/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170307.mbx C L A S S A C T I O N R E P O R T E R Tuesday, March 7, 2017, Vol. 19, No. 47 Headlines ACE HOMECARE: Molina Moves to Certify Two Classes Under FLSA ALDRIDGE IT: Hugdahl Seeks Certification of Class Under FLSA ALLIANCE COLLECTION: "Kurtz" Suit Seeks Certification of Class AMERICAN HOTEL: Certification of Class Sought in E & G Suit AMERIFLIGHT LLC: Seeks 9th Cir. Review of Order in "Sanchez" Suit ASSURANT INC: Continues to Defend Lender-Placed Insurance Suits BILL BROWN: Brislane Files Renewed Class Certification Motion BOSTIK INC: Runyon Seeks Certification of California Class CAFE LUNA: Court Certifies Class of Servers in "Biller" Suit CAREMARK RX: Ala. Supreme Court Grants Writ of Mandamus COLGATE PALMOLIVE: NY Court Denies Bid to Dismiss "Caufield" COSTCO WHOLESALE: Ninth Circuit Appeal Filed in "Sud" Labor Suit COUNTY OF NASSAU: New York Court Narrows Claims in "Perros" CRAFT BREW: Faces Class Action Over Kona Beer Deceptive Labeling CUMMINGS OIL: Pawnee Nation Files Suit Over September Earthquake D&J CLEANING: "Cano" Suit Seeks Unpaid Minimum, Overtime Wages DELL TECHNOLOGIES: Laptop User Can't Bring Class Action DOLLAR TREE: Court Certifies Wage Statement Class in Patton Suit EARTHLINK HOLDINGS: Says Suit Over Windstream Merger Lack Merit ENERGY TRANSFER: Tribe Officials Want Pipeline Documents Released EXPERIAN INFORMATION: Judge Grants Bid to Arbitrate "Devries" FIDELITY AND DEPOSIT: Tennessee Seeks to Certify Forfeiture Class GAP INC: California Court Trims Claims in "Munning" HARRY AND DAVID: "Brown" Sues Over Under-filled Snack Foods HEWLETT PACKARD: Discount Drugs Seeks Certification of Class HUNTER INDUSTRIES: Class of Laborers Certified in "King" Suit INTREXON CORPORATION: Bid to Dismiss Securities Suit Granted JESSE CASARES: Status Hearing in JT's Frames Suit on March 21 JOHNSON & BELL: Data Security Claims Must Be Heard in Arbitration JOHNSON & JOHNSON: Wins Talcum Powder Case in St. Louis JOHNSON CONTROLS: Indiana Residents Want Class Action Remanded KANSAS CITY, KS: Ordered to Pay $10 Million for Trash Rebates KINDRED NURSING: Can't Enforce Arbitration Agreements KOP KILT: Court to Approve Settlement in "Graudins" LANE LABS-USA: Bobo's Drugs Moves to Certify Class Under TCPA LEAPFROG ENTERPRISE: Court Trims Claims in Securities Class Suit LULAROE: Faces Criticisms Over Leggings Amid Class Action MARS PETCARE: Among Defendants in Pet Food Class Action MCAFEE INC: Jabrani Appeals Decision in "Williamson" Class Suit MDL 1917: June 8 Settlement Final Approval Hearing Set MDL 2493: 4th Cir. Appeal Filed in TCPA Suit v. Monitronics MDL 2380: Vullings Appeals Ruling in Shop-Vac Case to 3rd Cir. MERCY HEALTH: Sanzone Moves to Certify Pension Plan Members Class MERRILL LYNCH: Faces Class Action Over Customer Cash Use MICROSOFT CORP: Settles Class Action Over Misprinted Receipts NETHERLANDS PETROLEUM: Liable for Earthquake Immaterial Damages NITRO FLUIDS: Corum Seeks Certification of Operators Class OCWEN LOAN: Class Settlement in "Messineo" Granted Final Approval OPTIO SOLUTIONS: Certification of Class Sought in "Gomez" Suit PAYPAL: Faces Class Action Over Giving Fund Platform PHILIP MORRIS: 11 Smoking & Health Class Cases Pending at Feb. 10 PHILIP MORRIS: Awaits Appellate Decision in "Letourneau" Suit PHILIP MORRIS: Awaits Appellate Ruling in Conseil Quebecois Suit PHILIP MORRIS: "Bourassa" Class Suit Remains Pending in Canada PHILIP MORRIS: "Jacklin" Class Suit Remains Pending in Ontario PHILIP MORRIS: "McDermid" Class Suit Remains Pending in Canada PHILIP MORRIS: Preliminary Motions in "Adams" Suit Remain Pending PHILIP MORRIS: Sao Paulo Public Prosecutor's Appeal Still Pending PHILIP MORRIS: Still No Activity in 3 Suits Pending in Canada PHILIP MORRIS: Two Appeals in ADESF Suit Remain Pending in Brazil PIONEER CREDIT: Louisiana Court Certifies Class in "Masson" Suit PIVOTAL PAYMENTS: "Abante" Survives Dismissal Bid PRIVATE ADVISORY: Wash. Court Stays "Farr" Pending SEC Action QUEST DIAGNOSTICS: Class Settlement in "Emmons" Has Final OK SELF-RELIANCE INC: Care Staff Class Certified in "Wengerd" Suit SI WIRELESS: Seeks Arbitration in Automated Text Class Action SOUTHERN KOMFORT: "Bryant" Labor Case to Recover Overtime Pay SPEARMINT RHINO: Underpays Strip Club Dancers, "Ortega" Suit Says STEVEN SCHUSS: MacNeill Attorneys Analyze Med Mal Case Ruling T-MOBILE USA: Stiffs Sales Reps for Overtime, "Salgado" Suit Says TAKATA CORP: Criminal Plea Deal to Impact Airbag Civil Suits TSUNAMI IN ST. PETERSBURG: Vongkultrup Seeks to Certify Class UNDER ARMOUR: Bloated Stock Price Hit in "Breece" SEC Suit UNITED STATES: Names of Detainees in Travel Ban Case Turned Over UNITED STATES: Trump Strikes at 9th Cir. After Travel Ban Ruling UNITED STATES: Data Breach Class Action Against VAMC Dismissed UNITED STATES: Health Republic Invite Other Insurers to Join Suit UNIVERSITY OF IOWA: Sued for Cutting $3.4 Million in Scholarships WAL-MART STORES: Judge Dismisses Shareholders' Class Action WEINSTEIN PINSON: Status Hearing in "Marquez" Suit Set for May 2 WILLIE'S CHICKEN: Parties Sought Certification of Workers Class YAHOO INC: CEO Relinquishes Annual Bonus Following Data Breaches YAHOO INC: Verizon Merger Deal Still On Amid Data Breach Suits * Companies Must Comply with Calif. Privacy Laws to Avert Suits * Defense Lawyer Shares Concerns on Class Action Reform Bill * Gorsuch Often Sides with Defense on Class Actions, Arbitration * House Approves Fairness in Class Action Litigation Bill * New Immigration Enforcement Guidelines May Strain Courts * Plaintiffs Attorney Shares Thoughts on Class Action Reform Bill * Plaintiffs' Lawyers Benefit More from Food Labeling Litigation ********* ACE HOMECARE: Molina Moves to Certify Two Classes Under FLSA ------------------------------------------------------------ The Plaintiffs in the lawsuit styled TONI MOLINA, ERICA TOVAR, TARA WARD, LY NGUYEN, CONSUELO POWELL DONALD HALL, and DEBBIE BURGESS, on behalf of themselves and all others similarly situated v. ACE HOMECARE, LLC, BRL INVESTMENTS, LLC, ARTHUR BARLAAN, and JOCELYN BARLAAN, Case No. 8:16-cv-02214-JDW-TGW (M.D. Fla.), move the Court to conditionally certify classes under the Fair Labor Standards Act and authorize them to mail and e-mail notice of the lawsuit and consent to become a party plaintiff form to: Nurse Putative FLSA Minimum Wage Putative Class: All nurses who worked for Defendants within the last three years who believe they were not paid proper minimum wage compensation during any work week of their employment within the applicable statute of limitations period. Non-nurse Putative FLSA Minimum Wage Putative Class: All other employees who worked for Defendants within the last three years who believe they were not paid proper minimum wage compensation during any work week of their employment within the applicable statute of limitations period. The Plaintiffs also ask the Court to direct the Defendants to produce contact information of putative class members, to authorize their counsel to send notices to those members and to direct the Defendants to post at all of its business locations a copy of the initial notice. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ojet9pdw The Plaintiffs are represented by: Luis A. Cabassa, Esq. Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: lcabassa@wfclaw.com bhill@wfclaw.com - and - Chad A. Justice, Esq. BLACK ROCK TRIAL LAWYERS 201 S Westland Avenue Tampa, FL 33606 Telephone: (813) 254-1777 Facsimile: (813) 254-3999 E-mail: chadjustice@blackrocklaw.com The Defendants are represented by: Stanford R. Solomon, Esq. Blake J. Fredrickson, Esq. THE SOLOMON LAW GROUP, P.A. 1881 West Kennedy Boulevard Tampa, FL 33606 Telephone: (813) 586-0111 Facsimile: (813) 225-1050 E-mail: spiper@solomonlaw.com bfredrickson@solomonlaw.com ALDRIDGE IT: Hugdahl Seeks Certification of Class Under FLSA ------------------------------------------------------------ The Plaintiff in the lawsuit titled KEN HUGDAHL, and others similarly situated v. ALDRIDGE IT SERVICES, LLC, THE DAVID L. ALDRIDGE COMPANY, INC., and, DAVID L. ALDRIDGE, Case No. 4:16-cv- 03073 (S.D. Tex.), files with Court an unopposed motion for conditional certification and entry of order authorizing and approving notice to putative class members. The collective action is brought under the Fair Labor Standards Act. The Plaintiff's amended complaint contains a description of the Putative Class Members, whose interests the Plaintiff purports to represent in this matter, and to whom he seeks to provide the requested notice, according to the Motion. The Defendants do not oppose the Motion but they reserve and do not waive any and all defenses, the right to seek decertification, and the right to dispute ultimate liability to any particular Putative Class Member and/or whether a two-year or three-year statute of limitations applies. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=WOO1CXji The Plaintiff is represented by: Thomas H. Padgett, Jr., Esq. ROSS LAW GROUP 4809 Pine St. Bellaire, TX 77401 Telephone: (800) 634-8042 Facsimile: (512) 474-5306 E-mail: tpadgett@rosslawgroup.com - and - Charles L. Scalise, Esq. Daniel B. Ross, Esq. ROSS LAW GROUP 1104 San Antonio St. Austin, TX 78701 E-mail: charles@rosslawgroup.com dan@rosslawgroup.com ALLIANCE COLLECTION: "Kurtz" Suit Seeks Certification of Class -------------------------------------------------------------- In the lawsuit styled TYLER J. KURTZ, on behalf of himself and others similarly situated, the Plaintiff, v. ALLIANCE COLLECTION AGENCIES, INC., a Wisconsin Corporation; and, JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Defendants, Case No. 1:17-cv-00203-WCG (E.D. Wisc.), the Plaintiff asks the Court to certify a class of: "all persons with addresses in the State of Wisconsin, to whom Alliance mailed a written collection communication, which failed to identify the name of the creditor to whom the debt is owed, during the period beginning February 14, 2016 and ending March 7, 2017". Excluded from the Class are Defendants, their respective officers, members, partners, managers, directors and employees, their respective immediate families, legal counsel for all parties to this action, and all members of their immediate families. The case involves three separate collection letters all dated December 30, 2016 which Defendant Alliance Collection Agencies, Inc. sent to Plaintiff in an attempt to collect an alleged debt owed to St. Elizabeth Hospital. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=DgeVUZOJ The Plaintiff is represented by: Philip D. Stern, Esq. Heather B. Jones, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081 1315 Telephone: (973) 379 7500 Facsimile: (973) 532 5868 E-mail: philip@sternthomasson.com andrew@sternthomasson.com heather@sternthomasson.com AMERICAN HOTEL: Certification of Class Sought in E & G Suit ----------------------------------------------------------- The Plaintiff in the lawsuit styled E & G, INC., a West Virginia corporation, individually and as the representative of a class of similarly-situated persons v. AMERICAN HOTEL REGISTER COMPANY, an Illinois corporation, and JOHN DOES 1-5, Case No. 1:17-cv-01011 (N.D. Ill.), submits its motion for class certification pursuant to Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011). E & G proposes this class definition: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, (3) from whom Defendants did not obtain "prior express invitation or permission" to send fax advertisements, and (4) with whom Defendants did not have an established business relationship, and/or (5) which did not display a proper opt-out notice. E & G also asks the Court to appoint it as the class representative, and appoint its attorneys as class counsel. The Plaintiff further asks for a status conference with the Court as soon as practicable. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=nuuyYkGN The Plaintiff is represented by: Brian J. Wanca, Esq. Ryan M. Kelly, Esq. Ross M. Good, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com rkelly@andersonwanca.com rgood@andersonwanca.com AMERIFLIGHT LLC: Seeks 9th Cir. Review of Order in "Sanchez" Suit ----------------------------------------------------------------- Defendant Ameriflight, LLC, filed an appeal from a court ruling in the lawsuit entitled David Sanchez v. Ameriflight, LLC, Case No. 3:16-cv-02733-MMA-BGS, in the U.S. District Court for the Southern District of California, San Diego. As previously reported in the Class Action Reporter, the lawsuit was originally filed in the Superior Court of the State of California for the County of San Diego (Case No. 37-02014- 00023517-CU-OE-CTL), but was later removed to the District Court. The lawsuit arose from labor-related issues. The appellate case is captioned as David Sanchez v. Ameriflight, LLC, Case No. 17-80023, in the United States Court of Appeals for the Ninth Circuit. Plaintiff-Respondent DAVID SANCHEZ, on behalf of himself and all others similarly situated, is represented by: Alisa Ann Martin, Esq. AMARTIN LAW 600 West Broadway San Diego, CA 92101 Telephone: (619) 308-6880 Facsimile: (619) 308-6881 E-mail: alisa@pattersonlawgroup.com Defendant-Petitioner AMERIFLIGHT, LLC, is represented by: Spencer C. Skeen, Esq. Timothy L. Johnson, Esq. Jonathan Liu, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: (858) 652-3100 Facsimile: (858) 652-3101 E-mail: spencer.skeen@ogletreedeakins.com tim.johnson@ogletreedeakins.com jonathan.liu@ogletreedeakins.com ASSURANT INC: Continues to Defend Lender-Placed Insurance Suits --------------------------------------------------------------- Assurant, Inc., continues to defend itself against class action lawsuits arising from its lender-placed insurance programs, the Company said in its Form 10-K filed with the Securities and Exchange Commission on February 14, 2017, for the fiscal year ended December 31, 2016. The Company is involved in a variety of litigation relating to its current and past business operations and may from time to time become involved in other such actions. In particular, the Company is a defendant in class actions in a number of jurisdictions regarding its lender-placed insurance programs. These cases allege a variety of claims under a number of legal theories. The plaintiffs seek premium refunds and other relief. The Company continues to defend itself vigorously in these class actions and, as appropriate, to enter into settlements. The Company says: "We participate in settlements on terms that we consider reasonable in light of the strength of our defenses; however, the results of any pending or future litigation and regulatory proceedings are inherently unpredictable and involve significant uncertainty. Unfavorable outcomes in litigation or regulatory proceedings, or significant problems in our relationships with regulators, could materially adversely affect our results of operations and financial condition, our reputation, our ratings, and our ability to continue to do business. They could also expose us to further investigations or litigation. In addition, certain of our clients in the mortgage and credit card and banking industries are the subject of various regulatory investigations and litigation regarding mortgage lending practices, credit insurance, debt-deferment and debt cancellation products, and the sale of ancillary products, which could indirectly affect our businesses." Assurant, Inc. is a holding company whose subsidiaries globally provide risk management solutions, protecting where consumers live and the goods they buy. BILL BROWN: Brislane Files Renewed Class Certification Motion ------------------------------------------------------------- In the lawsuit captioned JONATHAN BRISLANE, etc., the Plaintiff, v. BILL BROWN, et al., the Defendants, Case No. 2:16-cv-06002-JFW- E (C.D. Cal.), the Plaintiff renews his class certification motion and again moves the court to certify the class of: "persons who, as inmates, both pre-trial detainees and convicted persons, were forced to sleep on the floors of the Santa Barbara County jails without state-rated bunks". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=M611BAad The Plaintiff is represented by: Marion R. Yagman, Esq. Joseph Reichmann, Esq. YAGMAN & REICHMANN 475 Washington Boulevard Venice Beach, CA 90292-5287 Telephone: (310) 452-3200 BOSTIK INC: Runyon Seeks Certification of California Class ---------------------------------------------------------- In the lawsuit titled PATRICK E. RUNYON (AS TRUSTEE OF THE PATRICK E. RUNYON AND TERRI E. RUNYON REVOCABLE TRUST DATED AUGUST 7, 2015); JOSEPH S. SHUSTER AND GEORGANNE L. SHUSTER, AND EVERARDO VIDRIO AND ZEFERINA VIDRIO, individually and on behalf of all those similarly situated, the Plaintiffs, v. BOSTIK, INC., a Delaware corporation; DAVID C. GREENBAUM CO., INC., a California corporation; LEONARD'S CARPET SERVICE, INC., a California Corporation, and DOES 1 through 100, inclusive, the Defendants, Case No. 5:16-cv-02413-RGK-SP (C.D. Cal.), the Plaintiffs will move the Court on March 20, 2017, at 9:00 a.m., for an order certifying a California class of: "all owners of single-family homes located in California in which Leonard's Carpet Service, Inc. installed ceramic, porcelain, or natural stone floor tiles on concrete substrates using D-70 as part of original/new construction". Excluded from the Class are (i) Defendants, any entity in which a Defendant has a controlling interest, or which has a controlling interest in a Defendant, and Defendants' legal representatives, predecessors, successors and assigns; (ii) governmental entities; (iii) Defendants' employees, officers, directors, agents, and representatives and their family members; (iv) the Judge and staff to whom this case is assigned, and any member of the Judge's immediate family; (v) any California homeowner who has had all their floor tile replaced under Defendants' express warranties; and (vi) any California homeowner who has released their claims regarding D-70 as against Leonard's Carpet Service, Inc. and Bostik, Inc. The Plaintiffs further ask the Court to certify Plaintiffs as the class representatives for the proposed Class, and Stuart M. Eppsteiner, Esq., of Eppsteiner Law, APC, William Naumann, Esq., of The Naumann Law Firm, PC, and Jean-Claude Lapuyade, Esq., of The JCL Law Firm, as Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=a6WQYXOg The Plaintiff is represented by: Stuart M. Eppsteiner, Esq. EPPSTEINER LAW, APC 5519 Clairemont Mesa Blvd. Suite 5129 San Diego, CA 92117 Telephone: (858) 350 1500 Facsimile: (858) 598 5599 E-mail: Sme@Eppsteiner.Com - and - William H. Naumann, Esq. THE NAUMANN LAW FIRM, PC 10200 Willow Creek Road, Suite 150 San Diego, CA 92131 Telephone: (858) 792 7474 Facsimile: (858) 564 9380 E-mail: William@Naumannlegal.com - and - Jean-Claude Lapuyade, Esq. JCL LAW FIRM, APC 10200 Willow Creek Road, Suite 150 San Diego, CA 92131 Telephone: (619) 599 8292 Facsimile: (619) 599 8291 E-mail: jlapuyade@jcl-lawfirm.com CAFE LUNA: Court Certifies Class of Servers in "Biller" Suit ------------------------------------------------------------ The Hon. Paul A. Magnuson entered a memorandum and order in the lawsuit entitled Kristen Biller, on behalf of herself and all others similarly situated v. Cafe Luna of Naples, Inc., Cafe Luna East LLC, Edward J. Barsamian, and Shannon Radosti, Case No. 2:14- cv-00659-PAM-MRM (M.D. Fla.): 1. granting the Plaintiff's motion to certify classes; 2. ruling that the Plaintiff's proposed notice of lawsuit should include the Court's changes; and 3. granting in part and denying in part the Plaintiff's motion for summary judgment. The minimum-wage class is defined as "all servers who worked for Defendants within the last three years who were required to participate in Defendants' mandatory tip pools." The overtime- claim class is defined as "all hourly-paid employees who worked for Defendants at both of Defendants' restaurant locations within the same workweek, in one or more workweeks within the last three years, who worked in excess of 40 hours per week when the hours worked at both restaurants are taken together." Ms. Biller has met the low burden to conditionally certify the class and has also proved her overtime claim for the period November 11 to December 29, 2013, as a matter of law, Judge Magnuson stated. Judge Magnuson, however, opined that Ms. Biller has failed to prove her overtime claim as a matter of law as to any other employees or time periods. Judge Magnuson adds that there are genuine issues of material fact that preclude summary judgment on her minimum-wage claim. A copy of the Memorandum and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Anz2U4bR CAREMARK RX: Ala. Supreme Court Grants Writ of Mandamus ------------------------------------------------------- MedPartners, Inc., a physician-practice-management/pharmacy- benefits-management corporation that was the predecessor in interest to Caremark, Inc., and Caremark Rx, LLC, began issuing to investors a type of convertible security known as threshold- appreciation-price securities, or TAPS. In March 1999, a California state agency appointed a conservator over a MedPartners subsidiary operating in California and subsequently initiated bankruptcy proceedings on behalf of the subsidiary. In March 2000, a case entitled Taff v. Caremark, Inc. was filed by certain TAPS holders in Franklin Circuit Court to resolve the issue whether the bankruptcy of the California subsidiary constituted a termination event entitling them to an immediate payment. A settlement was quickly reached and, on June 9, 2000, the trial court entered a final judgment approving the terms of the settlement. Part of the court's decision expresses that the court reserves and maintains continuing jurisdiction over all matters relating to the settlement agreement or the consummation of the settlement, the validity of the settlement, the construction and enforcement of the settlement and any orders entered pursuant thereto. Approximately 16 years later, in July 2016, Taff class counsel moved the Franklin Circuit Court to enter an order requiring Caremark to produce for them certain information regarding the members of the Taff class so that Taff class counsel could notify those members of a proposed settlement in a separate class-action lawsuit pending against Caremark in the Jefferson Circuit Court, Johnson v. Caremark Rx, LLC, in which some of the members of the Taff class might be able to file claims. Caremark opposed Taff class counsel's request arguing that Taff class counsel's invocation of and reliance upon Rule 60(b)(6), Ala. R. Civ. P., was inappropriate and that the Franklin Circuit Court lacked jurisdiction to grant the requested relief. The Franklin Circuit Court conducted a hearing on Taff class counsel's motion and requested proposed orders from the parties. In their proposed order, Taff class counsel withdrew their request for relief pursuant to Rule 60(b)(6) and instead requested that the trial court order Caremark to provide the requested information on the basis that the court had, in its June 2000 final judgment approving the Taff settlement, stated that it was reserving and maintaining continuing jurisdiction over all matters relating to the settlement agreement. On August 1, 2016, the trial court denied Taff class counsel's request for Rule 60(b)(6) relief but orders under its retained jurisdiction that Caremark must file with the court on or before August 31, 2016, all documents in its possession or to which it has reasonable access that identify class members who received notice, or who held TAPS, and the number of TAPS or other MedPartners securities held by them. The trial court also specifically stated that Caremark was required to produce the list of names and addresses described in the affidavit submitted in conjunction with Caremark's initial motion opposing the Taff class counsel's Rule 60(b)(6) motion. Caremark petitioned the Supreme Court of Alabama for a writ of mandamus directing the trial court to vacate its August 1 order. Caremark thereafter moved to stay the trial court's August 1 order and, on August 25, 2016, the Supreme Court of Alabama granted the motion to stay. The Supreme Court of Alabama granted Caremark Rx, LLC's petition and issued a writ of mandamus and held that the jurisdiction retained by the trial court after it entered its final judgment in Taff is limited to interpreting or enforcing that final judgment. The trial court could not extend its jurisdiction over any matter somehow related to the June 2000 final judgment in perpetuity by simply declaring it so. The August 1 order was effectively a modification of the June 2000 final judgment, however, the trial court lost jurisdiction to amend or modify the June 2000 judgment 30 days after it was entered. The Franklin Circuit Court is directed to vacate the August 1 order, which it was without jurisdiction to enter. The case is titled Ex parte Caremark Rx, LLC, formerly known as MedPartners, Inc., and Caremark, Inc. (In re: James Taff v. Caremark Rx, LLC, formerly known as MedPartners, Inc., and Caremark, Inc.), No. 1151160 (Ala.) A copy of the Supreme Court of Alabama's opinion penned by acting Chief Justice Lyn Stuart, dated February 24, 2017, is available at https://goo.gl/KDq2Qr from Leagle.com. The Supreme Court of Alabama panel consist Acting Chief Justice Lyn Stuart and Justices Michael F. Bolin, Greg Shaw, James Allen Main, and Tommy Bryan. COLGATE PALMOLIVE: NY Court Denies Bid to Dismiss "Caufield" ------------------------------------------------------------ Judge Lorna Schofield of the U.S. District Court for the Southern District of New York denied defendants' motion to dismiss the case styled PAUL CAUFIELD, et al., Plaintiffs, v. COLGATE-PALMOLIVE CO., et al., Defendants, No. 16 Civ. 4170 (LGS) (S.D.N.Y.). Paul Caufield and Rebecca Staley are former employees of Colgate- Palmolive Co. and both were and are participants in the Colgate- Palmolive Co. Employees' Retirement Income Plan, which is sponsored by Colgate and administered by the Committee. Caufield was employed by Colgate from 1977 to 1999, while Staley was employed by from 1979 to 1994. The Plan is a defined benefit pension plan. Prior to July 1, 1989, the Plan used a final average pay formula, meaning that the level of benefits was based on the participant's length of service and average salary during her final years of service. Effective July 1, 1989, the Plan became a cash balance plan, which essentially uses a career average pay formula. The new plan formula defines a participant's benefits in terms of a Personal Retirement Account balance, which reflects accumulated monthly pay-based credits and interest. Upon retirement, the PRA balance is converted into an annuity or, if preferred, paid as a lump sum. Because the benefits provided under the new formula would in some circumstances be less valuable than the benefits provided under the old formula, Colgate enacted protective Plan provisions and offered enhanced benefits for participants with pre July 1989 benefits. Participants had the option to continue earning benefits under the pre July 1989 final average pay formula by making employee contributions to the Plan. Participants who selected this option were to receive the larger of the annuity calculated under the Plan's pre July 1989 final average pay formula as continued in effect post July 1, 1989, or the Plan's new PRA formula plus an annuity based on the employee's contributions. Caufield and Staley had pre-July 1989 benefits and opted to make employee contributions. When they retired from Colgate in 1999 and 1994, respectively, they each elected to receive their benefits under the Plan in the form of a lump sum. Colgate paid Caufield $104,386.00 and Staley $22,425.64. In 2005, Colgate acknowledged that the lump sums the Plan had been paying to participants with pre-July 1989 benefits were less than the lump sums to which they were statutorily entitled. The deficiency in the lump sum payments meant that Plan participants have been deprived of some of their non-forfeitable pension benefits. To correct the problem, Colgate enacted the Residual Annuity Amendment (RAA) in 2005. The RAA was effective retroactively to July 1, 1989 but the same was not implemented until 2014, and have never provided Plan participants an updated summary plan description or summary of material modifications disclosing the RAA. In 2007, three lawsuits were filed against the Plan alleging that it had miscalculated the pension benefits of several thousand participants since July 1, 1989. The cases were consolidated into Colgate I. In May 2010, after three years of litigation, the parties reached an agreement in principle to settle the case. Up to that point, defendants had not produced a copy of the RAA in response to discovery requests. Once plaintiffs' counsel received a copy of the RAA in July 2011, they insisted that all RAA claims be carved out of the settlement agreement. Colgate and the Plan eventually agreed, and on October 9, 2013, the parties executed a settlement agreement. The court approved the settlement agreement and noted that certain claims known as the Residual Annuity Claims were excluded from the scope of the settlement. In August 2014, defendants granted additional benefits under the RAA to a few hundred Plan participants. Caufield received a Residual Annuity of $57.94 per month plus a gross payment of $16,262.54, representing missed payments of his Residual Annuity from the date his lump sum pension benefit was paid, accumulated with interest. Staley received no Residual Annuity. Staley had receiving nothing prompting her to write to the plan administrator. She requested that the Plan provide her the annuity benefit and an explanation of how it was calculated. Laura Flavin, Colgate's Vice President for Global Compensation and Benefits, responded on behalf of the Committee and denied Staley's claim for an annuity benefit. Counsel for plaintiffs subsequently requested additional documents, records and information from defendants and, by letter dated April 6, 2015, appealed both the denial of Staley's claim for an annuity benefit, and the determination of the amount of Caufield's Residual Annuity. Daniel Marsili, Colgate's Senior Vice President, Global Human Resources, denied Staley's claims appeal by letter dated June 4, 2015. Marsili asserts in the letter that Staley's claims were released as part of the settlement agreement in Colgate I. On June 3, 2016, Plaintiffs filed a putative class action lawsuit and assert claims against defendants for violations of the Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001 et seq., and for contempt of the court's final order and judgment in Colgate I. Defendants move to dismiss plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the claims were released in the settlement agreement from Colgate I, are time barred and fail to state a claim. Judge Schofield denied defendants' motion to dismiss because plaintiffs' claims for benefits under RAA are timely and not barred by the release in the Colgate I settlement agreement. A copy of Judge Schofield's opinion and order dated February 24, 2017, is available at https://goo.gl/uvR8d3 from Leagle.com. Plaintiffs, represented by: Albert Huang, Esq. Steven Dana Cohen, Esq. Eli Gottesdiener, Esq. GOTTESDIENER LAW FIRM, PLLC 498 7th Street Brooklyn, NY 11215 Tel: 718-788-1500 Fax: 718-788-1650 Defendants, represented by Jeremy P. Blumenfeld -- jeremy.blumenfeld@morganlewis.com -- Jeffrey A. Sturgeon -- jeffrey.sturgeon@morganlewis.com -- at Morgan, Lewis & Bockius LLP COSTCO WHOLESALE: Ninth Circuit Appeal Filed in "Sud" Labor Suit ---------------------------------------------------------------- Plaintiffs Monica Sud and Cecilia Jacobo filed an appeal from a court ruling in their lawsuit titled Monica Sud, et al. v. COSTCO, et al., Case No. 4:15-cv-03783-JSW, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter, the District Court, on January 24, 2017, dismissed with prejudice the class action, which alleges that Costco sold prawns harvested with slave labor, despite the Company's policy banning human rights abuses in its supply chain. Lead plaintiff Monica Sud sued Costco in August 2015, claiming the retail giant buys farmed prawns from Thailand and other parts of Southeast Asia knowing they are produced with slave labor on unregistered "ghost ships." The appellate case is captioned as Monica Sud, et al. v. COSTCO, et al., Case No. 17-15307, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants Cecilia Jacobo and Monica Sud's opening brief is due on June 1, 2017; -- Appellee Costco Wholesale Corporation's answering brief is due on July 3, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellants MONICA SUD, individually, and on behalf of all others similarly situated, and CECILIA JACOBO, individually, and on behalf of all others similarly situated, are represented by: Niall McCarthy, Esq. Anne Marie Murphy, Esq. COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road Burlingame, CA 94010 Telephone: (650) 697-6000 E-mail: nmccarthy@cpmlegal.com amurphy@cpmlegal.com - and - Derek G. Howard, Esq. DEREK G. HOWARD LAW FIRM, INC. 42 Miller Avenue Mill Valley, CA 94941 Personal: 415-432-7192 Telephone: (415) 432-7192 Facsimile: (415) 524-2419 E-mail: derek@derekhowardlaw.com - and - Daniel Joseph Mulligan, Esq. JENKINS MULLIGAN & GABRIEL LLP 10085 Carroll Canyon Rd., Suite 210 San Diego, CA 92131 Telephone: (415) 982-8500 Facsimile: (415) 391-7568 E-mail: dan@jmglawoffices.com Defendant-Appellee COSTCO WHOLESALE CORPORATION, a Washington Corporation, is represented by: Robert A. Mittelstaedt, Esq. Caroline Nason Mitchell, Esq. Craig Stewart, Esq. David Louis Wallach, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 875-5748 Telephone: (415) 875-5745 E-mail: ramittelstaedt@jonesday.com cnmitchell@jonesday.com cestewart@jonesday.com dwallach@jonesday.com COUNTY OF NASSAU: New York Court Narrows Claims in "Perros" ----------------------------------------------------------- Judge Leonard D. Wexler of the U.S. District Court for the Eastern District of New York, granted in part and denied in part defendants' motion to dismiss, in the case ALEXANDER PERROS, THOMAS DELLE, NICHOLAS LENOCI, VICTOR PATALANO, RONALD LANIER and IBRAHIM ZAHRAN LONG ISLAND OFFICE Collectively on Behalf of All Persons Similarly Situated and/or Sheriff's Department Former Personnel Unfairly Denied Proper "Recommendation for Consideration of Application for Pistol License for Retiring Peace [Police] Officer" Forms and/or "Good Guy Letters" Following Retirement, Due to Injury and/or Disability, Plaintiffs, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY SHERIFF'S DEPARTMENT, and MICHAEL SPOSATO, in his Individual and Official Capacities, Defendants, No. CV 15-5598 (E.D.N.Y.) Plaintiffs, Alexander Perros, Thomas Delle, Nicholas Lenoci, Victor Patalano, Ronald Lanier and Ibrahim Zahran are all former Corrections Officers or Deputy Sheriffs who were employed by the Nassau County Sheriffs Department for a number of years before retiring on disability due to injuries suffered in the course of their duties as Sheriffs Department employees. Following their retirement, plaintiffs each applied to the Sheriffs Department for a good guy letter, to which Sheriff Michael Sposato denied on the grounds that plaintiffs were injured and/or disabled for medical reasons at the time of their retirement. Plaintiffs commenced a putative class action on September 28, 2015, and amended their complaint, as of right, on November 9, 2015. The first amended complaint alleges that defendants violated plaintiffs' 2nd Amendment, due process and equal protection rights under 42 U.S.C. Section 1983. Plaintiffs further allege that defendants discriminated against them on the basis of disability in violation of the Americans with Disabilities Act, 42 U.S.C. Section 12132, and the Rehabilitation Act, 29 U.S.C. Section 794. Finally, plaintiffs assert a claim for municipal liability, as well as state law claims for gross negligence and tortious interference with prospective contractual advantage. Defendants move to dismiss plaintiffs' first amended complaint in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Wexler granted in part and denied in part defendants' motion to dismiss. Specifically, the motion is granted with respect to plaintiffs' due process, Second Amendment, ADA and Rehabilitation Act claims, and those claims are dismissed. In addition, defendants' motion is also granted with respect to plaintiffs' state law claims for tortious interference with prospective contractual advantage and gross negligence and those claims are also dismissed. Finally, because the Nassau County Police Department and the Nassau County Sheriffs Department are not suable entities, all claims against them are dismissed in their entirety. In all other respects, defendants' motion to dismiss is denied and the action shall continue solely with respect to plaintiffs' equal protection and municipal liability claims. A copy of Judge Wexler's memorandum opinion dated February 24, 2017, is available at https://goo.gl/V6kgim from Leagle.com. Plaintiffs, represented by: Frederick K. Brewington, Esq. Law Offices of Frederick K. Brewington 556 Peninsula Blvd. Hempstead, NY 11550 Tel: 516-489-6959 Fax: 516-489-6958 Defendants, represented by Ralph J. Reissman, Nassau County Attorney's Office CRAFT BREW: Faces Class Action Over Kona Beer Deceptive Labeling ---------------------------------------------------------------- The Associated Press reports that a class-action lawsuit says Kona Brewing Company leads customers to believe they are buying made- in-Hawaii beer. The lawsuit filed in California is against Craft Brew Alliance, which advertises, markets, distributes and sells the Kona brand. Craft Brew Alliance spokeswoman Jenny McLean won't comment on pending litigation. She explains that all packaged Kona Brewing beer is produced in Oregon, Washington state, New Hampshire and Tennessee. A Kailua-Kona, Hawaii brewery produces draft beer that's sold in Kona Brewing pubs and elsewhere in the islands. The lawsuit says consumers purchased Kona Brewing beer because they believed it came from Hawaii. The lawsuit says Craft Brew's advertising and labeling is deceptive. According to its website, Kona Brewing ensures freshness and minimizes its carbon footprint by brewing beer close to distribution markets. CUMMINGS OIL: Pawnee Nation Files Suit Over September Earthquake ---------------------------------------------------------------- Sean Murphy, writing for The Associated Press, reports that an Oklahoma-based Native American tribe filed a lawsuit in its own tribal court system on March 3 accusing several oil companies of triggering the state's largest earthquake that caused extensive damage to some near-century-old tribal buildings. The Pawnee Nation alleges in the suit that wastewater injected into wells operated by the defendants caused the 5.8-magnitude quake in September and is seeking physical damages to real and personal property, market value losses, as well as punitive damages. The case will be heard in the tribe's district court with a jury composed of Pawnee Nation members. "We are a sovereign nation and we have the rule of law here," said Andrew Knife Chief, the Pawnee Nation's executive director. "We're