/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170301.mbx C L A S S A C T I O N R E P O R T E R Wednesday, March 1, 2017, Vol. 19, No. 43 Headlines ABEONA THERAPEUTICS: Plaintiff Voluntarily Dismissed Class Action ABSOLUTE CARE: "Duberry" Seeks Conditional Class Certification ALCOBRA LTD: April 18 Lead Plaintiff Motion Deadline Set ALLSTATE INSURANCE: MAO-MSO Sues Over Unreimbursed Expenses AMAYA: AMF Commences Securities Class Action AMAZON.COM: "Lines" Suit to Recover Overtime Pay, Withheld Tips AMERICAN FAMILY: Obtains Favorable Ruling in Insurance Case AMERICAN SAVINGS: "Moskowitz" Suit Alleges Violations of TCPA ANTHEM INC: OPM Directed to Produce Docs in Data Breach Suit ANTHONY 57 INC: Minimum Wage, OT Pay Sought in "Losacano" Suit AUSTRALIA: Faces Class Action Over Pink Batts Home Insulation AUSTRALIA: Faces Class Action Over Jailing of Indonesian Boys AVIS: Consumer Wants Court to Recertify Class in Fraud Case BADGER LIGHTING: Class Certification Sought in "Spennetta" BELLAMY'S: Slater & Gordon Launches Investors Class Action BREAKERS RESORT: Faces Suit Over Rat Infestation CARRINGTON MORTGAGE: Court Declines to Appoint Interim Counsel CEDARS-SINAI: Faces Wage-and-Hour Class Action in California CITIGROUP: Judge Trims Euribor Antitrust Class Action CLEVELAND PUBLIC: Resumes Charging Hidden Fee COMCAST CORP: Judge Dismisses Suit Due to Limited EEOC Charge CRAZY HORSE: Appeals Decision in "Degidio" Suit to 4th Cir. CRYPTSY: Class Action Lawyers Launch New Settlement Claims Site CUSTOMER SERVICE: Overtime Pay Sought in "Elliott" Labor Suit DOORDASH INC: Edwards Seeks 5th Cir. Review of S.D. Texas Ruling DUPONT: Spelter Settlement Allocation Discussed at Hearing ECHOSPHERE LLC: "Inda" Suit Alleges Cal. Labor Code Violations ELITE GUNITE: "Jalapa" Labor Suit Seeks Overtime Pay ESURANCE: Blumenthal Nordrehaug Files Overtime Wage Class Action FACEBOOK INC: TCPA Case Ruling Blow to First Amendment Freedom FACEBOOK INC: Wants to Appeal Birthday Text Class Action Ruling FAMILY PRIVATE: Faces Class Action Over Unpaid Overtime Wages FERRARA CANDY: Faces "Iglesias" Suit Over Deceptive Labeling FLOOR AND DECOR: Settles Mislabeling Class Suit for $14-Mil. FUKUSHIMA DAIICHI: Local Servicemen May Have Radiation Poisoning FULL-TILT POKER: Appeals Court Affirms Dismissal of Class Action GLOBAL EAGLE: April 24 Lead Plaintiff Motion Deadline Set GLOBAL FITNESS: Supreme Court Won't Review Settlement Dispute GLOBAL TEL LINK: "Lee" Suit Seeks Initial OK of Class Settlement GOVERNMENT EMPLOYEES: Sues Two Plaintiffs' Attorneys HAMILTON PAINTING: Class Certification Partly Granted in "Rowe" HARDEE'S RESTAURANTS: Settles Hepatitis A Class Action HERSHEY CO: Faces Class Action Over Jolly Rancher Slack Fill HOLLYWOOD STYLE: Faces "Heres" Suit Alleging FLSA Violations HOSPITALITY VENTURES: Faces "Kelly" Suit Under FLSA, NC Law HUMANA INC: Wants Home Health Aides' OT Wage Class Action Tossed IDENTIV INC: 9th Circuit Appeal Filed in "Cunningham" Class Suit ILLINOIS: "Heritage" Suit Seeks Certification of Class INTERCONTINENTAL CAPITAL: Faces TCPA Class Action in California JANKI HOSPITALITY: "Baltazar" Sues Over Unpaid Overtime Premiums JOIE DE VIVRE: Faces "Cornelius" Suit Under FLSA, Cal. Laws JOLI VENTURES: "Anderson" Labor Suit to Recover Overtime Pay L3 TECHNOLOGIES: Settles Shareholder Class Action for $84-Mil. LAS VEGAS SANDS: Pompano Police Fund Appeals "Fosbre" Suit Ruling LINCARE INC: Wins Partial Summary Judgment in "Culley" MASTERCARD INC: NRF, RILA Want Swipe-Fee Settlement Nixed METROPOLITAN LIFE: Dismissal of "Shadow Insurance" Suit Affirmed MILWAUKEE: Police Faces Class Action Over Stop-and Frisk Policies MORTON COUNTY, ND: Dundon, et al. Files Appeal to 8th Cir. MURPHY PAINTERS: Faces "Laferte" Suit Alleging FLSA Violations NEW MIAMI, OH: Speed Camera Case Lawyers Seek $300,000 Interest NEW YORK: 2d Cir. Affirms Summary Judgment in Detainees' Suit NIKE INC: Judge Dismisses Outlet Price Tag Class Action OMNI LIMOUSINE: McSwiggin Appeals D. Nevada Ruling to 9th Circuit PALOS VERDES, CA: Judge Tosses Suit Against Lunada Bay Boys PHENIX CITY, AL: Faces Class Action Over Red Light Cameras RELIANCE TRUST: "Matthews" Suit Seeks Certification of Class RENDLE: B.C. Court of Appeal Denies Class Certification RENTECH INC: Rosen Law Firm Files Securities Class Action RENTECH INC: April 24 Lead Plaintiff Motion Deadline Set SAREPTA THERAPEUTICS: Kader Appeals D. Mass. Decision to 1st Cir. SELECT MEDICAL: "Joseph" Suit Seeks to Recoup Wages Under FLSA SMOOTH SAILING: "King" Labor Suit to Recover Overtime Pay SUSHI REPUBLIC: "Jaramillo" Suit Seeks to Recoup Wages Under FLSA SIOUX HONEY: Calif. Woman Says Sue Bee Products Not All Natural SITO MOBILE: April 18 Lead Plaintiff Motion Deadline Set SOCIETE DE TRANSPORT: Faces Suit Over Repeated Service Disruptions SPRINT COMMUNICATIONS: Faces False Advertising Class Action STERICYCLE INC: Class Cert. Granted in Sterisafe Litigation SYNGENTA AG: Loses Bid to Dismiss Suit Over GMO Corn Trait TILTWARE LLC: Cal. App. Upheld Dismissal of "Kennedy" TOYOTA MOTOR: Faces Class Action Over Defective Headlights TROPICAL SHIPPING: Antitrust Suit Transferred to Florida Court TRS STAFFING: Faces "Jackson" Suit for Unpaid Overtime Wages TRUGREEN INC: 6th Circuit Denies Arbitration in TCPA Class Action UNDER ARMOUR: Brower Piven Files Securities Class Action UNITED STATES: Trimming of Fannie Mae Stockholders' Suit Upheld UNIVERSITE LAVAL: Copyright Infringement Class Action Certified VASANT PATEL: "Mata" Litigation Alleges Violations of FLSA VERITAS ENTERTAINMENT: Class Certified Based on Concrete Injury VOLKSWAGEN AG: Executive Arrested in U.S. in Emissions Probe VOLKSWAGEN AUSTRALIA: Pressures Diesel Car Owners to Sign Waivers WABTEC CORP: Busker's Appellant's Opening Brief Due on July 17 WEN HAIR: Plaintiff's Lawyer Objects to Class Action Settlement WESTERN UNION: Robbins Geller Files Securities Class Action WORKPLACE SAFETY: Court of Appeals Revives Injured Workers' Suit WWE: Lawyers Ask Judge to Allow Discovery Phase of Recent Deaths YAHOO INC: 770,000 Hosiers Can Join Data Breach Class Action YAHOO INC: Unveils Terms of Verizon Deal Amid Data Breach Cases * Crowell Attorney Shares Highlights from New Class Action Bill ********* ABEONA THERAPEUTICS: Plaintiff Voluntarily Dismissed Class Action ---------------------------------------------------------------- Abeona Therapeutics Inc., a leading clinical-stage biopharmaceutical company focused on developing therapies for life-threatening rare genetic diseases, announced that on February 14, 2017, the plaintiff voluntarily dismissed the putative securities class action lawsuit he had recently filed against the company and certain members of its management, following the Company's demand that the case be dismissed because it lacked a valid legal and factual basis. The plaintiff based his Complaint, in its entirety, on allegations that been cut and pasted from an internet blog article. No payment or any other consideration was paid by, or on behalf of, the Company or its management in connection with the lawsuit's dismissal. "We are gratified to have brought about the prompt dismissal of this meritless case just two months after it began, as it should never have been filed at all," said Jordan D. Hershman -- jordan.hershman@morganlewis.com -- of Morgan, Lewis & Bockius LLP, lead counsel for the Company. ABSOLUTE CARE: "Duberry" Seeks Conditional Class Certification -------------------------------------------------------------- In the lawsuit styled KENDRA DUBERRY, individually and on behalf of all others similarly situated, the Plaintiff, v. ABSOLUTE CARE STAFFING HEALTH AGENCY, INC., the Defendant, Case No. 1:16-cv- 01446-NCT-JEP (M.D.N.C.), the Plaintiff moves the Court to conditionally certify collective action pursuant to the Fair Labor Standards Act (FLSA), to approve notice and to expedite consideration. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=cE4TFZZZ The Plaintiff is represented by: Brian L. Kinsley, Esq. CRUMLEY ROBERTS, LLP 2400 Freeman Mill Road, Suite 200 Greensboro, NC 27406 Telephone: (336) 333 9899 Facsimile: (336) 333 9894 E-mail: blkinsley@crumleyroberts.com - and - Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925 5297 Facsimile: (225) 231 7000 E-mail: phil@bohrerbrady.com scott@bohrerbrady.com ALCOBRA LTD: April 18 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Khang & Khang LLP disclosed the filing of a class action lawsuit against Alcobra, Ltd. Investors, who purchased or otherwise acquired shares between August 13, 2015 and January 17, 2017 inclusive (the "Class Period"), are encouraged to contact the Firm in advance of the April 18, 2017 lead plaintiff deadline. If you purchased shares of Alcobra 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. Alcobra is a biopharmaceutical company that makes and markets oral drug candidates. On January 17, 2017, Alcobra disclosed that the Company's attention deficit hyperactivity disorder drug, Metadoxine Extended Release, could not reach its primary endpoint during a Phase 3 trial. When this information was disclosed to the public, the value of Alcobra declined, causing investors serious harm. 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 ALLSTATE INSURANCE: MAO-MSO Sues Over Unreimbursed Expenses ----------------------------------------------------------- MAO-MSO RECOVERY II, LLC, a Delaware entity; MSP RECOVERY, LLC, a Florida entity; MSPA CLAIMS 1, LLC, a Florida entity, Plaintiffs, vs. ALLSTATE INSURANCE COMPANY, an Illinois Corporation; ESURANCE PROPERTY AND CASUALTY INSURANCE COMPANY, a Wisconsin Company, Defendants, Case No. 1:17-cv-01340 (N.D. Ill., February 21, 2017), alleges that Defendants failed to fulfill their statutorily- mandated duty to reimburse Medicare Advantage Organizations for medical expenses arising out of automobile accidents. As such, Plaintiffs filed this action on behalf of themselves and all other similarly situated Class Members for (1) double damages, pursuant to the Medicare Secondary Payer private cause of action; and (2) breach of contract under Plaintiffs' direct right of recovery. Allstate Assurance Company offers life insurance and variable annuity products and services. The Plaintiff is represented by: Christopher L. Coffin, Esq. David M. Hundley, Esq. Nicholas R. Rockforte, Esq. Courtney L. Stidham, Esq. PENDLEY, BAUDIN & COFFIN, LLP 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Phone: (504) 355-0086 E-mail: ccoffin@pbclawfirm.com dhundley@pbclawfirm.com nrockforte@pbclawfirm.com cstidham@pbclawfirm.com - and - Michael L. Baum, Esq. R. Brent Wisner, Esq. BAUM, HEDLUND, ARISTEI & GOLDMAN, P.C. 12100 Wilshire Blvd., Suite 950 Los Angeles, CA 90025 Phone: (310) 207-3233 Fax: (310) 820-7444 E-mail: mbaum@baumhedlundlaw.com rbwisner@baumhedlundlaw.com AMAYA: AMF Commences Securities Class Action -------------------------------------------- Sean Griffin, Esq. -- sean.griffin@langlois.ca -- and Antoine Brylowski, Esq. -- antoine.brylowski@langlois.ca -- in an article for Langlois lawyers, LLP, report that in the wake of the Autorite des marches financiers' ("AMF") institution of proceedings notably against Amaya and its Chief Executive Officer ("CEO"), David Baazov, for alleged insider trading and tipping, a class action was commenced pursuant to section 225.4 of the Quebec Securities Act ("QSA"). Petitioners essentially allege that the Respondents made unlawful use of privileged non-public information, issued false and/or misleading statements and failed to disclose material adverse facts about Amaya's business that artificially inflated the price of Amaya's stock ("Amaya class action"). To be authorized, a class action commenced further to the provisions of the QSA must (1) be brought in good faith and (2) show a reasonable possibility of success on the merits. Section 225.4 QSA provides the following: "225.4 No action for damages may be brought under this division without the prior authorization of the court. The request for authorization must state the facts giving rise to the action. It must be filed together with the projected statement of claim and be served by bailiff to the parties concerned, with a notice of at least 10 days of the date of presentation. The court grants authorization if it deems that the action is in good faith and there is a reasonable possibility that it will be resolved in favour of the plaintiff." The Supreme Court of Canada established that to meet the evidentiary burden of the second criteria of a reasonable possibility of success, petitioners must offer sufficient and credible evidence in support of their action. As determined by the Supreme Court of Canada, the reasonable possibility criteria under section 225.4 QSA requires a higher threshold than the authorization criteria to institute a class action under the usual rules of Quebec civil procedure: "[39] A case with a reasonable possibility of success requires the claimant to offer both a plausible analysis of the applicable legislative provisions, and some credible evidence in support of the claim. This approach, in my view, best realizes the legislative intent of the screening mechanism: to ensure that cases with little chance of success -- and the time and expense they impose -- are avoided. I agree with the Court of Appeal, however, that the authorization stage under s. 225.4 should not be treated as a mini-trial. A full analysis of the evidence is unnecessary. If the goal of the screening mechanism is to prevent costly strike suits and litigation with little chance of success, it follows that the evidentiary requirements should not be so onerous as to essentially replicate the demands of a trial. To impose such a requirement would undermine the objective of the screening mechanism, which is to protect reporting issuers from unsubstantiated strike suits and costly unmeritorious litigation. What is required is sufficient evidence to persuade the court that there is a reasonable possibility that the action will be resolved in the claimant's favour."1 Request for communication of documents In the Amaya class action, the Petitioners presented a pre- authorization motion before the Superior Court to obtain the communication of specific documents from the Respondents ("Motion"). The Motion was heard by the Honourable Babak Barin, JSC. In the Motion, the Petitioners argued that they needed these documents from Amaya prior to the authorization hearing to meet their evidentiary burden and persuade the Court that their claim had a reasonable possibility of success on the merits. They therefore filed a request pursuant to articles 20 and 251 of the Quebec Code of Civil Procedure ("CCP") to compel disclosure of documents, such as Amaya's "Disclosure, Confidentiality and Trading Policy" and D&O insurance policies. The relevant CCP articles read as follows: "20. The parties are duty-bound to co-operate and, in particular, to keep one another informed at all times of the facts and particulars conducive to a fair debate and make sure that relevant evidence is preserved. They must, among other things, at the time prescribed by this Code or determined in the case protocol, inform one another of the facts on which their contentions are based and of the evidence they intend to produce. 251. A party in possession of real evidence is required, on request, to present it to the other parties or, subject to the conditions agreed with them, to submit it to an expert; the party is also required to preserve, until the end of the trial, the real evidence or, if applicable, a suitable representation that shows its current state. A third person holding a document relating to a dispute or in possession of real evidence is required, if so ordered by the court, to disclose it, present it to the parties, submit it to an expert or preserve it." Justice Barin comments on Petitioners' request as follows: "[21] To be clear, the issue of whether or not there is credible and sufficient evidence that demonstrates that Petitioners' claim has a reasonable possibility of success on the merits is not at this juncture before the Court. [22] What is before the Court and what Petitioners submit it must decide based on the rules of civil procedure applicable in Quebec is whether Petitioners are, at the pre-authorization stage, allowed to obtain disclosure of certain information and documents they claim is needed to unbolt the lock that has been placed on the gate before them. The Court underlined that the CCP supplements the silence of other laws in the matters it addresses, including the QSA. It also emphasized that the CCP "requires the parties to be open with one another, keep each other informed and exercise their respective rights with the spirit of cooperation [. . .]"[3] and made reference to articles 221 and 222 CCP which pertain to pre-trial examinations to state that the legislature is "interested in promoting the early search for truth rather than postponing it for procedural or other reasons"4. Justice Barin highlighted that it would be unfair and unreasonable, in light of the Supreme Court's requirement that the Petitioners provide credible and sufficient evidence to demonstrate that their claim has a reasonable possibility of success at trial, to prevent them from having a way to gain access to such sufficient and credible evidence: [50] Even though a class action is a procedural vehicle and not a substantive right, it would be unfair on the one hand to request that a petitioner in a section 225.4 class action, furnish sufficient evidence to satisfy a requirement set out by the Supreme Court but then not permit it to have a justified, reasonable and measured opportunity to do so. [51] To put it differently, if a lock has been placed on the gate through which a section 225.4 petitioner must pass before being permitted to continue with a class action, then that petitioner must be given a fair opportunity to try and unbolt that lock. [52] To prevent a petitioner from resorting to such a possibility would not only deprive it of its procedural rights as they are set out in article 221 CCP for example -- such a prohibition would certainly confront the specific cooperation direction set tout in article 20 -- but it would also deprive the petitioner of its due process and fairness rights. That being said, the Court highlighted that in its analysis of the Motion, it must ensure that the Petitioners do not conduct a fishing expedition and that the scope of disclosure is limited to avoid harming the interests of third parties, and moreover, to ensure that the conduct of the proceedings is not delayed, complicated or jeopardized by the request for evidence that does not at the preauthorization stage assist in establishing the reasonable possibility of success at trial. To this end, Justice Barin elaborated a three (3) -- step test that must be satisfied by the Petitioners to obtain disclosure of evidence at the pre- authorization stage. The burden of convincing the Court that these 3 criteria are satisfied relies on the Petitioners: 1) the evidence sought must exist and must be described/identified with reasonable accuracy; 2) the evidence sought must be relevant; 3) the evidence must be necessary on a prima facie basis to permit Petitioners to establish before an "unprejudiced mind seeking the truth" that the claim has a reasonable possibility of success at trial. In the context of the Motion, the Court found that the disclosure of the requested information not only respected the requirements of co-operation and openness set out in article 20 CCP, but also the considerations of practicality and fairness that are essential for the proper, efficient and cost-effective administration of justice in Quebec. Take Aways Justice Barin's findings will have an impact on the conduct of securities class actions commenced under the QSA. It now provides petitioners with additional means to strengthen their case with information and documents which they do not have at the time of the filing of their motion for authorization of a class action. It is to be expected that petitioners will invest a great deal of effort to obtain documents prior to authorization to meet the relevant evidentiary burden. Although the Court highlights in its judgment that 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 question6, it is to be expected that such requests will inevitably lengthen the proceedings and have an impact on the costs of defending against such securities class actions. One can also expect that this judgment will have an impact on the petitioners' counsel pre-certification strategy in class actions outside the scope of the QSA. AMAZON.COM: "Lines" Suit to Recover Overtime Pay, Withheld Tips --------------------------------------------------------------- Jeffrey Lines, individually and on behalf of all others similarly situated, Plaintiffs, v. Amazon.Com, Inc.; Tenet Concepts, LLC and John Does 1-5, Defendants, Case No. 1:17-cv-00072 (W.D. Tex., February 2, 2017), seeks to recover unpaid and incorrectly paid wages for all hours worked in a workweek, unpaid overtime, earned and unlawfully retained tips, liquidated damages, interest and attorney fees and costs pursuant to the Fair Labor Standards Act and the Texas Labor Code. Tenet Concepts maintains a service contract with Amazon.com to provide delivery services of Amazon's merchandise. Lines worked as a delivery driver for Tenet and claims to be denied overtime pay and withheld tips. Plaintiff is represented by: Jay D. Ellwanger, Esq. Holt Major Lackey, Esq. DINOVO PRICE ELLWANGER & HARDY LLP 7000 North MoPac Expressway, Suite 350 Austin, TX 78731 Tel: (512) 539-2626 Fax: (512) 539-2627 Email: jellwanger@dpelaw.com hlackey@dpelaw.com - and - Robert J. Valli, Jr., Esq. Sara Wyn Kane, Esq. James Vagnini, Esq. VALLI KANE & VAGNINI, LLP 600 Old Country Road, Suite 519 Garden City, NY 11530 Tel: (516) 203-7180 Fax: (516) 706-0248 AMERICAN FAMILY: Obtains Favorable Ruling in Insurance Case ----------------------------------------------------------- Wystan Ackerman, Esq. -- wackerman@rc.com -- of Robinson+Cole, in an article for JDSupra, reports that there have been key developments in the numerous class actions against the insurance industry involving the application of depreciation to the labor cost component of estimated replacement cost value in determining actual cash value under homeowners and commercial property insurance policies. The Nebraska Supreme Court recently addressed this issue on a certified question from that state's federal district court. It ruled in favor of the insurer, holding that an insurer may apply depreciation to the cost of labor when determining actual cash value under a standard policy that did not define the term "actual cash value." In Henn v. American Family Mutual Insurance Company, No. S-16-597, 295 Neb. 859 (Neb. Feb. 17, 2017), the court concluded that a definition of "actual cash value" was not necessary and that term was unambiguous where Nebraska law had long defined that term as "the value of the property in its depreciated condition." The Nebraska courts had also recognized several approaches to estimating actual cash value, including a fair market value approach and a broad evidence rule approach, under which a finder of fact may consider all relevant facts and circumstances. Agreeing with the Oklahoma Supreme Court, the court held that "an insured is properly indemnified when the amount calculated for actual cash value equals the depreciated value of the property just prior to the loss, which includes both materials and labor." The court further explained that "payment of the full amount of labor" in an actual cash value payment, as the plaintiffs sought, "would amount to a prepayment of benefits to which the insured is not yet entitled." This decision is likely to be helpful to the insurance industry in defending the numerous putative class actions pending involving this issue. AMERICAN SAVINGS: "Moskowitz" Suit Alleges Violations of TCPA ------------------------------------------------------------- CRAIG MOSKOWITZ, on behalf of himself and all others similarly situated, Plaintiff, vs. AMERICAN SAVINGS BANK, F.S.B., Defendant, Case No. 3:17-cv-00307 (D. Conn., February 21, 2017), alleges that Defendant, using an automatic telephone dialing system, caused to be made at least four calls to Plaintiff that delivered text messages to Plaintiff's cell phone without Plaintiff's prior express consent in violation of the Telephone Consumer Protection Act. AMERICAN SAVINGS BANK, F.S.B. is a Honolulu, Hawaii-based financial institution. The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plaines, NY 10606 Phone: 914-358-5345 Fax: 212-571-0284 E-mail: Aytan.Bellin@bellinlaw.com ANTHEM INC: OPM Directed to Produce Docs in Data Breach Suit ------------------------------------------------------------ Judge Amit P. Mehta of the U.S. District Court for the District of Columbia granted in part and denied in part the lead plaintiffs' motion to compel, in the case entitled IN RE: ANTHEM, INC. DATA BREACH LITIGATION, Case No. 16-mc-02210 (APM) (D.D.C.). Anthem, Inc., provides health benefits and health insurance services to millions of individuals through a nationwide network of affiliate and third-party entities. To provide these services, Anthem, its affiliates, and the third-party entities maintain a common computer database of current and former members' personal information. This information includes, but is not limited to, individuals' Social Security numbers, home addresses, and confidential medical information. Amongst those Anthem serves are federal employees. The United States Office of Personnel Management (OPM) negotiates and administers the federal government's contracts with insurance providers, including Anthem. Anthem, Inc. suffered a massive cyberattack on its computer systems sometime between December 2014 and January 2015. The hackers stole personally identifiable information and personal health information of approximately 80 million people. Amongst those whose information was compromised were federal employees who receive their health insurance through the Federal Employee Health Benefits Program. Some individuals whose information was compromised filed suit against Anthem, Inc., its affiliates, and involved third-party corporations, ultimately leading to consolidation of those cases in the form of a class-action, multidistrict litigation in the United States District Court for the Northern District of California. On May 13, 2016, lead plaintiffs in the multidistrict litigation issued a subpoena for documents to the United States Office of Personnel Management ("OPM") seeking records relating to OPM's information technology systems audits of Anthem, Inc., and its affiliates, both before and after the cyberattack. The agency released a portion of the documents responsive to the subpoena but withheld others, claiming that the deliberative process privilege protected all the withheld documents from disclosure and the law enforcement privilege also protected certain of those documents. Lead plaintiffs filed a motion to compel OPM to disclose the withheld records. Judge Mehta finds that most of documents withheld by OPM are protected by the deliberative process privilege. Some of the withheld documents or portions thereof, however, contain only factual information. As to those records or portions of records, the court concludes that neither the deliberative process nor the law enforcement privilege applies. Accordingly, Judge Mehta granted in part and denied in part the lead plaintiffs' motion to compel. The court concludes the audit workpapers that are screenshots of internal auditing procedures (Anthem_000023, Anthem_00024) and the e-mails between and amongst OPM employees (Anthem_00025- Anthem_00267) are privileged and will not be disclosed. The court orders partial disclosure of the three meeting write-ups pertaining to Anthem's configuration management (Anthem_00001- Anthem_00004), network security (Anthem_00011-Anthem_00016), and special investigations and fraud (Anthem_00021-Anthem_00022). Further, the Government is directed to disclose in full the written reports pertaining to meetings on Anthem's "enterprise security" and "logical access" (Anthem_00006, Anthem_00009-10). Lastly, the court orders disclosure in full of the audit workpapers comprising the sign-in sheets (Anthem_00005, Anthem_00017); e-mail request for a policy statement from Anthem (Anthem_00018-Anthem_00020); and information request memoranda between OPM and Anthem (Anthem_00007, Anthem_00008). A copy of Judge Mehta's memorandum opinion dated February 21, 2017, is available at https://goo.gl/N4E7rW from Leagle.com. OFFICE OF PERSONNEL MANAGEMENT, Non-Party Respondent, represented by Joseph Evan Borson, U.S. DEPARTMENT OF JUSTICE ALL PLAINTIFFS, Plaintiff, represented by Andrew N. Friedman -- afriedman@cohenmilstein.com -- Sally M. Handmaker -- shandmaker@cohenmilstein.com -- at COHEN MILSTEIN SELLERS & TOLL PLLC; Patrick K. Slyne -- pkslyne@ssbny.com -- at STULL, STULL & BRODY ANTHONY 57 INC: Minimum Wage, OT Pay Sought in "Losacano" Suit -------------------------------------------------------------- Laura Losacano, on behalf of herself and other employees similarly situated, Plaintiff, v. Anthony 57, Inc. Anthony Serrago and Sabal Springs Homeowners' Association, Inc., Defendants, Case No. 2:17- cv-00084, (M.D. Fla., February 8, 2017), seeks unpaid minimum wages due, liquidated damages, attorney's fees and costs, post- judgment interest and all other and further relief pursuant to the Fair Labor Standards Act and Article 10 Sec. 24 of the Florida Constitution (Florida Minimum Wage Amendment). Sabal operates a homeowners' association in Fort Myers, Florida which consists of a gated residential community that has its own restaurant called "Anthony's on the Green" where Plaintiff worked as a food and drink server. Plaintiff is represented by: Peter Bober, Esq. BOBER & BOBER, P.A. 1930 Tyler St. Hollywood, FL 33020 Phone: (954) 922-2298 Fax: (954) 922-5455 Email: peter@bober1aw.com sarnara@boberlaw.com AUSTRALIA: Faces Class Action Over Pink Batts Home Insulation ------------------------------------------------------------- The Australia Associated Press reports that a class action on behalf of businesses who lost out after the Commonwealth pink batts home insulation was canned alleges the federal government engaged in unconscionable conduct. Installers, manufacturers and business owners lost millions or were forced to close after the then-Labor government terminated the problematic Home Insulation Program following the deaths of four workers in 2009 and 2010. They are suing the Commonwealth for compensation in the Victorian Supreme Court, with a trial expected to take place next year. The Commonwealth set up, then shut down, the Home Insulation Program, a Rudd government initiative designed to stimulate the economy during the global financial crisis. The plaintiffs allege they suffered financially because the program was terminated earlier than expected. They have argued it was unconscionable for the Commonwealth to exercise its legal right to terminate the scheme before the expiration date, or to encourage the industry to invest in expanding their businesses to make, supply and install insulation. However, the Commonwealth has argued it was at liberty to make and change policy for any reason, based on what is in the national interest. On Feb. 23, the Supreme Court made rulings on the finer details that will be litigated at trial. A royal commission set up by the coalition government and the subsequent establishment of a compensation scheme has not compensated businesses, lawyers for more than 100 people have said. AUSTRALIA: Faces Class Action Over Jailing of Indonesian Boys ------------------------------------------------------------ Samantha Hawley, writing for ABC, reports that the central Jakarta District Court was on Feb. 23 scheduled to begin hearing a class action against the Australian Government over allegations Indonesian boys jailed for people smuggling were held in adult prisons. With the support of Indonesia's National Commission of Child Protection (KPAI), lawyer Lisa Hiariej will argue the case on behalf of the group of 115 Indonesians, who were allegedly either jailed or held in immigration detention as juveniles. "They are very scared, they are not criminals," Ms Hiariej told the ABC ahead of the court appearance. Ms Hiariej alleged 31 boys aged between 13 and 17 years old were jailed in adult prisons in Sydney, Melbourne, Brisbane and Perth between 2008 and 2012 for crewing asylum seeker boats. Ms Hiariej said a further 84 boys spent more than three months in immigration detention, which she believes was against the law. The court will hear the children were themselves victims of people smuggling and they are seeking millions of dollars in compensation from the Australian Government. Three judges will preside over the civil case. "The lawyers found out they were underage by going to their villages and finding their birth certificates," Ms Hiariej said. She said she had the 115 birth certificates to prove the case. AVIS: Consumer Wants Court to Recertify Class in Fraud Case ----------------------------------------------------------- Rick Archer and Nathan Hale, writing for Law360, report that an English consumer who attempted to lead a class action accusing Avis and subsidiary Budget Rent-A-Car of fraudulently offering supplemental insurance in their rental car contracts asked the Eleventh Circuit to recertify her class on Feb. 21. In an appeal brief Heather Venerus claims the district court abused its discretion when it dismissed the class, saying she had provided sufficient proof all of the members had the same causes of action against Avis Budget Car Rental LLC and Budget Rent-A-Car System Inc. "Venerus . . . contrary to the district court's finding, clearly has standing to represent this proposed class, and the putative class members, [who] all executed a common rental agreement," the brief said. Ms. Venerus sued the car rental companies in 2012, claiming that after she got into an accident in September 2010 while driving a car she rented from Budget in Florida, she determined that contrary to the details of her reservation, the rental companies had failed to actually obtain a $1 million supplemental liability insurance policy from ACE American Insurance Co. to cover injuries she and her passenger suffered. The court certified and then, on reconsideration, decertified the class and issued summary judgment dismissing third-party contract claims and state deceptive trade practices. Ms. Venerus was ultimately granted a summary judgment on breach of contract and was awarded $174.16 at a bench trial. In her appeal brief Ms. Venerus argued Budget had claimed the class had no commonality because of collateral contracts and agreements modifying the standard rental agreement, but that all of the class members' rental agreements contained identical representations that Budget would provide the renter with ACE supplemental insurance. "Further, the terms of the rental agreement and the applicable law reject any attempt by defendants to modify this obligation through collateral documents, the identity and the contents of which have never been identified," she said. She also argued Budget''s failure to obtain the policy in the contract supported the claims of violations of the Florida Deceptive and Unfair Trade Practices Act and Civil Remedies for Criminal Practices Act, which the court had dismissed. "The defendants' business practice, now unearthed, of purporting to sell legitimate ACE coverage, and instead providing their own so called 'coverage,' constitutes an extraordinary abuse of the defendants' licensing privilege under Sec. 626.321 Fla. Stat., to sell the legal coverage," she said. "At a minimum, this practice constitutes the illegal transacting of insurance in Florida, thus giving rise to an appropriate claim for disgorgement/restitution and a viable CRCPA claim, neither of which is preempted by Sec. 624.155 Fla. Stat." Counsel for Ms. Venerus and Budget did not immediately respond to requests for comment on Feb. 22. Ms. Venerus is represented by Christopher J. Lynch of Hunter Williams & Lynch PA and Edmund A. Normand of Normand Law PLLC. Avis Budget is represented by Philip Glatzer -- pglatzer@marlowadler.com -- of Marlow Connell Abrams Adler Newman & Lewis and Robert T. Wright -- rwright@stroock.com -- Irene Oria -- ioria@stroock.com -- and Brian C. Frontino -- bfrontino@stroock.com -- of Stroock & Stroock & Lavan LLP. The case is Heather Venerus v. Avis Budget Car Rental LLC et al., case number 16-16993 in the United States Court of Appeals for the Eleventh Circuit. BADGER LIGHTING: Class Certification Sought in "Spennetta" ---------------------------------------------------------- In the lawsuit captioned SPENNETTA FAMILY CARE CHIROPRACTIC, S.C., on behalf of plaintiff and the class, the Plaintiff, v. BADGER LIGHTING AND SIGNS, LLC, and JOHN DOES 1-10, the Defendants, Case No. 2:17-cv-00218-PP (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class: For purposes of Count I, alleging violation of the Telephone Consumer Protection Act: "(a) all persons with fax numbers (b) who, on or after a date four years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant Badger Lighting and Signs, LLC, promoting its goods or services for sale (d) and which did not contain an opt out notice."; and For purposes of Count II, alleging violation of Wisc. Stats., and Count III, alleging conversion: "(a) all persons with Wisconsin fax numbers (b) who, on or after a date six years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant Badger Lighting and Signs, LLC, promoting its goods or services for sale (d) and which did not contain an opt out notice." The Plaintiff further asks the Court that it be appointed class representative and that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the class. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, says the Plaintiff, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=eJUngh0O The Plaintiff is represented by: Daniel A. Edelman, Esq. Heather Kolbus, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739 4200 Facsimile: (312) 419 0379 BELLAMY'S: Slater & Gordon Launches Investors Class Action ---------------------------------------------------------- Daniel Palmer, writing for The Australian, reports that Slater and Gordon (SGH) has formally launched class action proceedings against troubled infant milk group Bellamy's in the Federal Court on Feb. 23. The expected filing of the claim comes a month after the law firm said it had secured the required backing from litigation funder IMF Bentham. At the time it had been expected the formal proceedings would begin at some stage in the next "couple of months". It promises to be one of two class actions Bellamy's (BAL) could face, with Maurice Blackburn last month noting it had received the funding required to press on with a similar class action. There was talk the proceedings could be "open class", which would mean Bellamy's shareholders could be automatically included regardless of whether they joined the suit. Slater and Gordon on Feb. 23 revealed hundreds of aggrieved investors had already signed up to the class action, with the proceedings open to shareholders who acquired stock between April 14, 2016 and December 9, 2016. That period largely preceded a troubling double downgrade from the company that battered its share price and forced the resignation of chief executive Laura McBain in early January. The class action alleges Bellamy's made "misleading statements" on its growth strategy in China in light of a shifting regulatory environment and "failed to keep the market informed" on its declining market share in Australia. "Mum and dad investors placed their faith in the Bellamy's story and have been horrified by the revelations of the past few months," Slater and Gordon senior class action lawyer Mathew Chuk said. "Our investigation has confirmed our initial view that Bellamy's made misleading statements about its continuing growth in circumstances where it had no proper basis to do so, particularly given the likely impact of regulatory reform in China. "More and more aggrieved shareholders are registering for this class action every day and the commencement of proceedings today is a significant step towards recovery of their losses." Funder IMF Bentham believes potential losses could be as high as hundreds of millions of dollars to impacted shareholders. BREAKERS RESORT: Faces Suit Over Rat Infestation ------------------------------------------------ Lance Hernandez at the Denver Channel reports twelve tenants at the Breakers Resort have filed a class action lawsuit against the owners and managers of the sprawling rental complex at East Mississippi Avenue and South Valentia Street. The lawsuit alleges that BH Management initially turned a blind eye to a growing rat infestation until tenants began complaining about widespread damage to the electrical wiring of their cars. Now, some tenants are suffering health issues, which they link to the pesticide application process used by BH Management to control the infestation. Tanya Collins says she's lived at the Breakers for three years and never had any problems until early January, when her hair started falling out in clumps. Collins told Denver7 that she used a hot tub in the complex just after Christmas. "It wasn't that hot," she said, " . . . so I turned around and exited." That's when she noticed a dead rabbit lying next to the tub. Collin's attorney, Ian Hicks, said his investigation showed the dead rabbit had been floating in the tub a week before Collins took a dip. He thinks the rat poison that killed the rabbit was still inside the water. "The water had never been changed," he said. "Rat poison is proven by case studies to cause hair loss." Collins said she asked maintenance workers to pick up the dead rabbit and to turn up the heat for the hot tub. Four days later, she found a dead rat near her vehicle. "That's when I decided to see if the dead rabbit was still by the hot tub," she said. "It was still lying there, four days later." Car fires, airbag explosions The lawsuit alleges that cars have caught fire, airbags have exploded and that a newborn infant inhaled the stench of putrefied rats in the family car until it was determined that the car had become the rats' tomb. Hicks said another plaintiff, Robert Budnicki, was told by one of the complex managers to wrap electrical tape around the wiring in his vehicle, that had been chewed bare by rats. "The Jeep dealer and his insurance agent said, 'You can't do that,'" Hicks said. "Multiple appraisers looked at this and said if you drive the vehicle, the airbag could go off." That's apparently what happened. Hicks said Budnicki had just dropped off his daughter who was in the front seat. Within ten seconds, his airbag went off. "It shattered his windshield," Hicks said. "He's been driving his truck with a broken windshield and a deployed airbag, for several weeks. Hicks told Denver7 that some tenants were told BH's insurance would take care of the damage to their cars. Most never received a check. Hicks said the excuse was that the plaintiffs didn't give the right address. He said he doesn't think checks were sent at all. "We'll find out during the lawsuit," he said. "Insurance companies have to keep records for tax purposes." Tenant threatened with eviction Another plaintiff, who drew attention to the problem, and who tried to help other tenants get reimbursed for the damage to their cars, says he was threatened by the other manager. Christian Woehler told Denver7 in January that the original pest control company haphazardly scattered First Strike soft bait throughout the complex. First Strike contains an active ingredient known as Difethialone. Difethialone is regulated by the Environmental Protection Agency and should only be applied "within tamper-resistant bait stations in areas where pets or children are likely to be found." According to the lawsuit, the exterminator and others, "acting at the direction and control of manager Mike Holt, indiscriminately hurled hundreds, if not thousands of packets of First Strike Poison against exterior walls, into bushes, onto grass, next to sidewalks, onto front and back porches, and virtually every location regularly utilized by adults, children, pets and wildlife, across the entire neighborhood." Within days, rats of all shapes and sizes, many measuring 12-plus inches without the tail, and weighing approximately five pounds, began staggering into the open and then expiring. Woehler says he repeatedly contacted Mr. Holt and BH to have them remove the dozens of festering carcasses, but no one responded. After Denver7 ran a story about the damage to cars, and the improperly applied rat bait, one of the managers, Ashley Wooten- Shelite, contacted Woehler by phone. "She told Christian she was there to make him happy," the lawsuit states, but the conversation didn't end well. "She told me at the end of our conversation that if I talked to anyone about this, I was going to be processed for eviction." The plaintiffs have submitted 27 claims for relief ranging from negligence to unjust enrichment and deceit. Hicks said BH's entire operation is geared toward one thing. "We believe BH Management came in, in October of 2016, with one mission -- to cut costs at any expense," he said. "They closed club houses and drastically reduced amenities, all while charging premium rents." Breakers Response Denver7 reached out to the Breakers and BH Management for reaction to the lawsuit. Alana Watkins of VOCA PR emailed a reply which states: "The Breakers is aware that legal actions have been filed in the Denver County District Court. We are investigating the allegations and will provide no further comment pertaining to the legal proceedings of this matter." CARRINGTON MORTGAGE: Court Declines to Appoint Interim Counsel -------------------------------------------------------------- David L. Luck, Esq. -- dluck@carltonfields.com -- and D. Matthew Allen, Esq. -- mallen@carltonfields.com -- of Carlton Fields, in an article for Mondaq, report that even before certification of a class under Rule 23(a)-(b), the district court has authority to appoint "interim counsel" under Rule 23(g)(3) "to act on behalf of a putative class before determining whether to certify the action as a class action." However, as the District of New Jersey recently explained, "neither the federal rules nor the Advisory Committee Notes expressly" state the analysis used to determine when "interim counsel" should be appointed and which counsel might be appropriate. Nevertheless, several federal courts have used the same analysis that applies under Rule 23(g)(1) regarding the post-certification appointment of actual class counsel. This includes consideration of: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. These factors are not exhaustive, and the district court may consider "any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Santos, 2017 WL 215969, at *1. As the court explained, the appointment of interim counsel typically occurs in cases "in which a large number of putative class actions have been consolidated or are otherwise pending before a single court." Thus, if "the lawyer who filed the suit is to be the only lawyer seeking appointment as class counsel, appointing interim class counsel may be unnecessary." Id. at *2. In Santos, the district court ultimately declined to appoint interim counsel regarding a putative class that challenged alleged kickbacks as to force-placed hazard insurance because it was apparent that the plaintiff's counsel was not, in fact, seeking to streamline management of the alleged class through such an appointment. Instead, they were seeking to use appointment as interim counsel to increase their leverage in opposing efforts to settle overlapping, competing putative class actions pending in other federal district courts. The court held this was improper: "Appointment of interim class counsel is not the proper vehicle by which to oppose settlement." Id. at * 3. There were other more appropriate, direct avenues available for plaintiff's counsel to challenge the attempted settlements in the overlapping, competing actions pending in other federal jurisdictions -- seeking appointment as interim counsel was not the appropriate relief. Santos v. Carrington Mortg. Servs., LLC, No. 215CV864WHWCLW, 2017 WL 215969 (D.N.J. Jan. 18, 2017). CEDARS-SINAI: Faces Wage-and-Hour Class Action in California ------------------------------------------------------------ Dani Kass, writing for Law360, reports that a former Cedars-Sinai Medical Center employee has accused the hospital in a potential class action in California state court of withholding wages, not paying overtime, forcing employees to work during breaks and other wage-and-hour violations. Jerry Thomas Jr.'s Feb. 17 suit alleges several ongoing violations of California's labor code, which he says stretch back at least four years. He is seeking restitution for unpaid wages and other monetary damages, in addition to injunctive relief against similar practices. "As a result of defendants' unfair and unlawful business practices, defendants have reaped unfair and illegal profits during the class period at the expense of plaintiff, class members and members of the public," the complaint states. "Defendants should be made to disgorge their ill-gotten gains and to restore them to plaintiff and class members." First, Mr. Thomas says the hospital didn't provide rest periods, and employees were not given an extra hour of compensation for days without rest periods, as required under state law. He also alleges Cedars-Sinai didn't pay employees minimum wage for all hours worked, especially when employees had to work through breaks. The complaint states that Cedars-Sinai didn't pay employees overtime or didn't pay overtime at the proper rate, which depending on the circumstances was one-and-a-half times the normal rate, or double the normal rate. When employees quit, they're supposed to be paid all wages they've accrued no later than 72 hours after quitting, and if the company willfully doesn't pay, then the employee receives a waiting time penalty, in which they're still compensated for up to another 30 days, according to the suit. Cedars-Sinai failed to do either, the complaint states. On top of these alleged wrongdoings, the hospital didn't properly maintain records, including how many hours each employee worked daily, how much they should be paid, deductions, time records and itemized statements, Mr. Thomas alleges. Those itemized wage statements should have included gross wages earned, total hours worked, deductions made, net wages earned, the name and address of the employer and applicable hourly rates, the suit states. Cedars-Sinai declined to comment on the suit. Mr. Thomas is represented by Matthew J. Matern and Joshua D. Boxer of the Matern Lawn Group PC. Counsel information for Cedars-Sinai was not immediately available. The case is Jerry Thomas Jr. et al. v. Cedars-Sinai Medical Center et al., case number BC651054, in the Superior Court of the State of California, County of Los Angeles. CITIGROUP: Judge Trims Euribor Antitrust Class Action ----------------------------------------------------- Cara Bayles, writing for Law360, reports that a New York federal judge on Feb. 21 trimmed a putative class action brought by investors who say they lost money in derivatives transactions because big banks conspired to manipulate Euribor, the euro interbank offered rate. But two plaintiffs, including a California retirement fund, still have claims against JPMorgan and Citigroup. U.S. District Judge Kevin Castel cut four plaintiffs from the suit, saying they lacked standing, as well as six foreign defendants who didn't fall under his jurisdiction because their allegedly illegal activities weren't tied to the U.S. He also dismissed all Racketeer Influenced and Corrupt Organizations Act and Commodity Exchange Act claims from the suit and cut three out of four Sherman Act claims in the case. Now the two remaining plaintiffs, FrontPoint Australian Opportunities Trust and the California State Teachers' Retirement System -- the only ones that could allege direct transactions with any defendants -- will move forward with one Sherman Act claim and common-law claims of unjust enrichment and breach of the implied covenant of good faith and fair dealing against Citigroup and J.P. Morgan. Judge Castel said in his 100-page order on Feb. 21 that the fact U.S. and European investigators had already investigated antitrust claims over Euribor made it appropriate to reign in claims from plaintiffs who had no direct dealings with the defendant -- one individual, Stephen Sullivan, and three investment funds, White Oak Fund LP, Sonterra Capital Master Fund Ltd. and FrontPoint Partners Trading Fund LP -- saying their damages wouldn't be discernable. "More than $4 billion in penalties have already been levied over defendants' alleged manipulation of the Euribor," the judge wrote. "Given the lack of direct dealings by four of the six plaintiffs, the nature of the market, the vast size of the umbrella claims and the significant risk of 'overkill' type damages, the existence of governmental enforcement actions are afforded some weight." The investors first sued the banks in Illinois federal court in February 2013, before the case transferred to New York that April. The suit claims that from June 2005 to March 2011, the banks conspired to fix Euribor, which is used to reflect the interest rate charged on short-term loans of unsecured funds in euros between prime banks and the wholesale money market. The European Banking Federation, an unregulated trade association, forbids banks from coordinating or submitting false data for their daily terms reports that inform the Euribor rate. According to the complaint, the scheme flouting those restrictions was orchestrated by Christian Bittar of Deutsche Bank and Philippe Moryoussef of Barclays and later RBS. Last month, the plaintiffs reached a $45 million settlement with HSBC Bank PLC, and in December 2015, the court granted preliminary approval to a $94 million settlement with Barclays PLC. According to the Feb. 21 order, the plaintiffs also voluntarily dismissed BNP Paribas S.A. and Deutsche Bank AG and DB Group Services from the case. The remaining defendants -- the UBS, Rabobank, Credit Agricole, RBS, Societe Generale and ICAP -- were all deemed to be out of jurisdiction because their connections to the U.S. were too tenuous. While all the banks had branches in the U.S., Judge Castel said for those defendants, the conduct at issue in the case took place abroad, and without a "nucleus" in the states, it was outside his jurisdiction. Because Citigroup and J.P. Morgan Chase & Co. are Delaware corporations with headquarters in New York, the claims against them stuck. Representatives and attorneys for JPMorgan and the plaintiffs did not immediately respond to requests for comment on Feb. 16. Citi declined to comment. The investors are represented by interim co-lead class counsel Vincent Briganti -- vbriganti@lowey.com -- Geoffrey M. Horn -- ghorn@lowey.com -- Peter D. St. Phillip and Michelle E. Conston of Lowey Dannenberg Cohen & Hart PC and Christopher Lovell -- CLovell@lshllp.com -- Gary S. Jacobson -- GSJacobson@lshllp.com - - and Ian T. Stoll of Lovell Stewart Halebian Jacobson LLP. Other counsel includes Joseph J. Tabacco -- jtabacco@bermandevalerio.com -- Patrick T. Egan -- PEgan@BermanDeValerio.com -- and Todd A. Seaver -- tseaver@bermandevalerio.com -- of Berman DeValerio, Brian P. Murray -- bmurray@glancylaw.com -- and Lee Albert -- lalbert@glancylaw.com -- of Glancy Prongay & Murray LLP, and David E. Kovel -- dkovel@kmllp.com -- of Kirby McInerney LLP. Citibank is represented by Lev Louis Dassin -- ldassin@cgsh.com -- and Jonathan Samuel Kolodner -- jkolodner@cgsh.com -- or Cleary Gottlieb Steen & Hamilton LLP and by Andrew Arthur Ruffino -- aruffino@cov.com -- and Alan M. Wiseman -- awiseman@cov.com -- of Covington & Burling LLP. JP Morgan is represented by Francis John Acott -- francis.acott@stblaw.com -- Michael Steven Carnevale -- michael.carnevale@stblaw.com -- Jeffery Li Ding, Abram Jeremy Ellis, Paul Christopher Gluckow -- pgluckow@stblaw.com -- Alexander Nuo Li, Omari Largos Royter Mason, Thomas C. Rice, Elizabeth Jane Shutkin and Rachel Serenity Sparks Bradley of Simpson Thacher & Bartlett LLP. The case is Sullivan v. Barclays PLC, et al., case number 1:13-cv- 02811, in the U.S. District Court for the Southern District of New York. CLEVELAND PUBLIC: Resumes Charging Hidden Fee --------------------------------------------- Leila Atassi at Cleaveland reports court records show that city- owned utility Cleveland Public Power recently resumed the practice of charging its customers a hidden fee -- despite public promises that officials would suspend the billing practice until class- action lawsuits on the matter are resolved. Meanwhile, in a deposition for one of the lawsuits, CPP Commissioner Ivan Henderson acknowledged that for years he decided how much to tack onto customers' monthly bills and only "mentally" reconciled the amount charged with expenses he deemed to be reimbursable by the fee. As the class-action cases against the city and CPP enter their second year of litigation, recently unsealed documents, including internal memos and a consultant's report, have hit the docket, shedding more light on why and how CPP levied the controversial fee. Here's everything you need to know about the latest in the case and what it all might mean for the 75,000 customers of the utility. What Led to the Lawsuits? The lawsuits were filed in late 2015, on the heels of a cleveland.com story, revealing that CPP charged its customers, over 16 years, more than $128 million beyond the base rate for power without seeking City Council approval, as required by the city charter. The plaintiffs accuse CPP of defrauding many of its residential and commercial customers out of millions. And they argue that CPP illegally plugged budget gaps by evoking a decades-old city ordinance designed to help the utility recover the cost of compliance with environmental protection laws. The law that city officials relied on for the fee was passed at a time when CPP ran its own power plants. But the utility stopped generating its own power in 1977, and since then, has bought electricity from other generators and distributes the power to its customers. Nevertheless, the utility, which has long struggled to compete with its private sector counterpart FirstEnergy, continued to rely on the 40-year-old ordinance to boost its revenue while keeping the base rate for power unchanged since 1983. The so-called ecological adjustment charges were obscured on customers' bills -- folded into the monthly energy adjustment, which is intended to make up for fluctuations in the cost of power. Then-Utilities Director Paul Bender ordered CPP to stop charging the fee when two of the department's financial managers brought it to his attention shortly after he took office in March 2013. Bender, who left the city in 2014, told cleveland.com that he ended the billing practice because Henderson could not provide a documented justification for the fees. It was clear that CPP's budget was propped up by the illegal collections, Bender said. And Henderson had never reconciled the amount billed to customers with the actual expenses incurred during any given year. Bender said he worried that the charges were in violation of the terms of CPP's bond covenants, requiring the utility's revenues to exceed its expenses. As a short-term solution, Bender said, he plugged the budget gap by finding a legitimate power cost that had never been billed to customers. And he bought the utility another four years of budget stability by refinancing its debt, he said. Bender said he advised Henderson and other high-ranking city officials that CPP must either cut costs or ask council to approve an increase in the base rate for power if the utility were to survive in the long run. But when those solutions ran their course, CPP reprised the ecological adjustment. In response to a written series of questions, filed in one of the lawsuits, Henderson stated that Bender had violated the orders of his immediate supervisors when he discontinued the fees. Henderson also stated that CPP reinstituted the charges sometime in 2016. It's unclear exactly what expenses the most recent charges cover or whether CPP has improved its accounting practices surrounding the fees. City and utilities officials declined to answer those questions and all others related to the fees, citing the pending litigation. But during a City Council Utilities Committee hearing in October 2015, Henderson and Utilities Director Robert Davis pledged to reappear before council if they planned on reinstating the ecological charges in the future. Davis went on to say that he would not consider assessing the fees again until the class action cases were resolved. Well, did CPP notify council? Whether the administration informed council that CPP had resumed the fees is unclear. Council President Kevin Kelley said he had not known that the charges had been reinstated until a reporter told him. "And I'm a little bit embarrassed," Kelley said. "Because I'm a CPP customer, and I do look at my bills, and I had no idea that charge was included." But Kelley said February 22 that Utilities Committee Chairman Terrell Pruitt recalls being notified, though Kelley was unable to say how or when Pruitt received the notification. Pruitt, who did not return a call for comment, spent half of last year on military leave and returned earlier this month. And Henderson said in a July deposition that, at that time, the fee still had not been reinstated. Councilman Brian Cummins, who serves on the Utilities Committee, said he doesn't believe the administration addressed council about the fee again. "Obviously, based on what we know about the slim-to-none margin between CPP's rates and those of FirstEnergy, it's no wonder why CPP would be scrambling to recoup every penny possible," Cummins said. "But if they've begun charging this hidden fee again without informing council, it's extremely disappointing in light of the outstanding lawsuit." Davis and Henderson are scheduled to appear before council on February 24, as part of a series of hearings on Mayor Frank Jackson's proposed 2017 budget. Internal memo casts doubt on fee's legality Bender's initial inquiry into the legality of the fee was prompted by two of the city's fiscal managers, Catherine Troy and Frank Badalamenti. In one memo that appears as an exhibit in the class action, Troy points out to Bender that CPP had no process for reconciling the amounts billed to actual expenses, even though the ordinance that authorizes the utility to charge the fee specifies that the money must be used to cover the "costs of special apparatus and equipment required for compliance with Federal, State or City environmental protection laws and directives." Troy wrote: "When asked how CPP determines the charge on an individual monthly basis, Commissioner stated they compared the EAC [ecological adjustment charge] from the prior month and the EAC from the same month, prior year. When asked for support of this methodology, we have not been provided with written rationale for this." Troy went on to say that it's unclear whether CPP could bill for labor under the ordinance, and if so, CPP provided no documentation to justify the percentage of labor charged as an ecological adjustment. She described erratic accounting practices and the fact that CPP excluded the ecological adjustment collections from its budget. "No one takes ownership of the procedure," Troy wrote. "It is unclear who was responsible for the calculation of this number on a yearly basis. It seems the Commissioner is the only person that decides this number each month, but has no formal procedure on how it is determined." Troy warned that if the charges are deemed to be illegal, CPP would have to reduce its expected revenues and expenses to continue to meet its debt obligations. COMCAST CORP: Judge Dismisses Suit Due to Limited EEOC Charge ------------------------------------------------------------- Greg Mersol at JD Supra Business Advisor reports disparate impact cases are different in kind from the far more common disparate treatment claims that are the staple of single-plaintiff discrimination cases. Disparate treatment claims, of course, are ones in which an employee contends that he or she was treated less favorably than others on account of a protected trait, such as sex, race or color. Disparate impact claims not only involve different allegations (generally a facially neutral policy that has the effect of discrimination), but almost always require a virtual classwide review of the facts and careful statistical analysis. Those differences proved fatal to the plaintiff's disparate impact claims in the case of Spencer v. Comcast Corp., Civil Action No. 16-2589 (E.D. Pa. Feb. 17, 2017), because the plaintiff failed to account for them in his charge before the Equal Employment Opportunity Commission (EEOC). In Spencer, the plaintiff worked at a call center for the defendant. In early March 2015, he received a poor performance review for, among other things, communications, interpersonal affect, cultural diversity and discriminating on the basis of race. In response, he filed his own internal complaint contending that he was himself a victim of race discrimination. Shortly afterward, he was terminated for hanging up on a customer. The plaintiff filed a charge of discrimination with the EEOC that focused on his own individual claim, but also referred to lighter- skinned African American or white employees who were not terminated for similar offenses. After the EEOC issued its notice of right to sue, he brought a proposed class action suit for, among other things, disparate impact race discrimination under Title VII. The defendant moved to dismiss because the allegations were beyond the scope of the plaintiff's charge. In ruling on that motion, the court noted the requirement that the claimant file a charge with the EEOC and that the scope of any Title VII litigation was limited to matters "which can reasonably be expected to grow out of the charge." Quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976). Although suits should not be limited by minor technicalities in completing the charge (such as checking a box), the court found, the charge should not only put the employer on notice of the claims against it but also give the EEOC the opportunity to investigate and attempt to conciliate the claims. By that measure, the court found that the charge asserted individual disparate treatment claims and was not sufficient to preserve the right to assert disparate impact claims. The plaintiff asserted that other documents should have placed the employer and the EEOC on notice of wider-ranging claims, such as the intake questionnaire and various requests for information. The gist of this argument was that had the EEOC done further investigation, it would have found that disparate impact claims could be at issue. The court, however, largely rejected this attempt to foist off the obligation to identify the claim to the EEOC, and found that these unsworn documents were insufficient to place the EEOC on notice that disparate impact claims were in play. The court therefore dismissed the disparate impact claim. The Spencer case serves as a reminder that disparate claims are different from disparate treatment claims and that they should be dismissed if the claimant has not sufficiently identified them in the charge. Note as well that at the time of the court's ruling the plaintiff's remaining claims for disparate treatment remained pending and he was seeking class certification as to those claims. Thus, while the court's ruling certainly limited the complaint, it was not the end to either the underlying claims or to the potential for class action treatment under another theory. The bottom line: A claimant cannot rely on the EEOC to identify or investigate disparate impact claims that are not disclosed in the charge. CRAZY HORSE: Appeals Decision in "Degidio" Suit to 4th Cir. ----------------------------------------------------------- Defendant Crazy Horse Saloon and Restaurant Inc. filed an appeal from a court ruling in the lawsuit styled Alexis Degidio v. CRAZY HORSE SALOON AND RESTAURANT INC., Case No. 4:13-cv-02136-BHH, in the U.S. District Court for the District of South Carolina at Florence. The lawsuit alleges violations of the Fair Labor Standards Act. The appellate case is captioned as Crazy Horse v. Alexis Degidio, Case No. 17-134, in the United States Court of Appeals for the Fourth Circuit. As previously reported in the Class Action Reporter on Feb. 15, 2017, Defendant Crazy Horse Saloon and Restaurant Inc., doing business as Thee New Dollhouse, filed an appeal from a court ruling in the lawsuit. That appellate case is assigned Case No. 17-1145. Petitioner-Defendant CRAZY HORSE SALOON AND RESTAURANT INC, d/b/a Thee New Dollhouse, is represented by: James Leon Holt, Jr., Esq. Timothy A. Perkins, Esq. Stephen L. Shields, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Cordova, TN 38018-0000 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: jholt@jsyc.com tperkins@jsyc.com sshields@jsyc.com - and - William Paul Young, Esq. P. O. Box 4213 N. Myrtle Beach, SC 29597 Telephone: (843) 249-9999 Respondent-Plaintiff ALEXIS DEGIDIO, individually and on behalf of all others similarly situated, is represented by: R. Bruce Carlson, Esq. Jamisen A. Etzel, Esq. Edwin J. Kilpela, Jr., Esq. Gary F. Lynch, Esq. CARLSON LYNCH SWEET KILPEA & CARPENTER, LLP 1133 Penn Avenue Pittsburgh, PA 15222 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com jetzel@carlsonlynch.com ekilpela@carlsonlynch.com glynch@carlsonlynch.com - and - Thomas Christopher Tuck, Esq. RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC 1037 Chuck Dawley Boulevard Mt. Pleasant, SC 29464-0000 Telephone: (843) 727-6500 Facsimile: (843) 216-6509 E-mail: ctuck@rpwb.com - and - James Lamar Ward, Jr., Esq. MCGOWAN HOOD & FELDER, LLC 321 Wingo Way Mount Pleasant, SC 29464 Telephone: (843) 388-7202 CRYPTSY: Class Action Lawyers Launch New Settlement Claims Site --------------------------------------------------------------- Stan Higgins, writing for CoinDesk, reports that the legal team behind the class action lawsuit against defunct digital currency exchange Cryptsy has launched a new site in a bid to locate potential claimants. The site, CryptsySettlement.com, details the process by which affected customers of the exchange can submit a claim or to request an exclusion -- an option potentially preferred by those hoping to launch their own litigation related to the exchange. Potential claimants have until 17th May to file, with a fairness hearing scheduled for 2nd June. According to David Silver, one of the attorneys working on the class action suit, the settlement fund has collected over $1m. In October, plaintiffs in the case settled with Lorie