/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170406.mbx C L A S S A C T I O N R E P O R T E R Thursday, April 6, 2017, Vol. 19, No. 69 Headlines AARON'S INC: Bid to Strike Sherr Report Granted ABM INDUSTRIES: Air Serv Faces New Suit Over Minimum Wage Issues ABM INDUSTRIES: Awaits Approval of "Augustus" Suit Settlement ABM INDUSTRIES: "Bucio" Suit Parties File Supplemental Briefs ABM INDUSTRIES: Signs Deal to Settle "Karapetyan" Suit for $5MM ADVANCED MICRO: J. Lackey's Bid to Intervene in "Hatamian" Denied AMERICAN RENAL: Response to Securities Complaint Due This Month ANNELLIE'S CAR: Faces Class Action Over Labor Code Violations APOLLO GLOBAL: Arizona Court to Dismiss Shareholder Suit APPLE INC: Court Partially Grants Summary Judgment AR RESOURCES: Loses Bid to Dismiss New Jersey FDCPA Suit ARCHDIOCESE OF LOS ANGELES: Sued for Not Maintaining Cemetery ARROWHEAD PHARMACEUTICALS: Securities Class Suits Consolidated AUSTRALIA: Queensland Faces Second Class Action Over 2011 Floods BARRETT BUSINESS: Wins Final OK of $12MM Deal in Securities Suit BELL: Ontario Court Allows Billing Class Action to Proceed BLUEMERCURY INC: Court Narrows Claims in "Espinosa" BOB EVANS: Time to Appeal Final Settlement Approval Has Expired BRIXMOR PROPERTY: Mediation Underway in Pension Fund's Suit BROWN AND JOSEPH: "Orea" Sues Over Illegal Collection Calls CABLEVISION SYSTEMS: "Krafczek" Sues Over Unfair Billing Practice CELADON GROUP: To Appeal Judgment in "Wilmoth" Suit CENTURY ALUMINUM: Final Settlement Approval Expected in Q3 CIENA CORP: Awaits Decision on Bid to Toss 3rd Amended Complaint CIENA CORP: Supreme Court Appeal in Securities Suit Underway CNA FINANCIAL: Class Suit over 401(k) Plus Plan Underway COLUMBIA BRANDS: "Cardenas" Sues Over Unpaid Overtime CONSOLIDATED COMMUNICATIONS: Defends "Vento" Suit in Delaware DENTAL SUPPLIES: Comfort Care Seeks Compliance of Subpoena DIPLOMAT PHARMACY: Defends Securities Class Suit in Michigan EASTERN PLUMAS: "Perez" Sues Over Unpaid Overtime, Missed Breaks ELECTRICITY MAINE: Billing Practices Suit May Become Class Action ELWYN: "Garcia" Sues Over Missed Meal/Rest Breaks, No Pay Stubs ENTEROMEDICS INC: Defends "Du" Shareholder Suit in Delaware EVERBANK FINANCIAL: Claims Administration Process Underway EVERBANK FINANCIAL: MERS-Related Litigation Pending EXPEDIA INC: Opposed Request for Attorneys' Fee and Costs EXPEDIA INC: Motion for Summary Judgment in Nassau Suit Underway EXPEDIA INC: Town of Breckenridge's Appeal Remains Pending EXPEDIA INC: Appeal in Village of Bedford Park Suit Pending EXPEDIA INC: Court Trims Claims in Buckeye Tree Lodge Lawsuit EXPEDIA INC: Cases Against HomeAway.com Pending EYM KING: "Lockard" Seeks Unpaid Overtime Wages FIDELITY AND GUARANTY: Appeal in "Ludwick" Class Suit Underway FORD MOTOR: Settles Fiesta, Focus Transmission Class Action FORZA SAFETY: "Jones" Hit Retaliation, Seeks Overtime Pay H&R BLOCK: Appeal From Summary Judgment in "Perras" Suit Pending H&R BLOCK: Lopez's Motion for Class Certification Remains Pending HENDERSON KITCHEN: Employees File Wage Class Action INDEPENDENT BANK: Continues to Defend Stanford-Related Suit INSPERITY INC: Employee Retirement Plan Class Action Underway JACKSON NATIONAL: "Pease" Claims Retirement Plan Mismanaged KISLING NESTICO: Sued for Receiving Chiropractor Kickbacks LAPOLLA INDUSTRIES: Legal Fees Dispute in "Markey" Suit Underway LATTICE SEMICONDUCTOR: Robert Sellers Agrees to Drop Class Suit LOUISIANA: Sued over Solitary Confinement for Death Row Inmates LUFTHANSA: Judge Trims Claims in Class Action Over Flight Delays LULAROE: Plaintiffs Attorneys to Push Through Sales Tax Lawsuit MAJOR LEAGUE: Youth Soccer Club's Suit Dismissed MASIMO CORP: 11th Cir. Appeal in Product Liability Suit Pending MASIMO CORP: D.C. Cir. Appeal in Junk Fax Suit Pending MAXPOINT INTERACTIVE: Awaits Ruling on Bid to Review Dismissal MEMPHIS, TN: Seeks Sixth Circuit Review of Ruling in "Cole" Suit MIDLAND FUNDING: Walkabout Appeals W.D. Okla. Ruling to 10th Cir. NATIONAL COMMERCIAL: Fitz Jackson to Pursue Banking Fees Case NEW YORK: AAA Elite Hits NYSDOH for Proposed Reimbursement Cuts NIANTIC: Seeks Dismissal of Landowners' Pokemon Go Class Action NIKIL INC: Judge Tosses Class Action Over "Spam Vite" Texts NIMBLE STORAGE: Faces Securities Class Action OVASCIENCE INC: Lifshitz & Miller Files Securities Class Action PIXARBIO CORP: Securities Suit in Massachusetts Remains Pending PPL CORP: Dismissed from Cane Run Environmental Claims Suit REGENCY VILLAGE: "Ridley" Seeks Overtime, Sues Over Missed Breaks REGIONAL MANAGEMENT: Retirement Systems Appeal Class Suit Ruling SABRE CORP: Two Consumer Class Suits Still Pending in Texas SABRE CORP: Claims Remain Pending in S.D.N.Y. Class Suit SALIX PHARMACEUTICALS: Settles Stock Inflation Class Action SANTA FE, NM: Tenth Circuit Appeal Filed in "Moya" Class Suit SMART & FINAL STORES: "Dubon" Sues Over Unpaid Overtime Wages SPECTRUM PHARMACY: Faces Class Action Over Alleged Junk Faxes SPIRIT AEROSYSTEMS: May 2017 Trial in Boeing Indemnification Suit STRAIGHT PATH: To Settle "Zacharia" Shareholder Suit for $9.45MM SUNRUN INC: California Court Tosses Shareholder Class Suits TARGET CORP: Awaits Order on Bid to Toss Consolidated Complaint TARGET CORP: June 14 Hearing on Bid to Toss Amended ERISA Suit TEMPUR SEALY: Faces Class Action, May 23 Lead Plaintiff Deadline TOPGOLF INTL: "Reyes" Seeks Unpaid Overtime Pay, Tip Credits TRONC INC: Accrued Litigation Judgment Liability Up by $2-Mil. TURTLE BAY: "Markson" Sues Over Unauthorized SMS Ads TURTLE BEACH: Appeal Remains Pending in Nevada Supreme Court TYSON FOODS: Bids to Dismiss Broiler Chicken Suits Pending UNITED STATES: Horvath Appeals Ruling to Federal Circuit UNITED STATES: Insurers Have Until May 12 to Join Class Action UNIVERSAL AMERICAN: Parties Agree to Dismiss "Parshall" Suit UPA LLC: "Land" Sues Over Unattended Building Defects VALSPAR CORP: To Pay $140K for Fees & Costs in "Mitsopoulos" Suit WEST COAST TRUCKING: "Lazo" Sues Over Unpaid Overtime Wages WHIRLPOOL CORP: Consumer Claims Process to Be Completed This Year WILLBROS GROUP: Suit Over Financial Restatement Still Pending ZYNGA INC: $10MM Settlement in "Lee" Suit Remains Pending * 1st Annual Class Action Money & Ethics Conference on May 1 * Neil Gorsuch May Uphold Class Action Waivers, Attorney Says * Two Recent Rulings Illustrate Contrasting Spokeo Approaches ********* AARON'S INC: Bid to Strike Sherr Report Granted ----------------------------------------------- Magistrate Judge Susan Paradise Baxter of the United States District Court for the Western District of Pennsylvania granted Defendant's motion to strike new expert report filed by the plaintiffs in the case captioned, CRYSTAL BYRD, et al, Plaintiffs, v. AARON'S, INC., et al., Defendants, Case Nos. 1:11-CV-00101 (W.D. Pa.). On May 3, 2011, Plaintiffs Crystal and Brian Byrd, initiated the action. Plaintiffs allege that Defendants utilized spying software (PCRA software) to illegally intercept, access, monitor, and/or transmit electronic communications from their consumers' computers in violation of 18 U.S.C Section 2511, the Electronic Communications Privacy Act (ECPA). Currently, the operative complaint is Plaintiffs' Corrected Third Amended Complaint. Defendants remaining in the action are Aaron's Inc. and Aspen Way Enterprises, Inc. On July 1, 2013, Plaintiffs filed a motion for class certification in the action. Defendant Aaron's Inc. filed a brief in opposition, as well as an expert report from Dr. Aviel Rubin (Rubin Report), on August 19, 2013. Thereafter, Plaintiffs filed a reply brief on September 23, 2013, along with their own expert report from Dr. Micah Sherr (Original Sherr Report), who reviewed the Rubin Report in preparation for his rebuttal report. The Court issued a Report and Recommendation denying Plaintiffs' motion for class certification on January 31, 2014, which the District Court adopted as its opinion on March 31, 2014. On appeal, the Third Circuit Courts of Appeals reversed and remanded for further consideration. On October 14, 2016, Plaintiffs filed their Renewed Motion to Certify Class in the action. The September 2013 Sherr rebuttal report was included as an exhibit in support of the motion for class certification. Defendant Aaron's Inc. filed a Motion to Strike Plaintiffs' New Expert Report, arguing that the report is improper rebuttal testimony, it is untimely by more than three years, and Defendants will be prejudiced if it is allowed to stand. Additionally, Defendant Aaron's Inc. requests the Court to award Aaron's Inc. its costs and attorneys' fees in connection with the motion. In her Memorandum Opinion dated March 22, 2017, available at https://is.gd/0PPp8E from Leagle.com, Magistrate Baxter found that the Plaintiffs are attempting to establish a new theory and methodology in pursuit of its class certification and there is no reason why the Plaintiffs should be given three years to file a second rebuttal report, especially when Defendants have continued to rely on the Rubin Report and have maintained substantially similar arguments throughout that time. No additional costs attributed to Plaintiffs. Brian Byrd and Crystal Byrd are represented by Daniel C. Levin, Esq. -- dlevin@lfsblaw.com -- Edward C. Konieczny, Esq. -- ed@koniecznylaw.com -- and -- Frederick S. Longer, Esq. -- flonger@lfsblaw.com -- LEVIN SEDRAN& BERMAN -- and -- Aaron Z. Ahlquist, Esq. Andrea S. Hirsch, Esq. Christopher V. Tisi, Esq. James F. Green, Esq. Maury A. Herman, Esq. Michael W. Heaviside, Esq. Michelle A. Parfitt, Esq. HERMAN GEREL 230 West Peachtree St NW #2260, Atlanta, GA 30303 Tel: (404)880-9500 Aaron's, Inc. is represented by Neal R. Devlin, Esq. -- ndevlin@kmgslaw.com -- and -- Richard A. Lanzillo, Esq. -- rlanzillo@kmgslaw.com -- KNOX, MCLAUGHLIN, GORNALL& SENNETT -- Donald M. Houser, Esq. -- donald.houser@alston.com -- Jason D. Rosenberg, Esq. -- jason.rosenberg@alston.com -- Kristine McAlister Brown, Esq. -- kristy.brown@alston.com -- Thomas C.S. Pryor, Esq. -- spence.pryor@alston.com -- and -- William H. Jordan, Esq. -- bill.jordan@alston.com -- ALSTON & BIRD LLP Aspen Way Enterprises, Inc. is represented by Anthony J. Williott, Esq. -- ajwilliott@mdwcg.com -- and -- James A. McGovern, Esq. -- jamcgovern@mdwcg.com -- MARSHALL, DENNEHEY, WARNER, COLEMAN &GOGGIN -- Michele L. Braukmann, Esq. -- Michele.Braukmann@moultonbellingham.com -- MOULTON BELLINGHAM PC - - Theodore J. Kobus, III, Esq. -- tkobus@bakerlaw.com -- BAKER & HOSTETLER LLP ABM INDUSTRIES: Air Serv Faces New Suit Over Minimum Wage Issues ---------------------------------------------------------------- ABM Industries Incorporated's subsidiary is facing a new lawsuit initiated by employees and alleging failure to comply with minimum wage requirement, according to the Company's March 8, 2017, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2017. The lawsuit entitled Hussein and Hirsi v. Air Serv Corporation filed on January 20, 2016, pending in the United States District Court for the Western District of Washington at Seattle (the "Hussein case"), is a class action involving a class of certain hourly Air Serv employees at Seattle-Tacoma International Airport in SeaTac, Washington. The plaintiffs allege that Air Serv violated a minimum wage requirement in an ordinance applicable to certain employers in the local city of SeaTac ("the Ordinance"). Plaintiffs seek retroactive wages, double damages, interest, and attorneys' fees. This matter was removed to federal court. In a separate lawsuit brought by Filo Foods, LLC, Alaska Airlines, and several other employers at SeaTac airport, the King County Superior Court issued a decision that invalidated the Ordinance as it applied to workers at SeaTac airport. Subsequently, the Washington Supreme Court reversed the Superior Court's decision. There are disputes in federal court concerning the legality of the Ordinance, its applicability to employers at SeaTac airport, and whether the plaintiffs are entitled to retroactive wages, double damages, interest, and attorneys' fees. On February 7, 2017, a new lawsuit styled Abdirizak Isse et al. v. Air Serv Corporation (the "Isse case"), pending in the Superior Court of Washington for King County, was filed against Air Serv on behalf of sixty individual plaintiffs (who would otherwise be members of the Hussein class) who allege failure to comply with both the minimum wage provision and the sick and safe time provision of the Ordinance. If exposed to liability, the Company says it intends to seek reimbursement from its clients. ABM Industries Incorporated, which operates through its subsidiaries, is a leading provider of integrated facility solutions, customized by industry, that enable its clients to deliver exceptional facilities experiences. ABM's comprehensive services include electrical and lighting, energy solutions, facilities engineering, HVAC and mechanical, janitorial, landscape and turf, mission critical solutions, and parking, which the Company provides through stand-alone or integrated solutions. ABM INDUSTRIES: Awaits Approval of "Augustus" Suit Settlement ------------------------------------------------------------- ABM Industries Incorporated said in its Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 31, 2017, that it is awaiting approval of its subsidiary's $110 million settlement of the consolidated cases of Augustus, Hall, and Davis v. American Commercial Security Services, filed July 12, 2005, in the Superior Court of California, Los Angeles County (the "Augustus case"). The Augustus case is a certified class action involving alleged violations of certain California state laws relating to rest breaks. The case centers on whether requiring security guards to remain on call during rest breaks violated Section 226.7 of the California Labor Code. On February 8, 2012, the plaintiffs filed a motion for summary judgment on the rest break claim, and on July 31, 2012, the Superior Court of California, Los Angeles County (the "Superior Court"), entered judgment in favor of plaintiffs in the amount of approximately $89.7 million (the "common fund"). Subsequently, the Superior Court also awarded plaintiffs' attorneys' fees of approximately $4.5 million in addition to approximately 30% of the common fund. Under California law, post- judgment interest on a judgment accrues at a rate of 10% simple interest per year from the date the judgment is entered until it is satisfied. We appealed the Superior Court's rulings to the Court of Appeals of the State of California, Second Appellate District (the "Appeals Court"). On December 31, 2014, the Appeals Court issued its opinion, reversing the judgment in favor of the plaintiffs and vacating the award of $89.7 million in damages and the attorneys' fees award. The plaintiffs filed a petition for review with the California Supreme Court on March 4, 2015, and on April 29, 2015, the California Supreme Court granted the plaintiffs' petition. On December 22, 2016, the California Supreme Court rendered its decision, holding that on-call and on-duty rest breaks are prohibited by California law, and reversed the Appeals Court judgment on this issue. The amount of post-judgment interest as of December 22, 2016 was approximately $41.2 million. On February 6, 2017, ABM Security Services, Inc., a wholly-owned subsidiary of ABM Industries Incorporated, entered into a Class Action Settlement and Release Agreement with Plaintiffs Jennifer Augustus, Emanuel Davis, Delores Hall, and Carlton Anthony Waite, on behalf of themselves and the settlement class members, to settle the Augustus case (the "Augustus Settlement Agreement") on a class-wide basis for $110.0 million. The Augustus Settlement Agreement is contingent upon the approval of the Superior Court. ABM Industries Incorporated, which operates through its subsidiaries, is a leading provider of integrated facility solutions, customized by industry, that enable its clients to deliver exceptional facilities experiences. ABM's comprehensive services include electrical and lighting, energy solutions, facilities engineering, HVAC and mechanical, janitorial, landscape and turf, mission critical solutions, and parking, which the Company provides through stand-alone or integrated solutions. ABM INDUSTRIES: "Bucio" Suit Parties File Supplemental Briefs ------------------------------------------------------------- Parties in the consolidated cases of Bucio and Martinez v. ABM Janitorial Services filed on April 7, 2006, in the Superior Court of California, County of San Francisco (the "Bucio case"), filed with the appeals court their respective supplemental letter briefs, according to ABM Industries Incorporated's March 8, 2017, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2017. The Company said: "The Bucio case is a purported class action involving allegations that we failed to track work time and provide breaks. On April 19, 2011, the trial court held a hearing on plaintiffs' motion to certify the class. At the conclusion of that hearing, the trial court denied plaintiffs' motion to certify the class. On May 11, 2011, the plaintiffs filed a motion to reconsider, which was denied. The plaintiffs have appealed the class certification issues. The trial court stayed the underlying lawsuit pending the decision in the appeal. On August 30, 2012, the plaintiffs filed their appellate brief on the class certification issues. We filed our responsive brief on November 15, 2012." On January 18, 2017, the appeals court invited the parties to file supplemental letter briefs. ABM and plaintiffs each filed their respective supplemental letter briefs with the court on February 8, 2017. Oral argument relating to the appeal has not been scheduled. ABM Industries Incorporated, which operates through its subsidiaries, is a leading provider of integrated facility solutions, customized by industry, that enable its clients to deliver exceptional facilities experiences. ABM's comprehensive services include electrical and lighting, energy solutions, facilities engineering, HVAC and mechanical, janitorial, landscape and turf, mission critical solutions, and parking, which the Company provides through stand-alone or integrated solutions. ABM INDUSTRIES: Signs Deal to Settle "Karapetyan" Suit for $5MM --------------------------------------------------------------- ABM Industries Incorporated disclosed in its Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 31, 2017, that it entered into a Settlement Term Sheet to settle on a class-wide basis for $5 million the lawsuit captioned Karapetyan v. ABM Industries Incorporated and ABM Security Services, Inc., filed on October 23, 2015, pending in the United States District Court for the Central District of California (the "Karapetyan case"). The Karapetyan case is a putative class action in which the plaintiff seeks to represent a class of security guards who worked during time periods subsequent to the class period in the Augustus case. The plaintiff alleges that ABM violated certain California state laws relating to meal and rest breaks and other wage and hour claims. On January 30, 2017, ABM entered into a Settlement Term Sheet with plaintiff to settle the case on a class-wide basis for $5.0 million. This settlement is contingent upon the finalization of a long-form settlement agreement with respect to the Karapetyan case as well as the final approval by the United States District Court for the Central District of California and the final approval by the Superior Court of the Augustus Settlement Agreement. ABM Industries Incorporated, which operates through its subsidiaries, is a leading provider of integrated facility solutions, customized by industry, that enable its clients to deliver exceptional facilities experiences. ABM's comprehensive services include electrical and lighting, energy solutions, facilities engineering, HVAC and mechanical, janitorial, landscape and turf, mission critical solutions, and parking, which the Company provides through stand-alone or integrated solutions. ADVANCED MICRO: J. Lackey's Bid to Intervene in "Hatamian" Denied ----------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California denied John F. Lackey's motion to intervene in the case captioned, BABAK HATAMIAN, et al., Plaintiffs, v. ADVANCED MICRO DEVICES, INC., et al., Defendants, Case No. 14-cv-00226 YGR (N.D. Cal.). Lead plaintiffs Arkansas Teacher Retirement System and KBC Asset Management NV bring the putative securities fraud class action pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. On January 15, 2014, plaintiffs publicized the pendency of the securities class action in accordance to the Private Securities Litigation Reform Act. John F. Lackey received a notice of the pendency of the action on December 28, 2016. Lackey was afforded an opportunity to opt out by January 19, 2017, and he did not. As such, Lackey is currently a class member. Lackey now moves pro se to intervene as a party plaintiff under Federal Rules of Civil Procedure 24(a) and 24(b). Lackey does not argue that a federal statute grants him the right to intervene in this action. Rather, he argues that he meets the four-factor test. In her Order dated March 22, 2017 available at https://is.gd/rNjnTB from Leagle.com, Judge Rogers concluded that Lackey has not demonstrated that the existing parties inadequately represent his interests and that has not demonstrated that the disposition of the matter without his participation could impair or impede his ability to protect the own interests. As to Rule 24(b), he failed to demonstrate how he meets the legal standard. BabakHatamian and LussuDennj Salvatore are represented by Joy Ann Kruse, Esq. -- jkruse@lchb.com -- LIEFFCABRASERHEIMANN& BERNSTEIN, LLP Advanced Micro Devices, Inc., et al. are represented by Patrick Edward Gibbs, Esq. -- pgibbs@cooley.com -- COOLEY LLP -- Jason C. Hegt, Esq. -- jason.hegt@lw.com -- Matthew Rawlinson, Esq. -- matt.rawlinson@lw.com -- and -- Melanie Marilyn Blunschi, Esq. -- melante.blunschi@lw.com -- LATHAM & WATKINS LLP AMERICAN RENAL: Response to Securities Complaint Due This Month --------------------------------------------------------------- American Renal Associates Holdings, Inc.'s response to an amended complaint in the securities lawsuit pending in Massachusetts is currently due in April 2017, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On August 31, 2016 and September 2, 2016, putative shareholder class action complaints were filed in the United States District Court for the Southern District of New York and the United States District Court for the District of Massachusetts, respectively, against the Company and certain officers and directors of the Company. Both complaints assert federal securities law claims against the Company and the individual defendants under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by the SEC and in addition, the complaint filed in the United States District Court for the Southern District of New York asserts claims under Sections 11 and 15 of the Securities Act. The complaints allege that the Company made material misstatements or omissions, including in connection with its initial public offering filings and other public filings. The complaints seek unspecified damages on behalf of the individuals or entities that purchased or otherwise acquired the Company's securities from April 20, 2016 to August 18, 2016. On October 26, 2016, the complaint filed in the Southern District of New York was voluntarily dismissed by the plaintiff without prejudice. On November 30, 2016, Lead Plaintiff was appointed for the putative shareholder class action complaint pending in the United States District Court for the District of Massachusetts, captioned Esposito, et al. v. American Renal Associates Holdings Inc., et al., No. 16-cv-11797 (the "Esposito Action"). On February 1, 2017, Lead Plaintiff in the Esposito Action filed an amended complaint against the Company, certain former and current officers and directors of the Company, and certain of the underwriters in the Company's initial public offering. The amended complaint asserts federal securities laws claims under Securities Act sections 11 and 15, as well as Exchange Act sections 10(b), 20(a), and Rule 10b-5. The Company's response is currently due in April 2017. In addition, the Company received a demand letter, dated January 27, 2017, from a purported shareholder relating to the subject matter covered by the United complaint and the class action complaints described, which could lead to the initiation of a shareholder derivative lawsuit against the Company and its board of directors. The Company says it intends to vigorously defend itself against these claims. American Renal Associates Holdings, Inc., is the largest dialysis services provider in the United States focused exclusively on joint venture ("JV") partnerships with physicians. As of December 31, 2016, the Company owned and operated 214 dialysis clinics in partnership with 379 nephrologist partners treating over 14,000 patients in 25 states and the District of Columbia. ANNELLIE'S CAR: Faces Class Action Over Labor Code Violations ------------------------------------------------------------- Jenie Mallari-Torres, writing for Florida Record, reports that a Broward County man alleges he was not paid a minimum wage while working at a car wash. Brandon Williams filed a complaint on behalf of himself and other similarly situated individuals on March 21 in the U.S. District Court for the Southern District of Florida, Fort Lauderdale Division against Annellie's Car Wash LLC and Rene L. Moreno citing the Fair Labor Standards Act. According to the complaint, the plaintiff worked for the defendants from March 2015 to December 2016. He alleges he worked more than 40 hours per week, and for a period of time worked for 70 hours each week. The plaintiffs hold Annellie's Car Wash LLC and Moreno responsible because the defendants allegedly misclassified plaintiff in direct violation of the labor code, failed to compensate plaintiff for all hours worked, failed to provide mandatory rest and meal break periods, and failed to provide plaintiffs with compliant and accurate itemized wage statements, and failed to pay overtime. The plaintiffs request a trial by jury and seek judgment against defendants, actual damages, double damages, attorneys' fees, costs of suit, and any further relief as the court deems just. He is represented by Zandro E. Palma of Zandro E. Palma PA in Miami. U.S. District Court for the Southern District of Florida, Fort Lauderdale Division Case number 0:17-cv-60577 APOLLO GLOBAL: Arizona Court to Dismiss Shareholder Suit -------------------------------------------------------- An Arizona court has indicated it will dismiss the case captioned, In re Apollo Education Group, Inc. Shareholder Litigation, unless the parties submitted a final judgment or stipulated dismissal, Apollo Global Management, LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on February 13, 2017, for the fiscal year ended December 31, 2016. Between February 25 and March 23, 2016, plaintiffs filed five putative class actions in the Superior Court of Maricopa County, Arizona, on behalf of purported stockholders of Apollo Education Group, Inc. The actions were captioned as follows: Casey v. Apollo Education Group, Inc., et al., CV2016-051605 (Ariz. Super. Ct. Feb. 25, 2016); Miglio v. Apollo Education Group, Inc., et al., CV2016-003718 (Ariz. Super. Ct. Feb. 26, 2016); Wagner v. Apollo Education Group, Inc., et al., CV2016-001905 (Ariz. Super. Ct. Mar. 9, 2016); Ladouceur v. Apollo Education Group, Inc., et al., CV2016-002148 (Ariz. Super. Ct. Mar. 17, 2016); Simkhovich v. Apollo Education Group, Inc., et al., CV2016-002339 (Ariz. Super. Ct. Mar. 23, 2016). The defendants include, among others, Apollo Education Group, Inc. ("AEG"), members of AEG's board of directors, AGM, Fund VIII, AP VIII Queso Holdings, L.P., which is a subsidiary of funds affiliated with Apollo Management VIII, L.P., and AGM, and Socrates Merger Sub, Inc., which is a wholly owned subsidiary of AP VIII Queso Holdings, L.P. The complaints allege that AEG's directors breached their fiduciary duties to AEG's stockholders by entering into a merger agreement that provides for AEG to be acquired by AP VIII Queso Holdings, L.P., and Socrates Merger Sub, Inc. Plaintiffs claim that AEG's directors engaged in a flawed sales process, agreed to a price that does not adequately compensate AEG's stockholders, and agreed to certain unfair deal protection terms in connection with the merger agreement. Two of the complaints further allege (1) that AEG's directors breached their fiduciary duty of candor by filing a materially incomplete and misleading preliminary proxy statement, and (2) that the sales process was flawed because of certain alleged conflicts with AEG's financial advisors. All the complaints allege that AP VIII Queso Holdings, L.P., and Socrates Merger Sub, Inc., aided and abetted the alleged breaches. The complaints that name as defendants AGM and Fund VIII, allege that those entities also aided and abetted the alleged breaches. No amount of damages is specified in any of the complaints. On April 12, 2016, the Court consolidated all the actions under the following caption: In re Apollo Education Group, Inc. Shareholder Litigation, Lead Case No. CV2016-001905 (Ariz. Super. Ct.). The parties have informed the Court that they have entered into a memorandum of understanding providing for the settlement of the suit. The settlement contemplated by the memorandum will provide for the dismissal with prejudice on the merits and release of any and all claims by the proposed class against Defendants. The settlement also will recognize that the pendency of the suit was a factor in the decision by the purchasers of AEG to increase the price offered to acquire all of the outstanding shares of AEG's common stock from $9.50 per share to $10.00 per share. The settlement is contingent upon the consummation of the merger agreement, Plaintiffs' taking confirmatory discovery, the execution of definitive settlement papers, certification of the proposed class, and court approval. The parties asked the court to extend the deadline by which the Plaintiffs must file an amended consolidated complaint or designate an operative complaint until November 8, 2016. The Court responded with an order explaining that the case will be dismissed on December 9, 2016, unless the parties submit a stipulated judgment or stipulated dismissal before that date, or the court otherwise extends the deadline for good cause. On December 9, 2016, the parties requested that the court extend the deadline by which Plaintiffs must file their amended complaint to March 10, 2017. The motion explained that the Department of Education had provided its response to a pre-acquisition application for approval of the merger agreement, indicating that the continuing participation of the University of Phoenix in Title IV programs following consummation of the merger would be subject to certain conditions. The motion further explained that the defendants were evaluating the Department of Education's response, its implications for the merger, and that any closing of the merger would be delayed. On December 15, 2016, the Court responded to the parties' motion with an order explaining that it would dismiss the case on March 10, 2017, unless the parties submitted a final judgment or stipulated dismissal before that date, or the Court otherwise extends the deadline for good cause. Because this action is in its early stages, no reasonable estimate of possible loss, if any, can be made at this time. Apollo Global Management, LLC is a global alternative investment manager whose predecessor was founded in 1990. Its primary business is to raise, invest and manage private equity, credit and real estate funds as well as strategic investment accounts, on behalf of pension, endowment and sovereign wealth funds, as well as other institutional and individual investors. APPLE INC: Court Partially Grants Summary Judgment ---------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the United Stated District Court for the Northern District of California granted in part Apple, Inc.'s motion for summary judgement in the case captioned, ZACK WARD, ET AL., Plaintiffs, v. APPLE INC., Defendant, Case No. 12- CV-05404-YGR (N.D. Cal.). Plaintiffs Ward and Buchar bring the putative class action against defendant Apple Inc. alleging violations of Section 2 of the Sherman Act for a conspiracy to monopolize trade in the market for iPhone voice and data services. Plaintiffs seek to represent a class of persons who purchased iPhones and paid for voice and data service from AT&T between October 19, 2008 and February 3, 2011 (Class Period). Plaintiffs bring a single claim against Apple under Section 2 of the Sherman Act, alleging that Apple conspired with AT&T to monopolize an aftermarket for iPhone voice and data services. Apple contends that no such illegal antitrust aftermarket exists under applicable laws and economic theories. Mason appeals only from the court's dismissal of her claim under the Loss Recovery Statute. Mason argues that the district court erred in dismissing pursuant to Rule 12(b)(6) her