/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170125.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 25, 2017, Vol. 19, No. 18 Headlines AGILE THERAPEUTICS: Khang & Khang Files Securities Class Action ALLERGAN INC: Tawfilis' Bid to Certify Taken Under Submission AMAYA GAMING: Court Orders Disclosure of Liability Policies AMERICAN CAPITAL: Ares Capital Merger Deal Closed APPLE INC: Suit Seeks to Enforce iPhone Add Lock-Out System APPLIANCE RECYCLING: March 2017 Opt-Out Set in Whirlpool Accord ASCENA RETAIL: "Linares" Parties Preparing Settlement & Release AVID TECHNOLOGY: Jan. 20 Lead Plaintiff Motion Deadline Set AXA EQUITABLE: Sivolella and Sanford Lawsuits Underway AXA EQUITABLE: Appeal in Ross and Yarbrough Suits Underway AXA EQUITABLE: Appeal in "Shuster" Suit Underway BANK OF AMERICA: Overdraft Fee Class Action Can Proceed BANNER LIFE: Continues to Defend Remaining Tort Claim BASUKI TJAHAJA PURNAMA: Rp204 Million Class Action Withdrawn BEAZER HOMES: Plaintiffs Withdrew Class Action Allegations BEST BUY: Case Management Conference Held in IBEW Suit BLUE DIAMOND: Settles Class Action Over "Natural" Label BLUE SHIELD: Obtains Favorable Ruling in TCPA Class Action BROCADE COMMUNICATIONS: Robbins Geller Files Class Action BURKHART DENTAL: Seeks Dismissal of Price-Fixing Class Action CANADA: Koskie Minsky Launches Thalidomide Class Proceeding CANADA: RCMP Harassment Class Action May Cover 20,000 Women CANADA: Judge Certifies RCMP Harassment Class Action CARRIER CORP: Faces Product Liability Class Action in Florida CHICO'S FAS: "Altman" Class Suit in Early Stages CHICO'S FAS: Settlement Notices Distributed in "Ackerman" Suit CHICO'S FAS: "Ackerman" Action Settled & Dismissed CHICO'S FAS: Still Defends "Redem" Class Action CHICO'S FAS: Mediation Held in "Calleros" Action COMERICA BANK: Faces Class Action Over EPPICard Account Fees COMMAND SECURITY: Settlement Payment in "Leal" Underway CONAGRA FOODS: Greenberg Discusses Key Class Action Takeaways CORAL TELL: Israel Class Action Lawsuit Remains Pending CPI CARD: Court Entered Briefing Schedule on Motions to Dismiss CSRA INC: Parties in "Strauch" Action Explored Settlement DAKOTA ACCESS: North Dakota Landowners File Suit Over Easements DEUTSCHE BANK: Ordered to Pay for Investors' Damages DISH NETWORK: Jury Awards $20+ Mil. in "Do Not Call" Litigation DOLE FOODS: Faces Class Action Over False Health Benefit Claims DOLLAR GENERAL: Kessler Topaz Files Securities Class Action DOLLAR GENERAL: Court Vacates Deadlines in "Varela" Suit DOLLAR GENERAL: Proceedings in "Pleasant" Suit Stayed DOLLAR GENERAL: Feb. 23 Final Fairness Hearing Set in "Sullivan" DOLLAR GENERAL: Motion to Dismiss "Farley" Suit Pending DOLLAR GENERAL: Settlement Reached in "Debinder" Suit DOLLAR GENERAL: Motor Oil Litigation Underway DOMFOAM/VALLE FOAM: Settlement Hearings to Begin on March 6 DREAMWORKS ANIMATION: Judge Approves $50MM Settlement for Workers EAST POINT, GA: Court Approves Power Overbilling Class Action ENTERTAINMENT ONE: Faces Class Action Over Sirius XM Deal ERIN ENERGY: Bid to Dismiss to Dismiss Stockholders Suit Underway FENIX PARTS: Faces "Beezley" Suit Alleging Securities Act Breach FENIX PARTS: Bronstein Gewirtz Files Securities Class Suit FIAT CHRYSLER: Faces Emission Software Class Action in Canada FIAT CHRYSLER: Rosenberg Law Probing Emissions-Cheating Claims FOOT CENTER: Faces "Brown" Suit Alleging Labor Law Violations FORD MOTOR: Kuga Fire Victim's Family Mulls Class Action FORD MOTOR: Motor Industry Calls for Action on Kuga Fires FOUGERA PHARMACEUTICALS: Castillo Sues Over Desonide Price-Fixing GOLDEN CORRAL: Faces Suit for Failing to Pay Overtime Compensation GRAIN PROCESSING: Seeks to Overturn Class Action Certification HARVEST NATURAL: Plaintiffs Declined to Appeal Case Dismissal HARVEST NATURAL: Stockholder to Dismiss Class Action I-12 MEDIAN: Livingston School Board Joins Class Action IKEA USA: 9th Cir. Vacates Order to Decertify in "Medellin" Suit ILLUMINA INC: Feb. 15 Lead Plaintiff Bid Deadline INEEDMD HOLDINGS: Settlement Reached in "Makover" Lawsuit INTERSIL CORPORATION: 2 Class Actions Filed Over Merger JANNSEN PHARMA: Plaintiffs Oppose Transfer of Invokana Cases JD HOME: Settles Maintenance Workers' Class Action for $3MM JOHNSON & JOHNSON: Judge Approves $5MM Deal in Baby Products Suit JONES FINANCIAL: Status Conference in "McDonald" Suit on June 15 KRAFT HEINZ: Seeks Dismissal of Parmesan Cheese Labeling Case LA ENTERTAINMENT: Court Grants Goers' Motion for Reconsideration LENOVO: Seeks Dismissal of Class Action Over Hidden Adware LUMBER LIQUIDATORS: Cash & Stock Deal Granted Final Approval MASTERCARD INC: Lawyer Argues Lacks Spectrum of Commonality MAXPOINT INTERACTIVE: Motion to Dismiss IPO Class Suit Underway MERITOR INC: Motion to Dismiss Class Suit Underway MICROFIBRES INC: Settles Employees' WARN Act Class Action MOLINA HEALTHCAREL Faces Class Action Over Medi-Cal Payments MONSANTO: Experts Weigh in on Roundup Class-Action Suit MONTROSE MANAGEMENT: Faces Second Class Action Over Assessments NEW ORIENTAL: Feb. 13 Lead Plaintiff Motion Deadline Set NEW YORK CITY, NY: Class of Detainees Certified in "Onadia" Suit ONEMAIN HOLDINGS: Lifshitz & Miller Files Securities Class Action OPHTHOTECH CORP: March 13 Lead Plaintiff Motion Deadline Set OPHTHOTECH CORP: Bronstein Gewirtz Files Securities Class Suit PFIZER INC: Arbitration Policy Violates Law, Court Rules PHILLIPS 66: Buzas et al. Allege Violations of Cal. Labor Code PITTSBURGH GLASS: 3rd Cir. Clarifies Employer Liability Issue PJT PARTNERS: Seeks Dismissal of "Barrett" Amended Suit POST HOLDINGS: Accrued $28.5MM in Egg Antitrust Action PROSPER FUNDING: To Pay $3 Million in Class Action Settlement PTC INC: Settlement Reached in "Crandall" Class Action QUALCOMM INC: Consumer Group File Antitrust Class Action REMINGTON ARMS: Nine State Attorney Generals Oppose Settlement REMINGTON ARMS: February 14 Settlement Fairness Hearing Set RENT-A-CENTER: Feb. 21 Lead Plaintiff Motion Deadline Set RIGHTSCORP INC: Court Awards Costs to Roxborough & Pietz Firms SALTY GATOR: Employees File Class Action Over Unpaid Wages SAMSUNG: Faces Class Action Over Washing Machine Recall SAMSUNG: Must Face Lawsuit by Galaxy S4 Users SEATTLE GENETICS: Wolf Haldenstein Files Securities Class Suit SERES THERAPEUTICS: Motley Rice & Cohen Milstein Named Lead Atty STARBUCKS CORP: Faces Class Action Over Background Check STEEL & TUBE: Canterbury Homeowners Invited to Join Mesh Suit STOEL RIVES: Asks Court to Nix Suit Based on Speculative Theories SUNPOWER CORP: Plaintiffs Must File Consolidated Suit by March 9 T-MOBILE USA: Can Enforce Arbitration Provision in TCPA Agreement TAKATA CORP: New Mexico AG Sues Over Faulty Air Bag Inflators TCF FINANCIAL: Watchdog Sues Over Exorbitant Overdraft Fees TD AMERITRADE: Appeals in Order Routing Class Suits Underway TEMPUR-SEALY INT'L: Hartford Wants Class Action Coverage Reversed TESLA MOTORS: South Korean Celebrity Files SUA Class Action THAILAND: Disabled Activists Mull Class Action Over BTS Access TURTLE BEACH: Nevada Supreme Court Appeal Underway TYSON FOODS: Updates on Six Employee Lawsuits TYSON FOODS: Hillshire Brands Awaits Decision in Philippine Case TYSON FOODS: Consolidated Suit Filed in Broiler Chicken Case UBER TECH: Agrees to Pay $20MM Settlement for Misleading Drivers UBER TECH: UberBLACK Drivers' Class Action Can Proceed UNITED HEALTHCARE: Kansas AG Joins Coalition Against Settlement UNITED KINGDOM: 200 Judges Win Case Over Pension Cuts UNITED KINGDOM: Hindraf Class Action Hearing in London Set UNITED PARCEL: Judge Tosses Suit Over Untaxed Cigarettes UNITED STATES: Secret Service Settles Discrimination Class Action VIRGIN AMERICA: Notice of Payment of Attorneys' Fees & Expenses VISA INC: Interchange Fees Multidistrict Litigation Still Pending VISA INC: Plaintiffs in Consumer Interchange Case Seek Rehearing VISA INC: Home Depot Suit Transferred to MDL 1720 VISA INC: Ontario, Alberta, and Saskatchewan Suits Remain Stayed VISA INC: Appeal in Data Pass Litigation Underway VISA INC: Appeal in ATM Access Fee Litigation Underway VISA INC: EMV Chip Liability Shift Suit Remains Pending VISA INC: Request to Appeal in Broadway Grill Suit Pending VOLKSWAGEN: In-House Lawyers Face Obstruction of Justice Claims VOLKSWAGEN AG: Reaches $4.3BB Emissions Settlement Deal with DOJ VOLKSWAGEN AG: Court Approves $1.6BB Settlement with 644 Dealers VOLKSWAGEN AG: Germany Needs to Have Collective Rights Law WAL-MART STORES: Still Defends Pontiac General Employees Suit WAL-MART STORES: Sold Wildfire-Contaminated Food, Suit Claims WELLS FARGO: Saxena White Named Co-Lead Counsel in Class Action WESTERN REFINING: Monteverde & Associates Files Class Action WESTERN REFINING: March 20 Lead Plaintiff Bid Deadline WESTERN UNION: Settles FTC Fraud Case for $586 Million YELP INC: Law Curbs Consumers' Ability to Leave Negative Reviews ZEBRA TECHNOLOGIES: No Trial Date Yet in Class Action ZEEKREWARDS: Ponzi Scheme Victims to Receive Third Payout * Alston & Bird Features Key Decisions in Class Action Roundup * Consumer Action Maintains Class Action Database * Fiduciary Rule May Spur Class Actions Against Financial Advisors * Judge Grants Suit for Millions Who Got Movie-Promoting Robocalls * Massachusetts Decision to Publish Data Breach to Impact Big Law * Supreme Court Scrutinizes Credit Card Swipe Fee Laws * Supreme Court to Review Three Class Action Waiver Rulings ********* AGILE THERAPEUTICS: Khang & Khang Files Securities Class Action --------------------------------------------------------------- Khang & Khang LLP (the "Firm") on Jan. 17 disclosed that it is filing a class action lawsuit against Agile Therapeutics, Inc. ("Agile" or the "Company") (AGRX) concerning possible violations of federal securities laws, on behalf of investors who purchased or otherwise acquired Agile shares between March 9, 2016 and January 3, 2017 inclusive (the "Class Period"). Those who suffered a loss during the class period are encouraged to contact the firm in advance of the March 7, 2017 lead plaintiff motion deadline. If you purchased shares of Agile and want more information, please contact Joon M. Khang, Esquire, of Khang & Khang, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com. Agile is a pharmaceutical company that develops and markets prescription female contraceptive products. On January 3, 2017, Agile revealed new information related to its Phase 3 SECURE study assessing Agile's combined hormonal contraceptive patch product, Twirla. The FDA wanted the study after it rejected Agile's initial marketing application in 2013. The Company stated that 2% of study participants suffered "serious adverse events" including "deep vein thrombosis, pulmonary embolism, gallbladder disease, ectopic pregnancy and depression." Furthermore, 51.4% of subjects left the study. When this information was revealed to the public, the value of Agile stock fell sharply causing investors severe harm. If you have any questions concerning this notice or your rights, please contact Joon M. Khang, a prominent litigator for almost two decades, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com. ALLERGAN INC: Tawfilis' Bid to Certify Taken Under Submission ------------------------------------------------------------- The Hon. Josephine L. Staton has taken under submission certain matters filed in the lawsuit styled Adel Tawfilis, DDS v. Allergan, Inc., Case No. 8:15-cv-00307-JLS-JCG (C.D. Cal.). The matters are: -- Plaintiffs' motion for class certification; -- Plaintiffs' motion to strike the expert declaration and testimony of Susan Walker, MD; and -- Defendant's Motion to Exclude the Expert Report of Dr. Russell W. Mangum, III. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=0Ck7Yw8N The Plaintiffs are represented by: Roy A. Katriel, Esq. THE KATRIEL LAW FIRM 4225 Executive Square, Suite 600 La Jolla, CA 92037 Telephone: (858) 242-5642 Facsimile: (858) 430-3719 E-mail: rak@katriellaw.com - and - Phillip Stephan, Esq. KRAUSE KALFAYAN BENINK & SLAVENS LLP 550 W C St., Suite 530 San Diego, CA 92101-3500 Telephone: (619) 232-0331 Facsimile: (619) 232-4019 E-mail: pstephan@kkbs-law.com The Defendant is represented by: Jack Pace, Esq. Amanda Murphy, Esq. Kevin Adam, Esq. WHITE & CASE LLP 1155 Avenue of the Americas New York, NY 10036-2787 Telephone: (212) 819-8200 Facsimile: (212) 354-8113 E-mail: jpace@whitecase.com amanda.murphy@whitecase.com kevin.adam@whitecase.com AMAYA GAMING: Court Orders Disclosure of Liability Policies ----------------------------------------------------------- Canadian Underwriter report that a Pointe-Claire, Quebec-based online gaming company, whose former chief executive officer is facing insider trading charges, has been ordered to provide its general liability, errors and omissions, and directors' and officers' liability insurance policies to shareholders who are suing the firm. Amaya Inc. -- whose operations include the Pokerstars online poker website -- was ordered by the Quebec Superior Court to disclose its insurance policies to Pierre Derome and Jacques Lemelin, representative plaintiffs in a shareholders' class-action lawsuit. On July 22, 2016, Messrs. Derome and Lemelin filed "a re-amended motion for authorization of a class action and for authorization to bring an action pursuant to Quebec securities law" in the Quebec court, Amaya stated in its management discussion and analysis released this past November. Amaya must disclose to the plaintiffs "the names and copies of their general liability, errors and omissions, as well as any directors' and officers' liability insurance policies that they may have in force relating to this case," Mr. Justice Babak Barin ordered in his ruling released Jan. 13. "The early disclosure of that information may provide the parties with an opportunity to make informed, sensible and pragmatic decisions concerning the conduct of the proceedings, including perhaps the possibility of amicably resolving the matter in question." In March, 2016, Quebec's Autorite des marches financiers (AMF) -- which regulates financial markets -- announced that David Baazov, then Amaya's chairman and chief executive officer, "is facing five charges, in particular for aiding with trades while in possession of privileged information, influencing or attempting to influence the market price of the securities of Amaya inc., and communicating privileged information." The allegations against Mr. Baazov have not been proven in court. Baazov has been replaced, as CEO, by Rafael Ashkenazi. The class action lawsuit -- indexed as Derome v. Amaya -- was made under a provision in the Quebec Securities Act that lets shareholders sue for misrepresentation in the secondary market. Amaya -- which contends the lawsuit is without merit -- said in its MD&A that the "plaintiffs generally allege that throughout the class period the defendants violated certain Canadian securities laws by misrepresenting or failing to disclose (or acquiescing in the same), among other things, that Mr. Baazov was engaged in an insider-trading scheme, in which he provided privileged information to third parties and artificially inflated the price of the Corporation's securities." In their court filings, the plaintiffs also allege that Amaya "did not properly disclose that it had inadequate or ineffective internal controls and that one or more of its directors and Mr. Baazov were in breach of its Code of Business Conduct." Amaya argued that the plaintiffs' request for disclosure of insurance and other documents "is premature and exaggerated," Justice Barin noted in his Jan. 13, 2017 ruling. "It submits that the request must be denied as it has so been in similar cases in Ontario in the past." Justice Barin disagreed with Amaya. In Ontario, Section 138.3 (1) of Part XXIII.1 of the province's Securities Act, "creates a statutory cause of action for misrepresentation in the secondary securities market in favour of any person who acquires or disposes of the securities of an issuer between the time the document containing the representation was released and the time the misrepresentation was corrected," wrote Mr. Justice George Strathy in a 2012 ruling. Plaintiffs suing in Ontario also need to first obtain leave from the court. "Amaya spent a considerable amount of time in this case pleading Ontario law, and therefore, the Court considers it necessary to offer some passing remarks regarding Amaya's submissions in that regard," Justice Barin wrote. One case cited was the Supreme Court of Canada ruling -- indexed as Green v. CIBC -- released in December, 2015. That ruling was in three separate class-action shareholders' lawsuits filed in Ontario. Corporate defendants were the Canadian Imperial Bank of Commerce, Toronto-based electronics vendor Celestica Inc. and motion picture firm IMAX Corporation of Mississauga, Ontario. The Supreme Court of Canada ruled that in order to commence an action for misrepresentation in the secondary securities market, under Ontario's Securities Act, there must be "a reasonable possibility that the action will be resolved at trial in favour of the plaintiff." CIBC had cited a previous Supreme Court of Canada ruling involving Theratechnologies Inc., a pharmaceutical firm facing a class action lawsuit in Quebec. In Theratechnologies, the Supreme Court of Canada "stated that for an action to have a 'reasonable possibility' of success" under Quebec securities legislation, "there must be a 'reasonable or realistic chance that [it] will succeed,'" Madam Justice Suzanne C“te wrote in Green. She added there is "no difference" between section 225.4 of the Quebec Securities Act and Section 138.8 of the Ontario Securities Act of the threshold test. "While it is true as the Supreme Court in Green puts it, that there is no difference between the languages of section 138.8 OSA and section 225.4, it is also equally the case that, at first blush, sections 138.8(2) and (3) contemplate a different mechanism for a petitioner to satisfy the threshold set out in both statutes," Justice Barin wrote in Derome v. Amaya. Section 225.4 of the Quebec Securities Act "simply requires that the request for authorization state the facts giving rise to the action and be accompanied by a 'projected statement of claim' to be served on the required parties," Justice Barin added, whereas Sections 138.8(2) and (3) of the Ontario Securities Act "require a petitioner and a respondent to serve and file one or more affidavits setting forth the material facts upon which each intends to rely and permit the affiant of such affidavit to be examined in accordance with the rules of court." Amaya had argued that the "information pertaining to them should only be disclosable when Petitioners are seeking punitive damages against them," Justice Barin added. The individual defendants in the class action filed by Derome and Lemelin are current and former directors and officers. In addition to Baazov, defendants are: chief financial officer Daniel Y. Sebag, a board member until June, 2016; Dave Gadhia, interim chairman since March, 2016 and former CEO of Gateway Casinos & Entertainment Limited; Retired United States Army General Wesley Clark, an Amaya board member until June, 2016; and director Harlan W. Goodson, a Sacramento-based lawyer. In Green, the Supreme Court of Canada upheld a Court of Appeal for Ontario ruling that the shareholders' class-action lawsuit against CIBC could proceed. Originally, the Ontario Superior Court of Justice ruled that the lawsuit was time-barred. Despite the ruling that the lawsuit was not time-barred, the Green ruling was still "generally a good development" for directors' and officers' liability insurers, Stikeman Elliot lawyer Alan D'Silva -- adsilva@stikeman.com -- told Canadian Underwriter in late 2015. Mr. D'Silva represents Insurance Bureau of Canada, which had intervener status in the Green case. Three separate rulings were released. One was by Madam Justice Andromache Karakatsanis on behalf of herself, Mr. Justice Michael Moldaver and Mr. Justice Clement Gascon. Justice C“te wrote a separate decision on behalf of herself, Chief Justice Beverley McLachlin and Mr. Justice Marshall Rothstein. Mr. Justice Thomas Cromwell wrote a third decision. In 2012, the Ontario Superior Court of Justice interpreted the Ontario Securities Act has having a "relatively low threshold according to which leave will be denied only if, 'having considered all the evidence adduced by the parties and having regard to the limitations of the motions process, the plaintiffs' case is so weak or has been so successfully rebutted by the defendant, that it has no reasonable possibility of success,'" Justice C“te wrote. But the "reasonable possibility of success threshold test articulated by this Court in Theratechnologies applies to a motion for leave under s. 138.8 of the OSA," wrote Andromache Karakatsanis on behalf of herself, Mr. Justice Michael Moldaver and Mr. Justice Clement Gascon. AMERICAN CAPITAL: Ares Capital Merger Deal Closed ------------------------------------------------- Ares Capital Corporation (NASDAQ: ARCC) announced on Jan. 3 that it has completed its previously announced acquisition of American Capital, Ltd. (NASDAQ: ACAS), enhancing its leadership position in middle market direct lending in the U.S. Ares Capital says it continues to be the largest business development company in the U.S. with total assets of $12.3 billion pro forma for the American Capital acquisition as of September 30, 2016. American Capital, Ltd. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 29, 2016, that the Court has cancelled a previously scheduled preliminary injunction hearing. On October 18, 2016, American Capital, Ltd., a Delaware corporation ("American Capital" or the "Company") filed with the Securities and Exchange Commission (the "SEC") a definitive proxy statement (the "Definitive Proxy Statement") with respect to the annual meeting of the Company's stockholders scheduled to be held on December 15, 2016 to, among other things, vote on the approval of the merger with Ares Capital Corporation, a Maryland corporation. As disclosed in the Definitive Proxy Statement, a consolidated putative stockholder class action has been filed by stockholders of the Company challenging the mergers in the Circuit Court for Montgomery County, Maryland (the "Court") under the caption IN RE AMERICAN CAPITAL, LTD., SHAREHOLDER LITIGATION, Case No. 422598-V. On September 23, 2016, the Court heard argument on defendants' motion for a protective order to stay discovery, defendants' motion to dismiss and plaintiffs' motion for limited expedited discovery. On October 6, 2016, the Court denied in part and granted in part defendants' motion to dismiss and granted plaintiffs' motion for limited expedited discovery. The parties engaged in expedited discovery pursuant to the Court's order, which was completed on November 4, 2016. The Court scheduled a preliminary injunction hearing for November 18, 2016. On November 7, 2016, counsel for plaintiffs submitted a letter to the Court requesting the Court vacate the preliminary injunction hearing scheduled for November 18, 2016. Also on November 7, 2016, the Court cancelled the previously scheduled preliminary injunction hearing. On November 9, 2016, counsel for defendants sent a letter to counsel for plaintiffs regarding the withdrawal of the motion for preliminary injunction and demanding, on behalf of the Company's board of directors, that counsel for plaintiffs immediately notify the Company's board of directors of any misstatements or omissions that plaintiffs contend exist in the Definitive Proxy Statement. On November 11, 2016, counsel for plaintiffs sent a letter to counsel for defendants asserting that the misstatements and omissions in the Definitive Proxy Statement were "legion," but refused to identify any of them. On December 15, Ares Capital said it has received shareholder approval on all proposals for its definitive merger agreement under which Ares Capital will acquire American Capital. APPLE INC: Suit Seeks to Enforce iPhone Add Lock-Out System ----------------------------------------------------------- Malcolm Owen, writing for Apple Insider, reports that a new class action lawsuit filed in California seeks to force Apple into adding features to the iPhone that will help prevent drivers from texting while behind the wheel, while also alleging Apple is putting profit before consumer safety. Filed at the Los Angeles County Superior Court by MLG Automotive Law, the lawsuit claims Apple "had the technology to prevent texting and driving since 2008," noting also that it was granted a related patent in 2014. Despite this, it is alleged Apple refuses to implement the technology in the iPhone "over concerns that it will lose market share to other phone-makers who do not limit consumer use." The suit identifies Julio Ceja of Costa Mesa, California as the plaintiff, involved in a car accident where his vehicle was hit from behind by another driver, reportedly distracted by using her iPhone. To bolster the lawsuit, data from the U.S. Department of Transportation claiming 1.5 million people are texting and driving on public roads at any given moment. The National Highway Traffic Safety Administration classifies texting and driving as six times more dangerous than driving while drunk. "The relationship consumers have with their phones is just too great, and the ability to slide under the eye of the law is just too easy," the lawsuit reads. "Embedding lock-out devices is the only solution." It is also alleged the iPhone is responsible for 52,000 automobile accidents in California each year, based on data from the California Highway Patrol and the Federal Highway Administration, as well as an average of 312 deaths annually. "Texting and driving has become one of the most serious issues that confronts all of us on a daily basis," said MLG Automotive Law founding member Jonathan Michaels. "Legislating against drivers will unfortunately not solve the problem. "The relationship consumers have with their phones is just too great, and the ability to slide under the eye of the law is just too easy. Embedding lock-out devices is the only solution." The class action wants to halt all iPhone sales in the state of California until Apple introduces some form of lock-out device that can prevent texting while driving. Some may consider the class action lawsuit to be frivolous, as it is filed one month after another similar lawsuit against Apple, blaming FaceTime for distracting a driver involved in a fatal car crash. That suit also brings up the apparent availability of the technology to lock-out iPhone use while driving, as well as the 2014 patent, but rather than forcing Apple to implement a solution, that suit seeks damages and medical expenses. APPLIANCE RECYCLING: March 2017 Opt-Out Set in Whirlpool Accord --------------------------------------------------------------- Appliance Recycling Centers Of America, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 15, 2016, for the quarterly period ended October 1, 2016, that members in a class action lawsuit against Whirlpool Corporation have until March 2017 to opt out of the class or object to the settlement. In February 2012, various individuals commenced a class action lawsuit against Whirlpool Corporation ("Whirlpool") and various distributors of Whirlpool products, including Sears, The Home Depot, Lowe's and us, alleging certain appliances Whirlpool sold through its distribution chain, which includes us, were improperly designated with the ENERGY STAR(R) qualification rating established by the U.S. Department of Energy and the Environmental Protection Agency. The claims against us include breach of warranty claims, as well as various state consumer protection claims. The class action settlement was preliminarily approved in June 2016 and members have until March 2017 to opt out of the class or object to the settlement. Whirlpool has offered to fully indemnify and defend its distributors in this lawsuit. "We are monitoring Whirlpool's defense of the claims and believe the possibility of a material loss is remote," the Company said. ASCENA RETAIL: "Linares" Parties Preparing Settlement & Release --------------------------------------------------------------- Ascena Retail Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 29, 2016, that the parties in the case, Steven Linares v. ANN INC., are preparing the Joint Stipulation for Class Action Settlement and Release. On December 29, 2015, plaintiff, Steven Linares, a former ANN sales associate, filed a class action complaint on behalf of all sales leads, sales associates and stock associates working in California from December 29, 2011 through the present, in Los Angeles County Superior Court. Plaintiff alleges on behalf of the class that ANN did not properly provide overtime pay, minimum wage pay, meal and rest breaks, and waiting time pay, among other claims under the California Business and Professions Code and California Labor Code. At mediation, the parties agreed to settle all claims in the suit for a total of $3.5 million to settle both the pending claims and other wage-and-hour claims that could have been brought as part of the lawsuit (including claims for penalties under the Private Attorneys' General Act). The Company believes that such amount reflects a liability that is both probable and reasonably estimable, thus a reserve for approximately $3.5 million was established in the first quarter of fiscal 2017. The parties are currently preparing the Joint Stipulation for Class Action Settlement and Release. No date has been set for the Preliminary Approval Hearing. ascena retail group, inc., is a national specialty retailer of apparel for women and tween girls. On August 21, 2015, the Company acquired ANN INC. ("ANN"), a retailer of women's apparel, shoes and accessories sold primarily under the Ann Taylor and LOFT brands. AVID TECHNOLOGY: Jan. 20 Lead Plaintiff Motion Deadline Set ----------------------------------------------------------- The Law Offices of Vincent Wong announce 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. (NASDAQ: AVID) 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. Contacts The Law Offices of Vincent Wong Vincent Wong, Esq. Tel. 212.425.1140 Fax. 866.699.3880 vw@wongesq.com AXA EQUITABLE: Sivolella and Sanford Lawsuits Underway ------------------------------------------------------ AXA Equitable Life Insurance Company continues to defend against the Sivolella and Sanford litigations, said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016. A lawsuit was filed in the United States District Court of the District of New Jersey in July 2011, entitled Mary Ann Sivolella v. AXA Equitable Life Insurance Company and AXA Equitable Funds Management Group, LLC ("AXA Equitable FMG") ("Sivolella Litigation"). The lawsuit was filed derivatively on behalf of eight funds. The lawsuit seeks recovery under Section 36(b) of the Investment Company Act of 1940, as amended (the "Investment Company Act"), for alleged excessive fees paid to AXA Equitable and AXA Equitable FMG for investment management services. In November 2011, plaintiff filed an amended complaint, adding claims under Sections 47(b) and 26(f) of the Investment Company Act, as well as a claim for unjust enrichment. In addition, plaintiff purports to file the lawsuit as a class action in addition to a derivative action. In the amended complaint, plaintiff seeks recovery of the alleged overpayments, rescission of the contracts, restitution of all fees paid, interest, costs, attorney fees, fees for expert witnesses and reserves the right to seek punitive damages where applicable. In December 2011, AXA Equitable and AXA Equitable FMG filed a motion to dismiss the amended complaint. In May 2012, the Plaintiff voluntarily dismissed her claim under Section 26(f) seeking restitution and rescission under Section 47(b) of the 1940 Act. In September 2012, the Court denied the defendants' motion to dismiss as it related to the Section 36(b) claim and granted the defendants' motion as it related to the unjust enrichment claim. In January 2013, a second lawsuit was filed in the United States District Court of the District of New Jersey entitled Sanford et al. v. AXA Equitable FMG ("Sanford Litigation"). The lawsuit was filed derivatively on behalf of eight funds, four of which are named in the Sivolella lawsuit as well as four new funds, and seeks recovery under Section 36(b) of the Investment Company Act for alleged excessive fees paid to AXA Equitable FMG for investment management services. In light of the similarities of the allegations in the Sivolella and Sanford Litigations, the parties and the Court agreed to consolidate the two lawsuits. In April 2013, the plaintiffs in the Sivolella and Sanford Litigations amended the complaints to add additional claims under Section 36(b) of the Investment Company Act for recovery of alleged excessive fees paid to AXA Equitable FMG in its capacity as administrator of EQ Advisors Trust. The Plaintiffs seek recovery of the alleged overpayments, or alternatively, rescission of the contract and restitution of the excessive fees paid, interest, costs and fees. In January 2015, defendants filed a motion for summary judgment as well as various motions to strike certain of the Plaintiffs' experts in the Sivolella and Sanford Litigations. Also in January 2015, two Plaintiffs in the Sanford Litigation filed a motion for partial summary judgment relating to the EQ/Core Bond Index Portfolio as well as motions in limine to bar admission of certain documents and preclude the testimony of one of defendants' experts. In August 2015, the Court denied Plaintiffs' motions in limine and also denied both parties motions for summary judgment. The non- jury trial commenced in January 2016 and testimony concluded in February 2016. Closing arguments occurred in June 2016 following post-trial briefing. In August 2016, the Court issued its decision in favor of AXA Equitable and AXA Equitable FMG, finding that the Plaintiffs had failed to meet their burden to demonstrate that AXA Equitable and AXA Equitable FMG breached their fiduciary duty in violation of Section 36(b) or show any actual damages. In September 2016, the Plaintiffs filed a motion to amend the trial opinion and to amend or make new findings of fact and/or conclusions of law. AXA Equitable's and AXA Equitable FMG's response to this motion was filed in October 2016. AXA EQUITABLE: Appeal in Ross and Yarbrough Suits Underway ---------------------------------------------------------- AXA Equitable Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that the appeals in the Ross and Yarbrough litigations remain pending. In April 2014, a lawsuit was filed in the United States District Court for the Southern District of New York, entitled Andrew Yale, on behalf of himself and all others similarly situated v. AXA Life Insurance Company F/K/A AXA Equitable Life Insurance Company. The lawsuit is a putative class action on behalf of all persons and entities that, between 2011 and March 11, 2014, directly or indirectly, purchased, renewed or paid premiums on life insurance policies issued by AXA Equitable (the "Policies"). The complaint alleges that AXA Equitable did not disclose in its New York statutory annual statements or elsewhere that the collateral for certain reinsurance transactions with affiliated reinsurance companies was supported by parental guarantees, an omission that allegedly caused AXA Equitable to misrepresent its "financial condition" and "legal reserve system." The lawsuit seeks recovery under Section 4226 of the New York Insurance Law of all premiums paid by the class for the Policies during the relevant period. In June 2014, AXA Equitable filed a motion to dismiss the complaint on procedural grounds, which was denied in October 2014. In February 2015, plaintiffs substituted two new named plaintiffs and the action is now entitled Ross v. AXA Equitable Life Insurance Company. In July 2015, the Court granted AXA Equitable's motion to dismiss for lack of subject matter jurisdiction. In August 2015, plaintiffs filed a notice of appeal. In April 2015, the same plaintiffs' law firm filed a second action in the United States District Court for the Southern District of New York on behalf of a putative class of variable annuity holders with "Guaranteed Benefits Insurance Riders," entitled Calvin W. Yarbrough, on behalf of himself and all others similarly situated v. AXA Equitable Life Insurance Company. The new action covers the same class period, makes substantially the same allegations, and seeks the same relief (return of all premium paid by class members) as the first action on behalf of life insurance policyholders. In October 2015, the Court, on its own, dismissed the Yarbrough litigation on similar grounds as Ross. In October 2015, plaintiff filed a notice of appeal. In November 2015, plaintiffs filed a motion to consolidate the Ross and Yarbrough appeals. In December 2015, the Second Circuit denied the motion to consolidate but ordered that the appeals be heard together before a single panel of judges. Briefing on the appeals was complete as of September 2016. AXA EQUITABLE: Appeal in "Shuster" Suit Underway ------------------------------------------------ AXA Equitable Life Insurance Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that an appeal in the lawsuit by Arlene Shuster remains pending. A lawsuit was filed in the Supreme Court of the State of New York, County of Westchester, Commercial Division ("New York state court") in June 2014, entitled Jessica Zweiman, Executrix of the Estate of Anne Zweiman, on behalf of herself and all others similarly situated v. AXA Equitable Life Insurance Company. The lawsuit is a putative class action on behalf of "all persons who purchased variable annuities from AXA Equitable which subsequently became subject to the ATM Strategy, and who suffered injury as a result thereof." Plaintiff asserts that AXA Equitable breached the variable annuity contracts by implementing the volatility management tool. The lawsuit seeks unspecified damages. In July 2014, AXA Equitable filed a notice of removal to the United States District Court for the Southern District of New York. In September 2015, the New York federal district court granted AXA Equitable's motion to dismiss the Complaint. In October 2015, plaintiff filed a notice of appeal. In February 2016, plaintiff voluntarily dismissed her appeal. In November 2014, one of the plaintiff's law firms in Zweiman filed a separate lawsuit entitled Arlene Shuster, on behalf of herself and all others similarly situated v. AXA Equitable Life Insurance Company in the Superior Court of New Jersey, Camden County ("New Jersey state court"). This lawsuit is a putative class action on behalf of "all AXA [Equitable] variable life insurance policyholders who allocated funds from their Policy Accounts to investments in AXA's Separate Accounts, which were subsequently subjected to volatility-management strategy, and who suffered injury as a result thereof" and asserts a claim for breach of contract similar to the claim in Zweiman. In February 2016, the New Jersey State Court dismissed the Complaint. In March 2016, plaintiff filed a notice of appeal. In August 2015, another of the plaintiff's law firms in Zweiman filed a third lawsuit entitled Richard T. O'Donnell, on behalf of himself and all other similarly situated v. AXA Equitable Life Insurance Company in Connecticut Superior Court, Judicial Division of New Haven ("Connecticut state court"). This lawsuit purports to cover the same class definition, makes substantially the same allegations, and seeks the same relief as in Zweiman. In November 2015, the Connecticut federal district court transferred the action to the United States District Court for the Southern District of New York. No further updates were provided in the Company's SEC report. BANK OF AMERICA: Overdraft Fee Class Action Can Proceed ------------------------------------------------------- Paybefore reports that on Dec. 19, 2016, a federal district court judge for the Southern District of California denied Bank of America's request to dismiss a putative class action over a fee charged by Bank of America in relation to overdrafts by its deposit accountholders. The fee in question is an incremental $35 charge to an accountholder in the event her balance goes negative and is not restored within five days. The $35 fee is assessed by Bank of America in addition to an initial overdraft charge for the overdraft transaction. At issue in the case is whether the incremental $35 fee is an authorized service charge for the deposit account, as Bank of America contends, or interest on an extension of credit in excess of the maximum interest rate allowed under the National Banking Act, as the plaintiffs contend. In denying Bank of America's motion to dismiss the case, the district court has tacitly indicated that it views the flat fee imposed by Bank of America when an accountholder does not restore a negative balance within five days as an interest charge in connection with an extension of credit. The case may have implications for issuers charging similar fees in relation to their deposit accounts. BANNER LIFE: Continues to Defend Remaining Tort Claim ----------------------------------------------------- Timothy J. O'Driscoll, Esq. -- timothy.odriscoll@dbr.com -- Nolan B. Tully, Esq. -- nolan.tully@dbr.com -- of Drinker Biddle & Reath LLP, in an article for The National Law Review, report that Dickman v. Banner Life Ins. Co., et al., Case No. WMN-16-192, pending in the United States District Court for the District of Maryland, is one of a number of currently active purported class action lawsuits alleging that defendant life insurers have improperly raised cost of insurance rates. The Dickman case was filed in January 2016 against Banner Life and its parent companies, Legal & General America, Inc. and Legal & General Group PLC. On December 21, 2016, the District Court of Maryland dismissed all of the claims that had been brought against the parent companies; dismissed plaintiffs' conversion and unjust enrichment claims against Banner Life; and significantly limited the remaining tort claim against Banner Life. The Banner Life parent companies were sued on the basis of an alleged captive reinsurance arrangement that was allegedly providing them with undue profits while at the same time allegedly leading Banner Life to recoup revenue through a cost of insurance rate increase. The court examined these allegations and, accepting them as true for purposes of the defendants' motion, determined that no plausible breach of contract cause of action could be stated against either of the parent companies. According to the court, plaintiffs had a contract with Banner Life, and not with either of its parents, and it is a well-settled principle of corporate law that parent companies are not directly liable for the actions of their subsidiaries. With respect to plaintiffs' conversion claims, the court agreed with the defendants that money is generally not subject to a claim of conversion and that the narrow exception to this rule under Maryland law was inapplicable. With respect to plaintiffs' unjust enrichment claims, the court confirmed the general rule that such claims will not stand where the subject matter sued upon is governed by an express contract. Finally, with respect to plaintiffs' fraud claims, the court dismissed the parent companies, holding that "there are insufficient allegations regarding any fraudulent statements of [the parent companies] to satisfy Rule 9(b)." Although the court permitted plaintiffs to proceed with a fraud claim against Banner Life, it expressly limited the scope of that claim -- explaining that plaintiffs' could only argue that "they reasonably relied on [Banner Life's annual financial disclosures] and continued to make excess premium payments for which they ultimately received no benefit and thus were damaged." The court then stated, in a footnote, that plaintiffs' fraud allegations against Banner Life "while sufficient at this stage of the litigation . . . may prove difficult to establish on summary judgment or at trial." The court's decision significantly circumscribes the scope of this case. Two defendants were dismissed in their entirety, creating precedent that may dissuade future plaintiffs from naming parent companies in these types of lawsuits. In addition, the decision demonstrates that the general rules precluding conversion claims for money and precluding unjust enrichment claims when the parties are in privity apply also in the context of cost of insurance claims. With these dismissed claims out of the case, Banner Life can now focus on the breach of contract claim (which has yet to be tested by Banner Life or addressed by the court) and the significantly limited fraud claim. Indeed, on the fraud claim, the court seemed to forecast that Banner Life will have a realistic chance at obtaining judgment as a matter of law at a later stage of the case. BASUKI TJAHAJA PURNAMA: Rp204 Million Class Action Withdrawn ------------------------------------------------------------ Coconuts Jakarta reports on top of his ongoing blasphemy case, Jakarta Governor Basuki "Ahok" Tjahaja Purnama has also been the target of several more lawsuits from various groups, including a civil lawsuit from FPI leader Habib "Fitsa Hats" Novel for Rp 204 million to cover the cost of his own private investigation into Ahok's blasphemy case. A much, much larger civil lawsuit of Rp 470 billion was filed soon after by lawyer group Advokat Cinta Tanah Air (ACTA), who argued that Ahok owes that much as compensation to Muslims for all the supposed material losses his blasphemy case has caused. ACTA, which is closely linked to FPI, said that they filed the class action lawsuit on behalf of all Muslims in Indonesia. But their lawsuit has hit a legal dead end, which prompted ACTA to withdraw it. "It turns out that, until now, the judge has not accepted having our lawsuit tacked on to Ahok's ongoing [blasphemy] case. So we didn't think it was necessary to continue the lawsuit," said ACTA representative Ali Hakim Lubis, as quoted by Vivanews yesterday. Ali did not say why their lawsuit was rejected by the judge. If we were to guess, it's probably because their lawsuit made no sense whatsoever from a legal standpoint. Hopefully it will just be a matter of time before a judge throws Habib Novel's lawsuit against Ahok out the window as well. BEAZER HOMES: Plaintiffs Withdrew Class Action Allegations ---------------------------------------------------------- Beazer Homes USA, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for fiscal year ended September 30, 2016, that plaintiffs have agreed to withdraw the class action allegations in their lawsuit without prejudice and filed an amended complaint removing the class action portion of the allegations. A purported class action lawsuit was filed on July 7, 2016 against the Company in Maricopa County Arizona Superior Court on behalf of all homeowners in Arizona that purchased homes from the Company that included a certain roof underlayment. The complaint alleges various construction defects, but principally claims that the roof underlayment used in these homes is susceptible to leaks and was not installed in accordance with best practices. The monetary damages the plaintiffs seek have not been quantified. The Company believes these allegations are without merit and that class action treatment is inappropriate. The Company said, "We have removed this case to federal court. The Company intends to vigorously defend itself against these claims, and believes at this time that any potential exposure is neither probable nor able to be estimated. To that end, we filed motions to dismiss the class action allegations on various grounds. After the filing of the motions to dismiss, the plaintiffs agreed to withdraw the class action allegations without prejudice and filed an amended complaint removing the class action portion of the allegations." BEST BUY: Case Management Conference Held in IBEW Suit ------------------------------------------------------ A Case Management Conference was held on January 6, 2017, before Judge Donovan W. Frank, in the case, IBEW Local 98 Pension Fund, individually and on behalf of all others similarly situated v. Best Buy Co., Inc., et al., Case No. 0:11-cv-00429 (D. Minn.). Best Buy Co., Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 2, 2016, for the quarterly period ended October 31, 2016, that a trial court set a January 2017 conference to discuss next steps in the case. The Company said, "In February 2011, a purported class action lawsuit captioned, IBEW Local 98 Pension Fund, individually and on behalf of all others similarly situated v. Best Buy Co., Inc., et al., was filed against us and certain of our executive officers in the U.S. District Court for the District of Minnesota. This federal court action alleges, among other things, that we and the officers named in the complaint violated Sections 10(b) and 20A of the Exchange Act and Rule 10b-5 under the Exchange Act in connection with press releases and other statements relating to our fiscal 2011 earnings guidance that had been made available to the public." "Additionally, in March 2011, a similar purported class action was filed by a single shareholder, Rene LeBlanc, against us and certain of our executive officers in the same court. In July 2011, after consolidation of the IBEW Local 98 Pension Fund and Rene LeBlanc actions, a consolidated complaint captioned, IBEW Local 98 Pension Fund v. Best Buy Co., Inc., et al., was filed and served. We filed a motion to dismiss the consolidated complaint in September 2011, and in March 2012, subsequent to the end of fiscal 2012, the court issued a decision dismissing the action with prejudice. In "April 2012, the plaintiffs filed a motion to alter or amend the court's decision on our motion to dismiss. In October 2012, the court granted plaintiff's motion to alter or amend the court's decision on our motion to dismiss in part by vacating such decision and giving plaintiff leave to file an amended complaint, which plaintiff did in October 2012. We filed a motion to dismiss the amended complaint in November 2012 and all responsive pleadings were filed in December 2012. "A hearing was held on April 26, 2013. On August 5, 2013, the court issued an order granting our motion to dismiss in part and, contrary to its March 2012 order, denying the motion to dismiss in part, holding that certain of the statements alleged to have been made were not forward-looking statements and therefore were not subject to the "safe-harbor" provisions of the Private Securities Litigation Reform Act. Plaintiffs moved to certify the purported class. "By Order filed August 6, 2014, the court certified a class of persons or entities who acquired Best Buy common stock between 10:00 a.m. EDT on September 14, 2010, and December 13, 2010, and who were damaged by the alleged violations of law. The 8th Circuit Court of Appeals granted our request for interlocutory appeal. On April 12, 2016, the 8th Circuit held the trial court misapplied the law and reversed the class certification order. IBEW petitioned the 8th Circuit for a rehearing en banc, which was denied on June 1, 2016. "In October 2016, IBEW advised the trial court it will not seek review by the Supreme Court. The trial court has set a January 2017 conference to discuss next steps. "We continue to believe that these allegations are without merit and intend to vigorously defend our company in this matter." BLUE DIAMOND: Settles Class Action Over "Natural" Label ------------------------------------------------------- Julian Gale, writing for Foodnews, reports that Blue Diamond, maker of Almond Breeze and Nut-Thins, has settled a class action lawsuit over claims it advertised the products as "all natural" or "natural" even though they actually contain synthetic ingredients. The suit also questioned how much almonds actually went into Almond Breeze, a plant-based alternative to traditional dairy milk. BLUE SHIELD: Obtains Favorable Ruling in TCPA Class Action ---------------------------------------------------------- Kat Sieniuc and Cara Salvatore, writing for Law360, report that a California federal judge gave Blue Shield a quick win in a proposed class action accusing the insurer of violating the Telephone Consumer Protection Act based on a single recorded phone call about plan renewal, saying common sense concludes a purely informational call isn't an ad. Shannon Smith sued her health care insurer in December 2015, taking issue with a recorded phone call she received from the health plan during her renewal period, letting her know that the plan had mailed her an information packet. She says she never gave written consent for such a call, and the call didn't include the phone number of the entity responsible for placing it. Blue Shield of California fought back and insisted the suit was groundless, saying law and regulation allow health plan providers to communicate plan information to their members. U.S. District Judge Cormac J. Carney agreed, drawing a distinction in an order on Jan. 13 between an informational call and telemarketing. "The call was devoid of marketing content and Blue Shield's discussions around the call centered on ameliorating its members' failure to open the mandated mailing and their subsequent displeasure at insurance coverage changes," Judge Cormac said, adding that "if the court accepted plaintiff's argument, nearly all innocuous, customer-friendly and informative gestures would be needlessly transformed into telemarketing and advertising." The judge noted, "It makes no sense to the court that a single call tracking Blue Shield's mandatory communications regarding insurance enrollment and renewal would expose Blue Shield to millions of dollars of liability under the TCPA." Ms. Smith claimed that urging recipients to visit Blue Shield's website made the call an advertisement, an argument that didn't resonate with the court. "Blue Shield's internal discussions regarding inclusion of the website in the call's script demonstrate that the goal was to direct customers to Blue Shield's member renewal tool, which allowed consumers to compare their current plan with various Blue Shield alternatives" for "purely informational" purposes, the judge said, adding that "the mere fact that parts of Blue Shield's website contain[] the capability of allowing consumers to engage in commerce does not transform any message including its homepage into telemarketing or advertising." Blue Shield of California called the case "one of the most egregious examples of a plaintiff seeking to extort millions of dollars in statutory damages based on a single call that not only did not advertise a product or service (and therefore was not telemarketing), but unquestionably benefited public health. This court ought not allow the TCPA to be stretched so far," it said. The health plan "placed a single telephone call to the 'best' telephone number provided by plaintiff herself with a prerecorded message confirming that she should have received the information and that she should review it. That's it." The meat of the recorded message, which Blue Shield says Smith heard when she picked up the phone on Dec. 3, was the following: "It's time to review your 2016 health plan options and see what's new. Earlier this month, we mailed you information about your 2016 plan and benefit changes. It compares your current health plan to other options from Blue Shield. You can also find out more online at blueshieldca.com." The message then told Smith to call the number on her ID card if she hadn't received the information packet. The packet included information about premium increases and copay and coverage changes, the company says, which are required by the Centers for Medicare and Medicaid Services. Counsel for both parties were not immediately available for comment. Ms. Smith is represented by James Hannink -- Jim.Hannink@sdlaw.com -- and Zachariah Dostart -- zdostart@sdlaw.com -- of Dostart Hannink & Coveney LLP. Blue Shield of California is represented by Jay Ramsey, Valerie Alter and Fred Puglisi of Sheppard Mullin Richter & Hampton LLP. The case is Smith v. Blue Shield, case number 8:16-cv-00108, in the U.S. District Court for the Central District of California. BROCADE COMMUNICATIONS: Robbins Geller Files Class Action --------------------------------------------------------- Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Jan. 18 disclosed that a class action has been commenced on behalf of holders of Brocade Communications Systems, Inc. ("Brocade") (BRCD) common stock on December 12, 2016, in connection with the acquisition of Brocade by Broadcom Limited and its affiliates ("Broadcom"). This action was filed in the Northern District of California and is captioned Mathew v. Brocade Communications Systems, Inc., et al., No. 17-cv-00237. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 2, 2017. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/brocade/. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Brocade, its Board of Directors (the "Board") and Broadcom with violations of the Securities Exchange Act of 1934 ("1934 Act") in connection with the acquisition of Brocade by Broadcom (the "Proposed Acquisition"). Brocade's networking solutions help the world's leading organizations turn their networks into platforms for business innovation. On November 2, 2016, Brocade and Broadcom announced that they had entered into a definitive merger agreement (the "Merger Agreement") under which Brocade will be acquired by Broadcom. Following a vote of Brocade shareholders approving the Proposed Acquisition, under the terms of the Merger Agreement, Brocade stockholders will receive just $12.75 in cash for each share of Brocade common stock held. The complaint alleges that in an attempt to secure shareholder support for the Proposed Acquisition, on December 6, 2016, defendants issued a materially false and misleading Preliminary Proxy Statement on Schedule 14A, and on December 20, 2016, defendants issued a materially false and misleading Definitive Proxy Statement on Schedule 14A (collectively, the "Proxy"). The Proxy, which recommends that Brocade shareholders vote in favor of the Proposed Acquisition, omits and/or misrepresents material information about the unfair consideration offered in the Proposed Acquisition and the actual intrinsic value of the Company on a standalone basis and as a merger partner for Broadcom, including information regarding critical data and inputs underlying the financial analyses supporting the fairness opinion of Brocade's financial advisor. The complaint alleges the omitted or misstated information is material to Brocade shareholders' ability to assess whether they believe the Company is worth more on a standalone basis than the consideration offered by Broadcom, and thus shareholders cannot make the determination whether to vote for or against the Proposed Acquisition. Plaintiff seeks injunctive relief on behalf of holders of Brocade common stock on December 12, 2016. The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller is widely recognized as one of the leading law firms advising U.S. and international institutional investors in securities litigation and portfolio monitoring. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history and was ranked first in both the total amount and number of shareholder class action recoveries in ISS's SCAS Top 50 Report for the last two years. Robbins Geller attorneys have shaped the law in the areas of securities litigation and shareholder rights and have recovered tens of billions of dollars on behalf of the Firm's clients. Robbins Geller not only secures recoveries for defrauded investors, it also strives to implement corporate governance reforms, helping to improve the financial markets for investors worldwide. Please visit http://www.rgrdlaw.com/cases/brocade/for more information. BURKHART DENTAL: Seeks Dismissal of Price-Fixing Class Action ------------------------------------------------------------- John Kennedy and Jeff Overley, writing for Law360, report that a regional dental supplies company on Jan. 13 told a New York federal judge that it's too small to have participated in an alleged nationwide price-fixing conspiracy and that the dentists who filed the proposed class action waited too long to add the company to the lawsuit. Formally pulled into the case as a defendant in October when the dentists filed an amended complaint, The Burkhart Dental Supply Co. is accused of taking part in a vast conspiracy involving Patterson Cos. Inc., Henry Schein Inc. and Benco Dental Supply Co. Inc., three dominant distributors that the dentists have said account for between 80 and 90 percent of the dental products market. In the Jan. 13 dismissal motion, Burkhart said that "its size and scope betray the notion that it participated in the alleged 'nationwide' conspiracy," pointing out that it controls an estimated 3 percent of the market and has branches in 11 states, all of them west of the Mississippi River. The Tacoma, Washington-based company also said that the only specific allegations against it focus on alleged events in 2008 -- for which the statute of limitations has long expired -- and that the dentists' other allegations are either instances of group pleading unsupported by facts regarding Burkhart or aren't made against Burkhart at all. When the class action claims arose starting early last year, Burkhart wasn't involved. Prior to the consolidation of dozens of complaints, none of them mentioned the company, focusing exclusively on Schein, Patterson and Benco. Only when the dentists filed their consolidated class action complaint did Burkhart appear, as a "non-defendant co-conspirator," not a defendant, the company said. "Plaintiffs had no reason to pursue a claim against Burkhart before, and lack any basis to do so now," the company said. The specific allegations against Burkhart involve a sales representative allegedly conspiring with Schein in 2008 to fix prices. But that alleged conduct happened more than eight years prior to the company being added to the current suit, the distributor said. Nothing can delay the limitations period either, Burkhart said, arguing that the plaintiffs knew about the alleged conspiracy prior to time running out and that all other allegations are group pleadings and thus insufficient to restart the clock. The New York court also lacks jurisdiction over Burkhart, which has no New York presence and doesn't conduct enough business there to confer personal jurisdiction, the company said. Even if it did, Burkhart said its sales to Empire State dentists lack a sufficient connection to the dentists' claims because the company only sells to New York customers through Kois Tribal Management Inc., a Washington-based group purchasing organization -- the very type of entity the plaintiffs have said the co- conspirators boycotted. The alleged 2008 conduct doesn't connect the company to New York, either, as it couldn't have resulted in any consequences in the state because Burkhart didn't sell to a single New York dentist until 2014, the distributor said. Ultimately, the dentists have failed to show any connection between Burkhart and the alleged conspiracy, as the company is omitted from one of the scheme's three interrelated components -- an agreement not to poach each others' employees -- and hasn't been included in trade show allegations at the core of the case. Without those connections, the plaintiffs have essentially admitted Burkhart couldn't have participated in the conspiracy, the company said. If the court decides not to dismiss Burkhart from the lawsuit, it should at least sever the dentists' claim against the company and stay it until the case against the three other companies ends. Otherwise, the plaintiffs' decision to add Burkhart to the case at such a late stage will require the company to do an unfair amount of work in a short period of time. "To date, hundreds of thousands of pages of documents have been produced, dozens of depositions have been taken, and dozens of subpoenas have been issued," the company said. "Burkhart has now been tasked with enormous 'catch-up' and ongoing discovery burdens while simultaneously seeking to dismiss a claim that plaintiffs, in two separate rounds of pleading, implicitly acknowledged to be deficient as against Burkhart." U.S. District Judge Brian M. Cogan refused to dismiss the case in September, finding that allegations of collusion and threats were polished enough to avoid dismissal. The three distributors had accused the dentists of wrongly depicting isolated actions as a nationwide conspiracy, but Judge Cogan wasn't convinced. Instead of the series of disjointed allegations the distributors claimed it was, the complaint sufficiently showed that they would systematically pressure rivals by threatening to use their market power to coerce manufacturers not to sell to them if they continued to sell dental supplies with low margins, the judge said. Because Burkhart wasn't added as a defendant until about a month later, it didn't play any role in that attempt to dismiss the case. The plaintiffs could not immediately be reached for comment on Jan. 18. Burkhart is represented by Richard H. Silberberg, Dai Wai Chin Feman and Jonathan Montcalm of Dorsey & Whitney LLP. The proposed class is represented by Berger & Montague PC, Hausfeld LLP, Cohen Milstein Sellers & Toll PLLC, Susman Godfrey LLP and Radice Law Firm PC. Schein is represented by Proskauer Rose LLP. Benco is represented by Buchanan Ingersoll & Rooney PC. Patterson is represented by Briggs and Morgan PA and Morrison & Foerster LLP. The case is In re: Dental Supplies Antitrust Litigation, case number 1:16-cv-00696, in the U.S. District Court for the Eastern District of New York. CANADA: Koskie Minsky Launches Thalidomide Class Proceeding ----------------------------------------------------------- On behalf of the proposed representative and Thalidomide survivor, Bruce Wenham, Koskie Minsky LLP in Toronto, Ontario has initiated a class proceeding against the Attorney General of Canada on behalf of all individuals whose applications to the Thalidomide Survivors Contribution Program ("TSCP") were rejected on the basis of failing to provide the required proof of eligibility. Thalidomide is an immunomodulatory drug that was provided to pregnant women across the world in the late 1950s and early 1960s to combat nausea and morning sickness. The use of Thalidomide in the first trimester of pregnancy was directly linked to children being born with debilitating malformities. In 1990, the Government of Canada established a compensation program for Canadian Thalidomide survivors. Following lobbying efforts, Health Canada announced in 2015 that new funds were to be made available for Canadian Thalidomide survivors through the TSCP and previously unidentified survivors could apply. The TSCP provides specific evidentiary requirements that effectively mean that previously unidentified Thalidomide survivors could only be eligible if they could provide prescription records or an affidavit from the prescribing doctor. The prescription records are over fifty years old and likely now destroyed, and the prescribing doctor is likely over eighty years old, if still alive. This class proceeding alleges that the establishment and application of the TSCP evidentiary requirements are unlawful as they are effectively impossible to meet. The applicant seeks to quash or set aside all decisions of the TSCP Administrator to reject applicants to the TSCP for failing to provide proof of the eligibility criteria and have their applications reconsidered. "Canadian Thalidomide survivors have suffered immensely," says David Rosenfeld, lead counsel at Koskie Minsky LLP, "The requirements of the program set up to assist the previously unidentified survivors are effectively impossible to meet and provides a false sense of optimism that the cause of their suffering would be recognized. There is manifest unfairness that the evidence and information that these forgotten survivors were able to gather some 50 years later would not even be considered for recognition under this program. This unfairness has been brought to the attention of Government of Canada, but it has not taken any action to address the issue. This case seeks to remedy that unfairness and provide these forgotten survivors with much needed access to justice." Koskie Minsky LLP, based in Toronto, is one of Canada's foremost class action, pension, trade union, and litigation firms. Its class actions group has been a leader in class actions and has prosecuted many of the leading cases in the area. Koskie Minsky LLP was counsel to the survivors of former residents of Huronia Regional Centre and 14 other residential facilities for people with disabilities against the Province of Ontario, wherein the Province agreed to pay survivors over $103.6 million and to provide an apology to former residents for the harm they sustained. Koskie Minsky LLP was also counsel in Cloud v. Canada, the first Indian residential schools class action certified in Canada, which resulted in a $4 billion pan-Canadian settlement. Website: www.kmlaw.ca/thalidomideclassaction Toll-free: 1-866-474-1741 Email: thalidomideclassaction@kmlaw.ca CANADA: RCMP Harassment Class Action May Cover 20,000 Women ----------------------------------------------------------- Manjula Dufresne and Natalie Clancy, writing for CBC News, report that a class-action harassment suit against the RCMP now certified by the Federal Court is open to as many as 20,000 female employees -- and could cost the federal police force more than expected. Janet Merlo and Linda Gillis Davidson, both former RCMP officers, had each launched lawsuits against the force. Certification of the class action, which Ottawa did not oppose at a recent hearing, paves the way for the court to give its blessing to a tentative settlement reached last May between the federal government and the women. Ms. Merlo, who launched her claim in 2012, said she was astounded and overwhelmed when she realized that the class action could include 20,000 women. "It started with 20 of us, and then the 500 mark was a huge deal, and now to think it could get into the thousands," she said on Jan. 16 after a federal judge found that the lawsuit could proceed. "I never in my wildest dreams thought that 20,000 would answer. . . . It's so damn disappointing that all these careers were lost and all these lives when they knew all along it was an issue," said Ms. Merlo, who spent most of her career in Nanaimo, B.C. Ms. Davidson of Bracebridge, Ont., who began a parallel lawsuit in 2015, is also a representative plaintiff of the settlement. David Klein, a lawyer representing Ms. Merlo, said if the settlement is approved at an upcoming hearing, it will be applied at six levels of compensation ranging from $10,000 to $220,000, depending on the severity of the harassment. When a settlement agreement relating to the cases was announced in October, it was expected to cost about $100 million, depending on the number of women who joined. Mr. Klein told CBC News the $100-million figure is an estimate. "The RCMP has said they will pay the claims at the stipulated amounts regardless of how many women come forward. At this point, we don't know what the total will be. It could exceed $100 million if more women come forward than was expected," Klein said. Federal Court Judge Ann Marie McDonald also approved a notice that will be going out to all potential 20,000 female members of the class in about a week. In addition to direct mailing, notices will be published in major newspapers and social media. Women can opt out Mr. Klein says women can opt out if they don't want to be part of the class action. There will be a settlement approval hearing likely in May of this year, he said, where women can express their support or objection to the settlement. According to Mr. Klein, it doesn't make sense for any of the women to opt out of the case unless they are pursuing their own individual lawsuit. "This is a good opportunity to receive compensation for the harassment and discrimination they experienced," he said. Women who have already filed suits on their own can opt out and join the class action too. In her written decision, McDonald said "individual actions would be inefficient and uneconomic." The opt-out deadline is likely to be the end of March. Spouses and children could qualify In addition to the "primary class" of female employees, there is a provision that "secondary class members" -- spouses and children of the severest cases -- could also receive compensation up to a maximum of 10 per cent. The harm caused by the harassment will determine which level it will be compensated at, said Klein. Former Supreme Court of Canada justice Michel Bastarache will evaluate the individual claims and administer the deal. Mr. Klein said the feedback from women since October has been positive. "They were pleased to see RCMP Commissioner Bob Paulson make a public apology and the [changes] that the RCMP is making to eliminate gender harassment and discrimination in the force," he said. CANADA: Judge Certifies RCMP Harassment Class Action ---------------------------------------------------- Colin Perkel, writing for The Canadian Press, reports that a proposed agreement to compensate women who endured sexual harassment as employees of the RCMP has passed a key hurdle, with a Federal Court judge agreeing two lawsuits against the police force can proceed as a class action. In certifying the class action, Judge Ann Marie McDonald said she was satisfied the women have shown they have reasonable grounds to press their lawsuit. Judge McDonald also approved the proposed definition of class members -- essentially all women who work for, or did work for, the RCMP starting in 1974. While individual claims will have to be assessed, Judge McDonald found that a class action is preferable to forcing victims to press claims on their own. "Based upon the information provided by the RCMP, there may be as many as 20,000 females who qualify as primary class members," the judge said in her written decision. "Individual actions would be inefficient and uneconomic." Former RCMP officers Janet Merlo and Linda Davidson, both of whom say they suffered gender-based discrimination and harassment, are appropriate as representative plaintiffs, the ruling states. Certification of the class action, which Ottawa did not oppose at a hearing, paves the way now for the court to give its blessing to a tentative settlement reached last May between the federal government and the women. A formal approval hearing is likely in May, according to the women's lawyers. In the interim, a publicity blitz via direct mail and through the media is expected to get underway to alert affected women to the class action and to give them 60 days to opt out if they wish. Victims also have an opportunity to comment on the fairness of the settlement before the approval hearing. The tentative deal, which would be administered by retired Supreme Court of Canada justice Michel Bastarache, creates six categories of claimants. Those who suffered the most egregious abuse would be eligible for up to $220,000. In some cases, family members of the RCMP employees would also be eligible for cash. Ms. Merlo, now of St. John's, N.L., was an RCMP constable from 1991 to 2010. She suffered depression, panic attacks and other health effects due to her mistreatment, court has heard. She began her claim in British Columbia in 2012. Ms. Davidson, 58, now of Bracebridge, Ont., filed her suit in 2015 in Ontario. Starting with the RCMP in 1985, she is one of the few females to reach a commissioned officer's rank. She was an inspector when she took medical leave in 2009, suffering from anxiety, depression and other health issues, and retired in 2012. In May last year, the two sides reached the tentative deal to compensate women who experienced workplace sexual harassment or gender-based discrimination while working for the RCMP. Details were announced in October and Commissioner Bob Paulson apologized for having failed the women. In addition to compensating the women -- Ottawa has set aside about $100-million -- the RCMP has also agreed to address systemic issues of gender-based harassment and discrimination. CARRIER CORP: Faces Product Liability Class Action in Florida ------------------------------------------------------------- Wadi Reformado, writing for Legal Newsline, reports that six consumers are suing Carrier and other heating and air conditioner suppliers, alleging design defect and product liability. Darren Koski, Jeffrey Yunis, John Commins, Nicole Suri, Caroline Canales, Maria Alonso filed a class action complaint, individually and on behalf of others similarly situated, Dec. 29 in U.S. District Court for the Southern District of Florida Miami Division against Carrier Corporation, Rheem Manufacturing Company, Nortek Global HVAC, Underwriters Laboratories, LLC, Underwriters Laboratories, Inc., Intertek Testing Services, NA Inc.; Tutco, Inc., Warren Technology Inc., Nova Coil Inc., alleging they manufactured and distributed defective heaters and HVAC systems. According to the complaint, the plaintiffs suffered monetary damages from being misled into purchasing a defective heater and HVAC equipment. The plaintiffs allege the defendants falsely advertised their product with certification labels that are compliant with safety standards when this was not the case. The plaintiffs seek trial by jury, damages, interest, restitution, legal fees and all other just relief. They are represented by attorney Domingo C. Rodriguez -- domingo@rlomiami.com -- of Rodriguez Law Office LLC in Miami. U.S. District Court for the Southern District of Florida Miami Division Case number 1:16-cv-25372-RNS CHICO'S FAS: "Altman" Class Suit in Early Stages ------------------------------------------------ Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 22, 2016, for the quarterly period ended October 29, 2016, that the case, Altman v. White House Black Market, Inc., is in the early stages and class determinations have not been made. In July 2015, the Company was named as a defendant in Altman v. White House Black Market, Inc., a putative class action filed in the United States District Court for the Northern District of Georgia. The Complaint alleges that the Company, in violation of federal law, published more than the last five digits of a credit or debit card number or an expiration date on customers' receipts. The Company denies the material allegations of the complaint. Its motion to dismiss was denied on July 13, 2016, but the Company continues to believe that the case is without merit and is not appropriate for class treatment. It intends to vigorously defend the matter. At this time however, it is not possible to predict whether the proceeding will be permitted to proceed as a class or the size of the putative class, and no assurance can be given that the Company will be successful in its defense on the merits or otherwise. Because the case is still in the early stages and class determinations have not been made, the Company is unable to estimate any potential loss or range of loss. CHICO'S FAS: Settlement Notices Distributed in "Ackerman" Suit -------------------------------------------------------------- Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 22, 2016, for the quarterly period ended October 29, 2016, that settlement notices have been distributed in the case, Ackerman v. Chico's FAS, Inc. In June 2015, the Company was named as a defendant in Ackerman v. Chico's FAS, Inc., a putative representative Private Attorney General action filed in the Superior Court of California, County of Los Angeles. The Complaint alleges numerous violations of California law related to wages, meal periods, rest periods, wage statements, and failure to reimburse business expenses, among other things. Plaintiff subsequently amended her complaint to make the same allegations on a class action basis. In June 2016, the parties submitted a proposed settlement of the matter to the court, and the court granted preliminary approval on August 26, 2016, and settlement notices have been distributed. If finally approved, the proposed settlement will not have a material adverse effect on the Company's consolidated financial condition or results of operations. CHICO'S FAS: "Ackerman" Action Settled & Dismissed -------------------------------------------------- Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 22, 2016, for the quarterly period ended October 29, 2016, that the case, Ackerman v. Chico's FAS, Inc., has been dismissed. In March 2016, the Company was named as a defendant in Cunningham v. Chico's FAS, Inc., a putative class action filed in the Superior Court of California, County of San Diego. Given the overlap with the claims alleged in the Ackerman case, described above, the Court initially stayed the Cunningham case pending final approval of the Ackerman settlement. In October 2016, the parties agreed to lift the stay and to resolve the matter as an individual action. The Court has since dismissed the case. The settlement amount was immaterial. CHICO'S FAS: Still Defends "Redem" Class Action ----------------------------------------------- Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 22, 2016, for the quarterly period ended October 29, 2016, that the Company continues to defend against the case, Rodems v. Chico's FAS, Inc. In June 2016, the Company was named as a defendant in Rodems v. Chico's FAS, Inc., a putative class action filed in the Superior Court of California, County of Fresno. Plaintiff sought to represent current and former nonexempt employees of Chico's stores in California. The Complaint alleged many of the same Labor Code violations as Ackerman. As a result, the court stayed the matter pending final approval of the Ackerman proposed settlement. The Company and the plaintiff subsequently agreed to a lifting of the stay and a filing of an amended complaint in early November, and the Company removed the case to the United State District Court for the Eastern District of California on November 9, 2016. In the proposed First Amended Complaint, the plaintiff makes similar claims of Labor Code violations against the Company but does not seek to represent a putative class or make class action allegations. The Company disputes the allegations of the First Amended Complaint and, at this time, does not expect that this case will have a material adverse effect on the Company's consolidated financial condition or results of operation. CHICO'S FAS: Mediation Held in "Calleros" Action ------------------------------------------------ Chico's FAS, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 22, 2016, for the quarterly period ended October 29, 2016, that mediation was held in the case, Calleros v. Chico's FAS, Inc., in November. On July 28, 2016, the Company was named as a defendant in Calleros v. Chico's FAS, Inc., a putative class action filed in the Superior Court of California, County of Santa Barbara. Plaintiff alleges that the Company failed to comply with California law requiring it to provide consumers cash for gift cards with a stored value of less than $10.00. The Company believes that the matter is not appropriate for class treatment; however, it is not possible to predict whether it will be permitted to proceed as a class or the size of the putative class, and no assurance can be given that the Company will be successful in its defense of this action on the merits or otherwise. Because class determinations have not been made, the Company is unable to estimate any potential loss or range of loss were it to lose on the merits of the case. However, the case was scheduled for voluntary mediation on November 28, 2016, and, at this time, the Company does not expect that the case will have a material adverse effect on the Company's consolidated financial conditions or results of operation. COMERICA BANK: Faces Class Action Over EPPICard Account Fees ------------------------------------------------------------ Atlanta law firm Webb, Klase & Lemond, LLC on Jan. 19 disclosed that it has filed a class action lawsuit against Comerica Bank in Atlanta, Georgia. The suit alleges that the bank engages in improper practices in its assessment of transaction fees on child support recipients who receive their benefits via EPPICard debit cards. The suit claims that Comerica, which is headquartered in Dallas, Texas, has engaged in these unfair practices in order to increase the fee revenue generated by a card holder's use of the EPPICard for ATM withdrawals, funds transfers, or other transactions. The case, styled Griggs v. Comerica, Inc. and Comerica Bank, was filed in the United States District Court for the Northern District of Georgia on January 12, 2017 and has been assigned Case Number 1:17-cv-00144-MHC. Even though the case is filed in Georgia it proposes a class action on behalf of EPPICard account holders in Alabama, Florida, Georgia, Illinois, Mississippi, New York, Ohio, Pennsylvania, and several other states where Comerica administers the debit card program. According to the suit, custodial parents who receive their child support payments from the non-custodial parent are issued MasterCard-branded debit cards -- referred to as EPPICards -- in order to access their child support funds. Comerica administers the EPPICard program for Alabama, Florida, Georgia, Illinois, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Carolina, Wisconsin, and perhaps several other states. The lawsuit alleges that Comerica routinely assesses transaction fees that violate the express terms and conditions that govern use of these debit cards. For example, Comerica is alleged to have charged withdrawal fees of $1.75 when no fee was due under the terms. If you have an EPPICard debit card that is administered by Comerica, or had one in the past, and you wish to discuss this action or have any questions concerning this press release, please contact Webb, Klase & Lemond by e-mail or by calling (770) 444- 9325. Webb, Klase & Lemond, LLC is a law firm that practices complex litigation with a focus on litigation arising from wrongful deprivations by corporate and government entities. COMMAND SECURITY: Settlement Payment in "Leal" Underway ------------------------------------------------------- Command Security Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended October 2, 2016, that the Company expected court approval and the first of the two installments of the settlement in the case, Leal v. Command Security Corporation, to be paid before December 31, 2016. On April 29, 2014, the California Superior Court granted a plaintiff's motion (Leal v. Command Security Corporation) to certify a class consisting of all persons who were employed by the Company in a non-exempt security officer position within the State of California at any time since May 2, 2007 through the date of trial who agreed to and signed an on-duty meal period agreement at the time of their employment. The case is a certified class action involving allegations that the Company violated certain California state laws relating to on-duty meal and rest breaks. On November 12, 2015, the Company agreed to a maximum settlement amount of $2.0 million, including plaintiff's attorney fees and costs, administration costs, and certain other miscellaneous costs. As part of the settlement, the parties further agreed that (i) the final settlement will be subject to court approval; (ii) a minimum of 50% of the net proceeds will be distributed to the class; and (iii) the settlement will be paid in two installments, the first to be paid upon court approval of the final settlement agreement and the second to be paid no later than one year from final approval. The Company expects court approval and the first of the two installments to be paid before December 31, 2016. The Leal v. Command Security Corporation lawsuit is one of numerous class action lawsuits filed during the past two years against security guard companies in California related to meal and rest break regulations. The Company aggressively defended its position in this case; however, given the environment in California regarding similar lawsuits, the Company settled this matter and believes that settling the matter provided a favorable outcome. While the parties have established a maximum settlement amount at $2.0 million, the Company recorded a $1.4 million provision in the quarter ended September 30, 2015. "We record legal costs associated with loss contingencies as expenses in the period in which they are incurred. This provision is based on the terms of the settlement and historical statistical information as to the expected rate of participation in similar cases provided to the Company by claims administrators. In the event the rate of participation in the settlement by class members were to exceed current estimates the final settlement amount could increase up to the maximum settlement amount. The settlement will be administered over the next one to two years," the Company said. CONAGRA FOODS: Greenberg Discusses Key Class Action Takeaways ------------------------------------------------------------- Robert J. Herrington, Esq. -- herringtonr@gtlaw.com -- and Rick L. Shackelford, Esq. -- shackelfordr@gtlaw.com -- of Greenberg Traurig, in an article for Law360, report that in Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require plaintiffs to establish an "administratively feasible" means of identifying putative class members, expressly rejecting decisions like Carrera v. Bayer Corp., 727 F.3d 300, 306-08 (3d Cir. 2013). But the decision goes well beyond administrative feasibility. Plaintiffs counsel will argue that the decision also endorses aggregate liability and damages determinations in consumer fraud cases to be followed by a "claims process" overseen by claims administrators. The impact of the decision remains to be seen, but Briseno is bad news for class action defendants, as it likely will make class certification easier in the Ninth Circuit. This article discusses the Briseno decision and offers key takeaways for future cases. The Ninth Circuit's Briseno Decision The Briseno case is one of many class actions challenging food labels. These cases have become substantially more popular in the plaintiffs' bar, because they do not usually present any opportunity for defendants to move them into arbitration based on class action waivers in arbitration agreements. Customers who buy off the shelf do not agree to arbitrate their claims. The Briseno plaintiffs claim that a "100% Natural" label is false or misleading because Wesson oils are made from bioengineered ingredients, which the plaintiffs argue are not "natural." The defendant argued that class certification should be denied because plaintiffs did not propose a way to identify class members and could not show that an that an administratively feasible method existed because consumers generally do not save grocery receipts and are unlikely to remember details about individual purchases of a low-cost product like cooking oil. In other words, consumers' self-identification of what product they bought and how much they paid (as much as four years before any complaint was filed) should not be sufficient to establish class membership and entitlement to share in any recovery. The district largely rejected these points and certified a class. On appeal under Rule 23(f), the Ninth Circuit affirmed the class certification order, rejecting the defendant's argument that the plaintiffs were required to demonstrate an administratively feasible way other than consumer self-identification to identify individuals who had purchased Wesson oils: A separate administrative feasibility prerequisite to class certification is not compatible with the language of Rule 23. Further, Rule 23's enumerated criteria already address the policy concerns that have motivated some courts to adopt a separate administrative feasibility requirement, and do so without undermining the balance of interests struck by the U.S. Supreme Court, Congress and the other contributors to the rule. Key Takeaways from Briseno Unless reversed or modified, Briseno means that, in the Ninth Circuit, class action plaintiffs are not required to establish an administratively feasible way to identify putative class members in order to have a class certified. The decision tracks recent decisions in the Sixth and Seventh Circuits, which also have rejected the Third Circuit's feasibility requirement. See Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital LLC, 795 F.3d 654, 658 (7th Cir. 2015). But aside from the court's holding on administrative feasibility, the Ninth Circuit's opinion addresses several arguments often raised in class actions in ways that are mostly unhelpful for class action defendants. Here are a few key takeaways from the decision: "Ascertainability" is not dead: Many courts and litigants use the term "ascertainability" to refer to different types of class certification issues, one of which is administrative feasibility. But as the Briseno opinion acknowledges, there are other forms of "ascertainability," including the requirement that the class be defined using objective criteria and that the definition not be too vague or overbroad. Although the Ninth Circuit rejects administrative feasibility as a separate requirement, the court cites Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1138 & n.7 (9th Cir. 2016), which addressed challenges to overbroad class definitions in the context of Rule 23(b)(3)'s predominance requirement and also acknowledged the potential for improper "fail-safe" classes that define the putative class based on an element of liability. Therefore, even after Briseno, certain "ascertainability" challenges appear to be alive and well, although they likely need to be couched in the context of one of Rule 23's express requirements. "Administrative feasibility" is not dead either: Briseno should not be read to mean that the difficulty of identifying putative class members is now irrelevant to class certification. To the contrary, the Ninth Circuit's opinion expressly recognizes that concerns about identifying the putative class may be analyzed within the context of Rule 23(b)(3)'s superiority requirement, which includes "the likely difficulties in managing a class action." The feasibility of identifying putative class members also can be analyzed in the context of Rule 23(b)(3)'s predominance requirement as an additional individualized issue to be compared against any allegedly "common" issue or issues. That said, the Ninth Circuit has made clear that administrative feasibility is not a separate class certification requirement, and therefore these arguments will need to be presented within the context of Rule 23's express requirements. In addition, the Ninth Circuit has said that manageability alone is not a sufficient basis to deny class certification, and so any administrative feasibility challenge will need to be combined with other challenges to certification. All of this likely means that administrative feasibility has little if any role to play when evaluating requests for class certification under Rule 23(b)(1) or (b)(2), which are not subject to the superiority requirement, and only a supporting role to play in cases where plaintiffs seek certification under Rule 23(b)(3). The Briseno opinion may be a boon for class action administrators: In two separate sections of the opinion, the Ninth Circuit refers to the role of class action administrators, first in identifying fraudulent claims and also in evaluating defense challenges to a class member's individual claims for damages. The discussion of these issues is dicta, but the Ninth Circuit appears to believe that class action administrators have a major role to play, not only in addressing class settlements, but also in certified class actions that are litigated to conclusion. The use of class administrators to identify class members had been proposed and rejected by other courts post-Carrera, and the added expense charged to the class to pay for administrators to provide this service might give weight to challenges under superiority, particularly in motions to decertify marginal Rule 23(b)(3) classes. Arguments about fraudulent claims are unlikely to carry much weight: In rejecting a separate administrative feasibility requirement, the Briseno opinion brushed aside concerns about absent class members submitting fraudulent claims, calling the risk "low, perhaps to the point of being negligible." The court noted that district courts "can rely, as they have for decades, on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques tailored by the parties and the court to avoid or minimize fraudulent claims." With this language, and without citing any evidence to support it, the Ninth Circuit appears to have concluded that the risk of fraudulent claims is not a reason to deny class certification. Arguments about a defendant's due process right to challenge class member claims appear to have taken a hit: In Briseno, the Ninth Circuit rejected arguments that a class could not be certified because a defendant has a due process right to challenge each putative class member's claim. The court framed the issue as whether "defendants must have an opportunity to dispute whether class members really bought the product or used the service at issue," and concluded that certification would not hinder these rights. In the court's view, the defendant always has the right to challenge whether the named representatives bought the product and "will have similar opportunities to individually challenge the claims of absent class members if and when they file claims for damages" through the claims administration process. The court specifically rejected the idea that a defendant's due process rights would be infringed by the need to obtain class member affidavits as part of a claims process. The court noted that, in litigation, a consumer affidavit attesting that he or she had purchased a product generally is sufficient to create a genuine issue of material fact requiring a trial. The court reasoned: "[g]iven that a consumer's affidavit could force a liability determination at trial without offending the due process clause, we see no reason to refuse class certification simply because that same consumer will present her affidavit in a claims administration process after a liability determination has already been made." Did the Ninth Circuit endorse aggregate damages determinations in consumer fraud cases? In what may be the most troubling part of the Briseno opinion, the Ninth Circuit addressed the plaintiffs' damages methodology in a way that might be read (incorrectly) as an endorsement of aggregate damages determinations. The court explained that "Plaintiffs propose to determine ConAgra's aggregate liability by (1) calculating the price premium attributable to the allegedly false statement that appeared on every unit sold during the class period, and (2) multiplying that premium by the total number of units sold during the class period." Concluding that a "defendant will generally know how many units of a product it sold in the geographic area in question," the Ninth Circuit reasoned that plaintiffs' price premium theory would allow the defendant to know the aggregate amount of liability "even if the identity of all class members is not." The court viewed this as an additional reason to reject an administrative feasibility requirement because the defendant's aggregate liability, and thus its due process rights, would not be affected by any inability to know the identity of each class member. Although the court does not decide whether an aggregate damages determination is permissible in consumer fraud cases and appears to acknowledge that this issue would be governed by applicable substantive law, plaintiffs' lawyers are sure to argue that Briseno allows the district court to decide damages on an aggregate basis for the entire class, followed by a claims process where class members can claim their part of the aggregate award. Are defendants better off in state court after Briseno? Several California appellate decisions have recognized a separate ascertainability requirement for class certification and held that a failure to satisfy that requirement is a sufficient basis for denying certification. See, e.g., Sevidal v. Target Corp., 189 Cal. App. 4th 905, 919 (2010) ("'Ascertainability . . . goes to the heart of the question of class certification,' and 'requires a class definition that is precise, objective and presently ascertainable . . . .'"). Other decisions have addressed ascertainability in far more lenient terms. See, e.g., Aguirre v. Amscan Holdings, Inc., 234 Cal. App. 4th 1290, 1306 (2015) ("Where, as here the class (as currently defined) describes a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description, and the plaintiff has proposed an objective method for identifying class members when that identification becomes necessary, there exists an ascertainable class."). But depending on the case, class action defendants may want to evaluate whether, after the Briseno decision, they are better off litigating class certification in state court. Increased settlement pressure and administrative burden on courts: By doing away with any administrative feasibility requirement, the Briseno decision likely will make it easier for plaintiffs to obtain class certification, which will increase pressure on defendants to settle class actions. At the same time, class action defendants have been increasingly willing to try dubious cases, and thus the Ninth Circuit's decision could mean more class actions proceeding to trial. The challenges of managing a certified class through trial may lead to greater administrative burdens on our courts, and perhaps to additional opportunities for decertification once those burdens become clear. The ultimate impact of Briseno is, of course, unclear. The case may be reheard or the U.S. Supreme Court may accept the case for review. But if it stands, Briseno is almost certain to make class certification easier in the Ninth Circuit, as it disposes of any separate administrative feasibility requirement. The opinion may have even broader ramifications, particularly in the area of aggregate damages, depending on how district courts interpret and apply it. Regardless, the decision underscores the need to take class actions seriously, as even minor consumer disputes can become major problems when magnified through the lens of Rule 23. Robert J. Herrington is a shareholder and co-chairman of the products liability and mass torts practice at Greenberg Traurig LLP in Los Angeles and San Francisco. Rick L. Shackelford is a shareholder and co-chairman of Greenberg Traurig's Los Angeles litigation practice and class action litigation group. Jeff E. Scott is managing shareholder at Greenberg Traurig in Los Angeles. CORAL TELL: Israel Class Action Lawsuit Remains Pending ------------------------------------------------------- Digital Turbine, Inc. said in its Form 10-Q/A Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that Coral Tell Ltd. continues to defend a class action lawsuit in Israel. On May 30, 2013, a class action suit in the amount of NIS 19,200, or approximately $5,300, was filed in the Tel-Aviv Jaffa District Court against Coral Tell Ltd., an Israeli company that owns and operates a website offering advertisements. Coral Tell Ltd. is currently being sued in a class action lawsuit regarding phone call overages, and has served a third-party notice against Logia and two additional companies for our alleged involvement in facilitating the overages. The suit relates to a service offered by the Coral Tell website, enabling advertisers to display a virtual cellular number in the advertisement instead of their real cellular number. The plaintiff claims that calls were charged for the connection time between two segments of the call, instead of the second segment alone; that the caller was charged even if the advertiser did not answer the call (as the charge began upon initiation of the first segment); and that the caller was charged for text messages sent to the advertiser, although the service did not support delivery of text messages. Digital Turbine said, "We have no contractual relationship with this company. We believe the lawsuit is without merit and a finding of liability on our part remote. After conferring with advisors and counsel, management believes that the ultimate liability, if any, in aggregate will not be material to the financial position or results or operations of the Company for any future period." CPI CARD: Court Entered Briefing Schedule on Motions to Dismiss --------------------------------------------------------------- CPI Card Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that the Court has entered a briefing schedule on defendants' prospective motion(s) to dismiss the amended complaint in the case, In Re CPI Card Group Inc. Securities Litigation, Case No. 1:16-CV-04531 (S.D.N.Y.). On June 15, 2016, two purported CPI shareholders filed putative class action lawsuits captioned Vance, et al. v. CPI Card Group Inc., et al. and Chipman, et al. v. CPI Card Group Inc., in the United States District Court for the Southern District of New York against CPI and certain of its officers and directors, along with the sponsors of and the financial institutions who served as underwriters for CPI's October 2015 IPO. The complaints, purportedly brought on behalf of all purchasers of CPI common stock pursuant to the October 8, 2015 Registration Statement filed in connection with the IPO, assert claims under Sec. 11 and 15 of the Securities Act of 1933 (the "Securities Act") and seek, among other things, damages and costs. In particular, the complaints allege that the Registration Statement contained false or misleading statements or omissions regarding CPI's customers' (i) purchases of Europay, MasterCard, and VISA chip cards (collectively, "EMV cards") during the first half of fiscal year 2015 and resulting EMV card inventory levels, and (ii) capacity to purchase additional EMV cards in the fourth quarter of fiscal year 2015, the remainder of the fiscal year ending December 31, 2015, and the fiscal year . The complaints allege that these actions artificially inflated the price of CPI common stock issued pursuant to the IPO. On August 30, 2016, the Court consolidated the Vance and Chipman actions and appointed lead plaintiff and lead counsel pursuant to the Private Securities Litigation Reform Act ("PSLRA"). Labaton Sucharow was appointed lead counsel, according to the firm's press statement. On October 17, 2016, lead plaintiff filed a consolidated amended complaint, asserting the same claims for violations of Sec. 11 and 15 of the Securities Act. The amended complaint is based principally on the same theories as the original complaints, but adds allegations that the Registration Statement contained inadequate risk disclosures and failed to disclose (i) small and mid-size issuers' slower-than-anticipated conversion to EMV technology and (ii) increased pricing pressure and competition CPI faced in the EMV market. The Court has entered a briefing schedule on defendants' prospective motion(s) to dismiss the amended complaint. All discovery and other proceedings in the action are stayed under the PSLRA pending the resolution of such motions. The Company believes these claims are without merit and intends to defend the action vigorously. CPI Card is a provider of comprehensive financial payment card solutions in North America. CSRA INC: Parties in "Strauch" Action Explored Settlement --------------------------------------------------------- CSRA, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that the parties in the Strauch et al. Fair Labor Standards Act Class Action have explored potential settlement scenarios but have not concluded any settlement. On July 1, 2014, plaintiffs filed Strauch and Colby v. Computer Sciences Corporation in the U.S. District Court for the District of Connecticut, a putative nationwide class action alleging that CSC violated provisions of the Fair Labor Standards Act ("FLSA") with respect to system administrators who worked for CSC at any time from June 1, 2011 to the present. Plaintiffs claim that CSC improperly classified its system administrators as exempt from the FLSA and that CSC, therefore, owes them overtime wages and associated relief available under the FLSA and various statutes, including the Connecticut Minimum Wage Act, the California Unfair Competition Law, California Labor Code, California Wage Order No. 4-2001, and the California Private Attorneys General Act. CSC's Motion to Transfer Venue was denied in February 2015. In September 2015, plaintiffs filed an amended complaint, which added claims under Missouri and North Carolina wage and hour laws. The relief sought by Plaintiffs includes unpaid overtime compensation, liquidated damages, pre- and post-judgment interest, damages in the amount of twice the unpaid overtime wages due, and civil penalties. If a liability is ultimately incurred as a result of these claims, CSRA would pay a portion to CSC pursuant to an indemnity obligation. CSC and CSRA both maintain the position that system administrators have the job duties, responsibilities, and salaries of exempt employees and are properly classified as exempt from overtime compensation requirements. On June 9, 2015, the Court entered an order granting the plaintiffs' motion for conditional certification of the class of system administrators. The conditionally certified FLSA and putative classes include approximately 1,285 system administrators, of whom 407 are employed by CSRA and the remainder employed by CSC. Courts typically undertake a two-stage review in determining whether a suit may proceed as a class action under the FLSA. In its order, the Court noted that, as a first step, the Court examines pleadings and affidavits, and if it finds that proposed class members are similarly situated, the class is conditionally certified. Potential class members are then notified and given an opportunity to opt-in to the action. The second step of the class certification analysis occurs upon completion of discovery. At that point, the Court will examine all evidence then in the record to determine whether there is a sufficient basis to conclude that the proposed class members are similarly situated. If it is determined that they are, the case will proceed to trial; if it is determined they are not, the class is decertified and only the individual claims of the purported class representatives proceed. CSRA's and CSC's position in this litigation continues to be that the employees identified as belonging to the conditional class were paid in accordance with the FLSA and applicable state laws. Plaintiffs filed their motion for class certification on June 3, 2016. CSC filed its opposition on July 15, 2016. Plaintiffs filed their reply brief on August 12, 2016 and the matter is currently under advisement with the Court. The parties have explored potential settlement scenarios but have not concluded any settlement. Accordingly, the litigation is ongoing and briefing on plaintiffs' motion for class certification, the next step in the litigation, is in progress. CSRA delivers IT, mission- and operations-related services across the U.S. federal government to the DoD, intelligence community and homeland security, civil and healthcare agencies, as well as certain state and local government agencies. DAKOTA ACCESS: North Dakota Landowners File Suit Over Easements --------------------------------------------------------------- Blake Nicholson, writing for The Associated Press, reports that a group of about two dozen North Dakota landowners is suing the developer of the disputed Dakota Access oil pipeline for alleged deceit and fraud in acquiring land easements. The Morton County landowners are seeking more than $4 million in damages in the federal lawsuit filed this month against Dakota Access LLC, a subsidiary of Texas-based Energy Transfer Partners. The landowners maintain Dakota Access engaged in unfair tactics and fraud while negotiating to lay pipeline on private land, resulting in compensation that was as much as nine times lower than what other landowners got. ETP spokeswoman Vicki Granado says the company believes the allegations are without merit. The company has until about the end of the month to file its response in court. DEUTSCHE BANK: Ordered to Pay for Investors' Damages ---------------------------------------------------- Lee Hyun-jung at Pulse reports Deutsche Bank AG was ordered by a lower South Korean court to pay damages to individual investors for their losses in equity-linked securities as the result of stock price manipulation by the German bank in the country's first-ever class action litigation on securities. The Seoul Central District Court ruled in favor of six plaintiffs on Friday, obligating the German bank to pay 8.58 billion won ($7.3 million) in damages in the first kind of its case since the Securities-Related Class Action Act was introduced in 2005. If upheld by the top court, other investors that had been burned up to 25 percent in their investment in ELS sold by Korea Investment & Securities Co. in 2007 also would have to be compensated. The investment product was linked to the performance of underlying shares of KB Kookmin Bank and Samsung Electronics. Deutsche Bank who was responsible for hedging the investment sold large amount of shares in KB Kookmin Bank right before market closing in August 2009 and brought down the stock price below the expiry benchmark to cause 25 percent loss in the principal for the investors in the ELS. It was the third class action lawsuit related to securities approved by the Supreme Court, following the class action suits brought against construction equipment parts supplier Jinsung T.E.C. and Royal Bank of Canada (RBC) by their shareholders. Jinsung T.E.C. reached out-of-court settlement with shareholders. The first trial on the RBC suit is in motion. DISH NETWORK: Jury Awards $20+ Mil. in "Do Not Call" Litigation --------------------------------------------------------------- The Associated Press reported that a federal jury in North Carolina is awarding more than $20 million to 51,000 people on the Do Not Call