DOGALI LAW GROUP, P.A. 101 E. Kennedy Blvd., Suite 1100 Tampa, FL 33602-5146 Telephone: (813) 289-0700 Facsimile: (813) 289-9435 E-mail: adogali@dogalilaw.com gparmer@dogalilaw.com - and - Kate M. Baxter-Kauf, Esq. Karen Hanson Riebel, Esq. LOCKRIDGE AND GRINDAL 100 Washington Avenue S., Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: kmbaxter-kauf@locklaw.com kriebekh@locklaw.com Defendant SCOTTRADE, INC., is represented by: Helen B. Kim, Esq. THOMPSON COBURN LLP 2029 Century Park East, 19th Floor Los Angeles, CA 90067 Telephone: (310) 282-2500 Facsimile: (310) 282-2501 E-mail: hkim@thompsoncoburn.com SHIRE PLC: Decision in ELAPRASE Case Pending -------------------------------------------- SHIRE PLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that a final decision is expected within the next 18 months in the lawsuit related to supply of ELAPRASE to certain patients in Brazil. On September 24, 2014 Shire's Brazilian affiliate, Shire Farmaceutica Brasil Ltda, was served with a lawsuit brought by the State of Sao Paulo and in which the Brazilian Public Attorney's office has intervened alleging that Shire is obligated to provide certain medical care including ELAPRASE for an indefinite period at no cost to patients who participated in ELAPRASE clinical trials in Brazil, and seeking recoupment to the Brazilian government for amounts paid on behalf of these patients to date, and moral damages associated with these claims. On May 6, 2016, the trial court judge ruled on the case and dismissed all the claims under the class action, which decision has been appealed. A final decision is expected within the next 18 months. SKY CHEFS: "Dyson" Cries Foul Over Background Investigation ----------------------------------------------------------- Marshall Dyson, individually and as a representative of the class, Plaintiff, v. Sky Chefs, Inc., d/b/a LSG Sky Chefs, LSG Sky Chefs North America Solutions, Inc., d/b/a LSG Sky Chefs, and LSG Group, LLC, d/b/a LSG Sky Chefs, Defendants, Case No. 3:16-cv-03155 (N.D. Ill., November 10, 2016), seeks punitive damages, reasonable attorneys fees and costs under the Fair Credit Reporting Act. On or around December 19, 2015, Plaintiff applied to work as a cook for Defendants in the State of Illinois. Dyson allegedly was forced to sign a blanket authorization for the company to conduct an absolute a thorough background investigation. Plaintiff is represented by: Andrew C. Ficzko, Esq. STEPHAN ZOURAS, LLP 205 North Michigan Ave., Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 STARWOOD HOTELS: Court Narrows Claims in "Dugas" Data Breach Suit ----------------------------------------------------------------- In the case captioned, PAUL DUGAS, Plaintiff, v. STARWOOD HOTELS & RESORTS WORLDWIDE, INC., HST LESSEE SAN DIEGO, LP; HST GP SAN DIEGO, LLC, Defendants, Case No. 3:16-CV-00014-GPC-BLM (S.D. Cal.), District Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California granted Defendants' Rule 12(b)(1) motion to dismiss as to Plaintiff's Section 1798.82 CRA claim and Plaintiff's request for injunctive relief; and denied Defendants' 12(b)(1) motion to dismiss as to Plaintiff's Sec. 1798.81.5, UCL, negligence, and invasion of privacy causes of action. The case arises from a series of attacks by criminal hackers upon the United States hospitality industry. Plaintiff Paul Dugas (Plaintiff) alleges that customer systems of Starwood had malicious software installed on them and that they have been compromised since "at least November 2014." Plaintiff alleges that this data breach (the Starwood breach) "adversely affected hundreds of thousands of customers of the Starwood Hotel system." Plaintiff alleges that as a "member in the hotel chain's rewards program," he has frequented the spa at the Sheraton San Diego Hotel & Marina on a "continuous and ongoing basis." Because of the approximately seven-month delay between discovering the data breach and notifying affected customers, Plaintiff alleges that hackers were given "months to use the information without the customers being able to take any steps to protect themselves." As a result, Plaintiff alleges that he and thousands of other Starwood customers have been "exposed to violations of privacy, economic loss and risks of identity theft" for the rest of their lives. On January 5, 2016, Plaintiff filed his First Amended Class Action Complaint alleging: (1) violation of the California Customer Records Act (CRA), Cal. Civ. Code Sections 1798.81.5, 1798.82; (2) violation of California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Sections 17200, et seq.; (3) invasion of privacy; (4) negligence; and (5) negligence per se. Plaintiff has named Starwood, HST Lessee San Diego, LP and HST GP San Diego, LLC as the collective defendants, alleging that Starwood is "the franchisor of the Sheraton brand," while HST Lessee San Diego, LP and HST GP San Diego, LLC are concurrent "owners or operator[s] of the Sheraton San Diego Hotel and Marina." Plaintiff further alleges that each of the three defendants "ratified and approved" all the "actions of each defendant." On April 1, 2016, Defendants filed a Motion to Dismiss Plaintiff's FACC based on (1) Plaintiff's failure to establish Article III standing and (2) Plaintiff's failure to state a claim on which relief can be granted. In his Order dated November 3, 2016 available at https://is.gd/lVJ6lp from Leagle.com, Judge Curiel concluded that Plaintiff has not sufficiently alleged the credible threat of future identity theft needed in order to plead injury in fact for his causes of action and that alleging theft of PII is inadequate to demonstrate a harm that qualifies as an injury in fact for standing purposes. As to Plaintiff's requested relief for the loss of time and money spent to avoid losses caused by the data breach, his allegations are sufficient to state an injury in fact and that as to Plaintiff's request for damages, the injury is redressible by judicial decision and sufficient to allege the final element of Article III standing. Paul Dugas is represented by Mark D. Potter, Esq. -- mpotter@nmcpa.ca -- CENTER FOR DISABILITY ACCESS -- and William A. Lemkul, Esq. -- lemkul@morrissullivanlaw.com -- MORRIS & SULLIVAN LLP Starwood Hotels & Resorts Worldwide, Inc., et al. are represented by Marcus A. Christian, Esq. -- mchristian@mayerbrowm.com -- Rajesh De, Esq. -- rde@mayerbrown.com -- Richard Ben-Veniste, Esq. -- rben-veniste@mayerbrown.com -- John Nadolenco, Esq. -- jnadolenco@mayerbrown.com -- and Stephen Lilley, Esq. -- slilley@mayerbworn.com -- MAYER BROWN, LLP SUFFOLK BANCORP: MOU Reached in Merger-Related Actions ------------------------------------------------------ Suffolk Bancorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the parties in the Merger-Related Actions have entered into a memorandum of understanding (the "MOU") regarding the settlement of the Merger- Related Actions. On July 1, 2016, July 13, 2016 and August 4, 2016, respectively, actions captioned Thaler/Howell Foundation v. Suffolk Bancorp et al., Index No. 609834/2016 (Sup. Ct., Suffolk Cnty.), Levy v. Suffolk Bancorp et al., Index No. 610475/2016 (Sup. Ct., Suffolk Cnty.), and Parshall v. Suffolk Bancorp, et al., Case No. 2:16-cv- 04367 (E.D.N.Y.) were filed on behalf of a putative class of the Company's shareholders against the Company, its current directors and People's United (collectively, the "Merger-Related Actions"). An amended complaint in the Thaler/Howell Foundation action was filed on July 29, 2016. The Thaler/Howell Foundation and Levy complaints collectively allege that the Company's board of directors breached its fiduciary duties by agreeing to the merger and certain terms of the merger agreement, as well as in the case of the Thaler/Howell Foundation complaint by issuing a materially deficient registration statement, and that People's United aided and abetted those alleged fiduciary breaches. The Parshall complaint alleges violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as