using our tribal laws, our tribal processes to hold these guys accountable." Attorneys representing the 3,200-member tribe in north-central Oklahoma say the lawsuit is the first earthquake-related litigation filed in a tribal court. If an appeal were filed in a jury decision, it could be heard by a five-member tribal Supreme Court, and that decision would be final. "Usually tribes have their own appellate process, and then, and this surprises a lot of people, there is no appeal from a tribal supreme court," said Lindsay Robertson, a University of Oklahoma law professor who specializes in Federal Indian Law. Once a tribal court judgment is finalized, it can be taken to a state district court for enforcement just like any other judgment, Robertson said, but that enforcement action would not subject the judgment to any appeals in state court. Curt Marshall, one of the attorneys representing the Pawnee Nation, said the lawsuit was filed in tribal court primarily so that the Pawnee Nation could assert its sovereignty. "The tribe has jurisdiction over civil matters to enforce judgments within its jurisdiction, including judgments over non- Indians," Mr. Marshall said. While experts say major civil judgments against non-Indians in tribal courts are rare, the U.S. Supreme Court last year left in place the authority of Native American courts to judge complaints against people who are not tribal members. In that case, Dollar General Corp. was sued in tribal court for $2.5 million over allegations that the manager of a store on tribal land made sexual advances toward a 13-year-old boy placed in the store by a tribal youth employment program. The case was returned to tribal court for a ruling on the merits. Scientists have linked the dramatic spike in earthquakes in Oklahoma to the underground disposal of wastewater that is a byproduct of oil and gas drilling. Oklahoma Corporation Commission regulators have directed oil and gas producers to either close injection wells or reduce the volume of fluids they inject. The quake, located about 9 miles from the center Pawnee, damaged buildings across the north-central community of about 2,200 residents. The sandstone facade of some buildings fell, several others were cracked and one man suffered a minor head injury when part of a fireplace fell on him. Oklahoma's governor declared a state of emergency for the entire county. An attorney for Oklahoma City-based Cummings Oil Company, one of the companies named in the suit, declined to comment until they receive and review the filing. Telephone messages left with an attorney for a second defendant, Tulsa-based Eagle Road Oil, were not immediately returned. Chad Warmington, the president of the Oklahoma Oil and Gas Association, said that while the tribal jurisdiction is unique, the lawsuit itself is not a surprise. "The oil and gas industry has been the target of significant litigation over the years, so I wouldn't think it comes as a surprise that there could be potential new litigation," he said. Among the tribal structures damaged in the September earthquake is the former Pawnee Nation Indian School, a sandstone building on the National Register of Historic Places that now houses the tribe's administrative offices. "We have extensive cracks throughout all the walls on every single one of these historic buildings, and the cracks run through the entire width of the walls," Knife Chief said. "We had mortar pop. We had roofs sag. We have ceilings that are bowing." According to the lawsuit, both companies were operating wastewater injection wells on lands within the Pawnee Nation less than 10 miles from the epicenter of the Sept. 3 quake. From 1980 to 2000, Oklahoma averaged only two earthquakes a year of magnitude 2.7 or higher. That number jumped to about 2,500 in 2014 then to 4,000 in 2015 a mid a boom in fracking -- the process of injecting a high-pressure mix of water, sand or gravel and chemicals into rock to extract oil and gas. It dropped to 2,500 last year, after Oklahoma restricted volume of wastewater injections, according to a study released by the U.S. Geological Survey. The agency reported on March 3 in its annual national earthquake outlook that a large portion of Oklahoma and parts of central California are at the highest risk for a damaging quake this year. At least four separate class-action lawsuits have been filed by the same group of attorneys against various oil companies in Oklahoma connected to large earthquakes dating back to 2011. Another lawsuit has been filed on behalf of a Prague woman injured when a November 2011 quake toppled a stone chimney in her home. "We understand the industry is very important to the economy of Oklahoma, and the last thing we want to do is come in and shut the operations down," said Marshall, the tribe's attorney. "But we do want the oil and gas industry to act responsibly environmentally, and we want them to be held accountable for the damage they've created." D&J CLEANING: "Cano" Suit Seeks Unpaid Minimum, Overtime Wages -------------------------------------------------------------- Erendida Cano, individually and all others similarly situated, Plaintiff, v. D&J Cleaning Services NY, Inc., Myriam Ramos, individually and Daniel Ramos, individually, Defendants, Case No. 1:17-cv-00997, (S.D. N.Y., February 10, 2017), seeks to recover minimum wages, overtime compensation, spread of hours pay, misappropriated tips, unlawful deductions, and other damages pursuant to the Fair Labor Standards Act and New York Labor Laws. D&J Cleaning Services NY, Inc., Myriam Ramos and Daniel Ramos owns and operates D&J Cleaning, a commercial and residential cleaning company that services Brooklyn, Queens and Manhattan. Cano did not receive any wage statements and notices, thus leaving her in the dark regarding her actual hours rendered. The Plaintiff is represented by: Arsenio D. Rodriguez, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300-0375 DELL TECHNOLOGIES: Laptop User Can't Bring Class Action ------------------------------------------------------- Joel Stashenko, writing for New York Law Journal, reports that a consumer's grievance that his laptop lacked battery life must be settled in arbitration, and not through a proposed class-action suit, because he clicked the "accept" button on the terms and conditions page generated by his new Dell computer, a federal judge has ruled. Western District Judge Charles Siragusa determined that Dell computer purchaser Charles Andersen was forewarned by the packaging in which his Dell 15-5000 came that there were legal ramifications to his starting the computer. Among other things, Judge Siragusa wrote in Andersen v. Wal-Mart, 15-cv-6488, consumers were warned -- in capital letters -- that terms of sale included the "use of arbitration to resolve disputes on an individual basis . . . instead of jury trials or class actions." The packaging also clearly warned that "if you do not agree with these terms, do not use your product and return it to Dell in accordance with Dell's return policy." Among the potential advantages to Mr. Andersen and other potential plaintiffs to having the case heard as a class action, rather than in arbitration, is that both Wal-Mart and Dell would be subject to treble damages if found guilty of violations of New York General Business Law Sec. 349 or Sec. 350. Arbitration (NYLJ, Jan. 25, 2017) is often a favored method of settling disputes for corporations, who see it as less time- consuming, less costly, more predictable and less subject to public scrutiny than litigation; while consumer advocates have argued that arbitration can deprive consumers and employees of their rights. Last May, the federal Consumer Financial Protection Board proposed a rule that would prohibit companies from putting mandatory arbitration clauses pre-empting class-action lawsuits in new contracts, but its future is in doubt under the new Trump administration. Judge Siragusa ruled that by clicking "accept" and booting up the computer, Mr. Andersen cannot now bring a proposed class-action suit under New York State General Business Law against Dell Technologies and Wal-Mart Stores Inc. for falsely representing that the laptop had up to 7.58 hours of usable battery life. Andersen contends that the computer, which he bought for about $500 at an upstate Wal-Mart, actually has two to three hours of usable battery life. Judge Siragusa rejected the claims by Mr. Andersen, who is a solo practitioner in Elmira, that the arbitration agreement was unenforceable because it was not presented to him until after he had purchased the computer. Mr. Andersen had argued that terms must be presented at the point of sale to be valid. Judge Siragusa, however, cited rulings by Appellate Division panels in Brower v. Gateway 2000 , 246 AD2d 246 (1998), and Moore v. Microsoft , 293 AD2nd 587 (2002), which held that clicking on "agree" icons indicates acceptance of sellers' terms by consumers in circumstances like Mr. Andersen's. "While plaintiff argues that the only agreement he had with Dell and/or Wal-Mart was created when he paid for the computer at the store, the law of New York state indicates otherwise," Judge Siragusa wrote from Rochester in his ruling on Feb. 17. "Rather, the agreement was created when plaintiff kept and used the computer and/or clicked on the icon indicating that he accepted Dell's terms." Neither Dell nor Wal-Mart immediately returned calls for comment on Feb. 21. Kimball Anderson, a partner at Winston & Strawn in Chicago, and Brian Crosby -- bcrosby@gmclaw.com -- a partner at Gibson, McAskill & Crosby in Buffalo, represented Dell. N. Ari Weisbrot -- aweisbrot@foxrothschild.com -- partner at Fox Rothschild in Roseland, New Jersey, represented Wal-Mart. Mr. Andersen said in an interview on Feb. 21 that he thought Siragusa should have remanded the case back to state court, where he proposed pursuing the suit as a class action. "The Federal Arbitration Act is not what we were looking to get into when we filed this case," he said. "We wanted a New York state case under New York state law." Mr. Anderson initially brought his action in state Supreme Court in Chemung County, but it was transferred to federal court on the motion of Wal-Mart and Dell, who argued that the federal Class Action Fairness Act gives federal courts jurisdiction. Judge Siragusa also rejected Anderson's argument that New York state's General Business Law Sec. 399-c, which prohibits arbitration clauses involving the sale of consumer goods, is not pre-empted by the Federal Arbitration Act whenever matters of interstate commerce are involved. DOLLAR TREE: Court Certifies Wage Statement Class in Patton Suit ---------------------------------------------------------------- The Honorable Michael W. Fitzgerald granted in part and denied in part the Plaintiffs' motion for class certification submitted in the lawsuit captioned Curtis Patton, et al. v. Dollar Tree Stores, Inc., et al., Case No. 2:15-cv-03813-MWF-PJW (C.D. Cal.). According to the Civil Minutes, the Plaintiffs have sufficiently supported the Motion as to their claim under Section 226 of the California Labor Code, which is amenable to resolution on a classwide basis. The Plaintiffs have failed to show that, as to their misclassification claims, individual differences will not overwhelm common questions of fact and law, Judge Fitzgerald opines. Hence, the Court certifies a class of all persons employed in one or more of Dollar Tree's retail stores in California at any time on or after April 2, 2014, who received their wages via direct deposit or Pay Card and have not entered into an arbitration agreement with Dollar Tree -- the Wage Statement Class. The Motion is denied as to the Store Manager Subclass, which is defined as: All persons employed as Store Manager in one or more of Defendant's retail stores in California at any time on or after April 2, 2011, who have not entered into an arbitration agreement with Defendant. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZSksPprM EARTHLINK HOLDINGS: Says Suit Over Windstream Merger Lack Merit --------------------------------------------------------------- EarthLink Holdings Corp. submitted supplemental disclosures relating to the Windstream mergers, according to the Company's February 14, 2017, Form 8-K filing with the U.S. Securities and Exchange Commission. On November 7, 2016, EarthLink Holdings Corp., a Delaware corporation ("EarthLink"), announced that it had entered into an Agreement and Plan of Merger (the "Merger Agreement") with Windstream Holdings, Inc., a Delaware corporation ("Windstream"), Europa Merger Sub, Inc., a Delaware corporation and an indirect, wholly-owned subsidiary of Windstream ("Merger Sub 1") and Europa Merger Sub, LLC, a Delaware limited liability company and in indirect, wholly-owned subsidiary of Windstream ("Merger Sub 2"). Subject to the terms and conditions of the Merger Agreement, Merger Sub 1 will merge with and into EarthLink with EarthLink surviving as an indirect, wholly-owned subsidiary of Windstream (the "Initial Merger") and, immediately following the effective time of the Initial Merger, EarthLink will merge with and into Merger Sub 2, with Merger Sub 2 surviving as an indirect, wholly- owned subsidiary of Windstream (the "Subsequent Merger" and, together with the Initial Merger, the "Mergers"). On February 3, 2017, a putative class action lawsuit captioned Carter v. EarthLink Holdings Corp. et al., Case No. 1:17-CV-00433- LMM (the "Proxy Litigation") was filed in the United States District Court for the Northern District of Georgia against EarthLink and the members of the EarthLink Board of Directors (the "EarthLink Board") pursuant to Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). The Proxy Litigation relates to the definitive proxy statement filed with the United States Securities and Exchange Commission (the "SEC") on January 23, 2017 (the "Proxy Statement") in connection with the Mergers. The complaint in the Proxy Litigation generally alleges that the Proxy Statement omitted certain material information regarding the background to the transactions contemplated by the Merger Agreement, financial information about EarthLink, Windstream and the pro forma combined company, and the financial analyses conducted by EarthLink's financial advisors prior to the EarthLink Board's approval of the Merger Agreement. The Proxy Litigation seeks, among other remedies, to enjoin the stockholder vote on the Merger Agreement until supplemental disclosures are made or, in if an injunction is not awarded, unspecified money damages, costs and attorney's fees. The Company says: "EarthLink believes that the claims asserted in the Proxy Litigation are without merit. However, in order to alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to its stockholders, EarthLink has determined to voluntarily supplement the Proxy Statement as described in this Current Report on Form 8-K. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, EarthLink specifically denies all allegations in the Proxy Litigation that any additional disclosure was or is required." Among other things, the Supplemental Disclosures provide that during the period from 2014 and continuing through the announcement of the merger agreement with Windstream in November 2016, the EarthLink Board regularly reviewed and evaluated its strategic plans and objectives as a regular topic of discussion at its meetings, which discussions included multiple specific potential strategic alternatives. As part of this process, in the summer of 2014 EarthLink engaged Foros Securities LLC as its independent financial advisor to assist the EarthLink Board and management in their review of these strategic alternatives. By September 2014, 18 strategic and financial parties (including Windstream) were contacted regarding a possible sale transaction, three of which (which did not include Windstream) also held management meetings with representatives of EarthLink. However all parties ultimately declined to proceed with further discussions regarding a potential transaction at that time. ENERGY TRANSFER: Tribe Officials Want Pipeline Documents Released ----------------------------------------------------------------- Blake Nicholson, writing for The Associated Press, reports that U.S. and tribal officials are opposing an effort by the developer of the $3.8 billion Dakota Access oil pipeline to keep some information shielded from the public amid a court battle over the project. Texas-based Energy Transfer Partners last month asked a federal judge to shield details such as spill response plans and pipeline features that could be targeted by anti-pipeline activists. "The documents contain information that could be used by terrorists or others intending to cause harm," company attorney William Scherman said in court documents. The pipeline to move North Dakota oil to a shipping point in Illinois has been the subject of months of protests in North Dakota, with about 750 arrests since August. There also has been vandalism to company equipment in Iowa and North Dakota. ETP is a defendant along with the Army Corps of Engineers in a lawsuit filed by the Standing Rock and Cheyenne River Sioux, who believe the pipeline threatens water, sacred sites and their right to practice their religion. The company disputes that and says the pipeline is safe. Tribal attorneys in court documents call the company's reasoning for wanting the documents kept secret "a ruse." The actual reason, they maintain, is that "the documents are embarrassingly inadequate and undermine (the company's) primary narrative in this case -- that oil spill risk can be dismissed without further analysis or independent expert review." Corps attorneys say only a limited amount of the information warrants protection, based on analyses by the Transportation Security Administration and the Pipeline and Hazardous Materials Safety Administration. EXPERIAN INFORMATION: Judge Grants Bid to Arbitrate "Devries" ------------------------------------------------------------- Judge William H. Orrick of the U.S. District Court for the Northern District of California granted defendant's motion to compel arbitration and stay the case styled SEAN GILBERT DEVRIES, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant, Case No. 16-cv-02953-WHO (N.D. Cal.). On or around September 3, 2014, Sean Gilbert DeVries attempted to obtain a free credit report from www.annualcreditreport.com, which is operated jointly by Equifax, Inc., TransUnion LLC, and Experian Information Solutions, Inc. (EIS). DeVries was required to put up some information, but EIS rejected his request for a free credit report. . EIS requested additional identifying documents, including driver's license, state ID card, utility bill, and bank or insurance statement, but DeVries was still unable to obtain a free credit report. DeVries then visited EIS's website, www.experian.com and purchased an Experian credit report for $10. Upon his purchase of the Experian credit report, DeVries was required to accept the terms and conditions, in which an arbitration clause was provided. The arbitration clause provided that the customer agrees to arbitrate all disputes and claims, except any disputes or claims which under governing law are not subject to arbitration. It also contains a delegation clause and the terms and conditions also provided that the terms may be updated from time to time. DeVries accessed www.experian.com and its accompanying subpages on approximately May 18, 2016, and September 16, 2016. The 2016 terms of use agreement still contains an arbitration provision, but a carve out was made to that effect that any dispute the customer may have with, arising out of the Fair Credit Reporting Act relating to the information contained in the consumer disclosure or report, including but not limited to claims for alleged inaccuracies, shall not be governed by the agreement. On June 2, 2016, DeVries filed a class action suit asserting five causes of action under) the Fair Credit Reporting Act, 15 U.S.C. Section 1681g(a), the FCRA, 15 U.S.C. Section 1681j, the California Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq., the California Consumer Legal Remedies Act, Cal. Civ. Code Section 1750 et seq., and the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code Section 1785.1 et seq. EIS moves to compel arbitration and stay the action. Judge Orrick granted defendant's motion finding that DeVries agreed to the 2014 terms and conditions, which were later superseded by the 2016 terms of use. Although that latter agreement carves out certain claims arising out of the FCRA, the scope and enforceability of the arbitration provision is delegated to the arbitrator. EIS did not waive its right to arbitrate as a result of its litigation activity. The action will be stayed pending completion of the arbitration. Should the arbitrator determine that some or all of DeVries's claims fall within the carve-out provision, the parties shall notify the court within seven days. Otherwise, the parties shall file a Status Report six months from the date of the order, and every six months thereafter, briefly indicating the progress of the arbitration. A copy of Judge Orrick's order dated February 24, 2017, is available at https://goo.gl/qOGc1C from Leagle.com. Sean Gilbert DeVries, Plaintiff, represented by Michael Robert Reese -- michael@reesellp.com -- Reese LLP; James A. Francis -- jfrancis@consumerlawfirm.com -- John Soumilas -- jsoumilas@consumerlawfirm.com -- at Francis and Mailman, P.C.; Melissa Weiner Wolchansky -- wolchansky@halunenlaw.com -- at Halunen And Associates Experian Information Solutions, Inc., Defendant, represented by John Alexander Vogt -- javogt@jonesday.com -- Kerry Cordill Fowler -- kcfowler@jonesday.com -- Alexandra Alford McDonald -- amcdonald@jonesday.com -- Daniel John McLoon -- djmcloon@jonesday.com -- at Jones Day FIDELITY AND DEPOSIT: Tennessee Seeks to Certify Forfeiture Class ----------------------------------------------------------------- In the lawsuit entitled STATE OF TENNESSEE, on relationship of David Shell; DAVID SHELL, individually; and DAVID SHELL, as Representative for Class Members, the Plaintiffs, v. DAVID L. PURKEY; JOE R. BARTLETT; FIDELITY AND DEPOSIT COMPANY OF MARYLAND, on its blanket surety for State of Tennessee Defendants Purkey; Bartlett ; and John and Jane Doe state employees; RONNIE BURNETT; CHAD JOHNSON; MARION COUNTY, TENNESSEE; and AUTHUR J. GALLAGHER CO. as surety and/or agent for surety for Defendants Burnett, Johnson and John and Jane Doe deputy sheriffs for Marion County Tennessee, the Defendants, Case No. 3:17-cv-00059 (E.D. Tenn.), the Plaintiffs move the Court to maintain these Classes: Class A: "Class Members whose financial records, accounts, and deposits were seized and taken for administrative forfeiture by a policy, custom, practice, and/or procedure of use of bogus court subpoenas"; Class B: "Class Members who had their property seized and forfeited without a warrant or Sec. 53-11-451(b) circuit or chancery court process"; and Class C: "Class Members who had their property forfeited where TDOSHS did not strictly comply with the black letter of the time requirements in Tenn.". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=YA1YmnGA The Plaintiffs are represented by: Houston S. Havasy, Esq. Law Offices of Herbert S. Moncier 550 W. Main Street, Suite 775 Knoxville, TN 37902 Telephone: (865) 546 7746 Facsimile: (865) 546 7765 E-mail: hhavasy@gmail.com GAP INC: California Court Trims Claims in "Munning" --------------------------------------------------- Judge Thelton E. Henderson of the U.S. District Court for the Northern District of California granted in part and denied in part defendants' motion to dismiss the case captioned LAURIE MUNNING, Plaintiff, v. THE GAP, INC., et al., Defendants, Case No. 16-cv- 03804-THE (N.D. Cal.). Defendants are for-profit entities that sell apparel and other personal items in retail stores and online. Laurie Munning purchased the clothing items from the defendants' websites. Munning alleges that the prices she paid for the products remained unchanged for the entire week following her purchase. Munning brought a putative class action against defendants challenging the defendants' advertising, marketing, and sales practices on the online Gap Factory and Banana Republic Factory store websites. Munning initially brought 11 claims for relief against the defendants: (1) Violations of State Consumer Protection Statutes; (2) Violation of the California Legal Remedies Act (CLRA); (3) Violation of the California Unfair Competition Law (UCL); (4) Violation of California's False Advertising Law (FAL); (5) Violation of the New Jersey Consumer Fraud Act (NJCFA); (6) Violation of the New Jersey Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA); (7) Breach of Contract; (8) Breach of Contract under Implied Covenant of Good Faith and Fair Dealing; (9) Breach of Express Warranty; (10) Unjust Enrichment; and (11) Negligent Misrepresentation. Defendants filed a motion to dismiss, to which the court dismissed claims on claims 1, 8, 10, and 11, with prejudice. In the same order, the court also dismissed the claims 2, 5, 6 without prejudice. Plaintiff amended her complaint, and defendants filed a second motion to dismiss. Judge Henderson granted defendants' motion to dismiss plaintiff's claims for equitable relief, including plaintiff's UCL and FAL claims. Because no amendment can cure the deficiency, the claims are dismissed with prejudice. In the CLRA claim, defendants agreed, during oral arguments that they were no longer contesting the claim. Also, plaintiff satisfies the elements of an NJCFA claim and had sufficiently alleged a TCCWNA claim. Judge Henderson denied defendants' motion to dismiss plaintiff's CLRA, NJCFA and TCCWNA claims. A copy of Judge Henderson's order dated February 24, 2017, is available at https://goo.gl/CMwsq3 from Leagle.com. Laurie Munning, Plaintiff, represented by Stephen P. Denittis -- at Shabel & Denittis, P.C.; Todd Michael Friedman -- tfriedman@toddflaw.com -- at Law Offices of Todd M. Friedman; P.C.; Ross H. Schmierer -- Ross@paslawfirm.com -- at Paris Ackerman Schmierer LLP Defendants, represented by Joseph Duffy -- joseph.duffy@morganlewis.com -- Esther Kyungmin Ro -- esther.ro@morganlewis.com -- at Morgan, Lewis & Bockius LLP HARRY AND DAVID: "Brown" Sues Over Under-filled Snack Foods ----------------------------------------------------------- Bria Brown, on behalf of herself and all others similarly situated, Plaintiff, v. Harry and David, LLC, Defendant, Case No. 1:17-cv-00999, (S.D. N.Y., February 10, 2017) seeks monetary damages (including actual, minimum, punitive, treble, and/or statutory damages), injunctive relief, restitution and disgorgement of all monies obtained by means of unlawful conduct, interest and attorneys' fees and costs resulting from fraud, false advertising and violation of New York General Business Law (Deceptive and Unfair Trade Practices Act). Harry and David, LLC is a corporation organized under the laws of Oregon with its headquarters at 2500 S Pacific Highway, Medford, OR 97501. It manufactured, packaged, distributed, advertised, marketed and sold Moose Munch Gourmet Popcorn products to millions of customers nationwide. Plaintiff allege that the Defendants under-fill their packs. Defendant is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1180 Fax: (212) 465-1181 HEWLETT PACKARD: Discount Drugs Seeks Certification of Class ------------------------------------------------------------ In the lawsuit styled DISCOUNT DRUGS OF ILLINOIS INC., an Illinois Corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. HEWLETT PACKARD ENTERPRISE COMPANY, and JOHN DOES 1-12, the Defendants, Case No. 1:17-cv-01298 (N.D. Ill.), the Plaintiff moves the Court for entry of an order certifying a class of: "Each person that was sent one or more facsimiles on or after February 20, 2013, promoting HP Web Services or the HP ePrint Service that did not state on its first page that the fax recipient may request that the sender not send any future fax and that the failure to comply with such a request within 30 days would be unlawful". The Plaintiff files the motion soon after the filing of its Class Action Complaint in order to avoid an attempt by Defendant(s) to moot Plaintiff's individual claims in this class action. However, in the case, additional discovery is necessary for the court to determine whether to certify the class Plaintiff seeks to represent. As a result, Plaintiff will seek leave to pursue class discovery as soon as practicable. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ySndS84j The Plaintiff is represented by: Phillip A. Bock, Esq. Tod A. Lewis, Esq. David. M. Oppenheim, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Telephone: 312 658 5500 Facsimile: 312 658 5555 HUNTER INDUSTRIES: Class of Laborers Certified in "King" Suit ------------------------------------------------------------- The Hon. George C. Hanks, Jr., grants the Plaintiffs' unopposed motion for conditional certification of representative class and approval of notice in the lawsuit styled ANTHONY KING, et al. v. HUNTER INDUSTRIES, LTD., et al., Case No. 6:16-cv-00038 (S.D. Tex.). The Court certifies this as a conditional class: All current and former earthworks laborers and equipment operators employed by Defendant Hunter Industries, Ltd. (the "Company") to 1vork on projects identified by the Texas Department of Transportation as being principally located in Bexar County, Texas, and/or Victoria County, Texas, during the period from June 24, 2013, to the present. Judge Hanks also approves the Plaintiffs' Notice Letter and notice procedure. The Defendant is directed to produce the contact information of all putative class members to the Plaintiffs within 45 days of the date of the Order. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=eGjyMCMe INTREXON CORPORATION: Bid to Dismiss Securities Suit Granted ------------------------------------------------------------ Judge Richard Seeborg of the U.S. District Court for the Northern District of California granted defendants' motion to dismiss the case titled IN RE INTREXON CORPORATION SECURITIES LITIGATION, Case No. 16-cv-02398-RS (N.D. Cal.). Intrexon Corporation builds and acquires technologies that design, modify and regulate DNA sequences. Intrexon's technologies include UltraVector, RheoSwitch, AttSite Recombinases, Cell Systems Informatics, Laser-Enabled Analysis and Processing and others. In April 2016, an anonymous short-seller known as Spotlight Research released an eight-part report about Intrexon and concluded that Intrexon's core technology suite consists of an overhyped, undifferentiated collection of commodity and failed products. It said UltraVector is a common DNA synthesizer and that Rheoswitch gained no traction over the years. It also opined that Intrexon's revenues were overstated. It claimed that Intrexon created an intricate web of microcap, zero revenue, free cash flow negative companies that seem to exist solely for the purpose of inflating Intrexon's revenue and profitability. Lead plaintiff Joe Seppen brought a putative class action for securities fraud against Intrexon Corp., Randal J. Kirk, Intrexon's Chief Executive Officer since 2009 and had an investment management firm, Third Security LLC that has been often invested alongside Intrexon and other partners involved in various collaborations, Rick L. Sterling, Intrexon's Chief Financial Officer since 2007 and Krish S. Krishan, Intrexon's Chief Operation Officer from 2011 until his resignation in March 2016. The amended class action complaint primarily recites the findings of the Spotlight report. It also includes brief statements from three confidential witnesses. Seppen claims that defendants violated section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder and asserts a violation of section 20(a) of the Exchange Act. Plaintiff is suing on behalf of all persons who purchased Intrexon securities between May 11, 2015 and April 27, 2016. Defendants move to dismiss the section 10(b) claim for failure to plead the elements of a material misrepresentation or omission, scienter, and loss causation. Judge Seeborg granted defendants' motion to dismiss with leave to amend. Any amended complaint shall be filed within 30 days of the date of the order. Under the PSLRA, plaintiffs must specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, state with particularity all facts on which that belief is formed. Plaintiff alleges three categories of purportedly false statements: (1) statements concerning Intrexon's suite of technologies; (2) statements concerning Intrexon's CAR-T collaborations; and (3) revenue disclosures. Plaintiff has not sufficiently alleged the falsity of the statements in any of the three categories. Judge Seeborg also observed that plaintiff failed to show how the Spotlight report constitutes a corrective disclosure. The mere repackaging of already-public information by an analyst or short- seller is simply insufficient to constitute a corrective disclosure. A copy of Judge Seeborg's order dated February 24, 2017, is available at https://goo.gl/YCpPm6 from Leagle.com. Ryan Hoffman, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- at The Rosen Law Firm, P.A. Joe Seppen, Plaintiff, represented by Joshua L. Crowell -- jcrowell@glancylaw.com -- Leanne Heine Solish -- lheine@glancylaw.com -- Lionel Z. Glancy -- lglancy@glancylaw.com -- Robert Vincent Prongay -- RProngay@glancylaw.com -- at Glancy Prongay & Murray LLP; Adam Marc Apton -- aapton@zlk.com -- at Levi Korsinsky, LLP Patrick M. Gibrall and Deborah P. Gibrall, Plaintiffs, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- J. Alexander Hood, II -- ahood@pomlaw.com -- Jeremy A. Lieberman -- jalieberman@pomlaw.com -- at Pomerantz LLP Defendants, represented by Jerome F. Birn, Jr. -- jbirn@wsgr.com - - Joni L. Ostler -- jostler@wsgr.com --Nicholas R. Miller -- nmiller@wsgr.com -- Nina F. Locker -- nlocker@wsgr.com -- at Wilson Sonsini Goodrich & Rosati Mike Johnson and James Basile, Movants, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- at The Rosen Law Firm, P.A. Carey Read, Movant, represented by Adam Christopher McCall -- amccall@zlk.com -- at LEVI & KORSINSKY, LLP JESSE CASARES: Status Hearing in JT's Frames Suit on March 21 ------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on February 7, 2017, in the case styled JT's Frames, Inc. v. Jesse Casares, et al., Case No. 1:16- cv-02504 (N.D. Ill.), relating to a hearing held before the Honorable Robert M. Dow Jr. The minute entry states that in view of the filing of a second amended complaint and a second amended "Damasco" motion for class certification, the prior motions to certify the class are stricken as moot. The second amended "Damasco" motion for class certification is taken under advisement and the case remains set for further status hearing on March 21, 2017, at 9:00 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=ugJVN4sJ JOHNSON & BELL: Data Security Claims Must Be Heard in Arbitration ----------------------------------------------------------------- Roy Strom, writing for The Am Law Daily, reports that in a win for the first law firm to face a class action for lax data security, a Chicago federal judge ruled on Feb. 22 that claims against Chicago-based Johnson & Bell for allegedly failing to protect client information must be heard individually in arbitration, not lumped together as a class. The suit, filed by well-known class-action lawyer Jay Edelson, made headlines when it was unsealed in December and seemed to represent Mr. Edelson making good on an earlier promise to bring a spate of data privacy complaints against law firms. He had said he identified 15 firms with lagging security. So far no other complaints against law firms have become public, and the ruling is a setback for Mr. Edelson, who said he will appeal to the U.S. Court of Appeals for the Seventh Circuit. The lawsuit against Johnson & Bell did not claim any client data was stolen, and Mr. Edelson has said the alleged security holes identified by a former client have since been patched. But the case remains a reputational and financial risk for Johnson & Bell and potentially other firms. Mr. Edelson argues that Johnson & Bell's rates include an expectation that the firm provides industry-standard data security measures. The case, which had already been moved to arbitration before it became public last year, seeks as damages a refund of some portion of the rate clients paid. U.S. District Judge John Darrah of the Northern District of Illinois ruled on Feb. 22 that the court, not an arbitrator, had the power to decide whether the arbitration was eligible for class-action status. He also ruled the firm's engagement letter did not agree to class arbitration. "The court is saying that we have to bring thousands of individual arbitrations against Johnson & Bell," Mr. Edelson said in an interview. "We're obviously appealing that decision. We think the most efficient way to proceed is through one class-action lawsuit, and we feel very good about our chances in the Seventh Circuit." Joseph Marconi, head of the business litigation department at 100- plus lawyer Johnson & Bell, said the firm was pleased with the court's decision and declined to comment further. In an earlier statement, Johnson & Bell president William Johnson promised to fight the case, calling it "specious," and saying the firm may pursue counter-litigation after the suit is resolved. The complaint alleged that Johnson & Bell used a time-entry system that was 10 years old, known to be prone to hacking and had not been updated with security patches. It said the firm's virtual private network, or VPN, was prone to what is known as a "man-in- the-middle attack," which the complaint says is often used by hackers, spy agencies and foreign governments to "eavesdrop on private communications and steal confidential client information." The complaint also said the firm's email system was susceptible to the same type of hack believed to be used against Panama's Mossack Fonseca, known as a "DROWN" attack. The arbitration proceeding will face the question of how to calculate damages in a case where no data breach occurred. Mr. Edelson argues that clients, in effect, didn't get the data security they implicitly paid for. Clients "have suffered a diminished value of the services they received from Johnson & Bell; and they are threatened with irreparable loss of the integrity of their confidential client information and further injury and damages from the theft of that information," the suit alleged. Johnson & Bell, in an earlier court filing, argued that no "concrete" injury exists in the case. "There is no allegation of breach or that client confidences were ever disclosed and any claimed deficiencies no longer exist," Johnson & Bell's filing said. JOHNSON & JOHNSON: Wins Talcum Powder Case in St. Louis ------------------------------------------------------- The Associated Press reports that a St. Louis jury on March 3 rejected a Tennessee woman's lawsuit that Johnson & Johnson baby powder contributed to her ovarian cancer, a victory for the company after it lost three previous, similar lawsuits in St. Louis. The jury voted 11-1 to deny damages to Nora Daniels, 55, of Columbia, Tennessee, who