registry who were contacted by Dish Network. Citing a report by The Herald-Sun of Durham, the AP said a jury decided on Jan. 20 to give $400 to each of the people on the registry called at the end of a five-day trial in the class-action lawsuit. The jury could have decided to award between $0 and $500, the report said. According to the AP, Dish Network sent Herald-Sun an email saying is disagrees with the verdict and is considering an appeal. The phone calls were made by a defunct Dish Dealer. A law firm reviewed 1.6 million calls to find the ones that violated the Do Not Call Registry created in 2003, the report noted. * * * DISH DBS Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 15, 2016, for the quarterly period ended September 30, 2016, that a portion of the alleged telemarketing violations by an independent third-party retailer at issue in the Do Not Call Litigation case are the subject of a certified class action filed against DISH Network L.L.C. in the United States District Court for the Middle District of North Carolina. Trial in that action was scheduled to commence on January 9, 2017. The Company said, "On March 25, 2009, our wholly-owned subsidiary DISH Network L.L.C. was sued in a civil action by the United States Attorney General and several states in the United States District Court for the Central District of Illinois, alleging violations of the Telephone Consumer Protection Act and the Telemarketing Sales Rule ("TSR"), as well as analogous state statutes and state consumer protection laws. The plaintiffs allege that we, directly and through certain independent third- party retailers and their affiliates, committed certain telemarketing violations." "On December 23, 2013, the plaintiffs filed a motion for summary judgment, which indicated for the first time that the state plaintiffs were seeking civil penalties and damages of approximately $270 million and that the federal plaintiff was seeking an unspecified amount of civil penalties (which could substantially exceed the civil penalties and damages being sought by the state plaintiffs). The plaintiffs were also seeking injunctive relief that if granted would, among other things, enjoin DISH Network L.L.C., whether acting directly or indirectly through authorized telemarketers or independent third-party retailers, from placing any outbound telemarketing calls to market or promote its goods or services for five years, and enjoin DISH Network L.L.C. from accepting activations or sales from certain existing independent third-party retailers and from certain new independent third-party retailers, except under certain circumstances. We also filed a motion for summary judgment, seeking dismissal of all claims. "On December 12, 2014, the Court issued its opinion with respect to the parties' summary judgment motions. The Court found that DISH Network L.L.C. is entitled to partial summary judgment with respect to one claim in the action. In addition, the Court found that the plaintiffs are entitled to partial summary judgment with respect to ten claims in the action, which includes, among other things, findings by the Court establishing DISH Network L.L.C.'s liability for a substantial amount of the alleged outbound telemarketing calls by DISH Network L.L.C. and certain of its independent third-party retailers that were the subject of the plaintiffs' motion. The Court did not issue any injunctive relief and did not make any determination on civil penalties or damages, ruling instead that the scope of any injunctive relief and the amount of any civil penalties or damages are questions for trial. In pre-trial disclosures, the federal plaintiff indicated that it intended to seek up to $900 million in alleged civil penalties, and the state plaintiffs indicated that they intended to seek as much as $23.5 billion in alleged civil penalties and damages. The plaintiffs also modified their request for injunctive relief. Their requested injunction, if granted, would enjoin DISH Network L.L.C. from placing outbound telemarketing calls unless and until: (i) DISH Network L.L.C. hires a third-party consulting organization to perform a review of its call center operations; (ii) such third-party consulting organization submits a telemarketing compliance plan to the Court and the federal plaintiff; (iii) the Court holds a hearing on the adequacy of the plan; (iv) if the Court approves the plan, DISH Network L.L.C. implements the plan and verifies to the Court that it has implemented the plan; and (v) the Court issues an order permitting DISH Network L.L.C. to resume placing outbound telemarketing calls. The plaintiffs' modified request for injunctive relief, if granted, would also enjoin DISH Network L.L.C. from accepting customer orders solicited by certain independent third-party retailers unless and until a similar third-party review and Court approval process was followed with respect to the telemarketing activities of its independent third-party retailer base to ensure compliance with the TSR. The first phase of the bench trial took place January 19, 2016 through February 11, 2016. In closing briefs, the federal plaintiff indicated that it still is seeking $900 million in alleged civil penalties; the California state plaintiff indicated that it is seeking $100 million in alleged civil penalties and damages for its state law claims (in addition to any amounts sought on its federal law claims); the Ohio state plaintiff indicated that it is seeking approximately $10 million in alleged civil penalties and damages for its state law claims (in addition to any amounts sought on its federal law claims); and the Illinois and North Carolina state plaintiffs did not state the specific alleged civil penalties and damages that they are seeking; but the state plaintiffs have taken the general position that any damages award less than $1.0 billion (presumably for both federal and state law claims) would not raise constitutional concerns. Under the Eighth Amendment of the U.S. Constitution, excessive fines may not be imposed. On October 3, 2016, the plaintiffs further modified their request for injunctive relief, and are now seeking, among other things, to enjoin DISH Network L.L.C., whether acting directly or indirectly through authorized telemarketers or independent third-party retailers, from placing any outbound telemarketing calls to market or promote its goods or services for five years, and enjoin DISH Network L.L.C. from accepting activations or sales from some or all existing independent third-party retailers. The second phase of the bench trial, which commenced on October 25, 2016 and concluded on November 2, 2016, covered the plaintiffs' requested injunctive relief, as well as certain evidence related to the state plaintiffs' claims. DOLE FOODS: Faces Class Action Over False Health Benefit Claims --------------------------------------------------------------- Louie Torres, writing for Legal Newsline, reports that a California consumer is suing Dole Foods, alleging breach of warranty, fraud and negligent misrepresentation. Alfredo Ramirez of Orange County filed a class action complaint, individually and on behalf of all others similarly situated, Dec. 27 in U.S. District Court for the Central District of California against Dole Packaged Foods LLC, and Does 1 through 25, alleging they made false claims regarding the health benefits of their food products. According to the complaint, Mr. Ramirez suffered monetary damages from being misled into buying Dole food products that were promised to be healthy. The plaintiff alleges the defendants say their products are "healthy" despite having large quantities of sugar. Mr. Ramirez seeks trial by jury, compensatory and punitive damages, interest, restitution, injunctive relief, court costs and all further relief the court grants. He is represented by attorneys Reuben D. Nathan of Nathan & Associates APC in Newport Beach, California, and by Ross Cornell in Long Beach, California. U.S. District Court for the Central District of California Case number 8:16-cv-02260-DOC-DFM DOLLAR GENERAL: Kessler Topaz Files Securities Class Action ----------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on Jan. 19 disclosed that it has filed a shareholder class action lawsuit against Dollar General Corporation (DG) ("Dollar General" or the "Company") on behalf of purchasers of the Company's securities between March 10, 2016 and November 30, 2016, inclusive (the "Class Period"). The action was filed in the U.S. District Court for the Middle District of Tennessee and is captioned Iron Workers Local Union No. 405 Annuity Fund v. Dollar General Corp., et al., No. 3:17-cv-00063. Investors who purchased Dollar General securities during the Class Period may, no later than March 20, 2017, petition the Court to be appointed as a lead plaintiff representative of the class. For additional information, or to view a copy of the complaint, please visit https://www.ktmc.com/new-cases/dollar-general- corporation#join. Dollar General investors who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O. Bell, Esq.) at (888) 299 - 7706 or at info@ktmc.com. Dollar General is one of the largest discount retailers in the United States. As a discount retailer, Dollar General's core customers are low- and fixed-income households, a significant percentage of which qualify for the federal food stamp benefits program (formally known as the Supplemental Nutrition Assistance Program or "SNAP"). Beginning in 1996, SNAP benefits were limited to no more than 3 months out of any 26 month period for unemployed individuals who are not disabled or raising minor children. Many states waived this limitation in the aftermath of the 2008 financial crisis. Given the improving condition of the U.S. economy, at least 20 states were planning to re-implement the limitation in 2016, which would go into effect in April at the beginning of the second fiscal quarter of 2016. The complaint alleges that throughout the Class Period the defendants made false and misleading statements and failed to disclose material adverse facts about the Company's business and operations to investors. Specifically, defendants made false and/or misleading statements and/or failed to disclose that the announced limitations on SNAP benefits would have a material impact on the Company's financial performance because 56% of Dollar General's stores are located in states that re-implemented time limitations on SNAP benefits in 2016, and therefore the impact of SNAP reductions would be disproportionate to the percentage of the Company's overall sales comprised of SNAP payments. These statements were material to investors because they were made in response to concerns by analysts that SNAP benefits were going to be reduced in a number of states -- which potentially would have impacted Dollar General's sales to the extent its business operations were exposed to SNAP changes. The truth about the impact that SNAP reductions were having on Dollar General's business began to surface on August 25, 2016, when the Company announced disappointing second quarter 2016 financial and operational results. The Company attributed its disappointing quarterly results, in part, to "a reduction in both SNAP participation rates and benefit levels." On this news, Dollar General's stock price declined $16.18 per share, or more than 17%, from a close of $91.79 per share on August 24, 2016, to close at $75.61 on August 25, 2016. Subsequently, on December 1, 2016, Dollar General announced third quarter 2016 financial and operational results that included a reduction in same-store sales, even though the Company had previously predicted annual same-store sales growth of 2-4%, and most analysts expected a quarterly increase in same-store sales of nearly 1%. The Company again attributed its poor quarterly performance, in large part, to reductions in SNAP benefits, and finally admitted the true impact that SNAP reductions were having on its sales, stating that the benefit reductions "affect[] about 56% of our store base . . . And those states that have had the reduction or elimination, they are approximately 100-basis-point worse in comp. That gives you a real good idea of how impactful those SNAP benefits reductions have been." On this news, Dollar General's stock price declined $3.84, or nearly 5%, from a close of $77.32 per share on November 30, 2016, to close at $73.48 per share on December 1, 2016. DOLLAR GENERAL: Court Vacates Deadlines in "Varela" Suit -------------------------------------------------------- In the case, Juan Varela v. Dolgen California, the court has vacated the deadlines for the filing of motions related to class certification in light of other discovery matters pending before the court, and no new deadlines have been set, Dollar General Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 28, 2016. On May 23, 2013, a lawsuit entitled Juan Varela v. Dolgen California and Does 1 through 50 ("Varela") was filed in the Superior Court of the State of California for the County of Riverside. In the original complaint, the Varela plaintiff alleges that he and other "key carriers" were not provided with meal and rest periods in violation of California law and seeks to recover alleged unpaid wages, injunctive relief, consequential damages, pre-judgment interest, statutory penalties and attorneys' fees and costs and seeks to represent a putative class of California "key carriers" as to these claims. The Varela plaintiff also asserts a claim for unfair business practices and seeks to proceed under California's Private Attorney General Act (the "PAGA"). On November 4, 2014, the Varela plaintiff filed an amended complaint to add Victoria Lee Dinger Main as a named plaintiff and to add putative class claims on behalf of "key carriers" for alleged inaccurate wage statements and failure to provide appropriate pay upon termination in violation of California law. The Company filed answers to both the complaint and amended complaint. The court recently vacated the deadlines for the filing of motions related to class certification in light of other discovery matters pending before the court. No new deadlines have been set. DOLLAR GENERAL: Proceedings in "Pleasant" Suit Stayed ---------------------------------------------------- The court has stayed proceedings in the case, Kendra Pleasant v. Dollar General Corporation, Dolgen California, LLC, until resolution of the Varela matter, Dollar General Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 28, 2016. On January 15, 2015, a lawsuit entitled Kendra Pleasant v. Dollar General Corporation, Dolgen California, LLC, and Does 1 through 50 ("Pleasant") was filed in the Superior Court of the State of California for the County of San Bernardino in which the plaintiff seeks to proceed under the PAGA for various alleged violations of California's Labor Code. Specifically, the plaintiff alleges that she and other similarly situated non-exempt California store-level employees were not paid for all time worked, provided meal and rest breaks, reimbursed for necessary work related expenses, and provided with accurate wage statements and seeks to recover unpaid wages, civil and statutory penalties, interest, attorneys' fees and costs. The court has stayed proceedings in this matter until resolution of the Varela matter. DOLLAR GENERAL: Feb. 23 Final Fairness Hearing Set in "Sullivan" ---------------------------------------------------------------- Dollar General Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 28, 2016, that the final fairness hearing is scheduled for February 23, 2017, in the case, Sullivan v. Dolgen California. On February 20, 2015, a lawsuit entitled Julie Sullivan v. Dolgen California and Does 1 through 100 ("Sullivan") was filed in the Superior Court of the State of California for the County of Alameda in which the plaintiff alleges that she and other similarly situated Dollar General Market store managers in the State of California were improperly classified as exempt employees and were not provided with meal and rest breaks and accurate wage statements in violation of California law. The Sullivan plaintiff also alleges that she and other California store employees were not provided with printed wage statements, purportedly in violation of California law. The plaintiff seeks to recover unpaid wages, including overtime pay, civil and statutory penalties, interest, injunctive relief, restitution, and attorneys' fees and costs. On April 8, 2015, the Company removed this matter to the United States District Court for the Northern District of California and filed its answer on the same date. On April 29, 2015, the Sullivan plaintiff amended her complaint to add a claim under the PAGA. The Company's response to the amended complaint was filed on May 14, 2015. The plaintiff's motion for class certification was filed in March 2016. Plaintiff subsequently conceded that her exemption claim is not amenable to class certification but continued to pursue her individual misclassification claim and class certification of her wage statement claim. On June 14, 2016, the parties reached a preliminary agreement to resolve this matter for an amount not material to the Company's consolidated financial statements as a whole, which has been submitted to, and received preliminary approval from, the court. The final fairness hearing is scheduled for February 23, 2017. At this time, although probable, it is not certain that the court will grant final approval to the settlement. If the court does not approve the settlement and the case proceeds, it is not possible to predict whether Sullivan ultimately will be permitted to proceed as a class action with respect to the wage statement claim, and no assurances can be given that the Company will be successful in its defense on the merits or otherwise. DOLLAR GENERAL: Motion to Dismiss "Farley" Suit Pending ------------------------------------------------------- Dollar General Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 28, 2016, that the Company's motion to dismiss and to compel arbitration in the case by Eric Farley and Dane Rinaldi remains pending. On July 8, 2016, a lawsuit entitled Eric Farley and Dane Rinaldi v. Dolgen California, LLC ("Farley") was filed in the Superior Court of the State of California for the County of San Joaquin. The Farley plaintiffs allege they and other similarly situated "key carriers" in California were not provided with meal and rest periods, accurate wage statements, and appropriate pay upon termination in violation of California law. The Farley plaintiffs also assert a claim for unfair business practices and seek to recover alleged unpaid wages, injunctive relief, consequential damages, pre-judgment interest, statutory penalties and attorneys' fees and costs. On September 15, 2016, the Farley plaintiffs filed an amended complaint seeking to recover penalties under the PAGA. On October 19, 2016, the Company removed the matter to the United States District Court for the Eastern District of California. Currently pending is the Company's motion to dismiss and to compel arbitration. DOLLAR GENERAL: Settlement Reached in "Debinder" Suit ----------------------------------------------------- Dollar General Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 28, 2016, that the Company has reached a settlement of the lawsuit by Matthew Debinder. On August 2, 2016, a lawsuit entitled Matthew Debinder v. Dolgencorp, LLC ("Debinder") was filed in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. The Debinder plaintiff alleges on behalf of himself and a putative class of "applicants" that certain of the Company's background check procedures violate the Fair Credit Reporting Act ("FCRA"). The parties reached an agreement in October 2016 to resolve this matter for an amount that is not material to the Company's consolidated financial statements as a whole. DOLLAR GENERAL: Motor Oil Litigation Underway --------------------------------------------- Dollar General Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 28, 2016, that the Company continues to defend against the case, In re Dollar General Corp. Motor Oil Litigation. In December 2015 and February, March, May and June 2016, the Company was notified of several lawsuits in which the plaintiffs allege violation of state consumer protection laws relating to the labeling, marketing and sale of Dollar General private-label motor oil. Each of the lawsuits was filed in, or removed to, various federal district courts of the United States (collectively "the Motor Oil Lawsuits"). On June 2, 2016, the United States Judicial Panel on Multidistrict Litigation ("JPML") granted the Company's motion to centralize the Motor Oil Lawsuits in a matter styled In re Dollar General Corp. Motor Oil Litigation, Case MDL No. 2709, before the United States District Court for the Western District of Missouri ("Motor Oil MDL"). As a result of the JPML's order, the following cases have been transferred to, and are currently part of, the Motor Oil MDL: Bradford Barfoot and Leonard Karpeichik v. Dolgencorp, LLC (filed in the Southern District of Florida on December 18, 2015) ("Barfoot"); William Flinn v. Dolgencorp, LLC (filed in the District Court for New Jersey on December 17, 2015) ("Flinn"); John Foppe v. Dollar General Corporation and Dolgencorp, LLC (filed in the Eastern District of Kentucky on February 10, 2016) ("Foppe"); Miriam Fruhling v. Dollar General Corporation and Dolgencorp, LLC (filed in the Southern District of Ohio on February 10, 2016) ("Fruhling"); Kevin Gadson v. Dolgencorp, LLC (filed in the Southern District of New York on February 8, 2016) ("Gadson"); Bruce Gooel v. Dolgencorp, LLC (filed in the Eastern District of Michigan on February 8, 2016) ("Gooel"); Janine Harvey v. Dollar General Corporation and Dolgencorp, LLC (filed in the District Court for Nebraska on February 10, 2016) ("Harvey"); Chuck Hill v. Dolgencorp, LLC (filed in the United States District Court for the District of Vermont on February 8, 2016) ("Hill"); John J. McCormick, III v. Dolgencorp, LLC (filed in the District Court of Maryland on December 23, 2015) ("McCormick"); Nicholas Meyer v. Dollar General Corporation and DG Retail, LLC (filed in the District of Kansas on February 9, 2016) ("Meyer"); Robert Oren v. Dollar General Corporation and Dolgencorp, LLC (filed in the Western District of Missouri on February 8, 2016) ("Oren"); Brandon Raab v. Dolgencorp, LLC and Dollar General Corporation (filed in the Western District of North Carolina on July 15, 2016); Scott Sheehy v. Dollar General Corporation and DG Retail, LLC (filed in the District Court for Minnesota on February 9, 2016) ("Sheehy"); Will Sisemore v. Dolgencorp, LLC (filed in the Northern District of Oklahoma on December 21, 2015) ("Sisemore"); Gerardo Solis v. Dollar General Corporation and DG Retail, LLC (filed in the Northern District of Illinois on February 12, 2016) ("Solis"); James Taschner v. Dollar General Corporation and Dolgencorp, LLC (filed in the Eastern District of Missouri on March 15, 2016) ("Taschner"); Roberto Vega v. Dolgencorp, LLC (filed in the Central District of California on February 8, 2016) ("Vega"); Matthew Wait v. Dollar General Corporation and Dolgencorp, LLC (filed in the Western District of Arkansas on February 16, 2016) ("Wait"); and Jason Wood and Roger Barrows v. Dollar General Corporation and Dolgencorp, LLC (filed in the Northern District of New York on May 9, 2016) ("Wood"). On August 29, 2016, as directed by the court, the plaintiffs in the Motor Oil MDL filed a consolidated amended complaint, in which they seek to certify two nationwide classes and 16 statewide sub- classes and for each putative class member some or all of the following relief: compensatory damages, injunctive relief, statutory damages, punitive damages and attorneys' fees. The Company's responsive pleading to the consolidated amended complaint was due to be filed on or before December 5, 2016. The Company believes that the labeling, marketing and sale of its private-label motor oil complies with applicable federal and state requirements and is not misleading. The Company further believes that these matters are not appropriate for class or similar treatment. The Company intends to vigorously defend these actions; however, at this time, it is not possible to predict whether any of these cases will be permitted to proceed as a class or the size of any putative class. Likewise, at this time, it is not possible to estimate the value of the claims asserted, and no assurances can be given that the Company will be successful in its defense of these actions on the merits or otherwise. For these reasons, the Company is unable to estimate the potential loss or range of loss in these matters; however if the Company is not successful in its defense efforts, the resolution of any of these actions could have a material adverse effect on the Company's consolidated financial statements as a whole. DOMFOAM/VALLE FOAM: Settlement Hearings to Begin on March 6 ----------------------------------------------------------- Purchasers of Polyurethane Foam Products* purchased in Canada between January 1, 1999 and January 10, 2012, are part of a class action *Polyurethane Foam Products means flexible polyurethane foam that is not molded foam or technical foam, and any and all products, including carpet underlay, that contain flexible polyurethane foam that is not molded foam or technical foam, except in the Domfoam/Valle Foam and Woodbridge settlements and settlements with certain individuals where it means all kinds of polyurethane foam and all products which contain any kind of polyurethane foam. Polyurethane foam is used in furniture, bedding, automotive interiors, flooring including carpet underlay, and in many other contexts. The Actions There are class action lawsuits certified/authorized across Canada alleging that the makers of Polyurethane Foam Products fixed the price of those products in Canada. The defendants deny those allegations. The Courts have already approved a settlement with defendants Domfoam/Valle Foam and certain individuals and $5,450,780.44 has been recovered. Additional money may still be received from Domfoam/Valle Foam's insolvency and an assignment. The Courts have also approved settlements with the defendants Carpenter, Vitafoam, FFP/Flexible Foam, Future Foam, Hickory Springs, Leggett & Platt, Mohawk Industries, Woodbridge and certain individuals for a further recovery of $29,282,497. The parties have now reached a new settlement with the remaining defendants, Foamex Innovations, Inc., Foamex Innovations Canada Inc., Les Industries Foamextra Inc. ("FXI") and certain individuals for $2,450,000. The Courts have certified/authorized the class actions against FXI and certain individuals for settlement purposes. The deadline for opting out of the class actions has already passed. Who is affected? Individuals and entities in Canada and related parties who purchased Polyurethane Foam Products in Canada between January 1, 1999 and January 10, 2012, except for defendants and their related parties, are settlement class members and are affected by the settlement and the certifications/authorization against FXI and certain individuals. This new settlement provides benefits to settlement class members in return for a release of the settling defendants and others from claims regarding Polyurethane Foam Products purchased in Canada. What happens next? The Courts will now be asked to approve this new settlement and the lawyers' fees. If the new settlement is not approved by the Courts, the class actions will continue against the FXI settling defendants. If the Courts approve this new settlement, class members will be bound by it. The hearings will be: in Vancouver, BC on March 6, 2017 at 10 a.m.; in Laval, Qu‚bec on March 21, 2017 at 9:00 a.m.; and in London, Ontario on April 12, 2017 at 9:30 a.m. The lawyers will ask the Courts for approval of a fee of 25% of these additional settlement funds achieved plus taxes and case expenses. The amount that is approved by the Courts as fair and reasonable will be deducted from the settlement funds. How will the money be distributed to Settlement Class Members? A proposed distribution protocol has been finalized by the lawyers in consultation with economic and industry experts and the Courts will be asked to approve that distribution protocol and a settlement administration protocol at the settlement approval hearings. The money will be distributed to settlement class members who purchased certain Polyurethane Foam Products in Canada between January 1, 1999 and January 10, 2012. No money will be paid for purchases of molded or technical flexible polyurethane foam and products which contain molded or technical flexible polyurethane foam. The distribution protocol will be posted on this website at https://is.gd/VQ0Nn6 A new notice will also be published when the claims process commences. Settlement class members should retain all proof of purchase of Polyurethane Foam Products in Canada between January 1, 1999 and January 10, 2012 and monitor this website for updated information on the settlement approvals and the future claims process. If you would like direct notice of steps relating to the distribution protocol, contact the lawyers for the class at the email addresses below. Can I exclude myself from the Class Actions? No. The right to opt out of the class actions was provided when the actions were certified/authorized by the Courts in relation to the Domfoam/Valle Foam settlement approval. The deadline has already passed. What if I don't like the new settlements, the distribution protocol or the lawyers' fee request? You can object. If you think the new settlement, the proposed distribution protocol, or the lawyers' request for fees and expenses are unfair, you can write to the Courts. If you wish to do so, you need to send your objection to the lawyers at the address below by March 1, 2017. Objections and inquiries should not be sent directly to the Courts. The lawyers will organize and provide all the material to the Courts for you. You may also attend a hearing and ask to speak to the Court. Please contact the lawyers at the information below if you want to attend one of these hearings. Contact information for the lawyers for the class: BC residents: Branch MacMaster LLP at chermanson@branmac.com, and Camp Fiorante Mathews Mogerman at polyfoam@cfmlawyers.ca Quebec residents: Belleau Lapointe at membres@recourscollectif.info All others: Sutts Strosberg LLP at polyclassaction@strosbergco.com Settlement Class Members should monitor the websites for updated information and future claims process. DREAMWORKS ANIMATION: Judge Approves $50MM Settlement for Workers ----------------------------------------------------------------- Ted Johnson at Variety reports a federal judge has given the greenlight to a $50 million settlement of a class action lawsuit brought by animation workers against DreamWorks Animation, claiming that the studio violated antitrust laws by conspiring to set animation wages via non-poaching agreements. U.S. District Judge Lucy Koh gave her preliminary approval to the settlement on Thursday, and said the settlement was "fair and reasonable." The settlement provides for a cash payment of $50 million to a class-action fund. The named plaintiffs, Robert Nitsch, David Wentworth, and Georgia Cano, had already reached settlement agreements with Sony Imageworks and Blue Sky Studios. Other defendants in the case are the The Walt Disney Company, Lucasfilm, Pixar, and ImageMovers, whose cases are still pending. Koh noted that DreamWorks Animation "has independently agreed to cooperate with plaintiffs in authenticating documents, and in not voluntarily producing any employee to testify at trial for any non-settling defendant." Under the terms of the proposed DreamWorks settlement, the class includes certain animation and visual effects workers who worked at DreamWorks from 2004 to 2010; Pixar from 2004 to 2010; Lucasfilm from 2004 to 2010; The Walt Disney Co. from 2004 to 2010; Sony Pictures Animation and Sony Pictures Imageworks from 2004 to 2010; Blue Sky from 2005 to 2010; and ImageMovers from 2007 to 2010. The plaintiffs' attorneys are allowed to ask for up to 25% of settlement funds for attorneys fees, and each of the named plaintiffs would receive up to $10,000 each. Exact payments for each employee will be based on a formula, posted on the class action website. The final fairness hearing is scheduled for May 18. The lawsuit was filed by Nitsch, a former DreamWorks Animation senior character effects artist; Wentworth, a former ImageMovers Digital production engineer; and Cano, a digital artist who held jobs at Rhythm & Hues, Walt Disney Feature Animation, and ImageMovers Digital. In its settlement, Sony agreed to pay $13 million to the settlement fund, and Blue Sky agreed to contribute $5.95 million. The workers contend that the roots of the anti-poaching agreements go back to the mid-1980s, when George Lucas and Ed Catmull, the president of Steve Jobs' newly formed company Pixar, agreed to not raid each other's employees. Other companies then joined the conspiracy, the suit contended, with agreements on such things as cold calling and notifying each other when making an offer to an employee of another company. EAST POINT, GA: Court Approves Power Overbilling Class Action ------------------------------------------------------------- WGCL reports that a court has approved a class action lawsuit against the city of East Point for allegedly overcharging for power. The court's approval was confirmed by CBS46 reporter Adam Murphy. Outraged residents filed the lawsuit in 2016, accusing their government of putting profits over people. An attorney representing residents says the city has collected millions of dollars from overbilling during the past decade and placed the money in a general fund. The city responded by saying their actions are justified. ENTERTAINMENT ONE: Faces Class Action Over Sirius XM Deal --------------------------------------------------------- Suevon Lee, writing for Law360, reports that a string trio and an entertainment company filed a putative class action against independent record label Entertainment One GP LLC in New York federal court on Jan. 17, claiming that the label failed to report revenue from digital entertainment media distribution to Sirius XM Radio. Time for Three, a Pennsylvania-based group that calls itself a "classical garage band," and California-based Fooseaoke LLC, which does business as S'more Entertainment, allege in a complaint that Entertainment One and its predecessor-in-interest, Koch Entertainment LP, entered into "secret negotiations and agreements" with Sirius XM to exploit the plaintiffs' intellectual property and failed to pay the proposed class revenue generated from that avenue. "Defendants have systematically, knowingly and intentionally withheld and failed to account for and pay for revenue generated from Sirius XM plaintiffs and other class members," states the complaint for breach of contract, breach of the implied covenant of good faith and fair dealing, an accounting and declaratory relief. The allegations are based on a December 2008 licensing agreement and a November 2010 distribution agreement that Time for Three and S'More respectively entered into with Koch and Entertainment One. The licensing agreement with Koch runs for 10 years and sets out the royalty compensation structure the label would pay to Time for Three. The distribution agreement grants Entertainment One the right to distribute musical works for S'More Entertainment and was amended in January 2011 to incorporate digital entertainment media distribution to Sirius XM, according to the complaint. The plaintiffs allege that the distribution agreement required Entertainment One and Koch to account for revenue generated from digital entertainment media distribution and pay S'more Entertainment a portion of those revenues. Under the agreements, the record label agreed to pay class members in exchange for the rights to distribute the musical works through various media such as hard copy records and digital downloads through iTunes and Amazon, streaming services like Spotify and Pandora and digital satellite radio like Sirius XM. However, the plaintiffs allege that the label "secretly withheld" revenues generated from Sirius XM from the putative class members, causing them substantial damages. The number of the proposed class totals more than 100, according to the suit, and is comprised of all persons and entities and other parties who were parties to the licensing or distribution agreements with Entertainment One that included digital entertainment media distribution rights and whose musical works were played on Sirius XM. A representative for the plaintiffs declined to comment on Jan. 17. A representative for Entertainment One did not immediately respond to request for comment. The proposed class is represented by Michael R. Reese and George V. Granade of Reese LLP and Neville L. Johnson, Douglas L. Johnson -- djohnson@jjllplaw.com -- and Jordanna G. Thigpen -- jthigpen@jjllplaw.com -- of Johnson & Johnson LLP and Clifford H. Pearson, Daniel L. Warshaw and Bobby Pouya of Pearson Simon & Warshaw LLP. Counsel information for Entertainment One was not immediately available on Jan. 17. The case is Time for Three LLC et al. v. Entertainment One GP LLC et al., case number 1:17-cv-00329, in the U.S. District Court for the Southern District of New York. ERIN ENERGY: Bid to Dismiss to Dismiss Stockholders Suit Underway ----------------------------------------------------------------- Erin Energy Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 15, 2016, for the quarterly period ended September 30, 2016, that a hearing on defendants' motions to dismiss a class action complaint was set for January 18, 2017. The Company said, "On February 5, 2016, a class action and derivative complaint was filed in the Delaware Chancery Court purportedly on behalf of the Company and on behalf of a putative class of persons who were stockholders as of the date the Company (1) acquired the Allied Assets pursuant to the Transfer Agreement and (2) issued shares to the Public Investment Corporation (SOC) Limited, a state-owned company incorporated in the Republic of South Africa ("PIC") in a private placement (collectively the "February 2014 Transactions"). The complaint alleges the February 2014 Transactions were unfair to the Company and purports to assert derivative claims against (1) the seven individuals who served on our Board at the time of the February 2014 Transactions and (2) our majority shareholder, CEHL. The complaint also purports to assert a direct breach of fiduciary duty claim on behalf of the putative class against the seven individuals who served on our Board at the time of the February 2014 Transactions on the grounds that they purportedly caused the Company to disseminate a false and misleading proxy statement in connection with the February 2014 Transactions, and a direct claim for aiding and abetting against Dr. Kase Lawal, the former Executive Chairman of the Board of Directors and Chief Executive Officer of the Company. The plaintiff is seeking, on behalf of the Company and the putative class, an undisclosed amount of compensatory damages." "The Company is named solely as a nominal defendant against whom the plaintiff seeks no recovery. "On March 3, 2016, all of the defendants, including the Company, filed motions to dismiss the complaint. A hearing on this motion has been set for January 18, 2017." Erin Energy Corporation, a Delaware corporation, is an independent oil and gas exploration and production company focused on energy resources in Africa. Our strategy is to acquire and develop high- potential exploration and production assets in Africa. FENIX PARTS: Faces "Beezley" Suit Alleging Securities Act Breach ---------------------------------------------------------------- AMANDA BEEZLEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, vs. FENIX PARTS, INC., KENT ROBERTSON, and SCOTT PETTIT, Defendants, Case No. 2:17-cv-00233 (D.N.J., January 12, 2017), is a securities suit that alleges among others that Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company had an inadequate inventory valuation methodology; and (2) the Company had an inadequate methodology to calculate goodwill impairment. FENIX PARTS, INC. owns full service and self service recycling yards throughout the USA and Canada. The Plaintiff is represented by: Laurence M. Rosen, Esq., Esq. THE ROSEN LAW FIRM, P.A. 609 W. South Orange Avenue, Suite 2P South Orange, NJ 07079 Phone: (973) 313-1887 Fax: (973) 833-0399 Email: lrosen@rosenlegal.com FENIX PARTS: Bronstein Gewirtz Files Securities Class Suit ---------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Fenix Parts, Inc. ("Fenix" or the "Company") (FENX) and certain of its officers, and is on behalf of a class consisting of all persons or entities who purchased Fenix securities between May 14, 2015 and October 12, 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/fenx. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that: (1) Fenix had an insufficient inventory valuation methodology; (2) Fenix had an incompetent methodology to calculate goodwill impairment; (3) Fenix was involved and/or had been involved in conduct that would result in an SEC investigation; and (4) consequently, Defendants' statements about Fenix's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. 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/fenx,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 Fenix, you have until March 13, 2017 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Attorney advertising. Prior results do not guarantee similar outcomes. FIAT CHRYSLER: Faces Emission Software Class Action in Canada ------------------------------------------------------------- A class action lawsuit seeking $250 million in damages on behalf of Canadian purchasers of 2014-2016 diesel Jeep Grand Cherokees and Dodge Ram 1500 trucks (the "Vehicles") was commenced on January 16, 2017 in the Ontario Superior Court of Justice. The class action alleges that on January 12, 2017, the U.S. Environmental Protection Agency ("EPA") issued a notice of violation to Fiat Chrysler Automobiles N.V. ("FCA NV") and to FCA US LLC ("FCA") for alleged violations of law resulting from the installation and failure to disclose engine management software that resulted in increased emissions of nitrogen oxide from the vehicles. The class action brought against FCA NV, FCA and FCA Canada Inc. ("FCA Canada") alleges that Canadian purchasers of the Vehicles were deceived by the defendants' failure to disclose the presence of this software, resulting in losses and damage to members of the class. A copy of the Notice of Action can be found on the Sotos LLP website at https://is.gd/fprRzu. Canadian purchasers of 2014-2016 diesel Jeep Grand Cherokees or Dodge Ram 1500 trucks can access the website at https://is.gd/l9DgZB to register to obtain further information about the class action. The plaintiff and the proposed national class are being represented by Sotos LLP. FIAT CHRYSLER: Rosenberg Law Probing Emissions-Cheating Claims -------------------------------------------------------------- Rosenberg Law is investigating a potential class action against Fiat Chrysler Automobiles NV on behalf of owners of 2014, 2015, 2016 Jeep Grand Cherokees and Dodge Ram 1500 trucks with 3.0 litre diesel engines. The investigation concerns the possible use by Fiat Chrysler of emissions-cheating devices resulting in unlawfully-high emissions levels in the automaker's diesel cars. On January 12, 2017, the Environmental Protection Agency issued a "notice of violation" to Fiat Chrysler citing more than 104,000 vehicles with 3-litre diesel engines including the 2014, 2015, 2016 Jeep Grand Cherokee and Dodge Ram pickups. If you purchased or leased one of these vehicles, please contact Rosenberg Law by e-mail at dmoriarty@rosenberglaw.ca to discuss the possibility of bringing a claim. Rosenberg Law is a B.C. class actions firm. It was the first law firm to bring a class action to the British Columbia Court of Appeal under the Class Proceedings Act. FOOT CENTER: Faces "Brown" Suit Alleging Labor Law Violations ------------------------------------------------------------- KIMBERLY BROWN, 101 Waldon Road, Abingdon, Maryland 21009, Resident of Harford County, Plaintiff, Individually and on Behalf of All Similarly Situated Employees v. DRS. COHEN & NORTON, P.A., D/B/A THE FOOT CENTER OF BEL AIR, 2208 Old Emmorton Road, Suite 101, Bel Air, Maryland 21015, Serve: Adam J. Chavis, R.A., 14 Blacksmith Court, Baltimore, MD 21136 and DR. PHILLIP M. COHEN, 3600 Anton Farms Road, Pikesville, MD 21208, Resident of Baltimore County and DR. NANCY M. NORTON, 805 Champions Court, Reisterstown, MD, 21136, Resident of Baltimore County, Defendants, Case No. 1:17-cv-00108-JKB (D. Md., January 12, 2017), seeks to recover alleged unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act; unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under Maryland Wage and Hour Law, Maryland Code Annotated, Labor & Employment; and unpaid wages, treble damages, interest, reasonable attorneys' fees and costs under the Maryland Wage Payment and Collection Law, Maryland Code Annotated, Labor & Employment. Defendant is in the podiatric medical practice. The Plaintiff is represented by: Benjamin L. Davis, III, Esq. George E. Swegman, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Phone: (410) 244-7005 Fax: (410) 244-8454 E-mail: bdavis@nicholllaw.com gswegman@nicholllaw.com FORD MOTOR: Kuga Fire Victim's Family Mulls Class Action -------------------------------------------------------- Gia Nicolaides, writing for Eyewitness, reports that the family of the man who burnt to death in his Ford Kuga in 2015 have announced they will be bringing a class-action lawsuit against the car manufacturer. Reshall Jimmy's brother and sister held a press briefing in Pretoria on Jan. 17 after the car manufacturer announced it was recalling the Kuga 1.6 litre model as several vehicles have caught alight. On Jan. 16, Ford and the National Consumer Commission recalled the 1.6 Kuga made between December 2012 and February 2014 due to overheating issues. Ford maintains that there have been no injuries, and that the 2015 case involving Jimmy was unique and unrelated. On Jan. 16 Ford SA CEO Jeff Nemeth explained that Jimmy's death had nothing to do with the recent problem identified with the Kugas. "While the case of Mr Jimmy's vehicle has not been determined. All investigating parties have ruled out an engine compartment fire." Attorney Rod Montano says he'll be acting on behalf of victims to bring a class action against Ford, with 31 claims submitted to the NCC to date. Jimmy says since his brother's death he has been trying to get answers from Ford and share relevant information with the manufacturer's investigative team, but says he's received very little co-operation. Over 30 motorists who have been affected by the Ford Kuga catching alight will also be bringing a class action against the car manufacturer. Renisha and Kaveen Jimmy say they're only partially satisfied about Ford's announcement to recall the vehicle. Renisha says she doesn't believe this recall is enough to protect motorists. "I don't see very much of a difference to what they have done over the period of December because people are taking their cars in and my biggest concern is people did this in December, and cars burnt after so for me they should have taken these cars off the roads." Kaveen says Ford made no effort to contact the family after his brother's death and they have evidence that the fire started in the front of the vehicle. The attorney representing the Jimmy's Rod Montano says he'll be representing the 30 motorists to bring a class action against Ford. FORD MOTOR: Motor Industry Calls for Action on Kuga Fires --------------------------------------------------------- Wendy Knowler, writing for HeraldLive, reports that "Ford must act -- now!" said Motor Industry Ombud Johan van Vreden on Jan. 16. "This is a first for me in my 16 years as ombudsman," he said. "One or two vehicles in the same model range catching fire is not unusual, but almost 50 . . .it's crazy, especially in a small market like ours." Regardless of the outcome of the investigation into the cause of the Ford Kuga fire in which Reshall Jimmy was killed in December 2015, Mr. Van Vreden said, the other 46 Kuga fires all appear to have started in the engine compartment, requiring Ford to take immediate "appropriate action" within the recall policies of Ford and the Consumer Protection Act. "I hope that at the press conference they reveal very clearly what they propose to do." There are different forms of recall in the motor industry. A service recall is actioned in the case of an issue which is not what the industry terms safety critical, and it's carried out during a routine service, often without the owner's knowledge. But a safety recall, due to what the industry terms a "safety critical" issue such as dozens of vehicles catching alight -- is clearly far more serious. It is actioned voluntarily by the manufacturer or as a result of being forced to by an authority such as the National Consumer Commission (NCC). The manufacturer undertakes the responsibility and total cost of fixing the problem, replacing the vehicle or buying it back, depending on the issue and the circumstances. WHAT DOES THE LAW SAY? "The Consumer Protection Act (CPA) is clear, in terms of Section 61 that there is strict liability for any damage or harm caused by a product which is unsafe when supplied or which has an inherent hazard or a defect," says CPA and product liability specialist attorney Janusz Luterek. "This liability extends beyond replacement of the vehicle to any harm or damage caused and economic loss suffered by the owner, passengers, family or potentially even other members of the public or rescue services who are affected by it. "These claims could be very large indeed and include loss of income in the case of injury and loss of support in the case of a death. "A burning Kuga could also lead to a larger fire in a mall or in dense traffic causing untold harm and exposing Ford to huge liability." The CPA also provides for class action lawsuits, Mr. Luterek said. Attorney Rod Montano, who represents the owners of most of the Kugas which have caught fire, said such a class action is indeed being planned. On Jan. 16, along with the siblings of Reshall Jimmy, he tried to hand over written complaints from the 46 Kuga fire victims at the offices of the NCC, but was denied access and ordered off the property by Commission spokesman Trevor Hattingh. Mr. Hattingh told The Times it was simply a matter of them not having made an appointment. The complainants are urging the NCC to recall the 1.6-litre Kuga, as a precursor to lodging a civil claim against the company as a class action. Mr. Luterek said there may also be both criminal and civil liability for the directors and other officers of Ford South Africa under the Companies Act of 2013, "especially where they have intentionally or negligently failed to recall a vehicle which has been shown to be a hazard and in which at least one person has already died". "What is more alarming is the disdain Ford South Africa has for South Africans -- whereas Ford in the USA recalled the Ford Escape (Kuga in South Africa) due to fire risk after 13 fires with no injuries, it fails to do the same here in the face of 45 fires and one death." The Ford Pinto scandal For many, the burning Ford Kuga issue brings to mind a particularly scandalous chapter of Ford's history -- that of the Ford Pinto in the late 70s. Due to the poor design of the fuel tank, the car -- the biggest selling sub-compact car in the US at the time -- tended to burst into flames when crashed into from behind. It emerged in civil trials that Ford waited eight years to re-design the fuel tank because its internal "cost-benefit analysis" -- which placed a dollar value on human life -- said it wasn't profitable to make the changes sooner. Twenty-seven people died in Pinto fires; among them three teenagers. In August 1978, sisters Judy (18) and Lynn Ulrich (16) and their cousin Donna Ulrich (18) were travelling on a highway in Indiana when their Ford Pinto was struck from behind by a van. The Pinto's petrol tank ruptured and all three were burnt to death. Times reader Joy Donovan said the Ford Pinto story was part of her business ethics class at UCT. "Most notable was that Ford actually worked out the cost of a human life and found that it was cheaper to settle each claim as it happened, rather than institute a mass recall," she said. In September 1978 -- a month after the Ulrich teenagers died in a Pinto fire, Ford finally issued a recall for 1.5 million 1971-76 Pinto sedans and Runabouts, plus all similar 1975-76 Mercury Bobcats, for a safety repair. While Ford was acquitted of criminal charges, it lost several million dollars and gained a reputation for manufacturing "the barbecue that seats four". In his book Talking Straight, former Ford exec Lee Iacocca wrote: "Clamming up is what we did at Ford in the late '70s when we were bombarded with suits over the Pinto, which was involved in a lot of gas tank fires. "The suits might have bankrupted the company, so we kept our mouths shut for fear of saying anything that just one jury might have construed as an admission of guilt. "Winning in court was our top priority; nothing else mattered. "And of course, our silence added to all the suspicions people had about us and the car." FOUGERA PHARMACEUTICALS: Castillo Sues Over Desonide Price-Fixing ----------------------------------------------------------------- CESAR CASTILLO, INC., individually and on behalf of all those similarly situated, Plaintiff, v. ACTAVIS HOLDCO U.S., INC., FOUGERA PHARMACEUTICALS, INC., PERRIGO COMPANY PLC, PERRIGO NEW YORK, INC., SANDOZ, INC., and TARO PHARMACEUTICALS USA, INC., Defendants, Case No. 1:17-cv-00250 (S.D.N.Y., January 12, 2017, alleges a conspiracy by Defendants to artificially fix, raise, maintain and/or stabilize the prices of generic desonide. Fougera Pharmaceuticals, Inc. is a specialty dermatology generic pharmaceutical company. The Plaintiff is represented by: Linda P. Nussbaum, Esq. Bradley J. Demuth, Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036-8718 Phone: (917) 438-9195 E-mail: lnussbaum@nussbaumpc.com bdemuth@nussbaumpc.com - and - Juan R. Rivera Font, Esq. JUAN R. RIVERA FONT LLC Ave. Gonzalez Giusti #27, Suite 602 Guaynabo, PR 00968 Phone: (787) 751-5290 E-mail: juan@riverafont.com GOLDEN CORRAL: Faces Suit for Failing to Pay Overtime Compensation ------------------------------------------------------------------ Alex Wolf at Law360 reports Golden Corral Corp. may offer customers an endless buffet, but it has shown itself to be less bountiful to those it employs as associate managers by wrongfully exempting them from federal and state overtime pay requirements, according to a lawsuit filed in Pennsylvania federal court on January 18. The buffet-style restaurant chain was hit with a class and collective action by two former associate managers claiming they primarily performed the same tasks as hourly employees, but were misclassified as exempt workers. As a result, they and others did not receive overtime compensation despite regularly being required to work more than 40 hours a week, according to the suit. Plaintiffs Scott Hinterleiter and Shawn Click, who respectively worked as associate managers at Golden Corral locations in Erie, Pennsylvania, and Louisville, Kentucky, say the company violates the Fair Labor Standards Act by misclassifying them as exempt employees, willfully failing to pay associate managers overtime wages and willfully failing to record all of the time that its employees have worked. "Defendant was aware that plaintiffs and the class members worked more than 40 hours per workweek, yet defendant failed to pay overtime compensation for hours worked over 40 in a workweek," the complaint states. Hinterleiter and Click allege that those employed as "kitchen associate managers" and "hospitality managers" at any one of Golden Corral's approximately 94 locations nationwide primarily do the same work as non-exempt employees. These tasks include cooking and preparing food, taking out trash, washing dishware, refilling buffet food, unpacking supplies, cleaning and serving customers, they said. The primary duties of those in the associate manager position "were not directly related to defendant's management or general business operations" and "did not include the exercise of discretion or independent judgment regarding matters of significance," the plaintiffs said. The complaint alleges violations of the FLSA and wage laws from both Pennsylvania and Kentucky. The plaintiffs aim to bring an opt-in collective action under the federal law and certify two separate classes of those who currently or formerly worked as associate managers at a Golden Corral in either Pennsylvania or Kentucky. The FLSA and Pennsylvania's Minimum Wage Law would cover employees that worked for a period of time after March 14, 2013, while the Kentucky Wage Laws