/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161125.mbx C L A S S A C T I O N R E P O R T E R Friday, November 25, 2016, Vol. 18, No. 236 Headlines 3M CO: Faces Two More Water Contamination Class Actions A10 NETWORKS: Final Fairness Hearing Scheduled for Jan. 13 ACE PARKING: Ninth Circuit Appeal Filed in "Byles" Class Suit ADVANCED DISPOSAL: Defending Class Suit in Gwinnett County ADVANCEPIERRE FOODS: Ninth Circuit Appeal Filed in "Hawkins" Suit AGRIA CORP: January 9 Lead Plaintiff Motion Deadline Set ALLIED INTERSTATE: Tatis Seeks 3rd Cir. Review of D.N.J. Ruling ALLSTATE: St. Clair Shores Police Fund Files Class Suit ALTA-DENA CERTIFIED: Perez Appeals C.D. Cal. Ruling to 9th Cir. AMAZON SERVICES: 9th Cir. Affirms Order Compelling Arbitration APPCO: Chamberlains Files Class Action Over Sham Contracting ARROWHEAD PHARMACEUTICALS: Faces "Meller" Suit Over ARC-520 AUSTRALIA: Williamtown Residents Forced to File Class Action BAIS YAAKOV: Court Hears Oral Argument on Fax Waiver Order Appeal BAXTER INTERNATIONAL: "Castillo" Alleges IV Solution Price-Fixing BAYER: 14,000 People Join Xarelto Class Action in U.S. BERNALILLO, NM: Zuniga Appeals D.N.M. Decision to Tenth Circuit BIG HEART: Seeks Eighth Circuit Review of Ruling in "Mawby" Suit BURLINGTON CTY, NJ: Haas Appeals D.N.J. Ruling to Third Circuit CALIFORNIA PHYSICIANS': Denial of Martin's Cert. Bid Affirmed CALIFORNIA RESOURCES: Noteholders' Class Suit Underway CAMPOPIANO ROOFING: Faces "Harm" Suit Alleging Violation of FLSA CANADA: G20 Class-Actions Against Toronto Police Can Proceed CCDN LLC: Fourth Circuit Appeal Filed in "Taylor" Class Suit CHESAPEAKE ENERGY: Faces Class Action Over Misleading Statements CHINACAST EDUCATION: Files Chapter 11 to Avert Class Action CITIBANK NA: Stitt Appeals N.D. California Ruling to 9th Circuit COMENITY LLC: Faces TCPA Class Action in California CONTINENTAL AUTOMOTIVE: Conspired to Fix Prices, Suit Says CORMEDIX INC: NJ Court Dismissed "Li" Amended Complaint COSTCO WHOLESALE: DeCarlo Appeals S.D. Cal. Ruling to 9th Circuit COVISINT CORP: Hearing to Approve Settlement Set for Dec. 13 CRICKET COMMUNICATIONS: Seeks Review of Decision in "Scott" Suit DETROIT, MI: Can Continue to Shut Water Service, 6th Cir. Says DEX MEDIA: Kopp Appeals From Decision in "Fulmer" Class Suit DUNKIN' BRANDS: Estler Appeals S.D.N.Y. Judgment to 2nd Circuit DYNAVAX TECHNOLOGIES: Class Action Filed After Stocks Fell EAGLE ROAD: Oklahoma Residents File Class Action Over Quakes EDUCATIONAL TESTING: Ellinghaus Appeals From E.D.N.Y. Judgment ENERGY RECOVERY: Reached Settlement of Stockholders' Action ENTRUST ENERGY: Faces "Henderson" Suit Alleging FLSA Violation ENVISION HEALTHCARE: Stipulation to Dismiss OT Claims Filed ENVISION HEALTHCARE: Defending Against "Anderson" Merger Suit ENVISION HEALTHCARE: Defending Against "Voth" Merger Suit ENVISION HEALTHCARE: Defending Against "LeMay" Merger Suit ESPERION THERAPEUTICS: Bid to Dismiss "Dougherty" Action Underway ETSY INC: "Altayyar" Suit in Early Stages ETSY INC: Cervantes-Weiss Suit Remains Stayed EVERYDAY HEALTH: Faces "Hanson" Securities Suit Over Ziff Merger FACEBOOK INC: Class C Reclassification Litig. Still Pending FEDCHOICE FEDERAL: Appeals Ruling in "Horton" Suit to 3rd Cir. FERRARA CANDY: Faces "Herrera" Suit Under FLSA, Ill. Wage Laws FINANCIAL RECOVERY: Jewsevskyj Seeks Review of E.D. Pa. Ruling FIRST SOLAR: Pension Schemes' Appeal Remains Pending FORD MOTOR: Faces Class Action Over Sudden Acceleration Incidents GENERAL MOTORS: Judge Refused to Dismiss Camaro Class Action GENUINE TITLE: Court Certifies West Town Class in "Fangman" Suit GENWORTH FINANCIAL: Faces Class Action Over China Oceanwide Deal H&R BLOCK: Seeks Eighth Circuit Review of Ruling in "Perras" Suit HALYARD HEALTH: Suit by Bahamas Surgery Center in Discovery HALYARD HEALTH: To Defend Against "Jackson" Suit HSBC FINANCE: Third Circuit Appeal Filed in "McLean" Class Suit HUMANA INSURANCE: Seventh Circuit Appeal Filed in "Brodsky" Suit IMPAX LABORATORIES: Rosen Law Firm Files Securities Class Action INOGEN INC: Settlement Approval Anticipated in Late November INOVALON HOLDINGS: Lead Plaintiff Not Yet Been Appointed INSYS THERAPEUTICS: "Donato" Action Still Pending INTERCONTINENTAL HOTELS: Faces "Jones" Suit Over FLSA Violation JPMORGAN CHASE: Mix Appeals D. Ariz. Decision to Ninth Circuit JPMORGAN CHASE: Ninth Circuit Appeal Filed in "Ellis" Class Suit KOHL'S DEPARTMENT: Cecio Appeals Ruling in "Russell" Class Suit KOPPERS HOLDINGS: Parties in Gainesville Suit Await Court Ruling KOPPERS HOLDINGS: Virgin Islands Class Action Dismissed KRISPY KREME: Faces Fraud Class Action Over Doughnut Ingredients LA QUINTA: Still Defends "Beisel" Class Suit in New York LABOR READY: Objectors Appeal Decision in "Allen" Class Suit LIGAND PHARMACEUTICALS: Faces Securities Class Action LISNR INC: CEO Responds to Indianapolis Colts App Class Action LOWER EAST: "Rodriguez" Suit Alleges FLSA, NY Labor Law Breaches LPL FINANCIAL: Still Defends Securities Class Suit MAJOR LEAGUE: Wyckoff Appeals S.D.N.Y. Decision to 2nd Circuit MANTECA, CA: Faces Class Action Over Wage Law Violations MASTEC INC: "Wrigley" Class Suit Still Pending MED SECURITY: "Garrett" Suit Seeks to Recoup OT Pay Under FLSA MILWAUKEE COUNTY: Lowered Retirement Benefits, Class Suit Says MISSISSIPPI, USA: Fletcher Appeals S.D. Miss. Ruling to 5th Cir. MONTGOMERY COUNTY, TN: Quinton Appeals Ruling to 6th Circuit MYLAN: Investigations Into EpiPen Pricing Piling Up NAT'L FOOTBALL: Players Urge Supreme Court to Review Settlement NESTLE: Judge Rejects Class Action Over Beneful Dog Food NEW RESIDENTIAL: Still Defends Consolidated Suit in Florida NEW RESIDENTIAL: Awaits Decision on Motion for Reargument OVASCIENCE INC: To Seek Dismissal of Amended Complaint PARTNERS REAL ESTATE: Feb. 10 Class Action Opt-Out Deadline Set PENSION BENEFIT: Collins Appeals D. Columbia Ruling to D.C. Cir. PHYSICIAN'S FORMULA: Sued Over Deceptive Marketing Practices PLATINUM LIMOUSINE: Seeks Review of Ruling in "Pelayo" Class Suit PMLRA PIZZA: Files Another First Circuit Appeal in "Reeves" Suit PNC CAPITAL: Sixth Circuit Appeal Filed in "Martin" Class Suit PRIME VALET: "Farasat" Claims Non-payment of Min. Wage Under FLSA PRONAI THERAPEUTICS: Faces Class Action Over Share Price Drop PRONAI THERAPEUTICS: Levi & Korsinsky Files Class Action RADIOSHACK CORP: Singh Appeals Ruling in ERISA Suit to 5th Cir. REDBACK ENERGY: Court Certifies Operators Class in "Caffey" Suit REWALK ROBOTICS: Faces 2 Class Suits in San Mateo Court RL REPPERT: Seeks Third Circuit Review of Ruling in "Askew" Suit SCHIBI TRANSPORTATION: Underpaid Drivers File Class Action SIMONTON BUILDING: Faces Class Action Over Substandard Windows SNC-LAVALIN: Court Reconsiders Role of "Public Corrections" SPECTRA ENERGY: Faces 6 Class Actions Over Enbridge Merger SPIRIT AEROSYSTEMS: 10th Cir. Denied Plaintiff's Rehearing Bid SPROUTS FARMERS: Motion to Remand Securities Action Pending SPROUTS FARMERS: "Phishing" Scam Actions Transferred STAR FURNITURE: Faces "Letelier" Suit Alleging FLSA Violations STARKIST CO: Hendricks Appeals From N.D. Cal. Ruling to 9th Cir. STARKIST CO: Objector Sweeney Appeals Ruling in "Hendricks" Suit SUNTRUST BANK: Trapp Appeals M.D.N.C. Ruling to Fourth Circuit SYKES ENTERPRISES: "Etchieson" Suit Invokes FLSA, Col. Wage Laws TETRAPHASE PHARMACEUTICALS: Bid to Dismiss Amended Suit Underway TIME INC: Appellate Briefs Due by Jan. 26 TIME INC: Motion to Dismiss "Perlin" Class Action Underway TOKAI PHARMACEUTICALS: "Doshi" Case Transferred to Massachusetts TOKAI PHARMACEUTICALS: Dismissal of Jackie888 Action Sought TOKAI PHARMACEUTICALS: Consolidation of Doshi & Garbowski Sought TOYOTA MOTOR: Faces Class Action Over Soy-Based Wiring Insulation TRANSUNION LLC: Loses Bid to Decertify FCRA Class Action TRUMP UNIVERSITY: Lawyers Argue Pre-Trial Class Action Motions TRUMP UNIVERSITY: Class Action Trial to Proceed on Nov. 28 TRUMP UNIVERSITY: Attorneys Enter Into Settlement Talks TRUMP UNIVERSITY: Foundation Won't Pay for Settlement, Atty Says TRUMP UNIVESRITY: Trump Impeachment Mulled Amid Fraud Suits TUMBLEWEED PIZZA: "Redus" Suit Seeks to Recoup Drivers' Wages TWITTER INC: Securities Class Action Less Likely to Succeed UBS: Settles Canadian Foreign Exchange Manipulation Class Action UNITED PARCEL: Faces "Moses" Lawsuit Under FLSA, NY Labor Law UNITED STATES: Yanko Files Appeal in Federal Claims Court UNITEDHEALTH GROUP: Faces "Fellgren" Suit Alleging Clawback US PENSION COMMITTEE: Forte Appeals S.D.N.Y. Ruling to 2nd Cir. UTAH: Appeal in Jail Mental Health Class Action Tossed V.R.P. HOLDINGS: Faces "Roman" Suit Alleging FLSA Violations VIRGINIA: Justice Dep't Supports Class Action Against DMV VISA INC: Supreme Court to Hear Arguments in Antitrust Suit VISA INC: Supreme Court Affirms Dismissal of ATM Fees Case VITAL THERAPIES: Securities Class Action Dismissed VOLKSWAGEN AG: Faces Second Major Dieselgate Class Action VOLVO CARS: Seventh Circuit Appeal Filed in "Laurens" Class Suit WAL-MART: Likely to Appeal $54MM Award in Drivers' Wage Case WAL-MART STORES: Appeal of Braun/Hummel Ruling Filed in Pa. Court WESTERN REFINING: Faces Class Suit by NTI Shareholder WHIRLPOOL CORP: Kress Seeks Review of Ruling in "Chambers" Suit WHIRLPOOL CORP: Knott Seeks Review of Ruling in "Chambers" Suit WHIRLPOOL CORP: Seeks 9th Cir. Review of Order in "Chambers" Suit WILLIAMS-SONOMA INC: Brenner Appeals Decision to First Circuit WPX ENERGY: 2nd Motion for Class Certification Pending YAHOO! INC: Faces 23 Suits Over Massive Data Breach * Class Action Rule Changes Expected to Come to Federal Courts * Law Passed for Queensland Supreme Court Class Action Procedure * New Mexico Voters Approve Ban on Unaffordable Bail Amid Suits * Retailers Face Website Accessibility Class Action Threat Asbestos Litigation ASBESTOS UPDATE: 4th Cir. Reverses Remand of "Ripley" ASBESTOS UPDATE: NY App. Div. OK's Bid to Dismiss All Craft Suit ASBESTOS UPDATE: "Blount" Remanded to Los Angeles Super. Court ASBESTOS UPDATE: Sears Loses Summary Judgment Bid in "Pisano" ASBESTOS UPDATE: "Utech" Remanded to Calif. Superior Court ASBESTOS UPDATE: AMETEK Still Faces Asbestos Suits at Sept. 30 ASBESTOS UPDATE: W.R. Grace To Pay $30MM To PD Trust in Feb. ASBESTOS UPDATE: MLIC Received 3,267 Asbestos Claims at Sept. 30 ASBESTOS UPDATE: CECONY Had $15MM Asbestos Liability at Sept. 30 ASBESTOS UPDATE: CECONY Accrues $30MM for Manhattan Accident ASBESTOS UPDATE: CECONY Accrues $720-Mil. for Superfund Sites ASBESTOS UPDATE: Rexnord Estimates $32MM Liability at Sept. 30 ASBESTOS UPDATE: Energy Fuels Faces Exposure Claims Over Mill ASBESTOS UPDATE: Huntington Still Faces Claims at Sept. 30 ASBESTOS UPDATE: Dixie Group Still Defends Suits at Sept. 24 ASBESTOS UPDATE: Harsco Faces 17,076 Claims at Sept. 30 ASBESTOS UPDATE: Shipyard Worker Loses Fight vs. Navy Supplier ASBESTOS UPDATE: Justices OK Expert Opinion on Asbestos ASBESTOS UPDATE: Kenya Faces Cancer Epidemic by Asbestos Roofs ASBESTOS UPDATE: 3rd Cir. Returns Boeing Suit to Federal Court ASBESTOS UPDATE: Castle Point Has High Meso Mortality Rates ASBESTOS UPDATE: EnPro Settles Canadian Asbestos Claims ASBESTOS UPDATE: Judge Orders Compensation for Heacham Woman ASBESTOS UPDATE: Asbestos Has Claimed 33,000 Aussie Lives ASBESTOS UPDATE: Apartment Complex Owned Charged for Exposure ASBESTOS UPDATE: State Agency Taken to Court Over Exposure ASBESTOS UPDATE: Calif. Court Dismisses Dallas Firm's Suit ASBESTOS UPDATE: NRG Still Studying Asbestos Liability at Sept30 ASBESTOS UPDATE: Tenneco Faces Less than 500 Cases at Sept. 30 ASBESTOS UPDATE: AFG Had $36MM A&E Reserves at Sept. 30 ASBESTOS UPDATE: Argo Group Has US$5.7MM Loss at Sept. 30 ASBESTOS UPDATE: Duke Energy Carolinas Has 120 Cases at Sept. 30 ASBESTOS UPDATE: Duke Energy Carolinas Had $512MM Reserves ASBESTOS UPDATE: CenterPoint Energy Expects More Asbestos Claims ********* 3M CO: Faces Two More Water Contamination Class Actions ------------------------------------------------------- Justin Heinze, writing for Hatboro Patch, reports that two class action lawsuits have been filed by area law firms on behalf of residents against firefighting foam manufacturers due to water contamination in the Horsham and Warminster areas. Norristown-based Creedon and Feliciani, along with Philadelphia- based Levin, Fishbein, Sedran, & Berman have announced that the suits will be filed on behalf of 14 residents of Montgomery and Bucks counties against the manufacturers of firefighting foams. The foams contained dangerous levels of chemicals called PFOA and PFOS, which leaked into the groundwater and allegedly caused various medical issues. The contamination occurred at two military bases: Naval Air Station Joint Reserve Base Willow Grove and Naval Air Warfare Center in Warminster. In September, a lawsuit was also filed by the Erin Brockovitch- backed law firm Weitz and Luxenberg. According to The Intelligencer, the three suits are closely related in their charges and could be tried together in court. "For years, residents living near military bases in eastern Pennsylvania were unknowingly exposed to dangerous chemicals in their drinking water," Robin Greenwald, head of the Environmental and Consumer Protection Unit at Weitz and Luxenberg said in a statement. "With this lawsuit, we are fighting to ensure that the companies who manufactured and marketed products containing these chemicals -- and put their profits ahead of public health in the process -- are brought to justice for their wrongdoing." Creedon and Feliciani said that they will demand damages for a variety of issues, including: medical monitoring, including blood testing, installment of permanent filtration devices on private wells, remediation of property contaminated with PFOA and PFOS, payment for water filtration systems for private well owners, and compensatory damages including payment of increased water bills. Because it is a class action suit, it includes all individuals who own or occupy residential properties in the areas that were affected. Those areas include Horsham, Warminster, Hatboro, Warrington, and Ivyland. It also includes military and civilian personnel who served or worked at the two impacted bases. The foam was created by numerous companies, including the 3M Company (formerly known as Minnesota Mining and Manufacturing Co.), Angus Fire, The Ansul Company, Buckeye Fire Protection Company; Chemguard, and National Foam. All are named in the lawsuit. The lawsuits state, with differing language, that producers of the foams should have essentially known that inclusion of PFOS and PFOA could pose a major risk to the environment and human health. Companies did not warn about this potential for harm. A10 NETWORKS: Final Fairness Hearing Scheduled for Jan. 13 ---------------------------------------------------------- A10 Networks, 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 final fairness hearing is scheduled to be heard on January 13, 2017, to approve the settlement of the case, In re A10 Networks, Inc. Shareholder Litigation. The Company said, "On January 29, 2015, the Company, the members of our Board of Directors, our Chief Financial Officer, and the underwriters of our March 21, 2014 initial public offering ("IPO") were named as defendants in a putative class action lawsuit alleging violations of the federal Securities Act of 1933 filed in the Superior Court of the State of California, County of Santa Clara, captioned City of Warren Police and Fire Retirement System v. A10 Networks, Inc., et al., 1-15-CV-276207. Several substantially identical lawsuits were subsequently filed in the same court, bringing the same claims against the same defendants, captioned Arkansas Teacher Retirement System v. A10 Networks, Inc., et al., 1-15-CV-278575 (filed March 25, 2015) and Kaveny v. A10 Networks, Inc., et al., 1-15-CV-279006 (filed April 6, 2015). On May 29, 2015, the aforementioned putative class actions were consolidated under the caption In re A10 Networks, Inc. Shareholder Litigation, 1-15-CV-276207." "On April 6, 2016, all parties entered into a memorandum of understanding reflecting an agreement in principle to settle all claims against all defendants asserted in the action and providing that we will make a payment of $0.8 million, net of the expected proceeds of insurance policies. The parties subsequently executed a stipulation of settlement, dated June 30, 2016, and filed a motion with the Court seeking preliminary approval of the settlement, which was granted on September 15, 2016. The payment was made in October 2016. The final fairness hearing is scheduled to be heard on January 13, 2017. "The settlement releases all claims asserted against all defendants and includes the dismissal of all claims against all defendants without any liability or wrongdoing attributed to them. The settlement remains subject to stockholder notice, final court approval and other customary conditions." A10 is a provider of application networking and network security technologies. ACE PARKING: Ninth Circuit Appeal Filed in "Byles" Class Suit ------------------------------------------------------------- Plaintiff Bruce Byles filed an appeal from a court ruling in the lawsuit titled Bruce Byles v. Ace Parking Management, Inc., Case No. 2:16-cv-00834-JCC, in the U.S. District Court for the Western District of Washington, Seattle. As previously reported in the Class Action Reporter, Bruce Byles filed the lawsuit against Ace Parking Management, Inc., on June 3, 2016. Ace Parking manages every conceivable type of parking application including: Office, Retail, Hotel and Valet Services, Airport Parking, Stadium, and Hospitals. The appellate case is captioned as Bruce Byles v. Ace Parking Management, Inc., Case No. 16-35920, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Bruce Byles' opening brief is due on February 13, 2017; -- Appellee Ace Parking Management, Inc.'s answering brief is due on March 13, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant BRUCE BYLES, individually, and on behalf of all others similarly situated, Darrell Cochran, Esq. Christopher Eric Love, Esq. PFAU COCHRAN VERTETIS KOSNOFF PLLC 911 Pacific Avenue, Suite 200 Tacoma, WA 98402 Personal: (253) 777-0799 E-mail: darrell@pcvalaw.co chris@pcvalaw.com Defendant-Appellee ACE PARKING MANAGEMENT, INC., is represented by: John M. Kreutzer, Esq. SMITH FREED & EBERHARD PC 111 SW Fifth Avenue, Suite 4300 Portland, OR 97204 Telephone: (503) 227-2424 Facsimile: (503) 227-2535 E-mail: jkreutzer@smithfreed.com ADVANCED DISPOSAL: Defending Class Suit in Gwinnett County ---------------------------------------------------------- Advanced Disposal Services, 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 continues to defend against a class action lawsuit in Gwinnett County, Georgia. In February 2009, the Company and certain of its subsidiaries were named as defendants in a purported class action suit in the Circuit Court of Macon County, Alabama. Similar class action complaints were brought against the Company and certain of its subsidiaries in 2011 in Duval County, Florida and in 2013 in Quitman County, Georgia and Barbour County, Alabama, and in 2014 in Chester County, Pennsylvania. The 2013 Georgia complaint was dismissed in March 2014. In late 2015 in Gwinnett County, Georgia, another purported class action suit was filed. The plaintiffs in those cases primarily allege that the defendants charged improper fees (fuel, administrative and environmental fees) that were in breach of the plaintiffs' service agreements with the Company and seek damages in an unspecified amount. The Company believes that it has meritorious defenses against these purported class actions, which it will vigorously pursue. Given the inherent uncertainties of litigation, including the early stage of these cases, the unknown size of any potential class, and legal and factual issues in dispute, the outcome of these cases cannot be predicted and a range of loss, if any, cannot currently be estimated. The company is an integrated provider of non-hazardous solid waste collection, transfer, recycling and disposal services, operating primarily in secondary markets or under exclusive arrangements. ADVANCEPIERRE FOODS: Ninth Circuit Appeal Filed in "Hawkins" Suit ----------------------------------------------------------------- Plaintiff Shavonda Hawkins filed an appeal from a court ruling in the lawsuit styled Shavonda Hawkins v. AdvancePierre Foods, Inc., Case No. 3:15-cv-02309-JAH-BLM, in the U.S. District Court for the Southern District of California, San Diego. The appellate case is captioned as Shavonda Hawkins v. AdvancePierre Foods, Inc., Case No. Case No. 16-56697, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on Nov. 17, 2016, District Judge John A. Houston granted the Defendant's motion to dismiss the case. Shavonda Hawkins is a consumer/purchaser of Fast Bites microwaveable sandwiches since January 1, 2008. On October 14, 2015, Hawkins filed a putative class action lawsuit challenging AdvancePierre Foods's use of partially hydrogenated oil (PHO) in its microwaveable sandwiches. Hawkins asserts that PHO is a source of artificial trans fat and that there is no safe level of PHO or artificial trans fat intake because PHO and artificial trans fat cause inflammation, cardiovascular heart disease, diabetes, cancer, Alzheimer's disease, and cognitive damage. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by December 9, 2016; -- Transcript is due on January 9, 2017; -- Appellant Shavonda Hawkins' opening brief is due on February 17, 2017; -- Appellee AdvancePierre Foods, Inc.'s answering brief is due on March 20, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant SHAVONDA HAWKINS, on behalf of herself and all others similarly situated, is represented by: David Elliot, Esq. Gregory Weston, Esq. THE WESTON FIRM 1405 Morena Boulevard, Suite 201 San Diego, CA 92110 Telephone: (858) 228-7997 Facsimile: (480) 247-4553 E-mail: david@westonfirm.com greg@westonfirm.com Defendant-Appellee ADVANCEPIERRE FOODS, INC., is represented by: Andrew H. Cox, Esq. THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, OH 44114 Telephone: (216) 566-5747 E-mail: Andrew.Cox@ThompsonHine.com AGRIA CORP: January 9 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notifies investors that a securities class action has been filed against American Depositary Shares ("ADSs") of Agria Corporation ("Agria" or the "Company") and certain of its officers. This class action is on behalf of a class consisting of all persons who purchased Agria between December 16, 2011 and November 4, 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"). The complaint alleges that throughout the Class Period, Defendants made false and misleading statements and/or failed to disclose that: (1) Defendants were trading to artificially inflate Agria's stock price to meet NYSE's continuing listing standards and to avoid being delisted from the NYSE; (2) Agria lacked sufficient internal controls over financial reporting; and (3) consequently, Defendants' public statements about Agira's business, operations, and prospects were materially false and misleading at all relevant times. 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/groor 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 Agria, you have until January 9, 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. Our 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. ALLIED INTERSTATE: Tatis Seeks 3rd Cir. Review of D.N.J. Ruling --------------------------------------------------------------- Plaintiff Michelle Tatis filed an appeal from a court ruling in the lawsuit styled Michelle Tatis v. Allied Interstate LLC, Case No. 2-16-cv-00109, in the United States District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the Plaintiff seeks to stop the Defendant's alleged unfair and unconscionable means to collect a debt. Allied Interstate LLC provides accounts receivable and debt collection services to companies from a wide range of industries. The appellate case is captioned as Michelle Tatis v. Allied Interstate LLC, Case No. 16-4022, in the United States Court of Appeals for the Third Circuit. Plaintiff-Appellant MICHELLE TATIS, Individually and on behalf of all others similarly situated, is represented by: Ari Hillel Marcus, Esq. Yitzchak Zelman, Esq. MARCUS ZELMAN LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (732) 660-8169 Facsimile: (732) 298-6256 E-mail: ari@marcuszelman.com Yzelman@MarcusZelman.com Defendant-Appellee ALLIED INTERSTATE LLC is represented by: Kellie A. Lavery, Esq. REED SMITH LLP 136 Main Street, Suite 250 Princeton Forrestal Village Princeton, NJ 08540 Telephone: (609) 524-2071 Facsimile: (609) 951-0824 E-mail: klavery@reedsmith.com ALLSTATE: St. Clair Shores Police Fund Files Class Suit ------------------------------------------------------- Lorraine Bailey, writing for Courthouse News Service, reported that Allstate concealed that the expansion of its car insurance business significantly reduced its profit margin, keeping its share price artificially high while its CEO sold $33 million in stock, a securities class action claims in Chicago. Allstate is the largest publicly traded personal insurance company in the United States. Personal insurance includes homeowner, renter, motorcycle and car insurance. Car insurance is a low-margin business, according to Allstate CEO Thomas J. Wilson. He is quoted in a Nov. 10 complaint as saying, "It's not like a software business, where you lose five points of margin and you don't really care that much. We care a lot because it's sort of like everything." Therefore, Allstate meticulously tracks the ratio of claim losses to revenues from insurance policies, and investors rely on this metric to evaluate the company's profitability. It also monitors on a daily or even hourly basis the frequency of auto claims, as a spike in claims might require tightening underwriting methods or an increase in policy prices, court records show. In October 2014, Allstate allegedly embarked on a new plan to increase its market share in the car insurance business while maintaining profitability. But according to a class action filed by the City of St. Clair Shores Police and Fire Retirement System, the plan failed. "Allstate's new business was of lower quality and carried increased risk, which caused, in substantial part, Allstate's largest increase in frequency of auto claims in nearly five years," according to the complaint, which was filed on November 17, in Chicago federal court. The lawsuit says Allstate publicly denied that the spike in auto claims was related to its business expansion. "Rather than admit that Allstate's auto policy growth and increased revenues had caused a spike in auto claims and reduced profit margins, defendants claimed the spike in claims frequency was caused solely by external events beyond Allstate's control -- namely weather and increased miles driven. This was false," the complaint states. While investors remained in the dark and Allstate continued to trade at then all-time highs, Wilson allegedly cashed out $33 million in stock options, which represented 88 percent of his stake in the company. Allstate did not admit that its new business model was responsible for the losses until August 2015, the class claims. Allstate President Matthew Winter ultimately contradicted his earlier statements, and admitted that new business growth contributed to the higher auto claims and "shockingly conceded that this impact 'was expected,'" the complaint says. The disclosure caused Allstate's stock price to drop more than 10 percent from $69.38 per share to $62.34 per share, eliminating $2 billion in market capitalization and causing losses to class members who invested in the company from October 2014 to August 2015, according to the lawsuit. Given Allstate's decades of experience in underwriting and analysis of claim trends, the complaint alleges Allstate must have known the true cause of the increase in claims and deliberately misled investors by attributing it solely to external factors. It also claims Wilson's liquidation of $33 million in stock options -- an unusual trade, given that Wilson had not sold any shares for 10 years prior -- amounts to insider trading. The proposed class is represented by James E. Barz -- jbarz@rgrdlaw.com -- with Robbins, Geller, Rudman & Dowd in Chicago. Allstate spokesperson Laura Strykowski said, "We have reviewed the complaint and the allegations are without merit." ALTA-DENA CERTIFIED: Perez Appeals C.D. Cal. Ruling to 9th Cir. --------------------------------------------------------------- Plaintiff Juan Perez filed an appeal from a court ruling in the lawsuit entitled Juan Perez v. Alta-Dena Certified Dairy, LLC, Case No. 2:13-cv-07741-R-FFM, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Juan Perez v. Alta-Dena Certified Dairy, LLC, Case No. 16-80168, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on Nov. 2, 2016, the Hon. Manuel L. Real denied the Plaintiff's motion to certify class in its entirety. The Court says, "While this Court recognizes the potential impact of Defendant's uniform policies, it is clear that they do not answer 'the main concern in the predominance inquiry: the balance between individual and common issues[.]' Many individual questions would have to be answered by each class member". The Plaintiff raises a total of six causes of action against the Defendant. The primary claims for the purpose of class certification are: claim one for failure to provide meal and rest breaks and claim two for failure to pay wages. The remaining four claims are derivative of the first two. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=CM6XMM8c Plaintiff-Petitioner JUAN PEREZ, on behalf of himself and those similarly situated, is represented by: Natasha Chesler, Esq. Timothy B. McCaffrey, Jr., Esq. CHESLER MCCAFFREY 11377 West Olympic Boulevard, Suite 500 Los Angeles, CA 90064 Telephone: (310) 882-6407 Facsimile: (310) 882-6359 E-mail: nchesler@tbmlaw.net tmccaffrey@tbmlaw.net Defendant-Respondent ALTA-DENA CERTIFIED DAIRY, LLC, a Delaware Limited Liability Company, is represented by: Amanda Kate Bonn, Esq. Marc M. Seltzer, Esq. Steven G. Sklaver, Esq. SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars Los Angeles, CA 90067-6039 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 E-mail: abonn@susmangodfrey.com mseltzer@susmangodfrey.com ssklaver@susmangodfrey.com AMAZON SERVICES: 9th Cir. Affirms Order Compelling Arbitration -------------------------------------------------------------- Michael Wolgin, Esq. -- mwolgin@carltonfields.com -- of Carlton Fields, in an article for JDSupra Business Advisor, report that two purported class representatives appealed an order compelling arbitration in their putative class action lawsuit against Amazon Services, LLC. The court affirmed, holding that the named plaintiffs agreed to Amazon's "Business Solutions Agreement," which contained an arbitration clause agreeing to arbitrate "any dispute" relating to the BSA or use of Amazon's services. The court was not persuaded by the plaintiffs' argument that a second "Marketplace Participation Agreement" agreement that they signed, which contained a litigation forum selection clause, took precedence over the arbitration clause in the BSA. The court rejected the argument that the MPA was a separately defined "Program Policy" that was superior to the BSA, finding that the MPA was an inferior "Seller Agreement" within the meaning of the BSA. The court further found that the fact that one of the parties signed the MPA before signing the BSA was immaterial; the BSA and its arbitration provisions represented the parties "entire agreement," which superseded all prior agreements. Peters v. Amazon Services, LLC, Case No. 14-35294 (9th Cir. Oct. 13, 2016). APPCO: Chamberlains Files Class Action Over Sham Contracting ------------------------------------------------------------ News.com.au reports that sticking cigarettes up bottoms, licking underwear and cockfights. Welcome to Australia's most humiliating workplace, where hazing and bullying is allegedly rife. Charity muggers, known as "chuggers", from marketing giant Appco, which has raised money for Surf Life Saving Australia and the Starlight Foundation, have allegedly been forced into embarrassing acts and rituals if they aren't performing well at work. Chamberlains Law Firm has launched a massive $85 million class action suit against Appco for employees who feel ripped off. Appco has been accused of sham contracting, where a company hires independent contractors but treats them like employees. According to Chamberlains Law Firm, people signed Independent Contractor Agreements but Appco would control a contractor's work life and talk about career progression as if they were employees. Chamberlains Law Firm says because Appco treated workers that way, they were entitled to better wages and benefits. Some were allegedly getting paid as little as $2.50 an hour. Since the class action was launched, the company's "chuggers" have revealed the hazing they had to endure if they didn't meet sales targets. Footage shows workers competing in "The Slug Race", where they would slide along the ground on their backs. Former employee Toby Yates told ABC it was embarrassing having to compete in this bizarre ritual. "But if you didn't the repercussions were even worse," he said. Appco "chuggers" would sell raffle tickets and pins and former employee Tyrone Corbett told ABC they would get 10 per cent commission on what they sold at the end of the day. He worked in Hobart, and witnessed some of the disturbing rituals within the company, that Mr. Corbett said were created to "punish" workers who didn't perform to a high standard. "The first road trip was my very first week working there. That was quite a scary experience simply from the behaviour that happened there," he said. "The very first day of this week-long road trip from Hobart to Launceston the leaders had a meeting and they discussed what sort of punishment should be involved for anyone who didn't hit their daily target. "Later that evening we all got back into the accommodation . . . I saw a group of people huddling around one of these leaders who did not hit their targets. "As it turned out, the punishment for not hitting their target was to shove a cigarette up your bottom, pull it out and then smoke it." More footage has emerged today of employees being forced to act like chickens and participate in a cock fight. Jacob Bywater is leading the class action against Appco and he told Fairfax Media cock fights were a weekly occurrence. "It was every Friday morning. The idea is, like being a bird, you wrestle each other to the ground, and you have to try and hold them down for three seconds," he said. "People would take part if they didn't hit sales targets or made an error throughout the week or they may have been late to a meeting." Appco said in a statement it did not condone this "obscene behaviour", "These allegations describe outrageous and completely unacceptable behaviour, which would not be tolerated by Appco Group Australia," the company's chief executive Martin Gaffney said. "Appco would immediately sever ties with any marketing agency that encouraged bullying and harassment activities. And we would require marketing agencies to weed out any independent contractors who initiated such behaviour among fellow contractors." Mr. Gaffney said the alleged rituals happened in 2014 and Appco Australia was only just made aware of it in the wake of the class action. He said the company was "appalled and extremely disappointed" these actions took place. "They are being treated extremely seriously and will inform the robust action plan Appco Australia is now putting in place." Appco has appointed law firm Baker & McKenzie to conduct an independent investigation into bullying and harassment claims and will terminate contracts with any marketing company that endorsed the rituals. ARROWHEAD PHARMACEUTICALS: Faces "Meller" Suit Over ARC-520 ----------------------------------------------------------- YAKI J. MELLER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. ARROWHEAD PHARMACEUTICALS, INC., CHRISTOPHER R. ANZALONE, and KENNETH A. MYSZKOWSKI, Defendants, Case No. 2:16-cv-08505 (C.D. Cal., November 15, 2016), alleges that Defendants made false and/or misleading statements and/or failed to disclose facts on its ARC-520 project, an RNAi- based therapeutic in Phase IIb clinical efficacy studies to treat chronic hepatitis B virus infection. ARROWHEAD PHARMACEUTICALS, INC., a biopharmaceutical company, develops novel drugs to treat intractable diseases in the United States. The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 468 North Camden Drive Beverly Hills, CA 90210 Phone: (818) 532-6499 E-mail: jpafiti@pomlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc C. Gorrie, Esq. POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, NY 10016 Phone: (212) 661-1100 Fax: (212) 661-8665 E-mail: jalieberman@pomlaw.com E-mail: ahood@pomlaw.com E-mail: mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Phone: (312) 377-1181 Fax: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com AUSTRALIA: Williamtown Residents Forced to File Class Action ------------------------------------------------------------ News Of The Area reports that commenting on the class action lawsuit filed against the Department of Defence, Greens NSW Senator Lee Rhiannon said the Department's failure to properly act on this issue has forced local residents to take action. "It should never have come to this," Senator Rhiannon said. "After over a year of anguish, patience and stoic resilience, residents in Williamtown feel that they have exhausted all other avenues and have filed a class action lawsuit against the Department of Defence." Senator Rhiannon wished the residents all the best in their quest for justice and a solution to the uncertainty. "The Defence Department have failed time and time again to communicate clearly with the community, to set out plans for remediation, to guarantee some level of compensation, and to enter into critical discussions about property devaluations and buybacks." "Instead, the level of action we have seen from Defence has been sluggish and passive at an absolute best. At worst there is radio silence." Senator Rhiannon said the Greens have put questions to the Department, asking for an update on how each item under the $55 million assistance package announced in June is progressing. "We are currently awaiting a response," she said. "We remain extremely concerned at the lack of information about assistance offered to workers who may be exposed to toxic levels of PFCs, including current and former Defence staff and contractors." "The Greens will continue to keep pressure on the Department to clean up the contamination and provide fair compensation to locals." BAIS YAAKOV: Court Hears Oral Argument on Fax Waiver Order Appeal ----------------------------------------------------------------- Justin O. Kay, Esq. -- justin.kay@dbr.com -- of Drinker Biddle & Reath LLP, in an article for The National Law Review, reports that on November 8, 2016, a three judge panel (Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph) of the United States Court of Appeals for the D.C. Circuit heard oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234. The argument (which lasted ninety minutes) was divided into two portions: argument regarding whether the FCC had authority to require the inclusion of opt-out notices on solicited faxes, and argument regarding whether the FCC was authorized to grant retroactive waivers of that requirement. The audio recording of the argument is available here. With regard to the FCC's authority to regulate solicited faxes, the class action defendants argued that Congress drew a "stark" distinction between solicited and unsolicited faxes and that the FCC's requirement of an opt-out notice on solicited faxes "obliterated" that distinction, that nothing in the TCPA authorized the FCC to require opt-out notices on solicited faxes, and that requiring an opt-out notice on solicited faxes posed serious First Amendment concerns. The FCC and the class action plaintiffs argued in response that the FCC's imposition of regulations on solicited faxes was a natural and necessary part of the regulation of unsolicited faxes, and that there was nothing in the TCPA prohibiting the FCC from regulating solicited faxes. With regard to the FCC's authority to waive its regulation requiring opt-out notices on solicited faxes, the class action plaintiffs argued that the FCC did not have the right to use its waiver authority to extinguish a statutory right of action; that the regulation itself was clear despite any shortcomings in the FCC orders regarding the regulation; that prudent counsel should have advised clients to comply with the most restrictive reading of the rule; that the FCC did not require any showing of actual confusion to grant waivers, but rather had granted them based on a "vapor" or "ether" of confusion; and that the standard the full FCC created for granting waivers permitted granting waivers to petitioners who admitted that they were simply unaware of the regulations, and that denials of petitions based on ignorance of the law was based on a standard that "the Bureau seems to have created later on" and that "there is nothing in the [Anda] Order that says ignorance of the TCPA, you don't get a waiver." The FCC argued in response that the order was flatly contradictory and therefore set a presumption of confusion; that the waiver process was "a mess of the agency's own making" and the FCC decided the best way to clean up that mess was to grant retroactive waivers; and that the violation complained of for which waivers were granted was the agency's own rule, not an express statutory requirement. The FCC also expressed frustration that parties had not sooner pointed out to the FCC the discrepancy in the order via a petition for a declaratory ruling. The panel was active from the start (Judge Pillard asked the first question less than a minute into the argument), and the arguments played out more through questions, answers, comments, and prompting from the bench rather than through prepared remarks from counsel. Based on comments and lines of questioning, Judge Pillard appeared to be quite skeptical of the class action defendants' arguments regarding the ability of the FCC to regulate solicited faxes, focusing instead on the policy goals driving the FCC's approach -- obtaining consent and facilitating its revocation, and stopping "the problem" of unwanted faxes. She also challenged the arguments made by the FCC regarding the waiver process: she asserted that the regulation itself was not confusing and that granting waivers without any showing of actual confusion (and in some cases based on ignorance of the regulation altogether) appeared to be setting a very low bar, and suggested that when the FCC was balancing the interests in granting a waiver to defendants, it failed to properly consider the costs plaintiffs had incurred over years in seeking to enforce a regulation that the FCC then waived. BAXTER INTERNATIONAL: "Castillo" Alleges IV Solution Price-Fixing ----------------------------------------------------------------- Cesar Castillo, Inc., individually and on behalf of all those similarly situated, Plaintiff, v. Baxter International Inc., Baxter Healthcare Corporation, Hospira, Inc., Hospira Worldwide, Inc. and B. Braun Medical, Inc., Defendants, Case No. 1:16-cv- 10584 (N.D. Ill., November 14, 2016), seeks permanent injunctive relief that enjoins Defendants from violating the antitrust laws, additional damages, penalties, and other monetary relief including treble damages, pre-judgment and post-judgment interest, costs of this suit, including reasonable attorney fees and such other and further relief under the Sherman Act. Baxter International Inc. is a Delaware corporation headquartered in Deerfield, Illinois. Baxter International manufactures and sells IV Saline Solution throughout the United States. Defendants are accused of illegally manipulating prices of Saline Solution. Plaintiff is represented by: Thomas D. Brooks, Esq. Paul E. Slater, Esq. SPERLING & SLATER 55 West Monroe Street, Suite 3200 Chicago, IL 60603 Tel: (312) 641-3200 Email: pes@sperling-law.com tdb@sperling-law.com - and - Linda P. Nussbaum, Esq. Bart D. Cohen, Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036-8718 Tel: (917) 438-9189 Email: lnussbaum@nussbaumpc.com bcohen@nussbaumpc.com - and - Juan R. Rivera Font, Esq. JUAN R. RIVERA FONT LLC Ave. Gonzalez Giusti #27, Suite 602 Guaynabo, PR 00968 Tel: (787) 751-5290 Email: juan@riverafont.com BAYER: 14,000 People Join Xarelto Class Action in U.S. ------------------------------------------------------ Jan Keuchel and Christina ZÅhlke, writing for Handelsblatt Global, report that Xarelto, one of the star drugs in pharmaceutical giant Bayer's portfolio, could become a legal headache for its parent company. An investigation by Handelsblatt and German broadcaster WDR found that Janssen Pharmaceutica, Bayer's development partner on Xarelto, concealed a critical detail about the drug from U.S. authorities for many years: the fact that many of the test devices used in the study leading to its approval were defective. Xarelto is an anti-coagulant medicine, which has brought the company revenues of EUR2 billion ($2.2 billion) worldwide. But there are fears it may cause serious side effects. More than 14,000 plaintiffs -- including both people who took the drugs and their relatives -- have launched a class action suit against Bayer in U.S. courts. They claim that Xarelto caused severe hemorrhages, and, in some cases, death. Bayer rejects the claims BERNALILLO, NM: Zuniga Appeals D.N.M. Decision to Tenth Circuit --------------------------------------------------------------- Plaintiffs Maria Zuniga, Emily Hernandez, Jennifer Gallegos, Cassandra Gutierrez, Priscilla Gutierrez, Pat Vigil, Mindy Hoerter and Deanna Miglio filed an appeal from a court ruling in their lawsuit entitled Zuniga, et al. v. Bernalillo County, et al., Case No. 1:11-CV-00877-JB-LAM, in the U.S. District Court for the District of New Mexico - Albuquerque. The appellate case is captioned as Zuniga, et al. v. Bernalillo County, et al., Case No. 16-704, in the United States Court of Appeals for the Tenth Circuit. The miscellaneous response for Bernalillo County, Julian Barela and Dan Mayfield was due on November 21, 2016. Plaintiffs-Petitioners Maria Zuniga, Emily Hernandez, Jennifer Gallegos, Cassandra Gutierrez, Priscilla Gutierrez, Pat Vigil, Mindy Hoerter and Deanna Miglio, on behalf of themselves and all others similarly situated, are represented by: Christopher Murray Moody, Esq. Repps D. Stanford, Esq. Whitney Warner, Esq. MOODY & WARNER, P.C. 4169 Montgomery Boulevard, NE Albuquerque, NM 87109 Telephone: (505) 944-0033 Facsimile: (505) 944-0034 E-mail: moody@nmlaborlaw.com stanford@nmlaborlaw.com warner@nmlaborlaw.com Defendants-Respondents BERNALILLO COUNTY, JULIAN BARELA and DAN MAYFIELD are represented by: Emily A. Franke, Esq. Agnes Fuentevilla Padilla, Esq. BUTT THORNTON & BAEHR PC 4101 Indian School Road NE, Suite 300-S P.O. Box 3170 Albuquerque, NM 87190 Telephone: (505) 884-0777 Facsimile: (505) 889-8877 E-mail: afpadilla@btblaw.com BIG HEART: Seeks Eighth Circuit Review of Ruling in "Mawby" Suit ---------------------------------------------------------------- Defendants Big Heart Pet Brands, Milo's Kitchen and The J.M. Smucker Company filed an appeal from a court ruling in the lawsuit styled Sharel Mawby v. Big Heart Pet Brands, et al., Case No. 4:16-cv-00296-HFS, in the U.S. District Court for the Western District of Missouri - Kansas City. The appellate case is captioned as Sharel Mawby v. Big Heart Pet Brands, et al., Case No. 16-8022, in the United States Court of Appeals for the Eighth Circuit. Plaintiff-Respondent Sharel Mawby, on behalf of herself and all others similarly situated, is represented by: David Lee Heinemann, Esq. Stephen J. Moore, Esq. Christopher S. Shank, Esq. SHANK & MOORE, LLC 1968 Shawnee Mission Parkway, Suite 100 Mission Woods, KS 66205 Telephone: (816) 471-0909 E-mail: sjm@shankmoore.com Petitioners-Defendants Big Heart Pet Brands, Inc., Milo's Kitchen and The J.M. Smucker Company are represented by: Gregory Khan Wu, Esq. SHOOK, HARDY & BACON L.L.P. 2555 Grand Boulevard Kansas City, MO 64108-2613 Telephone: (816) 474-6550 Facsimile: (816) 421-5547 E-mail: gwu@shb.com BURLINGTON CTY, NJ: Haas Appeals D.N.J. Ruling to Third Circuit --------------------------------------------------------------- Plaintiff Tammy Marie Haas filed an appeal from a court ruling in the lawsuit styled Tammy Haas, et al. v. County of Burlington, et al., Case No. 1-08-cv-01102, United States District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the Case challenges Burlington County's strip searches in minor-offense cases. Ms. Haas was arrested in 2006 on a warrant that said she had failed to pay $900 in child support. Nine months pregnant, Haas was strip-searched at the county's Minimum Security Facility in Pemberton and ordered to take a shower. She also was sprayed with a delousing agent despite her "late-term pregnancy," according to the complaint. Ms. Haas had questioned whether the strip search was necessary but was told "it was policy," the Court documents said. She also was told to "bend over, cough and spread her buttocks," the suit said, and the warrant was later determined to be in error. The appellate case is captioned as Tammy Haas, et al. v. County of Burlington, et al., Case No. 16-4032, in the United States Court of Appeals for the Third Circuit. The Clerk of the Third Circuit entered a Clerk Order stating that counsel for Appellant has contacted the Court indicating that she may be filing an emergency motion to stay the District Court action pending the appeal. The Clerk said that the order appealed is not final within the meaning of 28 U.S.C. Section 1291 and is not otherwise appealable at this time. Given this, any motion for stay pending appeal must specifically address this Court's authority over the appeal. Appellees response to the stay motion must also address the jurisdictional issue. If Appellant does not file a stay motion, the parties should instead file separate written responses addressing this Courts authority over the appeal within 14 days from the date of this order. Plaintiff-Appellant TAMMY MARIE HAAS, Individually an on behalf of a Class of Similarly Situated Individuals, is represented by: Jamie B. Goldman, Esq. 200 Centennial Avenue Piscataway, NJ 732-377-20 Plaintiff-Appellee CONRAD SZCZPANIAK is represented by: Lauren Plevinsky, Esq. WILLIAM RIBACK LLC 132 North Haddon Avenue Haddonfield, NJ 08033 Telephone: (856) 857-008 - and - Fran L. Rudich, Esq. KLAFTER OLSEN & LESSER LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Telephone: (212) 838-3333 Facsimile: (212) 838-3735 E-mail: frudich@klafterolsen.com Defendants-Appellees COUNTY OF BURLINGTON, BURLINGTON COUNTY JAIL and RONALD COX, both in his individual and Representative capacity as Warden of the Burlington County Jail, are represented by: Michelle L. Corea, Esq. Laura Danks, Esq. CAPEHART & SCATCHARD, P.A. 8000 Midlantic Drive Laurel Corporate Center, Suite 300 Mount Laurel, NJ 08054 Telephone: (856) 914-2053 Facsimile: (856) 235-2786 E-mail: mcorea@capehart.com ldanks@capehart.com CALIFORNIA PHYSICIANS': Denial of Martin's Cert. Bid Affirmed ------------------------------------------------------------- The Court of Appeals of California, First District, Division One affirmed the order denying the Plaintiffs' motion for class certification in the lawsuit titled ROBERT MARTIN et al., Plaintiffs and Appellants, v. CALIFORNIA PHYSICIANS' SERVICE et al., Defendants and Respondents, Case No. A145374. In the class action case, Plaintiffs Robert Martin and Deborah Goodwin, on behalf of themselves and all others similarly situated, sued Defendants California Physicians' Service, dba Blue Shield of California (BSC), and Blue Shield of California Life & Health Insurance Company (BSL) (collectively, Blue Shield). The Plaintiffs alleged Blue Shield violated certain California statues regulating the closure of health plans to new membership by pushing older, sicker consumers into lower-benefit, higher- deductible coverage. The trial court denied the Plaintiffs' motion to certify the lawsuit as a class action, concluding, in part, that individualized issues predominated over common ones. A copy of the order is available at no charge at https://goo.gl/ItKvgZ from Leagle.com. CALIFORNIA RESOURCES: Noteholders' Class Suit Underway ------------------------------------------------------ California Resources 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 is defending against a class action by beneficial owners of unsecured notes. The Company said, "On April 21, 2016, a purported class action was filed against us in the United States District Court for the Southern District of New York on behalf of all beneficial owners of our unsecured notes from November 12, 2015 to the present. The complaint alleges that our December 2015 debt exchange excluded non-qualified institutional holders in violation of the Trust Indenture Act of 1939 and related law and, thereby, impaired their rights to receive principal and interest payments. The purported class action seeks declaratory relief that the debt exchange and the liens securing the new notes are null and void and that the debt exchange resulted in a default. The plaintiff also seeks monetary damages and attorneys' fees." "The Company plans to vigorously defend against the claims made by the plaintiff." The Company is an independent oil and natural gas exploration and production company operating properties exclusively within the State of California. CAMPOPIANO ROOFING: Faces "Harm" Suit Alleging Violation of FLSA ---------------------------------------------------------------- RICHARD J. HARM, an individual, on behalf of himself and others similarly situated, 4224 W. 23rd St. Cleveland, Ohio 44109 Plaintiff, vs. CAMPOPIANO ROOFING CO., c/o Michael J. O'Brien 627 West St. Clair Ave., Cleveland, Ohio 44113, Defendant, Case No. 1:16-cv-02781 (N.D. Ohio, November 15, 2016), alleges that Plaintiff not been paid for time spent traveling from jobsites in which an overnight stay was required; was not paid at the correct overtime rate when working prevailing wage jobs; and/or had time docked from his pay although he actually worked the time in violation of the Fair Labor Standards Act. CAMPOPIANO ROOFING CO. is a roofing manufacturer. The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Ave., N.W. Massillon, OH 44646 Phone: (330) 470-4428 Fax: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com CANADA: G20 Class-Actions Against Toronto Police Can Proceed ------------------------------------------------------------ Colin Perkel, writing for The Canadian Press, reports that two class-action lawsuits arising out of the chaotic Toronto G20 summit more than six years ago appear destined for trial after the country's highest court refused on Nov. 10 to get involved. Toronto's police authorities had wanted the Supreme Court of Canada to stop the legal actions in their tracks. The court, however, declined. It also ordered the police services to pay costs of the appeal. Sherry Good, one of the two lead plaintiffs, said she was delighted the case could now move forward. "We've been fighting for over six years now and we're committed to another six if it's necessary," Ms. Good, 58, said in an interview. "We want justice no matter how long it takes." The class actions were spawned by the violence-marred weekend in June 2010 when police arrested or detained more than 1,000 people in what was later described as one of the worst violations of civil liberties in Canadian history. Many of the detainees were kept in appalling conditions at a makeshift detention centre in Toronto. Almost all were released without charge within 24 hours. Ms. Good and co-plaintiff Tommy Taylor are seeking a court declaration that class members' charter rights were violated. They also are looking for damages they say would be strong "instruments of behaviour modification." It's not clear when any trial might take place. "Nothing is going to get in our way," Ms. Good said. "This is about freedom and democracy. The police need to know we're not going to stop until we make sure this never happens again." After one false start and two bruising court battles, Ontario's top court in April ruled that the two separate but related civil actions -- one for people boxed in on the streets, the other for those sent to the detention centre -- should go ahead. In turning to the Supreme Court, the police services board argued class actions were inappropriate. Instead, the board maintained any claims of wrongful arrest or detention should be treated individually. It also suggested the formulations of the class actions were unfair. The board did not respond immediately to the Supreme Court decision on Nov. 10. Ms. Good's lawyers said police now risk multiple lawsuits if they ever indiscriminately arrest entire crowds of demonstrators again. "This case is about the right of everyday Canadians to publicly speak their minds without being arbitrarily rounded up and thrown in jail," lawyer Eric Gillespie said in a statement. Ms. Good was among scores of people police "kettled" in torrential rain at a downtown intersection, while Mr. Taylor was sent to the makeshift east-end detention centre. Both she and Mr. Taylor want damages for false arrest or imprisonment, and violations of their constitutional rights. They maintain a senior officer gave orders for the indiscriminate roundup of anyone present at various downtown locations -- including peaceful protesters, bystanders and journalists. Police also conducted "humiliating" strip searches and "needlessly beat people," they say. Last year, a tribunal convicted Toronto police Supt. Mark Fenton of misconduct for ordering the mass arrests. He was given a formal reprimand and docked 30 days' vacation. Mr. Fenton is appealing. In an even earlier ruling allowing the class actions, Divisional Court said the mass arrests could be seen as "one of the hallmarks of a police state." CCDN LLC: Fourth Circuit Appeal Filed in "Taylor" Class Suit ------------------------------------------------------------ Plaintiffs Chris W. Taylor, William G. Harrison, Sr., Cathy Horton Hunt, Sharon Southwood, Dorman Beasley and Brenda Beasley filed an appeal from a court ruling relating to the originating cases styled Chris W. Taylor v. Lee W. Bettis, Jr., et al., Case Nos. 7:09-cv-00183-F and 7:09-cv-00081-F, in the U.S. District Court for the Eastern District of North Carolina at Wilmington. As previously reported in the Class Action Reporter, Chris Taylor alleges in his complaint that the Defendants -- five companies and 11 people, eight of them attorneys -- charged at least 6,000 consumers more than $4,000 apiece for debt-relief services they never delivered. He said he had more than $30,000 in credit card debt when he "scraped together" the $4,500 he paid in advance to Defendant Credit Card Solution. The appellate case is captioned as Chris W. Taylor v. Lee W. Bettis, Jr., Case No. 16-2239, in the United States Court of Appeals for the Fourth Circuit. The Defendants-Appellees are LEE W. BETTIS, PAT LEIGH PITTMAN, JOANNE K. PARTIN, ROBERT LOUIS EMANUEL, STEPHEN A. DUNN, RAYMOND E. DUNN, JR., EMANUEL & DUNN, PLLC, a North Carolina professional limited liability company and 18 U.S.C. 1961(4) association-in- fact, and BETTIS DUNN & DUNN, a North Carolina general partnership and 18 U.S.C. 1961(4) association-in-fact. The other Defendants are CCDN, LLC., a Nevada limited liability company and 18 U.S.C. 1961(4) association-in-fact; LEGAL DEBT CURE, LLC, a Nevada limited liability company and 18 U.S.C. 1961(4) association-in-fact; R.K. LOCK & ASSOCIATES, d/b/a CCDN, LLC., or The Credit Collections Defense Network, an Illinois sole proprietorship and 18 U.S.C. 1961(4) association-in-fact; JEN DEVINE; ROBERT K. LOCK, JR.; COLLEEN LOCK; PHILIP M. MANGER; S. JOHN HAGENSTEIN; THE CREDIT CARD SOLUTION, a Texas sole proprietorship and 18 U.S.C. 1961(4) association-in-fact; ROBERT M. LINDSEY; BARRISTER LEGAL SERVICES PC, an Illinois corporation and 18 U.S.C. 1961(4) association-in-fact; RICHARD JUDE WASIK; W. ANDREW ARNOLD; LAW OFFICES OF W, ANDREW ARNOLD PC, a South Carolina corporation and 18 U.S.C. 1961(4) association-in-fact; RICHARD D. RUSS; ERNEST GREG BRITT, JR.; R&G MARKETING, a Florida general partnership and 18 U.S.C. 1961(4) association-in-fact; EXCELL MARKETING LLC, a Florida limited liability company and 18 U.S.C. 1961 (4) association-in-fact; RODNEY EMIL BRISCO; DEBT JURISPRUDENCE INC., a Missouri corporation and 18 U.S.C. 1961(4) association-in-fact; AEGIS CORPORATION, a Missouri corporation and 18 U.S.C. 1961(4) association-in-fact; M. DAVID KRAMER; MARCIA M. MURPHY; and TRACY WEBSTER. Plaintiffs-Appellants CHRIS W. TAYLOR, for himself and all others similarly situated, WILLIAM G. HARRISON, SR., CATHY HORTON HUNT, SHARON SOUTHWOOD, DORMAN BEASLEY and BRENDA BEASLEY are represented by: Christopher Wyatt Livingston, Esq. 2154 Dowd Dairy Road White Oak, NC 28399-0000 Telephone: (910) 876-7001 The Defendants-Appellees are represented by: Philip Alan Collins, Esq. BAILEY & DIXON P. O. Box 1351 Raleigh, NC 27602-1351 Telephone: (919) 828-0731 Facsimile: (919) 828-6592 E-mail: pcollins@bdixon.com CHESAPEAKE ENERGY: Faces Class Action Over Misleading Statements ---------------------------------------------------------------- Louie Torres, writing for Legal Newsline, reports that a common stock owner has filed a class-action lawsuit against Chesapeake Energy Corp., Robert Douglas Lawler, and Domenic J. Dell'Osso, Jr., company and its board of officers, citing alleged violation of federal law. Terrence Saunders filed a complaint on behalf of all others similarly situated on Oct. 4, in the U.S. District Court for the Western District of Oklahoma against the defendants alleging that they made false and misleading statements regarding the company's operations. According to the complaint, the plaintiff alleges that he suffered damages from purchasing stocks at artificially inflated prices. The plaintiff holds Chesapeake Energy Corp., Robert Douglas Lawler, and Domenic J. Dell'Osso, Jr. responsible because the defendants allegedly provided false and misleading materials to the public. The plaintiff requests a trial by jury and seeks pay damages to the plaintiff, interest, court costs and any further relief this court grants. He is represented by William B. Federman -- wbf@federmanlaw.com -- of Federman & Sherwood in Oklahoma City; Jeremy A. Lieberman, J. Alexander Hood II and Marc C. Gorrie of Pomerantz LLP in New York; and Patrick V. Dahlstrom of Pomerantz LLP in Chicago. U.S. District Court for the Western District of Oklahoma Case number 5:16-cv-01150-R CHINACAST EDUCATION: Files Chapter 11 to Avert Class Action ----------------------------------------------------------- Andrew Scurria, writing for The Wall Street Journal, reports that ChinaCast Education Corp. took shelter in New York bankruptcy court from investors holding a $65.8 million judgment over the alleged corporate looting that brought down the now-defunct e- learning company. The Nov. 9 chapter 11 filing will allow ChinaCast to continue pursuing its former executives for alleged embezzlement and securities fraud while shielding it from a pending investor class- action lawsuit, Chief Financial Officer Douglas Woodrum said in court papers. Starting in 2012, allegations against ChinaCast's former top brass have sparked a tangle of litigation stretching across courts from Delaware to Hong Kong, including seven lawsuits filed by the company itself. Those cases revolve around ChinaCast founder Ron Chan Tze Ngon's alleged embezzlement, including a $120 million withdrawal from company accounts. The fraud allegations surfaced in 2012 and led Nasdaq to delist the company, which boasted a $200 million market capitalization at the time. The Securities and Exchange Commission sued Mr. Chan and an alleged accomplice in 2013 and kicked ChinaCast stock off the over-the-counter market last year. In a separate case in California, a group of shareholders are suing over losses from the alleged embezzlement, one in a string of accounting and disclosure debacles to hit U.S.