said she used Johnson & Johnson's talcum powder from 1978 to 2013, when she was diagnosed with ovarian and uterine cancer. She also sued Imerys Talc, a talcum powder supplier, the St. Louis Post-Dispatch reported. The verdict for Johnson & Johnson came after three previous St. Louis juries awarded a total of $197 million to the plaintiffs who made similar claims. About 2,000 state and federal lawsuits are in courts across the country over concerns about health problems caused by prolonged talcum powder use. Ms. Daniels' lawyer, Jim Onder, said he thinks the difference between the March 3 verdict and the three previous St. Louis cases was that this jury didn't think the talcum powder contributed to Ms. Daniels' specific type of cancer. Johnson & Johnson spokeswoman Carol Goodrich said in a statement the company sympathizes with ovarian cancer patients. "The jury's decision is consistent with the science, research, clinical evidence and decades of studies by medical experts around the world that continue to support the safety of cosmetic talc," the statement said, while citing two cases thrown out in New Jersey in September 2016 when a judge found insufficient scientific evidence for the claims against talcum powder. Imerys spokeswoman Gwen Myers said in a statement the jury followed "the science that establishes the safety of talc." "Imerys sympathizes with women suffering from ovarian cancer and hopes that the scientific community's efforts will continue to be directed toward finding the true causes of this terrible disease," the statement said. Juror Luke Wilson, 34, of St. Louis, said the jury did not think evidence linking talcum powder with ovarian cancer was strong enough to require Johnson & Johnson to put warning labels on its products. The only dissenting juror, George Stair, 76, of St. Louis, said he thought there was enough evidence. "I wish we could have sent a message to Johnson & Johnson to put a warning on the product label," he said. JOHNSON CONTROLS: Indiana Residents Want Class Action Remanded -------------------------------------------------------------- Juan Carlos Rodriguez and Michael Phillis, writing for Law360, report that Indiana residents suing Johnson Controls Inc. over alleged groundwater pollution fought back on Feb. 24 against the company's bid to keep the proposed class action in federal court, saying they've got the evidence to prove their case belongs in state court. The homeowner plaintiffs petitioned in July to have the case remanded after Johnson Controls removed the case to federal court, but were denied because they had not yet satisfied their final requirement that two-thirds of the class have citizenship within Indiana. Now, they say the company is improperly fighting to block them from proving the citizenship requirement has been met. The plaintiffs say they hired a statistician who showed the proposed class of more than 772 people met the standard, and they filed a renewed motion to remand. Johnson Controls filed a motion to strike that motion, which the plaintiffs say is not the proper response. "Here, the very same issues that JCI raises in moving to strike -- namely, whether plaintiffs are entitled to renew their motion to remand, whether they have done so in a reasonable time, and whether the plaintiffs have altered their class definition -- have already been addressed in plaintiffs' renewed motion," the plaintiffs said. They said that contrary to JCI's assertions, their renewed motion to remand is not "an untimely motion" to reconsider the court's prior ruling on the local controversy exception. The local controversy exception requires a court to relinquish jurisdiction if a case meets certain requirements showing it is strictly a local matter. According to the plaintiffs, the district court's previous order did not find that fewer than two-thirds of the proposed class resides in Indiana, but rather that the plaintiffs failed to present "statistically reliable methodology" to prove the citizenship of the class. "Plaintiffs' renewed motion to remand represents an exhaustive attempt to provide this court with the exact type of statistically reliable evidence this court said it would need to properly assess the citizenship of the class," the plaintiffs said. They said courts have often been willing to entertain renewed motions to remand asserting that exceptions to the Class Action Fairness Act apply. The homeowners originally sued in Indiana state court over damages they said they suffered from exposure to trichloroethylene, trichloroethane, dichloroethane, vinyl chloride and other hazardous chemicals from a manufacturing facility. Another defendant, Tocon Holdings LLC, had allegedly purchased the plant from Johnson Controls and later demolished it knowing it was contaminated, but did nothing to stop the pollution from flowing onto the homeowners' properties or to warn them of the potential danger, the plaintiffs contend. Johnson Controls, which makes automotive interiors and vehicle batteries, removed the case to federal court, but the plaintiffs have sought to have it remanded. The plaintiffs are represented by Thomas A. Barnard -- tbarnard@taftlaw.com -- Rodney L. Michael Jr. -- rmichael@taftlaw.com -- and Benjamin A. Wolowski -- bwolowski@taftlaw.com -- of Taft Stettinius & Holliser LLP and John D. Ulmer of Yoder Ainlay Ulmer & Buckingham LLP. Johnson Controls is represented by Thomas J. Hall -- thall@chadbourne.com -- Andrew E. Skroback -- askroback@chadbourne.com -- and Lauren T. Lee -- llee@chadbourne.com -- of Chadbourne & Parke LLP and Kelly J. Hartzler of Barnes & Thornburg LLP. The case is Amos and Debbie Hostleter et al. v. Johnson Controls Inc. et al., case number 3:15-cv-00226, in the U.S. District Court for the Northern District of Indiana. KANSAS CITY, KS: Ordered to Pay $10 Million for Trash Rebates ------------------------------------------------------------- Lynn Horsley, writing for The Kansas City Star, reports that in a scathing decision, a Platte County judge ruled on Feb. 28 that Kansas City must pay $10 million in damages for violating a prior court order involving payments for trash services. "The court finds that the city knowingly, intentionally and deliberately chose to not to comply with the modified judgment by eliminating the trash rebate program," Circuit Judge James Van Amburg wrote in his ruling. He found the city will owe members of the class-action lawsuit $10.2 million for actual and special damages, plus attorneys fees. He also said the city must pay $2,846 per day until it complies with its trash collection obligations. The city said it plans to appeal. If it loses on appeal, the trash payments could total millions more. The case stems from a 1976 court order relating to the city's earnings tax. A Platte County judge said at the time that Kansas City had improperly created two classes of earnings-tax-paying residents, because the city provided free trash pickup for single- family residences but not for large apartment buildings. His 1976 order required the city to make payments to multifamily buildings with seven or more units to cover their trash services. The City Council decided in 2010 to halt those payments because of severe budget constraints. That was when Mark Funkhouser was mayor, and none of the existing council members were in office. The payments stopped for most apartment owners, except for the Heartland Apartment Association, a group that reached a separate legal settlement after it threatened to sue. In February 2015, a lawsuit was filed, arguing that other residents besides those in the Heartland Apartment Association deserved the same benefit. The case was certified as a class action, with residents of the Sophian Plaza Association, Townsend Place Condominium Association and several hundred other building owners and managers. Judge Van Amburg conducted a trial in December, and on Feb. 28 he found solidly for the plaintiffs. The ruling cites a deposition from City Manager Troy Schulte, that he had wanted the Law Department to seek court approval to halt the program but that never happened. "The Court finds that the City explicitly considered and discussed the wisdom of seeking judicial relief before taking any action to eliminate trash rebate program benefits to Class members. The court finds that the city did not seek judicial relief before eliminating the trash rebate program in 2010," the ruling said. "City Manager Schulte testified that the city's knowing violation of the mandatory injunction was a calculated risk that the city would be sued." The plaintiffs' attorneys were pleased with the Feb. 28 ruling. "The judgment means that court orders must be followed," said Greg Leyh, who represented the class along with attorney Rick Lombardo. "The City was found in civil contempt because, over the course of several years and many discussions among city council members, staff and city lawyers, the City was knowingly contemptuous of a court order mandating trash services be provided to class members across the city." Dennis Walker, a class representative who with his wife, Rita, owns the Stadium View Apartments near the Truman Sports Complex, said he had had no doubt the plaintiffs would win, given the city's admission that it chose to defy the court order. "It's score one for the little guy," Mr. Walker said on Feb. 28. "It's such a slam dunk." But Chris Hernandez, spokesman for Kansas City municipal government, said the city will appeal. "We knew this would be a difficult case, but on behalf of Kansas City's taxpayers, we intend to take this case to the next level," Hernandez said. ". . . The rebate program is not sustainable from either a budgetary or environmental standpoint, and we will continue fighting for relief on this issue." Mr. Hernandez acknowledged the city provides free trash service to residents because they pay the earnings tax. "However, none of the condos and complex owners who sued the city actually pay the E-tax. They are all exempt," he said. "Also, we limit residents to two bags of trash at the curb for both environment and cost reasons. But no one at apartment complexes makes sure that each household complies with that limit. Since apartment complex owners are not buying into our sustainability and budgetary goals, why should we subsidize them?" KINDRED NURSING: Can't Enforce Arbitration Agreements ----------------------------------------------------- Tony Mauro, writing for Law.com, reports that for a bench that usually protects arbitration agreements from attack, the U.S. Supreme Court on Feb. 22 seemed unusually hostile to such arrangements when they are embedded in nursing home contracts. The court heard arguments in Kindred Nursing Centers v. Clark, in which the Kentucky Supreme Court ruled against enforcing arbitration agreements that were signed on behalf of two nursing home residents by relatives with "power of attorney." The families of the deceased residents sued the nursing home company claiming abuse and neglect. The company invoked the arbitration agreements to keep the cases out of court, but the Kentucky Supreme Court ruled that the power of attorney does not include giving them the authority to take away the "inviolate" right to a jury trial under the state constitution. The Obama administration issued regulations prohibiting nursing homes from requiring patients to sign arbitration agreements in the interest of greater transparency and accountability. But the Trump administration may have a different take on the issue. In recent decisions like DirecTV v. Imburgia and AT&T Mobility v. Concepcion the court has invoked the Federal Arbitration Act to protect arbitration agreements from being singled out for differential and negative treatment under state law. But several justices seemed to be singing a different tune on Feb. 22. "The context here seems different from the arbitration cases that we've had in recent years," Justice Samuel Alito Jr. said at one point. "This doesn't involve an arbitration about the amount that you were charged for your cable bill or for your telephone bill. This involves a situation where an elderly person needs care." The nursing home company's lawyer, Andrew Pincus -- apincus@mayerbrown.com -- of Mayer Brown, who won the 2011 Concepcion case, insisted that "the FAA basically says the state doesn't have the power to treat arbitration agreements specially on the theory that they impose some special burden on the parties to the arbitration agreement." Mr. Pincus sat down after 20 minutes, leaving 10 minutes for rebuttal--usually a sign that things are going well. But during his rebuttal, Mr. Pincus drew sharp questions from Justice Elena Kagan and Chief Justice John Roberts Jr. Defending the authority of the Kentucky Supreme Court, Justice Roberts said that court had not singled out arbitration by name in its decision regarding the power of attorney, and could not be presumed to be hostile to arbitration. He suggested such a ruling was different from a legislative act aimed at weakening arbitration agreements. "You haven't come up with a distinction that persuades me," Justice Roberts said. Justice Kagan said the high court's precedents seek to put arbitration agreements on an equal footing with other contract clauses. But she suggested that Mr. Pincus was treating it as a "preferred right" that is immune from interpretation if a court decision deals with the power of attorney. "Are you saying that a court can never announce a generally applicable rule first in an arbitration case?" Justice Kagan asked. Robert Salyer of Wilkes & McHugh in Kentucky, representing the families of the nursing home residents, also faced tough questioning, but mainly from one justice: Stephen Breyer. Justice Breyer repeatedly asked Mr. Salyer to distinguish between an arbitration agreement that keeps a case out of court -- thereby extinguishing the right to a trial -- and a settlement agreement before trial that does the same thing. Kentucky was punishing the first but allowing the second, Justice Breyer said. Mr. Salyer failed to answer the question to Justice Breyer's satisfaction, leading the justice to say, "In my opinion right now you have discriminated against arbitration" in violation of the federal arbitration law. Justice Breyer added, "I'm highly suspicious, as you can tell from my tone of voice. What I really think has happened is that Kentucky just doesn't like the federal law." KOP KILT: Court to Approve Settlement in "Graudins" --------------------------------------------------- Judge R. Barclay Surrick of the U.S. District Court for the Eastern District of Pennsylvania will grant the plaintiff's motion for final approval of class and collective action settlement in the case styled VICTORIA GRAUDINS, v. KOP KILT, LLC, d/b/a THE TILTED KILT PUB, ET AL, Civil Action No. 14-2589 (E.D. Pa.). Representative plaintiff Victoria Graudins worked as a server at The Tilted Kilt Pub. Plaintiff filed a class/collective action against defendants, alleging various wage and tip related violations of the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq., the Pennsylvania Minimum Wage Act, 43 Pa. Cons. Stat. Section 333.101 et seq., the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Section 260.1 et seq., and common law. On February 12, 2016, Graudins notified the court that a settlement agreement had been reached, and filed an unopposed motion for preliminary approval of class and collective action settlement, certification of settlement class, appointment of class counsel, approval of proposed class notice, dismissal of additional defendants, and scheduling of a final approval hearing. On April 6, 2016, the court granted the motion. The settlement provides for a maximum gross settlement amount of $300,000 inclusive of class counsels' fees and costs, and claims administration fees and the service payment. On June 21, 2016, Graudins filed a motion for final approval of class and collective action settlement, certification of settlement class, award of attorneys' fees and reimbursement of expenses and service payment to plaintiff, which is unopposed. The settlement class is defined as "Plaintiff and any Class Member who does not opt-out within the specified period in accordance with the requirements of the Settlement Agreement. Defendant represents and warrants that all members of the Settlement Class are Tipped Employees." Participating Settlement Class Members is defined as: Every Member of the Settlement Class who submits a valid and timely Claim Form in accordance with the terms of the Settlement Agreement. In accordance with the terms of the Settlement Agreement, only Participating Settlement Class Members will release their FLSA claims and only Participating Settlement Class Members will receive any money in connection with the Settlement. A $7,500 Service Payment Award for Representative Plaintiff is requested. Class counsel seeks attorneys' fees in the amount of $100,000 and costs in the amount of $6.865.70. Judge Surrick held that the class meets all of the requirements of Rules 23(a) and 23(b)(3), and the certified the proposed class for the purposes of settlement approval. Judge Surrick also observed that although $7,500 is on the higher end of awards to representative plaintiffs in cases with similar issues and similar amounts at stake, it is not unreasonable. A $7,500 Service Payment Award for Representative Plaintiff is requested. Although $7,500 is on the higher end of awards to representative plaintiffs in cases with similar issues and similar amounts at stake, it is not unreasonable and he is satisfied with the reasonableness of the requested fee and will approve class counsels' request for $100,000 in attorneys' fees. In addition, class counsel is entitled to be reimbursed for their litigation related expenses in the amount of $6,865.70, the bulk of which is associated with mediation and deposition related fees. A copy of Judge Surrick's memorandum dated February 24, 2017, is available at https://goo.gl/9KTMqp from Leagle.com. Plaintiff, represented by ARKADY ERIC RAYZ -- ERayz@kalraylaw.com -- at KALIKHMAN & RAYZ LLC; GERALD D. WELLS, III -- at CONNOLLY WELLS & GRAY, LLP Defendants, represented by MATTHEW J. HANK -- mhank@littler.com -- ALEXA JOY LABORDA NELSON -- alaborda-nelson@littler.com -- HOLLY RICH -- hrich@littler.com -- SARAH BRYAN FASK -- sfask@littler.com -- at LITTLER MENDELSON, P.C. LANE LABS-USA: Bobo's Drugs Moves to Certify Class Under TCPA ------------------------------------------------------------- The Plaintiff in the lawsuit captioned BOBO'S DRUGS, INC. d/b/a DAVIS ISLANDS PHARMACY, a Florida corporation, individually and as the representative of a class of similarly-situated persons v. LANE LABS-USA, INC., Case No. 2:17-cv-14046-JEM (S.D. Fla.), pursuant to the Telephone Consumer Protection Act, moves for entry of an order certifying this class: Each person sent one or more telephone facsimile messages from "Lane Labs." On or after February 6, 2013 promoting its supplement products but did not state on its first page that the fax recipient may request that the send not send any future fax and that its failure to comply with such a request within 30 days is unlawful. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fj97vC6x The Plaintiff is represented by: Phillip A. Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle St., Suite 1000 Chicago, IL 60602 P.O. Box 416474 Miami Beach, FL 33141 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@classlawyers.com LEAPFROG ENTERPRISE: Court Trims Claims in Securities Class Suit ---------------------------------------------------------------- Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted in part and denied in part defendants' motion to dismiss the case titled IN RE LEAPFROG ENTERPRISE, INC. SECURITIES LITIGATION, Case No. 15-cv-00347-EMC (N.D. Cal.). Leapfrog Enterprises, Inc. is a developer of educational entertainment for children. It has developed a number of learning platforms, including the LeapPad learning tablets. john Barbour was, during the relevant period, LF's CEO, and Raymond L.. Arthur was LF's CFO. Plaintiffs filed a securities class action against Leapfrog, Barbour and Arthur and alleged that defendants made false statements about LF's F2Q15 financial results and its F3Q15 financial results. More specifically, those results were based on accounting that violated generally accepted accounting principles provisions relating to goodwill and long-lived assets. Defendants have repeatedly challenged the sufficiency of plaintiffs' pleadings, which the court previously dismissed the original consolidated class action complaint as well as the first amended complaint. The second amended consolidated class action complaint alleged that, defendants falsely stated that no goodwill impairment testing was necessary after the end of F2Q15, when in fact such testing was not only necessary and but also such testing would have led to a 100% write down for goodwill impairment for 2Q. Plaintiffs additionally alleged that for 2Q, the quarter ending September 30, 2014, there were various triggering circumstances that indicated that it was objectively and overwhelmingly more likely than not that LeapFrog's goodwill was impaired, such that defendants should have tested for goodwill impairment. Plaintiffs assert that, even though it was obvious that goodwill impairment testing was necessary, defendants falsely claimed, in November 2014, that such testing was not necessary. Plaintiffs further assert that, if defendants had conducted goodwill impairment testing for 2Q, then they would have determined that goodwill was in fact impaired under the GAAP two-step test for impairment. Thus, defendants falsely overstated LF's financial results for 2Q by not making the necessary deduction for goodwill impairment. Also, plaintiffs assert that defendants also falsely represented that LF's long-lived assets were not impaired as of F3Q15. According to plaintiffs, defendants falsely represented that its long-lived assets were not impaired as of 3Q. Plaintiffs admit that defendants ultimately did make an adjustment for long-lived asset impairment in the 4Q more specifically a write-down of $36.5 million which constituted 96% of the value of the long-lived assets. But Plaintiffs maintain that the adjustment was one quarter too late. Plaintiffs note that, when defendants did find impairment at 4Q, they indicated that it was primarily due to the significant decline of the trading value of the Company's Class A common stock and the corresponding market capitalization. But, according to plaintiffs, there already was a significant decline in LF's stock value as of 3Q or at least, there was a significant decline by January 23, 2015, when LF's stock was worth only $2.55, compared to $4.72 at the end of December 31, 2014. Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Chen granted in part and denied in part defendants' motion to dismiss. The motion is granted to the extent plaintiffs' claims are based on defendants' failure to take a write-off for goodwill impairment in 2Q. The motion is denied to the extent plaintiffs' claims are based on defendants' failure to take a write-off for long-lived asset impairment in 3Q. Defendants shall file their answer to the second amended complaint, with claims limited by the court's ruling within four weeks of the date of the order. The court will hold a case management conference on April 6, 2017 at 9:30 a.m. to set dates in connection with plaintiffs' motion to certify the class. A joint case management conference statement shall be filed by March 30, 2017. A copy of Judge Chen's order dated February 24, 2017, is available at https://goo.gl/Krg4Mi from Leagle.com. Abere Newett and Bette R. Grayson, Plaintiffs, represented by Robert Vincent Prongay -- RProngay@glancylaw.com -- at Glancy Prongay & Murray LLP Mary L Tumlin, Plaintiff, represented by Ramzi Abadou -- ramzi.abadou@ksfcounsel.com -- at Kahn Swick Foti LLP Richard Farias, Plaintiff, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- at Pomerantz LLP KBC Asset Management NV, Plaintiff, represented by James Michael Hughes -- jhughes@motleyrice.com -- at Motley Rice LLC; Brian O. O'Mara -- bomara@rgrdlaw.com -- Matthew Seth Melamed -- mmelamed@rgrdlaw.com -- Shawn A. Williams -- shawnw@rgrdlaw.com -- Willow E. Radcliffe -- willowr@rgrdlaw.com -- at Robbins Geller Rudman & Dowd LLP Defendants, represented by Jordan Eth -- jeth@mofo.com -- Mark R.S. Foster -- mfoster@mofo.com -- at Morrison & Foerster LLP Chacal Liu, Movant, represented by Robert Vincent Prongay -- RProngay@glancylaw.com -- at Glancy Prongay & Murray LLP Paul M. Terreri, Movant, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- at Pomerantz LLP LULAROE: Faces Criticisms Over Leggings Amid Class Action --------------------------------------------------------- FoxNews.com reports that LuLaRoe, the comfy-chic brand that sells its products through ambassadors, is reportedly facing backlash from thousands of dissatisfied customers who say some of the company's clothing isn't up to snuff. Brit + Co reported that a Facebook group of nearly 9,000 such customers have claimed the company's leggings get rips and tears in them on the first wear. LuLaRoe has claimed there's only a small number of defective items. Although the "leggings aren't pants" argument has been up for debate in recent years, some customers have taken issue with LuLaRoe's advice to wash their leggings separately like they are pantyhose, the website reported. "LuLaRoe Defective is a group for you to come share your defective clothing," the Facebook group's description reads. "NO SELLING! NO DRAMA!" The alleged defective clothing snafu is just the latest issue LuLaRoe is facing, other reports suggest. Forbes reported the company is also dealing with a class-action lawsuit for taxing customers in states where online purchases are tax free. MARS PETCARE: Among Defendants in Pet Food Class Action ------------------------------------------------------- R. Robin McDonald, writing for Daily Report, reports that after taking on the National Football League on behalf of hundreds of current and former professional football players facing traumatic brain injury, Atlanta class action litigator Mike McGlamry -- mmcglamry@popemcglamry.com -- is setting his sights on the nation's multi-billion-dollar prescription pet food industry. McGlamry -- a member of the plaintiffs' steering committee in the ground-breaking, $1 billion settlement with the NFL -- is joining forces with attorneys in California, North Carolina and Minnesota on behalf of pet owners whom he contends are being duped by veterinarian chains and pet food suppliers and manufacturers into spending unwarranted money on prescription pet foods for their furry companions. What pet owners don't realize, McGlamry said, is that pet food manufacturers sell nonprescription versions of their prescription brands at pet stores across the country. The nonprescription brands, he said, are made with the same ingredients as their prescription counterparts and are not materially different from the prescription brands vets prescribe -- but cost far less. A prescription isn't legally required for the sale of prescription pet food, McGlamry said. If it were, the food would be subject to U.S. Food and Drug Administration approval. But prescription pet foods are not subject to oversight and monitoring by the FDA, as they would be if they included pharmaceuticals or other regulated ingredients, he explained. Nor have the pet food manufacturers ever sought FDA approval for the prescription foods they sell. But the prescription moniker -- and prescription pet food sales through thousands of veterinary clinics that are owned by the companies that produce the food they prescribe -- are deceptively capitalizing on America's changing culture about how we think of our pets, McGlamry said. McGlamry is an unabashed pet owner. He and his wife, Anne, have had miniature dachshunds since he gave her one as a present after they were engaged. Both grew up with dachshunds. The couple raised multiple dachshunds along with their three girls -- one of whom, Caroline McGlamry, is now an associate at McGlamry's firm, Pope McGlamry, and is working with her father on the case. "You know, if you told me I had to have this particular food, at some level we could afford it," McGlamry said. But, he added, there are many pet owners who are "just getting by" financially who, when faced with a vet's prescription for pet food that might cost them $50 a week, "they do it because their pets are family." Caroline McGlamry said that in preparing the case, Moore v. Mars Petcare US, Inc. et al, attorneys heard stories from people who said they couldn't afford the prescription food but racked up credit card debt because they thought it was medically better for their pets. In arguing that's not the case, McGlamry has teamed up with Michael Kelly at San Francisco's Walkup, Melodia, Kelly & Schoenberger, Lynwood Evans at Ward and Smith in Wilmington, North Carolina, and Daniel Shulman -- daniel.shulman@gpmlaw.com -- at Gray, Plant, Mooty, Mooty & Bennett in Minneapolis. They have filed a class action, antitrust complaint against prescription pet food manufacturers Mars Petcare US, Inc., Nestle Purina Petcare Co., Hill's Pet Nutrition, Inc. and Royal Canin USA, Inc.; veterinarian chains Blue Pearl Vet and Medical Management International, doing business as Banfield Pet Hospitals; and Petsmart, which contracts with and houses Banfield clinics at many of the stores in the chain. The prescription brands are likely familiar to pet owners. They include Hills Prescription Diet, Royal Canin Veterinary Diet, Iams Veterinary Formula and Purina Pro Plan--all of which McGlamry said have nonprescription counterparts sold in pet stores that cost less than the prescription brands. McGlamry added that branding pet food as prescription only is the hook that gives vets and pet food manufacturers the cachet to sell pet food that's virtually indistinguishable from their over-the- counter brands at a higher than market value, and to persuade pet owners that they should invest the additional dollars or, implicitly, their pets' health will be at risk. Because prescriptions are associated with a doctor's orders, Americans -- who have increasingly humanized their pets -- often accept the recommendation without question, believing the prescriptions are medically necessary for their pets' well-being, McGlamry said. Those doctors's orders are more and more being delivered through vet clinics -- such as Blue Pearl and Banfield -- that are largely owned by the defendant pet food manufacturers, McGlamry added. Mars owns Blue Pearl, which the recently amended complaint identified as one of the largest veterinarian chains in the country. It's also in the process of acquiring another veterinarian chain, VCA (Vet Company of America). Mars has also partnered with Petsmart in ownership of Banfield, which employs more than 3,000 vets. In owning the vet chains that prescribe the manufacturers' brands, the pet food companies are in a position to both create and control the market, McGlamry said. "The manufacturers are leveraging people's emotional attachment to their pets and trusting their vets," said Walkup's Kelly. "Two- thirds of Americans have a pet. Our culture has changed -- for the better -- in terms of appreciating pets in people's lives. A number get more support out of their pets than their family. . . . In what way is that affection and love being unfairly leveraged?" Kelly, a dog owner, offered himself as an example of how most Americans respond to a veterinarian's prescription. When a Boston terrier he owned was prescribed eye medication more expensive than any of Kelly's own prescriptions, he said it never occurred to him to question it. "I love my dog," he said. The suit, filed in U.S. District Court for the Northern District of California, is just ramping up. An amended complaint was filed earlier in February, includes plaintiff pet owners from California, Missouri, Florida, New Jersey, North Carolina, Massachusetts and New York. Their pets, all named in the complaint, include dogs Pugalicious, Bella, Teddy, Barkley, Kodiak, Zoey, Lola, Barley, Boone, Beau, Abby and Tank; and cats Nikki, Sam, Leo, Zorba, Mimi, Neichi, Felix, Sassycat and Boocat. The first hearing before judge Maxine M. Chesney is scheduled for March 17. While the defendant manufacturers and vet clinic chains have yet to file an answer or dismissal motion in response to the complaint, they have hired some of the top law firms in the nation to defend them. They include Washington's Williams & Connolly representing Mars, Banfield, and Blue Pearl; White & Case for Nestle Purina; O'Melveny & Myers for Hill's Pet Nutrition; and Foley & Lardner for Petsmart. Christopher Curran -- ccurran@whitecase.com -- a White & Case Washington partner, referred requests for comment to Purina. A Purina spokeswoman said the company will not comment on the allegations "due to our small share of the veterinary diet market (which is in the one-digit percentile) as well as our small share of this meritless case." Two Foley & Larder attorneys could not be reached. Attorneys at O'Melveny & Myers in San Francisco and Williams & Connolly were unavailable for comment on Feb. 27. MCAFEE INC: Jabrani Appeals Decision in "Williamson" Class Suit --------------------------------------------------------------- Objector Amirali Jabrani filed an appeal from a court ruling relating to the lawsuit entitled Sam Williamson, et al. v. McAfee, Inc., Case No. 5:14-cv-00158-EJD, in the U.S. District Court for the Northern District of California, San Jose. As previously reported in the Class Action Reporter, Plaintiff Sam Williamson filed the lawsuit alleging that McAfee, Inc. has systematically charged customers enrolled in its software "auto- renewal" program higher prices than it charges other customers for identical products, in violation of its contractual obligations and contrary to its express representations concerning its Auto- Renewal program. McAfee, Inc. is a Delaware corporation, and is headquartered in Santa Clara, California. McAfee is a wholly-owned subsidiary of Intel Corporation. McAfee is one of the largest computer security software companies in the United States and the world. The appellate case is captioned as Sam Williamson, et al. v. McAfee, Inc., Case No. 17-15301, 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 17, 2017; -- Transcript is due on April 17, 2017; -- Appellant Amirali Jabrani's opening brief is due on May 26, 2017; -- Appellees Samantha Kirby, McAfee, Inc. and Sam Williamson's answering brief is due on June 26, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellees SAM WILLIAMSON and SAMANTHA KIRBY, individually and on behalf of all others similarly situated, are represented by: Robert Rafael Ahdoot, Esq. Theodore Walter Maya, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, PC 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: rahdoot@ahdootwolfson.com tmaya@ahdootwolfson.com twolfson@ahdootwolfson.com - and - Daniel M. Hattis, Esq. HATTIS LAW 935 Cowper Street Palo Alto, CA 94301 Telephone: (650) 284-8495 E-mail: dan@hattislaw.com - and - Roger N. Heller, Esq. Michael Sobol, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 275 Battery Street San Francisco, CA 94111 Telephone: (415) 956-1000 E-mail: rheller@lchb.com msobol@lchb.com nsugnet@lchb.com Objector-Appellant AMIRALI JABRANI is represented by: Timothy R. Hanigan, Esq. LANG, HANIGAN & CARVALHO, LLP 21550 Oxnard Street Woodland Hills, CA 91367 Telephone: (818) 883-5644 Facsimile: (818) 704-9372 E-mail: trhanigan@gmail.com - and - Christopher Andres Bandas, Esq. Robert Clore, Esq. BANDAS LAW FIRM, P.C. 500 North Shoreline, Suite 1020 Corpus Christi, TX 78401 Telephone: (361) 698-5200 Facsimile: (361) 698-5222 E-mail: cbandas@bandaslawfirm.com rclore@bandaslawfirm.com Defendant-Appellee MCAFEE, INC., is represented by: Ellen A. Cirangle, Esq. LUBIN OLSON & NIEWIADOMSKI LLP 600 Montgomery Street, 14th Floor San Francisco, CA 94111 Telephone: (415) 981-0550 Facsimile: (415) 981-4343 E-mail: ecirangle@lubinolson.com - and - Eli S. Schlam, Esq. Juli Ann Lund, Esq. WILLIAMS & CONNOLLY LLP 725 Twelfth Street, NW Washington, DC 20005 Telephone: (202) 434-5754 E-mail: eschlam@wc.com jlund@wc.com MDL 1917: June 8 Settlement Final Approval Hearing Set ------------------------------------------------------ UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA If You Bought A Cathode Ray Tube Product, A Class Action Settlement May Affect You. Cathode Ray Tube (CRT) Products include Cathode Ray Tubes and finished products that contain a Cathode Ray Tube such as Televisions and Computer Monitors. A Federal Court authorized this Notice. This is not a solicitation from a lawyer. -- A class action lawsuit that includes direct purchasers of CRT Products is currently pending. The Court certified a class of direct purchasers of CRT Products by order dated July 8, 2015. If you are a direct purchaser of CRT Products and you did not exclude yourself from the Class following the Notice of Direct Purchaser Class Certification ("Class Notice") mailed on November 23, 2015, you are a member of the Class and your rights will be affected. -- Plaintiffs claim that Defendants and Co-Conspirators (listed below) engaged in an unlawful conspiracy to fix, raise, maintain or stabilize the prices of Cathode Ray Tubes. Plaintiffs further claim that direct purchasers of televisions and monitors that contain a cathode ray tube from the Defendants may recover for the effect that the cathode ray tube conspiracy had on the prices of televisions and monitors. Plaintiffs allege that, as a result of the unlawful conspiracy involving cathode ray tubes, they and other direct purchasers paid more for CRT Products than they would have paid absent the conspiracy. Defendants deny Plaintiffs' claims. -- A settlement has been reached with Mitsubishi Electric Corporation; Mitsubishi Electric US, Inc. (formerly known as Mitsubishi Electric & Electronics USA, Inc.); and Mitsubishi Electric Visual Solutions America, Inc. (formerly known as Mitsubishi Digital Electronics America, Inc.). The companies are together referred to as "Mitsubishi Electric Defendants." -- Your legal rights will be affected whether you act or don't act. This Notice includes information on the Settlement and the continuing lawsuit. Please read the entire Notice carefully. BASIC INFORMATION 1. Why did I get this notice? You or your company may have directly purchased Cathode Ray Tubes (CRTs) or certain products containing those tubes between March 1, 1995 and November 25, 2007. A direct purchaser is a person or business who bought a CRT, or a television or computer monitor containing a CRT directly from one or more of the Defendants, co-conspirators, affiliates, or subsidiaries themselves, as opposed to an intermediary (such as a retail store). You have the right to know about the litigation and about your legal rights and options before the Court decides whether to approve the Settlement. The notice explains the litigation, the settlement, and your legal rights. The Court in charge of the case is the United States District Court for the Northern District of California, and the case is called In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No. 1917. The people who sued are called Plaintiffs and the companies they sued are called Defendants. 