would cover employees that worked after March 14, 2011. The plaintiffs seek to recover unpaid wages and other monetary awards and an order that would require Golden Corral to cease its overtime exemption of associate managers. Golden Corral did not immediately provide a comment on the allegations in the suit when contacted on January 19. The plaintiffs are represented by Mark J. Gottesfeld and Peter Winebrake of Winebrake & Santillo LLC, Justin M. Swartz, -- jswartz@outtengolden.com -- Melissa L. Stewart, -- mstewart@outtengolden.com -- and Christopher M. McNerney, -- cmcnerney@outtengolden.com -- of Outten & Golden LLP, and Gregg I. Shavitz, -- gshavitz@shavitzlaw.com -- and Michael Palitz, -- mpalitz@shavitzlaw.com -- of Shavitz Law Group PA. Counsel information for Golden Corral was not immediately available on January 19. The case is Hintleiter et al. v. Golden Corral Corp., case number 1:17-cv-00014, in the U.S. District Court for the Western District of Pennsylvania. GRAIN PROCESSING: Seeks to Overturn Class Action Certification -------------------------------------------------------------- Grant Rodgers, writing for Des Moines Register, reports that a defense attorney for a Muscatine corn processing plant is asking the Iowa Supreme Court to block a class-action lawsuit brought by residents who claim the plant has long spewed smoke, haze and pollutants over their homes. The lawsuit brought by eight residents was approved by a district court judge in 2015 to represent a group of more than 4,000 people who've lived near a corn wet mill owned by Grain Processing Corp. The lawsuit claims that pollution from the plant has blown onto properties in the city's south end, leaving foul smells and fueling fears about cancer and other health problems. But Michael Reck, a Des Moines attorney representing the company, asked Iowa justices during oral arguments on Jan. 18 to overturn the ruling certifying the case as a class action. That would be a blow to the Muscatine residents who've pursued the lawsuit for years. "Without the class, it really becomes difficult for the folks impacted to seek justice and accountability," said Josh Mandelbaum, a staff attorney at the Environmental Law and Policy Center in Des Moines who has followed the litigation. "I think a case like this and the fact that there continue to be concerns from the community reflects questions about whether or not there's been sufficient accountability for GPC's actions." However, Mr. Reck argued that attorneys for the group of property owners plan to prove their case at trial using testimony from yet unnamed Muscatine residents who live around the plant, but aren't named as plaintiffs in the lawsuit. That's a sign that the plaintiffs' attorneys believe testimony from the eight residents alone won't be enough to prove that everybody living around the plant suffered similar harms from emissions -- a fundamental aspect of class-action law, Mr. Reck told the seven justices. "There are a couple of things that are clearly, clearly wrong here," he said. "You do not get to say that, 'Our class representatives cannot prove liability class-wide, so we're going to pick unidentified individuals to carry that burden elsewhere.'" It's "alarming" that attorneys for Grain Processing still don't not know which Muscatine residents might be called to testify, Mr. Reck said. That uncertainty is hampering the company's ability to prepare a defense. For instance, defense attorneys cannot contact residents in the area to ask about their experiences with pollution, because they are also members of the class and are represented by the plaintiffs' attorneys, he said. But Sarah Siskind, a Wisconsin consumer protection and environmental attorney representing the residents, told the justices that the company's fears are unfounded. Mr. Reck and other lawyers for Grain Processing will have an opportunity to take depositions of every witness and then cross-examine them at trial, she said. Ms. Siskind defended using witnesses from the area other than the named plaintiffs to help prove the group's case. The plant belched out smoke and odor that was known to every resident in the area, regardless of whether some houses were more affected, she said. "Virtually everyone in the class knew about the nuisance," she said. "This was an open and notorious nuisance." The Jan. 18 oral arguments were the second time the case has gone to the Supreme Court since it was filed in 2012. The court in 2014 overturned a previous ruling in favor of the company that dismissed the case. Currently, the class includes everybody who lived within 1 1/2 miles of the wet mill since 2007. Grain Processing produces a variety of products -- from corn syrup and starches to ethyl alcohol sold to the beverage industry -- using the corn wet mill in Muscatine and another facility in Indiana. But the family company has been troubled for years by accusations that it knowingly used outmoded dryers and coal-fired boilers that left a blue haze over the eastern Iowa town of 22,887. A district court judge in 2014 ordered Grain Processing to pay a record $1.5 million civil penalty to the state as part of a lawsuit brought by the Iowa Attorney General's Office that accused the plant of pumping out excess particulate matter and failing to repair equipment that could have prevented the pollution. The company also agreed to switch from using coal to power its boilers to cleaner-burning natural gas and to install other air pollution control systems. The investigative journalism nonprofit Center for Public Integrity in September ranked the Muscatine plant 91st on a list of the nation's top 100 producers of airborne toxins, following an analysis of air quality data from the federal government. In response to that report, Grain Processing spokesperson Janet Sichterman said the company cut its emissions of toxic chemicals in half from 2014 to 2015. "Muscatine is our home, and cleaner air is a commitment GPC made," Ms. Sichterman told The Des Moines Register at that time. Justice Edward Mansfield and Justice Brent Appel asked Mr. Reck similar questions about why disagreements over issues such as expert testimony and differences in class members' experiences should be decided by the court, rather than just hashed out at a trial. "There's never any kind of perfect class action frankly, ever," Justice Appel said. Class-actions have generally been disparaged by businesses and lobbying groups such as the U.S. Chamber of Commerce, who argue that the lawsuits enrich attorneys while the people they represent often get little from damage awards. But consumer protection groups and others argue that class-actions are an important vehicle for holding companies and governments accountable when their actions cause smaller damages to large groups of people. Justice Thomas Waterman indicated that he might look to a May 2016 federal court ruling in a similar lawsuit against General Mills for guidance. In that case, a group of three Minnesota residents won class certification for their lawsuit against the food company for vapors that were released from a former factory in their Minneapolis neighborhood. But a panel of the U.S. Court of Appeals for the Eighth Circuit ruled that differences in contamination between different properties were too much for a class-action to proceed. Mr. Reck urged the justices to make a similar ruling in favor of Grain Processing, while Ms. Siskind argued that there were flaws in the federal court's ruling. HARVEST NATURAL: Plaintiffs Declined to Appeal Case Dismissal ------------------------------------------------------------- Harvest Natural Resources, Inc. said in its Form 10-Q/A Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that plaintiffs have declined to file an appeal on the dismissal of the Phillips case. The following related class action lawsuits were filed on the dates specified in the United States District Court, Southern District of Texas: John Phillips v. Harvest Natural Resources, Inc., James A. Edmiston and Stephen C. Haynes (March 22, 2013) (the "Phillips Case"); Sang Kim v. Harvest Natural Resources, Inc., James A. Edmiston, Stephen C. Haynes, Stephen D. Chesebro', Igor Effimoff, H. H. Hardee, Robert E. Irelan, Patrick M. Murray and J. Michael Stinson (April 3, 2013); Chris Kean v. Harvest Natural Resources, Inc., James A. Edmiston and Stephen C. Haynes (April 11, 2013); Prastitis v. Harvest Natural Resources, Inc., James A. Edmiston and Stephen C. Haynes (April 17, 2013); Alan Myers v. Harvest Natural Resources, Inc., James A. Edmiston and Stephen C. Haynes (April 22, 2013); and Edward W. Walbridge and the Edward W. Walbridge Trust v. Harvest Natural Resources, Inc., James A. Edmiston and Stephen C. Haynes (April 26, 2013). The complaints alleged that the defendants made certain false or misleading public statements and demanded that the defendants pay unspecified damages to the class action plaintiffs based on stock price declines. All of these actions were consolidated into the Phillips Case. On August 25, 2016, the court granted the defendants' motion to dismiss the Phillips Case and entered a final judgment dismissing the Phillips Case in its entirety. The plaintiffs declined to file an appeal, and the time for the filing an appeal expired on September 26, 2016. HARVEST NATURAL: Stockholder to Dismiss Class Action ---------------------------------------------------- Harvest Natural Resources, Inc. said in its Form 10-Q/A Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that Robert Garfield will dismiss a class action lawsuit without prejudice. On August 9, 2016, Robert Garfield, a stockholder of the Company, filed a lawsuit in the 215th Civil District Court of Harris County, Texas against the members of the Company's board of directors (the "Board") and CT Energy (and the Company, as a nominal defendant). The lawsuit asserts several class action and derivative claims, including that (i) the Board members breached their fiduciary duties to the Company's stockholders by negotiating and causing the execution of the Share Purchase Agreement, (ii) CT Energy aided and abetted the Board members in breaching their fiduciary duties and (iii) the Proxy Statement contained inadequate disclosures about the proposed transaction. Among other relief, the lawsuit requests that the court grant an injunction to prevent the completion of the proposed transaction, in addition to unspecified rescissory and compensatory damages and attorneys' fees and other costs. The Company intends to vigorously defend the lawsuit. "We are unable to estimate the amount or range of any possible loss. On September 14, 2016 plaintiff's motion for a temporary injunction was denied. On November 3, 2016, we learned that the plaintiff will dismiss this lawsuit without prejudice," the Company said. I-12 MEDIAN: Livingston School Board Joins Class Action ------------------------------------------------------- Heidi Kinchen at The Advocate reports that the Livingston Parish School Board voted unanimously on January 19 to join a class- action lawsuit against the state over construction of the Interstate 12 median wall that some officials say worsened flooding on the north side of the highway in August. The School Board is the third public entity to join the lawsuit, which was filed Jan. 5 in Baton Rouge state court. The cities of Denham Springs and Walker already were named plaintiffs in the case. Their lawyers at deGravelles Palmintier are in talks with officials from Livingston Parish government and the city of Central about signing on as well. Attorney Joshua Palmintier with deGravelles, Palmintier, Holthaus and Fruge said each agency that joins the lawsuit lends additional legitimacy to the case, which claims the 19-mile concrete barrier between the eastbound and westbound lanes of I-12 acted as a dam, impeding the natural flow of water during the flood. Schools Superintendent Rick Wentzel, who already signed onto the lawsuit personally, recommended the School Board join in the effort to convince the state Department of Transportation and Development to fix the problem and halt plans to "continue use of this current flawed (wall) design" as the interstate widening project moves eastward through the rest of the parish. The August flood devastated several of the parish's schools, three of which remain closed for reconstruction, and impacted businesses and residential properties that provide a tax base for the school system, Wentzel said. Continuing the wall eastward through the parish could have an even heavier financial impact on the district, he said. Board member Sid Kinchen, of Albany, asked whether the lawsuit would temporarily halt the state's work to widen I-12 east of Satsuma. Palmintier said that is one of the lawsuit's goals, but a judge would have to order the work halted. It won't happen automatically. Board member Buddy Mincey Jr., of Denham Springs, asked whether there had been any movement from the state since the lawsuit was filed. "We have not heard from the state as of yet," Palmintier said. "We hope to hear very soon. I believe that discussions could begin as early as early February." Palmintier said class-action lawsuits can take years to resolve, but he hopes the work the firm is doing with its team of hydrologists -- who are modeling the effects of the wall on flood levels throughout the area -- will help shorten that timeframe. The lawyers are pushing for the state to fix the existing wall before the next hurricane season. IKEA USA: 9th Cir. Vacates Order to Decertify in "Medellin" Suit ---------------------------------------------------------------- The United States Court of Appeals for the Ninth Circuit vacated and remanded the District Court's order decertifying the putative class action lawsuit titled RITA MEDELLIN, On Behalf of Herself and All Others Similarly Situated, Plaintiff-Appellant v. IKEA U.S.A. WEST, INC., Defendant-Appellee, Case No. 15-55174 (9th Cir.). Rita Medellin has appealed the order entered by the U.S. District Court for the Southern District of California decertifying her putative class action alleging violations of California's Song- Beverly Credit Card Act of 1971. Ms. Medellin concedes that she alleged only a bare procedural violation of the statute and suffered no other cognizable harm. A plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III," according to the Order, citing Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016). "Because Medellin lacks standing, we vacate the district court's judgment and remand with instructions that the district court dismiss this action without prejudice for lack of standing," the Ninth Circuit states. The Ninth Circuit also ruled that the motions pending at docket numbers 22 and 37 are denied as moot, and each party will bear its own costs on appeal. A copy of the Order is available at no charge at https://goo.gl/xnp3kL from Leagle.com. ILLUMINA INC: Feb. 15 Lead Plaintiff Bid Deadline ------------------------------------------------- Khang & Khang LLP announces the filing of a class action lawsuit against Illumina, Inc. Investors, who purchased or otherwise acquired shares between July 26, 2016 and October 10, 2016 inclusive (the "Class Period"), are encouraged to contact the Firm prior to the February 15, 2017 lead plaintiff motion deadline. If you purchased shares of Illumina during the Class Period, please contact Joon M. Khang, Esquire, of Khang & Khang, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834, or via e-mail at -- joon@khanglaw.com -- There has been no class certification in this case. Until certification occurs, you are not represented by an attorney. You may choose to take no action and remain a passive class member. The complaint alleges that during the Class Period, Illumina made materially false and misleading statements regarding the Company's business, operations, and prospects. In particular, Illumina made false and/or misleading statements and failed to disclose: that the Company was experiencing a sharp decrease in sequencing instrument sales; that the decline had a significant impact on the Company's revenue; that the Company did not have visibility into trends that could have an impact on the Company's financial outcomes; that, as such, the Company's revenue guidance was unreliable and exaggerated; and that, as a result of the above, Illumina's statements about the Company's business, operations, and prospects were false and misleading and/or lacked a reasonable basis. If you wish to learn more about this lawsuit, at no charge, or if you have questions concerning this notice or your rights, please contact Joon M. Khang, a prominent litigator for almost two decades, by telephone: (949) 419-3834, or via e-mail at -- joon@khanglaw.com -- Khang & Khang LLP Joon M. Khang, Esq. Telephone: 949-419-3834 Fax: 949-225-4474 E-mail: joon@khanglaw.com INEEDMD HOLDINGS: Settlement Reached in "Makover" Lawsuit --------------------------------------------------------- Ineedmd Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for fiscal year ended December 31, 2015, that the Company and its board of directors are currently involved in litigation against Michael E. Makover, M.D. ("Makover"). On April 30, 2015, Makover filed a class action complaint in the Court of Chancery of the State of Delaware alleging claims including breaches of fiduciary duties. On October 29, 2015, by agreement of the parties, the class action complaint was withdrawn and a first amended verified complaint was filed in the Court of Chancery of the State of Delaware with Makover as the sole plaintiff. On August 22, 2016 the Company and Makover participated in a meditation which resulted in an agreement which would provide for the issuance of 2,500,000 shares of the Company's common stock to Makover and a payment of $100,000 by the Company to Makover. The stock issuance and payment are contingent upon the Company securing additional financing. INTERSIL CORPORATION: 2 Class Actions Filed Over Merger ------------------------------------------------------- Intersil Corporation said in its Form 8-K Report filed with the Securities and Exchange Commission on November 18, 2016, that Intersil made supplemental disclosures (this "Proxy Supplement") to the definitive proxy statement on Schedule 14A (the "Proxy Statement") filed with the U.S. Securities and Exchange Commission (the "SEC") by Intersil on October 31, 2016, to provide additional information relating to the Agreement and Plan of Merger (as it may be amended from time to time, the "Merger Agreement"), dated September 12, 2016, by and between Renesas Electronics Corporation, a Japanese corporation ("Parent" or "Renesas"), and Intersil. Subject to the terms and conditions of the Merger Agreement, Chapter One Company ("Merger Sub"), which was formed following the date of the Merger Agreement as a Delaware corporation and a direct wholly-owned subsidiary of Parent, will, at the closing, merge with and into Intersil (the "Merger"), and Intersil will become a direct wholly-owned subsidiary of Parent. Following the filing of the Proxy Statement with the SEC on October 31, 2016, two putative class action lawsuits relating to the Merger were filed in the Court of Chancery in the State of Delaware on behalf of putative classes of Intersil's public shareholders: Paskowitz v. Intersil Corporation, et al., C.A. No. 12861-VCG, filed October 31, 2016, and Zucker v. Intersil Corporation, et al., C.A. No. 12862-VCG, filed October 31, 2016, which were subsequently consolidated (collectively, the "Lawsuit"). The Lawsuit alleges that certain disclosures in the Proxy Statement were false or misleading and seeks to enjoin the Merger. Intersil denies the allegations in the Lawsuit, but nonetheless provides the disclosures as a supplement to the Proxy Statement. To the extent that information set forth below differs from information contained in the Proxy Statement, the information set forth below supersedes such information contained in the Proxy Statement. These supplemental disclosures to the Proxy Statement shall not be deemed an admission that they are material or required under the federal securities laws, any applicable state fiduciary law or any other applicable rule, statue, regulation or law. The Lawsuit remains pending as of the date of this Proxy Supplement. As disclosed in the Proxy Statement, a special meeting was to be held on December 8, 2016, at 8:00 a.m., Pacific time, at Intersil's headquarters at 1001 Murphy Ranch Road, Milpitas, California 95035, for the purpose of considering and voting upon, among other things, the Merger Agreement and the Merger. On December 8, Intersil announced that Intersil stockholders approved the merger agreement with Renesas Electronics Corporation (TSE: 6723). Intersil said the merger remains subject to the satisfaction of certain other conditions, including antitrust approval by the China government and approval by the Committee on Foreign Investment (CFIUS) in the United States. The transaction is expected to close during the first half of 2017. JANNSEN PHARMA: Plaintiffs Oppose Transfer of Invokana Cases ------------------------------------------------------------ Max Mitchell, writing for The Legal Intelligencer, reports that more than 100 plaintiffs with cases pending in Pennsylvania federal court over claims that the diabetes drug Invokana caused kidney damage are challenging the drugmaker's efforts to move those cases into a recently-established multidistrict litigation in New Jersey. Drugmakers Janssen Pharmaceuticals recently filed a motion seeking to stay and then transfer or dismiss 106 cases that had been filed in Pennsylvania state court and later removed to the U.S. District Court for the Eastern District of Pennsylvania. The plaintiffs responded to those efforts on Jan. 9, arguing that the transfer would go against "virtually all of" the factors courts should consider. "In particular, (1) the plaintiff's choice of forum should be given weight because there is a nexus between Pennsylvania and the allegations in the case; (2) the purported convenience that defendants rest on will not be realized because there are a number of cases that cannot be transferred for diversity jurisdiction; (3) the proposed new location is less convenient for nonparty witnesses; and (4) other factors weigh against transfer, including the convenience of the parties weighed against financial condition, and the relative congestion of the two districts at issue," the plaintiffs' reply filed in the case Portnoff v. Janssen Pharmaceuticals said. Lopez McHugh attorney Joshua Mankoff filed the reply in Portnoff. He declined to comment beyond the filing. Kaitlin Meiser, a spokeswoman for Janssen, said the company is committed to defending against the allegations, and transferring the cases to promote efficiency. "We believe that these cases should then either be transferred to the District of New Jersey where the federal multidistrict litigation is pending to promote efficiency for all parties, or dismissed outright on numerous grounds," she said in an emailed statement. The plaintiffs' reply comes about a month after the Judicial Panel for Multidistrict Litigation authorized dozens of cases over Invokana to be transferred and centralized in the U.S. District Court for the District of New Jersey. The panel designated Judge Brian R. Martinotti to handle the cases. According to the JPML's order, 55 cases were pending at the time of consolidation, some of which had been filed in Minnesota, Illinois, Kentucky, Missouri, Virginia and West Virginia. In its order, the panel said it expected to see 44 additional cases to be filed in New Jersey federal court. Janssen's request to stay and transfer, or dismiss the cases was made Nov. 21 -- before the multidistrict litigation had been established. But, its motion said it was likely that Invokana cases would be transferred to Judge Martinotti. The drugmaker said that transferring the Pennsylvania wing of the litigation to Judge Martinotti would "encourage efficient and expeditious resolution of these cases by a single judge while helping to minimize the wastefulness of time, energy, and money." Pennsylvania has been home to a significant chunk of the nationwide Invokana-related litigation. Most of the 106 cases pending in Pennsylvania federal court, which involves 143 plaintiffs, were initially filed in the Philadelphia Court of Common Pleas. The plaintiffs had sought to consolidate those cases into a mass tort in Philadelphia's Complex Litigation Center, but, before a ruling was made on that request, the defendants removed the cases to federal court, citing the Class Action Fairness Act. That act is aimed at ensuring federal courts can consider "interstate cases of national importance." In their challenge to the latest efforts to transfer the cases, the plaintiffs have argued that the rule Janssen pointed to in seeking to transfer the litigation to New Jersey may go against the transfer rules outlined in the Class Action Fairness Act. The filing noted that the issue -- whether 28 U.S. Code Section 1332 does not allow transfer under 28 U.S. Code Section 1404 -- is one of first impression for the district. "Though various districts in California have permitted 1404(a) transfer to an MDL . . . the legislative history was not considered in any of those cases," the filing said. A hearing on the plaintiffs' motion to remand the cases back to state court was also set to take place in federal court on Jan. 11. JD HOME: Settles Maintenance Workers' Class Action for $3MM ----------------------------------------------------------- Andrea Castillo, writing for Fresno Bee, reports that JD Home Rentals, one of the Valley's largest property-management companies, has quietly reached a settlement in a class-action lawsuit brought by former maintenance workers for $3 million. The lawsuit, filed in May 2015, alleges that the owners of JD Homes failed to pay overtime, provide meal and rest periods, reimburse work-related expenses, provide timely and accurate wage statements, and provide timely final payment to former employees after they stopped working for the company. It also alleges unfair business practices and civil penalties for labor code violations. More than 450 current and former employees who worked for JD Homes between May 11, 2011, and Sept. 15, 2015, could receive payment as part of the settlement, which is pending court approval. The settlement follows a ruling in July by the U.S. Department of Labor, which ordered JD Homes to pay more than $259,000 in damages and overtime wages to 157 employees -- mostly maintenance workers. The company has also been sued multiple times over alleged housing violations, including an ongoing class-action case brought in 2014 by the statewide renters' rights group Tenants Together. The company was among the landlords featured last year in The Fresno Bee's "Living in Misery" series on substandard housing in Fresno. The civil suit names David and Linda Hovannisian, their various companies under the umbrella of JD Home Rentals, as well as Miguel Torres and his company, who managed the employees. The defendants have denied the claims. Bryce Hovannisian, operation's manager for JD Homes, said part of the agreement stipulates that attorneys for both sides cannot comment. "We came to an agreement and settled the case rather than continue it," he said. Public records show attorneys for JD Homes tried to make the same stipulation apply to maintenance workers who are part of the class. Judge Kristi Culver Kapetan ruled that "payments to the class representatives cannot be hinged on their silence about the settlement" because their discussion helps ensure more people are made aware of its existence. Four former employees are named in the lawsuit: Jesus Miranda, Jaime Magdaleno, Iriberto Meza and George Vasquez. They will get $10,000 each as an enhancement for their participation in the lawsuit if the settlement is approved. All gave similar statements in support of the settlement, saying there were times they worked more than eight hours a day but were not paid at an overtime rate, and that they didn't get all of their lunch and break periods. They said they were required to buy tools, such as drills, saws and screwdrivers, and use their personal cellphones for work purposes without reimbursement. The men said they joined the class action to get justice for the other workers who experience the same violations. They said they knew from the beginning that they were filing the lawsuit not only for themselves, but also for all past and present employees "who didn't know their rights or worried about losing their jobs if they did something." Mr. Miranda said he worked for JD Homes for more than 18 years, until December 2014, as a maintenance person at various apartment buildings throughout Fresno County. Some of his duties included unclogging toilets, fixing kitchen equipment and addressing flooring issues. He was paid $11 an hour. "Because of my participation in this class action, I risked being blacklisted from future jobs," Mr. Miranda said. "I knew that participating as a class representative could hurt me because jobs are scarce in the Central Valley and the industry is small and well connected. I decided to take the risk anyway because I knew that someone had to stand up for our rights." The workers were represented by two lead attorneys: Enrique Martinez of Oakland and Erandi Zamora of the nonprofit California Rural Legal Assistance Foundation, which has an office in Fresno. Zamora said she cannot comment. Mr. Martinez submitted a statement in support of the settlement that is public record. He said JD Homes leaders provided more than 30,000 pages of payroll data, reimbursement records and timecards from 2011 into 2015. Mr. Martinez said he and Mr. Zamora met with more than 75 workers and that their documents, plus the data that JD leaders provided, backed up the plaintiffs' claims. Mr. Martinez said economist and statistician Dwight Steward of the research firm EmployStats performed a damages analysis and determined the maximum potential recovery was $5.3 million. "Because of this litigation, the situation has improved for the workers at JD Home Rentals," he said. "Based on our conversations with current employees, they are getting reimbursed for their tools and other work expenses, and are now receiving overtime pay and required meal breaks." JOHNSON & JOHNSON: Judge Approves $5MM Deal in Baby Products Suit ----------------------------------------------------------------- Scott Holland at Cook County Record reports the people behind a false advertising class action lawsuit that said Johnson & Johnson's Bedtime Bath baby products did not make babies as sleepy as the company claimed are asking a judge to formally approve a $5 million settlement, according to a motion filed Jan. 4. The settlement would include nearly $1.5 million for attorneys, while the individual plaintiffs would collect service awards of $5,000 each. Members of the class could receive up to $15 each, if they submit eligible claims. Stephanie Leiner, of downstate Chillicothe, filed a class action lawsuit July 2, 2015, in federal court in Chicago against New Jersey-based Johnson & Johnson Consumer Companies alleging violations of the Illinois Consumer Fraud and Deceptive Business Practice Act and unjust enrichment, among other counts, saying the company misled her and others into buying products the company claimed were clinically proven to help babies sleep better. Representing plaintiffs in the action are attorneys from the firms of Stephan Zouras LLP, of Chicago, and Shepherd, Finkelman, Miller & Shah LLP, of Media, Pa., and Ft. Lauderdale, Fla. Leiner said she and others bought Johnson & Johnson Bedtime Products -- specifically, Bedtime Bath and Bedtime Lotion -- at a premium price after seeing advertisements claiming such products are "clinically proven" to help babies sleep better. But after using the products in 2014 as part of the company's recommended three-step nightly routine, she found the products did not help her baby sleep better. On. Aug. 31, 2016, U.S. District Judge Elaine E. Bucklo granted preliminary approval of the class action settlement. In addition to Leiner, other named plaintiffs acknowledged in the action included Jacqueline Real, Jinette Hidalgo and Jillian Gallagher. The Jan. 4 motion characterized the settlement deal as "a hard- fought compromise that was the culmination of adversarial, arms'- length negotiations following extensive litigation." Settlement terms include cash reimbursement related to purchases of disputed products and creation of a $5 million fund to pay class claims, administration costs and legal fees. Class lawyers requested expenses and fees of $1,498,456. Class members who submit claims supported by documentation could claim $3 for each purchase of a covered product, with a cap of five units, or $15 per customer. Those who can show proof of purchase could file claims for a total of 10 units. But those figures would be subject to pro rata adjustment based on the number of valid claims filed and the amount in the settlement fund at the time of payment. The motion noted Johnson & Johnson sold roughly 30 million of the products at the heart of the lawsuit, and court documents estimate the class could include as many as 12.9 million consumers. If approved, the settlement pool would be $3,042,321. As of Dec. 29, 261 people had called a phone line regarding claims, a related website logged 410,268 views and nearly 250,000 claims were submitted, carrying an average value of $14.19. The claim deadline extends to April 28. In arguing for the settlement, the plaintiffs note an expected difficulty in class certification and the fact Johnson & Johnson asserted the people who bought the products "lacked a future injury and therefore had no claim for injunctive relief." They further acknowledged they would have had to prove the classes were identifiable based on objective criteria and admitted the challenge of proving "commonality on the issue of whether consumers were deceived." Since the products that gave rise to the lawsuit cost $1 more than Johnson & Johnson's other products -- though the company contends the premium was, at most, 50 cents -- the fact each claimant right now stands to get up to $12.17 "amounts to an excellent recovery," per the motion. Any leftover settlement money would be split among two charitable organizations, the Nurse-Family Partnership and Newborns in Need. Johnson & Johnson is defended by the firms of Sidley Austin LLP, of Chicago, and Carlton Fields Jorden Burt LLP, of Los Angeles and Washington, D.C. JONES FINANCIAL: Status Conference in "McDonald" Suit on June 15 ---------------------------------------------------------------- District Judge Rodney W. Sippel entered a Scheduling Order in the case, McDonald v. Edward D. Jones & Co., L. P., Case No. 4:16-cv- 01346 (E.D. Mo.), setting Status Conference for June 15, 2017, at 10:00 a.m. Judge Sippel also entered a Case Management Order regarding class certification issues. The Order provides that: -- Motion to Join Parties due by 3/10/2017. -- Discovery Completion due by 8/16/2017. -- Non-Dispositive Motions due by 9/8/2017. -- Class certification Hearing set for 11/16/2017 10:30 a.m. The Jones Financial Companies, L.L.L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that defendants' motion to dismiss a retirement plan litigation remains pending. On August 19, 2016, the Partnership, Edward Jones and certain other defendants were named in a putative class action lawsuit (McDonald v. Edward D. Jones & Co., L.P., et al., Case No. 4:16- cv-01346) filed in the U.S. District Court for the Eastern District of Missouri brought under ERISA by a participant in the Edward D. Jones & Co. Profit Sharing and 401(k) Plan (the "Retirement Plan"). The lawsuit alleges that the defendants breached their fiduciary duties to Retirement Plan participants and seeks declaratory and equitable relief and monetary damages on behalf of the Retirement Plan. The defendants filed a motion to dismiss the lawsuit on October 12, 2016, which is pending. A Memorandum in Support of the Motion to Dismiss the Amended Class Action Complaint was filed on December 7. KRAFT HEINZ: Seeks Dismissal of Parmesan Cheese Labeling Case ------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that The Kraft Heinz Co. is hoping to toss dozens of class actions over its "100% Grated Parmesan Cheese" by asserting that the chief claim over its label "defies common sense." The suits allege the label failed to mention that its grated cheese contained fillers made from wood pulp. But Kraft, in a motion to dismiss filed on Jan. 6, argues the lawsuits misconstrue the words, which simply mean there's no other cheese than parmesan in the can. And, after all, what consumer wouldn't expect prepackaged cheese in a plastic container to include some sort of additives? "This lawsuit is based solely on plaintiffs' unreasonable reading of the name of Kraft Heinz's well-known product, '100% Grated Parmesan Cheese,'" wrote Dean Panos -- dpanos@jenner.com -- a partner at Chicago's Jenner & Block. "Common sense dictates that most packaged food products that remain on store shelves for an extended period of time routinely contain ingredients to make them shelf-stable and palatable." As the onslaught of lawsuits over food labels rises, defendants are hoping to dismiss cases early on by convincing judges common sense dictates that no reasonable consumer would believe what the plaintiffs allege. "So many of these cases are being filed and so many labeling practices being challenged, the food and beverage manufacturers are raising this defense with some regularity: That these allegations are not plausible," Steve Zalesin -- sazalesin@pbwt.com -- a New York partner at Patterson Belknap Webb & Tyler, who represented Coca-Coca Co. in its high-profile juice labeling case against POM Wonderful LLC. "But it is a high bar." Mr. Panos did not return a call for comment, and Ben Barnow, of Chicago's Barnow and Associates, lead counsel in the case against Kraft, declined to comment. The plaintiffs' response is due on Feb. 10. The suits follow a 2015 article on Bloomberg.com that cited independent laboratory studies finding portions of Kraft's and Wal-Mart Stores Inc.'s private-label grated parmesan cheese contained cellulose, an anti-clumping agent made from wood pulp. Wal-Mart, along with Target Corp., Supervalu Inc., Albertson's LLC and ICCO-Cheese Co. Inc., an Orangeburg, New York-based manufacturer that provides cheese to Target and Wal-Mart, also are defendants in the litigation. The other defendants, in separate motions, raised similar defenses as Kraft, including federal pre-emption and the fact that the U.S. Food and Drug Administration includes the fillers in its definition of "grated cheese." They also say the labels list the ingredients on the can. Kraft cited two decisions in 2015 that dismissed cases after finding the ingredient lists on packaging of Plum's Organic pouches and Kind granola bars made the consumer's claims unreasonable. Dale Giali -- dgiali@mayerbrown.com -- a partner in the Los Angeles office of Mayer Brown, who won both of the decisions, said the commonsense defense is a high bar since judges must consider the allegations in a complaint as true and, under a 2008 decision in Williams v. Gerber, the U.S. Court of Appeals for the Ninth Circuit found that an adequate ingredient list on a package of Gerber fruit juice snacks didn't exempt a defendant from being sued for misleading labeling. "Whenever we make these types of arguments, we have to navigate that, which is why this is the exception to the general rule," Mr. Giali said. "We were successful in doing that, but it is still a very small percentage of cases that are subject to these arguments are successful." LA ENTERTAINMENT: Court Grants Goers' Motion for Reconsideration ---------------------------------------------------------------- The Hon. Sheri Polster Chappell granted the Plaintiffs' motion for reconsideration of Rule 23 class certification in the lawsuit entitled TAMERA GOERS and ASHLEY CRISTINE MULLIGAN, individually, and on behalf of all others similarly situated v. L.A. ENTERTAINMENT GROUP, INC. and AMER SALAMEH, Case No. 2:15-cv-412- FtM-99CM (M.D. Fla.). The Plaintiffs' reply memorandum of law in support of Plaintiffs' motion to conditionally certify a collective action pursuant to the Fair Labor Standards Act and motion for declaration of a class action as to minimum wage claims pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure and motion for authorization to send notice to the class is denied. The Plaintiffs are former exotic entertainers at Babe's, an adult nightclub in Fort Myers, Florida, owned and operated by the Defendants. The Plaintiffs bring an employment action based on allegations that the Defendants have violated the wage and hour requirements of the FLSA and the Florida Constitution. A copy of the Order is available at no charge at https://goo.gl/fWUDKt from Leagle.com. Plaintiffs and Counter Defendants Tamera Goers and Ashley Cristine Mulligan are represented by: Jack C. Morgan III, Esq. Scott Hertz, Esq. Thomas G. Coleman, Esq. ROETZEL & ANDRESS, LPA 2320 First Street, Suite 1000 Fort Myers, FL 33901 Telephone: (239) 337-4258 Facsimile: (239) 337-0970 E-mail: jmorgan@ralaw.com shertz@ralaw.com - and - John B. Gallagher, Esq. JOHN B. GALLAGHER, PA 2631 E Oakland Park Blvd., Suite 201 Fort Lauderdale, FL 33306-1618 Telephone: (954) 491-5886 Defendants and Counter Claimants L.A. Entertainment Group, Inc., and Amer Salameh are represented by: Conor Foley, Esq. Jason L. Gunter, Esq. JASON L. GUNTER, PA 1514 Broadway, Suite 101 Ft. Myers, FL 33901 Telephone: (239) 334-7017 Facsimile: (239) 244-9942 E-mail: conor@gunterfirm.com Jason@Gunterfirm.com - and - Roger Jon Diamond, Esq. LAW OFFICE OF ROGER JON DIAMOND 2115 Main St. Santa Monica, CA 90405-2215 Telephone: (310) 399-3259 LENOVO: Seeks Dismissal of Class Action Over Hidden Adware ---------------------------------------------------------- Kat Sieniuc and Allison Grande, writing for Law360, report that computer manufacturer Lenovo asked a California federal judge on Jan. 17 to toss part of a lawsuit alleging the company installed hidden adware with security vulnerabilities on laptops it sold, saying class members don't have standing to bring claims based on security issues. The court certified two classes of consumers in October, but allowed only seven of their dozen claims that Lenovo unlawfully accessed their devices and interfered with their computers' performance to move forward. Now, Lenovo is seeking to chop off another claim from the consum ers' amended complaint: specifically, that Lenovo breached the deceptive acts and practices statute by allegedly preinstalling a program on computers without their consent or knowledge that exposed customer data to security risks. "These are not new theories; they were asserted in plaintiffs' original complaint. The problem, for plaintiffs, is that there was no economic impact associated with these alleged issues," the company said in its motion to dismiss the claim, adding that "the amended class action complaint is a second bite of the apple in the hope that the court will reconsider [U.S. District Judge Ronald M. Whyte's] ruling." The dispute faults the computer manufacturer and software developer Superfish Inc. for secretly preinstalling a program called VisualDiscovery -- which allowed Superfish to monitor people's online activities and tailor advertisements to their interests -- in 40 models of Lenovo computers beginning in 2014. Back in October, the court gave the consumers a chance to amend the tossed allegations, including negligence claims and allegations under the Electronic Communications Privacy Act and a pair of state consumer protection statutes. Judge Whyte addressed the issue of whether the plaintiffs had asserted an injury sufficient to establish Article III standing by alleging that Lenovo's use of VisualDiscovery invaded their privacy, exposed them to security breaches, and caused problems with their computers by wasting memory and making the machines run less efficiently. Citing the U.S. Supreme Court's 2013 holding in Clapper v. Amnesty International, which held that future injuries must be "certainly impending" and that mere allegations of possible future injury are insufficient, Judge Whyte concluded that the plaintiffs lacked standing to pursue their claims on the basis that the software exposed their laptops and their information to potential security breaches. However, the judge quickly noted that the finding did not doom the suit and that the consumers had standing to proceed because they had additionally alleged concrete injuries when it came to the privacy and performance issues purportedly caused by the laptops. Judge Whyte rejected Lenovo's argument that the proposed classes could not move forward because they included consumers who had not been harmed, an argument the company based on the assertions that users gave their computers positive performance reviews, opted out of or uninstalled the VisualDiscovery software, or did not purchase their laptops until after the software was shut down in January 2015. The plaintiffs are represented by Jonathan K. Levine -- jkl@pritzkerlevine.com -- and Elizabeth C. Pritzker -- ecp@pritzkerlevine.com -- of Pritzker Levine LLP, Daniel C. Girard -- dcg@girardgibbs.com -- and Elizabeth A. Kramer of Girard Gibbs LLP, and Matthew K. Edling, Philip L. Gregory -- pgregory@cpmlegal.com -- and Steven N. Williams -- swilliams@cpmlegal.com -- of Cotchett Pitre & McCarthy LLP. Lenovo is represented by Daniel J. Stephenson of K&L Gates LLP. The case is In re: Lenovo Adware Litigation, case number 5:15-md- 02624, in the U.S. District Court for the Northern District of California. LUMBER LIQUIDATORS: Cash & Stock Deal Granted Final Approval ------------------------------------------------------------ Lumber Liquidators Holdings, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on November 17, 2016, that on November 17, 2016, the United States District Court for the Eastern District of Virginia granted final approval of the proposed settlement in the consolidated securities class action, In re Lumber Liquidators Holdings, Inc. Securities Litigation (the "Securities Litigation") and in the related and consolidated derivative action, In re Lumber Liquidators Holdings, Inc. Shareholder Derivative Litigation (the "Derivative Litigation"). On November 17, 2016, the court entered final judgment dismissing all claims with respect to all defendants in the Securities Litigation and the Derivative Litigation. The final judgments were entered as contemplated by the terms of the definitive settlement agreement with the Securities Litigation defendants dated June 15, 2016 (the "Securities Class Action Stipulation") and the definitive settlement agreement with the lead plaintiff in the Derivative Litigation dated July 18, 2016 (the "Derivative Stipulation"). Pursuant to the terms of the Securities Class Action Stipulation: -- the Company issued the Shares on November 17, 2016 with an approximate value of $16.8 million based on the $16.76 per share closing price of the Company's common stock on the date of issuance; and -- the Company expects to contribute, through its insurers, $26.0 million in cash to a settlement fund in the fourth quarter of 2016. At September 30, 2016, the Company classified the Securities Litigation loss contingency of $45.7 million as accrued securities class action and the expected insurance proceeds of $26.0 million as insurance receivable on its condensed consolidated balance sheet. In the fourth quarter of 2016, the Company expects to recognize a non-cash, pre-tax gain of approximately $2.9 million, representing the decrease in the fair value of the Shares at issuance from the estimated fair value of the Shares as of September 30, 2016 of $19.7 million. The Company also expects to record a $26.0 million reduction to both insurance receivable and accrued securities class action upon the insurance proceeds being contributed to the settlement fund by the insurers. Under the terms of the Derivative Stipulation, the Derivative Litigation will be settled for a combination of corporate governance changes, a payment of $26.0 million in insurance proceeds (which the insurers will contribute on behalf of the Company to the Securities Litigation settlement fund discussed above), and attorneys' fees of $5.0 million. The Company expects the attorney's fees to be paid in the fourth quarter of 2016, with half of these fees being paid by the Company's insurers on behalf of the Company. The expected net cash flow from this series of transactions is a $2.5 million aggregate outflow by the Company. At September 30, 2016, the Company classified a Derivative Litigation loss contingency of $5.0 million within other current liabilities and the expected insurance proceeds of $2.5 million within insurance receivable on the balance sheet. MASTERCARD INC: Lawyer Argues Lacks Spectrum of Commonality ----------------------------------------------------------- Alex Davis at Law360 reports that a GBP14 billion ($17.2 billion) consumer antitrust suit against MasterCard over swipe fees shouldn't proceed as a class action because the estimated 46 million claims don't have enough in common, lawyers for the credit card company told a London tribunal on January 19. Lawyers for MasterCard argue that a landmark GBP14 billion antitrust case accusing the credit card giant of fixing swipe fees shouldn't get class status because the estimated 46 million claims don't have enough in common. Mark Hoskins -- mark.hoskins@brickcourt.co.uk --of Brick Court Chambers, a barrister representing MasterCard Inc., argued that differences between spending amounts among consumers and differences in how much of any overcharges each retailer passed on to its customers meant that the application didn't sufficiently meet the common issues test under Competition Appeal Tribunal rules for a collective proceedings order. Though the U.K. instituted the new collective action system for antitrust damages suits in 2015, the tribunal has yet to issue such an order. Hoskins referred to a "spectrum of commonality" for CAT class action claims, with suits containing identical claims at one end. "At the other end of the spectrum, you have this case, with 46 million claimants with a myriad of differences," said Hoskins, speaking during the second day of hearings to decide whether to advance the claim as a class action. "If a CPO is granted in this case, it's hard to see where the line will be drawn." The consumer claim is one of more than a dozen suits MasterCard faces since the company lost its appeal in 2014 against a European Commission ruling that it broke EU competition law by setting a minimum price for cross-border interchange fees -- bank-to-bank charges paid from a merchant's bank to a card-issuing bank when a purchase is processed. Hoskins provided the court with a few examples of differences between the many claims. "A single man in Chelsea is very much likely to have a different spending profile to a married mother in Aberdeen," Hoskins said. "Every individual in the claim will have a different spending profile and each of those profiles is likely to have changed over the period." The consumer suit, lodged by attorney and former chief financial services ombudsman Walter Merricks in September, is one of the first filed using the U.K.'s new class action regime created in 2015. Merricks seeks compensation for millions of U.K. consumers who allegedly overpaid as a result of anti-competitive interchange fees that MasterCard imposed on credit and debit card transactions between 1992 and 2008. On Wednesday, Paul Harris, a barrister representing Merricks, told the court that a class action was the only possible way for consumers to gain compensation against the credit card company, given the relatively small individual damages. "This case is the epitome, the absolute archetype that the government had in mind when putting together the new regime," Harris said. "[MasterCard] injured millions of people and what's more, they injured those people without them even realizing they had been injured." But on on January 19, Hoskins told the court that Merricks had ignored the commonality principle when putting forward the case. "One can't rely on the contention that aggregate damages are the only appropriate remedy, to sidestep legal principles," Hoskins said. Hoskins also took to task Merricks' position that the two sides were broadly in agreement over the fact that many companies passed the higher costs on to consumers, given MasterCard's defense in a suit from J. Sainsbury PLC claiming that the grocer charged higher prices as a result of the fees. "The fact that MasterCard has previously argued for a high rate of pass-on cannot bind it in this tribunal," said Hoskins. MasterCard has already been forced to pay Sainsbury's GBP68 million after losing the suit in July last year. The company is also waiting on the outcome of a trial brought last year by grocer WM Morrison Supermarkets PLC, while a third trial brought by German railway company Deutsche Bahn AG is scheduled to start in May. At least 20 suits were filed in London's High Court between August and December 2016 against MasterCard and Visa. Five further claims have been filed since the start of January, from companies including restaurant chains Bella Italia and Cafe Rouge, according to court records. Merricks is represented by Paul Harris QC of Monckton Chambers, Marie Demetriou QC and Victoria Wakefield of Brick Court Chambers, Nicholas Bacon QC of 4 New Square and Quinn Emanuel Urquhart & Sullivan LLP. MasterCard is represented by Mark Hoskins QC and Tony Singla of Brick Court Chambers, Ben Williams QC of 4 New Square and Matthew Cook of One Essex Court and Freshfields. The case is Walter Hugh Merricks CBE v. MasterCard Inc., MasterCard International Inc. and MasterCard Europe S.P.R.L., case number 1266/7/7/16, at the Competition Appeal Tribunal. MAXPOINT INTERACTIVE: Motion to Dismiss IPO Class Suit Underway --------------------------------------------------------------- MaxPoint Interactive, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that a hearing date for the Company's motion to dismiss has not yet been set. The Company, certain of its officers and directors, and certain investment banking firms who acted as underwriters in connection with the Company's IPO, have been named as defendants in a putative class action lawsuit filed August 31, 2015 in the United States District Court for the Southern District of New York. The complaint alleges that the defendants violated Sections 11, 12 and 15 of the Securities Act by not including information regarding customer concentration, which the complaint characterizes as a known trend and/or significant factor required to be disclosed under federal securities regulations. The complaint seeks unspecified damages, interest and other costs. The Court appointed a Lead Plaintiff on November 18, 2015, and on January 19, 2016 the Lead Plaintiff filed a First Amended Complaint that repeats the same substantive allegations included in the initial complaint and continues to seek unspecified damages. On March 24, 2016, the Company filed a motion to dismiss the First Amended Complaint. The Lead Plaintiff filed an opposition to that motion on May 9, 2016, and the Company filed a reply brief on June 8, 2016. A hearing date for the Company's motion to dismiss has not yet been set, however, the Court may rule on the motion without hearing oral arguments. The Company disputes these claims and is defending this matter vigorously, and is unable to estimate the amount of a potential loss or range of potential loss, if any. Legal fees are expensed in the period in which they are incurred. MaxPoint is a marketing technology company that generates hyperlocal intelligence to optimize brand and retail performance. It provides a platform for brands to connect the digital world with the physical world through hyperlocal execution, measurement and consumer insights. MERITOR INC: Motion to Dismiss Class Suit Underway -------------------------------------------------- Meritor, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on December 1, 2016, for the fiscal year October 2, 2016, that the Company's motion to dismiss a class action lawsuit remains pending. In March 2016, the company was served with a complaint filed against the company and other defendants in the United States District Court for the Eastern District of Michigan. The complaint is a proposed class action and alleges that the company violated federal and state antitrust and other laws in connection with a former business of the company that manufactured and sold exhaust systems for automobiles. The alleged class is comprised of persons and entities that purchased or leased a passenger vehicle during a specified time period. In April 2016, the company was served with a virtually identical suit also naming the company as a defendant on behalf of a purported class of automobile dealers. In September 2016, the company filed a motion to dismiss. The company intends to defend itself vigorously against these claims. The company believes at this time that liabilities associated with this case, while possible, are not probable, and therefore has not recorded any accrual for them as of September 30, 2016. Further, any possible range of loss cannot be reasonably estimated at this time. Meritor, Inc., headquartered in Troy, Michigan, is a premier global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers ("OEMs") and the aftermarket for the commercial vehicle, transportation and industrial sectors. MICROFIBRES INC: Settles Employees' WARN Act Class Action --------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that a settlement has been reached in the WARN Act compensation dispute between defunct Microfibres Inc. and plaintiffs certified for a class-action lawsuit. The settlement was disclosed on Jan. 13, eight days after the case appeared headed to alternative dispute resolution. Bankruptcy trustee Joseph DiOrio said the parties expect to file the settlement with the bankruptcy court this week. Microfibres, based in Pawtucket, R.I., filed for Chapter 7 voluntary bankruptcy protection in January 2016 with plans to liquidate its assets -- the same day it closed its Winston-Salem and Pawtucket plants. The local workforce was at 270 employees in 2004. About 125 employees in Winston-Salem and 60 in Pawtucket were projected to be covered by Worker Adjustment and Retraining Notification, or WARN, protections. The plaintiffs are requesting at least $1.5 million in damages and priority administrative claim status for the first $12,745 of each employees' claim, meaning they typically would be first in line after secured creditors are paid. The act was enacted in 1989 with the intent of preventing situations in which rank-and-file employees show up for work only to discover that their employer has shut down without notice. The act does this by requiring companies that are planning large job cuts -- defined as more than 50 employees -- to notify their state and local governments, as well as affected workers, at least 60 days in advance. The act provides certain benefits to laid-off workers, such as 60 days of pay and benefit contributions if the closing is immediate, and access to COBRA insurance benefits for 60 days. However, the U.S. Labor Department has no authority to enforce WARN regulations, hear employee complaints, investigate potential wrongdoing or file lawsuits representing employees. Employees must file a lawsuit in federal court to assert WARN rights. On Aug. 24, a federal judge certified the class-action lawsuit with a local former employee, Cedric Williams, serving as lead plaintiff. Mr. DiOrio had asked the judge to dismiss the lawsuit, claiming the company is not financially liable to the workforce "because it was a faltering business when it ceased operations." Mr. DiOrio said Microfibres acted in good faith toward its employees, including paying them "in full for compensation they were owed." MOLINA HEALTHCAREL Faces Class Action Over Medi-Cal Payments ------------------------------------------------------------ Beth Jones Sanborn, writing for Healthcare Finance, reports that Los Angeles physician sues Molina Healthcare over Medi-Cal payments, seeking class-action status Doctor is seeking class- action status for a lawsuit against Molina Healthcare, saying the insurer owes thousands for Medi-Cal patient care. A Los Angeles-area doctor is seeking class-action status for a lawsuit against Molina Healthcare, saying the insurer owes him thousands of dollars for caring for Medi-Cal patients under the Affordable Care Act. The lawsuit was filed on Dec. 30 in Los Angeles County Superior Court on behalf of Dr. Manuel Figueroa of the Associated Hispanic Physicians of Southern California, a doctors group with which Molina Healthcare contracts. Dr. Figueroa's high-profile lawyer, Brian Mahany, said he is searching for other doctors who may have been similarly underpaid in other states where Molina operates. He estimates hundreds of other doctors could be in a similar situation. Dr. Figueroa contends that Molina did not pay him "enhanced" reimbursements for Medi-Cal patients that were made possible by the Affordable Care Act. Under that law, insurers in 2013 and 2014 were to pay doctors higher rates for some types of care for patients enrolled in Medi-Cal, California's Medicaid program. The enhanced payments program ended in 2014. Dr. Figueroa qualified for enhanced payments for services provided in 2013 and 2014, according to his attorney Mahany. The health plan paid Dr. Figueroa part of what was owed him but still owes him for care he provided in 2013 and part of 2014, according to the complaint. "Why would any physician want to accept a Medicaid patient if they are getting shortchanged on their pay?" said Mahany. The publicly traded insurer, based in Long Beach, operates health plans in 12 states and Puerto Rico covering about 4.2 million people, including 683,000 in California. Most of its members are enrolled in Medicaid or Medicare managed care plans. Dr. Mario Molina, president and CEO of Molina Healthcare, said he was "mystified" to learn about Figueroa's lawsuit. Dr. Figueroa submitted claims that are not eligible for augmented payments under ACA program in discussion, Molina said. For example, only "evaluation and management services" such as consultations and routine checkups, but not lab or x-ray services, are eligible for augmented payments. That might be adding to the confusion, Dr. Molina said. California ranks 47th in the country in reimbursements to doctors for treating Medi-Cal patients, Molina said. "For us, the health plan, [the enhanced payment] was a terrific boon; it was extra money we could pass down to our doctors." Consejos de Latinos Unidos, a national consumer advocacy group, recently submitted a letter to the Office of the Inspector General of the U.S. Department of Health and Human Services asking the federal agency to investigate Molina Healthcare for "sitting on federal funds and underpaying Latino physicians and others." The advocacy group has been investigating the allegations since 2015, according to its CEO and executive director K.B. Forbes. "Molina appears to be engaged in grossly deceptive and egregious behavior," Mr. Forbes wrote. According to Forbes, who has been in talks with Dr. Figueroa's office, it is estimated Molina Healthcare may still owe Figueroa $15,000 to $25,000. Mr. Forbes said the advocacy group has spoken with other California doctors in a similar position but declined to name them. "We believe this is a pattern," he said. Mr. Forbes noted that Figueroa's office also contracts with three other insurance plans, but only had an issue collecting reimbursements for Medi-Cal services from Molina Healthcare. But Molina says his office has not heard from any other doctors. "This company was founded by a Latino doctor," Molina said. "Why would we want to cheat other Latino doctors?" The lawsuit comes as Molina Healthcare has profited from the Affordable Care Act but also faces an uncertain future amid a planned repeal of the health law. In February, a group of Florida hospitals sued the insurer for allegedly underpaying for emergency room care. Molina Healthcare profits totaled $143 million in 2015, more than double the profits of 2014, according to its most recent financial report. MONSANTO: Experts Weigh in on Roundup Class-Action Suit ------------------------------------------------------- Robert Lawson at Florida Record reports Monsanto faces a batch of lawsuits alleging its Roundup fertilizer product can lead to developing a non-Hodgkin lymphoma, and two experts weighed in on the developments for The Florida Record. At least two recent cases have been filed against the agriculture supply and chemical company. In December, James Mitchell v. Monsanto was filed in the Northern District of Florida for the 11th Circuit. The other lawsuit was brought forth by a Nebraskan also diagnosed with the disease. That case, Daniel Kowal v. Monsanto, was filed in November in Delaware Superior Court. In both cases, the plaintiffs were users of Roundup. Steve Gardner -- steve@consumerhelper.com -- consumer attorney at Stanley Law Group, said to The Florida Record in an email: "These are serious illnesses. Are these developments rather similar to cases against tobacco companies? Will there be similar outcomes to those that developed after the tobacco-company cases (e.g. awareness campaigns, financial damages, etc.)