Ann Nettles, the ex-spouse of CEO Vernon, who they claimed had benefited from funds received during the operation of the exchange. That said, any potential payout would need to be approved by the court in Florida. As the site statement explains: "The Court in charge of this case still has to approve the settlements with the Settling Defendants. Payments will be made if the Court approves the settlements and orders that the settlement funds be distributed, and if any appeals of the Court's approval of these settlements are resolved in Plaintiffs' favor. Please be patient." The launch comes more than a year after Cryptsy, following months of growing complaints over site problems, withdrawal delays and concerns about its insolvency, abruptly closed its doors after claiming it had been hacked two years prior. The class action lawsuit was filed a day before Cryptsy shut down. The situation became messier as the months progressed. Court documents obtained by CoinDesk indicated that Cryptsy's downfall was foreseen by CEO Paul Vernon, who fled to China following the collapse of the exchange. In past comments to CoinDesk, Vernon said that Cryptsy's insolvency was kept hidden to avoid a "panic". In April, following a request from the class action plaintiffs, a Florida court pushed Cryptsy into receivership, setting the stage for customers to seek recourse for the funds they lost. Settlement site aside, the legal process shows no sign of abating. Late last year, the class action lawyers filed suit against Coinbase, alleging that the digital currency exchange startup was used to clear millions of dollars in illicit proceeds. CUSTOMER SERVICE: Overtime Pay Sought in "Elliott" Labor Suit ------------------------------------------------------------- Terry Elliott, individually and on behalf of all others similarly situated v. Customer Service Quality Transportation, Inc., Case No. 4:17-cv-00069, (E.D. Ark., February 2, 2017), seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorneys' fees as a result of Defendant's failure to pay Plaintiff and all others similarly situated overtime wages as required by the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Defendant operates an automotive repair shop in Little Rock, Arkansas where Plaintiff was employed as an auto mechanic. Plaintiff is represented by: Steve Rauls, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AK 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: steve@sanfordlawfirm.com josh@sanfordlawfirm.com DOORDASH INC: Edwards Seeks 5th Cir. Review of S.D. Texas Ruling ---------------------------------------------------------------- Plaintiff Dewey Edwards filed an appeal from a court ruling in the lawsuit titled Dewey Edwards v. DoorDash, Incorporated, Case No. 4:16-CV-2255, in the U.S. District Court for the Southern District of Texas, Houston. As previously reported in the Class Action Reporter, the Plaintiff seeks to recover unpaid overtime wages, lost wages, liquidated damages, and attorney's fees under the Fair Labor Standards Act. DoorDash, Inc. is a food delivery service that allows customers to place food orders, through a mobile phone application or through its Web site, from various restaurants in the "DoorDash marketplace." The appellate case is captioned as Dewey Edwards v. DoorDash, Incorporated, Case No. 17-20082, in the U.S. Court of Appeals for the Fifth Circuit. Plaintiff-Appellant DEWEY EDWARDS, Individually and On Behalf of All Others Similarly Situated, is represented by: Alfonso Kennard Jr., Esq. KENNARD RICHARD P.C. 2603 Augusta Drive, 1450 Houston, TX 77057 Telephone: (713) 742-0900 Facsimile: (713) 742-0951 E-mail: Alfonso.Kennard@KennardLaw.com Defendant-Appellee DOORDASH, INCORPORATED, is represented by: Kerry E. Notestine, Esq. LITTLER MENDELSON, P.C. 1301 McKinney Street Houston, TX 77010 Telephone: (713) 652-4748 Facsimile: (713) 553-4599 E-mail: knotestine@littler.com DUPONT: Spelter Settlement Allocation Discussed at Hearing ---------------------------------------------------------- Matt Harvey, writing for The Exponent Telegram, reports that how best to spend the $600,000 left from a toxic waste property cleanup settlement was the topic of a court hearing on Feb. 22. The money is what's left of the $34 million that DuPont set aside for home and property cleanup in northern Harrison County. Those millions were used to check and clean homes for the presence of toxic chemicals cadmium, arsenic, lead and zinc, all produced by the Spelter smelter that was owned and operated by DuPont and other companies over the years. The settlement also cleaned up yards in the class action area. Separately, DuPont agreed to a medical monitoring program for members of the class action. That settlement doesn't have a cap, other than the fact it lasts 30 years. However, while medical monitoring can and has helped residents learn that they're ill with diseases tied to the chemicals emitted by the plant, the settlement doesn't pay a penny toward their treatment. And that was a big reason why many -- perhaps all -- of the 10 to 15 residents from the Spelter area who showed up for the Feb. 22 court hearing are in favor of dividing the money among the approximately 1,000 members of the class action. Attorneys and class action Claims Administrator Ed Gentle have put multiple scenarios forward for Harrison Chief Judge Thomas A. Bedell to consider. One would be to pay for a study of statistics already collected as part of the medical monitoring program. That study would be designed to dovetail the most recent science involving health problems related to cadmium, arsenic, lead and zinc, and the findings from the Spelter smelter medical monitoring database. The idea would be to better tailor testing for the remainder of the medical monitoring program, which still has about a quarter of a century remaining. Farrest Taylor, the attorney from The Cochran Firm in Dothan, Alabama, who was a leading figure on behalf of the class action, is in favor of such testing. He also mentioned the possibility of spending some of the remaining money to provide incentives (such as $25 meal vouchers) for class members to continue participating in medical monitoring. Gentle has noted that medical monitoring participation has fallen off dramatically since the initial testing. Meredith McCarthy, the area attorney who represents the children in the case, also believes there should be a study conducted on the results thus far from the Spelter-area medical monitoring program. James Arnold, a Charleston attorney representing DuPont, wasn't ready to address whether such a study should be conducted, or how it should be funded. Mr. Arnold indicated the issue wasn't properly before the court. Detailed legal -- and medical -- analysis first should be provided, to "give the court some meat on the bone to make a decision," he added. Mr. Arnold did say, however, that DuPont wouldn't object to the $600,000 being split up among the 1,000 class action members as dividend checks. If that was done in equal amounts, it would amount to about $600 per claimant, the court learned. Spelter area residents offering comments to the court included Helen McCullough, Mabel Kovar, and Albert "Bud" Sheaffer. They came down on the side of the entire $600,000 going to members of the class action, although it's likely exactly how that should be divided would cause some heated debate. For instance, Sheaffer, who worked in the smelter for 18 years and lived in Spelter all his life, is clearly against those who most recently moved into the area receiving any compensation. And he believes the money also ought to stay with those closest to the plant. They were the ones most exposed to the toxins, and they also have been the ones who have faced the most nuisance from the property cleanup program that involved noise, vehicles and other issues produced by construction. The point also was raised that the cleanup likely was far from 100 percent successful, due to the topography of the Spelter area. Short of moving everyone out and flattening the landscape, that means toxins will remain, it was posited. And it was argued that could mean homes that were cleaned soon will be contaminated once more as individuals track materials from unclean areas into their homes. So individuals closest to the plant should receive the money, or at least most of it, it was argued. Also speaking was Matt Shingleton, deputy chief for the Spelter Volunteer Fire Department. He thanked Mr. Bedell for giving the department $40,000 to replace air tanks in the handling of a prior surplus of $4 million. On Feb. 22, Mr. Shingleton asked the court to consider giving the department additional money toward payment of the nearly $300,000 it owes on its mortgage. That might, in turn, free up the department to buy a used tanker truck, Mr. Shingleton said, adding that the northern part of the county doesn't have a tanker. In the end, Mr. Bedell said he needs to first decide two questions: Is a study of the medical monitoring database needed; and if it is, who will pay for it? Mr. Bedell raised the possibility that the cost of such a study might fall to DuPont as part of what it agreed to in the medical monitoring settlement. That would leave the $600,000 to be spent locally in some fashion. Would DuPont ever willingly agree to such a study of the medical monitoring results, much less want to underwrite it? It seems unlikely, because it seems as though it could generate the groundwork for personal injury lawsuits. Mr. Bedell set a briefing schedule for the attorneys that will push a final decision on the matter until at least mid-year. Part of the process will involve a panel of medical experts that's part of the medical monitoring program setting forth the costs and details of a review of data. In dispensing of the prior $4 million surplus, Mr. Bedell set aside about $250,000 to $300,000 for road repairs; additional money for drainage remediation; the money for the fire department's air tanks; and $4,000 checks cut to the about 1,000 families participating in remediation of the Spelter area. The $600,000 -- and there may be even a little bit more than that, Gentle indicated -- was what was left after the court's order was followed. Earlier in the case, a payout was made to members of the class action on a prorated basis, with those living closest receiving much more than those who were living farther away. ECHOSPHERE LLC: "Inda" Suit Alleges Cal. Labor Code Violations -------------------------------------------------------------- DANIEL INDA individually and on behalf of others similarly situated, Plaintiff, vs. ECHOSPHERE, LLC, and DOES 1 through 10, inclusive, Defendants, Case No. 4:17-cv-00861 (N.D. Cal., February 21, 2017), alleges violation of the California Labor Code for unpaid overtime, unpaid minimum wages, unpaid meal period premiums, unpaid rest period premiums, wages not timely paid upon termination, non-compliant wage statements, and violation of the California Business and Professions Code. Defendants are the sales and distribution division of the business entity EchoStar and distribute satellite television receiver systems to a nation-wide network of retailers. Defendants employed Plaintiff DANIEL INDA as a non-exempt, hourly-paid Field Service Technician. The Plaintiff is represented by: Matthew R. Bainer, Esq. THE BAINER LAW FIRM 1901 Harrison St., Suite 1100 Oakland, CA 94612 Phone: (510) 922-1802 Fax: (510) 844-7701 E-mail: mbainer@bainerlawfirm.com ELITE GUNITE: "Jalapa" Labor Suit Seeks Overtime Pay ----------------------------------------------------- Carlos Jalapa, Angel Noguez, Martin Gomez, Joel Gomez, individually and on behalf of similarly situated individuals Plaintiffs, v. Elite Gunite of Texas, LP, and Joel A. Martin Defendants, Case No. 4:17-cv-00103, (N.D. Tex., February 2, 2017), seeks unpaid wages, liquidated damages, attorney fees, and all other relief permitted under the Fair Labor Standards Act. Defendants are engaged in the business of pool construction where Jalapa and Joel Gomez worked as drivers while Noguez and Martin Gomez worked as pool finishers. Defendants allegedly failed to keep proper records, and thus failed to account for Plaintiffs' overtime pay. Plaintiff is represented by: Jeff M. Meyerson, Esq. Cole E. Gumm, Esq. THE MEYERSON LAW FIRM, P.C. 2224 Walsh Tarlton Lane, Suite 120 Austin, TX 78746 Tel: (512) 330-9001 Fax: (512) 330-9005 Email: jeffm@meyersonfirm.com coleg@meyersonfirm.com ESURANCE: Blumenthal Nordrehaug Files Overtime Wage Class Action ---------------------------------------------------------------- The Sacramento employment law lawyers at Blumenthal, Nordrehaug & Bhowmik on Feb. 22 disclosed that they filed a class action lawsuit alleging that Esurance Insurance Services failed to pay their California hourly employees the correct amount of overtime wages and allegedly failed to provide their California employees with meal and rest periods in accordance with the California Labor Code. The Esurance Insurance Services class action lawsuit, Case No. SCV0038790, is currently pending in the San Joaquin County Superior Court for the State of California. According to the Complaint Esurance allegedly paid their non- exempt employees non-discretionary incentive wages based on their performance for the company. The class action lawsuit further alleges the incentive wages earned by Esurance's employees should have been included in the employees' hourly rates for the purposes of paying their employees the correct overtime wages at the correct overtime rates. As a result of the allegedly illegal overtime calculations conducted by Esurance, the class action lawsuit claims other hourly employees working for the company in California were also not correctly paid all their overtime wages. Additionally, the lawsuit also seeks payment relating to alleged missed meal and rest breaks because allegedly Esurance did not have a policy to provide their hourly employees thirty (30) minute uninterrupted meal breaks prior to their fifth (5th) hour of work. If you would like to know more about the Esurance Insurance Services lawsuit, please contact Attorney Nicholas J. De Blouw today by calling (800) 568-8020. Blumenthal, Nordrehaug & Bhowmik is an employment law firm with offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside and Chicago that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. If you need help in collecting unpaid overtime wages, unpaid commissions, being wrongfully terminated from work, and other employment law claims, contact one of their attorneys today. FACEBOOK INC: TCPA Case Ruling Blow to First Amendment Freedom -------------------------------------------------------------- Karen Kidd, writing for Legal Newsline, reports that a recent decision by a federal court in California not to dismiss a Telephone Consumer Protection Act case against Facebook is a blow to First Amendment freedom, a TCPA defense attorney based in Costa Mesa said during a recent interview. "The ruling allows TCPA lawsuits to continue at a feverish clip despite the ambiguity of the statute and its potential chilling effect on speech," Eric Troutman -- troutman.eric@dorsey.com -- a partner with Dorsey & Whitney, said during a Legal Newsline email interview. On Jan. 27, the U.S. District Court for California's Northern District denied Facebook's motion to dismiss a putative class action, Brickman v. Facebook. The court reasoned that the allegations plaintiff, Colin Brickman of Florida, made were plausible. Brickman alleges Facebook violated federal law when it sent unauthorized text messages about the birthdays of his Facebook friends. Brickman maintains that Facebook needs permission to send those texts and it never asked for his. The class action is asking for up to $1,500 per text on behalf of Brickman and other Facebook users. That could possibly lead to billions of dollars should the class action go through, Troutman said in a recent article he wrote about the case. In its motion to dismiss, Facebook claimed Brickman did consent to receive the texts. The court, in denying Facebook's motion, said that the motion to dismiss was not the time to consider whether there was consent and that, for now, the court will treat it as if Brickman did not provide consent to receive text messages from Facebook. That decision seems to conflict with a prior ruling by the same court on March 24 that Facebook's text messages do not fall under the TCPA. On that day in Duguid et al. v. Facebook, the court granted Facebook's motion to dismiss after Facebook claimed applying TCPA provisions to its text messages would be a clear violation of the First Amendment of the U.S. Constitution. In that motion, Facebook maintained its noncommercial speech claims more protection under the Constitution than do commercial calls, a claim the plaintiff in that case denied. The conflicting Northern District rulings aside, Mr. Troutman said there are other court rulings about the First Amendment and the TCPA to consider. For instance, the U.S. Court of Appeals for the Ninth Circuit has often acted to protect free speech, but it has also upheld the TCPA over a First Amendment challenge. "In doing so, however, it previously assumed that that the statute was content-neutral and applied only intermediate scrutiny," Mr. Troutman said. "The district court found that the TCPA contains content-specific exemptions that favor certain speakers and, therefore, applied strict scrutiny. "If the Ninth Circuit agrees with the district court that strict scrutiny is the proper standard of review, it would be very difficult for the appellate court to uphold the statute. The TCPA is vague and has been interpreted so broadly by the FCC that it plainly prohibits more speech than necessary to achieve its objectives." An appeal would pose a real challenge for the Ninth Circuit, Troutman said. "On the one hand, the Court would likely not want to strike down a statute that has already weathered so many constitutional storms and has become a fixture in federal courthouses," he said. "On the other hand, upholding the statute would seemingly necessitate the application of a watered down version of strict scrutiny -- not the sort of precedent the 9th Circuit would want to create at a time when constitutional free speech protections seem more important than ever." Troutman declined to speculate about a possible Facebook appeal in the Brickman case. "I can't give a legal opinion on something as specific as whether a party should appeal an adverse ruling," he said. "But I will say the district court's finding that the TCPA is 'narrowly tailored' to accomplish its objectives is suspect and the court's analysis of the issue was not particularly rigorous, which is discordant with strict scrutiny review." FACEBOOK INC: Wants to Appeal Birthday Text Class Action Ruling --------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that Facebook is asking a federal judge for permission to immediately appeal his refusal to dismiss a class-action lawsuit accusing the company of illegally sending people messages about their friends' birthdays. "Reversal on appeal would likely result in the immediate termination of the litigation, thus avoiding protracted class action litigation," Facebook argues in papers filed with U.S. District Court Judge Thelton Henderson in San Francisco. The lawsuit dates to 2016, when Florida resident Colin Brickman alleged in a class-action complaint that Facebook's birthday texts violate the Telephone Consumer Protection Act, which prohibits companies from robo-texting people without their permission. Facebook unsuccessfully asked Judge Thelton to dismiss the case for several reasons, including that it has a free speech right to send the texts. Judge Thelton rejected that argument, ruling that the Telephone Consumer Protection Act is constitutional because it serves a "compelling government interest in promoting residential privacy," and is neither too broad or too narrow to accomplish that goal. The social networking service also unsuccessfully argued that Brickman's complaint didn't contain enough facts to show that the company used an automated dialer to send the texts. Judge Thelton sided against Facebook, ruling that Brickman's complaint "alleged exactly how Facebook's software determines who to text, how it gathers the contact information needed to send out texts, how it creates text messages, and how it sends them out, all without human intervention." Facebook argues in its most recent papers that it wants to appeal on both of those issues. "The appeal would resolve two major controlling questions that would otherwise hang over the case through trial," Facebook writes. "It could thereby give both sides more clarity about the likely outcome and promote the possibility of an earlier resolution." Alternatively, Facebook is asking Judge Thelton to stay the lawsuit until another appellate court -- the D.C. Circuit Court of Appeals -- has ruled on a separate dispute over robotexting. Judge Thelton has directed Brickman's lawyers to respond to Facebook's motion by March 3. FAMILY PRIVATE: Faces Class Action Over Unpaid Overtime Wages ------------------------------------------------------------- Wadi Reformado, writing for Florida Record, reports that a certified nurse's assistant for a Palm Beach County employer has filed a class action over unpaid overtime allegations. Kimberly Anspach filed a complaint on behalf of all others similarly situated on Feb. 15 in the U.S. District Court for the Southern District of Florida, West Palm Beach Division against Family Private Care Inc. citing the Florida Minimum Wage Act and the Fair Labor Standards Act. According to the complaint, the plaintiff alleges that she worked as a nurse's assistant for more than 40 hours per week but was not paid any overtime compensation. The plaintiff holds Family Private Care Inc. responsible because the defendant allegedly failed to pay minimum wage to the plaintiff or overtime compensation at a rate of one-and-one-half of her regular pay. The plaintiff requests a trial by jury and seeks damages, unpaid overtime wages, lost benefits, liquidated damages, all legal fees, interest, and any other relief as the court deems just. She is represented by Neil B. Solomon -- nsolomon@mclaughlinstern.com -- Lee S. Shalov -- lshalov@mclaughlinstern.com -- Brett R. Gallaway -- bgallaway@mclaughlinstern.com -- and Wade C. Wilkinson of McLaughlin & Stern LLP in West Palm Beach. U.S. District Court for the Southern District of Florida, West Palm Beach Case number 9:17-cv-80184-KAM FERRARA CANDY: Faces "Iglesias" Suit Over Deceptive Labeling ------------------------------------------------------------ THOMAS IGLESIAS, individually and on behalf of all others similarly situated, Plaintiff, vs. FERRARA CANDY CO., and DOES 1 through 10, inclusive, Defendants, Case No. 3:17-cv-00849 (N.D. Cal., February 21, 2017), alleges that Defendant intentionally misleads and shortchanges consumers by falsely and deceptively misrepresenting the amount of candy actually contained in each box of Jujyfruits(R) brand candy products. Ferrara Candy Company is a manufacturer of non-chocolate confectionery, including gummies, chews and hard candy. The Plaintiff is represented by: Ryan J. Clarkson, Esq. Shireen M. Clarkson, Esq. Shalini M. Dogra, Esq. CLARKSON LAW FIRM, P.C. 9255 Sunset Blvd., Ste. 804 Los Angeles, CA 90069 Phone: (213) 788-4050 Fax: (213) 788-4070 E-mail: rclarkson@clarksonlawfirm.com sclarkson@clarksonlawfirm.com sdogra@clarksonlawfirm.com FLOOR AND DECOR: Settles Mislabeling Class Suit for $14-Mil. ------------------------------------------------------------ Mark Ackerman at CBS Local reports a national home improvement chain with locations in Colorado has settled a $14 million class action lawsuit over claims it was acting unethically in the sale of formaldehyde treated flooring. The lawsuit claims Floor and Decor mislabeled flooring as complying with formaldehyde limits. According to the National Cancer Institute, formaldehyde is a known carcinogen and prolonged exposure to the chemical can cause cancer. As part of the settlement, Floor and Decor did not admit any fault and has always contended its products are safe. But, former employees CBS4 spoke with aren't convinced. "At best, this was deceptive to the public," said former Floor and Decor employee Scott England. "This seemed to be very deceptive behavior." The behavior England is talking about was the relabeling of Chinese-made laminate flooring when he worked as an assistant manager at the Highlands Ranch Floor and Decor store in 2015. "They simply needed to get this done as quickly as possible," said England. He said the company reacted quickly after a bombshell 60 Minutes report about Lumber Liquidators, one of Floor and Decor's competitors. The 2015 story claimed Lumber Liquidators was selling laminate flooring that tested off the charts for formaldehyde emissions. Just days later, England said employees at his store were offered unlimited overtime to black out the words "Made in China" and "California 93120 Compliant for Formaldehyde" on laminate flooring from China. He says they were instructed to replace the labels with new ones with no mention of formaldehyde compliance. After replacing the labels, England said they slashed prices on the flooring by 60 percent. "They fire saled it," he said. "They were just dumping this material on the public." What didn't sell quickly, England said was trashed. "Thousands of square feet, palates of materials were thrown away." Surveillance video England obtained from the Highlands Ranch store, and shared with CBS4, shows workers disposing of products. England said crews from out-of-state were brought in to dump any remaining Chinese-made laminate flooring that had not sold. An employee at Floor and Decor's Arvada store said the same relabeling, repricing, and dumping happened there, too. She requested her name not be used. The Arvada employee said she took part in the relabeling because she was afraid she'd be fired if she asked questions or refused to participate. A former cashier -- who also did not want her name used -- told CBS4 she was instructed to "redirect customers to a manager" or tell customers "everything was ok," when people asked about formaldehyde or the safety of the flooring. She said she "truly thought she was lying to the customers" after witnessing the relabeling of the products. Receipts for the relabeled products -- obtained by CBS4 -- were later changed to say, "May not meet California air Stnds". At that point, England started asking pointed questions of his bosses. "If there is nothing wrong with these products, why are we throwing it away? Shouldn't we be selling them?" England said his bosses had no answer. Later, England said he was fired for being late to work. Floor and Decor has now settled a $14 million class action lawsuit and wouldn't answer many of CBS4's specific questions about the relabeling and the dumping. The company issued this statement: In early 2015, Floor & Decor re-labeled certain laminate flooring products to remove labels referencing a standard applicable only to flooring sold in California. Extensive independent testing of these products has confirmed they were and are safe. Floor & Decor has an industry- leading compliance program, utilizing independent, third party inspectors and laboratories to ensure the safety and quality of its products." People who purchased Chinese made laminate from Floor and Decor may be eligible for a cash reimbursement or store credit. Claims must be postmarked by March 7, 2017. FUKUSHIMA DAIICHI: Local Servicemen May Have Radiation Poisoning ---------------------------------------------------------------- Torrey Bailey at SD City Beat reports "Right now, I know I have problems, but I'm afraid of actually finding out how bad they really are," said William Zeller, a 33-year-old active-duty Navy servicemember living in San Diego. He's one of the 4,500 sailors who were aboard the USS Ronald Reagan during Operation Tomodachi, a humanitarian aid mission sent to Japan the day after a tsunami triggered the 2011 Fukushima Daiichi nuclear meltdown. "I know there's something wrong," Zeller said. "I've got many other people around me telling me I don't look good, and I need to get checked out. While I am a workaholic, it's a distraction." Zeller is only one of 318 sailors (and counting) who have joined a billion-dollar class action lawsuit filed in 2012 against the nuclear generators' operating company, Tokyo Electric Power Company, or TEPCO, for injuries allegedly caused by radiation exposure. The lawsuit argues TEPCO is financially responsible for the sailors' medical care because the operating company, admittedly, did not inform the Japanese government of the meltdown. In turn, the Japanese government unknowingly misinformed the U.S. Navy of potential dangers of anchoring off the coast of Japan where the ship was engulfed in a plume of radiation for several hours. "Everywhere we went we had to carry [gas masks] on our hips," Zeller said. "We were turning on news networks, and we could see how we were right in the plume. You could taste the metallic air." In the six years since Fukushima, Zeller has only sought medical attention from the Navy since the care is financially covered. "The military health system is a process, putting it politely," he said, explaining how it took four years to learn he had abnormal bone growth, nerve damage and what he believes is irritable bowel syndrome, all of which began a year after Operation Tomodachi. His weight fluctuates 20 to 30 pounds within a month, and he's unendingly fatigued. "Before I went [on the USS Ronald Reagan], I used to be a martial arts instructor," he said. "I used to go on regular bike rides. I hiked. I was in very good shape. Now, I wear a breathing machine when I go to sleep because I have respiratory problems. I literally just go to work and go home now. I don't have the energy or the pain threshold to deal with anything else." Considering the Veterans Association's inability to treat members in a timely or efficient manner, Zeller's lawyer, Paul Garner, said VA care is not an option. Instead, they're hopeful that a fund set up by former Japanese Prime Minister Junichiro Koizumi will come to fruition. Koizumi announced the creation of the fund while visiting 10 affected sailors, including Zeller, in San Diego in May. Koizumi said he expects to raise $2 million by a March 31 cutoff date. The plan is to then transfer the money to the U.S. to supplement the sailor's medical bills at, according to Garner, some of the best care centers across the country. However, Garner knows $2 million won't be enough to cover every need, especially since some sailors have reported symptoms appearing in their children who were born after Operation Tomodachi. "I have no idea if it's caused by the radiation that I was exposed to on the Reagan, but I don't know that it's not," said Jason F., who was also on board the USS Ronald Reagan but didn't want to share his last name while he's still active duty. His breathing is audible over the phone, as if climbing several sets of stairs, but he's tucking his three-year-old daughter into bed at their San Diego home. "That's standard breathing for me," he said. "I don't know what to do about it. She has difficulty breathing too," he said of his daughter, who was born in 2013. "She snores like a grown man." Jason is 36 years old, in shape, never smoked a day in his life and didn't have trouble breathing until after his time on the USS Ronald Reagan. His respiratory difficulties have aggrandized since 2011, peaking during a 2016 deployment where the doctors told him the contrasting temperatures were to blame and gave him an inhaler to puff on. It took a formal request to fly him off the ship to receive medical treatment in Bahrain, where he was told he had a 60 percent chance of tuberculosis and a 40 percent chance of lung cancer. He has since been diagnosed with asthma by an outside specialist, although the treatments aren't working. "It's difficult for them to figure out," Jason said. "I mean, how many patients have they had that are exposed to radiation? And are they trained for that?" When Zeller mentioned radiation exposure to doctors at the Navy, he said he was told it was interesting, if acknowledged at all. Lung cancer is one of several cancers associated with high radiation exposure, according to the U.S. Nuclear Regulatory Commission website, as well as leukemia, which several sailors have been diagnosed with. Bloody noses, rectal and gynecological bleeding, weakness and ulcers, are also symptoms reported by the sailors and are signs of radiation poisoning, according to the Scripps Health website. In 2014, the Department of Defense published a report acknowledging that radiation exposure can cause such medical issues, but that the exposure levels were too low and the symptoms appeared too soon to make a connection. While Zeller and Jason hope for financial support either from Koizumi's fund or by winning the lawsuit, they want support for the others affected. "I'm experiencing symptoms, but it's not just for me," Zeller said. "It's for the individuals who are way worse than me and to bring attention to them . . . They have tumors, cancers, birth defects in their children, some individuals have mass muscle fatigue where their entire half of their body isn't functional anymore, and they are stuck in wheelchairs. I am currently on the better end." The sailors are waiting for a decision from the 9th Circuit Court of Appeals determining whether the lawsuit will continue in the United States or in Japan, if at all. In January, TEPCO urged the court to dismiss the case, citing that it is a political matter that could impact international relations. Jason said the lawsuit is about more than money, specifically when it comes to his daughter's future. "I just want accountability," he said. "I want her taken care of. Whatever that takes." FULL-TILT POKER: Appeals Court Affirms Dismissal of Class Action ---------------------------------------------------------------- Kenneth Ofgang, writing for Metropolitan News-Enterprise, reports that the Court of Appeal for this district on Feb. 21 affirmed dismissal of a suit by a pair of poker players who claim they were mistreated by an operator of online poker games. Div. Seven, in an unpublished opinion by Los Angeles Superior Court Judge Virginia Keeny, sitting on assignment, held that Los Angeles Superior Court Judge Elizabeth White did not abuse her discretion in dismissing the action by Lary Kennedy and Greg Omotoy for failure to prosecute. Mr. Kennedy, a professional player, and Mr. Omotoy sued Full Tilt Poker; its then-parent company Tiltware, LLC; its then-chief executive, Raymond Bitar; and a number of others, including prominent professional players associated with the company, in 2009. The original complaint included fraud and racketeering causes of action; the plaintiffs accused the defendants of making false promises in order to induce them to play. The alleged falsehoods included assertions that the defendants' operations did not include gambling, that it did not allow computer "robots," or bots, to play; and that players are treated "fairly and consistently in accordance with the highest standards of the poker community." Mr. Kennedy also pled a cause of action for defamation, saying she had been falsely accused of using a robot of her own and that $80,000 had been confiscated from her account based on the accusation. The plaintiffs also sought restitution to themselves and all similarly situated players under the Unfair Competition Law. Removal