claim under the Loss Recovery Statute. She contends that she lost money while playing in the virtual casino, which she asserts is an unlawful "gaming device" within the meaning of the Loss Recovery Statute. In her Order dated March 22, 2017, available at https://is.gd/qoDT1R from Leagle.com, Judge Rogers found that with regard to the sale of the iPhone and the purchase of the initial two-year service plan with AT&T, there is no relevant antitrust aftermarket, and, with respect to the more narrow claims because AT&T did not begin providing unlock codes for such phones until April 2012. Thomas Buchar and Zack Ward are represented by Alexander H. Schmidt, Esq. -- schmidt@whafh.com -- Francis M. Gregorek, Esq. -- - Gregorek@whafh.com -- Mark Carl Rifkin, Esq. -- rifkin@whafh.com -- Michael Milton Liskow, Esq. -- liskow@whafh.com -- Rachele R. Rickert, Esq. -- rickert@whafh.com -- and -- Randall Scott Newman, Esq. -- Newman@whafh.com -- WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Apple Inc. is represented by Christopher S. Yates, Esq. -- chris.yates@lw.com -- Daniel Murray Wall, Esq. -- dan.wall@lw.com -- and -- Sadik Harry Huseny, Esq. -- sadik.huseny@lw.com -- LATHAM & WATKINS LLP AR RESOURCES: Loses Bid to Dismiss New Jersey FDCPA Suit -------------------------------------------------------- Judge Freda L. Wolfson of the United States District Court for the District of New Jersey denied Defendant's motion to dismiss the case captioned, RAFAEL KASSIN, on behalf of himself and all others similarly situated, Plaintiff, v. AR RESOURCES, INC. Defendant, Case No. 16-4171 (FLW)(N.D.J.). Plaintiff Rafael Kassin (Plaintiff) filed the putative class action against a collection agency, Defendant AR Resources (Defendant or ARR), on behalf of himself and all other similarly situated individuals, asserting violations of the Fair Debt Collection Practices Act (FDCPA or Act), 15 U.S.C. Section 1692, et seq., in connection with a debt collection letter that he received from Defendant. On February 18, 2016, Plaintiff received a debt collection letter from Defendant, a debt collection agency. The one page letter demanded payment on behalf of "Select Medical - Kessler" (Select Medical) in the amount of $3756.55, and directed Plaintiff to contact ARR in the event that the subject debt was covered by Plaintiff's insurance: "If you carry any insurance that may cover this obligation, please contact ARR's office at the number above." The letter concluded with a validation notice written in bold text, as mandated by the FDCPA. In lieu of an answer, Defendant moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) argues that the collection letter is in compliance with the standard set forth in Caprio v. Healthcare Revenue Recovery Group, LLC, 709 F.3d 142, 148 (3d Cir. 2013), because it does not explicitly direct a debtor to dispute a debt by telephone. In her Opinion dated at March 22, 2017 at https://is.gd/90Le7F from Leagle.com, Judge Wolfson held that it would be inappropriate for the Court to dismiss Plaintiff's Complaint because the statement in regard to Plaintiff's insurance plan, as alleged, may reasonably be interpreted to suggest that the debt could be disputed by calling Defendant. Rafael Kassin is represented by Ari Hillel Marcus, Esq. -- Ari@MarcusZelman.com -- and -- Yitzchak Zelman, Esq. -- Yitzchak@MarcusZelman.com -- MARCUS ZELMAN LLC AR Resources, Inc. is represented by Mark Richard Fischer, Jr., Esq. -- mfischer@highswartz.com -- HIGH SWARTZ LLP ARCHDIOCESE OF LOS ANGELES: Sued for Not Maintaining Cemetery ------------------------------------------------------------- SoCal Patch reports that two people are suing the Archdiocese of Los Angeles, alleging that a Mission Hills cemetery is in such disrepair that they cannot find their loved ones' graves. William Howard and Jodi Howard filed the proposed class-action suit on March 24 in Los Angeles Superior Court, alleging breach of contract, negligence and fraud. The lawsuit does not state the relationship, if any, between the plaintiffs, whose attorney, Jeffrey Spencer, could not be immediately reached. The suit seeks unspecified damages, plus the creation of a trust so that any wrongfully obtained monies can be returned to the class plaintiffs. An archdiocese spokeswoman said the lawsuit has not yet been served so she had no comment on its allegations, but she issued a general statement about Catholic cemeteries. "The care of our burial grounds is a priority for our Catholic cemeteries as a ministry of the church," the statement read. "Catholic cemeteries, as religious ministries, are not required under state law to create a financial reserve for an endowment care fund. However, the Archdiocese of Los Angeles voluntarily maintains a designated fund that is equivalent to what is required by state law to ensure the perpetual care and maintenance of the final resting places of our Catholic faithful." According to the lawsuit, San Fernando Mission Cemetery is the burial location of William Howard's parents and brother as well as Jodi Howard's sister and grandparents. Burial contracts with the archdiocese call for 15 percent of the amounts paid to be devoted to cemetery maintenance, the suit states. However, the archdiocese is failing to use the cemetery maintenance fund monies at its burial grounds, leaving them "desecrated" and "in a state of disrepair and neglect," according to the complaint. The gravesites are covered in weeds and grave markers have been lost, damaged or removed, the suit alleges. "Plaintiffs . . . cannot locate the gravesites of their decedents . . .," the suit states. "There can be no peace of mind or assurance of a dignified and respectful final resting place ... due to defendants' misconduct." ARROWHEAD PHARMACEUTICALS: Securities Class Suits Consolidated -------------------------------------------------------------- Three securities class action lawsuits against Arrowhead Pharmaceuticals, Inc. et al. have been consolidated at the behest of Joel Kuhn, according to an Order dated March 8, 2017, issued by Judge Philip S. Gutierrez. The Court also granted Kuhn's request for appointment of lead plaintiff and the appointment of Levi & Korsinsky LLP as lead counsel. Movants Dean Flora, Stefan Muenchhagen and Mahir Patel also sought their appointment as lead plaintiffs and of Rosen Law Firm as lead counsel. On March 23, Judge Gutierrez directed the plaintiffs to file an amended complaint. Arrowhead Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 6, 2017, for the quarterly period ended December 31, 2016, that the Company and certain executive officers were named as defendants in related putative securities class actions filed on November 15, 2016, December 2, 2016 and January 13, 2017 in the Central District of California and respectively captioned: -- Meller v. Arrowhead Pharmaceuticals, Inc., et al., No. 2:16-cv-08505, -- Siegel v. Arrowhead Pharmaceuticals, Inc., et al., No. 2:16-cv-8954, and -- Unz v. Arrowhead Pharmaceuticals, Inc., et al., No. 2:17-cv-00310. The cases have been consolidated under "Meller". The plaintiffs bring claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 regarding certain public statements in connection with the Company's drug research programs and seek damages in an unspecified amount. Additionally, a putative stockholder derivative action captioned Johnson v. Anzalone, et al., (Los Angeles County Superior Court, filed January 19, 2017) asserting substantially similar claims is pending in Los Angeles County Superior Court. The Company believes it has meritorious defenses and intends to vigorously defend itself in these matters. The Company makes provisions for liabilities when it is both probable that a liability has been incurred and the amount can be reasonably estimated. No such liability has been recorded related to these matters. The Company cannot predict the ultimate outcome of this matter and cannot accurately estimate any potential liability the Company may incur or the impact of the results of this matter on the Company. With regard to legal fees, such as attorney fees related to these matters or any other legal matters, the Company recognizes such costs as incurred. Arrowhead Pharmaceuticals, Inc. is a biopharmaceutical company that develops novel drugs to treat intractable diseases in the United States. AUSTRALIA: Queensland Faces Second Class Action Over 2011 Floods ---------------------------------------------------------------- Emma Clarke, writing for The Queensland Times, reports that up to 700 Ipswich businesses and individuals are expected to be part of a new multi-million civil case into losses from the 2011 floods. A second class action following the flooding event will look into compensation for property owners who suffered losses which were not directly related to physical damage. The lawyers behind the claim have Ipswich businesses and individuals in the firing line for "hundreds of millions" of dollars in potential damages. It was spearheaded by businesses man Phil Hassid's case who's Ipswich development's value was significantly impacted by the floods. Gillis Delaney Lawyers senior partner Michael Gillis -- mjg@gdlaw.com.au -- said the new class action focused on Ipswich property values which failed to re-surface from the flood damage. He said up to 700 businesses and individuals could be part of the case and had a strong claim to make. "There are no doubt significant landholdings in the Ipswich area. The people of Ipswich has now fallen a long way behind since the floods when you look at property values. The critical timing of that was the floods," he said. "What we're tyring to do is build a book of people to see the size of the people that want to be involved and the extent of the class." Despite focusing on Ipswich businesses and individuals, the 52-day hearing will take place in New South Wales Supreme Court. "At the time the proceedings commenced, the Queensland Supreme Court did not have a class action division and subsequently has in February started up its own class action division, so that's why it's down in New South Wales as New South Wales had the class action division," Mr Gillis said. Details of how to be involved will be available on the Gillis Delaney Lawyers website. BARRETT BUSINESS: Wins Final OK of $12MM Deal in Securities Suit ---------------------------------------------------------------- The U.S. District Court for the Western District of Washington has entered final approval of Barrett Business Services, Inc.'s $12 million settlement to resolve the consolidated securities litigation, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On November 6, 2014, plaintiffs in Michael Arciaga, et al. v. Barrett Business Services, Inc., et al., filed an action in the United States District Court for the Western District of Washington against BBSI, Michael L. Elich, BBSI's Chief Executive Officer, and James D. Miller, BBSI's then Chief Financial Officer. The action purported to be a class action brought on behalf of all BBSI shareholders alleging violations of the federal securities laws. The claims arose from the decline in the market price for BBSI common stock following announcement of a charge for increased workers' compensation reserves expense. The lawsuit sought compensatory damages, plus interest, and costs and expenses (including attorney fees and expert fees). On November 13, 2014, a second purported shareholder class action was filed in the United States District Court for the Western District of Washington, entitled Christopher P. Carnes, et al. v. Barrett Business Services, Inc., et al. The Carnes complaint named the same defendants as the Arciaga case and asserted similar claims for relief. Similarly, on November 17, 2014, a third purported shareholder class action was filed in the United States District Court for the Western District of Washington, entitled Shiva Stein, et al. v. Barrett Business Services, Inc., et al. The Stein complaint named the same defendants as the Arciaga and Carnes cases and asserted similar claims for relief. On February 25, 2015, the court ordered consolidation of the three cases, and any new or other cases involving the same subject matter, into a single action for pretrial purposes. The consolidated cases were recaptioned as In re Barrett Business Services Securities Litigation. The court also appointed the Painters & Allied Trades District Council No. 35 Pension and Annuity Funds as the lead plaintiff. On March 21, 2016, before the court had ruled on the defendants' motion to dismiss the plaintiffs' first amended consolidated complaint, the plaintiffs filed a second amended consolidated complaint, naming the same defendants. The second amended consolidated complaint dropped certain allegations from the first amended complaint and added new allegations relating to disclosures in BBSI's Current Report on Form 8-K filed on March 9, 2016. The defendants filed a motion to dismiss the second amended consolidated complaint on May 23, 2016. On October 26, 2016, before the court ruled on the motion to dismiss, the parties entered into a Stipulation and Agreement of Settlement dated as of October 26, 2016 (the "Settlement"), to settle the litigation. The settlement class includes all persons and entities who purchased or otherwise acquired BBSI common stock in the period beginning February 12, 2013, through March 9, 2016, and were damaged thereby, with certain exclusions. The Settlement is intended to fully, finally and forever compromise, settle, release, resolve, and dismiss with prejudice the purported class action and all claims asserted therein against the named defendants. In the Settlement, the defendants have denied all allegations of wrongdoing and the plaintiffs have not conceded any infirmities in their positions. The Settlement called for the payment in cash of $12.0 million (the "Settlement Fund") into escrow by November 29, 2016. Of this amount, approximately $8.7 million was paid by BBSI's insurance carriers and approximately $3.3 million was paid by BBSI. The Settlement is subject to approval by the court and to other customary terms and conditions. All potential class members were notified of the Settlement in November 2016, and no requests to opt out of the class were received by the deadline. Final approval of the settlement was received at a court hearing held on February 22, 2017. The fees of counsel for the plaintiffs will be paid out of the Settlement Fund following approval by the court. Barrett Business Services, Inc., is a leading provider of business management solutions for small and mid-sized companies. The Company has developed a management platform that integrates a knowledge-based approach from the management consulting industry with tools from the human resource outsourcing industry. BELL: Ontario Court Allows Billing Class Action to Proceed ---------------------------------------------------------- Mobile Syrup's Rose Behar, citing Rochon Genova, reports that Bell recently sent out emails notifying certain past and present customers that the Ontario Superior Court of Justice has allowed a class action suit against the telecom to proceed. In its email, the operator outlines the action, which alleges Bell is in breach of its contracts with customers and consumer protection legislation by its billing practice of rounding up calls to the next full minute, affecting customers subscribed between August 18th, 2006 and October 1st, 2009. The company says it denies any liability, but notes that customers may be eligible for compensation if it receives an unfavourable verdict. Affected customers are automatically included in the class action, but can choose to exclude themselves if they submit an opt-out form by April 30th, 2017. The law firms guiding the suit, Rochon Genova and Karp Litigation, have provided more detailed instructions on the Rochon Genova website and a dedicated perminuteclassaction.com website. The lawsuit first gained publicity alongside a similar per-minute rounding suit against Telus in November 2014. The Telus case appears to remain static. The per-minute rounding practice meant that if customer calls extended one second past a minute, for instance, the customer would receive billing for two minutes' use. BLUEMERCURY INC: Court Narrows Claims in "Espinosa" --------------------------------------------------- Judge Jon S. Tigar of the United States District Court for the Northern District of California granted in part Defendants' Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) in the case captioned, SANDRA ESPINOSA, Plaintiff, v. BLUEMERCURY, INC., et al., Defendants, Case Nos. 16-CV-7202-JST (N.D. Cal.). Plaintiff filed the purported class action on December 16, 2016, bringing claims against Bluemercury, Inc., Macy's, Inc., and Does 1-100, inclusively (Defendants), for violations of 15 U.S.C. Sections 1681b(b)(2)(A) (Fair Credit Reporting Act (FCRA)), 15 U.S.C. Sections 1681d(a)(1) and 1681g(c) (Fair Credit Reporting Act), California Civil Code Section 1786 et seq., California Civil Code Section 1785 et seq., failure to pay hourly wages under Labor Code Sections 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198, failure to provide accurate written wage statements under Labor Code Section 226(a), failure to timely pay all final wages under Labor Code Sections 201-203, unfair competition under Business and Professions Code Sections 17200, et seq., and failure to pay employees for all hours worked under 29 U.S.C. Section 201, et seq. Plaintiff alleges that Defendants routinely acquire consumer, investigative consumer and/or consumer credit reports (credit and background reports) to conduct background checks on Plaintiff and other prospective, current and former employees and use information from credit and background reports in connection with their hiring process" in violation of the various statutes described above. Plaintiff also alleges that "Defendants failed to pay the purported class the correct regular rate of pay and the correct overtime rate of pay, failed to provide them with accurate written wage statements, and failed to timely pay them all of their final wages following separation of employment." The Complaint seeks "unpaid wages, restitution, and related relief. On January 9, 2017, Defendants filed a motion to dismiss Espinosa's Complaint. Defendants argue that Espinosa's First through Fourth, Seventh, and Ninth causes of action must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, that Espinosa's complaint fails in its entirety because it is a shotgun pleading, and that Espinosa lacks standing to pursue injunctive or declaratory relief. In his Order dated March 22, 2017 available at https://is.gd/xgSWxv from Leagle.com, Judge Tigar granted the motion to dismiss with regard to Espinosa's seventh cause of action because Plaintiff failed to plead facts to support her allegations of willfulness under Labor Code Section 203 and ninth cause of action without prejudice because Plaintiff now concedes that security checks are "noncompensable postliminary activities" and therefore not compensable under the FLSA, and her claims for injunctive and declaratory relief with prejudice and denied with regard to Espinosa's First through Fourth causes of action because the Court found that these claims are adequately pleaded. Sandra Espinosa is represented by Chaim Shaun Setareh, Esq. -- shaun@setarehlaw.com -- Howard Scott Leviant, Esq. -- scott@setarehlaw.com -- and -- Thomas Alistair Segal, Esq. -- thomas@setarehlaw.com -- SETAREH LAW GROUP Bluemercury, Inc. and Macy's, Inc. are represented by David S. Bradshaw, Esq. -- BradshawD@jacksonlewis.com -- and -- Nathan Wade Austin, Esq. -- AustinN@jacksonlewis.com -- JACKSON LEWIS P.C. BOB EVANS: Time to Appeal Final Settlement Approval Has Expired --------------------------------------------------------------- Bob Evans Farms, Inc., disclosed in its Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 27, 2017, that the time to appeal the final approval of its settlement resolving a class action lawsuit has expired. The Company said: "In the fourth quarter of fiscal 2016 we settled a class-action related to alleged violations of the Fair Labor Standards Act by misclassifying assistant managers as exempt employees and failing to pay overtime compensation during the period of time the employee worked as an assistant manager. In the first quarter of fiscal 2016 we reached an agreement in principle to resolve the litigation matter and recorded a $10,500 charge. In the fourth quarter of fiscal 2016, the Court issued a Final Approval Order on the settlement and the appeals period expired, and we recorded a favorable adjustment of $3,344. The charge and adjustment are included in results from discontinued operations in our Consolidated Statements of Net Income." Bob Evans Farms, Inc., produces and distributes a variety of complementary home-style, refrigerated side dish convenience food items and pork sausage under the Bob Evans(R), Owens(R) and Country Creek(R) brand names. These food products are available throughout the United States at grocery retailers. The Company also manufactures and sells similar products to food-service accounts, including Bob Evans Restaurants and other restaurants. BRIXMOR PROPERTY: Mediation Underway in Pension Fund's Suit ----------------------------------------------------------- In the case captioned, Westchester Putnam Counties Heavy and Highway Laborers Local 60 Benefit Funds v. Brixmor Property Group, Inc. et al., Case No. 1:16-cv-02400 (S.D.N.Y.), Magistrate Judge Sarah Netburn on March 10, 2017, entered an Order granting the parties' joint request to adjourn the deadline for defendants to file pre-motion letters from March 20 until 10 days after notification from the parties that the mediation was unsuccessful. In light of the parties' representation that the mediation process can be concluded by the end of May 2017, the parties are directed to submit a joint report on the status of mediation by no later than May 31, 2017, though if the mediation is completed before then, they should inform the Court on the outcome as soon as practicable. Brixmor Property Group Inc. and Brixmor Operating Partnership LP said in their Form 10-K Report filed with the Securities and Exchange Commission on February 13, 2017, for the fiscal year ended December 31, 2016, that prior to the Company's February 8, 2016 announcement, the Company voluntarily reported to the SEC the matters described. The SEC has commenced an investigation with respect to these matters, and the Company is cooperating fully. In addition, the Company was contacted by the United States Attorney's Office for the Southern District of New York which advised that it is investigating these matters as well and the Company is cooperating fully. On March 31, 2016, the Company and the former officers referenced above were named as defendants in a putative securities class action complaint filed in the United States District Court for the Southern District of New York (the "Court"). The complaint, captioned Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds v. Brixmor Property Group Inc., et al. (Case No. 16-CV-02400 (AT)), asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 based on the facts described in the Company's February 8, 2016 press release and Form 8-K. Pursuant to a stipulation between the parties, plaintiffs are required to file their amended complaint no later than February 16, 2017. The Company believes it has valid defenses in this action and intends to vigorously defend itself. Brixmor Property Group Inc. engages in the ownership, management, leasing, acquisition and development of retail shopping centers. BROWN AND JOSEPH: "Orea" Sues Over Illegal Collection Calls ----------------------------------------------------------- Alfredo Leon Orea, individually and on behalf of all others similarly situated, Plaintiff, v. Brown And Joseph Ltd., and Does 1 through 10, inclusive, and each of them, Defendant, Case No. 3:17-cv-01737 (N.D. Cal., March 29, 2017) seeks damages and any other available legal or equitable remedies resulting from violations of the Telephone Consumer Protection Act. Brown and Joseph is a debt collection company who contacted Plaintiff on his cellular telephone number in an attempt to collect on an alleged debt. Defendant used an automatic telephone dialling system to place its frequent and incessant collection calls that were not for emergency purposes for which Plaintiff incurred charges for incoming calls. Defendant did not possess Plaintiff's prior express consent to receive such calls. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com CABLEVISION SYSTEMS: "Krafczek" Sues Over Unfair Billing Practice ----------------------------------------------------------------- Christopher Krafczek, on behalf of himself and all other similarly situated, Plaintiff, v. Cablevision Systems Corporation and Neptune Hot-Dings US Corp., Defendants, Case No. 602715/2017, (N.Y. Sup., March 30, 2017), seeks restitution and disgorgement of Defendants' revenues obtained illegally, actual, statutory and punitive damages and interest, reasonable attorneys' fees, costs and expenses and all other and further relief the Court may deem just and proper for violations of New York General Business Law. Defendants provide cable, internet and telephone services in the New York metropolitan area under the Optimum brand name. They allegedly bill consumers for the entirety of their then-current billing period even if they cancel their service and return their equipment before the end of their then-current billing period. [BN] Plaintiff is represented by: Marisa K. Glassman, Esq. John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin St., 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 222-2434 Email: mglassman@forthepeople.com ivanchunis@forthepeople.com CELADON GROUP: To Appeal Judgment in "Wilmoth" Suit --------------------------------------------------- Celadon Group, Inc. said it plans to appeal a judgment in a class action lawsuit to the Indiana Supreme Court, Celadon said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 10, 2017, for the quarterly period ended December 31, 2016. A Company subsidiary was named as the defendant in Wilmoth et al. v. Celadon Trucking Services, Inc., a class action proceeding. A summary judgment was granted in favor of the plaintiffs and upheld by the Indiana Court of Appeals in February 2017. The Company said, "We plan on appealing this judgment to the Indiana Supreme Court. We believe that we would be successful if the Indiana Supreme Court hears the appeal. However, we believe there is only a modest possibility that the court will hear the appeal. Accordingly, we have determined that it is probable that the summary judgment in favor of the plaintiffs will stand." "We had also been named as the defendant in Day et al. v. Celadon Trucking Services, Inc., a second class action proceeding. A judgment was granted in favor of the plaintiffs. We appealed this judgment, but the judgment was subsequently upheld. The estimated damages of $2.4 million were fully reserved in the June 30, 2016 fiscal quarter, and are still accrued for in other accrued expenses as of December 31, 2016. Subsequent to the quarter ended December 31, 2016, we have made payment on this judgment." Celadon Group, Inc. is a truckload carrier located in Indianapolis, Indiana. CENTURY ALUMINUM: Final Settlement Approval Expected in Q3 ---------------------------------------------------------- A subsidiary of Century Aluminum Company has reached a deal to resolve the case, HAROLD DEWHURST and DAVID BRYAN, on behalf of themselves and all other persons similarly situated, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, Plaintiffs, v. CENTURY ALUMINUM COMPANY, CENTURY ALUMINUM OF WEST VIRGINIA, INC., CENTURY ALUMINUM MASTER WELFARE BENEFIT PLAN, and DOES 1 THROUGH 20, Defendants, C.A. No. 2:09-cv-01546 (S.D. W.Va.) (Formerly C.A No. 2:09-cv-1033, S.D. Ohio), the Company said in its Form 8-K Report filed with the Securities and Exchange Commission on February 10, 2017. The settlement agreement is subject to final court approval which is not expected before the third quarter of 2017, Century Aluminum said in its Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed on March 14. "On February 9, 2017, Century Aluminum of West Virginia, Inc. ("CAWV"), a wholly-owned subsidiary of Century Aluminum Company ("Century"), entered into a Settlement Agreement (the "Settlement Agreement") in potential settlement of the previously disclosed retiree medical class action lawsuit pending before the District Court for the Southern District of West Virginia." "As previously disclosed, in November 2009 CAWV filed a class action complaint for declaratory judgment against the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (the "USW"), the USW's local and certain CAWV retirees, individually and as class representatives ("CAWV Retirees"), seeking a declaration of CAWV's rights to modify/terminate retiree medical benefits. Later in November 2009, the USW and representatives of a retiree class filed a separate suit against CAWV, Century, Century Aluminum Master Welfare Benefit Plan, and various John Does with respect to the foregoing (collectively, the "Century Entities"). These actions were consolidated under a lawsuit entitled Dewhurst, et al. v. Century Aluminum Co., et al., and Century Aluminum of West Virginia, Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, et al." A copy of the Settlement Agreement is available at https://is.gd/i6Ohsa Century Aluminum Company is a global producer of primary aluminum with aluminum reduction facilities, or "smelters," in the United States and Iceland. CIENA CORP: Awaits Decision on Bid to Toss 3rd Amended Complaint ---------------------------------------------------------------- Ciena Corporation awaits ruling on its and other defendants' motion to dismiss the third amended complaint in the consolidated shareholder lawsuit arising from its acquisition of Cyan, Inc., according to the Company's March 8, 2017, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2017. From May 15 through June 3, 2015, five separate putative class action lawsuits in connection with Ciena's then-pending acquisition of Cyan, Inc. ("Cyan") were filed in the Court of Chancery of the State of Delaware. On June 23, 2015, each of these lawsuits was consolidated into a single case captioned In Re Cyan, Inc. Shareholder Litigation, Consol. C.A. No. 11027-CB. On July 9, 2015, the plaintiffs filed a verified amended class action complaint, which named as defendants Ciena, a Ciena subsidiary created solely for the purpose of effecting the acquisition ("Merger Sub"), and the members of Cyan's board of directors. On August 5, 2015, the defendants filed motions to dismiss the amended complaint. On October 1, 2015, the plaintiffs filed a second amended complaint which named as defendants the members of Cyan's board of directors. Cyan, Ciena, and Merger Sub were not named as defendants. On July 15, 2016, the plaintiffs filed a third amended complaint, which generally alleges that the Cyan board members breached their fiduciary duties by engaging in a conflicted and unfair sales process, failing to maximize stockholder value in the acquisition, taking steps to preclude competitive bidding, and failing to disclose material information necessary for stockholders to make an informed decision regarding the acquisition. The third amended complaint seeks (i) a declaration that the plaintiffs are entitled to a quasi-appraisal remedy, (ii) rescissory damages, (iii) recovery through an accounting of all damages caused as a result of the alleged breaches of fiduciary duties, (iv) compensatory damages, and (v) costs including attorneys' fees and experts' fees. On August 5, 2016, the defendants filed a motion to dismiss the third amended complaint. Ciena believes that the consolidated lawsuit is without merit and intends to defend it vigorously. Ciena Corporation is a network strategy and technology company, providing solutions that enable a wide range of network operators to adopt next-generation communication architectures and to deliver a broad array of services relied upon by enterprise and consumer end users. The Company provides equipment, software and services that support the transport, switching, aggregation, service delivery and management of voice, video and data traffic on communications networks. CIENA CORP: Supreme Court Appeal in Securities Suit Underway ------------------------------------------------------------ The parties' motions for summary judgment in the consolidated securities lawsuit remain pending in California, Ciena Corporation said in its Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 31, 2017. As a result of the acquisition of Cyan Inc. in August 2015, Ciena became a defendant in a securities class action lawsuit. On April 1, 2014, a purported stockholder class action lawsuit was filed in the Superior Court of California, County of San Francisco, against Cyan, the members of Cyan's board of directors, Cyan's former Chief Financial Officer, and the underwriters of Cyan's initial public offering. On April 30, 2014, a substantially similar lawsuit was filed in the same court against the same defendants. The two cases have been consolidated as Beaver County Employees Retirement Fund, et al. v. Cyan, Inc. et al., Case No. CGC-14- 538355. The consolidated complaint alleges violations of federal securities laws on behalf of a purported class consisting of purchasers of Cyan's common stock pursuant or traceable to the registration statement and prospectus for Cyan's initial public offering in April 2013, and seeks unspecified compensatory damages and other relief. On May 19, 2015, the proposed class was certified. On August 25, 2015, the defendants filed a motion for judgment on the pleadings based on an alleged lack of subject matter jurisdiction over the case, which motion was denied on October 23, 2015. On May 24, 2016, the defendants filed a petition for a writ of certiorari on the jurisdiction issue with the United States Supreme Court, to which the plaintiffs filed a brief in opposition. On November 18, 2016, the parties each filed motions for summary judgment. Ciena believes that the consolidated lawsuit is without merit and intends to defend it vigorously. Ciena Corporation is a network strategy and technology company, providing solutions that enable a wide range of network operators to adopt next-generation communication architectures and to deliver a broad array of services relied upon by enterprise and consumer end users. The Company provides equipment, software and services that support the transport, switching, aggregation, service delivery and management of voice, video and data traffic on communications networks. CNA FINANCIAL: Class Suit over 401(k) Plus Plan Underway -------------------------------------------------------- A class action lawsuit related to CNA Financial Corporation's 401(k) Plus Plan remains pending, CNA Financial Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 15, 2017, for the fiscal year ended December 31, 2016. In September 2016, a class action lawsuit was filed against CCC, Continental Assurance Company (CAC), CNAF, the Investment Committee of the CNA 401(k) Plus Plan, The Northern Trust Company and John Does 1-10 (collectively Defendants) over the CNA 401(k) Plus Plan. The complaint alleges that defendants breached fiduciary duties to the CNA 401(k) Plus Plan and caused prohibited transactions in violation of the Employee Retirement Income Security Act of 1974 when the CNA 401(k) Plus Plan's Fixed Income Fund's annuity contract with CAC was canceled. The plaintiff alleges he and a proposed class of the CNA 401(k) Plus Plan participants who had invested in the Fixed Income Fund suffered lower returns in their CNA 401(k) Plus Plan investments as a consequence of these alleged violations and seeks relief on behalf of the putative class. Management has only recently begun evaluating the lawsuit as this litigation is in its preliminary stages, and as of yet no class has been certified. CCC and the other defendants are contesting the case and management currently is unable to predict the final outcome or the impact on the Company's financial condition, results of operations, or cash flows. As of December 31, 2016, the likelihood of loss is reasonably possible, but the amount of loss, if any, cannot be estimated at this stage of the litigation. Chicago-based CNA Financial Corporation is a commercial insurance writer and a property and casualty company. The Company's insurance products include standard commercial lines, specialty lines, surety, marine and other property and casualty coverages. COLUMBIA BRANDS: "Cardenas" Sues Over Unpaid Overtime ----------------------------------------------------- Adriana Barba Cardenas, individually, and on behalf of other members of the general public similarly situated and on behalf of aggrieved employees, Plaintiff, v. Columbia Brands USA, LLC and Does 1 through 100, inclusive, Defendants, Case No. BC655986 (Cal. Super., March 30, 2017), seeks unpaid overtime, compensation for missed breaks, damages for failure to provide wage statements and reimbursement for business expenses under the California Labor Code and Business and Professions Code. Columbia Brands USA sells sporting apparel where Plaintiff worked at their Los Angeles location. [BN] The Plaintiff is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. Daniel J. Park, Esq. Joy D. Llaguno, Esq. JUSTICE LAW CORPORATION 411 North Central Avenue, Suite 500 Glendale, CA 91203 Telephone: (818) 230-7502 Facsimile: (818) 230-7502 CONSOLIDATED COMMUNICATIONS: Defends "Vento" Suit in Delaware ------------------------------------------------------------- Consolidated Communications Holdings, Inc., said in its Form 8-K filed with the Securities and Exchange Commission on March 8, 2017, that it is defending a putative class action lawsuit in Delaware titled Vento v. Currey, et al. On March 3, 2017, an alleged class action complaint was filed by a purported stockholder of Consolidated Communications Holdings, Inc. (the "Company") in the Court of Chancery of the State of Delaware captioned Vento v. Currey, et al. (Case No. 2017-0157) against the members of the Company's board of directors (the "Lawsuit"). The Lawsuit relates to the Agreement and Plan of Merger, dated as of December 3, 2016, by and among the Company, Falcon Merger Sub, Inc., a newly formed Delaware corporation and wholly-owned subsidiary of the Company, and FairPoint Communications, Inc. ("FairPoint") (as amended by the First Amendment to Agreement and Plan of Merger entered into as of January 20, 2017, the "Merger Agreement"). Among other things, the Lawsuit alleges that the members of the Company's board of directors breached their fiduciary duties in connection with soliciting approval of the Company's stockholders of the issuance of the Company's common stock to stockholders of FairPoint in the merger (the "Merger") contemplated by the Merger Agreement (the "Stockholder Vote") because Amendment No. 1 to the Registration Statement on Form S-4 filed by the Company on February 24, 2017 failed to disclose allegedly material information relating to the retention, compensation and financial incentives of a financial advisor to the Company in connection with the proposed Merger. The plaintiff seeks, among other relief, to enjoin the Stockholder Vote. DENTAL SUPPLIES: Comfort Care Seeks Compliance of Subpoena ---------------------------------------------------------- In re DENTAL SUPPLIES ANTITRUST LITIGATION, Case No. 1:16-cv-00696 (E.D.N.Y.), Comfort Care Family Dental, P.C. on March 30, 2017, filed a Motion to Compel Strategic Data Marketing, LLC to comply with Rule 45 subpoena, and in an Order dated April 3, 2017, Magistrate Judge Gary R. Brown granted Comfort Care's Motion for Protective Order. Meanwhile, Patterson Companies, Inc., said it continues to defend itself against a consolidated antitrust litigation over dental supplies, according to the Company's Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 28, 2017. Beginning in January 2016, purported class action complaints were filed against defendants Henry Schein, Inc., Benco Dental Supply Co. and Patterson Companies, Inc. Although there were factual and legal variations among these complaints, each alleged that defendants conspired to foreclose and exclude competitors by boycotting manufacturers, state dental associations, and others that deal with defendants' competitors. On February 9, 2016, the U.S. District Court for the Eastern District of New York ordered all of these actions, and all other actions filed thereafter asserting substantially similar claims against defendants, consolidated for pre-trial purposes. On February 26, 2016, a consolidated class action complaint was filed by Arnell Prato, D.D.S., P.L.L.C., d/b/a Down to Earth Dental, Evolution Dental Sciences, LLC, Howard M. May, DDS, P.C., Casey Nelson, D.D.S., Jim Peck, D.D.S., Bernard W. Kurek, D.M.D., Larchmont Dental Associates, P.C., and Keith Schwartz, D.M.D., P.A. (collectively, the "putative class representatives") in the U.S. District Court for the Eastern District of New York, entitled In re Dental Supplies Antitrust Litigation, Civil Action No. 1:16- CV-00696-BMC-GRB. Burkhart Dental Supply Company, Inc. was added as a defendant on October 22, 2016. Subject to certain exclusions, the putative class representatives seek to represent all persons who purchased dental supplies or equipment in the U.S. directly from any of the defendants, since August 31, 2008. In the consolidated class action complaint, putative class representatives allege a nationwide agreement among Henry Schein, Benco, Patterson and Burkhart not to compete on price. The consolidated class action complaint asserts a single count under Section 1 of the Sherman Act, and seeks equitable relief, compensatory and treble damages, jointly and severally, interest, and reasonable costs and expenses, including attorneys' fees and expert fees. Putative class representatives have not specified a damage amount in their complaint. While the outcome of litigation is inherently uncertain, the Company believes the consolidated class action complaint is without merit, and the Company is vigorously defending itself in this litigation. DIPLOMAT PHARMACY: Defends Securities Class Suit in Michigan ------------------------------------------------------------ Diplomat Pharmacy, Inc., is defending a putative securities class action lawsuit pending in Michigan, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On November 10, 2016, a putative class action complaint was filed in the U.S. District Court for the Eastern District of Michigan against Diplomat Pharmacy, Inc. and certain officers of the Company. The complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 in connection with public filings made between October 9, 2014 and November 2, 2016 (the "potential class period"). The plaintiff seeks to represent a class of shareholders who purchased stock in the potential class period. The complaint seeks unspecified monetary damages and other relief. The Company believes the complaint and allegations to be without merit and intends to vigorously defend itself against these actions. The Company is unable at this time to determine whether the outcome of the litigation would have a material impact on its results of operations, financial condition, or cash flows. In the opinion of management, the disposition or ultimate resolution of all other currently known claims and lawsuits will not have a material adverse effect on the Company's consolidated financial position, results of operations, or liquidity. Diplomat Pharmacy, Inc., is an independent specialty pharmacy. The Company was formed and incorporated in Michigan in 1975 by its Chief Executive Officer, Philip Hagerman, and his father, Dale, both trained pharmacists, who transformed the Company's business from a traditional pharmacy into a leading specialty pharmacy beginning in 2005. EASTERN PLUMAS: "Perez" Sues Over Unpaid Overtime, Missed Breaks ---------------------------------------------------------------- Michelle Perez, Lisa Taylor, Maria Martinez, and Barbara Nieminen, on behalf of themselves and all others similarly situated, Plaintiff, v. Eastern Plumas Health Care Foundation, Inc., a California Corporation, Defendant, Case No. 2:17-at-00341, (E.D. Cal., March 27, 2017), seeks unpaid overtime, premium wages for missed and/or non-compliant meal and rest periods, interest, and derivative penalties for violation of the California Labor Code, applicable Industrial Welfare Commission Wage Order and the Business and Professions Code. Plaintiffs worked for Defendant as non-exempt hourly Licensed Vocational Nurses at Defendant's healthcare facilities in Portola, California and Loyalton, California. [BN] Plaintiff is represented by: Richard A. Hoyer, Esq. Ryan L. Hicks, Esq. Jennifer E. McGuire, Esq. HOYER & HICKS 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 Tel: (415) 766-3539 Fax: (415) 276-1738 Email: rhoyer@hoyerlaw.com rhicks@hoyerlaw.com jmcguire@hoyerlaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649 Tel: (562) 256-1047 Fax: (562) 256-1006 Email: walter@whaines.com ELECTRICITY MAINE: Billing Practices Suit May Become Class Action ----------------------------------------------------------------- Edward D. Murphy, writing for Portland Press Herald, reports that lawyers suing Electricity Maine over the company's billing practices are closing in on asking a judge to allow them to pursue a class-action lawsuit, which would enable them to seek millions of dollars in damages. Tom Hallett, one of the lawyers representing the two Maine women who have sued the electricity provider, said March 27 that lawyers are waiting on a ruling from U.S. District Court in Bangor on a motion to dismiss the case by one of the defendants in the lawsuit. If that is rejected, he said, the lawyers suing should be able to ask for class-action certification soon thereafter. The lawsuit alleges that the company promised customers that they would pay no more than the "standard offer" price for electricity but then increased the rates sharply after an initial period with lower rates. The lawsuit was filed on behalf of Katherine Veilleux and Jennifer Chon. But if it's certified as a class-action suit, lawyers could add to the action tens of thousands of customers they allege were overbilled and seek damages for the entire group. Mr. Hallett said lawyers are likely to seek at least $35 million from the lawsuit. "That's what we've found so far," he said, adding that the amount being sought could change as lawyers go through Electricity Maine's records and seek to expand the number of plaintiffs. Mr. Hallett said that Ms. Veilleux and Ms. Chon are not commenting on the case. Electricity Maine was one of the first electric supply companies in Maine to attempt to sign up large numbers of residential electricity customers after the state deregulated the electricity market in the early 2000s. In the first few years after deregulation, which separated electric generating companies from the utilities that deliver power to customers, most electric suppliers went after large industrial companies instead of individual homeowners because it was easier to work out a deal and oversee the contract with a few big customers rather than thousands of smaller accounts. Electricity Maine's advertising said its charge for electricity would never exceed the standard offer -- the price set by an electric supplier and approved by the Maine Public Utilities Commission for customers who don't designate a supplier -- said Ben Donahue, another one of the lawyers suing Electricity Maine. "That was clearly unsustainable," Mr. Donahue said, noting that the company spent a lot of money trying to attract customers with advertising and marketing between 2011 and 2014. But after an initial period during which the rates were below the standard offer, the bills jumped, he said. "They had to raise the rates to recoup their money" that they spent to sign up customers, Mr. Donahue said. That meant exceeding the standard offer rate for electricity, Mr. Hallett said. "They knew that in order to survive, they would have to charge more than the standard offer," he said. Mr. Donahue said most customers -- and Electricity Maine signed up nearly 200,000 in the state, the lawsuit alleges -- saw prices increase at least 50 percent above the standard offer price. He said it wasn't unheard of for customers to see rates double after the initial first few months of lower rates. Mr. Donahue said about 1,000 people have contacted his law office since the lawsuit was filed last fall to follow its status and see if they could join a class-action suit. Mr. Donahue said his firm is sending out regular newsletters to those who have contacted the office to keep them up to date on the progress in the case. The lawsuit names Electricity Maine and its parent company, Provider Power; Spark Holdco, a Texas-based company that bought Electricity Maine in May 2016; and Kevin Dean and Emile Clavet, top executives at Electricity Maine. Spark Holdco has filed the motion to dismiss the case, saying the plaintiffs have failed to demonstrate that they have an actionable claim under the law. A hearing on that motion is likely to be held this spring. John. J. Aromando, an attorney for Electricity Maine, said he and the company have no comment on the lawsuit. ELWYN: "Garcia" Sues Over Missed Meal/Rest Breaks, No Pay Stubs --------------------------------------------------------------- Corina Garcia, Rosemery Hernandes and Patricia Wallace, on behalf of themselves and all others similarly situated, Plaintiffs, v. ELWYN, a Pennsylvania entity, form unknown and Does 1 to 100, inclusive, Defendants, Case BC656112 (Cal. Super., March 30, 2017) seeks unpaid wages, liquidated damages, and for attorney's fees and costs under the California Labor Code, California Business and Professions Code and applicable Wage Orders issued by the California Industrial Welfare Commission. Defendants have allegedly failed to provide all legally-requisite meal periods, state-mandated overtime wages for all overtime hours worked, and failed to furnish accurate itemized wage statements. Defendant operates specialized care facilities where Garcia and Hernandez worked as direct service providers in Whittier and Temple City, California. Wallace worked as a nurse in Elwyn's San Gabriel location. [BN] Plaintiff is represented by: 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 Email: Bames@kbarnes.com ENTEROMEDICS INC: Defends "Du" Shareholder Suit in Delaware ----------------------------------------------------------- EnteroMedics Inc. is defending a purported shareholder class action lawsuit commenced by Vinh Du in Delaware, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On February 28, 2017, the Company received a class action and derivative complaint filed on February 24, 2017 in U. S. District Court for the District of Delaware by Vinh Du, one of the Company's shareholders. The complaint names as defendants EnteroMedics, the board of directors and four members of the Company's senior management, namely, Scott Youngstrom, Nick Ansari, Peter DeLange and Paul Hickey, and contains a purported class action claim for breach of fiduciary duty against the board of directors and derivative claims for breach of fiduciary duty against the board of directors and unjust enrichment against the Company's senior management. The allegations in the complaint relate to the increase in the number of shares authorized for grant under the Company's Second Amended and Restated 2003 Stock Incentive Plan (the "Plan"), which was approved by the Company's shareholders at the Special Meeting of Shareholders held on December 12, 2016 (the "Special Meeting"), and to the Company's subsequent grant of stock options on February 8, 2017, to the Company's Directors and senior management to purchase an aggregate of 1,093,450 shares of the Company's common stock (the "Option Grants"). In the complaint, the plaintiff contends that (i) the number of shares authorized for grant under the Plan, as adjusted by the board of directors after the Special Meeting for the subsequent recapitalization of the Company, resulted from an alleged breach of fiduciary duties by the board of directors, and (ii) the Company's senior management was allegedly unjustly enriched by the subsequent Option Grants. The plaintiff seeks relief in the form of an order rescinding the Plan as approved by the shareholders at the Special Meeting, an order cancelling the Option Grants, and an award to plaintiff for his costs, including fees and disbursements of attorneys, experts and accountants. The Company believes the allegations in the complaint are without merit, and intends to defend the action vigorously. EnteroMedics Inc. is a medical device company with approvals to commercially launch its product, the vBloc Neuromodulation System (vBloc System). The Company is focused on the design and development of devices that use neuroblocking technology to treat obesity, metabolic diseases and other gastrointestinal disorders. EVERBANK FINANCIAL: Claims Administration Process Underway ---------------------------------------------------------- The EverBank Financial Corp said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2017, for the fiscal year ended December 31, 2016, that the claims administration process remains ongoing in the "Wilson" class action. On June 18, 2014, a punitive class action entitled Dwight Wilson, Jesus A. Avelar-Lemus, Jessie Cross, and Mattie Cross on behalf of themselves and all other similarly situated v. EverBank, N.A., Everhome Mortgage, Assurant, Inc., Standard Guaranty Insurance Company, and American Security Insurance Company was filed in the United States District Court for the Southern District of Florida. In this class action case, the plaintiffs seek damages for overpayment of lender placed insurance premiums, injunctive relief, declaratory relief and attorneys' fees and costs. On July 17, 2015, the parties entered into a settlement agreement that was approved by the court on January 20, 2016. On February 8, 2016, the Court entered final judgment in the matter. On March 2, 2016, EverBank paid $2.0 million for its portion of the attorney fee award into an interest-bearing account pursuant to the settlement agreement. On August 9, 2016, the court granted the Jabranis unopposed motion to dismiss appeal with prejudice. The claims administration process remains ongoing. EverBank Financial Corp. is a savings and loan holding company with two direct operating subsidiaries, EverBank (EB) and EverBank Funding, LLC (EBF). EB is a federally chartered thrift institution with its home office located in Jacksonville, Florida. EB's direct banking services are offered nationwide. In addition, EB operates financial centers in Florida and commercial and consumer lending centers across the United States. EB (a) accepts deposits from the general public; (b) originates, purchases, services, sells and securitizes residential real estate mortgage loans, home equity loans, commercial real estate loans and commercial loans and leases; and (c) offers full-service securities brokerage and investment advisory services. EVERBANK FINANCIAL: MERS-Related Litigation Pending --------------------------------------------------- The EverBank Financial Corp continues to defend against Mortgage Electronic Registration Services-related litigation, EverBank said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2017, for the fiscal year ended December 31, 2016. Mortgage Electronic Registration Services (MERS), EverHome Mortgage Company, EverBank and other lenders and servicers that have held mortgages through MERS are parties to the following material and class action lawsuits where the plaintiffs allege improper mortgage assignment and, in some instances, the failure to pay recording fees in violation of state recording statutes: (1) State of Ohio, ex. rel. David P. Joyce, Prosecuting Attorney General of Geauga County, Ohio v. MERSCORP, Inc., et al., filed in October 2011 in the Court of Common Pleas for Geauga County, Ohio; (2) Delaware County, PA, Recorder of Deeds v. MERSCORP, Inc., et al., filed in November 2013 in the Court of Common Pleas of Delaware County, Pennsylvania; and (3) On November 3, 2016, the surrounding counties of Portland Oregon filed a MERS lawsuit against EverBank, MERS and other financial institutions in Multnomah County entitled County of Clackamas, et al. v. Mortgage Electronic Registration Systems Inc, et al. In these material and class action lawsuits, the plaintiffs in each case generally seek judgment from the courts compelling the defendants to record all assignments, restitution, compensatory and punitive damages, and appropriate attorneys' fees and costs. We believe that the plaintiffs' claims are without merit and contest all such claims vigorously. EverBank Financial Corp is a savings and loan holding company with two direct operating subsidiaries, EverBank (EB) and EverBank Funding, LLC (EBF). EB is a federally chartered thrift institution with its home office located in Jacksonville, Florida. EB's direct banking services are offered nationwide. In addition, EB operates financial centers in Florida and commercial and consumer lending centers across the United States. EB (a) accepts deposits from the general public; (b) originates, purchases, services, sells and securitizes residential real estate mortgage loans, home equity loans, commercial real estate loans and commercial loans and leases; and (c) offers full-service securities brokerage and investment advisory services. EXPEDIA INC: Opposed Request for Attorneys' Fee and Costs --------------------------------------------------------- Expedia, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016, that the Defendants have opposed the request of the Plaintiffs for payment of attorneys' fees and costs. "On May 8, 2006, the city of San Antonio filed a putative statewide class action in federal court against a number of online travel companies, including Expedia, Hotels.com, Hotwire, and Orbitz. See City of San Antonio, et al. v. Hotels.com, L.P., et al., SA06CA0381 (United States District Court, Western District of Texas, San Antonio Division). The complaint alleged that the defendants failed to pay hotel accommodations taxes as required by municipal ordinance. The complaint asserted claims for violation of that ordinance, common-law conversion, and declaratory judgment, and sought damages in an unspecified amount, restitution and disgorgement. On October 30, 2009, a jury verdict was entered finding that defendant online travel companies "control hotels," and awarding approximately $15 million for historical damages against the Expedia companies. The jury also found that defendants were not liable for conversion or punitive damages. "On April 4, 2013, the court entered a final judgment holding the online travel companies liable for hotel occupancy taxes to counties and cities in the statewide class. The online travel companies filed a motion for judgment as a matter of law or, in the alternative, for a new trial. The cities filed a motion to amend the judgment regarding calculation of penalties." "On February 20, 2014, the court denied the online travel companies' motion. On January 22, 2015, the court granted in part and denied in part the cities' motion regarding penalties. On April 11, 2016, the court entered an amended judgment including approximately $68 million in tax, interest and penalty amounts for the Expedia companies, including Orbitz." The online travel companies filed a notice of appeal to the U.S. Fifth Circuit Court of Appeals on May 6, 2016. Plaintiffs filed a notice of cross appeal on May 12, 2016. Those appeals remain pending. "On July 25, 2016, plaintiffs filed a request for attorneys' fees and costs in the trial court; the defendant online travel companies opposed that request and it remains pending," the Company said. Expedia, Inc. is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. EXPEDIA INC: Motion for Summary Judgment in Nassau Suit Underway ---------------------------------------------------------------- Expedia, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016, that the Defendants' motion for summary judgment against intervenors in the case, Nassau County, New York, et al. v. Hotels.com, L.P., et al., is still pending. The Company says, "On October 24, 2006, the county of Nassau, New York filed a putative statewide class action in federal court against a number of online travel companies, including Expedia, Hotels.com, Hotwire, and Orbitz. Nassau County, New York, et al. v. Hotels.com, L.P., et al., (United States District Court, Eastern District of New York). The complaint alleged that the defendants failed to pay hotel accommodation taxes as required by local ordinances to certain New York cities, counties and local governments in New York. The complaint asserted claims for violations of those ordinances, as well as claims for conversion, unjust enrichment, and imposition of a constructive trust, and sought unspecified damages. The county subsequently dismissed its case on May 13, 2011 on the basis that the court lacked jurisdiction and refiled in state court. County of Nassau v. Expedia, Inc., et al., (In the Supreme Court of the State of New York, County of Nassau). The defendants filed a motion to dismiss the refiled state court case. "On June 13, 2012, the court denied the online travel companies' motion to dismiss. On November 27, 2012, plaintiff filed a motion for class certification." "On April 11, 2013, the court granted plaintiff s motion for class certification. The online travel company defendants appealed both the court's certification order and its prior order denying their motion to dismiss." "On September 10, 2014, the New York Supreme Court Appellate Division reversed the trial court's order granting the plaintiff s motion for class certification. In a separate opinion, the Appellate Division also affirmed in part and reversed in part the trial court's denial of the online travel companies' motion to dismiss." "On September 11, 2015, the parties filed cross motions for summary judgment. On September 25, 2015, Erie County, Orange County, Rensselaer County and Saratoga County, New York filed a motion seeking leave to intervene as plaintiffs in the lawsuit; the defendant online travel companies opposed the motion." "On February 23, 2016, the court granted the counties' motion to intervene. The defendants filed their notice of appeal from the February 23, 2016 Order on April 26, 2016." "On July 20, 2016, the court entered a stipulated order permitting the addition of another group of taxing jurisdictions -- the Counties of Chautauqua, Oswego, Steuben, Westchester, and the City of Saratoga Springs -- as Intervenor-Plaintiffs in the lawsuit and agreeing that these Intervenor-Plaintiffs will be bound by the disposition of the defendants' appeal from the Supreme Court's February 23, 2016 Order granting intervention." "On December 2, 2016, the court granted defendants' motion for summary judgment and denied plaintiff Nassau County's motion for summary judgment. The court concluded that the enabling statute for plaintiff's tax ordinance did not impose a tax on defendants' fees. The court further invited defendants to file a successive motion for summary judgment against intervenors Orange County, Rensselaer County, Saratoga County and Erie County on similar grounds." The court also vacated its July 19, 2016 stipulation granting the Counties of Chautauqua, Oswego, Steuben, Westchester, and the City of Saratoga Springs permission to intervene. "On December 23, 2016, defendants filed a motion for summary judgment against intervenors Orange County, Rensselaer County, Saratoga County and Erie County; that motion remains pending." Expedia, Inc. is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. EXPEDIA INC: Town of Breckenridge's Appeal Remains Pending ---------------------------------------------------------- The Town of Breckenridge, Colorado's appeal in a class action lawsuit remains pending, Expedia, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016. On July 25, 2011, the Town of Breckenridge, Colorado brought suit on behalf of itself and other home rule municipalities against a number of online travel companies, including Expedia, Hotels.com, Hotwire and Orbitz. Town of Breckenridge, Colorado v. Colorado Travel Company, LLC, Case No. 2011CV420 (District Court, Summit County, Colorado). The complaint included claims for declaratory judgment, violations of municipal ordinances, conversion, civil conspiracy and unjust enrichment. The online travel companies filed a motion to dismiss. On June 8, 2012, the court granted in part and denied in part the online travel companies' motion to dismiss. On March 26, 2014, the court denied the plaintiffs' motion for class certification. The parties filed cross-motions for summary judgment and, on April 20, 2016, the court granted the online travel companies' motion for summary judgment, and denied the town's motion for summary judgment, holding that the Breckenridge Accommodations Tax does not apply to the online travel companies or the amounts they charge for their services. On June 8, 2016, the Town of Breckenridge filed a notice of appeal from the court's order on the parties' cross motions for summary judgment, as well as the court's prior rulings denying class certification and dismissing claims for state sales tax. On June 8, 2016, the Town of Breckenridge filed a notice of appeal from the trial court's order on the parties' cross motions for summary judgment, as well as the trial court's prior rulings denying class certification and dismissing claims for state sales tax. On September 8, 2016, the Colorado Court of Appeals dismissed the Town of Breckenridge's appeal without prejudice for lack of a final appealable judgment on the ground that the Town had failed to demonstrate that the trial court had disposed of claims against two non-online travel company defendants. On September 22, 2016, the trial court granted the Town's motion to dismiss one of the non-online travel company defendants and entered final judgment for all other remaining defendants. On November 7, 2016, the Town again filed notice of appeal. The appeal remains pending. Expedia, Inc. is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. EXPEDIA INC: Appeal in Village of Bedford Park Suit Pending ----------------------------------------------------------- An appeal by parties on the Court's summary judgment ruling in the Village of Bedford Park, Illinois litigation remains pending, Expedia, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016. The Company said: "On April 5, 2013, a group of Illinois municipalities (City of Warrenville, Village of Bedford Park, City of Oakbrook Terrace, Village of Oak Lawn, Village of Orland Hills, City of Rockford and Village of Willowbrook) filed a putative class action in Illinois federal court against a number of online travel companies, including Expedia, Hotels.com, Hotwire and Orbitz. City of Warrenville, et al. v. Priceline.com, Incorporated, et al., Case No. 1:13-cv-02586 (USDC, D. Ill., Eastern Division)." The complaint sought certification of a class of all Illinois municipalities (broken into four alleged subclasses) that have enacted and collect a tax on the percentage of the retail rate that each consumer occupant pays for lodging, including service costs, denominated in any manner, including but not limited to occupancy tax, a hotel or motel room tax, a use tax, a privilege tax, a hotel or motel tax, a licensing tax, an accommodations tax, a rental receipts tax, a hotel operator's tax, a hotel operator's occupation tax, or a room rental, lease or letting tax. The complaint alleged claims for relief for declaratory judgment, violations of municipal ordinances, conversion, civil conspiracy, unjust enrichment, imposition of a constructive trust, damages and punitive damages. "On July 8, 2013, the plaintiff municipalities voluntarily dismissed their federal court lawsuit and filed a similar putative class action lawsuit in Illinois state court. City of Bedford Park, et al. v. Expedia, Inc., et al. (Circuit Court of Cook County, Illinois, Chancery Division). The online travel companies removed the case to federal district court." "On September 13, 2013, the online travel companies filed a motion to dismiss plaintiffs' common law claims. On March 13, 2014, the court granted the defendant online travel companies' motion and dismissed the plaintiffs' common law claims. On October 3, 2014, plaintiffs filed a motion for class certification, which the court denied without prejudice on January 6, 2015. Plaintiffs filed a renewed motion for class certification, which the court denied on September 28, 2015." The case proceeded only on the claims brought by the individual plaintiff municipalities named in the suit. On February 1, 2016, the plaintiffs filed a motion for summary judgment. On February 29, 2016, the defendant online travel companies filed a cross motion for summary judgment. The Expedia and Orbitz defendants reached a settlement with one of the plaintiff municipalities -- the city of Oakbrook Terrace, Illinois and on March 4, 2016, those parties filed a stipulation for voluntary dismissal of the city's claims. On June 20, 2016, the court granted the defendant online travel companies' motion for summary judgment as to 12 of the 13 plaintiff municipalities, finding no liability for occupancy taxes in those jurisdictions. The court granted the plaintiffs' motion for summary judgment, and denied the defendants' motion, as to the Village of Lombard. "On October 19, 2016, the trial court entered a stipulated judgment on plaintiff Village of Lombard's claims. The parties filed cross notices of appeal from the trial court's summary judgment ruling in November, 2016. These appeals remain pending." Expedia, Inc. is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. EXPEDIA INC: Court Trims Claims in Buckeye Tree Lodge Lawsuit ------------------------------------------------------------- Defendants' motion to dismiss claims in the Buckeye Tree Lodge lawsuit has been granted, Expedia, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016. The Company said: "August 17, 2016, a putative class action suit was filed in federal district court in the Northern District of California against Expedia, Hotels.com, Orbitz, Expedia Australia Investments Pty Ltd. and trivago relating to alleged false advertising. Buckeye Tree Lodge and Sequoia Village Inn, LLC v. Expedia, Inc., et al, Case No. 3:16-cv-04721-SK (U.S. District Court, Norther District of California). Plaintiff has not effected service of process as to trivago." The putative class is comprised of hotels and other providers of overnight accommodations whose names appeared on the Expedia defendants' websites with whom the Expedia defendants did not have a booking agreement during the relevant time period. The complaint asserts claims against the Expedia defendants for violations of the Lanham Act, the California Business & Professions Code, intentional and negligent interference with prospective economic advantage, unjust enrichment and restitution. "On January 12, 2017, the court granted the Expedia defendants' motion to dismiss plaintiff's claims for intentional and negligent interference with prospective economic advantage without prejudice." Expedia, Inc. is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. EXPEDIA INC: Cases Against HomeAway.com Pending ----------------------------------------------- Expedia, Inc. continues to defend lawsuits involving HomeAway.com, Inc., Expedia said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016. The Company said, "On March 15, 2016, a putative class action suit was filed in federal district court in Texas against HomeAway.com, Inc. related to its recent implementation of a service fee. Arnold v. HomeAway.com, Inc., Case No. l-16-cv-00374 (U.S. District Court, Western District of Texas). The putative class is comprised of homeowners that list their properties on HomeAway's websites for rent." The complaint asserts claims against HomeAway for breach of contract, breach of the duty of good faith and fair dealing, fraud, fraudulent concealment, and violations of the Texas Deceptive Trade Practices Act, the California Consumer Legal Remedies Act, and the California Unfair Competition Law. "On April 15, 2016, another putative class action suit was filed against HomeAway, also related to the implementation of a service fee. Seim v. HomeAway, Inc., Case No. 1:16- cv-00479 (U.S. District Court, Western District of Texas). The putative class is comprised of homeowners that list their properties on HomeAway's websites." The complaint asserts claims against HomeAway for breach of contract, breach of the duty of good faith and fair dealing, fraud, fraudulent concealment, unjust enrichment, and violations of the Texas Deceptive Trade Practices Act, the Kentucky Consumer Protection Act, and other state consumer protection statutes. HomeAway moved to compel arbitration and dismissal in both of these cases on July 11, 2016; a hearing on both motions to compel took place on August 24, 2016. On January 10, 2017, the court denied HomeAway's motion in Arnold. "On January 18, 2017, the court granted HomeAway's motion in Seim and entered final judgment dismissing the case. On February 2, 2017, Seim filed a notice of appeal." "On June 23, 2016, another putative class action was filed against HomeAway.com, Inc., also related to the implementation of a service fee. Brickman v. HomeAway, Inc., Case No. 1:16-cv-00733 (U.S. District Court, Western District of Texas). This putative class is comprised of homeowners from nine different states that list their properties on HomeAway's websites." The complaint asserts claims against HomeAway for breach of contract, breach of the duty of good faith and fair dealing, fraud, fraudulent concealment, unjust enrichment, restitution, and violations of various state consumer protection statutes. On October 28, 2016, Plaintiffs filed an amended complaint dismissing certain named Plaintiffs and adding two new named Plaintiffs. "On December 6, 2016, HomeAway filed a motion to dismiss the amended complaint, which plaintiffs opposed. The motion remains pending." "On November 7, 2016, another putative class action was filed against HomeAway.com, Inc., also related to the implementation of a service fee. May v. Expedia, Inc., et al., Case No. 1:16-cv- 01211 U.S. District Court, Western District of Texas). The complaint asserts claims against HomeAway for breach of contract, fraud, fraudulent concealment, and violation of the Oregon Unlawful Trade Practices Act. It also names Expedia as a defendant." Expedia, Inc. is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. EYM KING: "Lockard" Seeks Unpaid Overtime Wages ----------------------------------------------- James Lockard, on behalf of himself and all others similarly situated, Plaintiff, v. EYM King Of Kansas LLC and EYM Group, Inc., Defendants, Case No. 2:17-cv-02181 (D. Kan., March 29, 2017) seeks unpaid wages, liquidated damages, and for attorney's fees and costs under the Fair Labor Standards Act. EYM Group operates Burger King franchise restaurants in Bonner Springs, Olathe and Lenexa, Kansas. Plaintiff has worked at least four different Burger King locations and claims to have been denied overtime pay. [BN] Plaintiff is represented by: Sean M. McGivern, Esq. Nathan R. Elliott, Esq. GRAYBILL & HAZLEWOOD, LLC 218 N. Mosley Street Wichita, KS 67202 Tel: (316) 266-4058 Fax: (316) 462-5566 Email: sean@graybillhazlewood.com nathan@graybillhazlewood.com - and - A. Scott Waddell, Esq. WADDELL LAW FIRM LLC 2600 Grand, Suite 580 Kansas City, MO 64108 Tel: (816) 914-5365 Fax: (816) 817-8500 Email: scott@aswlawfirm.com FIDELITY AND GUARANTY: Appeal in "Ludwick" Class Suit Underway -------------------------------------------------------------- The appeal related to the class action lawsuit by Dale R. Ludwick remains pending, Fidelity and Guaranty Life said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 6, 2017, for the quarterly period ended December 31, 2016. The Company said, "On January 7, 2015, a putative class action complaint was filed in the United States District Court, Western District of Missouri (the "District Court"), captioned Dale R. Ludwick, on behalf of Herself and All Others Similarly Situated v. Harbinger Group Inc., Fidelity & Guaranty Life Insurance Company, Raven Reinsurance Company, and Front Street Re (Cayman) Ltd." "The complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), requests injunctive and declaratory relief and seeks unspecified compensatory damages for the putative class in an amount not presently determinable, treble damages, and other relief, and claims Plaintiff Ludwick overpaid at least $0 for her annuity." "On April 13, 2015, the Company joined in the filing of a Joint Motion to Dismiss the complaint. On February 12, 2016, the District Court granted the defendants' Joint Motion to Dismiss." "Judgment was entered on February 12, 2016. On March 3, 2016, Plaintiff Ludwick filed a Notice of Appeal to the United States Court of Appeals for the Eighth Circuit (the "Court of Appeals") from the District Court's Order and Judgment." "As of December 31, 2016, the Company did not have sufficient information to determine whether the Company is exposed to any losses that would be either probable or reasonably estimable beyond an expense contingency estimate of $2 million, which was accrued during the year ended September 30, 2016." Fidelity and Guaranty Life Insurance Company provides annuities and life insurance for over 700,000 policyholders across the United States. The company was founded in 1959 and is based in Des Moines, Iowa. FORD MOTOR: Settles Fiesta, Focus Transmission Class Action ----------------------------------------------------------- John Kennedy, writing for Law360, reports that Ford Motor Co. has agreed to provide "substantial cash payments" and other benefits to the owners of about 1.5 million of its Fiesta and Focus models that had to be repaired due to allegedly malfunctioning transmissions, the proposed class said on March 24. The deal comes after nearly four years of litigation, including a year of settlement negotiations and covers owners and lessees of 2011 to 2016 Ford Fiestas and 2012 to 2016 Ford Focuses, the plaintiffs said in their motion for preliminary approval of the agreement. Ford did not oppose the motion, but has denied any wrongdoing related to the alleged malfunctions, which included vehicles that slipped, bucked, kicked or jerked while the driver attempted to accelerate. Even though Ford offered customer service programs that included free repairs and warranty extensions for potential class members, many vehicle owners still had to spend time and energy seeking to fix the alleged defect. Some vehicles endured multiple software and hardware repairs and due to backlogs often had to wait weeks or months for the fix, the plaintiffs said. Under the settlement, class members with three or more visits for the replacement of one of the main transmission parts will receive $200 for the third visit, plus increasing amounts for any additional repair trips. They could also choose to receive a discount toward the purchase of a new Ford vehicle that would be twice the amount of whatever cash they would've received. In all, these consumers could collect up to $2,325 in cash or $4,650 in credit, the settlement says. Given that Ford ordered about 6 million replacement parts for roughly 1.5 million vehicles, the consumers expect that a substantial amount of the class will qualify for this benefit. Software repairs were also common, and the consumers said any class members with at least three software repairs will get $50 for their third visit, plus an additional $50 for any subsequent repair, up to $600. Ford will also provide a private arbitration program through which consumers will be able to get the automaker to repurchase or replace defective vehicles, the plaintiffs said. Resolution of such claims will take one to two months, but the program's rules also authorize repurchase or replacement of any vehicle that has endured four attempts to fix its transmission hardware within five years or 60,000 miles and that still doesn't work. The program also extends the statute of limitations for claims to six years after the issue arose or six months after the effective date of the settlement, whichever is later. Consumers who prevail in arbitration will be awarded $6,000 in attorneys' fees, while those who lose will be able to appeal the finding to a second panel. Ford will receive no fees or appeals rights, the deal says. Class members who believe they've either been improperly charged for repairs or denied repairs that should've been covered under Ford's new vehicle limited warranty can also pursue these claims through a more limited arbitration process. Ford will cover the cost and if the consumer wins, they will receive free repairs or warranty extensions and be reimbursed for out-of-pocket costs, the settlement says. The plaintiffs are further seeking to appoint 18 class representatives who will each receive between $1,000 and $10,000, separate from any benefits they get as part of the settlement class. Capstone Law APC wants to be named lead class counsel, with Berger & Montague PC and Zimmerman Law Offices PC as class counsel. Ford has agreed to pay up to $8.9 million in attorneys' fees and costs. Ford could not be reached for comment on March 27. The proposed class is represented by Jordan L. Lurie, Tarek H. Zohdy, Cody R. Padgett and Karen L. Wallace of Capstone Law, Russell D. Paul of Berger & Montague and Thomas A. Zimmerman Jr. of Zimmerman Law. Ford is represented by Tamara A. Bush -- tbush@dykema.com -- Janet L. Conigliaro -- jconigliaro@dykema.com -- Fred J. Fresard -- ffresard@dykema.com -- David M. George -- dgeorge@dykema.com -- Krista L. Lenart, John Mark Thomas and Stephen C. Borgsdorf of Dykema Gossett LLP. The case is Omar Vargas, et al., v. Ford Motor Co., case number 2:12-cv-08388, in the U.S. District Court for the Central District of California. FORZA SAFETY: "Jones" Hit Retaliation, Seeks Overtime Pay --------------------------------------------------------- Kenny Jones, an individual, Plaintiff, v. Forza Safety, LLC and Albert Bernal, Defendants, Case No. 7:17-cv-00064, (W.D. Tex., March 29, 2017), seeks unpaid regular hourly wages, unpaid overtime, liquidated damages, attorney's fees and costs of suit and such other relief under the Fair Labor Standards Act. Forza provides roll-off dumpsters, portable restrooms, portable hand-washing stations, potable water, above-ground septic tanks, forklifts and manlifts and generators for the oil industry. Jones worked for Forza at their Midland County, Texas facility from December 24th, 2015 until June 9th, 2017. He was allegedly fired for complaining about unpaid overtime pay. Jones brings this action on behalf of himself and as representative of similarly situated workers who file consents to join in this action. [BN] Plaintiff is represented by: Philip R. Russ, Esq. LAW OFFICES OF PHILIP R. RUSS 2700 S. Western, Suite 1200 Amarillo, TX 79109 Tel: (806) 358-9293 Fax: (806) 358-9296 H&R BLOCK: Appeal From Summary Judgment in "Perras" Suit Pending ---------------------------------------------------------------- Ronald Perras' appeal from the order granting H&R Block, Inc.'s motion for summary judgment remains pending, according to the Company's March 8, 2017, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2017. The Company said: "On April 19, 2012, a putative class action lawsuit was filed against us in the United States District Court for the Western District of Missouri styled Ronald Perras v. H&R Block, Inc., et al. (Case No. 4:12-cv-00450-DGK) concerning a compliance fee charged to retail tax clients in the 2011 and 2012 tax seasons. The plaintiff originally sought to represent all persons nationwide (excluding citizens of Missouri) who were charged the compliance fee, and asserted claims of violation of various state consumer laws, money had and received, and unjust enrichment. In November 2013, the court compelled arbitration of the 2011 claims and stayed all proceedings with respect to those claims. In June 2014, the court denied class certification of the remaining 2012 claims. The plaintiff filed an appeal with the Eighth Circuit Court of Appeals, which was denied on June 18, 2015. In January 2016, the plaintiff filed an amended complaint asserting claims of violation of Missouri and California state consumer laws, money had and received, and unjust enrichment, along with a motion to certify a class of all persons (excluding citizens of Missouri) who were charged the compliance fee in the state of California." "We subsequently filed a motion for summary judgment on all claims. On April 29, 2016, the court granted our motion for summary judgment on all claims and denied the plaintiff's motion for class certification as moot. The plaintiff filed an appeal with the Eighth Circuit Court of Appeals, which remains pending." "We have not concluded that a loss related to this matter is probable, nor have we accrued a loss contingency related to this matter." H&R Block, Inc.'s subsidiaries provide assisted and do-it-yourself (DIY) tax return preparation solutions through multiple channels (including in-person, online and mobile applications, and desktop software) and distribute H&R Block-branded financial products and services, including those of the Company's financial partners. Tax returns are either prepared by H&R Block tax professionals (in company-owned or franchise offices or virtually via the internet) or prepared and filed by its clients through the Company's DIY tax solutions. H&R BLOCK: Lopez's Motion for Class Certification Remains Pending ----------------------------------------------------------------- Manuel H. Lopez, III's motion for class certification remains pending, H&R Block, Inc., said in its Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 31, 2017. The Company said: "On April 16, 2012, a putative class action lawsuit was filed against us in the Circuit Court of Jackson County, Missouri styled Manuel H. Lopez III v. H&R Block, Inc., et al. (Case # 1216CV12290) concerning a compliance fee charged to retail tax clients in the 2011 and 2012 tax seasons. The plaintiff seeks to represent all Missouri citizens who were charged the compliance fee, and asserts claims of violation of the Missouri Merchandising Practices Act, money had and received, and unjust enrichment. We filed a motion to compel arbitration of the 2011 claims. The court denied the motion. We filed an appeal. On May 6, 2014, the Missouri Court of Appeals, Western District, reversed the ruling of the trial court and remanded the case for further consideration of the motion. On March 12, 2015, the trial court denied the motion on remand. We filed an additional appeal. On March 8, 2016, the appellate court affirmed the decision of the trial court. We filed an application for transfer of the appeal in the Supreme Court of Missouri, which was denied. We subsequently filed a petition for writ of certiorari with the United States Supreme Court, which was also denied. Plaintiff filed a motion for class certification, which remains pending." "We have not concluded that a loss related to this matter is probable, nor have we accrued a loss contingency related to this matter." H&R Block, Inc.'s subsidiaries provide assisted and do-it-yourself (DIY) tax return preparation solutions through multiple channels (including in-person, online and mobile applications, and desktop software) and distribute H&R Block-branded financial products and services, including those of the Company's financial partners. Tax returns are either prepared by H&R Block tax professionals (in company-owned or franchise offices or virtually via the internet) or prepared and filed by its clients through the Company's DIY tax solutions. HENDERSON KITCHEN: Employees File Wage Class Action --------------------------------------------------- Louie Torres, writing for Pennsylvania Record, reports that employees have filed a class action lawsuit against Henderson Kitchen, Chao Hsiung Kuo and Yeng-Lung Kuo, restaurant operators, citing alleged breach of contract, unpaid wages and violation of minimum wage law. Rui Tong, Weijian Tang, Ya-Tang Chi, Chuan Geng, Kun Yang and Junyi Xie filed a complaint on behalf of others similarly situated on March 10 in the U.S. District Court for the Eastern District of Pennsylvania against the defendants alleging that they refused to pay proper compensation to the plaintiffs for their work. According to the complaint, the plaintiffs allege that they sustained damages from working without being adequately compensated. The plaintiffs hold the defendants responsible because they allegedly failed to pay minimum and overtime wages to the plaintiffs. The plaintiffs seek injunction, unpaid minimum and overtime wages, liquidated damages, compensatory damages, interest, up to $5,000 per plaintiff for failure to provide a time-of-hire notice detailing rates of pay and payday, up to $5,000 per plaintiff for failure to provide a pay stub, reimbursement, punitive damages, court costs, interest and any further relief the court grants. They are represented by Philip Downey of The Downey Law Firm LLC in Unionville and John Troy of Troy Law PLLC in Flushing, New York. U.S. District Court for the Eastern District of Pennsylvania Case number 2:17-cv-01073-RBS INDEPENDENT BANK: Continues to Defend Stanford-Related Suit ----------------------------------------------------------- Independent Bank Group, Inc., continues to defend itself against a class action lawsuit filed by alleged victims of fraud by Stanford International Bank, Ltd., and other Stanford Entities, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. Independent Bank is a party to a legal proceeding inherited by Independent Bank in connection with its acquisition of BOH Holdings, Inc. and its subsidiary, Bank of Houston, or BOH, that was completed on April 15, 2014. Several entities related to R. A. Stanford, or the Stanford Entities, including Stanford International Bank, Ltd., or SIBL, had deposit accounts at BOH. Certain individuals who had purchased certificates of deposit from SIBL filed a class action lawsuit against several banks, including BOH, on November 11, 2009 in the U.S. District Court Northern District of Texas, Dallas Division, alleging, among other things, that the plaintiffs were victims of fraud by SIBL and other Stanford Entities and seeking to recover damages and alleged fraudulent transfers by the defendant banks. On May 1, 2015, the plaintiffs filed a motion requesting permission to file a Second Amended Class Action Complaint in this case, which motion was subsequently granted. The Second Amended Class Action Complaint asserts previously unasserted claims, including aiding and abetting or participation in a fraudulent scheme based upon the large amount of deposits that the Stanford Entities held at BOH and the alleged knowledge of certain BOH officers. Given the new allegations, Independent Bank notified its insurance carriers of the claims made in the Second Amended Class Action Complaint. The insurance carriers have initially indicated that a "loss" has not yet occurred or that the claims are not covered by the policies. However, Independent Bank is continuing to pursue insurance coverage for these claims, as well as for the reimbursement of defense costs, through the initiation of litigation and other means. Independent Bank believes that the claims made in this lawsuit are without merit and is vigorously defending this lawsuit. This is complex litigation involving a number of procedural matters and issues. As such, Independent Bank is unable to predict when this matter may be resolved and, given the uncertainty of litigation, the ultimate outcome of, or potential costs or damages arising from, this case. Independent Bank Group, Inc., is a registered bank holding company headquartered in McKinney, Texas. Through the Company's wholly owned subsidiary, Independent Bank, a Texas state chartered bank, the Company provides a wide range of relationship-driven commercial banking products and services tailored to meet the needs of businesses, professionals and individuals. The Company operates 41 banking offices in the Dallas/North Texas area, the Austin/Central Texas area, and the Houston metropolitan area. INSPERITY INC: Employee Retirement Plan Class Action Underway ------------------------------------------------------------- A class action lawsuit involving Insperity, Inc.'s retirement plan is at an early state, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 13, 2017, for the fiscal year ended December 31, 2016. The Company said: "In December 2015, a lawsuit was filed seeking class action status on behalf of participants in the Insperity 401(k) retirement plan that is available to eligible worksite employees (the "Plan")." "The suit was filed against us and the third-party discretionary trustee of the Plan in the United States District Court for the Northern District of Georgia, Atlanta Division. It generally alleges that the third-party discretionary trustee of the Plan and Insperity breached their fiduciary duties to plan participants by selecting an Insperity subsidiary to serve as the recordkeeper for the Plan, by causing participants in the Plan to pay excessive recordkeeping fees to the Insperity subsidiary, by failing to monitor other fiduciaries, and by making imprudent investment choices. "We believe we have meritorious defenses, and we intend to vigorously defend this litigation. "The matter is at an early state and involves unresolved questions of fact and law. As a result of this uncertainty, no provision has been made in the accompanying consolidated financial statements. Insperity, Inc., provides an array of human resources ("HR") and business solutions designed to help improve business performance. JACKSON NATIONAL: "Pease" Claims Retirement Plan Mismanaged ----------------------------------------------------------- Becky A. Matthews Pease, individually and on behalf of all others similarly situated, Plaintiff, v. Jackson National Life Insurance Company, Defendant, Case No. 1:17-cv-00284, (W.D. Mich., March 29, 2017), seeks disgorgement of all revenues received from, or in respect of the Jackson National Life Insurance Company Defined Contribution Retirement Plan, equitable restitution and other appropriate equitable monetary relief against Defendant, enjoining the Defendant from further violations of its fiduciary responsibilities, obligations and duties, equitable relief, redress, to enforce the provisions of Employment Retirement Income Security Act as may be appropriate, including appointment of an independent fiduciary or fiduciaries to run the said plan, removal of imprudent mutual funds as core investment options, transfer of plan assets in imprudent mutual funds to prudent alternative investments and removal of Plan fiduciaries deemed to have breached their fiduciary duties. The suit also seeks reasonable attorney's fees and costs of suit incurred, prejudgment interest and such other and further relief. The Jackson National Life Insurance Company Defined Contribution Retirement Plan is sponsored by Defendant Jackson National Life Insurance Company, covering substantially all employees of Jackson National. Jackson National selected high-cost proprietary investment products offered and managed by Jackson National and its affiliates, allowing Jackson National to maximize company profits at the expense of the plan by collecting fees that greatly exceed comparable low-cost non-proprietary investment products, says the complaint. [BN] Plaintiff is represented by: Joseph C. Pagano, Esq. VIVIANO, PAGANO & HOWLET PLLC Mt. Clemens, MI 48043 Telephone: (586) 569-1580 Facsimile: (586) 469-1808 Email: jpagano@vivianolaw.com - and - Garrett W. Wotkyns, Esq. Michael McKay, Esq. John J. Nestico, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 8501 N. Scottsdale Road, Suite 270 Scottsdale, AZ 85253 Telephone: (480) 428-0145 Facsimile: (866) 505-8036 Email: gwotkyns@schneiderwallace.com mmckay@schneiderwallace.com jnestico@schneiderwallace.com - and - Todd D. Carpenter, Esq. CARLSON LYNCH SWEET KIPELA CARPENTER 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 756-6994 Facsimile: (619) 756-6991 Email: tcarpenter@carlsonlynch.com - and - Michael K. Yarnoff, Esq. KEHOE LAW FIRM 1500 JFK Blvd., Suite 1020 Philadelphia, PA 19102 Telephone: (215) 792-6676 Facsimile: (215) 990-0701 Email: myarnoff@kehoelawfirm.com KISLING NESTICO: Sued for Receiving Chiropractor Kickbacks ---------------------------------------------------------- Jennifer Conn, writing for cleveland.com, reports that a lawsuit seeking class-action status in Summit County accuses personal- injury law firm Kisling, Nestico and Redick (KNR) of defrauding clients injured in car accidents by receiving kickbacks from chiropractors. The suit is filed on behalf of former KNR clients Member Williams, Naomi Wright and Matthew Johnson, the complaint in the Summit County Court of Common Pleas. It accuses the law firm -- known for its "Hurt in a car. . . Call KNR!" ads -- and owners, Alberto Nestico and Robert Redick, of working with chiropractors who cold- called people "in the wake of painful car accidents when the clients are at their most vulnerable," offering free transportation to a chiropractic clinic. A lawsuit alleges that a local injury law firm, KNR, charged a woman a fee for an investigation that never happened. It seeks class action status. Once at the clinic, the lawsuit says injured patients were coerced into unwanted healthcare, referred to Kisling, Nestico and Redick and asked to sign fee agreements on the spot. The lawsuit also claims that KNR introduced clients to now-defunct Liberty Capital Funding, where clients received loans with interest rates of 49 percent and higher, plus fees, as advances on the pending lawsuits. Ohio law prohibits attorneys from working with chiropractors for patient referrals and from compensating chiropractors for referral. "KNR denies the allegations in the complaint," said Jim Popson, of Sutter O'Connell Attorneys in Cleveland. According to the complaints, KNR rewarded high-referring chiropractors by taking them on vacation to Cancun, Mexico, and the Dominican Republic. According to emails quoted in the complaint, Nestico ordered KNR attorneys to direct all KNR clients to take out the high-interest loans with Liberty Capital, which was recently formed and was run out of the home of the company's CEO, who had most recently worked as an insurance broker. In addition, the suit argues KNR charged clients "investigation fees" for investigations that were never performed. In emails, the KNR employees referred to the fees as "sign up fees," according to the lawsuit. Emails in the lawsuit say 10 KNR clients were charged for investigations performed by the same investigator on the same day all over Ohio, including in Cleveland and Dayton, approximately 200 miles apart. "KNR pressures its clients into unwanted healthcare to serve the interests of the providers with whom it maintains quid pro quo relationships," the lawsuit says. LAPOLLA INDUSTRIES: Legal Fees Dispute in "Markey" Suit Underway ---------------------------------------------------------------- Dispute over legal fees remains pending in a class action lawsuit against Lapolla Industries, Inc., Lapolla Industries, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 15, 2017, for the fiscal year ended December 31, 2016. A complaint initially entitled Neil and Kristine Markey, individually, and on behalf of all others similarly situated, Plaintiffs, vs. Lapolla industries, Inc., a Delaware corporation; Lapolla International, Inc., a Delaware corporation; and Delfino Insulation Company, Inc., a New York Corporation, Defendants, was filed in the United States District Court for the Eastern District of New York and served on or about October 10, 2012 and amended last on November 11, 2013. Plaintiffs brought this lawsuit only individually, having amended out any request for a class action. The complaint alleged, among other things, that Lapolla designed, labeled, distributed, and manufactured spray polyurethane foam insulation, which created a highly toxic compound when applied as insulation resulting in exposure to harmful gases. Plaintiffs sought: actual, compensatory, and punitive damages; injunctive relief; and attorney fees. Lapolla considered the allegations to be without merit and vigorously defended the allegations. On February 4, 2015, the Court dismissed the litigation with prejudice, per the voluntary request of Plaintiffs upon the advice of their new counsel and after their original litigation counsel withdrew citing irreconcilable differences with the Plaintiffs. The Court retained jurisdiction to address a pending motion for sanctions filed by Lapolla. The primary basis for Lapolla's motion for sanctions is the Plaintiffs' and their original attorney's filing of the lawsuit without sufficient factual basis for the claims of personal injury and for failing to comply with discovery obligations to produce numerous potentially dispositive documents that Plaintiffs knew existed and their original counsel either knew or should have known existed. Lapolla seeks to recover over $800,000 in legal fees for the defense of the lawsuit. All motions have been filed with the Court and Lapolla is awaiting a final ruling. The final outcome of this litigation cannot be determined at this time. Lapolla Industries, Inc. is a national manufacturer and supplier of spray polyurethane foams and acrylic coatings targeting commercial and industrial and residential building envelope applications in the roofing and insulation construction industries. The Houston, Texas-based Company is also a national distributor of equipment for application of its products. LATTICE SEMICONDUCTOR: Robert Sellers Agrees to Drop Class Suit --------------------------------------------------------------- The Plaintiff in the case captioned, Robert Sellers v. Lattice Semiconductor Corporation et al., Case No. 1:17-cv-00081 (D. Del.), has agreed to voluntarily dismiss the case. Judge Gregory M. Sleet on March 22 entered an Order granting the parties' stipulation. The parties have agreed that Plaintiff's Counsel will file an Application for an Award of Attorneys' Fees and Expenses. Lattice Semiconductor Corporation said in its Form 8-K Report filed with the Securities and Exchange Commission on February 6, 2017, that "On January 27, 2017, an alleged stockholder of Lattice filed a putative class action captioned Sellers v. Lattice Semiconductor Corp., Case Number 1:17-cv-00081, in the United States District Court for the District of Delaware (the "Delaware Federal Action"). The defendants in the action are Lattice and the members of Lattice's board of directors." The complaint alleges that the defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated there under by failing to disclose all material facts concerning the Merger in the proxy statement filed on January 27, 2017. The complaint seeks an order: enjoining defendants from consummating the proposed transaction pending disclosure of additional information, or, if the proposed transaction is consummated, an order rescinding it and awarding rescissory damages; directing defendants to account for damages allegedly suffered by plaintiff and the putative class; awarding plaintiff the costs of the action, including reasonable attorneys' and experts' fees; and granting such other and further relief as the court may deem proper. "On January 30, 2017, the plaintiff in the Delaware Federal Action filed a motion for a preliminary injunction seeking to enjoin the shareholder vote on the proposed transaction until defendants disclose additional information regarding the transaction." "Lattice denies the allegations in the Delaware Federal Action, believes that the proxy statement disclosed all material information, and denies that any supplemental disclosure is necessary." Lattice operates a fabless semiconductor company located at 111 Southwest 5th Avenue, Suite 700, Portland, Oregon 97204. LOUISIANA: Sued over Solitary Confinement for Death Row Inmates --------------------------------------------------------------- Sabrina Canfield, writing for Courthouse News Service, reported that a class action claims in Baton Rouge, death row inmates at Louisiana's Angola prison are subjected to solitary confinement regardless of their behavior, a violation of their human and constitutional rights. In a complaint filed in the Middle District of Louisiana on March 29, the three lead plaintiffs challenge the "cruel and baseless placement of prisoners who are in prolonged and complete isolation on death row." They say they are "subjected to indefinite extreme isolation, devoid of mental stimulation and having only sporadic human interaction." One prisoner said that once placed in isolation he only comes into contact with another human being when he is placed in shackles before the one hour a day he is let out of his cell. Louisiana State Penitentiary is located on the former site of a plantation, on a remote 18,000 acres near the Mississippi Louisiana-border. It is enclosed on three sides by the Mississippi River, and was long ago nicknamed "Angola" after the country that most of the slaves on the former plantation came from. It is the largest maximum security prison in the United States, and more than 70 prisoners are currently on its death row. Death row inmates at Angola are confined for 23 hours a day in small, windowless cells. "The harsh repercussions of prolonged isolation are well-known among mental health experts, physicians and human rights experts in the United States and around the world. It is agreed that solitary confinement puts prisoners at risk of substantial physical, mental and emotional harm. Research has shown that prolonged solitary confinement results in heightened levels of anxiety, chronic depression and sensitivity to stimuli," the complaint says. In recent years, leaders in the United States and in other parts of the world have condemned the use of solitary confinement as inhumane, the lawsuit says. "These dehumanizing conditions are detrimental to the Class Members and have caused them severe and irreversible physical and psychological harm," the complaint continues. "Over time, these Class Members have slowly lost their cognitive capacities and ability to communicate effectively. Additionally, any pre-existing mental health illnesses of the Class Members have been exacerbated by the isolated confinement," and yet, Angola continues its practice of long-term isolation for prisoners sentenced to death for their criminal convictions." The lawsuit points to a 2016 report conducted by the Justice Department that recommends the use of solitary confinement only when "it serves a specific penal purpose and when accompanied by regular review by a multi-disciplinary committee." Another recommendation, issued by the United Nations in 2015, says solitary confinement should be used in only the direst of situations and should go on for no more than 15 days. "Contrary to these recommendations," the lawsuit says, prisoners at Angola "have been held in solitary confinement for decades without any rational justification and without being afforded any process or mechanism to address their confinement or to rectify the harm it has inflicted on them." The three lead plaintiffs have been in solitary for 25 to 31 years. Plaintiff Marcus Hamilton, 56, has spent the last 25 years in solitary confinement. Hamilton "has observed how prisoners change after years on the row. He has seen formerly articulate prisoners slowly lose their mind and their ability to hold logical conversations and interact with others," the lawsuit says. Prisoners on death row are not given the chance to challenge their placement there, the lawsuit says. Angola has 10 outdoor pens for death row inmates, who are let out three times per week for one hour. Exercise, work to earn money, and arts and crafts are not allowed in solitary confinement, and prisoners who already suffer from mental illness tend to only get worse. Plaintiff Winthrop "Earl" Eaton has been in solitary confinement for the past thirty years. He has been diagnosed with schizophrenia and has been deemed incompetent to be executed. Eaton spends the majority of his time alone in his cell watching television, the lawsuit says. Plaintiff Michael Perry, who has been in solitary confinement for 31 years, has been diagnosed with schizoaffective disorder and has been deemed incompetent to be executed. Solitary confinement has worsened his mental state. Aside from taking antipsychotic medication, he isn't receiving any mental health treatment. Perry's ability to communicate is extremely limited. His speech is mostly nonsensical, and his comprehension is very low. Perry suffers from hallucinations and psychosis and is unable to hold a productive conversation. Because of this, he is "ignored by the prison guards," the lawsuit says. A spokesman for the prison said in a phone call the agency can't comment on pending litigation. Betsy Ginsberg, an attorney in New York who represents some of the plaintiffs, told the Associated Press that other states have far less restrictive conditions for inmates on death row. "I do think there has been a shift in how we as a country think about isolation of prisoners," said Ginsberg, director of the Cardozo Civil Rights Clinic at Benjamin N. Cardozo School of Law in New York. Nicholas Trenticosta, the attorney in New Orleans who filed the lawsuit, told the AP the case is the first of its kind to be filed at Angola. Pieter Van Tol, of Hogan Lovells US LLP of New York, is also representing the plaintiffs. In 2013, a separate group of inmates filed a lawsuit challenging what they said were dangerous heat levels on death row. A federal judge ruled in their favor, and ordered prison officials to use new, low-tech heat remediation measures. The class plaintiffs in the current case seek an injunction that would release them from solitary confinement, in addition to regular physical and mental health checks and compensation for the years spent in solitary confinement, including punitive and nominal damages. The case is captioned, MARCUS HAMILTON; WINTHROP EATON; and MICHAEL PERRY, on their own behalf, and on behalf of a class of similarly situated prisoners, Plaintiffs -against- DARREL VANNOY, Warden of Angola; Burl Cain, former Warden of Angola; James Cruze, Warden of Death Row; Leslie Dupont, Deputy Warden of Security; and James Leblanc, Secretary of Louisiana Department of Public Safety Corrections. Defendants. Case 3:17-cv-00194-SDD-RLB (M.D. La., March 29, 2017). LUFTHANSA: Judge Trims Claims in Class Action Over Flight Delays ---------------------------------------------------------------- Cara Salvatore, Kat Greene, Jessica Corso and Diana Novak Jones, writing for Law360, report that an Illinois federal judge on March 27 deeply trimmed legal claims against airline Lufthansa in a class action over flight delays and cancelations, rejecting class claims that would have covered numerous flights over a period of years. Plaintiff David Shabotinsky says he was flying from Chicago to Tel Aviv, Israel, in August 2014 but arrived five hours later than he had anticipated when his connecting flight in Frankfurt was canceled and he was rebooked on another flight. He said he had to spend money while he was waiting around in an airport where he wasn't supposed to be. U.S. District Judge Elaine Bucklo on March 27 granted Lufthansa's motion to dismiss claims covering a class based on "all international Lufthansa flights since August 2014," saying that the central question of whether Lufthansa took all possible measures to avoid the issue could not be resolved in a class of this type. "Such a class would encompass disparate claims based on delays arising in connection with hundreds of flights. A class of such proportions is not maintainable," the judge said. She also dismissed two claims over Lufthansa's supposed failure to respond appropriately to pre-suit notices of claim, which she called a "non-existent legal requirement" based on the plaintiff's mistaken belief that plaintiffs must serve such notices or settlement demands before suing, "and that air carriers are required to give 'meaningful consideration' to such claims and demands. This is mistaken," the judge said. The judge, however, kept claims for economic damages and said that there may be a legitimate class of people who were passengers on one or both of Mr. Shabotinsky's flights. That is still to be hammered out. The judge also denied the airline's request that the plaintiffs' lawyers be sanctioned, saying that although she couldn't say that Lufthansa's beefs over whether a redress amount specified in the complaint was a "cap" or a "set amount" for damages, the issue was a quite minor one, and that Lufthansa was incorrect that Mr. Shabotinsky had no basis on which to bring any class claims. Meanwhile, earlier in the suit, Lufthansa beat an attorney sanctions bid when a judge ruled the lawyer had not waited long enough before filing his papers in court. Lawyer Vladimir Gorokhovsky, who represents Mr. Shabotinsky, broke a rule of civil procedure when he requested sanctions over Lufthansa's supposed harassment of him -- just four days after Lufthansa filed the sanctions motion that prompted his own motion. Federal Rule of Civil Procedure 11(c)(2) has a safe-harbor provision that restricts motions for sanctions to after the target attorney has had a copy of the filing for 21 days. But Mr. Gorokhovsky filed his dueling sanctions motion less than a week after Lufthansa's, the judge said. Mr. Gorokhovsky amended the complaint in August, cutting it down to 35 pages and removing references to European Commission Regulation 261/2004. Mr. Shabotinsky is represented by Vladimir Gorokhovsky of the Law Offices of Vladimir M. Gorokhovsky. Lufthansa is represented by Anthony Battista -- abattista@condonlaw.com -- and Christopher Christensen -- cchristensen@condonlaw.com -- of Condon & Forsyth LLP and Brent Austin -- baustin@eimerstahl.com -- and Jacob Hamann -- jhamann@eimerstahl.com -- of Eimer Stahl LLP. The case is Shabotinsky v. Deutsche Lufthansa AG, case number 1:16-cv-04865, in the U.S. District Court for the Northern District of Illinois. LULAROE: Plaintiffs Attorneys to Push Through Sales Tax Lawsuit --------------------------------------------------------------- April Brown and John O'Brien, writing for Legal Newsline, report that popular online fashion company LuLaRoe says it has fixed the problem that led to a class action fraud lawsuit and issued refunds, but plaintiffs attorneys object to the company's actions and are moving forward with the case. Rachael Webster filed her complaint Feb. 17 in the U.S. District Court for the Western District of Pennsylvania, alleging LuLaRoe knowingly overcharged customers in the form of fraudulent sales taxes. "We are fully aware of this issue and have invested significant resources to address it," a spokesperson for LuLaRoe recently told Legal Newsline. Independent sales representatives for LuLaRoe are required to use an online, proprietary point-of-sale system called "Audrey" that automatically adds sales tax according to the location of the salesperson, rather than the customer, and that independent representatives do not have the ability to adjust the sales tax. The complaint alleges that in some cases "the sales tax surcharge is more than the price advertised online for the product and purchasers do not become aware of this overcharge until Audrey sends them an invoice." The complaint accuses LuLaRoe of overcharging buyers "up to 10.25 percent every time a consultant who lives in a jurisdiction that taxes clothing makes a sale where a delivery is made to a jurisdiction that does not," and of not remitting overcharges to that taxing authority that governs the transaction. LuLaRoe's spokesperson offered an explanation for the issue, stating that "a former technology vendor had a software failure that misidentified the accurate location of certain customers." "We have contracted a new point-of-sale vendor to accurately identify sales tax moving forward," the company's spokesperson said. "In addition, we have already issued refunds for incorrect sales tax collection to customers who contacted us directly to identify their proper location, and we are in the process of proactively refunding all affected customers. We have an independent, dedicated account of all sales tax collected that is segregated from the operating funds of the company." The formal charges in the complaint include breach of constructive trust, unjust enrichment, unfair trade practices and consumer protection law, and conversion and misappropriation. The complaint states that the plaintiff is seeking reimbursement of the alleged fraudulent charges, as well as reimbursement for attorneys fees and court costs. Two Pittsburgh firms are representing Webster -- Carlson Lynch and Cohen & Grigsby. They recently asked Judge David Cercone to prevent LuLaRoe from confusing class members. The motion claimed LuLaRoe has "changed its tune" since the lawsuit was filed, telling Forbes it has reimbursed any individual identified as having been improperly charged sales tax. After refusing to issue refunds previous to the filing of the lawsuit, the company is now doing so to mislead potential class members about the benefits of the lawsuit, attorneys say. "As part of an apparent effort to put the genie back into the bottle regarding its unlawful collection of sales taxes . . . LuLaRoe is engaged in misleading communications with Plaintiff and the putative class members, and in some cases, has wired unaccounted-for amounts to their credit cards or bank accounts without consent or explanation," plaintiffs attorneys wrote March 21. "While these efforts will presumably be framed by Defendant as a belated effort to 'do the right thing' by refunding unspecified amounts to some class members without any accompanying explanation or accounting, the reality is most putative class members are unaware that they were charged unlawful amounts in the first instance." Class members have no basis for determining whether a refund makes them whole, attorneys wrote. Judge Cercone has ordered a response from the company in April. Plaintiffs attorneys also recently filed a motion to certify their class. The motion says a class exists because LuLaRoe charges each customer the same way. It also says Webster is an adequate class representative, having been charged sales tax on at least 12 purchases even though her home state of Pennsylvania does not permit sales tax on clothing. She has been charged $35 in sales tax. MAJOR LEAGUE: Youth Soccer Club's Suit Dismissed ------------------------------------------------ Courthouse News Service reported that citing lack of jurisdiction, a federal judge in Sherman, Texas on March 29 dismissed a class- action lawsuit filed by youth soccer clubs claiming they are entitled to reimbursement for training fees for players they developed who later became professionals. The case is captioned, DALLAS TEXANS SOCCER CLUB, CROSSFIRE FOUNDATION, INC., SOCKERS FC CHICAGO, LLC v. MAJOR LEAGUE SOCCER PLAYERS UNION, CLINT DEMPSEY, DEANDRE YEDLIN, MICHAEL BRADLEY Case 4:16-cv-00464-ALM (E.D. Tex., March 29, 2017). MASIMO CORP: 11th Cir. Appeal in Product Liability Suit Pending --------------------------------------------------------------- The Masimo Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 15, 2017, for the fiscal year ended December 31, 2016, that the parties in a product liability class action lawsuit are waiting for the decision of the Eleventh Circuit Court of Appeals. The Company said, "The manufacture and sale of products using Masimo SET(R) and licensed rainbow(R) technology expose us to product liability claims and product recalls, including, but not limited to, those that may arise from unauthorized off-label use, which is use of a device in a manner outside the indications for use cleared by the FDA, malfunctions, design flaws or manufacturing defects related to our products or the use of our products with incompatible components or systems." "On January 31, 2014, an amended putative class action complaint was filed against the Company in the U.S. District Court for the Northern District of Alabama by and on behalf of two participants in the Surfactant, Positive Pressure, and Oxygenation Randomized Trial at the University of Alabama. On April 21, 2014, a further amended complaint was filed adding a third participant. The complaint alleges product liability and negligence claims in connection with pulse oximeters the Company modified and provided at the request of study investigators for use in the trial. "On August 13, 2015, the U.S. District Court for the Northern District of Alabama granted summary judgment in favor of the Company on all claims. The plaintiffs have appealed the U.S. District Court for the Northern District of Alabama's decision. The appellate hearing before the Eleventh Circuit Court of Appeals was held on December 13, 2016, and the parties are awaiting a decision. "The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company in the accompanying consolidated financial statements." Masimo is a global medical technology company that develops, manufactures and markets a variety of noninvasive patient monitoring technologies. MASIMO CORP: D.C. Cir. Appeal in Junk Fax Suit Pending ------------------------------------------------------ The Masimo Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 15, 2017, for the fiscal year ended December 31, 2016, that the parties in a class action lawsuit over unsolicited facsimile advertisements are waiting for the decision of the D.C. Circuit Court of Appeals. The Company said, "On January 2, 2014, a putative class action complaint was filed against the Company in the U.S. District Court for the Central District of California by Physicians Healthsource, Inc. The complaint alleges that the Company sent unsolicited facsimile advertisements in violation of the Junk Fax Protection Act of 2005 and related regulations. The complaint seeks $500 for each alleged violation, treble damages if the District Court finds the alleged violations to be knowing, plus interest, costs and injunctive relief. On April 14, 2014, the Company filed a motion to stay the case pending a decision on a related petition filed by the Company with the Federal Communications Commission (FCC). On May 22, 2014, the District Court granted the motion and stayed the case pending a ruling by the FCC on the petition. On October 30, 2014, the FCC granted some of the relief and denied some of the relief requested in the Company's petition. Both parties appealed the FCC's decision on the petition." "On November 25, 2014, the District Court granted the parties' joint request that the stay remain in place pending a decision on the appeal. The appellate hearing in the D.C. Circuit Court of Appeals was held on November 8, 2016, and the parties are awaiting a decision. "The Company believes it has good and substantial defenses to the claims, but there is no guarantee that the Company will prevail. The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company in the accompanying consolidated financial statements." Masimo is a global medical technology company that develops, manufactures and markets a variety of noninvasive patient monitoring technologies. MAXPOINT INTERACTIVE: Awaits Ruling on Bid to Review Dismissal -------------------------------------------------------------- MaxPoint Interactive, Inc., awaits ruling on the Plaintiff's motion to reconsider an order dismissing the first amended complaint filed in a securities lawsuit pending in New York, the Company said in its Form 10-K filed with the Securities and Exchange Commission on March 8, 2017, for the fiscal year ended December 31, 2016. The Company, certain of its officers and directors, and certain investment banking firms who acted as underwriters in connection with the Company's IPO, have been named as defendants in a putative class action lawsuit filed August 31, 2015 in the United States District Court for the Southern District of New York. The complaint alleges that the defendants violated Sections 11, 12 and 15 of the Securities Act by not including information regarding customer concentration, which the complaint characterizes as a known trend and/or significant factor required to be disclosed under federal securities regulations. The complaint seeks unspecified damages, interest and other costs. The Court appointed a Lead Plaintiff on November 18, 2015, and on January 19, 2016 the Lead Plaintiff filed a First Amended Complaint that repeats the same substantive allegations included in the initial complaint and continues to seek unspecified damages. On March 24, 2016, the Company filed a motion to dismiss the First Amended Complaint. The Lead Plaintiff filed an opposition to that motion on May 9, 2016, and the Company filed a reply brief on June 8, 2016. On February 13, 2017, the United States District Court for the Southern District of New York filed a Memorandum Opinion and Order dismissing the First Amended Complaint against the Company, the individual defendants and the underwriter defendants. The Plaintiff filed a motion with the Court to reconsider the Order of dismissal and reinstate the claims against the defendants on February 27, 2017. The Company anticipated filing an opposition brief by no later than March 13, 2017. The Company disputes these claims and is defending this matter vigorously, and is unable to estimate the amount of a potential loss or range of potential loss, if any. Legal fees are expensed in the period in which they are incurred. MaxPoint Interactive, Inc., is a marketing technology company that generates hyperlocal intelligence to optimize brand and retail performance. The Company provides a platform for brands to connect the digital world with the physical world through hyperlocal execution, measurement and consumer insights. MEMPHIS, TN: Seeks Sixth Circuit Review of Ruling in "Cole" Suit ---------------------------------------------------------------- The City of Memphis filed an appeal from a court ruling relating to the lawsuit titled Lakendus Cole, et al. v. City of Memphis, et al., Case No. 2:13-cv-02117, in the U.S. District Court for the Western District of Tennessee at Memphis. As previously reported in the Class Action Reporter, Lakendus Cole, a Memphis police officer, was arrested in the early morning hours of August 26, 2012, shortly after leaving a night club on Beale Street in downtown Memphis, Tennessee. After his arrest, he brought claims individually and on behalf of those similarly situated, alleging that the City's routine practice of sweeping Beale Street at 3 a.m. on weekend nights violated his constitutional right to intra state travel. The appellate case is captioned as Lakendus Cole, et al. v. City of Memphis, et al., Case No. 17-5310, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiffs-Appellees LAKENDUS COLE and LEON EDMOND, individually and as representatives of all others similarly situated, are represented by: Bryan Matthew Meredith, Esq. Robert L. J. Spence, Jr., Esq. THE SPENCE LAW FIRM One Commerce Square, Suite 2200 Memphis, TN 38103 Telephone: (901) 312-9160 Defendant-Appellant CITY OF MEMPHIS is represented by: Leo Maurice Bearman, Jr., Esq. Zachary B. Busey, Esq. Lori H. Patterson, Esq. BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0717 E-mail: lbearman@bakerdonelson.com zbusey@bakerdonelson.com lpatterson@bakerdonelson.com - and - Barbaralette G. Davis, Esq. J. Michael Fletcher, Esq. Zayid Ahmad Saleem, Esq. OFFICE OF THE CITY ATTORNEY, CITY OF MEMPHIS 125 N. Main Street, Room 414 Memphis, TN 38103 Telephone: (901) 576-6614 Facsimile: (901) 576-6524 E-mail: barbaralette.davis@memphistn.gov Zayid.Saleem@memphistn.gov MIDLAND FUNDING: Walkabout Appeals W.D. Okla. Ruling to 10th Cir. ----------------------------------------------------------------- Plaintiff Lori Walkabout filed an appeal from a court ruling in the lawsuit entitled Lori Walkabout v. Midland Funding, LLC, et al., Case No. 5:14-CV-00939-M, in the U.S. District Court for the Western District of Oklahoma - Oklahoma City. As previously reported in the Class Action Reporter, Lori Walkabout filed the action individually and on behalf of a class of similarly situated consumers, alleging that Midland Funding LLC and Midland Credit Management, Inc. violated the Fair Debt Collection Practices Act and that the Defendants' repeated violations of the FDCPA entitles her to maintain a negligent per se cause of action against them. The appellate case is captioned as Lori Walkabout v. Midland Funding, LLC, et al., Case No. 17-6062, in the United States Court of Appeals for the Tenth Circuit.[BN] Plaintiff-Appellant LORI WALKABOUT, individually and on behalf of all others similarly situated, is represented by: Daniel A. Edelman, Esq. Francis R. Greene, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 E-mail: dedelman@edcombs.com fgreene@edcombs.com - and - Minal Gahlot, Esq. M. Kathi Rawls, Esq. RAWLS LAW OFFICE PLC 2404 S Broadway Moore, OK 73160 Telephone: (405) 912-3225 Facsimile: (405) 703-2769 E-mail: minal@rawlslawoffice.com mkr@rawlslawoffice.com Defendants-Appellees MIDLAND FUNDING LLC and MIDLAND CREDIT MANAGEMENT, INC., are represented by: Jon Edward Brightmire, Esq. DOERNER, SAUNDERS, DANIEL & ANDERSON LLP 2 West Second Street Williams Center Tower II, Suite 700 Tulsa, OK 74103-3117 Telephone: (918) 591-5253 Facsimile: (918) 925-5258 E-mail: jbrightmire@dsda.com NATIONAL COMMERCIAL: Fitz Jackson to Pursue Banking Fees Case ------------------------------------------------------------- The Jamaica Gleaner reports that the Member of Parliament for St Catherine South, Fitz Jackson, says the decision of some banks to suspend fees for dormant account will not stop him from going to court to compel them to pay compensation. Mr. Jackson is of the view that the banks only took the decision after realising that their action breached the law. In the past two weeks, the National Commercial Bank, First Global Bank, Scotiabank Jamaica and First Caribbean International Bank have announced that with immediate effect they would suspend collecting fees on dormant accounts. The MP is contending that the charging of fees on dormant accounts contravenes provisions under the Banking Services Act. In an interview on Power Talk on Power 106FM on March 27 Mr. Jackson said he's in consultation with his lawyers on the suit and is to make a public announcement on the matter shortly. He said the only way he would not take the banks court is if they fully terminate collecting dormancy fees and refund depositors or pay compensation. Jackson, who has been advocating for stronger banking regulations and consumer protection, has tabled a private members motion in parliament seeking amendments to the Act. Among other things, the legislation proposes regulating fees and charges by deposit-taking institutions and minimum service standards for customers. The bill has received strong push back from the financial sector with financial institutions arguing that the government should not dictate fees in a free market economy. Earlier in March, Finance Minister Audley Shaw told parliament that there's an estimated 45 billion dollars in dormant accounts. NEW YORK: AAA Elite Hits NYSDOH for Proposed Reimbursement Cuts --------------------------------------------------------------- AAA Elite Medical Equipment Inc., Anfex, Inc., Atlantic Surgical Supply Corp., Better Life Medical Supplies Inc., Borbas Pharmacy, Inc., D.A. Surgical Supply, Inc., F&D Pharmacy Inc. D/B/A Medical Arts Chemists & Surgicals, Global United Medical Supplies, Inc., Health Support Medical Supply, Inc., The King Medical Equipment Co., Inc., Liberty Respiratory Care Inc. d/b/a Liberty Home Healthcare, M.G. Medical Supplies Inc., N&L Medical Supply Inc., Nucare Pharmacy Inc. D/B/A Nucare Pharmacy & Surgical, Ocean Surgical Supply Co., Rainbow Supply, Inc. d/b/a Rainbow Medical Supply, Slon Medical Instrument Llc, Task Supply Corp., Welcare Drugstore Inc., individually and on behalf of all others similarly situated, Amber Stone, Lynn Stone, Jane Doe, Individually and on behalf of all others similarly situated, Petitioners/Plaintiffs, v. Howard A. Zucker, M.D., in his capacity as the Commissioner of the New York State Department of Health, and the New York State Department of Health, Case No. 7:17-cv-00064, (N.Y. Sup., March 30, 2017), seeks to rescind and annulling the March 6, 2017 Incontinence Supply Management Program Revised Fee Schedule Changes for failure to comply with Title II of the Americans with Disabilities Act, Rehabilitation Act, costs and attorney's fees in this action and such other and further relief. Petitioners bring this proceeding to challenge the New York State Department of Health's proposed decrease in the Medicaid reimbursement rates to be paid to providers of certain incontinence supplies, which was announced on March 6, 2017 and is scheduled to take effect on April 3, 2017 and would shift more than $51 million of taxpayer-funded Medicaid payments, for a total of $255 million over the life of a five-year contract, to a California-based wholesaler. The proposed rate cuts by the Department of Health are unsustainably low -- well below total cost for New York-based community providers who provide such products -- and will eviscerate the community-based network of providers of these essential products, leaving a de facto mail-order option that Respondent has found to be an improper and inadequate solution for New York's Medicaid patients. Plaintiffs are mostly providers of medical equipment, including incontinence supplies. [BN] Plaintiff is represented by: Philip R. Russ, Esq. LAW OFFICES OF PHILIP R. RUSS 2700 S. Western, Suite 1200 Amarillo, TX 79109 Tel: (806) 358-9293 Fax: (806) 358-9296 NIANTIC: Seeks Dismissal of Landowners' Pokemon Go Class Action --------------------------------------------------------------- Eriq Gardner, writing for Hollywood Reporter, reports that the game's developer urges a federal judge not to give landowners a new right to refuse placement of virtual objects on property. The hype around Pokemon Go, the augmented reality game encouraging players to visit various real-life locations in order to discover, capture and train digital creatures from the Pokemon universe, has faded. But litigation in its wake and a forthcoming decision by a California federal judge has real potential to add new meaning to a legal concept -- trespass -- that's been around at least since medieval times. Last summer, homeowners began filing nuisance suits against Niantic, the company that developed the app game. Jeffrey Marder, who was disturbed by strangers holding up their mobile phones as if they were taking pictures outside of his New Jersey home, is one of the plaintiffs. So are residents of the Villas of Positano, an oceanfront condo in Hollywood, Florida. According to the complaint, they became aware of hundreds of non-residents infiltrating their complex during the early hours of the morning, behaving "like zombies, walking around bumping into things." A curious phenomenon, no doubt, and also a possible game-changer to one of the oldest of torts. In reaction to the lawsuits, since consolidated, Niantic brought an interesting argument on a motion to dismiss. "Plaintiffs allege an invasion due to Niantic's 'designat[ion]' of their properties as locations containing or near virtual Game Items," stated the Pokemon Go developer. "This 'designation' only causes Game Items to display on players' phones . . ." "Thus, Plaintiffs would never even see the allegedly intruding Game Items unless they played the game at home," continued Niantic through its lawyer, Jeffrey Gutkin at Cooley LLP. "This virtual 'invasion' does not 'meaningful[ly . . . occupy the[ir] land': it is less invasive than noise, vibrations, dust, or a chemical cloud, all insufficient for trespass." In other words, the Pokemon creatures may seem like trespassers themselves, but that's but an illusion. As for the game-players, Niantic stresses that it requires players to agree to its Terms and Trainer Guidelines, which advises that no one should break any law to capture a creature. The plaintiffs aren't satisfied by this. They are looking to collect a ticket from the judge to proceed on the ground that Niantic created an unreasonable interference with the use and enjoyment of their land. They object to Niantic's argument that if there's any fault, it lies with the players themselves. "Niantic placed Pokemon Gyms and Pokestops on private property even though it knew or should have known that its actions would result in a trespass and nuisance to the owners," argue plaintiffs' attorneys at Pomerantz LLP. The opposition brief, filed earlier in March, then continues with a bold proposition. "In the alternative, landowners should have a right to refuse the placement of virtual objects on their property -- at least where those virtual objects create any kind of incentive for any persons to be in their physical proximity," states the brief. On March 23, in advance of a hearing before judge James Donato, Niantic attacked what it calls the "induced trespass" and "virtual trespass" theories. The game developer reiterates that a defendant can only get into trouble for trespass by causing tangible objects -- such as projectiles or a balloon -- to be on someone's property. "This does not support Plaintiffs' theory that property owners should be able to prevent app developers from displaying on-screen virtual objects on the devices of third parties, at virtual locations corresponding to being near the property owners' properties," states the reply brief. "If accepted, it would threaten numerous online services. For instance, creators of apps that display on-screen markers (e.g., a walking tour app that flags landmarks or an app that permits users to 'check-in' virtually to a location to connect with friends) could be liable for trespass. There is no legal support for, and no need for, the expansion of the law Plaintiffs advocate, so the Court should reject their theory." NIKIL INC: Judge Tosses Class Action Over "Spam Vite" Texts ----------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a Chicago federal judge has dismissed a class action complaint against the San Francisco-based developer of the Down to Lunch smartphone app, saying app users -- and not the software itself -- are responsible for "spam-vite" promotional text messages sent to other people's phones. On April 22, 2016, attorney Ari J. Scharg, of the firm of Edelson PC, of Chicago, filed suit in Cook County Circuit Court on behalf of plaintiff Matthew Warciak and a putative class of other plaintiffs against app maker Nikil Inc., alleging the app's spike in popularity was in part powered by improper marketing techniques using potential users' mobile phones. Down To Lunch aims to help friends -- particularly, high school and college students -- suggest activities to other friends. When they agree on an activity, such as "lunch," "chill" or "study," among others, those wishing to participate click the button labeled "I'm Down." According to the complaint, Nikil used users' contact lists to generate lists of numbers and "programmed the application to automatically send text messages" that used app users' names to make it appear a friend had "personally invited" those receiving the text messages to download Down To Lunch "so you can both hang out together," in a technique the complaint said is known as "spam-viting." On March 23 in Chicago, U.S. District Judge Thomas M. Durkin granted Nikil's motion to dismiss for failure to state a claim. He noted the Telephone Consumer Protection Act's prohibition on automatic telephone dialing system to cellphone numbers for anything other than emergencies or with the prior consent of the called party. For issues related to text messages, the Federal Communications Commission issued an order clarifying how courts should determine which party "initiated" a text. According to Judge Durkin's opinion, when DTL users select the "find friends" option, "the app seeks permission to access the user's contacts," then tells users they can earn points -- good toward T-shirts or in-app virtual "stickers" -- for getting friends to join the app, offering "two large button options, 'Skip' and 'Invite' " for each contact. Judge Durkin contrasted DTL with other software, noting that, unlike other apps, "Down To Lunch does not 'automatically' send text messages to every one of the user's contacts. The Down to Lunch user, not the app itself, decides whether any of the user's contacts receive a text message generated by and through Down to Lunch. Since the user decides whether the text gets sent, Nikil cannot plausibly be said to have 'initiated' the text through Down to Lunch. Thus, Mr. Warciak has failed to state a claim that Nikil violated the TCPA." Several district courts, Judge Durkin wrote, used the FCC order as justification for dismissing TCPA claims about mobile text invitations at the pleading stage. Judge Durkin said Mr. Warciak's argument is not helped by his reliance on a ruling in his favor on another pending action, a separate class action lawsuit he and the Edelson firm also brought against the makers of the After School app, which allows students attending the same high school to anonymously share messages. On Dec. 20, U.S. District Judge Matthew F. Kennelly denied a motion from One Inc., maker of the After School app, to dismiss Mr. Warciak's complaint in that case. Judge Durkin noted the differences in the two cases. Quoting Kennelly, Judge Durkin said the After School app "never indicates to users that they are sending invitations," while Mr. Warciak in his own complaint acknowledges DTL invitations are initiated by users who are aware they will generate texts to their contacts. Legally, Nikil is not the "initiator" of the messages, per Judge Durkin, undercutting Mr. Warciak's ability to allege a TCPA violation. Judge Durkin dismissed Mr. Warciak's complaint without prejudice, granting him until April 21 to file a motion for leave to amend. Nikil was represented in the action by attorneys with the firms of Fenwick & West LLP, of Seattle and Mountain View, Calif., and of Mandell Menkes LLC, of Chicago. NIMBLE STORAGE: Faces Securities Class Action --------------------------------------------- Reuters reports that on March 24, David Ettel filed a putative securities class action complaint in U.S. District court against the company and individual members of the board. Mr. Ettel's complaint asserts that the company and certain directors violated sections 14(e), 14(d)(4), and 20(a) of exchange act. OVASCIENCE INC: Lifshitz & Miller Files Securities Class Action --------------------------------------------------------------- Lifshitz & Miller, a securities class action law firm focused on representing shareholders nationwide, on March 28 disclosed that on March 24, 2017, Lifshitz & Miller filed a securities class action lawsuit on behalf of shareholders who purchased shares of OvaScience, Inc. (OVAS) ("OvaScience" or the "Company") between January 8, 2015 and March 26, 2015 (the "Class Period"). The lawsuit was filed in the U.S. District Court for the District of Massachusetts and alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. A copy of the complaint is available from the Court or from Lifshitz & Miller. If you are an OvaScience investor, and would like additional information about our investigation and complaint, please complete the Information Request Form or contact Joshua Lifshitz, Esq. by telephone at (516) 493-9780 or e-mail at info@jlclasslaw.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. The complaint alleges that defendants caused the Company to issue false and misleading statements and/or fail to disclose, among other things, that: (1) the science behind AUGMENT had not been scientifically validated; (2) the Company was unable to achieve the purported success rates it claimed; (3) the reasons why the Company moved its studies outside of the United States; and (4) that at all relevant times, the Company's profitability and prospects were false and misleading. Investors have 60 days from March 28 to file a motion, with the court, for appointment as a lead plaintiff in this lawsuit. Lifshitz & Miller represents investors in the prosecution of securities class actions and shareholder derivative litigation in state and federal courts across the country. PIXARBIO CORP: Securities Suit in Massachusetts Remains Pending --------------------------------------------------------------- Pixarbio Corporation said in its Form 8-K Report filed with the Securities and Exchange Commission on February 10, 2017, that the Company continues to face a class action lawsuit in Massachusetts for violation of federal securities law. The Company said: "On February 3, 2017, PixarBio Corporation (the "Company") received a copy of a federal securities class action against the Company and Francis Reynolds ("Mr. Reynolds") filed in the United States District Court for the District of Massachusetts for violations of federal securities law." The class action complaint alleges among other claims that the Company and Mr. Reynolds allegedly violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by (i) allegedly employing devices, schemes and artifices to defraud, (ii) allegedly making false and/or misleading statements and (iii) allegedly engaging in acts, practices and a course of business which operated as a fraud and deceit upon those who purchased or otherwise acquired the Company's securities. The lawsuit seeks unspecified damages, interest and attorneys' fees. Pixarbio Corporation is a specialty pharmaceutical/biotechnology company focused on preclinical and commercial development of novel neurological drug delivery systems for post-operative pain. PPL CORP: Dismissed from Cane Run Environmental Claims Suit ----------------------------------------------------------- The PPL Corporation and subsidiaries said in a Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2017, for the fiscal year ended December 31, 2016, that PPL has been dismissed as Defendant in a class action lawsuit alleging Cane Run environmental claims. In December 2013, six residents, on behalf of themselves and others similarly situated, filed a class action complaint against LG&E and PPL in the U.S. District Court for the Western District of Kentucky alleging violations of the Clean Air Act and Resource Conservation and Recovery Act of 1976. In addition, these plaintiffs assert common law claims of nuisance, trespass and negligence. These plaintiffs seek injunctive relief and civil penalties, plus costs and attorney fees, for the alleged statutory violations. Under the common law claims, these plaintiffs seek monetary compensation and punitive damages for property damage and diminished property values for a class consisting of residents within four miles of the Cane Run plant. In their individual capacities, these plaintiffs sought compensation for alleged adverse health effects. In response to a motion to dismiss filed by PPL and LG&E, in July 2014, the court dismissed the plaintiffs' RCRA claims and all but one Clean Air Act claim, but declined to dismiss their common law tort claims. In November 2016, plaintiffs filed an amended complaint removing the personal injury claims and removing certain previously named plaintiffs. In February 2017, the District Court issued an order dismissing PPL as a defendant and dismissing the final federal claim against LG&E, under the Clean Air Act, and directed the parties to submit briefs regarding whether the court should continue to exercise supplemental jurisdiction regarding the remaining state law-only claims. PPL, LKE and LG&E cannot predict the outcome of this matter. LG&E retired one coal-fired unit at the Cane Run plant in March 2015 and the remaining two coal-fired units at the plant in June 2015. PPL Corporation, headquartered in Allentown, Pennsylvania, is a utility holding company that was incorporated in 1994. PPL, through its regulated utility subsidiaries, delivers electricity to customers in the U.K., Pennsylvania, Kentucky, Virginia and Tennessee; delivers natural gas to customers in Kentucky; and generates electricity from power plants in Kentucky. REGENCY VILLAGE: "Ridley" Seeks Overtime, Sues Over Missed Breaks ----------------------------------------------------------------- Mark Ridley, Stephanie Ketchum, Olga Guevara and Maria Fernandez, individually and on behalf of all others similarly situated, Plaintiffs, v. Regency Village Inc. and Penbar, Inc., Defendants, Case No. 4:17-cv-00974, (S.D. Tex., March 29, 2017), seeks compensation for all unpaid hours worked in non-overtime weeks at their then-applicable hourly rates, reasonable attorney's fees, costs and expenses of this action, pre-judgment and post judgment interest and such other and further relief for violation of the Fair Labor Standards Act. Regency Village Skilled Nursing & Rehabilitation, a medical facility located at 409 West Greene Street, Webster, TX 77598, is jointly owned and operated by Regency Village Inc. and Penbar, Inc. where Plaintiffs worked as hourly paid Licensed Vocational Nurses, Registered Nurses and Certified Nurse Assistants. They allegedly did not receive bona fide meal break periods, worked off-the-clock but were not paid for such time. Plaintiff is represented by: Todd Slobin, Esq. Ricardo J. Prieto 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 REGIONAL MANAGEMENT: Retirement Systems Appeal Class Suit Ruling ---------------------------------------------------------------- The City of Roseville Employees' Retirement System, Waterford Township Police & Fire Retirement System filed on March 1, 2017, an appeal from a ruling in the case, Waterford Township Police & Fire Retirement System v. Regional Management Corp. et al., Case No. 1:14-cv-03876 (S.D.N.Y.). The appeal is pending in the U.S. Court of Appeals for the Second Circuit. Judge Laura Taylor Swain presides over the District Court case. Regional Management Corp. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016, that, "On May 30, 2014, a securities class action lawsuit was filed in the United States District Court for the Southern District of New York (the "Court") against the Company and certain of its current and former directors, executive officers, and stockholders (collectively, the "Defendants"). The complaint alleged violations of the Securities Act of 1933 (the "1933 Act Claims") and sought unspecified compensatory damages and other relief on behalf of a purported class of purchasers of the Company's common stock in the September 2013 and December 2013 secondary public offerings." "On August 25, 2014, Waterford Township Police & Fire Retirement System and City of Roseville Employees' Retirement System were appointed as lead plaintiffs (collectively, the "Plaintiffs"). An amended complaint was filed on November 24, 2014." In addition to the 1933 Act Claims, the amended complaint also added claims for violations of the Securities Exchange Act of 1934 (the "1934 Act Claims") seeking unspecified compensatory damages on behalf of a purported class of purchasers of the Company's common stock between May 2, 2013 and October 30, 2014, inclusive. On January 26, 2015, the Defendants filed a motion to dismiss the amended complaint in its entirety. In response, the Plaintiffs sought and were granted leave to file an amended complaint. "On February 27, 2015, the Plaintiffs filed a second amended complaint. Like the prior amended complaint, the second amended complaint asserts 1933 Act Claims and 1934 Act Claims and seeks unspecified compensatory damages. The Defendants' motion to dismiss the second amended complaint was filed on April 28, 2015, the Plaintiffs' opposition was filed on June 12, 2015, and the Defendants' reply was filed on July 13, 2015." "On March 30, 2016, the Court granted the Defendants' motion to dismiss the second amended complaint in its entirety. On May 23, 2016, the Plaintiffs moved for leave to file a third amended complaint." The Defendants' opposition brief was filed on June 9, 2016, and the Plaintiffs' reply was filed on June 20, 2016. On January 27, 2017, the Court denied the Plaintiffs' motion for leave to file a third amended complaint and directed entry of final judgment in favor of the Defendants. On January 30, 2017, the Court entered final judgment in favor of the Defendants. The Plaintiffs had until March 1, 2017 to appeal the Court's decision. The Company believes that the claims against it are without merit and will continue to defend against the litigation vigorously. Regional Management Corp. is a diversified consumer finance company providing a broad array of loan products primarily to customers with limited access to consumer credit from banks, thrifts, credit card companies, and other traditional lenders. SABRE CORP: Two Consumer Class Suits Still Pending in Texas ----------------------------------------------------------- The Sabre Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2017, for the fiscal year ended December 31, 2016, that the Company continues to face class action lawsuits filed by two consumers alleging misrepresentations concerning the description of fees received in relation to facilitating hotel reservations. The cases are still pending in Texas courts. According to the Complaint, "generally, the consumer claims relate to whether Travelocity provided adequate notice to consumers regarding the nature of our fees and the amount of taxes charged or collected. One of these lawsuits is pending in Texas state court, where the court is currently considering the plaintiffs' motion to certify a class action; and the other is pending in federal court, but has been stayed pending the outcome of the Texas state court action. We believe the notice we provided was appropriate and therefore have not accrued any losses related to these cases." The Company said, "Although we have prevailed in the majority of these lawsuits and proceedings, there have been several adverse judgments or decisions on the merits, some of which are subject to appeal. As of December 31, 2016 and 2015, our reserve was not material for the potential resolution of issues identified related to litigation involving hotel and car sales, occupancy or excise taxes. We did not record material charges associated with these cases during the years ended December 31, 2016 and 2015. Our estimated liability is based on our current best estimate but the ultimate resolution of these issues may be greater or less than the amount recorded and, if greater, could adversely affect our results of operations." Sabre is a technology solutions provider to the global travel and tourism industry. SABRE CORP: Claims Remain Pending in S.D.N.Y. Class Suit -------------------------------------------------------- The Sabre Corporation intends to vigorously defend against the remaining claims in a class action lawsuit in New York against the Company and two other global distribution systems, Sabre said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2017, for the fiscal year ended December 31, 2016. The Company said, "In July 2015, a putative class action lawsuit was filed against us and two other GDSs, in the United States District Court for the Southern District of New York. The plaintiffs, who are asserting claims on behalf of a putative class of consumers in various states, are generally alleging that the GDSs conspired to negotiate for full content from the airlines, resulting in higher ticket prices for consumers, in violation of various federal and state laws." "The plaintiffs sought an unspecified amount of damages in connection with their state law claims, and they requested injunctive relief in connection with their federal claim. "In July 2016, the court granted, in part, our motion to dismiss the lawsuit, finding that plaintiffs' state law claims are preempted by federal law, thereby precluding their claims for damages. "The court declined to dismiss plaintiffs' claim seeking an injunction under federal antitrust law. The plaintiffs may appeal the court's dismissal of their state law claims upon a final judgment. We believe that the claims associated with this case are neither probable nor estimable and therefore have not accrued any losses as of December 31, 2016. We may incur significant fees, costs and expenses for as long as this litigation is ongoing. We intend to vigorously defend against the remaining claims." Sabre is a technology solutions provider to the global travel and tourism industry. SALIX PHARMACEUTICALS: Settles Stock Inflation Class Action ----------------------------------------------------------- Cara Bayles, writing for Law360, reports that shareholders in a proposed class action asked a New York federal court on March 24 for preliminary approval of a $210 million settlement to end a lawsuit accusing Salix Pharmaceuticals Ltd. of inflating stock prices by knowingly misrepresenting the company's wholesale inventory levels. The motion asks U.S. District Judge Kimba M. Wood to certify the class of people and entities that held Salix stock between November 2013 and November 2014, and to approve as class representatives PWCM Master Fund Ltd., Pentwater Equity Opportunities Master Fund Ltd., Oceana Master Fund Ltd., Pentwater Merger Arbitrage Master Fund Ltd., LMA SPC on behalf of the MAP98 Segregated Portfolio, and the City of Fort Lauderdale General Employees' Retirement System. The exact size of the class is unknown, but it's estimated to comprise thousands of members. Salix had 62 million shares of common stock, with average daily trading volume in the millions of shares per week during the class period. The class representatives and their attorneys say the proposal "represents an excellent result and is in the best interests of the settlement class," which they allege was hurt by the gastrointestinal drug company's misrepresentations. "The proposed $210 million settlement represents a substantial percentage of the maximum damages that lead plaintiff reasonably believed could be established at trial," The March 24 motion said. "This significant benefit to the settlement class must be considered in the context of the serious risks that further protracted litigation might lead to no recovery, or to a smaller recovery, from defendants in this action." The suit stems from two putative securities class actions filed in New York federal court immediately after Salix's stock declined in November 2014. The suits were consolidated in March 2015, and the resulting complaint alleged Salix violated the Securities and Exchange Act when it made false statements about its inventory to inflate its common stock during the class period. When Salix reported on Nov. 6, 2014, that it had as much as nine months' worth of inventory on its top four products, the revelation of the glut caused the stock price to tank, the complaint alleged. The March 24 motion said the proposed settlement was the result of extensive litigation, including 2.7 million pages of documents proffered by Salix and 13 depositions. The filing also argued that a trial would have been risky. It was difficult to prove the misleading statements amounted to an intentional plot to defraud investors, the motion said, since the errors were due to best estimates of inventory. The motion also argued that calculating damages would prove difficult, because it would require breaking down how much of the stock price drop was due to the alleged fraud and how much was a result of other factors, like the company's pending acquirement by Valeant Pharmaceuticals International Inc. Attorneys for the class and representatives for Salix could not be reached for comment on March 27. An attorney for Salix declined to comment. The class is represented by Salvatore J. Graziano -- sgraziano@blbglaw.com -- John Rizio-Hamilton -- johnr@blbglaw.com -- and Katherine M. Sinderson -- katherinem@blbglaw.com --of Bernstein Litowitz Berger & Grossmann LLP and Samuel H. Rudman, David Rosenfeld and Mark S. Reich of Robbins Geller Rudman & Dowd LLP. Salix is represented by Charles Alan Gilman -- cgilman@cahill.com -- Adam Shawn Mintz -- amintz@cahill.com -- Bradley Joseph Bondi - - BBondi@Cahill.com -- and Sarah Penny Windle -- pwindle@cahill.com -- of Cahill Gordon & Reindel LLP. The case is In Re Salix Pharmaceuticals Ltd., case number 1:14-cv- 08925, in the U.S. District Court for the Southern District of New York. SANTA FE, NM: Tenth Circuit Appeal Filed in "Moya" Class Suit ------------------------------------------------------------- Plaintiffs Mariano Moya and Lonnie Petry filed an appeal from a court ruling in the lawsuit styled Moya, et al. v. Garcia, et al., Case No. 1:16-CV-01022-WJ-KBM, in the U.S. District Court for the District of New Mexico - Albuquerque. The lawsuit is brought over alleged violations of civil rights. The appellate case is captioned as Moya, et al. v. Garcia, et al., Case No. 17-2037, in the United States Court of Appeals for the Tenth Circuit.