2. Who are the Defendant and Co-Conspirator companies? The Defendant and Co-Conspirator companies include: Thomson SA (now known as Technicolor SA); Thomson Consumer Electronics, Inc. (now known as Technicolor USA, Inc.); Technologies Displays Americas LLC (formerly known as Thomson Displays Americas LLC); Videocon Industries, Ltd.; Mitsubishi Electric Corporation; Mitsubishi Electric US, Inc. (formerly known as Mitsubishi Electric & Electronics USA, Inc.); Mitsubishi Electric Visual Solutions America, Inc. (formerly known as Mitsubishi Digital Electronics America, Inc.); LG Electronics, Inc., LG Electronics U.S.A., Inc., LG Electronics Taiwan Taipei Co., Ltd., Koninklijke Philips Electronics N.V., Philips Electronics North America Corporation, Philips Electronics Industries (Taiwan), Ltd., Philips da Amazonia Industria Electronica Ltda., LP Displays International, Ltd. f/k/a LG.Philips Displays, Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung SDI Co. Ltd., Samsung SDI America, Inc., Samsung SDI Mexico S.A. de C.V., Samsung SDI Brasil Ltda., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co. Ltd., Samsung SDI Malaysia Sdn. Bhd., Toshiba Corporation, Toshiba America Consumer Products, L.L.C., Toshiba America Information Systems, Inc., Toshiba America Electronic Components, Inc., Panasonic Corporation f/k/a Matsushita Electric Industrial, Ltd., Panasonic Corporation of North America, MT Picture Display Co., Ltd., Beijing-Matsushita Color CRT Company, Ltd. (BMCC), Hitachi, Ltd., Hitachi Displays, Ltd. (n/k/a Japan Display Inc.), Hitachi Electronic Devices (USA), Inc., Hitachi America, Ltd., Hitachi Asia, Ltd., Tatung Company of America, Inc., Chunghwa Picture Tubes Ltd., Chunghwa Picture Tubes (Malaysia) Sdn. Bhd., IRICO Group Corporation, IRICO Display Devices Co., Ltd., IRICO Group Electronics Co., Ltd., Thai CRT Company, Ltd., Daewoo Electronics Corporation f/k/a Daewoo Electronics Company, Ltd., Daewoo International Corporation, Irico Group Corporation, Irico Group Electronics Co., Ltd., and Irico Display Devices Co., Ltd. 3. What is this lawsuit about? The lawsuit alleges that Defendants and Co-Conspirators conspired to raise and fix the prices of CRTs and the CRTs contained in certain finished products for over ten years, resulting in overcharges to direct purchasers of those CRTs and certain finished products containing CRTs. The complaint describes how the Defendants and Co-Conspirators allegedly violated the U.S. antitrust laws by establishing a global cartel that set artificially high prices for, and restricted the supply of CRTs and the televisions and monitors that contained them. Defendants deny Plaintiffs' allegations. The Court has not decided who is right. 4. Were there other settlements in this litigation? Yes. This notice concerns a settlement with the Mitsubishi Electric Defendants. Plaintiffs have also reached previous settlements with eight other groups of defendants: 1) Chunghwa Picture Tubes Ltd., Chunghwa Picture Tubes (Malaysia) Sdn. Bhd.; 2) Koninklijke Philips Electronics N.V.; Philips Electronics North America Corporation, Philips Electronics Industries (Taiwan), Ltd.; Philips da Amazonia Industria Electronica Ltda.; 3) Panasonic Corporation (f/k/a Matsushita Electric Industrial, Ltd.); Panasonic Corporation of North America; MT Picture Display Co., Ltd. (this settlement also releases Beijing-Matsushita Color CRT Company, Ltd.); 4) LG Electronics, Inc.; LG Electronics U.S.A., Inc.; LG Electronics Taiwan Taipei Co., Ltd. (this settlement also releases LP Displays International, Ltd. f/k/a LG.Philips Displays.); 5) Toshiba Corporation; Toshiba America Information Systems, Inc.; Toshiba America Consumer Products, L.L.C.; Toshiba America Electronic Components, Inc.; 6) Hitachi, Ltd.; Hitachi Displays, Ltd. (n/k/a Japan Displays Inc.); Hitachi America, Ltd.; Hitachi Asia, Ltd.; Hitachi Electronic Devices (USA) Inc.; 7) Samsung SDI Co. Ltd. (f/k/a Samsung Display Devices Co., Ltd.); Samsung SDI America, Inc.; Samsung SDI Brasil, Ltd.; Tianjin Samsung SDI Co., Ltd.; Samsung Shenzhen SDI Co., Ltd.; SDI Malaysia Sdn. Bhd.; SDI Mexico S.A. de C.V.; 8) Thomson SA (now known as Technicolor SA); Thomson Consumer Electronics, Inc. (now known as Technicolor USA, Inc.); and Technologies Displays Americas LLC (formerly known as Thomson Displays Americas LLC). The eight previous settlements have been finally approved by the Court. 5. What is a Cathode Ray Tube Product? For the purposes of the Settlement, Cathode Ray Tube Products means Cathode Ray Tubes of any type (e.g. color display tubes and color picture tubes) and finished products which contain Cathode Ray Tubes, such as Televisions and Computer Monitors. For More Information: Call 1-877-224-3063 or Visit www.CRTDirectPurchaserAntitrustSettlement.com 6. What is a class action? In a class action, one or more people, called class representatives, sue on behalf of people who have similar claims. All these people are members of the class, except for those who have previously excluded themselves from the class. Important information about the case is posted on the website, www.CRTDirectPurchaserAntitrustSettlement.com as it becomes available. Please check the website to be kept informed about any future developments. THE CLASS 7. How do I know if I'm part of the Class? The Class includes: All persons and entities who, between March 1, 1995 and November 25, 2007, directly purchased a CRT Product in the United States from any defendant or subsidiary or affiliate thereof, or any co- conspirator ("Class"). If you excluded yourself from the Class by filing a request for exclusion with the Court following the Class Notice sent to you by U.S. Mail or e-mail on November 23, 2015 and published in the Wall Street Journal or the New York Times on November 24, 2015, you are not a Class member and this Notice does not affect you. 8. What does the Settlement provide? The Settlement with the Mitsubishi Electric Defendants provides for a payment in the amount of $75,000,000 in cash to the Class (the "Mitsubishi Electric Settlement Fund"). More details are in the Settlement Agreement, available at www.CRTDirectPurchaserAntitrustSettlement.com. 9. When can I get a payment? Distribution of the Mitsubishi Electric Settlement Fund will be made, along with a previous settlement of $9,750,000 with the Thomson and TDA defendants ("Thomson/TDA Settlement Fund"), on a pro rata basis once the Court finally approves the settlement and authorizes distribution of the Mitsubishi Electric Settlement Fund. Class members have already submitted claim forms for distribution of the pro rata shares of the previous settlements (except the Thomson/TDA settlement). If you submitted a claim form, it will be considered as part of the pro rata distribution of the Mitsubishi Electric and Thomson/TDA Settlement Funds. You need not submit an additional claim form. If you wish to supplement or amend your claim form, for example to add purchases from the Mitsubishi Electric Defendants, Thomson/TDA defendants, or others, you may do so. You may also submit a new claim. Directions for filing a new or supplemental claim, either online or using a downloadable claim form, can be found on the class website www.CRTDirectPurchaserAntitrustSettlement.com. Any new or supplemental claims must be submitted online or postmarked by May 29, 2017. In the future, each Class member's pro rata share of the Mitsubishi Electric and Thomson/TDA Settlement Funds will be determined by computing each valid claimant's total CRT Product purchases divided by the total valid CRT Product purchases claimed. This percentage is multiplied by the net Settlement Fund (total of the Mitsubishi Electric and Thomson/TDA Settlement Funds minus all costs, attorneys' fees, and expenses) to determine each claimant's pro rata share. To determine your CRT Product purchases, CRT tubes (CPTs and CDTs) are calculated at full value while CRT televisions are valued at 50% and CRT computer monitors are valued at 75%. In summary, all valid claimants will share in the Mitsubishi Electric Settlement Fund on a pro rata basis determined by the CRT value of the product you purchased -- tubes 100%, monitors 75% and televisions 50%. 10. May I object to or comment on the Settlement? Yes. If you have comments about, or disagree with, any aspect of the Settlement, you may express your views to the Court by writing to the address below. The written response needs to include your name, address, telephone number, the case name and number (In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No. 1917), a brief explanation of your reasons for objection, and your signature. The response must be filed with the Court or postmarked no later than April 20, 2017 and mailed to: Honorable Jon S. Tigar United States District Court, Northern District of California San Francisco Division 450 Golden Gate Avenue Courtroom 9, 19th floor San Francisco, CA 94102 You can ask the Court to deny approval by filing an objection. You can't ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the Court denies approval, no settlement payments will be sent out and the lawsuit will continue. If that is what you want to happen, you must object. For More Information: Call 1-877-224-3063 or Visit www.CRTDirectPurchaserAntitrustSettlement.com THE SETTLEMENT APPROVAL HEARING 11. When and where will the Court decide whether to approve the Settlement? The Court will hold a Final Approval Hearing at 2:00 p.m. on June 8, 2017, at the United States District Court for the Northern District of California, San Francisco Division, in Courtroom 9 on the 19th Floor, at 450 Golden Gate Avenue. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check the class website for information because additional notice will not be sent. At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections or comments, the Court will consider them at that time. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. 12. Do I have to come to the hearing? No. Lead Counsel will answer any questions the Court may have, but you are welcome to come at your own expense. If you send an objection or comment, you don't have to come to Court to talk about it. As long as you mailed your written objection or comment on time, the Court will consider it. You may also pay another lawyer to attend, but it's not required. 13. May I speak at the hearing? If you want your own lawyer instead of Lead Counsel to speak at the Final Approval Hearing, you must give the Court a paper that is called a "Notice of Appearance." The Notice of Appearance should include the name and number of the lawsuit (In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No. 1917), and state that you wish to enter an appearance at the Final Approval Hearing. It also must include your name, address, telephone number, and signature. Your Notice of Appearance must be postmarked no later than April 20, 2017. The Notice of Appearance must be sent to the address listed in Question 10. THE LAWYERS REPRESENTING YOU 14. Do I have a lawyer in the case? Yes. The Court has appointed the law firm of Saveri & Saveri, Inc. to represent you as "Lead Counsel." You do not have to pay Lead Counsel. If you want to be represented by your own lawyers, and have that lawyer appear in court for you in this case, you may hire one at your own expense. 15. How will the lawyers be paid? Lead Counsel will also submit an Application for Attorneys' Fees and Expenses and Incentive Awards to be heard at the Final Approval Hearing on June 8, 2017. Lead Counsel will ask the Court for attorneys' fees not to exceed one-third (33.3%) of the Mitsubishi Electric and Thomson/TDA Settlement Funds plus reimbursement of their costs and expenses, in accordance with the provisions of the Mitsubishi Electric and Thomson/TDA settlement agreements. Lead Counsel may also request that an amount be paid to each of the class representatives who helped the lawyers on behalf of the whole Class. Lead Counsel will file their Application for Attorneys' Fees and Expenses and Incentive Awards on or before March 30, 2017. On the same day, Lead Counsel will post their Application for Attorneys' Fees and Expenses and Incentive Awards on the Settlement website www.CRTDirectPurchaserAntitrustSettlement.com. You may comment on or object to Lead Counsel's Application for Attorneys' Fees and Expenses and Incentive Awards by following the procedure set forth in paragraph 10 above. Any comment or objection must be filed with the Court or postmarked by April 20, 2017. GETTING MORE INFORMATION 16. How do I get more information? This Notice summarizes the lawsuit and the Settlement. You can get more information about the lawsuit and Settlement at www.CRTDirectPurchaserAntitrustSettlement.com, by calling 1-877-224-3063, or writing to CRT Direct Settlement, P.O. Box 43455, Providence, RI 02940-3455. Please do not contact the Court about this case. Dated: February 27, 2017 BY ORDER OF THE COURT For More Information: Call 1-877-224-3063 or Visit www.CRTDirectPurchaserAntitrustSettlement.com MDL 2493: 4th Cir. Appeal Filed in TCPA Suit v. Monitronics ----------------------------------------------------------- Plaintiffs Edith Bowler, Janet Hodgin, Michael Hodgin, Kenneth Clark, Dianna Mey, James Giles, Jason Bennett, Sandra Fairley, Scott Dolemba, Allen Beaver, Dakota Dalton, Diane Elder, Michelle Wakeley, Keith Finklea, Todd C. Bank, Newton Vaughn, Stewart N. Abramson, Lawrence Tarizzo, Darren R. Newhart, Brandon Frazer, Yvette Corralez-Estrada-Diaz, John Geraci, Shane Meyers, Matthew Barger and Jeffery Wagy filed an appeal from a court ruling in the multidistrict litigation styled In Re: Monitronics International, Inc., Telephone Consumer Protection Act (TCPA) Litigation, Case No. 1:13-md-02493-JPB-JES, in the U.S. District Court for the Northern District of West Virginia at Clarksburg. The cases in the litigation primarily involve allegations that Monitronics -- a home security system and alarm monitoring company -- violated the Telephone Consumer Protection Act when Monitronics or one of its agents placed telemarketing calls to persons on the national Do Not Call Registry or to residential or wireless telephones without the individual's consent. In a January 2017 article at Lexology.com by K&L Gates' Andrew C. Glass, Gregory N. Blase, Roger L. Smerage and Matthew T. Houston, the U.S. District Court for the Northern District of West Virginia recently granted summary judgment for the defendant alarm manufacturers in the case. In doing so, the Monitronics court rejected Telephone Consumer Protection Act claims based on alleged liability for acts of vendors, distributors, or other third parties. The court also expressly overruled its own earlier, contrary opinion rendered in Mey v. Monitronics International, Inc., which matter was consolidated into Monitronics as part of a multidistrict litigation. Thus, the court joined a growing number of jurisdictions that have questioned the ability of plaintiffs to prove vicarious liability in connection with TCPA claims. The appellate case is captioned as Edith Bowler v. Monitronics International, Inc., Case No. 17-1222, in the United States Court of Appeals for the Fourth Circuit. Plaintiffs-Appellants Edith Bowler, Janet Hodgin, Michael Hodgin, Kenneth Clark and Dianna Mey are represented by: Jonathan R. Marshall, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301-0000 Telephone: (304) 345-6555 E-mail: jmarshall@baileyglasser.com - and - Mary E. Reiten, Esq. Beth Terrell, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street Seattle, WA 98103 Telephone: (206) 319-5450 Facsimile: (206) 350-3528 E-mail: mreiten@terrellmarshall.com beth@terrellmarshall.com Plaintiff-Appellant DIANNA MEY, individually and on behalf of a class of all persons and entities similarly situated, is represented by: John William Barrett, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301-0000 Telephone: (304) 345-6555 E-mail: jbarrett@baileyglasser.com - and - Edward A. Broderick, Esq. BRODERICK LAW, P.C. 125 Summer Street Boston, MA 02110 Telephone: (617) 738-7080 E-mail: ted@broderick-law.com - and - Matthew P. McCue, Esq. LAW OFFICE OF MATTHEW P. MCCUE 179 Union Avenue Framingham, MA 01790 Telephone: (508) 620-1166 Facsimile: (508) 319-3077 E-mail: mmccue@massattorneys.net Plaintiff-Appellant JAMES GILES is represented by: James Feagle, Esq. SKAAR & FEAGLE, LLP 2374 Main Street Tucker, GA 30084 Telephone: (404) 373-1970 Facsimile: (404) 601-1855 E-mail: jfeagle@skaarandfeagle.com - and - Justin Tharpe Holcombe, Esq. Kris Kelly Skaar, Esq. SKAAR & FEAGLE, LLP 133 Mirramont Lake Drive Woodstock, GA 30189 Telephone: (770) 427-5600 Facsimile: (404) 601-1855 E-mail: jholcombe@skaarandfeagle.com krisskaar@aol.com - and - Jonathan R. Marshall, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301-0000 Telephone: (304) 345-6555 E-mail: jmarshall@baileyglasser.com Plaintiff-Appellant JASON BENNETT is represented by: John R. Cox, Esq. 9786-A Timber Circle Spanish Fort, AL 36527 Telephone: (251) 517-4753 E-mail: federalcourt.notices.jrclegal@gmail.com - and - Jonathan R. Marshall, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301-0000 Telephone: (304) 345-6555 E-mail: jmarshall@baileyglasser.com - and - Kenneth J. Riemer, Esq. UNDERWOOD & RIEMER, PC 166 Government Street Mobile, AL 36602 Telephone: (251) 990-0626 Facsimile: (251) 433-7172 E-mail: kjr@alaconsumerlaw.com - and - Earl P. Underwood, Esq. UNDERWOOD & RIEMER, PC 21 South Section Street Fairhope, AL 36532 Facsimile: (251) 990-0626 E-mail: epunderwood@gmail.com Plaintiff-Appellant SANDRA FAIRLEY is represented by: Sergei Lemberg, Esq. LEMBERG LAW, LLC 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 E-mail: slemberg@lemberglaw.com Plaintiff-Appellant SCOTT DOLEMBA, on behalf of plaintiff and a class, is represented by: Cathleen M. Combs, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street Chicago, IL 60603 Telephone: (312) 739-4200 E-mail: ccombs@edcombs.com Plaintiffs-Appellants Allen Beaver, Dakota Dalton, Diane Elder, and Michelle Wakeley are represented by: Charles R. Pinkerton, Esq. PINKERTON LAW PRACTICE, PLLC 918 Alpine Street Morgantown, WV 26505 Telephone: (304) 933-2113 Facsimile: (304) 933-2108 E-mail: cpinkerton@pinkertonlawpracticepllc.com Plaintiff-Appellant KEITH FINKLEA is represented by: Christopher K. Jones, Esq. KEOGH, COX & WILSON, LTD 701 Main Street Baton Rouge, LA Telephone: (225) 383-3796 Facsimile: (225) 343-9612 E-mail: cjones@kcwlaw.com Plaintiff-Appellant TODD C. BANK represents himself: Todd C. Bank, Esq. TODD C. BANK, ATTORNEY AT LAW, P.C. 119-40 Union Turnpike Kew Gardens, NY 11415 Telephone: (718) 520-7125 Facsimile: (856) 997-9193 E-mail: tbank@toddbanklaw.com Plaintiff-Appellant NEWTON VAUGHN, an individual, is represented by: Nathaniel Clark, Esq. NATHANIEL CLARK LAW OFFICES 1000 Wilshire Boulevard Los Angeles, CA 90017 Telephone: (626) 673-5180 E-mail: nathaniel.h.clark@gmail.com Plaintiff-Appellant STEWART N. ABRAMSON is represented by: Matthew Becker, Esq. MORROW & ARTIM, P.C. 304 Ross Street Pittsburgh, PA 15219 Telephone: (412) 209-0657 E-mail: matt@consumerlaw365.com Plaintiff-Appellant LAWRENCE TARIZZO, individually and on behalf of all others similarly situated, is represented by: Adrian Robert Bacon, Esq. Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. LAW OFFICES OF TODD FRIEDMAN 324 South Beverly Drive Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: abacon@toddflaw.com tfriedman@toddflaw.com sweerasuriya@attorneysforconsumers.com Plaintiff-Appellant DARREN R. NEWHART is represented by: Jack Dennis Card, Jr., Esq. HICKS, MOTTO & EHRLICH, P.A. 3399 PGA Boulevard Palm Beach Gardens, FL 33410 Telephone: (561) 683-2300 Plaintiff-Appellant BRANDON FRAZER is represented by: Brook Jeremy Bisonet, Esq. GUINAN BISONET PLLC 41 Washington Avenue Grand Haven, MI 49417 Telephone: (616) 847-1234 Plaintiff-Appellant YVETTE CORRALEZ-ESTRADA-DIAZ is represented by: Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltfisher@bursor.com Plaintiff-Appellant JOHN GERACI is represented by: Sofia Balile, Esq. LEMBERG LAW, LLC 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 E-mail: sbalile@lemberglaw.com Plaintiff-Appellant SHANE MEYERS is represented by: Matthew Robert McGuigan, Esq. MILL STONE LEGAL GROUP, LLC 110 Southeast 6th Street Fort Lauderdale, FL 33301 Telephone: (754) 227-1610 E-mail: mmcguigan@millstonelegal.com Plaintiff-Appellant MATTHEW BARGER is represented by: Steven R. Broadwater, Jr., Esq. Christopher B. Frost, Esq. Jed Robert Nolan, Esq. Ralph C. Young, Esq. HAMILTON, BURGESS, YOUNG & POLLARD, PLLC P. O. Box 959 Fayetteville, WV 25840-0000 Telephone: (304) 574-2727 E-mail: cfrost@hamiltonburgess.com jnolan@hamiltonburgess.com Plaintiff-Appellant JEFFERY WAGY is represented by: James Salvatore Giardina, Esq. CONSUMER RIGHTS LAW GROUP, PLLC 3104 West Waters Avenue Tampa, FL 33614 Telephone: (813) 413-5610 Facsimile: (866) 535-7199 E-mail: james@consumerrightslawgroup.com Defendant-Appellee MONITRONICS INTERNATIONAL, INC., is represented by: Courtney Blair Amelung, Esq. Toyja E. Kelley, Esq. TYDINGS & ROSENBERG, LLP 100 East Pratt Street Baltimore, MD 21202-0000 Telephone: (410) 752-9700 Facsimile: (410) 727-5460 E-mail: camelung@tydingslaw.com tkelley@tydingslaw.com - and - Jeffrey Alan Holmstrand, Esq. GROVE, HOLMSTRAND & DELK, PLLC 44 1/2 15th Street Wheeling, WV 26003 Telephone: (304) 905-1961 Facsimile: (304) 230-6610 E-mail: jholmstrand@fsblaw.com Defendant-Appellee UTC FIRE & SECURITY AMERICAS CORP., INC., is represented by: Gordon Harrison Copland, Esq. STEPTOE & JOHNSON, LLP 229 Main Street P. O. Box 2190 Clarksburg, WV 26302-2190 Telephone: (304) 624-8000 Facsimile: (304) 933-8183 E-mail: Gordon.Copland@steptoe-johnson.com - and - Karen Elizabeth Kahle, Esq. William David Wilmoth, Esq. Kristen Andrews Wilson, Esq. STEPTOE & JOHNSON, LLP 1233 Main Street P. O. Box 751 Wheeling, WV 26003-0751 Telephone: (304) 231-0441 E-mail: karen.kahle@steptoe-johnson.com william.wilmoth@steptoe-johnson.com Kristen.Andrews@Steptoe-johnson.com - and - Christopher Andrew Lauderman, Esq. STEPTOE & JOHNSON, PLLC 400 White Oaks Boulevard Bridgeport, WV 26330 Telephone: (304) 933-8180 E-mail: chris.lauderman@steptoe-johnson.com - and - Jeffrey Lee Poston, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-0000 Telephone: (202) 624-2775 E-mail: jposton@crowell.com Defendant-Appellee ALLIANCE SECURITY, INC., d/b/a AH Security, Inc, formerly doing business as Versatile Marketing Solutions, Inc., d/b/a VMS Alarms, is represented by: Debra Lee Hovatter, Esq. SPILMAN, THOMAS & BATTLE, PLLC P. O. Box 615 Morgantown, WV 26507-0615 Telephone: (304) 291-7951 Facsimile: (304) 291-7979 E-mail: dhovatter@spilmanlaw.com - and - Don C.A. Parker, Esq. Niall Anthony Paul, Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3896 Facsimile: (304) 340-3801 E-mail: dparker@spilmanlaw.com npaul@spilmanlaw.com - and - Peter Raymond Rich, Esq. SPILMAN, THOMAS & BATTLE, PLLC 1 Oxford Centre 301 Grant Street Pittsburgh, PA 15219-0000 Telephone: (412) 325-3319 E-mail: prich@spilmanlaw.com - and - Victoria D. Summerfield, Esq. DAPPER BALDASARE BENSON BEHLING & KANE, PC 444 Liberty Avenue Pittsburgh, PA 15222 Telephone: (412) 456-2109 E-mail: vsummerfield@d3bk.com - and - John R. Teare, Jr., Esq. BOWLES RICE, LLP 600 Quarrier Street P. O. Box 1386 Charleston, WV 25325-0000 Telephone: (304) 347-1724 Defendants-Appellees ALLIANCE SECURITY LLC, a Delaware limited liability company; JASJIT GOTRA, a/k/a Jay Gotra, individually and as an Officer of Versatile Marketing Solutions, Inc.; and VERSATILE MARKETING SOLUTIONS, INC., d/b/a VMS Alarms, d/b/a VMS, d/b/a Alliance Security, d/b/a Alliance Home Protection, a California corporation, are represented by: Niall Anthony Paul, Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3896 Facsimile: (304) 340-3801 E-mail: npaul@spilmanlaw.com Defendants-Appellees ALLIANCE SECURITY LLC, a Delaware limited liability company; JASJIT GOTRA, a/k/a Jay Gotra, individually and as an Officer of Versatile Marketing Solutions, Inc.; and VERSATILE MARKETING SOLUTIONS, INC., d/b/a VMS Alarms, d/b/a VMS, d/b/a Alliance Security, d/b/a Alliance Home Protection, a California corporation; ALLIANCE SECURITY; and JASJIT GOTRA, individually and as an officer of Versatile Marketing Solutions, Inc., are represented by: John R. Teare, Jr., Esq. BOWLES RICE, LLP 600 Quarrier Street P. O. Box 1386 Charleston, WV 25325-0000 Telephone: (304) 347-1724 Defendants-Appellees ISI ALARMS NC INC., a North Carolina corporation, KEVIN KLINK and JAYSON WALLER are represented by: Harry F. Bell, Jr., Esq. BELL LAW FIRM P. O. Box 1723 Charleston, WV 25326-1723 Telephone: (304) 345-1700 Facsimile: (304) 345-1715 E-mail: hfbell@belllaw.com - and - Robert B. Newkirk, III, Esq. NEWKIRK LAW OFFICE 19810 East Catawba Avenue P. O. Box 2536 Cornelius, NC 28031 Telephone: (704) 892-5898 Facsimile: (704) 894-5633 E-mail: robert@newkirklawoffice.com Defendant-Appellee HONEYWELL INTERNATIONAL, INCORPORATED, is represented by: Carrie Goodwin Fenwick, Esq. William Jeffrey Vollmer, Esq. GOODWIN & GOODWIN, LLP 300 Summers Street Charleston, WV 25301 Telephone: (304) 346-7000 E-mail: cgf@goodwingoodwin.com wjv@goodwingoodwin.com - and - Alexander Macia, Esq. Leah Perry Macia, Esq. Megan E. McCullough, Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3800 Facsimile: (304) 340-3801 E-mail: amacia@spilmanlaw.com lmacia@spilmanlaw.com mmccullough@spilmanlaw.com - and - Lauri A. Mazzuchetti, Esq. KELLEY DRYE & WARREN, LLP One Jefferson Road Parsippany, NJ 07054 Telephone: (973) 503-5900 Facsimile: (973) 503-5950 E-mail: lmazzuchetti@kelleydrye.com Defendant VERSATILE MARKETING SOLUTIONS, INC., d/b/a VMS Alarms, d/b/a VMS Alliance Security, d/b/a Alliance Home Protection, is represented by: Clifford Forrest Kinney, Jr. Niall Anthony Paul, Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3844 Facsimile: (304) 340-1050 E-mail: ckinney@spilmanlaw.com npaul@spilmanlaw.com - and - Christina Suzanne Terek, Esq. SPILMAN, THOMAS & BATTLE, PLLC 1233 Main Street P. O. Box 831 Wheeling, WV 26003-0000 Telephone: (304) 230-6950 Facsimile: (304) 230-6951 E-mail: cterek@spilmanlaw.com Defendant UTC FIRE AND AMERICA'S CORPORATION is represented by: William David Wilmoth, Esq. STEPTOE & JOHNSON, LLP 1233 Main Street P. O. Box 751 Wheeling, WV 26003-0751 Telephone: (304) 233-0000 Facsimile: (304) 233-0014 E-mail: william.wilmoth@steptoe-johnson.com MDL 2380: Vullings Appeals Ruling in Shop-Vac Case to 3rd Cir. -------------------------------------------------------------- Nonparty Michelle W. Vullings filed an appeal from a court ruling in the multidistrict litigation entitled In re: Shop-Vac Marketing and Sales Practices Litigation, MDL No. 4-12-md-02380, in the U.S. District Court for the Middle District of Pennsylvania. The appellate case is captioned as In re: Shop-Vac Marketing and Sales Practices Litigation, Case No. 17-1395, in the United States Court of Appeals for the Third Circuit. As previously reported in the Class Action Reporter, the Plaintiffs in the litigation allege that Defendants Shop-Vac Corporation and Lowe's Home Centers, LLC misrepresented the peak horsepower ratings and tank capacity of the Vacuums. The Parties have settled the litigation. The Settlement, among other things, would extend the manufacturer's warranty on the motors of the Vacuums for at least 2 years. The Settlement also includes changes to the descriptions of peak horsepower ratings and tank capacity on marketing materials. Ms. Vullings has previously appealed a decision in the litigation. That appellate case was assigned Case No. 16-4370. The Clerk of the Appellate Court entered an order stating that the appeals assigned Case Nos. 16-4370 and 17-1395 are consolidated for all purposes. Appellant Vullings may file only one brief addressing all issues on appeal in Nos. 16-4370 and 17-1395. The appeals are further consolidated with No. 16-4425 for purposes of scheduling, joint appendix, and disposition. Appellants are encouraged to consult with one another regarding the contents of their briefs as the Court disfavors repetitive briefs. The parties may file a consolidated brief or join in or adopt portions by reference, according to the Clerk. Appellees may elect to file a consolidated brief. The Appellants are directed to electronically file these documents on the Court's docket: All case opening forms, motions, and briefs must be filed only in the appeal number assigned to the filer's notice of appeal. If a document is being filed jointly by multiple appellants, the document must be filed only in the appeal numbers assigned to the filing appellants. The parties are advised that case opening forms for later filed appeals must only be filed in the new appeals and not re-filed in earlier appeals in which the forms were previously filed. The parties are further advised that failure to file documents in the appropriate case may result in the issuance of a noncompliance order. If any party is unsure how to file a particular document, he or she should call the case manager prior to filing the document, filed. Plaintiffs-Appellees ANDREW HARBUT, on behalf of himself and all others similarly situated, ALAN MCMICHAEL, on behalf of himself and all others similarly situated, KRIS REID, DAVID PALOMINO and SCOTT GIANNETTI are represented by: Adam Gonnelli, Esq. FARUQI & FARUQI LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: agonnelli@faruqilaw.com - and - Robert I. Lax, Esq. LAX LLP 380 Lexington Avenue New York, NY 10168 Telephone: (212) 818-9150 Facsimile: (212) 208-4309 E-mail: rlax@lax-law.com - and - Andrei V. Rado, Esq. MILBERG LLP One Pennsylvania Plaza, 50th Floor New York, NY 10119 Telephone: (212) 613-5646 Facsimile: (212) 273-4333 E-mail: arado@milberg.com Plaintiffs-Appellees ALAN MCMICHAEL, on behalf of himself and all others similarly situated, KRIS REID, DAVID PALOMINO and SCOTT GIANNETTI are represented by: Jennifer S. Czeisler, Esq. Sanford P. Dumain, Esq. MILBERG LLP One Pennsylvania Plaza, 50th Floor New York, NY 10119 Telephone: (212) 613-5646 Facsimile: (212) 273-4333 E-mail: jczeisler@milberg.com sdumain@milberg.com - and - Bruce D. Greenberg, Esq. LITE DEPALMA GREENBERG 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 Facsimile: (973) 623-0858 E-mail: bgreenberg@ldgrlaw.com - and - James J. Rodgers, Esq. DILWORTH PAXSON LLP 1500 Market Street, Suite 3500E Philadelphia, PA 19102 Telephone: (215) 575-7000 Facsimile: (215) 575-7200 E-mail: jrodgers@dilworthlaw.com Defendants-Appellees SHOP VAC CORP., LOWES HIW INC, LOWES HOME CENTERS INC. and LOWES HOME CENTERS LLC are represented by: Mark D. Campbell, Esq. Michael B. Shortnacy, Esq. SIDLEY AUSTIN LLP 555 West 5th Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896-6143 E-mail: mcampbell@sidley.com mshortnacy@sidley.com Defendants-Appellees SHOP VAC CORP, LOWES HOME CENTERS INC. and LOWES HOME CENTERS LLC are represented by: Michael L. Mallow, Esq. SIDLEY AUSTIN LLP 555 West 5th Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896-6000 E-mail: mmallow@sidley.com Defendant-Appellee SHOP VAC CORP is represented by: Thomas G. Collins, Esq. BUCHANAN INGERSOLL & ROONEY PC 409 North Second Street, Suite 500 Harrisburg, PA 17101 Telephone: (717) 237-4843 E-mail: collinstg@bipc.com Not Party-Appellant Michelle W. Vullings is represented by: Brent F. Vullings, Esq. VULLINGS LAW GROUP, LLC 3953 Ridge Pike Collegeville, PA 19426 Telephone: (610) 489-6060 Facsimile: (610) 489-1997 E-mail: bvullings@vullingslaw.com MERCY HEALTH: Sanzone Moves to Certify Pension Plan Members Class ----------------------------------------------------------------- The Plaintiffs in the lawsuit captioned SALLY SANZONE and GENE GRASLE, individually and on behalf of all others similarly situated v. MERCY HEALTH, et al., Case No. 4:16-cv-00923-CDP (E.D. Mo.), seek certification of a class defined as: All participants and beneficiaries of the "Mercy Health MyRetirement Personal Pension Account Plan" on or after May 6, 2016. Sally Sanzone and Gene Grasle also ask the Court to appoint Keller Rohrback L.L.P. and Cohen Milstein Sellers & Toll, PLLC as Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=eDqpd3KL The Plaintiffs are represented by: Laura R. Gerber, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: lgerber@kellerrohrback.com - and - Ron Kilgard, Esq. KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 E-mail: rkilgard@kellerrohrback.com - and - Karen L. Handorf, Esq. Scott Lempert, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W., Suite 500, West Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: khandorf@cohenmilstein.com slempert@cohenmilstein.com - and - James I. Singer, Esq. Rhona Lyons, Esq. SCHUCHAT, COOK & WERNER 1221 Locust Street, Second Floor St. Louis, MO 63103-2364 Telephone: (314) 621-2626 Facsimile: (314) 621-2378 E-mail: jis@schuchatcw.com rsl@schuchatcw.com MERRILL LYNCH: Faces Class Action Over Customer Cash Use -------------------------------------------------------- Kat Greene and Carmen Germaine, writing for Law360, report that Bank of America Corp.'s wealth management unit was hit on Feb. 28 with a proposed class action over complex trades that allowed the firm to use customer money for its own trading, months after it paid $415 million and admitted to wrongdoing over the activities. Back in June, Merrill Lynch Pierce Fenner & Smith Inc. agreed to pay $57 million in disgorgement and interest and a $358 million civil penalty while admitting to wrongdoing, after the U.S. Securities and Exchange Commission alleged the wealth manager violated the agency's Customer Protection Rule by engaging in complex options trades that artificially reduced the amount Merrill Lynch needed to keep in a reserve account, freeing up cash the unit used for its own trading activities. Customer James Jiao filed a civil suit on Feb. 28 over the money handling, saying Merrill Lynch had deprived him and other customers of the legal interest they would have been entitled to had Merrill Lynch obtained the investment funds through authorized loans. The wealth manager also leached profits made from the unauthorized use of the funds, namely the disgorgement Merrill Lynch had to pay into the U.S. Department of the Treasury after the firm's conflict with the SEC, according to Mr. Jiao. "Merrill Lynch's conduct caused plaintiff to lose out on either lost income due to loaning his assets to Merrill Lynch or lost income or gains he would have made had [he] subjected his investments to these same risks independently, without Merrill Lynch," the suit says. Mr. Jiao seeks to represent a class of customers whose securities or cash were invested by Merrill Lynch and were used to trade for Merrill Lynch's own accounts from Jan. 1, 2009, to Dec. 31, 2012, and a subclass of similar consumers specifically in California, according to the complaint. A spokesman for Merrill Lynch said the lawsuit was baseless. "As the SEC noted at the time this was resolved, there were no customers harmed in this matter, and as a result, there is no basis for this lawsuit," the spokesman said. The SEC's Customer Protection Rule requires broker-dealers to safeguard the cash and securities of their customers by maintaining a reserve. The value of the reserve is calculated by subtracting debits that customers owe the broker-dealer, like margin loans, from credits the firm owes the customers, like cash in the customer securities accounts. According to the SEC's order instituting administrative proceedings, Merrill Lynch had gamed the reserve calculation from 2009 to 2012 by creating complicated options trades with limited liability companies that Merrill Lynch itself had set up, artificially creating customer debits that reduced the minimum account the firm needed to keep in its reserve account by up to $5 billion per week. The wealth manager further violated the rule, the SEC alleged, from 2009 to 2015 by holding up to $58 billion in customer securities in a clearing account that was subject to a general lien from Merrill Lynch's clearing bank, exposing customers to significant risks had Merrill Lynch collapsed. Regulators said at the time of Merrill Lynch's deal last summer that the SEC went after more in civil penalties because the wealth manager was not transparent with the SEC during its investigation. Meanwhile, in December, Morgan Stanley agreed to pay $7.5 million to settle allegations it violated the Consumer Protection Rule, without admitting or denying the SEC's accusations that the financial services firm violated the rules about funds in the customer reserve account. Mr. Jiao is represented by Abbas Kazerounian of Kazerouni Law Group APC. Counsel information for Merrill Lynch could not be immediately determined. The case is Jiao v. Merrill Lynch Pierce Fenner & Smith Inc. et al., case number 3:17-cv-00409, in the U.S. District Court for the Southern District of California. MICROSOFT CORP: Settles Class Action Over Misprinted Receipts ------------------------------------------------------------- Malcolm Owen, writing for Apple Insider, reports that Microsoft has agreed to settle a class-action lawsuit against its retail efforts, paying almost $1.2 million in compensation to customers and legal costs, over an accusation receipts provided by Microsoft Stores provided too much information about a customer's payment details. The lawsuit, filed in 2015 in the Southern Florida US District Court by Carlos Guarisma, claimed the Microsoft Store in Aventura, Florida printed a receipt that broke the 2003 US Fair and Accurate Credit Transactions Act (FACTA), reports The Register. According to the law, which has required compliance since 2006, retailers are permitted to display the last five digits or the expiry date of a credit or debit card number used in a transaction on a receipt. It is alleged that the receipt Mr. Guarisma received showed ten digits from the card number, with the first six and the last four numbers of the credit card on the paper. The receipt also included other information, including the customer's name and the identity of the salesperson involved in the transaction. "Despite the clear language of the statute, the defendant willfully or knowingly chose not to comply," the complaint alleges. According to the settlement proposal, Microsoft has agreed to pay out up to $100 to customers in the United States who shopped at a Microsoft Store with a credit or debit card between November 2013 and February 24 of 2017, while lead complainant Mr. Guarisma will receive $10,000. Microsoft is putting up close to $1.2 million to cover the compensation requests, once it is approved by Judge Cecilia Altonaga, with one third of the total potentially being paid out in attorney's fees. "This was a technical bug that we fixed immediately when it was brought to our attention," a Microsoft spokesperson advised. "We're pleased this matter is resolved and are committed to protecting our customers." Microsoft started up its Microsoft Stores initiative in late 2009, attempting to sell Windows PCs, Microsoft products, and other services to customers, imitating Apple's retail effort. So far, Microsoft hasn't managed to emulate the success of the Apple Store, opening 106 branches in the United States and 116 stores worldwide. NETHERLANDS PETROLEUM: Liable for Earthquake Immaterial Damages --------------------------------------------------------------- Mike Corder, writing for The Associated Press, reports that a Dutch court ruled on March 1 that an energy company jointly owned by Shell and ExxonMobil is liable for the psychological suffering of residents in the north of the country whose homes have been damaged by small earthquakes caused by gas drilling. A court in the northern city of Assen held the Netherlands Petroleum Company, known by its Dutch acronym NAM, liable for so- called "immaterial damages" suffered by residents and ordered the company to pay them compensation. The court said that the regular earthquakes create a situation "in which NAM seriously breaches a fundamental right, the right to the undisturbed enjoyment of living." NAM official Thijs Jurgens said in a statement that the company has "always stated that we are responsible for earthquake-related damage" including immaterial damages. The company said it was studying the ruling. It was not immediately clear how much compensation the company will have to pay. That will be decided at a later date on a case- by-case basis. The court case was launched by 127 residents near the northern city of Groningen who claimed they suffered emotionally because of the earthquakes, which have for years rattled homes -- and their nerves. Peter Huitema, a lawyer representing the victims, said he expects the ruling to trigger more claims. "Now that it is clear all residents in the earthquake zone have a right to compensation, many more will seek it," Mr. Huitema said in a statement. While earthquakes caused by the gas drilling are relatively minor, they have caused serious cracks and structural damage to thousands of buildings in the region. NAM already is paying to repair that damage. The court ruling also said that the Dutch state was "careless" from 2013 until the end of 2015 because it ignored advice to order NAM to cut the amount of gas it pumped from the Groningen gas field. However, the court stopped short of declaring the government liable for damage caused as a result of the carelessness. NITRO FLUIDS: Corum Seeks Certification of Operators Class ---------------------------------------------------------- In the lawsuit captioned CODY CORUM, Individually and on behalf of all others similarly situated, the Plaintiff, v. NITRO FLUIDS, LLC, BOBBY LEE KORICANEK and JACKIE R. SIMPSON, JR., the Defendants, Case No. 6:16-cv-00082 (S.D. Tex.), the Plaintiff asks the Court to conditionally certify a class of: "all Operators/Specialists Who Worked for Nitro Fluids, LLC, Bobby Lee Koricanek and/or Jackie R. Simpson, Jr. At Any Time During the Past Three Years and Received a Salary Plus Job Bonuses/Day Rates and No Overtime". The Plaintiff, individually and on behalf of all other similarly situated current and former Operators/Specialists filed the collective action lawsuit pursuant to the Fair Labor Standards Act (FLSA), to recover unpaid overtime wages, liquidated damages, attorneys' fees, and costs owed to current and former Operators/Specialists who worked for Defendants over the past three years and were paid a fixed salary plus job bonuses/day rates but no overtime. The Plaintiffs allege that Defendants' payroll practice of paying all Operators/Specialists a fixed salary plus job bonuses/day rates and no overtime compensation was improper under the FLSA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=MWo8HL6U The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452 1279 Facsimile: (361) 452 1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com OCWEN LOAN: Class Settlement in "Messineo" Granted Final Approval ----------------------------------------------------------------- Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted final approval of class action settlement in the case captioned JOSEPH C. MESSINEO, Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant, Case No. 15-cv-02076-BLF (N.D. Cal.). Joseph C. Messineo sued Ocwen Loan Servicing, LLC, for breach of contract, violation of the Truth in Lending Act, and violation of the Real Estate Settlement Procedures Act. Messineo brought a class action against Ocwen, alleging claims for damages and injunctive relief against Ocwen for failing to properly and timely credit the payments of home mortgage loan borrowers by placing the funds initially into suspense accounts and only later applying the balance of the suspense accounts to interest and principal. On November 11, 2015, the parties participated in mediation with the Honorable Ronald Sabraw (Ret.) of JAMS, and were able to reach a preliminary settlement, which the court approved, conditionally certifying the putative class for settlement purposes only on September 6, 2016. Plaintiffs now move for final approval of class action settlement on behalf of: all persons who are obligors on a loan serviced by Ocwen that is secured by the person's principal dwelling located in the United States or its territories, and which was in an interest only payment status at any time on or after November 1, 2013, and on which a payment did not result in principal curtailment in the month the payment was made even though (a) the payment equaled or exceeded the contractual amount of interest due that month and was made while there was a pre-existing amount being held in suspense by Ocwen with regard to the loan; or (b) the payment exceeded the contractual amount of interest due that month. Under the terms of the preliminarily approved settlement agreement, the parties have agreed that class members who did not exclude themselves would receive two types of relief. The first form of relief is account adjustments, which are intended to provide settlement class members who submitted a valid claim form an opportunity to receive relief under the Audit and Remediation Protocol equal in amount to any actual damages they may have suffered. The second form of relief, the individual allocations requires no action by the settlement class members. Settlement class members who did not exclude themselves are entitled to a pro rata share of the $600,000 settlement fund established by Ocwen, less any attorneys' fees and expenses and service award approved by the court. Such pro rata relief averages to about $57.33 per loan. Messineo and class counsel have petitioned the court for approval of a service award of $5,000 and attorneys' fees and expenses from the settlement fund of $192,002.70, respectively. The court held a fairness hearing on January 27, 2017. Judge Freeman granted plaintiff's motion for final approval and the motion for attorneys' fees, costs, and incentive award. Judge Freeman certified the class for settlement purposes only, final approval is granted as to the parties' settlement agreement, which is fair, adequate, and reasonable in all its terms within the meaning of Fed. R. Civ. P. 23(e), and the Settlement Agreement shall be implemented and consummated according to its terms. The settlement administrator shall pay to class counsel, the sum of $174,000.00 as attorneys' fees, $18,002.66 as reimbursement for their litigation expenses, pay to certified class representative Joseph Messineo the sum of $5,000 as service award in accordance with the terms of the Settlement Agreement. Without affecting the finality of the judgment in any way, the court retains continuing jurisdiction of the action, including, but not limited to, (a) implementation, enforcement, and administration of the settlement agreement, including all releases in connection therewith; (b) resolution of any disputes concerning settlement class membership or entitlement to benefits under the terms of the settlement agreement; and (c) all parties hereto, including members of the class, for purposes of enforcing and administering the settlement agreement and the action generally until each and every act agreed to be performed by the parties has been performed pursuant to the settlement agreement. The action is dismissed with prejudice as against defendant. A copy of Judge Freeman's order dated February 24, 2017, is available at https://goo.gl/covhgA from Leagle.com. Joseph C. Messineo, Plaintiff, represented by Anthony Frank Ventura -- aventura@venturarossi.com -- Daniel Jerome Muller -- dmuller@venturarossi.com -- Sarah E. Hammerstad -- shammerstad@venturarossi.com -- at Ventura Rossi Hersey & Muller LLP Ocwen Loan Servicing, LLC, Defendant, represented by Edward Rick Buell, III -- Mary Catherine Kamka -- mkk@severson.com -- at Severson & Werson; Michael Richard Pennington -- mpennington@bradley.com -- Robert James Campbell -- rjcampbell@bradley.com -- at Bradley Arant Boult Cummings LLP OPTIO SOLUTIONS: Certification of Class Sought in "Gomez" Suit -------------------------------------------------------------- Irma Gomez moves the Court to certify the class described in the complaint of the lawsuit captioned IRMA GOMEZ, Individually and on Behalf of All Others Similarly Situated v. OPTIO SOLUTIONS, LLC d/b/a QUALIA COLLECTION SERVICES, Case No. 2:17-cv-00176-NJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing 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). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, 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, the Plaintiff states. The Plaintiff asserts that the Plaintiff is obligated to move for class certification to protect the interests of the putative class. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 2016 U.S. LEXIS 846 *14-15 (U.S. Jan. 20, 2016) (internal citations omitted) and Chapman should have put a stop to this practice. Unfortunately, they have not, the Plaintiff notes. In dicta, the Supreme Court left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's claim with the court and having the court enter judgment in the plaintiff's favor prior to a class certification motion. Campbell-Ewald Co., 2016 U.S. LEXIS 846 *19 ("We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."). As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=v3qL2iJA The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com PAYPAL: Faces Class Action Over Giving Fund Platform ---------------------------------------------------- Zoe Ferguson, writing for ABC, reports that PayPal is facing a class action in the United States after consumers complained their money was not being delivered to their charities of choice. In December last year, Terry Kass donated $3,250 to 13 charities in America through PayPal's Giving Fund. She chose to use the Giving Fund because they sent her an email saying if she donated through PayPal, they would make an additional 1 per cent donation. And even though all 13 charities of her choice had a profile page on PayPal's Giving Fund platform, only three of them were actually registered with PayPal. Which meant only those three could receive the donations. The remaining $3,150 of Ms Kass's money remained withheld from the intended organisations. Christopher Dore -- cdore@edelson.com -- partner with law firm Edelson in Chicago and the lawyer representing Ms Kass, said the Giving platform was ambiguous, as it claimed consumers could donate to "over a million charities". However, according to Edelson lawyers' findings, only 29,000 charities had registered accounts with PayPal's Giving Fund in 2015. "PayPal is essentially listing many entities on its website that are not actually registered with PayPal Giving," Mr Dore said. Mr Dore said while PayPal's website had a summary for each charity, and indicated that they were trusted partners participating in the program, if they were not properly registered on the Giving platform, then there was "no vehicle for them to receive the funds". On PayPal's website, it states that if a charity does not have a valid PayPal account to receive funds from donors, the Giving Fund would contact the designated charity over a period of 30 days to tell them to update their account and receive the donations. It also said that if PayPal are unable to deliver the donation to the designated charity, it would then deliver it to a similar charity. However, according to the class action complaint, neither the donor nor the designated charities were contacted by PayPal, to let them know that the funds were undeliverable. "Our complaint alleges that the good bulk of the donations she [Ms Kass] was making -- and we believe thousands of other donors around the world -- have made these donations, and the money has not reached the organisation it was intended for," Mr Dore said. Mr Dore said they wanted to find out how many times a case like Ms Kass's had happened and where the money had gone. "Our lawsuit seeks to get the money to where it was supposed to go," he said. PayPal provided a statement to the ABC claiming, "PayPal only recently became aware of this filing and we are reviewing the contents". "PayPal and PayPal Giving Fund foster positive change and significant social impact by connecting donors and charities." Could this happen in Australia? Fundraising Institute Australia CEO Rob Edwards said Australians were fairly safe from a similar situation. "Well for the first instance if you're collecting funds on behalf of individuals in Australia you would normally have to be a charity, there's no holding situation like PayPal seemed to have created here [in Australia], like a separate trust," he said. If you are thinking of donating to a charity, Mr Edwards said to keep in mind that if you are in doubt check with the charity regulator about whether the charity was registered. "More importantly donate to a charity that you know does good in the community in the area that's of particular interest to yourself," he said. "If you see a middle man try and avoid that -- like PayPal -- go directly to the charity you know or if you know the brand, go and donate directly to the charity itself." PHILIP MORRIS: 11 Smoking & Health Class Cases Pending at Feb. 10 ----------------------------------------------------------------- Philip Morris International Inc. disclosed in its Form 10-K filed with the Securities and Exchange Commission on February 14, 2017, for the fiscal year ended December 31, 2016, that as of February 10, 2017, there were a number of smoking and health cases Smoking and Health Litigation) pending against it, its subsidiaries or indemnitees, as follows: -- 63 cases brought by individual plaintiffs in Argentina (35), Brazil (16), Canada (2), Chile (5), Costa Rica (2), Italy (1), the Philippines (1) and Scotland (1), compared with 68 such cases on December 31, 2015, and 63 cases on December 31, 2014; and -- 11 cases brought on behalf of classes of individual plaintiffs in Brazil (2) and Canada (9), compared with 11 such cases on December 31, 2015 and December 31, 2014. The cases in the Smoking and Health Litigation primarily allege personal injury and are brought by individual plaintiffs or on behalf of a class or purported class of individual plaintiffs. Plaintiffs' allegations of liability in these cases are based on various theories of recovery, including negligence, gross negligence, strict liability, fraud, misrepresentation, design defect, failure to warn, breach of express and implied warranties, violations of deceptive trade practice laws and consumer protection statutes. Plaintiffs in these cases seek various forms of relief, including compensatory and other damages, and injunctive and equitable relief. Defenses raised in these cases include licit activity, failure to state a claim, lack of defect, lack of proximate cause, assumption of the risk, contributory negligence, and statute of limitations. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: Awaits Appellate Decision in "Letourneau" Suit ------------------------------------------------------------- Philip Morris International Inc. is awaiting decision in an appeal filed in the lawsuit initiated by Cecilia Letourneau against a subsidiary, according to the Company's February 14, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "In the first class action pending in Canada, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in September 1998, our subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiff, an individual smoker, sought compensatory and punitive damages for each member of the class who is deemed addicted to smoking. The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found our subsidiary and two other Canadian manufacturers liable and awarded a total of CAD 131 million (approximately $100 million) in punitive damages, allocating CAD 46 million (approximately $35 million) to our subsidiary. The trial court found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' addiction. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the size of the addiction class at 918,000 members but declined to award compensatory damages to the addiction class because the evidence did not establish the claims with sufficient accuracy. The trial court ordered defendants to pay the full punitive damage award into a trust within 60 days and found that a claims process to allocate the awarded damages to individual class members would be too expensive and difficult to administer. The trial court ordered a briefing on the proposed process for the distribution of sums remaining from the punitive damage award after payment of attorneys' fees and legal costs." "In June 2015, our subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. Our subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that our subsidiary make the payment into a trust within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking security in both the Letourneau case and the Blais case." "In October 2015, the Court of Appeal granted the motion and ordered our subsidiary to furnish security totaling CAD 226 million (approximately $173 million), in the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $28.7 million) beginning in December 2015 through March 2017. See the Blais description for further detail concerning the security order." "The Court of Appeal heard oral arguments on the merits appeal in November 2016." "Our subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants' alleged misconduct caused all smoking by all class members, (iv) holding that the addiction class members' claims for punitive damages were not time-barred even though the case was filed more than three years after a prominent addiction warning appeared on all packages, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct." Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: Awaits Appellate Ruling in Conseil Quebecois Suit ---------------------------------------------------------------- Philip Morris International Inc. awaits appellate decision in the lawsuit filed by Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais against a subsidiary, according to the Company's February 14, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "In the second class action pending in Canada, Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in November 1998, our subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiffs, an anti-smoking organization and an individual smoker, sought compensatory and punitive damages for each member of the class who allegedly suffers from certain smoking-related diseases." "The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found our subsidiary and two other Canadian manufacturers liable and found that the class members' compensatory damages totaled approximately CAD 15.5 billion, including pre-judgment interest (approximately $11.8 billion). The trial court awarded compensatory damages on a joint and several liability basis, allocating 20% to our subsidiary (approximately CAD 3.1 billion, including pre-judgment interest (approximately $2.4 billion)). In addition, the trial court awarded CAD 90,000 (approximately $68,800) in punitive damages, allocating CAD 30,000 (approximately $22,900) to our subsidiary and found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' diseases. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the disease class at 99,957 members. The trial court ordered defendants to pay CAD 1 billion (approximately $764 million) of the compensatory damage award into a trust within 60 days, CAD 200 million (approximately $153 million) of which is our subsidiary's portion and ordered briefing on a proposed claims process for the distribution of damages to individual class members and for payment of attorneys' fees and legal costs." "In June 2015, our subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. Our subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that our subsidiary make an initial payment within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking an order that defendants place irrevocable letters of credit totaling CAD 5 billion (approximately $3.8 billion) into trust, to secure the judgments in both the Letourneau and Blais cases. Plaintiffs subsequently withdrew their motion for security against JTI-MacDonald Corp. and proceeded only against our subsidiary and Imperial Tobacco Canada Ltd." "In October 2015, the Court of Appeal granted the motion and ordered our subsidiary to furnish security totaling CAD 226 million (approximately $173 million) to cover both the Letourneau and Blais cases. Such security may take the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $28.7 million) beginning in December 2015 through March 2017. The Court of Appeal ordered Imperial Tobacco Canada Ltd. to furnish security totaling CAD 758 million (approximately $579 million) in seven equal consecutive quarterly installments of approximately CAD 108 million (approximately $83 million) beginning in December 2015 through June 2017. In December 2016, our subsidiary made its fifth quarterly installment of security for approximately CAD 37.6 million (approximately $28.7 million) into a court trust. This payment is included in other assets on the consolidated balance sheets and in cash used in operating activities in the consolidated statements of cash flows. The Court of Appeal ordered that the security is payable upon a final judgment of the Court of Appeal affirming the trial court's judgment or upon further order of the Court of Appeal." "The Court of Appeal heard oral arguments on the merits appeal in November 2016." "Our subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants' alleged misconduct caused all smoking by all class members, (iv) relying on epidemiological evidence that did not meet recognized scientific standards, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct." Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: "Bourassa" Class Suit Remains Pending in Canada -------------------------------------------------------------- The class action lawsuit titled Bourassa v. Imperial Tobacco Canada Limited, et al., remains pending in Canada, according to Philip Morris International Inc.'s February 14, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. In the eighth class action pending in Canada, Bourassa v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010, the Company, its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, the heir to a deceased smoker, alleges that the decedent was addicted to tobacco products and suffered from emphysema resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from chronic respiratory diseases allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. In December 2014, plaintiff filed an amended statement of claim. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: "Jacklin" Class Suit Remains Pending in Ontario -------------------------------------------------------------- The class action lawsuit commenced by Suzanne Jacklin in Ontario, Canada, remains pending, Philip Morris International Inc. said in its Form 10-K filed with the Securities and Exchange Commission on February 14, 2017, for the fiscal year ended December 31, 2016. In the ninth class action pending in Canada, Suzanne Jacklin v. Canadian Tobacco Manufacturers' Council, et al., Ontario Superior Court of Justice, filed June 20, 2012, the Company, its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD") resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, heart disease, or cancer, as well as restitution of profits. Plaintiff's counsel has indicated that he does not intend to take any action in this case in the near future. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: "McDermid" Class Suit Remains Pending in Canada -------------------------------------------------------------- The class action lawsuit styled McDermid v. Imperial Tobacco Canada Limited, et al., remains pending in Canada, Philip Morris International Inc. disclosed in its Form 10-K filed with the Securities and Exchange Commission on February 14, 2017, for the fiscal year ended December 31, 2016. In the seventh class action pending in Canada, McDermid v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010, the Company, its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and heart disease resulting from the use of tobacco products. He is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from heart disease allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: Preliminary Motions in "Adams" Suit Remain Pending ----------------------------------------------------------------- Preliminary motions remain pending in the lawsuit styled Adams v. Canadian Tobacco Manufacturers' Council, et al., The, Philip Morris International Inc. said in its Form 10-K filed with the Securities and Exchange Commission on February 14, 2017, for the fiscal year ended December 31, 2016. The Company said: "In the fourth class action pending in Canada, Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada, filed July 10, 2009, we, our subsidiaries, and our indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and COPD resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, emphysema, heart disease, or cancer, as well as restitution of profits." Preliminary motions are pending. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: Sao Paulo Public Prosecutor's Appeal Still Pending ----------------------------------------------------------------- Public Prosecutor of Sao Paulo's appeal in the lawsuit involving the Brazilian subsidiary of Philip Morris International Inc. remains pending, according to the Company's February 14, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "In the second class action pending in Brazil, Public Prosecutor of Sao Paulo v. Philip Morris Brasil Industria e Comercio Ltda., Civil Court of the City of Sao Paulo, Brazil, filed August 6, 2007, our subsidiary is a defendant. The plaintiff, the Public Prosecutor of the State of Sao Paulo, is seeking (i) damages on behalf of all smokers nationwide, former smokers, and their relatives; (ii) damages on behalf of people exposed to environmental tobacco smoke nationwide, and their relatives; and (iii) reimbursement of the health care costs allegedly incurred for the treatment of tobacco-related diseases by all Brazilian States and Municipalities, and the Federal District. In an interim ruling issued in December 2007, the trial court limited the scope of this claim to the State of Sao Paulo only. In December 2008, the Seventh Civil Court of Sao Paulo issued a decision declaring that it lacked jurisdiction because the case involved issues similar to the ADESF case discussed above and should be transferred to the Nineteenth Lower Civil Court in Sao Paulo where the ADESF case is pending. The court further stated that these cases should be consolidated for the purposes of judgment." "In April 2010, the Sao Paulo Court of Appeals reversed the Seventh Civil Court's decision that consolidated the cases, finding that they are based on different legal claims and are progressing at different stages of proceedings. This case was returned to the Seventh Civil Court of Sao Paulo, and our subsidiary filed its closing arguments in December 2010." "In March 2012, the trial court dismissed the case on the merits. In January 2014, the Sao Paulo Court of Appeals rejected plaintiff's appeal and affirmed the trial court decision. In July 2014, plaintiff appealed to the Superior Court of Justice." No further updates were provided in the Company's SEC report. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: Still No Activity in 3 Suits Pending in Canada ------------------------------------------------------------- Three class action lawsuits remain pending while the Plaintiffs' counsel pursue the lawsuit captioned Adams v. Canadian Tobacco Manufacturers' Council, et al., according to Philip Morris International Inc.'s February 14, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. In the third class action pending in Canada, Kunta v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Winnipeg, Canada, filed June 12, 2009, the Company, its subsidiaries, and its indemnitees (Philip Morris USA Inc. and Altria Group, Inc.), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD"), severe asthma, and mild reversible lung disease resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, as well as restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. In September 2009, plaintiff's counsel informed defendants that he did not anticipate taking any action in this case while he pursues the Adams class action filed in Saskatchewan. In the fifth class action pending in Canada, Semple v. Canadian Tobacco Manufacturers' Council, et al., The Supreme Court (trial court), Nova Scotia, Canada, filed June 18, 2009, the Company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and COPD resulting from the use of tobacco products. He is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, as well as restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. No activity in this case is anticipated while plaintiff's counsel pursues the Adams class action filed in Saskatchewan. In the sixth class action pending in Canada, Dorion v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Alberta, Canada, filed June 15, 2009, the Company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic bronchitis and severe sinus infections resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. To date, we, our subsidiaries, and our indemnitees have not been properly served with the complaint. No activity in this case is anticipated while plaintiff's counsel pursues the Adams class action filed in Saskatchewan. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PHILIP MORRIS: Two Appeals in ADESF Suit Remain Pending in Brazil ----------------------------------------------------------------- Two appeals in the lawsuit initiated by The Smoker Health Defense Association remain pending in Brazil, according to Philip Morris International Inc.'s February 14, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. In the class action pending in Brazil, The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts of the Judiciary District of Sao Paulo, Brazil, filed July 25, 1995, the Company's subsidiary and another member of the industry are defendants. The plaintiff, a consumer organization, is seeking damages for all addicted smokers and former smokers, and injunctive relief. In 2004, the trial court found defendants liable without hearing evidence and awarded "moral damages" of R$1,000 (approximately $321) per smoker per full year of smoking plus interest at the rate of 1% per month, as of the date of the ruling. The court did not award actual damages, which were to be assessed in the second phase of the case. The size of the class was not estimated. Defendants appealed to the Sao Paulo Court of Appeals, which annulled the ruling in November 2008, finding that the trial court had inappropriately ruled without hearing evidence and returned the case to the trial court for further proceedings. In May 2011, the trial court dismissed the claim. In February 2015, the appellate court unanimously dismissed plaintiff's appeal. In September 2015, plaintiff appealed to the Superior Court of Justice. In addition, the defendants filed a constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit. Both appeals are still pending. Philip Morris International Inc. is a Virginia holding company incorporated in 1987. The Company's subsidiaries and affiliates and their licensees are engaged in the manufacture and sale of cigarettes, other tobacco products and other nicotine-containing products in markets outside of the United States of America. The Company's products are sold in more than 180 markets, and in many of these markets they hold the number one or number two market share position. The Company has a wide range of premium, mid- price and low-price brands. The Company's portfolio comprises both international and local brands. PIONEER CREDIT: Louisiana Court Certifies Class in "Masson" Suit ---------------------------------------------------------------- The Hon. Ivan L.R. Lemelle grants the Plaintiff's motion for class certification filed in the lawsuit titled SCOTT N. MASSON v. PIONEER CREDIT RECOVERY, INC., AND COAST PROFESSIONAL INC., Case No. 2:16-cv-01887-ILRL-JVM (E.D. La.). "A hearing was held today on Plaintiff's "Motion for Class Certification" (Rec. Doc. 51), for oral reasons given in open court," Judge Lemelle says. "IT IS ORDERED that Plaintiff's motion is GRANTED." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ehxoR2r3 PIVOTAL PAYMENTS: "Abante" Survives Dismissal Bid ------------------------------------------------- Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California denied defendant's motion to dismiss the case captioned ABANTE ROOTER AND PLUMBING, INC., Plaintiff, v. PIVOTAL PAYMENTS, INC., Defendant, Case No. 16-cv- 05486-JCS (N.D. Cal.). Abante Rooter and Plumbing, Inc., is a corporation based in California, with its principal place of business in Alameda County, California. It is a small plumbing company that provides an array of commercial and residential draining and plumbing services, including emergency draining and plumbing services in the San Francisco Bay area. Abante uses several cellular telephone numbers that are assigned to different cities around the San Francisco Bay Area to conduct its business. Pivotal Payments, Inc. is a leading provider of technology-driven global payment processing solutions for small to large enterprises. One of its divisions is Capital Processing Network or CPN, which Pivotal acquired in 2014. CPN provides complete merchant services and credit card processing to point-of-sale businesses across the U.S. One of Pivotal's strategies for marketing its credit card processing services involves the use of an automatic telephone dialing system (ATDS) to solicit business. Abante brought a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. Sections 227, et seq., alleging that Pivotal was responsible for robocalls placed to several cellular telephone numbers used by Abante to communicate with its customers. Abante asserts a claim under 47 U.S.C. Section 227(b)(3)(B) seeking $500 for each call that violates 47 U.S.C. Section 227(b)(1)(A) and an injunction prohibiting further violations of the TCPA and a claim under 47 U.S.C. Section 227(b)(3) for treble damages of up to $1,500 for each call that constitutes a knowing and/or willful violation of 47 U.S.C. Section 227(b)(1)(A). Abante alleges that Pivotal uses the ATDS to make unsolicited calls that play recorded messages to cellular telephone numbers. The recipients of such calls, including Abante have not consented to receive such calls. Pivotal filed a motion to dismiss and contends that Abante has not alleged a concrete injury to demonstrate that it has standing under Article III of the U.S. Constitution and therefore, that the complaint should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Pivotal also argues that Abante fails to state a claim under Rule 12(b)(6) because it has not alleged sufficient facts to support a plausible inference that Pivotal made the robocalls that Abante allegedly received. In addition, Pivotal contends, Abante's claims fail because under 47 U.S.C. Section 227(b)(5), it must allege that it received more than one robocall from defendant to state a claim. According to Pivotal, because Abante alleged that only one call was made to number, the claims fail as to that number. Id. Finally, Pivotal argues that the court should strike certain allegations in the complaint under Rule 12(f) of the Federal Rules of Civil Procedure on the basis that they are irrelevant. Chief Magistrate Judge Spero denied defendant's motion to dismiss. The court rejects Pivotal's argument that the concrete injury requirement is not satisfied because the harm alleged is de minimis. As the court explained in LaVigne, Article III requirements for an injury-in-fact do not contain a minimum cost or harm threshold. Regardless of how small the harm is, it is actual and it is real. The court concludes that Abante has sufficiently alleged concrete injury for the purposes of demonstrating the existence of Article III standing. Also, Abante has alleged detailed facts from which a plausible inference can be drawn that Pivotal was responsible for the robocalls made to Abante. That is all that is required at the stage of the case. Pivotal asks the court to strike certain allegations on the basis that they are irrelevant. The court declines the request. Motions to strike under Rule 12(f) are disfavored. The Court has rejected Pivotal's argument under Section 227(c)(5). A copy of Magistrate Spero's order dated February 24, 2017, is available at https://goo.gl/ggIBF2 from Leagle.com. Abante Rooter and Plumbing, Inc., Plaintiff, represented by Steven M. Tindall -- smt@classlawgroup.com -- at Gibbs Law Group LLP; Adrienne McEntee -- amcentee@terrellmarshall.com --Beth E. Terrell -- bterrell@terrellmarshall.com -- Jennifer Rust Murray -- jmurray@terrellmarshall.com -- at Terrell Marshall Daudt and Willie PLLC; Anthony I. Paronich -- Edward A. Broderick -- at Broderick & Paronich, P.C.; Matthew P. McCue -- at The Law Office of Matthew P. McCue Pivotal Payments, Inc., Defendant, represented by Antony E. Buchignani -- tbuchignani@tocounsel.com -- Amy Elizabeth Burke -- aburke@tocounsel.com -- at Theodora Oringher PC PRIVATE ADVISORY: Wash. Court Stays "Farr" Pending SEC Action ------------------------------------------------------------- Judge Richard A. Jones of the U.S. District Court for the Western District of Washington, Seattle, granted in part and denied in part the defendants' motion to dismiss the case captioned JAMES S. FARR, on behalf of himself and all others similarly situated, Plaintiff, v. PRIVATE ADVISORY GROUP, LLC, et al., Defendants, Case No. 16-1565-RAJ (W.D. Wash.). The Securities Exchange Commission filed an enforcement action against Aequitas Holdings, LLC, in the U.S. District Court for the District of Oregon, to which the district court entered an order establishing a receivership over Aequitas' assets. The receivership order imposes a broad stay of litigation, among of which it would apply to all civil legal proceedings of any nature, including, but not limited to, bankruptcy proceedings, arbitration proceedings, foreclosure actions, default proceedings, or other actions of any nature involving any receivership property, wherever located, and any of the receivership entity, to which such proceedings are referred to as ancillary proceedings. Several