to Federal Court The case was removed to federal district court, where the judge eventually dismissed the racketeering claim without prejudice for failure to state a cause of action, declined to exercise supplemental jurisdiction, and remanded the case to the state court, where the defendants demurred to the then-operative pleading, the second amended complaint. Judge David L. Minning sustained the demurrer with leave to amend most of the putative causes of action. The plaintiffs later moved to file a third amended complaint, eliminating Full Tilt Poker as a defendant -- on the ground that it was not a legal entity and lacked capacity to be sued -- while eliminating causes of action based on fraud and adding claims under the RICO Act and the Consumer Legal Remedies Act. Class Claims The RICO and CLRA claims, among others, were pled on behalf of a class. When Judge Minning questioned the class action allegations, plaintiffs' counsel responded that they were based on new facts, and that counsel intended to add several additional defendants, based on a civil suit that the federal government had filed against many of the same defendants in the Southern District of New York. (That action was later settled without an admission of liability.) Judge Minning denied the motion to amend, saying the case had grown from a "give me my money back type of case . . . into what now appears to be a national class action or potentially national class action" that "doesn't even sound like the same case anymore." The proposed new allegations, he suggested, were more appropriately sued upon in a separate action. Judge Minning said the plaintiffs could file a motion for leave to file a third amended complaint, limited to curing the deficiencies he had identified in the previous pleading. The plaintiffs then dismissed all of their claims other than for libel, and filed a class action complaint in federal district court. They argued they should be permitted to reopen the previously dismissed RICO action because of "Judge Minning's ability to handle the complexities of the case, but the judge said they had misconstrued Judge Minning's comments, and that any prejudice they had suffered was "entirely of their own making." The judge stayed the action to avoid the possibility of a result that might conflict with whatever decision was reached in the government's then-pending action in New York. The state action subsequently landed in front of White, after the case was deemed related to a later-filed action, and a party in that action filed a Code of Civil Procedure Sec. 170.6 declaration against Judge Minning. At a July 2013 status conference, White noted that the plaintiffs had not filed a motion for leave to file the third amended complaint, pursuant to Judge Minning's order of nearly two years earlier, and ordered them to show cause why the action should not be dismissed for failure to prosecute, under the discretionary two-year dismissal statute. A month later, she ruled that the plaintiffs had been given "abundant opportunity to amend" by both Judge Minning and the federal judge, and dismissed the case. The plaintiffs later moved for a new trial based on irregularity in the proceedings, under Code of Civil Procedure Sec. 657(1), saying their attempts to amend "were illegally refused or struck by the court" and that an automatic bankruptcy stay as to defendant Erik Lindgren precluded the case from proceeding. That motion was denied. Judge Keeny, writing for the Court of Appeal, said the Lindgren bankruptcy stay had no effect on the proceedings because Lindgren didn't assert it and nobody else had standing to. She also reiterated the federal judge's comments, saying Judge Minning did not reject the proposed third amended complaint because of any perceived inadequacies on his part, but because he believed the case would be unmanageable with the addition of the new allegations and new parties. Those concerns were reasonable, Judge Keeny said, and justified a denial of leave to amend, notwithstanding the principle that such leave should be granted liberally. Cyrus Sanai represented the plaintiffs on appeal. Erik L. Jackson -- ejackson@cozen.com -- and Nathan Dooley -- ndooley@cozen.com -- of Cozen O'Connor represented most of the defendants; however Maurice Suh -- msuh@gibsondunn.com -- and Jay Srinivasan -- jsrinivasan@gibsondunn.com -- of Gibson, Dunn & Crutcher represented Phil Gordon and Craig N. Hentschel -- chentschel@dykema.com -- and Vivian I. Kim of Dykema Gossett, represented Perry Friedman. The case is Kennedy v. Ferguson, B253090. GLOBAL EAGLE: April 24 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against Global Eagle Entertainment Inc. and certain of its officers. The class action, filed in United States District Court, Central District of California, and docketed under 17-cv- 01479, is on behalf of a class consisting of investors who purchased or otherwise acquired Global Eagle securities, seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased Global Eagle securities between July 27, 2016 and February 17, 2017, both dates inclusive, you have until April 24, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Global Eagle provides content, connectivity, and digital media solutions for travel industry worldwide. The Company operates through two segments, Connectivity and Content. On July 27, 2016, Global Eagle announced that it had completed its previously announced acquisition of Emergency Markets Communications ("EMC"), a communications services provider to maritime and hard-to-reach land markets. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Global Eagle was unable to timely and properly account for the EMC acquisition; (ii) consequently, the Company lacked effective internal controls over financial reporting; and (iii) as a result, Global Eagle's financial statements were materially false and misleading at all relevant times. On February 21, 2017, pre-market, Global Eagle announced that the Company's Chief Executive Officer David M. Davis and Chief Financial Officer ("CFO") Thomas E. Severson Jr. had resigned from their positions with the Company. Concurrently, Global Eagle announced that it expected to file its Annual Report for fiscal year 2016 after the March 16, 2017 U.S. Securities and Exchange Commission deadline, citing the Company's "increased size and complexity" after its acquisition of EMC, as well as "its need to transition the finance department after the prior CFO's departure and its need to complete additional financial-closing procedures associated with the Company's material weaknesses in internal control over its financial reporting." On this news, Global Eagle's share price fell $1.74, or 27.97%, to close at $4.48 on February 21, 2017. The Pomerantz Firm, with offices in New York, Chicago, Florida, and Los Angeles, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. GLOBAL FITNESS: Supreme Court Won't Review Settlement Dispute ------------------------------------------------------------- Fola Akinnibi, writing for Law360, reports that the U.S. Supreme Court will not review a settlement dispute in a consumer class action suit against a fitness company, it said in a Feb. 21 order, putting to bed claims that a Sixth Circuit decision opened the door for collusion between class counsel and defendants. In a Feb. 21 order list, the high court denied certiorari in a settlement dispute brought on by Joshua Blackman and Robert and April Zik, objectors to the settlement in a consumer class action against Global Fitness Holdings LLC. The court did not provide an explanation for the denial in its Feb. 21 order. The objectors were challenging the Sixth Circuit's May ruling that said they did not demonstrate that the settlement was unfair or that legal counsel's $2.39 million fees were disproportionate to the claims paid. Adam E. Schulman of the Competitive Enterprise Institute's Center for Class Action Fairness, an attorney for Blackman, told Law360 on Feb. 21 that they were disappointed by the ruling. He added that because of a circuit split on the matter, it is likely to appear again before the court. "We're obviously disappointed that they didn't grant cert this time," he said. "We'll probably be bringing similar cases to their attention in the future." Representatives for the settling members and Global Fitness did not immediately respond to requests for comment. The case involves challenges to the settlement of a consumer class action that was filed against Global Fitness by Amber Gascho and other plaintiffs. They alleged that between 2006 and 2012, the company sold gym memberships and incorrectly charged fees pertaining to cancellation, facility maintenance and personal training contracts, according to the Sixth Circuit. Counsel reached a settlement in the case in September 2013, after more than two years of litigation that included extensive discovery, with the approved settlement class consisting of 49,808 gym members out of approximately 606,246 people who signed a gym membership or personal training contract with Global, the judges said. Of a $15.5 million proposed award to class members, the actual payout came to $1.59 million, according to the Sixth Circuit. Class members who filed approved claims received $5, while some received additional claim awards ranging from $15 to $30 depending on their fees and contracts with Global Fitness, for a maximum per-person recovery of $75, the Sixth Circuit said. In October, a coalition of 17 state attorneys general, led by Arizona's Mark Brnovich, filed an amicus brief in support of the objectors. The state officials argued that class action attorneys' fees should be paid only in proportion to the amount consumers actually collect in the deal, as demanded by the Seventh Circuit. In the Global Fitness case, the attorneys negotiated a settlement fund of $15.5 million and their $2.39 million fee was based on the entire fund. However, the consumers ended up taking home only $1.6 million, thanks to the claims process, with the remaining 90 percent returning to the fitness company. They added that the May ruling creates a situation where class counsel and defendants can collude to the detriment of consumers, the brief said. It also urged the high court to take on the case because of the circuit split, which would allow forum shopping by class counsel to the detriment of consumers. Mr. Blackman is represented by Adam E. Schulman of the Center for Class Action Fairness and Theodore J. Froncek. Robert and April Zik are represented by Joshua T. Rose of Hummel Coan Miller Sage & Rose LLC, Gregory A. Belzley and Ronna Lucas. Amber Gascho is represented by Joanne S. Beasy -- jbeasy@isaacwiles.com -- Mark D. Landes -- mlandes@isaacwiles.com -- Gregory M. Travalio -- gtravalio@isaacwiles.com -- Mark H. Troutman and Christopher J. Wagner of Isaac Wiles Burkholder & Teetor LLC and by Thomas N. McCormick, William G. Porter II -- wgporter@vorys.com -- and Kenneth J. Rubin -- tnmccormick@vorys.com -- of Vorys Sater Seymour & Pease. Global Fitness is represented by Dan L. Cvetanovich -- dcvetanovich@baileycav.com -- and Sabrina C. Haurin -- shaurin@baileycav.com -- of Bailey Cavalieri LLC, by Richard S. Gurbst of Squire Patton Boggs LLP, by Brandon McGrath -- bmcgrath@bgdlegal.com -- of Bingham Greenebaum Doll LLP, by Douglas R. Cole -- drcole@organcole.com -- and Erik J. Clark -- ejclark@organcole.com -- of Organ Cole LLP and by Matthew A. Kairis -- makairis@jonesday.com -- and Alexis J. Zouhary of Jones Day. The case is Blackman v. Gascho et al., case number 16-364, in the Supreme Court of the United States. GLOBAL TEL LINK: "Lee" Suit Seeks Initial OK of Class Settlement ---------------------------------------------------------------- In the lawsuit titled ALICE LEE, et al, the Plaintiffs, v. GLOBAL TEL LINK CORPORATION, the Defendant, Case No. 2:15-cv-02495-ODW- PLA (C.D. Cal.), the Plaintiffs will move the Court for an order: 1. certifying a class of: "all persons using and/or subscribing to a mobile telephone number to which a Notification Call was placed during the Class Period". 2. appointing Plaintiff as the representative of the Class and appointing Class Counsel; 3. preliminarily approving an Agreement as fair, reasonable, and adequate; 4. approving and directing the parties to provide notice and receive claims from Class Members, consistent with the Agreement; 5. setting deadlines for Class Members to opt out and object, for Plaintiff and his counsel to file their application for attorneys' fees, costs, and service awards, and for the parties to file for final approval of the settlement; and 6. scheduling a final approval hearing. Under the proposed settlement: 1. Defendant will pay $8,800,000 into a common fund. Settlement Class members who submit a claim will receive a pro rata share of the balance of that amount after payment of notice and administration costs, any Court ordered award of attorney's fees and expenses, and any Court ordered incentive award for Plaintiff. 2. Defendant will also change its practices to include in all Notification Calls an interactive-voice and/or key- activated opt-out mechanism that the called party may use to opt-out of all future Notification Calls and a toll-free number that the called party may call to opt out of all future Notification Calls. Defendant provides certain collect-call telephone services to inmates at jails and prisons throughout the country, which require the called party to establish a billing relationship with Defendant in order to pay for and receive calls from an inmate. When an inmate attempts to place a collect call to a telephone number for which there is no pre-established billing relationship, the inmate's call attempt will trigger a separate prerecorded Notification Call from Defendant that tells the called party that an inmate is trying to reach him or her and that an account must be set up to receive and pay for that call. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fyugnkB5 The Plaintiff is represented by: Patric A. Lester, Esq. LESTER & ASSOCIATES E-mail: pl@lesterlaw.com 5694 Mission Center Road, No. 385 San Diego, CA 92108 Telephone: (619) 665 3888 Facsimile: (314) 241 5777 - and - Timothy J. Sostrin, Esq. KEOGH LAW, LTD 55 W. Monroe St., Suite 3390 Chicago, IL 60603 E-mail: TSostrin@KeoghLaw.com GOVERNMENT EMPLOYEES: Sues Two Plaintiffs' Attorneys ---------------------------------------------------- Daniel Siegal, writing for Law360, reports that Geico sued two plaintiffs' attorneys in Pennsylvania federal court on Feb. 21, alleging they obtained confidential information in discovery in a putative class action against the insurer and tried to use it to get a leg up in a similar suit against Geico rival United Services Automobile Association, exposing Geico's trade secrets. In the complaint filed in Pennsylvania's Eastern District, the Government Employees Insurance Co. and a host of its subsidiaries accuse Scott P. Nealey of the Law Office of Scott P. Nealey, Stephen M. Hansen of Law Offices of Stephen M. Hansen and employment litigation expert witness Bernard Siskin of BLDS LLC of misappropriating the insurance company's trade secrets, and for the attorneys, of doing so to unjustly enrich themselves. Geico contends that Messrs. Nealey and Hansen represent named plaintiffs Megan Stone and Christine Carosi in a putative class action in Washington federal court accusing the insurer of breaching its insurance agreements by shorting insureds on the value of the loss of the use of their vehicles after accidents. In the course of that lawsuit, the plaintiffs moved to remand the suit to Washington State Superior Court -- and in opposition Geico submitted a declaration from David Antonacci, a supervisor in its claims department, that contained details about Geico's claims management system, its average claim payouts, its claims handling procedures, and the numbers of certain claims it received during a period of time, according to Geico's complaint. "Mr. Antonacci's declaration contained information that Geico strives to keep confidential and from which Geico derives independent economic value," Geico alleged. "If a competitor were to discover information regarding the ways Geico tracks information relating to the handling of claims, the number of particular types of claims during a specific time period or the average amounts Geico paid relating to specific types of claims during a specific time period, that competitor could use the information for its own economic benefit and to Geico's economic detriment." Because of the sensitive nature of the information in the declaration, Geico first obtained a stipulated protective order covering confidential information in the Stone class action, and then filed two copies of the declaration -- a heavily redacted public filing, and the complete version, filed under seal, with the words "Filed Under Seal" stamped in conspicuous red font on its first page, according to Geico's complaint. Geico alleges that two days after the filing, however, the attorneys took that declaration to use in another lawsuit in which they represented plaintiffs bringing a class action against an auto insurance company -- in this case, named plaintiff David and Marissa Turk's suit against United Services Automobile Association and its affiliates. The suit further alleges that the attorneys gave the declaration to their class certification expert, Siskin, and that while Mr. Nealey deposed Mr. Siskin, with USAA counsel present, the duo produced the Antonacci declaration, with the "Filed Under Seal" mark removed. Geico's suit seeks a permanent injunction barring the use of its misappropriated trade secrets, compensatory damages, and damages for any unjust enrichment the attorney defendants' may have obtained by using the Antonacci declaration, as well as double exemplary damages. Mr. Hansen and representatives for Messrs. Nealey and Siskin did not immediately respond to requests for comment on Feb. 22. Geico is represented by Nicholas M. Centrella -- ncentrella@conradobrien.com -- and Andrew K. Garden -- agarden@conradobrien.com -- of Conrad O'Brien PC and Dan W. Goldfine -- dgoldfine@lrrc.com -- Bruce E. Samuels -- bsamuels@lrrc.com -- and Jared L. Sutton -- jsutton@lrrc.com -- of Lewis Roca Rothgerber Christie LLP. Counsel information for the defendants was not immediately available on Feb. 22. The case is Government Employees Insurance Co., et al. v. Scott P. Nealey, et al., case number 2:17-cv-00807 in the U.S. District Court for the Eastern District of Pennsylvania. HAMILTON PAINTING: Class Certification Partly Granted in "Rowe" --------------------------------------------------------------- In the lawsuit entitled GREGORY ROWE, CODY PILKINTON, the Plaintiffs, v. CRAIG HAMILTON, d/b/a HAMILTON PAINTING, the Defendant, Case No. 6:16-cv-03259-RK (W.D. Mo.), the Hon. Roseann A. Ketchmark entered an order: 1. granting in part Plaintiffs' motion for conditional certification and notification of all putative class Members; and 2. denying Plaintiffs' request to approve the proposed notice and consent subject to resubmission. The Court directed the parties to confer regarding objections to the proposed notice and consent within seven days from the date of this order. The Plaintiffs shall submit a revised proposed notice and consent with an explanation of any remaining issues consistent with the order within 14 days from the date of this Order. Hamilton may file a response and/or alternative proposal within seven days from the date of Plaintiffs' submission. In addition to filing proposals with the Court, the parties are directed to e- mail proposals to my Courtroom Deputy, latandra_wheeler@mow.uscourts.gov, in MS Word format. Hamilton shall provide Plaintiffs' counsel with the full names and last known addresses for all current and former employees employed by Hamilton as painters from three years prior to September 16, 2016. Hamilton shall provide this information within 14 days from the date of this Order and shall provide Plaintiffs' counsel with an electronic copy of the information. The opt-in period for individuals to join the class shall be 60 days from the date Plaintiffs' counsel mails the notice and consent forms. Plaintiffs are not permitted to send a reminder notice. The Plaintiffs' counsel that are currently listed as counsel on the Electronic Court Filing System are authorized to act as interim class counsel. The Court finds Plaintiffs have presented at least a modest factual showing that Plaintiffs and the putative class members were victims of a single decision, policy, or plan, ruled Judge Ketchmark. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=L8iqk3xh HARDEE'S RESTAURANTS: Settles Hepatitis A Class Action ------------------------------------------------------ The following release was issued on Feb. 21 by The Notice Company, Inc.: A Settlement has been reached in the lawsuit entitled Cody Werkmeister v. Hardee's Restaurants, LLC, Case No. 2015-CP-42- 3982, pending in the Court of Common Pleas in the Seventh Judicial Circuit Court of Spartanburg County, South Carolina, concerning alleged exposure to the Hepatitis A virus. What is This Case About? On September 18, 2015, the South Carolina Department of Health and Environmental Control ("Health Department") announced that customers who ate at two Hardee's Restaurants in Spartanburg County might have been exposed to the hepatitis A virus ("HAV"). One restaurant location was at 12209 Greenville Highway in Lyman, South Carolina, and the second location was at 1397 East Main Street in Duncan, South Carolina. The Health Department recommended that persons who ate at either the Hardee's Restaurant in Duncan between September 4 and 13, 2015 or the Hardee's Restaurant in Lyman between September 4 and 15, 2015, be vaccinated. These time periods are referred to as the "Exposure Period". Who is Included in the Settlement? Included in the Settlement are all persons who: (1) consumed food or drink between September 4 and September 13, 2015, at the Hardee's Restaurant located in Duncan, South Carolina, or between September 4 and September 15, 2015, at the Hardee's Restaurant located in Lyman, South Carolina, and (2) subsequently obtained a Hepatitis-A Virus ("HAV") vaccination, an immune globulin ("IG") shot, or HAV blood test within thirty days after eating at these Hardee's Restaurant locations, but in no event later than October 15, 2015. The South Carolina Department of Health and Environmental Control has not provided notice that any persons developed HAV infections after consuming food or drink at these Hardee's Restaurant locations during these time periods; such persons, if any, are excluded from the class. Employees of Hardee's Restaurants are also excluded from the class. What Does the Settlement Provide? Each member of the Settlement Class who submits a timely, qualified claim will share equally in the aggregate Class Award of $500,000.00. How Do You Make a Claim? To make a claim, you must submit a Claim Form so that the Claims Administrator receives it no later than March 30, 2017. If you did not receive a Claim Form in the mail, you can obtain a Claim Form online at www.SpartanburgHepa.com, by calling 1-800-352-1270, or by writing to the Claims Administrator at: Spartanburg Hep-A Class Action c/o The Notice Company P. O. Box 455 Hingham, MA 02043 Who Represents You? The Court has appointed Marler Clark, LLP, PS, as the Class Counsel. Class Counsel will receive as attorneys' fees 25% of the amount paid to the entire Settlement Class for general damages, or what is awarded by the Court, whichever is less. The defendant, Hardee's Restaurants, LLC, will pay the determined Class Counsels' fees and costs. The Class Award of $500,000.00 will not be reduced by these attorneys' fees and costs. What Are Your Options? Submit a Claim: If you want to participate in the Settlement and receive a portion of the Class Award, you must make a claim as described above. Exclude Yourself: If you do not want to be legally bound by the Settlement, you must exclude yourself in writing by sending a written request for exclusion to the Claims Administrator so that it is postmarked by March 30, 2017, or you will not be able to sue, or continue to sue, Hardee's Restaurants, LLC, about the legal claims in this case. An exclusion request must include your name and address, state "I request exclusion from the Hardee's HEP-A Settlement in Spartanburg County, SC", be signed by you or your legal representative, and be mailed to: Spartanburg Hep-A Class Exclusions c/o The Notice Company P.O. Box 455 Hingham, MA 02043 If you exclude yourself you may not submit a Claim Form and you will not be entitled to share in the Class Award. Object: If you stay in the Settlement Class, you may object to the Settlement by filing with the Court, with copies to Class Counsel and to counsel for Hardee's Restaurants, LLC, a notice of intent to appear and/or object, no later than March 30, 2017. Court Address: The Court of Common Pleas of Spartanburg County 180 Magnolia Street Spartanburg, SC 29306 Class Counsel Address: William D. Marler, Esquire MARLER CLARK, L.L.P., P.S. 1012 First Avenue, Fifth Floor Seattle, WA 98104-1008 Defendant's Counsel Address: Kenneth W. Ward, Esq. TRAMMELL, ADKINS & WARD, P.C. P.O. Box 51450 Knoxville, TN 37950-1450 The Court of Common Pleas of Spartanburg County will hold a Final Approval Hearing at 10:00 a.m. on Monday, April 17, 2017, at 180 Magnolia Street, Spartanburg, SC 29306. At the hearing, the Court will consider whether the proposed settlement should be granted final approval as fair, adequate, and reasonable, and in the best interests of the Settlement Class as a whole. The Parties will request that the Court enter a Final Approval Order. You may attend this hearing if you wish, but you are not required to do so in order to participate in the Settlement. This Notice is only a Summary. To obtain a copy of the detailed Notice of Settlement, you may visit www.SpartanburgHepa.com, call 1-800-352-1270 or write to the Claims Administrator at the above address. You may also write to Class Counsel. PLEASE DO NOT DIRECT QUESTIONS TO THE COURT HERSHEY CO: Faces Class Action Over Jolly Rancher Slack Fill ------------------------------------------------------------ Louie Torres, writing for Legal Newsline, reports that a California man is suing Hershey, alleging fraud and unfair competition. David Greenstein filed a complaint Dec. 21 in Los Angeles County Superior Court against The Hershey Company and Does 1-5, alleging they packed their products with 50 percent non-functional slack fill. According to the complaint, in August, Greenstein purchased Jolly Rancher candies that contained in excess of 50 percent non- functional slack fill. The plaintiff alleges the defendants packaged their product in such a way that consumers could not tell that the bag has at least 50 percent none-functional slack fill. Greenstein seeks trial by jury, to enjoin the defendant, injunctive relief, actual damages, restitution, court costs and all further relief the court grants. He is representing himself. The defendant removed the case to U.S. District Court for the Central District of California on Feb. 13. U.S. District Court for the Central District of California case number 2:17-cv-01152-GW-JPR HOLLYWOOD STYLE: Faces "Heres" Suit Alleging FLSA Violations ------------------------------------------------------------ ISAAC G. HERES and other similarly-situated individuals, Plaintiff (s), v. HOLLYWOOD STYLE INC, ALBERT SETTON and SAMUEL ANIDJAR, individually, Defendants, Case No. 0:17-cv-60378- WPD (S.D. Fla., February 21, 2017), seeks to recover from Defendants half time overtime compensation, liquidated damages, and costs and reasonable attorney's fees under the provisions of Fair Labor Standards Act. Corporate Defendant HOLLYWOOD STYLE is a retail store specializing in selling beach outfits, related articles, souvenirs, and novelties. Defendant caters mostly to tourists and beachgoers. Plaintiff was hired as a full-time store attendant. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com HOSPITALITY VENTURES: Faces "Kelly" Suit Under FLSA, NC Law ----------------------------------------------------------- BRANDON KELLY, on behalf of himself and all others similarly situated, Plaintiff, v. HOSPITALITY VENTURES LLC, d/b/a UMSTEAD HOTEL AND SPA, NC CULINARY VENTURES LLC, d/b/a AN ASIAN CUISINE, SAS INSTITUTE INC., and ANN GOODNIGHT, Defendants, Case No. 5:17- cv-00098-FL (E.D.N.C., February 21, 2017), was brought to recover alleged unpaid minimum wages, unpaid overtime compensation, liquidated damages, and all related penalties and damages under the Fair Labor Standards Act. The case also alleges invalid and/or unauthorized deductions from wages, payment of all owed and promised wages, and for other relief as appropriate, under the North Carolina Wage and Hour Act. An Asian Cuisine is an extension of Defendant Umstead Hotel and Spa, offering customers a fine dining experience with authentic Asian cuisine. Defendant SAS Institute Inc. is an American multinational developer of analytics software based in Cary, North Carolina. Named Plaintiff worked as an hourly server for Defendants, waiting on customers and providing diners with upscale service and a fine dining experience. The Plaintiff is represented by: Gilda A. Hernandez, Esq. Michael B. Cohen, Esq. THE LAW OFFICES OF GILDA A. HERNANDEZ, PLLC 1020 Southhill Dr., Ste. 130 Cary, NC 27513 Phone: (919) 741-8693 Fax: (919) 869-1853 E-mail: ghernandez@gildahernandezlaw.com mcohen@gildahernandezlaw.com HUMANA INC: Wants Home Health Aides' OT Wage Class Action Tossed ---------------------------------------------------------------- Alana Stramowski, writing for Home Health Care News, reports that from the pause of the federal overtime rule to putting an end to overtime for home care workers in Illinois, overtime has been a hot topic in the last year. Insurance provider Humana Inc. is now feeling the sting as a lawsuit asking for class certification could potentially impact thousands of home health aides employed by the company's subsidiaries across the country. The company urged a Connecticut federal court to deny class certification to two home health aides who filed a lawsuit claiming they were shorted overtime pay while working for a subsidiary of Louisville, Kentucky-based Humana, according to court documents. The plaintiffs, Daverlyn Kinkead and Grenesha Upton, are seeking unspecified damages, attorneys' fees and an enjoinder that would force Humana to pay overtime to thousands of home health aides. Kinkead and Upton are seeking class certification on behalf of current and former Humana home health workers employed between January 2015 and October 2015, according to the complaint. However, Humana is opposing the certification, and states the motions presented by Kinkead and Upton rest on two flawed factual assumptions, court documents show. First, the plaintiffs argued that the certification should be granted because Humana had a national, uniform policy of improperly classifying all home health aides as exempt from overtime. Second was the argument that the certification should be granted because everyone who was classified as exempt worked more than forty hours, but didn't get overtime pay and is owed overtime. Both of these assumptions are false, the court documents say. "Plaintiffs have no evidence to explain to the court or rebut these legally significant distinctions, and do not present evidence which otherwise binds these disparate populations," the document says. "Plaintiffs' burden for conditional certification may be 'modest,' but plaintiffs' scant evidence that is specific to just two employees and two Humana subsidiaries fails to justify national conditional certification." It is also noted that Humana and Humana At Home are parent companies of multiple subsidiaries around the country and do not employ home health aides directly. If certification is granted by the court, the company stresses that the class should be limited to home health aides employed by only the two subsidiaries of Humana by which the plaintiffs were employed. Humana's home care sector has seen ups and downs, from increasing its home care bandwidth in the form of a 2015 acquisition to most recently laying off 500 workers from its home care unit, Humana At Home. IDENTIV INC: 9th Circuit Appeal Filed in "Cunningham" Class Suit ---------------------------------------------------------------- Plaintiff Thomas Cunningham filed an appeal from a court ruling in the lawsuit entitled Thomas Cunningham v. Identiv, Inc., et al., Case No. 3:15-cv-05775-CRB, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, District Judge Charles R. Breyer granted the Defendants' separate motions to dismiss the complaint. The case is a putative securities fraud class action based on alleged corporate excess at Identiv, Inc. pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Court appointed Thomas Cunningham as lead plaintiff. In May 2016, Cunningham filed the FAC on behalf of "himself and all other similarly situated purchasers" of Identiv securities during the Class Period. The appellate case is captioned as Thomas Cunningham v. Identiv, Inc., et al., Case No. 17-15220, pending before the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by March 6, 2017; -- Transcript is due on April 3, 2017; -- Appellant Thomas Cunningham's opening brief is due on May 15, 2017; -- Appellees Jason Hart, Identiv, Inc. and Brian Nelson's answering brief is due on June 15, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant THOMAS CUNNINGHAM, Individually and On Behalf of All Others Similarly Situated, is represented by: Lionel Z. Glancy, Esq. Robert Vincent Prongay, Esq. GLANCY BINKOW & GOLDBERG, LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 E-mail: lglancy@glancylaw.com rprongay@glancylaw.com - and - Frank J. Johnson, Esq. Phong L. Tran, Esq. JOHNSON & WEAVER, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Personal: 619-230-0063 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 E-mail: frankj@johnsonandweaver.com PhongT@johnsonandweaver.com Defendant-Appellee IDENTIV, INC., is represented by: Ryan Fawaz, Esq. PAUL HASTINGS LLP 695 Town Center Drive, 17th Floor Costa Mesa, CA 92626 Telephone: (714) 641-1100 E-mail: ryanfawaz@paulhastings.com - and - Christopher H. McGrath, Esq. PAUL HASTINGS LLP 4747 Executive Drive San Diego, CA 92121 Telephone: (858) 458-3000 E-mail: haroldmcgrath@paulhastings.com Defendant-Appellee JASON HART is represented by: Robert P. Varian, Esq. ORRICK HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 E-mail: rvarian@orrick.com Defendant-Appellee BRIAN NELSON is represented by: Sara Beth Brody, Esq. Nicole Marie Ryan, Esq. SIDLEY AUSTIN LLP 555 California Street, Suite 2000 San Francisco, CA 94104-1715 Telephone: (415) 772-1200 Facsimile: (415) 772-7400 E-mail: sbrody@sidley.com nicole.ryan@sidley.com ILLINOIS: "Heritage" Suit Seeks Certification of Class ------------------------------------------------------ In the lawsuit styled HERITAGE OPERATIONS GROUP, LLC, et al., the Plaintiffs, v. FELICIA F. NORWOOD, in her official capacity as the Director of the Illinois Department of Healthcare and Family Services, the Defendant, Case No. 1:16-cv-10614 (N.D. Ill.), the Plaintiffs ask the Court to certify a class of: "all disabled and/or medically needy persons who require long term care at a skilled nursing facility and have received nursing care at a skilled nursing facility managed and operated by Heritage Operations Group, LLC, who are eligible for Medicaid and who submitted Medicaid applications and either 1) have not received a determination on their application by Defendant within forty-five days of submitting their application, or 2) who were approved for Medicaid benefits, and who have not received payment for their nursing care within 12 months of the date that benefits were approved to begin". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=1ilT0q0d The Plaintiffs are represented by: Katie Z. Van Lake, Esq. SB2, INC. 1426 N. 3rd Street, Suite 200 Harrisburg, PA 17102 Telephone: (516) 509 1289 Facsimile: (717) 909 5925 E-mail: kvanlake@s-b-b.com INTERCONTINENTAL CAPITAL: Faces TCPA Class Action in California --------------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that a Canyon Country man alleges a real estate company unlawfully called him to solicit its services. Robert Bohlke filed a complaint on behalf of all others similarly situated on Feb. 15 in the U.S. District Court for the Central District of California against Intercontinental Capital Group Inc. and Does 1 through 10 alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that beginning in May 2016, he suffered damages from receiving several unwanted calls on his cellular telephone from the defendant in an attempt to solicit its services. The plaintiff holds Intercontinental Capital Group Inc. and Does 1 through 10 responsible because the defendants allegedly used an automatic dialing system to place calls. The plaintiff also alleges his number is listed on the National Do-Not-Call Registry. The plaintiff requests a trial by jury and seeks $500 in statutory damages, $1,500 in statutory damages, injunctive relief and any other relief as the court deems just. He is represented by Todd M. Friedman, Adrian R. Bacon and Meghan E. George of Law Offices of Todd M. Friedman P.C. in Woodland Hills. U.S. District Court for the Central District of California Case number 2:17-cv-01240-ODW-AFM JANKI HOSPITALITY: "Baltazar" Sues Over Unpaid Overtime Premiums ---------------------------------------------------------------- Carmela Baltazar, individually, and as the class representative of others similarly situated, Plaintiff, v. Janki Hospitality Inc. and Mukund D. Patel, Defendants, Case No. 8:17-cv-00304, (M.D. Fla., February 8, 2017), seeks to recover unpaid overtime wages, monies due and owing, liquidated damages, and reasonable attorneys' fees and costs. Baltazar was employed by Defendants as a housekeeper/maid from approximately March 2014 until present, cleaning rooms, laundry service and light maintenance. Plaintiff is represented by: Peter L. Tragos. Esq. TRAGOS, SARTES & TRAGOS, PLLC 601 Cleveland Street, Suite 800 Clearwater, FL 33755 Phone: (727) 441-9030 Facsimile: (727) 441-9254 Email: pctertragosfibgreeklaw.com linda@greekIaw.com JOIE DE VIVRE: Faces "Cornelius" Suit Under FLSA, Cal. Laws ----------------------------------------------------------- SAMANTHA CORNELIUS, an individual, and on behalf of others similarly situated, Plaintiff, vs. JOIE DE VIVRE HOSPITALITY, LLC, a Delaware corporation; COMMUNE HOTELS AND RESORTS, LLC, a Delaware limited liability company; COMMUNE SERVICES, LLC, a California limited liability company; THE SAGUARO PALM SPRINGS, a business form unknown; and DOES 1 through 100, inclusive, Defendants, Case No. 2:17-cv-01399 (C.D. Cal., February 21, 2017), was filed over the defendants' alleged systematic illegal payroll practices and policies. The case accuses Defendants of failing to provide PLAINTIFF and purported CLASS MEMBERS with proper meal periods by not providing any meal period at all (including second meal periods after ten hours of work) or authorizing and permitting meal periods that were less than 30 minutes, late (starting after the end of the fifth hour of work or after the end of the tenth hour of work), or interrupted; failing to provide proper rest periods by not providing any rest periods at all or providing rest periods that were less than 10 minutes, late, or interrupted; failing to pay one hour of pay at each employee's regular rate of compensation for missed meal and rest periods; failing to pay for all hours worked and for hours worked off the clock, including overtime compensation; and failing to provide accurate itemized wage statements as a result of the meal period, rest period, and overtime violations. These alleged illegal practices and policies were applied to PLAINTIFF and purported CLASS MEMBERS in violation of the Fair Labor Standards Act, the California Labor Code, the applicable Industrial Welfare Commission wage order, and the California Business and Professions Code which prohibits unfair business practices arising from such violations. Joie de Vivre Hospitality operates boutique hotels. PLAINTIFF was employed by DEFENDANTS as a non-exempt front office host at DEFENDANTS' hotel in Palm Springs, California. The Plaintiff is represented by: Daniel J. Bass, Esq. Tagore Subramanian, Esq. Matthew J. Matern, Esq. MATERN LAW GROUP 1230 Rosecrans Ave., Suite 200 Manhattan Beach, CA 90266 Phone: 310.531.1900 Fax: 310.531.1901 E-mail: mmatern@maternlawgroup.com tagore@maternlawgroup.com dbass@maternlawgroup.com JOLI VENTURES: "Anderson" Labor Suit to Recover Overtime Pay ------------------------------------------------------------ Sarah Anderson, individually, and as the class representative of others similarly situated, Plaintiff, v. Joli Ventures, Inc., Clearwater Beach Treats, LLC, John Sgro and Lisa Sgro, Defendants, Case No. 8:17-cv-00303, (M.D. Fla., February 8, 2016), seeks unpaid overtime wages, monies due and owing, liquidated damages, and reasonable attorneys' fees and costs under the Fair Labor Standards Act. Defendants operated two Dairy Queen locations in Pinellas County, Florida where Anderson was employed as a fast food worker from approximately April 16, 2015 until January 19, 2017, serving food, cleaning facilities, customer service and cashiering. Plaintiff is represented by: Peter L. Tragos, Esq. TRAGOS, SARTES & TRAGOS, PLLC 601 Cleveland Street, Suite 800 Clearwater, FL 33755 Phone: (727) 441-9030 Facsimile: (727) 441-9254 Email: petertragos@greeklaw.com linda@greeklaw.com L3 TECHNOLOGIES: Settles Shareholder Class Action for $84-Mil. -------------------------------------------------------------- Jack Newsham at Law360 reports that military contractor L3 Technologies Inc. will pay $34.5 million to settle accusations by shareholders that its statements leading up to the disclosure of an $84 million accounting error amounted to securities fraud, and their lawyers will seek up to a quarter of that amount in fees, according to papers filed in New York federal court on February 22. The lawsuits accused L3 of issuing figures over the first half of 2014 that lowballed expenses and led net income numbers to drop significantly, largely because workers who serviced C-12 aircraft for the U.S. Army were pressured to fudge their work forecasts upward to cover up cost overruns. The company failed to get the suit tossed last year and has fought over discovery for the past several months. Lead counsel Robbins Geller Rudman & Dowd LLP said in filings that it would seek up to 25 percent of the settlement fund, or $8.6 million, in legal expenses, plus $600,000 in costs. The firm said the figure was justified, given the class hadn't been certified and L3 still had defenses in its arsenal that could have swayed a jury, including an expert who said the accounting misconduct didn't boost the company's stock price. "Here, lead counsel obtained a settlement that represents approximately 26 percent of lead plaintiffs' expert's estimate of the maximum provable damages," the plaintiffs said. "This percentage far exceeds the median recovery in similar securities class actions settled in 2016. In fact, the median settlement as a percentage of ... investor losses of $100 million to $199 million, where this case falls, was 3.2 percent from 1996 through 2016," they added, citing a report by the consulting firm NERA. L3, which previously went by L-3 Communications Holdings Inc., was hit by several suits shortly after it disclosed accounting misconduct in its aerospace systems segment, which accounts for more than a third of its revenue. Heads rolled at the company and its stock dropped 12 percent on the day the matter was disclosed. According to the court's dismissal decision, the plaintiffs based their suit on testimony from former employees who said they were pressured to increase their estimates of engines to overhaul on Army aircraft. Although U.S. District Judge Valerie Caproni threw out the case against several senior employees and said the suit against L3 remained "fragil[e]," resting on vague and unexplained allegations, she allowed it to go forward. A spokeswoman for the company declined to comment on the settlement on February 23. David Rosenfeld of Robbins Geller Rudman & Dowd LLP, a lawyer for the plaintiffs, said in an email that he was pleased with the deal. The investors are represented by Samuel Rudman -- Samueld@rgrdlaw.com --, David Rosenfeld -- davidr@rgrdlaw.com -- Alan Ellman -- alane@rgrdlaw.com -- and Ellen Gusikoff Stewart -- elleng@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP, Thomas Michaud -- tmichaud@vmtlaw.com -- of Vanoverbeke Michaud & Timmony PC, and Cynthia J. Billings -- cbdunn@swappc.com -- of Sullivan Ward Asher & Patton PC. L-3 is represented by Paul Curnin -- Paul.Curnin@stblaw.com -- Michael Garvey -- Michael.Garvey@stblaw.com -- and David Elbaum -- david.elbaum@stblaw.com -- of Simpson Thacher & Bartlett LLP. The consolidated case is Patel et al. v. L-3 Communications Holdings Inc. et al., case number 1:14-cv-06038, in the U.S. District Court for the Southern District of New York. LAS VEGAS SANDS: Pompano Police Fund Appeals "Fosbre" Suit Ruling ----------------------------------------------------------------- Lead Plaintiffs Pompano Beach Police & Firefighters' Retirement System and Alaska Electrical Pension Fund filed an appeal from a court ruling in the consolidated securities lawsuit titled FRANK J. FOSBRE, JR., et al. v. LAS VEGAS SANDS CORPORATION, et al., Case No. 2:10-cv-00765-APG-GWF, in the U.S. District Court for the District of Nevada, Las Vegas. As previously reported in the Class Action Reporter, Judge Andrew P. Gordon issued an order: (1) granting the defendants' motions for summary judgment, (2) denying as moot the defendants' motion to exclude testimony, (3) denying the plaintiffs' motion to strike reply, and (4) granting the plaintiffs' motion to file supplement. Las Vegas Sands Corporation (LVS) operates resorts and gaming properties in Las Vegas, Macao, and Singapore. The plaintiffs contended they purchased LVS stock at artificially high prices between August 2, 2007 and November 5, 2008 because during that period LVS allegedly made various false and misleading public statements about its development plans and liquidity. The plaintiffs brought claims under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 against defendants LVS, Sheldon Adelson, and William Weidner, and under section 20(a) of the Act against Adelson and Weidner for "control person" liability. The appellate case is captioned as Pompano Beach Police & Firefighters' Retirement System, et al. v. Las Vegas Sands Corporation, et al., Case No. 17-15216, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by March 6, 2017; -- Transcript is due on April 3, 2017; -- Appellants Alaska Electrical Pension Fund and Pompano Beach Police & Firefighters' Retirement System's opening brief is due on May 15, 2017; -- Appellees Sheldon G. Adelson, Las Vegas Sands Corporation and William P. Weidner's answering brief is due on June 15, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellants POMPANO BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM and ALASKA ELECTRICAL PENSION FUND, Lead Plaintiffs, On Behalf of Themselves and All Others Similarly Situated, are represented by: Spencer A. Burkholz, Esq. Christopher Dennis Stewart, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-742 E-mail: spenceb@rgrdlaw.com cstewart@rgrdlaw.com Defendants-Appellees LAS VEGAS SANDS CORPORATION and SHELDON G. ADELSON are represented by: James Ducayet, Esq. SIDLEY AUSTIN LLP 1 South Dearborn Street Chicago, IL 60603 Telephone: (312) 853-7000 E-mail: jducayet@sidley.com - and - Akke Levin, Esq. Steve Morris, Esq. MORRIS LAW GROUP 300 South Fourth Street Las Vegas, NV 89101 Telephone: (702) 474-9400 E-mail: al@morrislawgroup.com sm@morrislawgroup.com Defendant-Appellee WILLIAM P. WEIDNER is represented by: Daniel Scott Carlton, Esq. Sarah Elisabeth Kelly-Kilgore, Esq. William Francis Sullivan, Esq. PAUL HASTINGS LLP 515 South Flower Street Los Angeles, CA 90071 Telephone: (213) 683-6113 Facsimile: (213) 996-3113 E-mail: scottcarlton@paulhastings.com sarahkellykilgore@paulhastings.com williamsullivan@paulhastings.com - and - Tamara Beatty Peterson, Esq. PETERSON BAKER, PLLC 10001 Park Run Drive Las Vegas, NV 89145 Telephone: (702) 786-1001 Facsimile: (702) 786-1002 E-mail: tpeterson@petersonbaker.com LINCARE INC: Wins Partial Summary Judgment in "Culley" ------------------------------------------------------ Judge Morrison C. England of the U.S. District Court for the Eastern District of California granted in part and denied in part the defendants' motion for partial summary judgment, in the case CHRISTINA CULLEY, Plaintiff, v. LINCARE INC.; ALPHA RESPIRATORY INC.; and DOES 1 through 50, Defendants, No. 2:15-cv-00081-MCE-CMK (E.D. Cal.). Defendants Lincare Inc. and Alpha Respriatory Inc. employed Christina Culley as a Healthcare Specialist from September 2010 through September 2015. Lincare Inc. paid Culley on an hourly basis, and she received a bonus as additional compensation. In addition to eight-hour shifts, Culley was also expected to be on- call certain evenings and weekends to handle customer issues that cropped up outside regular business hours. Culley worked as a non-exempt employee and claims she was entitled to overtime pay and meal and rest breaks. Culley alleges various employment claims under California law against Lincare and Alpha Respriatory. Culley originally initiated the action in state court on October 21, 2014, and the defendants subsequently removed the case to the Eastern District of California. Two months later, on December 15, 2014, the Plaintiff sent a letter to California's Labor and Workforce Development Agency ("LWDA"), notifying the LWDA of Alpha's alleged labor violations. On January 21, 2016, Culley filed a First Amended Complaint to include her PAGA claims. On August 10, 2016, the court certified plaintiff's two proposed classes, defined as: (1) all individuals who are or previously were employed by defendants as nonexempt employees during October 21, 2010, to the present (the Class Period), for (a) failure to pay overtime wages under the UCL and California Labor Code section 510 (the overtime claim), and (b) failure to put in place a lawful meal period policy applicable up to the change in policy occurring in October 2014 under the UCL (the meal period claim), and (2) a subclass of Healthcare Specialist and Service Representative employees for failure to pay reporting time wages under the UCL (the reporting time claim). The Defendants moved for partial summary judgment seeking to dispose of several issues, including the scope of the relevant California laws and the calculation of damages under those laws, prior to trial. Judge England granted in part and denied in part the defendants' motion for summary judgment. The Defendants' motion regarding reporting time pay is granted. Judge England held that the Plaintiff's claims fail to the extent they allege a provision of two hours' pay is required when an employee does not physically report for work. The Defendants' motion regarding second meal breaks is granted, after the Court concluded that the Plaintiff's claims fail to the extent they allege a second meal break is required separate and apart from a break between two work periods that cumulatively result in a work day of ten or more hours. The Defendants' motion regarding the plaintiff's claim that her regular rate of pay should have included her bonus in calculating overtime pay is denied. Defendants' motion regarding plaintiff's claims premised on California Labor Code Section 256 is granted. Plaintiff's Section 256 claims fail. Defendants' motion regarding PAGA's statute of limitations is granted in part. Plaintiff's PAGA claims are time-barred as to any alleged labor code violations that occurred prior to December 15, 2013. Defendants' motion regarding defendants' meal time policy change is granted. Plaintiff may not pursue PAGA claims for meal time violations that occurred after defendants' October 2014 policy change due to the failure to provide adequate notice under California Labor Code Section 2699.3(a)(1)(A).7. Defendants' motion challenging the sufficiency of plaintiff's notice under California Labor Code Section 2699.3(a)(1)(A) to pursue the civil penalties set out in California Labor Code Section 558 is denied. Defendants' motion regarding whether plaintiff can recover civil penalties under California Labor Code Section 2699(f) for wage statement violations is granted. Plaintiff may not recover such civil penalties. Defendants' motion regarding statutory remedies and civil penalties for meal time violations is denied. For meal time violations, plaintiff can seek both the statutory remedy provided in Section 226.7 as an individual and the civil penalties defined in Section 558 under PAGA. Defendants' motion regarding plaintiff's claims under California Labor Code Section 203 for nonpayment of wages premised on a failure to pay meal time penalties is granted. Plaintiff may not pursue such claims. Defendants' motion regarding plaintiff's claims under California Labor Code Section 226 for wage statement violations premised on a failure to pay meal time penalties is granted. Plaintiff may not pursue such claims. Defendants' motion regarding plaintiff's attempt to recover interest under California Labor Code Section 218.6 for failure to pay meal time penalties is granted. Defendants' motion regarding the ability to recover underpaid wages pursuant to PAGA is granted. Any recovery of underpaid wages pursuant to PAGA shall only be sufficient to recover those wages once, taking into consideration any and all recovery plaintiff ultimately obtains. Defendants' motion regarding the availability of civil penalties under Section 558 is denied. Plaintiff may collect reporting time pay and meal period premium wages as a civil penalty under Section 558.15. Defendants' motion regarding plaintiff's claims under California Labor Code Section 1198 is granted. A copy of Judge England's memorandum and order dated February 21, 2017, is available at https://goo.gl/3akMQX from Leagle.com. Christina Culley, Plaintiff, represented by Norman Blumenthal -- norm@bamlawca.com -- Aparajit Bhowmik -- aj@bamlawlj.com -- Ruchira Piya Mukherjee -- piya@bamlawlj.com -- Victoria Bree Rivapalacio -- victoria@bamlawca.com -- at Blumenthal Nordrehaug & Bhowmik Defendants, represented by David Cheng -- dcheng@fordharrison.com -- Todd S. Aidman -- taidman@fordharrison.com -- Alexandria M. Witte -- awitte@fordharrison.com -- at Ford & Harrison LLP MASTERCARD INC: NRF, RILA Want Swipe-Fee Settlement Nixed --------------------------------------------------------- Convenience Store News reports that as retailers fight to keep debit card swipe-fee reform in place, they are also keeping an eye on a class-action settlement over credit card fees that was struck down in the courts. The National Retail Federation (NRF) and the Retail Industry Leaders Association (RILA) have asked the U.S. Supreme Court to let stand an appeals court ruling that struck down a 2012 settlement of a class action lawsuit over Visa Inc. and MasterCard Inc.'s credit card swipe fees. "This alleged 'settlement' was a backroom deal that would have done nothing to end price fixing or keep swipe fees from soaring in the future," NRF Senior Vice President and General Counsel Mallory Duncan said. "Even worse, it includes a provision that would keep merchants from ever suing over this issue again. The Circuit Court did the right thing in tossing this case out and it should not be revived. There are ways to bring swipe fees under control but this settlement is not one of them." According to Mr. Duncan, this is not just a business-to-business dispute. "These fees drive up the price of retail merchandise, costing the average family hundreds of dollars a year in added expenses," the executive added. SETTLEMENT TOSSED In late June, the 2nd U.S. Circuit Court of Appeals in New York threw out the $7.25-billion antitrust settlement among Visa, MasterCard and millions of retailers over credit card fees. In the move, the federal appeals court said some of the retailers were inadequately represented in the litigation, as CSNews Online previously reported. It also decertified the case as a class action. The court's decision overturned a July 2012 agreement that settled claims that the credit card companies overcharged merchants on swipe fees -- also known as interchange fees. U.S. District Judge John Gleeson in Brooklyn, who has since left the bench, had approved the settlement in 2013. The settlement had been the largest all-cash antitrust accord in U.S. history. One class of merchants that accepted Visa or MasterCard from January 2004 to November 2012 was to share up to $7.25 billion, while a second class accepting the cards from then on was to get injunctive relief in the form of rule changes. But many retailers objected, saying the settlement, among other things, forced members of the second class to give up their right to sue over various policies and practices. Writing for the appeals court, Circuit Judge Dennis Jacobs said the two classes should not have been represented by the same lawyers, who were awarded $544.8 million in fees. He said the lawyers suffered from a "fundamental conflict," having been in position to negotiate terms that could simultaneously benefit one class and harm the other. "We have reason to think that that occurred here," and in the end "sapped class counsel of the incentive to zealously represent" the class obtaining injunctive relief, Judge Jacobs said. RETAILERS REJECTION According to NRF, Judge Gleeson approved the settlement even though the organization and others argued that it failed to reform the price-fixing system under which Visa and MasterCard set fees for credit cards issued by thousands of banks. Rather than lower the fees, the card companies proposed in the settlement that they be passed along to consumers as a surcharge. Major retailers rejected the surcharge proposal, saying it was the opposite of what they sought, while small retailers would have seen as little as a few hundred dollars each. Retailers who rejected the monetary settlement would still have been bound by other restrictions the court would not let them opt out of, including a prohibition on future lawsuits over the fees, according to NRF. In 2014, NRF asked the 2nd Circuit to overturn the settlement, saying a broad cross section of the retail industry ranging from independent Main Street stores to national chains opposed the deal. "The settlement itself achieved nothing important for merchants that accept credit cards, which is why every prominent group that represents merchants has opposed it," NRF and RILA said in a joint brief filed Feb. 21 with the Supreme Court. "This deal is a bad one, unworthy of resuscitation." METROPOLITAN LIFE: Dismissal of "Shadow Insurance" Suit Affirmed ---------------------------------------------------------------- Rick Archer at Law360 reports the Second Circuit affirmed on February 23 the dismissal of a proposed policyholder class action against Metropolitan Life Insurance Co. and AXA Life Insurance Co. over "shadow insurance" transactions, saying the plaintiffs failed to allege injury. The panel found that neither the policyholder claims of New York state insurance law violations nor the arguments of increased risks of unpaid claims and future loss of benefits were sufficient to give them Article III standing. "Like appellants' 'increased risk' claim, any injury for a possible inability of AXA and MLIC to fully pay out the life insurance and annuity rider claims in the future is speculative and hypothetical," the panel said in its summary order. The policyholders contend that AXA's and MetLife's use of captive reinsurance -- dubbed "shadow insurance" in a scathing report from state regulators -- runs afoul of a New York insurance law provision barring insurers from lying about their financial stability or reserve system. The suits came in the wake of a 2013 report from the New York State Department of Financial Services finding that some New York- based life insurers were creating subsidiaries to reinsure their claims, allowing the parent insurers to artificially reduce the amount of capital they were required to hold and putting their policyholders -- and the entire financial system -- at risk. While a lower court found a lack of injury meant there was no standing to sue, the policyholders argued that they suffered harm because they face an increased risk of nonpayment in light of the decreased capital buffers and that New York insurance law specifically provides a private right of action for policyholders to sue insurers who misrepresent their financial condition. The insurers argued that the policyholders had failed to establish they had sustained the injuries required to have standing, and the panel agreed, saying they had failed to show the misrepresentations alleged in the state law claim caused them to purchase the policies. "Appellants also fail to allege, or even suggest, that consumers generally would not have purchased AXA's and MLIC's life insurance and annuity riders had they known about the alleged shadow insurance practices," they said. The panel also dismissed the claim that the plaintiffs' future benefits would be put in jeopardy by an economic downturn as "too far down the speculative chain." "Such an economic downturn is not only speculative itself but also simply the first of many necessary conditions that must be fulfilled (including a bank lender of a letter of credit refusing to renew its outstanding LOCs to the reinsurer or, alternatively, the parent company or the New York Department of Financial Services pressuring AXA or MLIC not to draw down the available LOC) in order for the risk appellants posit to cause them harm," they said. Counsel for the plaintiffs, AXA and MetLife did not immediately respond to requests for comment on February 23. Judges John M. Walker Jr., Rosemary S. Pooler and Barrington D. Parker sat on the Second Circuit panel. The plaintiffs are represented by Timothy W. Burns -- TBurns@perkinscoie.com -- David J. Harth -- dharth@perkinscoie.com -- Jeff J. Bowen -- JBowen@perkinscoie.com -- Freya K. Bowen -- FBowen@perkinscoie.com -- Eric D. Miller -- EMiller@perkinscoie.com -- of Perkins Coie LLP, Edward W. Ciolko - - eciolko@ktmc.com -- of Kessler Topaz Meltzer & Check LLP and Glen L. Abramson -- gabramson@bm.net -- of Berger & Montague PC. AXA is represented by Brad S. Karp, Bruce Birenboim -- bbirenboim@paulweiss.com --, Elizabeth M. Sacksteder -- esacksteder@paulweiss.com -- and Justin D. Lerer -- jlerer@paulweiss.com -- of Paul Weiss Rifkind Wharton & Garrison LLP. MetLife is represented by Patrick J. Gennardo -- Patrick.Gennardo@denrons.com and Sandra D. Hauser -- Sandra.Hauser@dentons.com of Dentons. The cases are Jonathan Ross et al. v. AXA Equitable Life Insurance Co., case number 15-2665; Calvin W. Yarbrough v. AXA Equitable Life Insurance Co., case number 15-3553; Maria Del Carmen Robainas et al. v. Metropolitan Life Insurance Co., case number 15-3504; and Mark Andrew Intoccia Sr. et al. v. Metropolitan Life Insurance Co., case number 15-4189; all in the U.S. Court of Appeals for the Second Circuit. MILWAUKEE: Police Faces Class Action Over Stop-and Frisk Policies ----------------------------------------------------------------- Nicole Hensley, writing for New York Daily News, reports that the Milwaukee Police Department will need to defend its controversial use of stop-and-frisk policies in light of a class-action lawsuit lodged by the American Civil Liberties Union, according to a report. The nonprofit is representing Charles Collins, 67, and numerous others in the Wisconsin city, with a class-action case accusing the police force led by Chief Edward Flynn of racially profiling with quotas. In an interview with Reason magazine, Mr. Collins cited one instance in 2014 when an officer pulled him over just to see his driver's license and check for weapons. "We're not the ticket police," the officer reportedly told Mr. Collins when asked if he had been speeding. Mr. Collins claims Milwaukee police have stopped him without probable cause countless times. Mr. Flynn has overseen the department since 2008. "As a brother or black man living in Milwaukee, it's not an unusual thing," Mr. Collin told Reason. "When I leave my home, I leave with apprehension. Not that it's in your face, but it's there. I feel there's a good possibility that I'll get shot or pulled over." "It's in me, you know what I'm saying? I can feel it." A teen boy is among the policy's challenges. He claims he has been stopped by Milwaukee cops three times -- once as a fifth- grader, again in seventh grade and most recently while walking to his high school. The lawsuit, expected to be filed as early as Feb. 22, will detail a pattern of abuse with its "high-volume, suspicionless stop-and-frisk program," court documents state. The city has already faced dozens of lawsuits challenging police tactic. The lawsuit comes on the heel of the ACLU scoring a large round of donations while battling the Trump administration's travel ban. Its attorneys will claim that Milwaukee's policy violates Title VI civil rights, the Fourteenth Amendment and Fourth Amendment protections against unreasonable searches and seizures. New York City has led the way in bringing down stop-and-frisk practices. In 2013, a federal judge found the NYPD's use of stop-and-frisk in predominantly black and Latino communities unconstitutional. Cops have conducted more than five million impromptu street interrogations since 2002, according to the New York Civil Liberties Union. The ACLU lawsuit will allege that Milwaukee's use of the NYPD's CompStat to monitor crime statistics has fueled a quota among officers, according to Reason. High-profile minority deaths, such as Eric Garner in NYC and Michael Brown in Ferguson, Mo., at the hands of law enforcement has created a heightened awareness of police abuse of power and sparked the Black Lives Matter movement. A police shooting in Milwaukee sparked two nights of violent unrest in 2016. Former police officer Dominique Heaggan-Brown fatally shot the gun-toting Sylville Smith, 23, after he fled traffic stop. The rookie cop was fired from the Milwaukee department following sexual assault claims. A man told police Heaggan-Brown raped him after a drunken night at a bar, watching the fiery riots on TV. He was later charged with reckless homicide in Smith's death. He allegedly fired the fatal shots after Smith was disarmed. MORTON COUNTY, ND: Dundon, et al. Files Appeal to 8th Cir. ---------------------------------------------------------- Plaintiffs Vanessa Dundon, Mariah Marie Bruce, David Demo, Guy Dullknife III, Frank Finan, Israel Hoagland-Lynn, Noah Michael Treanor, Crystal Wilson and Jade Kalikolehuaokal Wool filed an appeal from a court order denying their motion for preliminary injunction entered on February 7, 2017, in the lawsuit styled Vanessa Dundon, et al. v. Kyle Kirchmeier, et al., Case No. 1:16- cv-00406-DLH, in the U.S. District Court for the District of North Dakota - Bismarck. Kyle Kirchmeier is the Sheriff of Morton County, North Dakota. As previously reported in the Class Action Reporter, the Plaintiffs seek damages and injunctive relief arising from curtailment of their First and Fourth Amendment rights. On November 20, 2016, the Plaintiffs gathered to pray and to peacefully protest the continued construction of Dakota Access Pipeline and the ongoing blockage of the public highway 1806. Police officers from the Morton County Sheriff's Department, City of Mandan Police Department and Stutsman County Sheriff's Department deployed teargas and fired water cannons to disperse them. The appellate case is captioned as Vanessa Dundon, et al. v. Kyle Kirchmeier, et al., Case No. 17-1306, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on or before March 21, 2017; -- Appendix is due on March 31, 2017; -- Brief of Appellants Mariah Marie Bruce, David Demo, Guy Dullknife III, Vanessa Dundon, Frank Finan, Israel Hoagland-Lynn, Noah Michael Treanor, Crystal Wilson and Jade Kalikolehuaokal Wool is due on March 31, 2017; -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 14 days from the date the court issues the Notice of Docket Activity filing the appellee brief. Plaintiffs-Appellants Vanessa Dundon, Jade Kalikolehuaokal Wool, Crystal Wilson, David Demo, Guy Dullknife, III, Mariah Marie Bruce, Frank Finan, Israel Hoagland-Lynn and Noah Michael Treanor, on behalf of themselves and all similarly-situated persons, are represented by: Alexsis Beach, Esq. Rachel Lederman, Esq. RACHEL LEDERMAN & ALEXSIS C. BEACH, ATTORNEYS 558 Capp Street San Francisco, CA 94110 Telephone: (415) 282-9300 Facsimile: (510) 596-9296 E-mail: rlederman@2momslaw.com rachel@bllaw.info - and - Melinda Power, Esq. WEST TOWN LAW OFFICE 2502 W. Division Street Chicago, IL 60622 Telephone: (773) 278-6706 Facsimile: (773) 278-0635 E-mail: melindapower@comcast.net - and - Lauren C. Regan, Esq. CIVIL LIBERTIES DEFENSE CENTER 783 Grant Street, Suite 200 Eugene, OR 97402 Telephone: (541) 687-9180 Facsimile: (541) 804-7391 E-mail: lregan@cldc.org Defendants-Appellees Kyle Kirchmeier, Morton County, City of Mandan, Jason Ziegler, Stutsman County and Chad Kaiser are represented by: Randall J. Bakke, Esq. Shawn A. Grinolds, Esq. Bradley Neuman Wiederholt, Esq. BAKKE GRINOLDS WIEDERHOLT ATTORNEYS AT LAW 300 W. Century Avenue P.O. Box 4247 Bismarck, ND 58502-4247 Telephone: (701) 751-8188 Facsimile: (701) 751-7172 MURPHY PAINTERS: Faces "Laferte" Suit Alleging FLSA Violations -------------------------------------------------------------- MARIO LAFERTE, and other similarly situated individuals, Plaintiffs, v. MURPHY PAINTERS, INC. and GERALD MURPHY, Defendants, Case No. 0:17-cv-60376-BB (S.D. Fla., February 21, 2017), seeks to recover alleged unpaid overtime compensation, as well as an additional amount as liquidated damages, costs, and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. The Defendant is a painting and construction company. The Plaintiff was employed by Painters as a painter and driver for the business. The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Ste. 800 Aventura, FL 33180 Phone: (305) 503.5131 Fax: (888) 270.5549 Email: msaenz@saenzanderson.com NEW MIAMI, OH: Speed Camera Case Lawyers Seek $300,000 Interest --------------------------------------------------------------- Denise Callahan, writing for Journal-News, reports that lawyers for drivers in the New Miami speed camera case not only want the village to settle immediately, but they also now want more than $300,000 in interest. One of the speeders' attorneys, Josh Engel, said interest on the unconstitutional fines has been calculated at $355,613, so the total amount owed now is $3.4 million. Mr. Engel called on the village to quickly end the four-year battle over speed cameras. "We will be asking the court to order New Miami to immediately pay back all