-traded Chinese companies in recent years. The attorneys defending ChinaCast in the California suit quit in January over unpaid fees. On Nov. 22, a federal judge entered a $65.8 million default judgment against the company in favor of the investors. Shareholders are often barred from suing a company over corporate wrongdoing that also harmed the company. But the U.S. Court of Appeals for the Ninth Circuit last year allowed the plaintiffs to proceed, ruling that ChinaCast could be held responsible for Mr. Chan's actions under the circumstances. ChinaCast's bankruptcy plan proposes to treat the class action claims like stock, which is almost always erased in chapter 11, according to company Mr. Woodrum. T he company ran up $9.1 million in unpaid legal bills defending itself against its investors, leaving law firm Fried, Frank, Harris, Shriver & Jacobson as the largest creditor, he said. An attorney for the investors declined to comment on Nov.10. While ChinaCast has no secured debt, court papers show it borrowed $9.3 million from investors including Fir Tree Partners, Ashford Capital Management and Columbia Pacific Advisors to finance its lawsuits against Mr. Chan and others implicated in the alleged fraud. Mr. Woodrum said the company plans to establish a litigation trust "which will then continue pursuit of the recovery actions until completed." The alleged looting scandal is among the most prominent in a wave of accounting and disclosure problems at U.S.-traded Chinese companies that cost shareholders billions of dollars. In its wake, U.S. regulators took aim at Chinese affiliates of the largest global accounting firms for refusing to disclose information about their audits. Last year, Chinese units of the Big Four accounting firms paid $500,000 each to settle accusations that they had wrongly refused to hand over audit-work papers about Chinese clients under SEC investigation. ChinaCast's auditor, Deloitte Touche Tohmatsu, also faced a lawsuit from the company's shareholders, although a federal appeals court ruled in its favor in April. The law firm Klestadt Winters Jureller Southard & Stevens is representing ChinaCast in its chapter 11 case, which has been assigned to Judge Mary Kay Vyskocil of the U.S. Bankruptcy Court in Manhattan. CITIBANK NA: Stitt Appeals N.D. California Ruling to 9th Circuit ---------------------------------------------------------------- Plaintiffs Gloria Stitt, Ronald Stitt, Mark Zirlott and Terri Louise Zirlott filed an appeal from a court ruling in the lawsuit styled Gloria Stitt, et al. v. Citibank, N.A., et al., Case No. 4:12-cv-03892-YGR, in the U.S. District Court for the Northern District of California, Oakland. The appellate case is captioned as Gloria Stitt, et al. v. Citibank, N.A., et al., Case No. 16-17008, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on Oct. 10, 2016, U.S. District Judge Yvonne Gonzalez Rogers has cleared JPMorgan Chase and Citibank of claims they defrauded homeowners, who couldn't pay their mortgages during the Great Recession, bringing a contentious four-year battle (in two cases, including the Stitt Case) to a close. Judge Gonzalez Rogers ruled in two orders issued late on Oct. 5, that the Plaintiffs in two cases had failed to assert claims of fraud and unjust enrichment against Chase and Citibank over what the homeowners said were unjustified fees to inspect their homes after they went into foreclosure. According to Citibank, loan servicers are required to periodically inspect delinquent properties to ensure they're being maintained and to protect their value. The July 2012 suits brought by eight plaintiffs in Alabama, California, Oregon, Maryland, New York and Tennessee claimed that neither bank was authorized to charge the inspection fees, and that the banks misled them into believing the fees were valid. Both sets of plaintiffs also accused the banks of hiding the charges on their mortgage statements under vague titles like "miscellaneous fees" and "corporate advances." Judge Gonzalez Rogers refused to certify state and nationwide classes in the cases last year, leaving intact only the plaintiffs' individual fraud and unjust enrichment claims, among others. Those claims arose out of a combined $287.15 in inspection fees charged to the Chase plaintiffs and $310.50 charged to the Citi plaintiffs. In granting both banks' motions for summary judgment on the fraud claims, Judge Gonzalez Rogers found that the plaintiffs' assertions that Chase and Citibank misrepresented the fees were lacking as a matter of law. "This is an opinion of law not subject to a fraud claim," Judge Gonzalez Rogers said in both rulings. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 30, 2016; -- Transcript is due on December 30, 2016; -- Opening brief of Appellants Gloria Stitt, Ronald Stitt, Mark Zirlott and Terri Louise Zirlott is due on February 8, 2017; -- Appellees CitiMortgage, Inc. and Citibank, N.A.'s answering brief is due on March 10, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellants GLORIA STITT, RONALD STITT, MARK ZIRLOTT and TERRI LOUISE ZIRLOTT, individually, and on behalf of other members of the general public similarly situated, are represented by: Mark Philip Pifko, Esq. Daniel Alberstone, Esq. Roland Karim Tellis, Esq. BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Telephone: (818) 839-2333 E-mail: MPifko@baronbudd.com dalberstone@baronbudd.com rtellis@baronbudd.com - and - Philip F. Cossich, Jr., Esq. David A. Parsiola, Esq. COSSICH, SUMICH, PARSIOLA & TAYLOR LLC 8397 Highway 23 Belle Chasse, LA 70037 Telephone: (504) 394-9000 Facsimile: (504) 394-9110 E-mail: pcossich@cossichlaw.com dparsiola@cossichlaw.com Defendants-Appellees CITIBANK, N.A., a national association, and CITIMORTGAGE, INC., a New York corporation, are represented by: Debra Bogo-Ernst, Esq. Stephen Joseph Kane, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606-4637 Telephone: (312) 782-0600 Facsimile: (312) 706-8474 E-mail: dernst@mayerbrown.com skane@mayerbrown.com - and - John Nadolenco, Esq. MAYER BROWN LLP 350 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-5173 Facsimile: (213) 625-0248 E-mail: jnadolenco@mayerbrown.com COMENITY LLC: Faces TCPA Class Action in California --------------------------------------------------- Jenie Mallari-Torres, writing for Legal Newsline, reports that a California man alleges an Ohio corporation continues to call him in an attempt to collect a debt from an unknown individual. David Meske filed a complaint on behalf of himself and all others similarly situated on Nov. 1 in the U.S. District Court for the Central District of California against Comenity LLC alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that he has been receiving automated calls for years now on his cellular telephone from the defendant to contact an unknown individual. He alleges that he demanded that defendant cease calling him but the defendant continues to call him. The plaintiff holds Comenity LLC responsible because the defendant allegedly engaged in an unlawful practice of using an autodialer to place calls to cellular phones and without prior express consent to place the calls. The plaintiffs request a trial by jury and seek judgment against defendant, damages, injunctive and declaratory relief and other relief as the court deems just. He is represented by Lemberg Law LLC. U.S. District Court for the Central District of California Case number 2:16-cv-08118 CONTINENTAL AUTOMOTIVE: Conspired to Fix Prices, Suit Says ---------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Continental Automotive Electronics and Continental Automotive Korea conspired to fix prices on auto instrument panel clusters sold in Canada from 1998 to 2012, a class claims in Vancouver British Columbia Supreme Court. CORMEDIX INC: NJ Court Dismissed "Li" Amended Complaint ------------------------------------------------------- Cormedix Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on November 3, 2016, that the New Jersey Court has granted the Cormedix Defendants' Motion to Dismiss the Amended Complaint in the "Li" securities class action. The Company said, "on July 7, 2015, a putative class action lawsuit was commenced against our company and certain of our current and former officers in the United States District Court for the District of New Jersey, captioned Li v. Cormedix Inc., et al., Case 3:15-cv-05264 (the "Securities Class Action"). On September 4, 2015, two individuals, Shahm Martini and Paul Chretien (the "Martini Group"), filed a Motion to Appoint Lead Plaintiff. On that same date, another individual, Elaine Wood, filed a competing Motion to Appoint Lead Plaintiff. On September 18, 2015, the Martini Group withdrew its motion. Thereafter, on September 22, 2015, the Court appointed Elaine Wood as Lead Plaintiff and, on October 2, 2015, appointed the Rosen Law Firm as Lead Counsel." "On December 1, 2015, Lead Plaintiff filed an Amended Complaint asserting claims that our company and Steven Lefkowitz, Randy Milby and Harry O'Grady (the "Cormedix Defendants") violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder and Section 20(a) of the Exchange Act. The Amended Complaint also names as defendants several unrelated entities that allegedly were paid stock promoters. Lead Plaintiff alleges generally that the Cormedix Defendants made materially false or misleading statements and omissions concerning, among other things, the competitive landscape for our Neutrolin product and the alleged use of stock promoters. The Amended Complaint seeks unspecified damages, interest, attorneys' fees, and other costs. "On February 1, 2016, the Cormedix Defendants filed a motion to dismiss all claims asserted against them in the Amended Complaint on the grounds, among others, that the Amended Complaint fails to adequately allege: (1) material misstatements or omissions; (2) scienter by any of the Cormedix Defendants; or (3) loss causation. The Court heard oral argument on this motion on July 18, 2016 and took the matter under advisement. "In an order dated October 27, 2016, the Court granted the Cormedix Defendants' Motion to Dismiss and dismissed with prejudice the Amended Complaint. We intend to continue to vigorously defend this case." COSTCO WHOLESALE: DeCarlo Appeals S.D. Cal. Ruling to 9th Circuit ----------------------------------------------------------------- Plaintiff Jason DeCarlo filed an appeal from a court ruling in the lawsuit entitled Jason DeCarlo v. COSTCO, et al., Case No. 3:14- cv-00202-JAH-BLM, in the U.S. District Court for the Southern District of California, San Diego. As previously reported in the Class Action Reporter, the Case (Case No. 37-2013-00074221-CU-MC-CTL) was removed from the removed from the Superior Court of the state of California, County of San Diego, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:14-cv-00202-JAH-BLM to the proceeding. The complaint alleges that during eye examinations at the Defendant's retail locations, the examining optometrists obtain medical information from patients that the optometrists then provide to the Defendant's retail employees for nonmedical reasons without authorization. The Plaintiff alleges that this practice violates the Confidentiality of Medical Information Act, which prohibits the unauthorized disclosure of confidential medical information. The appellate case is captioned as Jason DeCarlo v. COSTCO, et al., Case No. 16-56602, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Jason DeCarlo's opening brief is due on February 3, 2017; -- Appellees Costco Wholesale Corporation and MBNR, Inc.'s answering brief is due on March 6, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant JASON DECARLO, individually and on behalf of all others similarly situated, is represented by: Brian Kabateck, Esq. KABATECK BROWN & KELLNER, LLP 644 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 217-5000 E-mail: bsk@kbklawyers.com - and - Kevin Frederick Quinn, Esq. Benjamin Israel Siminou, Esq. THORSNES BARTOLOTTA AND MCGUIRE 2550 Fifth Avenue, Suite 1100 San Diego, CA 92103-6625 Telephone: (619) 236-9363 Facsimile: (619) 236-9653 E-mail: quinn@tbmlawyers.com siminou@tbmlawyers.com Defendant-Appellee COSTCO WHOLESALE CORPORATION, a Washington Corporation, is represented by: David Frank McDowell, Jr., Esq. MORRISON & FOERSTER LLP 707 Wilshire Boulevard, Suite # 6000 Los Angeles, CA 90017 Telephone: (213) 892-5383 Facsimile: (213) 892-5454 E-mail: dmcdowell@mofo.com Defendant-Appellee MBNR, INC., a New Mexico corporation, is represented by: Martin D. Bern, Esq. MUNGER TOLLES & OLSON, LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4021 E-mail: Martin.Bern@mto.com COVISINT CORP: Hearing to Approve Settlement Set for Dec. 13 ------------------------------------------------------------ Covisint 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 hearing on Court approval of the settlement in the Desrocher class action lawsuit is scheduled for December 13, 2016. The Company said, "Beginning on May 30, 2014, two putative class actions were filed in the U.S. District Court for the Southern District of New York against us, our directors and former directors, and certain of our officers and former officers alleging violation of securities laws in connection with Covisint's initial public offering ("IPO") and seeking unspecified damages. These lawsuits were consolidated in the action entitled Desrocher v. Covisint Corporation, et al., No. 14-cv-03878 (the "Securities Class Action")." "On October 14, 2014, the lead plaintiff filed a consolidated class action complaint (the "Complaint") alleging violations of Regulation S-K and Sections 11 and 15 of the Securities Act. The Complaint alleges, among other things that the IPO's registration statement contained (1) untrue statements and omissions of material facts related to the Company's projected revenues for fiscal 2014, (2) materially inaccurate statements regarding the Company's revenue recognition policy, and (3) omissions of known trends, uncertainties and significant risk factors as required to be disclosed by Regulation S-K. "On May 5, 2016, the parties entered into a stipulation and agreement of settlement to dismiss all claims with prejudice and settle the Securities Class Action (the "Settlement"). The Settlement was reached after the Court denied defendants' motions to dismiss and granted class certification of a class of all persons who purchased the Company's stock in and/or traceable to the Company's IPO on or about September 26, 2013, seeking to pursue remedies under Section 11 and 15 of the Securities Act. "The Settlement, which is subject to Court approval, provides for a payment by the defendants of $8.0 million. The Company's uninsured portion of the settlement amount is $0.4 million, which was recorded as a liability as of March 31, 2016 and paid in July 2016. The hearing on Court approval of the Settlement is currently scheduled for December 13, 2016." Covisint provides a cloud platform for the development of identity-centric and Internet of Things solutions. CRICKET COMMUNICATIONS: Seeks Review of Decision in "Scott" Suit ---------------------------------------------------------------- Cricket Communications, LLC, filed an appeal from a court ruling in the lawsuit entitled Michael Scott v. Cricket Communications, LLC, Case Nos. 1:15-cv-03330-GLR and 1:15-cv-03759-GLR, in the U.S. District Court for the District of Maryland at Baltimore. The appellate case is captioned as Michael Scott v. Cricket Communications, LLC, Case No. 16-2300, in the United States Court of Appeals for the Fourth Circuit. As previously reported in the Class Action Reporter, District Judge George L. Russell, III, granted the Plaintiff's motions to remand and to strike new materials and arguments or for leave to file a surreply. Michael Scott filed a putative Class Action Complaint on September 24, 2015, in the Circuit Court for Baltimore City, Maryland (Scott I). Scott defines the class as "all Maryland citizens who, between July 12, 2013 and March 13, 2014, purchased a CDMA mobile telephone from Cricket which was locked for use only on Cricket's CDMA network." Scott raises a single claim for violation of the MMWA stemming from alleged breaches of express warranties and the implied warranties of merchantability and fitness for a particular purpose. The Scott I and Scott II were removed to the District Court. The briefing schedule in the Appellate Case is set as follows: -- Initial forms are due within 14 days; -- Opening Brief and Appendix is due on December 19, 2016; and -- Response Brief is due on January 20, 2017. Plaintiff-Appellee MICHAEL A. SCOTT, on behalf of himself and all others similarly situated, is represented by: Benjamin Howard Carney, Esq. Martin Eugene Wolf, Esq. GORDON & WOLF, CHTD 102 West Pennsylvania Avenue Towson, MD 21204-0000 Telephone: (410) 825-2300 Facsimile: (410) 825-0066 E-mail: bcarney@GWCfirm.com mwolf@gordon-wolf.com Defendant-Appellant CRICKET COMMUNICATIONS, LLC, f/k/a Cricket Communications, Inc., is represented by: Archis Ashok Parasharami, Esq. Charles Alan Rothfeld, Esq. Matthew A. Waring, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006-1101 Telephone: (202) 263-3233 Facsimile: (202) 263-5233 E-mail: aparasharami@mayerbrown.com crothfeld@mayerbrown.com mwaring@mayerbrown.com DETROIT, MI: Can Continue to Shut Water Service, 6th Cir. Says -------------------------------------------------------------- Lorraine Bailey, writing for Courthouse News Service, reported that Detroit can continue to shut off water service to residents unable to pay their water bills after the U.S. Court of Appeals for the Sixth Circuit ruled on November 14, there is no fundamental right to affordable water service. After Detroit filed for Chapter 9 bankruptcy protection in July 2013, the city began shutting off the water service of residents who failed to pay their bills. In 2015, Detroit shut off water service to more than 20,000 homes, depriving many low-income families with children of running water. A class of Detroit residents asked the bankruptcy court to issue a permanent injunction prohibiting Detroit from shutting off their water based on an asserted "right to water service at a price they can afford to pay." Plaintiff John Smith testified that the city terminated his water service for three to five months in early 2014. Plaintiff Nicole Hill said her water was shut off three different times between 2014 and 2016, and anticipates her water will be shut off a fourth time because she cannot afford her August water bill. However, a federal judge dismissed their suit, and the Sixth Circuit affirmed on November 14, that there is no cognizable property right to affordable water service. "A right of this nature is not rooted in our nation's traditions or implicit in the concept of ordered liberty," Judge Richard Griffin wrote for a three-judge panel. Due process requires only that Detroit's water rates reasonably reflect the cost of providing the service, not that the rate structure reflect the customers' ability to pay, the panel said. Further, Section 904 of the Bankruptcy Code explicitly prohibits the court from interfering with a municipality's exercise of governmental power. "Preliminary or permanent injunctions directing [the Detroit Water and Sewerage Department, or DWSD] to stop terminations or to provide water service -- including service at a specific price -- necessarily 'interfere[s] with' the city's 'governmental powers,' its 'property [and] revenues,' as well as its 'use [and] enjoyment of . . . income-producing property,'" Griffin said. "A declaration that DWSD's practices are illegal or unconstitutional does the same. Section 904 strips the bankruptcy court of authority to order anything of the sort." The Sixth Circuit said it was particularly loath to wade into the issue given the massive scope of Detroit's reorganization. At the time it filed bankruptcy, the city had $18 billion in debt, hundreds of millions of dollars in negative cash flow, and a failing water and sewer system. "The bankruptcy court bore responsibility for approving a plan of adjustment equally vast in its aim to remedy these conditions. Concerns for state sovereignty loom larger with so much at stake," Griffin said. The panel said it needed to preserve the delicate balance of state-federal sovereignty by ensuring that bankruptcy power cannot be used to indirectly dictate how a debtor city should be governed. DEX MEDIA: Kopp Appeals From Decision in "Fulmer" Class Suit ------------------------------------------------------------ Plaintiff Randy Kopp filed an appeal from a court ruling relating to the original lawsuit entitled Bruce Fulmer v. Scott Klein, et al., Case No. 3:09-CV-2354, in the U.S. District Court for the Northern District of Texas, Dallas. The appellate case is captioned as Bruce Fulmer v. Scott Klein, et al., Case No. 16-11590, in the U.S. Court of Appeals for the Fifth Circuit. As previously reported in the Class Action Reporter, on Dec. 10, 2009, Bruce Fulmer, a former Idearc Media employee, who has a history of litigation against the Company, individually and behalf of others allegedly similarly situated, filed a putative class action in the United States District Court for the Northern District of Texas (Dallas Division), against certain officers, directors and members of the Company's Executive Benefits Committee. The Plaintiff claims the Defendants breached fiduciary duties in violation of Employee Retirement Income Security Act in administrating various savings plans from November 17, 2006, to March 31, 2009, and seeks to recover losses to the plans. On April 1, 2010, Randy Kopp, another former Idearc Media employee filed a similar case, which has been consolidated with the Fulmer matter. The Plaintiffs originally alleged, among other claims, that the Defendants breached a duty of prudence, duty of loyalty, and duty to monitor by wrongfully allowing all the plans to invest in Idearc's common stock. In 2013, Dex One Corp., formerly known as R.H. Donnelley Corp., and SuperMedia Inc., formerly Idearc Inc., sought Chapter 11 bankruptcy protection to effectuate a merger. Plaintiff-Appellant RANDY KOPP, Individually and on Behalf of All Others Similarly Situated, is represented by: Roger F. Claxton, Esq. LAW OFFICE OF ROGER F. CLAXTON 10000 N. Central Expressway Dallas, TX 75231-0000 Telephone: (214) 969-9029 Facsimile: (214) 953-0583 E-mail: roger@claxtonlaw.com - and - Thomas James McKenna, Esq. GAINEY MCKENNA & EGLESTON 440 Park Avenue, S. New York, NY 10016 Telephone: (212) 983-1300 E-mail: tjmckenna@gme-law.com Defendants-Appellees SCOTT W. KLEIN, DONALD B. REED, STEPHEN L. ROBERTSON, THOMAS S. ROGERS, PAUL E. WEAVER, JOHN J. MUELLER, JERRY V. ELLIOT, SAMUEL D. JONES, KATHERINE J. HARLESS, EMPLOYEE BENEFITS COMMITTEE, GEORGIA SCAIFE, WILLIAM GIST, STEVEN GABERICH, CLIFFORD WILSON, BILLY MUNDY, ANDREW COTICCHIO, HUMAN RESOURCES COMMITTEE and JOHN DOES 1-20 are represented by: James Philip Gillespie, Esq. KIRKLAND & ELLIS, L.L.P. 655 15th Street, N.W. Washington, DC 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 E-mail: james.gillespie@kirkland.com - and - Andrew George Horne, Esq. KIRKLAND & ELLIS, L.L.P. 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 E-mail: andrew.horne@kirkland.com - and - Dee J. Kelly, Jr., Esq. KELLY, HART & HALLMAN, L.L.P. 201 Main Street Fort Worth, TX 76102 Telephone: (817) 332-2500 Facsimile: (817) 878-9280 E-mail: dee_kelly@khh.com DUNKIN' BRANDS: Estler Appeals S.D.N.Y. Judgment to 2nd Circuit --------------------------------------------------------------- Plaintiffs Thomas Estler, Steven Park and Blake Ruehrwein filed an appeal from a District Court judgment, dated October 5, 2016, in their lawsuit entitled Estler v. Dunkin' Brands, Inc., Case No. 16-cv-932, in the U.S. District Court for the Southern District of New York (New York City). The appellate case is captioned as Estler v. Dunkin' Brands, Inc., Case No. 16-3762, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter on Oct. 10, 2016, Judge Lorna G. Schofield granted the Defendants' motions to dismiss the First Amended Complaint in the Case. Thomas Estler, Blake Ruehrwein, and Steven Park, commenced the purported class action lawsuit asserting claims arising from an alleged unlawful surcharge, disguised as a "sales tax," on prepackaged coffee at Dunkin' Donuts stores in New York City. Plaintiffs asserted claims for breach of contract, unjust enrichment, negligence, fraud, and violations of New York General Business Law section 349. The defendants are Dunkin' Brands, Inc., four named Dunkin' Donuts stores, and 500 unnamed Dunkin' Donuts stores in New York. Judge Schofield dismissed the complaint because the Court lacks subject matter jurisdiction to hear the claims asserted. At its heart, the case concerns a New York State sales tax that the plaintiffs alleged was improperly charged. Judge Schofield pointed out that New York law is clear that section 1139 provides the exclusive remedy for the refund of any tax "erroneously, illegally or unconstitutionally collected," and federal district courts in New York have found that the administrative remedy set forth in section 1139 is the exclusive remedy. Plaintiffs-Appellants Thomas Estler, Blake Ruehrwein and Steven Park, On behalf of themselves and all others similarly situated, are represented by: Zachary J. Liszka, Esq. MAYER LAW GROUP LLC 1180 Avenue of the Americas New York, NY 10036 Telephone: (347) 762-5131 E-mail: zachliszka@gmail.com Defendant-Appellee Dunkin' Brands, Inc., is represented by: Ronald David Degen, Esq. O'ROURKE & DEGEN, PLLC 225 Broadway New York, NY 10007 Telephone: (212) 227-4530 Facsimile: (212) 385-9813 E-mail: rdegen@odlegal.com - and - Eric L. Yaffe, Esq. GRAY PLANT MOOTY MOOTY & BENNETT, P.A. 600 New Hampshire Avenue, NW The Watergate Washington, DC 20037 Telephone: (202) 295-2200 E-mail: eric.yaffe@gpmlaw.com Defendants-Appellees Dunkin' Donuts Store, #350125; Dunkin' Donuts Store, #350126; and Dunkin' Donuts Store, #350127, are represented by: Christopher G. Kelly, Esq. HOLLAND & KNIGHT LLP 31 West 52nd Street New York, NY 10019 Telephone: (212) 513-3200 E-mail: christopher.kelly@hklaw.com Defendant-Appellee Dunkin' Donuts Store, #345768, is represented by: Joanne Marie Frasca Wilcome, Esq. PARIS ACKERMAN & SCHMIERER, LLP 320 West 37th Street New York, NY 10036 Telephone: (973) 228-4909 E-mail: Joanne@paslawfirm.com DYNAVAX TECHNOLOGIES: Class Action Filed After Stocks Fell ---------------------------------------------------------- Courthouse News Service reported that Dynavax Technologies stock fell from $11.60 to $4.10 this month after its hepatitis drug Heplisav-B was found to be dangerous, shareholders claim in two federal class actions. EAGLE ROAD: Oklahoma Residents File Class Action Over Quakes ------------------------------------------------------------ Justin Juozapavicius and Tim Talley, writing for The Associated Press, report that residents of a town hit by Oklahoma's strongest earthquake have filed a class-action lawsuit against dozens of energy companies, accusing them of triggering destructive temblors by injecting wastewater from oil and natural gas production underground. Pawnee residents filed the suit on Nov. 17 in district court against 27 companies, saying they operate wastewater injection wells even though they know the method causes earthquakes. The lawsuit seeks an unspecified amount for property damage and reduced value, plus emotional distress. A magnitude 5.8 earthquake struck the town of about 2,200 in September and the lawsuit claims 52 more have hit the area since. On Nov. 6, a magnitude 5.0 quake damaged dozens of buildings in nearby Cushing, a town that is home to one of the world's largest oil hubs. Oklahoma has had thousands of earthquakes in recent years, with nearly all traced to underground wastewater disposal. Some scientists say that the high-pressure injection of massive amounts of chemical-laced wastewater deep in the earth induces the quakes. Regulators have asked oil and gas producers to either close injection wells or reduce the volume of fluids they inject. Residents and environmental groups in neighboring states have sued energy companies curb or stop similar operations. Quakes in north central Arkansas all but stopped after the Arkansas Oil and Gas Commission voted to ban wells for the disposal of natural gas drilling fluids in July 2011. In 2014, a Prague, Oklahoma, resident sued two companies on the same grounds after a magnitude 5.6 temblor rattled her town in 2011. Two of the companies identified in the Pawnee lawsuit, Eagle Road Oil, LLC and Cummings Oil Company, did not immediately return messages seeking comment on Nov. 18. The other 25 companies were not identified in the suit. The lawsuit claims that companies are showing "reckless disregard for public or private safety," by continuing to operate the injection wells in the area. "We have clients who don't allow their children to go upstairs because they're afraid the roof will fall in on them," said Curt Marshall, an attorney for the residents. "There's a lot of fear; when is the next big one?" Mr. Marshall estimated that hundreds of homes in Pawnee have been affected by the quakes, sustaining damage ranging from cracks in walls, foundations and storm shelters to short-circuited electrical outlets. A 2015 study by the U.S. Geological Survey suggested that Oklahoma's industrial activities, such as natural gas and oil production, have caused the sharp rise in earthquakes in the past 100 years. Despite the criticism of wastewater disposal, Oklahoma oil and gas producers said on Nov. 18 they are enthusiastic about new drilling opportunities in two recently discovered oil-and-gas rich sites in south-central Oklahoma that don't produce large amounts of wastewater. The South Central Oklahoma Oil Province, centered in three counties southwest of Oklahoma City, and the Sooner Trend Anadarko Basin Canadian and Kingfisher Counties west of Oklahoma City, are among the nation's largest oil and gas fields. EDUCATIONAL TESTING: Ellinghaus Appeals From E.D.N.Y. Judgment -------------------------------------------------------------- Plaintiffs Julia Ellinghaus, Debra Rubin Pataky, John Pataky and Mary Jane Whalen filed an appeal from the District Court's opinion and judgment, both dated September 30, 2016, and entered in the lawsuit entitled Ellinghaus v. Educational Testing Service, Case No. 15-cv-3442, in the U.S. District Court for the Eastern District of New York (Central Islip). The appellate case is captioned as Ellinghaus v. Educational Testing Service, Case No. 16-3691, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter, a typo in the June 6, 2015 SAT test has brought three nationwide class actions against the Educational Testing Service and The College Board, which had to throw out results from the test section. The typo told students they had 25 minutes for one test section, though they should have had only 20 minutes. Some proctors caught the error and gave the students only 20 minutes, but some gave them 25 minutes. The Plaintiffs-Appellants are represented by: Bradley K. King, Esq. ADHOOT & WOLFSON, PC 1016 Palm Avenue Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: bking@ahdootwolfson.com - and - Richard J. Lantinberg, Esq. THE WILNER FIRM 444 East Duval Street Jacksonville, FL 32202 Telephone: (904) 446-9817 Facsimile: (904) 446-9825 E-mail: Rlantinberg@wilnerfirm.com - and - Janine Pollack, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4710 Facsimile: (212) 686-0114 E-mail: pollack@whafh.com - and - Ariana J. Tadler, Esq. MILBERG LLP 1 Penn Plaza New York, NY 10119 Telephone: (212) 946-9453 Facsimile: (212) 868-1229 E-mail: atadler@milberg.com - and - Jasper D. Ward, IV, Esq. JONES WARD PLC 312 South 4th Street Louisville, KY 40202 Telephone: (502) 882-6000 Facsimile: (502) 587-2007 E-mail: jasper@jonesward.com - and - Paul C. Whalen, Esq. LAW OFFICES OF PAUL C. WHALEN, P.C. 768 Plandome Road Manhasset, NY 11030 Telephone: (516) 426-6870 Facsimile: (212) 658-9685 E-mail: pcwhalen@gmail.com Defendants-Appellees Educational Testing Service and The College Board are represented by: Alan E. Schoenfeld, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 937-7294 Facsimile: (212) 230-8888 E-mail: alan.schoenfeld@wilmerhale.com ENERGY RECOVERY: Reached Settlement of Stockholders' Action ----------------------------------------------------------- Energy Recovery, 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 reached an agreement in principle to settle all outstanding claims in a class action lawsuit. On January 20 and 27, 2015, two stockholder class action complaints were filed against the Company in the United States District Court of the Northern District of California, on behalf of Energy Recovery stockholders under the captions, Joseph Sabatino v. Energy Recovery, Inc. et al., Case No. 3:15-cv-00265 EMC, and Thomas C. Mowdy v. Energy Recovery, Inc, et al., Case No. 3:15-cv-00374 EMC. The complaints have now been consolidated under the caption, In Re Energy Recovery Inc. Securities Litigation, Case No. 3:15-cv-00265 EMC. The consolidated complaint alleges violations of Section 10(b), Rule 10b-5, and Section 20(a) of the Securities Exchange Act of 1934 based upon alleged public misrepresentations and seeks the recovery of unspecified monetary damages. On October 12, 2016, the Company and the attorneys representing the class reached an agreement in principle to settle all outstanding claims in the case. As part of the settlement agreement, the Company has agreed to pay the class an undisclosed sum, the entirety of which will be borne by the Company's insurer. The settlement agreement is subject to approval by the United States District Court of the Northern District of California. The Company is an energy solutions provider to industrial fluid flow markets worldwide. ENTRUST ENERGY: Faces "Henderson" Suit Alleging FLSA Violation -------------------------------------------------------------- CHRISTOPHER HENDERSON, individually, and on behalf of ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. ENTRUST ENERGY INC., Defendant, Case No. 4:16-cv-03366 (S.D. Tex., November 15, 2016), seeks to recover alleged unpaid overtime wages for hours worked while performing commission only sales duties and off the clock work performed for Defendant under the Fair Labor Standards Act. The proposed "Putative Class" are current and former employees of Defendant who work, or have worked, for Defendant as "Sales Managers" and "Sales Associates" and whose job duties included door to door energy sales to potential customers, training employees on door to door energy sales and supervising employees who engaged in door to door energy sales. Entrust Energy, Inc. provides electricity and natural gas to residential customers in Texas, Illinois, Maryland, New York, Ohio, and Pennsylvania. The Plaintiff is represented by: Taft L. Foley, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 E-mail: Taft.Foley@thefoleylawfirm.com ENVISION HEALTHCARE: Stipulation to Dismiss OT Claims Filed ----------------------------------------------------------- Envision Healthcare Holdings, 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 counsel in the "Banta" class action has filed a stipulation requesting that the Court decertify and dismiss the overtime claims. Four different putative class action lawsuits were filed against American Medical Response, Inc., and certain subsidiaries in California alleging violations of California wage and hour laws. On April 16, 2008, Laura Bartoni commenced a suit in the Superior Court for the State of California, County of Alameda; on July 8, 2008, Vaughn Banta filed suit in the Superior Court of the State of California, County of Los Angeles; on January 22, 2009, Laura Karapetian filed suit in the Superior Court of the State of California, County of Los Angeles; and on March 11, 2010, Melanie Aguilar filed suit in Superior Court of the State of California, County of Los Angeles. The Banta, Aguilar and Karapetian cases have been coordinated in the Superior Court for the State of California, County of Los Angeles, and the Aguilar and Karapetian cases have subsequently been consolidated into a single action. In these cases, the plaintiffs allege principally that the AMR entities failed to pay wages, including overtime wages, in compliance with California law, and failed to provide required meal breaks, rest breaks or pay premium compensation for missed breaks. The plaintiffs are seeking to certify classes on these claims and are seeking lost wages, various penalties, and attorneys' fees under California law. While certification of the rest period claims in the consolidated Karapetian/ Aguilar case was denied, the Court certified classes on claims alleging that AMR has not provided meal periods in compliance with the law as to dispatchers and call takers, that AMR has an unlawful time rounding policy, and that AMR has an unlawful practice of setting rates for those employees. On October 13, 2015, the Court decertified all classes in the Karapetian/ Aguilar case, a decision that is being appealed. In the Banta case, the Court denied certification of the meal and rest period claims as to EMTs and paramedics, a decision that plaintiff's counsel appealed. The appeal was denied because of the pendency of other class and representative claims in the case. The Court indicated that it would certify a class on overtime claims; however, in July 2016, Banta's counsel filed a stipulation requesting that the Court decertify and dismiss the overtime claims. In the Bartoni case, the Court denied certification on the meal and rest period claims of all unionized employees in Northern California, a decision that is being appealed; while the Court certified a class on the overtime claims, plaintiffs' counsel stipulated to decertify and dismiss those claims as AMR's policy complies with a recent Court of Appeals decision. The Company is unable at this time to estimate the amount of potential damages, if any. The Company's business is conducted primarily through two operating subsidiaries, EmCare Holdings, Inc. ("EmCare"), its facility-based and post-acute care physician services segment, and American Medical Response, Inc., including its affiliates ("AMR"), its healthcare transportation services segment. ENVISION HEALTHCARE: Defending Against "Anderson" Merger Suit ------------------------------------------------------------- Envision Healthcare Holdings, 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 time for defendants to move or answer with respect to the amended complaint in the case, Anderson v. Sanger et al., has not yet expired. On June 15, 2016, the Company, AmSurg Corp., a Tennessee corporation ("AmSurg"), and New Amethyst Corp., a newly formed Delaware corporation and a direct, wholly-owned subsidiary of AmSurg ("New Amethyst"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which the Company and AmSurg will combine in an all-stock merger of equals. Upon the terms and subject to the conditions set forth in the Merger Agreement, AmSurg will merge with and into New Amethyst ("Merger 1"), with New Amethyst continuing as the surviving corporation, immediately after which the Company will merge with and into New Amethyst ("Merger 2" and together with Merger 1, the "Mergers"), with New Amethyst continuing as the surviving corporation. Upon the closing of the Mergers, the name of the combined company will be changed to "Envision Healthcare Corporation". Following the announcement of the proposed Mergers, a purported stockholder of the Company filed a putative stockholder class action lawsuit against the members of the Company's Board and Barclays PLC in the Court of Chancery of the state of Delaware on July 15, 2016. The case is captioned Anderson v. Sanger et al., C.A.No. 12561-CB (Del. Ch.). On September 22, 2016, the plaintiff filed an amended complaint, which alleges that the members of Envision Healthcare's Board violated their fiduciary duties in connection with the proposed Mergers and that Barclays PLC aided and abetted those breaches. Among other remedies, the plaintiff seeks to enjoin the Mergers from proceeding or, alternatively, damages in the event the Mergers are consummated. The time for defendants to move or answer with respect to the amended complaint has not yet expired. The Company believes this lawsuit is without merit and intends to defend the lawsuit vigorously. The Company's business is conducted primarily through two operating subsidiaries, EmCare Holdings, Inc. ("EmCare"), its facility-based and post-acute care physician services segment, and American Medical Response, Inc., including its affiliates ("AMR"), its healthcare transportation services segment. ENVISION HEALTHCARE: Defending Against "Voth" Merger Suit --------------------------------------------------------- Envision Healthcare Holdings, 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 time for defendants to move or answer with respect to the "Voth" class action complaint has not yet expired. On June 15, 2016, the Company, AmSurg Corp., a Tennessee corporation ("AmSurg"), and New Amethyst Corp., a newly formed Delaware corporation and a direct, wholly-owned subsidiary of AmSurg ("New Amethyst"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which the Company and AmSurg will combine in an all-stock merger of equals. Upon the terms and subject to the conditions set forth in the Merger Agreement, AmSurg will merge with and into New Amethyst ("Merger 1"), with New Amethyst continuing as the surviving corporation, immediately after which the Company will merge with and into New Amethyst ("Merger 2" and together with Merger 1, the "Mergers"), with New Amethyst continuing as the surviving corporation. Upon the closing of the Mergers, the name of the combined company will be changed to "Envision Healthcare Corporation". On August 31, 2016, a purported Envision Healthcare stockholder filed a putative stockholder class action against Envision, the members of Envision Healthcare's Board, AmSurg and New Amethyst in the United States District Court for the District of Colorado. The case is captioned Voth v. Envision Healthcare Holdings, Inc. et al., No. 1:16-cv-02213 (D. Colo.). The lawsuit alleges that Envision Healthcare and the members of Envision Healthcare's Board violated Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by disseminating a false and misleading registration statement in connection with the proposed Mergers and that the members of Envision Healthcare's Board, AmSurg and New Amethyst violated Section 20(a) of the Exchange Act by virtue of their purported status as controlling persons of Envision Healthcare. Among other remedies, the plaintiff seeks to enjoin the Mergers from proceeding or, alternatively, rescission of the Mergers or damages in the event the Mergers are consummated. On September 30, 2016, the plaintiff filed a motion for expedited discovery. On October 20, 2016, the plaintiff filed a notice of withdrawal of the motion for expedited discovery, and on October 21, 2016, the Court denied the motion as moot. The time for defendants to respond to the motion or to move or answer with respect to the complaint has not yet expired. The Company believes this lawsuit is without merit and intends to defend the lawsuit vigorously. The Company's business is conducted primarily through two operating subsidiaries, EmCare Holdings, Inc. ("EmCare"), its facility-based and post-acute care physician services segment, and American Medical Response, Inc., including its affiliates ("AMR"), its healthcare transportation services segment. ENVISION HEALTHCARE: Defending Against "LeMay" Merger Suit ---------------------------------------------------------- Envision Healthcare Holdings, 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 time for defendants to move or answer with respect to the LeMay class action complaint has not yet expired. On June 15, 2016, the Company, AmSurg Corp., a Tennessee corporation ("AmSurg"), and New Amethyst Corp., a newly formed Delaware corporation and a direct, wholly-owned subsidiary of AmSurg ("New Amethyst"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which the Company and AmSurg will combine in an all-stock merger of equals. Upon the terms and subject to the conditions set forth in the Merger Agreement, AmSurg will merge with and into New Amethyst ("Merger 1"), with New Amethyst continuing as the surviving corporation, immediately after which the Company will merge with and into New Amethyst ("Merger 2" and together with Merger 1, the "Mergers"), with New Amethyst continuing as the surviving corporation. Upon the closing of the Mergers, the name of the combined company will be changed to "Envision Healthcare Corporation". On September 8, 2016, a purported Envision Healthcare stockholder filed a putative stockholder class action against Envision, the members of Envision Healthcare's Board, AmSurg and New Amethyst in the United States District Court for the District of Colorado. The case is captioned LeMay v. Envision Healthcare Holdings, Inc. et al., No. 1:16-cv-02265 (D. Colo.). The lawsuit alleges that Envision Healthcare and the members of Envision Healthcare's Board violated Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by disseminating a false and misleading registration statement in connection with the proposed Mergers and that the members of Envision Healthcare's Board, AmSurg and New Amethyst violated Section 20(a) of the Exchange Act by virtue of their purported status as controlling persons of Envision. Among other remedies, the plaintiff seeks to enjoin the Mergers from proceeding or, alternatively, rescission of the Mergers or damages in the event the Mergers are consummated. The time for defendants to move or answer with respect to the complaint has not yet expired. The Company believes this lawsuit is without merit and intends to defend the lawsuit vigorously. The Company's business is conducted primarily through two operating subsidiaries, EmCare Holdings, Inc. ("EmCare"), its facility-based and post-acute care physician services segment, and American Medical Response, Inc., including its affiliates ("AMR"), its healthcare transportation services segment. ESPERION THERAPEUTICS: Bid to Dismiss "Dougherty" Action Underway ----------------------------------------------------------------- Esperion Therapeutics, 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's motion to dismiss a class action by Kevin L. Dougherty remains pending. On January 12, 2016, a purported stockholder of the Company filed a putative class action lawsuit in the United States District Court for the Eastern District of Michigan, against the Company and Tim Mayleben, captioned Kevin L. Dougherty v. Esperion Therapeutics, Inc., et al. (No. 16-cv-10089). An amended complaint was filed on May 20, 2016. The amended complaint alleges that the Company and Mr. Mayleben violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 by allegedly failing to disclose in an August 17, 2015, public statement that the Food and Drug Administration would require a cardiovascular outcomes trial before approving the Company's lead product candidate. The lawsuit seeks, among other things, compensatory damages in connection with an allegedly inflated stock price between August 18, 2015, and September 28, 2015, as well as attorneys' fees and costs. On July 5, 2016, the Company filed a motion to dismiss the amended complaint. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of this matter and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. Esperion is a pharmaceutical company focused on developing and commercializing oral therapies for the treatment of patients with elevated low density lipoprotein cholesterol, or LDL-C. ETSY INC: "Altayyar" Suit in Early Stages ----------------------------------------- Etsy, 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 "Altayyar" class action lawsuit is in the early stage of the litigation. On May 13, 2015, a purported securities class action complaint (Altayyar v. Etsy, Inc., et al., Docket No. 1:15-cv-02785) was filed in the United States District Court for the Eastern District of New York against the Company and certain officers. The complaint was brought on behalf of a purported class consisting of all persons or entities who purchased or otherwise acquired shares of the Company's common stock from April 16, 2015 through and including May 10, 2015. It asserted violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 based on allegedly false or misleading statements and omissions with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. On October 22, 2015, the court appointed a lead plaintiff and lead plaintiff's counsel. On January 21, 2016, the lead plaintiff filed an amended class action complaint alleging false or misleading statements or omissions with respect to substantially the same topics as the original complaint. The amended complaint adds certain outside directors and underwriters as defendants, expands the purported class period to be April 16, 2015 to August 4, 2015, inclusive, and asserts violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, as well as Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The amended complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. The Company and the named officers and directors intend to defend themselves vigorously against this action. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of this matter and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. Etsy operates markets where people around the world connect, both online and offline, to make, sell and buy unique goods. ETSY INC: Cervantes-Weiss Suit Remains Stayed --------------------------------------------- Etsy, 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 Cervantes and Weiss consolidated action remains stayed. On July 21, 2015, a purported securities class action complaint (Cervantes v. Dickerson, et.al., Case No. CIV 534768) was filed in the Superior Court of State of California, County of San Mateo, against the Company, certain officers, directors and underwriters. The complaint asserts violations of Sections 11 and 15 of the Securities Act of 1933. As in the Altayyar litigation, the complaint alleges misrepresentations in the Company's Registration Statement on Form S-1 and Prospectus with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. The complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. On November 5, 2015, another purported securities class action complaint (Weiss v. Etsy et al., No. CIV 536123) was filed in the Superior Court of State of California, County of San Mateo. The Weiss complaint names as defendants the Company and the same officers, directors and underwriters named in the Cervantes complaint, and also asserts violations of Sections 11 and 15 of the Securities Act of 1933 based on allegedly false or misleading statements or omissions with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. On December 24, 2015, the court consolidated the Cervantes and Weiss actions. The Company and the named officers and directors intend to defend themselves vigorously against these consolidated actions. On February 3, 2016, the court granted the Company's motion to stay the consolidated actions. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of this matter and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. Etsy operates markets where people around the world connect, both online and offline, to make, sell and buy unique goods. EVERYDAY HEALTH: Faces "Hanson" Securities Suit Over Ziff Merger ---------------------------------------------------------------- RYAN HANSON, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. EVERYDAY HEALTH, INC., DOUG MCCORMICK, BEN WOLIN, HABIB KAIROUZ, DAVID GOLDEN, SHARON WIENBAR, MYRTLE POTTER, DANA EVAN, and LAIZER KORNWASSER, Defendants, Case No. 1:16-cv- 08847 (S.D.N.Y., November 15, 2016), is a securities class action in connection with the proposed merger of Everyday Health with Ziff Davis, LLC. EVERYDAY HEALTH, INC. develops and operates digital marketing and communications platforms for healthcare marketers seeking to engage consumers and healthcare professionals by providing health and wellness content through websites, mobile applications, and social media. The Plaintiff is represented by: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Fl. New York, NY 10118 Phone: (212) 971-1341 Fax: (212) 601-2610 E-mail: jmonteverde@monteverdelaw.com FACEBOOK INC: Class C Reclassification Litig. Still Pending ----------------------------------------------------------- Facebook, 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 continues to defend against the case, In re Facebook, Inc. Class C Reclassification Litig. The Company said, "On April 27, 2016, we announced a proposal to create a new class of non-voting capital stock (Class C capital stock) and our intention to declare and pay a dividend of two shares of Class C capital stock for each outstanding share of Class A and Class B common stock (the Reclassification). Following our announcement of the Reclassification, beginning on April 29, 2016, multiple purported class action lawsuits were filed on behalf of our stockholders in the Delaware Court of Chancery against us, certain of our board of directors, and Mark Zuckerberg. The lawsuits have been consolidated under the caption In re Facebook, Inc. Class C Reclassification Litig., C.A. No. 12286-VCL, and the consolidated complaint generally alleges that the defendants breached their fiduciary duties in connection with the Reclassification. Among other remedies, these lawsuits seek to enjoin the Reclassification as well as unspecified money damages, costs, and attorneys' fees. We believe that the lawsuits are without merit and intend to vigorously defend against all claims asserted." "In April 2016, our board of directors approved the Reclassification by approving amendments to our restated certificate of incorporation (the New Certificate) that would, among other things, create non-voting Class C capital stock. The Class C capital stock will have the same rights and powers, rank equally (including as to dividends and distributions, mergers or similar business combinations, and in connection with any liquidation, dissolution or winding up of the corporation), share ratably and be identical in all other respects and as to all matters to the shares of Class A and Class B common stock, except for voting rights and as expressly provided in the New Certificate. The New Certificate was approved by our stockholders on June 20, 2016. As of September 30, 2016, the New Certificate was not yet effective. "As part of the Reclassification, we announced that our board of directors intends to issue two shares of the Class C capital stock as a one-time stock dividend for each share of Class A and Class B common stock outstanding. The record and payment dates for this dividend will be determined by our board of directors in its discretion and there can be no assurance as to the timing of such dates. For accounting purposes, we expect this dividend will be treated as a stock split in the form of a dividend." FEDCHOICE FEDERAL: Appeals Ruling in "Horton" Suit to 3rd Cir. -------------------------------------------------------------- Fedchoice Federal Credit Union filed an appeal from a court ruling in the lawsuit titled Sheila Horton v. Fedchoice Federal Credit Union, Case No. 2-16-cv-00318, in the United States District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, Plaintiff seeks monetary damages, restitution and injunctive relief arising from the Defendants' alleged breach of contract with customers for implementing an overdraft fee program. The Defendant is a Maryland based credit union with approximately $350 million in assets that provides banking services to over 25,000 members through branches in Pennsylvania, Washington D.C., New Jersey, Delaware, Maryland, Virginia and West Virginia. The appellate case is captioned as Sheila Horton v. Fedchoice Federal Credit Union, Case No. 16-3960, in the United States Court of Appeals for the Third Circuit. Plaintiff-Appellee SHEILA HORTON, Individually and on behalf of all others similarly situated, is represented by: Richard D. McCune, Esq. MCCUNEWRIGHT LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: rdm@mccunewright.com - and - Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. CHIMICLES & TIKELLIS LLP 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E-mail: JGS@chimicles.com MDS@chimicles.com Defendant-Appellant FEDCHOICE FEDERAL CREDIT UNION is represented by: Ashley L. Beach, Esq. Samuel W. Cortes, Esq. FOX ROTHSCHILD LLP 747 Constitution Drive, Suite 100 Exton, PA 19341 Telephone: (610) 458-7500 Facsimile: (610) 458-7337 E-mail: abeach@foxrothschild.com scortes@foxrothschild.com - and - John M. Bredehoft, Esq. KAUFMAN & CANOLES, P.C. 150 West Main Street P.O. Box 3037 Norfolk, VA 23514 Telephone: (757) 624-3225 Facsimile: (888) 360-9092 E-mail: jmbredehoft@kaufcan.com FERRARA CANDY: Faces "Herrera" Suit Under FLSA, Ill. Wage Laws -------------------------------------------------------------- Carmen Herrera, Gonzalo Ruiz, Jesus Licea Ibanez, and Concepcion Gomez individually and on behalf of other employees similarly situated, Plaintiffs v. Ferrara Candy Company, Defendant, Case No. 1:16-cv-10627 (N.D. Ill., November 15, 2016), alleges willful and reckless companywide practices that have denied hundreds of Ferrara employees their earned overtime and living wages in violation of the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. Ferrara Candy Company is a non-union producer of popular candies that operates facilities in Forest Park, Bellwood, and Bolingbrook, Illinois with headquarters in Oakbrook Terrace, Illinois. The Plaintiff is represented by: Valentin T. Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Phone: 312-878-1302 FINANCIAL RECOVERY: Jewsevskyj Seeks Review of E.D. Pa. Ruling -------------------------------------------------------------- Alexandra Jewsevskyj filed an appeal from a court ruling in the lawsuit entitled Alexandra Jewsevskyj v. Financial Recovery Services Inc., et al., Case No. 2-15-cv-03041, in the U.S. District Court for the Eastern District of Pennsylvania. The nature of suit is stated as consumer credit. The appellate case is captioned as Alexandra Jewsevskyj v. Financial Recovery Services Inc., et al., Case No. Case No. 16- 4086, in the United States Court of Appeals for the Third Circuit. Plaintiff-Appellant ALEXANDRA JEWSEVSKYJ, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, is represented by: Cary L. Flitter, Esq. Andrew M. Milz, Esq. FLITTER MILZ, P.C. 450 N. Narberth Avenue, Suite 101 Narberth, PA 19072 Telephone: (610) 822-0782 E-mail: cflitter@consumerslaw.com amilz@consumerslaw.com Defendants-Appellees FINANCIAL RECOVERY SERVICES INC., LVNV FUNDING LLC, RESURGENT CAPITAL SERVICES and ALEGIS GROUP LLC are represented by: Ronald M. Metcho, II, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 2000 Market Street, Suite 2300 Philadelphia, PA 19103 Telephone: (215) 575-2595 Facsimile: (215) 575-0856 E-mail: rmmetcho@mdwcg.com FIRST SOLAR: Pension Schemes' Appeal Remains Pending ---------------------------------------------------- First Solar, 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 Arizona District Court has entered a stay of the the Pension Schemes proceedings in district court until the the Pension Schemes appeal is decided. On March 15, 2012, a purported class action lawsuit titled Smilovits v. First Solar, Inc., et al., Case No. 2:12-cv-00555- DGC, was filed in the United States District Court for the District of Arizona (hereafter "Arizona District Court") against the Company and certain of our current and former directors and officers. The complaint was filed on behalf of persons who purchased or otherwise acquired the Company's publicly traded securities between April 30, 2008 and February 28, 2012 (the "Class Action"). The complaint generally alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making false and misleading statements regarding the Company's financial performance and prospects. The action includes claims for damages, including interest, and an award of reasonable costs and attorneys' fees to the putative class. The Company believes it has meritorious defenses and will vigorously defend this action. On July 23, 2012, the Arizona District Court issued an order appointing as lead plaintiffs in the Class Action the Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme (collectively "Pension Schemes"). The Pension Schemes filed an amended complaint on August 17, 2012, which contains similar allegations and seeks similar relief as the original complaint. Defendants filed a motion to dismiss on September 14, 2012. On December 17, 2012, the court denied defendants' motion to dismiss. On October 8, 2013, the Arizona District Court granted the Pension Schemes' motion for class certification, and certified a class comprised of all persons who purchased or otherwise acquired publicly traded securities of the Company between April 30, 2008 and February 28, 2012 and were damaged thereby, excluding defendants and certain related parties. Merits discovery closed on February 27, 2015. Defendants filed a motion for summary judgment on March 27, 2015. On August 11, 2015, the Arizona District Court granted defendants' motion in part and denied it in part, and certified an issue for immediate appeal to the Ninth Circuit Court of Appeals (the "Ninth Circuit"). First Solar filed a petition for interlocutory appeal with the Ninth Circuit, and that petition was granted on November 18, 2015. On May 20, 2016, the Pension Schemes moved to vacate the order granting the petition, dismiss the appeal, and stay the merits briefing schedule. Briefing on the Pension Schemes' motion is now complete. The Arizona District Court has entered a stay of the proceedings in district court until the appeal is decided. "Given the pending appeal, the need for further expert discovery, and the uncertainties of trial, we are not in a position to assess whether any loss or adverse effect on our financial condition is probable or remote or to estimate the range of potential loss, if any," the Company said. First Solar is a global provider of comprehensive photovoltaic ("PV") solar energy solutions. FORD MOTOR: Faces Class Action Over Sudden Acceleration Incidents ----------------------------------------------------------------- Kyla Asbury, writing for West Virginia Record, reports that sixteen individuals are suing Ford Motor Company in a class action lawsuit after they claim their Ford vehicles were prone to sudden acceleration incidents that caused them damages and injuries. Timothy Hill, Ricky Vasquez, Harold Schade, Debra Schade, Edward Numrych, Frank Henry, Alberta Tinsley-Talabi, Audrey Ann larkin, Thomas Hunt, Frantz Charles, Arlie Hamilton, Gary Surgeon, Bridgette Surgeon, Patricia Mae Camp, Jessica Dealey and Nathan Lewis owned Ford vehicles that experienced sudden, unintended acceleration incidents that caused them injuries, according to a complaint filed Oct. 18 in the U.S. District Court for the Southern District of West Virginia. The vehicles would accelerate suddenly and dangerous out of the drivers' control and lacked readily available appropriate fail-safes to prevent this, according to the suit. The plaintiffs claim they saw advertisements for and representations about Ford vehicles on television, in magazines, on billboards, in dealership brochures, window stickers and on the Internet that they recall safety and reliability being frequent themes across the advertisements. Those advertisements about safety and reliability influenced their decisions to purchase their Ford vehicles and had those advertisements and any other materials not omitted that Ford vehicles could accelerate suddenly and out of the driver's control and lacked readily available appropriate fail-safes to prevent this, they would not have purchased their Ford vehicles, according to the suit. The plaintiffs claim they experienced multiple sudden, unintended acceleration incidents. Ford breached its warranties, committed fraud, was unjustly enriched at the plaintiffs expense and violated consumer protection laws, according to the suit. The plaintiffs are seeking compensatory and punitive damages. They are being represented by Niall A. Paul -- npaul@spilmanlaw.com -- and Nathan B. Atkinson -- natkinson@spilmanlaw.com -- of Spilman Thomas & Battle; Adam J. Levitt, John E. Tangren -- jtangren@gelaw.com -- Jeff A. Almeida and Kyle J. McGee -- kmcgee@gelaw.com -- of Grant & Eisenhofer PA; Mark DiCello -- madicello@dicellolaw.com -- and Robert F. DiCello of the DiCello Law Firm; Timothy C. Bailey and L. Lee Javis II of Bailey, Javins & Carter; James R. Bartimus -- jb@bflawfirm.com -- Bradley D. Honnold and Anne M. Tarvin -- atarvin@bflawfirm.com -- of Bartimus, Frickleton, Robertson & Goza; Stephen M. Gorny of the Gorny law Firm; John T. Murray of Murray & Murray Co.; John Scarola and C. Calvin Warriner III -- CCW@searcylaw.com -- of Searcy Denney Scarola Barnhart & Shipley; Joseph J. Siprut; Keith G. Bremer, Alison K. Hurley and Benjamin L. Price of Bremer Whyte Brown & O'Meara; E. Powell Miller -- epm@miller.law -- Richard L. Merpi II -- rlm@miller.law -- and Martha J. Olijnyk of the Miller Law Firm; Grant L. Davis -- gdavis@dbjlaw.net -- Thomas C. Jones - - tjones@dbjlaw.net -- and Timothy C. Gaarder of Davis Bethune & Jones; Gregory M. Travalio -- gtravalio@isaacwiles.com -- and Mark H. Troutman -- mtroutman@isaacwiles.com -- of Isaac Wiles Burkholder & Teetor; Stephen J. Fearon Jr -- stephen@sfclasslaw.com --. of Squitieri & Fearon; Paul Bucci of Laffey Bucci Kent LLP; Michael Jaffe and Malcolm T. Brown -- brown@whafh.com -- of Wolf Haldenstein Adler Freeman & Herz; Edgar F. Heiskell III; and Donald H. Slavik of Slavik Law Firm. U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-09851 GENERAL MOTORS: Judge Refused to Dismiss Camaro Class Action ------------------------------------------------------------ Robert Kahn, writing for Courthouse News Service, reported that a federal judge in San Francisco, refused on November 17, to dismiss a class action accusing General Motors of putting defective airbags in 2010 and 2011 Camaros. The case is, PHILIP BRYDE, et al., Plaintiffs, v. GENERAL MOTORS, LLC, Defendant, Case No. 16-cv-02421-WHO (N.D. Cal.). Plaintiffs bring this action on behalf of themselves and all similarly situated persons who purchased or leased 2010 and 2011 Chevrolet Camaro vehicles in the United States. GM is "responsible for the design, manufacture, distribution, marketing, sale and lease of the Class Vehicles." Plaintiffs bring this class action suit against GM for a variety of claims stemming from an alleged airbag defect. GM moves to strike plaintiffs' prayer for injunctive relief, arguing that it amounts to a recall and is preempted by the Motor Vehicle Safety Act. District Judge William H. Orrick held that although GM has some support for its argument from courts outside of this circuit, district courts in California have consistently rejected those decisions and found no preemption. The decisions holding no preemption are more persuasive; GM has not raised any arguments that those decisions did not address. GM's motion to strike is denied. GM also moves to dismiss plaintiffs' fraudulent omission claims for failure to: (i) show GM had knowledge of and a duty to disclose the alleged defect; (ii) demonstrate reliance on a particular advertisement; (iii) plead a plausible injury; and (iv) meet Rule 9(b)'s particularity requirement. Judge Orrick held that plaintiffs have stated plausible fraudulent omissions claims. GM also moves to dismiss the claims for breach of the implied warranty of merchantability, but plaintiffs, according to Judge Orrick, have sufficiently alleged that the Class Vehicles are unfit for their ordinary purpose and that the third-party beneficiary exception to the vertical privity requirement applies. GM's motion to dismiss is denied. A copy of the Court's decision is available at https://is.gd/85FbLg Plaintiffs Philip Bryde, Jennifer Waters, and Alvin Northington are represented by Mark Samuel Greenstone, Glancy Prongay & Murray LLP. General Motors, LLC, Defendant, represented by Gregory Richard Oxford, Isaacs Clouse Crose & Oxford LLP. GENUINE TITLE: Court Certifies West Town Class in "Fangman" Suit ---------------------------------------------------------------- The Hon. Richard D. Bennett, in a memorandum opinion, granted the West Town Plaintiffs' sealed motion for class certification in the lawsuit styled EDWARD J. AND VICKI FANGMAN, et al. v. GENUINE TITLE, LLC, et al., Case No. RDB-14-0081 (D. Md.). Plaintiffs Edward J. Fangman and Vicki Fangman and 46 other Plaintiffs have brought the purported class action lawsuit against the Defendants alleging violations of the anti-kickback provisions of the Real Estate Settlement Procedures Act. The lawsuit involves an alleged home mortgage kickback scheme in which Genuine Title, by itself and through sham companies, allegedly provided cash payments and marketing materials to mortgage lenders, including Defendant West Town Bank & Trust, representatives of which referred its clients to Genuine Title for settlement services. A copy of the Memorandum Opinion is available at no charge at https://goo.gl/ExOYhA from Leagle.com. Plaintiffs Edward J. Fangman, Vickie Fangman, Damon M. Oliver, Betty M. Howard, Clayton J. Anthony, Janice M. Manuel, Eric L. Haynes, Joseph J. Quinn, Deloris F. Woods, Jameson Cooper, Katherine Cooper, Geraldine R. Walters, Steven A. Messina, Rose A. Lease, James Pipp, Dana Pipp, Lawrence Crupi, Concetta Crupi, Charles Milburn, Frank Cherry, Sammie Cherry, Helen L. Householder, Nathaniel Risch, Preston Johnson, Beatrice Johnson, Gerald Jones, Ann Jones, John Mahoney, Tinna Mahoney, Patricia Gibson, Bruce Eisenstein, Margaret Eisenstein, Frank A. Palombaro, Jr., David Alvarado, Shelly Palombaro, Carol J. Shaw, Carmelita B. Hackett, Lusetha Rolle, Patricia M. Marshall, Ruby B. Coggins, John H. Reinheimer, Jamie B. Reinheimer, Gerald F. Coggins and Melinda Alvarado are represented by: Michael Paul Smith, Esq. Sarah A. Zadrozny, Esq. SMITH, GILDEA & SCHMIDT, LLC 600 Washington Ave., Suite 200 Towson, MD 21204 Telephone: (410) 821-0070 Facsimile: (410) 821-0071 E-mail: mpsmith@sgs-law.com szadrozny@sgs-law.com - and - Timothy Francis Maloney, Esq. Timothy L. Creed, Esq. Veronica Byam Nannis, Esq. JOSEPH, GREENWALD & LAAKE, P.A. 6404 Ivy Ln., Suite 400 Greenbelt, MD 20770 Telephone: (301) 220-2200 Facsimile: (240) 553-1737 E-mail: tmaloney@jgllaw.com tcreed@jgllaw.com vnannis@jgllaw.com Intervenor Plaintiffs Robert Voelker, Shelia K. Voelker, Alvin Cole and Bertha Cole are represented by: Sarah A. Zadrozny, Esq. SMITH, GILDEA & SCHMIDT, LLC 600 Washington Ave., Suite 200 Towson, MD 21204 Telephone: (410) 821-0070 Facsimile: (410) 821-0071 E-mail: szadrozny@sgs-law.com Defendants Brandon Glickstein, Inc., Competitive Advantage Media Group, LLC, and Dog Days Marketing, LLC, are represented by: Ari Karen, Esq. Gregory P. Currey, Esq. OFFIT KURMAN, ATTORNEYS AT LAW 4800 Montgomery Lane, 8th Floor Bethesda, MD 20814 Telephone: (240) 507-1740 Facsimile: (240) 507-1735 E-mail: akaren@offitkurman.com Gcurrey@offitkurman.com Defendants West Town Bank & Trust and Net Equity Financial are represented by: Brian L. Moffet, Esq. Zachary Schultz, Esq. MILES & STOCKBRIDGE, P.C. 100 Light Street Baltimore, MD 21202 Telephone: (410) 727-6464 Facsimile: (410) 385-3700 E-mail: bmoffet@milesstockbridge.com zschultz@milesstockbridge.com Defendant West Town Bank & Trust is represented by: Dwight W. Stone, II, Esq. MILES & STOCKBRIDGE, P.C. 100 Light Street Baltimore, MD 21202 Telephone: (410) 727-6464 Facsimile: (410) 385-3700 E-mail: dstone@milesstockbridge.com Defendant Emery Federal Credit Union is represented by: David M. Souders, Esq. Jeffrey Paul Blackwood, Esq. Michael Yaakov Kieval, Esq. WEINER BRODSKY KIDER PC 1300 19th Street NW 5th Floor Washington, DC 20036-1609 Telephone: (202) 557-3503 Facsimile: (202) 628-2011 E-mail: souders@thewbkfirm.com blackwood@thewbkfirm.com kieval@thewbkfirm.com Defendants PNC Mortgage and PNC Bank, N.A., are represented by: Daniel Joseph Tobin, Esq. BALLARD SPAHR LLP 1909 K Street, NW, 12th Floor Washington, DC 20006-1157 Telephone: (202) 661-2256 Facsimile: (202) 661-2299 E-mail: tobindj@ballardspahr.com Defendant PNC Mortgage is represented by: Robert A. Scott, Esq. TREANOR POPE & HUGHES PA 500 York Road Towson, MD 21204 Telephone: (410) 494-7777 Facsimile: (410) 494-1658 E-mail: rascott@tph-law.com Defendants Metlife Home Loans, LLC, and Metlife Bank, N.A., are represented by: Leslie Paul Machado, Esq. LECLAIR RYAN PC 2318 Mill Road, Suite 1100 Alexandria, VA 22314 Telephone: (703) 647-5928 Facsimile: (703) 647-5968 E-mail: leslie.machado@leclairryan.com Defendant Eagle National Bank is represented by: Dennis Edward Boyle, Esq. BOYLE & FROST 1629 K St. NW, Suite 300 Washington, DC 20006-1631 Telephone: (202) 640-1415 E-mail: dennis.boyle@boylefrost.com - and - George J. Krueger, Esq. Ryan T. Becker, Esq. FOX ROTHSCHILD LLP 2000 Market St., 20th Floor Philadelphia, PA 19103-3222 Telephone: (215) 299-2028 Facsimile: (215) 299-2150 E-mail: gkrueger@foxrothschild.com rbecker@foxrothschild.com - and - Lawrence Joseph Quinn, Esq. TYDINGS AND ROSENBERG LLP 100 East Pratt Street, 26th Floor Baltimore, MD 21202 Telephone: (410) 752-9700 Facsimile: (410) 727-5460 E-mail: lquinn@tydingslaw.com Defendant E Mortgage Management is represented by: Soyong Cho, Esq. Irene Claire Freidel, Esq. Jennifer J. Nagle, Esq. K&L GATES LLP 1601 K Street, NW Washington, DC 20006-1600 Telephone: (202) 778-9000 Facsimile: (202) 778-9100 E-mail: soyong.cho@klgates.com irene.freidel@klgates.com jennifer.nagle@klgates.com Defendant JPMorgan Chase Bank, N.A., is represented by: Matthew P. Previn, Esq. BUCKLEYSANDLER LLP 1133 Avenue of the Americas, Suite 3100 New York, NY 10036 Telephone: (212) 600-2310 Facsimile: (212) 600-2405 E-mail: mprevin@buckleysandler.com Interested Parties Jay Zukerberg, Brent Erickson and Christopher Casazza are represented by: Michael Edward Rowan, Esq. SHUMAKER WILLIAMS PC 901 Dulaney Valley Road, Suite 610 Towson, MD 21204 Telephone: (410) 825-5223 E-mail: mrowan@shumakerwilliams.com Interested Party William J. Peterson, III, is represented by: Richard Melvin Karceski, Esq. LAW OFFICES OF RICHARD M. KARCESKI 305 Washington Avenue, Suite 301 Towson, MD 21204 Telephone: (410) 494-7100 Facsimile: (410) 296-3443 E-mail: karceskilaw@mindspring.com GENWORTH FINANCIAL: Faces Class Action Over China Oceanwide Deal ---------------------------------------------------------------- Michael Schwartz, writing for Richmond BizSense, reports that a local Fortune 500 company's deal to be acquired and taken private by a Chinese conglomerate has caught the ire of at least one disgruntled investor. The members of the board of directors of Henrico-based insurance giant Genworth Financial were sued in Richmond federal court by shareholder Harold Faverman, who is seeking class action status to either block the company's pending $2.7 billion deal to be acquired by China Oceanwide or win damages should the transaction be completed. Filed Nov. 2, Mr. Faverman's case states it was initiated on behalf of all Genworth shareholders and alleges breaches of fiduciary duty against company directors. It argues that the deal won't result in the best value for Genworth shareholders based on the per-share offer and provisions preventing the company from pursuing other suitors. "The proposed transaction was the result of a flawed process and is woefully inadequate in light of Genworth's true value and its growth prospects," the lawsuit argues. The defendants in the case include Genworth directors William Bolinder, G. Kent Conrad, Melina Higgins, David Moffett, Thomas Maloney, James Parke, James Riepe, and Genworth CEO Thomas McInerney. A Genworth spokesperson said on Nov. 9 the company doesn't comment on litigation. The suit argues that China Oceanwide's offer to pay $5.43 in cash per share for Genworth common stock is only a 4.2 percent premium on the $5.21 per share closing price the last trading day before the deal was announced. It argues that the company has been on a recent uptick, citing Genworth's stock price had risen 22 percent since the beginning of 2016, when it bottomed out in February at $1.61. It also claims the company's growth prospects can be seen in "earnings surprises in each of its recent quarters," referring to the company's performance exceeding analysts' expectations in the first two quarters of 2016. However the company did announce that it faces charges of up to $625 million to add more reserves for its long-term care coffers. That led to a loss of $380 million in the third quarter, the company announced. The case further alleges that "preclusive deal protection measures," are preventing the company from freely shopping around for better offers. It cites provisions in the deal such as a non- solicitation clause that prohibits Genworth from seeking other suitors while the deal is still pending, and a $105 million termination fee if Genworth decides to back out of the deal. Many of those sorts of provisions are standard in large corporate M&A deals. The suit doesn't say how many public shareholders exist, but there are 498 million shares outstanding. Headquartered on West Broad Street, Genworth is known for its mortgage, life and long-term care insurance operations. It has been hit hard in the last few years by miscalculations on the costs of its long-term care reserves. Upon announcing the China Oceanwide deal last month, the company said it was the best alternative for shareholders in the face of those challenges. In addition to paying $5.43 per share, China Oceanwide plans to kick in $1 billion in cash to help shore up Genworth's life insurance business and handle debt that's due in 2018. Other defendants in the Faverman case are Asia Pacific Global Capital Co. and Asia Pacific Global Capital USA Corp., entities used by China Oceanwide in the acquisition. The suit claims the Asia Pacific firms aided and abetted the Genworth's board of directors in their alleged breaches of fiduciary duty. Mr. Faverman is represented by law firm Finkelstein Thompson in Washington, D.C. The lead attorney on the case did not respond to an inquiry by press time. Mr. Faverman's attorneys ask for a jury trial and for the court to certify the case as a class action suit. They seek to either block the deal outright or put it on hold until its terms could be amended. It also seeks an unspecified amount of damages for Genworth shareholders. The nature of Mr. Faverman's lawsuit is similar to those that have become commonplace in the wake of pending mergers and acquisitions involving public companies. And the suit comes on the heels of efforts from securities law firms around the country that, immediately following the announcement of the China Oceanwide deal, put out the word they were "investigating" the proposed acquisition and seeking Genworth shareholders to sign on as lead plaintiffs. The practice has become some common that many companies plan for and include the related legal expenses in their budgets and deal calculations. When lawsuits do result, they often look to block the deals, force changes in the terms or extract damages. Such suits are often settled, dropped altogether or can lead to changes in the language of the proposed transactions. The practice has affected several Richmond deals, both large and small, in recent years. And the name Harold Faverman is also no stranger to class action lawsuits. Men with that name have been the lead plaintiff in at least two other shareholder class action lawsuits, court and SEC records show. One case involved Puerto Rican financial firm Doral Financial Corp. in 2005 and the second was a securities fraud case alleged against energy data firm Seitel Inc. in 2002. It could not be determined if those plaintiffs were the same Harold Faverman involved in this latest Genworth case. H&R BLOCK: Seeks Eighth Circuit Review of Ruling in "Perras" Suit ----------------------------------------------------------------- H&R Block Inc., HRB Tax Group, Inc., and HRB Technology, LLC, filed an appeal from District Court orders dated July 27, 2016, September 9, 2016, and September 29, 2016, entered in the lawsuit styled Ronald Perras v. H&R Block, et al., Case No. 4:12-cv-00450- BP, in the U.S. District Court for the Western District of Missouri - Kansas City. The appellate case is captioned as Ronald Perras v. H&R Block, et al., Case No. 16-4106, in the United States Court of Appeals for the Eighth Circuit. As previously reported in the Class Action Reporter, H&R Block, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 1, 2016, that on April 29, 2016, the Court granted its motion for summary judgment on all claims and denied the Plaintiff's motion for class certification as moot. The Plaintiff filed an appeal with the Eighth Circuit Court of Appeals, which remains pending. The Case concerns a compliance fee charged to retail tax clients in the 2011 and 2012 tax seasons. The Plaintiff originally sought to represent all persons nationwide (excluding citizens of Missouri) who were charged the compliance fee, and asserted claims of violation of various state consumer laws, money had and received, and unjust enrichment. The briefing schedule in the Appellate Case is set as follows: -- Appendix is due on December 22, 2016; -- Appellants' brief is due on December 22, 2016; -- Appellee brief is due 30 days from the date the Court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 14 days from the date the Court issues the Notice of Docket Activity filing the appellee brief. Plaintiff-Appellee Ronald Perras, on behalf of himself and all others similarly situated, is represented by: Jason S. Hartley, Esq. STUEVE SIEGEL HANSON LLP 550 W. C Street, Suite 610 San Diego, CA 92101 Telephone: (619) 400-5822 E-mail: hartley@stuevesiegel.com - and - Norman Siegel, Esq. Bradley Wilders, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 E-mail: siegel@stuevesiegel.com wilders@stuevesiegel.com Defendants-Appellants H&R Block, Inc., HRB Tax Group, Inc., and HRB Technology, LLC, are represented by: Kathryn Lee, Esq. SPENCER FANE LLP 40 Corporate Woods 9401 Indian Creek Parkway Overland Park, KS 66210-0000 Telephone: (913) 345-8100 Facsimile: (913) 345-0736 E-mail: klee@spencerfane.com - and - Glen David Nager, Esq. JONES & DAY 51 Louisiana Avenue, N.W. Washington, DC 20001-2113 Telephone: (202) 879-5464 Facsimile: (202) 626-1700 E-mail: gdnager@jonesday.com - and - Jeffrey Simon, Esq. Derek T. Teeter, Esq. HUSCH & BLACKWELL 4801 Main Street, Suite 1000 Kansas City, MO 64112 Telephone: (816) 983-8000 E-mail: jeff.simon@huschblackwell.com derek.teeter@huschblackwell.com HALYARD HEALTH: Suit by Bahamas Surgery Center in Discovery ----------------------------------------------------------- Halyard Health, 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 parties in the case by Bahamas Surgery Center, LLC remain engaged in discovery. The Company said, "We have an Indemnification Obligation for, and have assumed the defense of, the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., f/k/a Prime Healthcare Centinela, LLC, et al. v. Kimberly- Clark Corporation, et al., No. 2:14-cv-08390-DMG-SH (C.D. Cal.), filed on October 29, 2014. In that case, the plaintiff brings a putative class action asserting claims for common law fraud (affirmative misrepresentation and fraudulent concealment) and violation of California's Unfair Competition Law in connection with our marketing and sale of MicroCool surgical gowns." "On March 21, 2016, we moved to dismiss the non-California plaintiffs, and on May 26, 2016, the court issued an order dismissing them. On June 14, 2016, the court granted the plaintiffs' unopposed motion to dismiss Prime Healthcare Centinela, LLC and one of the other two remaining California plaintiffs, leaving only the current named plaintiff, Bahamas Surgery Center, LLC. "On June 1, 2016, the plaintiff moved for class certification of a California-only damages class and a California-only injunctive relief class. Although the plaintiff did not also move for certification of a nationwide class to determine liability, damages, or injunctive relief, it did move for certification of a nationwide "issue" class purporting to resolve certain issues allegedly "common" to members of that class. "On July 8, 2016, we moved for summary judgment. The parties also remain engaged in discovery. We intend to continue our vigorous defense of the matter." Halyard Health, Inc. is a global business which seeks to advance health and healthcare by preventing infection, eliminating pain and speeding recovery. HALYARD HEALTH: To Defend Against "Jackson" Suit ------------------------------------------------ Halyard Health, 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 is defending against the Jackson class action lawsuit. The Company said, "We were served with a complaint in a matter styled Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., No. 1:16-cv-05093-LTS (S.D.N.Y.), filed on June 28, 2016. In that case, the plaintiff brings a putative class action against the Company, our Chief Executive Officer, our Chief Financial Officer and other defendants, asserting claims for violations of the Securities Exchange Act, Sections 10(b) and 20(a). The plaintiff alleges that the defendants made misrepresentations and failed to disclose certain information about the safety and effectiveness of our MicroCool gowns and thereby artificially inflated the Company's stock prices during the respective class periods. The alleged class period for purchasers of Kimberly-Clark securities who subsequently received Halyard Health securities is February 25, 2013 to October 21, 2014, and the alleged class period for purchasers of Halyard Health securities is October 21, 2014 to April 29, 2016. "We intend to vigorously defend this matter." Halyard Health, Inc. is a global business which seeks to advance health and healthcare by preventing infection, eliminating pain and speeding recovery. HSBC FINANCE: Third Circuit Appeal Filed in "McLean" Class Suit --------------------------------------------------------------- Plaintiff Lurline McLean filed an appeal from a court ruling in the lawsuit styled Lurline McLean v. HSBC Finance Corp., Case No. 2-15-cv-08974, in the U.S. District Court for the District of New Jersey. The appellate case is captioned as Lurline McLean v. HSBC Finance Corp., Case No. 16-4033, in the United States Court of Appeals for the Third Circuit. In a docket entry on Nov. 7, the Clerk of the Appellate Court advised the parties that the Appellate Case has been listed for possible dismissal due to jurisdictional defect. The Clerk directed all parties to file written responses addressing this issue, with a certificate of service attached, within 14 days from the date of the order. Plaintiff-Appellant LURLINE MCLEAN, on behalf of hereself and all others similarly situated, is represented by: Catherine E. Anderson, Esq. GISKAN SOLOTAROFF & ANDERSON 11 Broadway, Suite 2150 New York, NY 10004 Telephone: (212) 847-8315 Facsimile: (646) 520-3236 E-mail: canderson@gslawny.com - and - Roosevelt N. Nesmith, Esq. LAW OFFICE OF ROOSEVELT N. NESMITH 363 Bloomfield Avenue, Suite 2-C Montclair, NJ 07042 Telephone: (973) 259-6990 E-mail: roosevelt@nesmithlaw.com Defendant-Appellee HSBC FINANCE CORP. is represented by: Louis Smith, Esq. GREENBERG TRAURIG LLP 200 Park Avenue MetLife Building New York, NY 10166 Telephone: (973) 360-7900 Facsimile: (973) 301-8410 E-mail: smithlo@gtlaw.com HUMANA INSURANCE: Seventh Circuit Appeal Filed in "Brodsky" Suit ---------------------------------------------------------------- Plaintiff Lawrence S. Brodsky filed an appeal from a court ruling in the lawsuit entitled Lawrence Brodsky v. Humana Insurance Company, Case No. 1:10-cv-03233, in the U.S. District Court for the Northern District of Illinois, Eastern Division. The appellate case is captioned as Lawrence Brodsky v. Humana Insurance Company, Case No. 16-8028, in the U.S. Court of Appeals for the Seventh Circuit. Plaintiff-Petitioner LAWRENCE S. BRODSKY, Individually and as the representative of a class of similarly-situated persons, is represented by: Phillip A. Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle Street Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@bockhatchllc.com - and - Glenn L. Hara, Esq. ANDERSON & WANCA 3701 Algonquin Road Rolling Meadows, IL 60008-0000 Telephone: (847) 368-1500 E-mail: GHara@andersonwanca.com Defendant-Respondent HUMANA INSURANCE COMPANY, doing business as HUMANA SPECIALTY BENEFITS, is represented by: William A. Chittenden, III, Esq. David J. Novotny, Esq. CHITTENDEN, MURDAY & NOVOTNY LLC 303 W. Madison Street Chicago, IL 60606-0000 Telephone: (312) 281-3600 E-mail: wchittenden@cmn-law.com dnovotny@cmn-law.com IMPAX LABORATORIES: Rosen Law Firm Files Securities Class Action ---------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Nov. 10 disclosed that it has filed a class action lawsuit on behalf of purchasers of Impax Laboratories, Inc. securities from February 25, 2014 through November 3, 2016, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for Impax investors under the federal securities laws. To join the Impax class action, go to http://www.rosenlegal.com/cases-981.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, Defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Impax was engaging and/or had engaged in conduct that would cause the antitrust division of the U.S. Department of Justice ("DOJ") and the Connecticut Attorney General to conduct extensive investigations of possible collusion of generic drug pricing; (2) the DOJ investigation and the underlying conduct was likely to result in criminal charges against Impax, and possibly its officers and directors, for collusion of generic drug pricing; (3) Impax lacked effective internal controls over financial reporting; and (4) as a result, Defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than January 9, 2017. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-981.htmlor to discuss your rights or interests regarding this class action, please contact, Phillip Kim, Esq. or Kevin Chan, Esq. of The Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. INOGEN INC: Settlement Approval Anticipated in Late November ------------------------------------------------------------ Inogen, 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 parties in the class action lawsuit by Ryan Casper and Shane Hoefer anticipate final approval of the settlement in late November 2016. On April 13, 2016, Ryan Casper and Shane Hoefer (Plaintiffs) filed a lawsuit against the Company on behalf of themselves and all other similarly situated employees in the Superior Court for Santa Barbara County, California. The complaint alleges failure to pay overtime wages, failure to allow and pay for meal periods, and other alleged violations of California wage and hour law. The Plaintiffs and class members are seeking compensatory damages in the amount of all wages, interest, and penalties allegedly due, as well as liquidated damages, attorney's fees and other relief. The parties successfully mediated the claims and reached a settlement in April 2016. While the Company disputes the claims, it agreed to the settlement with no admission of liability to avoid the risks and costs associated with litigating the claims. As of September 30, 2016, the Company had accrued approximately $980,000 for the settlement costs within accounts payable and accrued expenses. On August 2, 2016, the Court granted preliminary approval of the settlement. The parties anticipate final approval of the settlement in late November 2016, and distribution of the settlement funds in December 2016. Inogen, Inc. is a medical technology company that primarily develops, manufactures and markets innovative portable oxygen concentrators used to deliver supplemental long-term oxygen therapy to patients suffering from chronic respiratory conditions. INOVALON HOLDINGS: Lead Plaintiff Not Yet Been Appointed -------------------------------------------------------- Inovalon Holdings, 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 a lead plaintiff has not yet been appointed in a consolidated class action lawsuit. On June 24, 2016, a purported securities class action complaint (Xiang v. Inovalon Holdings, Inc., et.al., No. 1:16-cv-04923) was filed in the United States District Court for the Southern District of New York against the Company, certain officers, directors and underwriters in the Company's initial public offering. The complaint is brought on behalf of a purported class consisting of all persons or entities who purchased shares of the Company's Class A common stock pursuant or traceable to the Registration Statement issued in connection with the Company's initial public offering on February 18, 2015. The complaint asserts violations of Sections 11 and 15 of the Securities Act based on allegedly false or misleading statements and omissions with respect to, among other things, the Company's revenues from sales in the city and state of New York and the Company's effective tax rate. The complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. On June 28, 2016, an identical complaint to the Xiang complaint (Patel v. Inovalon Holdings, Inc., et. al., No. 1:16-cv-05065) was filed in the same court. On July 5, 2016, the court consolidated the Xiang and Patel actions. On August 23, 2016, two potential plaintiffs, Roofers Local No. 149 Pension Fund and Christopher Peoples, an individual, moved for appointment as lead plaintiff in the litigation. A lead plaintiff has not yet been appointed. The Company believes that the claims against it and its officers and directors are without merit, and the Company and the named officers and directors intend to defend themselves vigorously. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of these consolidated actions and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. INSYS THERAPEUTICS: "Donato" Action Still Pending ------------------------------------------------- Insys Therapeutics, 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 continues to defend against a class action lawsuit by Richard Di Donato. The Company said, "On or about February 2, 2016, a complaint (captioned Richard Di Donato v. Insys Therapeutics, Inc., Case 2:16-cv-00302-NVW) was filed in the Arizona District Court, against us and certain of our current and former officers. This complaint was brought as a purported class action, on behalf of purchasers of our common stock between March 3, 2015 and January 25, 2016. In general, the plaintiffs allege that the defendants violated federal securities laws by making intentionally false and misleading statements regarding our business and operations, therefore artificially inflating the price of our common stock. The plaintiffs seek unspecified monetary damages and other relief. We intend to vigorously defend this claim." Insys is a commercial-stage specialty pharmaceutical company that develops and commercializes innovative supportive care products. INTERCONTINENTAL HOTELS: Faces "Jones" Suit Over FLSA Violation --------------------------------------------------------------- RAQUEL JONES, Plaintiff, v. INTERCONTINENTAL HOTELS GROUP RESOURCES, INC., Defendant, is a collective action complaint that seeks to recover unpaid regular and overtime wages under the Fair Labor Standards Act. Intercontinental is an international hotel company with more than 5,000 hotels world-wide. Intercontinental manages and operates the InterContinental New Orleans hotel. The Plaintiff is represented by: Roberto Luis Costales, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 534-5005 Fax: (504) 272-2956 E-mail: whbeaumont@gmail.com - and - William H. Beaumont, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 483-8008 E-mail: costaleslawoffice@gmail.com - and - Emily A. Westermeier, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 534-5005 E-mail: costaleslawoffice@gmail.com JPMORGAN CHASE: Mix Appeals D. Ariz. Decision to Ninth Circuit -------------------------------------------------------------- Plaintiff Amanda Mix filed an appeal from a court ruling in the lawsuit entitled Amanda Mix v. JPMorgan Chase Bank, N.A., Case No. 2:15-cv-01102-JJT, in the U.S. District Court for the District of Arizona, Phoenix. As previously reported in the Class Action Reporter on Oct. 12, 2016, District Judge John J. Tuchi granted the Defendant's motion for summary judgment. Amanda Mix applied for and accepted a contingent worker position at JPMorgan. During the hiring process, JPMorgan obtained fingerprints from her in order to obtain a Federal Bureau of Investigation background check on her. As a result of the outcome of the FBI's fingerprint background check, JPMorgan revoked Mix's offer of employment. On June 16, 2015, Ms. Mix filed a complaint bringing a putative class action against JPMorgan under the Fair Credit Reporting Act and alleges that JPMorgan routinely obtains and uses information in consumer reports to conduct background checks on prospective contingent workers, and frequently relies on such information as a basis for adverse employment actions, including the refusal to hire. The appellate case is captioned as Amanda Mix v. JPMorgan Chase Bank, N.A., Case No. 16-16967, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 25, 2016; -- Transcript is due on December 27, 2016; -- Appellant Amanda Mix's opening brief is due on February 3, 2017; -- Appellee JPMorgan Chase Bank, N.A.'s answering brief is due on March 6, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant AMANDA MIX, on behalf of herself and all others similarly situated, is represented by: David Neal McDevitt, Esq. Russell S. Thompson, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave., Suite D106-618 Mesa, AZ 85206 Telephone: (602) 845-5969 E-mail: dmcdevitt@consumerlawinfo.com rthompson@consumerlawinfo.com Defendant-Appellee JPMORGAN CHASE BANK, N.A., is represented by: James B. Ball, Esq. POLI & BALL, PLC 2999 N. 44th Street Phoenix, AZ 85018 Telephone: (602) 840-1400 Facsimile: (602) 840-4411 E-mail: ball@bsmplc.com - and - Alan Durrum Wingfield, Esq. TROUTMAN SANDERS LLP 1001 Haxall Point Richmond, VA 23219 Telephone: (804) 697-1360 E-mail: alan.wingfield@troutmansanders.com JPMORGAN CHASE: Ninth Circuit Appeal Filed in "Ellis" Class Suit ---------------------------------------------------------------- Plaintiffs Diana Ellis, Ronald Lazar and James Schillinger filed an appeal from a court ruling in their lawsuit titled Diana Ellis, et al. v. J.P. Morgan Chase & Co., et al., Case No. 4:12-cv-03897- YGR, in the U.S. District Court for the Northern District of California, Oakland. The appellate case is captioned as Diana Ellis, et al. v. J.P. Morgan Chase & Co., et al., Case No. 16-17005, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on Oct. 10, 2016, U.S. District Judge Yvonne Gonzalez Rogers has cleared JPMorgan Chase and Citibank of claims they defrauded homeowners, who couldn't pay their mortgages during the Great Recession, bringing a contentious four-year battle (in two cases, including the Ellis Case) to a close. Judge Gonzalez Rogers ruled in two orders issued late on Oct. 5, that the Plaintiffs in two cases had failed to assert claims of fraud and unjust enrichment against Chase and Citibank over what the homeowners said were unjustified fees to inspect their homes after they went into foreclosure. According to Citibank, loan servicers are required to periodically inspect delinquent properties to ensure they're being maintained and to protect their value. The July 2012 suits brought by eight plaintiffs in Alabama, California, Oregon, Maryland, New York and Tennessee claimed that neither bank was authorized to charge the inspection fees, and that the banks misled them into believing the fees were valid. Both sets of plaintiffs also accused the banks of hiding the charges on their mortgage statements under vague titles like "miscellaneous fees" and "corporate advances." Judge Gonzalez Rogers refused to certify state and nationwide classes in the cases last year, leaving intact only the plaintiffs' individual fraud and unjust enrichment claims, among others. Those claims arose out of a combined $287.15 in inspection fees charged to the Chase plaintiffs and $310.50 charged to the Citi plaintiffs. In granting both banks' motions for summary judgment on the fraud claims, Judge Gonzalez Rogers found that the plaintiffs' assertions that Chase and Citibank misrepresented the fees were lacking as a matter of law. "This is an opinion of law not subject to a fraud claim," Judge Gonzalez Rogers said in both rulings. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 30, 2016; -- Transcript is due on December 30, 2016; -- Appellants Diana Ellis, Ronald Lazar and James Schillinger's opening brief is due on February 8, 2017; -- Answering brief of Appellees Chase Home Finance, LLC, J.P. Morgan Chase & Co. and J.P. Morgan Chase Bank, N.A., is due on March 10, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellants DIANA ELLIS, JAMES SCHILLINGER and RONALD LAZAR, individually, and on behalf of other members of the public similarly situated, are represented by: Mark Philip Pifko, Esq. Daniel Alberstone, Esq. Roland Karim Tellis, Esq. BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Telephone: (818) 839-2333 E-mail: MPifko@baronbudd.com dalberstone@baronbudd.com rtellis@baronbudd.com - and - Philip F. Cossich, Jr., Esq. David A. Parsiola, Esq. COSSICH, SUMICH, PARSIOLA & TAYLOR LLC 8397 Highway 23 Belle Chasse, LA 70037 Telephone: (504) 394-9000 Facsimile: (504) 394-9110 E-mail: pcossich@cossichlaw.com dparsiola@cossichlaw.com Defendants-Appellees J.P. MORGAN CHASE & CO., a Delaware corporation; J.P. MORGAN CHASE BANK, N.A., a national association, for itself and as successor by merger to Chase Home Finance, LLC; and CHASE HOME FINANCE, LLC, a Delaware limited liability company, are represented by: Kathryn Cahoy, Esq. COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94065 Telephone: (650) 632-4700 E-mail: kcahoy@cov.com - and - David M. Jolley, Esq. COVINGTON & BURLING, LLP One Front Street San Francisco, CA 94111 Telephone: (415) 591-6000 E-mail: djolley@cov.com - and - Peter Obstler, Esq. ARNOLD & PORTER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 E-mail: peter.obstler@aporter.com KOHL'S DEPARTMENT: Cecio Appeals Ruling in "Russell" Class Suit --------------------------------------------------------------- Objector Bobbi Cecio filed an appeal from a court ruling in the lawsuit titled Steven Russell, et al. v. Kohl's Department Stores, Inc., et al., Case No. 5:15-cv-01143-RGK-SP, in the U.S. District Court for the Central District of California, Riverside. The appellate case is captioned as Steven Russell, et al. v. Kohl's Department Stores, Inc., et al., Case No. 16-56696, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Case is brought against the Defendant for falsely advertising original prices, regular prices, and price discounts for its apparel and other merchandise, in its direct marketing to consumers via in- store advertising displays, print advertising, and Internet. Kohl's Department Stores, Inc. owns and operates a chain retail clothing stores throughout the United States. Another objector, Anne Card, has also filed an appeal from a court ruling in the "Russell" Case. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by December 12, 2016; -- Transcript is due on March 13, 2017; -- Appellant Bobbi Cecio's opening brief is due on April 24, 2017; -- Answering brief of Appellees Donna Caffey, Does, Kohl's Department Stores, Inc. and Steven Russell is due on May 24, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellees STEVEN RUSSELL, individually and on behalf of all others similarly situated, and DONNA CAFFEY are represented by: Douglas Caiafa, Esq. DOUGLAS CAIAFA LAW OFFICE 11845 West Olympic Boulevard, Suite 1245 Los Angeles, CA 90064 Telephone: (310) 444-5240 Facsimile: (310) 312-8260 E-mail: dcaiafa@caiafalaw.com - and - Christopher J. Morosoff, Esq. 77305 California Drive Palm Desert, CA 92211 Personal: 760-469-5986 Telephone: (760) 469-5986 Facsimile: (760) 345-1581 E-mail: cjmorosoff@morosofflaw.com Objector-Appellant BOBBI CECIO is represented by: David C. Hawkes, Esq. BLANCHARD, KRASNER & FRENCH 800 Silverado Street, Second Floor La Jolla, CA 92037 Telephone: (858) 775-7515 Facsimile: (858) 551-2434 E-mail: davidchawkes@aol.com Defendant-Appellee KOHL'S DEPARTMENT STORES, INC., a Delaware Corporation, is represented by: Eskandar Alex Beroukhim, Esq. James Speyer, Esq. ARNOLD & PORTER LLP 777 South Figueroa Street Los Angeles, CA 90017-5844 Telephone: (213) 243-4141 Facsimile: (213) 243-4199 E-mail: alex_beroukhim@aporter.com james.speyer@aporter.com KOPPERS HOLDINGS: Parties in Gainesville Suit Await Court Ruling ---------------------------------------------------------------- Koppers Holdings 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 parties in the Gainesville class action lawsuit await a ruling from the court on the Plaintiffs' motion for class certification. Koppers Inc. operated a utility pole treatment plant in Gainesville from December 29, 1988 until its closure in 2009. The property upon which the utility pole treatment plant was located was sold by Koppers Inc. to Beazer East in 2010. In November 2010, a class action complaint was filed in the Circuit Court of the Eighth Judicial Circuit located in Alachua County, Florida by residential real property owners located in a neighborhood west of and immediately adjacent to the former utility pole treatment plant in Gainesville. The complaint named Koppers Holdings Inc., Koppers Inc., Beazer East and several other parties as defendants. In a second amended complaint, plaintiffs allege that chemicals and contaminants from the Gainesville plant have contaminated real properties of the putative class members, have caused property damage (diminution in value) and have placed residents and owners of the putative class properties at an elevated risk of exposure to and injury from the chemicals at issue. The plaintiffs presently seek a class comprised of all current property owners of single family residential properties within a polygon-shaped area extending approximately two miles from the former plant area (which area encompasses approximately 7,000 owners). The case was removed to the United States District Court for the Northern District of Florida in December 2010. Koppers Holdings Inc. was dismissed from the case by the district court for lack of personal jurisdiction. Class factual discovery closed in May 2015 and expert witness discovery was completed in August 2015. Discovery on the merits is stayed until further order of the court. Motions were subsequently filed by each side to strike or limit the testimony of the other side's experts. Plaintiffs filed a motion for class certification on September 30, 2015 and the response of Koppers Inc. was filed on October 30, 2015. A hearing on plaintiffs' motion for class certification and the parties' motions relating to experts was held in January 2016 and the parties await a ruling from the court. The Company has not provided a reserve for this matter because, at this time, it cannot reasonably determine the probability of a loss, and the amount of loss, if any, cannot be reasonably estimated. The timing of resolution of this case cannot be reasonably determined. Although the Company is vigorously defending this case, an unfavorable resolution of this matter may have a material adverse effect on the Company's business, financial condition, cash flows and results of operations. The Company is an integrated global provider of treated wood products, wood treatment chemicals, and carbon compounds. KOPPERS HOLDINGS: Virgin Islands Class Action Dismissed ------------------------------------------------------- Koppers Holdings 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 on August 15, 2016, formally dismissed Koppers Performance Chemicals ("PC") from a putative class action lawsuit filed in the United States District Court of the Virgin Islands which alleged that PC's wood preservative products and formulas are defective. The Company is an integrated global provider of treated wood products, wood treatment chemicals, and carbon compounds. KRISPY KREME: Faces Fraud Class Action Over Doughnut Ingredients ---------------------------------------------------------------- Andrew Blake, writing for The Washington Times, reports that Krispy Kreme is facing a class-action lawsuit filed in Los Angeles federal court on Nov. 9 by a former customer who says the doughnut chain is guilty of false advertising and fraud because some of its supposed fruit-filled and maple-glazed products are made with "nutritionally inferior ingredients." The 32-page, class-action complaint was filed in U.S. District Court for the Central District of California on behalf of Jason Saidian, an Los Angeles County resident who claims he wouldn't have bought certain snacks sold by Krispy Kreme if he had been aware of their actual ingredients. Krispy Kreme has conducted "false and misleading business practices" because products like its "Glazed Raspberry Filled," "Glazed Blueberry Cake" and "Maple Iced Glazed" doughnut and doughnut-holes aren't actually made with real fruit or maple, the lawsuit alleges. "Unbeknownst to Plaintiff and other consumers, the Raspberry Products do not contain actual raspberries, the Maple Products do not contain actual maple syrup or maple sugar and the Blueberry Products do not contain actual blueberries," the lawsuit reads. Instead, Krispy Kreme uses sugar, corn syrup, gums and artificial food coloring to "mimic the texture, shape and color" of these "Premium Ingredients," as they're called in the complaint, in lieu of naturally occurring products with proven health benefits, according to the court filing. Attorneys at the L.A. office of Faruqi & Faruqi are now seeking class-action status for their claim as well as upwards of $5 million in damages from the North Carolina-based doughnut chain because of the absence of these "Premium Ingredients." "Plaintiff and other consumers purchased the Products, reasonably relying on Defendant's deceptive representation about the Products, and believing that each of the Products contained its respective Premium Ingredient. Had Plaintiff and other consumers known that the Products did not contain their Premium Ingredients, they would not have purchased the Products or would have paid significantly less for the Products. Therefore, Plaintiff and consumers have suffered injury in fact as a result of Defendant's deceptive practices," the complaint continues. "As a result of their misleading business practice, and the harm caused to Plaintiff and other consumers, Defendant should be required to pay for all damages caused to consumers, including Plaintiff. Furthermore, Defendant should be enjoined from engaging in these deceptive practices." Krispy Kreme does not comment on pending or ongoing litigation, a spokeswoman told The Washington Times on Nov. 10. LA QUINTA: Still Defends "Beisel" Class Suit in New York -------------------------------------------------------- La Quinta Holdings 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 continues to defend against the Beisel class action lawsuit. On April 25, 2016, a purported stockholder class action lawsuit, captioned Beisel v. La Quinta Holdings Inc. et al., was filed in the U.S. District Court for the Southern District of New York on behalf of purchasers of the Company's common stock pursuant to the Company's March 24, 2015 secondary public offering (the "March Secondary Offering") and on behalf of purchasers of the Company's common stock from November 19, 2014 through October 29, 2015 (the "Class Period"). On July 22, 2016, the court appointed lead plaintiff, and on September 30, 2016, lead plaintiff filed an amended complaint. The amended complaint names as defendants the Company, certain current and former Company officers, and certain current and former members of the Board of Directors, among others. The complaint alleges, among other things, that, in violation of the federal securities laws, the registration statement and prospectus filed in connection with the March Secondary Offering contained materially false and misleading information or omissions and that the Company as well as certain current and former officers made false and misleading statements in earnings releases and to analysts during the Class Period. Plaintiff seeks unspecified compensatory damages and other relief. The Company believes that the putative class action lawsuit is without merit and intends to defend the lawsuit vigorously; however, there can be no assurance regarding the ultimate outcome of this lawsuit. The Company is an owner, operator and franchisor of select-service hotels primarily serving the midscale and upper-midscale segments under the La Quinta brand. LABOR READY: Objectors Appeal Decision in "Allen" Class Suit ------------------------------------------------------------ Objectors Anthony Allen, Michael Alvarez and Margie Bedolla filed an appeal from a court ruling in the lawsuit relating to the lawsuit titled Jeffrey Allen, et al. v. Labor Ready Southwest, Inc., et al., Case No. 2:09-cv-04266-DDP-AGR, in the U.S. District Court for the Central District of California, Los Angeles. The Case arose from labor-related disputes. The appellate case is captioned as Jeffrey Allen, et al. v. Labor Ready Southwest, Inc., et al., Case No. 16-56621, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript ordered by 11/28/2016; -- Transcript due 02/27/2017; -- Opening brief of Appellants Anthony Allen, Michael Alvarez and Margie Bedolla is due on April 6, 2017; -- Answering brief of Appellees Jeffrey Lee Allen, Does and Labor Ready Southwest, Inc., is due on May 8, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellee JEFFREY LEE ALLEN, on behalf of himself, all others similarly situated, the general public and as an "aggrieved employee" under the California Labor Code Private Attorneys General Act, is represented by: Ronald H. Bae, Esq. Joseph Cho, Esq. AEQUITAS LAW GROUP APLC 500 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 223-7153 E-mail: rbae@AequitasLegalGroup.com jcho@aequitaslawgroup.com - and - Louis Max Benowitz, Esq. LAW OFFICES OF LOUIS BENOWITZ 9454 Wilshire Blvd. PH Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 492-4056 E-mail: louis@benowitzlaw.com - and - Joshua D. Buck, Esq. Leah Lin Jones, Esq. Mark Russell Thierman, Esq. THIERMAN BUCK, LLP 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: josh@thiermanlaw.com leah@thiermanbuck.com mark@thiermanbuck.com - and - Christopher John Canlas, Esq. CANLAS LAW GROUP, APLC 615 W. Beverly Blvd. Montebello, CA 90640 Telephone: (323) 888-4325 Facsimile: (323) 888-4329 E-mail: cjc@canlaslaw.com - and - Chaim Shaun Setareh, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com Objectors-Appellants MARGIE BEDOLLA, ANTHONY ALLEN and MICHAEL ALVAREZ are represented by: Arnab Banerjee, Esq. Glenn A. Danas, Esq. Melissa Grant, Esq. Raul Perez, Esq. CAPSTONE LAW APC 1875 Century Park East Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Arnab.Banerjee@capstonelawyers.com glenn.danas@capstonelawyers.com melissa.grant@capstonelawyers.com Raul.perez@capstonelawyers.com Defendant-Appellee LABOR READY SOUTHWEST, INC., a Washington corporation doing business in the State of California, is represented by: David R. Ongaro, Esq. ONGARO PC 50 California Street, Suite 3325 San Francisco, CA 94111 Telephone: (415) 433-3900 Facsimile: (415) 433-3950 E-mail: dongaro@ongaropc.com LIGAND PHARMACEUTICALS: Faces Securities Class Action ----------------------------------------------------- Don Debenedictis, writing for Courthouse News Service, reported that shareholders of Ligand Pharmaceuticals filed a federal class action on November 17, accusing the company of overstating its assets and exaggerating its financial picture, causing its share price to plummet 5% in just two days once the problems came out. "As a result of defendants' wrongful acts and omissions, and the precipitous decline in the market value of the company's securities, plaintiff and other class members have suffered significant losses and damages," the shareholders say in the lawsuit, which does not give an estimate of their losses. The complaint also names Ligand's CEO John Higgins and CFO Matthew Korenberg as "controlling persons." It was filed just four days after the company formally notified the Securities and Exchange Commission that it would be restating several financial reports it had submitted over the previous year. The class is represented by Laurence M. Rosen of The Rosen Law Firm in New York, and the lawsuit appears to be the first to reach the courthouse since Ligand's notice to the SEC. Another New York firm, Bragar Eagel & Squire, issued a statement on November 18, saying that it, too, had sued. More litigation seems likely. Since Ligand disclosed Nov. 9 that it might restate its financials, another seven law firms issued formal statements declaring they were investigating the company. Neither Rosen nor a spokesman for Ligand responded to emails seeking comment. The San Diego-based company specializes in "developing or acquiring technologies that help pharmaceutical companies discover and develop medicines," according to its website. The company focuses on "drug discovery, early-stage drug development, product reformulation" and then partnering with other companies that handle late-stage development, regulatory management and commercialization, the site says. Its medicines include Promacta, an oral medicine to increase platelets in blood, and Kyprolis, used to treat multiple myeloma. The class' lawsuit largely paraphrases statements in Ligand's formal SEC notice. They say that in previous SEC reports the company had "overstated the value of certain deferred tax assets by approximately $27.5 million or 13 percent," misclassified some short-term debts as long-term debts and did not have effective controls over its financial reporting, among others claims. Therefore, "Defendants' statements about Ligand's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times," the class says in the lawsuit. The investors seek damages on violations of section 10(b) of the federal Exchange Act and the SEC's Rule 10b-5 regarding false or misleading statements that deceived investors. LISNR INC: CEO Responds to Indianapolis Colts App Class Action -------------------------------------------------------------- Carrie Salls, writing for Pennsylvania Record, reports that the chief executive officer of Lisnr Inc. -- one of three parties along with the Indianapolis Colts and Yinzcam named as defendants in a class action lawsuit claiming that a mobile app can listen in on the user's conversations without consent -- said the lawsuit contains a lot of false information. "This is just really a bad lawsuit," Lisnr CEO Rodney Williams told the Pennsylvania Record. "The allegations are false for a lot of reasons." Mr. Williams said the Colts app simply tries to help the user enjoy the game. In addition, he said Lisnr's service is not a beacon, which allows audio to be recorded. Instead, he said, Lisnr is similar to Bluetooth or Wi-Fi. "It's not an app that has your data," Mr. Williams said. "The only thing that's relevant is whether you're at the game and watching the game." Mr. Williams said the Colts started using the app in 2014, and that the organization is not at fault. In addition, Mr. Williams said defendant Yinzcam is not the app developer, as was claimed in the lawsuit. Mr. Williams said the lawyer group that is representing the plaintiffs is not new to this sort of lawsuit and that the group "made a reputation for this." "It's unfortunate that the lawsuit is hurting the industry," Mr. Williams said. In the lawsuit filed Oct. 14 in the U.S. District Court for the Western District of Pennsylvania, the plaintiffs allege that the app runs afoul of the Electronic Communications Privacy Act because it allows personal phone conversations to be heard. The suit claims the information gleaned from the private conversations is then used without the customer's knowledge or consent for advertising purposes. Alan Rackemann is named as the lead plaintiff in the class action. He alleges that the defendants knew the app could activate the microphone on his smartphone, giving them the ability to listen in on his conversations without his consent. According to the complaint, the app, which allows Colts fans to receive team-specific statistics and news and other relevant information, uses Lisnr's software to pinpoint the customer's exact location by activating the smartphone's microphone. The complaint alleges that the information is then sent to the Colts so the team can send location-based advertisements, promotions and other content. The plaintiff alleges in the lawsuit that, once the microphone is activated by the app, it records all audio with no way for users to opt out of the recording. Since beacon tracking is known to be "inherently invasive," industry standards dictate that consumers be given the ability to opt in to beacon tracking, the lawsuit said. That option is often accomplished through the phone's protocol or through the developer's mobile app itself. Since Lisnr requires a microphone to continuously listen for its audio signals, the plaintiff alleges "Lisnr involuntarily enlists thousands of sports fans that have downloaded and installed apps from their favorite teams." "Unfortunately for consumers, defendants never inform them that their smartphones are being turned into listening devices, nor do they ever seek consent," the lawsuit said. Mr. Rackemann is represented by David S. Senoff -- dsenoff@anapolweiss.com -- and Anapol Weiss of Anapol Weiss in Philadelphia. LOWER EAST: "Rodriguez" Suit Alleges FLSA, NY Labor Law Breaches ---------------------------------------------------------------- Catalino Reyes Rodriguez, individually and on behalf of others similarly situated, Plaintiff v. LOWER EAST SIDE COFFEE SHOP, Defendant, Case No. 1:16-cv-08861 (S.D.N.Y., November 15, 2016), seeks the recovery of alleged unpaid wages and related damages for unpaid minimum wage and overtime hours under the Fair Labor Standards Act and the New York Labor Law. Lower East Side Coffee Shop is a coffee shop in New York. The Plaintiff is represented by: Darren P.B. Rumack, Esq. THE KLEIN LAW GROUP 11 Broadway Suite 960 New York, NY 10004 Phone: 212-344-9022 Fax: 212-344-0301 LPL FINANCIAL: Still Defends Securities Class Suit -------------------------------------------------- LPL Financial Holdings 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 a putative class action lawsuit has been filed against the Company and certain of its executive officers in federal district court alleging certain misstatements and omissions related to the Company's share repurchases and financial performance in late 2015. The Company intends to defend vigorously against the lawsuit. LPL Financial Holdings Inc. ("LPLFH"), a Delaware holding corporation, together with its consolidated subsidiaries (collectively, the "Company") provides an integrated platform of brokerage and investment advisory services to independent financial advisors and financial advisors at financial institutions (collectively "advisors") in the United States of America. Through its custody and clearing platform, using both proprietary and third-party technology, the Company provides access to diversified financial products and services enabling its advisors to offer independent financial advice and brokerage services to retail investors (their "clients"). MAJOR LEAGUE: Wyckoff Appeals S.D.N.Y. Decision to 2nd Circuit -------------------------------------------------------------- Plaintiffs Darwin Cox and Jordan Wyckoff filed an appeal from a District Court judgment, dated November 3, 2016, in the lawsuit titled Wyckoff v. Office of the Commissioner of Baseball, et al., Case No. 15-cv-5186, in the U.S. District Court for the Southern District of New York (New York City). The lawsuit alleges violations of antitrust laws. For the reasons stated in the District Court's Memorandum Opinion and Order dated September 29, 2016, Endorsed Joint Stipulation dated October 13, 2016 and the Court's Memo-Endorsed Order dated October 28, 2016, Defendants' motion to dismiss Plaintiffs' Sherman Act and Donnelly Act claims was granted; Plaintiff Wyckoff's claims under the Fair Labor Standards Act were dismissed as to all Defendants other than the Kansas City Royals; the parties stipulated pursuant to 41(a)(1) that Mr. Wyckoff's remaining claims -- the FLSA claims against the Kansas City Royals -- were dismissed, and the dismissal is with prejudice unless the Court's Dismissal Order is reversed on appeal; in the event that the Court's Dismissal Order is reversed on appeal, the parties agree that Mr. Wyckoff's individual FLSA claims against Defendant Kansas City Royals Baseball Corp. shall be deemed to have been tolled from July 2, 2015, the date of his originally filed Complaint. The appellate case is captioned as Wyckoff v. Office of the Commissioner of Baseball, et al., Case No. 16-3795, in the United States Court of Appeals for the Second Circuit. The Defendants-Appellees are Office of the Commissioner of Baseball, an unincorporated association doing business as Major League Baseball; Allan H. Selig; Robert D. Manfred, Jr.; Kansas City Royals Baseball Corp; Miami Marlins, L.P.; San Francisco Baseball Associates LLC; Boston Red Sox Baseball Club L.P.; Angels Baseball LP; Chicago White Sox Ltd.; St. Louis Cardinals, LLC; Colorado Rockies Baseball Club, Ltd.; The Baseball Club of Seattle, LLLP; The Baseball Club of Seattle, LLLP; Houston Baseball Partners LLC; Athletics Investment Group, LLC; Rogers Blue Jays Baseball Partnership; Cleveland Indians Baseball Co., L.P.; Padres L.P.; San Diego Padres Baseball Club, L.P.; Minnesota Twins, LLC; Washington Nationals Baseball Club, LLC; Detroit Tigers, Inc.; Los Angeles Dodgers LLC; Los Angeles Dodgers Holding Company LLC; Sterling Mets L.P.; Atlanta National League Baseball Club, Inc.; AZPB L.P.; Baltimore Orioles, Inc.; Baltimore Orioles Limited Partnership; The Phillies; Pittsburgh Associates, L.P.; Tampa Bay Rays Baseball Ltd.; Rangers Baseball Express, LLC; Rangers Baseball, LLC; Chicago Cubs Baseball Club, LLC; Milwaukee Brewers Baseball Club, Inc.; Milwaukee Brewers Baseball Club, L.P.; and New York Yankees P'Ship. Plaintiffs-Appellants Jordan Wyckoff, Individually and on behalf of all other similarly situated, and Darwin Cox are represented by: Garrett R. Broshuis, Esq. KOREIN TILLERY LLC 505 North 7th Street St. Louis, MO 63101 Telephone: (314) 241-4844 Facsimile: (314) 241-3525 E-mail: gbroshuis@koreintillery.com - and - George A. Zelcs, Esq. KOREIN TILLERY LLC 205 North Michigan Avenue Chicago, IL 60601 Telephone: (312) 641-9750 Facsimile: (312) 641-9751 E-mail: gzelcs@koreintillery.com - and - Christopher M. Burke, Esq. SCOTT + SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway San Diego, CA 92101 Telephone: (619) 233-4565 Facsimile: (619) 233-0508 E-mail: cburke@scott-scott.com - and - Judith Scolnick, Esq. SCOTT + SCOTT, ATTORNEYS AT LAW, LLP The Helmsley Building 230 Park Avenue New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jscolnick@scott-scott.com - and - Patrick Fanning Madden, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: pmadden@bm.net - and - Robert C. Maysey, Esq. WARNER ANGLE HALLAM JACKSON & FORMANEK, PLC 2555 East Camelback Road Phoenix, AZ 85016 Telephone: (602) 264-7101 Facsimile: (602) 234-0419 E-mail: rmaysey@warnerangle.com The Defendants-Appellees are represented by: John Watkins Keker, Esq. Elliot Remsen Peters, Esq. KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 E-mail: jkeker@kvn.com epeters@kvn.com - and - Adam Michael Lupion, Esq. PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036-8299 Telephone: (212) 969-3358 Facsimile: (212) 969-2900 E-mail: alupion@proskauer.com MANTECA, CA: Faces Class Action Over Wage Law Violations -------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a man alleges a California city used in illegal compensation method to pay its employees and has filed a class action. Chris Mraz filed a complaint on behalf of himself and all similarly situated individuals on Nov. 2 in the U.S. District Court for the Eastern District of California against the city of Manteca alleging violation of the Fair Labor Standards Act. According to the complaint, Mr. Mraz and class members were employed by the defendant on various times, but have all suffered injuries, including underpayment for overtime hours worked. The plaintiff holds the city of Manteca responsible because the defendant allegedly implemented an illegal compensation method that undercounted plaintiff's regular rate of pay and failed to compensate plaintiff for cashing out compensatory time off and/or medical contributions. The plaintiff seeks judgment against defendants, unpaid overtime compensation and interest, attorneys' fees, costs of action, injunctive relief and further relief as the court deems just. He is represented by David E. Mastagni -- davidm@mastagni.com -- Isaac S. Stevens and Ace T. Tate of Mastagni Holstedt in Sacramento. U.S. District Court for the Eastern District of California Case number 2:16-cv-02614 MASTEC INC: "Wrigley" Class Suit Still Pending ---------------------------------------------- MasTec, 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 continues to defend the case, Wrigley v. MasTec, Inc. In May 2015, a putative class action lawsuit (the "Lawsuit"), Wrigley v. MasTec, Inc., et. al. (Case No. 1:15-cv-21740) was filed in the United States District Court, Southern District of Florida, naming the Company, the Company's Chief Executive Officer, Jose R. Mas, and the Company's Chief Financial Officer, George L. Pita, as defendants. In August 2015, co-lead plaintiffs were appointed, and an amended complaint was filed in October 2015. The Lawsuit has been purportedly brought by a shareholder, both individually and on behalf of a putative class of shareholders, alleging violations of the federal securities laws arising from alleged false or misleading statements contained in, or alleged material omissions from, certain of the Company's filings with the Securities and Exchange Commission (the "SEC") and other statements, in each case with respect to accounting matters that are the subject of the Audit Committee's independent internal investigation. The amended complaint seeks damages stemming from losses Plaintiffs claim to have suffered as a result of purchasing Company securities at an allegedly inflated market price. The Company filed a motion to dismiss the amended complaint. In September 2016, the Company's motion to dismiss was granted without prejudice, which gives the Plaintiffs the opportunity to file a second amended complaint. The Company believes that the Lawsuit is without merit and intends to vigorously defend against it; however, there can be no assurance that the Company will be successful in its defense. MasTec, Inc. is an infrastructure construction company operating mainly throughout North America across a range of industries. MED SECURITY: "Garrett" Suit Seeks to Recoup OT Pay Under FLSA -------------------------------------------------------------- HEATHER GARRETT on behalf of herself individually, and ALL OTHERS SIMILARLY SITUATED Plaintiffs, v. MED SECURITY, INC., Defendant, Case No. 4:16-cv-03376 (S.D. Tex., November 15, 2016), seeks to recover unpaid overtime wages under the Fair Labor Standards Act. The proposed "Plaintiff Class" are current and former employees of Defendant who work, or have worked, for Defendant as "Commissioned Officers" and whose job duties included patrolling on foot or cart, monitoring vehicles, and providing security for persons and properties contracted by defendant. The Plaintiff is represented by: Taft L. Foley, II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 E-mail: Taft.Foley@thefoleylawfirm.com MILWAUKEE COUNTY: Lowered Retirement Benefits, Class Suit Says -------------------------------------------------------------- Courthouse News Service reported that a class claims in federal court that Milwaukee County lowers employees' retirement benefits by reducing their years-of-service credit without their knowledge or consent. MISSISSIPPI, USA: Fletcher Appeals S.D. Miss. Ruling to 5th Cir. ---------------------------------------------------------------- Intervenor-Plaintiff Cynthia Fletcher filed an appeal from a court ruling relating to the lawsuit styled USA v. State of Mississippi, Case No. 3:70-CV-4706, in the U.S. District Court for the Southern District of Mississippi, Jackson. The appellate case is captioned as USA v. State of Mississippi, Case No. 16-60722, in the U.S. Court of Appeals for the Fifth Circuit. The lawsuit arose from alleged civil rights violations. Intervenor Plaintiff-Appellant CYNTHIA FLETCHER, A minor, by Rev. Artis Fletcher, as next friend, and Gloria Jean Barnes and David Barnes, minors, by Rev. Theotis Smith, as next friend, suing in their own behalf and on behalf of all others similarly situated, is represented by: Suzanne Griggins Keys, Esq. PRECIOUS MARTIN, SR. & ASSOCIATES, P.L.L.C. P.O. Box 373 Jackson, MS 39201-0000 Telephone: (601) 944-1447 Facsimile: (601) 944-1448 E-mail: skeys@ptmandassoc.com Intervenor Defendant-Appellee SIMPSON COUNTY SCHOOL DISTRICT is represented by: Holmes S. Adams, Esq. ADAMS & REESE, L.L.P. 1018 Highland Colony Parkway Ridgeland, MS 39157 Telephone: (601) 292-0723 Facsimile: (601) 355-9708 E-mail: holmes.adams@arlaw.com MONTGOMERY COUNTY, TN: Quinton Appeals Ruling to 6th Circuit ------------------------------------------------------------ Cage Quinton, on behalf of those similarly situated, filed an appeal from a court ruling in the lawsuit entitled Cage Quinton v. Stephanie Stuard, et al., Case No. 3:16-cv-02611, in the U.S. District Court for the Middle District of Tennessee at Nashville. As previously reported in the Class Action Reporter on Oct. 12, 2016, the putative class action lawsuit has been filed against Stephanie Rojannah Stuard, Complainant; John Wesley Carney, Jr., District Attorney; Arthur M. Bieber, Asst. District Attorney; Phillip Ward, Sgt. Montgomery County Sheriff's Dept.; Billy Smith, Former Sheriff; Brian Prentice, Sgt. Clarksville Police Dept.; Robert Ott, Sgt. THP; Estate of James E. Walton, Judge. The nature of suit is stated as "Prisoner: Civil Rights." The appellate case is captioned as Cage Quinton v. Stephanie Stuard, et al., Case No. 16-6631, in the United States Court of Appeals for the Sixth Circuit. MYLAN: Investigations Into EpiPen Pricing Piling Up --------------------------------------------------- Lydia Ramsey, writing for Business Insider, reports that the lawyers at Mylan, the drugmaker at the center of outrage over the rising price of the EpiPen, must be busy these days. The company filed its quarterly report with the Securities and Exchange Commission on Nov. 9, and updated investors about ongoing legal matters. The list is growing. The company recently said it is going to pay $465 million to the Department of Justice and other government agencies over the way it classified the EpiPen in the Medicaid Drug Rebate Program. But that's not the only legal matter Mylan's facing. The company's also under investigation generic price collusion, unrelated to the EpiPen. For the sake of keeping everything straight, here are all the subpoenas Mylan's disclosed, in its 10- Q. What was disclosed in the third-quarter 10-Q for the first time -- Business Insider learned that the DOJ subpoenaed Mylan back in November 2014 over the classification of the EpiPen in the case that just got settled. Mylan has also received a document request from the SEC about this classification issue and Mylan's communications with the Centers for Medicare and Medicaid. -- Class action lawsuits on behalf of shareholders were filed in October 2016, alleging that Mylan "made false or misleading statements and omissions of purportedly material fact" regarding the classification of the EpiPen under Medicaid. Mylan said the lawsuits are without merit. -- Consumer class action lawsuits were also filed in August 2016 over the pricing and marketing of the EpiPen. -- Mylan's also facing a shareholder lawsuit out of Israel as of October 13 2016, also regarding EpiPen's classification under Medicaid. Mylan said this suit was also without merit. -- State attorneys general have subpoenaed Mylan for pricing and marketing information regarding EpiPen. -- Employees and one member of Mylan's senior management on September 8, 2016 received subpoenas from the Department of Justice relating to the marketing pricing and sale of some of Mylan's generic products, as well as Mylan's communications with its competitors. This is related to the reports that the DOJ is looking into generic drug price fixing. -- In September 2016, a class action case was filed in Pennsylvania regarding alleged price-fixing the cholesterol medication Pravastatin. Mylan noted that it intends to "deny liability." Investigations that were in the second-quarter 10-Q as well -- SEC investigation that started September 10, 2015 regarding "certain related party matters." -- Mylan also received subpoenas in December 2015 from the Antitrust Division of the DOJ and the attorney general of Connecticut regarding the price and marketing of Doxycycline, an antibiotic. NAT'L FOOTBALL: Players Urge Supreme Court to Review Settlement --------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that the last time the U.S. Supreme Court ruled on a challenge to an approved class action settlement, AOL ruled the Internet, Bill Clinton was president and Donald Trump was months away from considering a run for the presidency in an October 1999 interview with Larry King. It was a long time ago, in other words. The National Football League and plaintiffs' lawyers representing a class of more than 20,000 retired players said in Supreme Court briefs filed on Nov. 4 that there is no need for the justices to revisit the rules for protecting the interests of future class members. Those rules were set out in a pair of asbestos cases, 1997's Amchem v. Windsor and 1999's Ortiz v. Fibreboard, which, broadly speaking, established that class settlements can only be approved if plaintiffs with different sorts of injuries -- and, thus, potential conflicts of interest -- are adequately represented. Since those decisions, only a handful of mass torts have been resolved through class action settlements, rather than global settlements that resolve claims individually through an injury matrix. The NFL's $1 billion settlement of retired players' traumatic brain injury claims, as Reuters' Frankel reported, seemed to reopen the door to personal injury class action settlements. The plaintiffs' steering committee, co-led by Seeger Weiss and Anapol Weiss, recognized during mediation with the NFL's lawyers at Paul Weiss Rifkind Wharton & Garrison that retired players who had already developed neurological disorders had different interests than those who might develop them in the future. The steering committee appointed counsel for these two subclasses -- but the appointed lawyers came from the steering committee's own ranks. Ultimately, after rejecting an initial settlement proposal, the trial judge overseeing the consolidated litigation, U.S. District Judge Anita Brody, said the deal passed muster under Amchem and Ortiz because each subclass was fairly represented. The 3rd U.S. Circuit Court of Appeals affirmed Judge Brody's approval last March, agreeing that the two subclasses were fairly represented by the independent counsel appointed to protect their interests. "Simply put," wrote Judge Thomas Ambro for a panel that also included Judge Thomas Hardiman and Richard Nygaard, "this case is not Amchem." Two groups of objectors (comprising 33 players in all) filed petitions for Supreme Court review. Frankel is focusing only on one of those petitions, Armstrong v. National Football League, because it asserts a broad argument that since Amchem and Ortiz, the 2nd and 3rd Circuits have split on what constitutes adequate representation of subclasses. According to Deepak Gupta of Gupta Wessler, Supreme Court counsel for the Armstrong objectors, the 2nd Circuit would not have approved the NFL concussion settlement because players who may develop certain brain diseases in the future were not adequately represented. The steering committee member who represented their subclass, the objectors said, was conflicted because he also represented individual class members with current injuries. The petition called the 3rd Circuit's approval of the settlement "a blueprint for circumventing Amchem and Ortiz." The 2nd Circuit, Mr. Gupta said in the objectors' petition, held in the In re Literary Works case and again just last summer in the Visa and MasterCard interchange fee litigation that when different groups of plaintiffs have conflicting interests, those subclasses must have their own counsel. The 2nd Circuit is so clear on this point, the petition said, that if a retired football player sued in that circuit in a collateral attack on the class action settlement, the settlement might well be dissolved. "The 3rd Circuit has drifted away from Amchem," Mr. Gupta said. "The split (with the 2nd Circuit) could unravel this litigation years after the fact." That's preposterous, according to the NFL and lawyers for the class. The NFL's brief opposing Supreme Court review emphasized the overall fairness of the settlement, which generated only about 200 objectors and about 200 opt-outs. The league's Supreme Court counsel of record, Paul Clement of Kirkland & Ellis, said the justices' holdings in Amchem and Ortiz did not create a bright- line rule for class action settlements that resolve different sorts of claims. "Instead, the question is whether the settlement and the process that produced it eliminated the concerns identified in Amchem and Ortiz," the NFL brief said. (It's worth pointing out that Clement represented class counsel in the credit card interchange fee class action in their failed defense of the settlement at the 2nd Circuit.) Plaintiffs' Supreme Court brief in the NFL case, from counsel of record Samuel Issacharoff of New York University, went into more detail about why there really is no split between the 2nd and 3rd Circuits. According to plaintiffs' lawyers, the 2nd Circuit cases objectors cite are easily distinguishable from the NFL concussion case because subclasses didn't have their own counsel in either the credit card or literary works settlements. That's a stark contrast, the brief said, from the NFL settlement, in which current and future claimants had their own lawyers -- and in which hundreds of plaintiffs' lawyers representing individual NFL players provided additional structural protection when they reviewed the deal with their clients in mind. "Neither 2nd Circuit case demonstrates a circuit conflict or raises any concern that the settlement here would have been struck down had it been before that circuit," the class brief said. "Neither looks remotely like this case, which involves what may be the most cohesive, self-aware class ever found in litigation: over 20,000 retired NFL players, all of whom are fully aware of the fact of having played in the NFL, more than 5,000 represented by hundreds of independent lawyers, and all flyspecking one of the most publicized civil settlements in history." Frankel doubts the Supreme Court will take the case, but Mr. Gupta's petition nevertheless raises an important point. If the NFL case does turn out to be a roadmap for class action settlements of personal injury claims, settlement negotiators should anticipate the need for independent counsel for subclasses. The sooner they protect against conflicts of interest, the lower the odds objectors will be able to delay the process. NESTLE: Judge Rejects Class Action Over Beneful Dog Food -------------------------------------------------------- Nick Iovino, writing for Courthouse News Service, reported that a federal judge on November 17, in San Francisco, struck down a class action claiming Nestle Purina's Beneful dog food killed or sickened thousands of pooches. Citing lack of evidence to prove the dog food, and not some other factors, caused the pets to get sick, U.S. District Judge Edward Chen granted summary judgment to Nestle Purina Pet Care Company. "[The] ruling confirms what millions of pet owners already know -- that Beneful is a safe, healthy, and nutritious dog food that millions of dogs enjoy every day," Nestle Purina spokeswoman Wendy Vlieks said in an email on November 17. Lead plaintiff Frank Lucido sued the company in February 2015, claiming it failed to adequately test its dog food or disclose the presence of toxins in the chow. An analysis of 28 samples revealed three types of toxins: propylene glycol; mycotoxins, a fungal mold on grain; and the heavy metals arsenic and lead. But the level of toxins found in the dog chow did not exceed limits permitted by the U.S. Food and Drug Administration. Plaintiffs' expert analyzed 28 of 1,400 dog food samples from incidents of dogs that got ill after eating Beneful. The sampling was limited because not all dog owners had kept the chow. The expert, animal toxicologist Dr. John Tegzes, claimed the FDA based its dog chow toxin limits only on short-term exposure and did not consider the effects of long-term exposure. He said studies used to establish FDA tolerance limits were "poorly designed" and tended to look only at the effects on dogs over weeks, rather than years. While Tegzes could not say definitively that the toxins caused the dogs to get sick, he concluded that chronic exposure to mycotoxins, heavy metals and glycols posed a "significant health risk" to dogs and could adversely affect their health. Chen rejected that conclusion, finding that Tegzes lacked two key pieces of data to support his finding: the exact level of mycotoxins in the dog food and what specific level of mycotoxins actually poses a safety risk. Chen also said the expert failed to examine the afflicted dogs' veterinary records and consider other factors that may have caused them to get sick. Additionally, Chen found scientific literature cited to support those conclusions insufficient, and that Tegzes himself acknowledged "research is lacking about how these combinations of contaminants affect the health of dogs over the lifespan." "Dr. Tegzes's opinion is not reliable because the scientific literature he invokes is either too speculative or too imprecise," Chen wrote in his 24-page ruling. "Simply put, Dr. Tegzes cites no epidemiological evidence that long-term exposure to mycotoxins at levels below the limits set by the FDA leads to serious health risks for dogs." The judge also rejected Tegzes' testimony that Nestle Purina failed to adequately test its dog food, finding Tegzes had no specialized knowledge of pet food manufacturing, testing or control procedures to offer such an opinion. Chen refused to let Tegzes and another expert, veterinarian Dr. Jena Questen, opine about the importance of dog food safety and testing for consumers, finding that neither witness was qualified to testify on "consumer preferences." Chen said the plaintiffs' case ultimately relied on Tegzes' opinions, and that "because the court finds Dr. Tegzes' opinions unreliable, plaintiffs' case has no evidentiary support." He granted Nestle Purina's motion to exclude the expert testimony and its motion for summary judgment, and closed the case. Chen denied the plaintiffs' request to submit additional evidence and entered final judgment in favor of Nestle Purina Pet Care. Vlieks said in the email that her company ranks the health and well-being of pets as its number-one commitment and that its quality control and safety protocols are "the gold standard" for the pet food industry. "Beneful is made in Purina-owned facilities across the U.S. and ingredients always meet or exceed every federal and state requirement," Vlieks said. "In a typical 24-hour production, Purina conducts 30,000 quality checks involving ingredient/packaging, receiving, processing and packing. We take these steps to ensure that our consumers and their pets have safe, quality products." Nestle Purina Pet Care reported $11.5 billion in sales and $2.4 billion in profit for its global parent company in 2015, making up 7.7 percent of Nestle's $88.8 billion in revenue last year, according to the firm's 2015 annual report. Class attorney Jeffery Cereghino of Ram, Olson, Cereghino & Kopczynski in San Francisco did not immediately return a phone call seeking comment on November 17. The case is, FRANK LUCIDO, et al., Plaintiffs, v. NESTLE PURINA PETCARE COMPANY, Defendant, Case No. 15-cv-00569-EMC (N.D. Cal.). A copy of the Court's decision is available at https://is.gd/5T3tI9 Frank Lucido, Plaintiff, represented by Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski LLP, Susan S. Brown, Ram, Olson, Cereghino & Kopczynski LLP, Adam D. Lynn, The Richman Law Group, pro hac vice, David Pastor, Pastor Law Office LLP, pro hac vice, James Dennis Young, Morgan and Morgan, pro hac vice, Jennifer Rust Murray, Terrell Marshall Law Group PLLC, pro hac vice, John A. Yanchunis, Morgan and Morgan, P.A., pro hac vice, Roger L. Mandel, Lackey Hershman LLP, pro hac vice & Beth E. Terrell, Terrell Marshall Law Group PLLC. Jennifer Hickey, Plaintiff, represented by David Pastor, Pastor Law Office LLP, pro hac vice, Jeffrey B. Cereghino, Ram, Olson, Cereghino & Kopczynski LLP, Jennifer Rust Murray, Terrell Marshall Law Group PLLC, Roger L. Mandel, Lackey Hershman LLP, pro hac vice, Susan S. Brown, Ram, Olson, Cereghino & Kopczynski LLP, Beth E. Terrell, Terrell Marshall Law Group PLLC & Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski LLP. Christina Winters, Plaintiff, represented by Adam D. Lynn, The Richman Law Group, pro hac vice, David Pastor, Pastor Law Office LLP, pro hac vice, Jeffrey B. Cereghino, Ram, Olson, Cereghino & Kopczynski LLP, Jennifer Rust Murray, Terrell Marshall Law Group PLLC, pro hac vice, Roger L. Mandel, Lackey Hershman LLP, pro hac vice, Beth E. Terrell, Terrell Marshall Law Group PLLC & Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski LLP. David Balmer, Plaintiff, represented by Alan M. Mansfield, Whatley Kallas, LLP, David Pastor, Pastor Law Office LLP, pro hac vice, Jay Wayne Swearingen, The Animal Law Center, LLC, Jeffrey B. Cereghino, Ram, Olson, Cereghino & Kopczynski LLP, Jennifer Reba Edwards, The Animal Law Center, LLC, pro hac vice, Jennifer Rust Murray, Terrell Marshall Law Group PLLC, John A. Yanchunis, Morgan and Morgan, P.A., Roger L. Mandel, Lackey Hershman LLP, pro hac vice, Beth E. Terrell, Terrell Marshall Law Group PLLC & Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski LLP. Virginia Burgardt, Plaintiff, represented by Adam D. Lynn, The Richman Law Group, pro hac vice, David Pastor, Pastor Law Office LLP, pro hac vice, Jeffrey B. Cereghino, Ram, Olson, Cereghino & Kopczynski LLP, Jennifer Rust Murray, Terrell Marshall Law Group PLLC, pro hac vice, Roger L. Mandel, Lackey Hershman LLP, pro hac vice, Beth E. Terrell, Terrell Marshall Law Group PLLC & Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski LLP. Elizabeth Rodarte, Plaintiff, represented by Adam D. Lynn, The Richman Law Group, pro hac vice, David Pastor, Pastor Law Office LLP, pro hac vice, Jeffrey B. Cereghino, Ram, Olson, Cereghino & Kopczynski LLP, Jennifer Rust Murray, Terrell Marshall Law Group PLLC, pro hac vice, Roger L. Mandel, Lackey Hershman LLP, pro hac vice, Beth E. Terrell, Terrell Marshall Law Group PLLC & Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski LLP. Nestle Purina Pet Care Company, Defendant, represented by Dale Joseph Giali -- dgiali@mayerbrown.com -- Andrea M. Weiss -- aweiss@mayerbrown.com -- at Mayer Brown LLP, Carmine R. Zarlenga, III, Attorney at Law & Keri Elizabeth Borders -- kborders@mayerbrown.com -- Mayer Brown LLP. NEW RESIDENTIAL: Still Defends Consolidated Suit in Florida ----------------------------------------------------------- New Residential Investment Corp. 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 New Residential continues to defend against the securities class action in Florida. Three putative class action lawsuits have been filed against HLSS and certain of its current and former officers and directors in the United States District Court for the Southern District of New York entitled: (i) Oliveira v. Home Loan Servicing Solutions, Ltd., et al., No. 15-CV-652 (S.D.N.Y.), filed on January 29, 2015; (ii) Berglan v. Home Loan Servicing Solutions, Ltd., et al., No. 15-CV-947 (S.D.N.Y.), filed on February 9, 2015; and (iii) W. Palm Beach Police Pension Fund v. Home Loan Servicing Solutions, Ltd., et al., No. 15-CV-1063 (S.D.N.Y.), filed on February 13, 2015. On April 2, 2015, these lawsuits were consolidated into a single action, which is referred to as the "Securities Action." On April 28, 2015, lead plaintiffs, lead counsel and liaison counsel were appointed in the Securities Action. On November 9, 2015, lead plaintiffs filed an amended class action complaint. On January 27, 2016, the Securities Action was transferred to the United States District Court for the Southern District of Florida and given the Index No. 16-CV-60165 (S.D. Fla.). The Securities Action names as defendants HLSS, former HLSS Chairman William C. Erbey, HLSS Director, President, and Chief Executive Officer John P. Van Vlack, and HLSS Chief Financial Officer James E. Lauter. The Securities Action asserts causes of action under Sections 10(b) and 20(a) of the Exchange Act based on certain public disclosures made by HLSS relating to its relationship with Ocwen and HLSS's risk management and internal controls. More specifically, the consolidated class action complaint alleges that a series of statements in HLSS's disclosures were materially false and misleading, including statements about (i) Ocwen's servicing capabilities; (ii) HLSS's contingencies and legal proceedings; (iii) its risk management and internal controls; and (iv) certain related party transactions. The consolidated class action complaint also appears to allege that HLSS's financial statements for the years ended 2012 and 2013, and the first quarter ended March 30, 2014, were false and misleading based on HLSS's August 18, 2014 restatement. Lead plaintiffs in the Securities Action also allege that HLSS misled investors by failing to disclose, among other things, information regarding governmental investigations of Ocwen's business practices. Lead plaintiffs seek money damages under the Exchange Act in an amount to be proven at trial and reasonable costs, expenses, and fees. On February 11, 2015, defendants filed motions to dismiss the Securities Action in its entirety. On June 6, 2016, all allegations except those regarding certain related party transactions were dismissed. New Residential intends to vigorously defend the Securities Action. New Residential Investment Corp. is a Delaware corporation that was formed as a limited liability company in September 2011 for the purpose of making real estate related investments and commenced operations on December 8, 2011. NEW RESIDENTIAL: Awaits Decision on Motion for Reargument --------------------------------------------------------- New Residential Investment Corp. 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 decision on the motion for reargument in the case by Chester County Employees' Retirement Fund. On May 22, 2015, a purported stockholder of the Company, Chester County Employees' Retirement Fund, filed a class action and derivative action in the Delaware Court of Chancery purportedly on behalf of all stockholders and the Company, titled Chester County Employees' Retirement Fund v. New Residential Investment Corp., et al., C.A. No. 11058-VCMR. On October 30, 2015, plaintiff filed an Amended Complaint. The Company said, "The lawsuit names the Company, our directors, our Manager, Fortress and Fortress Operating Entity I LP as defendants, and alleges breaches of fiduciary duties by the Company, our directors, our Manager, Fortress and Fortress Operating Entity I LP in connection with the HLSS Acquisition. The lawsuit also seeks declaratory judgment, among other things, as to the applicability of Article Twelfth of the Company's Certificate of Incorporation and as to the validity of the release of claims of the Company's stockholders related to the termination of the HLSS Initial Merger Agreement. The Amended Complaint seeks declaratory relief, equitable relief and damages." "On December 11, 2015, defendants filed a motion to dismiss the Amended Complaint, which was heard by the court on June 14, 2016. On October 7, 2016, the court issued an opinion dismissing without prejudice the breach of fiduciary duty claims and declaratory judgment claims, except for the claim relating to the applicability of Article Twelfth. On October 14, 2016, plaintiff moved to reargue the Court's dismissal opinion, and defendants filed an opposition to the motion for reargument on October 28, 2016. The parties are awaiting decision on the motion for reargument." New Residential Investment Corp. is a Delaware corporation that was formed as a limited liability company in September 2011 for the purpose of making real estate related investments and commenced operations on December 8, 2011. OVASCIENCE INC: To Seek Dismissal of Amended Complaint ------------------------------------------------------ Ovascience, 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 is in the process of filing a motion to dismiss the amended consolidated complaint. The Company said, "On October 9, 2015, a purported class action lawsuit was filed in the Suffolk County Superior Court in the Commonwealth of Massachusetts (the "Superior Court") against us, several of our officers and directors and certain of the underwriters from our January 2015 follow-on public offering of our common stock. The plaintiffs purport to represent those persons who purchased shares of our common stock pursuant or traceable to our January 2015 follow-on public offering. The plaintiffs allege, among other things, that the defendants made false and misleading statements and failed to disclose material information in the Company's January 2015 Registration Statement and incorporated offering materials. Plaintiffs allege violations of Sections 11, 12 and 15 of the Securities Act and seek, among other relief, unspecified compensatory damages, rescission, pre- and post-judgment interest and fees, costs and disbursements." "On December 7, 2015, the OvaScience defendants filed a notice of removal with the Federal District Court for the District of Massachusetts (the "District Court"). On December 30, 2015, plaintiffs filed a motion to remand the action to the Superior Court. "Oral argument on the motion to remand was held on February 19, 2016. On February 23, 2016, the District Court granted plaintiffs' motion to remand the action to the Superior Court. "On February 26, 2016, a second purported class action lawsuit was filed in the Suffolk County Superior Court in the Commonwealth of Massachusetts, alleging substantially the same claims against the same parties as the action filed on October 9, 2015. "On April 4, 2016, the Superior Court granted the parties' joint motion to consolidate the two cases and appoint co-lead plaintiffs, and ordered the co-lead plaintiffs to file an amended consolidated complaint within sixty days. "On June 17, 2016, co-lead plaintiffs filed an amended consolidated complaint asserting similar allegations and alleging violations of the same sections of the Securities Act of 1933 as the original complaint. "On October 27, 2016, the Court granted plaintiffs' motion to intervene to add an additional name plaintiff. "We are in the process of filing a motion to dismiss the amended consolidated complaint. We believe that the amended consolidated complaint is without merit and intend to defend against the litigation. There can be no assurance, however, that we will be successful. "A resolution of this lawsuit adverse to the Company or the other defendants could have a material effect on our consolidated financial position and results of operations in the period in which the lawsuit is resolved. At present, we are unable to estimate potential losses, if any, related to the lawsuit." OvaScience, Inc., is a global fertility company developing proprietary potential treatments for female infertility based on scientific discoveries about the existence of egg precursor, or EggPCSM, cells. PARTNERS REAL ESTATE: Feb. 10 Class Action Opt-Out Deadline Set --------------------------------------------------------------- THIS NOTICE IS IMPORTANT TO YOU. IT IS PUBLISHED BY ORDER OF THE ONTARIO SUPERIOR COURT OF JUSTICE This notice is directed to all persons and entities, wherever they may reside or be domiciled, who held units of Partners Real Estate Investment Trust ("Partners REIT" or the "REIT") as of the close of trading on April 1, 2014, other than Excluded Persons (the "Class" or "Class Members"). Excluded Persons are the defendants, described below, and any entities owned or controlled by the defendants; past or present subsidiaries or affiliates of Partners REIT and Holyrood Holdings Limited ("Holyrood"); and past or present officers, directors, senior employees, partners, legal representatives, heirs, predecessors, successors and assigns of the defendants and their immediate family members. THE CERTIFICATION ORDERS On November 8, 2016, the Ontario Superior Court of Justice (the "Court") certified the action Locking v. McCowan et al., Court File No. CV-14-517117-00CP (the "Class Action") as a class proceeding and appointed Daniel Locking as representative plaintiff (the "Representative Plaintiff"). The defendants in the Class Action are Ronald McCowan ("McCowan"), Allen W. Weinberg ("Weinberg"), Joseph Feldman, Marc Charlebois, Laura Philp ("Philp") and Holyrood (collectively, the "Defendants"). The Class Action relates to the circumstances surrounding Partner REIT's decision to enter a transaction, announced on April 2, 2014 (the "Transaction"), for the purchase of certain Ontario properties from Holyrood. On behalf of Class Members, the plaintiff alleges that the Transaction was contrary to applicable laws, including the REIT's Declaration of Trust and applicable rules of the Toronto Stock Exchange, because the vendor Holyrood was not dealing at arm's length with McCowan, then CEO of the REIT. It is further alleged that McCowan, Philp, Weinberg, and Holyrood conspired to enable McCowan to gain control of Partners REIT without seeking the required approval from unitholders. The action seeks to recover damages allegedly sustained to the Class Members' units of the REIT as a result of the Transaction. The certification order means that the Class Action may proceed to trial as a class action. Certification is a preliminary procedural matter. The merits of the claims in the Class Action, and the allegations of fact on which the claims are based, have not been finally determined by the Court. The Defendants deny that the claims in the action have merit. DO NOTHING IF YOU WANT TO PARTICIPATE IN THE CLASS ACTION Class Members who want to participate in the Class Action are automatically included and need not do anything at this time. YOU MUST OPT OUT IF YOU DO NOT WANT TO PARTICIPATE IN THE CLASS ACTION Class Members who do not want to participate in the Class Action must opt out. If you want to opt out of the Class Action, you must complete a signed letter stating that you elect to opt out of the Partners REIT Class Action and the letter must provide all of the following information: (i) The number of units of Partners REIT you held as of the close of trading on April 1, 2014; AND (ii) Your name, address, telephone number, and signature. If you are submitting an opt-out request on behalf of a corporation or other entity, you must state your position and authority to bind the corporation or entity. Your opt-out request must be sent by email, fax or mail to: Investigation Counsel P.C. Re: Partners REIT Class Action 350 Bay Street, Suite 300 Toronto ON M5H 2S6 Email: partnersreitclassaction@investigationcounsel.com Fax: 416-637-3445 In order for your opt out request to be valid, it must be postmarked or received no later than February 10, 2017 and it must contain all of the required information. Each Class Member who does not opt out of the Class Action will be bound by the terms of any judgment or settlement, whether favourable or not, and will not be allowed to prosecute an independent action against any of the Defendants for any of the factual matters raised in the Class Action. If the Class Action is successful, you may be entitled to share in the amount of any award or settlement recovered. A Class Member who opts out will not be entitled to participate in the Class Action and will not be entitled to share in the amount of any award or settlement. A minor or a mentally incapable Class Member cannot be opted out of the Class without permission of the Court. The Children's Lawyer and/or the Public Guardian and Trustee, as applicable, must receive notice of such an opt-out request. NO DIRECT COST TO YOU The Representative Plaintiff has entered into a contingency fee retainer agreement with law firm Investigation Counsel P.C. which provides that counsel will be paid if the Class Action is successful or costs are recovered from the Defendants. If the action is successful, either through judgment on the common issues or by way of an approved settlement, the legal fees will be set by the Court, and the Court may order that these fees be paid out of the settlement proceeds or by the Defendants. If the class action is not successful, you will NOT be responsible for any legal costs of the Class Action and will NOT have any other financial obligations because of the Class Action. NOTICE TO BROKERS Please deliver this notice by email no later than December 12, 2016 to your clients who held units of Partners REIT as of the close of trading on April 1, 2014, for whom you have valid email addresses. If you have affected clients for whom you do not have valid email addresses, please contact Investigation Counsel P.C. to obtain hard copies of this notice for the purpose of mailing the notice to those clients or provide Investigation Counsel P.C. with the mailing addresses of those clients and Investigation Counsel P.C. will mail the notices directly to those clients. Brokerage firms may collectively request up to $5,000 in total for the expenses relating to the distribution of this notice to Class Members. If the amounts submitted in aggregate exceed $5,000, each brokerage firm's claim shall be reduced on a pro rata basis. Brokerage firms must submit an invoice to Investigation Counsel P.C. by January 13, 2017 to be eligible for reimbursement. PENSION BENEFIT: Collins Appeals D. Columbia Ruling to D.C. Cir. ---------------------------------------------------------------- Plaintiffs Mary F. Caples, Mary E. Collins and Anna M. Vendola filed an appeal from a court ruling in their lawsuit styled Mary Collins, et al. v. PBGC, et al., Case No. 1:88-cv-03406-JEB, in the United States District Court for the District of Columbia. As previously reported in the Class Action Reporter on Oct. 10, 2016, Judge James E. Boasberg issued a contemporaneous order denying the class counsel's motion seeking further fees in the cases captioned ESTELLA PAGE, et al., Plaintiffs, v. PENSION BENEFIT GUARANTY CORPORATION, Defendant, and MARY COLLINS, et al., Plaintiffs, v. PENSION BENEFIT GUARANTY CORPORATION, Defendant, Civil Action Nos. 89-2997 (JEB), 88-3406 (JEB) (D.C.). A full-text copy of Judge Boasberg's October 3, 2016 memorandum opinion is available at https://is.gd/jgslXl from Leagle.com. In 1986 and 1988, two class-action lawsuits were filed against the Pension Benefit Guaranty Corporation (PBGC) over the termination of federally insured pension plans. After extended negotiations, the class counsel and the PBGC entered into a Settlement Agreement in these suits in 1996. The settlement-implementation phase finally came to an end in 2002 with the settlement fund having paid out over $922 million in benefits to class members. When these benefit payments were made, the class counsel, in turn, received 8% of them as attorney fees, or around $75 million. The appellate case is captioned as Mary Collins, et al. v. PBGC, et al., Case No. 16-5310, in the United States Court of Appeals for the District of Columbia Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant docketing statement is due on November 30, 2016; -- Appellant certificate as to parties is due on November 30, 2016; -- Appellant statement of issues is due on November 30, 2016; -- Appellant underlying decision is due on November 30, 2016; -- Appellant deferred appendix statement is due on Nov. 30, 2016; -- Appellant notice of appearance is due on November 30, 2016; -- Appellant transcript status report is due on November 30, 2016; -- Appellant procedural motions are due on November 30, 2016; -- Appellant dispositive motions are due on December 15, 2016, -- Appellee certificate as to parties is due on November 30, 2016; -- Appellee entry of appearance is due on November 30, 2016; -- Appellee procedural motions are due on November 30, 2016; -- Appellee dispositive motions are due on December 15, 2016; -- Clerk's Order filed consolidating cases 16-5318 (Consolidation started November 1, 2016) with 16-5310; directing party to file in 16-5318 initial submissions: APPELLANT docketing statement is due on December 1, 2016; and -- Appellant statement of issues is due on December 1, 2016 [16-5310, 16-5318]. Plaintiffs-Appellants Mary E. Collins, Mary F. Caples, and Anna M. Vendola, Individually, and on behalf of all others similarly situated, are represented by: Stephen Robert Bruce, Esq. STEPHEN R. BRUCE LAW OFFICES 1667 K Street, NW, Suite 1230 Washington, DC 20006 Telephone: (202) 371-8013 E-mail: stephen.bruce@prodigy.net Defendant-Appellee Pension Benefit Guaranty Corporation is represented by: Charles Glaston Cole, Esq. Molly Bruder Fox, Esq. Gwendolyn Prothro Renigar, Esq. STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036-1795 Telephone: (202) 429-3000 E-mail: ccole@steptoe.com mbfox@steptoe.com grenigar@steptoe.com - and - Joseph James Shelton, Esq. ASSISTANT GENERAL COUNSEL PENSION BENEFIT GUARANTY CORPORATION 1200 K Street, NW Washington, DC 20005-4026 Telephone: (202) 326-4020 E-mail: shelton.joseph@pbgc.gov Defendant-Appellee M & M Transportation Company Pension Plan is represented by: Joseph James Shelton, Esq. ASSISTANT GENERAL COUNSEL PENSION BENEFIT GUARANTY CORPORATION 1200 K Street, NW Washington, DC 20005-4026 Telephone: (202) 326-4020 E-mail: shelton.joseph@pbgc.gov PHYSICIAN'S FORMULA: Sued Over Deceptive Marketing Practices ------------------------------------------------------------ Michael Abella, writing for Legal Newsline, reports that a consumer has filed a class action lawsuit against Physician's Formula Cosmetics, Inc. and Physicians Formula, Inc., cosmetics manufacturers, citing alleged false, deceptive and misleading representations. Qiu-Yun Zhang filed a complaint on behalf of all others similarly situated on Nov. 2, in the U.S. District Court for the Southern District of New York against the defendants alleging that they violated the New York General Business Law. According to the complaint, the plaintiff alleges that, in Aug. 27, she purchased defendants' Organic wear(R) 100% Natural Origin CC Color + Correction Cream SPF 20 and Organic wear(R) 100% Natural Lash Boosting Mascara. The plaintiff holds Physician's Formula Cosmetics, Inc. and Physicians Formula, Inc. responsible because the defendants allegedly represented that their products are 100 percent natural, made without harsh chemicals. The plaintiff requests a trial by jury and seeks an order certifying this case as a class action, designating plaintiff and her counsel as representatives, an award for statutory damages, attorney fees and costs. She is represented by Mark Schlachet of Law Offices of Mark Schlachet in Cleveland. U.S. District Court for the Southern District of New York Case number 1:16-cv-07705 PLATINUM LIMOUSINE: Seeks Review of Ruling in "Pelayo" Class Suit ----------------------------------------------------------------- Defendants Platinum Limousine Services, Inc. and Kurt Tsuneyoshi filed an appeal from a court ruling in the lawsuit entitled Arsenio Pelayo, et al. v. Platinum Limousine Services, I, et al., Case No. 1:15-cv-00023-DKW-KJM, in the U.S. District Court for the District of Hawaii, Honolulu. As previously reported in the Class Action Reporter, the complaint alleges that the Defendants: (1) failed to pay overtime and minimum wages in violation of the Fair Labor Standards Act; (2) required employees to work split shifts; (3) failed to timely pay wages when due; (4) converted pay owed the Plaintiff; (5) was unjustly enriched; and (6) owes punitive damages. The appellate case is captioned as Arsenio Pelayo, et al. v. Platinum Limousine Services, I, et al., Case No. 16-16989, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Opening brief of Appellants Platinum Limousine Services, Inc. and Kurt Tsuneyoshi is due on February 6, 2017; -- Answering brief of Appellees Brandon Boreliz, Francis Manankil and Arsenio Pelayo is due on March 6, 2017; -- Appellant's optional reply brief is due 14 days after service of the answering brief; -- First cross appeal brief is due on February 6, 2017, for Platinum Limousine Services, Inc. and Kurt Tsuneyoshi; -- Second brief on cross appeal is due on March 6, 2017, for Brandon Boreliz, Francis Manankil and Arsenio Pelayo; -- Third brief on cross appeal is due on April 6, 2017, for Platinum Limousine Services, Inc. and Kurt Tsuneyoshi; and -- Appellee-Cross Appellant's optional reply brief is due 14 days after service of the Third brief. Plaintiffs-Appellees ARSENIO PELAYO, FRANCIS MANANKIL, and BRANDON BORELIZ, individually and on behalf of all others similarly situated, are represented by: Richard Loren Holcomb, Jr., Esq. HOLCOMB LAW, LLLC 1136 Union Mall, Suite 808 Honolulu, HI 96813 Telephone: (808) 545-4040 Facsimile: (808) 356-1954 E-mail: rholcomblaw@live.com Defendants-Appellants PLATINUM LIMOUSINE SERVICES, INC., and KURT TSUNEYOSHI are represented by: Sheri J. Tanaka, Esq. LAW OFFICE OF SHERI J. TANAKA 4348 Waialae Avenue, #586 Honolulu, HI 96816 Telephone: (808) 276-4942 Facsimile: (808) 748-3165 E-mail: sheri.tanaka@gmail.com PMLRA PIZZA: Files Another First Circuit Appeal in "Reeves" Suit ---------------------------------------------------------------- Defendants PMLRA Pizza, Inc., and Henry Askew filed an appeal from a court ruling in the lawsuit entitled Reeves v. PMLRA Pizza, Inc., et al., Case No. 1:16-cv-10474-WGY, in the U.S. District Court for the District of Massachusetts, Boston. The appellate case is captioned as Reeves v. PMLRA Pizza, Inc., et al., Case No. 16-2303, in the United States Court of Appeals for the First Circuit. As previously reported in the Class Action Reporter, the Defendants have filed appeals in the Federal Circuit and the First Circuit. Tyler Reeves brought suit against the Defendants for alleged unremitted service charge from customers due the Plaintiff under the Massachusetts "Tips Act" and "Minimum Wage Act." The First Circuit stated that the Docketing Statement, Transcript Report/Order form and Appearance form are due on November 14, 2016. The First Circuit also notified the parties that the December 1, 2016 amendment to the Federal Rules of Appellate Procedure make significant changes to appellate practice. The full text of the amendments, as well as a summary of major rule changes, is available at https://goo.gl/VBA4oF The changes are effective on December 1, 2016. Plaintiff-Appellee TYLOR REEVES, on behalf of himself and all others similarly situated, is represented by: Brant Casavant, Esq. Stephen S. Churchill, Esq. FAIR WORK P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 231-6777 Facsimile: (617) 488-2261 E-mail: brant@fairworklaw.com steve@fairworklaw.com Defendants-Appellants PMLRA PIZZA, INC., and HENRY ASKEW are represented by: Todd J. Bennett, Esq. Eric R. LeBlanc, Esq. BENNETT & BELFORT, P.C. 24 Thorndike Street, Suite 300 Cambridge, MA 02141 Telephone: (617) 577-8800 Facsimile: (617) 577-8811 E-mail: eleblanc@bennettandbelfort.com tbennett@bennettandbelfort.com PNC CAPITAL: Sixth Circuit Appeal Filed in "Martin" Class Suit -------------------------------------------------------------- Plaintiff Robert Martin filed an appeal from a court ruling in the lawsuit styled Robert Martin v. PNC Capital Investment Advisors, et al., Case No. 1:16-cv-01828, in the U.S. District Court for the Northern District of Ohio at Cleveland. As previously reported in the Class Action Reporter, the lawsuit is brought against PNC Capital on July 20, 2016, over alleged violation of prisoner's civil rights. The Plaintiff is currently incarcerated at the Allen Oakwood Correctional Facility, in Lima, Ohio. PNC Capital is a privately owned investment manager. The Firm provides its services to high net worth individuals and investment companies. The appellate case is captioned as Robert Martin v. PNC Capital Investment Advisors, et al., Case No. 16-4283, in the United States Court of Appeals for the Sixth Circuit. The Plaintiff appears pro se. The Defendants-Appellees are PNC CAPITAL INVESTMENT ADVISORS, MICHELLE L. VEGA, THOMPSON HINES, DAN CHURCHILL, JANE AND JOHN DOES, CRITCHFIELD CRITCHFIELD & JOHNSON and ROGER D. PROPER, JR. PRIME VALET: "Farasat" Claims Non-payment of Min. Wage Under FLSA ----------------------------------------------------------------- ARASH FARASAT, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. PRIME VALET LLC and JOHN JASON WEEKS, individually, Defendants, Case No. 3:16-cv-03182-G (N.D. Tex., November 15, 2016), alleges that Plaintiff was not paid minimum wage in accordance with the Fair Labor Standards Act. Defendant Prime Valet specializes in providing valet services for various businesses and individuals throughout the Dallas/Fort Worth Metroplex. The Plaintiff is represented by: J. Derek Braziel, Esq. J. Forester, Esq. Travis Gasper, Esq. LEE & BRAZIEL, L.L.P. 1801 N. Lamar St. Suite 325 Dallas, TX 75202 Phone: (214) 749-1400 Fax: (214) 749-1010 Web site: http://www.overtimelawyer.com PRONAI THERAPEUTICS: Faces Class Action Over Share Price Drop ------------------------------------------------------------- Courthouse News Service reported that ProNAi Therapeutics raised $144 million in its IPO at $17 a share, then the price dropped to $1.53 when its cancer drug failed, shareholders say in a class action in San Mateo County Court. PRONAI THERAPEUTICS: Levi & Korsinsky Files Class Action -------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased shares of ProNAi Therapeutics, Inc. ("ProNAi") between July 15, 2015 and June 6, 2016 (the "Class Period"). You are hereby notified that a securities class action lawsuit has been commenced in the USDC for the Southern District of New York. To get more information go to: http://www.zlk.com/pslra/pronai-therapeutics-inc or contact Joseph E. Levi, Esq. either via email at jlevi@zlk.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that, throughout the Class Period, ProNAi made materially false and misleading statements about the potential and efficacy of its drug product candidate PNT2258 in the company's public filings, which caused ProNAi's stock price to be artificially inflated throughout the Class Period, thus harming investors. On June 6, 2016, ProNAi revealed that the Phase 2 clinical trials of PNT2258 failed to produce sufficient efficacy results to justify continued clinical development of the drug and, thus, ProNAi was suspending clinical development of PNT2258. Following this news, shares of ProNAi fell more than 67 percent. If you suffered a loss in ProNAi you have until January 9, 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. Levi & Korsinsky -- http://www.zlk.com-- is a national firm with offices in New York, New Jersey, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. RADIOSHACK CORP: Singh Appeals Ruling in ERISA Suit to 5th Cir. --------------------------------------------------------------- Plaintiffs Manoj P. Singh, William A. Gerhart and Jeffrey Snyder filed an appeal from a court ruling in the lawsuit styled In re 2014 RadioShack ERISA Litigation, Case No. 4:14-cv-00959, in the U.S. District Court for the Northern District of Texas, Fort Worth. As previously reported in the Class Action Reporter, Mr. Singh brought the lawsuit against the Defendants for alleged violation of the Employee Retirement Income Security Act. The appellate case is captioned as In re 2014 RadioShack ERISA Litigation, Case No. 16-11587, in the U.S. Court of Appeals for the Fifth Circuit. Plaintiff-Appellant MANOJ P. SINGH is represented by: Mark K. Gyandoh, Esq. KESSLER TOPAZ MELTZER & CHECK, L.L.P. 280 King of Prussia Road Radnor, PA 19087-0000 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: mgyandoh@ktmc.com Plaintiff-Appellant JEFFREY SNYDER is represented by: Roger L. Mandel, Esq. LACKEY HERSHMAN, L.L.P. 3102 Oak Lawn Avenue Dallas, TX 75219 Telephone: (214) 560-2201 Facsimile: (214) 560-2203 E-mail: rlm@lhlaw.net Plaintiff-Appellant WILLIAM A. GERHART, On Behalf of Himself and the RadioShack 401(k) Plan and the RadioShack Puerto Rico 1165(e) Plan, and/or Alternatively on Behalf of a Class Consisting of Similarly Situated Participants and Beneficiaries of the Plans, is represented by: Michael J. Klein, Esq. STULL, STULL & BRODY 6 E. 45th Street New York, NY 10017-0000 Telephone: (212) 687-7230 Facsimile: (212) 490-2022 E-mail: mklein@ssbny.com Defendants-Appellees RADIOSHACK CORPORATION, JAMES F. GOOCH, JOSEPH C. MAGNACCA, MARTIN O. MOAD, ROBERT E. ABERNATHY, FRANK J. BELATTI, JULIA A. DOBSON, DANIEL R. FEEHAN, H. EUGENE LOCKHART, JACK L. MESSMAN, THOMAS G. PLASKELL, EDWINA D. WOODBURY, ADMINISTRATIVE COMMITTEE OF THE RADIOSHACK 401(K) PLAN, ADMINISTRATIVE COMMITTEE OF THE RADIOSHACK PUERTO RICO 1165(E) PLAN, RADIOSHACK 401(K) PLAN EMPLOYEE BENEFITS COMMITTEE, RADIOSHACK PUERTO RICO PLAN EMPLOYEE BENEFITS COMMITTEE, JUSTIN JOHNSON, MARK BARFIELD, KARINA DAVIS, ERIC HALES, MICHAEL E. KEYSER, KEVIN KRAUTKRAMER, SRI REDDY and BOARD OF DIRECTORS OF RADIOSHACK are represented by: Matthew Allen Russell, Esq. MORGAN, LEWIS & BOCKIUS, L.L.P. 77 W. Wacker Drive Chicago, IL 60610 Telephone: (312) 324-1771 E-mail: marussell@morganlewis.com Defendant-Appellee WELLS FARGO BANK, N.A., is represented by: Howard Shapiro, Esq. PROSKAUER ROSE LLP 650 Poydras Street New Orleans, LA 70130-6146 Telephone: (504) 310-4088 Facsimile: (504) 310-2022 E-mail: howshapiro@proskauer.com Defendant-Appellee BANCO POPULAR DE PUERTO RICO is represented by: Dennis J. Keithly, Esq. YUNG KEITHLY, L.L.P. 208 N. Market Street Dallas, TX 75202 Telephone: (214) 220-0422 Facsimile: (214) 220-9932 E-mail: dennis.keithly@yungkeithly.com REDBACK ENERGY: Court Certifies Operators Class in "Caffey" Suit ---------------------------------------------------------------- The Hon. Xavier Rodriguez granted the Plaintiffs' motion for conditional certification in the lawsuit captioned MICHAEL CAFFEY, ET AL. v. REDBACK ENERGY SERVICES, LLC, ET AL., Case No. SA-16-CV- 777-XR (W.D. Tex.). Judge Rodriguez further ordered the parties to confer on the Plaintiffs' motion for approval and distribution of notice. The Plaintiffs brought the case pursuant to the Fair Labor Standards Act alleging that the Defendants did not include non- discretionary bonuses into the calculation of the regular rate when calculating overtime pay. The class is defined as: All hourly paid hands and/or operators who were working in Texas and employed by Redback Coil Tubing at any time since August 1, 2013. Any arguments about whether a two-year or three-year limitations period is appropriate will be resolved when any dispositive motion is filed on the issue of willfulness (or lack thereof), according to the order. A copy of the Order is available at no charge at https://goo.gl/nns1Kl from Leagle.com. Plaintiffs Michael Caffey and Tyce Ciochon are represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com Defendants REDBACK ENERGY SERVICES, LLC, MIKE FERNANDES, PHIL LANCASTER and MARK LAYTON are represented by: William Robinson Stukenberg, Esq. JACKSON LEWIS LLP 1415 Louisiana Street, Suite 3325 Houston, TX 77002-7360 Telephone: (713) 568-7854 Facsimile: (713) 650-0405 E-mail: William.Stukenberg@jacksonlewis.com REWALK ROBOTICS: Faces 2 Class Suits in San Mateo Court ------------------------------------------------------- ReWalk Robotics Ltd. 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 not yet responded to two class action complaints. On September 20, 2016, a putative class action on behalf of alleged shareholders that purchased or acquired the Company's ordinary shares pursuant and/or traceable to the registration statement used in connection with the Company's initial public offering was commenced in the Superior Court of the State of California, County of San Mateo (No. 16 Civ. 01454) against the Company, certain of the Company's current and former directors and officers, and the underwriters of the Company's initial public offering. The complaint asserts claims against all defendants pursuant to Sections 11 and 12(a)(2) of the Securities Act of 1933, as amended, or the Securities Act, and control person claims against current and former directors and officers pursuant to Section 15 of the Securities Act. On or about October 6, 2016, subsequent to the balance sheet date, a substantially similar action alleging claims under Sections 11 and 15 of the Securities Act was filed against the same defendants in the same court by a different plaintiff (No. 16 Civ. 01753). The complaints allege that the Company's registration statement failed to disclose that the Company was unprepared or unable to comply with certain regulatory special controls and to provide the FDA with a post- market surveillance study on the Company's ReWalk Personal device, and that, as a result of such alleged omission, the plaintiffs suffered damages. The Company has not yet responded to the complaints. The Company believes that the allegations made in the complaints are without merit and intends to defend itself vigorously against the complaints. The Company is an innovative medical device company that is designing, developing and commercializing exoskeletons that allow wheelchair-bound individuals with mobility impairments or other medical conditions the ability to stand and walk once again. RL REPPERT: Seeks Third Circuit Review of Ruling in "Askew" Suit ---------------------------------------------------------------- Defendants RL Reppert Inc., RL Reppert Inc. Employees Profit Sharing 401K Plan, RL Reppert Inc. HRA Medical Expense Reimbursement Plan, RL Reppert Inc. Medical Plan, RL Reppert Inc. Money Purchase Plan and Richard Reppert filed an appeal from a court ruling in the lawsuit titled Derrick Askew v. RL Reppert Inc, et al., Case No. 5-11-cv-04003, in the United States District Court for the Eastern District of Pennsylvania. The appellate case is captioned as Derrick Askew v. RL Reppert Inc., et al., Case No. 16-3943, in the United States Court of Appeals for the Third Circuit. As previously reported in the Class Action Reporter on Nov. 4, 2016, Plaintiff Derrick Askew filed an appeal from a court ruling in the his lawsuit. That appellate case is captioned as Derrick Askew v. R.L. Reppert, Inc., et al., Case No. 16-3924, in the United States Court of Appeals for the Third Circuit. On October 21, 2016, the Class Action Reporter reported that District Judge James Knoll Gardner narrows claims in the lawsuit, which was filed on June 17, 2011, alleging, among other things, violations of the document production requirements under the Employee Retirement Income Security Act of 1974. Plaintiff-Appellee DERRICK ASKEW, for himself and as representative of similarly situated employees, is represented by: Kent Cprek, Esq. Marc L. Gelman, Esq. Maureen Marra, Esq. JENNINGS SIGMOND PC 1835 Market Street, Suite 2800 Philadelphia, PA 19103 Telephone: (215) 351-0615 E-mail: kcprek@jslex.com mgelman@jslex.com mmarra@jslex.com Defendants-Appellants RL REPPERT INC., RICHARD REPPERT, RL REPPERT INC. EMPLOYEES PROFIT SHARING 401K PLAN, RL REPPERT INC., MONEY PURCHASE PLAN, (DAVIS BACON PLAN), RL REPPERT INC. MEDICAL PLAN, RL REPPERT INC. HRA MEDICAL EXPENSE REIMBURSEMENT PLAN and TIMOTHY J. REPPERT are represented by: Walter H. Flamm, Jr., Esq. FLAMM WALTON HEIMBACH & LAMM PC 794 Penllyn Pike Blue Bell, PA 19446 Telephone: (267) 419-1501 E-mail: whflamm@flammlaw.com Defendants-Appellants RL REPPERT INC., RICHARD REPPERT, RL REPPERT INC. EMPLOYEES PROFIT SHARING 401K PLAN, RL REPPERT INC., MONEY PURCHASE PLAN, (DAVIS BACON PLAN), RL REPPERT INC. MEDICAL PLAN and RL REPPERT INC. HRA MEDICAL EXPENSE REIMBURSEMENT PLAN are represented by: F. Emmett Fitzpatrick, III, Esq. FLAMM WALTON HEIMBACH & LAMM PC 794 Penllyn Pike Blue Bell, PA 19446 Telephone: (267) 419-1505 Facsimile: (267) 419-1560 E-mail: fefitzpatrick@flammlaw.com Third Party-Appellee CALIFORNIA PENSION ADMINISTRATORS & CONSULTANTS INC. is represented by: Robert M. Cavalier, Esq. Daniel S. Strick, Esq. LUCAS & CAVALIER LLC 1500 Walnut Street, Suite 1500 Philadelphia, PA 19102 Telephone: (215) 751-9192 E-mail: rcavalier@lucascavalier.com dstrick@lucascavalier.com Third Party-Appellee KISTLER TIFFANY BENEFITS CORP. is represented by: Patricia A. Fecile-Moreland, Esq. MARKS O'NEIL O'BRIEN DOHERTY AND KELLY, P.C. 1800 John F. Kennedy Boulevard, Suite 1900 Philadelphia, PA 19103 Telephone: (215) 564-6688 E-mail: pmoreland@moodklaw.com - and - David P. Helwig, Esq. MARKS O'NEIL O'BRIEN DOHERTY AND KELLY, P.C. 707 Grant Street 2600 Gulf Tower Pittsburgh, PA 15219 Telephone: (412) 467-2026 E-mail: dhelwig@moodklaw.com SCHIBI TRANSPORTATION: Underpaid Drivers File Class Action ---------------------------------------------------------- Greg Grisolano, writing for Land Line, reports that a group of truckers have filed a lawsuit against a Missouri trucking company claiming they and other drivers were systematically underpaid for loads they delivered on behalf of the company. The suit, which was filed in Pettis County Superior Court in Sedalia, Mo., seeks class action status, and names Schibi Transportation LLC, Bulk Express LLC, and their owner, Rick Schibi, as defendants. The lawsuit seeks actual and punitive damages as well as a jury trial. The plaintiffs alleges that Schibi and his companies committed breach of contract, fraud, negligent misrepresentation and unjust enrichment by systematically underpaying the plaintiffs and similarly-situated potential class members, according to court documents filed Oct. 20. The lawsuit claims drivers were entitled to 25 percent of the gross dollar amount paid for each load they hauled, but were systematically paid less than that for the loads. The suit also alleges that drivers are not permitted to see rate sheets or other documents that show the actual dollar amount customers paid for each load hauled. "In this case, the plaintiffs were promised compensation at a rate of 25 percent of what the line haul paid," plaintiffs' attorney Chris Dandurand of the Gorny Law Firm in Kansas City, Mo., said in a statement to Land Line. "When the drivers learned that they were receiving less than 25 percent of what clients were paying per load, they understandably were frustrated." Kyle Martin, an OOIDA member from Sedalia, Mo., said he hopes the lawsuit will empower other drivers who feel they may be receiving less than what they're entitled to from their employers. "We hope it will let drivers know they don't have to take s--- from these people," he said. "You've got more power than you think." Clay Crawford -- ccrawford@fwpclaw.com -- of Foland, Wickens, Eisfelder, Roper & Hofer, P.C., an attorney representing Schibi Transportation, said his clients deny the allegations in the lawsuit. "The Court has not found any basis for a class action nor have plaintiffs proven any of their allegations in the case," he said in an emailed statement to Land Line. "Otherwise, we think it is inappropriate for us or any other party to comment on pending litigation." SIMONTON BUILDING: Faces Class Action Over Substandard Windows -------------------------------------------------------------- Rebecca Campbell, writing for Legal Newsline, reports that a group of homeowners is suing a home improvement businesses, alleging a distribution of substandard windows and failure to deliver quality products as advertised. On Oct. 17, a class action complaint was filed in U.S. District Count for the District of Minnesota against Ohio-based Simonton Building Products LLC, previously known as Simonton Building Products Inc., and other related companies. The defendants' answer to the complaint is due Nov. 9. The suit says the two-pane or insulated glass windows sold to the plaintiffs failed to meet standards, showing early defects. Simonton declined comment on the lawsuit. Speaking to Legal Newsline, Alex Nelson -- anelson@bensonpc.com -- a partner at Benson, Karrane, Storz & Nelson PC, and a construction defect attorney who represents the plaintiffs -- said the firm set up a website a year ago regarding the large rate of failure that Simonton's insulated glass units (IGUs) experience. Since then, the law firm has received approximately 100 potential client inquiries from homeowners in 23 different states. "We were actually quite shocked at the magnitude of the Simonton IGU failures and the amount of money that homeowners are being forced to spend to replace them themselves," Mr. Nelson said. Attorneys for the plaintiffs state that there have been numerous reports of "fogging" or "condensation" between window panes on certain Simonton windows. As a result, the plaintiffs allege the defendants failed to disclose to customers the defects of the products or warn them of the known risks before the windows had been installed. The lawsuit states the defendants failed to provide quality products demonstrated through their advertising and warranties, causing the plaintiffs to pay for the removal and replacement of the failed windows and to hire transportation to pick up replacement windows that was not part of the warranty. Many homeowners report that their warranty claims to Simonton have been wrongfully denied, the suit says. "Our engineers tell us that the IGUs are substandard in their design and workmanship, and that they are essentially 'designed to fail'," Mr. Nelson said. "In our opinion, the warranty coverage for the defective products is severely inadequate." However, despite the filed class action complaint against Simonton Building Products, it is believed the defendants have yet to change their advertising and marketing of the windows. "We believe that both their warranty treatment of failed IGU seals and the design and construction of their IGUs have been consistent over time," Mr. Nelson said. SNC-LAVALIN: Court Reconsiders Role of "Public Corrections" ----------------------------------------------------------- Matthew Fleming, Esq., Thomas Wilson, Esq., of Dentons, in an article for JDSupra, report that In Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v SNC-Lavalin Group Inc. The Ontario Superior Court of Justice examined, in the context of competing motions for summary judgment, what constitutes public correction of an alleged misrepresentation in a secondary market securities class action. The decision in Drywall Acoustic builds on Justice Belobaba's analysis in Swisscanto v Blackberry and recognizes that the "public correction" requirement serves as more than a mere "time-post" for the measurement of damages. Significantly, the Court confirmed that a public correction is a "constituent element in the determination of liability" and, in complex cases where the existence of a public correction is in dispute, such issues may not be appropriate for determination by way of a motion for summary judgment. The Facts The plaintiff shareholders commenced a class action against the defendant reporting issuer, SNC-Lavalin, as well as several of its officers and directors, alleging that SNC-Lavalin's core documents contained misrepresentations that, once discovered, caused SNC- Lavalin's share price to plummet, resulting in over $1 billion in shareholder losses. Specifically, the plaintiffs alleged that SNC-Lavalin's core documents falsely stated that (i) SNC-Lavalin was a "socially responsible company", (ii) SNC-Lavalin had controls, policies, and practices in place designed to ensure compliance with anti-bribery laws, (iii) SNC-Lavalin's internal controls over financial reporting and disclosure controls and procedures were properly designed and operating effectively, and (iv) SNC-Lavalin's business was being conducted in compliance with a code of ethics. The plaintiffs alleged that these misrepresentations were publically corrected through a series of press releases, articles and reports (collectively, the "Disclosures") which revealed, among other things, that SNC- Lavalin had paid bribes to foreign government officials. The defendants brought a surgical summary judgment motion on the issue of whether the alleged misrepresentations had, in fact, been publicly corrected. The defendants argued that: (i) none of the Disclosures were corrective of the alleged misrepresentations because they did not "logically connect with the statement in the core document and, therefore, the statement [said] nothing about the truth or falsity of the statement in the core document"; and (ii) a public correction must have a "significant impact on the valuation of the securities being traded in the secondary market" and that evidence of such impact was not present in this case, based on statistical evidence analyzing the Disclosures' impact on SNC-Lavalin's share price. The plaintiffs brought their own motion for summary judgment to determine whether misrepresentations and public corrections had, in fact, been made and filed their own statistical evidence regarding the impact of the Disclosures on the SNC-Lavalin's share price. Within the context of these competing motions for summary judgment, the defendants brought a motion for directions to determine whether, and in what manner, the summary judgment motions should proceed. Issues The Court considered two issues: What role does public correction play in secondary market securities class actions? Could the issues relating to public correction, on the facts of this case, be determined summarily? Decision As set out further below, the Court permanently stayed the plaintiffs' and defendants' summary judgment motions; in doing so, the Court distinguished Swisscanto, which was decided within the context of a low-threshold leave application, and held that a public correction is an integral element of liability in secondary market misrepresentation class actions. The role of "public correction" The Court affirmed that a public correction is "a constituent element and a necessary pre-requisite for a cause of action under s. 138.3 of the Ontario Securities Act" and agreed with earlier case law which held that public correction of a core document can come from any number of sources including the issuer, market analysts, short-sellers, newspaper articles, and credit rating agencies. The Court generally agreed with Justice Belobaba's analysis in Swisscanto: a public correction need not mirror the alleged misrepresentation and is not intended to act as a significant hurdle to obtaining leave to bring an action for damages.[12] That said, the public correction element can, in certain cases, play a significant role in the proceeding and is more than a mere "time- post" for the assessment of damages:[13] . . . in a particular case, the public correction component of the statutory cause of action can play much more than a relatively modest role in the statutory scheme. In addition to being a constituent element in the determination of liability, the public correction of the misrepresentation plays a fundamental ingredient in quantifying that liability; that is, public correction plays a fundamental role in the calculation of damages. The Court rejected the plaintiffs' submission that a public correction only serves to define the class period and class membership; instead, as a constituent element of the statutory cause of action acting as both a surrogate for causation and as a significant tool in the calculation of damages, public correction has the potential of becoming a dispositive issue in any given dispute "much like a limitation period defence can be a free- standing dispositive issue."[14] Summary judgment In light of the sophisticated and highly theoretical statistical models tendered by the parties, the Court concluded that the issues raised by the parties' summary judgment motions could not be fairly determined without a trial: . . . both the statistical analysis and even more so the semantic analysis of what counts for a public correction raise numerous genuine issues and . . . are far too complicated and nuanced to be fairly and justly determined summarily. The Court noted that, in the case before it, determining whether the Disclosures qualified as public corrections was more than a "mechanical exercise". Given the sophisticated and complex models tendered by the parties, combined with the "early stage of the development of the law about the statutory cause of action", the Court was not willing to determine the genuine issues raised by the parties' summary judgment motions without the benefit of a full trial record. Comment Drywall Acoustic makes a significant contribution to the developing case law regarding the identification, role, and significance of a public correction in secondary market securities class actions. As a constituent element of the statutory cause of action, the public correction element has the potential of becoming a free-standing dispositive issue, not unlike a limitation period defence, and, in complex cases, may not be determinable by way of summary judgment. SPECTRA ENERGY: Faces 6 Class Actions Over Enbridge Merger ---------------------------------------------------------- Spectra Energy Corp 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 is defending against six putative class action lawsuits by purported stockholders of Spectra Energy that challenge the proposed merger with Enbridge, Inc. The Company said, "On September 6, 2016, we announced that we entered into a definitive merger agreement with Enbridge Inc. (Enbridge) under which Enbridge and Spectra Energy will combine in a stock-for-stock merger transaction, which values Spectra Energy's stock at approximately $28 billion, based on the closing price of Enbridge's common shares as of September 2, 2016. This transaction was unanimously approved by the boards of directors of both Spectra Energy and Enbridge and is expected to close in the first quarter of 2017, subject to shareholder and certain regulatory approvals and other customary conditions." "Upon completion of the proposed merger, Spectra Energy shareholders will receive 0.984 Enbridge common shares for each share of Spectra Energy stock they own. The consideration to be received by Spectra Energy shareholders is valued at $40.33 per Spectra Energy share, based on the closing price of Enbridge common shares as of September 2, 2016, representing an approximate 11.5% premium to the closing price of Spectra Energy stock as of September 2, 2016. Upon completion of the merger, Enbridge shareholders are expected to own approximately 57% of the combined company and Spectra Energy shareholders are expected to own approximately 43%." "We and our board of directors are named as defendants in six putative class action lawsuits filed by purported stockholders of Spectra Energy that challenge the proposed merger with Enbridge. The lawsuits include Paul Parshall v. Spectra Energy Corp, et al., 12809-CB, filed in the Court of Chancery for the State of Delaware, and Mary Lincoln v. Spectra Energy Corp, et al., 16-cv- 03019, Joseph Koller v. Spectra Energy Corp, et al., 16-cv-03059, Joseph Costner v. Spectra Energy Corp et al., 16-cv-03065, John L. Williams v. Spectra Energy Corp et al., 16-cv-03069, and Joseph McMillan v. Spectra Energy Corp et al., 16-cv-03130, all filed in the United States District Court for the Southern District of Texas. The complaints allege, among other things, that Spectra Energy and its board of directors breached their fiduciary duties (in the Delaware lawsuit) and violated Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder (in the Southern District of Texas lawsuits), as applicable, by issuing or causing to be issued an allegedly materially misleading and incomplete preliminary proxy statement in connection with the proposed merger." "Enbridge and its subsidiary are also named as defendants in the Delaware lawsuit, and the Delaware complaint alleges, among other things, that Enbridge and its subsidiary aided and abetted Spectra Energy's board of directors' alleged breach of fiduciary duties. Plaintiffs seek as relief, among other things, an injunction against the merger, rescission of the merger to the extent it is already implemented, declaratory relief, costs and attorneys' fees, and/or damages. "We believe the actions are without merit and intend to vigorously defend against them." Spectra Energy Corp, through its subsidiaries and equity affiliates, owns and operates a large and diversified portfolio of complementary natural gas-related energy assets, and owns and operates a crude oil pipeline system that connects Canadian and United States (U.S.) producers to refineries in the U.S. Rocky Mountain and Midwest regions. SPIRIT AEROSYSTEMS: 10th Cir. Denied Plaintiff's Rehearing Bid -------------------------------------------------------------- Spirit AeroSystems Holdings, 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 U.S. Court of Appeals for the Tenth Circuit denied the class action plaintiff's petition for rehearing and rehearing en banc, and the deadline for the plaintiffs to file a petition for a writ of certiorari was October 31, 2016. On June 3, 2013, a putative class action lawsuit was commenced against the Company, Jeffrey L. Turner, and Philip D. Anderson in the U.S. District Court for the District of Kansas. The court- appointed lead plaintiffs -- two pension funds that claim to represent a class of investors in the Company's stock -- filed an amended complaint on April 7, 2014, naming as additional defendants Spirit's Vice President of the B787 Program Terry J. George and former Senior Vice President of Oklahoma Operations Alexander K. Kummant. The amended complaint alleges that defendants engaged in a scheme to artificially inflate the market price of the Company's stock by making false statements and omissions about certain programs' performance and costs. It contends that the alleged scheme was revealed by the Company's accrual of $590.0 in forward loss charges on October 25, 2012. The lead plaintiffs seek certification of a class of all persons other than defendants who purchased Holdings securities between May 5, 2011 and October 24, 2012, and seek an unspecified amount of damages on behalf of the putative class. In June 2014, the defendants filed a motion to dismiss the claims set forth in the amended complaint. On May 14, 2015, the District Court granted Spirit's motion to dismiss and dismissed the matter with prejudice. The plaintiffs filed a notice of appeal on June 11, 2015. On July 5, 2016, the U.S. Court of Appeals for the Tenth Circuit affirmed the District Courts' dismissal. On July 20, 2016, the plaintiff filed a petition for rehearing and rehearing en banc. On August 2, 2016, the Court of Appeals denied the petition. The deadline for the plaintiffs to file a petition for a writ of certiorari was October 31, 2016. At the time this Quarterly Report on Form 10-Q was filed with the Securities and Exchange Commission, the Company was not aware of any petition for writ of certiorari having been filed with the United States Supreme Court. The Company intends to vigorously defend against these allegations, and management believes the resolution of this matter will not materially affect the Company's financial position, results of operations or liquidity. Spirit is one of the largest independent non-OEM (original equipment manufacturer) aircraft parts designers and manufacturers of commercial aerostructures in the world, based on annual revenues, as well as the largest independent supplier of aerostructures to Boeing. It is also one of the largest independent suppliers of aerostructures to Airbus. Boeing and Airbus are the two largest aircraft OEMs in the world. SPROUTS FARMERS: Motion to Remand Securities Action Pending ----------------------------------------------------------- Sprouts Farmers Market, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended October 2, 2016, that the plaintiffs' motion to remand the securities class case to state court is currently under consideration. On March 4, 2016, a complaint was filed in the Superior Court for the State of Arizona against the Company and certain of its directors and officers on behalf of a purported class of purchasers of shares of the Company's common stock in the Company's underwritten secondary public offering which closed on March 10, 2015 (the "March 2015 Offering"). The complaint purports to state claims under Sections 11, 12 and 15 of the Securities Act of 1933, as amended, based on an alleged failure by the Company to disclose adequate information about produce price deflation in the March 2015 Offering documents. The complaint seeks damages on behalf of the purported class in an unspecified amount, rescission, and an award of reasonable costs and attorneys' fees. On March 24, 2016, the Company removed the action to federal court in the District of Arizona. On April 18, 2016, the plaintiffs filed a motion to remand the case to state court, and that motion is currently under consideration. The Company intends to defend this case vigorously, but it is not possible at this time to reasonably estimate the outcome of, or any potential liability from, the case. Sprouts Farmers Market, Inc., a Delaware corporation, through its subsidiaries, operates as a healthy grocery store that offers fresh, natural and organic food through a complete shopping experience that includes fresh produce, bulk foods, vitamins and supplements, packaged groceries, meat and seafood, deli, baked goods, dairy products, frozen foods, natural body care and household items catering to consumers' growing interest in health and wellness. SPROUTS FARMERS: "Phishing" Scam Actions Transferred ---------------------------------------------------- Sprouts Farmers Market, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 3, 2016, for the quarterly period ended October 2, 2016, that the Judicial Panel on Multidistrict Litigation has granted a motion to transfer and consolidate all four "Phishing" scam actions to the federal court in the District of Arizona. In April 2016, four complaints were filed, two in the federal courts of California, one in the Superior Court of California and one in the federal court in the District of Colorado, each on behalf of a purported class of current and former Company team members whose personally identifiable information ("PII") was inadvertently disclosed to an unauthorized third party that perpetrated an email "phishing" scam against a Company team member. The complaints allege the Company failed to properly safeguard the PII in accordance with applicable law. The complaints seek damages on behalf of the purported class in unspecified amounts, attorneys' fees and litigation expenses. In June 2016, a motion was filed before the Judicial Panel on Multidistrict Litigation ("JPML") to transfer and consolidate all four of the cases to the federal court in the District of Arizona. The JPML granted the motion on October 6, 2016, and the cases remained stayed pending the court's scheduling of an initial case management conference. The Company intends to defend these cases vigorously, but it is not possible at this time to reasonably estimate the outcome of, or any potential liability from, the cases. Sprouts Farmers Market, Inc., a Delaware corporation, through its subsidiaries, operates as a healthy grocery store that offers fresh, natural and organic food through a complete shopping experience that includes fresh produce, bulk foods, vitamins and supplements, packaged groceries, meat and seafood, deli, baked goods, dairy products, frozen foods, natural body care and household items catering to consumers' growing interest in health and wellness. STAR FURNITURE: Faces "Letelier" Suit Alleging FLSA Violations -------------------------------------------------------------- MARIA LETELIER on behalf of herself, individually and ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. STAR FURNITURE COMPANY, Defendant, Case No. 4:16-cv-03377 (S.D. Tex., November 15, 2016), seeks equitable relief, compensatory and liquidated damages, attorney's fees, taxable costs of court, and post-judgment interest for Defendant's alleged willful failure to pay overtime wages and compensation for hours worked, but not recorded or paid, pursuant to the Fair Labor Standards Act. The "Putative Class" are current and former employees (including Plaintiffs) of Defendant who work, or have worked, for Defendant as "Sales Associates" and whose job duties included consulting customers and selling furniture. Star Furniture Company operates home furnishing stores. The Plaintiff is represented by: Taft L. Foley, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 E-mail: Taft.Foley@thefoleylawfirm.com STARKIST CO: Hendricks Appeals From N.D. Cal. Ruling to 9th Cir. ---------------------------------------------------------------- Plaintiff Patrick Hendricks filed an appeal from a court ruling in the lawsuit styled Patrick Hendricks, et al. v. Starkist Co., et al., Case No. 3:13-cv-00729-HSG, in the U.S. District Court for the Northern District of California, San Francisco. The appellate case is captioned as Patrick Hendricks, et al. v. Starkist Co., et al., Case No. 16-17056, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Hon. Judge Haywood S. Gilliam, Jr., gave final approval of the parties' settlement. The Court approved the settlement amount of $12 million, payments of attorneys' fees in the amount of $3,445,012, and service award in the amount of $5,000 for Plaintiff Hendricks. Eric Michael Lindberg, an objector, also filed an appeal in the Ninth Circuit. Plaintiff-Appellant PATRICK HENDRICKS, individually and on behalf of all others similarly situated, is represented by: Scott Bursor, Esq. Neal J. Deckant, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-mail: scott@bursor.com ndeckant@bursor.com - and - Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 N. California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com Objector-Appellee BRITTANY FERENCE is represented by: Matthew Kurilich, Esq. LAW OFFICE OF MATT KURILICH 17321 Irvine Blvd., Suite 115 Tustin, CA 92780 Telephone: (714) 734-3715 Facsimile: (714) 734-3716 E-mail: mattkurilich@gmail.com Objector-Appellee KELLY MARIE SPANN is represented by: Jonathan Edward Fortman, Esq. LAW OFFICE OF JONATHAN E. FORTMAN, LLC 250 St. Catherine Street Florissant, MO 63031 Telephone: (314) 522-2312 Facsimile: (314) 524-1519 E-mail: jef@fortmanlaw.com - and - John C. Kress, Esq. THE KRESS LAW FIRM, LLC 4247 South Grand Blvd. St. Louis, MO 63111 Telephone: (314) 631-3883 Facsimile: (314) 631-3885 E-mail: jckress@thekresslawfirm.com - and - Steve A. Miller, Esq. STEVE A. MILLER, P.C. 1625 Larimer Street Denver, CO 80202 Telephone: (303) 892-9933 Facsimile: (800) 200-9934 E-mail: sampc01@gmail.com Objectors-Appellees JULIUS DUNMORE, JEMEA GRAHAM and VALERIE WILLIFORD are represented by: Alan J. Sherwood, Esq. LAW OFFICES OF ALAN J. SHERWOOD 26755 Contessa Street Hayward, CA 94545 Telephone: (510) 409-6199 Facsimile: (510) 903-1773 E-mail: alasherwood@earthlink.net Objector-Appellee ERIC MICHAEL LINDBERG is represented by: Sam Andrew Miorelli, Esq. LAW OFFICE OF SAM MIORELLI, P.A. 764 Ellwood Avenue Orlando, FL 32804 Telephone: (321) 698-2776 E-mail: sam.miorelli@gmail.com Defendant STARKIST CO. is represented by: Robert B. Hawk, Esq. Stacy R. Hovan, Esq. HOGAN LOVELLS US LLP 4085 Campbell Avenue, Suite 100 Menlo Park, CA 94025 Telephone: (650) 463-4000 Facsimile: (650) 463-4199 E-mail: robert.hawk@hoganlovells.com stacy.hovan@hoganlovells.com - and - John Christopher Mitchell, Esq. HOGAN LOVELLS US LLP 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 402-3015 E-mail: chris.mitchell@hoganlovells.com - and - Michael J. Shepard, Esq. HOGAN LOVELLS US LLP 3 Embarcadero Center San Francisco, CA 94111 Telephone: (415) 374-2310 Facsimile: (415) 374-2499 E-mail: michael.shepard@hoganlovells.com STARKIST CO: Objector Sweeney Appeals Ruling in "Hendricks" Suit ---------------------------------------------------------------- Objector Kerry Ann Sweeney filed an appeal from a court ruling in the lawsuit entitled Patrick Hendricks, et al. v. Starkist Co., Case No. 3:13-cv-00729-HSG, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter on Oct. 6, 2016, the Hon. Haywood S. Gilliam, Jr., granted the Plaintiff's renewed motion for final approval of a settlement and approved a settlement amount of $12 million, payments of attorneys' fees in the amount of $3,445,012.35, and service award in the amount of $5,000 for Plaintiff Hendricks. The appellate case is captioned as Patrick Hendricks, et al. v. Starkist Co., Case No. 16-17020, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 30, 2016; -- Transcript is due on December 30, 2016; -- Appellant Kerry Ann Sweeney's opening brief is due on February 8, 2017; -- Appellees Patrick Hendricks and Starkist Co.'s answering brief is due on March 10, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellee PATRICK HENDRICKS, individually and on behalf of all others similarly situated, is represented by: Scott Bursor, Esq. Neal J. Deckant, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-mail: scott@bursor.com ndeckant@bursor.com - and - Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 N. California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 945-8792 E-mail: ltfisher@bursor.com Defendant-Appellee STARKIST CO. is represented by: Robert Brian Hawk, Esq. Stacy R. Hovan, Esq. HOGAN LOVELLS US LLP 4085 Campbell Avenue Menlo Park, CA 94025 Telephone: (650) 463-4008 Facsimile: (650) 463-4199 E-mail: robert.hawk@hoganlovells.com stacy.hovan@hoganlovells.com - and - John Christopher Mitchell, Esq. HOGAN LOVELLS US LLP 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 402-3015 E-mail: chris.mitchell@hoganlovells.com - and - Michael J. Shepard, Esq. HOGAN LOVELLS US LLP 3 Embarcadero Center San Francisco, CA 94111 Telephone: (415) 374-2310 Facsimile: (415) 374-2499 E-mail: michael.shepard@hoganlovells.com SUNTRUST BANK: Trapp Appeals M.D.N.C. Ruling to Fourth Circuit -------------------------------------------------------------- Michelle A. Trapp and David Allen Trapp filed an appeal from a court ruling in the lawsuit titled Michelle Trapp v. SunTrust Bank, Case No. 1:15-cv-00937-CCE-JLW, in the U.S. District Court for the Middle District of North Carolina at Greensboro. The nature of suit is stated as consumer credit. The appellate case is captioned as Michelle Trapp v. SunTrust Bank, Case No. 16-2293, in the United States Court of Appeals for the Fourth Circuit. Plaintiffs-Appellants MICHELLE A. TRAPP, on behalf of herself and others similarly situated, and DAVID ALLEN TRAPP, on behalf of himself and others similarly situated, are represented by: Suzanne Rose Begnoche, Esq. SUZANNE BEGNOCHE, ATTORNEY AT LAW 312 West Franklin Street Chapel Hill, NC 27516 Telephone: (919) 960-6108 E-mail: begnochelaw@mindspring.com - and - Leonard Anthony Bennett, Esq. Susan Mary Rotkis, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 12515 Warwick Boulevard Newport News, VA 23606 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: leonard@clalegal.com susan@clalegal.com Defendant-Appellee SUNTRUST BANK is represented by: Timothy Patrick Lendino, Esq. Robert R. Marcus, Esq. SMITH MOORE LEATHERWOOD LLP 101 North Tryon Street Charlotte, NC 28246 Telephone: (704) 384-2671 Facsimile: (704) 384-2931 E-mail: tim.lendino@smithmoorelaw.com rob.marcus@smithmoorelaw.com SYKES ENTERPRISES: "Etchieson" Suit Invokes FLSA, Col. Wage Laws ---------------------------------------------------------------- SHARON ETCHIESON, on behalf of herself and all others similarly situated, Plaintiff, v. SYKES ENTERPRISES, INC., and ALPINE ACCESS, INC., Defendant, Case No. 1:16-cv-02779 (D. Col., November 15, 2016), alleges that Plaintiff performed work off the clock without minimum wage payment and/or overtime payment for all hours worked over 40 hours per week, was not paid bonuses in violation of the Fair Labor Standards Act and the Colorado Minimum Wage Act, and the Colorado Wage Order. SYKES ENTERPRISES, INC. provides call center services for a number of well-known global 2,000 companies. The Plaintiff is represented by: Rowdy B. Meeks, Esq. ROWDY MEEKS LEGAL GROUP LLC 8201 Mission Rd., Suite 250 Prairie Village, KS 66208 Phone: (913) 766-5587 Fax: (816) 875-5069 E-mail: Rowdy.Meeks@rmlegalgroup.com Web site: http://www.rmlegalgroup.com TETRAPHASE PHARMACEUTICALS: Bid to Dismiss Amended Suit Underway ---------------------------------------------------------------- Tetraphase Pharmaceuticals, 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's motion to dismiss a consolidated amended class action complaint remains pending. The Company said, "In January and March 2016, securities class action lawsuits were filed against us, our chief executive officer, our former chief operating officer and our former chief financial officer in the United States District Court for the District of Massachusetts. Each complaint was brought on behalf of an alleged class of those who purchased our common stock between March 5, 2015 and September 8, 2015, and alleges claims arising under Sections 10 and 20 of the Securities Exchange Act of 1934, as amended. Each complaint generally alleges that the defendants violated the federal securities laws by, among other things, making material misstatements or omissions concerning IGNITE2. Each complaint seeks, among other relief, unspecified compensatory damages and attorneys' fees, and costs." "In May 2016, the complaints were consolidated and the court appointed lead plaintiffs and lead counsel. The lead plaintiffs filed a consolidated amended complaint in July 2016 and filed a further amended consolidated complaint in August 2016. "In October 2016 we filed a motion to dismiss the consolidated amended complaint in its entirety. We believe we have valid defenses against these claims, and will engage in a vigorous defense of such litigation." Tetraphase Pharmaceuticals, Inc. is a clinical-stage biopharmaceutical company that was incorporated in Delaware on July 7, 2006 and has a principal place of business in Watertown, Massachusetts. TIME INC: Appellate Briefs Due by Jan. 26 ----------------------------------------- Time, 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 appellate briefs will be filed between November 4, 2016 and January 26, 2017, in the appeal related to the Coulter-Owens class action. On October 3, 2012, Susan Fox filed a class action complaint (the "Complaint") against Time Inc. in the United States District Court for the Eastern District of Michigan alleging violations of Michigan's Video Rental Privacy Act ("VRPA") as well as claims for breach of contract and unjust enrichment. The VRPA limits the ability of entities engaged in the business of selling, renting or lending retail books or other written materials from disclosing to third parties certain information about customers' purchase, lease or rental of those materials. The Complaint alleges that Time Inc. violated the VRPA by renting to third parties lists of subscribers to various Time Inc. magazines. The Complaint sought injunctive relief and the greater of statutory damages of $5,000 per class member or actual damages. On December 3, 2012, Time Inc. moved to dismiss the Complaint on the grounds that it failed to state claims for relief and because the named plaintiff lacked standing because she suffered no injury from the alleged conduct. On August 6, 2013, the court granted, in part, and denied, in part, Time Inc.'s motion, dismissing the breach of contract claim but allowing the VRPA and unjust enrichment claims to proceed. On November 11, 2013, Rose Coulter-Owens replaced Susan Fox as the named plaintiff. On March 13, 2015, the plaintiff filed a motion seeking to certify a class consisting of all Michigan residents who between March 31, 2009 and November 15, 2013 purchased a subscription to TIME, Fortune or Real Simple magazines through any website other than Time.com, Fortune.com and RealSimple.com. On July 27, 2015, the court granted plaintiff's motion to certify the class, which we estimate to comprise approximately 40,000 consumers. On August 31, 2015, Time Inc. and the plaintiff moved for summary judgment and on October 1, 2015 both parties filed briefs in opposition to their adversaries' motions. On February 16, 2016, the court granted Time Inc.'s motion for summary judgment and dismissed the case. On March 16, 2016, the plaintiff filed a notice with the Circuit Court appealing the District Court's dismissal of plaintiff's claims. On May 26, 2016, Time Inc. filed a motion to dismiss the appeal on the ground that plaintiff lacked standing to pursue her claims. Plaintiff filed her opposition brief on June 23, 2016 and Time Inc. filed its reply brief on July 12, 2016. On September 22, 2016, the Motions Part of the Circuit Court issued an order directing that Time Inc.'s motion to dismiss the appeal should be decided by the appellate panel that was assigned the plantiff's appeal on the merits. Pursuant to a new schedule set by the Court, the appellate briefs will be filed between November 4, 2016 and January 26, 2017. Time Inc., together with its subsidiaries, is one of the world's leading media companies, with a monthly global print audience of over 120 million and worldwide digital properties that attract more than 150 million visitors each month, including over 60 websites. TIME INC: Motion to Dismiss "Perlin" Class Action Underway ---------------------------------------------------------- Time, 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 is awaiting the Court's decision on the motion to dismiss the Perlin class action lawsuit. On February 19, 2016, the same law firm representing Rose Coulter- Owens filed another class action, entitled Perlin v. Time Inc., in the United States District Court for the Eastern District of Michigan alleging violations of the VRPA as well as a claim for unjust enrichment. This lawsuit was filed on behalf of Michigan residents who purchased subscriptions directly from Time Inc. On May 6, 2016 and May 31, 2016, Time Inc. moved to dismiss the Complaint. Perlin filed an opposition brief on June 27, 2016 and Time Inc. filed its reply brief on July 11, 2016. Oral argument was held on Time Inc.'s motion to dismiss on September 1, 2016. "We are awaiting the Court's decision," the Company said. Time Inc., together with its subsidiaries, is one of the world's leading media companies, with a monthly global print audience of over 120 million and worldwide digital properties that attract more than 150 million visitors each month, including over 60 websites. TOKAI PHARMACEUTICALS: "Doshi" Case Transferred to Massachusetts ---------------------------------------------------------------- Tokai Pharmaceuticals, 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 case, Doshi v. Tokai Pharmaceuticals, Inc., et al., has been transferred to the U.S. District Court for the District of Massachusetts. On August 1, 2016, a purported stockholder of the Company filed a putative class action lawsuit in the U.S. District Court for the Southern District of New York against the Company, Jodie P. Morrison, and Lee H. Kalowski, entitled Doshi v. Tokai Pharmaceuticals, Inc., et al., No. 1:16-cv-06106 ("Doshi Action"). The plaintiff seeks to represent a class of purchasers of Company securities between June 24, 2015, and July 25, 2016, and alleges that, in violation of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 10b-5 promulgated thereunder, defendants made false and misleading statements and omissions about the Company's clinical trials for its drug candidate, galeterone. The lawsuit seeks, among other things, unspecified compensatory damages, interest, costs, and attorneys' fees. On October 3, 2016, the case was transferred to the U.S. District Court for the District of Massachusetts. Tokai is a biopharmaceutical company focused on developing and commercializing innovative therapies for prostate cancer and other hormonally driven diseases. TOKAI PHARMACEUTICALS: Dismissal of Jackie888 Action Sought ----------------------------------------------------------- Tokai Pharmaceuticals, 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 defendants have moved to dismiss or stay the action, Jackie888, Inc. v. Tokai Pharmaceuticals, Inc., et al. On August 19, 2016, a purported stockholder of the Company filed a putative class action lawsuit in the Superior Court of the State of California, County of San Francisco, against the Company, Jodie P. Morrison, Lee H. Kalowski, Seth L. Harrison, Timothy J. Barberich, David A. Kessler, Joseph A. Yanchik, III, and the underwriters of the Company's initial public offering ("IPO"), entitled Jackie888, Inc. v. Tokai Pharmaceuticals, Inc., et al., No. CGC-16-553796. The lawsuit alleges that, in violation of the Securities Act of 1933 ("Securities Act"), the Company's registration statement for its IPO made false and misleading statements and omissions about the Company's clinical trials for galeterone. The plaintiff seeks to represent a class of purchasers of Company common stock in and/or traceable to the Company's IPO. The lawsuit seeks, among other things, unspecified compensatory damages, interest, costs, and attorneys' fees. On October 19, 2016, the defendants moved to dismiss or stay the action on grounds of forum non conveniens, and certain individual defendants moved to quash the plaintiff's summons for lack of personal jurisdiction. Tokai is a biopharmaceutical company focused on developing and commercializing innovative therapies for prostate cancer and other hormonally driven diseases. TOKAI PHARMACEUTICALS: Consolidation of Doshi & Garbowski Sought ---------------------------------------------------------------- Tokai Pharmaceuticals, 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 plaintiff in the Doshi class action lawsuit has filed a motion to consolidate the Doshi and Garbowski class actions for all purposes. On September 29, 2016, two purported stockholders of the Company filed a putative class action lawsuit in the U.S. District Court for the District of Massachusetts against the Company, Jodie Pope Morrison, Lee H. Kalowski, Seth L. Harrison, Timothy J. Barberich, David A. Kessler, Joseph A. Yanchik, III, and the underwriters of the Company's IPO, entitled Garbowski, et al. v. Tokai Pharmaceuticals, Inc., et al., No. 1:16-cv-11963 ("Garbowski Action"). The lawsuit alleges that the defendants and the Company's registration statement for its IPO made false and misleading statements and omissions about the Company's clinical trials for galeterone, in violation of the Securities Act, the Exchange Act, and Rule 10b-5. The plaintiffs seek to represent a class of purchasers of Company common stock in or traceable to the Company's IPO as well as a class of purchasers of Company common stock between September 17, 2014, and July 25, 2016. The lawsuit seeks, among other things, unspecified compensatory damages, interest, costs, and attorneys' fees. Tokai is a biopharmaceutical company focused on developing and commercializing innovative therapies for prostate cancer and other hormonally driven diseases. TOYOTA MOTOR: Faces Class Action Over Soy-Based Wiring Insulation ----------------------------------------------------------------- Michael Abella, writing for Louisiana Record, reports that a Folsom consumer has filed a class-action lawsuit against an auto manufacturer over claims it uses soy-based wiring insulation that attracts rodents and damages vehicles. Steven Weidenbacher filed a complaint on behalf of all others similarly situated on Oct. 3 in the U.S. District Court for the Eastern District of Louisiana against Toyota Motor Corp. and Toyota Motor Sales USA Inc. alleging that they violated the Louisiana Unfair Trade Practices and Consumer Protection Law and other counts. According to the complaint, the plaintiff alleges that he suffered economic damages, including but not limited to costly repairs, loss of use, value and resale value of his 2015 Corolla and other related damages. The plaintiff holds Toyota Motor Corp. and Toyota Motor Sales USA Inc. responsible because the defendants allegedly negligently used an edible, soy-based wiring insulation throughout their vehicles that baits rodents, failed to disclose the defect and refused to repair the vehicles under its new vehicle limited warranty. The plaintiff requests a trial by jury and seeks an order certifying this action as proper class action, certifying plaintiff and his counsel as class representatives, award for all damages, prejudgment and post-judgment interest and such other relief as the court may deems just. He is represented by Nicholas R. Rockforte --nrockforte@pbclawfirm.com -- and Christopher L. Coffin -- ccoffin@pbclawfirm.com -- of Pendley, Baudin & Coffin LLP in Plaquemine and Scott C. Harris -- scott@wbmllp.com -- and Patrick M. Wallace -- pat@wbmllp.com -- of Whitfield, Bryson & Mason LLP in Raleigh, North Carolina. U.S. District Court for the Eastern District of Louisiana Case number 2:16-cv-15202 TRANSUNION LLC: Loses Bid to Decertify FCRA Class Action -------------------------------------------------------- Meagan Mihalko, Esq. -- meagan.mihalko@troutmansanders.com -- and David N. Anthony, Esq. -- david.anthony@troutmansanders.com -- of Troutman Sanders LLP, in an article for Mondaq, report that a district court in the Northern District of California denied TransUnion LLC's motion to decertify a Fair Credit Reporting Act class action that was certified prior to the Supreme Court's 2016 Spokeo ruling. The class action case accused TransUnion of including inaccurate information on its consumer reports as well as failing to comply with the FCRA's file disclosure obligations in response to consumers' requests. In May of 2015, U.S. Magistrate Judge Laurel Beeker certified two classes in connection with TransUnion Rental Screening, Inc.'s "SmartMove" reports. According to the Complaint, the SmartMove reports contained terrorist alerts, and the alert information was not included in response to consumers' file disclosure requests. The first class -- the disclosure class -- was certified under 15 U.S.C. Sec. 1681g, and consisted of all consumers who were the subject of TransUnion SmartMove reports that contained "at least one item of 'AlertList' information who requested a file disclosure and were sent a disclosure by TransUnion." The second class was certified under 15 U.S.C. Sec. 1681e(b) and also consisted of consumers who were the subject of TransUnion SmartMove reports that contained at least one item of "Alert List" information. After the Supreme Court's ruling in Spokeo v. Robins, TransUnion moved to decertify the class. TransUnion argued that the class claims failed to sufficiently allege a concrete injury to give the named plaintiff standing. The Court rejected TransUnion's Spokeo- related arguments noting that the Court saw "little difficulty in concluding that the alleged inaccuracies -- being wrongly branded a potential terrorist, or wrongly ascribed a criminal record" were themselves concrete harms. Comparing the facts of this case to other recent Spokeo-based decisions, the Court found that "a report that misidentifies someone as a terrorist or criminal 'is not as benign as an incorrect zip code.'" The Court also rejected TransUnion's arguments regarding the limited dissemination of the information, finding that the "core harm is the sharing of erroneous and inherently damning information about the plaintiff -- regardless of how widely it is broadcast." With respect to the disclosure claim, the Court found that the failure to provide the necessary information in connection with class members' file disclosure requests impeded a consumer's ability to "monitor her file for falsity." Thus, the Court found the impediment of non-disclosure to be a real injury and that "preventing a consumer from monitoring her file presents a 'risk of real harm.'" TRUMP UNIVERSITY: Lawyers Argue Pre-Trial Class Action Motions -------------------------------------------------------------- William Bortolin, Esq. -- bortolinw@bennettjones.com -- and Michael Eizenga, Esq. -- eizengam@bennettjones.com -- of Bennett Jones LLP, in an article for JDSupra, report that the champagne glasses won't be dry and put away before U.S. President- elect Donald Trump's lawyers will be arguing a series of pre-trial motions in Low v Trump University, a U.S. class action scheduled to proceed to jury trial in less than three weeks. One of these motions, by Mr. Trump's lawyers, is remarkable, as it seeks to pre-emptively exclude as evidence all "statements by or about Mr. Trump made or publicized while he was running for President of the United States", on the basis that such statements could be prejudicial to Trump, and are irrelevant. In their responding brief, plaintiffs' counsel colourfully summarized the motion as follows: Donald Trump's dizzying array of objectively false, contradictory, and self-defeating statements have left him so flummoxed he is demanding that the Court create a new category of immunity to protect him from himself. Background Bennett Jones has reported previously on the Low class action, as well as about a sibling class action run by the same plaintiff counsel (Cohen v Trump), which is also moving towards trial. Both cases revolve around "Trump University", a series of real estate investment education programs and live seminars offered from 2007- 2010, costing up to $35,000 each. The plaintiffs allege these programs failed to deliver on their advertised promises. Mr. Trump is personally named as a defendant in both proceedings, based on allegations that he was heavily involved in the promotion of Trump University, and either approved or personally uttered the false representations at issue. The case is fascinating from a Canadian perspective, both because of Mr. Trump's status as a celebrity / leader of the free world, and also because of the rarity of class action trials in Canada. The Exclusion Motion The brief filed by Mr. Trump's lawyers in support of the exclusion motion notes that Mr. Trump has been the focus of "perhaps unprecedented" media coverage during his presidential campaign, and expresses concern that the plaintiffs will reference "extraneous" and "irrelevant" statements made during the campaign "in an attempt to inflame and prejudice the jury". The brief declines to be more specific. The exclusionary order requested by Mr. Trump's lawyers is remarkably broad in scope, and encompasses all "evidence and argument relating to statements made by or about Mr. Trump outside the adjudicative process", including (but not limited to) campaign speeches, rally speeches and tweets. Mr. Trump's lawyers argue that such statements are irrelevant, "distracting", and pose a "significant risk" of undue prejudice. Plaintiffs' counsel is opposing the motion, as you may have deduced from the excerpt above. They argue that it is impossible to determine the relevance or potential prejudicial impact of such a broad and non-specific category of evidence. While refusing to "outline for Trump" their cross-examination strategy, Plaintiffs' counsel maintained that statements made during the campaign could be relevant, particularly for dealing with issues of credibility. They also denied that any such evidence would be unfairly prejudicial to Mr. Trump. A Canadian Perspective The motion brought by Mr. Trump's lawyers makes little sense from a Canadian perspective. First, the breadth and vagueness of the motion would likely make it very difficult for a Canadian court to accept. Rules of admissibility in Canada are similar to those in the United States: evidence must be relevant to be admissible, and its probative value (that is, its tendency to prove or disprove a relevant fact) must outweigh its prejudicial impact (if there is one). As plaintiffs' counsel noted in arguing against the exclusion motion, it is very difficult to engage in this balancing exercise when the evidence in question is not identified with any precision. Second, while the vast majority of what Mr. Trump has said during the campaign very likely is irrelevant to the issues in the trial, it is likely an overgeneralization to say that nothing Mr. Trump has said during the campaign, or that has been said about Mr. Trump during the campaign, could possibly be relevant. A witness's credibility as to the subject matter they are testifying about is always relevant, and one of the most common ways in which a witness's credibility is tested is by presenting him or her with "prior inconsistent statements" that contradict their current testimony. To the extent that Mr. Trump has made statements during the campaign that would tend to contradict his testimony at trial, it would be relevant to his credibility. Until hearing his current testimony, it is impossible to know what previous statements he has made that might be inconsistent. The same is true of other witnesses, who may also have commented about Mr. Trump during the campaign, and whose statements would also be captured by the order. Any statements relating to the subject matter of the trial could potentially become relevant. Take, for example, a Trump campaign video on YouTube entitled "Trump University Truth", in which Trump speaks rapidly into the camera for over three minutes. This example also illustrates the third curious feature of the motion brought by Mr. Trump's lawyers: Mr. Trump's prior statements about Trump University do not seem to be particularly incriminating. Prior inconsistent statements are most useful when a witness has made a damaging admission outside of court, but then tries to say something more favourable on the stand. Far from making admissions, however, Mr. Trump has tended to vigorously defend Trump University on the campaign trail. In fact, Mr. Trump's most damaging comments about Trump University seem to be the ones he made in deposition testimony as part of the adjudicative process (ironically, the one category of evidence that Trump's lawyers do not seek to exclude). If the concern is that plaintiffs' counsel might try to paint Trump as dishonest, generally, by showing that he habitually misstates the facts when discussing unrelated subject matter, then this approach also would not make sense, from a Canadian perspective, for two reasons. First, according to the "collateral evidence rule", a party that asks a witness about otherwise irrelevant subject matter to test their credibility is not entitled to adduce "collateral" evidence to disprove the witness's answer; i.e., the witness's answer has to be accepted as truth, even though it might be demonstrably false. It is therefore not an effective way to test a witness's credibility, and is usually avoided. Second, Mr. Trump's credibility does not seem to be a significant issue in the Low class action. There are some narrow issues where Mr. Trump's testimony may be important, but the core issues in the proceeding are questions of objective fact that Mr. Trump's testimony should not be necessary to answering. Specifically, whether certain representations were made in Trump University's advertising; whether those representations were material; and whether those representations were accurate. From Bennett Jones' perspective, the exclusion motion appears to face steep odds. TRUMP UNIVERSITY: Class Action Trial to Proceed on Nov. 28 ---------------------------------------------------------- Kristina Davis, writing for The San Diego Union-Tribune, reports that in less than three weeks, the class-action lawsuit against Donald Trump and his defunct Trump University is set to go to trial in a downtown San Diego courtroom. That likely won't change, even with Mr. Trump's presidential win on election night, legal experts say. However, it could alter how personally involved Mr. Trump will be in the federal trial, in which he must defend accusations he misled and defrauded students who enrolled in his real estate academy. Attorneys for both sides were scheduled to be in court on Nov. 10 to make final preparations for jury selection on Nov. 28. But the election results and their potential effect on the case will likely dominate the courtroom discussion and draw a large media presence. Mr. Trump's attorneys did not return phone calls and emails seeking comment on Nov. 9, and lawyers for the students declined to discuss the case. As unusual as this situation is, the U.S. Supreme Court has set legal precedent when it comes to lawsuits against presidents, and that precedent is what will likely inform how Trump's case proceeds. In 1994, former Arkansas state employee Paula Jones sued then- President Bill Clinton on accusations of making sexual advances on her when he was governor. Clinton fought the sexual harassment lawsuit. The case made it to the Supreme Court, which ruled sitting presidents can still be sued for events that happened before they took office or are unrelated to their presidential duties. "Clinton v. Jones established that a president does not have absolute immunity," attorney Robert S. Bennett, who argued on Clinton's behalf to the Supreme Court in 1997, said in an interview on Nov. 9. The ruling also said presidents don't have the right to delay such a lawsuit just because they are in the Oval Office. While the Clinton case only applies to sitting presidents, Bennett doesn't think Mr. Trump's status as president-elect will make much of a practical difference in the looming trial, especially given the possibility that the trial will not have concluded by his Jan. 20 inauguration. Still, legal experts expect Mr. Trump's attorneys to ask for the trial to be delayed until he leaves the White House, citing how busy he will be. But such a request would not be expected to succeed. "I think the likelihood of the trial getting delayed is very low. If it is delayed, it's delayed for four years presumably, if not longer," said Shaun Martin, a University of San Diego School of Law professor who teaches civil procedure. "If anything is going to happen (with this trial), it's going to happen now. The advantage of it happening now is that he's not president yet," Mr. Martin said. That the 6-year-old lawsuit is so close to trial also makes it more likely to proceed as scheduled. U.S. District Judge Gonzalo Curiel, who will be presiding over the trial, has been reluctant to grant any more delays. Mr. Bennett said case management, which was one of the major points made in the Clinton ruling, will be key here. "It will be up to the court to manage the schedule vis-Ö-vis the new president's time," Mr. Bennett said. In the lawsuit, filed in 2010, students allege they paid up to $35,000 to attend seminars and learn inside secrets to success in real estate from mentors who were "handpicked" by Mr. Trump. Instead, they claim the program was nothing more than an infomercial trying to squeeze more money out of students, and they did not learn what was promised. Mr. Trump has pointed to a large number of students who gave the program positive reviews and blamed the plaintiffs' lack of success on laziness and the downturn in the real estate market. The trial is set to unfold in two parts. In the liability phase, expected to last four to six weeks, the evidence will mostly revolve around whether Trump University misled students by using the term "university" and claiming that Mr. Trump "handpicked" the instructors. If he loses, then the damages phase would begin, in which every eligible class member from California, Florida and New York might have to be considered separately as to how much they were damaged and what they are owed. Mr. Trump has said previously he plans to testify in person, but his new presidential status might change that. Assuming the trial goes on as scheduled, Mr. Trump's attorneys could ask the judge to excuse him from having to testify and instead show jurors video from his previous depositions in the case. If the plaintiffs argue that they didn't get to ask Mr. Trump all their questions, then the judge could allow a final deposition before trial, or ask him written questions which he must answer under oath. Mr. Trump could also testify via live video feed. One thing is clear: Judge Curiel will have a great deal of discretion on how the case proceeds and unfolds in his courtroom. During the presidential campaign, Mr. Trump complained that Judge Curiel had been unfair in rulings against him, saying the judge's "Mexican" heritage made him biased against Trump, who supports tough immigration policies and the construction of a wall on the U.S.