amended. The Merger-Related Actions seek, among other things, to enjoin the defendants from completing the merger on the agreed-upon terms, and rescission of the merger and/or awarding of damages to the extent the merger is completed. On September 27, 2016, the Company, People's United and the individual defendants in the Merger-Related Actions entered into a memorandum of understanding (the "MOU") with the plaintiffs in the Merger-Related Actions regarding the settlement of the Merger- Related Actions, which the Company previously reported on a Current Report on Form 8-K filed on September 28, 2016. The Company, People's United and the other defendants in the Merger- Related Actions deny all of the allegations in the Merger-Related Actions. Nevertheless, the Company, People's United and the other defendants have agreed to settle the Merger-Related Actions in order to avoid the costs, disruption and distraction of further litigation. The MOU contemplates that the parties thereto would enter into a stipulation of settlement with respect to the Merger- Related Actions, which would be subject to customary conditions, including court approval following notice to the Company's shareholders. The MOU also contemplates that in the event that the parties enter into such a stipulation of settlement, a hearing would be scheduled at which a court overseeing the Merger-Related Actions would consider the fairness, reasonableness and adequacy of the settlement. If the settlement is finally approved by the court, it would resolve and release all claims that were brought or could have been brought in the Merger-Related Actions, including claims challenging any disclosure made in connection with the merger. In addition, in connection with the settlement, the MOU contemplates that counsel for the plaintiffs in the Merger-Related Actions will file a petition for an award of attorneys' fees and expenses in an amount not to exceed $300,000 to be paid by the Company or its successor. If the court approves the settlement contemplated by the MOU, the Merger-Related Actions will be dismissed with prejudice. TAQUERIA LOS: "Perez" Alleges Violations of FLSA, Ill. Wage Laws --------------------------------------------------------------- Eloy Perez, individually and on behalf of other employees similarly situated, Plaintiffs v. Taqueria Los Gallos, Inc., and Salvador Hernandez, individually, Defendants, Case No. 1:16-cv- 10482 (N.D. Ill., November 9, 2016), alleges failure by Defendants to pay for overtime work under the Fair Labor Standards Act; and to compensate Plaintiff at least the city of Chicago minimum wage rate for all hours worked under the Illinois Minimum Wage Law and the Chicago Minimum Wage Ordinance. Plaintiff was employed by Defendants as a taco maker and cook. The Plaintiff is represented by: Raisa Alicea, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Phone: 312-800-1017 E-mail: ralicea@yourclg.com TENET HEALTHCARE: Faces Class Action Over Tuberculosis Exposure --------------------------------------------------------------- Erica Teichert writing for Modern Healthcare, reports that a $1.5 billion putative class action accusing Tenet Healthcare Corp. of failing to protect patients and newborns from being exposed to tuberculosis at one of its hospitals has been moved to federal court. The lawsuit, which could represent the families of 3,000 children delivered at Tenet's Hospitals of Providence Memorial Campus facility in El Paso, Texas, alleges hospital officials ignored a nurse assistant's tuberculosis symptoms and had her work 12-hour shifts that put her in close contact to newborn infants and their families for months. The former employee, Esperanza Martinez, notified the hospital in December 2013 that she was presenting symptoms of active tuberculosis, but she wasn't taken off duty until August 2014. During that time, approximately 3,000 newborns may have been bathed or fed by the nurse's assistant. "By allowing an employee who displayed symptoms of an infectious disease to continue working in and around hospital grounds, the defendants acted negligently, carelessly, recklessly and with a conscious disregard for the plaintiffs' safety and rights," the complaint said. But the families accuse Providence Memorial and Tenet of trying to minimize the extent of the exposure by failing to alert thousands of families of the potential exposure. Rather than notifying all families whose children were born in the hospital during the months in question, Tenet allegedly only sent letters to those whose infants were born on days where Martinez was working. In September 2014, the hospital claimed approximately 700 infants were exposed to tuberculosis by the nurse's assistant, and said they would work with federal authorities to show that its procedures for protecting patients were adequate. Later that month, the Texas Department of State Health Services released a report saying Providence Memorial failed to effectively protect its patients from exposure. Infants born when Ms. Martinez was off duty may still have come in contact with the nurse's assistant during their hospital stays, according to the lawsuit. However, their tuberculosis tests will not be covered by the hospital, and the plaintiffs say that's an attempt to hide negligence. The proposed class action was initially filed in a Texas state court, but Tenet requested the suit be moved to federal court because of its size. The families have asked the court to force Tenet to pay for "gold standard" tuberculosis tests that will be more accurate than a typical skin test and chest X-ray. The more accurate tests are also more expensive, at $150 per test. They have also requested the tests be interpreted by an impartial third party; the initial tuberculosis tests on infants were interpreted by Providence Memorial employees, the complaint said. The parents voiced concern that the employees could be biased and try to minimize the hospital's liability. In addition, the plaintiffs have also requested damages for lost earnings, mental anguish, bodily injury and other issues stemming from the tuberculosis exposure. They estimate the total damages will exceed $1.5 billion. THERANOS INC: Faces $140MM Walgreens Suit Amid Class Actions ------------------------------------------------------------ Ben Hancock, writing for Inside Counsel, reports that Walgreens has filed a $140 million breach of contract suit against Theranos Inc., compounding the woes of the Silicon Valley-based medical device startup. The suit was filed under seal in Delaware federal court on Nov. 8. It's not clear what exactly the Illinois-headquartered pharmacy chain is alleging, but the docket describes the case as a breach of contract suit with a demand of $140 million. Walgreens is represented by Sidley Austin and Potter Anderson & Corroon of Delaware. Attorneys did not immediately respond to messages seeking comment. Phil Caruso, a spokesman for Walgreens, said the company is not discussing the lawsuit. Theranos did not immediately respond to an email seeking comment. Walgreens in June announced that it was terminating its relationship with Theranos after the company said it was voiding two years' worth of blood test results. Walgreens closed down all 40 "Theranos Wellness Centers" at its stores in Arizona. Theranos' voiding of the test results led to a flood of class action suits on behalf of patients who were given potentially inaccurate information. The embattled company also faces a lawsuit brought on behalf of an investor by Gibson, Dunn & Crutcher. The company has said that suit is "without merit, the assertions are baseless, and the plaintiff is engaging in revisionist history." Theranos has been represented in other litigation by Boies, Schiller & Flexner. Founding partner David Boies also sits on the company's board of directors. TRAVELERS COMMERCIAL: "Jackson" Sues Over Insurance Bad Faith ------------------------------------------------------------- Leslian Jackson, an individual, Plaintiff, v. TRAVELERS