months following the entry of the litigation stay, James S. Farr filed a lawsuit against defendants Private Advisory Group, LLC, Douglas Reed Bean, S. Christopher Bean, and Jonathan David Bishop and alleges that defendants participated in and perpetrated a Ponzi scheme involving the sale of securities issued by Aequitas or its affiliated entities. Aequitas owns Private Advisory Group, LLC through a subsidiary. Defendants filed a motion to dismiss, requesting that the court dismiss Farr's action under Federal Rule of Civil Procedure 41(b) because he filed it in violation of the litigation stay. In the alternative, Farr requests that the court stay the action until the District of Oregon lifts the litigation stay. Judge Jones granted in part and denied in part defendants' motion to dismiss. Judge Jones finds that the plain language of the litigation stay encompasses Farr's lawsuit. However, putting aside the question of whether filing the action constitutes a failure to comply with a court order with the meaning of Rule 41, Farr's decision to file the lawsuit is not an extreme circumstance sufficient to invoke the harsh penalty of involuntary dismissal. Farr filed the lawsuit to obtain relief from alleged securities fraud perpetrated by defendants. Even if he did so in violation of the litigation stay, dismissal would not be a proportionate sanction. The court finds that a stay is appropriate. The orderly course of justice weighs heavily in favor of staying Farr's lawsuit. Until further order, the court stays the matter and removes it from the court's active caseload. Within ninety days from the date of the order, the parties shall file a status report that updates the court on any relevant developments in SEC v. Aequitas Mgmt., LLC, No. 16-438-PK. Should there be any significant developments prior to the expiration of ninety days, the parties are permitted to file a motion to lift the stay on that basis. A copy of Judge Jones's order dated February 24, 2017, is available at https://goo.gl/8hFbak from Leagle.com. James S Farr, Plaintiff, represented by: J. Bartin Goplerud, Esq. Michael C. McKay, Esq. SHINDLER, ANDERSON, GOPLERUD & WEESE, P.C. 5015 Grand Ridge, Dr #100 West Des Moines, IA 50265 Tel: 515-223-4567 - and - Bradley Jerome Moore, Esq. STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave W #300 Seattle, WA 98119 Tel: 206-448-1777 Email: brad@stritmatter.com Defendants, represented by Roger D. Mellem -- mellem@ryanlaw.com - - Kristin Nealey Meier --kmeier@ryanlaw.com -- at RYAN SWANSON & CLEVELAND QUEST DIAGNOSTICS: Class Settlement in "Emmons" Has Final OK ------------------------------------------------------------ Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted final approval of class action settlement and made an award of attorneys' fees in the case captioned DOROTHEA EMMONS and LISA STAPLETON, individually, and on behalf of other members of the general public similarly situated, and as aggrieved employees, Plaintiffs, v. QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC., a Delaware corporation; QUEST DIAGNOSTICS INCORPORATED, doing business as QUEST DIAGNOSTICS INCORPORATED OF NEVADA, a Nevada corporation; QUEST DIAGNOSTICS NOCHOLS INSTITUTE, a California corporation; DOES 1 through 10, inclusive, Defendants, No. 1:13-cv-00474-DAD-BAM (E.D. Cal.) Dorothea Emmons and Lisa Stapleton filed a suit against Quest Diagnostics Clinical Laboratories, Inc., Quest Diagnostics Incorporated, and Quest Diagnostics Nochols Institute, for violations of California labor law by failing to (1) pay overtime wages, (2) pay minimum wages, (3) provide meal periods, (4) provide rest breaks, (5) pay all wages owed upon termination, (6) provide accurate wage statements, and (7) pay business-related expenses. Plaintiffs further allege violations of California Labor Code Section 2698 and California Business and Professions Code Section 17200. Plaintiffs sought relief both on their own behalf and on behalf of a proposed main class and two proposed subclasses consisting of non-Floater and Floater Phlebotomists employed by defendants. Preliminary approval of the class action settlement was granted by the court on June 22, 2016. On October 14, 2016, plaintiffs filed a motion for attorneys' fees. Shortly thereafter, plaintiffs filed a motion for final approval of a class action settlement on November 4, 2016. Neither motion was opposed, and on December 20, 2016, the court held a hearing with attorneys Robert Drexler and Ed Santos appearing on behalf of plaintiffs. No appearance was made on behalf of defendants. At the hearing, the court requested plaintiffs submit additional evidence with respect to the issue of commonality, and plaintiffs did so on February 6, 2017. Judge Drozd observes no evidence of collusion between the parties and notes that all factors brought to the court's attention support the granting of final approval of the settlement and certification of the class. Hence, the settlement is approved as fair and reasonable, the class is certified for purposes of the settlement, and class counsel's motion for attorneys' fees, expenses, and class representative payments is granted. Judge Drozd confirms Capstone Law APC as class counsel and approves the requested fee of $783,333, as well as $11,962.74 in costs, both to be paid from the settlement fund; confirms Simpluris, Inc., as the settlement administrator and approves $25,000 in costs and expenses to be paid to Simpluris, Inc. from the settlement fund; finds plaintiffs Emmons and Stapleton are suitable class representatives and orders payment to them of $8,000 each out of the settlement fund; orders that the settlement awards be made and administered in accordance with the terms of the settlement agreement to the 2,707 valid class members; finds that under the California Labor Codes' Private Attorneys General Act, California Labor Code Section 2699, et seq., a PAGA payment of $20,000 is reasonable and apportions that payment as follows: $15,000 to the LWDA and $5,000 to the settlement class members, to be distributed pursuant to the claims process defined the settlement agreement; directs that, in accordance with the settlement agreement and California Labor Code Sections 96.6 and 96.7, any undeliverable settlement checks or settlement checks that remain uncashed after 120 days be paid to the California Department of Industrial Relations Unpaid Wage Fund; enters a final judgment and directs the parties to act in accordance with the terms in the settlement agreement and retains jurisdiction over the matter for the purposes of enforcing the settlement agreement and issuing any orders in connection therewith. A copy of Judge Drozd's order dated February 24, 2017, is available at https://goo.gl/P1GpAE from Leagle.com. Plaintiffs, represented by Bevin Elaine Allen Pike -- Bevin.Pike@CapstoneLawyers.com -- Jonathan Sing Lee -- Jonathan.Lee@CapstoneLawyers.com -- Robert J. Drexler -- Robert.Drexler@CapstoneLawyers.com -- at Capstone Law APC Defendants, represented by Erica C. Parks -- at Lee Tran & Liang LLP; Jonathan M. Brenner -- jbrenner@sidley.com -- Aimee Grace Mackay -- amackay@sidley.com -- at Sidley Austin LLP SELF-RELIANCE INC: Care Staff Class Certified in "Wengerd" Suit --------------------------------------------------------------- The Hon. Thomas M. Rose grants the Plaintiffs' motion to conditionally certify collective action and for court-authorized notice filed in the lawsuit entitled Cindy Wengerd, et al. v. Self-Reliance, Inc., Case No. 3:15-cv-00293-TMR-SLO (S.D. Ohio). The Plaintiffs have sought an order conditionally certifying a collective action for unpaid overtime wages under the Fair Labor Standards Act, defined as: All persons who are or have been employed by Self-Reliance as Direct Care staff in Ohio, or other job titles performing similar job duties, who did not receive premium overtime pay at a rate of not less than one and one-half times their regular rate of pay when they worked more than forty (40) hours in a workweek, at any time from August 25, 2012 through the entry of final judgment. Self-Reliance is an Ohio Corporation, providing in-home family support for children and adults with challenging behaviors, developmental disabilities and other disabilities. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=SlekNWAb SI WIRELESS: Seeks Arbitration in Automated Text Class Action ------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Madison-St. Clair Record, reports that a cellphone company seeks to enforce arbitration in a customer's class action alleging she received automated text messages instructing her to make payments or risk having her services suspended. Tennessee resident Andrea Campbell, individually and on behalf of all others similarly situated, filed the complaint on Dec. 8 in the U.S. District Court for the Southern District of Illinois against SI Wireless LLC for allegedly violating the Telephone Consumer Protection Act. Ms. Campbell alleges she fell behind on her payments "at some point in 2016" and began receiving automated text messages demanding she make a payment or risk having her service suspended. She alleges the messages were sent at 7 a.m., "making them more disruptive than helpful." Ms. Campbell claims she revoked her consent for the automated messages but was told there was no way to stop the messages. SI Wireless filed a motion to dismiss the complaint for improper venue or, in the alternative, to compel arbitration on Jan. 5 through attorney Lorna Geiler of Meyer Capel in Champaign, Ill. The defendant argues that its cellular telephone service agreement requires arbitration of any dispute "arising from or relating in any way" to the services provided. It also argues that the agreement sets the venue for arbitration in McCracken County, Ky., or Madison County, Tenn. "Campbell's claim against SI Wireless is clearly subject to the parties' agreement to arbitrate such disputes," the motion states. In its memorandum in support of the motion to dismiss, the defendant adds that after the claim was initially made, the parties discussed possible settlement. "During these discussions, SI Wireless informed Plaintiff that it believed arbitration was the appropriate avenue of relief, if any," the memorandum states. However, the defendant argues that it later became clear that the settlement discussion would not proceed further. Ms. Campbell filed a brief in opposition to the motion to dismiss on Feb. 9 through attorney Jeremy Glapion -- jmg@glapionlaw.com -- of The Glapion Law Firm LLC in Wall, NJ. She argues that SI Wireless attempted to amend her phone contract by adding the arbitration clause but failed to provide reasonable notice of the amendment. She adds that the defendant allegedly misled her and other customers regarding the added clause. "Defendant appears to have intentionally made it difficult for its customers to figure out what additions and changes were made," the brief states. Campbell alleges customers were notified of the amendment through a text message, which included a link. But she claims no mention of the arbitration clause was provided in the link. "Instead, Defendant chose to be vague, at best, and intentionally misleading, at worst. It is also possible that Defendant never actually sent notice of the added Arbitration Clause and is attempting to use its August 25 notice of some other change to fix that mistake," the brief states. The plaintiff argues that SI Wireless' decision to notify customers exclusively by text message is unreasonable. "Even if Plaintiff or other customers had some reason to believe that Defendant's text message did not actually refer to the terms at the link it contained, and were inclined to search further, Defendant sent the link via text message. "Because of the very nature of text messages, a recipient would be required to either read through the agreements on her cell 5" cell (sic) phone screen -- give or take an inch -- or access a computer and manually enter the link into a web browser, adding yet another step in the process of figuring out what Defendant added," the brief states. "Thus Defendant expected its customers to click through its links and read through its lengthy policy documents in their entirety on their cell phones, without providing any guidance as to the changes," it continues. However, Ms. Campbell argues that even if the customers were given proper notice, arbitration is not required because the clause "expressly excludes from its terms 'actions relating to failure to timely pay billed charges, such as service charges and related fees and taxes.'" "This was presumably an effort by Defendant to avoid the mutuality of arbitration by allowing only the most common claims it may bring to be brought in court. "However, what's good for the goose is good for the gander. Defendant sent unstoppable text messages to Plaintiff's cellular telephone in an effort to make Plaintiff pay up on her allegedly past due account," the brief states. U.S. District Court for the Southern District of Illinois 3:16-cv- 1320 SOUTHERN KOMFORT: "Bryant" Labor Case to Recover Overtime Pay ------------------------------------------------------------- Christina Bryant, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. Southern Komfort Kitchen, LLC, Defendant, Case No. 4:17-cv-00430, (S.D. Tex., February 10, 2017), seeks unpaid wages at the mandated minimum wage and overtime rates, liquidated damages, reasonable attorney's fees, costs and expenses of this action, all misappropriated tips and such other relief under the Fair Labor Standards Act. Defendant operates Southern Komfort Kitchen, a restaurant in La Porte, Texas where Plaintiff was employed as a waitress. She claims to have worked 35 to 45 hours per week without overtime pay. Plaintiff is represented by: Todd Slobin, Esq. Ricardo J. Prieto, Esq. Dorian Vandenberg-Rodes, Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 Email: tslobin@eeoc.net rprieto@eeoc.net drodes@eeoc.net SPEARMINT RHINO: Underpays Strip Club Dancers, "Ortega" Suit Says ----------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Spearmint Rhino strip clubs pay dancers less than minimum wage, take some of their tips, keep inaccurate records and won't reimburse them for work expenses, women say in a federal class action in Riverside, Calif. The case is captioned, ADRIANA ORTEGA, individually and on behalf of all others similarly situated, Plaintiff, v. THE SPEARMINT RHINO COMPANIES WORLDWIDE, INC., SPEARMINT RHINO CONSULTING WORLDWIDE, INC., and MIDNIGHT SUN ENTERPRISES, LLC, Defendants, Case No. 5:17-cv-00206 (C.D. Cal., February 3, 2017). Attorneys for Plaintiff ADRIANA ORTEGA, individually and on behalf of all others similarly situated: Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: sliss@llrlaw.com - and - Matthew D. Carlson, Esq. LICHTEN & LISS-RIORDAN, P.C. 466 Geary St., Suite 201 San Francisco, CA 94102 Telephone: (415) 630-2651 Facsimile: (617) 995-5801 E-mail: mcarlson@llrlaw.com STEVEN SCHUSS: MacNeill Attorneys Analyze Med Mal Case Ruling ------------------------------------------------------------- Gary L. Riveles, Esq., and Ethan Lillianthal, Esq., of MacNeill, O'Neill & Riveles, LLC, in an article for Law Journal Newsletters, report that it has long been axiomatic that a plaintiff may not recover twice in tort for the same injury. This directive makes intuitive sense. Although a number of parties may have contributed to the plaintiff's injury, the injury itself is a discrete measureable event. Insofar as the aim of awarding compensatory damages is to make the injured party whole, a duplicative or excessive award is plainly improper. Indeed, such an award goes beyond the scope of a plaintiff's injury and creates a double recovery. Tort law is designed to compensate injured parties for their injuries, not provide a windfall. Med Mal Cases In medical malpractice cases, this axiom is especially important to consider because of the various consequences to the potentially liable parties, including national reporting requirements, local reporting requirements, potential regulatory or licensing issues, certifications and privileges, and increasing insurance premiums. In such cases, plaintiffs often receive care from a number of practitioners acting in multiple specialties over an extended period of time. Moreover, the injuries complained of may manifest themselves years after the alleged malpractice was committed. As injuries emerge, new parties may be implicated. Both the duration of the course of treatment and the potential delayed implication of new parties complicate apportionment. Courts are often forced, therefore, to find creative solutions to ensure that each party pays their fair share to make the plaintiff whole. Further complicating this dynamic, the damages ultimately awarded must contemplate and valuate any future medical expenses the injured party will incur and any potential loss of income that will arise from their continuing injuries. For this reason, both parties engage in complex, expensive and time-consuming discovery, and seek out the assistance of experts to come to a reasonable case valuation. Given the complexity and nuance of this process, it would be especially problematic to allow a double recovery to improperly elevate an injured party's recovery. Such an outcome would circumvent and eviscerate the entire, normally entertained, valuation process. However, a recent New Jersey Appellate Court decision may have created a pathway for plaintiffs to take advantage of ambiguities in New Jersey's statutory scheme and case law to obtain a double recovery in certain situations. Specifically, in Kranz v. Schuss, ___ N.J. Super. ___ (App. Div. 2016), the Appellate Division held, as a matter of first impression, that New Jersey defendant doctors were not entitled to a credit or offset representing the value of a prior New York settlement concerning the identical claims against prior treating physicians. The Appellate Division instead held that the Defendants were entitled only to an apportionment of liability at trial. However, in that particular case, it would clearly result in a double recovery for the plaintiff. In so holding, the Appellate Division failed to consider two crucial implications of the decision. Initially, had the plaintiff filed the matter in New Jersey first and thereafter sought a pre-trial credit in New York, it would have been granted as a matter of right. Moreover, given the facts in Kranz, the court's holding places the New Jersey defendants in the untenable position of having to accept liability in order to obtain an apportionment. It is not difficult to envision a scenario where a defendant would opt to permit a double recovery in order to preserve his theory of the case. Therefore, while the facts in Kranz are somewhat unique, the windfall potential exists for plaintiffs who may use it to capitalize on similar facts. It could also lead to forum shopping in similar circumstances. The Kranz Facts In Kranz, the infant plaintiff, Rachel Kranz, sought damages for failure to timely diagnose hip dysplasia. Rachel received care from doctors in both New York and New Jersey during the time period relevant to her complaint. However, because each state lacked personal jurisdiction over the out-of-state defendants, all potential defendants could not be included in the same action. Therefore, Rachel first filed suit in New York against the doctors who had treated her from the time of her birth in 2003 until March 2004. Her complaint sought damages for injuries arising from the failure of the New York defendants to timely diagnose her hip dysplasia. Rachel and the New York defendants settled the case before trial for $2 million by way of a Compromise Order, which contained a hold harmless provision. After the New York matter was resolved, Rachel brought suit in New Jersey against the defendant doctors by whom she had subsequently been treated. The New Jersey case remains ongoing. The New Jersey defendants became involved in Rachel's care in January 2005. Approximately one year later, New Jersey defendant Dr. Schuss diagnosed Rachel's hip dysplasia. Rachel seeks damages from the New Jersey defendants for the identical injuries complained of in the prior New York matter. Specifically, injuries suffered as a result of the ongoing failure to timely diagnose her hip dysplasia. In fact, Rachel attached an expert report relied upon to settle the New York case to her Answers to Interrogatories in the New Jersey Matter. Though she proffered an additional expert report in the New Jersey matter, it was offered by the same expert and alleged the same injuries. In the New Jersey matter, Rachel's theory of liability deviates little from her theory in New York: specifically, that the defendant doctors failed to timely diagnose her hip dysplasia, causing her to suffer injuries. The New Jersey defendants countered that Rachel's condition was not diagnosable prior to Dr. Schuss's January 2006 diagnosis. The defense experts in the New Jersey action opined that hip dysplasia is typically not diagnosable in infants younger than two years of age. The New Jersey defendants sought a credit from the trial court in the amount of $2 million, representing the value of the funds plaintiff already received in the New York matter. The logic underlying this request is simple and intuitive: Rachel received a settlement in the New York Matter to compensate her for the entirety of her alleged injuries and, therefore, if a jury values her injuries at a number greater or less than that amount, it should be taken into account with respect to any damage award against the New Jersey Defendants. It is undisputed that the settlement in New York was reached without consideration for any liability that may be subsequently imposed on the New Jersey defendants. If Rachel were permitted to collect a second full award for these injuries, she would receive a considerable and inequitable windfall. The credit, therefore, would ensure that Rachel could not collect twice for her injuries. The trial court granted the credit requested by the New Jersey defendants because the New York settlement already compensated Rachel for the exact claims and injuries complained of in the New Jersey matter. Thereafter, Rachel appealed the trial court' s grant of the pre-trial credit. A Matter of First Impression As observed by the Appellate Division, and agreed by both parties, the unique posture of this case has not yet been addressed by the courts in New Jersey. Initially, although both the New York and New Jersey matters involve the same injuries, the respective defendants cannot be tried together because New York does not have personal jurisdiction over the New Jersey defendants and New York does not have jurisdiction over the New Jersey defendants. This dynamic creates unique complications in New Jersey that are not present in New York. Indeed, under New York's Release or Covenant Not to Sue statute, the outcome is clear cut. The statute prescribes a uniform approach to the facts presented in this case. Specifically, the statute provides: When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest. Notably, the New York framework allows for a credit as between two defendants as long as the injuries alleged are the same. This credit is awarded in New York notwithstanding the posture of the respective defendants. By contrast, New Jersey's statutory framework for preventing double recovery varies heavily, depending on the posture of the case. New Jersey's Collateral Source statute, N.J.S.A. 2A:15-97, applies to civil actions "brought for personal injury or death[.]" As explained in Perreira v. Rediger, 169 N.J. 399, 409 (2001), the primary purpose of the Collateral Source statute is to prevent an injured party from being compensated twice for the same injury. Therefore, the statute requires that a plaintiff disclose to the court any "benefits [received] for the injuries allegedly incurred from any other source other than a joint tortfeasor[,]" and, where the amount of those " benefits" "duplicates any benefit contained in the award[,]" the court should deduct it from plaintiff's recovery. N.J.S.A. 2A:15-97. However, unlike New York's Release or Covenant Not to Sue statute, the New Jersey statute is narrow in its definition of benefits. Notably, these " benefits" include payments that were covered by health insurance, less insurance premiums paid by the plaintiff, or a member of his or her family. Also included are social security disability payments, but "only those future payments of social security benefits that are neither contingent nor speculative nor subject to change or modification may be included." Woodger v. Christ Hosp., 364 N.J. Super. 144, 153-54 (App. Div. 2003) (citing Parker v. Esposito, 291 N.J. Super. 560, 565-566 (App. Div.), certif. denied, 146 N.J. 566 (1996)). Expressly excluded from the definition of "benefits" are those paid out by joint tortfeasors. N.J.S.A. 2A:15-97. Nevertheless, New Jersey case law provides that a trial defendant is entitled to a set-off for the equitable share of liability apportioned to a settled co-defendant by the jury. Under the Comparative Negligence Act, in order for the jury to allocate a percentage of fault, the defendant must have been a "party" to the action. The facts in the Kranz case are unique, therefore, because the New York Defendants are not, and could not be, parties to the New Jersey action. Initially, it is uncontested that New Jersey lacks personal jurisdiction. Moreover, the New York Defendants already settled with Rachel for $2 million prior to the initiation of the New Jersey action . As the New York Defendants are not parties to the New Jersey action, they are, by definition, neither co-parties nor joint tortfeasors. There is, therefore, no clear directive as to how to treat the $2 million New York settlement. The Appellate Court's Holding The Appellate Court held that while the New Jersey defendants are entitled to an apportionment at trial, there was no basis for the trial court's grant of a credit. The Appellate Court reasoned that the New Jersey defendants are best treated as joint tortfeasors because it is alleged that the New York and New Jersey defendants' collective negligence delayed the diagnosis of Rachel's hip dysplasia. If all defendants were parties to one suit, liability would be apportioned among them. In the Appellate Division's view, the fact that the New York defendants could not be included in the same action should not change this dynamic. The court relied heavily on Carter v. University of Medicine and Dentistry of New Jersey, 854 F. Supp. 310 (D.N.J. 1994), in reaching this conclusion. In Carter, the plaintiffs filed two concurrent actions alleging a failure to diagnose and treat their son's congenital brain condition. The plaintiffs' son had been treated by doctors in New Jersey until he was approximately six months old. Thereafter, the plaintiffs moved to Maryland and their son was treated by doctors there. One action, filed in the District Court in New Jersey, alleged that New Jersey doctors involved in the infant child's care failed to diagnose a congenital brain disease. The second action was filed in Washington, DC, alleging the same failure to diagnose, but naming the Washington, DC, defendants involved in the infant's care. The plaintiff settled with the Washington, DC, defendants. Thereafter, the New Jersey defendants moved in limine to have a jury apportion fault as between the settling and non-settling defendants. The plaintiffs argued that apportionment was improper because the settling defendants were not joint tortfeasors because they were not parties to the New Jersey action. In rejecting this argument, the Carter court reasoned that jurisdictional happenstance should not be a bar on apportionment where the claims at issue are identical and interwoven. The Kranz court found these facts to be nearly identical to those before it, and persuasive in resolving the apportionment issue. This decision, however, failed to account for the unique circumstances in the Kranz case: namely, that the asserted defense by the New Jersey defendants is that the condition was not diagnosable, meaning that they could not simultaneously point the finger at the prior treating New York physicians, as that would undercut the defense. Without being able to criticize those doctors, even if the court would allow their liability to be put before the jury on the verdict sheet (an unlikely occurrence as they were not joint tortfeasors as understood in New Jersey law), there could be no apportionment, ensuring a double recovery. Shopping for Double Recovery The Appellate Court's over-reliance on Carter has a number of troubling implications. To begin with, the Appellate Division did not adequately consider the consequences of apportionment in the Kranz matter. Indeed, unlike in Carter, the New Jersey defendants in Kranz have utilized a defense that is wholly inconsistent with apportionment of liability with the New York defendants. Specifically, the New Jersey defendants claim that the plaintiff's hip dysplasia was not diagnosable until she was two years of age. Any liability attributed to the New York defendants would necessarily also mandate a finding of negligence against the New Jersey defendants. Therefore, the New Jersey defendants have to either accept liability in order to obtain an apportionment, or risk Rachel receiving a duplicative award without the benefit of a credit. Moreover, and perhaps of more concern, plaintiffs' counsel was able to create this dynamic by taking advantage of the distinctions between New York and New Jersey law. Indeed, had Rachel first filed suit in New Jersey and settled the matter, the New York defendants would have been entitled to a credit for the value of the New Jersey settlement as a matter of right. However, because the plaintiffs filed in New York first, they were able to avoid New York's Release or Covenant Not to Sue statute. Permitting the defendants a credit in the instant case would dissuade plaintiffs from "forum shopping" by first filing a lawsuit in New York and then coming to New Jersey, when possible, and filing a second lawsuit in New Jersey with the hopes of receiving a double recovery for the same injuries. New Jersey public policy should prohibit plaintiffs from doing in this case in New Jersey what they could not do in New York. It undermines the exclusively compensatory nature of tort law to allow this form of double recovery. Permitting this type of decision encourages forum shopping and leads to unfair results. Conclusion The Appellate Court's decision in Kranz is a significant victory for the plaintiffs' bar. Indeed, it is not difficult to imagine scenarios wherein a plaintiff who has treated in both New York and New Jersey (not an unusual situation, as many New Jersey patients cross the rivers for care in New York or Philadelphia) may use this decision to seek a double recovery. In failing to account for the unique facts present in Kranz, the Appellate Division has invited plaintiffs to do so. Counsel for the Defendants in Kranz have recently filed a Petition for Certification to the New Jersey Supreme Court to appeal this decision. T-MOBILE USA: Stiffs Sales Reps for Overtime, "Salgado" Suit Says ----------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that T- Mobile stiffs sales reps, assistant managers and other hourly employees for overtime and violates other labor laws, a class action claims in Kern County Court in Bakersfield, Calif. The case is captioned, Emmanuel Salgado, on behalf of himself and all others similarly situated, Plaintiffs, v. T-Mobile USA, Inc., a Delaware corporation; and Does 1 to 100, inclusive, Defendants, Case No. BCV-17-100243, Superior Court of the State of California, for the County of Kern, February 3, 2017. Attorneys for Plaintiff: Kevin T. Barnes, Esq. Gregg Lander, Esq. LAW OFFICES OF KEVIN T. BARNES 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5664 Tel: 323-549-9100 Fax: 323-549-0101 E-mail: Barnes@kbarnes.com - and - Raphael A. Katri, Esq. LAW OFFICES OF RAPHAEL A. KATRI 8549 Wilshire Boulevard, Suite 200 Beverly Hills, CA 90211-3104 Tel: 310-940-2037 Fax: 310-733-5644 E-mail: RKatri@socallaborlawyers.com TAKATA CORP: Criminal Plea Deal to Impact Airbag Civil Suits ------------------------------------------------------------ Amanda Bronstad, writing for The National Law Journal, reports that lawyers with pending civil suits related to faulty Takata airbags are trying to put the brakes on the manufacturer's $1 billion criminal plea deal, claiming it will end up being used as a tool to release its U.S. subsidiary and several automakers from civil liability. Attorneys Kevin Dean -- kdean@motleyrice.com -- a member of Motley Rice in Mount Pleasant, South Carolina, and Thomas Willingham -- tomwillingham@popemcglamry.com -- of Atlanta's Pope McGlamry, raised their concerns in a pair of objections filed on Feb. 27 before U.S. District Judge George Caram Steeh of the Eastern District of Michigan. Judge Steeh held a hearing on Feb. 27 on whether to preliminarily approve the Takata agreement. The objections, both of which invoked their clients' rights to be heard under the Crime Victims' Rights Act, are an unusual development in a mass tort. But criminal deals involving automotive safety recalls have been on the rise, with similar agreements involving Volkswagen AG, General Motors Corp. and Toyota Motor Corp. The objecting lawyers, who represent individuals who have suffered injuries or lost relatives as a result of the exploding Takata airbags, have asked Judge Steeh to hold off on approving the deal until a presentence report has been prepared, including potential victim impact statements. They claim that while Takata Corp. is "falling on a sword," the plea agreement is "wrought with inaccurate, incomplete and misleading assertions of fact," many of which will be used in pending civil cases to shield its U.S. subsidiary and the automakers from liability. "The government has unfortunately been misled and misinformed, as well as potentially had highly relevant documents withheld from it or overlooked, showing that other entities are as culpable or more so in some cases for the conduct at issue," they wrote. It's not an entirely hypothetical argument. In a status report filed in February in multidistrict litigation in Miami, seven automakers assert that the Jan. 13 plea agreement, under which Takata agreed to pay $850 million in restitution, "significantly undermines" related civil claims brought on behalf of consumers. "The plea agreement confirms, among other things, that Takata engaged in a fraudulent scheme to keep the automotive defendants from knowing what Takata knew about the inflators and their potential to rupture," they wrote. Peter Prieto, lead counsel in the multidistrict litigation, fired back in his own status report that the automotive defendants "overstate the significance of Takata's recent plea agreement to these proceedings." "The evidence plaintiffs already have collected in this litigation establishes that the automotive defendants, staffed with teams of sophisticated engineers, were far from innocent, unsuspecting victims, as they now claim to be," wrote Mr. Prieto of Miami's Podhurst Orseck. For its part, Takata's U.S. subsidiary, TK Holdings Inc., based in Dearborn, Michigan, said the plea deal "should have a limited (if any) impact" on the multidistrict litigation given that it says nothing about civil liability. A hearing was scheduled for Feb. 28 before U.S. District Judge Federico Moreno of the Southern District of Florida. TSUNAMI IN ST. PETERSBURG: Vongkultrup Seeks to Certify Class ------------------------------------------------------------- The Plaintiffs in the lawsuit titled TOBY VONGKULTRUP, on behalf of themselves and on behalf of all others similarly situated, et al. v. TSUNAMI IN ST. PETERSBURG, et al., Case No. 8:16-cv-03327- JDW-AAS (M.D. Fla.), move the Court to conditionally certify class and authorize them to mail and e-mail notice of the lawsuit and consent to become a party plaintiff form to: All "hibachi chefs" who worked for Defendant within the last three years who were not paid proper overtime wage compensation during any work week of their employment within the applicable statute of limitations period. The collective action is brought to enforce the overtime wage provisions of the Fair Labor Standards Act. The Defendants operate a Japanese steakhouse restaurant in St. Petersburg, in Pinellas County, Florida. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=LAacrIyg The Plaintiffs are represented by: Donna V. Smith, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Telephone: (813) 337-7992 Facsimile: (813) 229-8712 E-mail: dsmith@wfclaw.com rcooke@wfclaw.com The Defendants are represented by: Xuesong Alex Yu, Esq. LAW OFFICE OF ALEX YU, P.A. Somerset Professional Park 15255 Amberly Drive Tampa, FL 33647 Telephone: (813) 514-2885 Facsimile: (866) 436-5259 E-mail: ayu@alexyulaw.com UNDER ARMOUR: Bloated Stock Price Hit in "Breece" SEC Suit ---------------------------------------------------------- Brian Breece, individually and on behalf of all others similarly situated, Plaintiff, v. Under Armour, Inc., Kevin A. Plank and Lawrence P. Molloy, Case No. 1:17-cv-00388, (D. Md., February 10, 2017), seeks damages, including interest, reasonable costs and attorneys' fees and equitable/injunctive or other relief under the Securities Exchange Act. Under Armour is engaged in the manufacturing, development, marketing and distribution of sportswear, performance and casual apparel, footwear and accessories. Under Armour is headquartered in Baltimore, Maryland. Defendants made false and misleading statements and failed to disclose 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 bankruptcy of The Sports Authority, one of its major retailers. Plaintiff claims to have purchased Under Armour stock at artificially inflated prices, thus causing the damages. Plaintiff is represented by: Charles J. Piven, Esq. Yelena Trepetin (28706) BROWER PIVEN - A PROFESSIONAL CORPORATION 1925 Old Valley Road Stevenson, MD 21153 Tel: (410) 332-0030 Fax: (410) 685-1300 Email: piven@browerpiven.com trepetin@browerpiven.com - and - Mark C. Gardy, Esq. James S. Notis, Esq. Jacob E. Lewin, Esq. GARDY & NOTIS, LLP Tower 56 126 East 56th Street, 8th Floor New York, NY 10022 Tel: (212) 905-0509 Fax: (212) 905-0508 UNITED STATES: Names of Detainees in Travel Ban Case Turned Over ---------------------------------------------------------------- Andrew Denney, writing for Law.com, reports that the Trump administration has turned over a list of the names of 746 people who were detained at airports following its executive order to restrict travel, but attorneys for plaintiffs challenging the order in a New York federal court say the list may be incomplete. Eastern District Judge Carol Bagley Amon issued an order for the government to produce a list of those detained at ports of entry in the final hours of Jan. 28, when Eastern District Judge Ann Donnelly issued a stay on the administration's executive order, and through Jan. 29. President Donald Trump's controversial executive order suspended the United States' refugee program and blocked entry to travelers from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Plaintiffs' attorneys said on Feb. 24 during a hearing before Judge Amon at the Eastern District courthouse in Brooklyn that the government did produce a list of names of visa holders detained under the executive order and that attorneys for both sides worked together to facilitate the return of two people deported under the order to the United States. But Muneer Ahmad of the Jerome N. Frank Legal Services Organization at Yale Law School, a member of the plaintiffs' legal team, said that the government's list contained only names, not nationalities and flight numbers, or whether they were denied entry to the country, forcing plaintiffs' attorneys to play a "game of 'Go Fish'." "They have a panoply of information about these people," Ahmad said, who said the government could produce the additional information in a "matter of keystrokes." Additionally, Judge Amon approved on Feb. 23 the government's motion for a protective order to block disclosure of the list it provided, though attorneys said that all of the people on the list had visas and that most had green cards. But Ahmad said that attorneys had identified at least 10 travelers who were held by U.S. Customs and Border Protection agents but were not included on the government's list, among them Sara Yarjani, a 35-year-old Iranian citizen who says she was detained for almost 23 hours before she was deported on Jan. 28 at roughly 10:30 p.m. Eastern Standard Time, or about one hour after Donnelly issued the stay. Joshua Press, who appeared at the hearing for the Justice Department, said the "vast majority" of the names of the list were allowed to enter the country, though he declined to offer specifics when asked by reporters following the hearing. Regarding Mr. Ahmad's statement that the government's list consisted only of names and no other information, Mr. Press said the list is "literally everyone who had to wait at a port of entry" and that "an hour after receiving the list they wanted another list." "The problem is the government is not omniscient, as these requests seem to contemplate," Mr. Press said. At one point in the hearing, there was a brief but testy exchange between Ahmad and Press over the issue of the list that lead to Judge Amon to interrupt the attorneys and inquire whether they "want to carry on this private conversation." "I can leave if you want," Judge Amon said. Before adjournment, the plaintiffs agreed to furnish the government with the names of those who had contact with the CBP as part of the executive order who are not included on the list. "Everyone is better off if you can come to some mutual agreement," Judge Amon said. In addition to the Jerome N. Frank Legal Services Organization at Yale Law School, the plaintiffs in the New York travel ban case are represented by the American Civil Liberties Union, the New York Civil Liberties Union, the National Immigration Law Center, the International Refugee Assistance Project and Kilpatrick Townsend & Stockton. Steven Platt also appeared for the Justice Department. Trump has said that he plans to issue a new executive order that had previously been expected on the week beginning on Feb. 19, but The Associated Press reported on Feb. 22 that the release of the executive order was held over an additional week. In a brief filed on Feb. 16 with the U.S. Court of Appeals for the Ninth Circuit, the government said that the president plans to rescind the first order and replace it with a new "substantially revised" order that addresses the court's constitutional concerns. UNITED STATES: Trump Strikes at 9th Cir. After Travel Ban Ruling ---------------------------------------------------------------- Ross Todd, writing for Law.com, reports that it's pretty clear the Trump administration isn't fond of the U.S. Court of Appeals for the Ninth Circuit. President Donald Trump took to Twitter to say "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" after a Ninth Circuit panel found his executive order suspending immigration from seven predominantly Muslim countries unconstitutional. The president took aim at the court again on Feb. 16. Between announcing his nomination of R. Alexander Acosta as labor secretary and referring to his White House as a "fine-tuned machine" at a Feb. 16 press conference, Trump took a shot at the Ninth Circuit for being "overturned at a record number. "I have heard 80 percent, I find that hard to believe, that is just a number I heard, that they are overturned 80 percent of the time," said Trump, according to a transcript. "I think that circuit is -- that circuit is in chaos and that circuit is frankly in turmoil." Despite its reputation as liberal outlier, the Ninth Circuit has in recent years fared better in seeing its decisions upheld at the U.S. Supreme Court than it did in the past. According to an analysis of decisions from 2010-15 from Scotusblog, the Ninth Circuit was flipped 79 percent of the time by the high court, as compared to 87 percent for the Sixth Circuit and 85 percent for the Eleventh Circuit. Trump administration lawyers also took aim at the Ninth Circuit in their own way on Feb. 16, but in much less colorful language than the president's. In court papers filed on Feb. 16 shortly after the president spoke, DOJ lawyers wrote that a Ninth Circuit panel "upend[ed] fundamental principles of judicial restraint" by keeping in place a ruling barring enforcement of the executive order. DOJ lawyers asked the full court to vacate the Ninth Circuit panel opinion from Feb. 9 and forego rehearing the appeal while the executive order is revised "to eliminate what the panel erroneously thought were constitutional concerns." The Feb. 16 spotlight on the court comes after an unidentified Ninth Circuit judge on Feb. 10 called for a vote on whether to rehear the travel ban appeal en banc. Both the Trump administration and the plaintiffs in the case -- the states of Washington and Minnesota -- said in court filings on Feb. 16 they'd prefer that the court not take the case en banc at this point. "Under the unusual circumstances presented here," the DOJ lawyers wrote, "the government respectfully submits that the most appropriate course would be for the court to hold its consideration of the case until the president issues the new order and then vacate the panel's preliminary decision." Lawyers for the states also urged the court to not grant en banc review, claiming that the panel decided correctly to leave in place a ruling from U.S. District Judge James Robart of the Western District of Washington blocking the executive order. "Granting en banc review would simply delay the merits of the preliminary injunction appeal to no substantive purpose," they wrote. On Feb. 16 the Ninth Circuit stayed proceedings, referencing the government's statement that Trump plans to issue a new executive order. UNITED STATES: Data Breach Class Action Against VAMC Dismissed -------------------------------------------------------------- Teri H.P. Nguyen, Esq., of McDermott Will & Emery, in an article for The National Law Review, reports that in a decision consolidating two cases involving two veterans and two separate incidences of data breaches at the Veterans Affairs Medical Center (VAMC) in South Carolina, the US Court of Appeals for the Fourth Circuit clarified the applicable standing requirement for data privacy actions and affirmed the dismissal of both suits. Beck et al. v. Robert A. McDonald, Case No. 15-1395; Watson v. Robert A. McDonald, Case No. 15-1715 (4th Cir., Feb. 6, 2017) (Diaz, J). Relying on the 2013 Supreme Court of the United States decision in Clapper v. Amnesty International, the Court explained that standing based on a threatened injury of future identity theft is too speculative absent evidence or allegation that the data thief intentionally targeted, accessed and/or misused the personal information compromised in the breach. Beck, a veteran, filed a putative class-action suit following the February 2013 misplacement or theft of an unencrypted VAMC laptop containing personal patient information. Watson, another veteran, filed a putative class-action suit following VAMC's discovery that four boxes of pathology reports had been misplaced or stolen; such reports have yet to be recovered. Both suits, brought under the Privacy Act (5 USC Sec. 552a et seq.), were dismissed for lack of standing. In Beck, the district court found that at the summary judgment stage, Beck had not submitted evidence sufficient to create a genuine issue of material fact as to whether the risk of identity theft was "certainly impending." In Watson, at the pleading stage, the district court found that Watson had not alleged any actual or attempted misuse of her personal information. The district court found that the fear of harm from future identity theft was "too speculative" and was "contingent on a chain of attenuated hypothetical events and actions by third parties independent of the defendants." The district court also rejected the allegation that any costs incurred to fend off future identity theft constituted an injury-in-fact. Plaintiffs appealed. The circuit courts are split as to whether Article III injury-in- fact may be based on an increased risk or threat of future identity theft. The Sixth, Seventh and Ninth Circuits have recognized that plaintiffs can, at the pleading stage, establish an injury-in-fact based on threatened injury, whereas the First and Third Circuits have not. In either case, according to the Fourth Circuit, Clapper's iteration of the well-established tenet that "a threatened injury must be 'certainly impending' to constitute an injury-in-fact" is controlling. The Fourth Circuit agreed with the district court that neither Becknor Watson went beyond speculation to "certainly impending," as both required the court to engage in an "attenuated chain of possibilities." Indeed, the Court noted that since 2013 and 2014, when the data breaches in Beck and Watson occurred, respectively, plaintiffs had not uncovered evidence--or even alleged--that the information had been accessed or misused or that they had suffered identity theft or been victim of an attempted identify theft. The Fourth Circuit also concluded that plaintiffs fell short of establishing standing based on a "substantial risk" that the harm will occur. For example, plaintiffs claimed that "33% of health- related data breaches result in identity theft." However, even if this statistic were true, the Court noted that it left unharmed more than 66 percent of veterans affected by the breach and therefore did not establish a "substantial risk" of harm. The Court also decline to infer a substantial risk of harm of future identity theft from an organization's offer to provide free credit monitoring services to affected individuals, or from the VA's internal investigations that not only concluded that the laptop and pathology reports had been stolen, but also that a "'reasonable risk exists' for the 'potential misuse'" of personal information. Finally, with respect to standing, the Fourth Circuit rejected plaintiffs' allegation that they had suffered an injury-in-fact because they had incurred or will in the future incur mitigation expenses to guard against identity theft, noting that these "self- imposed harms cannot confer standing." UNITED STATES: Health Republic Invite Other Insurers to Join Suit ----------------------------------------------------------------- Allison Bell, writing for LifeHealthPRO, reports that Health Republic Insurance Company is about to invite other health insurers to participate in its class-action lawsuit over Affordable Care Act risk corridors program payments. U.S. Court of Federal Claims Judge Margaret Sweeney approved Health Republic's class-action notice and opt-in form Feb. 24. Lawyers for Health Republic are supposed to send the notice to potential class members by March 15. Insurers that want to join in can sign up at http://www.riskcorridorsclassaction.com/optin. CCIIO officials say any cash collected for 2015 will be used to pay obligations for 2014. At press time, the opt-in website was not yet in operation. Health Republic was a small health insurer based in Lake Oswego, Oregon. It shut down at the end of 2016, in part because of problems with collection payments from the ACA risk corridors program. Designers of the ACA risk corridors program created it to encourage insurers to participate in the ACA public exchange program and keep premiums as low as possible. The program was supposed to use cash from exchange plan issuers that did well in 2014, 2015 and 2016, and, possibly, from other sources, to help issuers that did poorly. A similar Medicare Part D prescription drug plan risk corridors program could get cash from the U.S. Department of Health and Human Services if payments from thriving issuers were too low to make the payments promised to struggling issuers. Republican opponents of the ACA succeeded at getting provisions blocking use of any funding other than payments from thriving issuers for 2014 and 2015. Because the number of thriving issuers was small, and because of the ban on use of any funding other than payments from thriving issuers, the ACA risk corridors program made only $362 million of the $2.9 billion in payments owed for 2014, and it collected only $95 million of the $5.9 billion needed to make the 2015 payments. Program managers have used all of the 2015 program revenue to increase the amounts paid to carriers owed payments for 2014. Health Republic filed a suit, Health Republic Insurance Company v. the United States of America (Case Number 1:16-cv-00259), in the U.S. Court of Federal Claims in February 2016. Health Republic sought to represent a class of insurers seeking risk corridors program payments. Judge Sweeney granted the motion to certify the class in January. CCIIO officials say any cash collected for 2015 will be used to pay obligations for 2014. Stephen Swedlow, a partner in the Chicago office of Quinn Emanuel Urquhart & Sullivan LLP, is the lead attorney for the insurers. Charles Canter, a lawyer at the U.S. Department of Justice, is representing the risk corridors program. In related news, Mr. Canter filed an answer to Health Republic's complaint on Feb. 27. The answer appears to be the first major pleading the United States has filed in response to a risk corridors program suit since President Donald Trump took the oath of office. In the answer, the United States says it lacks information or knowledge of most of Health Republic's allegations. "The complaint fails to state a claim upon which relief can be granted," the United States says in a list of defenses. "Defendant denies that plaintiff is entitled to the relief requested in the complaint or to any relief whatsoever." UNIVERSITY OF IOWA: Sued for Cutting $3.4 Million in Scholarships ---------------------------------------------------------------- Ally Crutcher, writing for KWWL.com, reports that The University of Iowa recently announced its cutting $3.4 million in scholarships to keep up with state budget cuts. Now, the first class action lawsuit has been filed against the university for taking away money for those scholarships. According to a press release, Wandro & Associates, P.C. and the Erbe Law Firm filed a class action lawsuit in Polk County District Court representing Benjamin Muller. The release states Muller is one of the 2,500 Iowa students who had their scholarship taken away without warning. There are meetings scheduled in both West Des Moines and Iowa City Saturday, March 4. Parents, students and alumni are invited to attend to ask questions about legal options. WAL-MART STORES: Judge Dismisses Shareholders' Class Action ----------------------------------------------------------- Rakim Reid, writing for Eastern Daily News, reports that a Walmart class action lawsuit was dismissed by a New York federal judge. The suit claimed Walmart defrauded shareholders. The company did not share that it bribed public officials to expand quickly in Mexico. The judge declined the Walmart class action lawsuit filed by investors. The suit claimed former Walmart officials had knowledge of the bribes and covered them up. The judge rejected claims that the retail giant must account for the actions of those former officials. The Walmart class action lawsuit allegations first came up after a 2012 New York Times report. The document recounted the history of the bribery scheme. The amount reached $24 million. Documents also showed executives knew about the bribes. Before the Walmart class action lawsuit, the retail giant started a program that mirrors Amazon's free, two-day shipping on Feb. 28. Now Walmart offers two day free shipping to all customers for orders over $35. Some expressed disappointment over the decision. In fact, some experts believed Walmart should go all the way. The company should offer free shipping with no spending threshold. They view the current plan as myopic. Walmart returned to its original program before copying Amazon's Prime membership program. That service was Walmart's Shipping Pass. That program failed. Part of the reason was the reliance on a $49 annual fee in order to qualify. This new service covers over 2 million items at Walmart. New online warehouses will fulfill and ship orders. What's more, many orders will ship in one day. A statement from Walmart proclaimed: "I couldn't be more excited. We are moving at the speed of a startup," said Marc Lore, president and CEO of Walmart U.S. eCommerce. "Two-day free shipping is the first of many moves we will be making to enhance the customer experience and accelerate growth." Also, the statement said the retailer continues to offer same-day store pickup for many products. Consumers can pick up products from more than 4,600 stores. Plus, Online Grocery Pickup remains available. This service remains available at over 600 stores in the U.S. Walmart plans to expand the service in 2018. Lore added later: "In today's world of e-commerce, two-day free shipping is table stakes. It no longer makes sense to charge for it." Lore was the former CEO of Jet.com. Walmart bought the company for $3.3 billion in 2016. At the time, the buyout was the largest ever for an e-commerce startup. Lore shook up the company when he arrived. For example, several senior leaders at Walmart left upon his arrival. Those include the heads of Walmart.com, global e-commerce human resources and e-commerce supply chains. Mr. Lore has more plans ahead too. Amazon Rises Amid Walmart class action lawsuit On the other hand, Amazon raked in over 60 million Prime members by making the process easier. Customers do not need to worry about a shopping list or order minimums. Fast and free shipping is just that. Furthermore, Amazon customers simply order the goods they need as they need them. Little thought required. WEINSTEIN PINSON: Status Hearing in "Marquez" Suit Set for May 2 ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on February 7, 2017, in the case entitled Erick Marquez, et al. v. Weinstein, Pinson & Riley, P.S., et al., Case No. 1:14-cv-00739 (N.D. Ill.), relating to a hearing held before the Honorable John J. Tharp Jr. The minute entry states that: -- Status hearing held and continued to May 2, 2017, at 9:00 a.m.; -- Defendants response to the Plaintiffs' Renewed Motion for Class Certification is due by March 24, 2017; -- Plaintiffs' reply is due by April 14, 2017; and -- Once the Motion is fully briefed, the Court will rule via CM/ECF and set further dates as appropriate. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=kfxgjVjL WILLIE'S CHICKEN: Parties Sought Certification of Workers Class --------------------------------------------------------------- In the lawsuit styled TIFFANY SAULS AND HEATHER ARNOULT, individually and on behalf of all similarly situated employees, the Plaintiffs v. WILLIE'S CHICKEN SHACK, LLC, DIAMOND BOURBON, INC., GOLDEN BOURBON, INC., WILLIE'S CANAL, LLC, WILLIE'S DECATUR, LLC, WILLIE'S 630 BOURBON, LLC, WILLIE'S 409 BOURBON, LLC, WILLIE'S 707 CANAL, LLC AND AARON MOTWANI, the Defendants, Case No. 2:16-cv-16596-JTM-JCW (E.D. La.), the Parties ask the Court for conditional certification of a class consisting of: "all current and former hourly paid restaurant workers who were employed by Defendants in Willie's Chicken Shack locations between November 26, 2013 through March 1, 2017". Notwithstanding the Joint Motion, the Defendants continue to deny that they have violated the Fair Labor Standards Act in any respect. Defendants do not concede that Plaintiffs and the putative class members are "similarly situated" under 29 U.S.C. par. 216(b) or that this case is appropriate for collective action treatment. The Defendants specifically reserve their rights to seek decertification of the conditionally certified class at a later time, and their rights to fully defend this matter on the merits, once the putative class members are identified. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=BKXdIfCW The Plaintiff is represented by: Mary Bubbett Jackson, Esq. Jody Forester Jackson, Esq. JACKSON & JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599 5953 Facsimile: (888) 988 6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net - and - Christopher L. Williams, Esq. WILLIAMS LITIGATION, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 Telephone: (504) 308 1438 Facsimile: (504) 308 1446 E-mail: chris@williamslitigation.com The Defendant is represented by: Ellis B. Murov, Esq. Andrew J. Baer, Esq. DEUTSCH KERRIGAN, L.L.P. 755 Magazine St New Orleans, LA 70130 Telephone: (504) 593 0655 Facsimile: (504) 566 4055 E-mail: emurov@deutschkerrigan.com YAHOO INC: CEO Relinquishes Annual Bonus Following Data Breaches ---------------------------------------------------------------- Michael Liedtke, writing for The Associated Press, reports that Yahoo is punishing CEO Marissa Mayer and parting ways with its top lawyer for the mishandling of two security breaches that exposed the personal information of more than 1 billion users and already have cost the company $350 million. Ms. Mayer won't be paid her annual bonus nor receive a potentially lucrative stock award because a Yahoo investigation concluded her management team reacted too slowly to one breach discovered in 2014. Yahoo's general counsel, Ronald Bell, resigned without severance pay for his department's lackadaisical response to the security lapses. Alex Stamos, Yahoo's top security officer at the time of the 2014 breach, left the company in 2015. Although Yahoo's security team uncovered evidence that a hacker backed by an unnamed foreign government had pried into user accounts in 2014, executives "failed to act sufficiently" on that knowledge, according to the results of an internal investigation disclosed on March 1. At that time, Yahoo only notified 26 people that their accounts had been breached. The report didn't identify the negligent executives, but it chastised the company's legal department for not looking more deeply into the 2014 breach. Because of that, the incident "was not properly investigated and analyzed at the time," the report concluded. Mr. Bell declined to comment through his spokeswoman, Marcy Simon. Yahoo didn't disclose the 2014 breach until last September when it began notifying at least 500 million users that their email addresses, birth dates, answers to security questions, and other personal information may have been stolen. Three months later, Yahoo revealed it had uncovered a separate hack in 2013 affecting about 1 billion accounts, including some that were also hit in 2014. The breaches, the two biggest in internet history, have already exacted a major toll. Yahoo already lowered the sales price of its email and other digital services to Verizon Communications from $4.83 billion to $4.48 billion to account for the potential backlash from the breaches. That deal was reached last July, two months before Verizon and the rest of the world learned about Yahoo's lax security. More than 40 lawsuits also have been filed seeking damages for the breaches. If Yahoo's sale to Verizon is completed as expected later this year, a successor company called Altaba Inc. will be responsible for paying those legal claims. Yahoo's handling and disclosure of the breaches is also under investigation by the Securities and Exchange Commission and the Federal Trade Commission. The Sunnyvale, California, company says it has spent $16 million investigating the breaches and covering the legal expenses so far. In a blog post on Yahoo's Tumblr service, Ms. Mayer said she didn't learn about the scope of the breaches until September and then tried to set things right. "However, I am the CEO of the company and since this incident happened during my tenure, I have agreed to forgo my annual bonus and my annual equity grant," Ms. Mayer wrote. In its report, Yahoo's board said it decided to withhold a cash bonus that otherwise would have been paid to her. Ms. Mayer is eligible to receive a bonus of up to $2 million annually. The board said it accepted Ms. Mayer's offer to relinquish her annual stock award, which is typically worth millions of dollars. Ms. Mayer said she wants the board to distribute her bonus to Yahoo's entire workforce of 8,500 employees. The board didn't say if it would do so. Losing her bonus and annual stock award probably won't be too painful for Ms. Mayer, who is already rich after working for more than a decade as a top executive at Google and then as Yahoo's CEO for the past 4-1/2 years. She is also in line for a $44 million severance package if she doesn't go to work for Verizon after the sale closes. YAHOO INC: Verizon Merger Deal Still On Amid Data Breach Suits -------------------------------------------------------------- Jennifer Williams-Alvarez, writing for Corporate Counsel, reports that despite Yahoo Inc.'s recently revealed data breaches, the deal with Verizon Communications Inc. is still on, though some revisions have been made, including a $350 million haircut. With the transaction expected to close later this year, Craig Silliman, executive vice president of public policy and general counsel at Verizon, sees lessons for legal departments in the deal. Since Verizon and Yahoo entered into the July 2016 stock purchase agreement under which Verizon would acquire Yahoo's operating business, Yahoo has announced two massive data breaches. First, in September of last year, Yahoo, which did not immediately respond to request for comment on the deal, confirmed that a 2014 hack impacted at least 500 million customer email accounts. Then in December 2016, the company admitted that it had suffered yet another breach in 2013, that had affected more than one billion user accounts. The disclosure of the breaches led to speculation that Verizon might be looking to back out of the deal, negotiate a lower price or have Yahoo assume responsibility for lasting damages caused by the hack. A Feb. 21 U.S. Securities and Exchange Commission filing from Verizon revealed that the deal is moving forward with some adjustments. The acquisition price will be reduced from approximately $4.83 billion in cash to roughly $4.48 billion. And the remaining part of Yahoo, which is slated to be called "Altaba Inc.," will retain 50 percent of "certain post-closing liabilities arising out of governmental or third-party investigations, litigations or other claims related to certain user security and data breaches" and will continue to be liable for SEC investigations and shareholder lawsuits. With the announcement of the newly revised deal, there are a handful of lessons to be learned, said Silliman, who assumed his current position in January 2015. The first is the importance of having a strategy on how to handle the news of the breaches, which Mr. Silliman said was in place from very early on. "In our case, a breach of user data, when users and user engagement were a core reason we were buying, meant we had to take this really seriously," Mr. Silliman explained. So the strategy, Mr. Silliman said, was to consider whether Verizon would still be buying an asset in line with the original goals of the deal and then considering questions such as: How do investors view this and what's the cost of delaying the closing of the deal? "There were a lot of variables that we factored in," Silliman said, but with the revisions to the agreement, the ultimate conclusion was that the deal is still a smart move for the company. Disciplined messaging was also really important as Verizon considered what the news of the breaches meant for the deal, Mr. Silliman said. "Effectively, every public statement was a variation of the same core messages," which Silliman explained were focused on conveying that Verizon was still evaluating whether the deal made strategic sense. "This was important legally because anything we said publicly could be used in any potential litigation," he said. "And also there's messaging to a lot of different audiences . . . so we were really deliberate on what we were saying and who was going to say it." Mr. Silliman said in the wake of the breaches, one of the first things looked at was what the agreement with Yahoo said and what it allowed for. It was critical to be familiar with and understand the specifics of the deal, he explained. "Just because something happened doesn't mean you get to rip up the deal and start from scratch," he said. "[The agreement] tells you what the cards are that are in your hand . . . and you need to be very clear-eyed about what the cards are." Some have questioned whether Verizon should have done more or better due diligence to uncover Yahoo's breaches. But Silliman disagrees. "There is no way you can do due diligence and find something . . . that the company itself hasn't found," he said, adding that this is why representations and warranties are added to these agreements. "I don't think one of the lessons learned is the need for due diligence around data breaches," he said. "I do think it points to the importance of reps and warranties around data breaches." * Companies Must Comply with Calif. Privacy Laws to Avert Suits --------------------------------------------------------------- Lothar Determann, Esq. -- LOTHAR.DETERMANN@BAKERMCKENZIE.COM -- of Baker & McKenzie, in an article for, LegalTech News, reports that companies around the United States have to comply with California privacy laws -- because their web or mobile sites are accessible to consumers in California, because they have customers or employees in California or because their enterprise customers have customers or employees in California. Ever since the people of California added a right to privacy to Article 1 of the California Constitution by way of a proposition in 1972, the California legislature has been prolific in enacting and updating privacy laws, many with private rights of action that are enforced by way of class action lawsuits against companies within and outside the Golden State. Today, California leads the nation not only as an innovation hub for information technologies, but also with the most comprehensive, stringent and up-to-date information privacy laws. To mitigate risks, companies should implement a privacy compliance program (or add California privacy law considerations to an existing program). Companies should also periodically check up on their status with a compliance checklist. Organizations that implement a formal data privacy and security compliance program and put someone in place to maintain and oversee it run a lower risk of missing new developments, suffering from employees' missteps or making bad business decisions that could invoke liability under data privacy laws. Many companies are specifically required to implement a formal program or benefit from special liability protections under data privacy laws when they do. Regulators and law enforcement are less likely to bring charges for unintentional violations if a company can prove that it used reasonable efforts. Also, companies can better defend against claims if they can show they generally acted diligently and were just unlucky when something went wrong. For example, the California Song-Beverly Credit Card Act expressly offers liability privileges for companies that can prove that they have appropriate procedures in place when an individual employee makes a mistake, see Cal. Civ. Code Sec. 1747.08(e): "[no] civil penalty shall be assessed for a violation of this section if the defendant shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error made notwithstanding the defendant's maintenance of procedures reasonably adopted to avoid that error." Similarly, under California and federal fair debt collections practices laws, companies can benefit from a liability safe harbor if they can prove that they maintained appropriate procedures. Cal. Civ. Code Secs. 1788.30, 178862(e) and 15 U.S.C. Sec. 1692k(c) provide similarly worded safe harbors. 15 U.S.C. Sec. 1692k(c) provides: "A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." Companies should document key components of their program in writing, to assure efficient maintenance and continuity. In a program description, they should include a list and the location of key documents and decision makers and a compilation of information on the scope of previous compliance assessments (e.g., jurisdictions, vendors and services covered). Based on such documentation, companies can answer questions about the program (whether from consumers, regulators, potential acquirers or other business partners), assess quickly whether organizational changes trigger a need to update or expand the program, document periodical re-assessments, guide audits and brief new personnel with respect to the data privacy compliance program (for example, in case a new privacy officer takes over). To start on a compliance program and prioritize risk mitigation measures, every company should ask itself the following, basic questions, as a checklist: Who is in charge of data privacy and security compliance in the organization? Every company should have one or more employees who are in charge of premise security and information technology security. Additionally, companies should consider appointing a privacy officer who concerns himself with the privacy interests of employees, customers and other data subjects in the organization. Under HIPAA, covered entities are legally required to appoint data privacy and data security officers, and business associates must appoint a data security officer. All organizations can benefit from such appointments. Are all stakeholders instructed and trained regarding their responsibilities? In particular, companies should develop protocols for the information technology department regarding data security, retention and access restrictions; the receptionist and all other employees regarding premises security; the human resources department regarding background checks, research on candidates, ongoing employee monitoring, internal investigations, employee files, human resources information systems (HRIS), monitoring, whistleblower hotlines, and sales and marketing personnel regarding direct marketing. Are you doing enough to keep data secure? Do you have a security protocol that describes sufficient physical, technical and organizational data security measures, e.g., database access controls and device encryption? Are all employees familiar with the protocol and actually complying with it? Do you have a data retention and deletion program in place that ensures that data is securely discarded after it is no longer needed or legal to store? Are all employees watching out for data security weaknesses or breaches and do they know how to report them in a confidential and secure manner? Are you prepared for a data security breach with respect to notice and compensation requirements under law and contracts? Are service providers carefully selected and monitored with respect to data security? Do you have appropriate contracts in place with service providers that have access to your data? Have all data subjects received appropriate notices and granted consent where required? Are all notice and consent forms accurate and up-to-date? Most companies need employee privacy notices and website privacy statements. Many companies will also need consent for employee and call center monitoring and video surveillance. Companies that engage in direct marketing have to grant unsubscribe options and maintain opt-out lists. Consider not only requirements following from law but also from contracts and commitments in prior notices and privacy policies. Are your marketing activities in compliance with applicable law? Do you obtain prior consent where legally required (e.g., for direct marketing calls, text messages and faxes that target consumers)? Do you offer and honor unsubscribe options? Do you share personal data for marketing purposes with other data controllers or do you allow others to collect data directly from your customers or website visitors (e.g., via third party cookies on your websites)? If yes, various disclosures may be required, for example, under California's Shine the Light Law. Do you collect data online from children under the age of 13? If yes, you are probably required to obtain consent from parents. Do you buy information from third parties (e.g., email list vendors, background check providers or data brokers)? If yes, do you receive sufficient contractual assurances that you can legally buy and use the information for the intended purposes? Have you conducted and documented reasonable due diligence steps to confirm the legality of the sources? If you operate retail locations, have you made sure that you are not collecting data from credit card holders except as needed to process credit card transactions? Do you design products, processes, and standard contracts to allow or facilitate compliance with data privacy and security requirements by your employees, customers, and product users? Do you assess and consider your customers' and end users' data privacy and security compliance needs in developing new products and processes? Do you seek input from your data privacy officer and legal department early on in the product development process? Do you provide customers and end users with guidance on how they can use your products in compliance with data privacy and security laws, and how to avoid pitfalls, for example, in user manuals, white papers, FAQs? Do your standard contract terms offer your customers and other contracting parties all legally required and reasonably expected representations and terms relating to data privacy and data security? Are you collecting or retaining more data than you need? The more data a company amasses and the longer it retains the data, the greater are the associated risks of data security compromises and resulting liability. If a company decides to store data for potential future use, it should consider archiving it in an encrypted and more secure way than may be practical for actively utilized data. Maintenance Once you implement a data privacy compliance program, the work does not end. The maintenance phase begins. California issues and revises privacy laws constantly. Organizations transform in various ways, for example in mergers and acquisitions, spin-offs, reorganizations, relocations, international expansion, increased headcount and technology acquisitions. Also, employees in charge