?" "The tobacco cases were something of a one-off," he added. "A consumer product that, when used as directed, can kill you -- nothing to touch that when it comes to food. The merits/risks of [genetically modified organisms] are still debatable, as to safety. As to the adverse effect on the environment (overspray, killing butterflies, etc.), it's pretty much clear that GMOs are bad. The third consideration as to GMOs is socioeconomic -- whether we want companies like Monsanto and Bayer conspiring to own supplies of rice or other staples." Maria Glover, associate professor of law at Georgetown University, said the cancer link is the only real commonality. "I'm not a medical expert," Glover told The Florida Record. "But the ways in which it is similar to tobacco is cancer being common between them. Lung cancer is associated with smoking. They are not signature diseases the way asbestos is tied to mesothelioma. Lots of people who smoked, they also faced other risks associated with it, like coal mining for example." Monsanto has remained firm in its position that Roundup is "safer than table salt" and assert that the product does not cause cancer in humans. On the other hand, Roundup was classified as a "probable human carcinogen" by the International Agency for Research on Cancer. Gardner said information like this could play a significant role in the cases. "Probably -- but, as I noted (previously), it's far from clear," he said. "I would err on the side of caution. Traditionally, (the Food and Drug Administration) required proof that a food ingredient was generally recognized as safe (GRAS) before it could be used in foods. On GMOs, FDA has effectively adopted the very short-sighted (literally) position that, as of now, there is no clear proof that it's dangerous -- a new standard of 'it's not definitely unsafe.'" The Florida case appears to be split into two phases: one for determining if Roundup causes cancer, then jury or settlement/resolution. "That splitting is not the norm, but it's done in the right cases," Gardner said. "And it certainly is a great way to proceed." Glover said the process of "splitting" has been used in the past to resolve other cases. "It is not atypical at all," Glover said. "When you're dealing with these types of damages, you will have to have individual follow on damages. Certain medical criteria entitle you to x, y and z. The BP oil spill had similar procedures. It is not atypical to carve out what's called an issue class." Glover predicted Monsanto's next moves in court. "Roundup is going to fight causation," she said. "The difficulty for the plaintiff will be whether this element causes the disease at all. With Roundup, there seems to be a significant dispute to whether it causes cancer. This dispute is about whether this chemical actually causes non-Hodgkin lymphoma. There does not seem to be agreement among professionals." About 50 separate lawsuits alleging Roundup caused lymphoma have been centralized in multi-district litigation in the Northern District of California for the purpose of coordinated pre-trial proceedings. MONTROSE MANAGEMENT: Faces Second Class Action Over Assessments --------------------------------------------------------------- Jaimy Jones, writing for Chron.com, reports that as pressure from the court mounts, Montrose Management District hasn't budged in its position that it will not pay back assessments to area business owners that Harris County District Judge Halbach called "void" while the suit -- brought by Robert Rose in 2012 against the district -- is pending. But even though Mr. Rose and attorneys are waiting, they're not taking time off from making their case. Attorneys for Mr. Rose filed a new lawsuit in Harris County, but this time under class certification, Jan. 4 on behalf of thousands of business owners involved that were collectively assessed $6.5 million since the district was established. "Despite the filing of a previous lawsuit . . . on the this exact same issue, and despite that Trial Court's findings that all of the MMD assessments which derived collected from 2011-2016 are illegal, void, paid under duress, and must be reimbursed to those who paid them, the District . . . arrogantly continue to ignore these findings and instead engage in this unconstitutional and illegal conduct until the present time," stated court documents. Judge Halbach made the initial judgement that the payments were void in November, but a handful of commercial property owners who say they should be reimbursed haven't received any correspondence from the court or from the management district. But an attorney for the plaintiffs told the Houston Chronicle after the filing, "We want all of it back, irrespective if they've spent it," said Andy Taylor, the attorney representing the property owners. And that is precisely the worry of some who say they are owed. "I should be getting a refund, but they're not going to give it, they've already spent it is my understanding," said Shawn Baksh, commercial property in Montrose and real estate broker. Mr. Baksh said that most of the board members are neighbors and fellow-business owners to those under the tax, and he doesn't understand how the board can continue to act in what he calls an unethical practice by not responding to the resistance they've shown to the establishment of the district. In reference to the $500,000 the district spent on decorative markers that continue to go up around the area, and their price- tag, the real estate professional says he could have built a brand-new building for that. The only response MMD has made since the Jan. 4 filing is on their website, and have not responded to requests for interviews. "Unless and until the trial court issues a final judgment that orders a refund of any assessments, which will not occur until after all additional activities in the trial court have taken place, and after any appeal has been concluded, the District will have no obligation to refund any assessments collected," said the post. NEW ORIENTAL: Feb. 13 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Glancy Prongay & Murray LLP reminds investors of the February 13, 2017 deadline to file a lead plaintiff motion in the class action filed on behalf of a class of investors who purchased New Oriental Education & Technology Group Inc. securities between September 27, 2016 and December 1, 2016, inclusive. New Oriental investors have until February 13, 2017 to file a lead plaintiff motion. On December 2, 2016, Reuters issued an article alleging that New Oriental has been accused of conducting college application fraud. According to the article, several former and current New Oriental employees "told Reuters the firms have engaged in college application fraud, including writing application essays and teacher recommendations, and falsifying high school transcripts." The American International Recruitment Council ("AIRC") issued a statement later that day announcing that it would conduct its own investigation in regards to the allegations put forth in the Reuters article. AIRC's president-elect called the report "highly concerning." On this news, shares of New Oriental fell over 14% per share on December 2, 2016. According to the complaint filed in this class action, during the Class Period, New Oriental made false and misleading statements and/or failed to disclose that: (1) New Oriental engaged in college application fraud; and (2) as a result, Defendants' statements about New Oriental's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased New Oriental shares, you may move the Court no later than February 13, 2017 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 Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at http://www.glancylaw.com.If you inquire by email please include your mailing address, telephone number and number of shares purchased. NEW YORK CITY, NY: Class of Detainees Certified in "Onadia" Suit ---------------------------------------------------------------- The Hon. Mitchell J. Danziger certified as a class action the lawsuit styled OSCAR ONADIA, ON BEHALF OF HIMSELF and OTHERS SIMILARLY SITUATED v. THE CITY OF NEW YORK, JOHN DOES 1-10 (NAMES BEING FICTITIOUS and PRESENTLY UNKNOWN), and JOHN DOES 11-20 (NAMES BEING FICTITIOUS and PRESENTLY UNKNOWN), Case No. 0300340/2010 (N.Y. Sup. Ct., Bronx Cty.). The certified class is defined as: All persons who were detained by the New York City Department of Correction, during the limitations period, beyond the individual's scheduled release date, despite all other conditions for the person's release being satisfied, and based solely on a detainer issued by U.S. Immigration and Customs Enforcement prior to December 21, 2012 that either (1) indicated that an investigation had been commenced by ICE, or (2) failed to indicate a reason for continued detention (i.e. no boxes checked on the detainer form). The Court directs the parties to appear for a status conference on March 1, 2017, at 10:00 a.m., at which time the Plaintiff will submit a proposed Notice of Class Action to the Court for consideration in accordance with CPLR Section 904(b). The proposed notice of class action will be served upon the Defendant at least 10 days prior to March 1, 2017, or any adjourned date thereof. The Plaintiff will simultaneously serve the Defendant with a list of potential class members identified during the exchange of discovery herein and provide the same to the court with the proposed notice. A copy of the Decision/Order is available at no charge at https://goo.gl/4j0vPC from Leagle.com. The Plaintiff is represented by: Matthew Brinkerhoff, Esq. Debra Greenburger, Esq. EMERY CELLI BRINKERHOFF & ABADY LLP 600 Fifth Avenue New York, NY 10020 Telephone: (212) 763-5000 Facsimile: (212) 763-5001 E-mail: mbrinckerhoff@ecbalaw.com dgreenberger@ecbalaw.com Defendant New York City is represented by: Chlarens Orsland, Esq. NEW YORK CITY LAW DEPARTMENT 100 Church St., Room 6F35 New York, NY 10007-2601 Telephone: (212) 356-2086 E-mail: corsland@law.nyc.gov ONEMAIN HOLDINGS: Lifshitz & Miller Files Securities Class Action ----------------------------------------------------------------- Lifshitz & Miller, a securities class action law firm focused on representing shareholders nationwide, disclosed that on January 17, 2017, Lifshitz & Miller filed a securities class action lawsuit on behalf of shareholders who purchased shares of OneMain Holdings, Inc. (OMF) ("OneMain" or the "Company") between March 3, 2015 and November 7, 2016 (the "Class Period"). The lawsuit was filed in the U.S. District Court for the Southern District of Indiana and alleges violations of the Securities Exchange Act of 1934. A copy of the complaint is available from the Court or from Lifshitz & Miller. If you are a OneMain investor, and would like additional information about our investigation and complaint, please complete the Information Request Form or contact Joshua Lifshitz, Esq. by telephone at (516) 493-9780 or e-mail at info@jlclasslaw.com. 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. The Complaint alleges that defendants caused the Company to issue materially misleading statements and/or omit material information concerning the Company's business, operations and prospects following Springleaf Holdings, Inc.'s merger with OneMain Financial Holdings, LLC in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. In particular, the Complaint alleges that defendants caused the Company to issue materially misleading representations and/or omit material information regarding the projected net income to be achieved by the Company following, and in large part due to, the combination of OneMain Financial with Springleaf and the purported synergies achieved by the combined company. Investors have until March 20, 2017 to file a motion, with the court, for appointment as a lead plaintiff in this lawsuit. Lifshitz & Miller has extensive experience representing investors in the prosecution of securities class actions and shareholder derivative litigation in state and federal courts across the country. OPHTHOTECH CORP: March 13 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------ Gainey McKenna & Egleston on Jan. 18 disclosed that a class action lawsuit has been filed against Ophthotech Corporation ("Ophthotech" or the "Company") in the United States District Court for the Southern District of Indiana on behalf of purchasers of common stock of Ophthotech between May 11, 2015 and December 12, 2016 (the "Class Period"), seeking to recover damages caused by Defendants' violations of the Securities Exchange Act of 1934. According to the Complaint, Defendants made overtly positive representations regarding the effectiveness of its treatment Fovista and Fovista's potential when used in combination with Lucentis, a commercially available anti-vascular endothelial growth factor agent. According to the Complaint, Ophthotech made these statements despite its awareness that the phase 3 clinical trial of Fovista would not meet its primary endpoint of change in best corrected visual acuity from baseline at 12 months over Lucentis alone. The Complaint further alleges that these statements caused Ophthotech stock to trade at artificially inflated prices. On December 12, 2016, Ophthotech released its discouraging results for two phase 3 clinical trials that were testing its experimental compound Fovista combined with the Lucentis drug. Following this news, Ophthotech stock dropped close to 86% during to close at $5.29 per share. If you wish to serve as lead plaintiff, you must move the Court no later than March 13, 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. Please visit our website at http://www.gme-law.comfor more information about the firm. OPHTHOTECH CORP: Bronstein Gewirtz Files Securities Class Suit -------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notifies investors that a class action lawsuit has been filed against Ophthotech Corporation and certain of its officers, and is on behalf of a class consisting of all persons or entities who purchased Ophthotech securities between May 11, 2015 and December 12, 2016, both dates inclusive (the "Class Period"). This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). The Complaint alleges that throughout the Class Period, Defendants made overtly positive representations regarding its treatment Fovista's effectiveness and potential when used in combination with Lucentis, a commercially available anti-vascular endothelial growth factor agent. Ophthotech made these statements despite its awareness that the phase 3 clinical trial of Fovista would not meet its primary endpoint of change in best corrected visual acuity from baseline at 12 months over Lucentis alone. The complaint further alleges that these statements caused Ophthotech stock to trade at artificially inflated prices. On December 12, 2016, Ophthotech released its discouraging results for two phase 3 clinical trials that were testing its experimental compound Fovista combined with the Lucentis drug. Following this news, Ophthotech stock dropped close to 86% during to close at $5.29 per share. 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/ophtor 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 Ophthotech you have until March 13, 2017 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. PFIZER INC: Arbitration Policy Violates Law, Court Rules -------------------------------------------------------- Ed Silverman, writing for Pharmalot, reports that a Pfizer policy that prohibits employees from filing joint complaints and grievances violates federal law with the same "venom" as anti-union contracts that were commonplace nearly a century ago, an administrative law judge for the National Labor Relations Board ruled. The drug maker had required employees to waive their rights to file class-action lawsuits as a condition of employment, which the judge determined runs afoul of the National Labor Relations Act. Instead, the company policy forced employees to pursue arbitration individually to resolve any disputes. PHILLIPS 66: Buzas et al. Allege Violations of Cal. Labor Code -------------------------------------------------------------- KYNDL BUZAS, RAUDEL COVARRUBIAS, and DANIEL RUNIONS, individually and on behalf of all similarly situated current and former employees, Plaintiffs, v. PHILLIPS 66 COMPANY and DOES 1 through 10, inclusive, Defendants, Case No. 4:17-cv-00163-DMR (N.D. Cal., January 12, 2017), alleges unfair business practices and violations of the California Labor Code, by among others, having no policy or system for providing relief to Plaintiffs to allow them to take off-duty rest breaks. Defendant owns oil refineries, chemical plants, and distribution facilities in Wilmington, California. The Plaintiffs are represented by: Jay Smith, Esq. Joshua F. Young, Esq. GILBERT & SACKMAN 3699 Wilshire Boulevard, Suite 1200 Los Angeles, CA 90010 Phone: (323) 938-3000 Fax: (323) 937-9139 Email: js@gslaw.org Email: jyoung@gslaw.org - and - Randy Renick, Esq. Cornelia Dai, Esq. HADSELL STORMER & RENICK, LLP 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103-3645 Phone: (626) 585-9600 Fax: (626) 577-7079 E-mail: Email: rrr@hadsellstormer.com Email: cdai@hadsellstormer.com PITTSBURGH GLASS: 3rd Cir. Clarifies Employer Liability Issue ------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that the U.S. Court of Appeals for the Third Circuit said that employers can be taken to court for policies that meant to protect employees 40 or older that inadvertently hurt those in other age subgroups, such as those in their 50s. The court ruled on Jan. 10 that subgroups' disparate impact claims are recognized under the Age Discrimination in Employment Act in a case brought by former Pittsburgh Glass Works employees in their 50s who filed an age discrimination class action. The workers in Karlo v. Pittsburgh Glass Works claimed to have identified a practice at the glassworks that disproportionately impacted employees 50 and over in favor of those in their 40s. The disparate impact claims was denied by the district court, but the Third Circuit reversed the ruling and held that their claims were valid under the ADEA. Chief Judge D. Brooks Smith wrote in the court's opinion the ADEA made provisions to address policies that are "fair in form, but discriminatory in operation," such as in an instance where employees in their 50s can be replaced with employees in their 40s, who while younger are protected by the ADEA. He pointed to the 1996 U.S. Supreme Court case of O'Connor v. Consolidated Coin Caterers to show that the ADEA prohibits age discrimination as a whole, not just 40-and-over discrimination. Cited in Judge Brooks' opinion, the high court said the act "does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age." In keeping with the high court's reasoning, Judge Brooks said, "We conclude that the Supreme Court's analysis in O'Connor answers the question now before us. A specific, facially neutral policy that significantly disfavors employees over 50 years old supports a claim of disparate impact . . . . Although the employer's policy might favor younger members of the 40-and-over cohort, that is an 'utterly irrelevant factor' in evaluating whether a company's oldest employees were disproportionately affected because of their age." The class members' attorney, Samuel J. Cordes of Samuel J. Cordes & Associates in Pittsburgh, said the Third Circuit's ruling created a circuit split on the contentious issue of disparate impact with at least three other courts. "Before the Third Circuit [ruling], every other circuit said the other thing," Mr. Cordes said. He added that it remains to be seen whether that ruling will be challenged in the Supreme Court. "I don't know whether the Supreme Court takes it or not, but I don't think the statutory interpretation Judge Smith did provides a lot of fodder for the Supreme Court," Mr. Cordes said. David S. Becker -- dbecker@freeborn.com -- of Freeborn & Peters in Chicago represented PGW and said he was unsure as to whether he was authorized to comment. PJT PARTNERS: Seeks Dismissal of "Barrett" Amended Suit ------------------------------------------------------- The Defendants in the case, Gregory G. Barrett v. PJT Partners Inc. and Andrew W. W. Caspersen, Case No. 1:16-cv-02841 (S.D.N.Y.), have filed a motion and memorandum of law in support of their motion to dismiss an amended complaint. PJT Partners Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that on April 15, 2016, Plaintiff Gregory G. Barrett filed in the Southern District of New York a putative class action for violation of the federal securities laws against defendants PJT Partners Inc. and Andrew W. W. Caspersen in an action styled Gregory G. Barrett v. PJT Partners Inc. and Andrew W. W. Caspersen, No. 1:16-cv-02841-VEC (S.D.N.Y.). Generally, the complaint alleges that PJT Partners made misstatements about its business, operational and compliance policies and its compliance and fraud-prevention controls. These alleged misstatements allegedly caused members of the putative class, investors who purchased PJT Partners common stock during the class period, November 12, 2015 to March 28, 2016, to pay an inflated price for PJT Partners common stock. The complaint alleges claims under section 10(b) and Rule 10b-5 of the Exchange Act against PJT Partners and Mr. Caspersen, and under 20(a) of the Exchange Act against Mr. Caspersen. On June 14, 2016, plaintiff Gregory G. Barrett filed a motion for appointment as lead plaintiff and for approval of Pomerantz LLP as lead counsel. On August 3, 2016, the motion was granted. On September 23, 2016, lead plaintiff filed an amended class action complaint. The amended complaint alleges claims under section 10(b) and Rule 10b-5 of the Exchange Act against PJT Partners, Paul J. Taubman, Helen T. Meates and Mr. Caspersen and under Section 20(a) of the Exchange Act against Mr. Taubman and Ms. Meates. The Company, Mr. Taubman and Ms. Meates intend to move to dismiss the amended complaint. "We believe that this shareholder action is without merit and will defend it vigorously," the Company said. PJT Partners is a global advisory-focused investment bank. POST HOLDINGS: Accrued $28.5MM in Egg Antitrust Action ------------------------------------------------------ Post Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 18, 2016, for the fiscal year ended September 30, 2016, that the Company has accrued $28.5 million related to an antitrust class action lawsuit against egg producers. In late 2008 and early 2009, some 22 class-action lawsuits were filed in various federal courts against Michael Foods, Inc. and approximately 20 other defendants (producers of shell eggs and egg products, and egg industry organizations), alleging violations of federal and state antitrust laws in connection with the production and sale of shell eggs and egg products, and seeking unspecified damages. Michael Foods has denied liability. In December 2008, the Judicial Panel on Multidistrict Litigation ordered the transfer of all cases to the Eastern District of Pennsylvania for coordinated and/or consolidated pretrial proceedings. Between late 2010 and early 2012, a number of companies (primarily large grocery chains and food companies that purchase considerable quantities of eggs) opted out of any eventual class of direct purchaser plaintiffs and brought their own separate actions against the defendants. These "opt-out" plaintiffs assert essentially the same allegations as plaintiffs in the main direct purchaser action. The opt-out cases also are pending in the Eastern District of Pennsylvania, where they are being treated as related to the main action. Additionally, all or most defendants, including Michael Foods, received a Civil Investigative Demand ("CID") issued by the Florida Attorney General in late 2008, regarding an investigation of possible anticompetitive activities "relating to the production and sale of eggs or egg products." The CID requested information related to the pricing and supply of shell eggs and egg products, and participation in various programs of United Egg Producers. The Florida Attorney General's Office has not taken any further enforcement action during the pendency of the civil antitrust litigation. Motions related to class certification On September 18, 2015, the court denied the motion of the indirect purchaser plaintiffs (primarily consumers who purchased shell eggs from grocery stores) for class certification. The indirect purchaser plaintiffs have filed an alternative motion for certification of an injunction class, and the denial of their original motion is subject to appeal. On September 21, 2015, the court granted the motion of the direct purchaser plaintiffs to certify a shell-egg subclass, but denied their motion to certify an egg-products subclass. However, on September 2, 2016, the defendants filed a motion to decertify the class of direct purchasers of shell eggs; there has been no ruling on that motion. Motions for summary judgment On September 6, 2016, the court granted the defendants' motion to dismiss claims based on purchases of egg products, thereby limiting the claims to shell eggs. Certain of the egg products purchasers whose claims were dismissed have appealed to the Third Circuit Court of Appeals. On September 28, 2016, the court denied individual motions for summary judgment made by Michael Foods and three other defendants that had sought the dismissal of all claims against them. Michael Foods has moved to have denial of its motion for summary judgment certified for immediate appeal to the Third Circuit Court of Appeals; there has been no ruling on that motion. In light of the denial of Michael Foods' motion for summary judgment, the Company will continue to vigorously defend the cases. Past settlements with the direct purchaser class in this case by other defendants have been as high as $28 million. Amounts paid in settlements with the opt-out plaintiffs are not known. There can be no assurance that the cases against Michael Foods will be resolved by settlements, or that any settlements would be in line with the previous settlements referenced. Under current law, any settlement paid, if any, would be deductible for federal income tax purposes. The Company has accrued $28.5 million for this matter. Post Holdings, Inc. is a consumer packaged goods holding company, operating in the center-of-the-store, foodservice, ingredient, refrigerated, active nutrition and private label food categories. PROSPER FUNDING: To Pay $3 Million in Class Action Settlement ------------------------------------------------------------- Prosper Marketplace, Inc. and Prosper Funding LLC said in their Form 10-Q Report filed with the Securities and Exchange Commission on November 17, 2016, for the quarterly period ended September 30, 2016, that the Company is expected to pay $3 million in 2017 as part of a class action settlement. In 2008, plaintiffs filed a class action lawsuit against Prosper and certain of its executive officers and directors in the Superior Court of California, County of San Francisco, California. The suit was brought on behalf of all promissory note purchasers on the platform from January 1, 2006 through October 14, 2008. The lawsuit alleged that Prosper offered and sold unqualified and unregistered securities in violation of the California and federal securities laws. On July 19, 2013 solely to avoid the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing, the parties to the class action litigation agreed to enter into a settlement to resolve all claims related thereto (the "Settlement"). In connection with the Settlement, Prosper agreed to pay an aggregate amount of $10 million into a settlement fund, split into four annual installments of $2 million in 2014, $2 million in 2015, $3 million in 2016 and $3 million in 2017. The Settlement received final approval in a final order and judgment entered by the Superior Court on April 16, 2014. Pursuant to the final order and judgment, the claims in the class action were dismissed, and the defendants were released by the plaintiffs from all claims that were or could have been asserted concerning the issues alleged in the class action lawsuit. The first three annual installments have been made prior to September 30, 2016 and the reserve for the class action settlement liability is $3.0 million in the condensed consolidated balance sheet as of September 30, 2016. Prosper is a pioneer of online marketplace lending that connects borrowers and investors. PTC INC: Settlement Reached in "Crandall" Class Action ------------------------------------------------------ PTC Inc. said in its Form 10-k Report filed with the Securities and Exchange Commission on November 18, 2016, for the fiscal year ended September 30, 2016, that the Company has reached an agreement-in-principle with the plaintiff to settle a class action lawsuit. On March 7, 2016, a putative class action lawsuit captioned Matthew Crandall v. PTC Inc. et al., No. 1:16-cv-10471, was filed against us and certain of our current and former officers and directors in the U.S. District Court for the District of Massachusetts ostensibly on behalf of purchasers of our stock during the period November 24, 2011 through July 29, 2015. The lawsuit, which seeks unspecified damages, interest, attorneys' fees and costs, alleges (among other things) that, during that period, PTC's public disclosures concerning investigations by the U.S. Securities and Exchange Commission and the U.S. Department of Justice into U.S. Foreign Corrupt Practices Act matters in China (the "China Investigation") were false and/or misleading. "We have reached an agreement-in-principle with the plaintiff to settle this lawsuit for an amount that is not material to our results of operations and the associated liability has been accrued in our fiscal 2016 results. The settlement is conditioned on execution and final court approval of formal settlement documents. Accordingly, we cannot predict the outcome of this action nor when it will be resolved," the Company said. PTC is a global computer software and services company. QUALCOMM INC: Consumer Group File Antitrust Class Action -------------------------------------------------------- Kelcee Griffis and Melissa Lipman, writing for Law360, report that a group of consumers hit Qualcomm Inc. with a proposed class action on Jan. 18 alleging it has a monopoly on modem chipset technology that resulted in inflated retail prices for cell phones and other devices, closely following a Federal Trade Commission challenge to the company's practices. The consumer suit comes on the heels of an FTC action launched on Jan. 17 that claimed Qualcomm has been using its dominance over the sale of semiconductors for mobile devices to wrangle higher royalties and anti-competitive licensing terms. According to the consumers' complaint, the company has been passing on the undue costs by "maintaining its monopoly over the modem chipset market and abusing the intellectual property rights in underlying this technology." The complaint says the high royalty premiums the company charged device-makers resulted in consumers paying inflated prices for phones and tablets. The plaintiffs include people who bought cell phones, tablets and other devices that incorporated modem chipset designs, which lets a device "communicate and transmit voice and data across wireless networks controlled by carriers, such as Verizon or Sprint," the complaint says. The claims echo the FTC's claims concerning the company's alleged practice of granting licenses with strings attached. Most component suppliers don't require device makers to pay for a patent license on top of the price of the chip itself. But Qualcomm is the lone chipmaker to force its customers to sign a separate patent license and pay royalties for devices that use rival semiconductor chips, according to the FTC's suit. This is not the first time in recent history that the company has come under scrutiny for its practices. The Korea Fair Trade Commission ruled in late December that Qualcomm must pay an $854 million fine for forcing mobile phone makers to pay royalties on broad patents covering modem chipsets and for tying licensing agreements to chip supply numbers. The consumer suit points to that fine and others to assert that the buyers have ultimately paid the price for the business model, saying Qualcomm has already attracted attention from regulators in China, South Korea, Taiwan, Japan, Europe and the United States. "While Qualcomm's abusive and unfair licensing practices have allowed it to rake in billions of dollars in undeserved profits, these practices have not gone unnoticed by courts and foreign and domestic regulatory agencies," the complaint says. The class is represented by Bruce J. Wecker, Michael D. Hausfeld, Michael Paul Lehmann, Samantha J. Stein and Christopher L. Lebsock of Hausfeld LLP. The case is Jordie Bornstein et al v. Qualcomm Incorporated, case number 5:17-cv-00234, in the U.S. District Court for the District of Northern California. REMINGTON ARMS: Nine State Attorney Generals Oppose Settlement -------------------------------------------------------------- Scott Cohn, writing for CNBC, reports that attorneys general from nine states and the District of Columbia are urging a federal judge to reject a proposed class action settlement involving millions of allegedly defective Remington rifles including the iconic Model 700, saying the agreement "fails to adequately protect public safety." The 38-page filing, which alleges that Remington has "long known" that the guns can fire without the trigger being pulled, comes less than one month before U.S. District Judge Ortrie Smith in Kansas City is scheduled to consider final approval of the settlement in which Remington has agreed to replace the triggers on most of the 7.5 million guns in question. But the attorneys general, led by Massachusetts Attorney General Maura Healey on behalf of her counterparts in Hawaii, Maine, Maryland, New York, Oregon, Pennsylvania, Rhode Island, Washington, and the District of Columbia, say the judge should reject the agreement because it does not adequately warn the public of the danger they say the guns pose. "A firearm that fires a bullet without the trigger being pulled is perhaps the quintessential example of a dangerously unsafe product," the filing says. But in settlement notifications to the public and on a special settlement web site, Remington's denial of any problem is prominent. The attorneys general say that could lull gun owners into complacency. "The notices fail to convey that correction of the defect is urgent or that failure to replace the trigger could have life- threatening consequences," the filing says. Attorneys for Remington and class action plaintiffs did not respond to e-mails seeking a comment, but Remington has steadfastly maintained that the guns are safe and free of defects, and that lawsuits linking the alleged defect to at least two-dozen deaths are without merit. The company has said it is seeking to settle the class action case now to avoid "protracted litigation." CNBC first reported in 2010 about allegations, which Remington has denied, that the company covered up the alleged defect since before the trigger design went on the market in the 1940s. The original CNBC investigation and a 2015 follow-up report are cited in the states' filing. In a separate filing on Jan. 17, attorneys for class action plaintiffs, who stand to collect $12.5 million in fees if the settlement is approved, defended Remington's continued denials. "The fact is that defendants in product liability class actions, defendants in general for that matter, deny liability," wrote attorney Eric Holland. "And while an admission of guilt would be welcomed, Remington does not, and will not, accept that its products are defective." But the states say Remington's own internal documents prove the company knows otherwise. "The substantial number of documented incidents of Remington rifles inadvertently firing without a trigger pull places Remington under an obligation to warn rifle users of the potential for harm," the filing says. The attorneys general say one of the main reasons the settlement notice falls short is that it does not describe what can happen if the guns malfunction. By contrast, the federal Consumer Product Safety Act -- which does not apply to guns, but which the filing says is "instructive" -- requires that consumers can readily identify the "risks and potential injuries or deaths associated with the product conditions." Judge Smith has already raised multiple concerns about the proposed settlement. In December of 2015, he sent the parties back to the drawing board after learning that only about 2,300 gun owners had filed claims to have their guns repaired. Since then, the parties have stepped up their campaign to notify the public about the trigger replacement offer, adding radio commercials and notices on social media. As of Jan. 13, according to a court filing, more than 19,000 customers have responded out of 7.5 million guns sold. Judge Smith has given the parties until Jan. 24 to respond to the states' filing. REMINGTON ARMS: February 14 Settlement Fairness Hearing Set ------------------------------------------------------------ Frank Miniter, writing for Forbes, reports that a class-action lawsuit, propelled by reporting from CNBC in 2010, was filed against Remington Arms in 2013 claiming that some of Remington's bolt-action rifles have gone bang even when know when pulled a trigger. The suit is now coming to a climax, if not a conclusion. Depending on the outcome, the fault lines beneath this case could send armies of trial attorneys, with mainstream media outlets doing their marketing campaigns, after U.S. gun companies for the next generation. U.S. District Judge Ortrie D. Smith in Kansas City has a hearing scheduled for February 14 to decide if a settlement agreement between Remington and the plaintiffs is a fair deal all around. The settlement would pay the plaintiff's attorneys $12.5 million. Remington negotiated this deal and is hoping the judge will approve it because, while the company vehemently denies the allegations that firearms containing a trigger connector component are defective or unsafe, it would rather avoid protracted litigation. Instead, basically Remington would pay to upgrade triggers in Model 700 rifles made from 1962-2006, as well as certain other rifles that use a trigger connector component. That's the basic legal situation, but what's been misrepresented in the media with this case could impact not just Remington, but every U.S. gun manufacturer in the coming years. After what CNBC called a "10-month investigation," CNBC aired "Remington Under Fire" in 2010, an hour-long program claiming that Remington's Model 700 rifle--the most popular bolt-action rifle sold in America for more than a half century and counting--are going off when someone closes a rifle's bolt or disengages a safety mechanism. The program was emotional and compelling. It also feels very one- sided. Remington had declined to step in front of CNBC's cameras, but did send CNBC evidence countering the network's claims-- details that didn't make it into the CNBC program. After this experience, Remington produced its own rebuttal of CNBC's piece. Remington's defense has been further complicated by the fact that the Model 700's "Walker" trigger, which was standard on the Model 700 from 1962 to 2006, can be adjusted. If a gunsmith does the adjustments, and so keeps it within manufacturer recommended specifications, the gun should be fine. But if an amateur with a screwdriver decides to tweak the trigger and takes it outside the manufacturer's guidelines, it might not be safe. Field & Stream's David E. Petzal put it this way: "If the original 700 trigger has a fault, it is that it can be fooled with by anyone who has a small screwdriver. The adjustments are delicate, and if you don't know how (or know enough) to keep sufficient engagement between the sear and the trigger connector, the rifle can slam fire, or fire when it's dropped, or fire when the safety is flipped off." An unskilled person fooling around with any trigger system is like an untrained car enthusiast installing a lift kit in a pickup truck. Now, it's their vehicle and that's fine. But if the modified truck rolls on a sharp turn because the lift kit made it top heavy, it is hardly the truck maker's fault. Most gun owners who wanted a "better" trigger in their Model 700s installed--or more likely had someone install--an after-market trigger, such as one from Timney, in their rifles. CNBC did try to cast the millions of happy Model 700 owners as na‹ve fools by showing footage of a Model 700 being used by a police department in Portland, Maine, that repeatedly went bang when the rifle's bolt was closed. It's a scary, impactful little piece of footage, but the CNBC reporter, Scott Cohn, didn't get the police department's armorer in front of a camera to answer whether the rifle's trigger mechanism had been toyed with. CNBC's program used the tragic tale of the Barber family for the spine of its narrative. In 2000 a Remington Model 700 rifle killed 9-year-old Gus Barber. His mother shot him while she was unloading the rifle. She says she didn't touch the trigger. The rifle went off, the bullet went through a horse trailer and fatally struck the boy. It is hard to keep a clear mind when even thinking about the horror of this tragedy. Both Remington and Richard Barber, the boy's father, agree, however, that the used rifle had its trigger adjusted by someone other than Remington. The rifle also had not been properly maintained. Richard Barber says the rifle was soaking wet, after a day being used hunting in Montana, when it was handed to the police after his son had been shot. It then "sat in a plastic bag in an evidence room for some time," says Mr. Barber. At this time, Barber says, the gun likely rusted. CNBC never addressed these facts, nor did they address the issue of safe and proper gun handling in its program. Remington settled with the Barber family for an undisclosed amount in 2002; still, Richard Barber has understandably kept up a campaign against Remington. Over the years, Barber has amassed filing cabinets filled with old Remington marketing materials, with letters--obtained through court actions--from customers to Remington about purported problems with Model 700 triggers and more. Mr. Barber has made himself into an expert on Remington and its trigger systems; so much so, he says he has been paid "handsomely" by plaintiffs' attorneys suiting Remington in other suits related to Remington's "Walker" trigger system. Mr. Barber wants Remington to admit fault and to recall the millions of rifles that use the "Walker" trigger. Mr. Barber, however, says he is now no longer working with trial attorneys. He said, "All these cases have done is make attorneys rich. I just want justice to be done. Remington is a company built on lies." Mr. Barber has made the tens of thousands of Remington documents he has obtained publicly available at remingtondocuments.com. In 2014 Mr. Barber did try to strike a deal with Remington. He told the company he would stop his campaign against them, that he would back the class-action settlement and that he would destroy his Remington files if they paid him $1.5 million and gave him two Remington Modular Sniper Rifles (these sell for about $21,000 apiece) with 4,000 rounds of ammunition. Remington declined Mr. Barber's deal. Meanwhile, CNBC's chief "expert" witness, who has been paid repeatedly by trial attorneys to testify against several firearms manufacturers, has shown himself to be less than trustworthy. His name is Jack Belk. He has testified that Remington's Model 700 might go off without the trigger being pulled, though when he was deposed in 2015, he testified that he was never able to duplicate any of the alleged accidental discharges on the rifles involved in his cases. On December 1, 2016 Remington's attorneys filed a 22-page brief on Belk, who has objected to the class-action settlement. The brief contained video of Mr. Belk being deposed by Remington attorneys, and the footage speaks for itself. In its brief on Mr. Belk, Remington notes that though Belk is used as an "expert" witness, he is not a mechanical engineer and has never worked at a gun company. His formal education is limited to a GED he obtained in 1964 and to attending a gunsmith school in 1969. Mr. Belk was actually employed for much of his life as a traveling salesman. During some periods in the 1970s and 1980s he worked as a gunsmith and salesman at various firearm retail stores. Interestingly, when at these stores he sold Model 700s yet didn't tell people he thought they were dangerous. He justified his silence by saying that "telling people that wouldn't have been a good sales technique." Also, Mr. Belk testified in 2015 that he owns a Model 700 rifle and says he is safe with it. None of this was mentioned in the two hour-long CNBC programs Belk was prominently featured in as he condemned Remington's bolt- action rifles. Like Mr. Barber, Mr. Belk filed an objection to the class-action settlement and was given a platform by CNBC to attack the proposed settlement. Neither Mr. Belk's objection nor CNBC's reporting refute Remington's attack on Mr. Belk's credibility. In a "Supplemental Brief in Response to Objector Jack Belk," filed by Remington in U.S. District Court for the Western District of Missouri, Remington also listed multiple factual errors in a 2014 book Belk wrote on the company. There is much, much more to this story. Remington did pass on updating its Walker trigger several times during its history. In 2007 Remington responded to a marketplace suddenly energized by new trigger mechanisms -- purred on by Savage Arms' innovative AccuTrigger in 2002 -- by developing its X-Mark Pro trigger. The X-Mark Pro trigger is now standard on Model 700 rifles, but Remington still makes and installs "Walker" triggers. Also, Remington's X-Mark Pro trigger went through a brief voluntary recall due to some rifles discharging when no one had touched a trigger -- in this case, a binding agent was at fault and the problem has been fixed. This class-action settlement, if it is approved, is no small deal for Remington or for the U.S. firearms' industry. It's hard to blame Remington for wanting to end this class-action suit, even if it would cost them millions to do so. RENT-A-CENTER: Feb. 21 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP, announces that a shareholder class action lawsuit has been filed against Rent-A- Center, Inc. on behalf of purchasers of the Company's securities between July 27, 2015 and October 10, 2016, inclusive (the "Class Period"). Investors who purchased Rent-A-Center securities during the Class Period may, no later than February 21, 2017, petition the Court to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this action please visit https://www.ktmc.com/new-cases/rent-a-center- inc#join Rent-A-Center shareholders who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O. Bell, Esq.) at (888) 299-7706 or at info@ktmc.com. Rent-A-Center operates a network of stores that provide consumer electronics, appliances, computers, and furniture to consumers under rental purchase agreements. In the summer of 2015, the Company began implementing a point of sale ("POS") system and customer credit program in an attempt to control inventory and increase revenue and profitability. However, the Company's new POS system was not properly implemented and caused severe harm to Rent-A-Center's overall operations. The complaint alleges that during the Class Period Rent-A-Center and certain of its executive officers made false and/or misleading statements and/or failed to disclose the following: (1) that Rent- A-Center could not properly implement its new POS; (2) that the POS was performing extremely poorly, including several instances where the system suffered complete outages; (3) that as a result, the Company's credit system could not be implemented properly; (4) that the Company could not meet revenue and profitability guidance provided to investors; and (5) that, as such, the Company would need to revise its prior guidance. The complaint further alleges that, as a result of the foregoing, the Company's statements about its business, operations and prospects were false and misleading and/or lacked a reasonable basis at all relevant times. On July 27, 2016, Rent-A-Center reported its second quarter 2016 financial and operational results. For the quarter the Company reported diluted earnings per share ("EPS") of $0.41, and further reported that Core U.S. same store sales had decreased by 6.7% driven by, among other things, "the impact and acceleration of the point of sale system rollout." Additionally, Rent-A-Center's Chief Executive Officer ("CEO") disclosed that "[t]he point of sale implementation negatively impacted Core revenue in the second quarter and reduced our portfolio making it necessary to revise our outlook for the year." On this news, shares of the Company's stock declined $2.34 per share, or over 17%, to close on July 28, 2016 at $10.92 per share. Then, on October 11, 2016, Rent-A-Center reported preliminary third quarter 2016 financial and operational results. Therein, the Company disclosed that it expected to report that Core U.S. same store sales for the third quarter would be down approximately 12% and that diluted EPS for the quarter would be between $0.05 and $0.15. Additionally, Rent-A-Center's CEO disclosed that, "[f]ollowing the implementation of our new point-of-sale system, we experienced system performance issues and outages that resulted in a larger than expected negative impact on Core sales." On this news, shares of Rent-A-Center's stock declined $3.70 per share, or over 28%, to close on October 11, 2016 at $9.18 per share. Rent-A-Center shareholders may, no later than February 21, 2017, petition the Court to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. For additional information, or to learn how to participate in this action, please visit https://www.ktmc.com/new-cases/rent-a-center-inc#join Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. For more information about Kessler Topaz Meltzer & Check, please visit www.ktmc.com RIGHTSCORP INC: Court Awards Costs to Roxborough & Pietz Firms -------------------------------------------------------------- In the case, Karen J Reif et al v. Rightscorp, Inc., et al., Case No. 2:14-cv-09032 (C.D. Cal.), Judge Dale S. Fischer on Jan. 6, 2017, entered an order awarding costs in the amount of: -- $10,158.61 to Roxborough, Pomerance, Nye & Adreani and -- $311.90 to the Pietz Law Firm. The case was terminated on Nov. 28, 2016. Rightscorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 15, 2016, for the quarterly period ended September 30, 2016, that a hearing regarding final approval of the settlement was set for November 14, 2016, in the case, John Blaha v. Rightscorp, Inc , C.D. Cal. (Original Complaint Filed November 21, 2014; First Amended Complaint Filed March 9, 2015). Nature of Matter: This matter seeks relief for alleged violations of the Telephone Consumer Protection Act (47 U.S.C. Sec. 227). The action is brought on behalf of the individual named plaintiff as well as on behalf of a putative nationwide classes. Progress of Matter to Date: This matter was previously captioned with Karen J. Reif and Isaac Nesmith as lead plaintiffs. On March 9, 2015, plaintiff filed a First Amended Complaint replacing the lead plaintiffs, dropping their second and third causes of action for Violations of the Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692, et seq.) and Violations of the Rosenthal Fair Debt Collection Practices Act (Cal. Civ. Code Sec. 1788 et seq.) (and dropping associated putative class claims), and naming BMG Rights Management (US) LLC and Warner Bros. Entertainment Inc. as additional defendants. The First Amended Complaint also contained a cause of action for Abuse of Process. In response to the Abuse of Process claim, defendants brought a special motion to strike the claim under California's anti-SLAPP statute. Defendants' anti-SLAPP motion was granted on May 8, 2015. Pursuant to the Court's May 8, 2015 Order, the Abuse of Process claim (and associated putative class claim) was stricken from the case and plaintiff was ordered to pay defendants' attorney's fees incurred in bringing the anti-SLAPP motion. Following the dismissal of Plaintiff's Abuse of Process claim, the parties agreed to mediate the dispute and reached a settlement in principal. On June 24, 2016, the Court issued an order granting plaintiff's motion for preliminary approval of class action settlement. On August 1, 2016, notice was sent to the class. A hearing regarding final approval of the settlement was set for November 14, 2016. The Company has recorded a reserve for the estimated settlement of $200,000 related to this, which is net of expected insurance proceeds of $250,000. SALTY GATOR: Employees File Class Action Over Unpaid Wages ---------------------------------------------------------- Waaytv.com reports that six ex-employees of a short-lived south Huntsville restaurant are suing their former employer for unpaid wages. The six employees filed a class-action lawsuit in federal court on Jan. 17 against Salty Gator Trading Company and owners Daniel J. O'Conner III and Douglas Weaver Sr. The ex-employees claim in the lawsuit that they were not paid for the time they worked at the restaurant on South Memorial Parkway, and they were not paid overtime when they were ordered to work more than 40 hours a week. The lawsuit states other employees received similar treatment and asks for the unpaid wages as well as compensation and restitution. The restaurant opened in October 2016 and closed down in early December. SAMSUNG: Faces Class Action Over Washing Machine Recall ------------------------------------------------------- James R. Hood, writing for ConsumerAffairs, reports that it took Samsung many months to issue a recall of top-loading washing machines that can basically shake themselves apart and send pieces flying through consumers' laundry rooms. Now an Oklahoma man says the company hasn't followed through on its recall of the machines. In a lawsuit seeking class action status, Jerry Wells says the remedies Samsung is offering aren't adequate. Mr. Wells says he has made numerous attempts to have his machine repaired, alleging that although he made three appointments, no service person ever showed up. Mr. Wells isn't alone. Many other consumers have complained that Samsung either refused to repair their washer or, as in Wells' case, failed to do so successfully. "I was told they would refund my money," D.C. of Rosewell, Ga., wrote in a ConsumerAffairs review. "Then my refund was denied stating my receipt was 'blurry.' I honestly feel retailers should step in and help consumers. I now sit with a washing machine that is not usable as it sounds like a jet ready to take off when it is in use." "My new Samsung washer has slammed itself all over the laundry room. I have readjusted it on about every load. It barely uses any water and soap is stuck to my jeans. I have never washed bedding," said Cindy of Jacksonville, Ala. "It goes nuts on towels or jeans. Now I find out it is on recall. . . . I guess they didn't want to refund my money." The recall offered consumers the choice of a warranty extension and in-home repair, a rebate on a new machine, or a complete refund if the consumer had purchased the machine within 30 days of the date the recall was issued. Mr. Wells says he chose the warranty extension and repair, but Samsung has failed to deliver. His suit seeks to represent consumers who purchased one of the 34 recalled models between March 2011 and November 2016. He is asking for a court order that would require Samsung to replace parts or entire washers free of charge. Mr. Wells also asks the court to bar Samsung from continuing to manufacture the top-loading machines, saying they are a hazard to consumers' safety. Samsung has conceded that it has received nine reports of injuries resulting from flying parts, including a broken jaw and injured shoulder. It has received hundreds of reports of damage to the machine resulting from excessive vibration. Mr. Wells' case was filed in the U.S. District Court for the Western District of Oklahoma. He is represented by attorney William B. Federman. SAMSUNG: Must Face Lawsuit by Galaxy S4 Users --------------------------------------------- Wendy Davis at Media Post reports Samsung must face a class-action lawsuit by Galaxy S4 users who say the company misled them regarding the device's storage capacity and performance, the 9th Circuit Court of Appeals ruled on January 19. The decision stems from a lawsuit filed in 2014 by Daniel Norcia, a California resident who purchased his device from a Verizon Wireless store. He alleged in a class-action complaint that Samsung advertised the device as having 16 Gigabytes of storage, but that preinstalled apps took up around half of that capacity. The complaint also alleged that Samsung programmed the devices to run faster than usual when they detect performance-measuring tools. Samsung argued that the lawsuit belonged in arbitration for several reasons including that Norcia's agreement with Verizon called for arbitration of disputes. The 9th Circuit ruled against Samsung on January 19. "The Customer Agreement is an agreement between Verizon Wireless and its customer," a three-judge panel of the appellate said in the decision. "Samsung is not a signatory. While the agreement itself includes a number of terms governing the relationship between Norcia and Verizon Wireless, including an arbitration provision, nothing in the agreement references Samsung or any other party." The opinion could play a role in a pending privacy battle between the ad network Turn and Verizon Wireless users. In that matter, Verizon Wireless subscribers Anthony Henson and William Cintron alleged in a class-action complaint that Turn violated a consumer protection law by using a controversial technology that enabled it to track consumers for online ad purposes. Those allegations centered on Verizon's "supercookies" -- headers that Verizon previously injected into all unencrypted mobile traffic. The headers (50-character alphanumeric strings) enabled ad companies to compile profiles of users and serve them targeted ads. The UIDHs also are known as "zombie" cookies, or "supercookies" because they allow ad companies to recreate cookies that users delete. Last year, U.S. District Court Judge Jeffrey White in the Northern District of California granted Turn's motion to send the matter to arbitration, based on the consumers' agreements with Verizon. White said at the time that he agreed with Turn that the consumers' allegations were closely connected to their subscriber agreements with Verizon -- which call for arbitration of all disputes. Henson and Cintron recently asked the 9th Circuit to reverse that ruling, arguing that their arbitration agreements were with Verizon, not Turn. The ad network -- which recently settled Federal Trade Commission charges over the tracking technology -- argues that the consumers' case belongs in arbitration because their allegations are based on "interdependent and concerted conduct" by itself and Verizon. The 9th Circuit said that it may hold a hearing in that matter in April. SEATTLE GENETICS: Wolf Haldenstein Files Securities Class Suit -------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP announces that a class action lawsuit has been filed against Seattle Genetics Inc. and certain of its officers. The class action, filed in United States District Court for the Western District of Washington is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired Seattle Genetics securities between October 27, 2016 and December 23, 2016, inclusive (the "Class Period"). Investors who have incurred losses in shares of Seattle Genetics Inc. are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action on our website -- www.whafh.com -- If you have purchased shares of Seattle Genetics Inc. within the class period and would like to assist with the litigation process, you may, no later than March 13, 2017, request that the Court appoint you lead plaintiff of the proposed class. Seattle Genetics develops and commercializes targeted therapies for the treatment of cancer worldwide. Among the Company's products in development is SGN-CD33A (vadastuximab talirine). Throughout the Class Period, vadastuximab talirine was in clinical trials for various applications, including, in relevant part: (i) a Phase 1/2 trial in patients with acute myeloid leukemia (AML) as a pre-conditioning regimen prior to an allogenic stem cell transplant and as a maintenance therapy following transplant; (ii) a Phase 1 trial evaluating vadastuximab talirine monotherapy, including a subset of older AML patients in combination with hypomethylating agents; and (iii) a Phase 1 trial evaluating vadastuximab talirine combination treatment with 7+3 chemotherapy in newly diagnosed younger AML patients. The filed Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) vadastuximab talirine presents a significant risk of fatal hepatotoxicity; (ii) as such, Seattle Genetics had overstated the viability of vadastuximab talirine as an AML treatment; and (iii) as a result of the foregoing, Seattle Genetics' public statements were materially false and misleading at all relevant times. On December 27, 2016, Seattle Genetics issued a press release and filed a Form 8-K with the Securities and Exchange Commission (SEC) announcing that the Food and Drug Administration had (FDA) placed a clinical hold or partial clinical hold on several early stage trials of the Company's experimental cancer drug, vadastuximab talirine, to evaluate the potential risk of hepatotoxicity. On this news, Seattle Genetics' share price fell $9.50, or 15.36 %, to close at $52.36 on December 27, 2016. Wolf Haldenstein has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com SERES THERAPEUTICS: Motley Rice & Cohen Milstein Named Lead Atty ---------------------------------------------------------------- Judge Denise J. Casper signed on a Stipulation and Order appointing: -- Erste-Sparinvest Kapitalanlagegesellschafi mbH and Oklahoma Law Enforcement Retirement System as Co-Lead Plaintiff; and -- the law firms Motley Rice and Cohen Milstein as Co-Lead Counsel and Hagens Berman as Liaison Counsel, in the securities class action styled, Mazurek v. Seres Therapeutics, Inc. et al., Case No. 1:16-cv-11943 (D. Mass.). Seres Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended September 30, 2016, that, "On September 28, 2016, a purported stockholder of the Company filed a putative class action lawsuit in the U.S. District Court for the District of Massachusetts against the Company entitled Mariusz Mazurek v. Seres Therapeutics, Inc., et. al. The lawsuit alleges violations of Sections 10(b), 20(a) and Rule 10b-5 of the Securities and Exchange Act of 1934, as amended due to allegedly false and misleading statements and omissions about our clinical trials for our product candidate SER-109 in the Company's public disclosures between June 25, 2015 and July 29, 2016. The lawsuit seeks, among other things, damages in connection with our allegedly inflated stock price between June 25, 2015 and July 29, 2016 as a result of those allegedly false and misleading statements, as well as interest, attorneys' fees and costs." "This matter is at a very early stage of the legal process, and as a result, the Company is not able to estimate a range of possible loss. "We are vigorously defending against all claims asserted. The Company has not yet filed a responsive pleading. Since an estimate of the possible loss or range of loss cannot be made at this time, no accruals have been recorded as of September 30, 2016." On November 28, 2016, several entities sought appointment of lead plaintiff and lead counsel: -- Claiming a loss of $371,173.80, Erste-Sparinvest Kapitalanlagegesellschafi mbH filed a motion to be appointed Lead Plaintiff in the Action and for approval of its selection of the law firm Motley Rice LLC as Lead Counsel for the Class; -- with a loss of $22,44.09, Dariusz Lazarczyk filed a motion to be appointed Lead Plaintiff in the Action and for approval of its selection of the law firm Glancy Prongay & Murray LLP as Lead Counsel for the Class; -- with a loss of $176,669.52, Steven Taylor filed a motion to be appointed Lead Plaintiff in the Action and for approval of its selection of the law firm The Rosen Law Firm, P.A. as Lead Counsel for the Class; -- With a combined loss of $507,173.80, Oklahoma Law Enforcement Retirement System, Fred Fesel, and Richard and Christine Kennedy filed a motion to be appointed as Lead Plaintiff and for Cohen Milstein and Hagens Berman to serve together as Lead Counsel, or to serve as Lead Counsel and Liaison Counsel respectively. Plaintiff Mariusz Mazurek, individually and on behalf of all others similarly situated, represented by: Shannon L. Hopkins, Esq. Levi Korsinsky LLP 733 Summer Street, Suite 304 Stamford, CT 06901 Tel: 212-363-7500 Fax: 866-367-6510 Email: shopkins@zlk.com Plaintiff Dariusz Lazarczyk is represented by: Kenneth A. Reich, Esq. Kenneth Reich Law, LLC 745 Boylston Street, 7th Floor Boston, MA 02116 Tel: 781-608-7267 Email: kreich@kennethreichlaw.com Plaintiff Steven Taylor is represented by: Erica C Mirabella, Esq. 132 Boylston Street Boston, MA 02116 Tel: 617-580-8270 Fax: 617-583-1905 Email: erica@mirabellallc.com Defendant Seres Therapeutics, Inc. is represented by: John D. Donovan, Jr., Esq. Ropes & Gray LLP Prudential Tower 800 Boylston St. Boston, MA 02199-3600 Tel: 617-951-7566 Fax: 617-951-7050 Email: jdonovan@ropesgray.com - and - Daniel V. Ward, Esq. Ropes & Gray LLP Prudential Tower 800 Boylston St. Boston, MA 02199-3600 Tel: 617-951-7703 Fax: 617-235-9766 Email: daniel.ward@ropesgray.com Ropes & Gray also represents individual defendants. Movant Erste-Sparinvest Kapitalanlagegesellschaft mbH is represented by: Gregg S. Levin, Esq. Motley Rice LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464-4399 Tel: 843-216-9000 Email: glevin@motleyrice.com Movant Oklahoma Law Enforcement Retirement System is represented by: Lance Oliver, Esq. Motley Rice, LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 Tel: (843) 216-9000 Email: loliver@motleyrice.com - and - Meredith Miller, Esq. Motley Rice LLC 28 Bridgeside Blvd Mount Pleasant, SC 29464 Tel: (843) 216-9000 Email: mbmiller@motleyrice.com - and - Thomas M. Sobol, Esq. Hagens Berman Sobol Shapiro LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Tel: 617-482-3700 Fax: 617-482-3003 Email: Tom@hbsslaw.com Movant Fred Fesel is represented by by Motley Rice. Seres Therapeutics, Inc. is a microbiome therapeutics platform company developing a novel class of biological drugs, which are designed to treat disease by restoring the function of a dysbiotic microbiome. STARBUCKS CORP: Faces Class Action Over Background Check -------------------------------------------------------- Thomas Ahearn, writing for ESR News, reports that Starbucks Corp. is facing a class action lawsuit filed by a Colorado man who claims he was denied a job based on an allegedly inaccurate background check and is suing the coffeehouse chain for violations of the federal Fair Credit Reporting Act (FCRA), according to a report from Top Class Actions. Top Class Actions reports that plaintiff Jonathan Santiago Rosario claims Starbucks denied him a job based on allegedly inaccurate results of a background check without giving him a proper chance to correct those results and thus violated required provisions of the FCRA, which governs background checks in the U.S. In March 2016, Mr. Rosario applied for a job at a Starbucks in Castle Rock, Colorado. A background check performed on him listed several criminal records from Pennsylvania, some of which involved violent crime and drug-related charges. Starbucks then sent Mr. Rosario a letter dated April 20 informing him that the results of his Starbucks background check did not meet the company's requirements. But by the time Mr. Rosario received the letter, he claims, Starbucks had already removed him from consideration for employment. Top Class Actions reports that Rosario challenged the allegedly inaccurate background check results in May 2016, and the Consumer Reporting Agency (CRA) that performed the background check corrected the errors by May 19, and forwarded a corrected report to Starbucks. However, Mr. Rosario claims Starbucks declined to change its decision to deny him a job and failed to give him an opportunity to dispute the contents of his background check in violation the pre-adverse action notification requirements in the FCRA, Top Class Actions reports. The case is Rosario v. Starbucks Corp., Case No. 2:16-cv-01951, in the U.S. District Court for the Western District of Washington. STEEL & TUBE: Canterbury Homeowners Invited to Join Mesh Suit ------------------------------------------------------------- Tom Doudney, writing for Christchurch Star, reports that about 3,000 Canterbury homeowners have been sent letters inviting them to join a class action lawsuit against three companies that supplied allegedly substandard steel mesh. Auckland firm Adina Thorn Lawyers has proposed taking the lawsuit against the companies which are also set to be prosecuted by the Commerce Commission this year under the Fair Trading Act. The steel mesh, alleged to be below the national building standard, is typically used in concrete slab foundations and driveways. The letter stated that if the companies were found guilty in the Commerce Commission's prosecution they would face fines but this was "very unlikely" to deliver financial compensation to affected home owners. "Unless the owners of affected properties take legal action, they will likely face losses in terms of re-sale values, as well as possible complications with insurance claims in the event of an earthquake," it said. The three companies were not named by the Commerce Commission but one, Steel & Tube, chose to identify itself. Steel & Tube said the commission's decision in relation to itself was about the application of testing methodologies and mistaken use of a testing laboratories logo on test certificates, not the performance characteristics of its seismic mesh. Adina Thorn Lawyers senior associate Richard Hart said homes which received the letters had been chosen based on having had a building consent issued during the four years that the non- complying mesh was being supplied. He acknowledged the firm did not know whether it had been used in any of the specific homes it sent letters to. The 3000 was just a subset of potentially affected homes with the total number "too difficult to obtain at this stage," Mr. Hart said. "This is a potentially serious problem, we don't want to alarm people but on the other hand it's an opportunity for people to perhaps find out a bit more and find out whether or not [joining the lawsuit] is worthwhile." Letters had been sent to new Auckland subdivisions as well but Mr Hart said Canterbury had the potential to be worse affected due to the possibility of future seismic activity in the region. Steel & Tube communications manager Tanya Katterns said Adina Thorn had not provided information to support its claims that re- sale values and insurance claims could be affected. "We believe our seismic mesh ensures building safety," she said. Last year Ministry of Business Innovation and Employment general manager building system performance Derek Baxter said he was not concerned that the mesh posed a safety risk for newly built houses and was confident they would still comply with the Building Code. The Structural Engineering Society has also said homeowners should not be unnecessarily concerned about the steel mesh in their houses. The city council referred questions from The Star to the Commerce Commission. A spokeswoman for the commission said it did not wish to comment on the class action. STOEL RIVES: Asks Court to Nix Suit Based on Speculative Theories ----------------------------------------------------------------- Carolina Bolado at Law 360 reported that Stoel Rives LLP asked a Florida federal court on January 17 to toss a proposed class action accusing the law firm of assisting in Tri-Med Corp.'s $17 million Ponzi scheme, saying the suit is based on "speculative and conclusory theories" and that Tri-Med's receiver has no standing to bring it. The Oregon-based law firm argued that Tri-Med's receiver has no standing under Florida law or Eleventh Circuit precedent to pursue tort claims for aiding and abetting, conspiracy and professional negligence against third parties arising out of an operation that was a fraudulent scheme from the beginning. Stoel Rives asked for the unjust enrichment and fraudulent transfer claims to be dismissed as well, arguing that neither the firm nor the attorney named in the suit, Jodi Johnson, conducts enough business in Florida to put them under the jurisdiction of the court. "When stripped of its speculation, conflation and sensationalized conclusions, the complaint contains no plausible basis for Stoel Rives and Johnson's alleged knowledge of or participation in the Tri-Med Ponzi scheme," the law firm said. The investors' complaint, originally filed in April in Pinellas County before being removed to federal court, alleges that Stoel Rives and accounting firm Charles Corces PA helped with and legitimized Tri-Med's scheme, which purportedly involved offering unregistered securities related to the company's purchase of accounts receivable stemming from the medical treatment of accident victims. The complaint accuses of the law firm of entering the scheme in late 2012, initially advising Tri-Med to "immediately" halt its program of selling the unregistered securities in light of the possibility of sanctions and a Florida Office of Financial Regulation investigation, only to allegedly take steps to ensure the company could continue operating and investors would never learn of the fraud. The firm even responded to subpoenas on the company's behalf when Florida's financial regulators launched an investigation into the company in March 2014, according to the suit. As a result of the probe, Tri-Med was charged with violating Florida securities laws and was immediately ordered into receivership in an attempt to return funds to investors. The receivership has since extended to a number of Tri-Med affiliates, according to Office of Financial Regulation records. The investors claim the accounting firm also knowingly aided Tri- Med in operating the investment scheme and enabled the company's central insiders to "misappropriate millions of dollars in assets." The investors tried to get the court to remand the suit back to state court, arguing that the case falls under the local controversy exception to the Class Action Fairness Act because almost 90 percent of the proposed class members are Florida citizens. But the federal court denied their motion in December. The receiver is represented by Gianluca Morello, Michael S. Lamont and Jared Perez of Wiand Guerra King PA. The investors are represented by Robert W. Pearce of Robert Wayne Pearce PA. Stoel Rives and Johnson are represented by Dennis P. Waggoner and Joshua C. Webb of Hill Ward & Henderson PA. Counsel information for the accounting firm and Corces was not immediately available. The case is Wiand et al. v. Stoel Rives LLP et al., case number 8:16-cv-01133, in the U.S. District Court for the Middle District of Florida. The underlying securities case is Florida Office of Financial Regulation v. Tri-Med Corp. et al., case number 14-001695-CI, in the Sixth Judicial Circuit Court of the State of Florida. SUNPOWER CORP: Plaintiffs Must File Consolidated Suit by March 9 ---------------------------------------------------------------- In the cases, KENNETH BRISTOW, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. SUNPOWER CORPORATION, et al., Defendants. JAY PATEL, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. SUNPOWER CORPORATION, et al., Defendants, Case Nos. 16-cv-04710-RS, 16-cv-04915-RS (N.D. Cal.), District Judge Richard Seeborg entered a "Stipulation And [Proposed] Order (1) Establishing Master Case File; (2) Setting Date For Filing Of Consolidated Complaint And Briefing Schedule; And (3) Continuing Initial Case Management Conference." The Stipulation provides that: 1. A Master File shall be established for the consolidated proceedings in the Consolidated Action. The docket number for the Master File shall be Master File No. 3:16-cv- 04710-RS. The original of this Order shall be filed by the Clerk in the Master File. 2. All documents previously filed to date in any of the Cases consolidated are deemed a part of the record in the Consolidated Action. 3. This Order shall govern all subsequently filed actions pertaining to or arising from the same facts and circumstances as those set forth in the actions and that properly belong as part of the Consolidated Action. 4. Plaintiffs shall file the consolidated complaint by March 9, 2017. 5. Defendants shall file a response to the complaint by May 8, 2017. 6. Should Defendants filed a motion to dismiss on or before May 8, 2017, Plaintiffs shall have 60 days to file an opposition, and Defendants shall have 30 days to file a reply brief. 7. The Parties shall meet and confer as to an appropriate hearing date. On December 9, 2016, the Court entered an order consolidating the actions and appointed Brower Priven, A Professional Corporation, as lead counsel, and Finkelstein Thompson LLP, to serve as liaison counsel. A copy of the Stipulation is available at https://goo.gl/1VliOz from Leagle.com. A copy of the Consolidation Order is available at https://goo.gl/os9ezZ from Leagle.com. SunPower said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2016, for the quarterly period ended October 2, 2016, that five motions to be appointed lead plaintiff were filed and the court scheduled a hearing on the motions on December 8, 2016. Three of the original five applicants later abandoned their motions, in light of the showings made by the others. The two remaining competitors were: (1) proposed lead plaintiff Mundeog Seol, with the class to be represented by Brower Piven, A Professional Corporation, as lead counsel, and Finkelstein Thompson, LLP, to serve as liaison counsel, and (2) a group calling itself "the SunPower Investor Group," with the class to be represented by the The Rosen Law Firm, P.A. as lead counsel, and Glancy Prongay & Murray LLP, to serve as liaison counsel. On August 16, 2016 and August 26, 2016, two securities class action lawsuits were filed against the Company and certain of its officers and directors (the "Defendants") in the United States District Court for the Northern District of California on behalf of a class consisting of those who acquired the Company's securities from February 17, 2016 through August 9, 2016 (the "Class Period"). The substantially identical complaints allege violations of Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. Sec. 78j(b) and 78t(a) and SEC Rule 10b-5, 17 C.F.R. Sec.240.10b-5. The complaints were filed following the issuance of the Company's August 9, 2016 earnings release and revised guidance and generally allege that throughout the Class Period, Defendants made materially false and/or misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects. Three shareholder derivative actions have been filed in federal court, purporting to be brought on the Company's behalf against certain of the Company's current and former officers and directors based on the same events alleged in the securities class action lawsuits described above. The Company is named as a nominal defendant. These derivative actions were filed on September 16, 2016, September 20, 2016, and October 17, 2016, respectively. The plaintiffs assert claims for alleged breaches of fiduciary duties, unjust enrichment, and waste of corporate assets for the period February 2016 through the present and generally allege that the defendants made or caused the Company to make materially false and/or misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects. The plaintiffs also claim that the alleged conduct is a breach of the Company's Code of Business Conduct and Ethics, and that defendants, including members of the Company's Audit Committee, breached their fiduciary duties by failing to ensure the adequacy of the Company's internal controls, and by causing or allowing the Company to disseminate false and misleading statements in the Company's SEC filings and other disclosures. On October 27, 2016, two shareholder derivative actions purporting to be brought on the Company's behalf were brought in the Superior Court of California for the County of Santa Clara against certain of the Company's current and former officers and directors based on the same events alleged in the securities class action and federal derivative lawsuits , and alleging breaches of fiduciary duties. The two securities class action lawsuits and the federal derivative actions filed on September 16, 2016 and September 20, 2016 have all been related by the Court and assigned to one judge. The Company anticipates that the October 17, 2016 derivative action will also be deemed related to the other four actions. The Company is currently unable to determine if the resolution of these matters will have a material adverse effect on the Company's financial position, liquidity, or results of operations. SunPower Corporation is a global energy company that delivers complete solar solutions to residential, commercial, and power plant customers worldwide through an array of hardware, software, and financing options and through utility-scale solar power system construction and development capabilities, operations and maintenance ("O&M") services, and "Smart Energy" solutions. T-MOBILE USA: Can Enforce Arbitration Provision in TCPA Agreement ----------------------------------------------------------------- Andrew C. Glass, Esq., Gregory N. Blase, Esq., Roger L. Smerage, Esq., and Matthew T. Houston, Esq., of K&L Gates, in an article for Lexology, report that the U.S. District Court for the Western District of Washington ("Court") recently allowed a defendant to enforce the arbitration provision in a TCPA plaintiff's wireless agreements even though the defendant was not a party to the wireless agreements. The plaintiff in Rahmany, et al. v. T-Mobile USA, Inc., et al., Case No. 2:16-cv-01416-JCC (W.D. Wash.), brought suit against Subway Sandwich Shops, Inc. and the plaintiff's wireless carrier, alleging that the companies violated the TCPA by sending unsolicited text messages to the plaintiff and a putative class of individuals. Shortly after filing suit, the plaintiff voluntarily dismissed the wireless carrier. Subway, however, sought to enforce the mandatory arbitration clause in the agreement between the plaintiff and his wireless carrier, even though Subway was not a party to that agreement. The clause required the plaintiff to individually arbitrate disputes unless the plaintiff opted out of the provision within 30 days of signing the contract, which the plaintiff had not done. In granting Subway's motion to compel arbitration, the Court determined that (1) the plaintiff's claims against Subway fell within the "scope" of the arbitration agreement because the agreement applied to all disputes "in any way related" to the wireless agreement, and (2) the plaintiff had alleged that the text messages were sent by wireless carrier on behalf of Subway. The Court further concluded that the arbitration agreement was not unconscionable because the plaintiff had the option to opt-out of mandatory arbitration and had failed to do so. Finally, the Court concluded that equitable estoppel required that the Court enforce the arbitration agreement against the plaintiff where (1) the claims against Subway were intertwined with the wireless agreement, and (2) the plaintiff alleged interdependent conduct by the carrier and Subway. As a result, the Court dismissed the pending action, concluding that, because all "claims must be submitted to arbitration, [the Court lacked] jurisdiction, and dismissal [was] appropriate." TAKATA CORP: New Mexico AG Sues Over Faulty Air Bag Inflators ------------------------------------------------------------- Susan Montoya Bryan, writing for The Associated Press, reports that New Mexico Attorney General Hector Balderas is suing Japanese manufacturer Takata and a long list of automakers in connection with the sale of cars with dangerous air bag inflators. The attorney general's office argues in a lawsuit filed on Jan. 20 that the manufacturers had a duty to ensure their products were safe and that concealment of air bag defects amounted to unfair, deceptive and unconscionable trade practices under New Mexico law. Takata already has agreed to pay $1 billion in fines and restitution as part of plea agreement with the U.S. Justice Department over the years-long scheme to conceal the deadly defect in its inflators. It also faces class-action lawsuits as well as litigation filed last year by the state of Hawaii. Takata spokesman Jared Levy declined comment on Jan. 20. Aside from targeting the air bag manufacturer, New Mexico's case also spreads the blame to numerous automakers that used the faulty bags in their vehicles. The complaint lists dozens of models that include some of the most popular vehicles in the U.S. The state is seeking civil penalties for each defective air bag that entered the New Mexico market and penalties for each day the manufacturers misrepresented the safety of their products. State prosecutors also are demanding a jury trial. Takata inflators can explode with too much force, spewing shrapnel into drivers and passengers. At least 11 people have been killed in the U.S. and 16 worldwide because of the defect. More than 180 have been injured. The problem touched off the largest automotive recall in U.S. history covering 42 million vehicles and 69 million inflators. Officials have said it will take years for the recalls to be completed. Unlike most other air bag makers, Takata's inflators use explosive ammonium nitrate to fill the bags in a crash. But the chemical can deteriorate over time and burn too fast, blowing apart a metal canister. In its complaint, New Mexico argues that Takata understood the risks from the time the company began investigating ammonium nitrate in the late 1990s. The lawsuit does not document any deaths or injuries in New Mexico. It does detail some of the deadly cases elsewhere, saying the manufacturers conducted investigations but tried to minimize the incidents and failed to alert safety regulators to the defects. The attorney general's office is bringing the case against Takata and the car makers with help from Grant and Eisenhofer, a national law firm that handles class-action securities litigation and major consumer protection lawsuits. Mr. Balderas worked with the same firm in filing the state's suit against Volkswagen over the emissions scandal last year. TCF FINANCIAL: Watchdog Sues Over Exorbitant Overdraft Fees ----------------------------------------------------------- Jeff Horwitz, writing for The Associated Press, reports that federal consumer finance regulators said on Jan. 19 they were suing TCF Financial Corp., alleging the bank deceived consumers so it could charge them exorbitant overdraft fees. Banks' overdraft fee tactics have long been considered predatory by consumer advocates. Such fees, which are charged when customers overspend their bank accounts, largely fall upon lower- income account holders. Running as much as $35 per overdraft, the fees comprised a $180 million per year income stream for TCF, a bank with $21 billion in assets and with 360 branches in eight states. By law, customers must actively choose to enroll in overdraft programs before they can be charged overdraft fees. But to maximize its profits, TCF was accused of tricking customers into believing that overdraft features were a mandatory part of their checking account. "TCF bulldozed its way through protections against automatic overdraft enrollment," Consumer Financial Protection Bureau Director Richard Cordray said in a statement. A bank spokesman, Mark Goldman, said the bank intended to vigorously defend itself in court. "We believe we have strong, principled defenses to its complaint," Mr. Goldman wrote in an email to the AP. To convince customers to sign up for its overdraft coverage programs, the CFPB alleged, the bank also misled its customers about the costs of overdrafts and incentivized its staff to recruit customers with aggressive sales tactics. "I don't think (new customers) understood that they, that they were exposing themselves to additional fees," one TCF branch manager testified, according to the CFPB suit. A 2015 analysis by consulting firm Compass Point found that TCF derived far more overdraft income from its customers than all but one other major bank, Regions Financial. Among TCF executives, the bank's skill at extracting the fees was a point of pride, the lawsuit alleged: TCF chairman and former chief executive William Cooper named his boat "Overdraft." The bureau's action follows an investigation stretching back more than one year. Last November, TCF warned shareholders that the bureau might target its overdraft policies as "unfair, deceptive and abusive." A previous wave of class-action suits over other banks' similar practices led to hundreds of millions of dollars in settlements and judgements against banks such as Wells Fargo, which one judge wrote had laid "a snare for the unwary" and subjected its customers to a "bone-crushing multiplication" of fees, according to a 2010 judgment. TD AMERITRADE: Appeals in Order Routing Class Suits Underway ------------------------------------------------------------ TD Ameritrade Holding Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on November 18, 2016, for the fiscal year ended September 30, 2016, that appeals remain pending related to the class action lawsuits over order routing. Five putative class action complaints were filed between August and October 2014 regarding TD Ameritrade's routing of client orders. The cases were filed in, or transferred to, the U.S. District Court for the District of Nebraska: Jay Zola et al. v. TD Ameritrade, Inc., et al.; Tyler Verdieck v. TD Ameritrade, Inc.; Bruce Lerner v. TD Ameritrade, Inc.; Michael Sarbacker v. TD Ameritrade Holding Corporation, et al.; Gerald Klein v. TD Ameritrade Holding Corporation, et al. The complaints in Zola, Klein and Sarbacker allege that the defendants failed to provide clients with "best execution" and routed orders to the market venue that paid the most for its order flow. The complaints in Verdieck and Lerner allege that the defendant routed its clients' non-marketable limit orders to the venue paying the highest rates of maker rebates, and that clients did not receive best execution on these kinds of orders. The complaints variously include claims of breach of contract, breach of fiduciary duty, breach of the duty of best execution, fraud, negligent misrepresentation, violations of Section 10(b) and 20 of the Exchange Act and SEC Rule 10b-5, violation of Nebraska's Consumer Protection Act, violation of Nebraska's Uniform Deceptive Trade Practices Act, aiding and abetting, unjust enrichment and declaratory judgment. The complaints seek various kinds of relief including damages, restitution, disgorgement, injunctive relief, equitable relief and other relief. The Company moved to dismiss each of the five putative class action complaints. The Magistrate Judge subsequently entered Findings and Recommendations with respect to each of the five actions, recommending that the District Judge dismiss each of the five lawsuits. On March 23, 2016, the District Judge entered an order dismissing all of the state law claims in the five actions, denying the motion to dismiss the federal securities claims in the Klein case, and permitting the plaintiffs in the other four actions to amend their complaints to assert a federal securities claim. None of the plaintiffs in the other four actions filed an amended complaint. The plaintiffs in the Zola, Sarbacker and Verdieck cases filed notices of appeal. The plaintiff in the Lerner case did not file a notice of appeal and that case is considered closed. The Klein case is proceeding in the District Court. The Company intends to vigorously defend against these lawsuits. The Company is unable to predict the outcome or the timing of the ultimate resolution of these lawsuits, or the potential losses, if any, that may result. TD Ameritrade is a provider of securities brokerage services and related technology-based financial services to retail investors, traders and independent registered investment advisors ("RIAs"). TEMPUR-SEALY INT'L: Hartford Wants Class Action Coverage Reversed ----------------------------------------------------------------- Jeff Sistrunk, writing for Law360, reports that Hartford Fire Insurance Co. asked the Ninth Circuit on Jan. 17 to reverse a California federal judge's ruling that it must defend Tempur-Sealy International Inc. in a proposed class action alleging that the mattress company lied in marketing materials, arguing that the underlying complaint doesn't seek any damages covered by Hartford's policy. In an appellate brief, Hartford contended that U.S. District Judge Haywood S. Gilliam Jr. erred in finding that it has to defend Tempur-Sealy in the putative class action, which alleges that the company has made false statements about a chemical odor in its mattresses that has purportedly made some customers sick. Hartford said that its duty to defend has not been triggered because the underlying suit doesn't seek any covered damages for bodily injury or property damage. Furthermore, the insurer argued, the suit doesn't allege an accidental occurrence as defined by Tempur-Sealy's policy. "[The complaint] alleges only that the plaintiffs were fraudulently induced to purchase Tempur-Pedic's products and thereby suffered economic harm," the insurer argued. "Moreover, the complaint actually denies that the Todd plaintiffs are making any claim for damages because of physical injury." A Tempur-Sealy representative did not immediately respond to a request for comment late on Jan. 17. A group of consumers led by Alvin and Melody Todd sued Tempur- Sealy in California federal court in October 2013, alleging that the company misrepresented in marketing materials that its foam mattresses and pillows have an odor that is allergen-free and will dissipate over time. In reality, the customers say, that chemical odor has made them sick. The Todds alleged that Tempur-Sealy knew there were problems with the smell and the attendant physical complaints, including headache, nausea, asthma, eye and throat irritation and allergic reactions, but still assured customers the scent was harmless, according to court documents. The judge overseeing the Todds' case refused the plaintiffs' bid for class certification last fall. That ruling is currently on appeal. Several months after the Todds filed their complaint, Hartford lodged the instant suit, seeking a declaration that a series of comprehensive general liability policies it issued to Tempur-Sealy do not cover the underlying claims. In January 2016, Judge Gilliam ruled in the mattress company's favor, finding that, although the underlying plaintiffs did not seek damages due to bodily injury, their complaint could potentially be amended to state such claims. Hartford said in its appellate brief that the district judge's analysis was flawed, noting that the class action plaintiffs explicitly indicated that they were not seeking any damages on account of physical injury. According to the insurer, the consumers' decision to seek solely economic loss damages was a deliberate strategy to boost their chances of achieving class certification. By holding that Hartford had a duty to defend, the insurer argued, Judge Gilliam ignored a California appellate court's precedential 2002 decision in Low v. Golden Eagle Insurance Co., which established that, even if an underlying plaintiff alleges bodily injuries, an insurer has no defense obligation if the plaintiff does not actually seek damages for those injuries. Hartford further contended that it has no duty to defend because Tempur-Sealy wasn't sued over an accidental occurrence within the terms of its policies. In fact, the Todd plaintiffs claim that Tempur-Sealy engaged in an intentional pattern of fraud, which by definition cannot be an accident. "Fraud is, necessarily and by definition, intentional rather than accidental, and therefore fraud cannot be an occurrence under a liability policy, as many cases have held," Hartford said. Hartford is represented by James P. Ruggieri -- jruggeri@goodwin.com -- and Katherine M. Hance -- khance@goodwin.com -- of Shipman & Goodwin LLP and by Gary T. LaFayette -- glafayette@lkclaw.com -- and Melissa A. Dubbs -- mdubbs@lkclaw.com -- of Lafayette & Kumagai LLP. Tempur-Sealy is represented by Nicholas Cramb -- NCCramb@mintz.com -- Evan Sean Nadel, Daniel S. Harary -- DSHarary@mintz.com -- and Heidi Lawson -- HALawson@mintz.com -- of Mintz Levin Cohn Ferris Glovsky and Popeo PC. The case is Hartford Fire Insurance Co. v. Tempur-Sealy International Inc., case number 16-16056, in the U.S. Court of Appeals for the Ninth Circuit. TESLA MOTORS: South Korean Celebrity Files SUA Class Action ----------------------------------------------------------- Heather Doyle, writing for Northern California Record, reports that a Tesla Model X owner has filed a sudden unintended acceleration class-action lawsuit against Tesla Motors Inc. after his electric sport-utility vehicle crashed through the garage and into his home while being parked. The owner, Ji Chang Son, is a South Korean celebrity who lives in California. According to a news release issued by Mr. Son's attorneys, Tesla claims that Son has threatened to use his celebrity status to hurt Tesla unless a financial agreement could be reached. Mr. Son claims he was turning into his driveway on Sept. 10, 2016, at 6 miles per hour and had just opened his garage when the car suddenly accelerated through the garage into the living room. "The vehicle spontaneously began to accelerate at full power, jerking forward and crashing through the interior wall of the garage, destroying several wooden support beams in the wall and a steel sewer pipe, among other things, and coming to rest in the plaintiff's living room," the lawsuit said. Tesla said in a statement in a story on www.cnbc.com that it has conducted a full investigation and disagrees with Mr. Son. "The evidence, including data from the car, conclusively shows that the crash was the result of Mr. Son pressing the accelerator pedal all the way to 100 percent," a Tesla spokesperson said. Tesla said it has protections against pedal misapplication. Bryant Walker Smith, a former transportation engineer who teaches technology and mobility law at the University of South Carolina School of Law, said that evidence will be key in this case. "Cases like this require evidence rather than speculation, and I look forward to seeing that evidence presented and analyzed," Mr. Smith told The Northern California Record. "And I say this having taught an entire course on the sudden unintended- acceleration debacle from a decade ago." The lawsuit cites several other sudden acceleration complaints registered with the National Highway Traffic Safety Administration. Attorneys managing the lawsuit said Tesla has sold about 16,000 Model X SUVs in the U.S., all of which use electronic acceleration-control systems by which complex computer and sensor systems communicate an accelerator pedal's position to the computers, telling the SUVs what their speeds should be. "Without more information, it would be irresponsible of me to speculate on technical possibility or plausibility in this case," Mr. Smith said. "At some point in the future, cars that go through walls will probably be considered defective -- but that doesn't seem to be the claim in this case." Mr. Son is represented by McCune Wright Arevalo LLP and Stradling Yocca Carlson & Rauth, P.C. McCune Wright Arevalo LLP in 2009 filed the first class-action lawsuit against Toyota alleging that defects were resulting in sudden acceleration events. Toyota settled more than 300 private-injury and wrongful-death lawsuits, settled the class claims that were valued at up to $1.6 billion, and paid more than $1.2 billion in fines to the federal government. One of Mr. Son's attorneys said there are plenty of similarities in the two lawsuits. "What we saw in Toyota was that the number of sudden-acceleration events occurring with Toyota vehicles was significantly higher than other manufacturers, meaning that something was going on other than 'driver error,'" attorney Richard McCune said in the news release. "What the complaint alleges is that the ratio of SUA events for Tesla versus the rate found in the literature on other vehicles is staggering -- far higher than what was reported for Toyota vehicles." THAILAND: Disabled Activists Mull Class Action Over BTS Access -------------------------------------------------------------- Sasiwan Mokkhasen, writing for Khaosod English, reports that hundreds of disabled right activists were set to converge at the Civil Court on Jan. 20 to file a class action lawsuit against City Hall for failing to obey a court order to make all BTS Skytrain stations wheelchair accessible. Two years after prevailing in a landmark Supreme Court ruling, activist group Transportation for All said on Jan. 18 it decided to file the suit after a year had passed without the Bangkok Metropolitan Administration, or BMA, adding one operable elevator to its inaccessible stations. "We have closely monitored and found the BMA lacks responsibility and efficiency," the group wrote in a statement. The suit asks the court to fine the city 1,000 baht per day for each plaintiff to join the class since the court's original Jan. 21, 2016, deadline for the work to be completed. After the last of several promises passed without the work completed, City Hall has offered yet another vague deadline. A City Hall representative said on Jan. 18 they were not yet aware of the lawsuit. "If they want to sue, that is their right, and we cannot ask them not to do that," said Prapas Luangsirinapha, who now oversees the project. "But the disabled, they didn't suffer any losses, did they?" He said it's still possible for disabled commuters to seek help by contacting a guard to lug them up the escalator. Prapas, who is responsible for coordinating with the developer, said the project has had a lot of land ownership issues, and he has done his best. "I will just have to go to court and explain the same to them," he said on Jan. 18. "The worst will just be I got moved to another position." Project developer Seri Construction said Jan. 16 it had no definite date for completing the work but "hoped" to see some of the stations open in the coming months. The landmark ruling in January 2015 gave the city one year to complete the work. In January 2016, City Hall apologized for failing to meet the court-imposed time frame. It then promised that every station would have operating elevators by the end of September. The project has also changed leadership. When former Bangkok Gov. Sukhumbhand Paribatra was removed by the junta in August, the deputy governor who was responsible for the project also left City Hall. Developer Seri previously said it expected elevators at seven stations to be running by the end of September. Now it says it will be another four months. Itthiphol Boonrak, the developer's project manager, said he now hopes elevators at some stations will be operating by early February. "I pray it can be opened, at at least one station," he said on Jan. 16, unable to give a more concrete date of completion. Though unfinished construction sites can be seen at many stations, there does not appear to be visible work underway. Itthiphol said the elevator housings and shafts were mostly ready and only waiting for electricians to wire them for operation. So why has it taken over two years to install elevators? He gave the same reasons offered the last time a reporter called to inquire. He said workers only have limited hours as they can only work after the BTS system shuts down, and issues with the underground infrastructure had made it more difficult than expected. The disabled rights activists who brought the original suit and have pushed the issue for years said they were not pleased. "How come City Hall doesn't have any measures to deal with a developer who fail to satisfy contracts?" Manit Inpim said on Jan. 16. The contract stipulates that City Hall must fine developer if it fails to complete the work as specified. Filing as a class was not possible when they first sued the BMA, which owns the Skytrain system. A law enabling class-action suits went into effect December 2015. Since then only one such suit has been filed against a gold mine operator. A City Hall transportation official said they were still urging Seri to get the work done and remained hopeful some progress would be made despite the failures so far. "We will open the first four stations in April," said Prapas. TURTLE BEACH: Nevada Supreme Court Appeal Underway -------------------------------------------------- Turtle Beach Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 15, 2016, for the quarterly period ended September 30, 2016, that an appeal in a shareholders class action remains pending in the Nevada Supreme Court. On August 5, 2013, VTBH and the Company (f/k/a Parametric) announced that they had entered into the Merger Agreement pursuant to which VTBH would acquire an approximately 80% ownership interest and existing shareholders would maintain an approximately 20% ownership interest in the combined company. Following the announcement, several shareholders filed class action lawsuits in California and Nevada seeking to enjoin the Merger. The plaintiffs in each case alleged that members of the Company's Board of Directors breached their fiduciary duties to the shareholders by agreeing to a Merger that allegedly undervalued the Company. VTBH and the Company were named as defendants in these lawsuits under the theory that they had aided and abetted the Company's Board of Directors in allegedly violating their fiduciary duties. The plaintiffs in both cases sought a preliminary injunction seeking to enjoin closing of the Merger, which, by agreement, was heard by the Nevada court with the California plaintiffs invited to participate. On December 26, 2013, the court in the Nevada cases denied the plaintiffs' motion for a preliminary injunction. Following the closing of the Merger, the Nevada plaintiffs filed a second amended complaint, which made essentially the same allegations and sought monetary damages as well as an order rescinding the Merger. The California plaintiffs dismissed their action without prejudice, and sought to intervene in the Nevada action, which was granted. Subsequent to the intervention, the plaintiffs filed a third amended complaint, which made essentially the same allegations as prior complaints and sought monetary damages. On June 20, 2014, VTBH and the Company moved to dismiss the action, but that motion was denied on August 28, 2014. That denial is currently under review by the Nevada Supreme Court, which held a hearing on the Company's petition for review on September 1, 2015. After the hearing, the Nevada Supreme Court requested supplemental briefing, which the parties completed on October 13, 2015. The Nevada Supreme Court also invited the Business Law Section of the Nevada State Bar to submit an amicus brief by December 3, 2015 and briefing was completed on that date. The Company believes that the plaintiffs' claims against it are without merit. Turtle Beach Corporation, headquartered in San Diego, California and incorporated in the state of Nevada in 2010, is an audio technology company with expertise and experience in developing, commercializing and marketing innovative products across a range of large addressable markets under the Turtle Beach(R) and HyperSound(R) brands. TYSON FOODS: Updates on Six Employee Lawsuits --------------------------------------------- Tyson Foods, Inc., in its Form 10-K Report filed with the Securities and Exchange Commission on November 21, 2016, for the fiscal year ended October 1, 2016, provided updates on six lawsuits involving the Company's beef, pork and prepared foods plants in which certain present and past employees allege that the Company failed to compensate them for the time it takes to engage in pre- and post-shift activities, such as changing into and out of protective and sanitary clothing and walking to and from the changing area, work areas and break areas in violation of the Fair Labor Standards Act and various state laws. The plaintiffs seek back wages, liquidated damages, pre- and post-judgment interest, attorneys' fees and costs. Each case is proceeding in its jurisdiction. * Bouaphakeo (f/k/a Sharp), et al. v. Tyson Foods, Inc., N.D. Iowa, February 6, 2007 -- "A jury trial was held involving our Storm Lake, Iowa pork plant which resulted in a jury verdict in favor of the plaintiffs for violations of federal and state laws for pre- and post-shift work activities. The trial court also awarded the plaintiffs liquidated damages, resulting in total damages awarded in the amount of $5,784,758. The plaintiffs' counsel has also filed an application for attorneys' fees and expenses in the amount of $2,692,145. We appealed the jury's verdict and trial court's award to the Eighth Circuit Court of Appeals. The appellate court affirmed the jury verdict and judgment on August 25, 2014, and we filed a petition for rehearing on September 22, 2014, which was denied. We filed a petition for a writ of certiorari with the United States Supreme Court, which was granted on June 8, 2015, and oral arguments before the Supreme Court occurred on November 10, 2015. On March 22, 2016, the Supreme Court affirmed the appellate court's rulings and remanded to the trial court to allocate the lump sum award among the class participants." * Edwards, et al. v. Tyson Foods, Inc. d.b.a Tyson Fresh Meats, Inc., S.D. Iowa, March 20, 2008 -- "The trial court in this case, which involves our Perry and Waterloo, Iowa pork plants, decertified the state law class and granted other pre-trial motions that resulted in judgment in our favor with respect to the plaintiffs' claims. The plaintiffs have filed a motion to modify this judgment." * Murray, et al. v. Tyson Foods, Inc., C.D. Illinois, January 2, 2008; and DeVoss v. Tyson Foods, Inc. d.b.a. Tyson Fresh Meats, C.D. Illinois, March 2, 2011 -- "These cases involve our Joslin, Illinois beef plant and are in their preliminary stages." * Dozier, Southerland, et al. v. The Hillshire Brands Company, E.D. North Carolina, September 2, 2014 -- "This case involves our Tarboro, North Carolina prepared foods plant. On March 25, 2016, the parties filed a joint motion for settlement totaling $425,000, which includes all of the plaintiffs' attorneys' fees and costs." * Awad, et al. v. Tyson Foods, Inc. and Tyson Fresh Meats, Inc., M.D. Tennessee, February 12, 2015 -- "On October 12, 2016, the parties filed a joint motion for approval of a $725,000 settlement, and plaintiffs filed an application for attorneys' fees and costs. The court granted its preliminary approval of the parties' joint motion and the application for attorneys' fees and costs, on October 21, 2016, and dismissed the action with prejudice." Founded in 1935, Tyson Foods, Inc. and its subsidiaries is one of the world's largest food companies with brands such as Tyson(R), Jimmy Dean(R), Hillshire Farm(R), Sara Lee(R), Ball Park(R), Wright(R), Aidells(R) and State Fair(R). Tyson Foods is a recognized market leader in chicken, beef and pork as well as prepared foods, including bacon, breakfast sausage, turkey, lunchmeat, hot dogs, pizza crusts and toppings, tortillas and desserts. TYSON FOODS: Hillshire Brands Awaits Decision in Philippine Case ---------------------------------------------------------------- Tyson Foods, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 21, 2016, for the fiscal year ended October 1, 2016, that the Company's subsidiary, The Hillshire Brands Company (formerly named Sara Lee Corporation), is awaiting a decision on a pending appeal with respect to all non-settling complainants in the Philippines. Hillshire Brands is a party to a consolidation of cases filed by individual complainants with the Republic of the Philippines, Department of Labor and Employment and the National Labor Relations Commission (NLRC) from 1998 through July 1999. The complaint is filed against Aris Philippines, Inc., Sara Lee Corporation, Sara Lee Philippines, Inc., Fashion Accessories Philippines, Inc., and Attorney Cesar C. Cruz (collectively, the "respondents"). The complaint alleges, among other things, that the respondents engaged in unfair labor practices in connection with the termination of manufacturing operations in the Philippines by Aris Philippines, Inc., a former subsidiary of The Hillshire Brands Company. In 2006, an labor arbiter ruled against the respondents and awarded the complainants PHP3,453,664,710 (approximately US$71 million) in damages and fees. The respondents appealed the labor arbiter's ruling, and it was subsequently set aside by the NLRC in December 2006. Subsequent to the NLRC's decision, the parties filed numerous appeals, motions for reconsideration and petitions for review, certain of which remained outstanding for several years. While various of those appeals, motions and/or petitions were pending, The Hillshire Brands Company, on June 23, 2014, without admitting liability, filed a settlement motion requesting that the Supreme Court of the Philippines order dismissal with prejudice of all claims against it and certain other respondents in exchange for payments allocated by the court among the complainants in an amount not to exceed PHP342,287,800 (approximately US$7.1 million). Based in part on its finding that the consideration to be paid to the complainants as part of such settlement was insufficient, the Supreme Court of the Philippines denied the respondents' settlement motion and all motions for reconsideration thereof. The Supreme Court of the Philippines also set aside as premature the NLRC's December 2006 ruling. As a result, the cases are now back before the NLRC, which will once again rule on the respondents' appeals regarding the labor arbiter's 2006 ruling in favor of the complainants. In the meantime, the respondents reached a settlement with a group comprising approximately 18% of the class of 5,984 complainants, pursuant to which The Hillshire Brands Company would pay each settling complainant PHP68,000 (approximately US$1,402). The settlement was approved by the NLRC on or around April 8, 2016, and certain motions for reconsideration relating thereto were resolved on June 30, 2016. If there are no further appeals or motions for reconsideration, The Hillshire Brands Company will make the payments associated with the settlement. In the meantime, The Hillshire Brands Company awaits the NLRC's decision on the pending appeal with respect to all non-settling complainants. Founded in 1935, Tyson Foods, Inc. and its subsidiaries is one of the world's largest food companies with brands such as Tyson(R), Jimmy Dean(R), Hillshire Farm(R), Sara Lee(R), Ball Park(R), Wright(R), Aidells(R) and State Fair(R). Tyson Foods is a recognized market leader in chicken, beef and pork as well as prepared foods, including bacon, breakfast sausage, turkey, lunchmeat, hot dogs, pizza crusts and toppings, tortillas and desserts. TYSON FOODS: Consolidated Suit Filed in Broiler Chicken Case ------------------------------------------------------------ Tyson Foods, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 21, 2016, for the fiscal year ended October 1, 2016, that in the case, In re Broiler Chicken Antitrust Litigation, plaintiffs have filed consolidated amended complaints in each of the two new consolidated actions. On September 2, 2016, Maplevale Farms, Inc., acting on behalf of itself and a putative class of direct purchasers of poultry products, filed a class action complaint against us and certain of our poultry subsidiaries, as well as several other poultry processing companies, in the Northern District of Illinois. The complaint alleges, among other things, that beginning in January 2008 the defendants conspired and combined to fix, raise, maintain, and stabilize the price of broiler chickens in violation of United States antitrust laws. It is further alleged that the defendants concealed this conduct from the plaintiff and the putative class. The plaintiff and putative class are seeking treble damages, injunctive relief, pre- and post-judgment interest, costs, and attorneys' fees. Subsequent to the filing of this initial complaint, additional lawsuits making similar claims on behalf of putative classes of direct and indirect purchaser classes were filed in the United States District Court for the Northern District of Illinois. The lawsuits brought on behalf of putative classes of indirect purchasers allege, in addition to violations of federal antitrust laws, causes of action under various state unfair competition laws, consumer protection laws, and unjust enrichment common laws. The court has consolidated, for pretrial purposes, each of the direct purchaser actions into one case and each of the indirect purchaser actions into one case. These two actions are styled In re Broiler Chicken Antitrust Litigation. On October 28, 2016, plaintiffs filed consolidated amended complaints in each of the two new consolidated actions. The allegations in those complaints are substantially similar to the allegations set forth. Founded in 1935, Tyson Foods, Inc. and its subsidiaries is one of the world's largest food companies with brands such as Tyson(R), Jimmy Dean(R), Hillshire Farm(R), Sara Lee(R), Ball Park(R), Wright(R), Aidells(R) and State Fair(R). Tyson Foods is a recognized market leader in chicken, beef and pork as well as prepared foods, including bacon, breakfast sausage, turkey, lunchmeat, hot dogs, pizza crusts and toppings, tortillas and desserts. UBER TECH: Agrees to Pay $20MM Settlement for Misleading Drivers ---------------------------------------------------------------- Andrew J . Hawkins at The Verge reports Uber will pay $20 million to settle a complaint by the Federal Trade Commission that it misled drivers about earnings and vehicle financing, the Wall Street Journal is reporting. The consumer protection agency alleged that Uber publicized misleading statements about the amount of money drivers could earn in 20 cities. For example, Uber said drivers could earn up to $90,000 a year in New York City and $74,000 in San Francisco. As part of the settlement, Uber is not admitting any wrongdoing, but has agreed to pay $20 million. That sum will be distributed to drivers affected by the FTC, which did not respond to requests for comment. The FTC also claimed that Uber promised to provide drivers with the best-available financing options to own or lease a car, but that the rates drivers received were worse than those that could be obtained by consumers with similar credit scores. In 2015, Uber ended its relationship with Banco Santander's auto loan division, which later was accused of issuing subprime loans for vehicle financing. "We're pleased to have reached an agreement with the FTC," an Uber spokesperson said. "We've made many improvements to the driver experience over the last year and will continue to focus on ensuring that Uber is the best option for anyone looking to earn money on their own schedule." As part of the settlement, Uber agreed to issue semi-regular compliance reports to the FTC, including marketing material and driver earning reports, according to court documents. This isn't the first time Uber has agreed to settle claims alleging it made misleading statements to drivers and customers. Last year, Uber agreed to settle two class-action lawsuits for $28.5 million that allege the ride-hail company improperly marketed its safety record to passengers by charging them a flat fee for "safe rides." A few months later, Uber agreed to settle a class action lawsuit with drivers for $100 million, but that was later rejected by a judge as an insufficient amount. Last September, Uber won preliminary approval to settle a claim that it misled riders about a 20 percent gratuity for drivers. UBER TECH: UberBLACK Drivers' Class Action Can Proceed ------------------------------------------------------ S. Laney Griffo, writing for PennRcord, reports that a group of UberBLACK drivers will be able to continue their class action, a judge recently ruled in a Philadelphia federal court. The Uber limousine drivers, who are classified as independent contractors, are claiming they are not actually independent contractors and should be properly paid their "on-call" wages. There are several class actions against Uber around the country about independent contractor classification, but this is the only case that brings the on-call wage issue into question. In the case Razak v. Uber Technologies, the drivers say when they are on-call, they must log into the Uber App. The drivers are claiming that when they are logged in, they should be paid minimum wage and overtime hours. "To tell whether the on-call time is payable or not, is whether they [the employees] are having interference of their personal pursuits because they are on-call," Richard Reibstein -- reibsteinr@pepperlaw.com -- Partner with Pepper Hamilton, told the Pennsylvania Record. In this case, Mr. Reibstein does believe their on-call hours may be payable. "The drivers must be properly dressed, in their vehicle and be able to take calls," Mr. Reibstein said. Uber lawyers filed a motion to have the case dismissed, claiming there is no way to tell drivers are actually working just because they are on-call. On Dec. 14, Judge Michael Baylson dismissed the motion and is allowing the case to continue. In the ruling, Judge Baylson noted that plaintiffs claim "[d]rivers who refuse a fare are subject to suspension and termination." That means, if drivers are not prepared to work at the time they receive a call, they could lose their job and therefore must always be prepared when on-call. Although a ruling has not been made on the claim itself, the judge's ruling will likely have a significant impact. There have been few cases of independent contractors using wage demands to challenge their classification. "It is a big deal because many plaintiffs' class-action lawyers have been focused on the Uber cases," Mr. Reibstein said. "We're likely to see more of these call-and-pay cases because of the notability of this case." Many companies now use a similar business model as Uber, using independent contractors instead of full-time employees. "The biggest takeaway for businesses using independent contractors is to take proactive steps to evaluate their level of independent contractor compliance," Mr. Reibstein said. "This is a call for companies to enhance their independent contractor compliance." UNITED HEALTHCARE: Kansas AG Joins Coalition Against Settlement --------------------------------------------------------------- Mark Iandolo, writing for Legal Newsline, reports that Kansas Attorney General Derek Schmidt announced Dec. 30 that he has joined a bipartisan coalition of 14 state attorneys general in filing a brief in federal court asking for the court to reject a proposed class action settlement with United Healthcare. In the class action case, United Healthcare allegedly denied class members coverage for Harvoni, a treatment for hepatitis C. The settlement allows for consumers to receive the continued opportunity to benefit from changes to Harvoni approval standards that United Healthcare already implemented in 2016. The states in the amicus brief argue that these class action members receive nothing of particular value while the lawyers reap $3 million. "Consumers should come first in the class action settlement process," Mr. Schmidt said. "In this case, the proposed settlement is not fair or reasonable and bargains away the claims of the class members. As part of our consumer protection role, our office maintains a watchful eye on proposed class action settlements that do not actually benefit the consumers they purport to protect." The states involves in the amicus brief are Alabama, Arizona, Arkansas, Idaho, Kansas, Louisiana, Mississippi, Nevada, North Dakota, Oklahoma, Pennsylvania, South Carolina, Texas and Wyoming. UNITED KINGDOM: 200 Judges Win Case Over Pension Cuts ----------------------------------------------------- Chris Johnson, writing for Law.com, reports that a group of more than 200 U.K. judges -- including six high court judges -- have won a landmark case against the Ministry of Justice over claims of age, gender and race discrimination following cuts to their pensions. A London employment tribunal ruled on Jan. 16 that the MoJ and the then lord chancellor Liz Truss, now justice secretary, discriminated against younger judges by requiring them to join a new, less favorable pension plan in 2015, while allowing older judges to remain on the existing plan. The tribunal judge said that the changes, which were also found to impact disproportionately on women and ethnic minorities, could not be justified. The six high court judges were represented by London law firm Bindmans, and Michael Beloff QC and Ben Jaffey QC of Blackstone Chambers. The remaining 204 judges were represented by personal injury and human rights law firm Leigh Day, and Andrew Short QC and Naomi Ling of Outer Temple Chambers. Leigh Day employment lawyer Shubha Banerjee described the ruling as a "great victory." The decision could have ramifications for other public sector employees, such as police officers, teachers, firefighters and prison officers, who have seen similar changes to their pensions. UNITED KINGDOM: Hindraf Class Action Hearing in London Set ---------------------------------------------------------- Free Malaysia Today reports that Hindraf Makkal Sakthi's class action suit in a British court was set to be heard on Jan 19, 2017, in London, according to a statement from the NGO. The case, filed on behalf of descendants of indentured labour in Malaya (peninsula), was set to be heard at the Court of Appeal at the Royal Court of Justice, The Strand, at 9 am. The class action suit was filed by Hindraf chairman P Waythamoorthy. Hindraf secretary P Muniandy said in the statement that those wishing to follow live the court hearing could do so via Hindraf's Facebook page from 5 pm on Jan 19. He said Mr. Waythamoorthy was currently in London, with Hindraf counsel Karthigesan Shanmugam, to brief senior barristers and solicitors on the case. Mr. Waythamoorthy filed the appeal to prove that at no time was the British Queen the Queen of Malaya. "The decision insulted the dignity of the Malay Rulers who were, independently, sultans of nine states," said the statement. "The sultans were merely receiving advice of the Governor of the Federation of Malaya by virtue of the Federation of Malaya Agreement 1948." Mr. Waythamoorthy, meanwhile, said in a telephone interview that "we need to set the record straight". Otherwise, he cautioned, Malaysians would be misled into thinking that the British Queen was the monarch of pre-independent Malaya. Elizabeth II had acted as the Queen of the United Kingdom, at all times, and hence was liable for the neglect shown by her officers and government towards the Indian community, "enslaved for almost 200 years" in Malaya. The statement was referring to Justice Nicholas Blake's ruling previously that the Queen was acting in 1957 as the Queen of Malaya, and not the Queen of the UK. Hence, the judge reasoned, Hindraf's class action suit should fail on that ground alone. The judge cited additional reasons, including that there was no duty of care by the UK government towards Indians in Malaya in 1957; even if there was duty of care, the UK government did not breach those duties; and there was no special relationship between the UK government and Indians in Malaya to render the UK liable for the lack of protection afforded in the Constitution given to Malaya. The class action suit was heard at the High Court in London on March 30, 2016 and April 1, 2016. The High Court struck out the claim on the grounds the claimants had no real prospect of success and there was no compelling reason why the case should be disposed of at a trial. The class action suit seeks reparations and certain declarations from the British court "for the injustices suffered by the descendants of indentured labour who were uprooted from their native India and displaced in Malaya". UNITED PARCEL: Judge Tosses Suit Over Untaxed Cigarettes -------------------------------------------------------- Randall Chase, writing for The Associated Press, reports that a Delaware judge has dismissed a lawsuit filed by United Parcel Service shareholders over allegations that the company illegally shipped untaxed cigarettes. New York authorities sued the Atlanta-based company in federal court in 2015, claiming it had violated a 2005 agreement regarding illegal cigarette shipments, mostly from retailers on Native American reservations. Shareholders sued UPS directors last year on behalf of the company, saying they failed to comply with their oversight responsibilities, leaving UPS potentially liable for hundreds of millions of dollars in damages and penalties. In ruling last week, a Chancery Court judge said the plaintiffs had failed to adequately plead that the defendants consciously failed to oversee UPS's compliance with its obligations in a manner that would constitute bad faith or leave them personally liable. UNITED STATES: Secret Service Settles Discrimination Class Action ----------------------------------------------------------------- The Associated Press reports that the Department of Homeland Security and the Secret Service have agreed to settle a class- action lawsuit alleging racial discrimination in promotion practices by the agency that protects the president. More than 100 black Secret Service agents alleged in the 2000 lawsuit that they were routinely passed over for promotions in favor of less-qualified white agents. Homeland Security Secretary Jeh Johnson says in a statement released on Jan. 17 that he is "pleased that we are able to finally put this chapter of Secret Service history behind us." The Secret Service says that while it "denies any and all liability or damages . . . the agreement is a means of resolving this almost 2-decades-old matter." The Washington Post is reporting that the agency has agreed to pay $24 million to the plaintiffs. VIRGIN AMERICA: Notice of Payment of Attorneys' Fees & Expenses --------------------------------------------------------------- In its Form 8-K Report filed with the Securities and Exchange Commission on November 18, 2016, Virgin America disclosed a Notice of Payment of Attorneys' Fees and Expenses. As Virgin America Inc. (the "Company") previously disclosed, the Company entered into a stipulation agreement on August 11, 2016 concerning the dismissal of the shareholder class action suit, captioned Thomas Houston v. Donald J. Carty, et al., Case No. 12235 (Del. Ch.), against the Company's outside directors in the Court of Chancery of the State of Delaware (the "Court"). On August 12, 2016, the Court entered an order dismissing the action with prejudice as to the plaintiff and without prejudice as to all other members of the putative class and retaining jurisdiction solely for the purpose of determining the plaintiff's counsel's anticipated application for an award of attorneys' fees and reimbursement of expenses. The parties reached an agreement with respect to the payment of plaintiff's counsel's fees and expenses and on November 14, 2016, the Court granted the stipulation and ordered the Company to issue notice to shareholders with respect to the agreed-upon payment of attorneys' fees and expenses. Notice of Payment of Attorneys' Fees and Expenses Virgin America/Alaska Air Merger Related Litigation On April 20 and May 10, 2016, respectively, two shareholders of Virgin America, Inc. ("Virgin America") filed putative class action complaints in the Superior Court of the State of California for the County of San Mateo (the "California Actions"). On April 21, 2016, another shareholder of Virgin America filed a putative class action complaint in the Court of Chancery for the State of Delaware (the "Delaware Action"). The California and Delaware Actions challenged the proposed acquisition of Virgin America by Alaska Air Group, Inc. ("Alaska Air") and certain of its affiliates. The complaints generally alleged that Virgin America's directors breached their fiduciary duties to Virgin America's stockholders in connection with the proposed acquisition, and the plaintiffs in the California Actions alleged that Alaska Air and its affiliates aided and abetted the directors' alleged breaches. The plaintiffs in the California and Delaware Actions subsequently agreed to coordinate their litigation efforts in the Delaware Action, and, on July 12, 2016 and August 12, 2016, the California Superior Court dismissed the California Actions at plaintiffs' request. On May 4, 2016, the plaintiff in the Delaware Action filed an amended complaint, which added allegations that Virgin America's Schedule 14A preliminary proxy statement filed with the SEC on April 22, 2016 was materially false and misleading. On June 3, 2016, Virgin America made additional disclosures sought by the plaintiffs by filing Amendment No. 1 to the Schedule 14A with the SEC. On August 12, 2016, the Delaware Court of Chancery entered a Stipulated Order dismissing the Delaware Action as moot with prejudice as to plaintiff's claims, and without prejudice as to all other members of the putative class. The Court retained jurisdiction to hear plaintiff's anticipated mootness fee application for the benefits that plaintiff claims were provided to the class by the additional disclosures. In lieu of such application, the parties subsequently agreed to a payment made directly by Virgin America or Alaska Air to plaintiff's counsel in the amount of $250,000 in full satisfaction of any claim for attorneys' fees and expenses. The Delaware Court of Chancery has not been asked to review, and will pass no judgment on, the payment of a fee or its reasonableness. Please direct all questions, concerns or inquiries to counsel for the parties: Counsel for Plaintiff Thomas Houston: James R. Banko, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Tel: (302) 482-3182 Fax: (302) 482-3612 Email: dfarrell@faruqilaw.com Email: jbanko@faruqilaw.com - and - Nadeem Faruqi, Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Tel: (212) 983-9330 Email: nfaruqi@faruqilaw.com - and - Juan E. Monteverde, Esq MONTEVERDE & ASSOCIATES, P.C. The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Tel: (212) 971-1341 Fax: (212) 601-2610 Email: jmonteverde@monteverdelaw.com Counsel for Defendants Donald J. Carty, Samuel J. Skinner, Cyrus F. Freidheim, Jr., Stephen C. Freidheim, Evan M. Lovell, Robert A. Nickell, John R. Rapaport, Stacy J. Smith, Jennifer Vogel, and Paul Wachter: Matthew Rawlinson, Esq. Hilary H. Mattis, Esq. LATHAM & WATKINS LLP 140 Scott Drive Menlo Park, CA 94025 Tel: (650) 328-4600 Email: matt.rawlinson@lw.com Email: hilary.mattis@lw.com - and - Kevin G. Abrams, Esq. Matthew L. Miller, Esq. April M. Ferraro, Esq. ABRAMS & BAYLISS LLP 20 Montchanin Road, Suite 200 Wilmington, DE 19807 Tel.: (302) 778-1000 Email: abrams@AbramsBayliss.com VISA INC: Interchange Fees Multidistrict Litigation Still Pending ----------------------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the Company continues to defend against the multidistrict litigation over interchange reimbursement fees. Beginning in May 2005, a series of complaints (the majority of which were styled as class actions) were filed in U.S. federal district courts by merchants against Visa U.S.A., Visa International and/or MasterCard, and in some cases, certain Visa member financial institutions. The complaints challenged, among other things, Visa's and MasterCard's purported setting of interchange reimbursement fees, their "no surcharge" rules, and alleged tying and bundling of transaction fees under the federal antitrust laws, and, in some cases, certain state unfair competition laws. The Judicial Panel on Multidistrict Litigation issued an order transferring the cases to the U.S. District Court for the Eastern District of New York for coordination of pre-trial proceedings in MDL 1720. A group of purported class plaintiffs subsequently filed a Second Consolidated Amended Class Action Complaint which, together with the complaints brought by individual merchants, sought money damages alleged to range in the tens of billions of dollars (subject to trebling), as well as attorneys' fees and injunctive relief. The class plaintiffs also filed a Second Supplemental Class Action Complaint against Visa Inc. and certain member financial institutions challenging Visa's reorganization and IPO under the antitrust laws and seeking unspecified money damages and declaratory and injunctive relief, including an order that the IPO be unwound. The Company and certain individual merchants whose claims were consolidated with the MDL signed a settlement agreement to resolve their claims against the Company for approximately $350 million. This payment was made from the U.S. litigation escrow account on October 29, 2012, and the court has dismissed those claims with prejudice. In addition, Visa Inc., Visa U.S.A., Visa International, MasterCard Incorporated, MasterCard International Incorporated, various U.S. financial institution defendants, and the class plaintiffs signed a settlement agreement (the "2012 Settlement Agreement") to resolve the class plaintiffs' claims. The terms of the 2012 Settlement Agreement include, among other terms, (1) a comprehensive release of claims asserted in the litigation and protection against future litigation regarding default interchange and other U.S. rules; (2) settlement payments from the Company of approximately $4.0 billion and a further distribution of 10 basis points of default interchange for an eight-month period; (3) certain modifications to the Company's rules, including modifications to permit surcharging on credit transactions under certain circumstances; and (4) the Company's agreement to meet with merchant buying groups that seek to collectively negotiate interchange rates. On December 10, 2012, Visa paid approximately $4.0 billion from the U.S. litigation escrow account into a settlement fund established pursuant to the 2012 Settlement Agreement. On January 14, 2014, the court entered a final judgment order approving the settlement, from which a number of objectors appealed. On June 30, 2016, the U.S. Court of Appeals for the Second Circuit vacated the lower court's certification of the merchant class and reversed the approval of the settlement. The Second Circuit determined that the class plaintiffs were inadequately represented, and remanded the case to the lower court for further proceedings not inconsistent with its decision. Prior to November 23, 2016, class plaintiffs may file a petition for writ of certiorari with the U.S. Supreme Court seeking review of the Second Circuit's decision. Until the appeals process is complete, it is uncertain whether the Company will be able to resolve the class plaintiffs' claims as contemplated by the 2012 Settlement Agreement. However, the case is still U.S. covered litigation for purposes of the U.S. retrospective responsibility plan. VISA INC: Plaintiffs in Consumer Interchange Case Seek Rehearing ---------------------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the plaintiffs in the Consumer Interchange Litigation have sought rehearing by the U.S. Court of Appeals for the Second Circuit. On December 16, 2013, a putative class action was filed on behalf of all Visa and MasterCard payment cardholders in the United States since January 1, 2000, against certain financial institutions, identifying non-defendants Visa, MasterCard and certain other financial institutions as co-conspirators. Plaintiffs allege primarily a conspiracy to fix interchange fees and seek injunctive relief, attorneys' fees and treble damages in excess of $54.0 billion dollars annually arising from purported overcharges. Originally filed in federal court in California, the case was transferred to MDL 1720. On November 26, 2014, the MDL court dismissed plaintiffs' federal law claim and declined to exercise jurisdiction over plaintiffs' state law claim. Both sides asked the court to reconsider aspects of its decision and filed notices of appeal. On February 24, 2016, the MDL court denied plaintiffs' motion for reconsideration of the dismissal of plaintiffs' federal claim and dismissed plaintiffs' state law claim based on defendants' cross- motion for reconsideration. On October 17, 2016, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of plaintiffs' claims, and on October 31, 2016, plaintiffs sought rehearing by the Second Circuit. VISA INC: Home Depot Suit Transferred to MDL 1720 ------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the Judicial Panel on Multidistrict Litigation has issued an order transferring the lawsuit by The Home Depot, Inc. and Home Depot U.S.A., Inc. against Visa Inc., Visa U.S.A., Visa International, MasterCard Incorporated and MasterCard International Incorporated in the U.S. District Court for the Northern District of Georgia to MDL 1720. Beginning in May 2013, more than 50 cases have been filed in various federal district courts by hundreds of merchants who had opted out of the damages portion of the 2012 Settlement Agreement, generally pursuing damages claims on allegations similar to those raised in MDL 1720. A number of the cases also include allegations that Visa has monopolized, attempted to monopolize, and/or conspired to monopolize debit card-related market segments. In addition, some of the cases seek an injunction against the setting of default interchange rates; certain Visa Rules relating to merchants, including the honor-all-cards rule; and various transaction fees, including the fixed acquirer network fee. One merchant's complaint also asserts that Visa, MasterCard and their member banks conspired to prevent the adoption of chip-and-PIN authentication in the U.S. or otherwise circumvent competition in the debit market, and at least two merchant groups have requested permission from the MDL court to amend their complaints. The cases name as defendants Visa Inc., Visa U.S.A., Visa International, MasterCard Incorporated and MasterCard International Incorporated, although some also include certain U.S. financial institutions as defendants. Wal-Mart Stores Inc. and its subsidiaries filed a complaint that also adds Visa Europe Limited and Visa Europe Services Inc. as defendants. Visa, MasterCard, and certain U.S. financial institution defendants in MDL 1720 filed a complaint in the Eastern District of New York against certain named class representative plaintiffs who had opted out or stated their intention to opt out of the damages portion of the 2012 Settlement Agreement. In addition, Visa filed three more similar complaints in the Eastern District of New York against Wal-Mart Stores Inc.; against The Home Depot, Inc. and Home Depot U.S.A.; and against Sears Holdings Corporation. All four complaints seek a declaration that, from January 1, 2004 to November 27, 2012, the time period for which opt-outs could seek damages under the 2012 Settlement Agreement, Visa's conduct in, among other things, continuing to set default interchange rates, maintaining its "honor all cards" rule, enforcing certain rules relating to merchants, and restructuring itself, did not violate federal or state antitrust laws. All the cases filed in federal court have been either assigned to the judge presiding over MDL 1720, or have been transferred or are being considered for transfer by the Judicial Panel on Multidistrict Litigation for inclusion in MDL 1720. The court has entered an order confirming that In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 1:05-md-01720-JG- JO (E.D.N.Y.), includes (1) all current and future actions transferred to MDL 1720 by the Judicial Panel on Multidistrict Litigation or other order of any court for inclusion in coordinated or pretrial proceedings, and (2) all actions filed in the Eastern District of New York that arise out of operative facts as alleged in the cases subject to the transfer orders of the Judicial Panel on Multidistrict Litigation. Cases that have been transferred to or otherwise included in MDL 1720 are U.S. covered litigation for purposes of the U.S. retrospective responsibility plan. A settlement agreement was reached with Wal-Mart Stores Inc. and its subsidiaries, which will terminate if, following all appeals, the 2012 Settlement Agreement in MDL 1720 is reversed or vacated with respect to certification of the Rule 23(b)(2) settlement class or the consideration provided to or release provided by that class. Including this settlement with Wal-Mart, as of the date of filing, Visa has reached settlement agreements with a number of merchants representing approximately 51% of the Visa-branded payment card sales volume of merchants who opted out of the 2012 Settlement Agreement. Except for the settlement with Wal-Mart, these settlement agreements remain effective despite the outcome of any appeals from the district court's order approving the 2012 Settlement Agreement in MDL 1720. On June 13, 2016, The Home Depot, Inc. and Home Depot U.S.A., Inc. filed suit against Visa Inc., Visa U.S.A., Visa International, MasterCard Incorporated and MasterCard International Incorporated in the U.S. District Court for the Northern District of Georgia. On October 3, 2016, the Judicial Panel on Multidistrict Litigation issued an order transferring the case to MDL 1720. While the Company believes that it has substantial defenses in these matters, the final outcome of individual legal claims is inherently unpredictable. The Company could incur judgments, enter into settlements or revise its expectations regarding the outcome of individual merchant claims, and such developments could have a material adverse effect on the Company's financial results in the period in which the effect becomes probable and reasonably estimable. VISA INC: Ontario, Alberta, and Saskatchewan Suits Remain Stayed ---------------------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the merchant lawsuits in Ontario, Alberta, and Saskatchewan remain stayed pending further proceedings in British Columbia. Beginning in December 2010, a number of class action lawsuits were filed in Quebec, British Columbia, Ontario, Saskatchewan and Alberta against Visa Canada, MasterCard and ten financial institutions on behalf of merchants that accept payment by Visa and/or MasterCard credit cards. A separate action was filed against Visa Canada Corporation and Visa Inc., two MasterCard entities and smaller Canadian issuing banks, but that case has been stayed. The remaining cases allege a violation of Canada's price-fixing law and various common law claims based on separate Visa and MasterCard conspiracies in respect of default interchange and certain of the networks' rules. Four of the named financial institutions, only one of which is a significant Canadian issuer, have now settled with the plaintiffs. On March 26, 2014, the British Columbia Supreme Court, in one of the class action suits, Watson v. Bank of America Corporation, et al., granted the plaintiff's application for class certification in part. On appeal from both the defendants and the plaintiff, the British Columbia Court of Appeal allowed the class proceedings to advance but limited the time period of plaintiff's main price- fixing claim to prior to March 2010. A motion by the plaintiff to amend its claim to include the post-March 2010 period was dismissed by the British Columbia Supreme Court and that ruling is under appeal. The related lawsuits in Ontario, Alberta, and Saskatchewan have effectively been stayed pending further proceedings in British Columbia. The timing of the lawsuit in Quebec is also being considered in light of the proceedings in British Columbia. The pending lawsuits largely seek unspecified monetary damages and injunctive relief, but some allege substantial damages. VISA INC: Appeal in Data Pass Litigation Underway ------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the appeal in the Data Pass Litigation remains pending. On November 19, 2010, a consumer filed an amended class action complaint against Webloyalty.com, Inc., Gamestop Corporation, and Visa Inc. in Connecticut federal district court, seeking damages, restitution and injunctive relief on the grounds that consumers who made online purchases at merchants were allegedly deceived into incurring charges for services from Webloyalty.com through the unauthorized passing of cardholder account information during the sales transaction ("data pass"), in violation of federal and state consumer protection statutes and common law. On October 15, 2015, the court dismissed the case in its entirety, without leave to replead. Plaintiff filed a notice of appeal on November 12, 2015. No further updates were provided in the Company's SEC report. VISA INC: Appeal in ATM Access Fee Litigation Underway ------------------------------------------------------ Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the U.S. Supreme Court was scheduled to hear oral argument on December 7, 2016, in the appeal related to the U.S. ATM Access Fee Litigation. National ATM Council Class Action In October 2011, the National ATM Council and thirteen non-bank ATM operators filed a purported class action lawsuit against Visa (Visa Inc., Visa International, Visa U.S.A. and Plus System, Inc.) and MasterCard in the U.S. District Court for the District of Columbia. The complaint challenges Visa's rule (and a similar MasterCard rule) that if an ATM operator chooses to charge consumers an access fee for a Visa or Plus transaction, that fee cannot be greater than the access fee charged for transactions on other networks. Plaintiffs claim that the rule violates Section 1 of the Sherman Act, and seeks damages "in an amount not presently known, but which is tens of millions of dollars, prior to trebling," injunctive relief and attorneys' fees. Consumer Class Actions In October 2011, a purported consumer class action was filed against Visa and MasterCard in the same federal court challenging the same ATM access fee rules. Two other purported consumer class actions challenging the rules, later combined, were also filed in October 2011 in the same federal court naming Visa, MasterCard and three financial institutions as defendants. Plaintiffs seek treble damages, restitution, injunctive relief, and attorneys' fees where available under federal and state law, including under Section 1 of the Sherman Act and consumer protection statutes. On February 13, 2013, the court granted the defendants' motions to dismiss and dismissed all of these cases without prejudice. On plaintiffs' appeal, the U.S. Court of Appeals for the District of Columbia Circuit vacated the lower court's decisions and remanded for further proceedings. On February 18, 2016, the National ATM Council moved for a preliminary injunction to prohibit Visa and MasterCard from imposing ATM access fee non-discrimination rules. On June 28, 2016, the U.S. Supreme Court granted defendants' petitions for writ of certiorari seeking review of the decisions of the U.S. Court of Appeals for the District of Columbia Circuit, and the district court issued an order on July 21, 2016, staying the cases pending that review. The U.S. Supreme Court was scheduled to hear oral argument in these cases on December 7, 2016. VISA INC: EMV Chip Liability Shift Suit Remains Pending ------------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that the Company continues to defend against the EMV Chip Liability Shift class action lawsuit. Following their initial complaint filed on March 8, 2016, B&R Supermarket, Inc., d/b/a Milam's Market, and Grove Liquors LLC filed an amended class action complaint on July 15, 2016, against Visa Inc., Visa U.S.A., MasterCard, Discover, American Express, EMVCo and certain financial institutions in the U.S. District Court for the Northern District of California. The amended complaint asserts that defendants, through EMVCo, conspired to shift liability for fraudulent, faulty or otherwise rejected consumer credit card transactions from defendants to the purported class of merchants, defined as those merchants throughout the United States who have been subject to the "Liability Shift" from October 2015 to the present. Plaintiffs claim that the so-called "Liability Shift" violates Sections 1 and 3 of the Sherman Act and certain state laws, and seek treble damages, injunctive relief and attorneys' fees. On September 30, 2016, the court granted motions to dismiss the amended complaint filed by EMVCo and the financial institution defendants, but denied motions to dismiss filed by Visa Inc., Visa U.S.A., MasterCard, American Express and Discover. VISA INC: Request to Appeal in Broadway Grill Suit Pending ---------------------------------------------------------- Visa, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on November 15, 2016, for the fiscal year ended September 30, 2016, that Visa's request for permission to appeal related to the Broadway Grill class action lawsuit is pending. On July 12, 2016, Broadway Grill, Inc. ("Broadway Grill"), on behalf of itself and a putative class of California merchants that have accepted Visa-branded cards since January 1, 2004, filed a lawsuit against Visa Inc., Visa International and Visa U.S.A. in California state court. Based on allegations similar to those advanced by plaintiffs in MDL 1720, Broadway Grill pursues claims under California state antitrust and unfair business statutes. Broadway Grill seeks damages, costs and other remedies. On July 18, 2016, the case was removed to the U.S. District Court for the Northern District of California. On September 27, 2016, the district court granted leave to amend the complaint and entered an order remanding the case to California state court. Thereafter, Broadway Grill amended its complaint and Visa sought permission from the U.S. Court of Appeals for the Ninth Circuit to appeal the district court's decision. On October 17, 2016, the district court ordered the case remanded to California state court, and Visa's request for permission to appeal is pending. VOLKSWAGEN: In-House Lawyers Face Obstruction of Justice Claims --------------------------------------------------------------- Sue Reisinger, writing for The National Law Journal, reports that the obstruction of justice charge filed against Volkswagen AG on Jan. 11 pertains not only to lies by employees to federal regulators, but also to actions by VW's in-house legal team, according to statements attached to the plea agreement. The statements say VW in-house attorneys tipped off employees about an oncoming litigation hold. And at least one in-house counsel apparently indicated to employees that they should destroy certain documents and a hard drive that pertained to VW's emissions cheating issues. As part of the plea deal, VW agreed to cooperate with the U.S. Department of Justice in further prosecuting individuals guilty of misconduct, including those involved in perjury and obstruction of justice. Six current and former employees -- one top compliance officer and five department heads in product development and engineering -- already were indicted on Jan. 11. One in-house counsel, referred to simply as "Attorney A," was implicated as an unindicted co- conspirator. U.S. Attorney Barbara McQuade in Detroit, where the plea deal and indictments were filed in U.S. district court, told Automotive News that unindicted co-conspirators remain under investigation. Ms. McQuade also told Automotive News that three of the six indicted employees remain employed at VW, including the former compliance chief, Oliver Schmidt, who is in police custody after being arrested while on vacation in Miami. The company declined to discuss individual employees. But, based on the statement of facts in the plea deal under the section titled "Obstruction of Justice," this much is known about the in-house legal role: In the summer of 2015 in-house counsel for VW Group of America Inc. (GOA) contacted VW AG in Wolfsburg, Germany, to alert them that lawyers were preparing a litigation hold related to the emissions issues. On Aug. 26, 2015, "GOA's legal team sent the text of a [not yet issued] litigation hold notice to Attorney A in VW AG's Wolfsburg office," the statement says. The next day, Attorney A met with several VW engineers to discuss the illegal emissions defeat device at the heart of the scandal, the document says. "Attorney A indicated that a hold was imminent, and that these engineers should check their documents, which multiple participants understood to mean that they should delete documents prior to the hold being issued," it states. The GOA lawyers actually issued the litigation hold a day later, on Aug. 28. But Attorney A told his staff on Aug. 31 that the hold would be delayed at VW AG until the next day, Sept. 1. Meanwhile, on Aug. 31, Attorney A again attended a meeting of various supervisors and employees, and again said they should "check" their documents before the hold was issued in the German offices. "The comment led multiple individuals, including supervisors, to delete documents related to U.S. emissions issues," it says. At least two employees at VW AG contacted employees at "Company A," identified only as a Berlin software company that works with VW, and asked that company to delete related emissions documents, according to the statement. At a meeting on Sept. 15, Attorney A met with about 30 to 40 employees and indicated that emissions-related data should be kept on USB drives and put on the company's computer system "only if necessary." Thousands of documents were deleted, but many were later recovered during the investigation, it adds. The entire cover-up finally fell apart in November 2015 when a VW employee admitted it to regulators. In February 2016, GOA general counsel David Geanacopoulos was moved into the new position of senior executive vice president for public affairs and public policy in Washington, D.C., after eight years as GC. As a member of the company's board of directors, he continued to work on resolving the emissions investigation and "to help us rebuild the trust we have lost," the company said. Mr. Geanacopoulos was replaced as GC by David Detweiler, a U.S. citizen who was working with Clifford Chance in Frankfurt, Germany, at the time. Now Mr. Detweiler and his legal team must deal with the results of the misconduct. That includes an independent monitor imposed on the company covering both the headquarters in Germany and the U.S. offices. An attachment to the plea deal spends 13 pages outlining the duties of the monitor for the next three years, along with obligations of the company to the monitor, and other details. In a similar but unrelated case, Fiat Chrysler Automobiles is in the crosshairs. Prosecutors on Jan. 12 notified Fiat Chrysler of alleged violations of the Clean Air Act for installing and failing to disclose emissions software that allows excess pollution. In a statement Fiat Chrysler said it "believes that its emission control systems meets the applicable requirements." The company said it will work with the incoming Trump administration to resolve the matter fairly and equitably. Hopefully its legal team can take steps to avoid a litigation hold fiasco like Volkswagen's. VOLKSWAGEN AG: Reaches $4.3BB Emissions Settlement Deal with DOJ ---------------------------------------------------------------- Sue Reisinger, writing for Corporate Counsel, reports that Germany's Volkswagen Group said on Jan. 10 it has negotiated a "concrete draft" of a criminal settlement worth $4.3 billion with U.S. prosecutors over its emissions cheating scandal. The draft deal includes a company guilty plea and a statement of facts that could be used to pursue individual VW executives. It also contains compliance reforms and the appointment of an independent monitor, according to a company statement released by Jeannine Ginivan, senior manager for corporate and internal communications at Volkswagen Group America Inc. in Herndon, Virginia. The statement was signed by two communications executives in Germany. The deal is still in the "draft" stage because it has to be approved by various corporate boards. The company said the approval could come on Jan. 10 or Jan. 11. It also will require the approval of a federal court. "The payment obligations are expected to lead to a financial expense that exceeds the current provisions," the statement says. "The concrete impact regarding the annual result [for] 2016 cannot be defined at present." The amount includes both criminal and civil penalties. Analysts welcomed the proposed settlement before President-elect Donald Trump takes office on Jan. 20, according to a story in the Automotive News. "There is apprehension in the market that Trump may become an unpredictable president and turn against non-U.S. companies," the report quoted analyst Juergen Pieper of Bankhaus Metzler. "The deal is not cheap but it gives clarity to investors and relief to VW." Volkswagen has said it will also spend millions of dollars on settling civil suits by vehicle owners and dealerships. The proposed settlement comes a day after Oliver Schmidt, VW's top compliance officer, appeared in U.S. District Court in Miami after he was arrested for allegedly taking part in a conspiracy to defraud the U.S., committing wire fraud, and violating the U.S. Clean Air Act. He was the second VW executive to face criminal charges in the emissions scandal. A criminal complaint against Ms. Schmidt, unsealed in U.S. District Court in Detroit on Jan. 16, presents a road map for possible prosecution of other executives. It says Schmidt informed other VW management members in Germany of the illegal emissions scheme in meetings in the summer of 2015, and they directed him to continue lying to regulators about it. The complaint does not name the other members of management involved. The Department of Justice has declined to comment on its investigation and the proposed settlement. * * * A CNBC.com report at https://is.gd/RQZVdL says the Volkswagen board has approved $4.3 billion US criminal civil settlement. VOLKSWAGEN AG: Court Approves $1.6BB Settlement with 644 Dealers ---------------------------------------------------------------- A federal judge on Jan. 23 granted final approval for a $1.67 billion settlement for hundreds of Volkswagen-branded franchise dealers following the automaker's Dieselgate scandal that blindsided dealers, according to Hagens Berman. The settlement brings $1.67 billion in benefits to Volkswagen dealers, including nearly $1.2 billion in new cash, $270 million through a non-offset provision for prior payments and $175 million in continued sales incentives. The settlement garnered nearly unanimous approval of dealers, with 99 percent participation in the settlement. Participating dealers will receive an average settlement payout of $1.85 million. "The Volkswagen-branded franchise dealer class-action settlement finalized today represents an outstanding result for Volkswagen's affected franchise dealers who, like consumers, were blindsided by the brazen fraud that VW perpetrated," said Steve Berman, managing partner of Hagens Berman and the lead attorney representing the class. "We are pleased to have been able to reach a swift resolution to allow these small business owners to get back to business and offset the tremendous hit to franchise value, revenue and profits suffered due to VW's Dieselgate scandal." The order, granted by Judge Charles Breyer of the U.S. District Court for the Northern District of California, states that franchise dealers will share just under $1.2 billion in payments intended as compensation for the alleged diminution in the value of their franchises. The court approved allocation of the cash payments based upon the formula that Volkswagen used to provide its monthly support payments to franchise dealers, specifically, the monthly support payments that began in November of 2015, and pursuant to the settlement, continued through December 2016. Hagens Berman has established a dedicated email, toll-free number and website to answer dealers' questions about the proposed settlement. Dealers are invited to contact Hagens Berman's legal team: vwdealers@hbsslaw.com 1-800-657-1758 www.vwdealersettlement.com Half of the settlement payment will be made up front, and the remaining 50 percent will be paid in 18 equal, consecutive monthly installments beginning the month following the initial payment. Approximately 85 percent of Volkswagen's dealers have already executed Individual Release forms that have allowed VW to pay the initial payments in December 2016 and January 2017. Franchise dealers who chose not to complete the individual release will receive their initial payments within 30 days of the effective date of the settlement. In addition to the cash compensation and continued incentives, the Settlement limits VW's ability to require its dealers to make costly capital improvements for two years and establishes parameters to resolve dealer inventory issues with the diesel cars that have been stuck on dealers' lots since the emission scandal when Volkswagen issued broad stop-sale orders covering diesel powered cars. Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with offices in 10 cities. The firm has been named to the National Law Journal's Plaintiffs' Hot List eight times. Vehicle Owners Await Settlement Payout Lauren Sweeney, writing for WINK News, reports that that some Volkswagen owners are still waiting for the company to come up with an approved fix for their vehicles so they can collect from a massive class-action settlement. As part of a nearly $15 billion settlement agreement, Volkswagen agreed to modify thousands of owners' vehicles to bring them up to current emissions standards. Federal prosecutors charged six Volkswagen executives for their role in an emissions cheating scandal, and the company pleaded guilty to conspiracy to commit wire fraud in violation of the clean air act. Approximately 475,000 vehicles are considered eligible for a buyback settlement, a lease termination or a cash settlement following a free modification. The Environmental Protection Agency approved an emissions fix for some 2015 model vehicles with the California Air Resources Board. But the company and the government have not indicated how long fixes for other vehicles may take for approval. "I'm being told it could take as long as a year," said Tricia Reynolds, a Fort Myers woman who owns a 2012 Jetta diesel. Ms. Reynolds chose the cash payout option of the settlement since she doesn't want to drive another car. She's supposed to be paid out $6,300 after her vehicle is fixed, she said, because she is under a 12,000 mile per year threshold. Now she's worried the longer the company takes to find an approved fix, the more miles she will put on her car and decrease her potential settlement. The company's deadline for submitting an approved fix to the EPA and the resources board for vehicles with first-generation engines like Reynolds' is Jan. 27, according Volkswagen's website dedicated to the diesel scandal. The company would not comment on whether or not it will meet that deadline. A spokesperson wrote via email that Volkswagen is working to submit the modifications as quickly as possible. "Some people who have taken that third option are experiencing some problems, just because we do not know when the EPA is going to approve the fix," said Sawyer Smith, a Fort Myers attorney whose firm represented plaintiffs in the class action suit. Mr. Smith believes the case was resolved very quickly and to the benefit of the consumer. "Unfortunately, those who took that third option are just going to have to tough it out and wait," he said. VOLKSWAGEN AG: Germany Needs to Have Collective Rights Law ---------------------------------------------------------- Volker Votsmeier, writing for Handelsblatt Global, reports that it is absurd: So far, the Volkswagen concern has had to cough up around $22 billion (EUR20.75 billion) in compensation to customers and authorities in the United States for its diesel fraud. This enormous sum comprises damage payments, penalties and legal costs. The number of affected cars in the United States is 585,000. In Europe Volkswagen potentially has a problem 17 times bigger: The company sold 8.5 million vehicles here with the now-suspect diesel technology. But the sum Volkswagen has had to stump up for its transgressions in Europe is infinitely lower: zero. The facts are completely at odds with any sense of justice. In the United States, the carmaker pleaded guilty to deceiving supervisory authorities and customers, whereas in Europe it denies all such accusations. VW may even succeed with this plea. The law in Germany and other European countries makes such stonewalling possible. Consumers haven't yet been able to demand damages. Through the back door, U.S. law specialists are being increasingly successful in assembling large numbers of plaintiffs and bringing pressure to bear on possible infringing parties. There are two reasons for this: On the one hand, the customer has to hope that the courts regard the manipulation software as a serious defect. That is not certain, as there are differing signals in terms of jurisprudence. On the other hand, every individual VW customer has to pursue his own arduous path to justice because in Germany, there's no such thing as a class-action suit like in the United States. Damaged parties have no way of exerting pressure on Volkswagen. U.S. law firms in particular are exploiting this gap in German law. Possible cases of fraud at the expense of consumers, investors or firms are attracting increasing numbers of litigation firms from abroad. These specialists search systematically in Germany for potential class-action suits, which are actually not possible here, unlike in the United States. But through the back door, they are being increasingly successful in assembling large numbers of plaintiffs and bringing pressure to bear on possible infringing parties. The U.S. law firm Hausfeld, in particular, hit the headlines recently. It is attacking carmakers like VW because of the diesel scandal, or automotive supplier firms like Bosch, not to mention truck cartel members Daimler, Volvo, Iveco and DAF. Recently it has focused on the banking industry for possibly charging excessive EC bank card fees. Germany needs a law pertaining to collective rights, but it should not become an El Dorado for U.S. law firms. The lawyers are applying their tried and tested U.S. success formula in Europe too: The first step is to acquire huge numbers of clients via internet platforms like Myright and generate widespread publicity. Potential damages are provisionally estimated at exorbitant levels. That creates headlines and gets the attention of politicians. Being on the side of damaged parties makes the lawyers popular. This helps them to exert maximum pressure on the firms concerned. There are already calls to introduce U.S.-style class actions in Germany. But that would be wrong, because things have got out of hand in America. A whole plaintiff industry has been established in which the interests of clients have become less and less important. What comes first and foremost is the law firms' own business. The U.S. law has all the instruments of torture available to plaintiffs and their lawyers at the ready, but under no circumstances should Germany import them. For example, companies in the United States are threatened with high damages, and amounts are determined by juries of laymen and can hardly be calculated. Legal fees are not reimbursed even if it transpires that a claim is unjustified. The usual payments made to plaintiff lawyers in the United States are frequently out of all proportion. Success- based fees usually amount to a third of the damages secured. In the case of VW, the law firms involved literally pocketed billions. A large proportion of awarded damages go not to damaged parties, but to their lawyers. However, it is also important in Germany to strengthen consumers' rights which is why Minister of Justice Heiko Maas of the center- left Social Democratic Party (SPD) has introduced a draft bill for class actions brought by consumers. So far it has only been possible for investors to get together and represent their interests in court. This right should also be accorded to customers mounting a collective defense against fraudulent firms. The judicial system -- itself under great pressure -- would also benefit if such actions could be bundled and streamlined. But there have to be improvements and so far it has been associations such as consumer protection organizations which have had to take the initiative. Individuals affected can also join a case but cannot initiate it. There is no logical reason for this, and the next government should make it a priority to amend this. Germany needs a law pertaining to collective rights, but it should not become an El Dorado for U.S. law firms. WAL-MART STORES: Still Defends Pontiac General Employees Suit ------------------------------------------------------------- Wal-Mart Stores, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on December 1, 2016, for the quarterly period ended October 31, 2016, that the Company continues to defend the securities class action, City of Pontiac General Employees Retirement System v. Wal-Mart Stores, Inc., USDC, Western Dist. of AR, 5/7/12. The Company is a defendant in several lawsuits in which the complaints closely track the allegations set forth in a news story that appeared in The New York Times (the "Times") on April 21, 2012. One of these is a securities lawsuit that was filed on May 7, 2012, in the United States District Court for the Middle District of Tennessee, and subsequently transferred to the Western District of Arkansas, in which the plaintiff alleges various violations of the U.S. Foreign Corrupt Practices Act (the "FCPA") beginning in 2005, and asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, relating to certain prior disclosures of the Company. The plaintiff seeks to represent a class of shareholders who purchased or acquired stock of the Company between December 8, 2011, and April 20, 2012, and seeks damages and other relief based on allegations that the defendants' conduct affected the value of such stock. On September 20, 2016, the court granted plaintiff's motion for class certification. On October 6, 2016, the defendants filed a petition to appeal the class certification ruling to the U.S. Court of Appeals for the Eighth Circuit. On November 7, 2016, the U.S. Court of Appeals for the Eighth Circuit denied the Company's petition. WAL-MART STORES: Sold Wildfire-Contaminated Food, Suit Claims ------------------------------------------------------------- David Thurton, writing for CBC News, reports that a law firm is testing the waters to see if there's interest among Fort McMurray residents who may have bought wildfire-contaminated food from the downtown Walmart. Calgary-based Higgerty Law announced on Jan. 14 on its website that it may launch a class-action lawsuit on behalf of Fort McMurray customers who have purchased contaminated food in the weeks after the wildfire. The law firm is asking people impacted to complete an online questionnaire. "Whether you have symptoms or not, many of the contaminants are carcinogenic," the post reads. "So even though they won't affect you immediately they could put you at higher risk of cancer later, if taken over a course of time." Walmart Canada and four of its senior managers face 174 charges under the Alberta Public Health Act related to the sale of food contaminated during the wildfire, which engulfed the city last May. A 31-page charge sheet alleges the store sold various contaminated food items, ranging from chocolate bars to bacon and chicken. The charges also allege that Walmart Canada failed to ensure that food that had been contaminated or was unfit for human consumption in the wake of the wildfire was not stocked or sold at its location in downtown Fort McMurray. Four additional charges allege that Walmart lied to public health inspectors by saying it was not selling food that had been contaminated in the fire. Before residents were allowed to re-enter the city after the wildfire, health officials repeatedly advised residents and businesses to throw out any food products not stored safely in cans and tins. Higgerty Law's general counsel, Clint Docken, said a handful of customers have already contacted the law firm. "We have talked to people that have suffered some health issues," Mr. Docken said in an interview. "Which they are blaming on groceries that they purchased in Walmart." Alex Robertson, Walmart Canada's senior director of corporate affairs, reiterated a statement the company issued on Jan. 13. "We, at all material times, and during an unprecedented crisis, worked very closely with both food inspectors and the crisis management team of the Regional Municipality of Wood Buffalo to re-open the store as soon as reasonably possible in an effort to support and meet the critical needs of the community" he said. Walmart said the company follows strict procedures to ensure customer safety. WELLS FARGO: Saxena White Named Co-Lead Counsel in Class Action --------------------------------------------------------------- Ben Hancock, writing for The Recorder, reports that Lieff Cabraser Heimann & Bernstein and Boca Raton-based Saxena White have been selected to lead a shareholder derivative class action against Wells Fargo & Co., winning out over competing firms that have clients with hundreds of thousands of more shares in the bank. The suits stem from revelations last September that Wells Fargo employees had been pressured to open more than 2 million unauthorized deposit and credit card accounts on behalf of bank customers and the subsequent blow to the company's stock and finances. U.S. District Judge Jon Tigar of the Northern District of California ruled that Lieff Cabraser and Saxena White were best positioned to lead the derivative litigation against the company's board, in part because they moved quickly to coordinate the various suits that had been filed. The firms "played a key role in the effort to consolidate these cases pursuant to stipulation, which made the outset of this litigation more efficient for both the parties and this court," Judge Tigar wrote in an order approving their motion to become co- lead counsel. He noted four other plaintiffs supported their bid to lead the case based on "their stated willingness to coordinate and work with plaintiffs' counsel in the related actions." Lieff Cabraser and Saxena White respectively represent the Fire and Police Pension Association of Colorado and the City of Birmingham Retirement and Relief System. Together, they hold 181,076 shares in Wells Fargo stock, according to Judge Tigar's order. That compares to the 925,169 shares held by the clients of competing firms Bernstein Litowitz Berger & Grossmann and Bottini & Bottini. Having a bigger financial stake normally puts a firm on solid footing to lead shareholder class action suits. But the judge ruled that both pairs of clients still have a "significant" financial interest and, "This factor will translate into a marginal difference, if any, in the vigor of representation." The development comes just two weeks after Judge Tigar appointed Motley Rice to lead a securities fraud class action against Wells Fargo, with Robbins Geller Rudman & Dowd as liaison counsel. Their bid to lead the suit was unopposed. The Birmingham complaint filed Oct. 12 by the 13-attorney Saxena White charges the directors and officers of Wells Fargo with violations of securities law, breach of fiduciary duty and unjust enrichment. Lieff Cabraser and Saxena White asked to consolidate their cases and for the appointment of co-lead counsel Nov. 22. Saxena White was founded in 2006 by Maya Saxena and Joseph White, who left class action firms to form the only certified minority- and female-owned firm in securities litigation, representing large pension funds in major securities fraud cases nationally and recovering over $2 billion for investors. They had no comment on the firm's selection by deadline. The firm's litigation history includes roles in the Lehman Brothers Holding collapse, LIBOR rate manipulation allegations and claims against Novo Nordisk of insulin drug price manipulation. A separate shareholder derivative class action against Wells Fargo is also pending in state court in San Francisco, headed by Cotchett Pitre & McCarthy. Cotchett attorneys are due to report to San Francisco Superior Court Judge Curtis Karnow later this month on whether the federal or state court action should take the lead. Defending Wells Fargo in the derivative cases is Sullivan & Cromwell, one of a broad network of law firms the bank has called on to navigate the legal fallout from the fake accounts scandal. WESTERN REFINING: Monteverde & Associates Files Class Action ------------------------------------------------------------ Monteverde & Associates PC on Jan. 18 disclosed that it has filed a class action lawsuit in the United States District Court for Western District of Texas, case no. 3:17-cv-00002, on behalf of shareholders of Western Refining, Inc. ("Western " or the "Company")(NYSE: WNR) who held Western securities and have been harmed by Western and its board of directors' (the "Board") alleged violations of Sections 14(a), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to Tesoro Corporation ("Tesoro"). Pursuant to the terms of the Merger Agreement, Western stockholders will receive $37.30 per share of Western stock (the "Merger Consideration"). Western shareholders will have the option to either receive 0.4350 shares of Tesoro or cash for each share of Western stock. The complaint alleges that this offer is inadequate and alleges that the Registration Statement in Form S-4 (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the transaction, in violation of Sections 14(a), and 20(a) of the Exchange Act. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 18, 2017. 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. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information: www.monteverdelaw.com/investigations. It is free and there is no cost or obligation to you. Monteverde & Associates PC is a boutique class action securities and consumer litigation law firm committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates PC lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Contact: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave. 59th Floor New York, NY 10118 United States of America jmonteverde@monteverdelaw.com Tel: (212) 971-1341 WESTERN REFINING: March 20 Lead Plaintiff Bid Deadline ------------------------------------------------------ Notice is hereby given that Monteverde & Associates PC has filed a class action lawsuit in the United States District Court for Western District of Texas, case no. 3:17-cv-00002, on behalf of shareholders of Western Refining, Inc. ho held Western securities and have been harmed by Western and its board of directors' (the "Board") alleged violations of Sections 14(a), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to Tesoro Corporation ("Tesoro"). Pursuant to the terms of the Merger Agreement, Western stockholders will receive $37.30 per share of Western stock (the "Merger Consideration"). Western shareholders will have the option to either receive 0.4350 shares of Tesoro or cash for each share of Western stock. The complaint alleges that this offer is inadequate and alleges that the Registration Statement in Form S-4 (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the transaction, in violation of Sections 14(a), and 20(a) of the Exchange Act. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. 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. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: www.monteverdelaw.com/investigations. It is free and there is no cost or obligation to you. Monteverde & Associates PC is a boutique class action securities and consumer litigation law firm committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates PC lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave. 59th Floor New York, NY 10118 United States of America E-mail: jmonteverde@monteverdelaw.com Tel: (212) 971-1341 WESTERN UNION: Settles FTC Fraud Case for $586 Million ------------------------------------------------------ The Associated Press reports that Western Union has agreed to pay $586 million to the U.S. government to pay back victims of fraud that the money transfer company failed to protect. The government said on Jan. 19 that Western Union did not have a strong enough anti-fraud program, allowing scammers to use its money-transfer services to rip off customers. In one such scam, fraudsters would contact people to trick them into thinking they won a foreign lottery and asked them to send money through Western Union to retrieve their prize. The Federal Trade Commission said in a complaint that Western Union received more than 550,000 complaints between 2004 and 2015 about scam-related money transfers that totaled more than $630 million. The FTC said it believes even more people were victimized, since many may not complain directly to Western Union. As part of the agreement reached with the FTC and the Department of Justice, Western Union also agreed to put in place and maintain an anti-fraud program and properly train its staff to identify potential fraud. Western Union said in a statement that much of the activity in the government's complaint occurred between 2004 and 2012, and that it has increased spending on anti-fraud measures in the past five years. "We are committed to enhancing our compliance programs to prevent illicit activity on our network and protect customers who transfer money," Western Union said in a statement. YELP INC: Law Curbs Consumers' Ability to Leave Negative Reviews ---------------------------------------------------------------- Jennifer Williams-Alvarez, writing for Corporate Counsel, reports that a handful of companies have gone after customers that left negative online reviews, prompting a new federal law that protects the right to complain on such forums as Yelp.com. With the law's impacts soon to be felt, in-house counsel would be wise to review their company's terms of use and make sure they aren't trying to silence peeved customers, internet lawyers say. The Consumer Review Fairness Act of 2016, signed into law by President Barack Obama on Dec. 14, voids provisions in form contracts that aim to prohibit or restrict a consumer's ability to leave a negative review. While a number of exceptions are included to allow businesses to take action for such things as defamatory or vulgar reviews, the CRFA makes it unlawful to include so-called gag clauses in contracts with consumers and authorizes the Federal Trade Commission, and in some cases, state attorneys general, to bring enforcement actions. The law makes it unlawful to offer contracts with these clauses 90 days after enactment, in mid-March, and the enforcement provisions are effective one year after enactment, in December. The law was enacted in response to a number of news stories about businesses going to battle with customers over bad reviews. One pet-sitting company in Texas, for example, sued a couple for up to $1 million in damages related to a one-star Yelp review, claiming a nondisparagement clause, or gag clause, prevented such a review. Aaron Schur, senior director of litigation at Yelp Inc. and a vocal supporter of CRFA, says companies need to make sure they are in compliance with the new law. "Businesses should take the time now to review any form contracts they use with consumers, and remove any clauses that restrict a consumer's ability to provide reviews or other feedback about their experiences," he says. In practice, this should not be a huge undertaking, says Jim Rosenfeld -- jamesrosenfeld@dwt.com -- a partner in Davis Wright Tremaine's New York City office and co-chairman of the firm's media law practice. "It's a pretty simple change," he says. "It's just a matter of making a change to the terms and conditions." It's unclear how many companies use these sorts of gag clauses. Rosenfeld says he doesn't have the impression that a "ton of businesses" are utilizing them. But Brad Young, assistant general counsel at TripAdvisor Inc., says there are likely many gag clauses that are going unnoticed and unreported. "Because of the nature of these clauses and their entire intention, I commonly refer to it as an iceberg problem," he says. "We get lots of reports about these clauses, but we kind of assume that we're only seeing 10 percent of the iceberg." Mr. Schur says the law's enactment will go a long way toward helping customers speak honestly online. While businesses that sue customers over one-star reviews are unlikely to win in court, just the fear of such retaliation can impact a consumer's behavior, Mr. Schur says. "These clauses could have the side effect where consumers remove reviews," he explains. "Having them outlawed altogether is beneficial to having consumers feel they can leave honest reviews." TripAdvisor, which offers user-generated reviews of hosts, restaurants and tourist attractions, has long taken the stance that gag clauses are an unfair business practice. Now that they are illegal under federal law, TripAdvisor is upping its pressure on businesses to remove them. "I have already reached out to businesses in the hospitality industry to tell them that the clauses that I was hearing about in their contracts are now illegal under federal law," says Young. "We're making them aware of the law and telling them that those provisions not only violate TripAdvisor policy but also now violate the law and they should govern themselves accordingly." At Yelp, the law will similarly add teeth to what the company has already been doing to put an end to these clauses, Mr. Schur says. The company will continue to notify consumers about businesses using gag clauses, he explains. But armed with the federal law, Mr. Schur adds that they will also now "educate consumers about the illegality of contractual provisions like these and bring businesses that still use these provisions to the attention of state and federal regulators." ZEBRA TECHNOLOGIES: No Trial Date Yet in Class Action ----------------------------------------------------- Zebra Technologies Corporation said in its Form 10-Q/A Report filed with the Securities and Exchange Commission on November 15, 2016, for the quarterly period ended April 2, 2016, that the court has held in abeyance all other deadlines, including the deadline for the filing of dispositive motions, and has not set a date for trial in a class action lawsuit. In connection with the acquisition of the Enterprise business from Motorola Solutions, Inc., the Company acquired Symbol Technologies, Inc., a subsidiary of Motorola Solutions ("Symbol"). A putative federal class action lawsuit, Waring v. Symbol Technologies, Inc., et al., was filed on August 16, 2005 against Symbol Technologies, Inc. and two of its former officers in the United States District Court for the Eastern District of New York by Robert Waring. After the filing of the Waring action, several additional purported class actions were filed against Symbol and the same former officers making substantially similar allegations (collectively, the New Class Actions"). The Waring action and the New Class Actions were consolidated for all purposes and on April 26, 2006, the Court appointed the Iron Workers Local # 580 Pension Fund as lead plaintiff and approved its retention of lead counsel on behalf of the putative class. On August 30, 2006, the lead plaintiff filed a Consolidated Amended Class Action Complaint (the "Amended Complaint"), and named additional former officers and directors of Symbol as defendants. The lead plaintiff alleges that the defendants misrepresented the effectiveness of Symbol's internal controls and forecasting processes, and that, as a result, all of the defendants violated Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and the individual defendants violated Section 20(a) of the Exchange Act. The lead plaintiff alleges that it was damaged by the decline in the price of Symbol's stock following certain purported corrective disclosures and seeks unspecified damages. By orders entered on June 25 and August 3, 2015, the court granted lead plaintiff's motion for class certification, certifying a class of investors that includes those that purchased Symbol common stock between April 29, 2003 and August 1, 2005. The parties have substantially completed fact and expert discovery. However, by order entered on January 8, 2016, the court granted Symbol's request for certain additional fact and expert discovery; pursuant to a proposed scheduling order filed on January 21, 2016, the parties agreed to complete that discovery by approximately June 17, 2016. There are also certain discovery motions pending that could, if granted, reopen fact discovery. The court has held in abeyance all other deadlines, including the deadline for the filing of dispositive motions, and has not set a date for trial. The Company said, "One of the insurers in our insurance group has denied insurance coverage and is not agreeing to reimburse defense costs incurred by the Company in connection with this matter. The Company establishes an accrued liability for loss contingencies related to legal matters when the loss is both probable and estimable. In addition, for some matters for which a loss is probable or reasonably possible, an estimate of the amount of loss or range of loss is not possible, and we may be unable to estimate the possible loss or range of losses that could potentially result from the application of non-monetary remedies. Currently, the Company is unable to reasonably estimate the amount of reasonably possible losses for this matter." ZEEKREWARDS: Ponzi Scheme Victims to Receive Third Payout --------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that certain victims of the ZeekRewards.com Ponzi scheme will receive a third distribution payment in mid-March, the receiver for the defunct companies said on Jan. 16. Kenneth Bell said in November there was $42.2 million in reserves for 38,587 victims who had not completed the necessary release form and tax documentation for their claims. Those victims had until Dec. 31 to finish the process or forfeit their payment. "Their failure to (provide the proper certification) has permitted me to release these reserves," Mr. Bell said. The deadline for filing a claim was in 2013. Mr. Bell has sent restitution checks on more than 100,000 qualified claims. When the next distribution is made by March 15, Mr. Bell said the majority of victims will have received reimbursement of between 60 percent to 75 percent of their losses. Victims who already have received back at least 75 percent of their losses may not qualify for the third distribution. "I am confident that we will make a further distribution in the future," Mr. Bell said. In August 2012, the Securities and Exchange Commission accused Rex Venture Group LLC (RVG), Zeekler, ZeekRewards and founder Paul Burks of raising more than $800 million through unregistered securities, also known as penny auctions, and another $96 million in subscription fees. The Lexington companies raised the money from at least 2.2 million customers, including more than 230,000 in the United States, with 47,000 of those in North Carolina. In 2016, federal prosecutors raised the amount to $939 million before Mr. Burks' criminal trial, calling it one of the largest Ponzi schemes in U.S. history. On July 21, Mr. Burks was found guilty of wire and mail-fraud conspiracy, wire fraud, mail fraud, and tax-fraud conspiracy. As of Sept. 30, Mr. Bell has recovered $362 million and disbursed $269.8 million to victims. Another $17 million could be dispersed to about 18,000 victims who live outside the United States. In February 2015, Mr. Bell gained court permission to certify about 9,400 "net winners" as defendants in a class-action lawsuit. Bell has defined net winners as those who had a net gain of at least $1,000. The amounts include interest owed by each individual. The overall net winner list contained 15 individuals from Forsyth County, 105 from the Triad and Northwest North Carolina, and 390 statewide. Mr. Bell has cautioned that although there are more than $200 million in judgments that could be awarded, "the actual amount recovered by the receivership is likely to be substantially lower." A federal judge has approved multi-million dollar penalties against eight top net winners for a combined total of at least $17 million. * Alston & Bird Features Key Decisions in Class Action Roundup -------------------------------------------------------------- Alex Akerman, Esq. -- alex.akerman@alston.com -- David Carpenter, Esq. -- david.carpenter@alston.com -- Caitlin Counts, Esq. -- caitlin.counts@alston.com -- Cari Dawson, Esq. -- cari.dawson@alston.com -- Nicole DeMoss, Esq. -- nicole.demoss@alston.com -- of Alston & Bird, in an article for JDSupra Business Advisor, report that in this edition of Class Action Roundup, the law firm features decisions from the third quarter of 2016, covering everything from pizza delivery and Uber drivers to payday lenders, canned tuna manufacturers, and even flushable toilet wipes. The courts continue to take a close look at class certification and how plaintiffs are defining the class as well as the analysis of numerosity and predominance. The courts have also weighed in on issues of class action waivers and arbitration agreements, deciding on the timing of agreements and whether the class of plaintiffs is covered by a waiver or not. The employment arena continues to be fraught with class action cases covering overtime rules, pay for meal breaks, and definitions of contractor or employee status. Court cases already filed over the DOL's new overtime rule likely means we'll witness more litigation on that topic into 2017. Matters involving data breaches and other privacy issues are again featured in this issue, with cases dealing with how much private information is "private" to warrant harm and the nuances of TCPA rules in play for health care providers. This issue wraps up with a standard summary of settlements, including cases dealing with settlement funds and coupons. The full publication is available at https://is.gd/OylGLk * Consumer Action Maintains Class Action Database ------------------------------------------------- Laura Ararat, writing for WLTX, reports that companies accused of inconveniencing, misleading, or injuring their customers can face a class action lawsuit but many consumers don't know that they are owed money. Consumer Action is a nonprofit organization that has been representing consumers nationwide since 1971. They have a Class Action database which maintains a listening of notable class actions so that consumers can learn more, join a pending action or make a claim. To see the database and see if you're owned money, you can visit their website at: http://www.consumer-action.org/lawsuits/by-status/pending Every settlement has a deadline and filing a claim for thing you've never purchased is considered fraud. Companies often settle these suits without admitting wrong doing. * Fiduciary Rule May Spur Class Actions Against Financial Advisors ------------------------------------------------------------------ Matthew Heimer, writing for Fortune, reports that big banks and brokerages have been publicly fretting about how a new rule on retirement accounts might reduce their income. But at least one observer thinks they should be more worried about how it might jack up their legal fees. The threat in question is the so-called fiduciary rule, a regulation approved by the Department of Labor last year and scheduled to go into effect this April. The rule applies to retirement accounts, and it states that when working with investors, "The Financial Institution and the Adviser(s) [must] provide investment advice that is, at the time of the recommendation, in the Best Interest of the Retirement Investor." That concept may sound astoundingly obvious, but it's meant to address a significant problem in the retirement-savings world. Currently, many relationships between investment pros and retirement clients are required only to meet a "suitability" standard. In practice, under that rule brokers can and do park clients in investments that are either absurdly expensive--often because they generate chunky commissions for the broker--or highly risky, or both. The fiduciary rule basically puts pressure on financial-services companies to justify the costs of the retirement accounts they offer. And as Fortune contributor Joshua Brown pointed out when the rule was passed, many big firms are already moving in that direction. They've seen the writing on the wall, as more investors have moved their nest eggs into low-priced index funds. They've also seen courts side with workers who sued their employers for offering overpriced mutual funds in their 401(k)s. They don't want to be the mustache-twirling villains charging 6% commissions and 2% annual fees on IRAs when index giants like Vanguard and BlackRock have proven you can get similar returns for fractions of a penny on the dollar. But Michael Kitces, a financial planner who writes extensively about retirement investing, thinks financial services firms are focusing on one problem when it really faces two. In a post on Jan. 16 on his Nerd's Eye View blog, Mr. Kitces argues that the idea of fiduciary duty implicitly holds financial advisors to a minimum standard of competency -- and that, disturbingly, many firms wouldn't be able to prove that their staff met that standard. There are various designations that advisers can earn that require them to prove that they're competent at helping clients solve financial problems. (Mr. Kitces holds many of those designations, as it happens.) But many "client-facing" advisers aren't required to earn those credentials. The fiduciary rule would essentially enable a group of disgruntled retirement-savings clients to use this flaw as a key argument in a class-action lawsuit. As Mr. Kitces puts it (emphasis his): "Financial institutions face the risk that they will be sued in a class action lawsuit for failing to put their financial advisors through the training and education (e.g., professional designations) necessary to ensure that the advisor would even know what the 'best' advice for the client was in the first place!" If courts were sympathetic to that argument, he concludes, things could get uncomfortable, and expensive, very quickly. Granted, Mr. Kitces's point could quickly become moot under a Donald Trump administration. Trump's advisers and cabinet picks, including Secretary of Labor nominee Andy Puzder, have generally been outspoken about their desire to roll back financial regulations. Earlier this month, Rep. Joe Wilson (R, S.C.) introduced a bill to delay the implementation of the fiduciary rule, one that would likely get a sympathetic hearing from laissez faire GOP congressional leaders. But whether or not the rule survives, Mr. Kitces's take highlights an important point: Just because an advisor isn't trying to fleece you doesn't mean he or she is qualified to help you. * Judge Grants Suit for Millions Who Got Movie-Promoting Robocalls ------------------------------------------------------------------ Robert Patrick at St. Louis Post-Dispatch reports a federal judge on January 18 granted a motion that will allow lawyers to sue on behalf of millions of people who received robocalls featuring former Arkansas Gov. Mike Huckabee. Promoters of the "Last Ounce of Courage" movie called about four million residential households, plaintiffs' lawyers claim. Those who picked up heard Huckabee's voice and what "appeared as surveys to recipients about traditional American values," U.S. District Judge E. Richard Webber's ruling said. Webber, summarizing the plaintiffs' allegations, wrote that the call recipients were then told "if they believed in freedom and liberty, they would enjoy the movie." Ron and Dorit Golan, of St. Louis County, are on the Do Not Call registry and did not consent to calls, making those calls a violation of the Telephone Consumer Protection Act, their lawyers say. Ronald J. Eisenberg -- reisenberg@sl-lawyers.com -- with Schultz and Associates LLP, one of those lawyers, said that under the act, callers can be penalized $500 per violation, meaning a potential of $2 billion across all class members. The penalty can rise to $1,500 each if the violation was "knowing or willful," he said. But Eisenberg also said that most class action suits settle. "That's a huge risk for a defendant not to settle," he said. Promoters also sent out 30 million text messages to promote the movie, Eisenberg said, but his clients did not receive one and the time has expired to sue over those texts. Defense lawyers did not immediately return a message seeking comment. The movie, about "faith, family and freedom," spent two to three weeks in theaters beginning Sept. 14, 2012, and did not do well there, according to court filings. Those filings say about one million "live responses" to the robocalls were detected, suggesting that someone picked up the call. The Golans received two calls on their answering machine. The Golans sued the next month in St. Louis County Circuit Court. The suit was removed to federal court in 2014 and originally dismissed by Webber over concerns about the extent of "injury" suffered by the Golans. The judge's decision was overturned by a federal appeals court in 2015, however. Lawyers for the defendants, including Texas doctor and businessman James R. Leininger, who sank $10 million into the movie, argued that the case was too big and complicated to qualify for class action status. But Webber ruled that defendants have records of the calls that they made and wrote that "it makes much more sense to proceed as a class action rather than attempting to join several thousand individuals in one suit or bringing several thousand individual suits." He also ruled that the issue of whether some call recipients had consented to the calls by taking part in previous telephone conversations about religious freedom was better handled all at once. Although courts are split on what constitutes an actionable injury in these types of cases, Webber cited a North Carolina case and said that he believes that unwanted calls can constitute an injury "due to interruption, distraction, and invasion of privacy." Huckabee and two other defendants have been dismissed from the case. * Massachusetts Decision to Publish Data Breach to Impact Big Law ----------------------------------------------------------------- Gabrielle Orum Hernandez, writing for Legaltech News, reports that the Massachusetts Office of Consumer Affairs and Business Regulation announced that the agency will make information regarding data breaches affecting the state's residents going back to 2007 available online for public viewing. Updates to the state's Public Records Law signed into effect last June by Governor Charlie Baker gave the agency authority to make information of "significant interest" public. Consumer Affairs Undersecretary John Chapman, who heads the agency, said in a statement that "the Data Breach Notification Archive is a public record that the public and media have every right to view." At present, the Data Breach Notification Archive made public by the decision includes all 10 of the agency's annual reports, with each compiling information on the breached organization; date of the breach; number of state residents affected; and type of breach. Prior to the announcement, Massachusetts data breach information was available only by filing a specific public records request with the agency. Most states require that companies and organizations file notice of data breaches affecting state residents with the offices of their respective attorneys general in addition to notifying affected parties, but do not publish specific data breach information broadly. But Massachusetts is by no means the first state to make its data breach records public. California's data breach notification laws allow public access to both the data breach notification information received by the state's attorney general and the letter that is sent by a compromised government or business entity to residents affected by its breach. Washington and Oregon both updated their data breach laws in 2015 and 2016, respectively, to include requirements for public access for breaches that affect over a certain number of residents. Bess Hinson -- bess.hinson@nelsonmullins.com -- an associate at Nelson Mullins in the Privacy and Information Security practice group, said the Massachusetts' public archive could make companies vulnerable to scrutiny from plaintiffs' attorneys looking for opportunities for litigation. "It heightens the litigation risks," Ms. Hinson said. "It changes how we describe the risks to our clients." Chris Dore, a partner at Edelson, said that public data breach databases may indeed help law firms conduct background research on potential data security violations on behalf of consumers, especially in trying to demonstrate patterns of data security negligence, but are not likely to significantly change the firm's litigation strategy. Mauricio Paez -- mfpaez@jonesday.com -- partner at Jones Day, found the potential increase of plaintiff-side ligation against companies to be less pressing because recent Supreme Court rulings regarding standing in data breach cases have set a high bar for demonstrating potential or immediate harm caused by breaches. "For those breaches that are candidates for private claims by the plaintiffs bar, those tend to be the very large breaches, and those are made public anyway because they're highly publicized," Mr. Paez noted. Ms. Hinson said that the more pressing concern for companies in the trend towards public disclosure of data breaches is one of reputation, which can in turn affect the value of a company, especially going into any expected mergers and acquisitions. While companies may assume they can avoid public scrutiny, attorneys would be well served to warn corporate clients of the risks of trying to conceal data breaches from consumers. "We have to make it apparent to the company that you can try to fly under the radar, but this information is online now. Whether or not you put a notice on your website or tweet about it, it is online and it is publicly available," she cautioned. A potential hiccup in the agency's decision to make Massachusetts' data breach notification archive public is its apparent conflict with the state's data breach notification law, which prohibits companies from notifying affected state residents of the nature of data breaches. Massachusetts is currently the only state with such a provision in its data breach notification laws. Mr. Paez noted that attorneys are currently required to file information with the Massachusetts attorney general's office describing the nature of the breach. But because that information will be made publicly available under this new policy, the attorney may inevitably violate the current data breach notification law. "That's not well reconciled," he said. Mr. Paez further suggested that the Office of Consumer Affairs and Business Regulation may want to reconsider what information they provide about the nature of data breaches in order to comply with the current law. "As they make this information readily available, they may try to think about the ways that they can make available the details of the incident," Mr. Paez suggested. Will Daugherty -- wdaugherty@bakerlaw.com -- counsel at BakerHostetler, said the spirit of the data breach notification law was likely intended to protect companies from having to disclose information that would allow potential cyberattackers to mimic successful breach tactics. But that reasoning falls flat when you consider what information companies typically provide in their data breach reporting to the state. "In practice, when companies describe the nature of the incident, they are not providing details that would allow a potential hacker to copy-cat," Mr. Daugherty said. Messrs. Daugherty and Paez both suggested that the Massachusetts legislature may also want to consider making changes to the data breach notification law to bring it into alignment with the Office of Consumer Affairs and Business Regulation's new transparency policy. In the mean time, Mr. Daugherty said attorneys filing data breach notifications may want to take caution in the information they provide about the nature of breaches. "There's some gray area in the law about how much detail is required in these regulatory notices. Organizations may err on providing less detail in these notices," Mr. Daugherty said. "What makes sense is to look at the data breach notification law and to see if that should be revised so that it could include a description to individuals about the nature of the breach," Mr. Paez said, adding that most states already require companies to disclose information to consumers about the nature of data breaches. Mr. Daugherty, Mr. Paez, Ms. Hinson, and Mr. Dore all suggested that other states are very likely to adopt similar transparency policies around their data breach notifications in coming years, especially in light of the multitude of high profile data breaches in the last year. * Supreme Court Scrutinizes Credit Card Swipe Fee Laws ------------------------------------------------------ Tony Mauro, writing for Daily Business Review, reports that a U.S. Supreme Court case that was touted as a significant retail business dispute with First Amendment ramifications seemed to fizzle fast on Jan. 10 as justices questioned whether freedom of speech was involved at all. The case Expression Hair Design v. Schneiderman tests whether New York can dictate what merchants say to their customers about the different prices they charge for credit card and cash payments. Ten other states, including California, Connecticut, Florida, Massachusetts and Texas, have similar laws that prohibit merchants from imposing surcharges to cover the "swipe fee" that pay credit-card companies, laws which in some cases have been interpreted to prevent merchants from using the word "surcharge." The credit-card industry has lobbied for such laws since the 1980s, fearing that describing the higher price as a "surcharge" would discourage shoppers from using credit cards. The case argued on Jan. 10 was also viewed as a possible barometer of how the court is viewing the importance of commercial speech these days, a long-debated topic. But justices wondered aloud on Jan. 10 whether the New York law at issue actually dictates what merchants can say, or rather is a routine commercial regulation barring merchants from imposing surcharges on credit card transactions. "What speech precisely do you think is being restricted?" Justice Elena Kagan asked Deepak Gupta of Gupta Wessler, who argued on behalf of New York merchants against the law. "This statute is not written in terms of speech, it's written in terms of imposing a surcharge." Mr. Gupta said the law had the effect of prohibiting merchants, under criminal penalties, from describing their prices as a credit card surcharge, rather than calling the lower cash price a "discount," which is allowed. "Merchants in this case want to engage in truthful speech," Mr. Gupta said. "They want to disclose more." But Justice Stephen Breyer jumped in to express fear that by treating the New York law as a free speech violation, the court would be "diving headlong into an area called price regulation." Justice Breyer added, "Price regulation goes on all over the place in regulatory agencies." The disagreement over the actual meaning of the New York law persisted throughout the arguments, leading Justice Samuel Alito Jr. to say at one point, "I feel somewhat uncomfortable about ruling on the constitutionality of this statute without knowing how the New York Court of Appeals would interpret the statute. So why shouldn't we certify that question of interpretation to that court before we plunge into this First Amendment issue?" The suit was pursued in federal court, and New York courts did not weigh in on the Expression Hair Design case. The U.S. Court of Appeals for the Second Circuit ruled in 2015 that the New York law amounted to "a pricing practice" and did not violate the First Amendment. Sensing the trend of the court, Eric Feigin, an assistant to the U.S. solicitor general, urged the court to remand the case to the Second Circuit and state courts "because there's clearly some dispute about what the New York law does." Deputy New York solicitor general Steven Wu got little pushback from the court when he told the court, "The plain text of New York's statute refers only to a pricing practice and not to any speech." The exception was Justice Anthony Kennedy, who wondered if the law suppresses "truthful information," adding, "if this is so complicated, doesn't that indicate the statute is vague?" Justice Alito asked Mr. Wu whether the New York law applied to all merchants. "I mean, suppose some kids have a lemonade stand or they're washing cars and they say a glass of lemonade, $1 and then somebody comes up to them and says I'd like to buy that with a credit card. It might happen today. I have never seen anybody younger than me buy anything with cash." Amid laughter, Mr. Wu replied, "The statute has no exemption for kids selling lemonade." He added, however, that "I think prosecutorial discretion would almost certainly be exercised in that situation." * Supreme Court to Review Three Class Action Waiver Rulings ----------------------------------------------------------- Megan Lawson, Esq. -- megan.lawson@orrick.com -- and Joe Liburt, Esq. -- jliburt@orrick.com -- of Orrick, in an article for JDSupra, report that in August of 2016, the Ninth Circuit created a deeper circuit-split on whether class action waivers in arbitration agreements violate the National Labor Relations Act ("NLRA") with its decision in Morris v. Ernst & Young LLP. As expected, the Supreme Court granted review on Jan. 16 of three of the conflicting Court of Appeals decisions. It granted review of the Fifth Circuit's decision in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). The Fifth Circuit rejected the National Labor Relations Board's ("NLRB") position that class action waivers unlawfully interfere with employees' NLRA rights to engage in concerted activity, agreeing with the Second and Eighth Circuits. The Ninth and Seventh Circuits, on the other hand, adopted the NLRB's position that class action waivers violate the NLRA. The Supreme Court also granted review in Morris v. Ernst & Young, 834 F.3d 975 (9th Cir. 2016) and Epic Systems Corp. v. Lewis, 823 F.3d 1147 (7th Cir. 2016). The Seventh Circuit held that an arbitration agreement precluding collective arbitration or collective action violates section 7 of the NLRA and is unenforceable under the FAA. The Ninth Circuit agreed and concluded that compulsory class action waivers violate sections 7 and 8 of the NLRA by limiting workers' rights to act collectively, noting in footnote 4 that agreements containing an "opt-out" clause for pursuing class claims do not violate the NLRA. All three cases have been consolidated and will be argued together. ********* 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. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. 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. 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