[BN] Plaintiffs-Appellants LONNIE PETRY, on behalf of themselves and all others similarly situated, and MARIANO MOYA are represented by: A. Nathaniel Chakeres, Esq. Todd A. Coberly, Esq. COBERLY & MARTINEZ LLLP 1322 Paseo de Peralta Santa Fe, NM 87501 Telephone: (505) 306-4019 Facsimile: (505) 629-1560 E-mail: nat@coberlymartinez.com todd@coberlymartinez.com Defendants-Appellees ROBERT GARCIA, Santa Fe County Sheriff; MARK CALDWELL, Warden of Santa Fe County Adult Correctional Facility; MARK GALLEGOS, former Warden Santa Fe County Adult Correctional Facility, in their individual capacities; and BOARD OF COMMISSIONERS OF SANTA FE COUNTY are represented by: Brandon Huss, Esq. Dennis K. Wallin, Esq. WALLIN, HUSS & MENDEZ, LLC P.O. Box 696 Moriarty, NM 87035 Telephone: (505) 832-6363 Facsimile: (505) 814-5805 E-mail: bh@whmlawfirm.com dkw@whmlawfirm.com SMART & FINAL STORES: "Dubon" Sues Over Unpaid Overtime Wages ------------------------------------------------------------- Jessy Barahona Dubon, an individual, on her own behalf and on behalf of all others similarly situated, Plaintiff, v. Smart & Final Stores, Inc., a California corporation and Does 1-100, inclusive, Defendants, Case No. BC655983, (Cal. Super., March 30, 2017), seeks nominal damages, equitable relief, declaratory relief, restitution of all monies due to Plaintiff and members of the putative class, and disgorgement of profits from unlawful business practices, penalties as permitted by the California Labor Code, interest as permitted by statute, costs of suit and expenses incurred, attorney's fees and all such other and further relief. Plaintiff worked at the Smart and Final in Los Angeles, California. Smart and Final, is a chain of warehouse-style food and supply stores based in Commerce, California where Plaintiff was employed as a Key Carrier/Closing Shift Manager. Dubon claims to be denied meal and rest breaks, wage statements, minimum wages, and wages at time of termination. [BN] Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Taylor L. Emerson, Esq. BRADLEY GROMBACHER, LLP 2815 Townsgate Road, Suite 130 Westlake Village, CA 91361 Telephone: (805)212-5124 Facsimile: (805) 270-7589 E-Mail: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com SPECTRUM PHARMACY: Faces Class Action Over Alleged Junk Faxes ------------------------------------------------------------- Michael Abella, writing for Louisiana Record, reports that a Metairie company alleges a New Jersey corporation sent it junk faxes and has filed a class-action suit. Casso's Wellness Store & Gym LLC filed a complaint on March 15 in the U.S. District Court for the Eastern District of Louisiana against Spectrum Pharmacy Products Inc. alleging that the pharmaceutical company violated the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that as a result of defendant's unsolicited faxes, plaintiff suffered disruption, annoyance and costs. The plaintiff holds Spectrum Pharmacy Products Inc. responsible because the defendant allegedly willfully sent unsolicited facsimile advertisement and failed to provide the mandatory opt-out notice requirements. The plaintiff requests a trial by jury and seeks an order certifying this action as a class action, appointing plaintiff as class representative and its counsel as class counsel, statutory damages of $500 for each violation of the Act, award for litigation costs and such other relief. It is represented by George B. Recile, Preston L. Hayes, Ryan P. Monsour, Matthew A. Sherman and Patrick R. Follette of Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes LLP in Metairie. U.S. District Court for the Eastern District of Louisiana Case number 2:17-cv-02161 SPIRIT AEROSYSTEMS: May 2017 Trial in Boeing Indemnification Suit ----------------------------------------------------------------- Spirit AeroSystems Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 10, 2017, for the fiscal year ended December 31, 2016, that trial has been set for May 2017 in a lawsuit filed by The Boeing Co. The Company said: "On December 5, 2014, Boeing filed a complaint in Delaware Superior Court, Complex Commercial Litigation Division, entitled The Boeing Co. v. Spirit AeroSystems, Inc., No. N14C-12-055 (EMD). Boeing seeks indemnification from Spirit for (a) damages assessed against Boeing in International Union, United Automobile, Aerospace and Agricultural Workers of America v. Boeing Co., AAA Case No. 54 300 00795 07 (the "UAW Arbitration"), which was brought on behalf of certain former Boeing employees in Tulsa and McAlester, Oklahoma, and (b) claims that Boeing settled in Society of Professional Engineering Employees in Aerospace v. Boeing Co., Nos. 05-1251-MLB, 07-1043-MLB (D. Kan.) (the "Harkness Class Action"). Spirit Holdings, Spirit and certain Spirit retirement plan entities were parties to the Harkness Class Action, but all claims against the Spirit entities were subsequently dismissed. Boeing's Complaint asserts that the damages assessed against Boeing in the UAW Arbitration and the claims settled by Boeing in the Harkness Class Action are liabilities that Spirit assumed under an Asset Purchase Agreement between Boeing and Spirit, dated February 22, 2005 (the "APA")." Boeing asserts claims for breach of contract and declaratory judgment regarding its indemnification rights under the APA. Boeing estimates the UAW Arbitration decision to have a net present value of $39.0 million. In regard to the Harkness Class Action, the district court approved a settlement in an amount of $90.0 million. In addition to the amounts related to the UAW Arbitration and Harkness Class Action, Boeing seeks indemnification for more than $10.0 million in attorneys' fees it alleges it expended to defend the UAW Arbitration and Harkness Class Action, as well as for the reasonable fees, costs and expenses Boeing expends litigating the case against Spirit. Following a motion to dismiss (which was denied by Court Order dated August 14, 2015), Spirit answered Boeing's Complaint and asserted a Counterclaim against Boeing, on the ground that the liabilities at issue were Boeing's responsibility under the APA. Spirit's Counterclaim alleges breach of contract and seeks a declaratory judgment regarding Spirit's right to indemnification from Boeing under the APA. Spirit's Counterclaim seeks to recover the amounts that Spirit spent litigating the Harkness Class Action, responding to Boeing's indemnification demands concerning the Harkness Class Action and UAW Arbitration, and also litigating the current lawsuit against Boeing. "On December 20, 2016, Boeing and Spirit moved for summary judgment. Summary judgment briefing will be completed on February 9, 2017. A decision on the summary judgment motions is not expected until the second quarter of 2017. Trial is presently scheduled for May 2017. Spirit intends to defend vigorously against the allegations in this lawsuit." Spirit AeroSystems Holdings is an independent non-OEM aircraft parts designer and manufacturer of commercial aerostructures; and an independent supplier of aerostructures to both Boeing and Airbus. STRAIGHT PATH: To Settle "Zacharia" Shareholder Suit for $9.45MM ---------------------------------------------------------------- Straight Path Communications Inc. entered into an agreement to settle a purported shareholder lawsuit for $9.45 million, the Company disclosed in its Form 8-K filed with the Securities and Exchange Commission on March 8, 2017. On March 7, 2017, the Company and lead plaintiff in Zacharia v. Straight Path Communications Inc. et al., No. 2:15-cv-08051-JMV-MF (D.N.J.), entered into a binding memorandum of understanding to settle the putative shareholder class action and dismiss the claims that were filed against the Defendants in that action. The agreed terms provide for a $2.25 million initial payment (the "Initial Payment") and a $7.2 million additional payment (the "Additional Payment"). The Initial Payment will be paid into an escrow account within 15 days following preliminary court approval of the settlement, and will be fully covered by insurance policies maintained by the Company. The Additional Payment will be paid within 60 days after the closing of a transaction to sell the Company's spectrum licenses as specified in the Consent Decree with the Federal Communications Commission dated January 11, 2017 (the "Consent Decree"), or, in the event that the Company pays the non-transfer penalty specified in the Consent Decree, within 60 days after that payment is paid. In any event, the Additional Payment will be payable no later than December 31, 2018. The settlement remains subject to entering in a definitive agreement and court approval. Straight Path Communications Inc. is a communications asset company. The Company owns, via intermediate wholly-owned entities, 100% of Straight Path Spectrum, Inc. and 100% of Straight Path Ventures, LLC, and it owns 84.5% of Straight Path IP Group, Inc. SUNRUN INC: California Court Tosses Shareholder Class Suits ----------------------------------------------------------- The U.S. District Court for the Northern District of California granted Sunrun Inc.'s motion to dismiss, with prejudice, purported shareholder class action lawsuits, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On April 13, 2016, a purported shareholder class action captioned Pytel v. Sunrun Inc., et al., Case No. CIV 538215, was filed in the Superior Court of California, County of San Mateo, against the Company, certain of the Company's directors and officers, the underwriters of the Company's initial public offering and certain other defendants. The complaint generally alleges that the defendants violated Sections 11, 12 and 15 of the Securities Act of 1933 by making false or misleading statements in connection with the Company's August 5, 2015 initial public offering regarding the continuation of net metering programs. The plaintiffs seek to represent a class of persons who acquired the Company's common stock pursuant or traceable to the initial public offering. Plaintiffs seek compensatory damages, including interest, rescission or rescissory damages, an award of reasonable costs and attorneys' fees, and any equitable or injunctive relief deemed appropriate by the court. On April 21, 2016, a purported shareholder class action captioned Mancy v. Sunrun Inc., et al., Case No. CIV 538303, was filed in the Superior Court of California, County of San Mateo. On April 22, 2016, a purported shareholder class action captioned Brown et al. v. Sunrun Inc., et al., Case No. CIV 538311, was filed in the Superior Court of California, County of San Mateo. On April 29, 2016, a purported shareholder class action captioned Baker et al. v. Sunrun Inc., et al., Case No. CIV 538419, was filed in the Superior Court of California, County of San Mateo. On May 6, 2016, a purported shareholder class action captioned Greenberg v. Sunrun Inc., et al., Case 3:16-cv-02480, was filed in the United States District Court for the Northern District of California. On May 10, 2016, a purported shareholder class action captioned Nunez v. Sunrun Inc., et al., Case No. CIV 538593, was filed in the Superior Court of California, County of San Mateo. On June 10, 2016, a purported shareholder class action captioned Steinberg v. Sunrun Inc., et al., Case No. 539064, was filed in the Superior Court of California, County of San Mateo. The Mancy, Brown, Baker, Greenberg, Nunez and Steinberg complaints are substantially similar to the Pytel complaint, and seek similar relief against similar defendants on behalf of the same purported class. On April 21, 2016, a purported shareholder class action captioned Cohen, et al. v. Sunrun Inc., et al., Case No. CIV 538304, was filed in the Superior Court of California, County of San Mateo, against the Company, certain of the Company's directors and officers, and the underwriters of the Company's initial public offering. The complaint generally alleges that the defendants violated Sections 11, 12 and 15 of the Securities Act of 1933 by making false or misleading statements in connection with an August 5, 2015 initial public offering regarding the Company's business practices and its dependence on complex financial instruments. The Cohen plaintiffs seek to represent the same class and seek similar relief as the plaintiffs in the Pytel, Mancy, Brown, Greenberg, Nunez, Steinberg and Baker actions. On September 26, 2016, the Baker, Brown, Cohen, Mancy, Nunez, Pytel and Steinberg actions were consolidated. On February 9, 2017, the United States District Court for the Northern District of California granted the Company's motion to dismiss, with prejudice, with respect to these actions. Sunrun Inc. provides clean, solar energy to homeowners at a significant savings to traditional utility energy. TARGET CORP: Awaits Order on Bid to Toss Consolidated Complaint --------------------------------------------------------------- Target Corporation is awaiting decision on its motion to dismiss the consolidated complaint in the securities litigation pending in Minnesota, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended January 28, 2017. On May 17, 2016 and May 24, 2016, Target Corporation and certain present and former officers were named as defendants in two purported federal securities law class actions filed in the United States District Court for the District of Minnesota. The actions subsequently were consolidated under the caption In re: Target Corporation Securities Litigation, Case No. 0:16-cv-01315-JNE-BRT. The plaintiffs filed a Consolidated Amended Class Action Complaint (Consolidated Complaint) on November 14, 2016, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 relating to certain prior disclosures of Target about its expansion of retail operations into Canada (Canada Disclosure). Target, its former chief executive officer, its present chief operating officer, and the former president of Target Canada are named as defendants in the Consolidated Complaint. The plaintiff seeks to represent a class consisting of all purchasers of Target common stock between March 20, 2013 and August 4, 2014. The plaintiff seeks damages and other relief, including attorneys' fees, based on allegations that the defendants misled investors about the performance and prospects of Target Canada and that such conduct affected the value of Target common stock. On February 10, 2017, Target and the other defendants moved to dismiss the Consolidated Complaint. That motion has not yet been heard or decided. Target intends to vigorously defend this consolidated action. Target Corporation was incorporated in Minnesota in 1902. The Company offers its customers, referred to as "guests," everyday essentials and fashionable, differentiated merchandise at discounted prices. The Company operates as a single segment designed to enable guests to purchase products seamlessly in stores or through its digital channels. TARGET CORP: June 14 Hearing on Bid to Toss Amended ERISA Suit -------------------------------------------------------------- Target Corporation awaits ruling on its motion to dismiss the amended complaint in the consolidated lawsuit alleging violations of the Employee Retirement Income Security Act, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended January 28, 2017. On July 12, 2016 and July 15, 2016, Target Corporation, the Plan Investment Committee and Target's current chief operating officer were named as defendants in two purported Employee Retirement Income Security Act of 1974 (ERISA) class actions filed in the United States District Court for the District of Minnesota. The actions subsequently were consolidated under the caption In re: Target Corporation ERISA Litigation, Case No. 0:16-cv-02400-JNE- BRT. The plaintiffs filed an Amended Class Action Complaint (Amended Complaint) on December 14, 2016, alleging violations of Sections 404 and 405 of ERISA relating to the Canada Disclosure. Target, the Plan Investment Committee, and seven present or former officers are named as defendants in the Amended Complaint. The plaintiffs seek to represent a class consisting of all persons who were participants in or beneficiaries of the Target Corporation 401(k) Plan or the Target Corporation Ventures 401(k) Plan (collectively, the Plans) at any time between February 27, 2013 and May 19, 2014 and whose Plan accounts included investments in Target stock. The plaintiffs seek damages, an injunction and other unspecified equitable relief, and attorneys' fees, expenses, and costs, based on allegations that the defendants breached their fiduciary duties by failing to take action to prevent Plan participants from continuing to purchase Target stock during the class period at prices that allegedly were artificially inflated. On February 24, 2017, Target and the other defendants moved to dismiss the Amended Complaint. That motion has not yet been heard or decided. Target intends to vigorously defend this consolidated action. A hearing on the Motion to Dismiss is set for June 14, 2017 11:00 a.m. in Courtroom 12W (MPLS) before Judge Joan N. Ericksen. Target Corporation was incorporated in Minnesota in 1902. The Company offers its customers, referred to as "guests," everyday essentials and fashionable, differentiated merchandise at discounted prices. The Company operates as a single segment designed to enable guests to purchase products seamlessly in stores or through its digital channels. TEMPUR SEALY: Faces Class Action, May 23 Lead Plaintiff Deadline ---------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC on March 28 notified investors that a class action lawsuit has been filed against Tempur Sealy International, Inc. ("Tempur Sealy" or the "Company") (TPX) and certain of its officers, on behalf of shareholders who purchased Tempur Sealy securities between July 28, 2016 and January 27, 2017, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: http://www.bgandg.com/tpx. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. Tempur Sealy is the world's largest bedding provider. The company develops, manufactures, and distributes mattresses, adjustable bases, pillows and other sleep relaxation products. The complaint alleges that throughout the Class Period, defendants made materially false and misleading statements and failed to disclose that: (1) Mattress Firm Holding Corp. ("Mattress Firm"), the Company's largest customer which accounted for approximately 25% of the Tempur Sealy's 2015 net sales, had been engaged in active negotiations to be acquired and that any such acquisition was reasonably likely to have a material adverse effect in Tempur Sealy's 2016 third and fourth quarter operating results; (2) Tempur Sealy was engaged in active discussions with Mattress Firm concerning modifications to their long-term supply agreements; (3) Mattress Firm had been seeking significant economic concessions from Tempur Sealy during the Class Period; (4) defendants lacked a reasonable basis for the Company's positive statements associated with Mattress Firm; and (5) consequently, defendants lacked a reasonable basis for their positive statements about Tempur Sealy's then-current business and future financial prospects. On January 27, 2017, Tempur Sealy revealed that it would end business with Mattress Firm during the first quarter of 2017. Following this news, Tempur Sealy stock dropped $20.19 per share over a two-day period, or nearly 32%, to close at $43.00 per share on January 31, 2017. The complaint continues to allege that Tempur Sealy was driven to engage in a conduct that allowed Company insiders to sell over $8.2 million of Tempur Sealy stock at artificially inflated prices throughout the Class Period. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: http://www.bgandg.com/tpxor you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Tempur Sealy you have until May 23, 2017 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. TOPGOLF INTL: "Reyes" Seeks Unpaid Overtime Pay, Tip Credits ------------------------------------------------------------Pamela Reyes, on behalf of herself and on behalf of all others similarly situated, Plaintiff, v. Topgolf International, Inc. and Topgolf Usa Spring Holdings LLC, Defendants, Case No. 3:17-cv-00883, (N.D. Tex., March 29, 2017), seeks to recover unpaid overtime compensation, liquidated damages, pre and post-judgment interest and reasonable attorney's fees and costs pursuant to the Fair Labor Standards Act. Top Golf operates 30 golf-related entertainment facilities in the United States. Reyes worked for TopGolf as a bay host from approximately March of 2014 to December of 2016 at TopGolf's Spring, Texas location located at 560 Spring Park Center Blvd. Defendant is accused of taking a tip credit from its bay hosts and refusing to pay overtime. [BN] Plaintiff is represented by: Beatriz Sosa-Morris, Esq. John Neuman, Esq. SOSA-MORRIS NEUMAN ATTORNEYS AT LAW 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885-8844 Facsimile: (281) 885-8813 Email: BSosaMorris@smnlawfirm.com JNeuman@smnlawfirm.com TRONC INC: Accrued Litigation Judgment Liability Up by $2-Mil. -------------------------------------------------------------- tronc, Inc., said in its Form 10-K filed with the Securities and Exchange Commission on March 8, 2017, for the fiscal year ended December 25, 2016, that it increased the accrued litigation judgment liability and the seller indemnification asset by $2 million to reflect estimated interest accumulating on the judgment in a consolidated class action lawsuit against a subsidiary. On May 21, 2015, the Company completed the acquisition of MLIM, LLC ("MLIM"), the indirect owner of The San Diego Union-Tribune (f/k/a the U-T San Diego) and nine community weeklies and related digital properties in San Diego County, California, pursuant to the Membership Interest Purchase Agreement (the "Agreement"), dated May 7, 2015, among the Company, MLIM Holdings, LLC, the Papa Doug Trust under agreement dated January 11, 2010, Douglas F. Manchester and Douglas W. Manchester, and MLIM, as amended effective May 21, 2015. As of the closing of the transaction, the Company acquired 100% of the equity interests in MLIM. The stated purchase price was $85 million, consisting of $73 million in cash, subject to a working capital adjustment, and $12 million in tronc common stock. The Company financed the $73 million cash portion of the purchase price, less a $4.6 million working capital adjustment, with a combination of cash-on-hand and funds available under the Company's existing Senior ABL Facility, as well as the net proceeds of the term loan increase. Prior to the closing of the acquisition, certain assets and liabilities of MLIM related to the business and the operation of The San Diego Union-Tribune, including real property used by the business, were distributed to the seller or its affiliates. Upon the close of the acquisition, MLIM became a wholly-owned subsidiary of the Company, and retained certain liabilities, including certain legal matters and its existing pension obligations, and entered into a lease to use certain real property from the seller. The seller has provided the Company a full indemnity with respect to certain legal matters which were at various states of adjudication at the date of the acquisition. Inasmuch as such judgments represent a liability of the acquired entity which is subject to indemnification, the initial purchase price allocation reflects the assignment of $11.2 million to both the litigation judgment liability and the seller indemnification asset and is reflected in the Consolidated Balance Sheet in current assets, other long-term assets, current liabilities and other obligations for the year ended December 27, 2015. In one such matter, a consolidated class action against a predecessor entity to MLIM which asserts various claims on behalf of home delivery newspaper carriers alleged to have been misclassified as independent contractors, the plaintiffs have been granted a judgment comprised of unreimbursed business expenses, interest and attorney's fees totaling approximately $10 million. During the year ended December 25, 2016, the Company increased the accrued litigation judgment liability and the seller indemnification asset by $2.0 million to reflect estimated interest accumulating on the judgment. tronc, Inc., formerly Tribune Publishing Company, was formed as a Delaware corporation on November 21, 2013. tronc is a media company rooted in award-winning journalism, which operates over 150 titles in nine of the nation's largest markets. The Company's diverse portfolio of iconic news and information brands are in markets including Los Angeles and San Diego, Ca.; Chicago, Il.; Fort Lauderdale and Orlando, Fl.; Baltimore, Md.; Hartford, Ct.; Allentown, Pa.; and Newport News, Va. tronc also offers an array of customized marketing solutions, and publishes a number of niche products, including Hoy and El Sentinel, making tronc the country's largest Spanish-language publisher. TURTLE BAY: "Markson" Sues Over Unauthorized SMS Ads ---------------------------------------------------- Aubrey Markson, individually and on behalf of all others similarly situated, Plaintiff, v. Turtle Bay Tavern Corp and 978 Second Pub Inc., Defendants, Case No. 1:17-cv-02272 (S.D. N.Y., March 29, 2017), seeks actual and statutory damages, an injunction requiring Defendants to cease all wireless spam activities including unsolicited telephone calling activities, to honor stop requests, and to provide a domestic number for opting out. The suit also seeks reasonable attorneys' fees and costs and such further and other relief under the Telephone Consumer Protection Act. Turtle Bay manages the Turtle Bay Tavern located at 987 2nd Ave, New York, NY, 10022. 978 Second Pub manages the Irish Exit located at 978 Second Avenue, New York, New York, 10022. Both Defendants have been utilizing SMS marketing solutions. Markson complains of receiving unsolicited SMS ads from them despite being on the national "do not call" registry and having opted out of their text messages. [BN] The Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 5 Penn Plaza, 23rd floor New York, NY 10001 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 Email: Law@stefancoleman.com TURTLE BEACH: Appeal Remains Pending in Nevada Supreme Court ------------------------------------------------------------ Turtle Beach Corporation's appeal from the denial of its motion to dismiss a shareholder class action lawsuit remains pending in Nevada Supreme Court, the Company said in its Form 10-K filed with the Securities and Exchange Commission on March 8, 2017, for the fiscal year ended December 31, 2016. On August 5, 2013, VTB Holdings, Inc. and the Company (f/k/a Parametric) announced that they had entered into the Merger Agreement pursuant to which VTBH would acquire an approximately 80% ownership interest and existing shareholders would maintain an approximately 20% ownership interest in the combined company. Following the announcement, several shareholders filed class action lawsuits in California and Nevada seeking to enjoin the Merger. The plaintiffs in each case alleged that members of the Company's Board of Directors breached their fiduciary duties to the shareholders by agreeing to a Merger that allegedly undervalued the Company. VTBH and the Company were named as defendants in these lawsuits under the theory that they had aided and abetted the Company's Board of Directors in allegedly violating their fiduciary duties. The plaintiffs in both cases sought a preliminary injunction seeking to enjoin closing of the Merger, which by agreement was heard by the Nevada court with the California plaintiffs invited to participate. On December 26, 2013, the court in the Nevada cases denied the plaintiffs' motion for a preliminary injunction. Following the closing of the Merger, the Nevada plaintiffs filed a second amended complaint, which made essentially the same allegations and sought monetary damages as well as an order rescinding the Merger. The California plaintiffs dismissed their action without prejudice, and sought to intervene in the Nevada action, which was granted. Subsequent to the intervention, the plaintiffs filed a third amended complaint, which made essentially the same allegations as prior complaints and sought monetary damages. On June 20, 2014, VTBH and the Company moved to dismiss the action, but that motion was denied on August 28, 2014. That denial is currently under review by the Nevada Supreme Court, which held a hearing on the Company's petition for review on September 1, 2015. After the hearing, the Nevada Supreme Court requested a supplemental briefing, which the parties completed on October 13, 2015. The Nevada Supreme Court also invited the Business Law Section of the Nevada State Bar to submit an amicus brief by December 3, 2015 and briefing was completed on February 23, 2016. The Company believes that the plaintiffs' claims against it are without merit. Turtle Beach Corporation, headquartered in San Diego, California and incorporated in the state of Nevada in 2010, is a premier audio technology company with expertise and experience in developing, commercializing and marketing innovative products across a range of large addressable markets under the Turtle Beach(R) and HyperSound(R) brands. Turtle Beach is a worldwide leading provider of feature-rich headset solutions for use across multiple platforms, including video game and entertainment consoles, handheld consoles, personal computers, tablets and mobile devices. TYSON FOODS: Bids to Dismiss Broiler Chicken Suits Pending ---------------------------------------------------------- Tyson Foods, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 6, 2017, for the quarterly period ended December 31, 2016, that in the case, In re Broiler Chicken Antitrust Litigation, the company had filed motions to dismiss. The Company said: "On September 2, 2016, Maplevale Farms, Inc., acting on behalf of itself and a putative class of direct purchasers of poultry products, filed a class action complaint against us and certain of our poultry subsidiaries, as well as several other poultry processing companies, in the Northern District of Illinois. Subsequent to the filing of this initial complaint, additional lawsuits making similar claims on behalf of putative classes of direct and indirect purchasers were filed in the United States District Court for the Northern District of Illinois." "The court consolidated the complaints, for pre-trial purposes, into actions on behalf of three different putative classes: direct purchasers, indirect purchasers/consumers and commercial/institutional indirect purchasers. These three actions are styled In re Broiler Chicken Antitrust Litigation. Several amended and consolidated complaints have been filed on behalf of each putative class. The currently operative complaints allege, among other things, that beginning in January 2008 the defendants conspired and combined to fix, raise, maintain, and stabilize the price of broiler chickens in violation of United States antitrust laws. "The complaints on behalf of the putative classes of indirect purchasers also include causes of action under various state unfair competition laws, consumer protection laws, and unjust enrichment common laws. The complaints also allege that defendants "manipulated and artificially inflated a widely used Broiler price index, the Georgia Dock." It is further alleged that the defendants concealed this conduct from the plaintiffs and the members of the putative classes. "The plaintiffs are seeking treble damages, injunctive relief, pre- and post-judgment interest, costs, and attorneys' fees on behalf of the putative classes. We have filed motions to dismiss these actions." Tyson Foods also disclosed in its Form 10-Q Report that, "On October 17, 2016, William Huser, acting on behalf of himself and a putative class of persons who purchased shares of Tyson Foods' stock between November 23, 2015, and October 7, 2016, filed a class action complaint against Tyson Foods, Inc., Donnie Smith and Dennis Leatherby in the Central District of California." "The complaint alleged, among other things, that our periodic filings contained materially false and misleading statements by failing to disclose that the Company has colluded with other producers to manipulate the supply of broiler chickens in order to keep supply artificially low, as alleged in In re Broiler Chicken Antitrust Litigation, stating that its industry is competitive, and failing to disclose that we lacked effective internal control over financial reporting." "The complaint sought damages, pre- and post-judgment interest, costs, and attorneys' fees. Subsequent to the filing of this initial complaint, additional lawsuits making similar claims were filed in the United States District Courts for the Southern District of New York, the Western District of Arkansas, and the Southern District of Ohio." "Each of those cases have now been transferred to the United States District Court for the Western District of Arkansas and consolidated, and lead plaintiffs have been appointed." "The lead plaintiffs have not yet filed a consolidated complaint." * * * Jack Newsham, writing for Law360, reported in February that Tyson Foods Inc. told shareholders that the U.S. Securities and Exchange Commission has hit it with a subpoena over allegations raised in class action lawsuits that the company conspired with other producers of broiler chickens to limit production and goose their profits. Hannah Meisel, writing for Law360, reported in December that an Illinois federal judge named Hagens Berman Sobeol Shapiro LLP as interim class counsel for food distributors in a proposed class action alleging that Tyson Foods, Pilgrim's Pride and other poultry producers conspired to fix chicken prices. U.S. District Judge Thomas Durkin said he appointed Seattle-based Hagens Berman to represent the end-purchaser consumer plaintiffs in the case, because of the national law firm's "aggressive and independent advocacy." Other defendants in the lawsuits are Koch Foods, Inc., Tyson Foods, Inc., Pilgrim's Pride Corporation, Perdue Farms, Inc., Sanderson Farms, Inc., Wayne Farms, LLC, Mountaire Farms, Inc., Peco Foods, Inc., Foster Farms, LLC, House of Raeford Farms, Inc., Simmons Foods, Inc., Fieldale Farms Corporation, George's, Inc., or O.K. Foods, Inc. Founded in 1935, Tyson Foods, Inc. and its subsidiaries is one of the world's largest food companies with brands such as Tyson(R), Jimmy Dean(R), Hillshire Farm(R), Sara Lee(R), Ball Park(R), Wright(R), Aidells(R) and State Fair(R). Tyson Foods is a recognized market leader in chicken, beef and pork as well as prepared foods, including bacon, breakfast sausage, turkey, lunchmeat, hot dogs, pizza crusts and toppings, tortillas and desserts. UNITED STATES: Horvath Appeals Ruling to Federal Circuit -------------------------------------------------------- Michael Horvath filed an appeal from a court ruling in the lawsuit styled Horvath v. US, Case No. 1:16-cv-00688-LKG (Fed. Cl.). As previously reported in the Class Action Reporter, the lawsuit was filed against the U.S. government in the United States Court of Federal Claims on behalf of the classes of federal Secret Service agents similarly situated to the Plaintiff. The nature of suit is stated as "Civilian Pay - Overtime Compensation." The appellate case is captioned as Horvath v. US, Case No. 17- 1801, in the U.S. Court of Appeals for the Federal Circuit. The briefing schedule in the Appellate Case is set as follows: -- Docketing Statement is due on April 17, 2017; and -- Appellant/Petitioner's brief is due on May 15, 2017.[BN] Plaintiff-Appellant MICHAEL HORVATH, individually, and on behalf of the classes of federal Secret Service agents similarly situated to him, is represented by: David James Vendler, Esq. MORRIS POLICH & PURDY LLP 1055 W Seventh Street Los Angeles, CA 90017 1055 W. 7th Street, 24th Floor Los Angeles, CA 90017 Telephone: (213) 891 9100 Facsimile: (213) 488 1178 E-mail: dvendler@mpplaw.com Defendant-Appellee UNITED STATES is represented by: Sosun Bae, Esq. TRIAL ATTORNEY DEPARTMENT OF JUSTICE PO Box 480 Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7568 E-mail: sosun.bae@usdoj.gov UNITED STATES: Insurers Have Until May 12 to Join Class Action -------------------------------------------------------------- Inside Health Policy reports that insurers owed money under the Affordable Care Act's risk corridor program in 2014 or 2015 have until May 12 to join a class action suit against the federal government certified by the U.S. Court of Claims, according to a notice from the court-appointed law firm. It is unclear how many plans owed money will join the suit, but a former executive of one of the ACA's health care co-ops said all plans should consider doing so. UNIVERSAL AMERICAN: Parties Agree to Dismiss "Parshall" Suit ------------------------------------------------------------ Judge Richard G Andrews entered an Order granting a stipulation to dismiss the case captioned, Parshall v. Universal American Corp. et al., Case No. 1:17-cv-00077 (D. Del.). The Dismissal Order was entered on Feb. 15, terminating the case. In a press statement dated Feb. 16, Universal American Corp. (NYSE:UAM) announced that during a special stockholder meeting held earlier that day, its stockholders voted to approve the adoption of the previously announced merger agreement, dated as of November 17, 2016, providing for the acquisition of Universal American by WellCare Health Plans, Inc. In its Form 8-K Report filed with the Securities and Exchange Commission on February 10, 2017, Universal American Corp. made supplemental disclosures to the definitive proxy statement on Schedule 14A filed with the SEC by UAM on January 17, 2017 to provide additional information relating to the Agreement and Plan of Merger (as it may be amended from time to time, the "Merger Agreement"), dated as of November 17, 2016, by and between WellCare Health Plans, Inc., a Delaware corporation ("WellCare"), Wind Merger Sub, Inc., a Delaware corporation and an indirect wholly owned subsidiary of WellCare ("Merger Sub"), and UAM, pursuant to which Merger Sub will merge with and into UAM (the "Merger") with UAM surviving as an indirect wholly owned subsidiary of WellCare. Following the filing of the Proxy Statement with the SEC, a putative class action lawsuit relating to the Merger was filed on January 27, 2017 in the United States District Court for the District of Delaware on behalf of a putative class of UAM's public stockholders against UAM and the members of the UAM Board of Directors pursuant to Sections 14(a) and 20(a) of the Securities Exchange Act of 1934: Paul Parshall v. Universal American Corp, et al., C.A. No. 1:17-cv-00077 (D. Del.) (the "Lawsuit"). The complaint in the Lawsuit generally alleges that the Proxy Statement omitted certain material information and seeks, among other remedies, to enjoin the Merger. UAM believes that the claims asserted in the Lawsuit are without merit. However, in order to alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to its stockholders, UAM and the other named defendants in the Lawsuit signed a memorandum of understanding to settle Plaintiff's individual claims, pursuant to which UAM is providing the additional disclosures set forth below. To the extent that information set forth below differs from information contained in the Proxy Statement, the information set forth below supersedes such information contained in the Proxy Statement. 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, UAM specifically denies all allegations in the Lawsuit that any additional disclosure was or is required. These supplemental disclosures will not affect the merger consideration to be paid to stockholders of UAM in connection with the Merger or the timing of the special meeting of UAM stockholders scheduled for February 16, 2017 at 10:00 a.m. local time at UAM's offices, located at UAM's headquarters at 44 South Broadway, White Plains, New York 10601. Universal American Corp. is a Delaware corporation that provides health benefits to individuals covered by Medicare. UPA LLC: "Land" Sues Over Unattended Building Defects ----------------------------------------------------- Lydia Land, on behalf of herself and all others similarly situated Plaintiff, v. UPA, LLC, Evergreen Towers I, LP, Evergreen Towers 11 LP, Cullen Davis, d/b/a Cullen J. Davis Development LLC and Near North Development Corporation, Defendants, Case No. 2017-CH- 04646 (Ill. Cir., March 30, 2017), seeks corrective measures to leased premises, costs, interest on the judgment, reasonable attorney's fees and any other relief for violation of the Chicago Residential Landlord and Tenant Ordinance Municipal Code. UPA is the property management company for the buildings located at 1333 N. Cleveland and/or 1334 N. Cleveland in Chicago, Illinois. Plaintiff is a tenant and complains of problems with the renovation and remodeling of the complex, malfunctioning or inoperative toilets which were not repaired, damaged and/or defective windows and unwarranted evictions. [BN] The Plaintiff is represented by: Berton N. Ring, Esq. Stuart M. Clarke, Esq. BERTON N. RING, P.C. 123 West Madison Street, 15th Floor Chicago, 1L 60602 Tel: (312) 781-0290 VALSPAR CORP: To Pay $140K for Fees & Costs in "Mitsopoulos" Suit ----------------------------------------------------------------- The Valspar Corporation said in its Form 10-Q filed with the Securities and Exchange Commission on March 8, 2017, for the quarter period ended January 27, 2017, that it has agreed to pay, and will pay, fees and expenses of $140,000 pertaining to the action initiated by Tom Mitsopoulos. On March 19, 2016, Valspar entered into an Agreement and Plan of Merger (the Merger Agreement) with The Sherwin-Williams Company (Sherwin-Williams) and Viking Merger Sub, Inc., a wholly-owned subsidiary of Sherwin-Williams (Merger Sub). The Merger Agreement provides that, among other things, Merger Sub will be merged with and into Valspar (the Merger), with Valspar surviving the Merger as a wholly-owned subsidiary of Sherwin-Williams. On May 24, 2016, a putative class action lawsuit challenging the Merger was filed that named Valspar and its board of directors as defendants. The complaint, captioned Mitsopoulos v. Valspar (Case No. 12373), was filed on May 24, 2016 in the Court of Chancery of the State of Delaware by a purported stockholder of Valspar. The lawsuit sought to enjoin the transaction and alleged, among other things, that the members of the Valspar board of directors breached their fiduciary duties by failing to disclose material information relating to the transaction, including with respect to the financial analyses of Valspar's financial advisors and financial projections prepared by Valspar management. On June 17, 2016, Valspar filed a Current Report on Form 8-K disclosing certain additional information relating to the proposed Merger in response to allegations made in the above lawsuit. In filing the Form 8-K, Valspar denied the allegations of the lawsuit and the need for any supplemental disclosure, and stated it believed the definitive proxy statement filed in connection with the Merger disclosed all material information. However, Valspar disclosed the additional information solely for the purpose of avoiding the expense and burden of litigation. On June 22, 2016, the Court of Chancery entered an order dismissing the Delaware Action with prejudice as to plaintiff Tom Mitsopoulos and without prejudice as to all other members of the putative class. Pursuant to the order, the Court of Chancery retained jurisdiction solely for the purpose of determining plaintiff Tom Mitsopoulos' application for an award of attorneys' fees and reimbursement of expenses. Plaintiff's counsel in the Action filed a Petition for an Award of Attorneys' Fees and Expenses in view of the supplemental disclosures contained in the June 17, 2016 Form 8-K. After negotiations, to eliminate any risk associated with plaintiff Tom Mitsopoulos' fee petition, Valspar has agreed to pay, and will pay, fees and expenses of $140,000 pertaining to the Action. This fee has not been approved or ruled upon by the Court of Chancery of the State of Delaware. The Valspar Corporation is a global leader in the paints and coatings industry. The Company develops, manufactures and distributes a broad range of coatings, paints and related products. WEST COAST TRUCKING: "Lazo" Sues Over Unpaid Overtime Wages ----------------------------------------------------------- George Laurence Lazo and all others similarly situated, Plaintiffs, v. West Coast Trucking Corp., Manuel Quintero, Defendants, Case No. 1:17-cv-21165 (S.D. Fla., March 29, 2017), seeks to recover regular and overtime wages and an additional and equal amount as liquidated damages, pre-judgment interest and post-judgment interest, equitable and injunctive relief, attorneys' fees and costs of the action and such other injunctive and equitable relief under the Fair Labor Standards Act. Plaintiff worked for Defendants as a warehouseman from December 1, 2011 through January 2017. Lazo claims to have worked an average of 60 hours a week but was never paid the extra half time rate for hours worked over 40 hours in a week. [BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: zabogado@aol.com WHIRLPOOL CORP: Consumer Claims Process to Be Completed This Year ----------------------------------------------------------------- Whirlpool Corporation is proceeding through the administrative consumer claims process to implement the terms of a class action settlement, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 13, 2017, for the fiscal year ended December 31, 2016. The Company said, "We have vigorously defended against numerous lawsuits pending in the United States relating to certain of our front load washing machines. In 2016, we reached final agreement on a settlement that will resolve all such class action lawsuits (except for attorneys fees in an immaterial case) and received court approval. We are proceeding through the administrative consumer claims process to implement the terms of the settlement, which will be complete in 2017. "In addition, we are currently vigorously defending a number of other lawsuits in federal and state courts in the United States related to the manufacturing and sale of our products which include class action allegations, and have and may become involved in similar actions in other jurisdictions. These lawsuits allege claims which include negligence, breach of contract, breach of warranty, product liability and safety claims, false advertising, fraud, and violation of federal and state regulations, including consumer protection laws. "In general, we do not have insurance coverage for class action lawsuits. "We are also involved in various other legal actions in the United States and other jurisdictions around the world arising in the normal course of business, for which insurance coverage may or may not be available depending on the nature of the action. We dispute the merits of these suits and actions, and intend to vigorously defend them." The Company said. Management believes, based upon its current knowledge, after taking into consideration legal counsel's evaluation of such suits and actions, and after taking into account current litigation accruals, that the outcome of these matters currently pending against Whirlpool should not have a material adverse effect, if any, on our financial position, liquidity, or results of operations. Whirlpool is an American multinational manufacturer and marketer of home appliances, headquartered in Benton Charter Township, Michigan, United States, near Benton Harbor, Michigan. WILLBROS GROUP: Suit Over Financial Restatement Still Pending ------------------------------------------------------------- The class action lawsuit arising from Willbros Group, Inc.'s restatement of its Condensed Consolidated Financial Statements for the quarterly period ended June 30, 2014, remains pending, according to the Company's March 8, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. After the Company announced it would be restating its Condensed Consolidated Financial Statements for the quarterly period ended June 30, 2014, a complaint was filed in the United States District Court for the Southern District of Texas ("USDC") on October 28, 2014 seeking class action status on behalf of purchasers of the Company's stock and alleging damages on their behalf arising from the matters that led to the restatement. The original defendants in the case were the Company, its former chief executive officer, Robert R. Harl, and its current chief financial officer. On January 30, 2015, the court named two employee retirement systems as Lead Plaintiffs. Lead Plaintiffs filed their consolidated complaint, captioned In re Willbros Group, Inc. Securities Litigation, on March 31, 2015, adding as a defendant John T. McNabb, II, the former chief executive officer who had succeeded Mr. Harl, and claims regarding the restatement of the Company's Condensed Consolidated Financial Statements for the quarterly period ended June 30, 2014. On June 15, 2015, Lead Plaintiffs filed a second amended consolidated complaint, seeking unspecified damages and asserting violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Act"), based on alleged misrepresentations and omissions in the SEC filings and other public disclosures in 2014, primarily regarding internal controls, the performance of the Oil & Gas segment, compliance with debt covenants and liquidity, certain financial results and the circumstances surrounding Mr. Harl's departure. On July 27, 2015, the Company filed a motion to dismiss the case. At a hearing on May 24, 2016, the court granted the motion to dismiss in part and denied it in part. On July 22, 2016, the Company filed an answer to the suit denying the remaining allegations in the case, which complain of alleged misrepresentations and omissions in violation of the Act regarding internal controls, the performance of the Oil & Gas segment and Mr. Harl's departure. No further updates were provided in the Company's SEC report. The Company is vigorously defending against the remaining allegations, which the Company believes are without merit. The Company is not able at this time to determine the likelihood of loss, if any, arising from this matter. Willbros Group, Inc., is a specialty energy infrastructure contractor serving the oil and gas and power industries with offerings that primarily include construction, maintenance and facilities development services. ZYNGA INC: $10MM Settlement in "Lee" Suit Remains Pending --------------------------------------------------------- The $10 million settlement reached in the case captioned Lee v. Pincus, awaits court approval, Zynga Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2017, for the fiscal year ended December 31, 2016. On April 4, 2013, a purported class action captioned Lee v. Pincus, et al. was filed in the Court of Chancery of the State of Delaware against the Company, and certain of our current and former directors, officers, and executives. The complaint alleges that the defendants breached fiduciary duties in connection with the release of certain lock-up agreements entered into in connection with the Company's initial public offering. The complaint further states that "Zynga is named as a defendant herein solely because it is a party to agreements underlying and relating to the Secondary Offering." The plaintiff seeks to represent a class of certain of the Company's shareholders who were subject to the lock-up agreements and who were not permitted to sell shares in an April 2012 secondary offering. On January 17, 2014, the plaintiff filed an amended complaint. On March 6, 2014, the defendants filed motions to dismiss the amended complaint and a motion to stay discovery while the motions to dismiss were pending. On November 14, 2014, the court denied the motion to dismiss brought by the Company and the directors and granted the motion to dismiss brought by the underwriters who had been named as defendants. On June 24, 2015, certain of the defendants filed a motion for relief from the court's November 14, 2014 decision denying the defendants' motion to dismiss the complaint. Briefing on the motion for relief from the court's November 14, 2014 decision is complete. A hearing date has not been set. On August 19, 2015, the parties agreed to voluntarily dismiss three individual director defendants from the case. Plaintiff filed a motion for class certification on July 13, 2015, and, after briefing was completed, the court held a hearing on plaintiff's motion on November 20, 2015. On December 30, 2015, the court granted plaintiff's motion for class certification. On July 27, 2016, the court entered a scheduling order setting a trial date of October 9, 2017. A mediation session was conducted on September 20, 2016. The parties reached an agreement in principle to settle Lee v. Pincus, et al. as to all defendants for $10.0 million. The parties filed a stipulation of settlement with the court on December 15, 2016. The settlement, which remains subject to notice to the class and court approval, would be funded entirely by insurance and lead to the dismissal of all claims against the defendants. Accordingly, and also because no claim for damages is asserted against the Company in the Lee action, the Company is not considered the obligor in the matter, and there would be no impact to the Company's financial statements if the final settlement is consistent with the current agreement. Given its preliminary nature, it remains possible that the parties' settlement agreement may not result in a final settlement, and that the assessment of the possibility of loss or adverse effect on our financial condition, if any, could therefore change in the near term. Zynga Inc. develops, markets, and operates social games as live services played over the Internet and on social networking sites and mobile platforms. * 1st Annual Class Action Money & Ethics Conference on May 1 ------------------------------------------------------------ Register now for Beard Group's 1st Annual Class Action Money & Ethics Conference 2017 in NYC on May 1st! Registration link: http://wp.me/P840Eq-14 Conference website & itinerary: http://wp.me/P840Eq-5 This year's attendees and faculty include professionals from these top-tier firms, companies, and universities: - Aaron M. Levine & Associates - Adams and Reese LLP - Angeion Group - Baker Botts LLP - Bentham IMF - Berkeley Research Group - Bloomberg BNA - Cardozo Law School - Columbia Law School - Delaware Bay LLC - Dentons - Department of Attorney General for the State of Michigan - Edelson PC - EJF Capital LLC - FTI Consulting - Garden City Group, LLC - George Washington University - Greenberg Traurig LLP - Hagens Berman - Honorable Faith Hochberg - King & Spalding - Kirkland & Ellis LLP - Law Offices of Kenneth R. Feinberg, P.C.) - Levi & Korsinsky LLP - Lewis & Clark Law School - Lieff Cabraser Heimann & Bernstein LLP - Maurice Blackburn - McGuireWoods LLP - New York University - Orrick, Herrington & Sutcliffe - Paul Weiss - Perini Capital - Postlethwaite & Netterville - Reisman Karron Greene - Rhode Island Center for Justice - Sipree, Inc. - Skadden Arps - The Law Offices of Kenneth R. Feinberg, P.C. - Thompson Reuters - UBS - University of Connecticut School of Law - US District Court E.D. Pa. - Weil, Gotshal & Manges LLP * Neil Gorsuch May Uphold Class Action Waivers, Attorney Says ------------------------------------------------------------- Bloomberg BNA reports that in a March 2017 interview, Ron Chapman Jr. discusses the utilization of class-action waivers in arbitration agreements and employer best practices pending the U.S. Supreme Court's decision in Ernst & Young LLP v. Morris, No. 16-300, Epic Systems Corp. v. Lewis, No. 16-285, and National Labor Relations Board v. Murphy Oil USA Inc., No. 16-307, as well as the potential role of Judge Neil Gorsuch, President Donald Trump's Supreme Court nominee, in the decision. Ron Chapman Jr. -- ron.chapman@ogletree.com -- is a shareholder at Ogletree Deakins' Dallas office. He has defended employers in more than 25 states and the U.S. Virgin Islands and regularly provides counseling to clients on both legal and practical issues. He also has extensive appellate experience. Chapman serves on the firm's board. He is board certified in labor and employment law by the Texas Board of Legal Specialization. The International Law Office named him the overall winner for the entire United States and the exclusive winner for Texas in the Employment and Labor category for its Client Choice awards. Chapman was the lead counsel in D.R. Horton Inc. v. National Labor Relations Board, No. 12-60031. Bloomberg BNA: What are some advantages and disadvantages in including class- action waivers in employment arbitration agreements? Chapman: There certainly are advantages and disadvantages to having an arbitration agreement, but if an employer has an arbitration agreement, there is no disadvantage to having a class-action waiver in it. In fact, the class-action waiver is the primary advantage to having an arbitration agreement in the first place, as it outweighs many of the negatives, such as the reduced likelihood of winning summary judgment, the risk of an arbitrator "splitting the baby" and the fees the employer must pay to the arbitrator. Bloomberg BNA: How may Judge Neil Gorsuch's stance affect the future of class- action waivers if he is confirmed? Chapman: If, as expected, Judge Gorsuch is confirmed before the U.S. Supreme Court and considers the class-action waiver cases, he very well could cast the deciding vote. Right now there is a bit of a deadlock, with the National Labor Relations Board continuing to find class-action waivers unlawful and most courts rejecting that position. Judge Gorsuch hasn't ruled on this precise issue previously, and obviously, no one knows how he will rule if called upon to do so. However, Judge Gorsuch's past decisions and writings suggest that he's likely to vote to uphold the use of class-action waivers, as most courts to have considered the issue have ruled. Bloomberg BNA: What trends have you observed in terms of employers including or excluding class-action waivers in employee arbitration agreements and are there any geographical differences? Chapman: Arbitration agreements with class-action waivers have become much more prevalent in recent years, in the wake of Supreme Court cases validating their use. While there's currently a circuit split on whether class-action waivers are permissible for non-supervisory employees, the Supreme Court should resolve that issue, thereby eliminating any geographical differences. Bloomberg BNA: How can employers and their legal counsel prepare pending the Supreme Court's decision? Should employers continue to include class-action waivers? Chapman: If an employer already has an arbitration agreement with a class- action waiver, there's no reason to alter that course right now. If an employer doesn't yet have an arbitration agreement with a class-action waiver, it may want to wait until after the Supreme Court rules to determine whether to adopt one, as the court's decision may affect the pros and cons of having an arbitration agreement and/or the wording needed in such an agreement. There are two primary disadvantages to waiting to roll out an arbitration agreement with a class-action waiver until after the Supreme Court's ruling. First, the employer may get sued in a class action between now and then. Second, the process of weighing the pros and cons of arbitration, drafting the agreement and planning the logistics of the rollout of the agreement takes some time. Proactive employers may want to start that process now, tweak the agreement as needed based on the Supreme Court's ruling and then roll out the agreement immediately after the ruling. Bloomberg BNA: What alternatives, if any, to class-action waivers do employers and their counsel have when drafting employee arbitration agreements? Chapman: Many arbitration agreements contain an opt-out provision, allowing the employee to opt out within a certain amount of time. This can help negate many of the challenges to arbitration agreements, such as the contention that the agreement was forced upon the employee, as it reinforces that the agreement is voluntary. Bloomberg BNA: What innovative litigation strategies and arguments have you witnessed in defending against class-action waiver claims, and how will the outcome of the Supreme Court's decision affect the utilization of them? Chapman: In a few instances, we've had to seek an injunction prohibiting an arbitrator from ignoring the class-action waiver in an arbitration agreement. Hopefully, the Supreme Court will resolve any remaining uncertainty on the validity of class-action waivers, thereby making satellite litigation over their enforceability unnecessary. Bloomberg BNA: How do you predict the Supreme Court's decision may affect how employers resolve employee workplace claims in the future? Chapman: I've studied every court decision ever issued on the validity of class-action waivers. In the end, I think the Supreme Court will adopt the view of the vast majority of courts to have considered the issue and validate the use of such waivers. Ultimately, this will help both employers and employees resolve bona fide disputes more quickly. I suspect there will be something in the Supreme Court's ruling necessitating that the language in most arbitration agreements be tweaked. The precise wording in an arbitration agreement is extremely important. Having unlawful language or excluding required language can result in the agreement being invalid. Also, there are several key strategic decisions an employer needs to make in tailoring an arbitration agreement to its particular workforce. One size doesn't necessarily fit all. * Two Recent Rulings Illustrate Contrasting Spokeo Approaches ------------------------------------------------------------- Archis A. Parasharami, Esq., and Kevin Ranlett, Esq., of Mayer Brown, in an article for Class Defense Blog, report that hundreds of lower courts have interpreted and applied the Supreme Court's decision in Spokeo, Inc. v. Robins over the past ten months. We will provide a more comprehensive report on the post-Spokeo landscape in the near future, but the overarching takeaway is that the majority of federal courts of appeals have faithfully applied Spokeo's core holdings that "Article III standing requires a concrete injury even in the context of a statutory violation," and that a plaintiff does not "automatically satisf[y] the injury-in- fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Nonetheless, a handful of other decisions have been receptive to arguments by the plaintiffs' bar that Spokeo did not make a difference in the law of standing, and that the bare allegation that a statutory right has been violated, without more, remains enough to open the federal courthouse doors to "no-injury" class actions. Two recent decisions by the Seventh and Third Circuits illustrate these contrasting approaches. Judge Posner's opinion for the court in Gubala v. Time Warner Cable, Inc. reflects the majority view. Gubala is a classic example of a no-injury class action: the plaintiff, a former customer of Time Warner, sued Time Warner, alleging that the company had continued to retain his personal information in violation of the Cable Communications Policy Act, which requires that cable companies destroy customers' personal information within a certain time period. 47 U.S.C. Sec. 551(e). The plaintiff did not contend that the cable company's alleged violation -- holding on to his information longer than the statute allows -- either had harmed him or put him at a material risk of harm in the future. In his view, it was enough that the statute prohibited the cable company's conduct. The district court dismissed the claim for lack of standing, holding that alleging a bare statutory violation of this kind is no longer enough under "the clear directive in Spokeo." In affirming, the Seventh Circuit rejected the argument -- commonly raised by the plaintiffs' bar after Spokeo -- that the Supreme Court's conclusion that Article III mandates "concrete" harm is somehow limited to "procedural" statutory rights. As the court put it, "a failure to comply with a statutory requirement to destroy information is substantive, yet need not (in this case, so far as appears, did not) cause a concrete injury." An earlier Seventh Circuit opinion had likewise rejected the same argument, holding that regardless of "whether the right is characterized as 'substantive' or 'procedural,' its violation must be accompanied by an injury-in-fact." That earlier opinion also noted that its analysis was "in accord with those of our sister circuits in similar statutory injury cases," citing decisions from the D.C., Fifth, Eighth, and Eleventh Circuits. The Gubala court also reiterated that a plaintiff does not automatically satisfy Article III simply by alleging the violation of a statutory requirement. He must instead plausibly allege harm or a "risk of harm to himself from such a violation -- any risk substantial enough to be deemed 'concrete.'" If this requirement were not enforced, "the federal courts would be flooded with cases based not on proof of harm but on an implausible and at worst trivial risk of harm." Judge Posner also observed that it is hard for plaintiffs to cry foul about federal courts' enforcement of Article III standing rules. Because the plaintiff in a no-injury class action has, by definition, not suffered any concrete harm as a result of the alleged statutory violation, the only "'victims' of the rule are persons or organizations who suffer no significant deprivation if denied the right to sue." At most, such plaintiffs (and their lawyers) are deprived of the opportunity to pursue a statutory damages bounty -- and the interest in obtaining such a bounty has never been sufficient to create an Article III case or controversy. The Third Circuit's opinion in In re Horizon Healthcare Services Inc. Data Breach Litigation adopts a much different view of Spokeo. The case stems from the theft of two laptops containing sensitive personal information from the headquarters of Horizon, a health insurer. The plaintiffs alleged that Horizon failed to protect their personal information adequately in violation of the Fair Credit Reporting Act (FCRA); they also brought several state law causes of action. Prior to Spokeo, the district court dismissed the claims for lack of Article III standing. For three of the four named plaintiffs, the district court relied heavily on the Third Circuit's earlier decision in Reilly v. Ceridian Corp., which held in the context of another data breach that the plaintiffs lacked Article III standing to bring their common-law claims in the absence of any misuse of their data or allegations showing "imminent" and "certainly impending" future harm. (The fourth named plaintiff in the Horizon Healthcare case had alleged that he was the victim of identity theft, but the district court ruled that he had not adequately tied the identity theft to the challenged breach.) The Third Circuit reversed. Judge Jordan's opinion for the panel majority acknowledged Reilly, but held that it did not control because the plaintiffs in this case had alleged a violation of the FCRA (rather than common-law claims alone). The court held that the "passage of the FCRA" made Horizon's alleged failure to prevent the disclosure of plaintiffs' personal information "an injury in and of itself" -- "whether or not the disclosure of that information increased the risk of identity theft or some other future harm." The court acknowledged that "it is possible to read the Supreme Court's decision in Spokeo as creating a requirement that a plaintiff show a statutory violation has caused a 'material risk of harm' before he can bring suit." And it acknowledged that other courts have done so, including the district court in the Gubala case discussed above and the Eighth Circuit in Braitberg v. Charter Communications, Inc. -- and many other decisions not explicitly referenced by the court. But the panel majority expressly parted ways with those decisions, instead concluding that Spokeo had little or no effect on the law of standing and embracing pre-Spokeo decisions holding that technical violations of statutes cause Article III injury. Judge Shwartz concurred in the judgment. She disagreed with the majority that the alleged statutory violation on its own amounted to a concrete injury, but she would have concluded that the plaintiffs had standing based on the alleged loss of their privacy. (We think this alternative conclusion is troubling too, but will save that discussion for another day.) In our view, the majority's reasoning is hard to square with Spokeo. The argument that Congress's creation of a cause of action in the FCRA automatically satisfies Article III is precisely the argument that the Supreme Court rejected, instead requiring "concrete injury even in the context of a statutory violation." Moreover, if, as the panel's opinion indicates, mere exposure to the statutory violation automatically amounts to a present concrete harm, it is unclear why the Supreme Court would have held -- citing its decision in Clapper v. Amnesty International USA requiring alleged future injury to be certainly impending -- that "the risk of real harm can[] satisfy the requirement of concreteness." And while the Third Circuit panel cited passages from Justice Thomas's concurrence in Spokeo in support of its conclusion that the case did not change the law, no other member of the Court signed on to that concurrence, nor did Justice Thomas provide the deciding vote for the majority opinion. Finally, we do note one bright spot in the panel's opinion for data breach defendants. The court rejected the plaintiff's argument that Horizon's offer of free credit monitoring to those affected by the breach could be used "as a concession or recognition that the Plaintiffs have suffered injury." Recognizing that a contrary rule would disincentivize companies from taking remedial steps following a breach, the court found instructive the provisions in the Federal Rules of Evidence that protect such efforts by excluding evidence of subsequent remedial measures or settlement offers as proof of culpability. ********* 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 * * *