of privacy compliance may come and go. All of these changes have compliance implications and require periodic and event-specific due diligence, including in M&A scenarios and regarding service providers and vendors. Companies can also mitigate risks relating to compliance with data privacy laws, companies should clearly allocate compliance obligations between the contract parties (e.g., between service providers and customers). An increasing number of companies are also obtaining specific security breach insurance coverage, but premiums and deductibles tend to be relatively high and coverage is limited. To determine what insurance coverage is appropriate and affordable, companies should assess their specific risk situation and carefully study available policies, caps, deductibles and premiums. * Defense Lawyer Shares Concerns on Class Action Reform Bill ------------------------------------------------------------ Amanda Bronstad, writing for Law.com, reports that tort reformers are pushing the most aggressive class action reform legislation in the past decade on Capitol Hill, but even defense lawyers have their concerns. The Fairness in Class Action Litigation Act of 2017, which passed through the House Judiciary Committee last month, would impose new restrictions on who plaintiffs' lawyers can represent, require disclosure of litigation funders and carve out the type of injuries needed to pursue class actions, among other changes. Civil rights groups and consumer advocates have criticized the legislation, and some plaintiffs' lawyers have warned the bill's vague language could invite more litigation. Andrew Trask -- atrask@mcguirewoods.com -- senior counsel at McGuireWoods in Los Angeles and lead contributor to the firm's Class Action Countermeasures blog, shares at least some of their concerns. To be sure, the bill could provide some desired adjustments for defense attorneys, said Trask, who testified before the House Judiciary Committee in 2015 about a bill with the same name. But it could also invite more battles with the plaintiffs bar and, for some clients, lead to costlier settlements. Q: Most of this bill's provisions mimic the policy grievances of tort reformers. But what are the practical implications for those in the defense bar? Trask: A number of the provisions will be time-savers. For example, the requirement that the plaintiffs disclose any conflicts of interest they have. That's something we always check for in discovery but would save us huge amounts of time. Similar with disclosing funding. It's something I've always asked in discovery and interrogatories, but I'm usually stonewalled on. It would be nice to have a quick answer to that as well. Q: Do any of these measures have unintended consequences? AT: The largest unintended consequence may come from the mandatory appeals of class certification rulings. In any given case, clients will pressure you to appeal because they want to overturn a ruling against them. But for anyone thinking longer term, and for plaintiffs and defendants, you may not want to appeal certain rulings. I worry about what appeals would look like if there's a requirement that the court takes any appeal. I would also worry it would bog down the courts. Class actions already are large complicated machines. It may slow things down. Q: The 2015 bill you testified about focused on the type of injuries a plaintiff has to prove in class actions. This one mentions a similar reform, but what's the difference? AT: The technical term for the requirement in the 2015 bill is the "typicality" requirement, which is the one that requires the named plaintiffs have claims typical of the entire class. It's what's often called the "no injury" case. You'd have an injured plaintiff representing people who never suffered the same Injury -- and that's what that bill was trying to get at. Somebody bought themselves a defective blender, the blender exploded, they're one of five people it happened to, but now they're claiming the defect affects everybody. The only language that changed is it went from the type and "extent" of injury to type and "scope," and the reason for that was there was a huge outcry where civil rights groups and plaintiffs' lawyers argued that "extent" would mean if one person suffered $2 and another $3, they couldn't certify the class. Q: Critics have said that many of these changes could invite more litigation. What do you think? AT: There are two or three places where it seems like a potential of blowback, but I don't know whether that would translate to litigation. Those places seem to be the type and scope of the injury requirement, and the disclosure requirements for conflicts of interest. The plaintiffs' side, the bill's opponents, seem to be taking that as an outright ban on the representation of repeat litigants, which is a violation of one's right to counsel. Past that, I think you might see some litigation over what constitutes a funder. It's intended to get at the Elliott Fund, IMF Bentham -- the big funds that invest in litigation for an outcome. But I could see an argument being made there might be a problem with referral firms being paid. I don't know the answer to that, and that could be one argued back and forth. That could be a really, really tough fight on both sides. Q: The bill would require the reporting of class action settlement data to the Federal Judicial Center and the Administrative Office of the U.S. Courts. Many agree there is a need for such a database, but is this a burden on defendants? AT: It's not a huge burden on the defendant. There are third-party services that do that. There is potentially some blowback there because there are defendants that do use claims-made settlements. That's when you make a fund available and only pay out the claims made. Maybe this drives up the price of settlement[s] a little bit -- between this, and the provision the plaintiffs only get paid on what's paid out. Ultimately, what will happen is the defendant will have to fork over more on cases they want to settle and plaintiffs will have to take a haircut on cases they probably shouldn't have taken in the first place. * Gorsuch Often Sides with Defense on Class Actions, Arbitration ---------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that as an attorney, Neil Gorsuch chastised plaintiffs lawyers for bringing "meritless claims" in securities class actions that do little to benefit investors. His writing on the topic has garnered a good deal of attention since President Donald Trump nominated Judge Gorsuch to the U.S. Supreme Court and encourages those who would like to see Judge Gorsuch pick up where the late Justice Antonin Scalia left off when it comes to class actions. But do those views -- articulated while Judge Gorsuch was in private practice and acting as an attorney for the U.S. Chamber of Commerce -- dominate his opinions as a judge on the U.S. Court of Appeals for the Tenth Circuit? Not quite. According to a careful review of Judge Gorsuch's decisions, his textualist approach, more than ideology, is the common theme of his opinions on class actions, arbitration and mass torts. And yet, though some of his decisions have favored plaintiffs, Judge Gorsuch's careful judicial reasoning and parsing of statutory language has more often led him to side with the defense. Neil Gorsuch on class actions and arbitration: -- Judge Gorsuch's textualist approach, more than ideology, is the guiding principle in his rulings on class actions. -- Judge Gorsuch's literal take on the Federal Arbitration Act could swing either way for defendants. If confirmed, his first opportunity to shape law is likely to come in a trio of cases before the U.S. Supreme Court involving class action waivers in employment arbitration clauses. Should he be confirmed, Judge Gorsuch's originalist philosophy is likely to continue shape his rulings on class actions and arbitration, said Andrew Vollmer, a professor at the University of Virginia's School of Law. "He'll look at the existing law," Vollmer said. "And I think his concerns with the policies underlying class actions will be less important -- although possibly will influence him at the margins." GORSUCH ON CLASS ACTIONS In nominating Judge Gorsuch, President Trump said he was fulfilling a promise to pick someone "who respects our laws and interprets them as written," not unlike Scalia. Scalia was a significant voice on class actions during his tenure on the court. In recent years, he authored every 5-4 ruling where he was in the majority, including the landmark cases of Wal-Mart v. Dukes and AT&T v. Concepcion. It's less than clear whether Judge Gorsuch will pick up the mantle. In general, Judge Gorsuch hasn't weighed in on many class actions -- or on arbitration agreements in that context, according to a review of his decisions using litigation analytics site Ravel Law. But his adherence to statutory text is evident in the few where he's written the majority opinion. In 2016, Judge Gorsuch dissected the wording of the Class Action Fairness Act [CAFA] in a ruling siding with Stamps.com in a class action over its recurring monthly subscription charges. Judge Gorsuch, writing for a unanimous panel in Hammond v. Stamps.com, vacated an order remanding the case to New Mexico state court, concluding that the amount "in controversy" clearly exceeded $5 million as required by the CAFA. The lower court's decision to remand the case because Stamps.com didn't provide sufficient proof of alleged damages beyond $5 million, he wrote, "rests on a legal error about the meaning of a key statutory term." The CAFA's phrase "in controversy" means one "might legally conclude" that damages could exceed that amount, not that it was likely. "Our job," he wrote, "is to abide Congress's policy directions, not replace them with others of our own hand." He made similar remarks in a case in which BP America Inc. sought to appeal the remand of a mass action that the Oklahoma attorney general's office had brought over propane gas prices. In disagreeing with the attorney general's interpretation of the CAFA, Judge Gorsuch wrote in a 2010 decision that "we are not at liberty to take our editing pencils to what Congress has written." One of his only decisions involving class certification dealt with alleged prison overcrowding in an Albuquerque detention center. Judge Gorsuch dismissed the city's appeal of a district judge's order withdrawing approval for a settlement in the case after concluding that the Tenth Circuit lacked jurisdiction. In the 2011 decision, Judge Gorsuch insisted that the courts of appeal should never "disregard the bounds of our legal authority" under the statute governing the appeal of final decisions. "Congress told us to ask only whether a district court's decision is final and Congress's direction demands our respect, not our rewriting," he wrote. As for securities class actions -- the area in which Judge Gorsuch wrote the Chamber's amicus brief in Dura Pharmaceuticals. v. Broudo -- his decisions are few. Writing for the majority in MHC Mutual Conversion v. Sandler O'Neill & Partners, Judge Gorsuch found no liability against bank officers whose statements regarding mortgage-backed securities in the bank's portfolio were alleged to have caused investors losses. In a 2014 decision written with characteristic flair, Judge Gorsuch reviewed more than a century of law on the question of when Section 11 of the Securities Act of 1933 imposes liability on issuers who offer false or misleading opinions. "For centuries legions accepted Newtonian physics without qualification. Last year some of us fervently believed the Broncos would win the Super Bowl. In 2008, no doubt there were those who genuinely thought the market for mortgage backed securities would soon rebound," he wrote. "Events have disproved each of these opinions, but that hardly means the opinions were anything other than honestly offered--true opinions at the time made." In addition to dipping back to Deming v. Darling, an 1889 opinion penned by Justice Oliver Wendell Holmes when he served on the Massachusetts Supreme Court, Judge Gorsuch invoked a more contemporary decision from the U.S. Court of Appeal for the Third Circuit -- In Re Donald J. Trump Casino Securities Litigation. GORSUCH ON ARBITRATION An important question now before the Supreme Court is whether class action waivers in employment arbitration contracts, which are governed by the Federal Arbitration Act [FAA], violate an employee's rights under the National Labor Relations Act. Judge Gorsuch hasn't addressed arbitration in the class action context. However, in several opinions Judge Gorsuch has shown support for the FAA and, in one case, he chided the National Labor Relations Board. Judge Gorsuch wrote in a 2016 dissent to NLRB v. Community Health Services that the NLRB was "exceeding its congressional charter" in awarding impermissible back pay to hospital workers. Judge Gorsuch also has come out strongly against longstanding deference to administrative agencies' interpretation of the laws that govern them. Such a stance "is highly relevant" to the class action waiver cases pending before the Supreme Court, said Ron Chapman, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart in Dallas. Judge Gorsuch's literal reading of the FAA also could bode well for employers because there's "nothing to suggest class action waivers are unlawful" in the actual statute, he said. "It does appear that some of the sentiments that employers assert in defending class action waivers also appear in Judge Gorsuch's writings," Mr. Chapman added. But his textual approach also could be a warning to businesses that have relied on decades of case law expanding the FAA, which was passed in 1925. "If you take Gorsuch's philosophy, and his prior arbitration decisions, they are so piercingly textual," said Imre Szalai, professor at Loyola University New Orleans College of Law. In Howard v. Ferrellgas Partners, a 2014 consumer case over propane deliveries, Gorsuch cautioned that the act's "heavy hand in favor of arbitration" should not "be foisted on the parties at all costs." (Even so, that decision reversed an order denying a motion to compel arbitration.) In the 2009 case Chelsea Family Pharmacy v. Medco Health Solutions, a Tenth Circuit panel reviewed a dispute between a retail pharmacy and a third-party prescription drug program to determine whether all, part or none of the litigation should be sent to arbitration. The panel found that one set of injuries would be subject to the companies' arbitration agreement. Judge Gorsuch agreed but wrote a concurring opinion that rejected what he called "this business of classifying arbitration clauses as 'broad or 'narrow'." Judge Gorsuch bemoaned that the Tenth Circuit had "imported" a test outlined by the Second Circuit, but found nowhere in the Federal Arbitration Act, into its jurisprudence. And though he conceded the court was bound to abide by it, he wrote "I question its appropriateness and utility." "It seems to me that we ought not be in the business of burdening a statute with words Congress has not written or inventing a test the Supreme Court has not endorsed," he wrote. GORSUCH ON MASS TORTS While Judge Gorsuch's case law in mass torts also is limited, in several cases, he addressed a district judge's decision involving expert witnesses at trial. And in at least two cases, he waded into the federal pre-emption debate, an area that comes up frequently as a defense in mass torts cases. The Supreme Court has had to address pre-emption in recent cases involving pharmaceuticals and medical devices. Ruling in Cook v. Rockwell International, a 2015 decision involving property owners near the former Rocky Flats Plant, Judge Gorsuch cited the text of the Price-Anderson Act in concluding that the federal law did not pre-empt nuisance claims under Colorado law. "Where does any of this language -- expressly -- pre-empt and preclude all state law tort recoveries for plaintiffs who plead but do not prove nuclear incidents? We just don't see it," he wrote. It's one case where Judge Gorsuch's textualism led him to split with business interests. In an amicus brief in support of certiorari, the U.S. Chamber of Commerce wrote "It is hard to overstate the legal and practical importance of this case," which it complained would "subject the nuclear energy industry, defense contractors, and the federal government to potentially boundless liability." But in a product liability case over the "off label" use of Medtronic Inc.'s Infuse Bone Graft, Judge Gorsuch found that the plaintiff's tort claims under Oklahoma law were pre-empted by the Federal Food, Drug and Cosmetic Act. As in many of his other decisions, he turned to the text of the statute to come to that conclusion, though he noted that some of the "competing instructions" in the Supreme Court's past opinions on the issue "warrant revisiting and reconciliation." "Not everyone may agree with how Congress balanced the competing interests it faced in this sensitive and difficult area," he wrote in Caplinger v. Medtronic. "But strike a balance Congress had to and did, and it's not for this court to revise it by beating a new path around pre-emption nowhere authorized in the text of the statue and nowhere recognized in any of the Supreme Court's many forays into this field." * House Approves Fairness in Class Action Litigation Bill --------------------------------------------------------- Ian Goldrich, Esq. -- Igoldrich@kilpatricktownsend.com -- of Kilpatrick Townsend & Stockton LLP, in an article for Lexology, reports that the House Judiciary Committee has approved a bill introduced by its Chairman Robert Goodlatte (R-Va.), one of the authors of the Class Action Fairness Act of 2005 ("CAFA"), that would greatly alter class action litigation in the federal courts. The Fairness in Class Action Litigation Act of 2017, H.R. 985, addresses a host of topics including, among others, the similarity of injury among class members required for class certification, the "ascertainability" of putative class members, the amount and timing of payments of fees to class counsel, appeals of class certification decisions, and stays of discovery. Here are some of the highlights: "Same Type and Scope of Injury" The bill limits class certification to actions in which all class members "suffered the same type and scope of injury as the named class representative or representatives." This provision should operate to preclude certification of any class that includes uninjured members. At present, most courts allow certification even where the class may include uninjured members. See, e.g., Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009) ("a class will often include persons who have not been injured by the defendant's conduct . . . Such a possibility or indeed inevitability does not preclude class certification."). The bill offers no guidance as to the degree of similarity required to deem injuries of the "same type and scope," one of many issues that will be left to the courts to determine. "Ascertainability" Several federal courts (with the recent notable exception of the Ninth Circuit) have implied to varying degrees a requirement that the identity of putative class members be objectively ascertainable. The bill codifies "ascertainability" by precluding class certification unless the class plaintiffs "affirmatively demonstrate that there is a reliable and administratively feasible mechanism (a) for the court to determine whether putative class members fall within the class definition and (b) for distributing directly to a substantial majority of class members any monetary relief secured for the class." Opponents argue a rigid ascertainability requirement will preclude small-value consumer class actions where, e.g., consumers likely did not retain a receipt or proof of purchase. Another question for the courts will be whether affidavits from putative class members swearing to their purchases would satisfy this requirement. Attorneys' Fees Before receiving any attorneys' fees, class counsel would be required to complete distribution of all damages to class members. In the case of cash settlements, class counsel must also submit to the Director of the Federal Judicial Center and the Director of the Administrative Office of U.S. Courts -- prior to collecting fees -- an accounting that discloses, among other things, the total amount paid to all class members, the average amount paid, and the largest and smallest payments. The bill also limits fee awards in damages cases to "a reasonable percentage of any payments directly distributed to and received by class members." Fee awards in equitable relief cases must reflect "a reasonable percentage of the value of the equitable relief, including any injunctive relief." Appeals The bill would make all district court class certification rulings directly appealable (thereby eliminating the Court of Appeals' current discretion to deny petitions for interlocutory review of such rulings under current Federal Rule 23(f)). Although this change protects class defendants from the settlement pressure of improper class certifications, it also potentially adds the expense of an appeal in every case where a district court properly denies certification of a class. Stay of Discovery Some appellate courts already have directed district courts to stay discovery pending resolution of a motion to dismiss or motion to transfer . The bill would codify these requirements and also require a stay of discovery based on an early motion to strike class allegations. This would represent a significant change in existing law, given that district courts usually do not give meaningful consideration to early motions to strike class allegations. Conflicts of Interest The bill also seeks to curtail the use of "professional plaintiffs" by requiring class counsel to disclose, and prohibiting certification based on, any preexisting relationship with the named plaintiffs. Takeaways CAFA's passage in 2005 -- the last year Republicans controlled the presidency and both houses of Congress -- had a seismic impact on class action litigation by, among other things, moving many large class actions based on violations of state law to federal court. The current bill (with the much less elegant acronym FCALA) strikes at the heart of many perceived continuing abuses in class action litigation. Several of the key provisions -- most notably the "same type and scope of injury" requirement and the attorneys' fees limitations -- could undermine key economics driving much of the current consumer class action docket. And the mandatory discovery stay would avoid the burden of discovery in putative class actions that never get past the pleading stage. We will track this bill as it makes its way through Congress and provide updates in future posts. * New Immigration Enforcement Guidelines May Strain Courts ---------------------------------------------------------- Andrew Denney, writing for Law.com, reports that the new immigration enforcement guidelines issued by the Trump administration may impose a heavier burden on the country's immigration courts, which are already overwhelmed by growing case backlogs and, in some locales, face a dearth of attorneys. Lawyers, academics and other professionals said the new directives could spur a burst of new litigation in an extraordinarily busy system. The policies outlined in memos signed by Homeland Security Secretary John Kelly call for authorities to prioritize for deportation proceedings removable immigrants who are charged with or convicted of crimes, have abused public benefit programs or otherwise pose a threat to public safety as judged by immigration officers. The new directives also expand the "expedited removal" zone -- in which an immigration officer can call for the immediate removal of an immigrant within 100 miles of the border without court review - - to encompass the entire country. Mr. Kelly also said in the directives that he has instructed U.S. Immigration and Customs Enforcement to "expeditiously" hire 10,000 new officers and agents, as well as 5,500 additional Customs and Border Protection agents. The new guidelines do not apply to immigrants who are protected under the Deferred Action for Childhood Arrivals program, better known as DACA, under which temporary work visas are provided to undocumented immigrants who came into the country when they were children. Advocates for immigrants say the new guidelines will realize President Donald Trump's campaign rhetoric of conducting large- scale deportations. "To put it in Trump terms, it's going to make immigration attorneys busy again," said Maurice Goldman, a Tucson, Arizona- based immigration attorney and a partner at Goldman & Goldman. And, as Mr. Kelly notes in the memos, the stepped up enforcement measures come at a time when the country's immigration courts, administrative courts housed within the U.S. Department of Justice's Executive Office for Immigration Review, are experiencing historic backlogs. According to the Transactional Records Access Clearinghouse at Syracuse University, the backlog of cases in the country's immigration courts had grown to a historic high of 542,411 by the end of January, up from 516,031 pending on Sept. 30, 2016, which are assigned to a corps of about 300 judges. Courts in California and Texas topped the list of states with the largest backlogs, with 97,860 and 95,193 cases, respectively. New York came in third with 74,841 cases. The backlog creates long delays in cases: By the end of January, the average wait time for cases nationwide was 673 days. Michael Wildes, managing partner at the Manhattan-based Wildes & Weinberg, said that immigration attorneys are seeing hearings scheduled as far out as 2020. Issues facing the immigration courts are not unknown throughout the justice system. Earlier this year, Judge Richard Posner of the U.S Court of Appeals for the Seventh Circuit issued a scathing dissent in a deportation case called Chavarria-Reyes v. Lynch, No. 15-3730, stating that, due to "severe underfunding" by Congress, immigration court is the "least competent federal agency." In a recent article for the International Affairs Forum, a publication of the Center for International Relations, San Francisco immigration judge -- and president of the National Association of Immigration Judges -- Dana Leigh Marks said that immigration judges are essentially "adjudicating death penalty cases" in cases where deportees face persecution upon their return to their countries of origin "in [a] setting that most closely resemble traffic courts." A spokeswoman from the Justice Department's Executive Office for Immigration Review did not respond to a request for comment. The potential for a flood of new immigration cases as a result of Homeland Security's directives also comes at a time when most immigrants who are at risk for removal proceedings do not have access to counsel. According to a report released in September by the Washington, D.C.-based nonprofit American Immigration Council, almost two- thirds of immigrants facing deportation did not have counsel during a six-year study period ending in 2012. Access to counsel depended greatly upon geography: In New York City, 87 percent of the nondetained immigrants in the 1.2 million deportation cases included in the study had counsel, which was the highest rate of representation in the country. But representation rates in rural areas, where ICE detention centers tend to be located, tend to fall into single digits. "There are very few attorneys who have their practices based in these very remote locations," said Ingrid Eagly, a UCLA School of Law professor and a co-author of the study. Mr. Wildes, a former federal prosecutor in the Eastern District of New York, said that, while he supports the enforcement of immigration laws, he sees the stepped-up enforcement as a "visual campaign" that will burden taxpayers. "There aren't enough beds, handcuffs and airplanes to literally FedEx these people from our nation," he said. * Plaintiffs Attorney Shares Thoughts on Class Action Reform Bill ----------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that one of the most expansive bills to target class actions in the past decade quietly passed through the House Judiciary Committee, prompting plaintiffs attorneys, civil rights groups and consumer advocates to spring into action. The American Bar Association wrote that the legislation would "circumvent time-proven" procedures for class actions. A letter joined by the AFL-CIO, the Consumer Federation of America and the National Employment Lawyers Association called the measure "sweeping, reckless legislation" that "would sound the death knell for most class actions." The Fairness in Class Action Litigation Act of 2017 was introduced on Feb. 9 by Judiciary Committee Chairman Bob Goodlatte, a Republican from Virginia. It would impose new restrictions on how plaintiffs lawyers get paid, who can hire them and the scope of injuries plaintiffs lawyers must prove to pursue a class action, among many other changes. But the death of class actions? Not quite, said Jay Edelson, of Chicago's Edelson PC, a prominent plaintiffs attorney in the class action bar. While some of the bill's provisions are problematic, Mr. Edelson said many address things that federal judges already are doing. And the wording for the most part is ambiguous, ensuring that lawyers will spend more time litigating over the its meaning. Many in the plaintiff's bar are predicting the end of class actions if this bill passes as written. What do you think? Jay Edelson: I do not think this bill would kill class actions. I think the biggest effect is that it will create a lot of unnecessary litigation over what the bill really means. This happened with the original Class Action Fairness Act as well. It was rushed so quickly that it was contradictory and ambiguous and what I felt was it was a huge boon to the defense bar who would be able to bill clients a lot of money. That's true with this bill as well, if it happens. How is it a boon to the defense bar? JE: Defense lawyers write these bills and have years of work trying to sort out what they mean. They'll be paying their lawyers significantly more and they won't see class actions go away as a result of that. That may be true, but the bill is causing alarm. What part do you think is most problematic? JE: This requirement that people have to have suffered similar types and scope of harm. It is unbelievably unclear what that means. It probably isn't as much as a sea change as people will think. It'll just delay the case. Isn't this what the proposed class action reform bill of 2015 aimed to address: so-called "no injury" class actions? JE: That bill was more dangerous. Under that bill, it seemed like it would be almost impossible to get a class certified the way it was written up. It was like everybody had to have suffered exactly the same injury. This is broader than that. Under this legislation, it's the same type and scope of injury, whatever that might mean, but it seems to be broader and more in keeping with what the law might be. What else concerns you about the bill? JE: There's actually a much smaller part of the bill which would be really problematic and makes no sense and that talks about potential conflicts. You can't have a class rep who's a family member, someone who works with you. That's fine. But then they go further and say you can't have them be a class rep if you've ever represented them before in any case. And that's crazy. Congress coming in and telling people, "no, you can't use your attorney, you have to find someone you don't know at all," is really shocking and should be offensive to all attorneys. I think it would face constitutional challenges. People have a right to choose their lawyer. The other part of the bill which is interesting to me is they talk about you essentially can't have a class action unless the vast majority of the class members will actually be paid. You have to figure out a way a substantial majority will actually get the checks, and that will be something that bites corporate America in the rear. Defendants are the ones who love low claims rates. They love the fact there's $100 million of liability but because only 10 percent of the class comes forward they pay $10 million. The bill would require reporting class action settlement data to the Federal Judicial Center and the Administrative Office of the U.S. Courts. This appears to be the one area where people on both sides have tended to agree. What do you think? JE: I like that. Again, I think transparency is good. So the fact that there'd be better reporting requirements and the light would shine on how settlements are structured is a positive thing. There are a lot of requirements that could change how plaintiff lawyers make money: The percentage of the settlement that goes to fees must be tied to the actual amount paid to plaintiffs, and lawyers would be required to disclose third party financing. Could this be a barrier in pursuing class actions? JE: I don't see that as a big change. We should get paid based on the actual amounts that the class gets. So that's fine. The idea that litigation financing has to be disclosed is something which I don't have a problem with at all. In general, disclosure is a good thing. In multidistrict litigation, the bill requires that 80 percent of settlements go to clients. What does that mean for the plaintiffs bar? JE: Again, courts can manage their own dockets, and the idea that every case is the same doesn't make any sense at all. It's fine to keep a check on attorney fees, but you don't want to have a hard and fast rule which is going to end up making it so injured people can't find lawyers. That would be a bad thing. * Plaintiffs' Lawyers Benefit More from Food Labeling Litigation ---------------------------------------------------------------- Lisa A. Rickard, the president of the U.S. Chamber Institute for Legal Reform, in an article for FoodDIVE, reports that food labeled as "healthy," "natural" or "preservative-free" might attract a consumer's interest when shopping at their local grocery store. But these labels also attract plaintiffs' lawyers looking to cash in on different interpretations of those words. Lawsuits over food labeling can bring big paydays for attorneys, but leave consumers with nothing more than higher prices in the checkout line. Food labeling litigation has become a growing legal industry in recent years, with more than 425 active cases in federal courts between 2015 and 2016 -- a staggering increase from the 19 cases in 2008 -- according to "The Food Court: Trends in Food and Beverage Class Action Litigation," a new study by the U.S. Chamber Institute for Legal Reform. This trend is particularly prevalent in the federal courts of four states where three-quarters of food class action suits are filed: California (36%), New York (22%), Florida (12%) and Illinois (7%). This isn't surprising, as three of these states are at the very bottom of the list of worst climates for lawsuits in America. U.S. District Judge Robert Hinkle of the Northern District of Florida presided over a case that claimed Tito's Handmade Vodka deceived the public by advertising its product as made in an "old- fashioned pot." The plaintiffs asserted in their allegations that the pot was not old-fashioned enough. Luckily, Judge Hinkle found the plaintiffs' definition too narrow, finding the pot "may be quite modern in some respects, but [it] still can be called 'old fashioned.' " Some state courts, such as those in Missouri, also see significant food litigation. In these states, attorneys have discovered that vague laws allowing them to challenge business practices as "unfair" or "deceptive," combined with courts that are hesitant to throw out even the most ridiculous of cases, are conducive to securing large settlements from food producers. Cases increasingly target products marketed as healthy. Lawyers often claim, for instance, that images of fruits and vegetables might somehow mislead a consumer to believe the product is healthier than it actually is. Most consumers know that eating doughnuts won't help increase their intake of potassium and vitamins A and K, but a lawsuit against Krispy Kreme claims the plaintiffs were deprived of the nutritional value of real berries from the doughnut maker's raspberry filling. Breakfast cereals with added sugar have also been targeted in this way, with litigators arguing that consumers may mistakenly believe Cocoa Puffs and Lucky Charms are healthy simply because they are labeled as containing whole grains. "Slack fill" litigation, or suits that challenge the extra space in food packaging, are also common. Fortunately, courts have thrown out some of the most questionable cases -- including claims that ice in Starbucks iced coffee deceptively reduces the amount of coffee in the cup, or that containers of Nabisco mini-Oreos are deceptively larger than the amount of cookies inside, despite labels that indicate the precise number included. Other slack fill suits have forced food and beverage producers to settle for significant sums. Faced with steep litigation costs and reputational harm, there is often little choice. The attorneys leading this class action litigation trend don't appear to have much respect for the consumers they claim to represent. The arguments grounding the suits assume consumers lack not only nutritional knowledge, but also the basic cognitive skills required to read a product's ingredients and make educated decisions. While the merit in the plaintiffs' lawyers' arguments could be debatable, there is no debate over whether consumers actually benefit from these lawsuits. They don't. In the lawsuit against Subway over their signature foot-long subs, which allegedly did not measure a full 12 inches, the lawyers received over $500,000 in the settlement. The majority of plaintiffs received nothing. In other cases, plaintiffs are forced to choose between a free product or token cash. In 2013, Red Bull settled a class action suit that claimed its slogan "Red Bull gives you wings" led consumers to believe the drink provided more benefits than coffee or caffeine pills. The plaintiffs' lawyers walked away with $3.4 million, while class members received a 4-pack of Red Bull or $4.23. There are ways food litigation could be more equitable to consumers. Different branches of government all need to get involved and do a part. This includes: -- Congress should pass the Fairness in Class Action Litigation Act, which will alleviate many of the problems discussed in this paper by eliminating "no-injury" class actions and requiring that the majority of settlement dollars go to the class members, instead of to the lawyers. -- Courts should reject attorney fee awards that are disproportionate to the actual benefit to consumers. -- State legislatures should amend consumer protection statutes to require that plaintiffs show actual injury, reliance, and out- of-pocket loss. -- Regulatory agencies should provide clarity on common labeling terms, and closing off further litigation avenues. Shopping for groceries is a part of life. Consumers shouldn't have to pick up the costs for attorneys who shop for lawsuits. ********* 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 * * *