COMMERCIAL INSURANCE COMPANY, a California company; and DOES 1-100, inclusive, Defendants, Case No. BC 639944 (Cal. Super., County of Los Angeles, November 8, 2016), alleges on behalf of similarly situated, breach of contract, insurance bad faith, and unfair business practices arising out of Defendant(s) unlawful conduct of imposing a $2,500.00 sublimit for claims for "loss caused by smoke, soot or ash." Travelers Commercial Insurance Company, Policy # 983673631 633 1, insured the Plaintiff's property located at 3224 Crestford Drive, Altadena, California 91001. The Plaintiff is represented by: Joshua H. Haffner, Esq. Levi M. Plesset, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Phone: (213) 514-5681 Fax: (213) 514-5682 E-mail: jhh@haffnerlawyers.com lp@haffnerlawyers.com - and - Neil R. Anapol, SBN 141764 LAW OFFICES OF NEIL R. ANAPOL 2550 Hollywood Way, Suite 202 Burbank, CA 91505 Phone: (818) 566-7355 Fax: (818) 566-7875 TRUMP UNIVERSITY: Class Action Jury Selection Set for Nov. 28 ------------------------------------------------------------- Josh Gerstein, writing for Politico, reports that before Donald Trump raises his right hand to take the oath of office in January, he's set for a less-auspicious swearing-in: taking the witness stand in his own defense in a federal court civil trial over alleged fraud in his Trump University real estate seminar program. Mr. Trump faces a legal ordeal no president-elect has ever encountered: juggling defending himself before a jury with preparing for the vast challenges a political novice will face in assuming the presidency. And the class-action case set for trial the on Nov. 7 after Thanksgiving is just one of a plethora of lawsuits and threatened suits Trump was entangled in during the campaign -- litigation that doesn't seem likely to disappear anytime soon and might even intensify with Mr. Trump headed to the White House. In addition to several suits over Trump University, Mr. Trump has threatened lawsuits against a dozen or more women who've accused him of sexual impropriety in recent months -- and several of those women have threatened to countersue if he comes after them. There's also a New York state investigation into his charitable foundation and a reported federal investigation into some of his advisers' ties to Russia. Beyond that, there's litigation that Mr. Trump himself launched, like the pair of suits against celebrity chefs who backed out of plans to open restaurants in his new luxury Washington hotel. However, the most immediate challenge for Mr. Trump is a Trump University class-action lawsuit set to begin jury selection Nov. 28 in San Diego, with Mr. Trump called as a witness by both sides and certain to face sharp questioning about his venture's marketing practices. Adding to the drama, the trial will bring Trump face to face with U.S. District Court Judge Gonzalo Curiel. During the campaign, Trump triggered widespread outrage by arguing that Judge Curiel's Latino heritage made the judge irredeemably biased against him. The GOP presidential hopeful also called the judge "Mexican" and "Spanish." He was born in Indiana. Judge Curiel has made only passing reference in public to Mr. Trump's attacks, noting in a written opinion that Mr. Trump had "placed the integrity of these court proceedings at issue." Mr. Trump's lawyer, Daniel Petrocelli, has signaled that he may try to delay the trial further. However, Judge Curiel denied a recent effort by Mr. Petrocelli to push the trial back and seems intent on getting it completed before the inauguration. In addition, the suit set for trial later this month has been pending for six years and some of the plaintiffs are elderly. Judge Curiel was scheduled to hear arguments on what kinds of evidence and questions will be off limits during the trial on Nov. 10. At the hearing, Judge Curiel was also scheduled to consider whether Mr. Trump's campaign trail statements will be fair game at the trial and whether all references to allegations about his "personal conduct" should be off limits, as his lawyers' have urged. Because it's a civil case and not a criminal one, Mr. Trump is not required to be present throughout the trial, although as it stands now he would have to be in the courtroom to testify for his side and the plaintiffs. He already gave two depositions in the case while he was campaigning. There are actually two pending federal suits: the one set for trial this month involves Trump University students from California, Florida and New York, addressing claims that the program violated those states' tough laws against defrauding consumers and the elderly. The other case is national in scope and invokes a federal racketeering statute. Attorneys pressing the suits against Mr. Trump on behalf of former Trump University students say the program fraudulently advertised that instructors were hand-picked by Trump and that students would learn the real estate mogul's "secrets." Even calling the program a "university" was a fraud, the lawsuits contend. Mr. Trump's lawyers say claims that students would be told Trump's "secrets" or that he was personally involved in selecting teachers were, at worst, marketing "puffery" not intended to be taken literally. The other pending suits involving Mr. Trump's businesses could also head to trial after he's in the White House. In a 1997 case involving President Bill Clinton and a woman suing him for sexual harassment, Paula Jones, the Supreme Court ruled that a sitting president is not immune from litigation over actions taken before he took office. The high court did say deference to the president in terms of scheduling would be appropriate, though not a deferral until he leaves office. "Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable to accommodate the President's needs or unfaithful to the tradition- especially in matters involving national security of giving 'the utmost deference to Presidential responsibilities,'" Justice John Paul Stevens wrote. "We have confidence in the ability of our federal judges to deal with both of these concerns." Of course, if Mr. Trump's keen on cutting back some of his legal thicket, he could simply drop some of the cases he's filed, like the suits against the restaurateurs. He could forgo his plans to sue his female accusers. And to make the Trump University cases he could do something he has long vowed not to do: swallow his pride and pay up. UNITED RECOVERY: Certification of Class Sought in "Kroell" Suit --------------------------------------------------------------- Michael Kroell asks the Court to enter an order determining that the action entitled MICHAEL KROELL, on behalf of plaintiff and a class v. UNITED RECOVERY SYSTEMS, LP, and URS MANAGEMENT, LLC, Case No. 1:16-cv-10524 (N.D. Ill.), may proceed as a class action against the Defendants pursuant to the Fair Debt Collection Practices Act. The Plaintiff defined the class as: (a) all individuals with addresses in Illinois (b) to whom defendant sent a letter stating that "Please be aware that if the amount of debt forgiven as a result of this settlement is equal to or greater than $600, [defendant's client] may be required by the IRS to report the forgiven debt and issue a form 1099c to you" (c) which letter was sent at any time during a period beginning one year prior to the filing of this action and ending 21 days after the filing of this action. The Plaintiff further asks that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=NIfzH9He The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Cassandra P. Miller, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com cmiller@edcombs.com VASCO DATA: Bid for Lead Plaintiff Appointment Underway ------------------------------------------------------- VASCO Data Security International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the court has not made any rulings with respect to the appointment of the lead plaintiff in the class action lawsuit by Linda J. Rossbach. On July 28, 2015 a putative class action complaint was filed in the United States District Court for the Northern District of Illinois, captioned Linda J. Rossbach v. Vasco Data Security International, Inc., et al., case number 1:15-cv-06605, naming VASCO and certain of its current and former executive officers as defendants and alleging violations under the Securities Exchange Act of 1934, as amended. The suit was purportedly filed on behalf of a putative class of investors who purchased VASCO securities between February 18, 2014 and July 21, 2015, and seeks to recover damages allegedly caused by the defendants' alleged violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. Pursuant to a September 1, 2015 scheduling order entered by the court, the lead plaintiff, once appointed, will have sixty days to file an amended complaint or notify the defendants that the lead plaintiff intends to rely on the current complaint. The defendants will then have sixty days to answer or otherwise respond to the operative complaint. To date, the court has not made any rulings with respect to the appointment of the lead plaintiff. Although the ultimate outcome of litigation cannot be predicted with certainty, the Company believes that this lawsuit is without merit and intends to defend against the action vigorously. Vasco designs, develops, markets and supports both proprietary and open standards-based hardware and software security systems that manage and secure access to information assets. VIRGIN AMERICA: "Palkon" Class Action Dismissed ----------------------------------------------- Virgin America Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that Dennis Palkon's class action lawsuit has been dismissed. The Company said, "On April 20, 2016, a putative shareholder class action complaint was filed in the Superior Court of the State of California, County of San Mateo, against us, our board of directors, Alaska Air Group, Inc. and Alpine Acquisition Corp., captioned Dennis Palkon v. Virgin America, et al., Case No. CIV538282 (Cal. Sup. Ct.). The complaint alleged, among other things, that our directors breached their fiduciary duties by approving the Merger Agreement. The complaint sought, among other things, either to enjoin the proposed transaction or to rescind it should it be consummated, as well as other equitable relief and damages, including attorneys' and experts' fees. The plaintiff filed a request for dismissal without prejudice on August 10, 2016 and the court granted such request on August 16, 2016." The Company said, "On April 1, 2016, we entered into an Agreement and Plan of Merger, or the Merger Agreement, with Alaska Air Group Inc., or Alaska Air Group, pursuant to which a wholly-owned subsidiary of Alaska Air Group will, subject to the satisfaction or waiver of the conditions contained in the Merger Agreement, merge with and into Virgin America, and Virgin America will be the successor or surviving corporation of the merger and will become a subsidiary of Alaska Air Group, or the Merger. Pursuant to the terms of the Merger Agreement and subject to the satisfaction or waiver of the closing conditions set forth in the Merger Agreement, at the effective time of the Merger, each share of common stock of Virgin America issued and outstanding immediately prior to the effective time of the Merger will be converted into $57.00 in cash, without interest." Virgin America is a premium-branded, low-cost airline based in California that provides scheduled air travel in the United States and Mexico. VIRGIN AMERICA: "Houston" Class Action Dismissed ------------------------------------------------ Virgin America Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that Thomas Houston's class action lawsuit has been dismissed. The Company said, "On April 21, 2016, a putative shareholder class action complaint was filed in the Court of Chancery of the State of Delaware against the outside directors on our board of directors, captioned Thomas Houston v. Donald J. Carty, et al., Case No. 12235 (Del. Ch.). The complaint alleged, among other things, that the directors breached their fiduciary duties by approving the Merger Agreement. The complaint sought, among other things, to enjoin the proposed transaction, or to rescind it should it be consummated, and to require the outside directors to exercise their fiduciary duties and commence a sale process and obtain a transaction that is in the best interests of stockholders, as well as other equitable relief and damages, including attorneys' and experts' fees. On August 11, 2016, the parties filed a stipulation concerning Plaintiff's voluntary dismissal of the action, which was granted by the court on August 12, 2016." The Company said, "On April 1, 2016, we entered into an Agreement and Plan of Merger, or the Merger Agreement, with Alaska Air Group Inc., or Alaska Air Group, pursuant to which a wholly-owned subsidiary of Alaska Air Group will, subject to the satisfaction or waiver of the conditions contained in the Merger Agreement, merge with and into Virgin America, and Virgin America will be the successor or surviving corporation of the merger and will become a subsidiary of Alaska Air Group, or the Merger. Pursuant to the terms of the Merger Agreement and subject to the satisfaction or waiver of the closing conditions set forth in the Merger Agreement, at the effective time of the Merger, each share of common stock of Virgin America issued and outstanding immediately prior to the effective time of the Merger will be converted into $57.00 in cash, without interest." Virgin America is a premium-branded, low-cost airline based in California that provides scheduled air travel in the United States and Mexico. VIRGIN AMERICA: "Zwang" Class Action Dismissed ---------------------------------------------- Virgin America Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that Henry Zwang's class action lawsuit has been dismissed. The Company said, "On May 10, 2016, a putative shareholder class action complaint was filed in the Superior Court of the State of California, County of San Mateo, against C. David Cush, our president and chief executive officer, our board of directors, Alaska Air Group, Inc. and Alpine Acquisition Corp., captioned Henry Zwang v. C. David Cush, et al., Case No. CIV538604 (Cal. Sup. Ct.). The complaint alleged, among other things, that our directors breached their fiduciary duties by approving the Merger Agreement. The complaint sought, among other things, either to enjoin the proposed transaction or to rescind it should it be consummated, as well as other equitable relief and damages, including attorneys' and experts' fees. The plaintiff filed a request for dismissal without prejudice on July 11, 2016 and the court granted such request on July 12, 2016." Virgin America is a premium-branded, low-cost airline based in California that provides scheduled air travel in the United States and Mexico. VOLKSWAGEN AG: Faces "Zink" Suit Over Defeat Devices in Vehicles ---------------------------------------------------------------- JAMES H. ZINK, c/o Giles & Lenox LLC, 1080 Delta Avenue, Suite 202, Cincinnati, Ohio 45208, Plaintiff, vs. Volkswagen Aktiengesellschaft a/k/a Volkswagen AG; Volkswagen Group of America, Inc.; Audi Aktiengesellschaft a/k/a Audi AG, Audi of America, LLC, Defendants, Case No. 2:16-cv-01068-MHW-TPK (S.D. Ohio, November 9, 2016), alleges on behalf of all others similarly situated that the Defendant(s) installed "defeat devices" on its vehicles that are designed to circumvent U.S. Environmental Protection Agency emissions standards for air pollutants. Volkswagen AG is in the business of designing, developing, manufacturing, and selling automobiles. The Plaintiff is represented by: Brian T. Giles, Esq. Bryce A. Lenox, Esq. GILES LENOX 1018 Delta Avenue, Suite 202 Cincinnati, OH 45208 Phone: (513) 815-3853 Fax: (513) 824-8160 E-mail: Bryce@GilesLenox.com Brian@GilesLenox.com VOLKSWAGEN AG: Group 1 to Receive $13.2 Million ----------------------------------------------- Group 1 Automotive, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended September 30, 2016, that the Company has received notification from Volkswagen that it is entitled to receive, in the aggregate, approximately $13.2 million in connection with the Company's current and prior ownership of seven Volkswagen dealerships in the U.S. In September 2015, Volkswagen admitted that certain of its diesel models were intentionally programmed to meet various regulatory emissions standards only during laboratory emissions testing. In late June 2016, Volkswagen agreed to pay up to an aggregate of $14.7 billion to settle claims stemming from the diesel emissions scandal. On October 25, 2016, a U.S. Federal judge approved this settlement. On or about September 30, 2016, Volkswagen agreed to allocate $1.21 billion among its 652 dealers for a class settlement in exchange for their agreement not to sue Volkswagen. In October 2016, the Company received notification from Volkswagen that it is entitled to receive, in the aggregate, approximately $13.2 million in connection with the Company's current and prior ownership of seven Volkswagen dealerships in the U.S. The Company will receive half of the compensation immediately in a lump sum amount, and the rest of the compensation in 18 monthly installments. The Volkswagen brand represented 1.7% of the Company's total new vehicle retail unit sales for the nine months ended September 30, 2016. Group 1 is an operator in the automotive retail industry. Through its dealerships, Group 1 sells new and used cars and light trucks; arranges related vehicle financing; sells service and insurance contracts; provides automotive maintenance and repair services; and sells vehicle parts. VOGUE NAILS: Violates FLSA, "Lopez-Ramirez" Suit Says ----------------------------------------------------- AQUILINA LOPEZ-RAMIREZ, individually and on behalf of others similarly situated v. VOGUE NAILS OF S.I. LLC (d/b/a VOGUE NAILS) and EUN HEE HONG, Case No. 1:16-cv-06291 (E.D.N.Y., November 11, 2016), alleges that the Plaintiff regularly worked for the Defendants in excess of 40 hours per week without appropriate minimum wage or overtime compensation for any of the hours that she worked, in violation of the Fair Labor Standards Act of 1938 and the New York Labor Law. Vogue Nails of S.I. LLC, doing business as Vogue Nails, is a corporation organized and existing under the laws of the state of New York. Vogue Nails is a nail salon owned by Eun Hee Hong located at in Staten Island, New York. The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 E-mail: Michael@Faillacelaw.com WASHINGTON COUNTY, UT: Public Defender System Class Action Nixed ---------------------------------------------------------------- Jessica Miller, writing for The Salt Lake Tribune, reports that a federal judge has tossed a proposed class-action lawsuit challenging Washington County's public defender system. The lawsuit -- filed in January against the state of Utah, Washington County and several public officials -- claimed the county's current public defender system is broken, and that the attorneys who handle those contracts are overworked, underpaid and are not given the proper support to defend their clients. The two named plaintiffs, William Cox and Edward Paulus, are two Washington County men who have been assigned public defenders for their pending criminal cases. But in an order dismissing the case filed on Nov. 7, U.S. District Judge Dee Benson ruled that because the plaintiffs' criminal cases are not resolved, they cannot yet claim they have been harmed or that they have had ineffective counsel. The judge wrote that their claims were "sweeping, yet unsupported." "Cox and Paulus have counsel," Judge Benson wrote. "Neither has alleged that he had not been represented at any point in his proceeding. Both of their criminal cases are pending and neither has been convicted or sentenced." Ogden-based attorney Michael Studebaker, who filed the lawsuit, said on Nov. 8 that they are "definitely disappointed" by the judge's decision. "It sets back indigent defense many years," he said in an email. "We are evaluating an appeal and will make a decision within the appropriate timelines." The lawsuit alleged that because of large caseloads and flat-fee contracts, public defenders in Washington County can't meet with their clients in a "meaningful manner" before they go to court, can't adequately investigate the charges against their clients and do not, or rarely, use expert witnesses or forensic testing at trial. Lawyers for the state of Utah and Washington County had asked for the case to be dismissed, arguing that it was improper for a lawsuit to be filed by criminal defendants before their cases had been resolved. Instead, the defendants should seek "post- conviction relief," they said. They also argued that it was improper to ask a federal judge to order "the complete restructuring of a public defender system" in Washington County. The U.S. Supreme Court ruled in 1963 that defendants facing possible jail time are entitled to an attorney, even if they can't afford one. Utah is one of two states in the nation that delegate this responsibility to individual counties, which have had no state oversight to guide their efforts in meeting the Sixth Amendment obligation. Each county differs in how it handles that responsibility. In Salt Lake and Utah counties, a nonprofit public defender association provides services, while Washington County and others rely on contracts with public defenders and private attorneys. This can lead to a crushing number of cases, and public defenders often won't -- or can't -- ask for funds for experts or private investigators. And that is just one of myriad problems with Utah's current indigent defense system, according to studies by the ACLU and the Sixth Amendment Center. There is a lack of uniform structure, no state oversight and inadequate funding that varies from county to county, the studies found. And some county prosecutors are involved in picking who fills public defender contracts, in essence handpicking who they will go up against in court. During this last legislative session, lawmakers created a state- wide indigent defense commission, tasked to gather data about Utah's public defender system and dole out $1.5 million to counties that need support. But some critics felt this action was not adequate to address the problems plaguing the system. The American Civil Liberties Union of Utah filed its own lawsuit against the state in June, asking that a judge find that the current system is not constitutional. The ACLU argues in its lawsuit that the system is inadequate, underfunded and unfair to Utahns accused of crimes who rely on public defenders. That lawsuit is still pending in federal court as the plaintiffs seek class-action status. WESTON EDUCATIONAL: Waunsch et al. Sue Alleging WARN Act Breach --------------------------------------------------------------- DIANNE WAUNSCH, AMY D'ANDREA, TANJA JOHNSON and CLAY ADAIR on behalf of themselves and all others similarly situated, Plaintiffs, v. WESTON EDUCATIONAL, INC., d/b/a Heritage Institute, d/b/a Heritage College, d/b/a Missouri College and EARL WESTON, individually and in his representative capacity, Defendants, Case No. 1:16-cv-02739 (D. Col., November 8, 2016), seeks to recover 60 days' wages and benefits from Heritage because Plaintiffs were allegedly not provided 60 days advance written notice of their terminations, as required by the Worker Adjustment and Retraining Notification Act. Weston Educational, Inc., doing business as Heritage College, provides educational services. The Plaintiffs are represented by: Jack A. Raisner, Esq. Rene S. Roupinian, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Phone: (212) 245-1000 Email: jar@outtengolden.com Email: rsr@outtengolden.com ZILLOW GROUP: Appeal of Class Certification Order Pending --------------------------------------------------------- Zillow Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 2, 2016, for the quarterly period ended September 30, 2016, that the Company's appeal of the order granting class certification remains pending. The Company said, "In November 2014, a former employee filed a putative class action lawsuit against us in the United States District Court, Central District of California, with the caption Ian Freeman v. Zillow, Inc. The complaint alleged, among other things, claims that we failed to provide meal and rest breaks, failed to pay overtime, and failed to keep accurate records of employees' hours worked." "After the court granted our two motions to dismiss certain claims, plaintiff filed a second amended complaint that includes claims under the Fair Labor Standards Act. "On November 20, 2015, plaintiff filed a motion for class certification. On February 26, 2016, the court granted the plaintiff's motion for class certification. "On May 5, 2016, the parties agreed to settle the lawsuit for an immaterial amount. The settlement does not contain any admission of liability, wrongdoing, or responsibility by any of the parties. The settlement class includes all current and former inside sales consultants employed by Zillow, Inc. in any office from January 1, 2010 through the present. "We have recorded an accrual for an immaterial amount related to the settlement as of September 30, 2016. The settlement is contingent on the court approving the class action settlement and upon Zillow, Inc.'s complete resolution of the DOL compliance review. "On June 9, 2016, the Ninth Circuit Court of Appeals granted our petition for permission to appeal the order granting class certification. We do not believe there is a reasonable possibility that a material loss in excess of amounts accrued may be incurred." Zillow Group, Inc. operates real estate and home-related information marketplaces on mobile and the Web, with a complementary portfolio of brands and products to help people find vital information about homes and connect with local professionals. ZIMMER GMBH: B.C. Supreme Court Okays Class Action Settlement ------------------------------------------------------------- Gillian Scott, Esq. -- gscott@osler.com -- Joshua Krusell, Esq. -- jkrusell@osler.com -- of Osler, in an article for Mondaq, report that in Jones v. Zimmer GMBH, 2016 BCSC 1847, Justice Bowden of the B.C. Supreme Court recently approved settlement of a class action despite the objections of a number of class members to the settlement agreement that had been reached between the representative plaintiff, class counsel and the defendant. This decision is instructive for class action defendants negotiating and arranging settlements with class counsel. Events Leading To The Settlement Of The B.C. Class Action This past July, we wrote about the decision of Justice Perell of the Ontario Superior Court in Crider v. Nguyen, 2016 ONSC 4400, where he ordered that an Ontario plaintiff could pursue an individual action against a manufacturer of a hip implant device, Zimmer, while claims relating to that same device were already being advanced against Zimmer as part of two class actions: one certified in British Columbia (Jones v. Zimmer), and the other certified in Ontario (McSherry v. Zimmer). The representative plaintiffs in the Jones and McSherry class actions reached a settlement agreement with Zimmer, to which some fourteen objections were filed by certain class members who did not agree with the settlement. Two of the fourteen objections arose from members of the Ontario McSherry action, while the remaining twelve arose from the B.C. Jones action. Shortly after issuing his decision in Crider, Justice Perell approved settlement of the Ontario McSherry class action despite the two objections that had been filed, and the parties then sought approval of the settlement of the Jones action from the B.C. Supreme Court. The Objections Of Certain Class Members To The Settlement Of The B.C. Class Action The proposed settlement agreement provided that class members would receive compensation in exchange for a release of their claims. The amount of compensation was to vary with the nature of a class member's individual claim. For example, a class member who underwent an uncomplicated revision surgery to correct complications with the hip implant might be eligible to receive up to $97,500, while one who experienced a complicated revision might be eligible to receive up to $172,500. On the other hand, a class member who had not undergone revision surgery by September 1, 2015 (the "Eligibility Deadline") would only be entitled to receive $600. Justice Bowden summarized the twelve objections that had been filed by certain class members against this settlement into five categories: 1. that the proposed settlement limited the potential damages of those class members who had not undergone revision surgery or scheduled such surgery prior to the Eligibility Deadline to a nominal $600.. 2. The proposed settlement did not include class members who require revision surgery but for various reasons did not have it or schedule it before September 1, 2015. 3. The proposed settlement was reached before expert reports were exchanged or oral examinations for discovery were held. As a result, the defendants would have known that that plaintiff had little interest in going to trial. 4. The proposed settlement did not provide any compensation for individual claims such as loss of earnings or pain and suffering short of revision surgery. The timing of the notification of the terms of the proposed settlement was such that class members were not able to opt out of the B.C. class action. On October 6, 2016, Justice Bowden approved settlement of the Jones action despite these objections. The B.C. Court's Treatment Of The Objections And Approval Of The Settlement In coming to his decision, Justice Bowden noted that individual class members do not participate in the conduct of the litigation during the common issues phase of a class action. When the Jones class action was certified by the B.C. Supreme Court, the Court appointed a representative plaintiff to prosecute the action on behalf of the class and to instruct counsel for the class. Justice Bowden commented that it would not have been feasible or appriopriate for class members to generally be involved in the private and privileged mediation sessions and settlement negotiations that were conducted with the defendant over a number of years. While the most serious objections to the proposed settlement were with respect to the Eligibility Deadline that determined a class member's level of potential compensation, Justice Bowden found that this deadline had been selected by the representative plaintiff, class counsel and the defendant on a principled and reasonable basis that reflected the increasing difficulty for class members to prove causation with the further passage of time. With respect to the various levels of compensation that were part of the settlement, and the overall quantum of the settlement, Justice Bowden noted that class litigation is in the hands of class counsel, as instructed by the representative plaintiff, and is not subject to the views of class members in general; therefore, Justice Bowden found any objection that the overall settlement amount is insufficient to be unpersuasive because, in his view, a settlement is a compromise of claims. Justice Bowden observed that it is a court's task to determine whether the settlement is fair, reasonable, and in the best interests of the class as a whole, and if it a court so finds, then the objections of a few class members cannot be persuasive in changing this determination. Finally, with respect to the objection that many class members only learned of the terms of the settlement after the deadline by which they could have opted out of the class action, Justice Bowden highlighted that the B.C. class action legislation requires that class members make a decision to opt in or opt out of the proceeding before the outcome of the litigation is known and that, therefore, class members must elect to be bound by the judgment on the common issues, whether by settlement or a decision of the court, and whether favourable or unfavourable. In Justice Bowden's view, a class member is not permitted to wait on the sidelines and make their decision after knowing the results of the litigation; the predictability and finality required by the parties to resolve a class action would be undermined if a class member could change their election after knowing the results of the litigation. Justice Bowden's decision indicates that representative plaintiffs, class counsel and class action defendants may negotiate and arrange settlements of class actions and obtain approval of such settlements despite the objections of some class members so long as the settlement agreement that is submitted for the court's approval is fair, reasonable, and in the best interests of the class as a whole. * Courts Lift Stays in Several ECJ Cases Following FDA Guidance --------------------------------------------------------------- Creighton Magid, Esq. -- magid.chip@dorsey.com -- of Dorsey & Whitney LLP, in an article for JDSupra, reports that in recent years, a boomlet of litigation -- primarily in California -- has arisen regarding the product known as "evaporated cane juice" or "ECJ." The product -- made by extracting fluid from crushed sugar cane, clarifying the fluid, evaporating the fluid to create a concentrate, filtering and crystallizing the concentrate, and then separating out the molasses using centrifugation -- is sometimes used as a sweetener in consumer products, including yogurts and beverages. Several class-action suits have been brought in the name of consumers who claim to have been health conscious but duped into thinking that products labeled as containing ECJ were free of added sugars. Courts largely put the cases on hold, awaiting guidance from the federal government under the "primary jurisdiction doctrine," which allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. In May, the U.S. Food and Drug Administration issued its long- awaited "Guidance for Industry" regarding ECJ. In its Guidance, the FDA concludes that "such sweeteners should not be declared on food labels as 'evaporated cane juice' because that term does not accurately describe the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups). Moreover, the use of 'juice' in the name of a product that is essentially sugar is confusingly similar to the more common use of the term 'juice' -- 'the aqueous liquid expressed or extracted from one or more fruits or vegetables, purees of the edible portions of one or more fruits or vegetables, or any concentrates of such liquid or puree' (21 C.F.R. Sec 120.1(a)). Thus, the term 'evaporated cane juice' is false or misleading because it suggests that the sweetener is 'juice' or is made from 'juice' and does not reveal that its basic nature and characterizing properties are those of a sugar." Further, because federal regulations require that "ingredients required to be declared on the label or labeling of food . . . shall be listed by common or usual name," 21 C.F.R. Sec. 101.4(a)(1), a food labeled as containing "evaporated cane juice" would be considered mislabeled; the proper term, according to the FDA, is "sugar" -- with or without a descriptive term (such as "cane sugar" or "turbinado sugar"). In light of the FDA's Guidance, courts have lifted stays in several ECJ cases. See, e.g., Swearingen v. Pacific Foods of Oregon, Inc., No. 3:13-cv-4157 (N.D. Cal.); Perera v. Pacific Foods of Oregon, Inc., No. 3:14-cv-2074 (N.D. Cal.). After lifting such a stay, Judge Susan Illston of the U.S. District Court for the Northern District of California issued a ruling on August 17, 2016, largely denying Santa Cruz Natural, Inc.'s motion to dismiss claims brought against it by a putative class of consumers who claim to have been misled by the use of "evaporated cane juice" on the label of a line of beverages. Swearingen v. Santa Cruz Natural, Inc., No. 13-cv-04291 (N.D. Cal. Aug. 17, 2016). The plaintiffs, claiming to be "health conscious consumers who wish to avoid 'added sugars' in the food products they purchase," claim that they read the labels on Santa Cruz Natural's flavored beverages, noted that "sugar" was not listed as an ingredient, and supposedly therefore reached the conclusion that the products did not contain any added sugar. (The fact that the labels also disclosed that the drinks had between 29 and 35 grams of sugar apparently did not serve as a red flag; the plaintiffs claim that they assumed that the sugars were naturally occurring in the other ingredients, such as lemon juice and mango puree.) Judge Illston's decision to allow the case to move forward may serve as a playbook for plaintiffs in other ECJ lawsuits. The Court ultimately found plaintiffs had standing to bring the lawsuit, adequately pleaded "injury in fact" to establish standing under Article III of the Constitution, and that the state law claims were not preempted by the FDCA. In addition, Santa Cruz Natural's argument that the plaintiffs could not meet the "reasonable consumer" test of the California consumer protection statutes -- under which a plaintiff must show that consumers acting reasonably in the circumstances would have been deceived -- fared no better. Although Judge Illston noted that she had "some reservations as to whether a reasonable consumer would be misled as regarding added sugars in the Lemonade Soda and Ginger Ale Soda" -- whose 35 grams and 32 grams of sugar, respectively, were unlikely to occur naturally in ginger root or lemon juice -- she nonetheless found that, because other sodas were closer calls (a reasonable consumer might conclude that the 29 grams of sugar in the Orange Mango Soda, for example, occurred naturally in the orange juice and mango puree listed as ingredients), the question of whether a reasonable consumer would have been misled was a question better decided by a jury. The FDA's Guidance is likely to embolden plaintiffs who have brought (or who are considering bringing) ECJ claims. Judge Illston's opinion in Swearingen, moreover, provides sufficient direction on pleading and sufficient precedent (at least in the 9th Circuit) for careful plaintiffs to survive motions to dismiss. The combination of the two makes it unlikely that the boomlet in ECJ litigation will end anytime soon. * Supreme Court to Likely Weigh on Class Action Waiver Issues ------------------------------------------------------------- Kevin B. Leblang, Esq. -- kleblang@kramerlevin.com -- and Robert N. Holtzman, Esq. -- rholtzman@kramerlevin.com -- of Kramer Levin Naftalis & Frankel LLP, in an article for Lexology, report that that recent decisions by the U.S. Courts of Appeals for the Seventh Circuit and the Ninth Circuit have adopted the reasoning of the National Labor Relations Board ("NLRB") in D.R. Horton, Inc. and Michael Cuda, in which the NLRB held that an employer violated the National Labor Relations Act ("NLRA") by requiring employees to execute arbitration agreements that contained a bar on collective or class actions. The recent Seventh and Ninth Circuit decisions, major victories for employees, break with the Fifth Circuit's holding in the appeal from the NLRB's decision in D.R. Horton, Inc. v. NLRB, and decisions by the Second and Eighth Circuits, all of which rejected that position. This well-defined circuit split serves as a clear invitation to the Supreme Court to resolve the irreconcilable stances taken by the Circuits. The Seventh Circuit's decision in Lewis v. Epic Systems Corporation and the Ninth Circuit's decision in Morris et al. v. Ernst & Young LLP both hold that mandatory employee arbitration clauses that prohibit class and collective actions violate employees' rights under Sections 7 and 8 of the NLRA and are not enforceable under the Federal Arbitration Act ("FAA"). Section 7 guarantees employees' rights to act in concert "for their mutual aid or protection." 29 U.S.C. Sec. 157. Section 8(a) states that it shall be an "unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. Sec. 158. In Lewis, the Seventh Circuit determined that the arbitration agreement at issue, which stated that claims "will be arbitrated only on an individual basis" and that employees "waive the right to participate in or receive money or any other relief from any class, collective, or representative proceeding," clearly violated Sections 7 and 8(a). Similarly, in Morris, the Ninth Circuit determined that an arbitration agreement that required employees to bring claims in "separate proceedings" violated an employee's rights under the NLRA. In direct opposition to the Fifth Circuit's holding in D.R. Horton, the Seventh and Ninth Circuits both found that the FAA, the 1925 law that provides for resolution of private disputes through binding arbitration, does not override an employee's Section 7 rights. Citing Section 2 of the FAA, 9 U.S.C. Sec. 2, which states that an arbitration agreement "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract," the Seventh and Ninth Circuits both determined that because a class action waiver provision conflicts with Sections 7 and 8(a) of the NLRA, such waivers are not enforceable under the FAA. Further, the Seventh and Ninth Circuits both concluded that the right to class or collective action is a substantive right, rather than a procedural one, that cannot be waived in an arbitration agreement. The Supreme Court will likely weigh in on the enforceability of class action waivers in employment agreements. Until then, the Lewis and Morris decisions create ambiguity as to whether employers can lawfully require that disputes with employees be resolved through individual arbitration, and companies that have employees in a variety of locations will face different standards in different jurisdictions. * Trump May Defang Consumer Financial Protection Bureau ------------------------------------------------------- Jenna Greene, writing for Law.com, reports that "The courts have often served as a defense against injustice and abuse. They will need to do so again." That's what Paul Bland, the executive director of Public Justice, wrote on Nov. 9 in his blog, where he pledged that the non-profit will "continue bringing, and winning, the most impactful cases." It's not just him. With Republicans in control of the White House and Congress and poised to pick the tie-breaking ninth Supreme Court justice, the plaintiffs bar is now one of the few checks on government power. Scary, I know. Of course, I don't mean the "Have-you-been-injured-call-now" lawyers whose ads you see on the sides of buses. But from product liability to environmental protection to civil rights, plaintiffs lawyers and public interest advocates may be the last bulwark in opposing government actions. Consider the ACLU's homepage on Nov. 9, which featured a photo of Donald Trump and the headline: "See You in Court." The ACLU cited Mr. Trump's campaign remarks where he called for mass deportations, banning the entry of Muslims to the country, aggressive surveillance of Muslims, punishing women for having abortions and reauthorizing waterboarding and other forms of torture. These proposals "are unlawful and unconstitutional. They violate the First, Fourth, Fifth, Eighth, and 14th Amendments. If you do not reverse course and instead endeavor to make these campaign promises a reality, you will have to contend with the full firepower of the ACLU at every step," wrote ACLU Executive Director Anthony Romero. "Our staff of litigators and activists in every state, thousands of volunteers and millions of card- carrying members and supporters are ready to fight against any encroachment on our cherished freedoms and rights." Romero's battle call was echoed on Nov. 9 at public interest law firms across the country. Marielena Hincapie, executive director at the National Immigration Law Center, said that "Many of Trump's immigration proposals don't square with our Constitution. Our communities have successfully beaten back similar ill-conceived proposals in states like Arizona and Alabama, and we will continue fight -- in the courtroom, if necessary -- to ensure that the rights of immigrant and refugee communities are protected across the country." Or Nancy Northup, president and CEO at the Center for Reproductive Rights, who pledged that her group "will continue to harness the momentum of the recent victory in Whole Woman's Health and is ready to bring the full force of the law in order to oppose any attacks on reproductive freedom in the courts and Congress." Public Citizen President Robert Weissman called for resisting Trump's agenda "with everything we've got. That means suing to block unconstitutional maneuvers." And Michael Brune, executive director of the Sierra Club, boasted that "We see no reason to stop being on offense on climate and clean energy. We defeated most of the new coal plants proposed during the George W. Bush administration -- 184 to be exact -- with grassroots power, and we can and will do similar work under the Trump administration." The biggest problem is that these groups are small and not very well-funded. There's only so much they can do. In some areas, they'll get an assist from the private bar. For example, if Mr. Trump's U.S. Equal Employment Opportunity Commission is no longer interested in bringing, say, sexual harassment suits, there are plenty of plaintiffs lawyers who can fill the void. Or if the Trump administration goes forward with its plan to eliminate the "food police" at the Food and Drug Administration, as suggested in a September fact sheet, we won't go back to the days of Upton Sinclair's "The Jungle." Product liability laws mean that food producers will still answer to plaintiffs lawyers like Bill Marler of Marler Clark or Fred Pritzker -- fhp@pritzkerlaw.com -- of Pritzker Hageman if they poison their customers. This fear of liability will remain a powerful check on companies across multiple industries -- think automakers, pharmaceuticals, building materials -- that might otherwise be tempted to cut corners in the absence of government oversight. Because almost certainly, there will be less oversight: Mr. Trump has pledged that for every new regulation added, two must be cut, and he's called for a government-wide hiring freeze to reduce the federal workforce through attrition. Consumer protection in other areas may also take a hit. Mr. Trump in speeches has called for repealing all or part of the Dodd-Frank Act, which created the Consumer Financial Protection Bureau. He hasn't spoken specifically about his plans for the agency, but he's no fan of Senator Elizabeth Warren, who came up with the idea for it. According to CBS News, as recently as Nov. 7, Mr. Trump called Ms. Warren a "terrible person," ''a terrible human being" and a "terrible senator." It might look bad to kill the agency outright, but it seems certain to be de-fanged, especially now that the U.S. Court of Appeals for the D.C. Circuit ruled that the CFPB director serves as the pleasure of the president, just like cabinet secretaries. (I can only assume Richard Cordray is currently looking for a new job.). The kinds of cases that the CFPB brings generally have a private right of action. For example, Wells Fargo has been hit with multiple private lawsuits for creating unauthorized customer accounts after the CFPB fined the bank $100 million. Plaintiffs lawyers will happily continue to bring such suits -- but it's unclear how they'd know about the wrongdoing or be able to build a case absent government involvement. Still, Mr. Bland from Public Justice vowed his group would do their best to step in. "If the CFPB is hamstrung or even imperiled, that doesn't mean that consumers should go unprotected," he wrote. "It just shows how crucial it is to have an energetic, creative, strategic, thoughtful and most of all, hard working community of advocates to fill that gap." ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *