/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161228.mbx C L A S S A C T I O N R E P O R T E R Wednesday, December 28, 2016, Vol. 18, No. 259 Headlines 6675 TRANSIT: "Dowd" Suit Claims Violations of FLSA, NY Labor Law 9DOTS MANAGEMENT: "Manes" Suit to Recover Overtime, Minimum Pay AAC HOLDINGS: "Kasper" Suit Moved from M.D. Tenn. to C.D. Cal. ABEONA THERAPEUTICS: Gainey McKenna Files Class Action Lawsuit AGODA COMPANY: "Phan" Suit Moved from Super. Ct. to N.D. Cal. AIR SERV CORPORATION: "Gamble" Suit Seeks Overtime Pay ANGRY CRAB: Owen et al. Allege FLSA, Ariz. Wage Act Violations AVID TECHNOLOGY: Jan. 20 Lead Plaintiff Bid Deadline BATS GLOBAL: Faces "Kim" Securities Lawsuit Over CBOE Merger BBVA COMPASS: Faces "Hossfeld" Suit Alleging Violations of TCPA BLUEMERCURY INC: Faces "Espinosa" Suit Over Background Reports BROCADE COMMUNICATIONS: Faces "Gross" Suit Over Sale to Broadcom BUMBLE BEE: Seeks Dismissal of Tuna Price-Fixing Class Action CACH LLC: Ark. High Court Affirms Ruling in Debt Collections Suit CANADA: Judge Certifies Solitary Confinement Class Action CANADA: Three Ex-Armed Forces Members Allege Sexual Misconduct CENTRAL VIRGINIA: Faces "Okomoto" Suit Alleging FLSA Violations CIOX HEALTH: Filed Appeal in Northern Dist. of California CMS MID-ATLANTIC: Faces "Galanti" Suit Under FLSA, NJ Wage Act COMCAST CABLE: Faces Cable Installers' Minimum Wage Class Action DAKOTA PLAINS: "Deardeuff" Suit Alleges Securities Act Violations EKURHULENI METROPOLITAN: Class Action Mulled Over Edenvale Floods ERGON ASPHALT: Hilliard Says Water Crisis Suit Continues to Grow FACEBOOK INC: January 23 Lead Plaintiff Motion Deadline Set FB CANDLER: "O'Brien" Sues Over Overtime, Misallocated Tips FIAT CHRYSLER: NHTSA Opens Investigation Into Rollaway Issue FORD: Faces Class Action Over Kuga Model After Man's Death FTS USA: Lower Court Asked to Reconsider Workers' Class Action GARDEN OF EDEN: Faces "Sanchez" Suit Alleging FLSA Violations GOODMAN NETWORKS: Faces "Garland" Suit Alleging FLSA Violation HARVEST BAKERY: Rivera Moves to Notify Putative Class Members HINGS CHINESE: Faces "Espinales" Suit Alleging FLSA Violation ILLUMINA INC: Frontline Suit Alleges Securities Act Violations INT'L PAYMENT: Faces Class Action Over Recorded Phone Calls JMC HOLDINGS: "Cruz" Suit Alleges FLSA, NJ Wage Law Violations KIMBERLY-CLARK: Consumer Watchdog Sues Over "Flushable" Wipes JOHNSON & BELL: Sued Over Information Security Vulnerabilities LANGSTON CONSTRUCTION: "Mairena-Rivera" Suit Sent to M.D. La. LOWER MERION, PA: Non-Profit Fights Class Against School District MCCLURE PROPERTIES: "Milien" Suit Alleges AWPA, EFTA Violations MICHIGAN: Court Refuses to Certify Class in "Cavin" Suit MONAKER GROUP: Faruqi & Faruqi Files Class Action Lawsuit NEW SEABURY: Suit Over Annual Dues Remains Pending NEWCREST: Court Can Reduce Settlement Funding Commission PARALIA CORP: Lopez et al. Allege FLSA, NY Labor Law Violations PRUDENTIAL FINANCIAL: Faces Class Action Over Wells Fargo Fraud Q CLUB: Suit Over Condo-Hotel Fees Obtains Class-Action Status RCI HOSPITALITY: Faces "Garvin" Suit Seeking OT Pay Under FLSA RENAISSANCE HOME: Faces "Hunt" Suit Under FLSA, Ohio Wage Act RIO TINTO: February 10 Lead Plaintiff Motion Deadline Set ROGER SKIMMING: Law Firm Launches Scotsburn Bushfire Class Action SARASOTA COUNTY: Leo Seeks to Certify School Bus Drivers Class SHOP VAC CORP: Wet-Dry Vacuum Settlement Obtains Final Approval SIRIUS XM: Obtains Favorable Ruling in Copyright Legal Dispute SMITH GUARD: "Bailey" Suit Seeks Overtime Pay SP AUSNET: Angry Bushfire Victims Throw Questions at Attorney SPRING COMMUNICATIONS: "Harrison" Suit Alleges FLSA Violations SPRINGFIELD, MA: Judge Rejects Suit vs. School District STEPHEN JAMES: Judge Certifies Medical Negligence Class Action STONEMOR PARTNERS: Jan. 20 Lead Plaintiff Bid Deadline TRANSPORT FOR LONDON: Tram Crash Survivors File Class Action UBER TECHNOLOGIES: Faces Delux Cab Suit in S.D. of California UBER TECHNOLOGIES: Faces "McElrath" Suit in N.D. of California UNIVERSITY OF MIAMI: Faces "Gould" Suit Alleging ERISA Violations VALERO: Releases Statement on Contaminated Water Lawsuit VIZIO INC: "Unice" Suit Moved from W.D. Pa. to C.D. California VOLKSWAGEN AG: Judge Extends Emissions Deal Deadline XEROX CORP: Howard G. Smith Reminds Investors of Deadline YAHOO! INC: Faces "Gonzalez" Suit Over "Security Breach" YAHOO! INC: "Vail" Hits Data Breach ZIMMER BIOMET: Robbins Arroyo Files Securities Suit * Critics Hit Law Firms' Bills After Class-Action Lawsuits * Demonetization May Spark Class Action Against Indian Government * Dispute Brewing Over Legality of Class Action Waivers * France Introduces Class Action for Data Protection Act Breach * Rise of Consumer Class Actions Under New Jersey's TCCWNA Statute * Trump Labor Nominee's Company Involved in Class Action ********* 6675 TRANSIT: "Dowd" Suit Claims Violations of FLSA, NY Labor Law ----------------------------------------------------------------- KATHLEEN DOWD and NICOLE SILVAROLI, on behalf of themselves and all others similarly situated, Plaintiffs, v. 6675 TRANSIT RD LLC d/b/a RUSSELL'S STEAKS, CHOPS & MORE, MARK JERGE, ROBERT BINGEL, and RUSSELL SALVATORE, Defendants, Case No. 1:16-cv-01006 (W.D.N.Y., December 16, 2016), seeks to recover alleged unpaid minimum wages, misappropriated gratuities, liquidated damages, statutory damages, pre- and post-judgment interest, retaliation damages, and attorneys' fees and costs pursuant to Fair Labor Standards Act and the New York Labor Law. 6675 TRANSIT RD LLC is a New York corporation that owns, operates, and does business as Russell's Steaks, Chops & More, a steakhouse located at 6675 Transit Road, Williamsville, NY 14221. The Plaintiffs are represented by: Louis Pechman, Esq. Gianfranco J. Cuadra, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue, 11th Floor New York, NY 10022 Phone: (212) 583-9500 E-mail: pechman@pechmanlaw.com cuadra@pechmanlaw.com - and - Justin Cordello, Esq. CORDELLO LAW PLLC 693 East Avenue, Suite 220 Rochester, NY 14607 Phone: (585) 857-9684 E-mail: justin@cordellolaw.com 9DOTS MANAGEMENT: "Manes" Suit to Recover Overtime, Minimum Pay -------------------------------------------------------------- Matthew P. Manes, on behalf of himself and those similarly situated, Plaintiff v. 9dots Management Corp., LLC and John L. Florio, Defendant, Case No. 2:16-cv-06427, (E.D. Pa., December 14, 2016), seeks to recover minimum and overtime wages, straight-time wages for violation of the Fair Labor Standards Act and the New York Labor Law. The suit further seeks damages and penalties resulting from failure to provide accurate wage statements pursuant to New York Labor Laws. 9dots is a computer software company with principal place of business at 1100 East Hector Street, Suite 245, Conshohocken, Pennsylvania 19428. Florio is President and Chief Executive Officer of 9dots. Plaintiff worked for 9dots as a Senior Manager at its office in office Conshohocken, Pennsylvania. He claims to have been denied overtime pay. Plaintiff is represented by: Stephanie J. Mensing, Esq. MENSING LAW The Philadelphia Building 1315 Walnut St., Suite 917 Telephone: (215) 586-3751 Facsimile: (215) 359-2741 AAC HOLDINGS: "Kasper" Suit Moved from M.D. Tenn. to C.D. Cal. -------------------------------------------------------------- Dr. Joseph F Kasper Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. AAC Holdings, Inc., Jerrod N Menz, Michael T Cartwright, Andrew W McWilliams, and Kirk R Manz, the Defendants, and Erin Hill and Charles J Rocky Hill, the Objectors, Case No. 3:15-CV-00923, was transferred from the United States District Court for the Middle District of Tennesse, to the United States District Court for the Central District of California (Western Division - Los Angeles). The California Central District Court Clerk assigned Case No. 2:16-cv-09377-CAS-E to the proceeding. The case is assigned to Hon. Judge Christina A. Snyder. AAC Holdings provides inpatient substance abuse treatment services for individuals with drug and alcohol addiction in the United States. AAC Holdings, Inc. is represented by: David Samuel Bederman, Esq. Steven C Amundson, Esq. Vi Applen, Esq. MANNING AND KASS ELLROD RAMIREZ TRESTER LLP 801 South Figueroa Street 15th Floor Los Angeles, CA 90017 Telephone: (213) 624 6900 Facsimile: (213) 624 6999 E-mail: dsb@manningllp.com sca@manningllp.com vna@manningllp.com Charles J Rocky Hill and Erin Hill are represented by: Christopher J Zopatti, Esq. CALLAHAN THOMPSON SHERMAN & CAUDILL LLP 2601 Main Street, Suite 800 Irvine, CA 92614 Telephone: (949) 261 2872 Facsimile: (949) 261 6060 E-mail: czopatti@ctsclaw.com ABEONA THERAPEUTICS: Gainey McKenna Files Class Action Lawsuit -------------------------------------------------------------- Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed on behalf of purchasers of: (1) PlasmaTech Biopharmaceuticals, Inc. securities (old symbol PTBI) from March 31, 2015 through June 19, 2015, both dates inclusive (the "PlasmaTech Class Period"); and/or (2) Abeona Therapeutics Inc. securities (Nasdaq:ABEO) from June 22, 2015 through December 9, 2016, both dates inclusive (the "Abeona Class Period") and together with the PlasmaTech Class Period, the ("Class Period"). Abeona Therapeutics Inc. was formerly known as PlasmaTech Biopharmaceuticals, Inc. The lawsuit seeks to recover damages for Abeona investors under the federal securities laws for both class periods. According to the Complaint, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the science behind Abeona's proposed gene therapy treatment for Sanfilippo syndrome is unviable; (2) Steven H. Rouhandeh, Abeona's Executive Chairman and Principal Executive Officer, previously worked in a high ranking position for a biotech promoter who was convicted of securities fraud and involved in manipulating biotech stocks; and (3) as a result, Defendants' statements about Abeona's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. On December 12, 2016, analyst firm Mako Research published a report on Abeona asserting, among other things, that Abeona's science underpinning its gene therapy approach is unviable and Steven H. Rouhandeh previously worked in a position of authority at D. Blech & Co. -- a firm named after now -- convicted felon David Blech. On this news, shares of Abeona fell $0.70 per share or over 13% from its previous closing price to close at $4.45 per share on December 12, 2016, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than February 14, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, or to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. AGODA COMPANY: "Phan" Suit Moved from Super. Ct. to N.D. Cal. ------------------------------------------------------------- Phan as an individual and on behalf of all others similarly situated, the Plaintiff, v. Agoda Company Pte. Ltd., a Singapore Private Limited Liability Company; Agoda International USA Inc. a Delaware Corporation; and The Priceline Group Inc., a Delaware Corporation, the Defendants, Case No. 16CV302647, was transferred from California Superior Court, to the U.S. District Court for the Northern District of California (San Jose). The District Court Clerk assigned Case No. 5:16-cv-07243 to the proceeding. Agoda Company Pte. Ltd. operates an online hotel and accommodation booking platform. The Plaintiff appears pro se. AIR SERV CORPORATION: "Gamble" Suit Seeks Overtime Pay ------------------------------------------------------ Edwards J. Gamble, on behalf of himself and all others similarly situated, Plaintiff, v. Air Serv Corporation, Defendant, Case No. 1:16-cv-04580, (N.D. Ga., December 14, 2016), seeks to recover overtime compensation, unpaid wages, liquidated damages and reasonable attorneys' fees and costs under the Fair Labor Standards Act. Plaintiff was employed as a Floor Technician for their assigned location of Hartsfield-Jackson Atlanta International Airport, Atlanta, Georgia that was managed by the Defendants. Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, Georgia 30343-1007 Direct: (404) 496-7295 Main: (404) 965-8811 Facsimile: (404) 496-7405 Email: CLeach@forthepeople.com ANGRY CRAB: Owen et al. Allege FLSA, Ariz. Wage Act Violations -------------------------------------------------------------- Terri Rossi Owen, Shawn Thorson, Susan Krueger, Geoffrey Collins, and Michelle Nichols, individually, and on behalf of all others similarly situated, Plaintiff, v. Angry Crab Shack Corporation, an Arizona Corporation, Angry Crab Franchise LLC, an Arizona Limited Liability Company, Angry Crab Shack BBQ LLC, an Arizona Limited Liability Company, Ronald Lou and Jane Doe Lou, a married couple, Dan Sevilla and Jane Doe Sevilla, a married couple, Andrew Diamond and Jane Doe Diamond, a married couple, David Eng and Jane Doe Eng, a married couple, and Jason Lopez and Jane Doe Lopez, a married couple, Defendants, Case No. 2:16-cv-04415-SMM (D. Ariz., December 15, 2016), alleges unlawful failure by Defendants to pay minimum wage in violation of the Fair Labor Standards Act, Arizona Wage Act, Arizona Revised Statutes and the Arizona Minimum Wage Act. Angry Crab Franchise LLC is an enterprise that is a bar and restaurant that serves food and drinks to customers. The Plaintiffs are represented by: Clifford P. Bendau, II, Esq. Christopher J. Bendau, Esq. THE BENDAU LAW FIRM PLLC P.O. Box 97066 Phoenix, AZ 85018 Phone: (480) 382-5176 Fax: (602) 956-1409 E-mail: cliffordbendau@bendaulaw.com chris@bendaulaw.com AVID TECHNOLOGY: Jan. 20 Lead Plaintiff Bid Deadline ---------------------------------------------------- The Law Offices of Vincent Wong disclosed that a class action lawsuit has been commenced in the USDC for the District of Massachusetts on behalf of investors who purchased Avid Technology, Inc. securities between August 4, 2016 and November 9, 2016. According to the complaint, during the Class Period, Avid knew but failed to disclose that because it had not launched all the enterprise level features for its new NEXIS solution product offerings, its enterprise customers were deferring renewals and purchases. On November 9, 2016, after the close of trading, Avid disclosed that both its third quarter 2016 bookings and revenues had come in considerably lower than the Company had led the investment community to expect, citing "the transition of the storage product line" and disclosing that "some existing enterprise clients deferred normal upgrade and renewal decisions and new customers postponed investments until the release of functionality targeted to the enterprise market." If you suffered a loss in Avid you have until January 20, 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. To obtain additional information, contact Vincent Wong, Esq. either via email vw@wongesq.com, by telephone at 212.425.1140, or visit http://www.wongesq.com/pslra/avid- technology-inc. Vincent Wong, Esq. is an experienced attorney that has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Attorney advertising. Prior results do not guarantee similar outcomes. BATS GLOBAL: Faces "Kim" Securities Lawsuit Over CBOE Merger ------------------------------------------------------------ SEUNG KIM, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. BATS GLOBAL MARKETS, INC., CHRIS CONCANNON, JOSEPH RATTERMAN, ALAN H. FREUDENSTEIN, ROBERT W. JONES, JAMIL NAZARALI, JOHN MCCARTHY, CHRIS MITCHELL, FRANK REARDON, and MICHAEL RICHTER, Defendants, Case No. 2:16-cv-02817- DDC-KGG (D. Kan., December 16, 2016), alleges violations of the U.S. Securities and Exchange Act in connection with the proposed merger between Bats, CBOE Holdings, Inc., CBOE Corporation and CBOE V, LLC, which allegedly is insufficient and undervalues the Company. BATS GLOBAL MARKETS, INC. operates securities exchanges and other electronic markets. The Plaintiff is represented by: Thomas E. Hammond, II, Esq. GATES SHIELDS FERGUSON HAMMOND, P.A. 10990 Quivira, Suite 200 Overland Park, KS 66210 Phone: (913) 661-02222 Fax: (913) 491-6398 E-mail: thammond@gsfhlegal.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Phone: (212) 971-1341 E-mail: jmonteverde@monteverdelaw.com BBVA COMPASS: Faces "Hossfeld" Suit Alleging Violations of TCPA --------------------------------------------------------------- ROBERT HOSSFELD, individually and on behalf of all others similarly situated, Plaintiff, v. BBVA COMPASS BANCSHARES, INC., an Alabama Corporation, Defendant, Case No. 2:16-cv-02017-SGC (N.D. Ala., December 15, 2016), alleges that Defendant sent, or orchestrated the sending on its behalf of unsolicited telemarketing calls to Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act. BBVA COMPASS BANCSHARES, INC. -- https://www.bbvacompass.com/ -- operates as the bank holding company for Compass Bank. The Plaintiff is represented by: Gregory S. Graham, Esq. GREGORY S. GRAHAM, P.C. PO Drawer 307 803 3rd St. SW Childersburg, AL 35044 Phone: (256) 378-3161 Fax: (877) 414-8074 E-mail: greg@grahamlegalservices.com - and - SCOTT D. OWENS, Esq. 3800 S. Ocean Dr., Ste. 235 Hollywood, FL 33019 Phone: (954) 589-0588 Fax: (954) 337-0666 E-mail: scott@scottdowens.com - and - Alexander H. Burke, Esq. BURKE LAW OFFICE, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Phone: (312) 729-5288 Fax: (312) 729-5289 E-mail: ABurke@BurkeLawLLC.com BLUEMERCURY INC: Faces "Espinosa" Suit Over Background Reports -------------------------------------------------------------- SANDRA ESPINOSA, on behalf of herself, all others similarly situated, Plaintiff, vs. BLUEMERCURY, INC., a Delaware Corporation; MACY'S, INC., a Delaware corporation; and DOES 1 to 100, Inclusive, Defendants, Case No. 3:16-cv-07202 (N.D. Cal., December 16, 2016), alleges that Defendants routinely acquire consumer, investigative consumer and/or consumer credit reports to conduct background checks on Plaintiff and other prospective, current and former employees and use information from credit and background reports in connection with their hiring process without complying with the law in violation of the Fair Credit Reporting Act, the California Investigative Consumer Reporting Agencies Act and the California Consumer Credit Reporting Agencies Act. BLUEMERCURY, INC. -- https://bluemercury.com/ -- is a luxury beauty retailer offering cosmetics, skin care, makeup, perfume, hair, and bath and body. The Plaintiff is represented by: Shaun Setareh, Esq. Thomas Segal, Esq. H. Scott Leviant, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Phone: (310) 888-7771 Fax: (310) 888-0109 E-mail: shaun@setarehlaw.com thomas@setarehlaw.com scott@setarehlaw.com BROCADE COMMUNICATIONS: Faces "Gross" Suit Over Sale to Broadcom ---------------------------------------------------------------- MELVIN GROSS, individually and on behalf of all others similarly situated, Plaintiff, v. BROCADE COMMUNICATIONS SYSTEMS, INC., LLOYD A. CARNEY, JUDY BRUNER, RENATO A. DIPENTIMA, ALAN L. EARHART, JOHN W. GERDELMAN, KIM C. GOODMAN, DAVID L. HOUSE, L. WILLIAM KRAUSE, DAVID E. ROBERSON, and SANJAY VASWANI, Defendants, Case No. 5:16-cv-07173-EJD (N.D. Cal., December 15, 2016), is a securities suit in connection with the proposed acquisition of Brocade by Broadcom Limited and Broadcom Corporation, which, according to the suit is insufficient and undervalues the Company. BROCADE COMMUNICATIONS SYSTEMS, INC. offers switches, storage and software networking, routers, network automation, visibility, analytics, transceivers, and network management products and services. The Plaintiff is represented by: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Phone: (212) 971-1341 E-mail: jmonteverde@monteverdelaw.com - and - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY McKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Phone: (212) 983-1300 Fax: (212) 983-0383 Email: tjmckenna@gme-law.com Email: gegleston@gme-law.com BUMBLE BEE: Seeks Dismissal of Tuna Price-Fixing Class Action ------------------------------------------------------------- Jason Smith, writing for Undercurrent News, reports that the alleged price-fixing conspiracy that has prosecutors probing the US 'big three' tuna canners also drove up mackerel and sardine packaged seafood prices, a lawyer claimed. The big three US canners -- Bumble Bee, Starkist and Chicken of the Sea -- are alleged to have colluded to fix prices on tuna, their principal product, but price levels for related products were also affected, Christopher Lebsock, an attorney with the firm Hausfield told Undercurrent News. "Our position is that the conspiracy involved packaged seafood pricing. Tuna is merely a component of that," he said. When asked to clarify if he meant that he believed mackerel, sardine and other markets were also being manipulated, or whether the price levels for those products merely followed tuna pricing, he said that in either case the markets move in tandem. The specific nature of what occurred is likely to come out as the ongoing Department of Justice (DOJ) probe into criminal antitrust violations continues, the lawyer added. "Tuna is obviously the big driver but tuna drives the pricing of other products and the government appears to believe that as well," he said. Mr. Lebsock referred to a December 2015 statement from Bill Baer, the assistant attorney general for the DOJ's antitrust division, which occurred after Thai Union, which owns Chicken of the Sea, and Lion Capital owned Bumble Bee called off their plans to merge the brands. "Consumers are better off without this deal," Mr. Baer said. "Our investigation convinced us -- and the parties knew or should have known from the get go -- that the market is not functioning competitively today, and further consolidation would only make things worse." Mr. Lebsock said that its telling that the DOJ in that press release referred to the companies' position in tuna as well as "other shelf-stable seafood products". "The DOJ speaks very carefully. They're obviously looking into it," Mr. Lebsock said. The class-action lawsuits against the canners were filed in 2015 after news of a DOJ investigation into the sector first came to light in July. At the time, Thai Union, which had planned to buy Bumble Bee for $1.5 billion, announced that the investigation prompted it to cancel a share offering it would have used to finance the merger. That prompted a wave of litigation. Lawsuits filed against the canners allege that the price-fixing conspiracy was born in 2008 and involved years of close cooperation between the companies. The suits have alleged that the joint "Tuna the Wonderfish" advertising campaign, co-packing of Thai Union and Bumble Bee; and the companies' participation in the International Seafood Sustainability Foundation also presented chances to collude. The "Tuna the Wonderfish" advertising campaign, which ran from early 2011 through early 2012, was designed to stem the tide of declining sales. The deal was eventually cancelled in December 2015 amid cheers from the DOJ. The DOJ investigation, which recently resulted in the announcement that Bumble Bee senior vice-president Walter Scott Cameron plans to plead guilty and testify, is proceeding. And Mr. Lebsock said that a major event in the class-action suit was set to take place Dec. 13. That's when San Diego-based federal judge Janice Sammartino was set to hear motions to dismiss the lawsuit brought by the canners' lawyers. In the motion, the canners' lawyers assert that the plaintiffs haven't presented enough evidence to show a conspiracy took place and that the statute of limitations bars plaintiffs from bringing the suit. CACH LLC: Ark. High Court Affirms Ruling in Debt Collections Suit ----------------------------------------------------------------- The Gurdon Times reports that the Arkansas Supreme Court recently affirmed a ruling by a Circuit Judge Robert McCallum in a Clark County case involving unlicensed debt collectors. The Supreme Court ruling upheld McCallum's decision to grant class certification in the case which will now return to Clark County Circuit Court for trial. The case began in 2013 when CACH, LLC, an debt collector not registered with the state of Arkansas, sued an Amity man over an alleged credit card debt. CACH claimed that it had purchased the credit card debt and was entitled to file suit to collect. The defendant, William Echols, had previously paid the debt in full and filed a class-action counterclaim after learning that hundreds of other persons had also been tagged by lawsuits filed in CACH. On Dec. 17, 2015, enter an order certifying the case as a class action. CAHC then appealed that ruling. In its opinion, the Arkansas Supreme Court held that a class action was proper because the allegations against CAHC were all based on CACH's routine debt-collection practices. Even though CACH had filed lawsuits against residents in other cities and counties around the state, the Supreme Court held that it would be more efficient for one court to rule on the legality of CACH's actions in a single class action proceeding. Dan Turner and Todd Turner represented Echols and were appointed to serve as class counsel. According to Dan Turner, dozens of CACH's lawsuits were filed against Clark County residents, including other wrongful actions like the one filed against Echols. According to the counterclaim, CACH was not a licensed debt collector and had not properly investigated the alleged debts before it started filing collection lawsuits. Two years ago, following the filing of this lawsuit, the Arkansas General Assembly changed the debt-collection licensing laws by effectively allowing unlicensed companies to collect third-party debts without getting a license and to otherwise limit or eliminate their liability for filing improper collection actions. Despite this new law, which the Turners believe is unconstitutional, the litigation against CACH will continue in Clark County Circuit Court. Individuals who were sued by CACH are encouraged to contact Arnold, Batson, Turner and Turner about the case. CANADA: Judge Certifies Solitary Confinement Class Action --------------------------------------------------------- Patrick White, writing for The Globe and Mail, reports that an Ontario judge has certified the country's first class-action lawsuit on behalf of federal inmates, which alleges Canada's use of solitary confinement and inadequate access to medication has violated the rights of tens of thousands of mentally ill inmates. The order came down on Dec. 12 from Superior Court Justice Paul Perell after the Crown consented to certification, potentially shaving years off what could still be a lengthy legal battle and adding to the mountain of litigation Ottawa is facing for its prison isolation practices. "Certification motions often take years to litigate and then there are appeals that also take years and years," said James Sayce -- jsayce@kmlaw.ca -- lawyer for the firm Koskie Minsky representing the class. "We are now at a stage where we can get our hands dirty on the merits. That's a very substantial and significant event." The class includes all inmates diagnosed with an array of mental-health issues who served a federal sentence between Nov. 1, 1992, and the present day. Hundreds of thousands of inmates have circulated through the federal jail system over that span. Correctional Service Canada data show that around 38 per cent of male federal inmates exhibit some sort of mental-health problem upon intake. Under Ontario law, all eligible claimants are included in the class unless they specifically opt out. "We're talking about tens of thousands of people, if not more," Mr. Sayce said. "We don't have an exact number." In certifying the claim, Justice Perell declared that case hinges on whether the Correctional Service violated Charter sections 7 (life, liberty, security of the person), 9 (against unfair detainment) and 12 (freedom from cruel and unusual punishment) in its operation of federal institutions and whether any potential violations warrant damages. The Correctional Service played down the significance of the decision on Dec. 12. "Consenting to the certification motion is a procedural step in a class action that simply allows a defined group of individuals to bring their claims to court," spokeswoman Veronique Rioux said in an e-mail. "It does not address the merits of their claims in any way. "As this matter is currently before the courts, it would be inappropriate to comment further," she added. The class-action seeks $600-million in damages for negligence and breach of the government's duties toward mentally ill prisoners. A statement of claim filed in July, 2015, alleges federal prisons are "becoming Canada's largest repositories for the mentally ill" and says the government "has subjected Mentally Ill Prisoners to cruel and unusual punishment in the form of extended periods of solitary confinement." The representative plaintiffs are Christopher Brazeau and David Kift, both of whom suffer from mental-health issues and have logged significant time in solitary confinement. Mr. Brazeau was serving a 12-year sentence for robbery and other crimes at Edmonton Institution when he was locked up in solitary confinement for 23 hours a day for as long as a year at a time, according to a statement of claim filed in the Ontario Superior Court of Justice in July of last year. Diagnosed with ADHD, anxiety disorder and PTSD, he went for long periods without proper prescription medications. He has since been released. Mr. Kift, a former RCMP officer serving a 6-year gun-posession sentence, remains in custody at Joyceville Institution in Kingston, Ont. Like Mr. Brazeau, he says his mental health conditions -- PTSD and depression have gone untreated for long stretches. When the lawsuit was originally launched in July of 2015, it faced a Conservative government that had staunchly defended the practice of administrative -- which is roughly analogous to solitary confinement -- as a necessary measure to ensure the safety and security of its facilities. That hardline approach softened when the Liberal government took power. In his mandate letters last year, Prime Minister Trudeau urged his cabinet to introduce prison reform measures. Since around that time, the Correctional Service has reduced the number of inmates in administrative segregation by half. Even so, the government is facing at least three significant legal challenges to its prison segregation practices, including a major constitutional challenge scheduled for an 11-week trial beginning on Jan. 3 in British Columbia. In another lawsuit, Hamm v. Canada, three men are claiming more than $5-million in damages for their "unlawful" placement in administrative segregation for 43 days, according to their statement of claim. All three lawsuits mention an array of health problems commonly associated with solitary confinement, including hallucinations, paranoia, self-harm and suicidal thoughts. The Globe reported on Dec. 12 that the federal government rejected any such link between segregation and ill-health in its response to the Hamm lawsuit. "Further, while in administrative segregation, an inmate's well- being is monitored," the response states, "and appropriate steps are taken to ensure the inmate's health and well-being are not adversely affected." CANADA: Three Ex-Armed Forces Members Allege Sexual Misconduct -------------------------------------------------------------- Murray Brewster, writing for CBC News, reports that three former members of the Canadian military who are part of a proposed class- action lawsuit over sexual misconduct have laid out -- in precise, stark terms -- their allegations of abuse. A statement of claim in a case involving three former members of the Forces was filed on Dec. 12 in Ontario Superior Court. It says some of the complainants were actively discouraged from reporting incidents. The plaintiffs -- Nadine Schultz-Nielsen, Larry Beattie and Amy Graham -- filed the claim on behalf of all former and current members of the military alleging sexual assault, sexual harassment and abuse of authority. They are also suing on behalf of family members who may have suffered as a result of a loved one's trauma. "The conduct of [Canadian Armed Forces] members was reckless, arrogant, high-handed and abusive, and showed a callous disregard for the rights of the plaintiffs and class members," said the court filing, obtained by CBC News. "This conduct is reprehensible and deserves punishment." The suit is asking for $1 billion in damages, although judges rarely impose the maximum damages sought by plaintiffs. The federal government has not filed a statement of defence in the case. One of the lawyers involved in the case, Andrew Astritis, says as many 150 other possible claimants have contacted his firm since the notice of action was filed a few weeks ago. "Those are individuals who've come forward and want to share their story, but some don't want to speak publicly because of the traumatic elements involved here," Mr. Astritis told CBC News. Notices of action have been filed in three other class-action cases involving the sexual misconduct scandal that has seized the military: One was filed in Nova Scotia, another in northern Ontario and a third initiated in British Columbia. "What I think this demonstrates is that there is a real endemic problem here that reaches across the country," said Mr. Astritis. The impending court battles come just a few weeks after National Defence released the results of a Statistics Canada survey that shows nearly 1,000 members of the military claim to have been sexually assaulted within the last 12 months. In April 2015, retired Supreme Court justice Marie Deschamps released a report that said sexual misconduct within the ranks was endemic and many members -- mostly women -- were subject to assaults, harassment, degrading jokes and unwanted touching. Canada's chief of defence staff, Gen. Jonathan Vance, has responded with a comprehensive program to stamp out misconduct, known as Operation Honour. Pattern of abuse The claim put forward on Dec. 12 alleges that men have also been subject to abuse and outright attacks. Larry Beattie, a former sailor aboard HMCS Skeena, claims he was forced into sex with another male crewmember while on operation in the Caribbean in 1979. He was 18 at the time and says he was attacked in the shower on at least 10 occasions and threatened "that he would be thrown overboard with the garbage if he told anyone." Mr. Beattie says he never reported the incidents because it was one of his superiors who assaulted him. "I kept it to myself for years and years," he said. "My coping mechanism was alcohol. It was readily available on board ships, so I drowned my sorrows and cried myself to sleep not knowing what to do." The court records also state that Amy Graham claims to have been repeatedly sexually harassed after joining the military in 2004. She was apparently pressured to go on dates with her chief warrant officer a year later. Ms. Graham, a communications research officer, was sexually assaulted by a fellow soldier in a hotel room following her tour of Afghanistan in 2010. Her attacker was charged just recently and pleaded guilty last month to an administrative charge, rather than a criminal charge. The soldier, whose identity was not listed in the court records, was demoted and fined $2,500. Nadine Schultz-Nielsen, a medic, claims she was repeatedly grabbed and touched without consent while serving aboard HMCS Iroquois in 2002, according to the Dec. 12 filings. When she went to report some of the incidents, she alleges no action was taken and "was subject to retaliation for coming forward." The Ottawa law firm Raven, Cameron, Ballantyne & Yazbeck is representing the three complainants. CENTRAL VIRGINIA: Faces "Okomoto" Suit Alleging FLSA Violations --------------------------------------------------------------- Richard Thomas Okomoto, Plaintiff, on his own behalf, and for all those similarly situated pursuant to 29 USC Section 216(b), v. CENTRAL VIRGINIA COMMUNITY COLLEGE, Serve: John S. Capps, President, Central Virginia Community College, 3506 Wards Road, Lynchburg, VA 24502-2498 and VIRGINIA COMMUNITY COLLEGE SYSTEM, Serve: Glen DuBois, Chancellor, Virginia's Community Colleges, 300 Arboretum Place, Suite 200, Richmond, VA 23236, Defendants, Case No. 6:16-CV-00075 (W.D. Va., December 15, 2016), alleges that Defendants knowingly and in bad faith improperly classified the Plaintiff as either "professional" or "administrative" employees who were exempt from the overtime pay requirements of the Fair Labor Standards Act. The Defendant is a publicly funded community college. The Plaintiff is represented by: Thomas E. Strelka, Esq. L. Leigh R. Strelka, Esq. STRELKA LAW OFFICE, PC 119 Norfolk Avenue, S.W. Suite 330, Warehouse Row Roanoke, VA 24011 Phone: 540-283-0802 E-mail: thomas@strelkalaw.com leigh@strelkalaw.com CIOX HEALTH: Filed Appeal in Northern Dist. of California --------------------------------------------------------- Nytasia Calip, on behalf of herself and all others similarly situated, and on behalf of the general public, the Plaintiff, v. Ciox Health, LLC, a Georgia corporation, the Defendant, Case No. 3:16-cv-07231 (N.D. Cal., Dec. 19, 2016), is an appeal filed before the U.S. District Court for Northern District of California (San Francisco), from a lower court decision in a class action, Case No. RG16839506 (Alameda Super. Ct.). CIOX Health facilitates and manages the movement of health information to help the clients manage health information and streamline processes for the exchange of information, audit management, document management, and coding. The Plaintiff appears pro se. CMS MID-ATLANTIC: Faces "Galanti" Suit Under FLSA, NJ Wage Act -------------------------------------------------------------- MICHAEL GALANTI, on behalf of himself and all others similarly situated, Plaintiff, v. CMS MID-ATLANTIC, INC., BERNARD STOECKLEIN, and LOUIS SHOOK, Defendants, Case No. 2:16-cv-09319- SDW-LDW (D.N.J., December 16, 2016), alleges that Plaintiff and others similarly situated regularly worked fifty-two to sixty hours, or more, in a workweek, but Defendants never paid them overtime premiums for all hours worked in excess of forty hours in a workweek in violation of the Fair Labor Standards Act and the New Jersey Wage and Hour Law. Defendants own, manage, and operate CMS Mid-Atlantic, Inc. -- providing cemetery management and consulting services to the cemetery industry, throughout New Jersey and New York. The Plaintiff is represented by: David Harrison, Esq. HARRISON, HARRISON & ASSOCIATES 110 State Highway 35, Suite #10 Red Bank, NJ 07701 Phone: (718) 799-9111 Fax: (718) 799-9171 E-mail: nycotlaw@gmail.com COMCAST CABLE: Faces Cable Installers' Minimum Wage Class Action ---------------------------------------------------------------- Kevin McGowan, writing for Bloomberg BNA, reports that a Comcast Corp. affiliate unlawfully failed to pay cable installers the minimum wage or overtime pay required under federal and state laws, according to a lawsuit filed in federal court in Colorado (Shahlai v. Comcast Cable Commc'ns Mgmt., LLC , D. Colo., No. 16- 2556, amended complaint filed 12/8/16 ). Comcast Cable Communications Management didn't reimburse cable installers for their vehicle expenses and deducted tool expenses from their paychecks. That caused installers' pay to drop below the federal and Colorado hourly minimum wages, the lawsuit alleged. They also weren't paid overtime for working more than 40 hours a week, according to an amended complaint filed Dec. 8. The court will be asked to decide if the cable installers are Comcast Cable employees covered by the Fair Labor Standards Act or independent contractors. It's a common practice for cable or satellite television providers to classify their installers as independent contractors after using a third party for hiring. Courts have reached mixed results on whether such installers can be considered "employees" of the relevant cable or satellite TV company. Ramin Shahlai, who filed the lawsuit, and other installers originally were hired by Icon Cable Inc., a former Comcast Cable contractor that's no longer in business. Comcast Cable should be deemed the installers' employer, the complaint said. Installers were trained and supervised to serve only Comcast customers while using company-specific tools and wearing company uniforms and badges, it said. They were "entirely dependent" on Comcast for their employment, the complaint said. In its answer to an earlier complaint, Comcast Cable said it's neither the installers' employer nor their "joint employer" along with Icon Cable. It asked the court to dismiss all the claims against Comcast. Attorneys representing the parties weren't available for comment Dec. 9. Buescher Kelman Perera & Turner PC and the Milstein Law Office represent the workers. Ballard Spahr LLC represents the Comcast affiliate. DAKOTA PLAINS: "Deardeuff" Suit Alleges Securities Act Violations ----------------------------------------------------------------- STEVEN DEARDEUFF, Individually and on behalf of all others similarly situated, Plaintiff, v. DAKOTA PLAINS HOLDINGS, INC., CRAIG M. MCKENZIE, TIMOTHY R. BRADY, GABRIEL G. CLAYPOOL, RYAN GILBERTSON, and MICHAEL L. REGER, Defendants, Case No. 1:16-cv- 09727 (S.D.N.Y., December 16, 2016), alleges that Defendant Gilbertson artificially inflated the price of the Company's stock once it began public trading in March 2012 for 20 days and that they made materially false and misleading statements in violation of the U.S. Securities and Exchange Act. DAKOTA PLAINS HOLDINGS, INC. is an integrated midstream energy company. The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Phone: (212) 686-1060 Fax: (212) 202-3827 Email: lrosen@rosenlegal.com Email: pkim@rosenlegal.com EKURHULENI METROPOLITAN: Class Action Mulled Over Edenvale Floods ----------------------------------------------------------------- Bedfordreview and Edenvale News reports that the business owners whose businesses and properties were affected by the Edenvale floods are seeking to sue the Ekurhuleni Metropolitan Municipality. On November 9, businesses in the Eastleigh area were damaged by the floods when the Eastleigh Spruit burst its banks after heavy rainfall late that afternoon. Councillor Bill Rundle of ward 19 said the Eastleigh Spruit has been an issue since 2005. He said in 2011 the Ekurhuleni Metropolitan Municipality (EMM) conducted a survey of the Eastleigh Spruit to determine whether work needed to be conducted in the spruit. "In 2012 the metro held a tribunal and it was decided that work would be conducted in the spruit," said Clr Rundle. Clr Rundle said the spruit was reinforced with concrete around the Plantation Road bridge. He said surveys had previously been conducted to determine whether other bridges in Eastleigh, such as Central Avenue, needed to be upgraded. Clr Rundle said the bridge was not upgraded. "If there had been improvement to the bridges and to the spruit, it is possible that the damage to the businesses could have been reduced," said Clr Rundle. Following the outrage of business owners in the community, Clr Rundle has decided to create a registry where businesses who are looking to sue the EMM can come together. He said the businesses are planning on taking a class action lawsuit against the EMM. Clr Rundle said at this point in time the register has been started to create a list of frustrated business owners. A meeting will be held in January and the way forward will be discussed. Clr Rundle believes by having a large group the legal fees will be less for each person and the outcome will possibly be more positive. Clr Rundle said the Eastleigh area is a large economic hub and if nothing is done about the Eastleigh Spruit, businesses will move away. He said if there are business and property owners who feel that they were adversely affected by the floods of November 9, or previous floods, they can get in touch with him and join the register. ERGON ASPHALT: Hilliard Says Water Crisis Suit Continues to Grow ---------------------------------------------------------------- The lawsuit filed by Bob Hilliard against Ergon Asphalt & Emulsions, Inc. and Valero has steadily added more and more Corpus Christi businesses who have had to keep their doors locked over the busy Christmas season. Hilliard states: "Hundreds of Corpus businesses have contacted me and asked to be included, and the calls have not stopped. "We will continue to amend the lawsuit to add more of the businesses who are suffering financially. "The idea that a company would endanger an entire city's future and reputation by poisoning the water supply is remarkable. "We will unwind this ball of conspiracy and follow every thread until the identity of every individual responsible for this catastrophe is exposed and held fully accountable. "This is not shaping up as just a simple mistake by those responsible. The questions are troubling. How long were they poisoning our water without telling the City and its citizens? Did they intentionally cover up the danger? Were people unknowingly exposed to a dangerous chemical and if so, for how long? "I am sure the facts as we uncover them will be reviewed by our new district attorney to determine if crimes were committed. Many of these businesses will feel the full financial hit of this loss well into next year, assuming they even survive." FACEBOOK INC: January 23 Lead Plaintiff Motion Deadline Set ----------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Facebook, Inc. ("Facebook" or the "Company") (NASDAQ: FB) and certain of its officers, and is on behalf of shareholders who purchased or otherwise acquired Facebook securities between April 1, 2015 and November 16, 2016, both dates inclusive (the "Class Period"). Such investors are advised to join this case by visiting the firm's site: http://www.bgandg.com/fb. The class action lawsuit 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 Facebook introduced its new advertising and content "metrics," aimed to assist advertisers measure results for paid advertising products and to "better understand how people respond to (their) videos on Facebook," by measuring the performance of their paid Facebook ads and campaigns. Facebook publicized its new advertising metrics as a valuable tool to assess the success of the paid campaigns and advertisements. Even after ad companies' heavy criticism to be more transparent, Facebook still did not have any third-party independently overseeing or calculating the accuracy of the data and new metrics. Around April 1, 2015, Facebook found errors with the advertising and content metrics, but hid this information from the investing public and did not disclose these errors in its SEC filings. With knowledge of the errors, defendants sold a substantial amount of Facebook shares for profit. Facebook publicly admitted that it found errors in its video advertising metric, that it had exaggerated its average viewing time metric, downplayed its significance, gave inconsistent information about the error, and failed to disclose additional information about the errors in its metrics. Facebook did not alert investors of the substantial affect the miscalculation would have on ad revenue in the future. Following the November 3, 2016 announcement of expected reduction in ad revenue and capital expenditures, Facebook stock dropped sharply. The company continued to drop the next day and fell below $4 billion dollars on November 4, 2016. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: http://www.bgandg.com/fb or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Facebook you have until January 23, 2017 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. FB CANDLER: "O'Brien" Sues Over Overtime, Misallocated Tips ----------------------------------------------------------- Justin O'Brien, on behalf of himself and those similarly situated, Plaintiff, v. FB Candler Park, LLC, Defendant, Case No. 1:16-cv- 04584, (N.D. Ga., December 14, 2016), seeks minimum wages and unpaid overtime wages pursuant to the Fair Labor Standards Act. FB Candler Park, LLC operates Flying Biscuit Cafe where Plaintiff worked as a server, bartender, and assistant manager from approximately August 2014 through the present, at Defendant's Candler Park location. Defendant paid its servers pursuant to a "tip credit" method where they were paid the minimum wage minus the tip credit. Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street NE, P.O. Box 57007 Atlanta, GA 30303 Telephone: (404) 965-8811 Facsimile: (404) 965-8812 Email: cleach@forthepeople.com FIAT CHRYSLER: NHTSA Opens Investigation Into Rollaway Issue ------------------------------------------------------------ Tom Krisher, writing for The Associated Press, reports that the U.S. auto safety agency has opened an investigation into complaints that another 1 million Fiat Chrysler vehicles can roll away after the owners shift transmissions into park, a problem similar to the one being blamed in the death of Star Trek actor Anton Yelchin. The investigation by the National Highway Traffic Safety Administration covers Fiat Chrysler's top-selling vehicle, the Ram 1500 pickup, from the 2013 to 2016 model years, as well as the 2014 to 2016 Dodge Durango SUV. The rollaway complaints are similar those that prompted the recall of 1.1 million Jeep Grand Cherokees and other vehicles earlier this year, although those vehicles have different shifters. Mr. Yelchin, 27, known for playing Chekov in the film series, died in June after his 2015 Jeep Grand Cherokee pinned him against a mailbox pillar and security fence at his home in Los Angeles. His Jeep was among the vehicles recalled in April because of complaints from drivers who had trouble telling if they put the console-mounted shift levers in "park" after stopping. Many reported that the vehicles rolled off after the driver exited. Los Angeles police are still investigating Mr. Yelchin's death. In the new investigation, the government says Rams and Durangos have dial-like rotary knob shifters that are linked electronically to the transmission. The knobs are turned to the left or right and have detents that click into gear. But the government said in documents posted on Dec. 20 that it received 43 complaints alleging that the vehicles rolled away unexpectedly. Owners reported 25 crashes and nine injuries. Thirty-four of the owners alleged that the vehicles moved while the shifters were in park, and most said the engines were running. "Notably, none of the reports indicate that the parking brake was engaged at the time of the rollaway incident," NHTSA said in the documents. Fiat Chrysler says it's cooperating with the investigation, and it joined NHTSA is urging drivers to always use parking brakes when they stop vehicles. Both Fiat Chrysler shifters are different from conventional levers on the steering column or console. Most cars have console shifters that slide forward or backward to indicate the car's gear. They used to be tied to a cable that physically changed gears. But the auto industry has developed new transmissions with the gear selection controlled electronically. Michelle Krebs, senior analyst for Autotrader, says companies are trying to free interior space with innovative shifters, but drivers are having trouble grasping the changes. "It used to be all shifters basically worked the same. Now every automaker is doing their own variation on a theme," she said. Companies have to make sure the new shifters work flawlessly and insure that dealers educate buyers on how the shifters work, she said. The Grand Cherokee shift levers like Mr. Yelchin's had to be pushed forward or backward to change gears, confusing many drivers. In the recall, Fiat Chrysler changed the software so the vehicles automatically shift into park if the driver's door is opened. In the latest investigation, no recall has been issued, but one is possible. NHTSA says it's investigating the scope of the problem and how often it happens. An owner from Tarzana, California, complained to NHTSA that his 2014 Ram rolled into a wall with his grandmother still in the vehicle in July of 2014. The owner told the agency that he shifted the truck into park while it was in his driveway and stepped out, but the driver's door hit him in the back. The driver's side tire rolled over one ankle, knocked him down, then rolled over the other ankle. The truck then jumped a curb and hit the wall, the owner wrote. People who complain are not identified in the NHTSA database. Two other Fiat Chrysler vehicles have the dial shifters including the Chrysler Pacifica minivan and the Chrysler 200 sedan. But FCA says those are not included in the investigation because they automatically shift into park if the driver's seat belt is unbuckled or the driver's door is opened. Other automakers also use electronic rotary shifters, but the fact that they're different from conventional shifters seems to confuse drivers. NHTSA on Dec. 20 posted another investigation into a different automaker's shifters. This time the agency is probing complaints in about 39,000 Jaguar and Land Rover vehicles that also have rotary shift knobs. In that probe, seven owners complained that the 2012 to 2014 Land Rover Evoque and Jaguar XF rolled away after the driver shifted into park. Four injuries were reported, most while the driver door was open when the vehicles rolled off. FORD: Faces Class Action Over Kuga Model After Man's Death ---------------------------------------------------------- IOL reports that Ford is facing a class-action lawsuit from more than 20 owners of its Kuga model across South Africa, including the family of a man who died in one of the SUVs which is alleged to have "spontaneously combusted". In an email response to the Weekend Argus, Ford SA would not be drawn into revealing how many fire probes were under way, only stating that investigations into "alleged incidents" were being looked into. "But I want to stress that we are not aware of any other injuries associated with alleged fires in Ford Kugas," said spokeswoman Alisea Chetty. In a leaked fire investigation report by Fire Wise Consultants, it was revealed that some 139 917 vehicles affected by a recall of 150 000 Ford Kugas (2014 models) in the US, were at risk of localised overheating of the cylinder head, which could lead to an oil leak resulting in a fire. There is yet to be a recall in South Africa. A recent case of such a fire alleged to have started from the bonnet of a Ford Kuga owned by Vivienne Jordaan from Cape Town is due in courts soon. Her 2014 model with 83 000km on the odometer burst into flames on November 17. Ms. Jordaan, a sales representative, said: "I was driving between our offices at round 11am. In Bellville, I noticed smoke coming from my dashboard. I tried to brake, but my brakes did not work and I was trying to bring myself to a halt on the busy R300. The front of my car burst into flames and I grabbed my bag and the work laptop and ran." She took videos and pictures to document the damage. "I had been negotiating with Ford for three weeks. My car I bought brand new. They are refusing to take responsibility and I will be suing for damages," she said. The family of Reshall Jimmy is also taking the vehicle giant to court. He died while trapped in his 2014 model Ford Kuga SUV on December 4 last year. Jimmy, 33, who had been working at a digital marketing and advertising agency, was travelling to George in his one year-old Kuga when it allegedly exploded in the seaside town of Wilderness. Jimmy was trapped in the car -- so hot that the safety glass had melted at 760øC, according to a fire investigation report. The severity of the inferno was such that nobody could approach the vehicle to extinguish the fire. By the time the fire services arrived, Jimmy had died. Internationally respected forensic scientist, David Klatzow, who was hired by the family to inspect the circumstances surrounding Jimmy's death, concluded the fire had started in the front of the passenger compartment under the dashboard. Ford disputed this, saying the company's examination pointed to the fire starting at the rear of the vehicle and not the engine compartment. "That is clearly evidenced by the level of fire damage to the rear and the relative lack of damage to the front of the Kuga. "We also evaluated prior demonstrations on other vehicles to determine fire behaviour and progression. "We found no evidence of an electrical or other vehicle origin for the fire," said Ms. Chetty. A fire investigation report prepared by the Eastern Cape police also concluded an electrical fault was the cause of the fire that killed Jimmy and originated at the front passenger side. "Ford have been anything but forthcoming. They promised to make available diagrams of the wiring -- one year down the line we have received nothing. All we got was a demand by Ford that they examine the vehicle for the third time and an investigator's report that contradicted other reports by stating that the fire started in the rear. "It appears that from the information that is coming through, that this is not the only Ford Kuga that has had problems. They (Ford) have to come up and tell us what the problems are," said Klatzow. Jimmy's brother, Kaveen, said Ford's handling of the family was inhumane. He accused the company of failing to release reports for the police investigation to be concluded and of resorting to bully tactics to silence those who spoke about their experiences. Despite this, Kaveen and his sister Renisha's efforts had yielded some successes with the uncovery of a video that will shed major light on where the fire actually started. "With the evidence we have and the people coming forward to contact us, we are in the advanced stages of filling a class action lawsuit. Our current legal team will require the support of additional senior counsel to assist once the state has concluded its investigation into my brother's death," he said. He said more than 20 Ford Kuga owners would be part of the lawsuit, police spokesman Captain Malcolm Pojie confirmed that investigations were still under way. "Although several inspections has been conducted on the vehicle by independent as well as experts from Ford, no reports has come forth, yet. An application has been made by the investigating officer to have access to these reports. It will be premature to make any arrests or to announce the origin or cause of the fire. As soon as the investigation is concluded we shall submit the docket to the director of public prosecutions for a decision," he said. FTS USA: Lower Court Asked to Reconsider Workers' Class Action -------------------------------------------------------------- The Associated Press reports that the Supreme Court is asking a lower court to take another look at a class action lawsuit brought by nearly 300 cable technicians that alleges their company encouraged workers to underreport overtime hours. The justices said on Dec. 12 that a federal appeals court should reconsider its decision allowing the lawsuit to proceed against cable installation firm FTS USA and its parent company, UniTek USA. The companies argue that the district court should not have calculated damages for hundreds of workers by averaging the experiences of only 17 workers who testified. A federal judge awarded the technicians $3.8 million after a jury found the company at fault. A federal appeals court said that award was too high, but rejected arguments that a single class action lawsuit was improper. GARDEN OF EDEN: Faces "Sanchez" Suit Alleging FLSA Violations ------------------------------------------------------------- OSCAR SANCHEZ, on behalf of himself and other persons similarly situated, Plaintiff v. GARDEN OF EDEN LAWN CARE, LLC and JOSEPH ARENALES, Defendants, Case No. 2:16-cv-17462 (E.D. La., December 15, 2016), alleges that Plaintiff was not paid one-and-a- half times his regular hourly rate for all hours worked in excess of forty hours a workweek, in violation of the Fair Labor Standards Act. GARDEN OF EDEN LAWN CARE, LLC is in the business of providing residential and commercial lawn care and landscaping services in the Greater New Orleans Area. The Plaintiff is represented by: William H. Beaumont, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 483-8008 E-mail: whbeaumont@gmail.com - and - Roberto Luis Costales, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 534-5005 Fax: (504) 272-2956 E-mail: costaleslawoffice@gmail.com - and - Emily A. Westermeier, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Louisiana Bar #36294 Phone: (504) 534-5005 E-mail: emily.costaleslawoffice@gmail.com GOODMAN NETWORKS: Faces "Garland" Suit Alleging FLSA Violation -------------------------------------------------------------- ROBERT GARLAND, on Behalf of Himself and All Others Similarly Situated, Plaintiffs v. GOODMAN NETWORKS, INC., Defendant, Case No. 5:16-cv-00195-RWS (E.D. Tex., December 16, 2016), seeks to recover overtime compensation, minimum wages and other wages, liquidated damages, attorney's fees, litigation expenses, costs of court, pre-judgment and post-judgment interest and injunctive relief under the provisions of the Fair Labor Standards Act. Defendant provides network services and implementation to customers throughout the United States and Texas and employs Construction Managers to perform one portion of these services. The Plaintiff is represented by: Charles M.R. Vethan, Esq. THE VETHAN LAW FIRM, PC 3501 Allen Parkway Houston, TX 77019 Phone: (713) 526-2222 Fax: (713) 526-2230 HARVEST BAKERY: Rivera Moves to Notify Putative Class Members -------------------------------------------------------------- The Plaintiffs in the lawsuit titled MAXIMINO RIVERA, MIGUEL ROLDAN, and OSCAR QUINANILLA, and all other non-exempt employees similarly situated v. HARVEST BAKERY INC., ROBERT MARCONTI, and JOSE GONZALEZ, Case No. 2:13-cv-00691-ADS-AYS (E.D.N.Y.), move the Court for an order directing them to send to class members the best notice that is practicable under the circumstances, including individual notice to all members, who can be identified through reasonable effort. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=d4bErvrh The Plaintiffs are represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 103 Cooper Street Babylon, NY 11702 Telephone: (631) 257-5588 E-mail: PRomero@RomeroLawNY.com - and - Saul D. Zabell, Esq. ZABELL & ASSOCIATES, PC. One Corporate Drive, Suite 103 Bohemia, NY 11716 Telephone: (631) 589-7242 Facsimile: (631) 563-7475 E-mail: SZabell@laborlawsny.com HINGS CHINESE: Faces "Espinales" Suit Alleging FLSA Violation ------------------------------------------------------------- TERESA D. ESPINALES and other similarly-situated individuals, Plaintiff, v. HINGS CHINESE FOODS, INCORPORATED, a/k/a HING'S CHINESE RESTAURANT, RICHARD W. QUAN, and WU LOO LO, individually, Defendants, Case No. 1:16-cv-25222-KMW (S.D. Fla., December 16, 2016), seeks to recover money damages for unpaid minimum and overtime wages under the Fair Labor Standards Act. HINGS CHINESE FOODS, INCORPORATED is a take-out restaurant. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com ILLUMINA INC: Frontline Suit Alleges Securities Act Violations -------------------------------------------------------------- YI FAN CHEN, and FRONTLINE GLOBAL TRADING PTE. LTD., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. ILLUMINA, INC., FRANCIS A. DESOUZA, and MARC A. STAPLEY, Defendants, Case No. 3:16-cv-03044-H-MDD (S.D. Cal., December 16, 2016), alleges that Defendants made false and/or misleading statements and/or failed to disclose, among others, that the Company was experiencing a large decline in high throughput sequencing instrument sales, in violation of the U.S. Securities and Exchange Act. ILLUMINA, INC. provides sequencing- and array-based solutions for genetic analysis. The Plaintiffs are represented by: LIONEL Z. GLANCY, Esq. ROBERT V. PRONGAY, Esq. LESLEY F. PORTNOY, Esq. CHARLES H. LINEHAN, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Fax: (310) 201-9160 Email: info@glancylaw.com INT'L PAYMENT: Faces Class Action Over Recorded Phone Calls ----------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that a Salt Lake City-based telemarketing business which uses a Naperville call center to solicit retailers and other merchants to persuade them to hire certain banks to process their debit and credit transactions has been hit with a class action lawsuit from small business owners who allege they and a company whose marketing operations they purchased last year, "surreptitiously recorded" phone conversations in which the business owners divulged financials and other "sensitive" information. On Dec. 9, the plaintiffs, identified in the complaint as California residents James Wang, Sat Narayan, Kaeran Sudmalis- Testi, Ihab Ghannam, and Blanca Saenz, filed suit in Chicago federal court against International Payment Services LLC, of Henderson, Nev., which does business as Elitepay Global, and Ironwood Financial, of Salt Lake City, which does business as Ironwood Payments. They also sued the companies that allegedly hired the marketing companies, including Wells Fargo, Fifth Third, First Data Corp., Vantiv Inc., and National Processing Company. The lawsuit also named various individual defendants, identified as Brian, Andrew and Adam Bentley, identified as owners of EPG; and Dewitt Lovelace and John Lewis, who are identified in the complaint as owners of Ironwood. The plaintiffs are represented in the action by the firm of Myron M. Cherry & Associates, of Chicago. The complaint centered on the alleged practices, allegedly begun by EPG around 2011, of recording telemarketing conversations it conducted with small business owners and others on behalf of Wells Fargo, Fifth Third and others. That practice was allegedly continued after 2015 by Ironwood, which at that time acquired EPG's operations, including the company's Naperville call center, the complaint said. According to the lawsuit, EPG and later Ironwood, acting as "Third Party Agents" of banks and vendors, would contact business owners and others who required so-called "merchant services" from banks and others who either process credit and debit card transactions, or provide the equipment and software that make such electronic commerce possible. The lawsuit accused the marketers of using "caller ID spoofing" and other tactics to allegedly mislead the business owners into believing they were speaking with either a local customer or an existing service provider, when the marketers were actually soliciting them to transfer their debit and credit card transaction processing business to a new bank and vendors. The lawsuit, however, said those calls and any subsequent telephone conversations between the marketers and the business owners were all recorded, without the knowledge or consent of the business owner or others being solicited. The lawsuit accused the banks and equipment and software vendors of allegedly being aware of the telemarketers' tactics and continuing to contract with the marketers to find and land new customers. The lawsuit alleged the practices violated California privacy laws, as all of the plaintiffs were located in that state. However, the plaintiffs argued they had standing to sue in Chicago federal court because a purportedly large portion of EPG's and -- since 2015 -- Ironwood's telemarketing efforts have originated at the call center in west suburban Naperville. The complaint does not identify the businesses with which the named plaintiffs are associated. Nor does the complaint estimate how large the additional class of plaintiffs in the action may be. However, in the lawsuit, plaintiffs said they believe EPG and Ironwood have made "thousands of telemarketing calls to California businesses every day." The lawsuit requests statutory damages of up to $5,000 per violation, plus attorney fees. JMC HOLDINGS: "Cruz" Suit Alleges FLSA, NJ Wage Law Violations -------------------------------------------------------------- Jesy Cruz, Luis Rodriguez, and Mercedes Trinidad, on behalf of themselves and all other persons similarly situated, Plaintiffs, vs. JMC Holdings, Ltd. d/b/a Domino's Pizza, John Cilmi, and John Does #1-10, Defendants, Case No. 2:16-cv-09321 (D.N.J., December 16, 2016), seeks to recover compensation under the Fair Labor Standards Act, and the New Jersey Wage and Hour Law. JMC Holdings, Ltd. is a public utility holding company. The Plaintiffs are represented by: David Stein, Esq. David Nieporent, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Phone: (212) 563-9884 KIMBERLY-CLARK: Consumer Watchdog Sues Over "Flushable" Wipes ------------------------------------------------------------- Frank Chung, writing for news.com.au, reports that manufacturers of so-called "flushable" wipes that cause thousands of dollars of damage to plumbing systems could be facing a class-action lawsuit from disgruntled homeowners. On Dec. 12, the consumer watchdog launched legal action against Kimberly-Clark and Pental, alleging the two companies deceived consumers by marketing wipes as "flushable" and that they would "break up like toilet paper", when in fact they wreak havoc on sewage systems and plumbing. Nationally wet wipes cost Australia's water utilities $15 million to clean up, and households face plumbing bills as high as $16,000. Both companies could face fines of more than $1 million if the ACCC succeeds. "These things have cost us around $2000 in plumbing fees over the last 12 months or so in an investment property when the new tenant decided to use them," one reader told news.com.au. "The bloody things blocked the pipes and we had to keep paying the plumber because the product states they are flushable, which they are, but doesn't mention that they will block the sewer. It took four plumber visits to finally discover the blockage was the wipes, not tree roots." The ACCC's action has left the toilet seat up for other lawsuits. Jan Saddler, class actions principal at Shine Lawyers, said the law firm would "certainly have a look at it". "If people have incurred significant costs in rectifying a problem caused by that product when it's not consistent with the way that product is marketed and sold to consumers, why wouldn't we investigate further?" she said. "Certainly whenever an organisation such as the ACCC or ASIC or any regulator take action, it's something Shine would investigate further and look at the possibility of what action there may be for people who have suffered loss as a consequence of [those] issues." To flush, or not to flush Ms Saddler said it was not necessary to wait for the outcome of the ACCC proceedings for a separate action to be launched. "If there is a sustainable course of action for people to bring against the manufacturer such as this which is causing issues, it's not necessary to wait," she said. Water authorities around the country, which have long been battling the wet wipe scourge, welcomed the Dec. 12 announcement. "We've been running a campaign for over 18 months now to keep wipes out of pipes," said Sydney Water spokesman Peter Hadfield. Sydney Water removes 500 tonnes of wet wipes from its treatment plants every year. "Often it has to be removed by hand, and that's a pretty terrible job for our staff," Mr Hadfield said. "It's not just a problem for waste water utilities. Our concern is that there are a significant number of people who contact us on a regular basis to say they've been hit with fair sizeable plumbing bills to remove wipes from their pipes. "It's not just a Sydney Water problem, it's a global problem." Queensland's water authority removes 160 tonnes, or around 20 million wet wipes, from its treatment plants every year, at an estimated cost of $1.5 million. "Laid end to end that's enough wipes to stretch from Brisbane to Bali," said Queensland Urban Utilities spokeswoman Michelle Cull. "Wet wipes are the number one enemy of sewer pipes here in Australia and all over the world. It's a big problem, so we really welcome the ACCC's decision to take court action. We think it's a positive step towards overcoming a big problem for us." The Water Services Association of Australia also welcomed the court action. "Together with over 300 international water utilities and partner organisations, WSAA and its members have signed a global statement outlining that only the 3Ps -- Pee, Poo and toilet Paper -- should be flushed," it said in a statement. Kimberly-Clark on Dec. 12 stood by its "flushability" claims. "Our claims that these products are flushable are accurate and the proceedings will be defended on that basis," a spokeswoman said. "These products and the current Kleenex Cottonelle Flushable Wipes meet or exceed the requirements set out in the INDA/EDANA Flushability guidelines, which are the only widely accepted guidelines for assessing flushability." Pental, while saying it had already removed the word "flushable" from its products, defended itself by saying there was "no legal standard for flushability and therefore there is an inherent degree of ambiguity about the meaning of that term". "In September 2014, Pental undertook its own review of the White King Bathroom Wipes packaging and removed the claims relating to disintegration like toilet paper," a spokesman said. JOHNSON & BELL: Sued Over Information Security Vulnerabilities -------------------------------------------------------------- Alfred J. Saikali, Esq. -- asaikali@shb.com -- of Shook Hardy & Bacon LLP, in an article for Lexology, reports that earlier this year, Bloomberg Law reported that Edelson PC, a leading plaintiffs' firm in privacy and data security law, filed a class action lawsuit against a regional law firm that had vulnerabilities in its information security systems. The identity of the firm and the allegations of the lawsuit were unsealed. The case, Shore v. Johnson & Bell, LTD, No. 1:16-cv-04363 (N.D. Ill. Apr. 15, 2016), alleges that Johnson & Bell ("the firm"), a Chicago-based law firm, was negligent and engaged in malpractice by allowing information security vulnerabilities to develop that created risks to client information. This blog post explains the alleged vulnerabilities, analyzes the merits of the lawsuit, and discusses what it means for other law firms, their clients, and service providers. By coincidence, Fortune reported that China stole data from major U.S. law firms: "The evidence obtained by Fortune did not disclose a clear motive for the attack but did show the names of law firm partners targeted by the hackers. The practice areas of those partners include mergers and acquisitions and intellectual property, suggesting the goal of the email theft may indeed have been economic in nature." These developments are reminders that information security must be a high priority for all law firms. The Johnson & Bell Lawsuit The lawsuit is based on three alleged vulnerabilities in the firm's information security infrastructure. According to a court filing, the vulnerabilities have now been addressed and fixed. First, the lawsuit alleges that the firm's Webtime Server, an application attorneys use via any web browser to remotely log in and record their time, was based on the 2005 version of the Java application JBoss. The Complaint alleges that the 2005 version of JBoss has been identified by the National Institute of Standards and Technology as having an exploitable vulnerability. Plaintiffs also allege hackers have taken advantage of the vulnerability in other situations to conduct ransomware attacks. Second, the lawsuit alleges that the firm's virtual private network (VPN) server contains a vulnerability. Companies use VPNs to allow their employees to remotely access company information in an encrypted, secured manner. The secured nature of a VPN connection allows companies to feel comfortable providing access to highly sensitive internal resources and databases. Sometimes, a temporary disconnection occurs while an employee is using a VPN connection. The Complaint alleges generally that when the firm's VPN sessions were disconnected, the renegotiation (or re- connection of the VPN session) was insecure, making it vulnerable to a "man-in-the-middle" attack. A man-in-the-middle attack is a cyberattack in which the hacker gains access to a system to eavesdrop on communications and steal confidential information. Finally, the Complaint alleges that the firm's email system was vulnerable because it supports version 2.0 of SSL. Secure Sockets Layer (SSL) is a form of technology that creates an encrypted tunnel between a web server and a browser to ensure that information passing through the tunnel is protected from hackers. Version 2.0 was replaced by version 3.0 in 1996. In 1999, Transport Layer Security (TLS) replaced SSL entirely. Since then, TLS has been updated at least twice. According to the Complaint, the use of SSL 2.0 made the firm susceptible to a DROWN (Decrypting RSA with Obsolete Weakened Encryption) attack that could allow hackers to access the contents of the firm's emails and attachments. The Complaint claims that the Panama Papers breach was a result of a similar attack. Notably, the Complaint does not allege that the firm actually suffered a compromise of sensitive information, that a successful cyberattack occurred, or even that a cyberattack was attempted. In other words, the lawsuit is based on the firm's alleged state of security that may make it vulnerable to an attack in the future. Who is the class? Plaintiffs (Jason Shore and Coinabul, LLS) are former clients of the Johnson & Bell firm. The firm defended Plaintiffs in a class action lawsuit alleging that Plaintiffs defrauded consumers by accepting payments in the form of bitcoins while refusing to ship gold or silver ordered by customers. See Hussein v. Coinabul, LLC, No. 14 C 5735 (N.D. Ill. 2014). Plaintiffs define the class as all of the firm's clients within the statute of limitations period except insurance companies and clients operating in the healthcare industry. Why insurance and healthcare companies are not included in the proposed class is not evident from the allegations. It could be that those industries are more highly regulated in privacy and data security and therefore would have had a greater duty to ask questions of the firm about its information security practices. Though why financial institutions, the most highly regulated sector in data security, would not also have been included in this group is not clear. The Complaint is based on four causes of action: Breach of implied contract -- Plaintiffs allege that, as a term of the engagement agreement, the firm promised to keep a file for the work they performed on Plaintiffs' matter. The Complaint claims there was an implied promise that the firm would use reasonable methods to keep Plaintiffs' information confidential, which was breached by the firm's security vulnerabilities. Negligence -- Plaintiffs claim the attorney-client relationship automatically created a duty to adopt industry standard data security measures, which was breached as evident by the alleged vulnerabilities. Unjust enrichment -- Plaintiffs argue that a portion of the attorney's fees they paid to the firm was for the administrative cost of data security to maintain the confidentiality of client information. Plaintiffs seek return of that amount of the fees paid. Breach of fiduciary duty -- Plaintiffs claim that the failure to implement industry standard data security measures and resulting vulnerabilities were breaches of the firm's fiduciary duty to Plaintiffs. What is the injury? Plaintiffs allege they were injured because the security vulnerabilities created (1) a diminished value of the services they received from the firm, and (2) a risk that their sensitive information may be compromised at some point in the future (which could result in damages from that theft). Plaintiffs measure their damages as the portion of fees paid to the firm that were meant to be for the administrative cost of securing client information. Plaintiffs have also asked the court to require an independent third-party security audit of the firm's systems. Is a Vulnerability by Itself Enough to Meet Standing Requirements? In Saikali's opinion, the lawsuit is fatally flawed because there was no attack or attempted attack on Plaintiffs' information, let alone actual unauthorized access or acquisition of the information. The firm's security system was analogous to an unlocked door to a home that nobody burglarized. The plaintiffs indisputably suffered no financial damages as a result of the alleged vulnerabilities, and the vulnerabilities were identified (albeit by this lawsuit) and addressed before any actual harm occurred. If the mere risk of harm at some point in the future is enough to allow a lawsuit to proceed, then every company in America should be concerned. Most companies probably have similar unknown vulnerabilities in their systems. The challenge with information security is that it is like a game of "Whack-A-Mole" -- the fast- paced and constantly changing threats and defenses means that new vulnerabilities are always emerging so it is almost impossible to eliminate all vulnerabilities entirely. The floodgates will be blown wide open if a lawsuit based only on the mere existence of a vulnerability is considered actionable. That said, the Edelson firm is one of the most creative plaintiffs' privacy and data security firms in the country. They have made their name by doing things differently from their peers. They are known for pushing the envelope and expanding the boundaries of liability in privacy and data security law. For example, in Resnick v. AvMed they were the first firm to persuade a U.S. Circuit Court of Appeals to apply the unjust enrichment theory to data breach class actions. Other courts have since applied that theory in allowing data breach class action lawsuits to proceed . The Resnick case subsequently settled for over $3 million. In In re: LinkedIn User Privacy Litigation, No. 5:12-cv-03088 (N.D. Cal. 2012), at a time when other plaintiffs firms were pursuing data breach liability based on a failure to adopt reasonable security safeguards, they persuaded the court of a new theory: that the gravamen was not the failure to adopt certain security safeguards, but the misrepresentations in consumer-facing statements about the safeguards that were actually in place. The LinkedIn case settled for $1.25 million. In Spokeo v. Robins, a case that was appealed all the way to the U.S. Supreme Court, the Edelson firm argued to the Court that the mere violation of a privacy statute without other damages or harm is sufficient to confer standing on a plaintiff. The Court's decision gave plaintiffs a roadmap for circumventing the standing problem. But no case has gone this far -- to hold that a mere vulnerability without a compromise of information, an attack, or an attempted attack, is actionable. Doing so would essentially change the data security class action litigation "ball game" once again. The Impact on Everyone Else This lawsuit is important because of its potential impact to several key groups. First, is other law firms. Every firm should immediately determine whether it has the same vulnerabilities alleged in the Complaint. Law firms should be concerned that similar vulnerabilities could lead to similar lawsuits, whether or not an actual attack has occurred. They should be prepared to respond to client inquiries explaining what safeguards they have adopted to protect sensitive client information, consistent with their legal and ethical obligations. (For a discussion of these obligations, read my July 2013 blog post on the subject). Firms should review and update their engagement letters for promises and disclaimers to their clients about information security. This leads to the second group of impacted individuals: the law firms' clients. Every company should have in place a vendor management program that incorporates information security as part of the due diligence process, and law firms are service providers like the rest of the companies' vendors. Companies should be asking their outside counsel as part of the due diligence process how they protect client data: what administrative, technical, and physical safeguards are in place? Has the firm obtained an independent third-party certification (like ISO 27001) or performed a risk assessment by an information security expert? (I was pleasantly surprised to see the Complaint refer to Shook, Hardy & Bacon's ISO 27001 certification as an example of what law firms should be doing). Beyond asking questions, clients need to identify what they expect from their law firms in terms of specific security requirements and communication about vulnerabilities or notifications of data incidents. This lawsuit may have been avoided if the engagement letter had required notice of material vulnerabilities. The questions clients should be asking their law firms can (and will) be the focus of an entirely separate blog post. The third group impacted by this lawsuit will be the service providers law firms use for information security services. Small firms commonly outsource most or all of their information security to these providers. Even large firms use service providers for information security services that include threat detection, data loss prevention, firewall implementation, and cloud storage. Firms also purchase licenses for applications that may present security risks, similar to the alleged vulnerability in the Webtime service. These applications require a separate security vetting by the law firm before they can be used. LANGSTON CONSTRUCTION: "Mairena-Rivera" Suit Sent to M.D. La. ------------------------------------------------------------- The case captioned BISMARK MAIRENA-RIVERA, on behalf of himself and other persons similarly situated, Plaintiff, v. LANGSTON CONSTRUCTION, LLC and COMPOSITE ARCHITECTURAL DESIGN SYSTEMS, LLC, and MICHAEL ANGSTON, Defendants, Case No. 3:16-cv-00850-JJB-EWD (May 9, 2016) was transferred to the U.S. District Court for the Middle District of Louisiana from the U.S. District Court for the Eastern District of Louisiana, according to a case docket dated December 14, 2016. The case alleges that Plaintiff was not paid one-and-a-half times his regular hourly rate for all hours worked in excess of forty hours a workweek, in violation of the Fair Labor Standards Act. LANGSTON CONSTRUCTION, LLC is in the business of installing precast concrete structural framing or panels and prefabricated windows and doors for commercial projects in various states, including Florida and Louisiana. The Plaintiff is represented by: William H. Beaumont, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 483-8008 E-mail: whbeaumont@gmail.com - and - Roberto Luis Costales, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 534-5005 Fax: (504) 272-2956 E-mail: costaleslawoffice@gmail.com - and - Emily A. Westermeier, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Louisiana Bar #36294 Phone: (504) 534-5005 E-mail: emily.costaleslawoffice@gmail.com LOWER MERION, PA: Non-Profit Fights Class Against School District ----------------------------------------------------------------- Lower Merion Fight For First Class Public Education, a non-profit, non-partisan group (the "Group") organized to help defeat Wolk, et al. v. School District of Lower Merion, on Dec. 12 disclosed that, in just one day after sending an email blast to 7,500 parents of Lower Merion public school children asking them to sign the group's Petition protesting the lawsuit, over 1,000 residents signed. That brought the total number of petitioners against the lawsuit to over 1,800. That was on December 8. As of Dec. 12 the number has increased to over 2,000. The suit, styled as a class action on behalf of all Lower Merion taxpayers -- including many taxpayers who categorically reject membership in any such class -- was brought to: set aside reasonable surplus funds for essential future improvements to school buildings, sports facilities and innovative educational programs; dramatically reduce critical funds from Lower Merion public schools; remove wholesale, by judicial fiat, all present duly- elected members of the Lower Merion School District ("LMSD"); and replace the Board with a court-appointed trustee to strip down LMSD's budget and create nothing more than a bare bones education. In fact, the plaintiffs' complaint makes this astonishing pronouncement: "Public school education means basic adherence to the minimum requirements established and imposed upon school districts by the State Board of Education." The Group vehemently disagrees with this bald and wholly unsupported assertion. The Group is particularly disturbed by the plaintiffs' attempt to resurrect in their complaint the same claims made in the long ago resolved "laptop lawsuit." The Group believes it was a shameless, tawdry attempt to besmirch the good name of the LMSD. Significantly, the lead plaintiff here, Arthur Wolk, is an attorney who surely knows or should have known that (1) he and his confederate plaintiffs, who purport to represent the interests of taxpayers and not students, lack standing to bring claims for which they can show no injury to them, and (2) the laptop-based claims for which he seeks relief have been released years ago in the settlement of the laptop litigation. The Group believes PA state auditors recognize the importance of maintaining a reasonable surplus (to, among other things, maintain Lower Merion schools' AAA municipal bond ratings, and provide facilities and faculty necessary to handle the unusually high influx of new students over roughly the same time period as the Lower Merion school taxes have gone up). The Group believes the plaintiffs' scurrilous claims against the LMSD are meritless and will ultimately be rejected by the PA courts. "We are gratified, but not surprised, by this overwhelming demonstration of support for our position that this lawsuit must not prevail," says Group President Jane Broderson. "Just as grassroots opposition and outrage by class members in the laptop case helped prevent it from proceeding as a class action, we expect that the more than 2,000 organized opponents of this proposed class action will have the same effect." For more information, go to www.lmfight.com. MCCLURE PROPERTIES: "Milien" Suit Alleges AWPA, EFTA Violations --------------------------------------------------------------- Willio Milien, Risler Presendieu and Sylaine Baptiste on behalf of themselves and all others similarly situated; Yolette Fils-Aime, Guerlin Dorelys and Marie Paul, individually, Plaintiffis, vs. McClure Properties, Ltd., a Florida limited partnership and West Coast Tomato, LLC, a Florida limited liability, company, Defendants, Case No. 2:16-cv-00892-SPC-MRM (M.D. Fla., December 16, 2016), alleges that because of required convenience fees, foreign fees and other fees and surcharges associated with payroll debit cards, Plaintiffs do not receive their full pay in violation of the Migrant and Seasonal Agricultural Worker Protection Act, and the Electronic Fund Transfer Act. The Plaintiffs are current or former farm labor employees who plant, prune and harvest commercially grown tomatoes for the Defendant. The Plaintiffs are represented by: Jose J. Rodriguez, Esq. KELLEY UUSTAL, PLC 500 North Federal Highway, Suite 200 Fort Lauderdale, FL 33301 Phone: (954) 522-6601 Fax: (954) 522-6608 E-mail: jjr@kulaw.com MICHIGAN: Court Refuses to Certify Class in "Cavin" Suit -------------------------------------------------------- The Hon. Bernard A. Friedman denied the Plaintiff's motion for class certification under Rule 23(a) of the Federal Rules of Civil Procedure filed in the lawsuit styled MARIO CAVIN v. DAVID LEACH, et al., Case No. 2:15-cv-14449-BAF-SDD (E.D. Mich.). David Leach is an officer or employee of the Michigan Department of Corrections. According to the Court's opinion and order, Rule 23(a)(4) states that the Court may only certify a class if "the representative parties will fairly and adequately protect the interests of the class." "[N]on-attorneys proceeding pro se cannot adequately represent a class," Ziegler v. State of Michigan, 90 F. App'x 808, 810 (6th Cir. 2004). "Because plaintiff is not an attorney and is proceeding pro se, his motion to certify is denied," Judge Friedman ruled. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=MfeQxdqk MONAKER GROUP: Faruqi & Faruqi Files Class Action Lawsuit --------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, reminds investors in Monaker Group, Inc. of the February 10, 2017 deadline to seek the role of lead plaintiff in a federal securities class action lawsuit filed against the Company and certain officers. The lawsuit has been filed in the U.S. District Court for the Southern District of Florida on behalf of all those who purchased Monaker stock or options between April 6, 2012 and June 23, 2016 (the "Class Period"). The case, McCleod v. Monaker Group, Inc. et al, No. 16-cv-62902 was filed on December 9, 2016, and has been assigned to Judge William J. Zloch. The lawsuit focuses on whether the Company and its executives violated federal securities laws by failing to disclose that some Monaker executives were involved in secretly transferring funds to a separate company controlled by these executives. Specifically, on June 23, 2016, Monaker filed a 10-K announcing that it would have to restate its financial statements released during the Class Period, claiming that Monaker had paid up to $11.1M of Monaker's funds to support the operations of an entirely separate public company -- RealBiz Media Group, Inc. -- that had been, until recently, controlled by several Monaker executives. The 10-K states that the fund transfers were done without any consideration in return. Take Action If you invested in purchased Monaker stock or options between April 6, 2012 and June 23, 2016 and would like to discuss your legal rights, visit www.faruqilaw.com/MKGI. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to -- rgonnello@faruqilaw.com -- Faruqi & Faruqi, LLP also encourages anyone with information regarding Monaker's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class that is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. NEW SEABURY: Suit Over Annual Dues Remains Pending -------------------------------------------------- Sam Houghton of Mashpee News reports that members of the New Seabury community received news that their annual dues will increase across the board again, for some as high as 45 percent. Paul M. Kruzel, general manager of the Club at New Seabury, issued a letter to members on Friday, December 9, explaining that as of January 1, members across the spectrum of membership will pay an additional $2,250 for their annual dues. For members in the Silver membership, for seniors, their annual dues will increase 45 percent from $5,000. "Much has been done in 2016 to enhance services for our members," the letter states. "However, there is still more to be done." The higher fees confirm fears voiced last year when the club unfolded a new membership system, that nothing would stop the owners from increasing the annual dues yearly. The dispute began last year when the club management attempted to bring clarity to the older membership structure, which included about 30 different membership categories. Each category allowed members access to different amenities at the club such as the beach, golf courses, tennis, and dining. The reorganization led to two separate lawsuits, one a class action lawsuit that remains open with a hearing scheduled for January. The other ended in a settlement. Many of the membership annual dues increased 20 to 30 percent from the reorganization. At a general membership meeting held last year to explain the membership reorganization, several members asked what would stop the management company from increasing their dues on an annual basis. Plaintiffs made up of New Seabury members filed a class action lawsuit under the Consumer Protection Act in July, arguing that New Seabury Properties coerced members out of their old membership, thus forfeiting parts of their contractual rights. The plaintiffs filed an argument against New Seabury's motion to dismiss on December 7, continuing to claim they were coerced and that New Seabury acted out of bad faith. Judge Robert C. Rufo scheduled a hearing for January 3, 2017. New Seabury members said this week that the rate increases this year are another indication of a poorly run club. The members spoke on anonymity for fear of punitive action from management. A section in the memberhip rules and regulations handbook states that any actions that could "endanger" the "good reputation of the Club" could result in suspension or termination of membership. NEWCREST: Court Can Reduce Settlement Funding Commission -------------------------------------------------------- Robert Johnston, Esq. -- robert.johnston@jws.com.au -- of Johnson Winter & Slattery, in an article for Lexology, reports that in a judgment handed down on Dec. 12 in the Newcrest matter, Justice Murphy (formerly of Maurice Blackburn) again ventures in to new territory in class action law this time stating that in his view the Court can review and potentially lower the actual funders commissions to be deducted from settlements in approving class action settlements which are otherwise fair and reasonable. In his last outing as part of the majority in the QBE case, where the Full Federal Court approved a common fund application (that is, all class members were required to pay a funders commission even if they had not agreed to do so, Murphy J said then that the Court could review and reduce the funders commission at the end of the case where a common fund order was sought. In the Newcrest case, Murphy J now goes further and, in the context of considering an application for Court approval of a settlement, his Honour set about opining on the power he considered the Court had to review and reduce the funders commission if it thought it was unreasonable or excessive even where the proposed settlement was otherwise fair and reasonable. There was much opposition to the concept of the Court doing anything more than approving or rejecting the proposed settlement and of the Court unilaterally interfering with the contractual terms agreed between the class member and the funder and no other case had resolved this issue. However, Murphy J would have none of this stating that: ". . . if in a settlement approval application the Court considers the proposed settlement is fair and reasonable except that the funding commission is excessive or exorbitant, the Court has power to approve the settlement and reduce the funding commission to be deducted pursuant to the terms of the settlement. Having regard to ss 33V, 33ZF(1), 33Z(1)(g) and 23 I do not accept that the Court's powers are limited to a binary choice between approving or rejecting the proposed settlement. In such circumstances it may be "just", "appropriate", or "appropriate or necessary to ensure that justice is done in the proceeding" that the Court make orders approving the settlement but reducing the funding commission to be deducted under the settlement." Murphy J also emphatically rejected the notion that even if the Court reduced the commission to be deducted from the settlement sum, the funder could simply turn around and collect the difference from the funded class members under the terms of the funding contracts warning that if this is what a commercial third party funder sought to do and deny they are bound by orders made in the proceedings, "the Court could move to require that funders undertake to do so before class actions are permitted to continue." In considering the Court's power to reduce the funders' commission to be deducted from the settlement sum, Murphy J said, amongst other matters, that it was not unlike the Court's powers to reduce the amount in legal fees charged by the claimants lawyers. In determining whether the funders' % in this case was unreasonable or excessive, Murphy J set out in some detail research on "market rates" charged by funders. This part of the judgment provides a wealth of information about the commissions funders have been charging. Murphy J then concluded that the % in this case of between 26% and 30% was probably at the low end of what one could expect given the risks, complexity and costs in the matter. The judgment, whilst allowing Murphy J another platform to shape the class action landscape, does contain good summaries of certain aspects of the law around the reasonableness of settlements and of funding commissions. In this case, only about 4,400 shareholders out of probably over 80,000 shareholders made up the class, the matter was settled for only $36M, which was much lower than the claimants had expected, it was settled a week before trial in a fiercely contested defence, the lawyers charged $10.7M and the funder $6.8M leaving a little less than 50% for the class members. In all the circumstances, the settlement was approved including the funders commission. This makes two very recent decision in a row for Murphy J which on the one hand have created a more favourable landscape for funders but on the other hand warns of the Court's powers to scrutinise their commissions charged and reduce them if considered unreasonable or excessive. PARALIA CORP: Lopez et al. Allege FLSA, NY Labor Law Violations --------------------------------------------------------------- PORFIRIO LOPEZ, PEDRO CANDELARIO TORRES, MARINO CUANUTENCOS, MIRYM UDY, RUPERTO EMIGDIO, JOSE ANGEL LOPEZ, ESTEBAN TOSHUA, and FELIPE CRUZ, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. PARALIA CORPORATION d/b/a DEL RIO DINER, BENSONHURST REST. CORP. d/b/a VEGAS DINER, THEODOROS VLAMIS, LARRY GEORGETON, DEMETRIOS "JAMES" VLAMIS, and FRANK MAVROMICHALIS, Jointly and Severally, Defendants, Case No. 1:16-cv-06973 (E.D.N.Y., December 16, 2016), seeks to recover alleged unpaid minimum wages and overtime premium pay owed to them pursuant to both the Fair Labor Standards Act, and the New York Labor Law. The case also alleges that Plaintiffs were not provided ninety (90) days advanced written notice of their terminations by Defendants, as required by the New York State Worker Adjustment and Retraining Notification Act. PARALIA CORP. is a restaurant. The Plaintiffs are represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Phone: (212) 385-9700 Web site: http://www.PeltonGraham.com E-mail: Pelton@PeltonGraham.com Graham@PeltonGraham.com PRUDENTIAL FINANCIAL: Faces Class Action Over Wells Fargo Fraud --------------------------------------------------------------- Tara Jeffries, writing for Morning Consult, reports that Prudential Financial Inc. is facing a class action lawsuit in the latest legal action linking the insurer to Wells Fargo & Co.'s high-profile consumer fraud scandal. The lawsuit, filed on Dec. 12 by a trio of law firms in the U.S. District Court for the District of New Jersey, says Prudential worked with Wells Fargo to sign up low-income customers for life insurance policies without their knowledge. The complaint alleges that the San Francisco-based lender worked in tandem with Prudential to register customers unknowingly for the MyTerm life insurance program, withdraw fees from customers' Wells Fargo accounts and stonewall inquiries to Prudential's customer service line about unwanted accounts. The action follows a wrongful termination suit filed on Dec. 6 by three former Prudential employees who say the company fired them after they brought attention to the alleged fraud. Prudential is set to suspend its insurance policy sales partnership with the bank, The Wall Street Journal reported on Dec. 12. Representatives from Prudential and Wells Fargo did not immediately respond to requests for comment. Q CLUB: Suit Over Condo-Hotel Fees Obtains Class-Action Status -------------------------------------------------------------- Paul Owers, writing for Sun Sentinel, reports that a federal judge has granted certification for a class action case involving shared costs at the Hilton Fort Lauderdale Beach Resort. Plaintiff Gary Dear has sued owner Q Club Hotel LLC, alleging that the company is charging unit owners fees that aren't authorized by the governing documents. The suit says costs have increased by millions of dollars during the past two years at the 333-room condominium-hotel. Matt Weissing, lead counsel for the class, said one example is that owners weren't previously being charged for the valet operation. Now they pay 40 percent of the cost without getting any of the profits, he said. "That's inherently unfair," Mr. Weissing said. A trial is scheduled for May 22 before U.S. District Judge James Cohn in Fort Lauderdale. The class, which includes more than 450 current and former owners, is seeking more than $10 million in damages. Mr. Weissing said Cohn's certification "empowers this group of owners to act in concert for all of their mutual best interests." Larry Litow, attorney for Q Club Hotel, said the suit is based on a "complete misunderstanding of the financial flow of the project. All of the charges are 100 percent legitimate." The resort is at 505 N. Fort Lauderdale Beach Blvd. The vast majority of the owners rent to other parties through a management program with Hilton, Mr. Weissing said. RCI HOSPITALITY: Faces "Garvin" Suit Seeking OT Pay Under FLSA -------------------------------------------------------------- LEEZA GARVIN, individually, JENELL FARNSWORTH, individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. RCI HOSPITALITY HOLDINGS, INC., MIAMI GARDENS SQUARE ONE, INC. d/b/a TOOTSIE'S CABARET, and ERIC LANGAN, individually, Defendants, Case No. 1:16-cv-25221-DPG (S.D. Fla., December 16, 2016), alleges that Defendants violates the Fair Labor Standards Act, which requires non-exempt employees, such as Plaintiffs, to be compensated for their overtime work at a rate of one and one-half times their regular rate of pay. TOOTSIE'S CABARET is an adult entertainment club. The Plaintiff is represented by: Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Phone: (954) 318-0268 Fax: (954) 327-3013 E-mail: afrisch@forthepeople.com RENAISSANCE HOME: Faces "Hunt" Suit Under FLSA, Ohio Wage Act ------------------------------------------------------------- ARIS HUNT, on behalf of herself and all other similarly situated employees, 25551 N. Lakeland Blvd, #106, Euclid, OH 44132, Plaintiff, v. RENAISSANCE HOME HEALTH CARE c/o Its Registered Agent Patricia Eady 5311 Northfield Rd, #212 Bedford Heights, OH 4146 and PATRICIA EADY, 5311 Northfield Rd, #212, Bedford Heights, OH 44146 and JOHN DOE(S) Unknown Principal of Renaissance Home Health Care, 5311 Northfield Rd, #212 Bedford Heights, OH 44146, Defendants, Case No. 1:16-cv-03012 (N.D. Ohio, December 16, 2016), seeks damages and other relief relating to alleged violations of the Fair Labor Standards Act and the Ohio Minimum Wage Standards Act. RENAISSANCE HOME HEALTH CARE provides health and recovery services including therapies, medication assistance, and other helpful procedures. The Plaintiff is represented by: Ronald I. Frederick, Esq. Michael L. Berler, Esq. FREDERICK & BERLER LLC 767 E. 185th Street Cleveland, OH 44119 Phone: (216) 502-1055 Fax: (216) 566-9400 E-mail: ronf@clevelandconsumerlaw.com mikeb@clevelandconsumerlaw.com RIO TINTO: February 10 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Dec. 13 announced the filing of a class action lawsuit on behalf of purchasers of Rio Tinto plc securities (RIO) from March 16, 2012 and November 14, 2016, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Rio Tinto investors under the federal securities laws. To join the Rio Tinto class action, go to http://rosenlegal.com/cases-998.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, throughout the Class Period defendants issued materially false and misleading statements to investors and/or failed to disclose that: (1) Rio Tinto violated anti- corruption laws in connection with its operations with respect to the Simandou project; (2) the foregoing violations would expose Rio Tinto to significant scrutiny and large fines; and (3) as a result of the foregoing, Rio Tinto's 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 February 10, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://rosenlegal.com/cases-998.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767- 3653 or via e-mail 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. ROGER SKIMMING: Law Firm Launches Scotsburn Bushfire Class Action ----------------------------------------------------------------- Alex Sampson, writing for The Weekly Times, reports that a class action has been launched on behalf of residents affected by last year's Scotsburn bushfire. Maddens Lawyers issued the action and said Scotsburn residents looking to claim compensation for losses that had not been covered by insurance were encouraged to register to be part of the class action. The fire burnt more than 4000ha and razed 12 houses on December 19 at Scotsburn, south of Ballarat. Maddens is the law firm that led four Black Saturday bushfire class actions. Senior partner and bushfire compensation expert Brendan Pendergast said his firm, which had successfully settled several bushfire- related class actions on behalf of hundreds of fire victims, was confident those who lost property in last year's fire had a strong case for compensation. In October Scotsburn resident Roger Skimming pleaded guilty to a charge of failing to carry required firefighting equipment when he was slashing his paddocks, causing the fire to start. He was convicted and fined $1550 with $79.50 costs at Ballarat Magistrates Court. SARASOTA COUNTY: Leo Seeks to Certify School Bus Drivers Class -------------------------------------------------------------- The Plaintiffs in the lawsuit styled SUSAN LEO, ROBERT BIEGEL, THERESA JONES, LUIS MORALES, BONNIE CHRISTIE, ANDREW GAMMILL, PAUL NAUGLE, RONALD SEEKFORD, and SHEILA SEEKFORD, on behalf of themselves and others similarly situated v. SARASOTA COUNTY SCHOOL BOARD, Case No. 8:16-cv-03190-JSM-TGW (M.D. Fla.), seek the entry of an order permitting under Court supervision notice to employees and former employees of their opt-in rights. The Plaintiffs are also seeking conditional certification of a collective action for all school bus drivers employed by Defendant. The representative class consists of school bus drivers, who did not receive time and a half for all of their overtime hours worked. The Plaintiffs ask for an order permitting and supervising notice to the Defendant's current and former school bus drivers, who worked one or more weeks during the three years from the filing of the complaint. The action alleges overtime violations under the Fair Labor Standards Act of 1938. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FEn3h4mH The Plaintiffs are represented by: Jay P. Lechner, Esq. Jason M. Melton, Esq. WHITTEL & MELTON, LLC One Progress Plaza 200 Central Avenue, #400 St. Petersburg, FL 33701 Telephone: (727) 822-1111 Facsimile: (727) 898-2001 E-mail: lechnerj@theFLlawfirm.com shelley@theFLlawfirm.com SHOP VAC CORP: Wet-Dry Vacuum Settlement Obtains Final Approval --------------------------------------------------------------- John Beauge, writing for PennLive, reports that a federal judge has rejected three objections and given final approval to a nationwide settlement of multiple federal class-action lawsuits that claimed popular Shop Vac Corp wet-dry vacuums do not live up to their advertised specifications. U.S. Middle District Judge Yvette Kane on Dec. 9 also awarded $5,000 to each of four named plaintiffs in Florida, Missouri, California and Illinois along with $4.25 million in legal fees. She noted 1,165,149 individuals received notice of the proposed settlement, only three objected and no one appeared at a September fairness hearing in Harrisburg. The settlement approval releases Shop Vac from claims in a parallel class-action suit in New Jersey in which action had been stayed pending the outcome of the federal litigation. In reaching the settlement through mediation, Shop Vac did not admit any liability. Terms of the settlement include Shop Vac agreeing to a two-year extension of its warranty on the motors of the vacuums. It also agreed to change how it refers to peak horsepower on marketing materials and alter what the plaintiffs claimed is misleading information about the canister size measurement. A previously filed court document stated the parties estimate the retail value of the extended warranties is "well into the millions of dollars." The settlement covered those who purchased or acquired a wet-dry vacuum since Jan. 1, 2006. Shop Vac, which is headquartered in Williamsport, denied the allegations and claimed no customers were deceived. A plaintiff's expert concluded based on tests he conducted the vacuums were incapable of reaching even half their advertised peak horsepower and the automatic shutoff feature causes them to stop working when the tanks reached between 47 and 83 percent of capacity. The original suit was filed in 2012 with a consolidated complaint following in 2013. SIRIUS XM: Obtains Favorable Ruling in Copyright Legal Dispute -------------------------------------------------------------- David Klepper, writing for The Associated Press, reports that radio stations don't have to get permission -- or pay compensation -- to the owners of old music recordings in order to play the recordings, the state's highest court ruled on Dec. 20 in an ongoing legal dispute between Sirius XM Radio and the owners of The Turtle's 1967 hit "Happy Together." The Court of Appeals determined that New York common law does not recognize a "public performance right" that would enable the owners of old records to require radio stations to seek permission or render payment before playing the music. At issue in the case is recordings made before 1972, when new federal copyright laws went into effect. Flo & Eddie Inc., a company owned by two of The Turtles' founding members, sued Sirius in federal court for copyright infringement, arguing that its rights were violated when Sirius plays The Turtle's pre-1972 songs without permission or compensation. Because the suit involved questions about state law, it spawned legal contests in New York, as well as in Florida and California. According to the New York decision, written by Judge Leslie Stein, there is no state law establishing such a right. Judge Stein also noted that record companies and artists have long "had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales." Daniel Petrocelli, the attorney for Sirius, said the lawsuit "was simply an effort by record companies to extract more money, beyond what they receive when people buy or download their music." The Dec. 20 decision resolves one piece of the much larger legal dispute over the rights of record owners. An attorney for Flo & Eddie Inc. said he is hopeful the suit will ultimately prevail. "The good fight to protect artist's rights rages on," said attorney Henry Gradstein in a statement. SMITH GUARD: "Bailey" Suit Seeks Overtime Pay --------------------------------------------- Kamela Bailey, on behalf of herself and all others similarly situated, Plaintiff, v. Smith Guard, Inc., Defendant, Case No. 1:16-cv-04599 (N.D. Ga., December 14, 2016), seeks unpaid wages, liquidated damages, pre-judgment interest on unpaid wages, court costs, expert witness fees and reasonable attorneys' fees pursuant to the Fair Labor Standards Act. Plaintiff was employed by Defendant as a security guard. She worked more than forty hours but was not paid the overtime wage differential. The Plaintiff is represented by: V. Severin Roberts, Esq. BARRETT & FARAHANY 1100 Peachtree Street, Suite 500 Atlanta, GA 30309 Tel: (404) 214-0120 Fax: (404) 214-0125 SP AUSNET: Angry Bushfire Victims Throw Questions at Attorney ------------------------------------------------------------- Pia Akerman, writing for The Australian, reports that as Christmas approaches, there is finally some good news for residents of Kinglake, Marysville and the other hamlets engulfed by Victoria's infamous Black Saturday bushfires. Seven years after their homes were destroyed and two years after they were awarded settlements of nearly $800 million in two historic class actions, some money is at last on its way. Unfortunately, the key word is some. The optimism and joy the victims of the 2009 Kilmore East-Kinglake and Murrindindi- Marysville firestorms experienced as they were awarded the settlements of $494m and $300m respectively in 2014 and last year have turned into disappointment and recriminations against the entity that made it all possible, law firm Maurice Blackburn. The payments (plus millions earned in interest) have shrunk by close to $100m, eroded by legal costs and Maurice Blackburn's administration fees, while accusations of incompetence ring out as the firm battles the Australian Taxation Office over a tax bill on interest payments. It has turned some victims of Australia's worst bushfires against the lawyers who championed their fight. As a seasoned litigator and principal at Maurice Blackburn, Andrew Watson is usually at ease in the courtroom and takes prime position at the bar table. But sitting in the witness box, sworn on oath to answer questions truthfully, is an uncommon experience for him as is fielding questions fired at him by angry Black Saturday victims, accusing Mr. Watson and his firm of bungling them out of millions of dollars. Once lauded as a hero for landing a record-breaking class action settlement, Mr. Watson and his firm now face claims of failing to do due diligence and letting down survivors. Denis Spooner -- who lost his wife, son and Strathewen home in the February 2009 bushfire -- didn't hold back when he had his chance to question Mr. Watson in the Victorian Supreme Court last month during a case management conference. He asked why Maurice Blackburn had not worked more closely with the ATO. "I won't say negligent but it's bordering on it," Mr. Spooner told Mr. Watson, who is also a Maurice Blackburn company director. "(You) did not take due diligence in attending to that matter, in speaking to the taxation department a lot earlier." Mr. Watson replied that Mr. Spooner was confused about the different tax arrangements for the scheme and its claimants. He has foreshadowed taking the ATO to court to challenge the $20m tax bill, suggesting Maurice Blackburn may pick up the tab for the accompanying legal costs -- but not the tax liability itself. The firm's equity partners received more than $16m in dividends in 2014-15 as the class actions settled. Their latest dividend payments are yet to be revealed in financial reports filed with the Australian Securities & Investments Commission. While Mr. Watson was on the stand, federal government MP Sarah Henderson was unloading in Canberra, attacking Maurice Blackburn for its apparent "incompetence" in handling the class actions. She calling for the legal giant to accept responsibility for the tax bill and stop charging bushfire victims for its work. "This $20m tax bill is a kick in the guts for Black Saturday victims," Ms. Henderson told parliament, describing it as "a remarkable case of incompetence". "Rather than threaten the ATO with legal action, Maurice Blackburn must own up to its mistake, take responsibility for paying this tax bill and urgently provide these bushfire victims the payout they were promised so long ago. "There is growing evidence that this plaintiff law firm does not have the capacity or skill to manage such large-scale class action litigation." Class action litigation in Australia is yet to reach the size of multi-billion-dollar settlements awarded in US cases but nevertheless represents a growing industry, fuelled by hungry commercial litigation funders. Maurice Blackburn has played the starring role to date, boasting it is the only Australian law firm to have settled shareholder class actions with sums of more than $100m. It is running the class action against the Queensland government, Seqwater and SunWater in relation to the 2011 floods and the role of Wivenhoe and Somerset dams. The case will be Australia's second largest after the Black Saturday cases and is scheduled for the trial to start next October unless a settlement is reached. Other recent significant cases include the battle against the banks over late credit card payment fees, which ultimately failed in the High Court, and a continuing action against one of its main competitors, Slater & Gordon, for allegedly misleading shareholders about its financial performance. In the US, administrators who are third parties are often engaged at much lower cost to manage schemes after the class actions have been settled by lawyers. The thousands who joined Maurice Blackburn's bushfire class actions are told to expect as little as 30 per cent for economic loss property damage claims in the Kilmore case (higher for the smaller Murrindindi settlement) and just under 65 per cent of their assessed losses for personal injury and dependency claims slightly less than originally suggested by the firm in some correspondence. While the bushfire survivors are anxious to see their compensation delivered as soon as possible, many are shocked by news of a bill from the ATO for as much as $20m on the settlements' interest -- a bill Maurice Blackburn admits caught it by surprise. The ATO publicly laid the blame for the liability at the law firm's feet, saying the tax arose only because of the way Maurice Blackburn established the scheme. "In other instances of compensation payments, representatives for injured parties involved have either worked with the ATO upfront or otherwise established arrangements in a manner which ensures the compensation fund would avoid any adverse tax outcomes such as tax payable on interest etc," an ATO spokesman tells The Australian. "We are not aware of why this was not undertaken in this case." Supreme Court judge Jack Forrest, who oversaw the Kilmore East trial and settlement process, noted the angst among class action members in a decision recently published. "It is not surprising that some group members have raised legitimate concerns about costs of the administration of the SDS (settlement distribution scheme)," he said. "In total, the scheme administrator (Maurice Blackburn) will have been paid slightly over $29m for managing the SDS." Clayton Utz partner Greg Williams, who specialises in class actions, tells The Australian the scale and complexity of the Victorian bushfire cases throws up challenges that will serve as a warning to other firms. "It is a monumental under?taking," he says. "Will there be lessons learned out of it? I've no doubt there will be." He says it is understandable that Maurice Blackburn was imbued with optimism when the settlement was reached, telling group members to expect their payments within 12 to 18 months. In fact the long laborious process eventually forced the firm to issue incentive bonuses to barristers who were lagging on their commitments to assess claims for personal injury and the deaths of family members. "In an ideal world -- or perhaps even a reasonable one -- this would not need to have been done," Judge Forrest said. The court accepted the assessment of Melbourne costs lawyer John White, who was appointed by Judge Forrest to audit Maurice Blackburn's costs. Mr. White, who used a sampling process to examine about every 10th page in more than 4000 pages of costs compiled by the firm, concluded Maurice Blackburn had charged appropriate fees to handle the settlement. Mr. White's final report and court orders issued in the past fortnight have cleared the way for people who suffered personal injury to receive their first payments by Christmas, months after Maurice Blackburn began receiving more than $100m for its costs in running the case and administering the settlement scheme. People who suffered property losses are due to receive their payments early next year. To prevent an 11th-hour delay to the distribution, Maurice Blackburn was authorised by Judge Forrest and fellow judge John Dixon to withhold about $22m to meet the potential tax liability. The firm rejects the ATO's claim that its scheme arrangements triggered the liability. Mr. Watson told the court that Maurice Blackburn followed the tax-effective formula used in previous class action settlements. Affidavits sworn by Mr. Watson during the past 18 months show the issue was live and contentious. In June last year, the solicitor said he was seeking advice from Maurice Blackburn's tax advisers, Pitcher Partners, on whether the interest income was assessable for tax. Pitcher Partners, who previously had advised Maurice Blackburn on the Centro, National Australia Bank and Bonsoy class actions, advised engaging further with the ATO, warning that interest derived after the settlement approval judgment could be treated as assessable. In March the accountants informed Maurice Blackburn that an ATO informal review was unfavourable, finding interest was assessable. Mr. Watson quickly sought alternative advice, retaining PricewaterhouseCoopers to further engage with the tax office on an "informal" basis. Vicki Ruhr, who lost her Kinglake home and was injured in the bushfire, told the court the firm should have initiated discussions with the ATO as soon as the Kilmore settlement was approved in December 2014 instead of waiting until June last year. "It would have been common sense," she said. "I am calling it a fiasco because that's how I see it personally." Ms. Ruhr, Spooner and Yarra Valley survivor Norman Archibald have now written to Malcolm Turnbull and Attorney-General George Brandis, seeking the government's support. Judge Forrest said the questions raised by Mr. Spooner and Ms. Ruhr were relevant and had assisted his understanding of the settlement's management, but he regretted the acrimonious relationship that developed between Maurice Blackburn and its former clients. "The only thing everybody is unanimous about is the need to get the settlement funds out as soon as possible," he said. "It is not the court's role to monitor every decision made by the scheme administrator . . . I am satisfied that the administration of the SDS has been both reasonable and efficient." The Kilmore East bushfire killed 119 people, destroyed 1242 homes, damaged a further 1084 homes and burned more than 125,000ha of land. The Murrindindi fire claimed 40 lives and destroyed more than 500 homes. Kilmore East lead plaintiff Carol Matthews, who lost her son and St Andrews home in the bushfire, does not take issue with Maurice Blackburn's handling of the case. She tells The Australian she was reassured by White's opinion that the settlement was administered properly and the costs were reasonable. Archibald is one of the group members who takes a different view. Like Matthews and all the other claimants who spoke to The Australian, he wants the money to circulate to victims as swiftly as possible. "I got out with my wallet and my dog," says Archibald, who lost his Yarra Valley property. "It's not (about) the money, it's the people involved." He hopes people learn from this class action and carefully consider whether to join future actions eagerly promoted by lawyers promising justice. "They can walk away with millions of dollars and we get next to nothing." SPRING COMMUNICATIONS: "Harrison" Suit Alleges FLSA Violations -------------------------------------------------------------- LANEKEQUA HARRISON and TROY YOST, Individually and on behalf of all others similarly situated, Plaintiff v. SPRING COMMUNICATIONS HOLDING, INC. d/b/a SPRING MOBILE, Defendant, Case No. 1:16-cv- 09678 (S.D.N.Y., December 15, 2016), seeks to recover overtime compensation for violation of the Fair Labor Standards Act. SPRING COMMUNICATIONS HOLDING, INC. operates AT&T branded wireless retail stores across the United States, including in New York, Washington, California, Texas, and Florida. From these store locations, Defendant sells AT&T wireless phones, other mobile devices, wireless and data plans, and accessories. The Plaintiffs are represented by: Michael J. Palitz, Esq. SHAVITZ LAW GROUP, P.A. 830 3rd Avenue, 5th Floor New York, NY 10022 Phone: (800) 616-4000 Fax: (561) 447-8831 - and - Gregg I. Shavitz, Esq. Camar R. Jones, Esq. SHAVITZ LAW GROUP, P.A. 1515 South Federal Highway, Suite 404 Boca Raton, FL 33432 Phone: (561) 447-8888 Fax: (561) 447-8831 SPRINGFIELD, MA: Judge Rejects Suit vs. School District ------------------------------------------------------- Peter Goonan of Mass Live reports that U.S. District Court Judge Mark G. Mastroianni issued a ruling December 16 that rejects a class action suit against the city and School Department that sought to end a public day school program for students with mental health issues. The ruling was praised by school officials who called it a "vindication" of the public day school program. City and school officials denied the students were being improperly segregated from the regular classrooms and defended the programs and services being provided in the day school program. "It's a significant win not just for the district but for all public schools in Massachusetts and their special education students," said Melinda Phelps, a lawyer representing the School Department. "It's a vindication for the hard work day in and day out of the Springfield Public School Program." School Committee Vice-Chairman Christopher Collins agreed, saying it upholds the Springfield approach and the people providing services from the principals down to the counselors and teachers. The civil suit was initially filed by a parent of a teen with mental health issues, with the student identified in the suit as S.S. It was filed on his behalf and "other similarly situated students" and by the Parent/Professional Advocacy League and the Disability Law Center. The motion for "Class Certification" was denied by Mr. Mastroianni in a ruling. City lawyers including City Solicitor Edward Pikula "vigorously disputed" claims by the plaintiffs that students attending the public day schools "are not only segregated from nondisabled students, but also receive educational services that are demonstrably inferior to those offered at neighborhood schools, are unable to access extracurricular activities available in neighborhood schools, and are subjected to dangerously punitive discipline." Mr. Pikula, in arguments before Mr. Mastroianni, said the plaintiffs had essentially repurposed a claim after it was rejected by a state board of special education appeals. In addition, Mr. Pikula said a judge in that forum ruled the city had accommodated "S.S" and developed an individual education plan that was "the least restrictive" according to 2015 hearing. Mr. Mastroianni, in summarizing the case, said that approximately 1 percent of the students in the Springfield public schools are placed in the public day schools at the elementary, middle and high school levels. A total of 246 students were in the program as of May 1, 2016. The American With Disabilities Act bars public entities from discriminating against a "qualified individual with a disability," or excluding them from participation or denying them from the benefits and services of a public entity, the summary stated. Protections are also provided in the Individuals with Disabilities in Education Act (IDEA), he said. In the class certification sought, however, not all members of the suit had exhausted the process for administrative remedies provided under IDEA guidelines, Mr. Mastroianni said. "The exhaustion requirement provides one basis for denying Plaintiffs' Motion for Class Certification," Mr. Mastronianni said. "Some of the same concerns that lead the court to that decision also demonstrate that Plaintiffs have not met their burden to establish the elements required for class certification." Mr. Mastroianni also cited a statute that a class action suit is an "exception to the usual rule" of individual litigation. The exception is justified "only when there is a class representative who is part of the class and shares the same interest and injury as other class members," he said. The plaintiffs were not able to meet that burden, he said. The lawsuit had sought to restructure special education for children with mental illnesses to school-based behavioral services. The court ruling said there was "insufficient evidence" that such school-based behavioral services "could provide a single remedy applicable to the whole class." "Even if these services could, in theory, provide a universally positive outcome, the diversity of the circumstances affecting members of the proposed class will create a myriad of unique challenges that will have to be overcome on a study by student basis in order to implement each of these entwined services," Mastroianni said. STEPHEN JAMES: Judge Certifies Medical Negligence Class Action -------------------------------------------------------------- Tom Blackwell, writing for National Post, reports that in what's being touted as a first in class-action law, a judge decided there was no need for a trial to rule that a Toronto pain doctor's negligence caused serious, debilitating infections in at least six of his patients. Justice Paul Perell certified a class action lawsuit against Dr. Stephen James and his clinic, meaning the case can move ahead toward trial or settlement. Then he went further, issuing a summary judgment -- one without a full hearing -- against the physician. He found that Dr. James had failed in his duty of care to the patients by following sub-standard infection-control procedures around the pain injections. And it is already clear some were infected by the doctor -- who carried the same bacteria himself, said Justice Perell in a written ruling. Paul Harte, the lawyer spearheading the suit, said he is unaware of any other Canadian class action in which a summary judgment has been issued against defendants, who are usually given at least the chance to argue their case at trial. That's a victory, he said, for medical-malpractice plaintiffs used to the "scorched-earth" tactics of the Canadian Medical Protective Association, a largely taxpayer-funded body that gives doctors legal representation. "This is really an important example of the court offering timely and efficient justice," said Mr. Harte. "These cases are too often vigorously defended by the doctors and at significant public expense. This was one of those cases that cried out for an expedited court proceeding. We had an extensive public-health investigation, which came to clear and unambiguous conclusions." Dr. James' lawyer could not immediately be reached for comment. The case revolves around an outbreak at the Rothbart Centre for Pain Care in late 2012 that left several people gravely ill. Over a three-month period, five of Dr. James' epidural-injection patients suffered meningitis -- a dangerous inflammation of the membranes around the spinal cord and brain -- three developed epidural abscesses and one a blood infection, an investigation by the Toronto public health department concluded. The lead plaintiff in the suit, Anne Levac, told the Toronto Star she suffered a spinal abscess, leading to permanent nerve damage, and is now bladder and bowel incontinent. Other patients have similar, long-term problems, and some even appear to be suffering from cognitive impairment, said Harte. Half a dozen were infected with staphylococcus aureus bacteria of the same genetic makeup as bacteria the doctor himself carried, so it's possible to say he caused those infections, the judge said. Their trial would only consider how much in damages he must pay. For the other three, his negligence at least had the capacity to have made them sick, Justice Perell said. The trial would determine whether he did, in fact, cause their illness. The class action also includes a handful of other patients of James who allege they contracted similar infections. Toronto public health officials audited Dr. James' practices and found a number of infection-control deficiencies. Among them were the fact surfaces in Dr. James' procedure room were cleaned with low-level disinfectant only once a week, the doctor used gloves too big for his hands, he failed to properly pinch the nose piece on his face mask, did not disinfect his hands properly, and used non-sterile gauze -- or even baby wipes -- to clean wounds after injections. Last year, James was handed a 10-month suspension by the College of Physicians and Surgeons of Ontario, which said his lack of appropriate care for the patients was "simply unacceptable." Though the CMPA argues it will quickly wrap up malpractice cases where it's clear the physician did wrong, the group's lawyers "vigorously" defended the James case in the face of exceptionally compelling evidence, Mr. Harte charged. STONEMOR PARTNERS: Jan. 20 Lead Plaintiff Bid Deadline ------------------------------------------------------ The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of StoneMor Partners L.P. (NYSE:STON) between January 19, 2012 and October 27, 2016. You are hereby notified that a securities class action lawsuit has been commenced in the USDC for the Eastern District of Pennsylvania. To get more information go to: http://www.zlk.com/pslra/stonemor-partners 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 StoneMor made false and misleading statements and/or failed to disclose: (1) that the Company's reported non-GAAP financial metrics were materially misleading and concealed the truth about the Company's actual financial condition; and (2) that the primary purpose of the Company's regular debt and equity offerings were to pay distributions to unitholders, rather than to pay down indebtedness under the Company's revolving credit facility as publicly stated. If you suffered a loss in StoneMor you have until January 20, 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 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. Attorney advertising. Prior results do not guarantee similar outcomes. TRANSPORT FOR LONDON: Tram Crash Survivors File Class Action ------------------------------------------------------------ The Times reports that survivors of the Croydon tram disaster have launched legal action against the operator amid claims they have been left in the dark over the cause of the crash. Several victims are seeking compensation from Transport for London (TfL) and First Group, which run the tram network, over trauma and injuries from the incident. Irwin Mitchell, the injury law firm, has been instructed to investigate who was responsible for the crash and seek pay-outs to help victims cope with the aftermath. Seven people were killed and 51 were injured when the tram came off the tracks on a tight bend shortly after 6am on November 9. UBER TECHNOLOGIES: Faces Delux Cab Suit in S.D. of California ------------------------------------------------------------- A class action lawsuit has been filed against Uber Technologies, Inc. The case is styled as Delux Cab, LLC, doing business as: Nathan Cab, doing business as: SDC Delux Cab, doing business as: Lux Cab, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. Uber Technologies, Inc.; Uber USA, LLC; Rasier, LLC; and Rasier-CA, LLC, the Defendants, Case No. 3:16-cv-03057-CAB-JMA (S.D. Cal., Dec. 21, 2016). The case is assigned to Hon. Judge Cathy Ann Bencivengo. Uber provides a smartphone application that connects drivers with people who need a ride. The Plaintiff is represented by: Brian J Robbins, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525 3990 Facsimile: (619) 525 3991 E-mail: brobbins@robbinsarroyo.com UBER TECHNOLOGIES: Faces "McElrath" Suit in N.D. of California -------------------------------------------------------------- A class action lawsuit has been filed against Uber Technologies, Inc. The case is captioned as Lenza H McElrath, III, the Plaintiff, v. Uber Technologies, Inc., the Defendant, Case No. 4:16-cv-07241-KAW (N.D. Cal., Dec. 21, 2016). The case is assigned to Hon. Magistrate Judge Kandis A. Westmore. Uber is a smartphone application that connects drivers with people who need a ride. The Plaintiff is represented by: Randy Scott Erlewine, Esq. PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 39 Mesa Street, Suite 201 The Presidio San Francisco, CA 94129 Telephone: (415) 398 0900 Facsimile: (415) 398 0911 E-mail: rse@phillaw.com UNIVERSITY OF MIAMI: Faces "Gould" Suit Alleging ERISA Violations ----------------------------------------------------------------- KEITH GOULD, on behalf of himself and all others similarly situated, Plaintiff v. UNIVERSITY OF MIAMI, Defendant, Case No. 1:16-cv-25233-KMW (S.D. Fla., December 16, 2016), alleges breach of fiduciary duty by the University under the Employee Retirement Income Security by failing to provide Plaintiff and other members of the Class enrollment information and the opportunity to participate in the Plans. Defendant University of Miami is a not-for-profit corporation with its principal place of business at 1320 S. Dixie Highway, Suite 1200, Coral Gables, Florida. The University is the plan sponsor and a fiduciary for its qualified retirement and welfare benefit plans. The Plaintiff is represented by: Paolo C. Meireles, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Highway, Suite 404 Boca Raton, FL 33432 Phone: (561) 447-8888 Fax: (561) 447-8831 E-mail: gshavitz@shavitzlaw.com pmeireles@shavitzlaw.com - and - Stephen Churchill, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Phone: (617) 607-6230 Fax: (617) 488-2261 E-mail: steve@fairworklaw.com VALERO: Releases Statement on Contaminated Water Lawsuit -------------------------------------------------------- Kiiitv reports the latest statement from Valero regarding the class action lawsuit filed against them: "While we have been named in lawsuits, we are not the source of the contamination in question. We continue to believe this is a localized backflow issue from Ergon in the area of Valero's asphalt terminal. This issue is not related to Valero's Corpus Christi refineries. Valero is cooperating with the City, TCEQ, and EPA. Valero is offering its resources to assist in isolating the issue and helping to confirm the City's water supply is safe. In the interim, Valero is joining other companies to provide truckloads of bottled water to Corpus Christi." VIZIO INC: "Unice" Suit Moved from W.D. Pa. to C.D. California -------------------------------------------------------------- JAMES UNICE, on behalf of himself and all others similarly situated, the Plaintiff, v. Vizio Inc., the Defendant, Case No. 2:16-cv-01568, was transferred from the United States District Court for the Western District of Pennsylvania, to the United States District Court for the Central District of California (Western Division - Los Angeles). The California Central District Court Clerk assigned Case No. 2:16-cv-09367-RSWL-FFM to the proceeding. The Case is assigned to Hon. Judge Ronald S.W. Lew. Vizio is an American privately held company that develops consumer electronics. The Plaintiff is represented by: Jody B. Burton, Esq. LEMBERG LAW, LLC 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653 2250 Facsimile: (203) 653 3424 E-mail: jburton@lemberglaw.com VOLKSWAGEN AG: Judge Extends Emissions Deal Deadline ---------------------------------------------------- The Associated Press reports that a federal judge overseeing lawsuits stemming from Volkswagen's emissions cheating scandal has given attorneys for the government, company and car owners another extension to try to reach a deal for the remaining 80,000 polluting vehicles. U.S. District Court Judge Charles Breyer said on Dec. 19 that the negotiations were complicated with many details to be worked out. He granted the request for an extension to Dec. 20, though he cautioned that would be a "final" deadline. Judge Breyer had asked the parties to update him on a potential settlement on Dec. 19 after twice postponing a hearing on Dec. 16 to give them more time to negotiate. The talks aim to hammer out what to do with the 3-liter diesel cars that were programmed to skirt emissions tests. The German automaker previously reached a deal for 475,000 polluting 2-liter diesel vehicles. XEROX CORP: Howard G. Smith Reminds Investors of Deadline --------------------------------------------------------- Law Offices of Howard G. Smith reminds investors of the upcoming December 23, 2016 deadline to file a lead plaintiff motion in the class action filed on behalf of a class of investors who purchased Xerox Corporation securities between April 23, 2012 and October 23, 2015, inclusive. Xerox investors have until December 23, 2016 to file a lead plaintiff motion. According to the Complaint filed in this lawsuit, throughout the Class Period Defendants issued false and misleading statements to investors and/or failed to disclose that: (1) Xerox's existing Health Enterprise projects were experiencing major delays and cost overruns; (2) Xerox would be unable to deliver Health Enterprise implementations at sustainable profits; and (3) as a result, Xerox's positive statements about its business, operations and prospects lacked a reasonable basis. On October 26, 2015, Xerox disclosed disappointing third quarter 2015 financial results, citing lost revenues in its much-touted Health Enterprise segment, including from the termination of certain Health Enterprise projects in California and Montana. According to Xerox, the loss of these contracts would result in lower revenues in each of the next three quarters. Additionally, the Company announced plans for a strategic review of the Company's business portfolio. On this news, shares of Xerox fell to approximately $9 per share on October 27, 2015. If you purchased Xerox shares during the Class Period, you may move the Court no later than December 23, 2016 to request appointment as lead plaintiff. To be a member of the class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020 by telephone at (215) 638-4847, toll-free at (888) 638-4847, or by email to -- howardsmith@howardsmithlaw.com --, or visit our website at http://www.howardsmithlaw.com. YAHOO! INC: Faces "Gonzalez" Suit Over "Security Breach" -------------------------------------------------------- HECTOR M. DE AVILA GONZALEZ, individually and on behalf of all others similarly situated, Plaintiff, v. YAHOO! INC. Defendant, Case No. 5:16-cv-07206-HRL (N.D. Cal., December 16, 2016), was filed against Yahoo for its alleged failure to secure and safeguard its users' personally identifiable information such as users' names, email addresses, telephone numbers, dates of birth, passwords and, in some cases, security questions and answers, which Yahoo collected from its users, and for failing to provide timely, accurate, and adequate notice to Plaintiff and other Class members that their Private Information had been stolen and failing to provide timely, accurate and adequate notice of precisely what types of information were stolen. Yahoo Inc. is a technology company, primarily deriving its revenues by connecting advertisers with target audiences through streamlined advertising technology. The Plaintiff is represented by: Clayeo C. Arnold, Esq. Joshua H. Watson, Esq. CLAYEO C. ARNOLD, APC 865 Howe Avenue Sacramento, CA 95825 Phone: 916-924-3100 Fax: 916-924-1829 Email: carnold@justice4you.com Email: jwatson@justice4you.com - and - John Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N Franklin Street, Floor 7 Tampa, FL 33602-5157 Phone: (813)275-5272 Fax: (813)275-9295 Email: jyanchunis@forthepeople.com YAHOO! INC: "Vail" Hits Data Breach ----------------------------------- Amy Vail, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. Yahoo! Inc., a Delaware corporation, Defendant, Case No. 5:16-cv-07154 (N.D. Cal., December 14, 2016), seeks actual and statutory damages, declaratory and injunctive relief, attorney's fees and costs resulting from negligence, breach of express contract, breach of implied contract and unjust enrichment in violation of California's Data Breach Notification Law and the California Unfair Competition Law. On September 22, 2016, Defendant disclosed a massive security breach by a state-sponsored actor affecting at least 500 million Yahoo subscribers. The breach compromised user account information, including names, email addresses, telephone numbers, dates of birth, hashed passwords and, in some cases encrypted or unencrypted security questions and answers. Plaintiff has been a Yahoo user continually for over ten years. The Plaintiff is represented by: Lee A. Cirsch, Esq. Robert K. Friedl, Esq. Trisha K. Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Lee.Cirsch@capstonelawyers.com Robert.Friedl@capstonelawyers.com Trisha.Monesi@capstonelawyers.com ZIMMER BIOMET: Robbins Arroyo Files Securities Suit --------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP announces that a class action complaint was filed against Zimmer Biomet Holdings, Inc. (NYSE: ZBH) in the U.S. District Court for the Northern District of Indiana, South Bend Division. The complaint is brought on behalf of all purchasers of Zimmer securities between September 7, 2016 and October 31, 2016, for alleged violations of the Securities Exchange Act of 1934 by Zimmer's officers and directors. Zimmer, together with its subsidiaries, provides musculoskeletal healthcare products and solutions in the Americas, Europe, the Middle East, Africa, and the Asia Pacific. Zimmer Accused of Lying About Supply Chain Issues According to the complaint, on September 7, 2016, Zimmer participated in the Wells Fargo Securities Health Care Conference, during which Zimmer's Vice President of Investor Relations and Treasurer, Robert J. Marshall, Jr., affirmed the company's guidance for the remainder of 2016. The company had announced in July 2016 that revenue guidance for the full year 2016 was $7.680 billion to $7.715 billion, and diluted earnings per share guidance was $1.50 to $1.75. Marshall also noted the importance of the company's growth across all major countries in its Asia-Pacific segment. However, the complaint alleges that Zimmer officials failed to disclose that supply chain problems led to a decrease in order fulfillment rates, most notably within Zimmer's knee and hip portfolios, and that as a result, the company would not achieve its revenues and profit forecast. On October 31, 2016, Zimmer lowered guidance for the full year 2016 to $7.630 billion to $7.650 billion. The company elaborated, stating, "Third quarter revenue was below our expectations, primarily due to execution issues with our large joint supply chain, which led to a degradation in order fulfillment rates late in the quarter . . .." The company added that as a consequence, it had underestimated demand for certain brands with its existing customer base, which affected its ability to capitalize on new customer opportunities. On this news, Zimmer's stock fell $17.15 per share, or nearly 14%, to close at $105.40 per share on October 31, 2016. Zimmer Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Darnell R. Donahue at (800) 350-6003, -- DDonahue@robbinsarroyo.com --, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. * Critics Hit Law Firms' Bills After Class-Action Lawsuits ---------------------------------------------------------- Andrea Estes of Boston Globe reports that attorneys at the Thornton Law Firm had just helped win a $300 million settlement from State Street Bank and Trust in a complicated lawsuit involving eight other law firms. Now, it was time to submit their legal fees to the judge so that they could get paid. That's when the younger brother of Thornton managing partner Garrett Bradley emerged as a $500-an-hour "staff attorney" at the Boston firm. Michael Bradley is a lawyer, but he normally works alone, often making $53 an hour as a court-appointed defender in Quincy District Court, records show. Yet, according to his older brother's sworn statement on Sept. 14, 2016, Michael Bradley's services were worth nearly 10 times that rate in the State Street case. The elder Bradley said Michael worked 406.4 hours on the lawsuit, which centered on international currency trades, at a cost of $203,200. Michael Bradley wasn't the only lawyerfor whose work Thornton claimed stratospheric -- and questionable -- legal costs in the filing to US District Court Judge Mark L. Wolf. Garrett Bradley listed 23 other staff attorneys, each with hourly rates of $425, who collectively accounted for $4 million in costs. Law firm 'Bonuses' Tied to Political Donations A small Boston law firm became a top funder of the national Democratic Party by paying lawyers "bonuses" for their political donations. Candidates returning donations from Thornton Law Firm attorneys Hassan to return law firm's donations But one of the lawyers told the Globe he was actually paid just $30 an hour for his services -- and not by Thornton. Like all the other staff attorneys on Garrett Bradley's list, except his brother, he worked for another firm in the case, which also counted his hours on its list of costs. Michael Bradley, Quincy attorney. The sworn statement by Garrett Bradley -- until recently an assistant House majority leader on Beacon Hill -- raises troubling questions about the way Thornton and the other firms that brought the State Street lawsuit tallied legal costs to justify their enormous $75.8 million payday. More than 60 percent of the costs that Thornton and two other law firms submitted to Judge Wolf came from the work of staff attorneys -- all of them assigned hourly rates at least 10 times higher than the $25 to $40 an hour typical for these low-level positions -- which involves document review. A spokesman for the lead law firm in the case acknowledged that hourly rates the firms listed for staff attorneys were above the lawyers' actual wages, but argued that, essentially, everyone does it. Diana Pisciotta, spokeswoman for the Labaton Sucharow law firm in New York City, called it "commonly accepted practice throughout the legal community." Critics of the way lawyers are paid in class-action lawsuits acknowledge that firms often dramatically mark up the rates of their lower-paid attorneys when seeking legal fees in court, but they say Thornton has pushed the practice to an extreme. "This happens all the time," said Ted Frank, a lawyer at the Competitive Enterprise Institute in Washington and a leading national critic of legal fees in class-action lawsuits. "Lawyers pad their bills with overstated hourly work to make their fee request seem less of a windfall." Lawyers in class-action lawsuits commonly receive a major share of any settlement because they are taking the risk that, if they lose, they will be paid nothing. In fact, plaintiffs in the State Street case, many of them public pension funds, agreed in advance to set aside a quarter of any settlement for attorneys in their lawsuit alleging that the Boston-based bank routinely overcharged clients for their foreign currency exchanges, costing them more than $1 billion. But, to actually collect the money, lawyers document their costs by filing affidavits under penalty of perjury. The accounting must be based on actual time records, listing the names and hourly rates of the lawyers who worked on the case, and the total amount billed. The hourly rate is supposed to be what the lawyer would charge a paying client for similar work, including the lawyer's salary and a markup for office costs and other expenses. That's where, critics of contingency fee lawsuits say, lawyers have a built-in opportunity to inflate their bills. And, for a variety of reasons, their bills often get little scrutiny. "Imagine you're a lawyer and you're allowed to write your own check for your fee," explained Lester Brickman, a Yeshiva University law professor and author of "Lawyer Barons: What Their Contingency Fees Really Cost America." "I could write $3,000, but I could add a zero and write $30,000 or add two zeroes and charge $300,000," Brickman said. "That's the honor system." Thornton officials insist that they did nothing wrong and that the 23 staff attorneys who actually work for Labaton or a firm in San Francisco belonged on Thornton's list. Under a cost-sharing agreement between the firms, Thornton paid part of their wages while they were reviewing millions of pages of documents in the State Street case. These lawyers just receive their usual salary and don't share in the proceeds from the settlement. Garrett Bradley's brother, by contrast, will receive the $203,200 listed for him on the filing to Judge Wolf, according to Thornton spokesman Peter Mancusi, who noted that Michael Bradley, unlike the other staff attorneys, was not paid previously for his work. Neither Michael Bradley nor a spokesman for Thornton would say what he did on the case, but the spokesman described him as an experienced prosecutor and fraud investigator. Globe questions about the legal bills prompted the lead law firm in the State Street case to submit an extraordinary letter to Judge Wolf admitting that Thornton and the other firms double- counted more than 9,000 hours, overstating their fees by $4 million. The author, David Goldsmith of Labaton Sucharow, blamed the inflated bills on "inadvertent errors." According to Goldsmith's Nov. 10 letter, Labaton and another firm, Lieff Cabraser Heimann & Bernstein, claimed the same staff attorneys that Thornton had listed on its legal expenses, double- counting the lawyers' cost. Goldsmith said the double-counted lawyers were employees of either Labaton or Lieff Cabraser, but their hours and costs should have been counted only once -- by Thornton Law. To resolve the issue, he said, the other firms dropped the lawyers and Thornton lowered the hourly rate it charged for numerous staff attorneys because it had assigned a higher rate than the other firms. Despite the resulting drop in combined legal fees, Goldsmith urged Wolf not to reduce the lawyers' payment from the settlement. In class-action cases, lawyers commonly receive a payment that not only covers costs, but a financial reward for bringing a risky case that could have failed and paid nothing. Goldsmith suggested that Wolf simply boost the reward to offset the reduced legal fees so that the firms still split the same $74 million, including $14 million for Thornton. "We respectfully submit that the error should have no impact on the court's ruling on attorneys' fees," wrote Goldsmith, whose firm often joins forces with Thornton. That may not be enough to satisfy Wolf, who has a reputation for closely questioning claims made in his court. He called the legal fees "reasonable" at a Nov. 2 hearing and praised the plaintiffs' lawyers for taking on a "novel, risky case." But he approved the fees in part based on sworn statements that the lawyers now admit were in error. Wolf could reduce their payments, which were issued earlier this month, or hold a hearing to determine whether the lawyers knowingly submitted false information, a serious breach of professional ethics. "The double-counting was likely the result of sloppiness, assuming that there would be no objectors' or court scrutiny of the fee request," said Frank, who has successfully challenged several settlements and fee requests in other cases, recouping more than $100 million for class members. Frank said the problems with the legal fees go beyond the double- counting of attorneys. Other law firms contacted by the Globe said it's common to list an hourly rate for an attorney several times higher than the attorney's own pay, because the law firm has many other expenses aside from the lawyer him or herself. However, Thornton listed attorneys' rates at up to 14 times the lawyer's wages. Frank said his analysis suggests that the $75.8 million award to the nine law firms was excessive -- by at least $20 million and as much as $48.3 million -- in part because the lawyers asked too much in the first place. He said that the lawyers' own documents show that, in similarly sized settlements, the legal fees average only 17.8 percent. Thornton Law Firm, a personal injury firm that specializes in asbestos-related cases, is already the target of three investigations for its controversial campaign contribution program in which the law firm paid millions of dollars in "bonuses" to partners that offset their political contributions. Federal prosecutors as well as two other agencies are investigating whether the bonuses were an illegal "straw donor" scheme to allow the firm to vastly exceed limits on campaign contributions. Thornton officials have insisted they did nothing wrong, because the bonuses were paid out of the lawyers' own equity in the firm. Thornton's legal fees in the State Street case feed into a larger debate about how lawyers get paid in class-action lawsuits. Defenders of paying lawyers on contingency say the prospect of a high payoff encourages lawyers to take on exceptionally difficult cases, such as suing a wealthy bank like State Street. However, Frank said there's little oversight of lawyers' fee claims. Defendants usually don't care what the plaintiffs' lawyers receive, because their costs don't change regardless of how much the plaintiffs' lawyers receive. And individual plaintiffs typically get too little money to have a strong incentive to challenge legal fees. In the State Street case, the 1,300 plaintiffs would see increases in their individual payments of only about $20,000 apiece if the lawyers' fees were reduced by $20 million, Frank calculated. A plaintiff might have to spend that much or more to hire another lawyer to investigate. None of the plaintiffs in the State Street case objected to their lawyers' request for legal fees. But neither the lawyers nor their clients apparently noticed that the exact same hours for nearly two dozen staff attorneys were claimed by more than one law firm. "The mistakes came to our attention during internal reviews that were conducted in response to an inquiry from the media," explained Labaton partner Goldsmith, in his letter to Wolf. Nor did they notice that Thornton consistently assigned a higher rate than the other firms for the same attorneys -- often a difference of $90 an hour. Labaton officials, in a prepared statement, said the affidavits supporting the fee request weren't as important as the percentage of the settlement fund the lawyers sought -- just over 25 percent, once expenses are added. "This fee award is reviewed by the Court for fairness . . . we believe the fees awarded are still fair," wrote Diana Pisciotta, a spokeswoman for Labaton. In addition to its fees from the State Street case, Thornton Law will receive a portion of the $20 million the Securities and Exchange Commission awarded a whistle-blower who alerted regulators to State Street's international currency practices. * Demonetization May Spark Class Action Against Indian Government ----------------------------------------------------------------- Narayanan Madhavan, writing for FPolitics, reports that it is by now abundantly clear that the war on black money unleashed by the Narendra Modi government is not a simple one -- and we need to mix apples and oranges and a slew of raw vegetables to get a clearer picture on the pains and gains of the demonetisation drive launched on November 8. Political costs and benefits may be counted in the electoral process. The BJP might take cold comfort from the fact that the next general elections are more than two years away to blunt the opposition campaign on the large-scale human costs involved in terms of sufferings caused to traders, labourers. After all, there is sufficient time to make up with the goodwill that can be generated through a combination of fiscal elbow room arising out of a surge in tax revenues. But the game queered when the Supreme Court was drawn into the situation, and further complicated by increasing reports of how things are going wrong -- and not just in terms of the human costs and productivity losses. Two key issues arising from the Supreme Court's questions may embarass, or worse still, choke the government. One, if there was a lack of preparedness -- crucial to any war, including one on black money. Secondly, and more ominous, whether legal and fundamental rights of citizens have been violated, especially the right to property. Can the government be sued for damages caused by demonetisation through class action suits? That question may arise in the coming days. Class actions are typically envisaged in cases involving shareholder rights in the context of changes in company law that took effect this year, but consumers can also take up class action suits as it happened against Nestle on behalf of consumers of Maggi noodles. Consumers can potentially file a class action suit before the National Consumer Disputes Redressal Commission (NCDRC) under Section 12 (1) C of the Consumer Protection Act on behalf of all suffering consumers. However, banking companies are exempt from this. Now, banks may be exempt but the government is not. The Supreme Court ruled last year that the government is not "supremely immune" and may be ordered to pay damages for wrongful acts committed by its officers. If the ruling is any indication, there is no sovereign immunity for the government, although it is accepted in common law. As of now, the Supreme Court is maintaining a tantalising ambivalence on the issue. The big question: can the Union cabinet or the bureaucracy suffer on this account or be held to answer in tangible terms? Any comment on inadequate or faulty planning in the implementation of demonetisation measures may amount to nothing more than a stricture. But a class action claim can potentially result in an indictment. Either way, the political consequences are not easy for the government, because any remark by the Supreme Court is better ammunition for the opposition than polemical outbursts on the suffering of common people. * Dispute Brewing Over Legality of Class Action Waivers ------------------------------------------------------- Pablo Orozco, writing for Inside Counsel, reports that employers take note: A battle is brewing over the legality of class action waivers and compulsory arbitration agreements in the employment context. Specifically, the question is whether arbitration agreements that preclude all forms of collective or class actions are unenforceable because they are illegal under the National Labor Relations Act (NLRA). The battle lines are drawn. On one side stand the U.S. Courts of Appeal for the Second, Fifth and Eighth Circuits with rulings that favor employers (Pro-Employer Rulings). Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2nd Cir. 2013); D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (7th Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). On the other side stand the U.S. Courts of Appeal for the Seventh and Ninth Circuits, with recent rulings that favor employees (Pro- Employee Rulings). Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016); Morris v. Ernst & Young, LLP, Case No. 13-16599, 2016 WL 4433080 (9th Cir. Aug. 22, 2016). The Seventh Circuit's Lewis case involved allegations that Epic Systems Corporation, a company that offers software solutions to the healthcare industry, misclassified a class of technical writers as being exempt from overtime wage requirements under the Fair Labor Standards Act (FLSA) and Wisconsin law. There, the plaintiff signed an agreement requiring him to bring wage-and-hour claims "through individual arbitration" and waiving "the right to participate in or receive money or any other relief from any class, collective, or representative proceeding." The Ninth Circuit's Morris case, in turn, arose from allegations that accounting giant Ernst & Young failed to properly classify young accountants under the FLSA and California wage-and-hour law. In that case, the plaintiffs signed an agreement which, by its own terms, was the "sole method for resolving disputes." The agreement further provided that all disputes "pertaining to different Employees will be heard in separate proceedings." With a 3-2 circuit split on a crucial wage-and-hour question, the Supreme Court is sure to step in. Heart of the Battle Section 7 of the NLRA provides in pertinent part that employees shall have the right to, among other things, engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Sec. 157. Relying on this language, the Pro-Employee Rulings hold that filing collective or class actions is a form of protected "concerted activity." Conversely, the Federal Arbitration Act (FAA) provides that any contract aiming "to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable." 9 U.S.C. Sec. 2. Courts have interpreted the FAA to establish a liberal federal policy that favors arbitration and requires courts to place arbitration agreements on par with other contracts. Nevertheless, the FAA contains a "saving clause" that allows courts to invalidate arbitration agreements so long as they are deemed invalid on the basis of generally applicable principles of contract law that do not disfavor arbitration. Accordingly, there are two questions that lie at the very heart of this battle: First, do arbitration agreements that provide for compulsory and individual arbitration fall within the purview of the FAA's saving clause? Second, if not, which of the two applicable statutory frameworks should control? Is the FAA's Saving Clause Applicable? The Pro-Employer Rulings find that arbitration agreements that contain class or collective waivers do not fall within the ambit of the FAA's saving clause. This is because, on balance, refusing to enforce this kind of agreement discourages the use of arbitration. Relying on the Supreme Court's ruling in AT&T Mobility v. Concepcion, 131 S. Ct. 1740, (2011) the rulings hold that requiring class arbitration interferes with the fundamental attributes of arbitration. In particular, class or collective proceedings require heightened procedural protections and complex evidentiary considerations that sacrifice arbitration's core principles of efficiency and informality. Accordingly, allowing class arbitration creates a scheme inconsistent with the FAA. Nor is precluding class arbitration a solution because plaintiffs would naturally gravitate toward class litigation. In other words, class or collective mechanisms -- whether in court or arbitration -- inevitably discourage arbitration. To effectuate the FAA's liberal pro-arbitration policy, then, courts must enforce arbitration agreements that contain class waivers. The Pro-Employee Rulings reach the exact opposite conclusion based on two primary arguments. First, the agreements plainly fall within the scope of the FAA's saving clause because they can be invalidated on the basis of the general principle of illegality because they violate the NLRA. Second, agreements that compel arbitration and forbid class or collective arbitration have the practical effect of prohibiting any form of class or collective proceedings, not just those in arbitration. Therefore, finding those agreements unenforceable does not disfavor arbitration, specifically. Compulsory arbitration remains valid if it permits class arbitration and, conversely, class arbitration waivers remain valid if arbitration is not required. Which Statutory Framework Controls? Pro-Employer Rulings conclude there is no evidence that Congress meant the NLRA to override the FAA. First, there is nothing in the text of the NLRA or its legislative history to support such a view. Second, though the FAA was enacted in 1925 and the NLRA in 1935, the FAA was reenacted without substantive change in July 1947. Third, use of class or collective action procedures is not a substantive right. Though the NLRA may be sui generis, numerous courts have held that no such substantive right exists in the context of other employment-related statutory frameworks such as the ADEA and the FLSA. Likewise, it is well settled that Federal Rule of Civil Procedure 23, which establishes the class action mechanism, does not create a substantive right. Even though the Pro-Employee Rulings find there is no need to reconcile or otherwise choose between the NLRA and the FAA, they still address the nature of the right to resolve disputes on a class or collective basis. Unsurprisingly, they conclude the right is substantive. The Pro-Employee Rulings note that every other provision of the NLRA serves to enforce the rights enshrined in Section 7. Thus, if Section 7 does not create a substantive right, the statute's entire structure and policy flounder. Though not expressly stated, the Pro-Employee Rulings intimate this means the FAA cannot trump the NLRA. This conclusion purportedly follows because arbitration cannot abridge or extinguish a substantive right. What Can Employers Do? Defendants in the Morris and Lewis cases have petitioned for writs of certiorari to the U.S. Supreme Court, and briefing is underway. Though the Court is likely to hear one or both cases in the near future, it is nearly impossible to predict how it will rule. The uncertainty is largely the result of the currently vacant seat and the stalled nomination process. With the election now behind us, the coming nomination fights may very well have a significant impact on how this battle is finally resolved. In the meantime, the circuit-split forces national employers to grapple with inconsistent obligations. Arbitration agreements with class waivers are not likely valid in the following 12 States: Alaska, Arizona, California, Hawaii, Idaho, Illinois, Indiana, Montana, Nevada, Oregon, Washington and Wisconsin. By contrast, the same agreements are likely valid in these 13 States: Arkansas, Connecticut, Iowa, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, New York, North Dakota, Texas, South Dakota, and Vermont. Because the split is geographical, employers should consider transferring lawsuits to more favorable venues whenever possible. Notably, the Ninth Circuit has held that arbitration agreements with class-waiver provisions are lawful if they allow employees to opt-out of the class-waiver provision. Mohamed v. Uber Techs., Inc., No. 15-16178, 2016 WL 4651409, at *1 (9th Cir. Sept. 7, 2016); Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072 (9th Cir. 2014). Though allowing employees to opt-out undermines the very purpose of such agreements, it ensures the agreements will hold up anywhere within the Ninth Circuit and reduces the number of putative class members. Accordingly, under the current state of the law, employers with significant operations in the Ninth Circuit should give serious consideration to allowing opt-outs. * France Introduces Class Action for Data Protection Act Breach --------------------------------------------------------------- Emma Garner, Esq., Philip R. Zender, Esq., Stephanie Faber, Esq., Annette Demmel, Esq., Francesca Fellowes, Esq., and Caroline Egan, Esq., of Squire Patton Boggs, in an article for Lexology, report that under the new law of November 18, 2016, on the modernisation of justice for the 21st century a new article 42 has been added to the French data protection act (DPA). This addition provides that a class action can take place where several individuals are placed in a similar situation and suffer loss arising from a breach of the DPA by a data controller or data processor. Such an action can only ensure the cessation of that breach and individuals cannot obtain damages. The new article 42 may be exercised by certain data protection or consumer associations as well as trade union organisations on behalf of employers or civil servants. * Rise of Consumer Class Actions Under New Jersey's TCCWNA Statute ----------------------------------------------------------------- JD Supra Business Advisor reports that nearly 35 years ago, New Jersey enacted the Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA, pronounced "tic-wun-uh"), which provides additional protection for individual consumers who suffer harm as a result of unfair sales and advertising practices. A consumer can bring a TCCWNA claim for a violation of a consumer's legal right. For example, when a consumer has a common law claim regarding a sale or a retailer has violated a state regulation relating to advertising, TCCWNA provides an additional legal remedy. Over the past several years, plaintiffs' attorneys have begun asserting TCCWNA claims in high-dollar class action lawsuits untethered to any allegation of a violation of a separate legal consumer right or actual injury, and often in situations where the "consumers" never actually purchased a product or service from the defendant company. TCCWNA has been directed specifically against companies that advertise and sell online to New Jersey residents. Courts have begun to push back against "no injury" suits, however, and, as with other consumer protection statutes, high-value judgments, and liability under TCCWNA can often be avoided if companies work proactively to head off these claims. TCCWNA's Reach Section 15 of TCCWNA prohibits any "seller, lessor, creditor, lender or bailee" from violating "any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal Law" when offering, advertising or entering into a written contract with a consumer. By prohibiting violation of "any clearly established legal right," TCCWNA allows recovery of damages and attorneys' fees for claims based on a separate legal right that, standing alone, may not have otherwise incentivized a plaintiffs' attorney to bring a class action. Section 16 of TCCWNA forbids any contract, warranty, notice or sign (including online pop-up "terms and conditions" statements and privacy notices) that contains language waiving a consumer's rights under the statute. Furthermore, pursuant to Section 16, contracts, notices and signs cannot include a general statement, such as "certain terms may be void or unenforceable in some states," unless the statement specifically explains whether those terms are legal under New Jersey law. This section has been used to target all kinds of boilerplate terminology often used in online forms. For example, when a consumer simply sees the language "void where prohibited" as part of terms and conditions or privacy pop-up on a website, TCCWNA may be implicated. This can be true even where a consumer does not make a purchase, although recent case law suggests more courts are dismissing cases where the plaintiff did not make an actual purchase. Section 17 of TCCWNA allows consumers to recover "not less than $100" per violation, plus actual damages, plus attorneys' fees and costs. Importantly, damages are only available to "aggrieved" consumers, and defendants are increasingly attacking so-called "no harm" class actions for failing to put forth a class of "aggrieved" consumers. Given the broad terms of the law, the absence of a cap on damages, and the availability of attorneys' fees under the statute, plaintiffs' attorneys have filed dozens of TCCWNA class action lawsuits in 2016 alone. Recent Dismissals of TCCWNA Class Actions Since the U.S. Supreme Court's May 2016 ruling in Spokeo v. Robins, which requires a plaintiff asserting a claim based on a statutory violation to demonstrate actual, concrete injury to establish Article III standing, several courts have dismissed TCCWNA claims based on the plaintiff's failure to plead anything more than a naked statutory violation. For example, in Candelario v. Rip Curl, Inc., No. 8:16-cv-00963 (C.D. Cal. Sept. 22, 2016), the Central District of California, relying on Spokeo, concluded that the plaintiff had not adequately pled facts to establish Article III standing; she failed to allege an actual and concrete injury based on an alleged breach of a separate legal right distinct from the alleged naked TCCWNA statutory violation. Specifically, the plaintiff alleged that she was unhappy with the quality of a shirt she purchased online. The terms and conditions the plaintiff agreed to at the time of purchase prohibited her from bringing that claim relating to the purchase. The court in Candelario dismissed the complaint, finding that the consumer had not suffered an actual and concrete injury relating to the alleged violation of a legal right separate and apart from the naked violation of TCCWNA. To the extent she wanted to pursue claims relating to the quality of the shirt, there were still certain causes of action available to her that she could have pled that were not prohibited by the company's terms and conditions. For these reasons, the plaintiff failed to establish that she was "aggrieved" as required under Section 17 of TCCWNA. In Russell v. Croscill Home, No. 3:16-cv-01190 (D.N.J. Oct. 12, 2016), the District of New Jersey dismissed a putative class action alleging a violation of TCCWNA for similar reasons. There, the court found that the plaintiff was not "aggrieved" under the terms of the statute because he did not allege a violation of a separate and independent legal harm that caused him an actual and concrete injury independent of the alleged TCCWNA violation. Then, in Hecht v. Hertz Corp., No. 2:16-cv-01485 (D.N.J. Oct. 20, 2016), the District of New Jersey dismissed a putative class action where the plaintiff alleged that Hertz failed to state whether New Jersey law applied to certain parts of its online terms and conditions. The court found that this naked violation of TCCWNA was not enough to confer Article III standing. The U.S. Court of Appeals for the Third Circuit will soon hear appeals of both Russell and Hecht. Although Article III standing is not required to pursue class action lawsuits in state court, at least one New Jersey appellate court has rejected a no-harm TCCWNA class action. In Smerling v. Harrah's Entertainment, Inc., No. A-4937-13T3, (N.J. Super. Ct. App. Div. Sept. 9, 2016), the court overturned a multi-million- dollar judgment, finding that a New Jersey resident who was unable to use a Harrah's coupon as advertised could not be a "consumer" for purposes of TCCWNA because she had not purchased the coupon. These recent dismissals are a promising sign for defendants and potential defendants in TCCWNA lawsuits because they indicate that courts are increasingly unwilling to allow no-harm lawsuits to proceed past the pleading stage. Nevertheless, companies that advertise and sell to New Jersey residents, particularly online, would be well-advised to take steps to avoid being named in TCCWNA lawsuits in the first place. Those steps include revising online advertisements and contract terms to specifically comport with New Jersey law. * Trump Labor Nominee's Company Involved in Class Action -------------------------------------------------------- John A. Logan, writing for The Hill, reports that it appears that Andy Puzder, President-elect Donald Trump's choice to head the Department of Labor (DOL), doesn't believe in workers, let alone workers' rights. Mr. Puzder, the CEO of CKE Restaurants, Inc., which owns Hardee's and Carl's Jr. burger chains, has said on the worker-free restaurant: "[Machines are] always polite, they always upsell, they never take a vacation, they never show up late, there's never a slip-and-fall, or an age, sex, or race discrimination case." No wage demands, requests for holidays or fear of racial discrimination or sexual harassment lawsuits, just polite upselling -- machines are apparently Mr. Puzder's ideal employee, although not exactly consistent with Trump's claim that he will function as a "job creator." But it's not only Mr. Puzder's cavalier statement on replacing American workers with machines that gives cause for concern. His extreme anti-worker record on wage theft, overtime pay, minimum wage, gender equality and violations of workers' rights is equally troubling. Wage theft and wage-and-hour compliance: One critically important division of the Labor Department, the Wage and Hour Division, has primary responsibility for cases of wage theft (i.e., the denial of wages that employees are rightfully owned). The fast-food industry is one of the nation's worst violators of wage-and-hour laws, and it turns out that Mr. Puzder runs a company that has been accused of committing wage theft. Store managers in California, for example, are currently involved in a wage-and-hour class-action lawsuit against CKE Restaurants. Even with this inside knowledge of the issue, it seems unlikely that Mr. Puzder will take a strong line on egregious violators in fast food and other low-wage industries. The Obama DOL has conducted almost 4,000 investigations at the nation's 20 largest fast-food companies. It found evidence of more than 68,000 violations and recovered $14 million in wages for approximately 57,000 workers. Among the 20 top companies, Mr. Puzder's corporation was the fourth worst offender. Overtime rule: Mr. Puzder opposes a new DOL rule -- temporarily blocked by a federal judge in November -- that would have given a significant pay increase to 4.2 million American workers. The DOL rule doubled, from $23,660 to $47,476, the threshold below which workers would be entitled to overtime pay. Mr. Puzder, in common with other anti-worker CEOs, views the rule that would put money in the pockets of millions of Americans as a "regulatory maze" that inconveniences corporations. Minimum wage: Mr. Puzder is a critic of raising the federal minimum wage from its pathetically low level of $7.25 per hour. (Never mind that every time the American public gets to vote on increasing minimum wages, they do it.) Progress on raising the minimum wage at the state and local levels has been one bright spot for low-wage Americans during the past few years. Mr. Puzder is a sworn enemy of these efforts and the Fight for 15, the nationwide movement launched in 2012 to win $15 per hour plus a union for fast-food and low-paid workers in other sectors. National Labor Relations Board (NLRB): Mr. Puzder has been a stern critic of the Obama NLRB, especially its position on the "joint employer standard," whereby billion-dollar corporations such as McDonald's have been held partially responsible for the labor law violations committed by their franchisees, over which they exercise significant control. By holding responsible the parent company, which has real power to improve labor conditions, the NLRB's joint employment standard promises greater workplace protections for millions of low-wage workers in sectors where unlawful behavior and poor conditions are commonplace. But Mr. Puzder wants powerful corporations to be able to evade all responsibility for these actions. Gender equality and affirmative action: Mr. Puzder has said little on this, but the signs are not good. On his fast-food company's misogynistic and demeaning advertising campaigns, Mr. Puzder has commented: "I like beautiful women eating burgers in bikinis. I think it's very American." It seems likely that Mr. Puzder will roll back DOL enforcement on affirmative action and equal employment opportunity, administered through its Office of Federal Contract Compliance Programs. In Trump's "Alice in Wonderland" reality, Mr. Puzder, who also opposes the Affordable Care Act and celebrates the use of vulnerable guest workers, has a "record of fighting for workers." Under a Trump DOL, it seems likely that states like California and Washington will try to step up activity in areas such as wage and hour regulation. But for millions of workers in other states, Puzder's appointment will mean poverty-level wages, long hours with no overtime, poor enforcement of wage theft laws, weaker safety standards and all-around greater misery at the workplace. Trump's secretary of Labor will be a reliable friend to billionaire corporations that pay low wages, violate laws and exploit vulnerable workers. But for hardworking Americans, Andrew Puzder could prove the biggest predator in the swamp. ********* 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 * * *