-Mexico border. Judge Curiel was born in Indiana to Mexican immigrants. "Judge Curiel really can do whatever he wants," law professor Martin said. "This is an issue very much within his discretion, which makes it interesting given the vitriol directed his way." "On the one hand, he might bend over backward to prove he's being fair and give Trump a break here, or he might not be inclined to give him a break," Mr. Martin said. Attorneys for both sides are also waiting for Judge Curiel to issue rulings on several motions, most of them having to do with what will and will not be permitted as evidence. One area that Mr. Trump's lawyers do not want in front of a jury are any of the comments the Republican made during his campaign, including anything from public speeches, media interviews, debates or his Twitter account. "Before trial begins in this case, prospective members of the jury will have the opportunity to cast their vote for President," Trump attorney Daniel Petrocelli wrote in an Oct. 20 motion. "It is in the ballot box where they are free to judge Mr. Trump based on all this and more. But it is in the jury box where they must judge him and this case only on evidence and argument relevant to the issues at hand." Mr. Trump also could decide to settle the lawsuit before the trial. Although the outspoken tycoon might not seem the settling type, he has settled many past lawsuits brought against him in business dealings. Mr. Martin said there are many reasons for both sides to want to accept a compromise instead of risking an unfavorable jury verdict. "If the parties were both rational and intelligent, this case would probably settle, but not every case is resolved rationally. Each side may overvalue its chances of success. That's generally how things get to trial," he said. The makeup of San Diego's population will be an important factor when it comes to picking a jury, experts said. Mr. Trump received 38.6 percent of the vote in San Diego County to Democrat Hillary Clinton's 56 percent. "He may think he's on a winning streak, but he's got to remember that members of the jury are coming from San Diego, and he's not riding a winning streak in respect to them," Mr. Martin said. "I'm sure his lawyers will advise him not to be too cocky about the (election) results, given the demographics of a San Diego jury don't mirror necessarily the electorate across the nation." This is not the only lawsuit Mr. Trump faces as he heads into office. A second class-action suit has been filed against him regarding Trump University in San Diego, as well as a similar lawsuit in New York. Dozens of lawsuits related to his other business interests also have been filed. But because he doesn't play a central role in many, the suits will likely be handled by his legal team without involving him too much personally, Mr. Martin said. TRUMP UNIVERSITY: Attorneys Enter Into Settlement Talks ------------------------------------------------------- Elliot Spagat, writing for The Associated Press, reports that Donald Trump's attorneys on Nov. 10 agreed to enter settlement talks in a class-action fraud lawsuit involving the president- elect and his now-defunct Trump University, raising the possibility of a quick end to the 6 1/2-year-old case just before it goes to trial. Daniel Petrocelli, Mr. Trump's lead attorney on the case, also asked to delay the trial to early next year, saying Mr. Trump needed time to work on the transition to the presidency. "The good news is that he was elected president. The bad news is that he has even more work to do now," Mr. Petrocelli told U.S. District Judge Gonzalo Curiel. The lawsuit alleging Trump University failed on its promise to teach success in real estate begins in San Diego on Nov. 28 before Judge Curiel, an Indiana-born jurist who Trump accused of bias during the presidential campaign for his Mexican heritage. Both sides accepted Judge Curiel's offer to work with U.S. District Judge Jeffrey Miller, who is based in San Diego, on a possible settlement. "I can tell you right now I'm all ears," Mr. Petrocelli told Judge Curiel. Patrick Coughlin, an attorney for the former students who sued, told reporters that previous attempts failed. "We've been miles apart," he said outside the courthouse. Judge Curiel didn't signal how he would rule on the request for a trial delay, but he encouraged efforts to settle. He has been reluctant to postpone it any longer. The judge said more than 100 potential jurors would be in court Nov. 28, and nine would be picked to begin hearing arguments no more than two days later. He expects both sides to finish presenting their cases around Dec. 14. Mr. Petrocelli said it was unlikely that Trump would attend the trial, and Judge Curiel said he didn't expect he would. The attorneys argued for nearly three hours over tentative rulings that Judge Curiel issued earlier in the day on what evidence to allow jurors to hear. Judge Curiel said he was prepared to deny a request by Mr. Trump's attorneys to prohibit statements made by and about their client during his campaign. The highly unusual petition would apply to Mr. Trump's tweets, a video of Mr. Trump making sexually predatory comments about women, his tax history, revelations about his private charitable foundation and public criticism of the judge. Judge Curiel noted Mr. Trump's attorneys didn't specify what campaign-related evidence they wanted to exclude and that he would consider specific objections at trial. Mr. Trump's attorneys didn't challenge the judge further on that point, but they objected to many other decisions, including his refusal to allow many customer surveys and Trump's claims of a 98 percent customer approval rating. The lawsuit filed in 2010 on behalf of former customers says Trump University gave seminars and classes across the country under the guise of being an accredited school, which it wasn't, and pressured people to spend up to $35,000 on mentorships from Mr.Trump's "hand-picked" instructors. The claims largely mirror another class-action complaint in San Diego and a lawsuit in New York. Mr. Petrocelli told reporters in May that Mr. Trump planned to attend most, if not all, of the trial and would testify. At the May hearing, Mr. Petrocelli asked for a trial after Inauguration Day on Jan. 20, but the judge raised concerns about distractions if Trump won the election. The attorney said then that the period between the election and swearing-in is extremely hectic for a president-elect but that it was preferable to holding a trial during the campaign. TRUMP UNIVERSITY: Foundation Won't Pay for Settlement, Atty Says ---------------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that contrary to what he's done in the past, President-elect Donald Trump will not dip into money raised by his charitable organization -- the Trump Foundation -- to pay the $25 million Trump University settlement he agreed to. New York Attorney General Eric Schneiderman's office requested that Trump's attorneys confirm the money Trump agreed to pay to settle the cases would not come from his charitable foundation. Trump's attorney Alan Garten sent a letter dated Nov. 18 -- the day the settlement was announced -- confirming "no part of the funding of my clients' settlement of the New York Attorney General action or the California actions will come from any charitable foundation or other charitable entity." Schneiderman's press secretary Amy Spitalnick said in an emailed statement that the attorney general "demanded written assurance that the Trump University settlement would not be paid for by any charitable entity." Schneiderman wanted written confirmation "given Mr. Trump's reported history of using his charity's money to fund his and his businesses' legal settlements." In September, The Washington Post reported the president-elect had dipped into his foundation's account to settle lawsuits, to the tune of $258,000. In many of the cases cited in the Post story, Trump used Trump Foundation money to make a large donation to a charity of a plaintiff's choosing as part of a settlement. Notably, he settled a notorious case involving a giant flagpole at his Mar-a-Lago nightclub in Palm Beach, Florida, by agreeing to make a $100,000 donation to a veterans charity in lieu of paying city fines. But Trump sent a check from the Trump Foundation rather than his own account. The Trump Foundation admitted to violating the IRS'self-dealing ban. The charity is also being investigated by Schneiderman's office Trump agreed on November 18, to settle three pending lawsuits against his now-defunct real estate school Trump University, paying $21 million to settle two class actions in San Diego federal court and $4 million to settle a case brought in New York by Schneiderman. The settlement came just days before the first case -- Low v. Trump University -- was set to go to trial in San Diego. Trump did not agree to any wrongdoing in settling the fraud cases brought by former Trump University students in 2010 and 2013. The students claimed they paid upwards of $35,000 to learn insider real estate secrets from instructors purportedly handpicked by Trump. The president-elect turned out to have little involvement in the school, which his attorneys argued relied on "sales puffery" common in advertising to capitalize on Trump's name. The settlement will be made public and must still be approved by U.S. District Judge Gonzalo Curiel. About 7,000 former Trump University students will recover at least half, if not all, of what they invested to learn Trump's real estate secrets, and could get their money in as little as a few months. The California classes were represented by Robbins Geller attorneys Jason Forge and Rachel Jensen, who had no comment on Schneiderman's demand regarding the settlement money. TRUMP UNIVESRITY: Trump Impeachment Mulled Amid Fraud Suits ----------------------------------------------------------- Rachel Stockman, writing for LawNewz.com, reports that Donald Trump has pulled through with an unexpected win, and will soon become the next President of the United States. As this reality sinks in across the country, Google searches for how to impeach a President Trump are surging. On top of that, the hashtag #NotMyPresident is already trending on Twitter. However, even before he was elected, one law professor was convinced that there was already enough evidence to impeach him if he did win. Of course, even if there is, that's going to be a tough task considering that the Republicans now have control of both the Senate and the House of Representatives. Despite that, his analysis is certainly an interesting theory to re-examine as questions continue to arise. University of Utah Law Professor Christopher Lewis Peterson penned a 23-page article analyzing why it would be proper for Congress to impeach Trump if he's elected. He believes that Trump has engaged in fraud and racketeering which meets the standards under Article II of the United States Constitution which reserves impeachment for "high crimes and misdemeanors." "Unlike his promised crimes yet to come, the illegal acts in Trump's high pressure wealth seminars have already occurred. Indeed, a federal judge appointed under Article III of the U.S. Constitution has already determined that Trump's alleged actions, if true, constitute fraud and racketeering," Mr. Peterson wrote. While Mr. Peterson acknowledges there would be some legal hurdles, he contends that the Constitution does not prohibit Congress from impeaching a President for alleged acts that happened prior to taking office (which is the common belief). "Congress would be well within its legal rights under the Constitution to insist upon a President who is not a fraudster or a racketeer as defined in its own law," Mr. Peterson wrote. Another issue that Peterson acknowledges is that if Trump wins, this would be seen as referendum against any kind of impeachment. After all, the people voted him in knowing he was facing lawsuits as it relates to Trump University. Mr. Peterson has an answer for that too. "Trump appears to have lied about his role in Trump University to students, he has throughout the election continued to misrepresent the cases that focus on his misrepresentations," Lewis wrote. Therefore, Mr. Peterson contends that the American public might not have been aware of the full extent of his transgressions. Right now, Donald Trump is facing several different lawsuits surrounding his role at Trump University. New York Attorney General Eric Schneiderman filed a $40 million civil suit against the University for alleged illegal business practices and fraud. None of the cases have been resolved, and all are ongoing. The class action fraud trial was scheduled to begin the Monday after Thanksgiving. Mr. Trump has repeatedly denied his school ripped off students. TUMBLEWEED PIZZA: "Redus" Suit Seeks to Recoup Drivers' Wages ------------------------------------------------------------- John Michael Redus, on behalf of himself and others similarly- situated, Plaintiff, v. Tumbleweed Pizza Partners, L.P. and Pizza Hut of America, LLC, Defendants, Case No. 4:16-cv-00877-ALM (E.D. Tex., November 15, 2016), alleges that Defendants' policy and practice is to fail to reimburse its delivery drivers for automobile costs, maintenance, and other job-related expenses, resulting in the delivery drivers being paid less than the federal minimum wage in violation of the Fair Labor Standards Act. Defendant Tumbleweed is a Pizza Hut franchisee that operates numerous pizza stores throughout the DFW Metroplex, operates through pizzahut.com, and has employed hundreds of delivery drivers in the last three years. The Plaintiff is represented by: J. Derek Braziel, Esq. J. Forester, ESq. Travis Gasper, Esq. LEE & BRAZIEL, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, TX 75202 Phone: (214) 749-1400 Fax: (214) 749-1010 TWITTER INC: Securities Class Action Less Likely to Succeed ----------------------------------------------------------- Dee Thompson, writing for Legal Newsline, reports that social media giant Twitter is facing a class action lawsuit regarding its stock prices, but a Texas securities attorney doesn't expect the plaintiffs will have much success. Plaintiff Doris Shenwick alleges Twitter withheld important but adverse information about its projected growth, which affected stock-purchasing decisions. When reached for comment, Kristin Binns of Twitter said, "We don't comment on pending litigation matters, unfortunately." Ms. Shenwick's class action complaint was filed Sept. 16 in U.S. District Court for the Northern District of California against Twitter Inc., former CEO Richard Costolo and CFO Anthony Noto, alleging violation of the 1934 Securities Exchange Act. It alleges all persons or entities who purchased Twitter common stock between Feb. 6-July 28, 2015, are eligible to be part of the class. A drop in monthly average users (MAUs) precipitated a loss in revenue, the lawsuit says. Michael Biles, a partner with King & Spalding in Austin in its securities litigation group, doesn't find much merit to this lawsuit. The plaintiffs allege the most important metric is not the MAU, but the DAU, (daily active user), which was tracked internally but not disclosed to the public. Mr. Biles told Legal Newsline: "Internet companies have kind of unique metrics that they use to track demand for their products that are new to investors. I don't think there's any law that requires them to disclose every single internal metric they use. UBS: Settles Canadian Foreign Exchange Manipulation Class Action ---------------------------------------------------------------- Marco Chown, writing for Toronto Star, reports that in a case that could affect hundreds of thousands of retail investors in Canada, three major international banks accused of colluding to manipulate foreign exchange markets have settled a class action lawsuit for almost $16 million. As part of the settlement, Swiss bank UBS, French giant BNP- Paribas, and Bank of America also pledged to provide information that could help pursue more than 40 other banks alleged to have profited from a conspiracy to push and pull foreign exchange rates for more than a decade. "In addition to these very substantial financial settlements that these three settling defendants have agreed to pay, they all agreed to provide extremely valuable co-operation which will help the class achieve greater success against the remaining defendants," said Robert Gain, one of the lawyers who brought the class action on behalf of Canadian investors. A UBS spokesperson wrote that the bank "is pleased to have resolved the matter." Representatives from Bank of America and BNP-Paribas did not return requests for comment. The lawsuit against the remaining banks, which is the first "benchmark rigging" case in Canada, seeks $1 billion in compensation. The class action includes any investor who held mutual funds that included currency contracts called "FX Instruments" between 2003 and 2013. As these are common components of retail funds and pension plans, the lawsuit could affect hundreds of thousands of Canadians. "A very large number of Canadians have been impacted by this conduct both directly through their dealings with the banks and indirectly by having their investments affected by the currency manipulation," said Mr. Gain. Traders at the banks are alleged to have participated in private chat rooms with names like The Cartel, The Bandit's Club and The Mafia, in order to discuss large trades that could affect exchange rates between currencies. By trading favours and providing insider information, the trades could be timed to take advantages of swings in the rates. "The defendants created inter-bank chat rooms where they would improperly share confidential client information and proprietary bank trading information with the foreign exchange traders at other banks," said Mr. Gain. "Then they would execute a co- ordinated trading strategy to influence foreign exchange rates." Securities and financial regulators in the U.S., U.K. and Switzerland have already ruled that UBS and Bank of America manipulated foreign exchange markets and didn't properly supervise their traders. They were fined more than $1.7 billion (U.S.). Along with BNP Paribas, each bank has agreed to pay more than $100 million (U.S.) to settle lawsuits in the United States. Courts in the U.K. convicted two Barclays bankers for their roles in the scandal. Britain's Financial Conduct Authority found that "UBS failed to properly control its Zurich voice trading operations . . . traders in this part of its business were able to behave in a manner that put UBS's interests ahead of the interests of its clients, other market participants and the wider UK financial system." UNITED PARCEL: Faces "Moses" Lawsuit Under FLSA, NY Labor Law ------------------------------------------------------------- Latoya Moses, individually and on behalf of all others similarly situated, Plaintiff, v. UNITED PARCEL SERVICE GENERAL SERVICES CO. d/b/a UPS, Defendant, Case No. 1:16-cv-06331-DLI-VMS (E.D.N.Y., November 15, 2016), alleges violations of the Fair Labor Standards Act, and the New York Labor Law. Defendant operates an international package delivery service. The Plaintiff is represented by: Gernnadiy Naydenskiy, Esq. NAYDENSKIY LAW GROUP, P.C. 1517 Voorhies Avenue, 2nd Fl. Brooklyn, NY 11235 Phone: (718) 808-2224 E-mail: naydenskiylaw@gmail.com UNITED STATES: Yanko Files Appeal in Federal Claims Court --------------------------------------------------------- Michael Yanko filed an appeal from a court ruling in the lawsuit entitled Yanko v. U.S., Case No. 1:15-cv-01560-SGB, in the United States Court of Federal Claims. The lawsuit is brought by Michael Yanko, as an individual, and on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated. The nature of suit is stated as "300 Civilian Pay - Back Pay." The appellate case is captioned as Yanko v. U.S., Case No. 17- 1177, in the U.S. Court of Appeals for the Federal Circuit. The briefing schedule in the Appellate Case is set as follows: -- Entry of Appearance was due on November 22, 2016; -- Certificate of Interest was due on November 22, 2016; -- Docketing Statement is due on December 8, 2016; and -- Appellant/Petitioner's brief is due on January 9, 2017. Plaintiff-Appellant MICHAEL YANKO, as an individual, and on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated, is represented by: Ira M. Lechner, Esq. KATZ & RANZMAN, PC 1127 Connecticut Avenue, NW Washington, DC 92029 Telephone: (858) 864-2258 Facsimile: (760) 839-5755 E-mail: iralechner@yahoo.com UNITEDHEALTH GROUP: Faces "Fellgren" Suit Alleging Clawback ----------------------------------------------------------- KATHY L. FELLGREN, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. UNITEDHEALTH GROUP INCORPORATED, UNITED HEALTHCARE SERVICES, INC., UNITEDHEALTHCARE INC., OPTUM, INC., and OPTUMRX, INC., Defendants, Case No. 0:16- cv-03914 (D. Minn., November 15, 2016), alleges that Defendant's practice of "clawback" resulted to consumers overpaying for their prescription medications. UNITEDHEALTH GROUP INCORPORATED is an American diversified managed healthcare company. The Plaintiff is represented by: Karen Hanson Riebel, Esq. Kristen G. Marttila, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue S., Suite 2200 Minneapolis, MN 55401 Phone: (612) 596-4097 Fax: (612) 339-0981 E-mail: khriebel@locklaw.com kgmarttila@locklaw.com - and - Lynn Lincoln Sarko, Esq. Derek W. Loeser, Esq. Erin M. Riley, Esq. Gretchen S. Obrist, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Phone: (206) 623-1900 Fax: (206) 623-3384 E-mail: lsarko@kellerrohrback.com dloeser@kellerrohrback.com eriley@kellerrohrback.com gobrist@kellerrohrback.com US PENSION COMMITTEE: Forte Appeals S.D.N.Y. Ruling to 2nd Cir. --------------------------------------------------------------- Plaintiff Joseph D. Forte filed an appeal from a District Court order, dated September 30, 2016, in the lawsuit styled Forte v. U.S. Pension Committee, Case No. 15-cv-4936, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the complaint seeks damages as a result of the Defendants' alleged breaches of fiduciary duties, specifically by continuing to permit a stock fund to be an investment option for Plan participants despite knowing that it had become an imprudent investment. The appellate case is captioned as Forte v. U.S. Pension Committee, Case No. 16-3689, in the United States Court of Appeals for the Second Circuit. Plaintiff-Appellant Joseph D. Forte, Individually and on behalf of all others similarly situated, is represented by: Samuel Ethan Bonderoff, Esq. ZAMANSKY LLC 50 Broadway New York, NY 10004 Telephone: (212) 742-1414 Facsimile: (212) 742-1177 E-mail: samuel@zamansky.com Defendants-Appellees U.S. Pension Committee, Administrative Committee, Investment Committee, Richard Johnson and Edgar Grass are represented by: Deidre Ann Grossman, Esq. LITTLER MENDELSON, P.C. 900 3rd Avenue New York, NY 10022 Telephone: (212) 497-8491 E-mail: dgrossman@littler.com - and - Myron D. Rumeld, Esq. PROSKAUER ROSE LLP 11 Times Square New York, NY 10036 Telephone: (212) 969-3021 Facsimile: (212) 969-2900 E-mail: mrumeld@proskauer.com UTAH: Appeal in Jail Mental Health Class Action Tossed ------------------------------------------------------ The Associated Press reports that the 10th Circuit Court of Appeals in Denver will not hear a case about Utah's efforts to stall a class action lawsuit over mental health treatment in the state's jails. The Standard-Examiner reports that the Utah Attorney General's Office asked the court to consider its challenge of a ruling certifying the Disability Law Center's suit as a class action. The appeals court did not explain why it denied the state's petition in a brief order on Nov. 7. The Disability Law Center said in its suit that a persistent backlog at Utah State Hospital means people judged to be mentally incompetent to stand trial are kept in county jails while awaiting treatment. The case now returns to Salt Lake City federal court and is expected to go to trial. V.R.P. HOLDINGS: Faces "Roman" Suit Alleging FLSA Violations ------------------------------------------------------------ Maritza Roman, on her own behalf and others similarly situated, Plaintiff v. V.R.P. HOLDINGS, LLC, and VASANT PATEL, individually, Defendant, Case No. 6:16-cv-01992-PGB-GJK (M.D. Fla., November 15, 2016), seeks to recover alleged unpaid wages under the Fair Labor Standards Act. V.R.P. HOLDINGS, LLC is located in 9105 Bay Point Drive, Orlando, 32819. The Plaintiff is represented by: W. John Gadd, Esq. BANK OF AMERICA BUILDING 2727 Ulmerton Rd. Ste. 250 Clearwater, FL 33762 Phone: (727) 524-6300 E-mail: wjg@mazgadd.com - and - Kyle J. Lee, Esq. LEE LAW, PLLC PO Box 4476 Brandon, FL 33509-4476 Phone: (813) 343-2813 E-mail: Kyle@KyleLeeLaw.com VIRGINIA: Justice Dep't Supports Class Action Against DMV --------------------------------------------------------- Justin Wm. Moyer, writing for The Washington Post, reports that the Justice Department filed a brief on Nov. 7 supporting a class- action lawsuit that claims Virginia suspends poor people's driver's licenses in an "unconstitutional scheme," court documents show. In July, the class-action lawsuit, Stinnie et al. v. Holcomb, was filed in U.S. District Court in Western Virginia against the Virginia Department of Motor Vehicles, claiming 940,000 people in the state have their licenses suspended for nonpayment of fines and court costs. The lawsuit explained the plight of four named plaintiffs, including a 24-year-old Charlottesville man with lymphoma who became homeless after failing to pay about $1,000 in traffic fines. "Hundreds of thousands of people have lost their licenses simply because they are too poor to pay, effectively depriving them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts," the suit says. The Virginia suit recalled criticism of law enforcement acting as collection agents for state and local governments in Ferguson, Mo., as detailed in a Justice Department report after the 2014 shooting of an unarmed black teenager there. Now, in a 21-page statement of interest filed on Nov. 7, the Justice Department said the court should rule that those who filed the class-action suit have a "plausible claim" that improperly suspending licenses violates constitutional rights to due process guaranteed by the 14th Amendment. "Suspending the driver's licenses of those who fail to pay fines or fees without inquiring into whether that failure to pay was willful or instead the result of an inability to pay may result in penalizing indigent individuals solely because of their poverty," the statement of interest said. The Justice Department said in a news release that the statement of interest "advances the department's robust efforts to prevent unlawful practices that punish poverty at every stage of the justice system and that trap vulnerable residents in cycles of debt from court fines and fees." Angela Ciolfi, a legal director at the Legal Aid Justice Center, the advocacy group that filed the class-action suit, said it was not aware the Justice Department planned to support its action, but had kept the agency informed of its progress. "We've always thought it was a national civil rights issue with larger implications and are glad the Department of Justice agrees," Ms. Ciolfi said. Virginia's attorney general was not immediately available for comment, but the state, in a response to the suit filed last month, denied it unfairly suspends driver's licenses. "Though Plaintiffs' case could appear sympathetic from a policy perspective, it fails when viewed from a legal one," the state wrote in a memorandum in support of a motion to dismiss. The Justice Department is not the only group that's supporting the lawsuit. In an amicus brief filed this month, the Virginia NAACP said undue suspension of driver's licenses in the state unfairly affects African Americans. VISA INC: Supreme Court to Hear Arguments in Antitrust Suit ----------------------------------------------------------- Todd R. Seelman, Esq. -- Todd.Seelman@lewisbrisbois.com -- and Robin Alexander, Esq. -- Robin.Alexander@lewisbrisbois.com -- of Lewis Brisbois Bisgaard & Smith LLP, in an article for Mondaq, report that this term the U.S. Supreme Court will hear arguments in the consolidated cases of Visa Inc. v. Osborn and Visa Inc. v. Stoumbous and will consider whether automated teller machine (ATM) fee rules adopted by joint ventures amount to a price-fixing conspiracy by Visa and MasterCard, and certain affiliated banks. This matter provides the Court with the chance to further explain the standard plaintiffs must overcome to allege a conspiracy under Section 1 of the Sherman Act. The Supreme Court last addressed the subject in Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007), where the Court held that in order for a plaintiff to plead an antitrust conspiracy sufficient to survive a motion to dismiss, she must put forth factual allegations that plausibly allege the existence of an anticompetitive agreement that rise above the level of parallel conduct. The Twombly decision has made it more difficult for antitrust plaintiffs to prevail at the motion to dismiss stage. If the Court uses this opportunity to whittle Twombly back, companies can expect to see an increase in antitrust lawsuits. This may have a significant impact in the class action arena because private plaintiffs frequently bring claims alleging price-fixing conspiracies as class actions. Class actions brought under Section 1 of the Sherman Act can be particularly harmful to companies where successful private claimants are entitled to an award of triple damages, attorneys' fees and costs. The following is a factual and procedural summary of the action. Factual Background of the Consolidated Action Users and operators of independent (nonbank) ATMs brought related class actions against Visa and MasterCard, and certain affiliated banks, alleging rules prohibiting ATM operators from charging lower fees to users for transactions amounted to an illegal conspiracy to fix prices. In the mid-1990s, states began to abolish various laws that had prohibited ATM operators from charging access fees directly to cardholders. As a result, nonbanks had a financial incentive to enter the ATM market. These independent ATMs connect to a cardholder's bank through an ATM network, and the most popular networks are operated by Visa and MasterCard. A cardholder can use any independent ATM to access his bank account, as long as his bank card and the ATM are linked by one common network. Independent ATM operators rely on two streams of revenue. The first is the "net interchange" fee, which is the gross interchange fee paid by the cardholder's bank to the ATM operator, less any network services fee charged by the ATM network. MasterCard and Visa generally charge high network services fees, which means that ATM operators receive low net interchange fees. The second source of revenue is generated from the ATM access fees paid by the cardholder. Visa and MasterCard impose, as a condition for ATM operators to access their networks, a most favored customer clause called the "Access Fee Rules." These rules provide that no ATM operator may charge cardholders, whose transactions are processed on Visa or MasterCard networks, a larger access fee than that charged to any customer whose transaction is processed on an alternative ATM network. Both Visa and MasterCard were owned and operated as joint ventures by a large group of retail banks at the time that the Access Fee Rules were adopted. In 2008 and 2006, respectively, the member banks relinquished direct control over Visa and MasterCard through initial public offerings (IPOs). The IPOs did not alter the application of the Access Fee Rules, which currently remain in effect. Plaintiffs argued that these rules illegally restrain the efficient pricing of ATM services because they prevent independent ATM operators from incentivizing cardholders to use cards that are less costly than either Visa or MasterCard. Procedural History In 2013, the D.C. District Court concluded that the plaintiffs' respective complaints failed to allege facts sufficient to establish Article III standing because their allegations showed neither injury nor redressability. Alternatively, the D.C. District Court held the plaintiffs' respective complaints lacked adequate facts to establish concerted activity under Section 1 of the Sherman Act. Concerning the issue of standing, the D.C. Circuit found that two distinct theories of injury were relevant on appeal. First, the ATM operators alleged that MasterCard and Visa, working in concert with the member banks, maximized their own returns on each transaction, thereby minimizing the independent ATM operators' profit. Second, the consumers alleged that they paid inflated access fees when they visited ATMs. The consumers believed that the Access Fee Rules inhibited competition in both the network services market and the market for ATM access fees. The D.C. Circuit criticized the District Court's decision that the plaintiffs theories of injury were too attenuated and speculative because the District Court relied on cases that had been decided on summary judgment. The D.C. Circuit noted, "on a motion for summary judgment by a defendant, the question is not whether the plaintiff has asserted a plausible theory of harm, but rather whether the plaintiff has offered sufficient evidence for a reasonable jury to conclude that its theory is correct." A motion for lack of subject-matter jurisdiction, by contrast, "is not the occasion for evaluating the empirical accuracy of an economic theory." The D.C. Circuit held the facts alleged by the plaintiffs were specific, plausible, and susceptible to proof at trial and, therefore, sufficient for standing purposes at this stage. Concerning the antitrust issue, on appeal the D.C. Circuit applied the Twombly standard to evaluate if the plaintiffs' claims were adequate to survive a motion to dismiss. The D.C. Circuit noted that a legally single entity violates Section 1 of the Sherman Act when the entity is "controlled by a group of competitors and serve[s] in essence, as a vehicle for ongoing concerted activity." The D.C. Circuit held the plaintiffs' allegations, that a group of retail banks fixed an element of access fee pricing through bankcard association rules, described the sort of concerted action necessary to make out a claim under Section 1 of the Sherman Act. The D.C. Circuit observed that membership in an association was not enough to establish participation in a conspiracy with other members of that association, but acknowledged that the plaintiffs had done much more than that. The plaintiffs alleged that the member banks used the associations to adopt and enforce the Access Fee Rules and that the member banks possessed governance rights in those associations. Accordingly in August 2015, the D.C. Circuit vacated the District Court's decision and sent the cases back for further proceedings. The D.C. Circuit subsequently declined to rehear the dispute, leading to two January petitions for Supreme Court review. In one petition, Visa, MasterCard, and the affiliated banks argued that the D.C. Circuit's opinion conflicted with decisions from the Third, Fourth, and Ninth Circuits because the D.C. Circuit held that a plaintiff may sufficiently plead a conspiracy under Section 1 of the Sherman Act by claiming that the members of a business association agreed to adhere to the association's rules and possessed governance rights in the association. Visa and MasterCard filed a similar petition seeking Supreme Court review of a set of related cases in which the banks were not defendants. Neither petition challenged the D.C. Circuit's decision regarding the plaintiffs' Article III standing. In June 2016, the Supreme Court agreed to hear the two cases in concert. Brief for Petitioners In the merits brief filed by Visa, MasterCard, and the affiliated banks in September 2016, the petitioners argued that the Access Fee Rules do not constitute a conspiracy under Section 1 of the Sherman Act because they were derived as a result of the banks' founding of Visa and MasterCard as joint ventures. According to the petitioners, under Am. Needle, Inc., 560 U.S. at 195 and Cooperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769 (1984), a joint venture's conduct is concerted only where it flows from the members' pursuing separate economic interests as separate economic actors. Petitioners argued that respondents' allegations that the banks adhered to each associations' rules and possessed governance rights in the associations were insufficient to plead concerted action under this standard. Briefs for Respondents In their response the ATM operators argued that the Access Fee Rules were illegal regardless of whether the banks adopted the rules for a separate economic purpose. The ATM operators encouraged the Court to evaluate whether the complaints properly pled an agreement under Twombly. The ATM operators further asked the Court not to decide whether respondents' complaints pled that petitioners engaged in concerted action because that argument was not presented in the petitions. The ATM operators noted that neither petition raised the issue or even cited Am. Needle, and answering the question would be a departure from the Court's settled practice of deciding only the question presented. The ATM operators further stated that under petitioners' legal theory, it would be difficult to see how a joint venture could ever be held liable for any restraint, "all of which inevitably share the feature that petitioners argue is dispositive: that the challenged agreement benefitted Visa [or MasterCard] to some extent." The Supreme Court will hear a total of one hour of oral argument concerning this matter on December 7, 2016. VISA INC: Supreme Court Affirms Dismissal of ATM Fees Case ---------------------------------------------------------- The Associated Press reports that the Supreme Court has dismissed a case it took up earlier this year involving accusations that Visa and MasterCard illegally fixed ATM prices. The credit card companies wanted the justices to overturn a lower court ruling that said the antitrust case could move forward. The high court agreed to hear their appeal in June. But the justices dismissed the case on Nov. 17, saying the companies are now making a different legal argument than the one the Supreme Court agreed to decide. The lawsuit filed by consumers and independent ATM operators claims the payment processors illegally coordinated with Bank of America Corp., JPMorgan Chase & Co. and Wells Fargo & Co. to adopt anticompetitive fees. A federal judge dismissed the case in 2013, but a federal appeals court revived it last year. VITAL THERAPIES: Securities Class Action Dismissed -------------------------------------------------- Vital Therapies, 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 a putative securities class action lawsuit has been dismissed. On December 2, 2015, a putative securities class action complaint was filed against Vital Therapies, Inc., Terry Winters, and Michael V. Swanson in the U.S. District Court for the Southern District of California alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, captioned Patrick A. Griggs v. Vital Therapies, Inc., et al., No. 3:15-cv-02700-JLS-NLS. On December 30, 2015, a substantively similar complaint was filed in the same court, captioned Alicia Beach Halverstadt v. Vital Therapies, Inc., et al., No. 3:15-cv-02951-JLS-NLS. On February 1, 2016, putative shareholders and class members Kaktrale Austin, Sumesh Kumar, and Nelson Than moved for appointment as lead plaintiff and approval of choice of counsel. Kaktrale Austin and Sumesh Kumar also moved to consolidate the complaints into a single action. Sumesh Kumar and Nelson Than withdrew their motions for appointment as lead plaintiff on February 23, 2016, and March 3, 2016, respectively. On May 2, 2016, the court entered an order granting plaintiff Kaktrale Austin's motion for consolidation and appointing plaintiff Kaktrale Austin as lead plaintiff and his counsel as lead counsel. The consolidated action was captioned In re Vital Therapies, Inc. Securities Litigation, No. 15-CV-2700 JLS (NLS). On June 1, 2016, plaintiff Kaktrale Austin filed an amended complaint. The amended complaint, like the earlier complaints, was purportedly filed on behalf of all persons who purchased or otherwise acquired Vital Therapies, Inc. stock from April 17, 2014 through August 21, 2015, inclusive, and named as defendants Vital Therapies, Inc. and Messrs. Winters and Swanson. Also like the earlier complaints, the amended complaint alleged that Vital Therapies, Inc. and Messrs. Winters and Swanson violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by misrepresenting material facts and/or misleading investors about the interconnection between the Vital Therapies Inc. clinical trials, the independent significance of each clinical trial, and the potential effects of the failure of one clinical trial on the other. The amended complaint sought certification as a class action, unspecified damages, and attorneys' fees and costs. On July 1, 2016, Vital Therapies Inc. and Messrs. Winters and Swanson filed a motion to dismiss the amended complaint, or the Motion to Dismiss. In response to the Motion to Dismiss, the counsel for the plaintiff advised defendants' counsel that the plaintiff had decided to dismiss the action. Accordingly, on August 4, 2016, the parties filed a joint stipulation to dismiss the action. On August 9, 2016, the court dismissed the action with prejudice as to the plaintiff. The Company is a biotherapeutic company focused on developing a cell-based therapy targeting the treatment of liver failure. VOLKSWAGEN AG: Faces Second Major Dieselgate Class Action --------------------------------------------------------- Marc Stern, writing for Torque News, reports that a second major Dieselgate class-action suit, filed on behalf of more than 100,000 Audi vehicle owners, says VW and Audi actively used defeat devices on both diesel and gasoline cars and crossovers until last May. Dieselgate just keeps lurching along. And the news gets worse for Volkswagen as the scandal spreads beyond turbodiesel engines into the realm of gasoline. According to a consumer lawsuit, the Volkswagen plot to cheat on emissions testing by using defeat devices extended to at least six models, using Audi's 3.0-liter gasoline engine. VW's Profitable Unit Audi, Volkswagen's luxury subsidiary and its most profitable unit, stands accused in the lawsuit of installing cheating software, designed to beat emissions tests in two popular luxury sedans and two popular luxury crossovers. A class-action lawsuit, filed on behalf of the owners of more than 100,000 vehicles, contained the allegations. The suit indicated that the cheatware -- software designed to cheat -- had been installed on four models since February 2013 and possibly earlier. The vehicles include the: - A6 sedan - A8 sedan - Q5 crossover - A7 crossover The latest major consumer lawsuit was filed on Nov. 8 and said that Audi executives encouraged the used of the cheatware devices in vehicles as recently as May, eight months after the diesel cheating scandal became public. Jeannine Givinan, Volkswagen's spokeswoman and Mark Clothier, Audi spokesman, declined to comment on the complaint. The new lawsuit jibes with a story that appeared in the German newspaper Bild am Sonntag that brought to light the use of scamware in not only turbodiesel engines but also gasoline engines. The story was the first indication of how far the plot had spread. The story and news of the lawsuit follow by only two weeks Judge Charles Breyer's final approval of the first major Dieselgate class-action lawsuit settlement. That settlement sets aside $10.03 billion to buy back 475,000 2.0-liter four-cylinder turbodiesel vehicles in which the automaker had installed emissions cheating software; $4.5 billion for environmental mitigation and infrastructure development; $1.2 billion for dealer compensation, and $400 million in compensation to 43 states. VW has the option of repairing any of the repatriated vehicles. However, the California Air Resources Board (CARB) and Environmental Protection Agency (EPA) have not approved fixes for the engines involved. The latest class-action lawsuit comes at a time when VW is facing a whirlwind of continuing court action that includes criminal probes in the U.S., Germany, France, Italy, India and South Korea; individual lawsuits from five states and hundreds of shareholder claims. Also, the Hans Dieter Poetsch, head of the Volkswagen AG executive board, is under investigation by German prosecutors over disclosure of scandal to investors. VOLVO CARS: Seventh Circuit Appeal Filed in "Laurens" Class Suit ---------------------------------------------------------------- Plaintiffs Xavier Laurens and Khadija Laurens filed an appeal from a court ruling in their lawsuit titled Xavier Laurens, et al. v. Volvo Cars of North America, L, et al., Case No. 1:16-cv-04507, in the U.S. District Court for the Northern District of Illinois, Eastern Division. As previously reported in the Class Action Reporter, the Plaintiffs seek compensatory and actual damages, including restitution and disgorgement of the Defendants' revenues, attorney fees and costs and other and further relief resulting from common law fraud, breach of express warranty, unjust enrichment and violation of the Illinois Consumer Fraud Act. Xavier Laurens purchased the Volvo XC90 T8 twin gasoline-electric engine vehicle, which the Defendant claims to run 25 miles on full charge. He alleges that his T8 only runs for 8 to 10 miles on a full electric charge. The appellate case is captioned as Xavier Laurens, et al. v. Volvo Cars of North America, L, et al., Case No. 16-3829, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript information sheet is due by November 16, 2016; and -- Appellant's brief is due on or before December 12, 2016, for Khadija Laurens and Xavier Laurens. Plaintiffs-Appellants XAVIER LAURENS, individually and on behalf of all others similarly situated, and KHADIJA LAURENS are represented by: Todd L. McLawhorn, Esq. MCLAWHORN LAW OFFICES, P.C. 407 S. Dearborn, Suite 1310 Chicago, IL 60605 Telephone: (312) 419-1941 E-mail: todd@mcllegal.com - and - Joseph Siprut, Esq. SIPRUT PC 17 N. State Street Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: jsiprut@siprut.com Defendants-Appellees VOLVO CARS OF NORTH AMERICA, LLC, a Delaware limited liability corporation, and VOLVO CAR USA, LLC, a Delaware limited liability corporation, are represented by: Jennifer Ilkka, Esq. Robert A. Roth, Esq. REED SMITH LLP Ten S. Wacker Drive Chicago, IL 60606-7507 Telephone: (312) 207-1000 Facsimile: (312) 207-6400 E-mail: jilkka@reedsmith.com rroth@reedsmith.com WAL-MART: Likely to Appeal $54MM Award in Drivers' Wage Case ------------------------------------------------------------ The Associated Press reports that a spokesman for Wal-Mart says the company is "likely to appeal" a jury decision awarding $54 million to truck drivers who had sued the retail giant in a wage dispute. Randy Hargrove said in a statement on Nov. 23 that Wal-Mart believes its drivers are paid in compliance with California law and often in excess of what's required. He says Wal-Mart truckers are among the highest-paid in the industry, earning from about $80,000 to more than $100,000 a year. A federal jury found that the retail giant intentionally failed to pay hundreds of California drivers the minimum wage for activities that included inspecting and washing their trucks and for layovers. Mr. Hargrove says the company doesn't believe the facts support the decision. An attorney for Wal-Mart truck drivers in California says awarding the drivers $54 million in damages for payment failure was a just verdict that was a long time coming. Attorney Butch Wagner says drivers were not paid for all the duties they did, such as pre-and post-trip inspections and rest breaks. He said despite waiting eight years to get the case in front of a juror, the seven-member panel did a "hell of a job" reaching, what he called, the right decision. Scott Edelman, an attorney for Wal-Mart, however, says incorrect juror instructions brought the panel to its verdict. The seven jurors returned the verdict in a lawsuit accusing the company of not properly paying drivers in accordance with California law for activities that included inspecting and washing their trucks and for layovers. Civil penalties will be determined by a judge. WAL-MART STORES: Appeal of Braun/Hummel Ruling Filed in Pa. Court ----------------------------------------------------------------- An appeal by defendants Wal-Mart Stores, Inc. and Sam's Club was docketed in the Superior Court of Pennsylvania on Nov. 7, 2016. Wal-Mart Stores and Sam's Club challenge a court ruling from the Court of Common Pleas in Philadelphia, Pennsylvania, in relation to the lawsuits titled: -- Michelle Braun, on behalf of herself and all others similarly situated v. Wal-Mart Stores, Inc., a Delaware Corporation, and Sam's Club, an operating segment of Wal-Mart Stores, Inc.; and -- Dolores Hummel, on behalf of herself and all others similarly situated v. Wal-Mart Stores, Inc., a Delaware Corporation, and Sam's Club, an operating segment of Wal-Mart Stores, Inc. The appellate case is captioned as Braun, M. v. Walmart Stores, Inc., Case No. 3361-EDA-2016, in the Superior Court of Pennsylvania. According to the Superior Court's docket, the lower court judge was Judge Idee C. Fox and the lower court order appealed from was dated Nov. 14, 2007. As previously reported in the Class Action Reporter, the Plaintiffs allege that the Company failed to pay class members for all hours worked and prevented class members from taking their full meal and rest breaks. According to the Class Action Reporter's coverage of the case, Braun/Hummel was commenced in March 2002 in the Court of Common Pleas in Philadelphia, Pennsylvania. On October 13, 2006, a jury awarded back-pay damages to the plaintiffs of approximately $78 million on their claims for off-the-clock work and missed rest breaks. The jury found in favor of the Company on the plaintiffs' meal-period claims. On November 14, 2007, the trial judge entered a final judgment in the approximate amount of $188 million, which included the jury's back-pay award plus statutory penalties, prejudgment interest and attorneys' fees. By operation of law, post-judgment interest accrues on the judgment amount at the rate of 6% per annum from the date of entry of the judgment, which was November 14, 2007, until the judgment is paid, unless the judgment is set aside on appeal. On December 7, 2007, the Company filed its Notice of Appeal. On June 10, 2011, the Pennsylvania Superior Court of Appeals issued an opinion upholding the trial court's certification of the class, the jury's back pay award, and the awards of statutory penalties and prejudgment interest, but reversing the award of attorneys' fees. On September 9, 2011, the Company filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. On July 2, 2012, the Pennsylvania Supreme Court granted the Company's Petition. On December 15, 2014, the Pennsylvania Supreme Court issued its opinion affirming the Superior Court of Appeals' decision. On March 13, 2015, the Company filed a petition for writ of certiorari with the U.S. Supreme Court. On April 20, 2015, the plaintiffs filed their response in opposition and on May 4, 2015, the Company filed its reply brief. On April 4, 2016, the Supreme Court denied a Petition for Writ of Certiorari by Wal-Mart Stores, Inc. arising out of the December 2014 ruling by the Pennsylvania Supreme Court. Plaintiffs-Appellees Michelle Braun, et al., are represented by: Michael D. Donovan, Esq. DONOVAN LITIGATION GROUP, LLC 1055 Westlakes Drive, Suite 155 Berwyn, PA 19312 Telephone: (610) 647-6067 Facsimile: (610) 647-7215 - and - Judith L. Spanier, Esq. ABBEY SPANIER, LLP 212 East 39th Street New York, NY 10016 Telephone: (212) 889-3700 E-mail: jspanier@abbeyspanier.com Defendants-Appellants Wal-Mart Stores, Inc. and Sam's Club are represented by: Maureen Murphy McBride, Esq. James C. Sargent, Jr., Esq. John J. Cunningham, IV, Esq. LAMB MCERLANE PC 24 E. Market Street, P.O. Box 565 West Chester, PA 19381 Telephone: (610) 701-4410 Facsimile: (610) 692-0877 E-mail: mmcbride@lambmcerlane.com jsargent@lambmcerlane.com jcunningham@lambmcerlane.com WESTERN REFINING: Faces Class Suit by NTI Shareholder ----------------------------------------------------- Western Refining, Inc. and Northern Tier Energy LP 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 on August 24, 2016, an alleged NTI unitholder ("Plaintiff") filed a purported class action lawsuit against Western, NTI, NTI GP, members of the NTI GP board of directors at the time of the Merger, Evercore Group, L.L.C. ("Evercore"), and MergerCo (collectively, "Defendants") (the "Merger Litigation"). The Merger Litigation appears to challenge the adequacy of disclosures made in connection with the Merger. Plaintiff seeks monetary damages and attorneys' fees. The Merger Litigation is in the earliest stages of litigation. Western believes the Merger Litigation is without merit and intends to vigorously defend against it. The Company produces refined products at its refineries in El Paso, Texas, Gallup, New Mexico and St. Paul Park, Minnesota. WHIRLPOOL CORP: Kress Seeks Review of Ruling in "Chambers" Suit --------------------------------------------------------------- Objector Kelly Kress filed an appeal from a court ruling in the lawsuit styled Steve Chambers, et al. v. Whirlpool Corporation, et al., Case No. 8:11-cv-01733-FMO-JCG, in the U.S. District Court for the Central District of California, Santa Ana. As previously reported in the Class Action Reporter, objectors Patrick S. Sweeney, W. Allen McDonald, Christine Knott and Kimberly Smith, and the Defendants have filed separate appeals to the Ninth Circuit. The Case was brought by several people whose dishwashers started on fire. They alleged that the dishwashers inexplicably ignited. A Settlement has been reached in a class action lawsuit against Whirlpool, Sears Holdings Corporation, and Sears, Roebuck and Company regarding certain dishwashers manufactured between October 2000 and January 2006. Whirlpool has also agreed to provide additional benefits to owners of certain dishwashers -- manufactured between 1995 and 2010 -- that observed or experienced smoke, flames, fumes, sparks, or electrical arcing from the control console area/electronic control board of their dishwasher. Additional information on the case and the settlement is available at: https://www.dishwashersettlement.com/ The appellate case is captioned as Steve Chambers, et al. v. Whirlpool Corporation, et al., Case No. 16-56686, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by December 9, 2016; -- Transcript is due on March 9, 2017; -- Appellant Kelly Kress' opening brief is due on April 18, 2017; -- Answering brief of Appellees Susan Bathon, W. David Beal, George Bliss, James Cashman, Steve Chambers, Joseph Cicchelli, Kurt Himler, Zila Koswener, Gary LeBlanc, Shirl Mederlet, Maureen Meneghetti, Susan Milicia, Kevin O'Donnell, Raymond Paolini Jr., Linda Sample, Sears Holdings Corporation, Sears Roebuck and Co., Inc., Jackie Steffes, Lynn Van Der Veer, Pamela Walchli, Lyndee Walker and Whirlpool Corporation is due on May 18, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellees STEVE CHAMBERS, LYNN VAN DER VEER, JOSEPH CICCHELLI, KURT HIMLER, SUSAN MILICIA, GARY LEBLANC, JAMES CASHMAN, KEVIN O'DONNELL, GEORGE BLISS, SUSAN BATHON, MAUREEN MENEGHETTI, W. DAVID BEAL, LINDA SAMPLE, SHIRL MEDERLET, LYNDEE WALKER, JACKIE STEFFES, RAYMOND PAOLINI, Jr., ZILA KOSWENER, and PAMELA WALCHLI, and for all others similarly, are represented by: Jeffrey M. Cohon, Esq. COHON & POLLAK, LLP 1999 Avenue of the Stars Los Angeles, CA 90067 Telephone: (310) 231-4470 Facsimile: (310) 231-4610 E-mail: jcohon@cohonpollak.com - and - Charles S. Fax, Esq. RIFKIN WEINER LIVINGSTON, LLC 7979 Old Georgetown Road, Suite 400 Bethesda, MD 20814 Telephone: (302) 951-0150 E-mail: cfax@rwlls.com - and - Robert S. Kitchenoff, Esq. David H. Weinstein, Esq. WEINSTEIN KITCHENOFF & ASHER LLC 100 South Broad Street, Suite 705 Philadelphia, PA 19110-1061 Telephone: (215) 545-7200 Telecopier: (215) 545-6535 E-mail: kitchenoff@wka-law.com weinstein@wka-law.com - and - Timothy N. Mathews, Esq. Steven Alan Schwartz, Esq. CHIMICLES & TIKELLIS LLP 361 W. Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Telecopier: (610) 649-3633 E-mail: sas@chimicles.com tnm@chimicles.com - and - Nicole D. Sugnet, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery Street San Francisco, CA 94111 Telephone: (415) 956-1000 Telecopier: (415) 956-1008 E-mail: nsugnet@lchb.com Objector-Appellant KELLY KRESS is represented by: Steve A. Miller, Esq. STEVE A. MILLER, P.C. 1625 Larimer Street, Suite 2905 Denver, CO 80202 Telephone: (303) 892-9933 E-mail: sampc01@gmail.com - and - Jonathan Edward Fortman, Esq. LAW OFFICE OF JONATHAN E. FORTMAN, LLC 250 Saint Catherine Street Florissant, MO 63031 Telephone: (314) 522-2312 Facsimile: (314) 524-1519 E-mail: jef@fortmanlaw.com - and - John C. Kress, Esq. THE KRESS LAW FIRM, LLC 4247 South Grand Blvd. St. Louis, MO 63111 Telephone: (314) 631-3883 E-mail: jckress@thekresslawfirm.com Defendants-Appellants WHIRLPOOL CORPORATION, a Delaware Corporation; SEARS HOLDINGS CORPORATION, a Delaware Corporation; and SEARS ROEBUCK AND CO., INC., a New York corporation, are represented by: Galen D. Bellamy, Esq. Michael Timothy Williams, Esq. WHEELER TRIGG O'DONNELL LLP 370 Seventeenth Street, Suite # 4500 Denver, CO 80202-5647 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 E-mail: bellamy@wtotrial.com williams@wtotrial.com - and - Dean Jeffrey Zipser, Esq. UMBERG ZIPSER LLP 1920 Main Street, Suite 200 Irvine, CA 92614 Telephone: (949) 679-0052 Facsimile: (949) 679-0461 E-mail: dzipser@umbergzipser.com WHIRLPOOL CORP: Knott Seeks Review of Ruling in "Chambers" Suit --------------------------------------------------------------- Objectors Christine Knott and Kimberly Smith filed an appeal from a court ruling in the lawsuit titled Steve Chambers, et al. v. Whirlpool Corporation, et al., Case No. 8:11-cv-01733-FMO-JCG, in the U.S. District Court for the Central District of California, Santa Ana. The appellate case is captioned as Steve Chambers, et al. v. Whirlpool Corporation, et al., Case No. 16-56666, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, objectors Patrick S. Sweeney and W. Allen McDonald have also filed separate appeals to the Ninth Circuit. The Case was brought by several people whose dishwashers started on fire. They alleged that the dishwashers inexplicably ignited. A Settlement has been reached in a class action lawsuit against Whirlpool, Sears Holdings Corporation, and Sears, Roebuck and Company regarding certain dishwashers manufactured between October 2000 and January 2006. Whirlpool has also agreed to provide additional benefits to owners of certain dishwashers -- manufactured between 1995 and 2010 -- that observed or experienced smoke, flames, fumes, sparks, or electrical arcing from the control console area/electronic control board of their dishwasher. Additional information on the case and the settlement is available at: https://www.dishwashersettlement.com/ The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by December 7, 2016; -- Transcript is due on March 7, 2017; -- Appellants Christine Knott and Kimberly Smith's opening brief is due on April 17, 2017; -- Answering brief of Appellees Susan Bathon, W. David Beal, George Bliss, James Cashman, Steve Chambers, Joseph Cicchelli, Kurt Himler, Zila Koswener, Gary LeBlanc, Shirl Mederlet, Maureen Meneghetti, Susan Milicia, Kevin O'Donnell, Raymond Paolini Jr., Linda Sample, Sears Holdings Corporation, Sears Roebuck and Co., Inc., Jackie Steffes, Lynn Van Der Veer, Pamela Walchli, Lyndee Walker and Whirlpool Corporation is due on May 17, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellees STEVE CHAMBERS, et al., for all others similarly situated are represented by: Jeffrey M. Cohon, Esq. COHON & POLLAK, LLP 1999 Avenue of the Stars Los Angeles, CA 90067 Telephone: (310) 231-4470 Facsimile: (310) 231-4610 E-mail: jcohon@cohonpollak.com - and - Charles S. Fax, Esq. Rifkin Weiner Livingston, LLC 7979 Old Georgetown Road, Suite 400 Bethesda, MD 20814 Telephone: (302) 951-0150 E-mail: cfax@rwlls.com - and - Robert S. Kitchenoff, Esq. David H. Weinstein, Esq. WEINSTEIN KITCHENOFF & ASHER LLC 100 South Broad Street, Suite 705 Philadelphia, PA 19110-1061 Telephone: (215) 545-7200 Telecopier: (215) 545-6535 E-mail: kitchenoff@wka-law.com weinstein@wka-law.com - and - Timothy N. Mathews, Esq. Steven Alan Schwartz, Esq. CHIMICLES & TIKELLIS LLP 361 W. Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Telecopier: (610) 649-3633 E-mail: sas@chimicles.com tnm@chimicles.com - and - Nicole D. Sugnet, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery Street San Francisco, CA 94111 Telephone: (415) 956-1000 Telecopier: (415) 956-1008 E-mail: nsugnet@lchb.com Objectors-Appellants KIMBERLY SMITH and CHRISTINE KNOTT are represented by: Vaughn Michael Greenwalt, Esq. Timothy R. Hanigan, Esq. LANG, HANIGAN & CARVALHO, LLP 21550 Oxnard Street Woodland Hills, CA 91367 Telephone: (818) 883-5644 Facsimile: (818) 704-9372 E-mail: vgreenwalt@lhcllp.com trhanigan@gmail.com Defendants-Appellees WHIRLPOOL CORPORATION, a Delaware Corporation, SEARS HOLDINGS CORPORATION, a Delaware Corporation, and SEARS ROEBUCK AND CO., INC., a New York corporation, are represented by: Dean Jeffrey Zipser, Esq. UMBERG ZIPSER LLP 1920 Main Street, Suite 200 Irvine, CA 92614 Telephone: (949) 679-0052 Facsimile: (949) 679-0461 E-mail: dzipser@umbergzipser.com - and - Galen D. Bellamy, Esq. Michael Timothy Williams, Esq. WHEELER TRIGG O'DONNELL LLP 370 Seventeenth Street, Suite # 4500 Denver, CO 80202-5647 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 E-mail: bellamy@wtotrial.com williams@wtotrial.com WHIRLPOOL CORP: Seeks 9th Cir. Review of Order in "Chambers" Suit ----------------------------------------------------------------- Defendants Whirlpool Corporation, Sears Holdings Corporation, and Sears Roebuck and Co., Inc., filed an appeal from a court ruling in the lawsuit titled Steve Chambers, et al. v. Whirlpool Corporation, et al., Case No. 8:11-cv-01733-FMO-JCG, in the U.S. District Court for the Central District of California, Santa Ana. The appellate case is captioned as Steve Chambers, et al. v. Whirlpool Corporation, et al., Case No. 16-56684, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, objectors Patrick S. Sweeney, W. Allen McDonald, and Christine Knott and Kimberly Smith have filed separate appeals to the Ninth Circuit. The Case was brought by several people whose dishwashers started on fire. They alleged that the dishwashers inexplicably ignited. A Settlement has been reached in a class action lawsuit against Whirlpool, Sears Holdings Corporation, and Sears, Roebuck and Company regarding certain dishwashers manufactured between October 2000 and January 2006. Whirlpool has also agreed to provide additional benefits to owners of certain dishwashers -- manufactured between 1995 and 2010 -- that observed or experienced smoke, flames, fumes, sparks, or electrical arcing from the control console area/electronic control board of their dishwasher. Additional information on the case and the settlement is available at: https://www.dishwashersettlement.com/ The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by December 9, 2016; -- Transcript is due on March 9, 2017; -- Appellants Sears Holdings Corporation, Sears Roebuck and Co., Inc. and Whirlpool Corporation's opening brief is due on April 18, 2017; -- Answering brief of Appellees Susan Bathon, W. David Beal, George Bliss, James Cashman, Steve Chambers, Joseph Cicchelli, Kurt Himler, Zila Koswener, Gary LeBlanc, Shirl Mederlet, Maureen Meneghetti, Susan Milicia, Kevin O'Donnell, Raymond Paolini Jr., Linda Sample, Jackie Steffes, Lynn Van Der Veer, Pamela Walchli and Lyndee Walker is due on May 18, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellees STEVE CHAMBERS, LYNN VAN DER VEER, JOSEPH CICCHELLI, KURT HIMLER, SUSAN MILICIA, GARY LEBLANC, JAMES CASHMAN, KEVIN O'DONNELL, GEORGE BLISS, SUSAN BATHON, MAUREEN MENEGHETTI, W. DAVID BEAL, LINDA SAMPLE, SHIRL MEDERLET, LYNDEE WALKER, JACKIE STEFFES, RAYMOND PAOLINI, Jr., ZILA KOSWENER, and PAMELA WALCHLI, and for all others similarly, are represented by: Jeffrey M. Cohon, Esq. COHON & POLLAK, LLP 1999 Avenue of the Stars Los Angeles, CA 90067 Telephone: (310) 231-4470 Facsimile: (310) 231-4610 E-mail: jcohon@cohonpollak.com - and - Charles S. Fax, Esq. RIFKIN WEINER LIVINGSTON, LLC 7979 Old Georgetown Road, Suite 400 Bethesda, MD 20814 Telephone: (302) 951-0150 E-mail: cfax@rwlls.com - and - Robert S. Kitchenoff, Esq. David H. Weinstein, Esq. WEINSTEIN KITCHENOFF & ASHER LLC 100 South Broad Street, Suite 705 Philadelphia, PA 19110-1061 Telephone: (215) 545-7200 Telecopier: (215) 545-6535 E-mail: kitchenoff@wka-law.com weinstein@wka-law.com - and - Timothy N. Mathews, Esq. Steven Alan Schwartz, Esq. CHIMICLES & TIKELLIS LLP 361 W. Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Telecopier: (610) 649-3633 E-mail: sas@chimicles.com tnm@chimicles.com - and - Nicole D. Sugnet, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery Street San Francisco, CA 94111 Telephone: (415) 956-1000 Telecopier: (415) 956-1008 E-mail: nsugnet@lchb.com Defendants-Appellants WHIRLPOOL CORPORATION, a Delaware Corporation; SEARS HOLDINGS CORPORATION, a Delaware Corporation; and SEARS ROEBUCK AND CO., INC., a New York corporation, are represented by: Timothy S. Bishop, Esq. Stephen Shapiro, Esq. Joshua D. Yount, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606-4637 Telephone: (312) 782-0600 Facsimile: (312) 706-8607 E-mail: tbishop@mayerbrown.com jdyount@mayerbrown.com sshapiro@mayerbrown.com - and - Michael Timothy Williams, Esq. Galen D. Bellamy, Esq. WHEELER TRIGG O'DONNELL LLP 370 Seventeenth Street, Suite # 4500 Denver, CO 80202-5647 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 E-mail: williams@wtotrial.com bellamy@wtotrial.com - and - Dean Jeffrey Zipser, Esq. UMBERG ZIPSER LLP 1920 Main Street, Suite 200 Irvine, CA 92614 Telephone: (949) 679-0052 Facsimile: (949) 679-0461 E-mail: dzipser@umbergzipser.com WILLIAMS-SONOMA INC: Brenner Appeals Decision to First Circuit -------------------------------------------------------------- Plaintiff Jacqueline Brenner filed an appeal from a court ruling in the lawsuit titled Brenner v. Williams-Sonoma, Inc., Case No. 1:13-cv-10931-MLW, in the U.S. District Court for the District of Massachusetts, Boston. As previously reported in the Class Action Reporter, Ms. Brenner brought suit on behalf of herself and all others similarly situated alleging violations of Massachusetts General Laws chapters 93 and 93A based upon Williams-Sonoma's collection of customer ZIP codes, which were then used for targeted advertising by mail. The appellate case is captioned as Brenner v. Williams-Sonoma, Inc., Case No. 16-2313, in the United States Court of Appeals for the First Circuit. The Docketing Statement, Transcript Report/Order form and Appearance form is due on November 16, 2016. The First Circuit also notified the parties that the December 1, 2016 amendment to the Federal Rules of Appellate Procedure make significant changes to appellate practice. The full text of the amendments, as well as a summary of major rule changes, is available at https://goo.gl/tzUpHu The changes are effective on December 1, 2016. Plaintiff-Appellant JACQUELINE BRENNER, on behalf of herself and all others similarly situated, is represented by: Douglas Gregory Blankinship, Esq. Todd S. Garber, Esq. FINKELSTEIN BLANKINSHIP FREI-PEARSON & GARBER LLP 1311 Mamaroneck Avenue, Suite 220 White Plains, NY 10605 Telephone: (914) 298-3281 E-mail: gblankinship@fbfglaw.com tgarber@fbfglaw.com - and - George V. Granade, Esq. REESE RICHMAN LLP 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: (212) 643-0500 E-mail: ggranade@reesellp.com - and - Kim E. Richman, Esq. RICHMAN LAW GROUP 195 Plymouth Street Brooklyn, NY 11201 Telephone: (212) 687-8291 E-mail: krichman@richmanlawgroup.com Defendant-Appellee Williams-Sonoma, Inc., is represented by: Elizabeth S. Barcohana, Esq. Phillip Craig Cardon, Esq. Dylan John Price, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 1901 Avenue of the Stars, Suite 1600 Los Angeles, CA 90067 Telephone: (310) 228-3700 Facsimile: (310) 228-3701 E-mail: ebarcohana@sheppardmullin.com ccardon@sheppardmullin.com dprice@sheppardmullin.com - and - Brian R. Blackman, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 4 Embarcadero Center, 17th Floor San Francisco, CA 94111 Telephone: (415) 434-9100 Facsimile: (415) 434-3947 E-mail: bblackman@sheppardmullin.com - and - Kathryn Hines, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 30 Rockefeller Plaza New York, NY 10112 Telephone: (212) 653-8700 Facsimile: (212) 653-8701 E-mail: khines@sheppardmullin.com - and - Creighton Kirkpatrick Page, Esq. Nicholas C. Theodorou, Esq. FOLEY HOAG LLP 155 Seaport Blvd Boston, MA 02210-2600 Telephone: (617) 832-3035 Facsimile: (617) 832-7000 E-mail: cpage@foleyhoag.com ntheodorou@foleyhoag.com WPX ENERGY: 2nd Motion for Class Certification Pending ------------------------------------------------------ WPX Energy, 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 plaintiffs' second motion for class certification in the royalty litigation remains pending. The Company said, "In October 2011, a potential class of royalty interest owners in New Mexico and Colorado filed a complaint against us in the County of Rio Arriba, New Mexico. The complaint presently alleges failure to pay royalty on hydrocarbons including drip condensate, breach of the duty of good faith and fair dealing, fraudulent concealment, conversion, misstatement of the value of gas and affiliated sales, breach of duty to market hydrocarbons in Colorado, breach of implied duty to market, violation of the New Mexico Oil and Gas Proceeds Payment Act, and bad faith breach of contract. Plaintiffs sought monetary damages and a declaratory judgment enjoining activities relating to production, payments and future reporting. This matter was removed to the United States District Court for New Mexico where the court denied plaintiffs' motion for class certification." "In August 2012, a second potential class action was filed against us in the United States District Court for the District of New Mexico by mineral interest owners in New Mexico and Colorado. Plaintiffs claim breach of contract, breach of the covenant of good faith and fair dealing, breach of implied duty to market both in Colorado and New Mexico and violation of the New Mexico Oil and Gas Proceeds Payment Act, and seek declaratory judgment, accounting and injunctive relief. "On August 16, 2016, the court denied plaintiffs' motion for class certification. On September 15, 2016, plaintiffs filed their motion for reconsideration and filed a second motion for class certification. "At this time, we believe that our royalty calculations have been properly determined in accordance with the appropriate contractual arrangements and applicable laws. We do not have sufficient information to calculate an estimated range of exposure related to these claims." The Company's operations include oil, natural gas and NGL development, production, and gas management activities primarily located in Texas, North Dakota, New Mexico and Colorado. It specializes in development and production from tight-sands and shale formations in the Delaware, Williston and San Juan Basins. It also has operations and interests in the Appalachian and Green River Basins located in Pennsylvania and Wyoming. YAHOO! INC: Faces 23 Suits Over Massive Data Breach --------------------------------------------------- Kif Leswing, writing for Business Insider, reports that in September, Yahoo announced that at least 500 million user account credentials had been stolen from it in late 2014. Yahoo offered more details on the security breach's effect on its business in an SEC filing on Nov. 9. Although the company says it only spent $1 million related to the breach last quarter, it admitted that the breach may "cause users and customers to curtail or stop using our products and services." CEO Marissa Mayer said that she was "heartened" by Yahoo's users showing "continued loyalty as seen in our user engagement trends" despite the hack. The breach could also cost the company more in the near future, as 23 lawsuits seeking class action status have been filed against Yahoo over the breach. However, Yahoo did not provide an estimate of what the total cost of the breach could be, only that it could be material. Yahoo also said that several different government agencies were looking into the breach, which it continues to believe was "state- sponsored": In addition, the Company is cooperating with federal, state, and foreign governmental officials and agencies seeking information and/or documents about the Security Incident and related matters, including the U.S. Federal Trade Commission, the U.S. Securities and Exchange Commission, a number of State Attorneys General, and the U.S. Attorney's office for the Southern District of New York. The revelation of the hack has come at a time when Yahoo is in the process of selling itself to Verizon, and has thrown a potential wrench into the $4.8 billion deal, particularly if Yahoo users get spooked and stop using the service. Here's what Yahoo had to say about the data breach being a risk factor: "The investigation into the Security Incident is ongoing and we are still in the process of determining all of the facts and assessing the full extent of its impact and the impact of related government investigations and civil litigation on our results of operations, which could be material." "The Security Incident involved the theft of certain user account information for at least 500 million user accounts. The investigation of the Security Incident is ongoing, and we are still in the process of assessing the financial and other effects of the Security Incident. We may identify additional information that was accessed or stolen, or develop a clearer understanding of the Security Incident, evidence of such compromise in 2014 or related issues, and other developments related to the Security Incident could occur, which could have an adverse impact on our business, results of operations, financial results, and reputation. For example, our forensic experts are currently investigating certain evidence and activity that indicates an intruder, believed to be the same state-sponsored actor responsible for the Security Incident, created cookies that could have enabled such intruder to bypass the need for a password to access certain users' accounts or account information. As a result of the Security Incident, we are facing at least 23 putative consumer class action lawsuits and other lawsuits and claims may be asserted by or on behalf of users, partners, shareholders, or others seeking damages or other related relief, allegedly arising out of the Security Incident. We are also facing investigations by a number of federal, state, and foreign governmental officials and agencies. These claims and investigations may adversely affect how we operate our business, divert the attention of management from the operation of the business, and result in additional costs and potential fines. In addition, the governmental agencies investigating the Security Incident may seek to impose injunctive relief, consent decrees, or other civil or criminal penalties which could, among other things, materially increase our data security costs, and affect how we operate our systems and collect and use customer and user information. "Our security measures may be breached as they were in the Security Incident and user data accessed, which may cause users and customers to curtail or stop using our products and services, and may cause us to incur significant legal and financial exposure. "Our products and services involve the storage and transmission of Yahoo's users' and customers' personal and proprietary information in our facilities and on our equipment, networks, and corporate systems. Yahoo is routinely targeted by outside third parties, including technically sophisticated and well-resourced state- sponsored actors, attempting to access or steal our user and customer data or otherwise compromise user accounts. We believe such a state-sponsored actor was responsible for the theft involved in the Security Incident. Security breaches or other unauthorized access or actions expose us to a risk of theft of user data, regulatory actions, litigation, investigations, remediation costs, damage to our reputation and brand, loss of user and partner confidence in the security of our products and services and resulting fees, costs, and expenses, loss of revenue, damage to our reputation, and potential liability. Outside parties may attempt to fraudulently induce employees, users, partners, or customers to disclose sensitive information or take other actions to gain access to our data or our users' or customers' data. In addition, hardware, software, or applications we procure from third parties may contain defects in design or manufacture or other problems that could unexpectedly compromise network and data security. In addition, our or our partners' implementation of software may contain security vulnerabilities or may not be implemented properly due to human error or limitations in our systems. Additionally, some third parties, such as our distribution partners, service providers, vendors, and app developers, may receive or store information provided by us or by our users through applications that are integrated with Yahoo properties and services. If these third parties fail to adopt or adhere to adequate data security practices, or in the event of a breach of their networks, our data or our users' data may be improperly accessed, used, or disclosed. Security breaches or other unauthorized access (such as the Security Incident) have resulted in, and may in the future result in, a combination of significant legal and financial exposure, increased remediation and other costs, damage to our reputation, and a loss of confidence in the security of our products, services, and networks that could have a significantly adverse effect on our business. We take steps to prevent unauthorized access to our corporate systems, however, because the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently or may be disguised or difficult to detect, or designed to remain dormant until a triggering event, we may be unable to anticipate these techniques or implement adequate preventative measures. Breaches of our security measures, such as the Security Incident, or perceived breaches, have caused and may in the future cause, the market perception of the effectiveness of our security measures to be harmed and cause us to lose users and customers." * Class Action Rule Changes Expected to Come to Federal Courts -------------------------------------------------------------- Edward T. Kang, Esq. -- EKang@LawKHF.com -- of Kang Haggerty & Fetbroyt, in an article for The Legal Intelligencer, reports that in August of this year, the Judicial Conference Advisory Committee on Rules of Civil Procedure released a preliminary draft of proposed amendments to the Federal Rules of Civil Procedure. Perhaps the most notable of the proposed amendments are those relating to Rule 23, which governs class actions. Rule 23 has been substantively amended four times since its adoption in 1937, and most recently in 2003. The proposed amendments affect the following aspects of Rule 23: method of notice to class members, settlement approval, objections of class members to settlement and appeals. Notice The proposal includes an amendment to Rule 23(c)(2)(b) to clarify the proper methods of notice to class members of a class certified under Rule 23(b)(3) (common questions of law or fact predominate over those pertinent to only individual class members and the class action is superior to other forms of action). Currently, Rule 23(c)(2)(b) requires notice by "the best notice that is practicable under the circumstances," which could plausibly be read to permit notice through electronic or other means. But many courts have stated that this subsection of the rule requires notice by first class mail. The proposed amendment would clear up this confusion by allowing notice to be perfected "by United States mail, electronic means, or other appropriate means." This proposed amendment is meant to clarify that modern methods of communication, such as email and social media, are permissible means of providing notice to class members. The proposed amendment reflects the reality that many people do not check their U.S. mail as regularly as they used to before the advent of electronic mail. The proposed amendment does not require any one form of notice over another, but merely provides courts and litigants with the ability to weigh various options that may be more effective, efficient, and that promote cost savings. Which method of notice to use under the proposed amended rule will be a fact-specific inquiry for courts to answer while balancing considerations such as potential costs of notice, access of class members to various technologies and forms of communications, and the level of attention class members are likely pay to the notice in any given form of transmittal. Settlement Approval The proposed amendment makes changes to the settlement procedures contained in Rule 23(e) and provides guidance for courts in determining whether to approve settlement. First, the proposed amendment would clarify that the settlement procedures currently contained in Rule 23(e) apply not only to certified classes, but also to classes proposed to be certified for purposes of settlement. Next, the proposed amendment would require that, before notice of a potential settlement is sent to class members pursuant to Rule 23(e)(1), the parties must provide the court with information sufficient to determine that it is likely the class will be certified for settlement purposes, and that the settlement will be approved as fair and reasonable following a settlement hearing under Rule 23(e)(2). The Advisory Committee has noted that some of the information that may be relevant for the parties to provide the court to aid in the determination of whether settlement notice is warranted includes the extent and type of benefits to be conferred upon class members, the anticipated rate of claims, potential outcomes and risks of litigation, the extent of discovery completed, and the proposed handling of attorney's fees. Courts are encouraged to direct parties to submit additional information if it will aid in the court's preliminary determination of whether the settlement is likely to be approved upon a final hearing and thus notice of the potential settlement is warranted. Additionally, the proposed amendment provides factors for courts to consider in evaluating a proposed settlement. Rule 23 requires a court to hold a hearing to determine if a proposed settlement is "fair, reasonable, and adequate," but provides no further guidance in making this determination. As a result, courts have developed their own set of factors to determine the fairness and adequacy of a proposed settlement. The Advisory Committee, noting that parties often feel the need exhaustively to address a court's stated factors even where not all factors are pertinent to the case in question, has proposed a list of factors for courts to consider in an effort to address these concerns, and to narrow the focus of the parties and courts to the factors most central to a determination under Rule 23(e)(2). The proposed amendment contains the following factors for a court to consider: whether the class representatives and counsel have adequately represented the class; whether the proposed settlement was negotiated at arm's length; the adequacy of the relief to be provided to the class members, taking into account the costs and risks of trial, the effectiveness of the proposed method of distributing relief to class members, the proposed attorney's fee, and any side agreements that have been made in connection with the settlement; and whether the class members will be treated equitably relative to each other. Objections of Class Members The current Rule 23(e)(5) allows any class member to object to a proposed settlement. The proposed amendment seeks several changes to the rule. First, the proposed amendment removes the requirement that an objecting class member obtain court approval to withdraw an objection. This amendment reflects the Advisory Committee's view that an objector ought to be free to withdraw his objection should he conclude that it was not justified. The proposal, however, would require court approval if payment is to be made to an objector or his counsel in consideration for withdrawing an objection or dismissing an appeal of an approved settlement. This requirement is meant to address concerns that class members make objections merely for personal gain, and often at the expense of the other parties, while recognizing that objections can often prove beneficial to a class or the court, and thus payment to the objector or counsel may be warranted. In an effort to deter baseless objections, the proposed amendment further requires objectors to state whether their objection applies only to the objector, to a specific subset of the class, or to the entire class. The objection must also state with specificity the grounds for the objection so as to better enable the parties and the court to evaluate the objection. Failure of an objector to state the grounds of the objection with specificity may be cause for the objection to be rejected; but the Advisory Committee cautions courts to provide leeway to class members (particularly where they are pro se) who may not be aware of technical legal standards. Appeals Finally, the proposed amendment seeks to clarify Rule 23(f) to provide that no appeal can be taken from an order under Rule 23(e)(1) preliminarily approving a settlement and ordering notice to class members. While the proposal maintains the existing 14-day window for a party to file a petition for permission to appeal, it extends the time frame to 45 days if any party is the United States, a U.S. agency, or a U.S. officer or employee sued for acts or omissions performed on the United States' behalf. The extension of time applies to all parties, not just the United States, and is meant to reflect the considerations of Rules 4(i) and 12(a), as well as Federal Rules of Appellate Procedure 4(a)(1)(B) and 40(a)(1), which recognize a special need on the part of the United States for additional time to act. Conclusion The proposed amendments to Rule 23 provide for a number of changes to the rule. Some of the changes, particularly the adoption of guidelines for determining if a settlement is "fair, reasonable, and adequate," merely adopt practices that have been developed by courts over the years. Others, such as clarification that notice to class members need not always be provided by first class mail but can also be provided by other means such as e-mail or social media, are meant to reflect evolving technologies and communication standards. Other changes, such as those relating to standards for objecting to a proposed settlement, reflect a sharp change in the Rule, which will likely have lasting effects. The Advisory Committee is accepting public comments through Feb. 15, 2017, on the proposed amendments. The committee will then decide whether to approve a final form of the proposed amendments, which would then be submitted to the Judicial Conference's Committee on Rules of Practice and Procedure, otherwise known as the Standing Committee. If approved by the Standing Committee, the proposed amendments will be sent to the Judicial Conference who will decide whether to send the proposed changes to the U.S. Supreme Court for adoption, subject to congressional action rejecting or modifying the amendments. If approved, the proposed amendments would become effective on Dec. 1, 2018. * Law Passed for Queensland Supreme Court Class Action Procedure ---------------------------------------------------------------- Clayton Utz reports that on November 8 the Queensland Parliament passed legislation that introduces a new class action procedure in the Queensland Supreme Court, the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016. As was widely publicized at the time, the Queensland Floods Class Action was commenced in the NSW Supreme Court as the action could not be commenced in the Queensland Registry of the Federal Court and the rules for representative proceedings in the Queensland Supreme Court were considered inadequate and did not match the class action procedure that was available in other State Supreme Courts. On August 16, 2016, the State Government announced the introduction of legislation, which included amendments to the Civil Proceedings Act 2011, which will introduce Part 13A entitled "Representative proceedings in Supreme Court", a new representative proceedings procedure to facilitate class action in the Queensland Supreme Court. The legislation was passed by the Queensland Parliament on Nov. 8 and will commence on a date to be fixed by proclamation which is expected to be in early 2017. The amendments enact a statutory regime modelled on substantially similar legislative schemes in place in the Federal Court of Australia and the Victorian and New South Wales Supreme Courts. What does this mean for you? The introduction of this legislation brings Queensland into line with other States and ensures efficiency in conducting litigation if the most appropriate forum for the litigation is the Queensland Supreme Court. * New Mexico Voters Approve Ban on Unaffordable Bail Amid Suits --------------------------------------------------------------- Sara Dorn, writing for cleveland.com, reports New Mexico voters passed a constitutional amendment on Nov. 8 that prohibits judges from jailing people solely because they can't afford bail. The statewide measure, approved 87 percent to 13 percent, will scale back the use of money as a means for getting out of jail. It also sets up a process that poor defendants can follow to seek relief from bail, and gives judges another tool for jailing potentially dangerous people. The amendment allows judges to detain defendants deemed a risk to society without the opportunity to post bail. Under the current system, only defendants accused of capital offenses can be held without bail. As New Mexico takes bail reform to a level few states have tried, Cuyahoga County is considering reforming its bail system to be fairer to all defendants. Eric Holder says Maryland's bail system is unconstitutional: The former U.S. attorney general decried what he said are discriminatory bail practices used by judges in Maryland. In a letter, he urged the state's attorney general to fix the system, The Atlantic's City Lab reports. Mr. Holder co-authored the October letter with his colleagues at the Covington & Burling law firm. In it, they suggest Maryland adopt reforms similar to the ones New Mexico enacted on Nov. 8. Jailing people for lack of bail violates the equal protection and due process clauses of the 14th Amendment, Mr. Holder wrote. Maryland's bail system also fails to protect people from potentially violent defendants who have money to pay their way out. Class action suit claims San Francisco, Sacramento bail systems discriminate against poor: Federal class action lawsuits filed against San Francisco and Sacramento by a Washington, D.C. nonprofit claim the California cities routinely punish people because they are poor, a violation of the constitutional guarantee of equal protection, the American Bar Association Journal reports. Courts in San Francisco that use bail schedules, or predetermined lists of charges with associated bail amounts, often force poor defendants to languish behind bars with no consideration of their risk of skipping court or committing a new crime, the lawsuit says. San Francisco City Attorney Dennis Herrera agrees, and said he will not defend the city in court. "That creates a two-tiered system: one for those with money and another for those without," Mr. Herrera said. "It doesn't make anybody safer. It's not right, and it's not in keeping with our Constitution. It's time for it to stop. To echo U.S. Attorney General Loretta Lynch, we need to ensure that in the United States there is no price tag on justice." Ohio Revised Code requires courts to establish bail schedules for misdemeanors, resulting in a system similar to the one used in San Francisco and described in the lawsuit. Connecticut bail reform advocates spoke out against what they say is an unfair and nonsensical system of tying money to release from jail. They spoke before a state commission that will suggest changes to the legislature. Connecticut considered bail reform before, but Gov. Daniel P. Malloy's failed to persuade lawmakers to pass legislation that would have prohibited courts from requiring nonviolent misdemeanor defendants pay for their release. * Retailers Face Website Accessibility Class Action Threat ---------------------------------------------------------- Kate S. Gold, Esq. -- kate.gold@dbr.com -- Michael P. Daly, Esq. - - michael.daly@dbr.com -- Bradley J. Andreozzi, Esq. -- bradley.andreozzi@dbr.com -- Alexis Burgess, Esq. -- alexis.burgess@dbr.com -- of Drinker Biddle & Reath LLP, in an article for The National Law Review, report that retailers have been the predominant targets of a recent wave of demand letters claiming that their websites and mobile applications unlawfully discriminate against disabled customers. These demands come on the heels of the Department of Justice's (DOJ) confirmation that, in 2018, it will propose accessibility standards for private businesses, based on the accessibility standards it has already proposed for public entities. Even with two months left in the year, 2016 has already seen more single-plaintiff and class action lawsuits actually filed against retailers on this issue than ever before. In the face of an increasingly active plaintiffs' bar, any retailer with a commercial website or mobile application -- especially those operating in California, New York, or Pennsylvania, where the majority of these suits have been filed -- should take notice and prepare accordingly. Title III of the Americans With Disabilities Act (ADA) Title III of the ADA prohibits discrimination against persons with disabilities in "places of public accommodation" -- a term originally construed to mean brick and mortar establishments like stores, restaurants, movie theaters, hospitals, and schools open to the general public. As the Internet has grown increasingly important to everyday life and commerce, however, plaintiffs have insisted that websites count among covered "places of public accommodation" as well. Courts have varied in their approach to handling this influx of litigation. In the Ninth Circuit (which includes California), websites are not considered places of public accommodation unless there is a sufficient nexus between the online goods and services and a qualifying brick and mortar location. For example, the Northern District of California has held that Target's website is a place of public accommodation because the same goods are sold online and in its physical stores, Nat'l Fed'n of the Blind v. Target Corp., 452 F.Supp.2d 946, 954 (N.D.Cal.2006), while Facebook, which does not provide any of its services out of a physical location open to the public, is not. Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1114-16 (N.D.Cal.2011). The Third, Sixth, and Eleventh Circuits (which include states such as Pennsylvania, New Jersey, Michigan, and Florida) have similarly required at least a nexus to a physical location open to the public to qualify an enterprise as a place of public accommodation. Meanwhile, the First, Second, and Seventh Circuits (which include states like New York and Illinois, among others) have concluded that non-physical enterprises, including websites, may be places of public accommodation without this limitation. The Department of Justice's Anticipated 2018 Regulations The DOJ has taken the position -- which courts may consider but are not yet required to adopt -- that commercial websites are generally subject to Title III, regardless of a nexus to a physical place of public accommodation. Consistent with this position, the DOJ issued an Advanced Notice of Proposed Rulemaking in 2010 announcing plans to issue proposed regulations to Title III setting standards of accessibility for public accommodations' websites. Those proposed regulations are widely expected to be consistent with the World Wide Web Consortium's Web Content Accessibility Guidelines (WCAG 2.0 AA), which advocacy organizations have described as the minimum standards for how a website or mobile application should be coded and arranged to ensure it is accessible to the disabled, including primarily the visually and hearing impaired. Indeed, subject to potential exceptions for smaller entities or particular types of content, the DOJ indicated this summer that it plans to adopt the WCAG 2.0 AA standards wholescale in the Title II regulations that will soon govern public entities, and which the DOJ has confirmed will form the framework of its proposed regulations for Title III. The WGAG 2.0 AA standards are too numerous and complex to exhaust here, but include, for example: -- Alternative text for images compatible with screen-reading software -- The ability to navigate the website using a keyboard instead of only a mouse -- Logical and consistent use of headings for ease of navigation -- Closed captioning and sign language interpretation for audio features -- Alternative audio description for video features -- Not using color as the only visual means of conveying information, indicating an action, or prompting a response -- Text that generally has a contrast ratio of at least 4.5:1 -- Limitations on flashing content which may cause seizures Although the DOJ's proposed Title III regulations have been delayed until 2018, this has not prevented plaintiffs from pursuing litigation in the meantime. To the contrary, plaintiffs' attorneys appear to be leveraging the current uncertainty of this landscape to seek expedited settlements, including not only injunctive relief but also damages and attorneys' fees. What is the Potential Exposure for Non-Compliance? Businesses sued for website inaccessibility face significant exposure. Plaintiffs who prevail in a Title III suit are entitled to injunctive relief and attorneys' fees. ADA suits are often also accompanied by claims under applicable state law counterparts, such as California's Unruh Act and Disabled Persons Act that impose significant statutory damages for every violation ($4,000 per violation or actual damages in California). Because approximately half of the lawsuits being filed on this issue are class actions, these numbers -- to say nothing of defense costs -- can add up quickly. The seminal 2006 case of National Federation of the Blind v. Target Corp., for example, was the first to certify a class action to enforce Title III and related state laws against an online merchant. In 2008, the court approved a class settlement for $6 million and awarded over $3.7 million in attorneys' fees. Recommended Action Steps It may be tempting to wait for the DOJ's regulations before working to perfect website compliance. Getting a website up to speed can be time-consuming, however, and may require working with an attorney and a web-design consultant. Online retailers and service providers should get a head start now. While expensive, many businesses may find that improving their website's accessibility early will not only mitigate exposure, but will make good business sense, as well. Indeed, experts estimate that nearly 220 million Americans will regularly shop and do other business online in the coming year. Statistically, around 20 million of those shoppers will have at least some visual or hearing impairment. With coding that makes their online storefronts more accessible, retailers may ensure that their goods and services offered online are not out of these customers' reach. Asbestos Litigation ASBESTOS UPDATE: 4th Cir. Reverses Remand of "Ripley" ----------------------------------------------------- Facing claims in Virginia state court for failing to warn of asbestos hazards in products manufactured for the Navy, Foster Wheeler LLC and Foster Wheeler Energy Corporation removed the case pursuant to the federal officer removal statute to the United States District Court for the Eastern District of Virginia. The district court remanded to state court, citing longstanding precedent in the district that denies the government contractor defense in failure to warn cases. Appellants timely appealed. The U.S. Court of Appeals for the Fourth Circuit reversed the remand of Deborah H. Ripley's asbestos-related lawsuit, joining the chorus and holding that the government contractor defense is available in failure to warn cases. Having established this, the Fourth Circuit leaves it to the district court to decide whether the Appellants have presented sufficient proof to warrant removal pursuant to 28 U.S.C. Section 1442(a)(1). The appeals case is DEBORAH H. RIPLEY, individually and as Administrator of the Estate of Bernard W. Ripley, deceased, Plaintiff-Appellee, and BERNARD W. RIPLEY, Plaintiff, v. FOSTER WHEELER LLC; FOSTER WHEELER ENERGY CORPORATION, Defendants- Appellants, and J. HENRY HOLLAND CORPORATION; WACO, INCORPORATED; METROPOLITAN LIFE INSURANCE COMPANY; UNION CARBIDE CORPORATION; SB DECKING, INC., a/k/a Selby Battersby; AURORA PUMP, CO; IMO INDUSTRIES, INCORPORATED, as successor in interest to Delaval Pumps; GOULDS PUMPS, INCORPORATED; INGERSOLL-RAND COMPANY; WARREN PUMPS, INCORPORATED; CRANE COMPANY; GRINNELL CORPORATION; THE J.R. CLARKSON COMPANY, individually and as successor by mergers to Kunkle Industries, Inc.; MILWAUKEE VALVE COMPANY; FLOWSERVE US, INC., individually and as successor in interest to Rockwell Edward Valves and Vogt Valves; SPIRAX SARCO, INC.; ARMSTRONG INTERNATIONAL, INC., individually and as a successor to Armstrong Machine Works, Defendants, No. 15-1918 (4th Cir.). A full-text copy of the Opinion dated November 1, 2016, is available at https://is.gd/6j8Jht from Leagle.com. ARGUED: Erik David Nadolink, WHEELER TRIGG O'DONNELL, LLP, Denver, Colorado, for Appellants. William Harty, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellee. ON BRIEF: Anthony B. Taddeo, Jr., David M. Sturm, Matthew D. Joss, TADDEOSTURM PLC, Richmond, Virginia, for Appellants. Robert R. Hatten, Hugh B. McCormick, III, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellee. ASBESTOS UPDATE: NY App. Div. OK's Bid to Dismiss All Craft Suit ---------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, in the case captioned ALL CRAFT FABRICATORS, INC., ET AL., Plaintiffs-Respondents, v. SYSKA HENNESSY GROUP, INC., Defendant-Appellant, 1685, 155408/15 (N.Y. App. Div.), unanimously reversed the order of the Supreme Court, New York County entered November 24, 2015, which denied the defendant's motion to dismiss the complaint. The Plaintiffs allege that they were harmed by the defendant's failure to advise them that there was asbestos in wood panels and doors delivered to their facility for refurbishment. The Defendant moved to dismiss based on, among other things, the three-year statute of limitations applicable to the plaintiffs' claim, whether grounded in professional negligence or ordinary negligence. According to the Appellate Division, because the parties have no contractual relationship with each other, the claim must be viewed in terms of simple negligence, with accrual occurring within three years of the date of injury, rather than a claim for professional negligence, which generally accrues upon the completion of the work at issue. The Appellate Division rejected the defendant's position that the date of injury was in January 2012 when the asbestos-laden doors and panels were delivered to the facility. Until the plaintiffs' personnel actually unsealed the wooden crates that the doors and panels were encased in and cut into the material, any contamination of the plaintiffs' facility had not yet occurred, the court said. Nevertheless, the plaintiffs' contention that the date of injury was, at the earliest, May 29, 2012, exactly three years before they commenced the action, when they first noticed what they believed to be asbestos, is unavailing, the court held. "[T]he damage that [plaintiffs] are seeking to undo' is not the fact that they discovered asbestos, but the fact of its incorporation in their buildings," the court further held, citing MRI Broadway Rental v United States Min. Prods. Co., 92 N.Y.2d 421, 428 [1998]. The record makes clear that, while the plaintiffs may have first noticed asbestos on May 29, they exposed the facility to it earlier that month, the court pointed out. CPLR 214-c does not avail the plaintiffs, the court said. As they claim no additional damage to their facility since the asbestos was introduced, it cannot be said that the injury they sustained resulted from the latent effects of exposure to asbestos, the court concluded. A full-text copy of the decision dated November 3, 2016, is available at https://is.gd/oJInli from Leagle.com. Wasserman Grubin & Rogers, LLP, New York (Michael T. Rogers of counsel), for appellant. London Fischer LLP, Bellport (John E. Sparling of counsel), for respondents. ASBESTOS UPDATE: "Blount" Remanded to Los Angeles Super. Court -------------------------------------------------------------- Judge Andre Birotte, Jr., of the United States District Court for the Central District of California granted the plaintiff's ex parte motion to remand to the Los Angeles Superior Court the case captioned ANNA BLOUNT, an individual; Plaintiff, v. COLGATE- PALMOLIVE COMPANY, et al. Defendants, Case No. 2:16-cv-08048-AB (KS)(C.D. Calif.). Judge Birrote held that the District Court lacks subject-matter jurisdiction over the case becase complete diversity does not exist between all parties to the action. While it appears that the Plaintiff and the only remaining non-diverse defendant, Kelly- Moore Paint Company, Inc., are in the process of settling, Kelly- Moore has not been dismissed and its California citizenship must be considered for purposes of diversity jurisdiction, Judge Birrote said. A full-text copy of the Order dated November 1, 2016, is available at https://is.gd/sMYsPu from Leagle.com. Anna Blount, Plaintiff, represented by Josiah W. Parker, Weitz and Luxenberg PC. Colgate-Palmolive Company, Defendant, represented by Erin M. Carpenter, Foley and Mansfield PLLP, Keith M. Ameele, Foley and Mansfield PLLP, Peter Michael Mularczyk, Foley and Mansfield PLLP & Gary D. Sharp, Foley and Mansfield PLLP. ASBESTOS UPDATE: Sears Loses Summary Judgment Bid in "Pisano" ------------------------------------------------------------- In Charles P. Pisano and Mary Ann B. Graham, individually and as Co-Executors of the Estate of John A. PISANO, Plaintiffs, v. ALFA LAVAL, INC., Individually and as Successor in Interest to SHARPLES CORP., et al. Defendants, C.A. No. PC-13-5868 (R.I. Super.), Defendant Sears, Roebuck and Co. seeks summary judgment in the personal injury matter. The Defendant argues that there are no genuine issues of material fact, that there is insufficient product identification, that the Decedent's affidavits offered to defeat summary judgment contain inadmissible hearsay, and that the Defendant is exempt from liability under Rhode Island's Statute of Repose. The Plaintiffs object to the motion and argue that there are genuine issues of material fact for trial, that prior to his death the Decedent provided sufficient product identification via his affidavits, that the affidavits meet the dying declaration exception to the hearsay rule, and that the Defendant is not exempt from liability under the Statute of Repose. The Superior Court of Rhode Island, PROVIDENCE, SC, finds that genuine issues of material fact exist. The Defendant does not meet the definition of "materialman" under Rhode Island's Statute of Repose and therefore, is not exempted from liability under Section 9-29-1. Accordingly, the Superior Court denied the Defendant's Motion for Summary Judgment. A full-text copy of the Decision dated November 2, 2016, is available at https://is.gd/26kvH4 from Leagle.com. Elizabeth Murray Tavelli, Esq., elizabethmurraytavelli@gmail.com, Brian P. Kenney, Esq., bkenney@elslaw.com, Robert J. Sweeney, Esq., bsweeney@elslaw.com, Donni Young, Esq., donniyoung@aol.com, for Plaintiff, John A. Pisano. Cassandra L. Feeney, Esq., cfeeney@adlercohen.com, American Standard Ingersoll-Rand Company The Trane Company. Kathryn Rogers O'Brien, Esq., krogersobrien@apslaw.com, Theodorus Urbanski, Esq., durbanski@melicklaw.com, Atwood & Morrill. Peter F. Mathieu, Esq., pmathieu@kkrs.com, Cleaver-Brooks Company, Inc. Kevin C. McCaffrey, Esq., kmccaffrey@cullenanddykman.com, Gould Pumps, Inc. Howden Buffalo, Inc. James J. McKenna, Esq., mclaw@choiceonemail.com, Lucent Technologies, Inc. Mary C. Dunn, Esq., mcd@blishcavlaw.com, Metropolitan Life Insurance Co. Jason Caron, Esq., jcaron@pondnorth.com, Margreta Vellucci, Esq., mvellucci@pondnorth.com, Sears Roebuck & Co. Holly M. Polglase, Esq., hpolglase@hermesnetburn.com, Verizon Pennsylvania LLC. Zachary Weisberg, Esq., marjorie.vangalen@wilsonelser.com, Warren Pumps, Inc. ASBESTOS UPDATE: "Utech" Remanded to Calif. Superior Court ---------------------------------------------------------- Judge Manuel L. Real of the United States District Court for the Central District of California, approved a stipulation between defendant Caterpillar Inc. and Plaintiff Howard Utech and Joann Utech to remand the case captioned HOWARD UTECH and JOANN UTECH, Plaintiffs, v. ASBESTOS CORPORATION LIMITED, et al., Defendants, Case No. 2:14-CV-04977-R-PJW (C.D. Calif.), to the Superior Court for the State of California, County of Los Angeles, Central District, with good cause being this case is no longer subject to its original cause of removal pursuant to U.S.C. Section 1442(a)(1) by dismissed Defendant Crane Co. A full-text copy of the Order dated November 3, 2016, is available at https://is.gd/iAkLTq from Leagle.com. Howard Utech, Plaintiff, represented by Benno B. Ashrafi, Weitz and Luxenberg PC. Howard Utech, Plaintiff, represented by Marc Ian Willick, Weitz and Luxenberg PC, Carlos J.E. Guzman, Weitz and Luxenberg PC, Mark D. Bratt, Weitz and Luxenberg PC, Robert Allen Green, Weitz and Luxenberg PC & Tyler Robert Stock. Joann Utech, Plaintiff, represented by Benno B. Ashrafi, Weitz and Luxenberg PC, Marc Ian Willick, Weitz and Luxenberg PC, Carlos J.E. Guzman, Weitz and Luxenberg PC, Mark D. Bratt, Weitz and Luxenberg PC, Robert Allen Green, Weitz and Luxenberg PC & Tyler Robert Stock. Caterpillar, Inc., Defendant, represented by Jeffrey W. Deane, Selman Breitman LLP, John Anthony Kaniewski, Walsworth Franklin Bevins and McCall LLP, Michael Court Scanlon, Jr., Murrin and Associates LLC & Sean Christopher McGah, Walsworth Franklin Bevins and McCall LLP. Gardner Denver, Inc., Defendant, represented by Charles William Jenkins, Law Offices of Charles W Jenkins. ASBESTOS UPDATE: AMETEK Still Faces Asbestos Suits at Sept. 30 -------------------------------------------------------------- AMETEK, Inc. continues to face a number of asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company (including its subsidiaries) has been named as a defendant, along with many other companies, in a number of asbestos-related lawsuits. Many of these lawsuits either relate to businesses which were acquired by the Company and do not involve products which were manufactured or sold by the Company or relate to previously owned businesses of the Company which are under new ownership. In connection with many of these lawsuits, the sellers or new owners of such businesses, as the case may be, have agreed to indemnify the Company against these claims. The Indemnified Claims have been tendered to, and are being defended by, such sellers and new owners. These sellers and new owners have met their obligations, in all respects, and the Company does not have any reason to believe such parties would fail to fulfill their obligations in the future; however, one of these companies filed for bankruptcy liquidation in 2007. To date, no judgments have been rendered against the Company as a result of any asbestos- related lawsuit. The Company believes it has strong defenses to the claims being asserted and intends to continue to vigorously defend itself in these matters. ASBESTOS UPDATE: W.R. Grace To Pay $30MM To PD Trust in Feb. ------------------------------------------------------------ W.R. Grace & Co. is obligated to make a payment of $30 million to the Property Damage Trust in respect of ZAI PD Claims on February 3, 2017, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2016. W.R. Grace emerged from an asbestos-related Chapter 11 bankruptcy on February 3, 2014 (the "Effective Date"). Under its plan of reorganization, all pending and future asbestos-related claims are channeled for resolution to either a personal injury trust (the "PI Trust") or a property damage trust (the "PD Trust"). The trusts are the sole recourse for holders of asbestos-related claims. The channeling injunctions issued by the bankruptcy court prohibit holders of asbestos-related claims from asserting such claims directly against Grace. Grace has satisfied all of its financial obligations to the PI Trust. Grace has fixed and contingent obligations remaining to the PD Trust. With respect to property damage claims related to Grace's former attic insulation product installed in the U.S. ("ZAI PD Claims"), the PD Trust was funded with $34.4 million on the Effective Date. Grace is obligated to make a payment of $30 million to the PD Trust in respect of ZAI PD Claims on February 3, 2017, and has recorded a liability of $29.7 million representing the present value of this amount in "debt payable within one year" in the accompanying Consolidated Balance Sheets. Grace is also obligated to make up to 10 contingent deferred payments of $8 million per year to the PD Trust in respect of ZAI PD Claims during the 20-year period beginning on the fifth anniversary of the Effective Date, with each such payment due only if the assets of the PD Trust in respect of ZAI PD Claims fall below $10 million during the preceding year. Grace has not accrued for the 10 additional payments as Grace does not currently believe they are probable. Grace is not obligated to make additional payments to the PD Trust in respect of ZAI PD Claims beyond the payments described above. Grace has satisfied all of its financial obligations with respect to Canadian ZAI PD Claims. With respect to other asbestos property damage claims ("Other PD Claims"), claims unresolved as of the Effective Date are to be litigated in the bankruptcy court and any future claims are to be litigated in a federal district court, in each case pursuant to procedures to be approved by the bankruptcy court. To the extent any such Other PD Claims are determined to be allowed claims, they are to be paid in cash by the PD Trust. Grace is obligated to make a payment to the PD Trust every six months in the amount of any Other PD Claims allowed during the preceding six months plus interest (if applicable) and the amount of PD Trust expenses for the preceding six months (the "PD Obligation"). The aggregate amount to be paid under the PD Obligation is not capped and Grace may be obligated to make additional payments to the PD Trust in respect of the PD Obligation. Grace has accrued for those unresolved Other PD Claims that it believes are probable and estimable. Grace has not accrued for other unresolved or unasserted Other PD Claims as it does not believe that payment is probable. All payments to the PD Trust required after the Effective Date are secured by the Company's obligation to issue 77,372,257 shares of Company common stock to the PD Trust in the event of default, subject to customary anti-dilution provisions. This summary of the commitments and contingencies related to the Chapter 11 proceeding does not purport to be complete and is qualified in its entirety by reference to the plan of reorganization and the exhibits and documents related thereto, which have been filed with the SEC. ASBESTOS UPDATE: MLIC Received 3,267 Asbestos Claims at Sept. 30 ---------------------------------------------------------------- Metropolitan Life Insurance Company received approximately 3,267 and 2,971 new asbestos-related claims during the nine months ended September 30, 2016 and 2015, according to MetLife, Inc.'s Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. MLIC is and has been a defendant in a large number of asbestos- related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. MLIC has never engaged in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products nor has MLIC issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of MLIC's employees during the period from the 1920's through approximately the 1950's and allege that MLIC learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. MLIC believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against MLIC. MLIC employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances. Claims asserted against MLIC have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. MLIC's defenses (beyond denial of certain factual allegations) include that: (i) MLIC owed no duty to the plaintiffs -- it had no special relationship with the plaintiffs and did not manufacture, produce, distribute or sell the asbestos products that allegedly injured plaintiffs; (ii) plaintiffs did not rely on any actions of MLIC; (iii) MLIC's conduct was not the cause of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the dangers of asbestos were known; and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against MLIC, while other trial courts have denied MLIC's motions. There can be no assurance that MLIC will receive favorable decisions on motions in the future. While most cases brought to date have settled, MLIC intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. As reported in the 2015 Annual Report, MLIC received approximately 3,856 asbestos-related claims in 2015. During the nine months ended September 30, 2016 and 2015, MLIC received approximately 3,267 and 2,971 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that MLIC may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. The ability of MLIC to estimate its ultimate asbestos exposure is subject to considerable uncertainty, and the conditions impacting its liability can be dynamic and subject to change. The availability of reliable data is limited and it is difficult to predict the numerous variables that can affect liability estimates, including the number of future claims, the cost to resolve claims, the disease mix and severity of disease in pending and future claims, the impact of the number of new claims filed in a particular jurisdiction and variations in the law in the jurisdictions in which claims are filed, the possible impact of tort reform efforts, the willingness of courts to allow plaintiffs to pursue claims against MLIC when exposure to asbestos took place after the dangers of asbestos exposure were well known, and the impact of any possible future adverse verdicts and their amounts. The ability to make estimates regarding ultimate asbestos exposure declines significantly as the estimates relate to years further in the future. In the Company's judgment, there is a future point after which losses cease to be probable and reasonably estimable. It is reasonably possible that the Company's total exposure to asbestos claims may be materially greater than the asbestos liability currently accrued and that future charges to income may be necessary. While the potential future charges could be material in the particular quarterly or annual periods in which they are recorded, based on information currently known by management, management does not believe any such charges are likely to have a material effect on the Company's financial position. The Company believes adequate provision has been made in its consolidated financial statements for all probable and reasonably estimable losses for asbestos-related claims. MLIC's recorded asbestos liability is based on its estimation of the following elements, as informed by the facts presently known to it, its understanding of current law and its past experiences: (i) the probable and reasonably estimable liability for asbestos claims already asserted against MLIC, including claims settled but not yet paid; (ii) the probable and reasonably estimable liability for asbestos claims not yet asserted against MLIC, but which MLIC believes are reasonably probable of assertion; and (iii) the legal defense costs associated with the foregoing claims. Significant assumptions underlying MLIC's analysis of the adequacy of its recorded liability with respect to asbestos litigation include: (i) the number of future claims; (ii) the cost to resolve claims; and (iii) the cost to defend claims. MLIC reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the United States, assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its regular reevaluation of its exposure from asbestos litigation, MLIC has updated its liability analysis for asbestos-related claims through September 30, 2016. MetLife Inc., based in Delaware, is a global provider of life insurance, annuities, employee benefits and asset management. ASBESTOS UPDATE: CECONY Had $15MM Asbestos Liability at Sept. 30 ---------------------------------------------------------------- Consolidated Edison Company of New York, Inc. (CECONY) has $15 million accrued liability for asbestos suits and workers' compensation proceedings at September 30, 2016, according to Consolidated Edison Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. Suits have been brought in New York State and federal courts against the Utilities (CECONY and Orange and Rockland Utilities, Inc.) and many other defendants, wherein a large number of plaintiffs sought large amounts of compensatory and punitive damages for deaths and injuries allegedly caused by exposure to asbestos at various premises of the Utilities. The suits that have been resolved, which are many, have been resolved without any payment by the Utilities, or for amounts that were not, in the aggregate, material to them. The amounts specified in all the remaining thousands of suits total billions of dollars; however, the Utilities believe that these amounts are greatly exaggerated, based on the disposition of previous claims. At September 30, 2016, Con Edison and CECONY had accrued their estimated aggregate undiscounted potential liabilities for these suits and additional suits that may be brought over the next 15 years... The estimates were based upon a combination of modeling, historical data analysis and risk factor assessment. Trial courts have begun, and unless otherwise determined by an appellate court may continue, to apply a different standard for determining liability in asbestos suits than the standard that applied historically. As a result, the Companies (Consolidated Edison, Inc. and CECONY) currently believe that there is a reasonable possibility of an exposure to loss in excess of the liability accrued for the suits. The Companies are unable to estimate the amount or range of such loss. In addition, certain current and former employees have claimed or are claiming workers' compensation benefits based on alleged disability from exposure to asbestos. Under its current rate plans, CECONY is permitted to defer as regulatory assets (for subsequent recovery through rates) costs incurred for its asbestos lawsuits and workers' compensation claims. A full-text copy of the Form 10-Q is available at https://is.gd/p5meAl Consolidated Edison Company of New York, Inc. provides regulated electric, gas, and steam delivery services in the United States. ASBESTOS UPDATE: CECONY Accrues $30MM for Manhattan Accident ------------------------------------------------------------ Consolidated Edison Company of New York, Inc. (CECONY) has accrued $30 million estimated liability for suits related to the 2007 Manhattan Steam Main Rupture at September 30, 2016, according to Consolidated Edison Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. In July 2007, a CECONY steam main located in midtown Manhattan ruptured. It has been reported that one person died and others were injured as a result of the incident. Several buildings in the area were damaged. Debris from the incident included dirt and mud containing asbestos. The response to the incident required the closing of several buildings and streets for various periods. Approximately sixty suits are pending against the company seeking generally unspecified compensatory and, in some cases, punitive damages, for wrongful death, personal injury, property damage and business interruption. The company has notified its insurers of the incident and believes that the policies in force at the time of the incident will cover the company's costs to satisfy its liability to others in connection with the suits. In the company's estimation, there is not a reasonable possibility that an exposure to loss exists for the suits that is materially in excess of the estimated liability accrued. At September 30, 2016, the company has accrued its estimated liability for the suits of $30 million and an insurance receivable of $39 million. A full-text copy of the Form 10-Q is available at https://is.gd/p5meAl Consolidated Edison Company of New York, Inc. provides regulated electric, gas, and steam delivery services in the United States. ASBESTOS UPDATE: CECONY Accrues $720-Mil. for Superfund Sites ------------------------------------------------------------- Consolidated Edison Company of New York, Inc. (CECONY) has $720 million accrued liabilities and regulatory assets related to Superfund Sites at September 30, 2016, according to Consolidated Edison Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. Hazardous substances, such as asbestos, polychlorinated biphenyls (PCBs) and coal tar, have been used or generated in the course of operations of the Utilities and their predecessors and are present at sites and in facilities and equipment they currently or previously owned, including sites at which gas was manufactured or stored. The Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 and similar state statutes (Superfund) impose joint and several liability, regardless of fault, upon generators of hazardous substances for investigation and remediation costs (which include costs of demolition, removal, disposal, storage, replacement, containment and monitoring) and natural resource damages. Liability under these laws can be material and may be imposed for contamination from past acts, even though such past acts may have been lawful at the time they occurred. The sites at which the Utilities have been asserted to have liability under these laws, including their manufactured gas plant sites and any neighboring areas to which contamination may have migrated, are referred to herein as "Superfund Sites." For Superfund Sites where there are other potentially responsible parties and the Utilities are not managing the site investigation and remediation, the accrued liability represents an estimate of the amount the Utilities will need to pay to investigate and, where determinable, discharge their related obligations. For Superfund Sites (including the manufactured gas plant sites) for which one of the Utilities is managing the investigation and remediation, the accrued liability represents an estimate of the company's share of the undiscounted cost to investigate the sites and, for sites that have been investigated in whole or in part, the cost to remediate the sites, if remediation is necessary and if a reasonable estimate of such cost can be made. Remediation costs are estimated in light of the information available, applicable remediation standards and experience with similar sites. A full-text copy of the Form 10-Q is available at https://is.gd/p5meAl Consolidated Edison Company of New York, Inc. provides regulated electric, gas, and steam delivery services in the United States. ASBESTOS UPDATE: Rexnord Estimates $32MM Liability at Sept. 30 -------------------------------------------------------------- Rexnord Corporation estimates $32.0 million potential liability for asbestos-related claims as of September 30, 2016, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company's subsidiaries are involved in various unresolved legal actions, administrative proceedings and claims in the ordinary course of business involving, among other things, product liability, commercial, employment, workers' compensation, intellectual property claims and environmental matters. The Company establishes accruals in a manner that is consistent with accounting principles generally accepted in the United States for costs associated with such matters when liability is probable and those costs are capable of being reasonably estimated. Although it is not possible to predict with certainty the outcome of these unresolved legal actions or the range of possible loss or recovery, based upon current information, management believes the eventual outcome of these unresolved legal actions, either individually or in the aggregate, will not have a material adverse effect on the financial position, results of operations or cash flows of the Company. In connection with its sale of the Company, Invensys plc has provided the Company with indemnification against certain contingent liabilities, including certain pre-closing environmental liabilities. The Company believes that, pursuant to such indemnity obligations, Invensys is obligated to defend and indemnify the Company with respect to the matters described below relating to the Ellsworth Industrial Park Site and to various asbestos claims. The indemnity obligations relating to the matters described below are subject, together with indemnity obligations relating to other matters, to an overall dollar cap equal to the purchase price, which is an amount in excess of $900 million. The following paragraphs summarize the most significant actions and proceedings: In 2002, Rexnord Industries, LLC was named as a potentially responsible party, together with at least ten other companies, at the Ellsworth Industrial Park Site, Downers Grove, DuPage County, Illinois (the Site), by the United States Environmental Protection Agency (USEPA), and the Illinois Environmental Protection Agency (IEPA). Rexnord Industries' Downers Grove property is situated within the Ellsworth Industrial Complex. The USEPA and IEPA allege there have been one or more releases or threatened releases of chlorinated solvents and other hazardous substances, pollutants or contaminants, allegedly including but not limited to a release or threatened release on or from the Company's property, at the Site. The relief sought by the USEPA and IEPA includes further investigation and potential remediation of the Site and reimbursement of USEPA's past costs. Rexnord Industries' allocated share of past and future costs related to the Site, including for investigation and/or remediation, could be significant. All previously pending property damage and personal injury lawsuits against the Company related to the Site have been settled or dismissed. Pursuant to its indemnity obligation, Invensys continues to defend the Company in known matters related to the Site and has paid 100% of the costs to date. Multiple lawsuits (with approximately 300 claimants) are pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain brakes and clutches previously manufactured by the Company's Stearns division and/or its predecessor owners. Invensys and FMC, prior owners of the Stearns business, have paid 100% of the costs to date related to the Stearns lawsuits. Similarly, the Company's Prager subsidiary is a defendant in two pending multi- defendant lawsuits relating to alleged personal injuries due to the alleged presence of asbestos in a product allegedly manufactured by Prager. Additionally, there are numerous individuals who have filed asbestos related claims against Prager; however, these claims are currently on the Texas Multi-district Litigation inactive docket. The ultimate outcome of these asbestos matters cannot presently be determined. To date, the Company's insurance providers have paid 100% of the costs related to the Prager asbestos matters. The Company believes that the combination of its insurance coverage and the Invensys indemnity obligations will cover any future costs of these matters. In connection with the Company's acquisition of The Falk Corporation, Hamilton Sundstrand has provided the Company with indemnification against certain products-related asbestos exposure liabilities. The Company believes that, pursuant to such indemnity obligations, Hamilton Sundstrand is obligated to defend and indemnify the Company with respect to the asbestos claims described below, and that, with respect to these claims, such indemnity obligations are not subject to any time or dollar limitations. The following paragraph summarizes the most significant actions and proceedings for which Hamilton Sundstrand has accepted responsibility: Falk, through its successor entity, is a defendant in multiple lawsuits pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain clutches and drives previously manufactured by Falk. There are approximately 100 claimants in these suits. The ultimate outcome of these lawsuits cannot presently be determined. Hamilton Sundstrand is defending the Company in these lawsuits pursuant to its indemnity obligations and has paid 100% of the costs to date. Certain Water Management subsidiaries are also subject to asbestos litigation. As of September 30, 2016, Zurn and numerous other unrelated companies were defendants in approximately 6,000 asbestos related lawsuits representing approximately 18,000 claims. Plaintiffs' claims allege personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn. Zurn did not manufacture asbestos or asbestos components. Instead, Zurn purchased them from suppliers. These claims are being handled pursuant to a defense strategy funded by insurers. As of September 30, 2016, the Company estimates the potential liability for the asbestos-related claims described above as well as the claims expected to be filed to be approximately $32.0 million of which Zurn expects its insurance carriers to pay approximately $23.0 million in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The $32.0 million was developed based on actuarial studies and represents the projected indemnity payout for current and future claims. There are inherent uncertainties involved in estimating the number of future asbestos claims, future settlement costs, and the effectiveness of defense strategies and settlement initiatives. As a result, actual liability could differ from the estimate described herein and could be substantial. Management estimates that its available insurance to cover this potential asbestos liability as of September 30, 2016, is approximately $244.1 million, and believes that all current claims are covered by insurance. However, principally as a result of the past insolvency of certain of the Company's insurance carriers, certain coverage gaps will exist if and after the Company's other carriers have paid the first $168.1 million of aggregate liabilities. As of September 30, 2016, the Company had a recorded receivable from its insurance carriers of $32.0 million, which corresponds to the amount of this potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance that $244.1 million of insurance coverage will ultimately be available or that this asbestos liability will not ultimately exceed $244.1 million. Factors that could cause a decrease in the amount of available coverage include: changes in law governing the policies, potential disputes with the carriers regarding the scope of coverage, and insolvencies of one or more of the Company's carriers. Rexnord Corporation is a multi-platform industrial company. ASBESTOS UPDATE: Energy Fuels Faces Exposure Claims Over Mill ------------------------------------------------------------- Energy Fuels Inc. faces claims related to an alleged exposure to asbestos resulting from the operation of the White Mesa Mill, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. In November, 2012, the Company was served with an Original Petition and Jury Demand in the District Court of Harris County, Texas, claiming unspecified damages from the disease and injuries resulting from mesothelioma from exposure to asbestos, which the Plaintiff claims was contributed to by being exposed to asbestos products and dust while working at the White Mesa Mill. The Company does not consider this claim to have any merit, and therefore does not believe it will materially affect its financial position, results of operations or cash flows. In January, 2013, the Company filed a Special Appearance challenging jurisdiction and certain other procedural matters relating to this claim. No other activity involving the Company on this matter has occurred since that date. Energy Fuels Inc. -- http://www.energyfuels.com/-- is a fully- integrated producer of both uranium and vanadium. ASBESTOS UPDATE: Huntington Still Faces Claims at Sept. 30 ---------------------------------------------------------- Huntington Ingalls Industries, Inc., continues to face cases by former and current employees and various third parties who allege exposure to asbestos containing materials, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. HII and its predecessors-in-interest are defendants in a longstanding series of cases that have been and continue to be filed in various jurisdictions around the country, wherein former and current employees and various third parties allege exposure to asbestos containing materials while on or associated with HII premises or while working on vessels constructed or repaired by HII. The cases allege various injuries, including those associated with pleural plaque disease, asbestosis, cancer, mesothelioma, and other alleged asbestos related conditions. In some cases, several of HII's former executive officers are also named as defendants. In some instances, partial or full insurance coverage is available to the Company for its liability and that of its former executive officers. The average cost per case to resolve cases during the nine months ended September 30, 2016 and 2015, was immaterial individually and in the aggregate. The Company's estimate of asbestos-related liabilities is subject to uncertainty because liabilities are influenced by numerous variables that are inherently difficult to predict. Key variables include the number and type of new claims, the litigation process from jurisdiction to jurisdiction and from case to case, reforms made by state and federal courts, and the passage of state or federal tort reform legislation. Although the Company believes the ultimate resolution of current cases will not have a material effect on its consolidated financial position, results of operations, or cash flows, it cannot predict what new or revised claims or litigation might be asserted or what information might come to light and can, therefore, give no assurances regarding the ultimate outcome of asbestos related litigation. Huntington Ingalls Industries, Inc. -- http://www.huntingtoningalls.com/-- designs, builds and maintains nuclear and non-nuclear ships for the U.S. Navy and Coast Guard. ASBESTOS UPDATE: Dixie Group Still Defends Suits at Sept. 24 ------------------------------------------------------------ The Dixie Group, Inc., continues to defend itself against asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 24, 2016. The Company is one of multiple parties to two lawsuits, both filed in Madison County Illinois, styled Sandra D. Watts, Individually and as Special Administrator of the Estate of Dianne Averett, Deceased vs. 4520 Corp., Inc. f/k/a Benjamin F. Shaw Company, et al No. 12-L-2032 and styled Brenda Bridgeman, Individually and as Special Administrator of the Estate of Robert Bridgeman, Deceased, vs. American Honda Motor Co., Inc., f/k/a Metropolitan Life Insurance Co., et al No. 15-L-374. Each lawsuit entails a claim for damages to be determined in excess of $50 filed on behalf of the estate of an individual which alleges that the deceased contracted mesothelioma as a result of exposure to asbestos while employed by the Company. Discovery in both matters is ongoing, and tentative trial dates of February 2017 and January 2018 have been set. The Company has denied liability, is defending the matters vigorously and is unable to estimate its potential exposure to loss, if any, at this time. The Dixie Group, Inc. -- http://www.thedixiegroup.com/-- manufactures floor covering. ASBESTOS UPDATE: Harsco Faces 17,076 Claims at Sept. 30 ------------------------------------------------------- Harsco Corporation faces 17,076 pending asbestos personal injury actions at September 30, 2016, according to the Company's Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company is named as one of many defendants (approximately 90 or more in most cases) in legal actions in the U.S. alleging personal injury from exposure to airborne asbestos over the past several decades. In their suits, the plaintiffs have named as defendants, among others, many manufacturers, distributors and installers of numerous types of equipment or products that allegedly contained asbestos. The Company believes that the claims against it are without merit. The Company has never been a producer, manufacturer or processor of asbestos fibers. Any asbestos-containing part of a Company product used in the past was purchased from a supplier and the asbestos encapsulated in other materials such that airborne exposure, if it occurred, was not harmful and is not associated with the types of injuries alleged in the pending actions. At September 30, 2016, there were 17,076 pending asbestos personal injury actions filed against the Company. Of those actions, 16,762 were filed in the New York Supreme Court (New York County), 111 were filed in other New York State Supreme Court Counties and 203 were filed in courts located in other states. The complaints in most of those actions generally follow a form that contains a standard damages demand of $20 million or $25 million, regardless of the individual plaintiff's alleged medical condition, and without identifying any specific Company product. At September 30, 2016, 16,743 of the actions filed in New York Supreme Court (New York County) were on the Deferred/Inactive Docket created by the court in December 2002 for all pending and future asbestos actions filed by persons who cannot demonstrate that they have a malignant condition or discernible physical impairment. The remaining 19 cases in New York County are pending on the Active or In Extremis Docket created for plaintiffs who can demonstrate a malignant condition or physical impairment. The Company has liability insurance coverage under various primary and excess policies that the Company believes will be available, if necessary, to substantially cover any liability that might ultimately be incurred in the asbestos actions referred to above. The Company believes that a substantial portion of the costs and expenses of the asbestos actions will be paid by the Company's insurers. In view of the persistence of asbestos litigation in the U.S., the Company expects to continue to receive additional claims in the future. The Company intends to continue its practice of vigorously defending these claims and cases. At September 30, 2016, the Company has obtained dismissal in 27,892 cases by stipulation or summary judgment prior to trial. It is not possible to predict the ultimate outcome of asbestos- related actions in the U.S. due to the unpredictable nature of this litigation, and no loss provision has been recorded in the Company's condensed consolidated financial statements because a loss contingency is not deemed probable or estimable. Despite this uncertainty, and although results of operations and cash flows for a given period could be adversely affected by asbestos-related actions, the Company does not expect that any costs that are reasonably possible to be incurred by the Company in connection with asbestos litigation would have a material adverse effect on the Company's financial condition, results of operations or cash flows. Harsco Corporation -- http://www.harsco.com/-- is a diversified, worldwide industrial services company. ASBESTOS UPDATE: Shipyard Worker Loses Fight vs. Navy Supplier -------------------------------------------------------------- Bob Egelko, writing for SF Gate, reported that a man who was diagnosed with lung disease after working on nuclear submarines at Mare Island Naval Shipyard in the 1970s has no case against the supplier of the asbestos-filled insulation, a state appeals court ruled Wednesday, because the Navy ordered the product despite being aware of its dangers. Contractors that furnish products in compliance with the standards of a government agency, which has weighed a product's known risks against its benefits, are protected from lawsuits for any harm the product causes, said the First District Court of Appeal in San Francisco. Gary Kase, a civilian employee, worked at the Vallejo shipyard in the early 1970s, helping to load boxes of an asbestos-laden insulation called Unibestos onto nuclear submarines and working alongside those who were cutting the material, installing it on pipes and removing it. Kase was diagnosed in 2011 with the lung disease asbestosis. His lawyers said he settled suits against other companies involved in the production and distribution of Unibestos. But the supplier, Metalclad Insulation Corp., claimed immunity as a government contractor. In the decision, which upheld a San Francisco Superior Court judge's ruling in Metalclad's favor, the court said the Navy first approved Unibestos for its vessels in the late 1930s and continued to use it until the early 1970s. Metalclad started shipping Unibestos, manufactured by Pittsburgh Corning Corp., to the Navy in 1968. By then, the court said, Navy officials were aware of increasing evidence of the dangers of asbestos. The Navy had studied Unibestos for decades and knew it posed "serious health risks," Justice Kathleen Banke said in the 3-0 ruling. "Yet, it nevertheless made a decision to ... continue using this asbestos product in its naval vessels ... a deliberative judgment call." Kase's lawyers also argued that Unibestos could not be considered military equipment because it was available on the commercial market. The Ninth U.S. Circuit Court of Appeals in San Francisco has agreed with that argument and allowed suits against Metalclad and other contractors to proceed in federal courts in California and other Western states. The federal ruling does not bind state courts, however. Banke said the Navy's decision to approve Unibestos shields Metalclad, even if the product was also available to private companies. Kase and his wife, who also sued Metalclad, may ask the state Supreme Court to review the ruling, said Richard Grant, a lawyer for the couple. "Unibestos was not designed pursuant to Navy specifications," Grant said. "The court was also wrong in saying the government weighed the hazards of asbestos against its utility. There was no proof of that." ASBESTOS UPDATE: Justices OK Expert Opinion on Asbestos ------------------------------------------------------- Max Mitchell, writing for The Legal Intelligencer, reported that experts testifying in asbestos trials need not compare the exposure of one defendant's products to a plaintiff's overall exposure, the Pennsylvania Supreme Court ruled Nov. 22. The majority reasoned that noncomparative testimony did not violate the ban against using "any exposure" causation theories. The ruling affirmed the Superior Court's decision, which upheld a $994,800 jury award out of the Philadelphia Court of Common Pleas. Justice Christine L. Donohue, who wrote the majority opinion in Rost v. Ford Motor, said plaintiff Richard Rost's expert properly testified that Rost's exposure to the defendant's asbestos- containing products was substantial and alone could have caused Rost to develop mesothelioma. Having the expert quantify and distinguish exposure to the defendant's products and compare that to every other exposure Rost had would create a nearly impossible hurdle for plaintiffs that doesn't exist in other tort cases, Donohue said. "Multiple asbestos-containing products may be substantial factors causative of a plaintiff's mesothelioma. It is for the finder of fact, and not the courts, to make these determinations regarding substantial causation," Donohue said. "The dissenting justices' concern about whether the jury could understand whether the bucket of water was placed in a bathtub or an ocean misses the mark entirely, since Dr. [Arthur] Frank testified that Rost's exposures at Smith Motors [where Ford's asbestos-containing products were used], without more, were sufficient to cause his cancer." Chief Justice Thomas G. Saylor and Justice Max Baer both issued dissents saying that the majority's ruling diverged from precedent outlined in the Supreme Court's 2012 decision in Betz v. Pneumo Abex, in which the court declined to endorse the theory that exposure to one fiber of asbestos is tantamount to a significant exposure. Steven Cooperstein of Brookman, Rosenberg, Brown & Sandler, who represented Rost, said the ruling makes it clear that if an expert believes exposure to a particular product is substantial enough, then that expert does not need to compare that exposure to all other potential exposures. "It clarified an area that had been in flux in recent years," Cooperstein said, noting that one asbestos case he is handling has been on hold in the Superior Court pending the outcome in Rost. "It will really help the bar and trial judges understand what the state of the law is right now." Duane Morris attorney Sharon Caffrey, who tried the case for Ford Motor Co., declined to comment. The ruling also dealt a blow to the Philadelphia court's practice of mandatory consolidation of asbestos trials. When Rost was tried in 2011 it was consolidated with two other cases pursuant to a court policy that was formally adopted as a local rule in 2012. According to Donohue, after Ford repeatedly requested that the case be severed for trial, the court did not review the request and said, "We don't sever cases." Donohue said that decision was a mistake since the law only "permits (rather than requires)" consolidation and puts the issue squarely within the court's direction. "The record in this case does not reflect that the trial court exercised any discretion with respect to either the consolidation of the three cases at issue, or in connection with Ford's request to sever the Rost case from" the other two, Donohue said. However, Donohue ultimately determined that the mistake was harmless, and did not warrant a new trial. ASBESTOS UPDATE: Kenya Faces Cancer Epidemic by Asbestos Roofs -------------------------------------------------------------- Global Construction Review reported that Kenya is facing a national health crisis caused by the widespread use of asbestos sheets as a building material. Government now spends nearly 10% of its health budget on the treatment of asbestos-related cancers, and the figure is set to rise, according to broadcaster KTN. The country's National Environmental Management Authority (Nema) says the government should take action to replace asbestos on public roofs to avoid worsening health hazards. "The cost of environmental damage caused by asbestos pollution, including asbestos-related cancers, is higher than what we would spend to replace the roofs," said Izaak Elmi, chief research officer at Nema. In the 2013/14 fiscal year, he said, the government was expected to spend $33m out of its total health budget of $330m on treating asbestos-related cancers. Aidah Munano, the principal secretary in the ministry of housing, told a parliamentary committee that the government was replacing asbestos roofing. Kenya banned the use of asbestos in 2006, but nearly all government institutions, including educational facilities and residential estates built in the 1950s and 1960s, have asbestos roofs. These roofs are now ageing, and spreading the dust that causes mesotheliomas, as well as lung and oesophageal cancers. HTN reports that large Nairobi residential estates such as Bahati, Kimathi and Ofafa Jericho have asbestos roofs that are used to collect drinking water for resident. One resident said: "Whenever it rains, we collect the rainwater, which saves us when taps run dry. As you can see, we repaired the roof ourselves a few years back," she added pointing to a section of the roof patched with iron sheets. Kenya is not unique among lower income countries in failing to enforce the strict anti-asbestos measures taken for granted in richer nations. Tanzania banned asbestos in 2003, but is only now surveying its public buildings and putting in place a programme to "expertly destroy" asbestos products. Asbestos was widely used around the world because it was an ideal material. It did not burn, rot or corrode, it was an excellent thermal and acoustic insulator and it possessed elasticity and tensile strength. ASBESTOS UPDATE: 3rd Cir. Returns Boeing Suit to Federal Court -------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reported that The Boeing Co. is entitled to the military contractor defense from liability in a suit claiming it failed to warn of the dangers of asbestos, the U.S. Court of Appeals for the Third Circuit ruled on Tuesday. The appeals panel reversed the decision of a U.S. district court judge in New Jersey who granted the plaintiff's motion to send the case back to state court after Boeing removed it to federal court under the federal officer removal statute. Boeing is entitled to remove the case to federal court because it made the requisite showing that it engaged in the allegedly culpable behavior at the direction of a federal officer or agency, Third Circuit Judges Kent Jordan, Thomas Vanaskie and Cheryl Ann Krause ruled in Papp v. Fore-Kast Sales. U.S. District Judge Peter Sheridan of the District of New Jersey granted the plaintiff's motion to send the case back to state court upon finding that, as a contractor, it had a "special burden" to demonstrate that it was acting under federal government control. Sheridan said Boeing could only show it was acting under a federal officer by showing that was directly instructed by federal authority to keep mum about the dangers of asbestos. The Third Circuit said the "acting under" requirement and the federal removal statute in general are to be "liberally construed" to cover actions that involve efforts to "assist, or to help carry out, the federal supervisor's duties or tasks." Boeing easily meets the "acting under" requirement of the federal officer removal statute because the allegations in the case concern the company's actions while it was producing military aircraft under a federal contract, and if not for the contract, the government would have to produce the item on its own, the panel said. Plaintiff Steven Papp claims in the suit that his late wife, Mary Papp, became ill by exposure to asbestos from a Boeing aircraft. The suit claims she suffered secondary exposure to asbestos while laundering the clothes of her first husband, Robert Keck, who was exposed to asbestos while working at the New Brunswick Plating Co. in the late 1970s. While working there he sandblasted the landing gear of C-47 World War II military cargo planes to prepare the gear for repairs. Boeing is named as a defendant both individually and as successor to McDonnell Douglas Corp., maker of the C-47. The appeals court held that the case was properly removed under the federal removal statute because the defendant met four requirements--the defendant is a person within the meaning of the statute; the plaintiff's claims are based on the defendant's conduct acting under the federal government or a federal agency; the plaintiff's claims are relating to an act by the defendant under the color of federal office; and the defendant raises a colorable defense to the plaintiff's claims. Boeing asserted in its notice of removal that it was entitled to the "military contractor defense" announced by the Supreme Court in a 1988 case, Boyle v. United Technologies, which held that a federal contractor could not be held liable for a state tort under certain conditions. If Boeing is able to prove at trial by a preponderance of the evidence the facts alleged in its notice of removal, it will have established a prima facie defense under Boyle and may prevail on the merits, the panel said. Martin Gaynor III, of Manion Gaynor & Manning in Boston, who represented Boeing, did not return a call about the case. Nor did the plaintiff's lawyer, Jeffrey Blumstein of Szaferman, Lakind, Blumstein & Blader in Lawrenceville. ASBESTOS UPDATE: Castle Point Has High Meso Mortality Rates ----------------------------------------------------------- Leigh Times reported that new figures show that six people die of asbestos-related cancer mesothelioma every day in England and Wales, with Castle Point having one of the highest mortality rates for the disease. Castle Point has the fourth highest rate of deaths from mesothelioma, with 9.87 deaths in every 100,000 people. The national average for England is 4.51. "The suffering of families affected by mesothelioma demonstrates how important it is that lessons are learned and health and safety in the workplace is respected," said Neil Sugarman, president of the Association of Personal Injury Lawyers (APIL) a not-for-profit campaign group which campaigns for redress for sick and dying workers. "Mesothelioma is a lung cancer exclusively linked to exposure to asbestos, which could have happened 20 or even 30 years before the disease emerges. It is always fatal, often within 18 months of diagnosis," he explained. "Areas such as Castle Point, which has a high rate of deaths from mesothelioma, are no doubt seeing the effects of past industry where workers were negligently exposed to asbestos. This is despite the risks being well-known since as far back as the 1950s. People went to work and came home with a death sentence because their negligent employers exposed them to asbestos." ASBESTOS UPDATE: EnPro Settles Canadian Asbestos Claims ------------------------------------------------------- EnPro Industries, Inc. (NYSE: NPO) on November 18 announced that it has entered into a definitive settlement agreement with workers' compensation boards for each of the ten Canadian Provinces (the "Provincial Boards") to resolve current and future asbestos claims. The agreement resolves all claims against EnPro and certain of its subsidiaries, Garlock Sealing Technologies LLC ("GST"), Garrison Litigation Management Group, Ltd., Coltec Industries Inc ("Coltec"), and Garlock of Canada Ltd (collectively referred to as the "EnPro Parties"), for recovery of a portion of amounts the Provincial Boards have paid and will pay in the future under asbestos-injury recovery statutes in Canada. An agreement for the resolution of these Canadian claims has been a condition to EnPro, Coltec and GST's obligations to proceed with the March 2016 comprehensive settlement (the "Comprehensive Settlement") reached with the court-appointed committee representing current asbestos claimants, the court-appointed legal representative of future asbestos claimants in GST's asbestos claims resolution process pending in the U.S. Bankruptcy Court for the Western District of North Carolina (the "Bankruptcy Court"), and representatives for current and future asbestos claimants against Coltec. As contemplated by the Comprehensive Settlement, GST and Coltec have filed a modified joint plan of reorganization (the "Joint Plan") with the Bankruptcy Court, which set December 9, 2016 as the deadline for asbestos claimants to vote on approving the Joint Plan. The settlement agreement provides for an aggregate cash payment to the Provincial Boards of U.S. $20 million, payable on the fourth anniversary of the effective date of the Joint Plan. After the effective date of the Joint Plan, the Provincial Boards will have the option of accelerating the payment, in which case the amount payable would be discounted from the fourth anniversary of the effective date of the Joint Plan to the payment date at a discount rate of 4.5% per annum. This is consistent with the present value estimate of approximately $17 million, before tax, that EnPro has previously announced as the amount committed for the resolution of these claims. In return, the Provincial Boards have separately agreed to release EnPro, any of EnPro's affiliates and the settlement trust to be established under the Joint Plan from any liability for any present or future asbestos-related claims by the Provincial Boards and to provide, among other protections, a covenant not to sue EnPro, any of EnPro's affiliates or the settlement trust with respect to any such claims. The settlement agreement will not become effective unless the Bankruptcy Court enters an order approving it or concluding that Bankruptcy Court approval is not necessary for the EnPro Parties to the Agreement that are not debtors under the Joint Plan to enter into and consummate the settlement agreement. The settlement agreement further provides that it is not binding on any of the EnPro Parties unless and until the effective date of the Joint Plan shall have occurred. "We are pleased to announce the definitive agreement that we reached with the Canadian Provincial Boards to resolve all current and future asbestos claims against EnPro and certain subsidiaries. This is yet another key milestone in our efforts to cleanse EnPro and its subsidiaries of the legacy asbestos claims that have plagued the company since its spinoff from the Goodrich Corporation in 2002. We remain on track to reconsolidate GST into EnPro in the third quarter of 2017 and are looking forward to closing this chapter of EnPro's history. We are diligently planning for EnPro's next chapter and are excited about sharing that with our shareholders before the expected reconsolidation next year," said Steve Macadam, President and Chief Executive Officer. About EnPro Industries EnPro Industries, Inc. is a leader in sealing products, metal polymer and filament wound bearings, components and service for reciprocating compressors, diesel and dual-fuel engines and other engineered products for use in critical applications by industries worldwide. For more information about EnPro, visit the company's website at http://www.enproindustries.com. ASBESTOS UPDATE: Judge Orders Compensation for Heacham Woman ------------------------------------------------------------ Chris Bishop, writing for Eastern Daily Press, reported that a 77- year-old woman from Norfolk with asbestos-related terminal cancer has been awarded compensation from her employers after the high court ruled she was exposed to asbestos dust during her work as a funeral arranger. Winifred Goldstone -- known as Jill -- was diagnosed with mesothelioma, a cancer of the lining of the lung, in April this year after working for over 40 years as a funeral arranger at Eric W Witton Funeral Services in Heacham. In the High Court, judgment was given against her current employer Dignity Funerals Ltd who took over the business in 1989. Mrs Goldstone's employment was then transferred to her new employers, which a judge ruled made them liable for the injury. She started work at Eric W Witton as a secretary in 1975, before she began arranging funerals at the premises on Station Road, which also contained a workshop for a building business. Mrs Goldstone was also required to clean up the workshop, sweeping up dust from where materials containing asbestos were cut. In December 2015, she was becoming breathless. In April she was diagnosed with mesothelioma, which is almost exclusively caused by exposure to asbestos. In his written ruling delivered after a hearing Master Davison, the presiding judge, found she was exposed to asbestos through the fabric of the building and the activities of the carpentry business. Dignity argued that liability for Mrs Goldstone's mesothelioma remained with the carpentry business because that part of the business was not transferred to it in 1989. The judge also made clear that she was exposed to asbestos through her employment as a funeral arranger, even if the carpentry business had been separate. Harminder Bains from law firm Leigh Day said: "My client has worked for 40 years in a job she loved, she has been required throughout that time to do much more than she was paid to do and for her troubles was negligently exposed to asbestos." Mrs Goldstone, formerly of Southmoor Drive has now gone to live with one of two daughters in Buckinghamshire. "Even though I am 77 years old, I very much enjoyed my job, it was my life," she said. "I knew all the local families they would often come and talk to me about funerals I had arranged for a family member years ago. I am devastated to have to give that up." The compensation amount will be decided at a hearing on December 15. Dignity declined to comment. ASBESTOS UPDATE: Asbestos Has Claimed 33,000 Aussie Lives --------------------------------------------------------- Catryna Bilyk, writing for The Mercury, reported that until the mid-1980s, Australia was one of the highest per capita consumers of asbestos in the world. Recent discovery of asbestos in construction on the Royal Hobart Hospital, and potential exposure of workers, shows how pervasive the danger is. Due to the high use, asbestos products are in one in three brick, fibro, weatherboard or clad homes built or renovated before 1987. Australia has one of the world's highest incidences of asbestos- related disease -- 33,000 of us have lost their lives, with another 700 deaths adding to the toll each year. Asbestos is under floor coverings, behind wall tiles, in cement floors, internal and external walls, ceilings, insulation, eaves, garages, roofs, around hot water pipes, fences, garages, outdoor toilets, and even dog kennels. If undisturbed, it generally does not pose a health risk. When disturbed during renovation or maintenance, asbestos fibres can release in the air and, when inhaled, cause deadly diseases such as lung cancer, pleural disease, asbestosis and mesothelioma. Malignant mesothelioma can be dormant for up to 50 years after inhaling fibres, yet the average life expectancy for people with mesothelioma is 10-12 months after diagnosis. The aim of the National Asbestos Awareness Month campaign is to alert Australians to the risks and how to manage them. At www.asbestosawareness.com.au there is a 20-point safety check for homeowners planning renovations. Australians are encouraged to get aboard the Blue Lamington Drive to raise awareness and funds for the Asbestos Diseases Research Institute. More information about the Blue Lamington Drive is at the Asbestos Awareness website or at www.bluelamington.com. Federal Labor has a track record of dealing with this. In 2010, the former federal Labor government established the Asbestos Management Review. Before the review, there was no co-ordinated national approach to managing asbestos beyond workplaces. The review made it clear government needed to act quickly to stop people being exposed, recommending a new national plan for awareness, management and eradication. After the review, Labor established the Asbestos Safety and Eradication Agency in 2013. The Bill to establish it was introduced by then workplace relations minister, now Opposition Leader Bill Shorten. Through the agency, Labor created the first National Asbestos Exposure Register, to keep details of people who think they may have been exposed to asbestos. It has also been responsible for developing a comprehensive plan for asbestos safety and eradication, the National Strategic Plan for Asbestos Management and Awareness. The plan includes six strategies for asbestos management: raising awareness; sharing best management practice; improving identification of asbestos and sharing of information about its location; prioritising removal where it poses great risk; researching the prevention of exposure and disease; and leading a global campaign to ban it. A global ban on mining, manufacture and use of asbestos is a commitment outlined in Labor's National Platform, and we will keep working towards it. In the next sitting of Parliament, Labor will call on the Senate to inquire into the illegal importation of asbestos. Importation is banned, but there have been reports of suspected contamination of more than 50 building sites across the nation as a result of illegal imports from China. This inquiry would be a focus for the re-established inquiry into nonconforming building products, which was unable to be concluded before the 2016 election. The Abbott-Turnbull Government's response to illegal asbestos imports has been grossly inadequate. The independent review by Australian Border Force had narrowly constructed terms of reference and failed to consult with affected parties. Labor's proposed senate inquiry will be a thorough investigation. Asbestos Awareness Month is an opportunity to consider the role we can play raising awareness of the dangers of asbestos, promoting safety and supporting victims. Asbestos Free Tasmania is playing a critical role locally to promote asbestos awareness and safety. ASBESTOS UPDATE: Apartment Complex Owned Charged for Exposure ------------------------------------------------------------- Lauren DiSpirito, writing for CBS4, reported that an apartment complex management company and one of its executives are facing federal charges after renovation work caused asbestos to be released into the air. The owner of The Overlook at Mile High apartments in Denver, Willmax Capital Management, Inc., and John Tom Williams, a corporate executive, are charged with knowingly violating a federal rule that requires owners inspect for the presence of asbestos prior to renovating a facility and negligently releasing asbestos into the air, putting people at risk of death or serious injury, according to court documents. Willmax Capital Management Inc. is based in Texas. Richard Kornfeld, Williams' attorney, tells CBS4 his client is "taking responsibility" and will plead guilty to the count he is facing. In February 2014, when health officials learned renovation work had caused possible exposure to the hazardous material, the residents of 94 apartment units at the complex at 14th Avenue and Irving Streets had to be evacuated and moved into hotels. One month earlier, Kornfeld says a subcontractor began work sanding hallways in two of the complex's towers. The hallways had once been carpeted, and the carpet glue contained asbestos. A resident who was concerned about dust caused by the work contacted Denver officials, he said. At a hearing next month, Williams will officially enter a plea of guilty to one federal misdemeanor charge and will be receive his sentence six to eight weeks later. He faces up to one year in prison and an up to $100,000 fine. Kornfeld says both Willmax and Williams have worked hard to remediate problems and strengthen procedures "so nothing like this ever happens again." In March, a class-action civil lawsuit including 43 plaintiffs, residents of The Overlook at Mile High, against Willmax was settled. An attorney for the plaintiffs told CBS4 the terms of the settlement agreement are confidential. Kornfeld, who was not involved in that case, says the company has spent nearly $1 million on remediation, reimbursing residents, and training employees to prevent another exposure. To date, Kornfeld says no one has been sickened as a result of the release. ASBESTOS UPDATE: State Agency Taken to Court Over Exposure ---------------------------------------------------------- Sandra Chapman, writing for WTHR, reported that some Indiana homeowners are taking the state to court because of emails. Specifically, emails with portions blacked out that they claim are covering up critical information about asbestos in their neighborhood. 13 Investigates reveals why some say this is the latest in a disturbing trend toward government secrecy in Indiana. The standoff between Goshen homeowners and the Indiana Department of Environmental Management is part of a private federal lawsuit. While the state agency is not the target, attorneys say IDEM's actions exposed an entire neighborhood and even high school students to asbestos. What's contained in those emails could uncover the reasons why. Seven-thousand tons of asbestos-laced debris was left in piles, blowing into the wind, exposing an entire neighborhood to cancer- causing material. The United States EPA says it happened all under IDEM's watch and worse yet, a 20-year inspector within the agency missed it. Or did he? Federal court records obtained by 13 Investigates indicate the evidence is found within 28 emails IDEM turned over as part of a subpoena. The problem is the emails were redacted, with words blocked out and names covered up. According to the lawsuit, "The redacted and withheld information may explain how and why IDEM incorrectly determined that no asbestos existed at the site." IDEM is refusing to provide the complete emails claiming it has "deliberative-process privilege." But attorney Tom Barnard argues the federal privilege only applies to federal agencies -- not the state of Indiana. "The State of Indiana seems to be retreating almost running away from this notion of transparency," said Attorney Bill Groth. Groth is not a part of the IDEM lawsuit, but understands the fight. He's been trying to force Governor Mike Pence and his staff to turn over un-redacted emails he requested. "What are they doing behind the scenes? Citizens should have the right to kind of pull the curtain away and see what's going on behind it, when we as taxpayers are the ones paying their salaries," said Groth. "There does seem to be a disturbing trend here in Indiana toward secrecy in government, away from transparency." Homeowners in Goshen living near the piles of asbestos on the old Johnson Controls site are now asking a federal judge to force IDEM to come clean. They want to know why Richard Swift, a convicted habitual offender who spent 18 years in prison, was alllowed to tear down the buildings without removing the asbestos first. Even more troubling, the inspector who issued two reports finding "no violations" of improper asbestos removal wrote emails claiming just the opposite. When another employee mentioned the handling of the cancer causing material being criminal, the inspector replied, "Way to drop criminal on him!! Very true...good move!!" But in the end, the inspector said he found no asbestos and he can't explain why he missed 7,000 tons of it. Since our earlier reporting, the U.S. EPA has spent $1.8 million to properly remove the piles of asbestos debris. These taxpayers believe IDEM owes them and the U.S. EPA a complete explanation. Groth was somewhat surprised to see a state agency now pushing against transparency. He says the efforts have become more aggressive during Pence's time in office Groth's case goes before the Indiana Appeals Court on Monday. ASBESTOS UPDATE: Calif. Court Dismisses Dallas Firm's Suit ---------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reported that a Dallas asbestos firm facing a racketeering lawsuit has given up on its own case against John Crane Inc., with a California federal judge dismissing the firm's suit in an order last week. Judge Consuelo B. Marshall for the U.S. District Court for the Central District of California, in her two-page order Thursday, said the plaintiff, Simon Greenstone Panatier Bartlett PC, failed to file an amended complaint. Mark Behrens -- a partner at Washington, D.C., law firm Shook Hardy & Bacon who is co-chair of the firm's public policy group -- said Simon Greenstone's filing in the Los Angeles federal court was nothing but an attempt at forum-shopping. "The court rejected it," Behrens said in an email to Legal Newsline. "Now the firm will have to defend the RICO claim against it in Illinois district court." He noted, "Any appeal by the firm would be heard by a potentially less favorable federal appellate court." On Aug. 26, Marshall issued an order granting JCI's motion to dismiss, dismissing without leave to amend Simon Greenstone's claims under the Declaratory Judgment Act and dismissing with leave to amend its breach-of-contract claim. Simon Greenstone did not amend that claim. On Oct. 11, the parties filed a joint request for judgment, requesting Marshall enter judgment. She denied the request because there was no final decision on the merits, and issued an Order to Show Cause why the action should not be dismissed for failure to prosecute. On Nov. 2, Simon Greenstone notified her that it did not intend to amend their complaint. "Consistent with the Court's Order referenced above, and Plaintiffs' formal notice of their intent not to amend, this action is dismissed with prejudice and judgment hereby entered in favor of Defendants," the judge concluded. In February, the plaintiffs firm filed a breach of contract lawsuit against JCI in Los Angeles federal court. The firm, which has an office in that city, also asked the judge to rule that JCI is breaching previous asbestos settlement agreements. The complaint was filed in response to JCI's January motion that sought approval to join a Racketeer Influenced and Corrupt Organizations lawsuit against Simon Greenstone. JCI wanted to make its own racketeering claims in addition to those already stated by Garlock Sealing Technologies. Ultimately, Garlock settled, and JCI filed its own lawsuits against Simon Greenstone and Philadelphia's Shein Law Center in June. In its response to Marshall's Oct. 24 order to show cause, Simon Greenstone argued the judge should not dismiss the action for failure to obey court orders "for the straightforward reason that Simon Greenstone has not failed to obey any of this Court's orders." The firm argued that the court's Aug. 26 order did not require it to amend its complaint; it only permitted it to do so. "The Court's August 26 Order is explicit that although the Court was permitting Simon Greenstone to amend its complaint to re- assert Count 3, it was not requiring it to do so," the plaintiffs wrote in their Nov. 2 response. "The Order tells Simon Greenstone what it must allege to sufficiently state a breach-of-contract claim 'should [it] choose to file an amended complaint.'" Simon Greenstone asked that the court, instead of dismissing the action, enter a final judgment dismissing its claims in the form set out in the proposed judgment jointly submitted by the parties and attached to the joint request for entry of judgment. The firm also made it clear it would not amend its complaint. "Here, Simon Greenstone indicated to the Court its intention not to amend its complaint to re-assert its breach-of-contract claim by proposing to the Court, joined by JCI, that the breach-of- contract claim be dismissed with prejudice," the plaintiffs wrote. JCI declined to comment on Marshall's order last week. In early June, JCI filed lawsuits against Shein Law Center, a Philadelphia firm, and Simon Greenstone under the RICO Act. The basis of the claims is evidence uncovered by Garlock Sealing Technologies three years ago during its bankruptcy proceeding. "The defendants devised and implemented a scheme to defraud JCI and others, and to obstruct justice," the JCI complaints state. "The defendants fabricated false asbestos 'exposure histories' for their clients in asbestos litigation against JCI and others and systematically concealed evidence of their clients' exposure to other sources of asbestos." Now, Simon Greenstone wants JCI's racketeering complaint against it dismissed for lack of subject matter jurisdiction and failure to state a claim. "... This Court lacks personal jurisdiction over Simon Greenstone because JCI's Complaint is based solely on litigation conduct allegedly engaged in by Simon Greenstone in lawsuits litigated out of state, in California, Texas, and Pennsylvania," attorneys for the firm wrote in a Sept. 7 motion, filed in the U.S. District Court for the Northern District of Illinois. "For similar reasons, even if personal jurisdiction existed, this Court would be an improper venue for JCI's suit, because, among other reasons, the events or omissions giving rise to the claim occurred in the states in which the underlying litigation occurred, and not in this district." Last week, JCI filed its opposition to the firm's motions to dismiss. JCI argues in the opposition, filed in the Northern District of Illinois Thursday, that Simon Greenstone's suggestion that the firm has had no meaningful connection with Illinois "is not remotely credible." Not to mention the company's claims have been validated by other federal courts, JCI argues. "JCI has properly pled an actionable RICO claim," it wrote. "The conduct at issue here by these same actors has already been condemned as a 'startling pattern of misrepresentation' by Judge Hodges in In re Garlock Sealing Techs., LLC. That same pattern of misconduct by these Defendants has been found actionable under RICO by another federal district court." JCI argues all of the firm's motions should be denied, saying the defendants have identified "no sound basis" for the court to dismiss the company's complaint. "Although Defendants seek to characterize this lawsuit as an effort to relitigate old judgments, JCI is not trying to overturn prior litigation results; rather, what JCI seeks is compensation for losses suffered as a result of Defendants' pattern of fraud," it wrote in the 48-page opposition. According to minutes from a September status hearing before Judge Amy J. St. Eve, replies are due by Dec. 2. JCI argues that both of its lawsuits -- against Simon Greenstone and Shein -- seek "redress" for what the U.S. Bankruptcy Judge George Hodges, of the U.S. District Court for the Western District of North Carolina, has referred to as "wide-ranging, systematic and well-concealed fraud" against asbestos defendants such as itself. In 2014, Garlock used the evidence from its 2013 bankruptcy estimation trial to file lawsuits against five firms -- Shein, Simon Greenstone, Belluck & Fox of New York City, and Dallas firms Waters & Kraus and Stanley-Iola. The Garlock lawsuits alleged the five firms told different stories about their clients' exposures to asbestos in civil lawsuits than they did in the bankruptcy trust system. Hodges agreed in a landmark 2014 decision. The firms delayed the submission of their clients' claims to trusts that were established by bankrupt former asbestos defendants. This was done so Garlock could not assign blame for the plaintiff's disease to the companies in the trust system, the judge ruled. The bankrupt companies were forced to establish trusts because they could not afford to pay their asbestos liabilities. Asbestos victims submit claims to trusts in a process separate from the victims' civil lawsuits against companies that are not bankrupt. Garlock had submitted evidence in 15 cases during a trial to determine how much it would need to place in its trust. "These fifteen cases are just a minute portion of the thousands that were resolved by Garlock in the tort system," Hodges wrote. "And they are not purported to be a random or representative sample. But the fact that each and every one of them contains such demonstrable misrepresentation is surprising and persuasive. "More important is the fact that the pattern exposed in those cases appears to have been sufficiently widespread to have a significant impact on Garlock's settlement practices and results . . . It appears certain that more extensive discovery would show more extensive abuse." Garlock's evidence, which was originally sealed but eventually uncovered by a successful legal challenge from Legal Newsline, showed that after several dozen asbestos defendants established bankruptcy trusts, its own liabilities increased. The company's average mesothelioma settlement rose from almost $10,000 in 1999 to nearly $80,000 by 2010. Garlock's allegations were part of a strategy to limit the amount it would need to put in the trust it is establishing to resolve its asbestos liabilities. Hodges ruled Garlock needed to only put $125 million in its trust, more than $1 billion less than plaintiffs attorneys had requested. A recent proposed settlement put a stay on Garlock's RICO lawsuits. They apparently will be dismissed when the settlement, which requires the establishment of a $480 million trust, is finalized. Before the stay, JCI sought to intervene. Now it has filed its own complaints instead. ASBESTOS UPDATE: NRG Still Studying Asbestos Liability at Sept30 ---------------------------------------------------------------- NRG Energy, Inc., through its subsidiary, Midwest Generation, LLC may be subject to potential asbestos liabilities as a result of its acquisition of Edison Mission Energy, according to NRG's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company is currently analyzing the scope of potential liability as it may relate to Midwest Generation. NRG Energy, Inc. (NRG) is an integrated power company that produces, sells and delivers energy, and energy products and services in various power markets in the United States. ASBESTOS UPDATE: Tenneco Faces Less than 500 Cases at Sept. 30 -------------------------------------------------------------- Tenneco Inc. faces less than 500 active and inactive cases by claimants alleging health problems as a result of exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states: "...for many years we have been and continue to be subject to lawsuits initiated by claimants alleging health problems as a result of exposure to asbestos. Our current docket of active and inactive cases is less than 500 cases nationwide. A small number of claims have been asserted against one of our subsidiaries by railroad workers alleging exposure to asbestos products in railroad cars. The substantial majority of the remaining claims are related to alleged exposure to asbestos in our automotive products although a significant number of those claims appear also to involve occupational exposures sustained in industries other than automotive. We believe, based on scientific and other evidence, it is unlikely that claimants were exposed to asbestos by our former products and that, in any event, they would not be at increased risk of asbestos-related disease based on their work with these products. Further, many of these cases involve numerous defendants, with the number in some cases exceeding 100 defendants from a variety of industries. Additionally, in many cases the plaintiffs either do not specify any, or specify the jurisdictional minimum, dollar amount for damages. As major asbestos manufacturers and/or users continue to go out of business or file for bankruptcy, we may experience an increased number of these claims. We vigorously defend ourselves against these claims as part of our ordinary course of business. In future periods, we could be subject to cash costs or charges to earnings if any of these matters are resolved unfavorably to us. To date, with respect to claims that have proceeded sufficiently through the judicial process, we have regularly achieved favorable resolutions. Accordingly, we presently believe that these asbestos-related claims will not have a material adverse impact on our future consolidated financial position, results of operations or liquidity." Tenneco Inc. is a producer of clean air and ride performance products and systems for light vehicle, commercial truck, off- highway and other vehicle applications. ASBESTOS UPDATE: AFG Had $36MM A&E Reserves at Sept. 30 ------------------------------------------------------- American Financial Group, Inc.'s earnings before income taxes includes a special charge of $36 million due to increase asbestos and environmental reserves, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. Earnings before income taxes (EBIT) includes a special charge of $65 million related to the exit of certain lines of business within AFG's Lloyd's-based insurer, Neon, in the second quarter of 2016 and special charges of $36 million and $67 million in the third quarter of 2016 and 2015, respectively, to increase asbestos and environmental reserves. A full-text copy of the Form 10-Q is available at https://is.gd/JNiDTx American Financial Group, Inc. is a holding company engaged primarily in property and casualty insurance businesses. ASBESTOS UPDATE: Argo Group Has US$5.7MM Loss at Sept. 30 --------------------------------------------------------- Argo Group International Holdings, Ltd., has $5.7 million losses and loss adjustment expenses due to greater than expected asbestos cases defense costs, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states, "Losses and loss adjustment expenses for the three months ended September 30, 2016, was the result of net unfavorable loss reserve development on prior accident years of $5.7 million for our asbestos exposure due to greater than expected defense costs on our primary exposures, $3.7 million development in our risk management lines and $2.0 million in our other run-off lines. "Losses and loss adjustment expenses for the three months ended September 30, 2015 was the result of net unfavorable loss reserve development on prior accident years due to $3.2 million unfavorable development in the primary asbestos book driven by increasing defense costs, $2.8 million of unfavorable development in the run-off workers compensation lines due to increasing medical costs on older claims and the discount unwind and $1.4 million of unfavorable development in other assumed business partially offset by net favorable reserve development in our run- off reinsurance lines. "Losses and loss adjustment expenses for the nine months ended September 30, 2016 was the result of net unfavorable prior accident year loss reserve development of $9.1 million for our primary asbestos exposure driven by greater than expected defense costs and the final settlement agreement with an insured, $6.0 million unfavorable development in our risk management lines and $2.6 million in our other run-off lines. Losses and loss adjustment expenses for the nine months ended September 30, 2015 was the result of net unfavorable prior accident year loss reserve development in our run-off workers compensation and asbestos liability lines partially offset by net favorable reserve development in our run-off reinsurance lines." Argo Group International Holdings, Ltd. is an underwriter of specialty insurance and reinsurance products in the property and casualty market. ASBESTOS UPDATE: Duke Energy Carolinas Has 120 Cases at Sept. 30 ---------------------------------------------------------------- Duke Energy Carolinas, LLC, faces 120 asserted claims for non- malignant cases due to alleged asbestos exposure in connection with construction and maintenance activities conducted on its electric generation plants prior to 1985, according to Duke Energy Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states, "Duke Energy Carolinas has experienced numerous claims for indemnification and medical cost reimbursement related to asbestos exposure. These claims relate to damages for bodily injuries alleged to have arisen from exposure to or use of asbestos in connection with construction and maintenance activities conducted on its electric generation plants prior to 1985. As of September 30, 2016, there were 120 asserted claims for non-malignant cases with the cumulative relief sought of up to $32 million, and 78 asserted claims for malignant cases with the cumulative relief sought of up to $14 million. Based on Duke Energy Carolinas' experience, it is expected that the ultimate resolution of most of these claims likely will be less than the amount claimed." ASBESTOS UPDATE: Duke Energy Carolinas Had $512MM Reserves ---------------------------------------------------------- Duke Energy Carolinas LLC has recognized asbestos-related reserves of $512 million at September 30, 2016, according to Duke Energy Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states, "These reserves are based upon the minimum amount of the range of loss for current and future asbestos claims through 2033, are recorded on an undiscounted basis and incorporate anticipated inflation. In light of the uncertainties inherent in a longer-term forecast, management does not believe they can reasonably estimate the indemnity and medical costs that might be incurred after 2033 related to such potential claims. It is possible Duke Energy Carolinas may incur asbestos liabilities in excess of the recorded reserves. "Duke Energy Carolinas has third-party insurance to cover certain losses related to asbestos-related injuries and damages above an aggregate self-insured retention. Duke Energy Carolinas' cumulative payments began to exceed the self-insurance retention in 2008. Future payments up to the policy limit will be reimbursed by the third-party insurance carrier. The insurance policy limit for potential future insurance recoveries indemnification and medical cost claim payments is $814 million in excess of the self- insured retention. Receivables for insurance recoveries were $567 million at September 30, 2016 and $599 million at December 31, 2015. These amounts are classified in Other within Investments and Other Assets and Receivables on the Condensed Consolidated Balance Sheets. Duke Energy Carolinas is not aware of any uncertainties regarding the legal sufficiency of insurance claims. Duke Energy Carolinas believes the insurance recovery asset is probable of recovery as the insurance carrier continues to have a strong financial strength rating." ASBESTOS UPDATE: CenterPoint Energy Expects More Asbestos Claims ---------------------------------------------------------------- CenterPoint Energy, Inc., anticipates additional asbestos claims to be asserted against it, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2016. The Company states, "Some facilities owned by CenterPoint Energy or its predecessors contain or have contained asbestos insulation and other asbestos-containing materials. CenterPoint Energy and its subsidiaries are from time to time named, along with numerous others, as defendants in lawsuits filed by a number of individuals who claim injury due to exposure to asbestos, and CenterPoint Energy anticipates that additional claims may be asserted in the future. Although their ultimate outcome cannot be predicted at this time, CenterPoint Energy does not expect these matters, either individually or in the aggregate, to have a material adverse effect on CenterPoint Energy's financial condition, results of operations or cash flows." CenterPoint Energy, Inc. is a public utility holding company. ********* 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 * * *