motorists, with interest," Mr. Engel said. "Rather than continuing to drag this matter out for years in the Court of Appeals and spend another hundred thousand dollars on lawyers, we call on New Miami to finally acknowledge the decision of the court, accept responsibility for its unconstitutional scheme, and come to the table with a fair and just settlement offer that will allow people to receive payments immediately." New Miami's outside counsel James Englert said he cannot discuss settlement talks. As for giving up the fight, he said speed camera programs have already been approved by the Ohio Supreme Court, a fact he said class action lawyers tend to ignore, so they will continue to defend the case on remaining claims. "The administrative hearings were fair, and the village looks forward to review of that issue," Mr. Englert said. "The village of New Miami has complied with Ohio law and places the interests of its inhabitants and safety of motorists above the efforts of class action lawyers." A judge ruled two weeks ago that the village has received ill gotten gains from an unconstitutional speed camera program and said the speeders are due a $3 million refund. NEW YORK: 2d Cir. Affirms Summary Judgment in Detainees' Suit ------------------------------------------------------------- The United States Court of Appeals, Second Circuit, affirmed in part, vacated in part, and remanded the case, KEVIN DARNELL, GERMAIN CANO, MICHAEL GLENN, MICHAEL MCGHEE, KERRY SCOTT, TRAVIS GORDAN, GREGORY MAUGERI, DMITRIY MILOSLAVSKIY, STEVEN MODES, JACQUELINE GUARINO, MICHAEL SPALANGO, WESLEY JONES, RAYMOND TUCKER, YVONNE MING, NANCY VIGLIONE, KEITH JENNINGS, ELLI VIKKI, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, ERIC CEPHUS, PHILLIP SINGLETON, DEBORAH GONZALEZ, Plaintiffs-Appellants, Nakaita Moore, Jahmel Lawyer, Peter Eppel, Plaintiffs, v. RAFAEL PINEIRO, WILLIAM TOBIN, CITY OF NEW YORK, KENNETH KOBETITSCH, Defendants-Appellees, Deputy Commissioners John Does, 1-5, (representing the Deputy Commissioners who supervised the operation of Brooklyn Central Booking from June 12, 2010 to the present), Police Officers John Does, 1-5, (representing the commanding officers of Brooklyn Central Booking from June 12, 2010 to the present), Police Commissioner Raymond Kelly, Defendants, Docket No. 15-2870 (2d Cir.). The Plaintiffs are 21 detainees arrested on separate dates between July 10, 2011, and July 23, 2013. The Plaintiffs brought individual Section 1983 claims in the same complaint against the City of New York, New York City Police Department Captain Kenneth Kobetitsch, and NYPD Captain William Tobin in their individual capacities. The plaintiffs alleged that they were each subjected to appalling conditions of confinement while held pre-arraignment at Brooklyn Central Booking (BCB) with deliberate indifference to the deprivation of their Fourteenth Amendment due process rights. Because BCB was only a pre-arraignment holding facility, no plaintiff was held at BCB for more than twenty-four hours. The United States District Court for the Eastern District of New York granted summary judgment to the defendants, reasoning that the plaintiffs failed to meet both the objective and subjective requirements for a claim of unconstitutional conditions of confinement based on a theory of deliberate indifference. The District Court concluded that, with respect to the objective prong, no plaintiff could establish an objectively substantial deprivation of any constitutional rights because no plaintiff actually suffered a serious injury, or was regularly denied his or her basic human needs or was exposed to conditions that posed an unreasonable risk of serious damage to his or her future health for more than twenty-four hours, nor could any plaintiff establish the subjective prong of a deliberate indifference claim by proving that the individual defendants were actually aware of any dangerous conditions, or that the individual defendants acted unreasonably in responding to any such conditions, nor, for similar reasons, could the plaintiffs establish that the individual defendants acted with punitive intent. The District Court issued its opinion shortly after the Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), in which the Supreme Court held that, for excessive force claims brought under the Due Process Clause of the Fourteenth Amendment, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable. The District Court's opinion was also issued two weeks before the United States Court of Appeals, Second Circuit's decision in Willey v. Kirkpatrick, 801 F.3d 51, 66-68, in which the court held that while the proper inquiry for a conditions of confinement claim is by reference to the duration and severity of the conditions, the claim did not require a minimum duration or minimum severity to reach the level of a constitutional violation. The court further made clear that a serious injury is unequivocally not a necessary element of an Eighth Amendment conditions of confinement claim. The Second Circuit affirmed in part, and vacated in part, the district court's judgment, and remanded the case to the United States District Court for the Eastern District of New York. The district court rejected the requirement that, for such claims, a pretrial detainee establish a state of mind component to the effect that the official applied the force against the pretrial detainee "maliciously and sadistically to cause harm. The district court did not also analyze the implications of Kingsley in its opinion. Moreover, the district court denied the plaintiffs' motion for reconsideration based on Willey, as well as the plaintiffs' later motion for reconsideration of the order denying the first motion for reconsideration, because the district court found that the plaintiffs' appeal of the summary judgment order divested it of jurisdiction over the case. A copy of Judge Koeltl's opinion dated February 21, 2017, is available at https://goo.gl/rN0joK from Leagle.com. For Plaintiffs-Appellants: Scott A. Korenbaum, Esq. 11 Parl Pl New York, NY 10007 Telephone: 212-587-0018 - and - Stephen Bergstein, Esq. Bergstein & Ullrich, LLP 5 Paradies Lane New Paltz, NY 12561 Telephone: 845-469-1277 Zachary CW. Carter, Richard Dearing, Devin Slack, Kathy Chang Park,, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees The United States Court of Appeals, Second Circuit panel consists of Judges John G. Koeltl, Pierre N. Leval and Raymond J. Lohier, Jr. NIKE INC: Judge Dismisses Outlet Price Tag Class Action ------------------------------------------------------- Fola Akinnibi, writing for Law360, reports that an Oregon federal judge has dismissed a consumer's proposed class action suit against Nike Inc., throwing out claims that the company duped shoppers at its outlet stores with false suggested retail prices on items, leading them to believe that they were getting a discount. U.S. District Judge Michael Mosman found on Feb. 17 that Monika Taylor did have standing to bring the suit against the athletic apparel giant, but he ultimately ruled that she didn't adequately plead fraud in the proposed consumer class action suit, according to the opinion. The dismissal does, however, leave room for Taylor to amend her suit. Ms. Taylor has failed to show exactly how Nike went about its fraud, and it is unclear how exactly the suggested retail price misled consumers. She fails to specify whether she is referring to a past price that the items were sold for at the outlet or other stores and whether an independent manufacturer determined the price of the products, among other questions, the opinion says. "It is difficult to identify Ms. Taylor's theory of fraud in a way that allows Nike to adequately defend against the allegations," the opinion says. "Thus, plaintiff has failed to sufficiently plead how she and reasonable consumers understand the [suggested] retail price to be a former price." Judge Mosman dismissed all of the claims under California's false advertising law, its Consumers' Legal Remedies Act, the Unfair Competition Law and unjust enrichment claims. Representatives for both parties did not immediately respond to requests for comment on Feb. 22. In April, Ms. Taylor, a California resident, filed the suit alleging deceptive and misleading labeling of products at company- owned outlet stores. She had gone to the company's outlet store in California back in June 2015. While shopping, the complaint alleges, she noticed that some of the items included a tag with the manufacturer's suggested retail price and the company's price for the item, which was at a significant discount. Ms. Taylor purchased multiple items from the store based on these representations and the assumption that she was getting a discount from the price that the items were sold at previously, court documents said. However, she alleged, the company never sold these items at the MSRP, meaning she was tricked into buying the items at their full retail price. Nike moved to dismiss the case in June 2016, according to court documents, on the grounds that Taylor had not stated a claim and that her charges fail under California consumer protection laws. Ms. Taylor is represented by Shannon Armstrong -- ShannonArmstrong@MarkowitzHerbold.com -- and J. Matthew Donohue -- MattDonohue@MarkowitzHerbold.com -- of Markowitz Herbold PC, along with Jeffrey Kaliel of Tycko & Zavareei LLP. Nike is represented by Michelle Doolin -- mdoolin@cooley.com -- and Darcie Tilly -- dtilly@cooley.com -- of Cooley LLP and Brad Daniels -- brad.daniels@stoel.com -- of Stoel Rives LLP. The case is Taylor v. Nike Inc., case number 3:16-cv-00661, in the U.S. District Court for the District of Oregon, Portland Division. OMNI LIMOUSINE: McSwiggin Appeals D. Nevada Ruling to 9th Circuit ----------------------------------------------------------------- Plaintiff Christy McSwiggin filed an appeal from a court ruling in the lawsuit entitled Christy McSwiggin, et al. v. Omni Limousine, Case No. 2:14-cv-02172-JCM-NJK, in the U.S. District Court for the District of Nevada, Las Vegas. As previously reported in the Class Action Reporter on Feb. 6, 2017, District Judge James C. Mahan denied the Plaintiffs' motion for class certification. The Plaintiffs filed a class action complaint on December 19, 2014, alleging seven causes of action against the defendant involving their compensation for their employment as "Chauffeurs/Limousine drivers." In his Order dated January 23, 2017, available at https://is.gd/xQ0XpY from Leagle.com, Judge Mahan denied class certification saying the motion was overdue and failed to comply with the numerosity requirement. The appellate case is captioned as Christy McSwiggin, et al. v. Omni Limousine, Case No. 17-80015, in the United States Court of Appeals for the Ninth Circuit. Plaintiffs-Petitioners CHRISTY MCSWIGGIN and KEVIN MCSWIGGIN, on behalf of themselves, the general public and all others similarly situated, are represented by: Joshua D. Buck, Esq. Leah Lin Jones, Esq. Mark Russell Thierman, Esq. THIERMAN BUCK, LLP 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 Facsimile: (775) 703-5027 E-mail: josh@thiermanlaw.com leah@thiermanbuck.com mark@thiermanbuck.com Defendant-Respondent OMNI LIMOUSINE, a Nevada Corporation, is represented by: Anthony L. Hall, Esq. HOLLAND & HART LLP 5441 Kietzke Lane Reno, NV 89511 Telephone: (775) 327-3000 Facsimile: (775) 786-6179 E-mail: ahall@hollandhart.com PALOS VERDES, CA: Judge Tosses Suit Against Lunada Bay Boys ----------------------------------------------------------- Cynthia Washicko and Megan Barnes, writing for The Daily Breeze, report that in a blow to plaintiffs accusing a group of Palos Verdes Estates surfers of operating as a criminal gang, a federal court judge denied the case class-action status. The ruling by U.S. District Court Judge James Otero rejected plaintiffs' arguments that thousands of people have been adversely affected by the behavior of the surfers, known as the Bay Boys. The ruling limits the number of plaintiffs in the lawsuit -- a positive development for the defendants. "Our position has been the same from the beginning, so in that sense it was nothing surprising," said attorney Pat Carey, who represents one of the defendants. "We didn't think this was a class action from the beginning, so it just finally came to a point where the court is beginning to formally agree with our position." However, attorneys for the plaintiffs said their case is far from over. In March 2016, a lawsuit filed in federal court sought an injunction to keep the surfers from gathering on the beach, claiming they use threats and violence to keep outsiders away from their prime surf spot, and the city allows them to do it. A separate state lawsuit, which focuses on beach access, alleges the surfers have violated the California Coastal Act, which protects public access to the coastline. A state judge will still have to decide whether that complaint will be designated as a class-action lawsuit, allowing other victims to potentially join as plaintiffs. In the court ruling on Feb. 21, Judge Otero listed several reasons for denying the class-action certification. He struck down a claim by the plaintiffs that more than 20,000 people have been impacted by the Bay Boys' behavior, saying their attorney, Vic Otten, did not prove that enough people have, in fact, been affected. In his ruling, Judge Otero said those who haven't been to Lunada Bay -- perhaps because they were intimidated by stories of localism -- can't claim they've been impacted by the behavior of the Bay Boys. The "some day intentions" of people who may or may not visit the bay do not support the claim that those people have been harmed in some way by the surfers, according to the ruling. An expert for the plaintiffs estimated that 20,000 to 25,000 people would visit Lunada Bay on average every year if not for the Bay Boys, but that only about 1,500 to 3,000 actually do. The court, however, threw out that portion of the suit. The plaintiffs used accounts from more than two dozen people who say they were either harassed at Lunada Bay or prevented from ever going to the bay because of its reputation. Judge Otero threw out those claims as well. The judge also limited the permissible witnesses to those who have been accosted within the two years leading up to the March 29, 2016, date that the lawsuit was filed, which eliminated several decades-old accounts of harassment. Under those limitations, only nine people were included in the plaintiffs' class, too small a number to support the certification, according to the ruling. The ruling also cited other reasons for denying the certification, such as the potential plaintiffs had experienced a variety of different problems at Lunada Bay. Judge Otten on Feb. 22 said he was disappointed by the judge's ruling, but that the lawsuit will proceed toward trial. He and co-counsel Kurt Franklin, of the Northern California firm Hanson Bridgett LLP, will be weighing their next steps, Mr. Otten said. They could proceed with the three original plaintiffs -- Cory Spencer, Diana Milena Reed and the nonprofit Coastal Protection Rangers -- and file an appeal with the Ninth Circuit Court of Appeals, or amend the lawsuit to potentially add additional plaintiffs and defendants. "We have very good factual information that we did not have previously that we will be bringing in, whether it's in the federal litigation or the state litigation," Mr. Otten said. "There are plenty of other defendants actively involved in the harassment of outsiders." Messrs. Otten and Franklin are still seeking to have the Bay Boys classified as a criminal street gang and ban them from the beach with an injunction. Mr. Carey, the attorney for one of the defendants, Allen "Jalian" Johnston, said he was pleased with the judge's ruling. "For us, at least on behalf of Mr. Johnston, we're going to continue to do what we've been doing, and that's maintain his innocence from these allegations," Mr. Carey said. Mr. Johnston was named in the suits as one of the Bay Boys, and Reed has accused him of exposing himself on the beach and spraying a can of beer on her. Mr. Johnston was arrested in April on suspicion of battery and sexual harassment, but the District Attorney's Office declined to file charges because of insufficient evidence. Judge Otero's ruling is a boost for the defendants, Mr. Carey said. Now, he said, they'll have to wait to see what the plaintiffs do next, and continue to deny their allegations. PHENIX CITY, AL: Faces Class Action Over Red Light Cameras ---------------------------------------------------------- TheNewspaper.com reports that officials in Phenix City, Alabama were served with a federal lawsuit claiming the city's red light cameras are violating the civil rights of motorists passing through the town. The suit focuses on what a driver can do in response to a ticket received in the mail from Redflex Traffic Systems, the Australian firm that has been issuing tickets at three intersections since 2013. "The option for a hearing is simply stated on a coupon that can be sent to the city," attorney George W. Walker III explained in the complaint. "No information is provided as to how the hearing is conducted or who conducts it, nor is there any information on what plaintiffs and class members' rights are following a violation. Instead, a notice inconspicuously states that plaintiff and class members can request a hearing within a specific timeframe." There is no statewide law authorizing red light camera or speed camera use in Alabama. Instead, Brantley, Midfield, Montgomery, Opelika, Phenix City, Selma and Tuscaloosa had the state legislature enact separate local laws granting individual permission to each jurisdiction for camera use (the legislature revoked Montgomery's permission last year). The individual laws make passing reference to the standard of proof to be used at hearings where photo tickets are contested. "The prosecution of a civil violation created hereby shall carry reduced evidentiary requirements and burden of proof," states House Bill 575, enacted in 2012, granting Phenix City permission to use cameras. Mr. Walker argues that the reduced burden of proof established by the local law violates the constitution. It fails, he argues, to afford any real due process. The ordinance, for instance, does not require the city to bring proof at the hearing that the camera system was functioning at the time of the alleged offense. "The 'hearing' option itself afforded by defendant Phenix City is ultimately a sham procedure that fails to amount to anything other than said administrator, who in reality is neither a lawyer nor a judicial officer, viewing a computer screen in an office," Mr. Walker contended. "The 'hearings' are simply a redundant look at what the city already decided. The city is not an administrative agency that is empowered by Alabama law with the ability to judicially review its own decisions . . . It is clear that there are no 'witnesses' or contractors from defendant Redflex present at the hearings, and plaintiffs and class members had no opportunity to challenge anything." US District Judge William Keith Watkins has been assigned to the case. The city must answer the lawsuit by March 6. RELIANCE TRUST: "Matthews" Suit Seeks Certification of Class ------------------------------------------------------------ In the lawsuit captioned ALTAVIA MATTHEWS, on behalf of The Bradford Hammacher Group, Inc. Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated, the Plaintiff, v. RELIANCE TRUST COMPANY, the Defendant, Case No. 1:16-cv-04773 (N.D. Ill.), the Plaintiff asks the Court to enter an order certifying a class of: "all persons who were participants in The Bradford Hammacher Group, Inc. Employee Stock Ownership Plan". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=MJtCnNGl The Plaintiff is represented by: Ryan T. Jenny, Esq. Gregory Y. Porter, Esq. Patrick O. Muench, Esq. BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463 2101 Facsimile: (202) 463 2103 E-mail: rjenny@baileyglasser.com gporter@baileyglasser.com pmuench@baileyglasser.com - and - Robert A. Izard, Esq. Douglas P. Needham, Esq. IZARD, KINDALL & RAABE, LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Telephone: (860) 493 6292 Facsimile: (860) 493 6290 E-mail: rizard@ikrlaw.com dneedham@ikrlaw.com The Defendant is represented by: Theodore M. Becker, Esq. Richard J. Pearl, Esq. DRINKER BIDDLE & REATH, LLP 191 N. Wacker Drive, Suite 3700 Chicago, IL 60606 Telephone: (312) 569 1000 E-mail: Theodore.Becker@dbr.com Richard.Pearl@dbr.com RENDLE: B.C. Court of Appeal Denies Class Certification ------------------------------------------------------- Nardia Chernawsky, Esq. -- nardia.chernawsky@blakes.com -- and Mathew Good, Esq. -- mathew.good@blakes.com -- of Blake, Cassels & Graydon LLP, in an article for JDSupra, report that on February 15, 2017, the B.C. Court of Appeal issued its decision in Baker v. Rendle (Baker) denying class action certification in a case about nuisance claims against industrial operations. Baker lends further weight to the view that private claims by landowners for environmental nuisance are ill suited for resolution by class action. BACKGROUND The defendants obtained a composting facility licence to import and compost post-consumer food waste on a property in a suburb of Victoria, B.C. Complaints relating to "nuisance odours" from the composting activities began not long after operations started and increased in frequency over time. The composting facility licence was ultimately surrendered. The plaintiff, Raymond Baker, began a lawsuit against the owner- operators alleging private nuisance. In September 2015, the plaintiff sought certification of the claim as a class action. The B.C. Supreme Court denied the class certification because the claim did not meet certain requirements for certification under the Class Proceedings Act, namely: the class members' claims did not raise common issues, a class proceeding was not the preferable procedure for the resolution of the common issues and Mr. Baker was found not to be an appropriate representative plaintiff. The plaintiff appealed. CLASS PROCEEDINGS FOR PRIVATE NUISANCE To establish private nuisance, a plaintiff must prove interference with his or her use or enjoyment of land that is both substantial and unreasonable. The interference must be intolerable to an ordinary person, which is assessed by the nature, severity and duration of the interference, the neighbourhood's character, the sensitivity of the plaintiff's use and the utility of the activity. The court focuses on the harm suffered by the plaintiff and not the defendant's conduct. In Baker, the B.C. Court of Appeal held that assessing liability for the tort of nuisance involves subjective considerations specific to each of the proposed class members. In this case, the question of whether the effect of the composting odours on the individual class members was a substantial, unreasonable interference with the use and enjoyment of their land could not be determined on a class-wide basis. Whether the operation resulted in a nuisance could only be determined by examining the particular circumstances of each neighbour. The B.C. Court of Appeal therefore concluded that a class proceeding was not the preferable procedure for adjudicating the nuisance claims and dismissed the appeal. IMPLICATIONS Baker joins a line of cases that have made it difficult for plaintiffs to pursue private nuisance claims through class actions. These decisions include a B.C. Court of Appeal decision in which certification of private nuisance claims failed the class action certification test, as well as one judgment each from Ontario and from Alberta. As a result, operations with widespread environmental impacts may be less likely to face collective actions for redress by property owners. Whether this will result in less litigation overall, more individual lawsuits for private nuisance, or a renewed focus on public nuisance claims by governments or regulatory bodies, remains to be seen. RENTECH INC: Rosen Law Firm Files Securities Class Action --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Feb. 23 disclosed that it has filed a class action lawsuit on behalf of purchasers of Rentech, Inc. securities (RTK) from November 9, 2016 through February 20, 2017, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for Rentech investors under the federal securities laws. To join the Rentech class action, go to http://www.rosenlegal.com/cases-1057.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (1) Rentech's resources were not sufficient to overcome any operating challenges and remaining bottleneck at the Wawa facility; (2) consequently, the Wawa facility would not reach approximately 60% of production capacity within the next couple quarters and achieve full capacity in the range of 400,000 to 450,000 metric tons late in the year; (3) as a result, defendants' statements about Rentech's business, operations and prospects were materially false and misleading and/or lacked a reasonable bases at all relevant times. On February 21, 2017, Rentech announced its decision to idle the Wawa facility due to equipment and operational issues that would require additional unbudgeted capital investment. On this news, shares of Rentech fell $1.31 per share or over 47% from its previous closing price to close at $1.44 per share on February 21, 2017, damaging investors. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than April 24, 2017. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1057.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767- 3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. RENTECH INC: April 24 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed against Rentech, Inc. in the United States District Court for the Central District of California on behalf of persons or entities who purchased Rentech stock on the open market from November 9, 2016 and February 20, 2017, inclusive (the "Class Period"), seeking to recover compensable damages caused by Defendants' violations of the Securities Exchange Act of 1934. The Complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company's resources were not sufficient to overcome any operating challenges and remaining bottleneck at its Wawa facility; (2) consequently, the Wawa facility would not reach approximately 60% of production capacity within the next couple quarters and achieve full capacity in the range of 400,000 to 450,000 metric tons late in the year; (3) as a result, Defendants' statements about the Company's business, operations and prospects were materially false and misleading and/or lacked a reasonable bases at all relevant times. On February 21, 2017, the Company announced its decision to idle the Wawa facility due to equipment and operational issues that would require additional capital investment. On this news, shares of the Company fell over 47% from its previous closing price to close at $1.44 per share on February 21, 2017. If you wish to serve as lead plaintiff, you must move the Court no later than April 24, 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 SAREPTA THERAPEUTICS: Kader Appeals D. Mass. Decision to 1st Cir. ----------------------------------------------------------------- Plaintiffs William Kader, Laxmikant Chudasama, Morad Ghodooshim and Roger Lam filed an appeal from a court ruling in their lawsuit styled Kader, et al. v. Sarepta Therapeutics, Inc., et al., Case No. 1:14-cv-14318-ADB, in the U.S. District Court for the District of Massachusetts, Boston. As previously reported in the Class Action Reporter on Jan. 20, 2017, Judge Allison D. Burroughs denied the Plaintiffs' motion for leave to amend their complaint. In the securities fraud putative class action, the Plaintiffs sought to represent a class of all purchasers of securities issued by Sarepta Therapeutics, Inc. during the period from March 4, 2014 to October 27, 2014. The appellate case is captioned as Kader, et al. v. Sarepta Therapeutics, Inc., et al., Case No. 17-1139, in the United States Court of Appeals for the First Circuit. The First Circuit notified the parties that the December 1, 2016 amendment to the Federal Rules of Appellate Procedure make significant changes to appellate practice. The full text of the amendments, as well as a summary of major rule changes, is available at https://goo.gl/tzUpHu. The changes are effective on December 1, 2016. Plaintiffs-Appellants WILLIAM KADER, Individually and on Behalf of All Others Similarly Situated, MORAD GHODOOSHIM, ROGER LAM and LAXMIKANT CHUDASAMA are represented by: Jason Mathew Leviton, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Telephone: (617) 398-5600 E-mail: jason@blockesq.com - and - Robert V. Prongay, Esq. Kara Wolke, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park E Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: rprongay@glancylaw.com kwolke@glancylaw.com Defendants-Appellees SAREPTA THERAPEUTICS, INC., CHRIS GARABEDIAN and SANDESH MAHATME are represented by: Alexia Rhae De Vincentis, Esq. Justin Florence, Esq. Mark David Vaughn, Esq. ROPES & GRAY LLP 800 Boylston St. Boston, MA 02199-3600 Telephone: (617) 951-7000 E-mail: alexia.devincentis@ropesgray.com justin.florence@ropesgray.com mark.vaughn@ropesgray.com Defendants-Appellees SAREPTA THERAPEUTICS, INC., CHRIS GARABEDIAN, SANDESH MAHATME and ED KAYE are represented by: Christopher G. Green, Esq. ROPES & GRAY LLP 800 Boylston St. Boston, MA 02199-3600 Telephone: (617) 951-7000 E-mail: christopher.green@ropesgray.com SELECT MEDICAL: "Joseph" Suit Seeks to Recoup Wages Under FLSA -------------------------------------------------------------- JUNIOR JOSEPH, and other similarly situated individuals, Plaintiffs, v. SELECT MEDICAL CLINIC INC.; SELECT MEDICAL RESEARCH CENTER, L.L.C.; CARMELO MADDY; and ROSE AUGUSTIN, Defendants, Case No. 1:17-cv-20661-JEM (S.D. Fla., February 21, 2017), seeks to recover from the Corporate Defendants alleged unpaid minimum wages and overtime compensation, as well as an additional amount as liquidated damages, costs, and reasonable attorneys' fees under the provisions of the Fair Labor Standards Act. The Corporate Defendants operate a medical clinic and related activities of a medical clinic. Plaintiff was employed by the Corporate Defendants as a Clinic Assistant/clerk/driver for the Corporate Defendants' business. The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Phone: (305) 503-5131 Fax: (888) 270-5549 Email: msaenz@saenzanderson.com SMOOTH SAILING: "King" Labor Suit to Recover Overtime Pay --------------------------------------------------------- Jeffery King and Moshe Dweck, on behalf of themselves and all others similarly situated, Plaintiffs, v. Smooth Sailing, Inc. and Don E. Cauthen, individually and John Does 1-10, individually, Defendants, Case No. 4:17-cv-00309, (D.S.C., February 2, 2017), seeks actual damages, liquidated damages, attorneys' fees and costs, and for other relief under the Fair Labor Standards Act of 1938 and the South Carolina Payment of Wages Act. Smooth Sailing, Inc. operates Dirty Don's Oyster Bar owned by Don E. Cauthen where King and Dweck worked. Both claims overtime pay for off-the-clock work rendered. Plaintiff is represented by: Bruce E. Miller, Esq. BRUCE E. MILLER, P.A. 147 Wappoo Creek Drive, Suite 603 Charleston, SC 29412 Tel: (843) 579-7373 Fax: (843) 614-6417 bmiller@brucemillerlaw.com SUSHI REPUBLIC: "Jaramillo" Suit Seeks to Recoup Wages Under FLSA ----------------------------------------------------------------- JOSE JARAMILLO, LUZ GIRALDO, and other similarly situated individuals, Plaintiffs, v. SUSHI REPUBLIC, INC. and TAKAHIRO KOHARA, Defendants, Case No. 1:17-cv-20666-DPG (S.D. Fla., February 21, 2017), seeks to recover from the Corporate Defendant alleged unpaid minimum wages and overtime compensation, as well as an additional amount as liquidated damages, costs, and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. SUSHI REPUBLIC, INC. -- http://www.sushirepublic.net/-- is a Japanese food restaurant offering traditional Japanese food table seating. Plaintiff was employed as a dishwasher and delivery person. The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Ste. 800 Aventura, FL 33180 Phone: (305) 503.5131 Fax: (888) 270.5549 Email: msaenz@saenzanderson.com SIOUX HONEY: Calif. Woman Says Sue Bee Products Not All Natural --------------------------------------------------------------- Michael Abella, writing for Legal Newsline, reports that a California woman has filed a class-action lawsuit against Sioux Honey Association, citing alleged deceptive and misleading business practices. Susan Tran filed a complaint on Jan. 23 in the U.S. District Court for the Central District of California against Sioux Honey Association, alleging that the cooperative violated the Unfair Competition Law. According to the complaint, the plaintiff alleges that as a result of Sioux Honey's false and misleading labeling and omissions of fact, she and others were deceived into believing that the Sue Bee products they bought were pure, and/or all-natural. She was damaged for paying a premium price for a product that actually costs less. Ms. Tran holds Sioux Honey Association responsible because the company allegedly falsely claimed that its products are pure and all natural. Instead, its products contain glyphosate, a synthetic chemical. Ms. Tran requests a trial by jury and seeks an order certifying this case a class action, appointing her as class representative and her counsel as class counsel, as well as award for monetary damages, prejudgment interest, attorneys' fees and costs and all other relief as may be deemed just, necessary and proper. She is represented by Stephen R. Basser -- sbasser@barrack.com -- of Barrack, Rodos & Bacine in San Diego; Lori G. Feldman and Courtney E. Maccarone of Levi & Korsinsky LLP in New York City; and Kim E. Richman and Jaimie Mak of Richman Law Group in Brooklyn, New York. U.S. District Court for the Central District of California Case number 8:17-cv-00110 SITO MOBILE: April 18 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Glancy Prongay & Murray LLP disclosed that a class action lawsuit has been filed on behalf of investors who purchased SITO Mobile, Ltd. securities between February 9, 2016 and January 2, 2017, inclusive. SITO investors have until April 18, 2017 to file a lead plaintiff motion. Investors suffering losses on their SITO investments are encouraged to contact Lesley Portnoy of GPM to discuss their legal rights in this class action at 310-201-9150 or by email to shareholders@glancylaw.com. The Complaint filed in this class action lawsuit alleges that throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that: (1) SITO's development of bookings would not drive the Company's fourth fiscal quarter 2016 media placement revenues and revenue growth to the level represented during the Class Period; (2) SITO was aware that the election would impact its fourth fiscal quarter 2016 revenue, (3) clients' campaign spending and media placement revenues in the fourth quarter 2016 was highly dependent on the elections; (4) SITO's growth in media placement revenues would not occur in the fourth fiscal quarter 2016; (5) consequently, SITO's statements about its business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. On January 3, 2017, SITO disclosed disappointing quarterly revenue results for its preliminary media placement for the quarter ending December 31, 2016. According to SITO, the results were adversely impacted by limited marketing expenditures and an "elongated media focus on this year's U.S. election." On this news, SITO stock fell 32% on January 3, 2017. If you purchased shares of SITO during the Class Period you may move the Court no later than April 18, 2017 to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. 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://glancylaw.com.If you inquire by email please include your mailing address, telephone number and number of shares purchased. SOCIETE DE TRANSPORT: Faces Suit Over Repeated Service Disruptions ------------------------------------------------------------------ Montreal Gazette reports that a metro user wants Montreal's transit authority to compensate her and her fellow commuters for delays caused by service disruptions. Marion Croteau on February 23 filed a motion with Quebec Superior Court seeking to launch a class action suit against the Societe de transport de Montreal. In the motion, Croteau complains that repeated STM service disruptions have caused her to be late for work and to miss appointments. "When (the STM) publishes precise schedules for the metro and buses, it's saying that it's committed to providing that service," the motion said. She points to two cases where metro delays compelled her to use a taxi in 2016. Croteau wants the STM to pay $32.75 to cover those taxi trips, in addition to the equivalent of 15 per cent of the monthly passes she has purchased since she started using STM services in May 2015. In addition, the motion suggests the STM should provide 15-per- cent refunds to all STM users who have purchased monthly passes since March 1, 2014. "The total damages and interest sought, multiplied by the number of users who have suffered prejudice, could reach into the tens of millions of dollars, a factor which makes this class action of considerable importance," according to Legal Logik, the law firm representing Croteau. A judge will have to decide whether the lawsuit can proceed. SPRINT COMMUNICATIONS: Faces False Advertising Class Action ----------------------------------------------------------- Jenie Mallari-Torres, writing for Legal Newswire, reports that a California woman has filed a class action lawsuit against Sprint, alleging false advertising and violation of Unfair Competition Law. Sylvia Nixon of Los Angeles County filed a complaint, individually and on behalf of all others similarly situated, Feb. 13 in U.S. District Court for the Central District of California against Sprint Communications Inc., alleging the communications company obtained profit through unfair or deceptive trade or commerce. According to the complaint, Nixon and other similarly situated consumers have suffered monetary damages from being enticed by Sprint to cancel their existing telephone services in exchange for the defendant's offer to pay for termination fees, cut current phone bills in half and provide prepaid Visa cards. The suit says Sprint failed to provide any of these services. The plaintiff allege Sprint failed to provide advertised products as promised, and issued false statements to deceive consumers into changing their telephone service provider. Nixon seeks trial by jury, certification as a class action, appoint her and her lawyer class representative and counsel, corrective advertising, actual, punitive, and statutory damages, restitution, attorney fees, court costs, interest, and all other equitable relief. She is represented by attorneys Todd M. Friedman and Adrian R. Bacon of Law Offices of Todd M. Friedman PC in Woodland Hills, California. U.S. District Court for the Central District of California Case number 17-cv-01149 STERICYCLE INC: Class Cert. Granted in Sterisafe Litigation ---------------------------------------------------------- In the lawsuit re: Stericycle, Inc., Sterisafe Contract Litigation, et al., Case No. 1:13-cv-05795 (N.D. Ill.), the Hon. Milton I. Shadur entered an order granting motion for class certification. According to the docket entry made by the Clerk on February 16, 2017, both motions to exclude witnesses are denied. Hagens Berman is appointed as class counsel officially. The action was set for a status hearing at 9:30 a.m. on February 27, 2017 to discuss further proceedings in the case. A copy of the Notice is available at no charge at http://d.classactionreporternewsletter.com/u?f=rANYiSMP SYNGENTA AG: Loses Bid to Dismiss Suit Over GMO Corn Trait ---------------------------------------------------------- Judge David R. Herndon of the U.S. District Court for the Southern District of Illinois denied Sygenta AG's motion to dismiss and request for oral argument in the case titled IN RE SYNGENTA MASS TORT ACTIONS, This Document Relates to Poletti, et al. v. Syngenta AG, et al, No. 3:15-cv-01121-DRH (S.D. Ill.) Agrisure VIPTERA(TM) and its variant DURACADE(TM) were licensed and marketed by Syngenta and, both products contained multiple genetically enhanced modified traits and were sold to seed manufactures for their insect resistance capabilities. At the time, MIR162 was barred for sale in several countries, including China where it was not yet approved for purchase or consumption. In March 2016, Roland Poletti, et al., filed their First Consolidated and Amended Complaint against Syngenta, under the Class Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d). The Plaintiffs alleged that Syngenta prematurely commercialized the genetically modified corn trait MIR162, under the trade name Agrisure VIPTERA(TM), and in doing so, acted negligently, recklessly, and deceptively, causing harm to the plaintiffs and contaminating the entire United States corn supply. The Plaintiffs further contended that at the time of the alleged acts, Syngenta knew of and foresaw the risk to the plaintiffs, and thereby breached the duty owed in preventing the harm alleged. The Plaintiffs note that United States exportation of corn amounts to billions of dollars annually, and because the U.S. corn marketing system is commodity-based, the highest standards of purity are required to be maintained. Moreover, the plaintiffs point to the premature release of Agrisure VIPTERA(TM) as the sole cause of foreign export-market refusal to import U.S. grown corn, and further maintain that heavy financial losses have been incurred. The Plaintiffs assert claims against Syngenta of public nuisance, private nuisance, negligence, products liability, tortious interference with business actions, strict liability as to certain classes of plaintiffs, and the violation of various state deceptive trade practices and consumer protection acts. Causes of action for damages include the premature release of VIPTERA(TM) and DURACADE(TM) into the U.S. corn and corn seed supply, the materially misleading statements made relating to approval status of MIR162 in China upon which the plaintiffs relied, the failure to disclose the material fact that MIR162 was not approved for import into China, and the continuing and future MIR162 contamination of the U.S. corn and seed supply. The Plaintiffs seek compensatory, consequential, and punitive damages, and injunctive relief. Syngenta filed a motion to dismiss the plaintiffs' complaint for lack of personal jurisdiction and failure to state a claim for which relief may be granted. In its memorandum in support, Syngenta discusses several legal principals which it believes warrants a grant of dismissal. Namely, non-Illinois plaintiffs' lack of personal jurisdiction; and, the bar of plaintiffs' claims by the "Stranger" and "Contractual" Economic Loss Doctrines. Judge Herndon denied Syngenta's motion to dismiss and request for oral argument, finding that the complaint has sufficiently alleged claims against Syngenta that survive both Rule 12(b)(2) and Rule 12(b)(6) Fed. R. Civ. P. pleading standards. A copy of Judge Herndon's memorandum and order dated February 20, 2017, is available at https://goo.gl/qAlImn from Leagle.com. Ellen K. Reisman, Special Master, Pro Se All Plaintiffs in Case 15-1221, Plaintiff, represented by William W. Blair -- blair@onderlaw.com -- James G. Onder -- onder@onderlaw.com -- Michael J. Quillin -- quillin@onderlaw.com - - at Onder, Shelton et al; Brian Leighton Kinsley; Crumley Roberts; Amanda Scott Williamson -- amanda@hgdlawfirm.com -- Christopher B. Hood -- chood@hgdlawfirm.com -- Mark Ekonen -- mark@hgdlawfirm.com -- Taylor Christopher Bartlett -- taylor@hgdlawfirm.com -- W. Lewis Garrison, Jr. -- wlgarrison@hgdlawfirm.com -- William L. Bross -- wlbross@hgdlawfirm.com -- at Heninger, Garrison et al.; Brian E. Jorde -- David Alan Domina -- at Domina law Group, PC LLO; Peter H. Burke -- pburke@burkeharvey.com -- William Todd Harvey -- tharvey@burkeharvey.com -- at Burke Harvey LLC Defendants, represented by Michael J. Nester -- at Donovan Rose Nester PC; Edwin John U -- Jordan M. Heinz -- jordan.heinz@kirkland.com -- Michael D. Jones -- michael.jones@kirkland.com -- Patrick F. Philbin -- patrick.philbin@kirkland.com -- Ragan Naresh -- ragan.naresh@kirkland.com -- at Kirkland & Ellis TILTWARE LLC: Cal. App. Upheld Dismissal of "Kennedy" ----------------------------------------------------- Judge Virginia Keeny of the Court of Appeals of California, Second District, Division Seven, affirmed the trial court's order of dismissal, in the case captioned LARY KENNEDY, et al., Plaintiffs and Appellants, v. CHRIS FERGUSON et al., Defendants and Respondents, No. B253090 (Cal. Ct. App.) Plaintiffs Lary Kennedy and Greg Omotoy alleged that defendants, who operated online poker games, fraudulently induced them to deposit money and play on their website with promises that their operations did not constitute gambling, the company did not allow robots or computers to play, money deposited was safe and the company treated its players fairly and consistently in accordance with the highest standards of the poker community. They further alleged that defendants had falsely accused Kennedy of using a robot to assist her to play and confiscated $80,000 from her account because of this alleged rule violation. The complaint sought return of the $80,000, relief under the Racketeers Influenced and Corrupt Organizations Act for the fraudulent statements and violations of the California Penal Code banning illegal gambling, damages to Kennedy for libel and slander based on statements that she was operating a robot to play on her behalf, restitution to California players misled by their business practices and punitive damages. On the course of the trial, the trial court had dismissed their action for failure to prosecute, denied them leave to amend to add class allegations, and had made orders denying the plaintiffs' motion to disqualify counsel, motion for new trial, and motion to tax costs or strike the memorandum of costs. The Plaintiffs appealed. Judge Keeny affirmed the order of dismissal and held that the trial court acted within its discretion in refusing leave to add class allegations since it will substantially alter the case and the plaintiffs cannot justify their subsequent delay in obtaining leave to file an amended complaint. Accordingly, Judge Keeny dismissed the appeal as to the subsequent orders denying the motion to disqualify counsel, the motion for a new trial, and the motion to tax costs or strike the memorandum of costs. A copy of Judge Keeny's opinion dated February 21, 2017, is available at https://goo.gl/ehbzKx from Leagle.com. For Plaintiffs and Appellants: Cyrus Sanai, Esq. Sanais 433 N Camden Dr Ste 600 Beverly Hills, CA 90210 Telephone: 310-717-9840 Facsimile: 310-279-5101 Erik L. Jackson -- ejackson@cozen.com -- Nathan Dooley -- ndooley@cozen.com -- at Cozen O'Connor for Defendants and Respondents Chris Ferguson, Howard Lederer, Raymond Bitar, Andy Bloch, Phil Ivey, John Juanda, Erik Lindgren, Erik Seidel, Michael Matusow, Allen Cunningham, Gus Hansen, Patrik Antonious, Tiltware, LLC and Pocket Kings Ltd Maurice Suh -- msuh@gibsondunn.com -- Jay Srinivasan -- jsrinivasan@gibsondunn.com -- at Gibson, Dunn & Crutcher for Defendant and Respondent Philip S. Gordon Dykema Gossett, Craig N. Hentschel and Vivian I. Kim for Defendant and Respondent Perry Friedman The Court of Appeals of California, Second District, Division Seven panel consists of Presiding Justice Dennis M. Perluss, Justice Laurie D. Zelon and Judge Virginia Keeny. TOYOTA MOTOR: Faces Class Action Over Defective Headlights ---------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that an Alameda consumer alleges his Toyota Prius has defective headlights. Michael Robey filed a complaint on behalf of a class of similarly situated individuals on Dec. 16 in the U.S. District Court for the Northern District of California against Toyota Motor Sales USA Inc. alleging violation of the California Consumer Legal Remedies Act, the California Unfair Competition Law and other counts. According to the complaint, the plaintiff alleges that he suffered damages from purchasing a 2010 Toyota Prius that has a defective headlight lamp that burned out prematurely. The plaintiff holds Toyota Motor Sales USA Inc. responsible because the defendant allegedly failed to disclose to consumers the defective nature of the headlights equipped on its vehicles. The plaintiff requests a trial by jury and seeks provide a notice to all class members, reimburse all current and former owners of the class vehicles, consequential and incidental damages, order the defendant to immediately cease the sale and leasing of the class vehicles without first notifying consumers about the defect, damages and restitution, compensatory, exemplary and statutory damages, plus interest, disgorgement, all legal fees plus interest, and any other relief as the court deems just. He is represented by Mark S. Greenstone and Lionel Z. Glancy of Glancy Prongay & Murray LLP in Los Angeles. U.S. District Court for the Northern District of California Case number 3:16-cv-07212-EMC TROPICAL SHIPPING: Antitrust Suit Transferred to Florida Court -------------------------------------------------------------- Judge Anne E. Thompson of the U.S. District Court for the District of the Virgin Islands, Division of St. Croix, granted the defendants' motions in the case, LEROY DANIELSON, SILICONE DISTRIBUTORS, INC. d/b/a ROOFTOPS, and TRADEMARK ENTERPRISES, LLC d/b/a LISA'S PAINT SHOP, on behalf of themselves and all others similarly situated, Plaintiffs, v. TROPICAL SHIPPING AND CONSTRUCTION CO., LTD., VI CARGO SERVICES, LLC, and SALTCHUK RESOURCES, INC., Defendants, Civ. No. 15-00045 (D.V.I.). Tropical Shipping and Construction Co., Ltd., and VI Cargo Services, LLC, provide shipping services to consumers in need of moving goods between St. Croix and Florida. Specifically, Tropical and VI Cargo participate in the less-than-a-container cargo shipping market (LCL market), whereby they ship goods for consumers and small businesses who wish to ship less than an entire shipping container of goods. Saltchuk Resources, Inc., is the parent company of Tropical and VI Cargo. Plaintiffs Leroy Danielson and Trademark Enterprises, LLC, d/b/a Lisa's Paint Shop purchased LCL Shipping services from Tropical and/or VI Cargo. The Plaintiffs alleged that they were overcharged for the shipping services that they purchased from the defendants as a result of the defendants' monopolization of the relevant LCL market. The Plaintiffs claim that Tropical has been the dominant firm in LCL shipping for many years, and that Tropical's purchases of two competing firms, Caribtrans in 2008 and VI Cargo in 2010, increased the market share of Tropical and the companies that it controlled to 100% of the LCL market. Tropical increased its prices within months of acquiring VI Cargo and continued to increase its prices thereafter. The Plaintiffs filed a suit against the defendants and alleged violations of the Sherman Antitrust Act, 15 U.S.C. Section 2, and the Virgin Islands Antitrust Act, 11 V.I.C. Section 1503. Defendants Tropical Shipping and VI Cargo have moved to dismiss or transfer the plaintiffs' claims. Defendant Saltchuk Resources separately moved to dismiss the plaintiffs' claims against it. Defendants' Tropical and VI Cargo make several arguments in support of the motion to dismiss or transfer. One of those arguments is based on two forum selection clauses contained in written agreements between plaintiffs and defendants. The Plaintiffs opposed both motions. Judge Thompson granted Saltchuk's motion to dismiss as the parties agreed on the record that the plaintiffs' claims against Saltchuk would be dismissed. Judge Thompson also granted defendants' Tropical and VI Cargo's motion to dismiss or transfer. Guided by the Supreme Court's decision in Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S.Ct. 568 (2013), Judge Thompson held that the defendants have demonstrated that at least 75 out of 105 of the plaintiffs' claims are subject to a forum selection clause, which requires that the plaintiffs' claims be brought in the Southern District of Florida. The court said it is not persuaded that any public-interest factors set forth in Atlantic Marine warrant the denial of transfer. In the interest of justice, the court will transfer all of the plaintiffs' claims to the United States District Court for the Southern District of Florida. A copy of Judge Thompson's opinion dated February 15, 2017, is available at https://goo.gl/4dTLL9 from Leagle.com. Leroy Danielson and Trademark Enterprises, LLC d/b/a Lisa's Paint Shop, Plaintiffs, represented by: Vincent A. Colianni, II, Esq. COLIANNI & COLIANNI 1138 King Street Christiansted, VI 00820 Telephone: 340-719-1766 Facsimile: 340-719-1770 Paradise Freight, LLC (FL), as assignee of Silicone Distributors, Inc. d/b/a Rooftops, Plaintiff, represented by: Mark W. Eckard, Esq. HAMM & ECKARD, LLP 5030 Anchor Way Christiansted, VI 00820 Telephone: 340-773-6955 Defendants, represented by Simone D. Francis -- simone.francis@ogletree.com -- at Ogletree, Deakins; Adriane J. Dudley -- adudley@dudleylaw.com -- at Dudley Rich Davis LLP; James Ian Serota -- serotaj@gtlaw.com -- at Greenberg Traurig LLP TRS STAFFING: Faces "Jackson" Suit for Unpaid Overtime Wages ------------------------------------------------------------ PHILLIP JACKSON on behalf of himself individually, and ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. TRS STAFFING SOLUTIONS INC., and CHEVRON PHILLIPS CHEMICAL COMPANY LLC, Defendants, Case No. 4:17-cv-00558 (S.D. Tex., February 21, 2017), alleges that Defendants do not pay their Materials Supervisors overtime as required by the Fair Labor Standards Act. Instead, TRS Staffing Solutions Inc. and Chevron Phillips Chemical Company LLC pay its Materials Supervisors straight time, not time and a half for overtime hours worked. TRS STAFFING SOLUTIONS INC. -- https://www.trsstaffing.com/ -- is an engineering recruitment agency. The Plaintiff is represented by: Taft L. Foley, II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Fax: (832) 778-8353 E-mail: Taft.Foley@thefoleylawfirm.co TRUGREEN INC: 6th Circuit Denies Arbitration in TCPA Class Action ----------------------------------------------------------------- Peter Cubita, Esq. -- cubitap@ballardspahr.com -- Mark J. Furletti, Esq. -- furlettim@ballardspahr.com -- Alan S. Kaplinsky, Esq., Scott Pearson, Esq. -- PearsonS@ballardspahr.com -- Jeremy T. Rosenblum, Esq. -- rosenblum@ballardspahr.com -- John D. Socknat, Esq., Glen Trudel, Esq. -trudelg@ballardspahr.com -- of Ballard Spahr LLP, in an article for JDSupra report that phone calls made by a lawn care company after the termination of a customer's contract were beyond the scope of the parties' agreement to arbitrate any claim "arising from or relating to" their contract, the U.S. Court of Appeals for the Sixth Circuit recently held. In an unpublished opinion, Stevens-Bratton v. TruGreen Inc., the panel reversed the district court's decision denying class certification and compelling individual arbitration of the customer's putative Telephone Consumer Protection Act (TCPA) class action. In May 2013, the plaintiff entered into a contract with TruGreen, a national lawn care services company. The plaintiff gave permission for TruGreen to contact her at the cell phone number she provided "using an automatic telephone dialing system or artificial voice to discuss my account and lawn care services, including current and possible future services." The contract further provided that "any claim, dispute or controversy . . . arising from or relating to" the contract, "including but not limited to any tort or statutory [c]laim" was subject to arbitration. The plaintiff also expressly waived any ability to maintain any class action "in any forum whatsoever." However, the contract did not expressly provide that the arbitration clause would survive the termination of the contract. In May 2014, the plaintiff terminated the contract. Eight months later, TruGreen used an autodialer to solicit its former customer. The plaintiff requested that TruGreen stop calling her, but she continued to receive calls and filed a class action for violation of the TCPA. In response to TruGreen's motion to compel arbitration, the plaintiff argued that because the calls were made after the termination of the contract, the arbitration clause did not apply to the dispute. The U.S. Supreme Court has held that under the Federal Arbitration Act, broadly worded arbitration clauses must be enforced "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Accordingly, to defeat a motion to compel arbitration, plaintiffs are obligated to show that an arbitration clause is negated "expressly" or "by clear implication." Where there is a question whether the arbitration agreement survived the termination of the contract in which it is contained, courts must analyze whether: -- the dispute involves facts and occurrences that arose before termination; -- an action taken after termination infringes a right that accrued or vested under the agreement; and -- under normal principles of contract interpretation, the disputed contractual right survives termination of the remainder of the agreement. Applying this inquiry, the Sixth Circuit concluded that the arbitration clause did not survive the termination of the customer's contract. First, with respect to the "facts and occurrences" prong of the analysis, the court held that the proper inquiry is whether a majority of the material facts and occurrences arose before termination. In this case, the plaintiff's dispute exclusively involved phone calls made after the termination of the contract. Second, the Sixth Circuit concluded that "the right to call a person's number is not the type of right that would accrue or vest under a contract," particularly since consent to be called can be revoked at any time. Finally, the court held that because the contract had no explicit survival clause, the arbitration clause should be construed against TruGreen, the drafter, under general principles of contract interpretation. The Sixth Circuit's decision should be heeded by companies who assume that arbitration clauses in their customer contracts will automatically apply to conduct that occurs after the contract's termination, including telephone calls made to prior customers. UNDER ARMOUR: Brower Piven Files Securities Class Action -------------------------------------------------------- The securities litigation law firm of Brower Piven, A Professional Corporation disclosed that has filed a class action lawsuit in the United States District Court for the District of Maryland on behalf of purchasers of Under Armour, Inc. (NYSE: UA, UAA) ("Under Armour" or the "Company") common stock during the period between April 21, 2016 and January 30, 2017, inclusive (the "Class Period"). The action is captioned Brian Breece v. Under Armour, Inc., et. al. (1:17-cv-00388). Investors who wish to become proactively involved in the litigation have until April 10, 2017 to seek appointment as lead plaintiff. Under Armour is a corporation organized under the laws of the State of Maryland with its principal place of business located in Baltimore, Maryland. Brower Piven is the only firm headquartered in Maryland that has a practice dedicated primarily to representing plaintiffs in shareholder class action litigation. If you wish to choose counsel to represent you and the Class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the Class in the action. The lead plaintiff will be selected from among applicants who retain counsel like Brower Piven and who claim the largest loss from investment in Under Armour common stock during the Class Period. Members of the Class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No class has yet been certified in the above action. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the defendants' failure to disclose during the Class Period that Under Armour's revenue and profit margins would not be able to withstand the heavy promotions, high inventory levels and ripple effects of numerous department store closures and the bankruptcy of one of its large retailers. Instead, Under Armour promoted itself as a growth company that would continue to develop and market game- changing products. According to the complaint, the fraud was revealed on January 31, 2017 when Under Armour released weaker-than-expected earnings for the fourth quarter of 2016, and the poor results were in fact tied to market factors, such as department store closings. If you have suffered a loss in excess of $100,000 from investment in Under Armour common stock purchased on or after April 21, 2016 and held through the revelation of negative information during and/or at the end of the Class Period and would like to learn more about this lawsuit and your ability to participate as a lead plaintiff, without cost or obligation to you, please visit our website at http://www.browerpiven.com/currentsecuritiescases.html. You may also request more information by contacting Brower Piven either by email at hoffman@browerpiven.com or by telephone at (410) 415-6616. Brower Piven also encourages anyone with information regarding the Company's conduct during the period in question to contact the firm, including whistleblowers, former employees, shareholders and others. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. UNITED STATES: Trimming of Fannie Mae Stockholders' Suit Upheld --------------------------------------------------------------- Judge Patricia A. Millett of the United States Court of Appeals, District of Columbia Circuit, affirmed the district court's judgment and remanded the case styled PERRY CAPITAL LLC, FOR AND ON BEHALF OF INVESTMENT FUNDS FOR WHICH IT ACTS AS INVESTMENT MANAGER, Appellant, v. STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF THE TREASURY, ET AL., Appellees, Nos. 14-5243 Consolidated with 14-5254, 14-5260, 14- 5262 (D.C.) Federal National Mortgage Association (Fannie Mae) originated as a government-owned entity designed to provide stability in the secondary market for residential mortgages, to increase the liquidity of mortgage investments, and to promote access to mortgage credit throughout the United States. In 1968, Congress made Fannie Mae a publicly traded, stockholder-owned corporation. Congress created the Federal Home Loan Mortgage Corporation (Freddie Mac) in 1970 to increase the availability of mortgage credit for the financing of urgently needed housing. Much like Fannie Mae, Freddie Mac buys mortgage loans from a broad variety of lenders, bundles them together into mortgage-backed securities, and then sells those mortgage-backed securities to investors. In 1989, Freddie Mac became a publicly traded, stockholder-owned corporation. In 2007-2008, the national economy went into a severe recession due in significant part to a dramatic decline in the housing market. Congress concluded that resuscitating Fannie Mae and Freddie Mac was vital for the Nation's economic health, and to that end passed the Housing and Economic Recovery Act of 2008 (Recovery Act). Under the Recovery Act, the Federal Housing Finance Agency (FHFA) became the conservator of Fannie Mae and Freddie Mac. In an effort to keep Fannie Mae and Freddie Mac afloat, FHFA promptly concluded on their behalf a stock purchase agreement with the Treasury Department, under which Treasury made billions of dollars in emergency capital available to Fannie Mae and Freddie Mac in exchange for preferred shares of their stock. In return, Fannie and Freddie agreed to pay Treasury a quarterly dividend in the amount of 10% of the total amount of funds drawn from Treasury. Fannie's and Freddie's frequent inability to make dividend payments, however, meant that they often borrowed more cash from Treasury just to pay the dividends, which in turn increased the dividends that Fannie and Freddie were obligated to pay in future quarters. In 2012, FHFA and Treasury adopted a third amendment to their stock purchase agreement, which replaced the fixed 10% dividend with a formula by which Fannie and Freddie just paid to Treasury an amount roughly equal to their quarterly net worth, however much or little that may be. Under the third amendment, Fannie Mae and Freddie Mac together paid Treasury $130 billion in dividends in 2013, and another $40 billion in 2014. The next year, however, Fannie's and Freddie's quarterly net worth was far lower, Fannie paid Treasury $10.3 billion and Freddie paid Treasury $5.5 billion. Under the Third Amendment, and FHFA's conservatorship, Fannie and Freddie have continued their operations for more than four years. During that time, Fannie and Freddie, among other things, collectively purchased at least 11 million mortgages on single-family owner-occupied properties, and Fannie issued over $1.5 trillion in single-family mortgage-backed securities. In 2013, a number of Fannie Mae and Freddie Mac stockholders filed suit challenging the third amendment. Different groups of plaintiffs have pressed different claims. First, various hedge funds, mutual funds, and insurance companies argued that (i) FHFA's and Treasury's adoption of the third amendment exceeded their authority under the Recovery Act, and (ii) FHFA and Treasury each engaged in arbitrary and capricious conduct, in violation of the Administrative Procedure Act. The institutional stockholders requested declaratory and injunctive relief, but no damages. Second, a class of stockholders and a few of the institutional stockholders alleged that, in adopting the third amendment, FHFA and the companies breached the terms governing dividends, liquidation preferences, and voting rights in the stock certificates for Freddie's common stock and for both Fannie's and Freddie's preferred stock. They further alleged that the defendants breached the implied covenants of good faith and fair dealing in those certificates. The class plaintiffs also alleged that FHFA and Treasury breached state-law fiduciary duties owed by a corporation's management and controlling shareholder, respectively. Some of the institutional stockholders asserted similar claims against FHFA. The class plaintiffs asked the court to declare their lawsuit a proper derivative action, J.A. 277, and to award damages as well as injunctive and declaratory relief. The district court granted FHFA's and Treasury's motions to dismiss both complaints for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Court of Appeals affirmed the judgment of the district court that the institutional plaintiffs' claims against the FHFA and the Treasury alleging arbitrary and capricious conduct and conduct in excess of their statutory authority are barred by 12 U.S.C. Section 4617(f). The district court's dismissal of their common- law claims is also affirmed, because they were not properly appealed. With respect to the class plaintiffs' claims, the Court of Appeals affirmed the judgment of the district court on all claims except for the claims alleging breach of contract and breach of the implied covenant of good faith and fair dealing regarding liquidation preferences and the claim for breach of the implied covenant with respect to dividend rights, which claims the Court of Appeals remanded for further proceedings consistent with the opinion. A copy of Judge Millett's opinion dated February 21, 2017, is available at https://goo.gl/Q3xfcD from Leagle.com. Theodore B. Olson -- tolson@gibsondunn.com -- Douglas R. Cox -- dcox@gibsondunn.com -- Matthew D. McGill -- mmcgill@gibsondunn.com -- at Gibson Dunn; Charles J. Cooper -- ccooper@cooperkirk.com -- David H. Thompson -- dthompson@cooperkirk.com -- Peter A. Patterson -- ppatterson@cooperkirk.com -- Brian W. Barnes -- at Cooper and Kirk, PLLC; Michael H. Barr -- michael.barr@dentons.com -- Drew W. Marrocco -- drew.marrocco@dentons.com -- Richard M. Zuckerman -- richard.zuckerman@dentons.com -- Sandra Hauser -- sandra.hauser@dentons.com -- at Dentons; Janet M. Weiss -- weiss.janet@dorsey.com -- at Dorsey, for Perry Capital LLC Hamish P.M. Hume -- hhume@bsfllp.com -- at Boies, Schiller & Flexner; Matthew A. Goldstein -- mgoldstein@ktmc.com -- Geoffrey C. Jarvis -- gjarvis@ktmc.com -- at Kessler Topaz Meltzer & Check LLP; David R. Kaplan -- DKaplan@BaconWilson.com -- at Bacon/Wilson, for American European Insurance Company, et al. Thomas P. Vartanian -- thomas.vartanian@dechert.com -- Steven G. Bradbury -- steven.bradbury@dechert.com -- Robert L. Ledig -- robert.ledig@dechert.com -- Robert J. Rhatigan -- robert.rhatigan@dechert.com -- at Dechert LLP, for amici curiae the Independent Community Bankers of America, the Association of Mortgage Investors, Mr. William M. Isaac, and Mr. Robert H. Hartheimer in support of appellants Thomas F. Cullen, Jr. -- tfcullen@jonesday.com -- Michael A. Carvin -- macarvin@jonesday.com -- James E. Gauch -- jegauch@jonesday.com -- Lawrence D. Rosenberg -- ldrosenberg@jonesday.com -- Paul V. Lettow -- pvlettow@jonesday.com -- at Jones Day, for amici curiae Louise Rafter, Josephine and Stephen Rattien, and Pershing Square Capital Management, L.P. in support of appellants and reversal Jerrold J. Ganzfried -- Bruce S. Ross -- bruce.ross@hklaw.com -- at Holland & Knight, for amici curiae 60 Plus Association, Inc. in support of reversal Eric Grant -- grant@hicks-thomas.com -- at Hicks Thomas, for amicus curiae Jonathan R. Macey in support of appellants and reversal Thomas R. McCarthy -- tom@consovoymccarthy.com -- at Consovoy McCarthy Park PLLC, for amici curiae Timothy Howard and The Coalition for Mortgage Security in support of appellants Myron T. Steele -- msteele@potteranderson.com -- at Potter Anderson Corroon LLP, for amicus curiae Center for Individual Freedom in support of appellants Michael H. Krimminger -- mkrimminger@cgsh.com -- at Cleary Gottleib, for amicus curiae Investors Unite in support of appellants for reversal Howard N. Cayne -- howard.cayne@apks.com -- David B. Bergman -- david.bergman@apks.com -- Dirk C. Phillips -- dirk.phillips@apks.com -- Ian S. Hoffman -- ian.hoffman@apks.com at Arnold & Porter Kaye Scholer LLP; Paul D. Clement -- paul.clement@kirkland.com -- D. Zachary Hudson -- at Kirkland & Ellis LLP; Michael J. Ciatti -- mciatti@kslaw.com -- Graciela Maria Rodriguez -- gmrodriguez@kslaw.com -- at King & Spalding, for appellees Federal Housing Finance Agency, et al. Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellee Steven T. Munchin. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Alisa B. Klein, Abby C. Wright, and Gerard Sinzdak, Attorneys Dennis M. Kelleher, for amicus curiae Better Markets, Inc. in support of appellees and affirmance Pierre H. Bergeron, for amicus curiae Black Chamber of Commerce in support of neither party The United States Court of Appeals, District of Columbia Circuit panel consists of Circuit Judges Patricia A. Millett, Douglas H. Ginsburg and Janice Rogers Brown. UNIVERSITE LAVAL: Copyright Infringement Class Action Certified --------------------------------------------------------------- Keith D. Rose, Esq. -- krose@mccarthy.ca -- of McCarthy Tetrault LLP, in an article for Lexology, reports that on February 8, 2017, the Quebec Court of Appeal certified a class action by Copibec against Universite Laval, for copyright infringement. This decision overturns a Superior Court ruling from 2016, which would have dismissed the claim on the basis that Copibec did not satisfy the eligibility requirements under the province's Code of Civil Procedure for an association to bring a class action on behalf of its members. Copibec is a collective management organization representing book publishers, visual artists, and newspaper and periodical authors and publishers in Quebec. Copibec alleges that, in 2014, Universite Laval declined to renew its license agreement with the collective and stopped paying royalties for the reproduction of its members' works, including for use in course packs. The University instead sought to rely on a fair usage policy. Copibec asserts both copyright and moral rights infringements. The decisions to date have been essentially procedural and have not considered the merits of the claims. The case will now proceed to trial in the Quebec Superior Court. VASANT PATEL: "Mata" Litigation Alleges Violations of FLSA ---------------------------------------------------------- Juana Mata, on her own behalf and others similarly situated, Plaintiff, v. Hawaiian Court Hospitality, LLC, Pinnacle Holdings X, LLC, EOC Solutions, Inc., M&M Cleaning, USA, Inc., and Vasant Patel, individually, Defendant, Case No. 6:17-cv-00299-JA-DCI (M.D. Fla., February 21, 2017), alleges that Plaintiff was not paid overtime for all of the hours she worked beyond 40 in a single workweek, in violation of the Fair Labor Standards Act. Defendant Vasant Patel owns and operates at least two hotels. EOC Solutions, Inc., M&M Cleaning, USA, Inc. are staffing agencies. Plaintiff was an hourly laborer for Vasant Patel. W. John Gadd, Esq. Bank of America Building 2727 Ulmerton Rd. Ste. 250 Clearwater, FL 33762 Phone: 727 524 6300 E-mail: wjg@mazgadd.com - and - Kyle J. Lee, Esq. LEE LAW, PLLC P.O. Box 4476 Brandon, FL 33509 4476 Phone: 813 343 2813 E-mail: Kyle@KyleLeeLaw.com VERITAS ENTERTAINMENT: Class Certified Based on Concrete Injury --------------------------------------------------------------- David L. Luck and D. Matthew Allen, Esq., of Carlton Fields, in an article for Mondaq, report that following the United States Supreme Court's decision in Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) -- which held that Article III standing requires a concrete injury, even when an injury has otherwise been established for statutory purposes -- there has been a debate as to what constitutes Article III "concrete injury" under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. Sec. 227. With certain exceptions, the TCPA creates a statutory cause of action for injunctions, damages, or both against persons or entities that initiate phone calls to residential telephone lines using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party. On one side of the "concrete injury" debate are decisions holding that unanswered calls and answered calls that do not cause greater lost time, aggravation, and distress than manually dialed, answered calls are "bare procedural violations" and do not satisfy Article III's concrete injury-in-fact requirement. See, e.g., Romero v. Dep't Stores Nat'l Bank, No. 15-CV-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016). However, on the other side are decisions holding that unwanted calls -- regardless of whether they are unanswered or answered -- cause a risk of injury due to interruption, distraction, and invasions of privacy and are therefore concrete injuries, not bare procedural violations of the TCPA. See, e.g., Krakauer v. Dish Network, LLC, 168 F. Supp. 3d 843, 845 (M.D.N.C. 2016). In Golan v. Veritas Entm't, LLC, the Eastern District of Missouri aligned itself with the latter side of this debate, holding that allegedly unwanted robo calls, voiced by Mike Huckabee, and placed to promote the religious film "Last Ounce of Courage," were sufficient to satisfy Article III standing in a TCPA class action. The district court also analyzed the Rule 23(a) and 23(b)(3) factors necessary to support its certification of a nationwide class of recipients of such calls. First, the class was ascertainable based on a list of phone numbers and associated addresses derived from defendants' records. Second, defendants' deponents admitted that calls were made to over four million residential numbers, thus demonstrating numerosity. Third, on commonality and predominance, the court reasoned that common evidence would be used to attempt to establish liability vis-a-vis all class members because, on the issue of consent or lack thereof, a defense witness had testified that none of the four million numbers had consented to receiving future calls about movies for commercial purposes. In addition, class-wide injury could be determined based on the court's "concrete injury" ruling described above. Fourth, on typicality, the court found that all of these calls "concerned Last Ounce of Courage and the same prerecorded message was played for each." Fifth, as to the adequacy, the court rejected a challenge based on a preexisting friendship between one of the plaintiff's attorneys and the primary representative plaintiff: "Numerous district courts have held even a familial relationship is not enough to create a conflict of interest; instead, courts look for shared financial interests. A friendship and shared passion for running do not create a conflict of interest." Finally, the court held that a class was a superior means of litigating these claims because there were potentially millions of class members; a class action would be more efficient and conserve judicial resources; class treatment would ensure consistent rulings on shared issues; and there were not any known lawsuits concerning this same telemarketing campaign. Golan v. Veritas Entm't, LLC, No. 4:14CV00069 ERW, 2017 WL 193560, at *1 (E.D. Mo. Jan. 18, 2017). VOLKSWAGEN AG: Executive Arrested in U.S. in Emissions Probe ------------------------------------------------------------ The Associated Press reports that a Volkswagen executive who was arrested in the U.S. before he could fly home to Germany has appeared in Detroit federal court on charges related to the company's emissions scandal. A not-guilty plea was entered on Feb. 23 on Oliver Schmidt's behalf. He's charged with conspiracy and other crimes in Volkswagen's scheme to sell nearly 600,000 diesel vehicles that didn't meet U.S. pollution standards. The company is expected to plead guilty on March 10. Mr. Schmidt was manager of a VW office in suburban Detroit from 2012 to 2015. He was arrested at the Miami airport on Jan. 7 after a vacation in Florida and Cuba. Mr. Schmidt is in custody without bond. His lawyer plans to seek his release. Five other VW executives charged in the case are in Germany. VOLKSWAGEN AUSTRALIA: Pressures Diesel Car Owners to Sign Waivers ----------------------------------------------------------------- Joshua Dowling, writing for News Corp Australia Network, reports that Volkswagen Australia has been accused of pressuring owners of its "dirty diesel" cars to sign waivers and providing them with false information, according to documents filed in a Federal Court case management hearing on Feb. 22. Lawyers representing close to 100,000 owners of Volkswagen, Audi and Skoda diesel cars in Australia presented the court with "an extensive dossier" detailing numerous instances of "bullying tactics" and "providing inaccurate information". Law firm Maurice Blackburn, which is taking up the open class action on behalf of local owners, claims VW asked customers to sign waiver documents "purporting to waive all their legal rights" and "wrongfully" told customers their vehicles will not be covered by manufacturer warranty if they refuse the voluntary repair work to their diesel car. Volkswagen Australia insists the company has not asked owners to waive any rights and the recalls have been issued in consultation with the Australian Competition and Consumer Commission (ACCC). In a statement to News Corp Australia, VW said: "The recall is strongly recommended by Volkswagen but is voluntary -- and the owner waives no legal rights if they choose to refuse it." Volkswagen says owners of affected vehicles are contacted via email, and also receive a letter inviting them to make an appointment with their dealer. "The communications with customers inviting them to come to a dealership and have the update implemented voluntarily have been finalised in consultation with the ACCC," says Volkswagen. Jason Geisker, who heads the Maurice Blackburn class action, said in a media statement: "After presiding over one of the biggest motor vehicle scams in automotive history, impacting almost 100,000 Australian motorists and many millions more globally, Volkswagen seems to be completely unrepentant". Since the diesel emissions scandal was exposed in September 2015 "VW has been far from transparent or candid about its conduct," said Mr Geisker. "The company has passed up numerous important opportunities to explain why it set out to mislead regulators and approval authorities about the real emissions generated by these so-called green diesel cars." Volkswagen says diesel "solutions" have now been approved by Federal authorities for the majority of affected Australian Volkswagen vehicles. However, the majority of vehicles are yet to have the recall work done. "More than 13,000 vehicles in Australia have had the software solution performed, in addition to more than 3 million in Europe," said the Volkswagen statement. "Cars which have had the free software upgrade have been confirmed by the Australian Government as conforming to relevant emissions standards." Volkswagen faces fines totalling more than $26 billion in the US and Europe after authorities discovered certain diesel cars were found to have software that pass emissions tests in a laboratory - - but belch out toxic fumes in real driving conditions. Although Australia's emissions standards lag those in the US and Europe, Volkswagen is yet to provide details on the true tailpipe emissions of affected diesel cars sold locally -- prior to the recall work -- when driven on public roads. WABTEC CORP: Busker's Appellant's Opening Brief Due on July 17 -------------------------------------------------------------- The Clerk of the United States Court of Appeals for the Ninth Circuit entered a time schedule order in the lawsuit entitled JOHN BUSKER, on behalf of himself and all others similarly situated and the general public, Plaintiff-Appellant v. WABTEC CORPORATION, a Pennsylvania corporation; MARK MARTIN, an individual; DOES, 1 through 100, Defendants-Appellees, Case No. 17-55165. The Order states that the Parties shall meet in the following time schedule: * July 17, 2017 Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1. * August 16, 2017 Appellees' answering brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1. * The optional appellant's reply brief shall be filed and served within fourteen days of service of the appellees' brief, pursuant to FRAP 32 and 9th Cir. R. 32-1. * Failure of the appellant to comply with the Time Schedule Order will result in automatic dismissal of the appeal. See 9th Cir. R. 42-1. As previously reported in the Class Action Reporter on Feb. 9, 2017, Plaintiff John Busker filed the putative class action on September 11, 2015, in the Los Angeles Superior Court against Wabtec Corporation and Mark Martin. Mr. Busker and other putative class members work on a public works project under the employment of Wabtec. On October 15, 2015, Plaintiff filed an amended complaint in state court alleging causes of action for, among other things, failure to pay minimum and overtime wages and failure to pay prevailing wages on a public works project. On October 19, 2015, the Defendants removed the action to federal court. The case is captioned as JOHN BUSKER, on behalf of himself and all others similarly situated and the general public v. WABTEC CORPORATION, a Pennsylvania corporation; MARK MARTIN, an individual; DOES, 1 through 100, Case No. 2:15-cv-08194-ODW-AFM, in the U.S. District Court for the Central District of California, Los Angeles. On February 7, 2017, Mr. Busker filed a Notice of Appeal to the U.S. Court of Appeals for the Ninth Circuit from the judgment, Order on Motion to Remand Case to State Court, and Order granting the Defendants' Motion for Summary Judgment, entered by the District Court. WEN HAIR: Plaintiff's Lawyer Objects to Class Action Settlement --------------------------------------------------------------- Cristin Severance, writing for CBS 11 News, reports that newly filed court documents in the WEN Hair Care class action lawsuit claim that the product is not natural as advertised in their infomercials. The legal document filed on February 10 is an objection to the class action settlement for $26.5 million, which received a judge's preliminary approval. The plaintiffs allege that their hair started to fall off after using the product. Amy Davis, one of the lawyers for the plaintiffs filed the objection to the settlement. The document states the ingredients used in WEN are not all natural products like it suggests in the infomercials. Some of them, it says, are "synthetic allergens." Allergens like kathon and HICC. Researchers say these substances are known to cause red, itchy, flaky and blistered scalps in some people. It says in severe cases; it can trigger hair loss. The FDA is also investigating reports of hair loss caused by WEN with at least 1386 complaints through November, 2016. Additionally, the FDA says it is also looking into 21,000 complaints reported directly to Chaz Dean and Guthy Renker. WEN has always maintained that there is no basis to these claims. In a statement to CBS 11 News, they said: "We stand behind our products, ingredients and formulations, all of which meet or exceed the safety and quality standards set by the cosmetics industry. After more than a year of back-and-forth in the courts, we reached an agreement to resolve this matter. The settlement is a result of our decision to put this behind us so that we can focus on continuing to deliver quality products to our millions of customers. The settlement does not require any new changes to the formulations or ingredients of the products. It does, however, give the small percentage of our customers who believe they encountered problems an opportunity to have their concerns addressed. Recent objections to the settlement serve no other purpose than to hinder this process. The lawyers behind this filing seek only to enrich themselves at the expense of the WEN(R) customers who are eager to see this issue resolved." WESTERN UNION: Robbins Geller Files Securities Class Action ----------------------------------------------------------- Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Feb. 23 disclosed that a class action has been commenced by an institutional investor on behalf of purchasers of The Western Union Company ("Western Union") (WU) publicly traded securities during the period between February 24, 2012 and January 19, 2017 (the "Class Period"). This action was filed in the Middle District of Pennsylvania and is captioned UA Local 13 Pension Fund v. The Western Union Company, No. 17-cv-00326. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 26, 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/westernunioncompany/.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 Western Union and certain of its current and former officers and/or directors with violations of the Securities Exchange Act of 1934. Western Union provides money movement and payment services worldwide. The complaint alleges that throughout the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding the Company's business and compliance polices. Specifically, during the Class Period, Western Union and its senior management represented to investors that the Company maintained a robust compliance program and obeyed federal and international laws. The complaint, however, alleges that, contrary to these representations, Western Union was systematically aiding and abetting a vast network of international criminal activities, including money laundering and consumer fraud schemes, and had willfully failed to implement effective compliance programs and had turned a blind eye to its agents' misconduct in order to boost the Company's short-term business. As a result of defendants' false statements and/or omissions, Western Union shares traded at artificially inflated prices during the Class Period, reaching prices above $22 per share. Then on January 19, 2017, The Wall Street Journal published an article stating that Western Union had "agreed to pay $586 million to resolve U.S. criminal and civil charges that it failed to effectively police customers who were potentially using its services to engage in fraud." The article stated that in the settlement agreement with the Department of Justice ("DOJ") and Federal Trade Commission ("FTC"), the Company "admitted it failed to maintain an effective anti-money-laundering program and it aided and abetted wire fraud." The same day, the DOJ and the FTC issued releases detailing the settlement and the Company's unlawful conduct. The DOJ's release stated that "'Western Union's failure to implement proper controls and discipline agents that violated compliance[] policies enabled the proliferation of illegal gambling, money laundering and fraud-related schemes. Western Union's conduct resulted in the processing of hundreds of millions of dollars in prohibited transactions.'" Over the next several days, additional information continued to come out about the Company's settlements with various regulators and the widespread misconduct of its employees and agents. On this news, which was revealed over several days, the price of Western Union shares fell $2.31 per share, or over 10%, to close at $19.54 per share on February 1, 2017. Plaintiff seeks to recover damages on behalf of all purchasers of Western Union publicly traded securities during the Class Period (the "Class"). 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 total amount recovered for investors and number of securities 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 rgrdlaw.com/cases/westernunioncompany/ for more information. WORKPLACE SAFETY: Court of Appeals Revives Injured Workers' Suit ---------------------------------------------------------------- JD Supra Advisor reports the Ontario Court of Appeal has revived a proposed class action brought by the appellant, Pietro Castrillo, on behalf of a class of injured workers whom he alleges have been wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act, 1997, by the respondent the Workplace Safety and Insurance Board. The class action alleges misfeasance in public office, bad faith, and negligence on the part of the WSIB. The class action claims that injured workers were "denied the full extent of benefits to which they were entitled" as a result of a "secret policy" implemented by the WSIB, which policy adopted a broader interpretation of the term "pre-existing impairment" to include asymptomatic pre-existing conditions, which had previously been excluded. The appellant claims that this change in interpretation was illegally made in order to save WSIB money by reducing injured workers' non-economic loss awards. The class action seeks declarations that the WSIB "perpetrated a misfeasance in public office" in how it handled the non-economic loss claims of the class, "breached its duty to act in good faith" to the class, and, in the alternative, was negligent. According to the Toronto Star, the alleged "secret policy" was in force between 2012 and 2014. Two years ago, the WSIB successfully brought a motion to strike the statement of claim, asserting there was no cause of action, and that the court has no jurisdiction over the subject matter of the class action due to the privative clause in the Act, which gives the WSIB exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act. The motions judge granted the motion to strike the statement of claim, without leave to amend. The motions judge held that the WSIB's decisions to reduce the class members' non-economic loss benefits were "legal decisions that fall within the four corners of the privative clause", and were therefore beyond court challenge. The appellant appealed the motion judge's ruling to the Court of Appeal. On appeal, the court considered two issues: 1) were the causes of action properly pleaded, and 2) does the privative clause in the Act prevent the appellant from pursuing the causes of action. The Court of Appeal held that, except for the allegation of bad faith, the claim was properly pleaded, and the privative clause in the Act does not prevent the appellant from pursuing claims of misfeasance in public office and negligence against the WSIB. As a result, the class action against the WSIB has been granted permission to proceed. WWE: Lawyers Ask Judge to Allow Discovery Phase of Recent Deaths ---------------------------------------------------------------- Jeremy Thomas at 411 Mania reports that the lawyers who are representing a swath of former WWE talent in a lawsuit against the company over their handling of concussions has filed a motion asking the judge in the case to shoot down WWE's request to put a stop to the discovery phase. PWInsider reports that the attorneys for the plantiffs submitted a filing on February 22 arguing that the recent passing of Jimmy Snuka, Ivan Koloff and George Steele among others is a reason that discovery should move ahead. WWE's lawyers have been asking for discovery to cease in the lawsuit, arguing that the class action suit was added to existing lawsuits that were already ongoing against the company. The plaintiffs' legal team say that the current lawsuit was not yet filed when discovery was ended on the existing and related cases and thus the new plantiffs have not had time for their charges to be heard. The filing states, "The epidemic that is killing professional wrestlers and the Plaintiffs in this case necessitate a full and robust discovery to ensure that these wrestlers are given the relief they need before more wrestlers die from the complications of professional wrestling. Discovery should not be stayed as it is only further wasting precious time and rewarding the Defendants abusive, delaying tactics." Listed in the filing as examples of wrestlers who have continued to pass away as a result of what they say are WWE's actions are Steele, Snuka, Koloff, Chavo Guerrero Sr., Nicole Bass and Rex King. The motion states, "While Plaintiffs are dying from their in-ring injuries and long-term neurological conditions, the Defendants seek to delay simple discovery to prevent the public and its former wrestlers from finally seeing the decades of fraudulent conduct that has resulted in severe injuries for its employees." In addition, the motion argues that discovery must continue because they intend to scrutinize WWE's claims that they pay for the medical costs of talents' in-ring injuries and medical care, arguing that the company's contractual and public statements on the matter "inherently covers the latent and long-lasting effects of repeated in-ring head trauma. It also argues that the case goes beyong CTE to "a much broader series of claims relating to WWE's violation of numerous common law, contractual and statutory rights of the Plaintiffs resulting in financial as well as physical injury." A hearing is set for March 2nd in regard to sanctions that WWE and Vince McMahon in particular have requested be taken against lawyers Konstantine Kyros -- contact@kyroslaw.com -- of Kryos Law, Brenden Leydon of Tooher Wocl & Leydon, LLC, S. James Boumil -- jboumil@proskauer.com -- of Proskauer, Anthony Norris, Erica C. Mirabella -- erica@mirabellaLLC.com -- of Mirabella Law, LLC, and R. Christopher Gilreath -- chrisgil@sidgilreath.com -- of Gilreath and Associates, who they claim have plagiarized allegations from a NFL-concussion lawsuit amond many other claims. YAHOO INC: 770,000 Hosiers Can Join Data Breach Class Action ------------------------------------------------------------ Kara Kenney, writing for TheindyChannel, reports that over 770,000 Hoosiers impacted by Yahoo's latest massive data breach may be able to take part in a class-action lawsuit against the company. The Indiana Attorney General's office sent Yahoo a written letter asking for more information about the breach. The company responded, saying Indiana residents impacted by the data breach received notice by email. Attorneys from 33 law firms across the country have filed the largest class-action suit in history against Yahoo, alleging the company failed to protect consumer information such as email addresses, passwords, birthdates and security questions and answers. "To have that kind of breach by a company that engages in the internet in the exchange of information with users is intolerable," said attorney John Yanchunis, who is leading the class action lawsuit. The attorneys also allege Yahoo failed to notify consumers of the data breach in a timely manner. IUPUI student and longtime Yahoo user Samantha Harrison said she's not sure if she was a victim of the data breach, but is concerned. "Anything that is associated with your email somebody who has hacked into that, can access that," said Ms. Harrison. "That's a privacy invasion, and that's not cool." Hackers cracked Yahoo's security in 2013 and 2014, and the company recently announced another breach might have happened in 2015 as well. Yahoo users who join the class action lawsuit could end up with money in their pocket, depending on whether they suffered losses or identity theft as a result of the breach, according to Mr. Yanchunis. Aside from restitution, the suit demands Yahoo do more to ensure the protection of their email account holders. Yahoo did not provide a comment to Call 6 Investigates on the litigation. Later this year, the judge handling the case is expected to order that notices be sent to Yahoo account holders to give them the option of joining the suit. In the meantime, you can contact the Morgan and Morgan law firm at 1-877-621-7573. Indiana's breach disclosure law requires Hoosiers to be notified only if certain types of personal information are compromised, such as social security numbers, credit card numbers and driver's license numbers. "In this case, it does not appear that this kind of information was disclosed. Therefore Indiana's law does not appear to apply," said Corey Elliot, spokesperson for the Indiana Attorney General's Office. "Any time a breach happens it calls into question the appropriateness of the safeguards in place to protect information. These incidents are a reminder to companies to implement and maintain robust data security protections, including measures to review whether sensitive information has been previously leaked." YAHOO INC: Unveils Terms of Verizon Deal Amid Data Breach Cases --------------------------------------------------------------- Therese Poletti, writing for Marketwatch, reports that the revised deal between Verizon Communications Inc. and Yahoo Inc. may give Altaba another reason to exist beyond holding a bunch of cash and stock. But it isn't a good reason. On Feb. 21, Verizon and Yahoo unveiled the terms of their expected new deal, the result of some lengthy negotiations after the discovery of two massive security breaches at Yahoo that affected more than a billion users. The revised terms slashed $350 million from the $4.8 billion purchase price Verizon agreed to pay, and included a clause about legal bills that will push some of the burden of shareholder litigation and a regulatory inquiry onto Yahoo. Specifically, Verizon and Yahoo agreed to share equally each any liabilities resulting from non-SEC related investigations and other third-party litigation associated with the data breach. There are currently 23 consumer class-action lawsuits filed against Yahoo for the breach, according to an SEC filing. But Yahoo will bear the sole responsibility of liabilities associated with the continuing SEC investigation and any shareholder lawsuits. The SEC is investigating whether the two huge data breaches should have been reported sooner to investors. At least one shareholder lawsuit was filed against Yahoo soon after the SEC investigation was announced and is seeking class action status in federal court. That suit alleges that Yahoo and its top executives, Chief Executive Officesr Marissa Mayer and CFO Ken Goldman, made public misrepresentations and failed to disclose material facts to investors about the data breaches at the company. Yahoo, though, may not exist in its current form when the results of all these legal actions are known. Verizon and Yahoo still say that they expect the deal to close in the second quarter; once it does, "Yahoo" will become part of Verizon while everything else that is part of Yahoo Inc. becomes part of a new holding company called Altaba. That means Altaba could be left holding the bag for some legal expenses stemming from the Yahoo hacks, possibly taking a chunk out of the $7 billion in cash and securities that Yahoo held at the end of 2016. For investors who have spent years waiting for Yahoo to figure out a way to spin out its cash and stakes in Alibaba Group Holding Ltd. and Yahoo Japan from the flagging core business without a huge tax liability, this potential drain on the assets cannot be appealing. Yahoo declined to comment when contacted on Feb. 21. Yahoo investors seemed relieved on Feb. 21 that Verizon chose a slight discount instead of dropping the deal entirely, sending shares up 0.9%. Yahoo stock has gained 10.6% in the last three months and 51.5% in the past year, easily topping the S&P 500 index's SPX, +0.15% gains of 7.6% and 23.3% in those time frames. Yahoo's gains have pushed its market cap north of $43 billion, which would mean Altaba is valued at roughly $39 billion given the price Verizon is paying. That price may be too rich if the SEC and shareholder legal actions against Yahoo end up successful. * Crowell Attorney Shares Highlights from New Class Action Bill --------------------------------------------------------------- Josh Thomas Foust, Esq. -- jfoust@crowell.com -- of Crowell & Moring LLP, in an article for Lexology, reports that just a week before Congress began its first extended recess of 2017, the Chairman of the House Judiciary Committee took a step towards dramatically changing the landscape of class action litigation. On Thursday, February 9, Representative Bob Goodlatte (R-Va.) introduced a bill (H.R. 985) that would "amend the procedures used in Federal court class actions" by adding a number of new hurdles to class certification in federal court. Chairman Goodlatte was a principal author of the Class Action Fairness Act of 2005, which considerably expanded federal diversity jurisdiction over interstate class actions. He was also behind another class action reform bill introduced in 2015 that failed to clear the Senate. His new bill, dubbed the Fairness in Class Action Litigation Act of 2017, is in much the same vein -- and, if passed, would represent the most sweeping revision of federal class action law to date. Highlights from the bill: Injury and Damages: Under the new bill, plaintiffs seeking "monetary relief" would have to "affirmatively demonstrate that each proposed class member suffered the same type and scope of injury as the named class representative." Practical Impact: It is not immediately clear how this change would affect the certification inquiry in practice; federal courts already require a high degree of uniformity in the type of injury that class members have suffered in order to find that common questions predominate. In theory, though, the new language has at least two stated aims: (1) to ensure that no certified classes include uninjured absent class members, and (2) to prevent the certification of classes that require widely diverging calculations of individual damages awards. Conflicts of Interest: The new bill would require class action complaints to disclose: 1. whether any proposed class representative "is a relative of, is a present or former employee of, is a present or former client of (other than with respect to the class action), or has any contractual relationship with (other than with respect to the class action) class counsel," and 2. "the circumstances under which each class representative or named plaintiff agreed to be included in the complaint," including "any other class action in which any proposed class representative or named plaintiff has a similar role." Practical Impact: Under the new bill, if a named plaintiff has a pre-existing relationship with class counsel, then the court "shall not issue an order granting certification" -- plainly targeting the trend of "repeat offenders" filing multiple class action complaints against multiple defendants using the same counsel. Ascertainability: In a direct response to recent circuit court decisions, the bill would enshrine in statute the implied "ascertainability" requirement recognized by the Third Circuit in Carrera v. Bayer and rejected by the Sixth, Seventh, Eighth, and Ninth Circuits. Specifically, the bill would prohibit certification of damages classes "unless the class is defined with reference to objective criteria and the party seeking to maintain such a class action affirmatively demonstrates that there is a reliable and administratively feasible mechanism" for identifying class members and distributing individual damages awards. Practical Impact: In practice, this provision could, for example, authorize courts to demand that consumers come forward with records or proofs of purchase showing they meet the class definition -- even in class actions involving inexpensive consumer goods. Attorneys' Fees: The bill seeks to prevent disproportionately large fee awards by limiting class counsel's fees "to a reasonable percentage of any payments directly distributed to and received by class members." In addition, the provision would cap the fee award at "the total amount of money directly distributed to and received by all class members." Practical Impact: This provision is ostensibly designed to make it more difficult for plaintiffs' counsel to recover fee awards -- and thus to discourage them from filing class actions in the first instance. By the same token, however, the bill would also make it harder for defendants to negotiate -- and get approval for -- class action settlements. Appeals: Finally, the bill would require federal circuit courts to accept any appeals of district court orders granting or denying class certification. Practical Impact: Given the inherently high stakes of a certification ruling, this provision would likely increase appellate litigation over Rule 23 issues dramatically: currently, under Rule 23(f), appellate review is only available at the court's discretion. Of course, the new bill faces a long road to becoming law; the most recent class-action reform bill proposed by Chairman Goodlatte, for example, failed to pass the Republican Senate after making it out of the House. But given what a sea change this legislation would represent for class action practice in the federal courts, its progress in Congress is worth monitoring closely. ********* 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *