/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170420.mbx C L A S S A C T I O N R E P O R T E R Thursday, April 20, 2017, Vol. 19, No. 79 Headlines 21ST AMENDMENT BREWERY: "Peacock" Sues Over Mislabeled Beer 3D SYSTEMS: Motion for Reconsideration Denied ACCELERATE DIAGNOSTICS: Oral Argument Being Considered in Appeal ACTAVIS HOLDCO: Teachers' Fund Sues Over Overpriced Fluocinocide ADVANCE AMERICA: Class Action Over High Interest Rates Certified AG AUTOBODY: "Pinto" Seeks Overtime, Sues Over Lack of Pay Stubs AIR CANADA: Aveos Maintenance Workers Step Up Class Action ALASKA AIR: Virgin America Flight Attendants' Class Suit Pending ALLSTATE INDEM: Motion to Dismiss Breach of Contract Claim Nixed ALLY FINANCIAL: "Sharpe" Suit Seeks Overtime Pay ALPS ELECTRIC: Files Suit Over Automotive Heater Control Pricing AMBAC FINANCIAL: Motion to Dismiss "Wilbush" Suit Underway AMERICAN FAMILY: MAO-MSO Sues Over Unpaid Reimbursements AMERICAN REGISTRY: Sued in Ohio Over Erroneous Examination Scores AMTRUST FINANCIAL: Faces Securities Class Action ANCHOR36 LLC: "Landry" Suit Seeks Overtime Pay ANZ SECURITES: SCOTUS to Weigh in on Statutes of Repose Issue ANZ: Class Action Among Cases Neil Gorsuch Needs to Look Into APOLLO COMMERCIAL: Motion to Dismiss Merger Suit Underway ARCTIC EXPRESS: "Brewer" Seeks OT Pay, Sues Over Missed Breaks ARIZONA: Dismissal of Negligence Claims Over 2013 Fire Affirmed ARKANSAS: Ruling in Suit vs. Police Retirement System Reversed ASTORIA FINANCIAL: Parties Discontinue Merger-Related Litigation AUSTRALIA: Class Action v. Murray-Darling Basin Authority Mulled ARMANDO'S DELI: "Linder" Seeks Unpaid Minimum, OT Wages B/E AEROSPACE: Still Faces Class Suits over Rockwell Merger BANK OF NEW YORK: 2 Suits over Depositary Receipts Pending BANK OF OKLAHOMA: Wants Brogdon Bonds Class Action Dismissed BLACKROCK: Faces Suit Over Self-dealing in 401K Plan BLOOMIN' BRANDS: "Reining" Seeks Employee Benefits, Overtime Pay BOBBY HOPSON: Molina Class Certification Bid Denied BOFI HOLDING: June 2 Lead Plaintiff Motion Deadline Set BOK FINANCIAL: May 15 Final Settlement Approval Hearing Set BOK FINANCIAL: Bondholders' Class Suit Pending BRIGHTON TOWNSHIP: Court Denies Motion to Dismiss Sewer Lawsuit CANADA: Afghanistan War Veterans' Pension Class Action Ongoing CAPNIA INC: Faces "Garfield" Class Suit over Merger CEMPRA INC: Faces 3 Securities Actions in North Carolina CENTRAL MILLS: Pocket Frenz Asserts Breach of Contract CHIPOTLE MEXICAN: Gets Favorable Ruling in Misclassification Case CITIBANK NA: Court Ruling at Odds with Recent SCOTUS Opinions CITIZENS BANK: "Fultz" Files Suit Over Excessive Overdraft Fees COLLECTO INC: Faces TCPA Class Action in California COLOSSAL CONTRACTORS: "Ramos" Suit Seeks Overtime Pay CORIZON HEALTH: To Settle Suit Over Prisoners' Untreated Hernias CPN MECHANICAL: Diferro Contracting Seeks Payment of Services CYNOSURE INC: "Rosenfeld" Suit over Hologic Merger Dismissed DFC GLOBAL: September 19 Settlement Fairness Hearing Set DIAMOND RECONSTRUCTION: "Sierra" Suit Alleges FLSA Breach DOORDASH: Settles Delivery Workers' Class Action for $5 Million DOS REALES INC: "Olivera" Seeks Unpaid Overtime, Minimum Wages DPP II INC: "Fleming" Suit to Recover Overtime Pay E*TRADE FINANCIAL: N.Y. Court Dismisses Securities Class Action EGS FINANCIAL: Faces TCPA Class Action in Louisiana EMERGENT BIOSOLUTIONS: July 6 Hearing on Motion to Dismiss ETSY INC: "Altayyar" Class Action Dismissed ETSY INC: Consolidated Class Action Remains Stayed FACEBOOK INC: Wants Suit Over Inflated Video Metrics Tossed FEDERAL SIGNAL: Hearing Loss Cases by 1,770 Firefighter Nixed FEDERAL SIGNAL: 556 Firefighters in NY and NJ Hearing Loss Cases FERASS DELI: "Perez" Suit Seeks Overtime, Spread-of-Hours Pay FIAT CHRYSLER: Class Action Over Defective Jeep Gas Tanks Tossed FLORIDA: Court OKs Accurate Death Certs for Same Sex Widowers FLORIDA: To Pay Millions to Homeowners for Lost Citrus Trees FLORIDA ROOFING: "Molina" Suit Claims Unpaid Overtime Pay FLOWERS BAKING: "Miller" Suit Seeks Overtime Pay FORD MOTOR: Class Action Over Exhaust Odors Can't Proceed FRANKLIN COLLECTION: "Hernandez" Suit Alleges FDCPA Violation GATEWAY GROUP: Faces Class Action in N.J. Over Racetrack Wages GENEVA, NY: Faces Class Action Over Arsenic Contamination GENVEC INC: "Mussman" Sues Over Shady Merger Deal with Intrexon GERON CORP: Settles Class Action, July 21 Fairness Hearing Set GLOBAL TEL-LINK: $8.8MM Accord in Lee-Martin Suit Has Initial OK GREAT LAKES: Has Until April 24 to Respond to Class Action HEALTHPORT TECHNOLOGIES: Sued for Overcharging for Health Records HERON RIDGE: "Steinman" Suit to Recover Overtime Pay IAC/INTERACTIVECORP: Delaware Law Class Action in Discovery IAC/INTERACTIVECORP: Still Defending Suit v. Match Group IGNITE PAYMENTS: JWD Automotive Sues Over Unsolicited Fax INGRAM MICRO: Class Action Over HNA Merger Plan Dismissed INTERACTIVE BROKERS: Motion to Dismiss Suit Underway J&D TRANSPORTATION: "Thomas" Suit to Recover Overtime Pay JANET ROUSSELL: "Legros" Suit to Recover Overtime Pay JB & J: Residents Call for Investigation in Caravan Park JC PENNEY: To Settle Vacation Pay Class Action for $1.75MM JEVIC HOLDING: Supreme Court Opinion to Impact Hedge Funds JL WOODE: Denial of Leave to Amend Reversed, Action Remanded JOES BLUE MARKET: "Gonzalez" Suit Seek Overtime Pay JPMORGAN CHASE: Balks at Euribor Class Action Discovery Timetable JPMORGAN CHASE: Settles Financial Adviser OT Wage Case for $5.7MM JPMORGAN CHASE: Hit With Proposed Class Suit Over Car Reposession KEYCORP: Appeal in Checking Account Overdraft Litigation Pending KIMBERLY-CLARK CORP: To Challenge MicroCool Class Action Ruling LABORATORY CORP: Sued Over Excessive Diagnostic Test Fees LECHONERA EL SAZON: "Hernandez" Seeks OT, Reimbursements, Tips LENDINGCLUB CORP: Discovery Underway in Securities Class Actions LENDINGCLUB CORP: Motion to Dismiss 2 Suits Remains Pending LENDINGCLUB CORP: Motion to Compel Arbitration Approved LG: Bootloop Defect Class Action Amended to Cover More Phones LIFE CARE CENTERS: "Bowlin-Burdick" Sues Over Missed Breaks LIGAND PHARMACEUTICALS: No Trial Set in California Action LIGAND PHARMACEUTICALS: Appeal in Pennsylvania Suit Still Pending LINCOLN WOOD: "Golzak" Sues Over Defective Windows LIVING ESSENTIALS: Court Denies Bid to Strike Expert Testimony LOFT ASSOCIATES: "Cunningham" Hits Illegal Telemarketing Calls LOFT ASSOCIATES: Class Certification Sought in "Cunningham" Suit MANUS ISLAND: Court to Live Stream Detainees' Class Action Trial MASSACHUSETTS MEDICAL: Physicians Healthsource Sues Over Fax Ad MCDONALD'S: Franchise Workers Seek to Revive Wage Class Action MCGUINNESS DEV'T: Champ Construction Demands Payment for Services MDL 1674: CBNV Mortgage Litigation Goes to Arbitration MERCK & CO: Attorneys' Fees in Vioxx Suit Yet to Be Determined MERCK & CO: 4,230 Fosamax Cases Pending in U.S. Courts MERCK & CO: Discovery Ongoing in 20 Remaining ONJ Cases MERCK & CO: Discovery Ongoing in Cases Alleging Femur Fractures MERCK & CO: 1,195 Januvia/Janumet Claims Served at Dec. 31 MERCK & CO: 1,330 Propecia/Proscar Suits Filed at Dec. 31 MERCK & CO: Settlement Reached in K-DUR Antitrust Litigation MERCK & CO: "Smith" Sales Force Litigation Underway MERCK & CO: Class Suits over M-M-R II Vaccine in Discovery MEZENTCO SOLUTIONS: Judge Approves Class Action Settlement MICHAELS STORES: FCRA Provision Not Enough to Establish Harm MISSOURI: Public Defender System Suit Moved to Federal Court MONSANTO CO: Jurisdiction Established Through Grable Doctrine MYLAN INC: "Nordstrum" Sues Over Overpriced EpiPen Injections MYLAN INC: Teachers' Fund Sues Over Overpriced Anti-Depressant NABORS DRILLING: Calderon Seeks Certification of Welders Class NEW ZEALAND: Brokovich Meets Christchurch Insurance Claimants NUCOR CORPORATION: $23.4MM Settlement Granted Final Approval OAKHURST: Maine Overtime Law Wording at Issue in Class Action OCCAM NETWORKS: Class Rep's Incentive Award Request Challenged OCWEN FINANCIAL: Property Inspection Case Dismissal Upheld OLD REPUBLIC: "White" Lawsuit Awaiting Court's Dismissal ONTARIO: C$8MM Settlement Reached for School of the Blind Suit OPHTHOTECH CORP: 2 Pension Funds Compete for Lead Plaintiff Role PARTNER COMMS: Customers' Suit Recognized as Class Action PATHPOINT: "Gonzalez" Seeks Overtime, Missed Break Premiums PEABODY ENERGY: Missouri Court Dismisses ERISA Suit PENNSYLVANIA: Admin Added as Defendants in Water Crisis Suit PHILADELPHIA, PA: Loses Bid to Dismiss Civil Forfeiture Suit PLAINS ALL AMERICAN: Court Tosses Exchange, Securities Act Claims PLAINS ALL-AMERICAN: November Trial Set in Oil Spill Class Action PLURALSIGHT: Court Dismisses Suit Over Auto-Renewal Program PNC FINANCIAL: Appeal in Overdraft Litigation Remains Pending PNC FINANCIAL: Interlocutory Appeal Sought in Reinsurance Action PNC FINANCIAL: Amended and Supplemental Complaint Filed PORTFOLIO RECOVERY: "Pollak" Suit Seeks Certification of Classes PRINCETON INFORMATION: Settlement in "Escort" Has Prelim Approval R.J. REYNOLDS: Fla. Top Court Rules Lawsuits Can Continue RAILWORKS TRACK: "Gonzalez" Suit Seeks Overtime Pay RESOURCE CORPORATION: "Hernandez" Suit Seeks Overtime Pay REVANCE THERAPEUTICS: May 19 Settlement Fairness Hearing RHODE ISLAND: ACLU's Class Action Over Sex Offenders Bill Ongoing RINGCENTRAL INC: Bid to Dismiss Supply Pro Sorbents' Suit Pending SAREPTA THERAPEUTICS: Oral Argument Held in "Corban" Suit SAREPTA THERAPEUTICS: No Briefing Schedule Yet in "Kader" Suit SEQWATER: Court Orders Mediation in 2011 Floods Class Action SEVENTY-SEVEN ENERGY: "Gael" Sues Over Shady Merger Deal SHORE FUNDING: "Cunningham" Suit Seeks Certification of Class SILVERSCRIPT INSURANCE: Class Action Seeks Medicare Beneficiaries SMUCKER FOODS: Faces Class Action Over Robin Hood Flour Recall SNYDER'S-LANCE: June 21 Status Hearing in "Roxberry" IBO Suit SNYDER'S-LANCE: Seeks to Dismiss or Transfer "Scheurer" Suit SNYDER'S-LANCE: Merger-Related Suit Dismissed SNYDER'S-LANCE: Accord in Calif. Labor Suit Has Preliminary OK SNYDER'S-LANCE: Late July's Motion to Dismiss Underway SOHO SUSHI: "Zhao" Seeks Overtime Pay, Claims No Pay Stubs SSE: Shareholder Files Class Action Over Patterson-UTI Deal STANDARD INNOVATION: Settles We-Vibe Privacy Class Action STELLAR RECOVERY: "Salinas" Sues Over Illegal Collections Calls STRATEGIC HVAC: "Barragan" Sues Over Unpaid Overtime Wages SWEETWATER, FL: Conditional Class Cert. Sought in "Peneda" Suit SWISHER HYGIENE: Motions to Dismiss Amended Complaint Underway TESLA: Disputes Son Ji-chang's Sudden Acceleration Claim TRANSWORLD SYSTEMS: Illinois Court Narrows Claims in "Eul" TRINET GROUP: Underwriters Seek to Dismiss Welgus Amended Suit U.S. IMMIGRATION: Hearing on Class Certification Bid Continued UBER TECHNOLOGIES: Class Action Mulled Over Manipulative System UBER TECHNOLOGIES: Software Engineer's Suit Stayed UNIQUE BEVERAGE: Plaintiff's Attorney Files Motion for Sanctions UNIT CORP: Class Certification Issues in Panola Case Underway UNITED KINGDOM: Post Office Could Face Suit by Subpostmasters UNITED STATES: ACLU Advises Against ICE Enforcement Agreements UNITED STATES: Travel Ban Violates Constitution, ACLU Says VCA INC: Seeks to Prevent Duran from Pursuing PAGA Action VCA INC: Discovery Underway in "Bradsbery and Brakensiek" Suit VCA INC: Appeal in "Graham" Class Suit Underway VCA INC: Judge Bernal to Hear "Moran" Suit over Mars Merger VONAGE HOLDINGS: Class Suit by Merkin & Smith, et al. Underway WASHINGTON: Faces Suit Over Driver's Act Violation WASHINGTON METROPOLITAN: Race Discrimination Class Action OK'd WELLS FARGO: Former Executives Criticized in Fake Accounts Probe WOOD GROUP: Certification of Class Sought in "Kibodeaux" Suit WOOLWORTHS: Class Action Mulled Over 2015 Profit Downgrade * Workers of Gig Economy Companies Fight for Labor Rights * Blake Cassel Attorneys Discuss 2016 Pharma Class Action Rulings * Class Actions Mulled v. UK Councils Over Term-Time Holidays * Class Action Costs Under BIC Between $70MM-$150MM Each Year * Construction Defects Bill Aims to Resolve Condo Class Actions * Junk Fax Rule as Applied to Faxes Struck Down by D.C. Circuit * Legislation Aims to Avert ADA Class Actions Against Businesses * Lieff Cabraser Attorney Says FCALA to Protect Price Fixing * More 401(k) Advisers Face Litigation Risk Under Fiduciary Rule * Plaintiff-Style Aggregate Damages Play Key Role in Class Suits * Sheffield Lake Council to Join Class Action Over Bill 331 * Trump Supreme Court Appointee to Affect Pending Cases ********* 21ST AMENDMENT BREWERY: "Peacock" Sues Over Mislabeled Beer ----------------------------------------------------------- Brendan Peacock, on behalf of himself, and all others similarly situated, Plaintiff, v. The 21st Amendment Brewery Cafe, LLC, Defendant, Case No. 3:17-cv-01918, (N.D. Cal., April 6, 2017), seeks (i) to preliminarily and permanently enjoin Defendant from using misleading labeling and marketing of its products, (ii) a corrective advertising and information campaign, (iii) restitution, (iv) disgorgement of all monies wrongfully obtained, (v) punitive damages, and (vii) such other and further relief under the Consumer Legal Remedies Act and the California Sherman Food, Drug and Cosmetic Law. The 21st Amendment Brewery Cafe, LLC falsely claims that its beer products are exclusively brewed in the Bay Area of California despite the fact some of the beer is brewed in Minnesota, says the complaint. Defendant sells beer products under its trademark, 21st Amendment. [BN] Plaintiff is represented by: Jared H. Beck, Esq. Elizabeth Lee Beck, Esq. Beverly Virues, Esq. BECK & LEE TRIAL LAWYERS 12485 SW 137th Ave., Suite 205 Miami, FL 33186 Tel: (305) 234-2060 Fax: (786) 664-3334 - and - Cullin O'Brien, Esq. CULLIN O'BRIEN LAW, P.A. 6541 NE 21st Way Fort Lauderdale, FL 33108 Tel: (561) 676-6370 Fax: (561) 320-0285 3D SYSTEMS: Motion for Reconsideration Denied --------------------------------------------- 3D Systems Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Defendants' motion for reconsideration of a Court Order has been denied. The Company and certain of its former executive officers have been named as defendants in a consolidated putative stockholder class action lawsuit pending in the United States District Court for the District of South Carolina. The consolidated action is styled KBC Asset Management NV v. 3D Systems Corporation, et al., Case No. 0:15-cv-02393-MGL. The Amended Consolidated Complaint (the "Complaint"), which was filed on December 9, 2015, alleges that defendants violated the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 10b-5 promulgated thereunder by making false and misleading statements and omissions and that the former officers are control persons under Section 20(a) of the Exchange Act. The Complaint was filed on behalf of stockholders who purchased shares of the Company's common stock between October 29, 2013, and May 5, 2015 and seeks monetary damages on behalf of the purported class. Defendants filed a motion to dismiss the Complaint in its entirety on January 14, 2016, which was denied by Memorandum Opinion and Order dated July 25, 2016 (the "Order"). Defendants filed a motion for reconsideration of the Order on August 4, 2016, which was denied by Order dated February 24, 2017. 3D Systems Corporation provides comprehensive 3D printing solutions. ACCELERATE DIAGNOSTICS: Oral Argument Being Considered in Appeal ---------------------------------------------------------------- Accelerate Diagnostics, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the appeal in a class action lawsuit is being considered for oral argument, possibly as early as May 2017. The Company said, "On March 19, 2015, a putative securities class action lawsuit was filed against Accelerate Diagnostics, Inc., Lawrence Mehren, and Steve Reichling, and is captioned as Rapp v. Accelerate Diagnostics, Inc., et al., U.S. District Court, District of Arizona, 2:2015-cv-00504. The complaint alleges that we violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and SEC Rule 10b-5, by making false or misleading statements about our Accelerate Pheno(TM) system, formerly called the BACcel System. Plaintiff purports to bring the action on behalf of a class of persons who purchased or otherwise acquired our stock between March 7, 2014, and February 17, 2015." "On June 9, 2015, Julia Chang was appointed Lead Plaintiff of the purported class. On June 23, 2015, Plaintiff filed an amended complaint alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, by making false or misleading statements or omissions about our Accelerate Pheno(TM) system and by allegedly employing schemes to defraud. Plaintiff sought certification of the action as a class action, compensatory damages for the class in an unspecified amount, legal fees and costs, and such other relief as the court may order. Defendants moved to dismiss the amended complaint on July 21, 2015. The Court granted the motion and dismissed the case with prejudice on January 28, 2016. "On February 26, 2016, Plaintiff filed a notice of appeal with the United States Court of Appeals for the Ninth Circuit, which challenges the dismissal of the amended complaint. See Chang v. Accelerate Diagnostics, Inc., et al., No. 2:15-CV-00504-SPL (9th Cir. filed Feb. 26, 2016). The appeal has been fully briefed and is pending. "On January 27, 2017, the appellate Court informed the Company that this case is being considered for oral argument, possibly as early as May 2017, although the exact date has not yet been set. We do not anticipate this will have a material impact on our financial statements." Accelerate Diagnostics, Inc. is an in vitro diagnostics company dedicated to providing solutions that improve patient outcomes and lower healthcare costs through the rapid diagnosis of serious infections. ACTAVIS HOLDCO: Teachers' Fund Sues Over Overpriced Fluocinocide ---------------------------------------------------------------- Philadelphia Federation of Teachers Health and Welfare Fund, on behalf of itself and all others similarly situated, Plaintiffs, v. Actavis Holdco US Inc., Taro Pharmaceuticals USA Inc. and Taro Pharmaceuticals USA Inc., Defendants, Case No. 2:17-cv-01600, (E.D. Pa., April 7, 2017), seeks to recover treble damages, costs of suit and reasonable attorneys' fees resulting from overcharging of fluocinocide in violation of the Sherman Act and Clayton Act. Fluocinocide is a topical glucocorticoid, used to treat inflammation and pruritic skin conditions, caused by proriasis, atopic dermatitis and allergic reactions. Philadelphia Federation of Teachers Health and Welfare Fund is a voluntary employee benefits plan providing health benefits to eligible participants and beneficiaries, including prescription drug benefits, to approximately 34,000 participants, and their spouses and dependents. Taro Pharmaceuticals USA, Inc. is a New York corporation with its principal place of business in Hawthorne, New York. It is an owned subsidiary of Taro Pharmaceutical Industries, Ltd. Actavis is a pharmaceutical corporation with its global headquarters in Dublin, Ireland, and with administrative headquarters in New Jersey. Teva Pharmaceuticals Curacao N.V. develops, manufactures and distribute generic pharmaceutical products. Taro Pharmaceuticals USA, Inc. is a New York corporation with its principal place of business in Hawthorne, New York. It is an owned subsidiary of Taro Pharmaceutical Industries, Ltd. Plaintiff is represented by: Marc H. Edelson, Esq. EDESON AND ASSOCIATES LLC 3 Terry Drive, Suite 205 Newtown, PA 18940 Tel: (215) 867-2399 Fax: (267) 685-0676 Email: mcdelson@edelson-law.com - and - Paul J. Scarlato, Esq. GOLDMAN SCARLATO & PENNY, RC. 8 Tower Bridge, Suite 1025 161 Washington Street Conshohocken, PA 19428 Tel: (484) 342-0700 Fax: (484) 580-8747 Email: scarlato@lawgsp.com ADVANCE AMERICA: Class Action Over High Interest Rates Certified ---------------------------------------------------------------- WFTV9abc reports that an Orlando grandmother is taking on a big payday lender claiming its sky high interest rates violate Florida law and creates dangerous debt traps. Her class action lawsuit started 20 years ago but it just passed a major hurdle. Wendy Betts was drowning in payday loans due every two weeks. "It was a nightmare, I didn't know what to do," said Ms. Betts, "It was a lonely time for me." She had just moved to Orlando, her husband lost his job. "We were just trying to get our feet back on the ground, I had taken a salary cut," said Ms. Betts. Payday loans seemed her only option. It's a short term loan due every payday. Most customers can only afford to pay the interest so the loan doesn't go away. Her interest rate was 312% and at one time she juggled 10 different loans. "Did you feel trapped?" asked Ulrich. "Definitely. Definitely. I didn't know where to turn," replied Betts. She contacted attorney Clay Yates, who sued lenders like McKenzie Check Advance, now doing business as Advance America. "Her paydays were miserable because she had to keep making the interest payments," said Mr. Yates. Ms. Betts' lawsuit started 20 years ago and there have been plenty of setbacks and wins along the way. Florida's Supreme Court ruled against the lender in 2006 finding the loans violated usury laws capping interest at 18 percent. The class action lawsuit was just certified last month and accuses the company of exorbitant interest rates. It would cover thousands of customers statewide. Her attorney would only discuss payday customers in general. "They get in a situation they can't get out of, It's the crack cocaine of credit," said Mr. Yates. Advance America told Action 9 it maintains a strong compliance record with all regulations. It can't comment on pending litigation, but will vigorously defend its lawful business practices. "I want people to get some restitution. They were exploited," said Ms. Betts. Thousands of additional customers are not covered by this class action. Their contracts had a binding arbitration clause taking away their right to sue. AG AUTOBODY: "Pinto" Seeks Overtime, Sues Over Lack of Pay Stubs ---------------------------------------------------------------- Gabriel Carrillo Pinto and Eliseo Lomeli Centeno, individually and on behalf of all others similarly situated, Plaintiffs, v. AG Autobody, Incorporated, Ali Reza Ghaufori, Horacio Hernandez and Does 1 through 10 inclusive, Defendants, Case No. BC656977 (Cal. Super., April 10, 2017), seeks injunctive relief, damages for the amount of unpaid overtime compensation, including interest thereon and penalties, unpaid minimum wage compensation, damages for failure to provide timely and accurate itemized wage statements and waiting time penalties for any and all failure to timely remit compensation of all earned and payable wages upon termination of employment under California Labor Laws. Pinto and Centeno were employed by Defendants as painters at their automotive repair facility located at 1115 South La Cienga Boulevard in Los Angeles. The Plaintiff is represented by: Scott Miller, Esq. Bonnie Fong, Esq. Kelly Buschman, Esq. LAW OFFICES OF SCOTT A. MILLER 5023 Parkway Calabasas Calabasas, CA 91302 Tel: (818) 788-8081 - and - Thomas P. Hogan, Esq. Flor Tataje, Esq. Shawnte Priest, Esq. LAW OFFICE OF THOMAS P. HOGAN 1207 13th Street, Suite 1 Modesto, CA 95354 Tel: (209) 214-6600 Fax: (209) 492-9356 AIR CANADA: Aveos Maintenance Workers Step Up Class Action ---------------------------------------------------------- Martin Cash, writing for Winnipeg Free Press, reports that former Aveos airplane maintenance workers have beefed up their efforts to pursue a $1-billion class-action suit against Air Canada and the governments of Canada and Quebec. Lawyers from the Quebec firm Trudel Johnston & Lesperance have joined other firms in the province -- Jean-Fran‡ois Bertrand Avocats Inc., Bruno-Pierre Allard and Jean Poirier -- in litigating the class action. More than 400 Winnipeg Aveos workers, who lost their jobs in 2012 when Aveos Fleet Performance closed its doors, are eligible to join the class action. Aveos was spun off from the former Air Canada Technical Services. Gilbert McMullen, a Montreal-based spokesman for the laid-off workers, said the addition of the Trudel firm puts more firepower behind efforts to get Air Canada to settle. "We think it will mean that Air Canada will no longer be able to play their games," Mr. McMullen said. The lawsuit likely represents the last opportunity at compensation for workers who believe the shutdown of the plant was a "flagrant and deliberate violation" of the Air Canada Public Participation Act. That act required Air Canada to maintain operation centres in Winnipeg, Montreal and Mississauga. When Aveos went out of business, the airline shipped those jobs elsewhere, many of them out of the country. Air Canada argued because it still had line maintenance workers in those cities, the airline was not violating the law. Quebec and Manitoba disagreed, and the former filed a lawsuit against the airline. Manitoba was an intervener in the case. A Quebec court sided with the provinces, and that decision was upheld on appeal. The case was destined for the Supreme Court of Canada, but the airline negotiated settlements with the two provinces. Air Canada said it would establish maintenance centres of excellence in Winnipeg and Montreal. In Quebec, the airline also has committed to a maintenance contract on the Quebec-made C- Series jets Air Canada intends to purchase. In return, Quebec and Manitoba withdrew their legal challenges. However, the promised centre of excellence in Winnipeg has not materializing. Air Canada has stated publicly on several occasions it was supporting the establishment of Manitoba operations for three of its suppliers -- Cargojet Airways Ltd., Hope Aero Propeller & Components Inc. and Airbase Services Inc. The plan was for them to locate in the old Aveos hangar on Saskatchewan Avenue. Air Canada recently signed another 10-year lease on the buildings. Last year, it was rumoured Cargojet would build a heavy maintenance operation there and might need to hire a few hundred workers. It seems increasingly unlikely the Mississauga-based cargo carrier is going to follow through with that. An industry official familiar with the heavy maintenance business in Canada said he understands Cargojet is not coming to Winnipeg. "That page has been turned, and I strongly doubt it will be reopened." Barry Rempel, the CEO of Winnipeg Airports Authority, is decidedly less optimistic than he was only a few months ago about Cargojet setting up in Winnipeg. The WAA holds the land lease on those Air Canada hangars and is strongly motivated to see it occupied and generating economic activity. "I've come to the point of believing the hoped-for Cargojet work is unlikely but for reasons that have nothing to do with Winnipeg... location or business climate," Mr. Rempel said in an email exchange. "We are pursuing what we hope to have potential for some additional Air Canada partner work here, but nothing is yet firm." Cargojet had no comment, spokeswoman Pauline Dhillon said. Air Canada is still officially sticking to the party line. "Our commitment to all three remains unchanged," company spokesman Peter Fitzpatrick said. Officials from Hope and Airbase were unavailable for comment, but a Winnipeg aerospace industry official said Airbase -- an airplane interior cabinet and furnishings manufacturer and maintenance organization -- is in the process of setting up a shop, with four employees in Winnipeg. ALASKA AIR: Virgin America Flight Attendants' Class Suit Pending ---------------------------------------------------------------- Alaska Air Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that a class action lawsuit filed by Virgin America flight attendants remains pending. In 2015, three flight attendants filed a class action lawsuit seeking to represent all Virgin America flight attendants for damages based on alleged violations of California and City of San Francisco wage and hour laws. Plaintiffs received class certification in November 2016. Virgin America filed a motion for summary judgment seeking to dismiss all claims on various federal preemption grounds. In January 2017, the Court denied in part and granted in part Virgin America's motion. Virgin America believes the claims in this case are without factual and legal merit and intends to defend this lawsuit through, among other strategies, filing a motion for reconsideration of the Court's certification decision and denial of summary judgment and, if necessary, a motion for certification of interlocutory appeal to the U.S. Court of Appeals for the Ninth Circuit. Air Group operates Alaska, Virgin America and Horizon Air. It completed the acquisition of Virgin America on December 14, 2016, at which time Virgin America became its wholly-owned subsidiary. ALLSTATE INDEM: Motion to Dismiss Breach of Contract Claim Nixed ---------------------------------------------------------------- Wystan Ackerman, Esq. -- wackerman@rc.com -- of Robinson+Cole, in an article for JDSupra, wrote that in prior blog posts, "I've covered developments in the putative class actions against insurance companies in Georgia involving diminution in value on property insurance claims, for example)". These cases stem from a 2012 Georgia Supreme Court decision ruling that diminution in value following completion of repairs was potentially covered under a property insurance policy. A Georgia federal court recently decided a motion to dismiss in one of these class actions. In Morrow v. Allstate Indem. Co., 2017 U.S. Dist. LEXIS 46245 (M.D. Ga. Mar. 29, 2017), the court ruled as follows on the central issues: The court denied the motion to dismiss the breach of contract claim, rejecting an argument that the policy did not cover diminished value because it covered only "sudden and accidental direct physical loss," and rejecting an argument based on the policy's replacement cost coverage provision. On the second point, the court noted that the policy provided actual cash value coverage unless and until the repairs were completed. The court wrote that "[a]ctual cash value' implies the obligation to compensate for any diminished-value losses sustained by the insured," and that "because the Building Reimbursement Payment is a payment in addition to the actual cash value payment, any limitations in the Building Structure Reimbursement provision are irrelevant." at *12. The court further concluded that, for pleading purposes, it was sufficient for the plaintiffs to allege "that their home suffered foundational and/or structural support damage, water damage, and mold damage," and that "despite these repairs, the fair market value of their home diminished because of the damage." Id. at *15. The court denied the motion to dismiss the claim for injunctive relief or specific performance, stating that "[t]he Court cannot say at this point that Plaintiffs have an adequate remedy at law in the form of a damages award." at *20. The court granted the motion to dismiss the declaratory judgment claim. Plaintiffs argued that they had a likelihood of future injury, asserting that they have a 10% chance of submitting a covered claim for property damage in any given year. The court concluded that this was insufficient to allege a reasonable expectation of a future injury, and thus dismissed the declaratory judgment claim. at *23-24. It may be advisable for insurers to continue to monitor these cases. I'm not aware of any cases in which plaintiffs have sought to litigate the issue outside of Georgia. The diminished value issue has the potential to spread beyond Georgia, as occurred in the auto insurance context. ALLY FINANCIAL: "Sharpe" Suit Seeks Overtime Pay ------------------------------------------------ Mina Sharpe and Belinda McKinnon, on behalf of themselves and all others similarly situated, Plaintiffs, v. Ally Financial, Inc., Randstad North America, Inc. and Vaco Charlotte, LLC, Defendants, Case No. 3:17-cv-189, (W.D. N.C., April 7, 2017), seeks compensatory damages, including all pay owed, pre- and post- judgment interest at the statutory rate, liquidated damages, overtime compensation found due, reasonable attorneys' fees incurred prosecuting this claim and such further relief under the Fair Labor Standards Act of 1938 and North Carolina Wage and Hour Act. Ally Financial, Inc. provides financial services including auto financing, corporate financing, insurance, mortgages, stock brokerage, and online banking services to customers. Randstad North America, Inc. and VACO Charlotte, LLC are staffing companies that provide outsourcing, consulting, and workforce staffing solutions within the areas of engineering, finance and accounting, healthcare, human resources, IT, legal, life sciences, manufacturing and logistics, office administration and sales and marketing to clients nationwide. Plaintiffs worked for Defendants, via the staffing agencies, as Anti-Money Laundering Investigators. [BN] Plaintiff is represented by: Philip J. Gibbons, Jr., Esq. PHIL GIBBONS LAW, P.C. 15720 Brixham Hill Ave., Suite 331 Charlotte, NC 28277 Tel: (704) 612-0038 Email: phil@philgibbonslaw.com - and - Ryan F. Stephan, Esq. James B. Zouras, Esq. Teresa M Becvar, Esq. STEPHEN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 Tel: (312) 233 1550 Email: rstephan@stephanzouras.com jzouras@stephanzouras.com ALPS ELECTRIC: Files Suit Over Automotive Heater Control Pricing ---------------------------------------------------------------- Tiffin Motor Homes, Inc. and SLTNTRST LLC, Trustee for Fleetwood Liquidating Trust, Individually and on behalf of all others similarly situated, Plaintiffs, v. Alps Electric Co., Ltd., Alps Electric (North America), Inc. and Alps Automotive Inc., Defendants, Case No. 2:17-cv-11109, (E.D. Mich., April 7, 2017), seeks injunctive relief and to recover damages, including treble damages, and costs of suit and reasonable attorneys' fees, resulting from Defendants' violations of the Sherman Act and the Clayton Act. Defendants are manufacturers of automotive heater control panels in motor vehicles manufactured or sold in the United States. Plaintiffs allege that Defendants conspired to rig bids, and to fix, maintain, and/or stabilize their prices in the United States. Plaintiffs further allege that Defendants fraudulently concealed their conspiracy. [BN] Plaintiff is represented by: David H. Fink, Esq. Darryl Bressack, Esq. Nathan J. Fink, Esq. FINK ASSOCIATES LAW 38500 Woodward Avenue, Ste. 350 Bloomfield Hills, MI 48304 Tel: (248) 971-2500 Email: dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com - and - Joseph C. Kohn, Esq. William E. Hoese, Esq. Douglas A. Abrahams, Esq. KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Email: jkohn@kohnswift.com whoese@kohnswift.com dabrahams@kohnswift.com - and - Steven A. Kanner, Esq. William H. London, Esq. Michael E. Moskovitz, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Email: skanner@fklmlaw.com wlondon@fklmlaw.com mmoskovitz@fklmlaw.com - and - Eugene A. Spector, Esq. William G. Caldes, Esq. Jonathan M. Jagher, Esq. Jeffrey L. Spector, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 496-0300 Email: espector@srkw-law.com bcaldes@srkw-law.com jjagher@srkw-law.com jspector@srkw-law.com - and - Gregory P. Hansel, Esq. Randall B. Weill, Esq. Michael S. Smith, Esq. PRETI, FLAHERTY, BELIVEAU & PACHIOS LLP One City Center, P.O. Box 9546 Portland, ME 04112-9546 Telephone: (207) 791-3000 Email: ghansel@preti.com rweill@preti.com msmith@preti.com - and - M. John Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 833-6575 - and - Brian Murray, Esq. Lee Albert, Esq. Gregory Linkh, Esq. GLANCY BINKOW & GOLDBERG LLP 77 Water Street, 7th Floor New York, NY 10015 Telephone: (646) 722-4180 Email: bmurray@glancylaw.com lalbert@glancylaw.com glinkh@glancylaw.com - and - Melissa H. Maxman, Esq. COHEN & GRESSER LLP 1707 L Street, NW Suite 550 Washington, DC 20036 Telephone: (202) 851 2070 Email: MMaxman@CohenGresser.com - and - Brent W. Johnson, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave. NW, Suite 500 West Washington, DC 20005 Telephone: (202) 408-4600 Email: bjohnson@cohenmilstein.com AMBAC FINANCIAL: Motion to Dismiss "Wilbush" Suit Underway ---------------------------------------------------------- Ambac Financial Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Defendants' motion to dismiss the amended complaint in the case captioned, Ori Wilbush, individually and on behalf of all others similarly situated v. Ambac Financial Group, Inc., Diana N. Adams, David Trick, Jeffrey S. Stein, Nader Tavakoli and Cathleen Matanle (United States District Court, Southern District of New York, Civil Action No. 16-cv-05076-RMB, filed on June 28, 2016), remains pending. A putative securities class action lawsuit was filed in June 2016 against Ambac and certain of its present and former officers and directors, for alleged violations of the federal securities laws. The court appointed a lead plaintiff on October 11, 2016. The lead plaintiff filed an Amended Class Action Complaint on November 23, 2016. The suit purports to be on behalf of purchasers of Ambac's securities from November 13, 2013 through November 17, 2015. It alleges, among other things, that defendants issued materially false and misleading statements regarding Ambac's (a) risk management and credit rating policies and procedures, (b) credit mitigation strategies, (c) internal controls over financial reporting, and (d) loss exposures on its public finance bond portfolio. In particular, the suit alleges that defendants did not sufficiently disclose Ambac's exposure to bonds issued by the Commonwealth of Puerto Rico, despite allegedly being aware of significant risks associated with those exposures. Defendants filed a motion to dismiss the amended complaint on February 27, 2017. Ambac believes the lawsuit is without merit. AMERICAN FAMILY: MAO-MSO Sues Over Unpaid Reimbursements -------------------------------------------------------- MAO-MSO Recovery II, LLC, MSP Recovery, LLC and MSPA Claims 1, LLC, on behalf of themselves and all others similarly situated Medicare Advantage Organizations (MAO), Plaintiffs, v. American Family Mutual Insurance Company and American Family Insurance Company, Defendants, Case No. 3:17-cv-00262, (W.D. Wis., April 6, 2017), seeks reimbursement for those accident-related medical expenses paid for by the Plaintiffs' assignors and all other MAOs that should have been paid, in the first instance, by Defendants; pre-judgment and post-judgment interest under the Medicare Secondary Payer Provisions; and for breach of contract. Plaintiffs and the putative class members are Medicare Advantage Organizations that provide Medicare benefits to Medicare-eligible beneficiaries enrolled under the Medicare Advantage program. These Medicare beneficiaries were simultaneously covered by insurance policies issued by Defendants, which made Defendants the primary payers for the medical bills, services, and items paid by Plaintiffs and the Class Members. They paid for the medical items or treatment even though the Defendants were responsible for paying those expenses under their no-fault insurance policies and the Medicare Secondary Payer provisions of Medicare, says the complaint. [BN] Plaintiff is represented by: R. Brent Wisner, Esq. Michael L. Baum, Esq. Pedram Esfandiary, Esq. BAUM, HEDLUND, ARISTEI & GOLDMAN, P.C. 12100 Wilshire Blvd., Suite 950 Los Angeles, CA 90025 Tel: (310) 207-3233 Fax: (310) 820-7444 Email: rbwisner@baumhedlundlaw.com mbaum@baumhedlundlaw.com pesfandiary@baumhedlundlaw.com - and - Christopher L. Coffin, Esq. Tracy L. Turner, Esq. Courtney L. Stidham, Esq. PENDLEY, BAUDIN & COFFIN, LLP 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Phone: (504) 355-0086 Email: ccoffin@pbclawfirm.com tturner@pbclawfirm.com cstidham@pbclawfirm.com AMERICAN REGISTRY: Sued in Ohio Over Erroneous Examination Scores ----------------------------------------------------------------- Attorneys Thomas Zimmerman, Jr., of the Chicago-based Zimmerman Law Offices and former Ohio Attorney General Marc Dann of the Cleveland-based Dann Law Firm on April 10 filed a federal class action suit against the American Registry for Diagnostic Medical Sonography (ARDMS), the body that administers examinations and awards credentials to professionals who utilize ultrasound technology. The suit alleges ARDMS falsely reported that sonography professionals who took certification exams between September 2016 and March 2017 failed the tests when they had, in fact, passed, and that those false reports harmed affected professionals in a number of ways. The case, Stephanie Miller and Mary Alyce Dawson v. Inteleos, Inc. f/k/a American Registry for Diagnostic Medical Sonography, Inc., was filed in the U.S. District Court for the Northern District of Ohio. The lead plaintiffs, sonography professionals who received erroneous examination scores, represent all sonographers throughout the United States impacted by ARDMS' actions. The lawsuit seeks damages for lost wages, lost employment opportunities, and damage to the sonographers' professional reputations resulting from the false report that they failed their certification examinations. ARDMS, which boasts that its credentials have been awarded to more than 90,000 medical professionals worldwide and are recognized as the international standard in the field, certifies Registered Diagnostic Medical Sonographer (RDMS), Registered Diagnostic Cardiac Sonographer (RDCS), Registered Vascular Technologist (RVT), Registered Musculoskeletal Sonographer (RMSKS), Registered Physician in Vascular Interpretation (RPVI), and Registered in Musculoskeletal (RMSK) Sonography. Inteleos, Inc., the organization that governs and manages ARDMS is the defendant in the lawsuit. "Because it denotes a lack of competency, knowledge and expertise in sonography, there is a serious stigma associated with failure to pass the credentialing examination," Attorney Zimmerman said. Attorney Dann noted that as a result of the false reporting of failing scores, sonography professionals across the country suffered harm to their professional reputation, lost their jobs, were denied employment opportunities, and had to sit for the certification examination a second time even though they had already passed the examination. A copy of the complaint is available upon request. Attorneys Zimmerman and Dann will be available for interviews and the lead plaintiffs may also be available to speak with the media on a limited basis. Contacts: Zimmerman Law Offices, PC Thomas A. Zimmerman, Jr. tom@attorneyzim.com 77 W. Washington Street, Suite 1220 Chicago, IL 60602 (312) 440-0020 telephone www.attorneyzim.com or The Dann Law Firm Co., LPA Marc E. Dann mdann@dannlaw.com 2728 Euclid Avenue, Suite 300 Cleveland, OH 44115 (216) 452-1026 www.dannlaw.com AMTRUST FINANCIAL: Faces Securities Class Action ------------------------------------------------ Safirstein Metcalf LLP on April 11 disclosed that a class action lawsuit has been filed against AmTrust Financial Services, Inc. ("AmTrust" or the "Company") (NASDAQ:AFSI) and certain of its officers, and is on behalf of a class consisting of all persons or entities who purchased AmTrust securities between March 2, 2015 and March 16, 2017, both dates inclusive (the "Class Period"). If you purchased Amtrust securities during the Class Period, and would like more information about getting involved in the Amtrust Shareholder Class Action, please call 1-800-221-0015, or email info@SafirsteinMetcalf.com. If you wish to serve as lead plaintiff, you must move the Court no later than May 1, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Company: AMTRUST FINANCIAL SERVICES, INC. Exchange: NASDAQ Ticker: AFSI Cusip: 032359309 Class Period: 3/2/15-3/16/17 Lead Plaintiff Date: 5/1/17 The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) AmTrust had ineffective assessment of the risks associated with the financial reporting; (2) AmTrust had an insufficient complement of corporate accounting and corporate financial reporting resources within the organization; (3) as a result, AmTrust lacked effective controls over financial reporting; and (4) consequently, defendants' statements about AmTrust's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. On February 27, 2017, AmTrust revealed that it "identified material weaknesses in its internal control over financial reporting that existed as of December 31, 2016, specifically related to ineffective assessment of the risks associated with the financial reporting, and an insufficient complement of corporate accounting and corporate financial reporting resources within the organization." Amtrust also said that it expects to correct errors in its financial statements for fiscal years ended December 31, 2015 and 2014, and certain financial information for fiscal years ended December 31, 2013 and 2012, and that it intended to delay the filing of its Form 10-K for the year ended December 31, 2016. Following this news, AmTrust stock dropped $5.32 per share, or over 19.23%, to close at $22.34 on February 27, 2017. About Safirstein Metcalf LLP Safirstein Metcalf LLP focuses its practice on shareholder rights. The law firm also practices in the areas of antitrust and consumer protection. ANCHOR36 LLC: "Landry" Suit Seeks Overtime Pay ---------------------------------------------- Brittany Landry, Plaintiff v. Anchor36, LLC, Anchor36 Logistics, LLC; and Courtney Richard, Defendants, Case No. 2:17-cv-02947, (E.D. La., April 6, 2017), is a collective action on behalf of all other current and former similarly situated employees, seeking unpaid wages and overtime, liquidated damages, reasonable attorney's fees, costs of suit, injunctive and equitable relief, pre and post-judgment interest and such other and further relief pursuant to the Fair Labor Standards Act. Defendants operate an interstate trucking and logistics business with principal place of business located at 10417 Ware Street in River Ridge, Louisiana. Ms. Landry did general office work including, answering phones, invoicing, dispatching trucks, responding to customer requests, providing paperwork and supplies to new drivers and performing inside sales duties and cold- calling. [BN] Plaintiff is represented by: Charles J. Stiegler, Esq. STIEGLER LAW FIRM LLC 6557 West End Blvd. New Orleans, LA 70124 Tel: (504) 267-0777 Fax: (504) 513-3084 Email: Charles@StieglerLawFirm.com ANZ SECURITES: SCOTUS to Weigh in on Statutes of Repose Issue ------------------------------------------------------------- Ronald Mann, writing for SCOTUS blog, reports that California Public Employees' Retirement System v. ANZ Securities presents such a basic question about class actions that it is astonishing the answer is not already settled: If a plaintiff files a class- action complaint that includes your claims, does that count as your complaint for purposes of filing your action in time? Or do you have to file your own complaint before the deadline for filing expires? This becomes important any time a litigant decides that it wants to litigate the dispute separately from the class; when it "opts out" of the class litigation, it has to file a separate complaint. In this case, for example, CalPERS opted out of a settlement of which it disapproved in a major class action against underwriters of Lehman Brothers securities; the class-action complaint had been filed in a timely manner, but the U.S. Court of Appeals for the 2nd Circuit held that CalPERS' individual complaint, filed after it opted out, was untimely. The Supreme Court has addressed this question before, in its 1974 decision in American Pipe & Construction v. Utah. In that case, the court held that the class complaint did count as the claim of the individual claimants for purposes of statutes of limitation; more specifically, it held that the class complaint "tolled," or suspended, the statute of limitations so that the individual claimant's later complaint was timely. In the securities laws, though, there are two different kinds of filing deadlines. The first, statutes of limitation, are relatively short and run from the time when the claimant discovers the problem that gives it a right to sue; the second, statutes of repose, are relatively long and run from the date of the violation in question. We know from American Pipe that the class-action complaint tolls the statute of limitations, but the 2nd Circuit (like most of the lower courts) has held that it does not toll statutes of repose. The relevant statute simply says that no "action" shall be brought after the relevant deadline; it would not be at all difficult to read the statute to support either side's position. So the great bulk of what the parties are arguing about is appropriate policy for class actions. For the plaintiffs' part (CalPERS in this case), the argument is obvious: A rule that the class-action complaint does not protect individual claimants from the statute of repose means that individual claimants will need to file their own separate complaints as the statute of repose approaches, flooding the dockets of federal courts in the process and destroying the case-management value of class actions. Moreover, in low-dollar class actions (areas like the Fair Labor Standards Act, for example), the ruling well might deny relief altogether, as the individual cases would not warrant the costs of separate complaints. The defendants are ANZ Securities and a large group of parties related to the underwriting of Lehman Brothers securities. They rely on the Supreme Court's practice of vigorously applying statutes of repose like the one at issue here. The most recent case, for example, the 2014 decision in CTS Corp. v. Waldburger, describes those statutes as an "absolute . . . bar" to liability, one that cannot be extended "for any reason," not "even in cases of extraordinary circumstances." They also counter CalPERS' assertion that a contrary decision will cause a flood of litigation, pointing out that the 2nd Circuit, home to much of the nation's securities litigation, has applied this rule since 2013 without any great difficulty. The recent concern of several members of the court about the costs of class actions has been conspicuous. Even in the absence of Justice Antonin Scalia, the justices well may see the case through that lens. The challenge for CalPERS in the argument will be to overcome any skepticism about class actions and persuade the court to see this as a case about docket management. ANZ: Class Action Among Cases Neil Gorsuch Needs to Look Into ------------------------------------------------------------- Fox News' Bill Mears and Andrew O'Reilly and The Associated Press report that Justice Neil Gorsuch, vowing to be a "faithful servant" to the Constitution, was sworn in April 10 to the Supreme Court, capping a grueling confirmation process and filling the seat once held by the late Antonin Scalia. The latest addition to the court was sworn in at a public ceremony in the Rose Garden. Justice Anthony Kennedy -- Gorsuch's former boss -- administered the Judicial Oath, the second of two Gorsuch took. "To the American people, I am humbled by the trust placed in me today," Gorsuch said after taking the oath. "I will never forget to whom much is given to much will be expected, and I promise you that I will do all my powers permit to be a faithful servant of the Constitution and laws of this great nation." At the ceremony, President Trump called Gorsuch a man of "unmatched qualification" and "deeply devoted" to the Constitution. "I have no doubt you will rise to the occasion, and the decisions you make will protect our Constitution today and for many generations of Americans to come," he said. Earlier, Gorsuch took the Constitutional Oath in a private ceremony, administered by Chief Justice John Roberts in the Supreme Court's Justice's Conference Room. He was accompanied by his wife Louise, who held the Bible, and his two daughters. Gorsuch, 49, takes the seat of the late Justice Scalia, who died in February last year, and whom Gorsuch has been compared favorably to by conservatives hopeful for another originalist on the court. April 10, 2017: Neil Gorsuch takes the first of two oaths for the Supreme Court. (Franz Jantzen, Collection of the Supreme Court of the United States) He underwent a rocky confirmation hearing as he faced stiff opposition from Democrats unhappy with how Republicans had blocked President Barack Obama's nominee -- Judge Merrick Garland -- after Scalia's death. Gorsuch is likely to cast a deciding vote in a number of high- profile cases, which also explains the tough confirmation process. The high stakes led Republicans to trigger the "nuclear option" to kill the 60-vote filibuster threshold for Supreme Court nominees. Here's a preview of what Justice Gorsuch will be looking at: Trinity Lutheran Church of Columbia, Inc. v. Pauley Seen as the hot-button case of the Court's sitting, this case involves a Lutheran preschool in Missouri that was denied state funds to improve a playground due to a law banning prohibiting government aid to schools with religious affiliations. Trinity Lutheran and supporters are hoping that, given Gorsuch's rulings on past church-state issues, he will back them in this one. Weaver v. Massachusetts and Davila v. Davis The first case surrounds a 16-year-old who murdered a 15-year-old in 2003, and his lawyers claim his Sixth Amendment rights were violated and he was given inadequate representation after a court kept his family locked out while a jury was selected and his lawyers did not object. The Davila case involves a Texas gang member convicted of killing a 5-year-old and her grandmother in a shooting. But lawyers claim he was given ineffective counsel, and specifically they question the legal remedies given to capital defendants. Maslenjak v. U.S. Justices will hear the case of an ethnic Serb from Bosnia, who was stripped of U.S. citizenship for lying about how she came to the country. The U.S. Court of Appeals for the 6th Circuit ruled that a naturalized citizen can be stripped of citizenship in a criminal proceeding based on immaterial false statements. Gorsuch's record is unclear on immigration issues, and he only ruled on a few in his time on the 10th Circuit. California Public Employees' Retirement System v. ANZ Securities, Inc. This case involves the question of whether certain class-action securities lawsuits can be barred because they were filed too late. The retirement fund in California has sued various financial institutions over their alleged role in the 2008 collapse of Lehman Brothers. How the justices rule in this case is expected to have serious consequences for institutional investors and also will determine whether putative class members must file individual complaints before the three-year period imposed by Section 13 of the Securities Act has run out. APOLLO COMMERCIAL: Motion to Dismiss Merger Suit Underway --------------------------------------------------------- Defendants' motion to dismiss the complaint in the case captioned, In Re Apollo Residential Mortgage, Inc. Shareholder Litigation, remains pending, Apollo Commercial Real Estate Finance, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. After the announcement of the execution of the merger agreement with Apollo Residential Mortgage, Inc., a Maryland corporation ("AMTG"), two putative class action lawsuits challenging the proposed First Merger (as defined in the AMTG Merger Agreement), captioned Aivasian v. Apollo Residential Mortgage, Inc., et al., No. 24-C-16-001532 and Wiener v. Apollo Residential Mortgage, Inc., et al., No. 24-C-16-001837, were filed in the Circuit Court for Baltimore City, (the "Court"). A putative class and derivative lawsuit was later filed in the Court captioned Crago v. Apollo Residential Mortgage, Inc., No. 24-C-16-002610. Following a hearing on May 6, 2016, the Court entered orders among other things, consolidating the three actions under the caption In Re Apollo Residential Mortgage, Inc. Shareholder Litigation, Case No.: 24-C-16-002610. The plaintiffs have designated the Crago complaint as the operative complaint. The operative complaint includes both direct and derivative claims, names as defendants AMTG, the board of directors of AMTG (the "AMTG Board"), ARI, Arrow Merger Sub Inc., Apollo and Athene Holding Ltd. and alleges, among other things, that the members of the AMTG Board breached their fiduciary duties to the AMTG stockholders and that the other corporate defendants aided and abetted such fiduciary breaches. The operative complaint further alleges, among other things, that the proposed First Merger involves inadequate consideration, was the result of an inadequate and conflicted sales process, and includes unreasonable deal protection devices that purportedly preclude competing offers. It also alleges that the transactions with Athene Holding Ltd. are unfair and that the registration statement on Form S-4 filed with the SEC on April 6, 2016 contains materially misleading disclosures and omits certain material information. The operative complaint seeks, among other things, certification of the proposed class, declaratory relief, preliminary and permanent injunctive relief, including enjoining or rescinding the First Merger, unspecified damages, and an award of other unspecified attorneys' and other fees and costs. On May 6, 2016, counsel for the plaintiffs filed with the Court a stipulation seeking the appointment of interim co-lead counsel, which stipulation was approved by the Court on June 9, 2016. Defendants' motions to dismiss have been fully briefed, and oral argument was held on December 8, 2016. No further updates were provided in the Company's SEC report. ARCTIC EXPRESS: "Brewer" Seeks OT Pay, Sues Over Missed Breaks -------------------------------------------------------------- Rodney Brewer on behalf of himself and all others similarly situated, Plaintiff, v. Arctic Express, LLC and Does 1 through 20, inclusive, Defendants, Case No. RG17856090, (Cal. Super., April 10, 2017), seeks disgorgement of profits, restitution, restoration of costs incurred, sums or property unlawfully withheld and/or losses caused by the policy and practice of failing to pay all minimum wage, overtime and double-time compensation owed, compensatory damages representing the amount of unpaid compensation owed for missed meal periods and missed rest breaks, compensatory damages for failing to provide accurate and itemized wage statements, waiting time penalties and reasonable attorneys' fees and costs in violation of the California Business and Professions Code and the California Labor Code as well as and applicable Industrial Welfare Commission Wage Orders. Arctic Express distributes frozen food deserts for Nestle throughout California, where Brewer worked for Defendants as a Route Sales Driver from approximately 2006 to April 2016. Plaintiff is represented by: Eric A. Grover, Esq. Robert W. Spencer, Esq. KELLER GROVER LLP 1965 Market Street San Francisco, CA 94103 Telephone: (415) 543-1305 Facsimile: (415)543-7861 Email: eagrover@kellergrover.com rspencer@kellergrover.com - and - Scot Bernstein, Esq. LAW OFFICES OF SCOT D. BERNSTEIN, APC 101 Parkshore Drive, Suite 100 Folsom, CA 95630 Telephone: (916)447-0100 Facsimile: (916)933-5533 Email: swampadero@sbemsteinlaw.com - and - Matthew Mellen, Esq. MELLEN LAW FIRM One Embarcadero Center, Fifth Floor San Francisco, CA 94111 Telephone: (415) 315-1653 Facsimile: (415)276-1902 Email: email@mellenlawfirm.com ARIZONA: Dismissal of Negligence Claims Over 2013 Fire Affirmed --------------------------------------------------------------- The Arizona Court of Appeals affirmed the superior court's ruling dismissing negligence claims against the State of Arizona and the Arizona State Forestry Division in the appeals cases captioned, GORDON ACRI, et al., Plaintiffs/Appellants, v. STATE OF ARIZONA, et al., Defendants/Appellees; and CHUCK OVERMYER and NINA BILL OVERMYER, both as individuals and as representatives of a class consisting of all of the residents of Yarnell, Glen Ilah, Peeples Valley, and the surrounding geographical area who suffered damages as a result of the Yarnell Hill Fire, Plaintiffs/Appellants, v. STATE OF ARIZONA, a public entity; and the ARIZONA STATE FORESTRY DIVISION, a public entity, Defendants/Appellees, Case Nos. 1 CA-CV 15-0349, 1 CA-CV 15-0350 Consolidated (Ariz. App.). On the afternoon of June 30, 2013, the Yarnell Hill Fire burned out of control, killing 19 local firefighters and destroying structures and property throughout Yarnell. The Residents asserted civil claims against the State, alleging that the State had negligently managed the firefighting efforts, negligently failed to protect Yarnell from the fire, and negligently failed to provide a timely evacuation notice, all leading to the destruction of their property. On the State's motion, the superior court dismissed the complaints on the basis that the State did not owe the Residents a duty as required to state a cause of action for negligence. On appeal, the Residents argue "sound public policy imposed a duty of care on the State to protect Yarnell and its people." In an Opinion dated March 30, 2017 available at https://is.gd/UuyxQ7 from Leagle.com, the appeals court held that the superior court correctly concluded that the State did not owe a duty to protect the Residents' property against naturally caused wildfires. The only claim remaining in Plaintiff's Second Amended Complaint is his First Cause of Action for sexual harassment, discrimination and retaliation. Gordon Acri, et al. are represented by Craig A. Knapp, Esq. -- knapp@krattorneys.com -- Dana R. Roberts, Esq. -- roberts@krattorneys.com -- and -- David L. Abney, Esq. -- abney@krattorneys.com -- KNAPP & ROBERTS, PC State of Arizona, et al. are represented by: Brock J. Heathcotte, Esq. Daniel P. Schaack, Esq. 1275 West Washington Street Phoenix, AZ 85007-2926 Tel: (602) 542-5025 ARKANSAS: Ruling in Suit vs. Police Retirement System Reversed -------------------------------------------------------------- The Arkansas Supreme Court reversed the circuit court's denial of appellants' motion for summary judgment and dismissed appellees' complaint in the appeals case captioned, ARKANSAS STATE POLICE RETIREMENT SYSTEM AND KIRK BRADSHAW, JOHN W. ALLISON, BRANT TOSH, BLAKE WILSON, DONNIE UNDERWOOD, JOE MILES, AND DR. JOHN SHELNUTT, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF TRUSTEES OF THE ARKANSAS STATE POLICE RETIREMENT SYSTEM, Appellants, v. GLENN SLIGH, MYRON HALL, RICKY BRIGGS, LOYD FRANKLIN, MACK THOMPSON, CLEVE BARFIELD, AND OTHERS SIMILARLY SITUATED, Appellees, Case No. CV-16-304 (Ark.). On January 19, 2012, appellees Glenn Sligh, Myron Hall, Ricky Briggs, Loyd Franklin, Mack Thompson, Cleve Barfield filed a class-action complaint against Arkansas State Police Retirement System and Kirk Bradshaw, John W. Allison, Brant Tosh, Blake Wilson, Donnie Underwood, Joe Miles, and Dr. John Shelnutt, in their official capacities as members of the Board of Trustees of the Arkansas State Police Retirement System, on behalf of certain members of the Arkansas State Police Retirement System Deferred Option Plan. An amended complaint was filed on April 20, 2012, and a second amended complaint was filed on June 6, 2013. Appellees alleged that the class, which was composed of Arkansas State Police Officers, had elected to retire into the DROP in reliance on legislation currently in place at the time of their election that had established a minimum rate of return on their DROP retirement accounts. The statutory provision at issue, Arkansas Code Annotated section 24-6-304(b)(1) (Repl. 2000), originally stated that members were to earn interest at a rate of two percentage points below the rate of return of ASPRS's investment portfolio, but no less than the actuarially assumed interest rate as certified by the actuary, which was 7.75% at the time. The Trustees voted to reduce the interest rate on DROP balances to 3.25% effective July 1, 2009, the start of the 2010 fiscal year alleging that Act 404 of 2007 was unconstitutional as applied to those officers who had elected to enter the DROP prior to March 22, 2007, because it impaired their contractual rights under article 2, Section 17 of the Arkansas Constitution and article 1, Section 10 of the United States Constitution. Alternatively, appellees requested a writ of mandamus or injunctive relief compelling the Trustees to comply with their statutory and fiduciary duties by accurately providing interest on each member's DROP account consistent with the law in effect at the time the member entered the DROP. Appellees also prayed that attorney's fees and costs be awarded. On August 11, 2014, appellees filed a motion for summary judgment, arguing that there were no material facts in dispute and that they were entitled to judgment as a matter of law. Appellees contended that appellants were not entitled to sovereign immunity because (1) the interest payments in the DROP come from the ASPRS trust fund, not from the state general treasury; (2) the State has waived sovereign immunity in the event of errors in retirement calculations pursuant to Arkansas Code Annotated section 24-6-205; and (3) the State has violated appellees' constitutional rights. On October 6, 2014, appellants filed a response to appellees' motion as well as a cross-motion for summary judgment arguing that appellees' claims against them were barred by sovereign immunity and that appellees had also failed to state a claim pursuant to 42 U.S.C. Section 1983 because ASPRS and its Trustees are not "persons" amenable to suit. The circuit court entered an order on May 27, 2015, granting appellees' motion for summary judgment on all claims and denying appellants' cross-motion. With respect to sovereign immunity, the circuit court specifically found that "the interest money they seek is not a general financial obligation that would cause the legislature to appropriate funds from the state Treasury. Appellees then filed a motion for summary judgment on the issue of damages, requesting that the circuit court order that each of the fifty-one class members should be paid the difference between "the erroneous distribution" and what they should have received based on the interest rates set out in the statute prior to the 2007 amendment. Appellees also argued that they were entitled to costs, attorney's fees, and prejudgment interest. The circuit court entered an order on December 23, 2015, granting summary judgment to appellees. The court awarded damages to each class member consistent with the exhibits that had been provided and eventually agreed upon by the parties. The court also found that appellees were entitled to prejudgment interest at the rate of 6% per annum from the date of each officer's final DROP payment through December 10, 2015. However, the court denied appellees' request for attorney's fees, finding that this claim was barred by sovereign immunity. ASPRS and Trustees appeal from the Pulaski County Circuit Court's order denying their motion for summary judgment and granting summary judgment to appellees. For reversal, appellants argue that (1) the circuit court's denial of their summary-judgment motion should be reversed on the basis that article 5, Section 20 of the Arkansas Constitution immunizes ASPRS and its Trustees from suit; (2) the circuit court erred in holding that appellees stated a claim under 42 U.S.C. Section 1983 because ASPRS and its Trustees are not "persons" subject to suit; (3) alternatively, even if ASPRS and its Trustees are not immune from suit and are "persons" under Section 1983, then appellants are entitled to judgment as a matter of law on appellees' claims; and (4) in the event we affirm the circuit court's ruling on liability, appellees are not entitled to prejudgment interest because their alleged damages were not ascertainable at the time of the event that gave rise to their cause of action. Appellees have also filed a cross-appeal from the circuit court's denial of their request for attorney's fees. In an Opinion dated March 30, 2017 available at https://is.gd/oLzJth from Leagle.com, the Supreme Court held that there is no error in the records as contemplated in section 24-6- 205, and the section does not waive appellants' immunity with respect to appellees' suit because the State intentionally amended the statute regarding the interest paid on DROP accounts, and the Trustees deliberately voted to reduce the interest rate pursuant to that statute. Because the Supreme Court reverse based on appellants' first point on appeal and dismiss appellees' complaint, there is no need to address the remaining points on appeal raised by appellants. Arkansas State of Police Retirement System, et al. are represented by: Leslie Rutledge, Esq. Patricia Van Ausdall Bell, Esq. ARKANSAS ATTORNEY GENERAL Department of Arkansas Heritage, 323 Center St # 200, Little Rock, AR 72201 Tel: (501)682-2007 Glenn Sligh, et al. are represented by: C. Burt Newell, Esq. 211 Hobson Ave., PO Box 1620 Hot Springs, AR 71913 Tel: (501)762-0455 ASTORIA FINANCIAL: Parties Discontinue Merger-Related Litigation ---------------------------------------------------------------- Astoria Financial Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the defendants and the plaintiffs have agreed to voluntarily discontinue the consolidated Merger-related litigation without prejudice and without any costs to any party. Following the announcement of the execution of the Merger Agreement with New York Community Bancorp, Inc., six lawsuits challenging the proposed Merger were filed in the Supreme Court of the State of New York, County of Nassau. These actions were captioned: (1) Sandra E. Weiss IRA v. Chrin, et al., Index No. 607132/2015 (filed November 4, 2015); (2) Raul v. Palleschi, et al., Index No. 607238/2015 (filed November 6, 2015); (3) Lowinger v. Redman, et al., Index No. 607268/2015 (filed November 9, 2015); (4) Minzer v. Astoria Fin. Corp., et al., Index No. 607358/2015 (filed November 12, 2015); (5) MSS 12-09 Trust v. Palleschi, et al., Index No. 607472/2015 (filed November 13, 2015); and (6) The Firemen's Retirement System of St. Louis v. Keegan, et al., Index No. 607612/2015 (filed November 23, 2015). On January 15, 2016, the court consolidated the New York lawsuits under the caption In re Astoria Financial Corporation Shareholders Litigation, Index No. 607132/2015. Each of the lawsuits was a putative class action filed on behalf of the stockholders of Astoria and named as defendants Astoria, its directors and NYCB, or collectively, the defendants. The complaints generally alleged that the directors of Astoria breached their fiduciary duties in connection with their approval of the Merger Agreement because they failed to properly value Astoria and to take steps to maximize value to Astoria's stockholders, resulting in inadequate merger consideration, and improperly agreed to deal protection devices that allegedly precluded other bidders from making a successful competing offer for Astoria. The complaints further alleged that the directors of Astoria approved the Merger through a flawed and unfair sales process tainted by certain alleged conflicts of interest on the part of the Astoria directors. Each of the actions sought, among other things, an order enjoining completion of the Merger and an award of costs and attorneys' fees. Certain of the actions also sought compensatory damages arising from the alleged breaches of fiduciary duty. The defendants believed these actions were without merit. Accordingly, no liability or reserve was recognized in our consolidated statement of financial condition at December 31, 2016 with respect to these matters. On April 6, 2016, the defendants and lead plaintiffs entered into a memorandum of understanding, or the MOU, which provided for the settlement of the consolidated New York lawsuits. The MOU contemplated, among other things, that Astoria would make certain supplemental disclosures relating to the Merger, which supplemental disclosures were made on April 8, 2016 through a filing with the SEC by Astoria on a Current Report on Form 8-K. The settlement contemplated by the MOU was subject to the consummation of the Merger and became null and void and of no further effect upon the termination of the Merger Agreement. In light of the termination of the Merger Agreement and the voidance of the MOU, on February 23, 2017, the defendants and the plaintiffs agreed to voluntarily discontinue the consolidated lawsuits without prejudice and without any costs to any party. Astoria is a Delaware corporation organized in 1993 as the unitary savings and loan holding company of Astoria Bank and its consolidated subsidiaries, or Astoria Bank. AUSTRALIA: Class Action v. Murray-Darling Basin Authority Mulled ---------------------------------------------------------------- Anthony Bunn, writing for The Border Mail, reports that the Border is being warned Murray River flooding could be nastier this spring than last year. Murray River Action Group chairman Richard Sargood said the levels of lakes Dartmouth and Hume boosted the risk of spring flooding. "If we get anything remotely resembling average rainfall from now onwards then we would be looking at the same result as last year," Mr Sargood said. "Given Dartmouth is 78 per cent now and it can fill by 25 per cent across winter in an average year then it is likely to overflow. "So if Dartmouth goes over and Hume goes over then it (flooding) could be longer and higher than last year." Dartmouth at this time in 2016 was 43 per cent full, while Lake Hume is 62 per cent of capacity compared to 23 per cent in the same period last year. The Bureau of Meteorology in its forecast to June 30 notes it is unlikely that Dartmouth will experience above its median rainfall of 238 millimetres in that period. An update for winter is to be published by the bureau on April 27. Rain last spring led to Lake Hume filling and criticism of the Murray-Darling Basin Authority for making large releases in October instead of lowering the level earlier. Mr Sargood said his group had been promised a meeting with the authority's basin officials committee in the first quarter of 2017. "We want some recognition that people living below dams have some legitimate claims in relation to duty of care from dam operators," he said. "They're prepared to sacrifice us for the wider good and we're obviously not happy about that, we want to be compensated or have some management put in place where we've got just as many rights as anyone else." Meanwhile, class legal action against the authority is continuing to simmer. Lawyer David Burstyner -- dburstyner@adleyburstyner.com.au -- a principal of the firm Adley Burstyner, said a freedom of information application targeting the authority was being prepared. He said it would focus on documentation relating to how the releases were handled and policy of maintaining Lake Hume at 99 per cent capacity. Mr Burstyner said it should be lodged in six weeks. The class action may be formalised by the end of winter with Mr Burstyner saying up to 70 flood-affected parties between Albury and Corowa had shown interest. ARMANDO'S DELI: "Linder" Seeks Unpaid Minimum, OT Wages ------------------------------------------------------- Karen Linder and Zulma Gomez, on behalf of themselves and others similarly situated Plaintiff, v. Armando's Deli y Pupuseria Inc., Umberto Maldonado, Armando Maldonado and Nelson Maldonado, Defendants, Case No. 2:17-cv-02045 (E.D. N.Y., April 7, 2017) seeks to recover unpaid minimum wage, unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest, attorneys' fees and costs pursuant to New York Labor Law, Wage Theft Prevention Act and the Fair Labor Standards Act. Armando's Deli y Pupuseria Inc. operates two Salvadoran restaurants at 515 Union Ave., Westbury, NY 10012 and 427 Jerusalem Ave., Uniondale, NY, where Plaintiffs were employed as cooks. Defendants failed to keep full and accurate records of Plaintiff's hours and wages, says the complaint. The Plaintiff is represented by: Louis Pechman, Esq. Vivianna Morales, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue New York, NY 10022 Tel: (212) 583-9500 Fax: (212) 308-8582 Email: pechman@pechmanlaw.com morales@pechmanlaw.com B/E AEROSPACE: Still Faces Class Suits over Rockwell Merger ----------------------------------------------------------- B/E Aerospace, Inc. continues to defend against lawsuits over the company's merger with Rockwell Collins, Inc., B/E Aerospace said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On October 23, 2016, B/E Aerospace entered into an Agreement and Plan of Merger (the "Merger Agreement") with Rockwell Collins, Inc., a Delaware corporation ("Rockwell Collins"), and Quarterback Merger Sub Corp. ("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of Rockwell Collins. In connection with the Merger, three putative class action lawsuits seeking to enjoin the Merger, recover damages, and other relief, were filed by three different purported stockholders of the Company. Two of the lawsuits assert claims against the Company and the members of the Company's Board of Directors and initially sought to expedite proceedings in advance of the stockholder vote; plaintiffs have withdrawn the motion to expedite as moot. The outcome of these lawsuits is uncertain. The third lawsuit asserted claims against the Company, the members of the Company's Board of Directors, Rockwell Collins and Merger Sub; plaintiff in that case moved to enjoin the Merger but has since withdrawn the motion and dismissed the case with prejudice as to the named plaintiff. B/E Aerospace, Inc. is a manufacturer of cabin interior products for commercial aircraft and for business jets. BANK OF NEW YORK: 2 Suits over Depositary Receipts Pending ---------------------------------------------------------- The Bank Of New York Mellon Corporation continues to defend two consolidated class action lawsuits related to depositary receipts, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. Between late December 2015 and February 2016, four putative class action lawsuits were filed against BNY Mellon asserting claims relating to BNY Mellon's foreign exchange pricing when converting dividends and other distributions from non-U.S. companies in its role as depositary bank to Depositary Receipt issuers. The claims are for breach of contract and violations of ERISA. The lawsuits have been consolidated into two suits which are pending in federal court in the Southern District of New York. BANK OF OKLAHOMA: Wants Brogdon Bonds Class Action Dismissed ------------------------------------------------------------ Jack Casey, writing for Bond Buyer, reports that Bank of Oklahoma Financial is arguing that a class action suit alleging it failed as a trustee for bonds tied to fraud allegedly committed by Christopher Brogdon and Dwayne Edwards is baseless and should be dismissed. BOKF filed its motion to dismiss the case in the U.S. District Court for the Northern District of Oklahoma. The bank, through its lawyers, said in the motion that the ten plaintiffs did not state a cause of action in their complaint and instead relied "on baseless innuendo about the behavior of one of BOKF's rogue employees occurring in a totally different context at a different point in time." BLACKROCK: Faces Suit Over Self-dealing in 401K Plan ---------------------------------------------------- Robert Steyer at Pensions and Investments reports a former BlackRock (BLK) employee has sued the company, alleging that BlackRock's 401(k) plan executives breached their fiduciary duties by emphasizing proprietary investments that underperformed comparative funds and which also charged higher fees. The plan's executives "selected and retained high-cost and poor- performing investment options with excessive layers of hidden fees that are not included in the fund expense ratios," said the lawsuit by Charles Baird, a former employee who is a current participant in the BlackRock Retirement Savings Plan. The lawsuit was filed in U.S. District Court in San Francisco. The complaint, Baird vs. BlackRock Institutional Trust Co. et al., seeks class-action status. "Almost all of the fund options offered to BlackRock employees and participants are funds affiliated with BlackRock Inc. (BLK)," according to the complaint, which argued that "several" proprietary funds should have been removed. Failure to do so represented "imprudent and disloyal monitoring" of investments -- a breach of fiduciary duty under the Employee Retirement and Income Security Act, the lawsuit said. A "prudent and loyal" fiduciary would have removed them, the suit said. The 401(k) plan had about USD1.5 billion in assets and 9,700 participants as of Dec. 31, 2015, according to the lawsuit. It said about 93% of plan assets were invested in BlackRock- affiliated funds. The fees charge by BlackRock's proprietary funds "were higher than the fees charged by comparative funds with like assets and similar investment strategies," the lawsuit alleged. BlackRock spokesman Farrell Denby said: "The suit is without merit and contains a number of factual inaccuracies. We will vigorously defend against the action. BlackRock is committed to making the best decisions in the interest of our plan participants, continually looking for ways to help them secure a better financial future." BLOOMIN' BRANDS: "Reining" Seeks Employee Benefits, Overtime Pay ---------------------------------------------------------------- Kyley Reining, individually and on behalf of others similarly situated, Plaintiffs, v. Bloomin' Brands, Inc. and Carrabba's Italian Grill, LLC, Defendants, Case No. 8:17-cv-00820 (M.D. Fla., April 7, 2017) seeks damages including but not limited to unpaid wages and unpaid overtime wages, as applicable, liquidated damages, employer's share of federal insurance contributions and federal unemployment tax, state unemployment insurance and any other required employment taxes to be paid by Defendants, pre- judgment interest and post-judgment interest as provided by law, appropriate equitable and injunctive relief to remedy violations, reasonable incentive award for the Plaintiff to compensate her for the time and effort she has spent protecting her interests, attorneys' fees and costs of the action and such other injunctive, equitable and other relief under the Fair Labor Standards Act. Bloomin' Brands, Inc. is the parent corporation of Carrabba's Italian Grill, LLC, who owns and/or operate Carrabba's restaurants. From January 2013 to May 2015, Reining was employed by Defendants as a kitchen manager. [BN] The Plaintiff is represented by: Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Hiway Boca Raton, FL 33432 Telephone: (561) 447-8888 Email: gshavitz@shavitzlaw.com - and - Michael Palitz, Esq. 830 3rd Avenue, 5th Floor New York, NY 10022 Telephone: (800) 616-4000 Email: mpalitz@shavitzlaw.com BOBBY HOPSON: Molina Class Certification Bid Denied --------------------------------------------------- In the lawsuit captioned ANTHONY MOLINA, on behalf of himself and all others similarly situated, the Plaintiff v. BOBBY HOPSON, JR., et al., the Defendants, Case No. 4:15-cv-00334-KGB (E.D. Ark.), the Hon. Judge Kristine G. Baker denied without prejudice Mr. Molina's motion for class certification and supplemental motion for class certification on March 30, 2017. The Court said, "The analysis for a Fourth Amendment claim for unlawful seizure or search is certainly fact-intensive. This is particularly true when considering the potential immunities available to different defendants in this matter: statutory, qualified, and legislative. Defendants note that Mr. Molina "cannot even set forth one class of people in his motion to certify, instead having to set forth his best argument: four distinct groups." Mr. Molina has submitted in his supplemental motion for class certification what he purports to be the names of all proposed class members. However, this supplemental information simply includes names and addresses, the date and reason the individuals were pulled over, the alleged officer's name, and the fine that was paid for those individuals that paid a fine. This supplemental motion does not include information as to what resolution was reached for each individual or whether, if convicted or sentenced after a plea, the individual's conviction has been invalidated as required by Heck. Without this information and without any record information to separate those proposed class members whose claims are Heck-barred from those whose claims are not, the Court finds that Mr. Molina has not met his burden at this stage to show that the proposed class meets the requirements of commonality, typicality, and numerosity." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=jXA9WeYL BOFI HOLDING: June 2 Lead Plaintiff Motion Deadline Set ------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on April 11 announced the filing of a class action lawsuit on behalf of purchasers of BofI Holding, Inc. securities (BOFI) from April 28, 2016 through March 30, 2017, inclusive (the "Class Period"). The lawsuit seeks to recover damages for BofI investors under the federal securities laws. To join the BofI class action, go to http://rosenlegal.com/cases- 1099.html or call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) BofI was engaged in unlawful conduct; (2) such conduct would subject BofI to heightened regulatory scrutiny and potential criminal sanctions when it became known; and (3) consequently, BofI's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 2, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://rosenlegal.com/cases-1099.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767- 3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. BOK FINANCIAL: May 15 Final Settlement Approval Hearing Set ----------------------------------------------------------- The Final hearing to consider approval of the settlement in the case, Ratzlaff v. BOKF, N.A., Case No. CJ-2015-00859, pending before the District Court in and for Tulsa County, State of Oklahoma, is set for May 15, 2017 at 10:00 a.m. BOK Financial Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that on March 3, 2015, BOKF, NA and the Company were named as defendants in a class action alleging (1) that the manner in which the Bank posted charges to its consumer deposit accounts was improper from September 1, 2011 through July 8, 2014, the period after which the Bank and BOK Financial had settled a class action respecting a similar claim, and before it made changes to its posting order and (2) that the manner in which the Bank posted charges to its small business deposit accounts was improper from July 9, 2009 through July 8, 2014. Following mediation of the case in August 2016, the Class Representatives and the Bank reached a settlement of the action for $7.8 million. The settlement is subject to the approval of the Court which the Parties to the Action expect. The Company has funded the settlement. The Settlement offers payments to eligible customers who paid Overdraft Fees to Bank of Oklahoma, N.A., Bank of Arkansas, N.A., Bank of Albuquerque, N.A., Bank of Arizona, N.A., Bank of Kansas City, N.A.,* Bank of Texas, N.A., and Colorado State Bank and Trust, N.A. from September 1, 2011 through July 8, 2014. Additional information on the case is available at: http://www.bokfoverdraftsettlement.com/ Class Counsel is: E. Adam Webb, Esq. Matthew C. Klase, Esq. Webb, Klase & Lemond, LLC 1900 The Exchange, S.E. Suite 480 Atlanta, GA 30339 Defendants' counsel is: Frederic Dorwart, Esq. Sarah Poston, Esq. Frederic Dorwart, Lawyers 124 East 4th Street Tulsa, OK 74103 BOK Financial is a financial holding company. BOK FINANCIAL: Bondholders' Class Suit Pending ---------------------------------------------- BOK Financial Corporation is defending a class action lawsuit filed by bondholders, BOK said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On August 26, 2016, the Bank was sued in the United States District Court for New Jersey by two bondholders in a putative class action on behalf of all holders of the bonds alleging the Bank participated in the fraudulent sale of securities by the principals. On September 14, 2016, the Bank was sued in the District Court of Tulsa County, Oklahoma by 19 bondholders alleging the Bank participated in the fraudulent sale of securities by the principals. Management has been advised by counsel that the Bank has valid defenses to the claims. The Bank expects the Court ordered payment plan will result in the payment of the bonds by the principals. Accordingly, no loss is probable at this time and no provision for loss has been made. If the payment plan does not result in payment of the bonds, a loss could become probable. A reasonable estimate cannot be made at this time though the amount could be material to the Company. BOK Financial is a financial holding company. BRIGHTON TOWNSHIP: Court Denies Motion to Dismiss Sewer Lawsuit --------------------------------------------------------------- WHMI reports that a class-action lawsuit against Brighton Township filed by a group of residents who believe they are paying exorbitant sewer rates will move forward. A motion made by the township to dismiss the lawsuit was denied in Livingston County Circuit Court on April 6. Brighton Township residents Dennis Shoner and Barbara Potocki are representing "a class of similarly situated persons and entities", according to the lawsuit. Resident Bob Potocki is among those represented in the suit and says the motion hearing was "tense, but dignified". Potocki says the group's attorneys " . . . . made the plain and clear argument that this was the proper place, time, and judge." The lawsuit challenges charges currently assessed in relation to the construction, operation and maintenance of the township's Sanitary Sewer System. It further states that the overcharges are "unlawful" and "are motivated by a revenue-raising and not a regulatory purpose". The problem, as both the township and the affected residents see it, is that the sewer system was built in 2003 based on projections which showed a significant population increase, and therefore a major increase in the number of sewage treatment system users based on new homes coming in. However the recession hit a few years later, and the township's population stagnated. Because there were few new hookups, the system has been running at about 40% capacity. The plaintiffs are seeking a refund of all overcharges collected and that the township pay into a common fund to benefit those represented in the lawsuit. Potocki says, "There is a long way between today and justice. . . but it is a much shorter road than we had yesterday." The case will return to court April 20th for a class certification motion hearing on behalf of the plaintiffs.[GN] CANADA: Afghanistan War Veterans' Pension Class Action Ongoing -------------------------------------------------------------- Murray Brewster, writing for CBC News, reports that the sleepy plains and chalky ridges east of Arras, France, where thousands of Canadians fought and died 100 years ago, may seem a world away from the politics of Ottawa, but it wasn't on April 9. Prime ministers, presidents, princes, soldiers, schoolchildren and descendents of those who fought at Vimy Ridge gathered at the foot of the country's soaring memorial to mark the centennial since the sacrifice. Back home, however, some veterans of subsequent wars took to social media to express their frustration the Liberal government has yet to live up to a key 2015 campaign promise of returning them to a system of lifetime pensions, as opposed to lump sum payments. "I find it ironic that they're celebrating the Battle of Vimy Ridge when they're also fighting veterans in court," Glen Kirkland, a former corporal wounded in Kandahar in 2008, said in an interview with CBC News from his home in Manitoba. He is referring to a class-action lawsuit brought by former soldiers from the Afghanistan War, who claim they are being discriminated against because the current system is not as generous as the one set up for troops who returned from Vimy and the First World War. "They've made promises and they're not living up to them. They have to bring back the pension," said Mr. Kirkland. "What better way to honour the sacrifices of Vimy than to actually look after the veterans of today." The Liberals made a return to the lifetime system of pensions one of their signature promises of the 2015 election and last month's federal budget re-iterated that pledge but did not put any money behind it -- for the moment. The government is promising some sort of announcement later this year, but officials, who spoke on background after the budget was released, said the plan would not meet the demand from some veterans' groups for equality with the old pension act system. Last year, Prime Minister Justin Trudeau's government poured $5.7 billion into better veterans benefits and care. In the latest budget, tabled last month, $600 million more -- a lot of it on education. There was also a top-up of the controversial lump sum payment that Kirkland and others want to see replaced. There was a reminder on April 9 that Canada is not the only country facing frustrated veterans from modern wars. "We have all tried to improve what we do for veterans in different ways," said Michael Fallon, the British defence secretary. In the U.K., much like Canada, homelessness among ex-soldiers and mental health service needs are among the major issues of public policy debate. "We need to keep thinking as governments as to how we organize that help and make sure those who need it can get it," Mr. Fallon told CBC News Mr. Trudeau's speech on April 9 was long on the symbolism, sacrifice and values. He quoted from the letter of soldier Pte. William Henry Bell, a 20-year-old killed at Vimy, who wrote home to his parents two days before the battle. The simple of message of home, family and comfort resonated for Mr. Trudeau, who held it up as an example of dignity in the face of fate. "Friends and honoured guests, let us hold to the grace of William Henry Bell. To the grace of the ones who stood by their friends, through unimaginable hardship. Through death itself," he told the thousands who gathered on the green slopes. The soldiers who fought and died there "were Canadians. They were valiant, beyond measure." Mr. Trudeau also used it as an appeal for peace, coming as it did amid rising tension with Russia following the volley of cruise missiles fired by the U.S. into Syria. "As I see the faces gathered here -- veterans, soldiers, caregivers, so many young people -- I can't help but feel a torch is being passed," Mr. Trudeau said. "One hundred years later, we must say this, together. And we must believe it: Never again." CAPNIA INC: Faces "Garfield" Class Suit over Merger --------------------------------------------------- Capnia, Inc., in a Form 8-K Report filed with the Securities and Exchange Commission on February 28, 2017, made supplemental disclosures to the definitive proxy statement on Schedule 14A, filed by Capnia with the United States Securities and Exchange Commission on February 10. On December 22, 2016, Capnia, Essentialis, Inc., Company E Merger Sub, Inc., a wholly-owned subsidiary of Capnia ("Merger Sub"), and Neil Cowen, in his capacity as stockholders' representative, entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which, if the transactions contemplated by the Merger Agreement are consummated, Merger Sub will merge with and into Essentialis, with Essentialis surviving the Merger as a wholly owned subsidiary of Capnia (the "Merger"). On February 16, 2017, a purported stockholder class action lawsuit captioned Garfield v. Capnia, Inc., et al., Case No. C17-00284 was filed in Superior Court of the State of California, County of Contra Costa against Capnia and certain of its officers and directors (the "Lawsuit"). The Lawsuit alleges, generally, that Capnia's directors breached their fiduciary duties to Capnia stockholders by seeking to sell control of Capnia through an allegedly defective process, and on unfair terms. The Lawsuit also alleges that defendants have failed to disclose all material facts concerning the proposed Merger to stockholders. The Lawsuit seeks, among other things, equitable relief that would enjoin the consummation of the proposed Merger, compensatory and/or rescissory damages, and attorneys' fees and costs. Capnia denies the allegations of the Lawsuit, believes that the Definitive Proxy Statement disclosed all material information, and denies that any supplemental disclosure is necessary. * * * Redwood City, Calif., Capnia, Inc. (NASDAQ:CAPN), on March 8, 2017, announced that it has completed its previously-announced merger with privately-held Essentialis, Inc. effective March 7. Capnia's lead therapeutic asset, diazoxide choline controlled- release (DCCR), a once-daily oral tablet, is entering Phase II/III development for the treatment of Prader-Willi Syndrome (PWS) in 2017. Concurrent with the closing of the merger, prior investors in Essentialis, as well as new investors, invested $10 million in newly-issued Capnia shares of common stock at $0.96 per share. CEMPRA INC: Faces 3 Securities Actions in North Carolina -------------------------------------------------------- Cempra, Inc. is defending three securities class action lawsuits filed in North Carolina, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. The Company said, "On November 4, 2016, a securities class action lawsuit was commenced in the United States District Court, Middle District of North Carolina, Durham Division, naming our company and certain of our officers as defendants, and alleging violations of the Securities Exchange Act of 1934 in connection with allegedly false and misleading statements made by the defendants between May 1, 2016 and November 1, 2016 (the "Class Period"). The plaintiff seeks to represent a class comprised of purchasers of our common stock during the Class Period and seeks damages, costs and expenses and such other relief as determined by the Court. "Two substantially similar lawsuits were filed in the United States District Court, Middle District of North Carolina on November 22, 2016 and December 30, 2016, respectively. "We believe we have meritorious defenses and intend to defend the lawsuits vigorously. It is possible that similar lawsuits may yet be filed in the same or other courts that name the same or additional defendants." Cempra is a clinical-stage pharmaceutical company focused on developing differentiated anti-infectives for the acute care and community settings to meet critical medical needs in the treatment of infectious diseases. CENTRAL MILLS: Pocket Frenz Asserts Breach of Contract ------------------------------------------------------ Pocket Frenz LLC, individually and on behalf of all others similarly situated, Plaintiff, v. Central Mills, Inc. and Charles Tebele, Defendants, Case No. 651925/2017, (N.Y. Sup., April 10, 2017), seeks damages for Defendants' breach of contract, preliminary and thereafter a permanent injunction preventing Defendants from continuing to benefit from Plaintiff's trademark and from selling products bearing Plaintiff's trademark. Plaintiff is a marketer and owner of trademarks and patents for apparel bearing a certain novelty design and is the exclusive owner of the trademark "POCKET FRENZ" (R), U.S. Patent No. 8,910,314. Plaintiff licensed Defendants to sell Pocket Frenz products only in the U.S. in exchange for payment of certain amounts of royalties. To date, Defendants owe Plaintiff $65,625 in unpaid past due minimum royalties, plus interest. Defendants also have made use of Plaintiff's trademark and patent and sold products containing said marks in the United Kingdom. [BN] Plaintiff is represented by: Samuel H. Rudman, Esq. Francis P. Karam, Esq. 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Fax: (631) 367-1173 CHIPOTLE MEXICAN: Gets Favorable Ruling in Misclassification Case ----------------------------------------------------------------- Richard J. Simmons, Esq. -- rsimmons@sheppardmullin.com -- Brian D. Murphy, Esq. -- bmurphy@sheppardmullin.com -- Lisa M. Lewis, Esq. -- lmlewis@sheppardmullin.com -- Matthew A. Tobias, Esq. -- mtobias@sheppardmullin.com -- of Sheppard, Mullin, Richter & Hampton LLP, in an article for The National Law Review, wrote that the Court's opinion in Scott v. Chipotle Mexican Grill demonstrates how employers can successfully combat class action claims that employees were misclassified as exempt. The successful defense of the class certification motion relied chiefly on deposition and declaration testimony to highlight inconsistencies, variations, and individualized inquiries that prevented resolution of the claims at issue on a class-wide basis. Chipotle Mexican Grill, Inc. defeated certification of six separate classes involving allegations that the job position of "Apprentice" was misclassified as exempt for purposes of paying overtime wages. They also successfully moved to decertify a collective action under the Fair Labor Standards Act ("FLSA") involving the same claims for 516 opt-in Apprentices nationwide. The case was brought by seven individuals who had worked as Apprentices in various Chipotle stores. The named plaintiffs worked in six states while the opt-in plaintiffs worked in 37 states. Chipotle considers the Apprentice position a salaried, management-level position and classified the position as exempt. The plaintiffs in the lawsuit claimed that they, and the other Apprentices employed in their respective states, perform insufficient managerial work and that, as a result, all of these Apprentices were misclassified as exempt entitling them to overtime wages. In order to successfully certify the six state-law classes of Apprentices, the plaintiffs were required to demonstrate that questions of law or fact were common to the Apprentices who they sought to represent and that a class action was the superior method to adjudicate their claims. Through plaintiffs' own deposition testimony, deposition testimony from numerous other Apprentices, and declaration testimony, Chipotle demonstrated to the Court that individualized inquiries as to each Apprentice's authority and job duties were necessary to determine if the exempt classification was appropriate. Thus, there was no common proof and class adjudication was inappropriate. During the various plaintiff depositions, Plaintiff Apprentices we shown to be taking conflicting positions. For instance, one plaintiff testified that he did not have any say in hiring employees, developing employees or setting work schedules. However, that very same plaintiff then admitted that he did engage in hiring, evaluating employee performance and scheduling. Another plaintiff testified that she spent the majority of her time on the floor making food. However, that same plaintiff testified that she was "running a good store" as an Apprentice, was involved in marketing, made hiring recommendations, drafted schedules and assisted with her store's budget. Similar conflicts surfaced in the testimony of other plaintiffs as well as many of the opt-in plaintiffs that showed they were not similarly situated. These inconsistent accounts by the plaintiff and opt-ins demonstrated that Apprentices performed their duties in dissimilar ways and had varied authority that required individual, rather than collective analysis. The Court also noted that differences in the structure of Chipotle locations, sales volume and managerial style also affected the amount of time Apprentices spent engaged in exempt managerial and administrative duties. Some locations have a General Manager or other management-level employee who is responsible for one or more stores that impacts the level of decision-making of an Apprentice at the same location. Yet, other locations have no such positions and are managed solely by Apprentices. Moreover, locations with higher sales volumes tend to have larger staffs. Apprentices at those locations engaged in more managerial activities such as hiring, discipline, training and supervision than Apprentices at stores with lower sales volumes. Because this too factors into whether and to what extent any individual Apprentice was engaged in exempt job duties, the Court concluded that proof of the Apprentices' claims would not overlap and, thus, does not meet the class certification standard regarding common questions of law or fact. As for the FLSA collective action, 516 Apprentices opted-in to join with the plaintiffs in their claims. In order to determine whether such a collective action could be maintained, the Court had to decide whether those Apprentices who opted-in were similarly situated to the plaintiffs. This included a consideration of disparate factual and employment settings of individual plaintiffs, Chipotle's defenses, and procedural fairness. With respect to the disparate employment settings, the Court once again acknowledged the different levels and amount of authority each Apprentice might have in exercising tasks. The Court also observed that such disparities in job duties would permeate the job position because the 516 opt-ins came from 37 states and covered nine geographic regions. Such disparities were highlighted, in part, by the deposition testimony of an Apprentice who worked in two different states and testified to vastly different experiences engaging in management-level duties in those states. Chipotle also asserted affirmative defenses arguing that some Apprentices were exempt under the "executive" exemption and others were exempt under a combination of the "executive" exemption and "administrative" exemption. Because of the inconsistencies in the testimony of plaintiffs as well as the testimony from the opt-in plaintiffs, the Court determined that it would be difficult for Chipotle to rely on "representative proof" in asserting these defenses. The Court opined that, to find otherwise would reduce the similarly situated requirement "to a mere requirement that plaintiffs share an employer, a job title, and a professed entitlement to additional wages." Because such a standard falls far below what is required, the Court determined that the FLSA collective action that was conditionally certified in 2013 could not be maintained and granted Chipotle's motion to decertify the collective action. It is apparent from the Court's opinion that the testimony presented was given significant weight in making its determination. Thus, employers who are able to highlight variations in job duties that are determinative of exempt status and articulate the necessity for individualized inquiries in misclassification cases should have a better chance of persuading a judge that class and collective certification is not appropriate. CITIBANK NA: Court Ruling at Odds with Recent SCOTUS Opinions ------------------------------------------------------------- David Faustman, Esq. -- dfaustman@foxrothschild.com -- of Fox Rothschild LLP, in an article for JDSupra, wrote that the California Supreme Court has once again deviated from what many view as clear precedent of the U.S. Supreme Court concerning the enforcement of arbitration agreements. The California court decided McGill v. Citibank, N.A., holding that state "public policy" precludes the enforcement of arbitration agreements where a class sues for "public injunctive relief" under Business and Professions Code Sec. 17200, California's much abused "unfair competition" statute. This decision comes on the heels of Iskanian v. CLS, in which the California court held that a class waiver in an arbitration agreement was unenforceable to prevent a representative action under the Private Attorneys General Act, again citing "public policy." The McGill and Iskanian decisions are at odds with recent SCOTUS opinions such as ATT Mobility v. Concepcion, and American Express Co. v. Italian Colors. In the Italian Colors case, the high court specifically rejected state "public policy" as any kind of exception to the sweeping preemption of the Federal Arbitration Act ("FAA"). California has been in a running dog fight with the FAA since 1987. In that year, SCOTUS decided Perry v. Thomas, in which Justice Thurgood Marshal upheld the FAA under the Commerce and Supremacy clauses, and slapped down California's attempt to undermine arbitration agreements. Thirty years later, California courts remain determined to block arbitration under PAGA and Section 17200 in the face of otherwise enforceable arbitration agreements. Also, with the swearing in of Neil Gorsuch, SCOTUS returned to its full complement of nine justices. Look for the high court to grant review of California and Ninth Circuit cases that follow McGill and Iskanian in the next couple of years with an eye toward overturning those decisions. In the meantime, companies should continue to include waivers of class and representative actions in their arbitration agreements with consumers and employees, noting that the waivers are enforceable to the extent permitted by applicable law. CITIZENS BANK: "Fultz" Files Suit Over Excessive Overdraft Fees --------------------------------------------------------------- Christopher Fultz, on behalf of himself and all others similarly situated, Plaintiffs v. Citizens Bank, N.A., Defendant, Case No. 1:17-cv-00140 (D.R.I., April 7, 2017) seeks damages including twice the amount of usurious interest paid, prejudgment interest, costs and disbursements incurred in connection with this action, including reasonable attorneys' fees, expert witness fees, other costs, and such other relief for violation of the National Bank Act. Plaintiff maintains a bank account with the Defendant and accuses the latter of excessively charging overdraft Fees. Such fee was for $6.99 and was raised to $30.00 on March 7, 2016. [BN] The Plaintiff is represented by: Anthony R. Leone, Esq. LEONE LAW LLC 1345 Jefferson Boulevard Warwick, RI 02886 Telephone: (401) 921-6684 Facsimile: (401) 921-6686 Email: aleone@leonelawllc.com - and - Jeff M. Ostrow, Esq. Jonathan M. Streisfeld, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG One West Las Olas Blvd., Ste. 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 Jeffrey D. Kaliel TYCKO & ZAVAREEI LLP 2000 L Street, N.W., Suite 808 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 Email: jkaliel@tzlegal.com COLLECTO INC: Faces TCPA Class Action in California --------------------------------------------------- Northern California Record reports that a Butte County consumer has filed a class-action lawsuit against Collecto Inc. and up to 10 of its employees and agents, citing alleged violation of telephone harassment statutes in trying to collect a debt. Jenni Hodges filed a complaint on behalf of all others similarly situated on April 3 in the U.S. District Court for the Eastern District of California against the defendants alleging that they called the plaintiff several times in an attempt to collect an alleged debt, violating the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that, in February 2016, she suffered damages from receiving several collection calls on her cellular telephone. The plaintiff holds Collecto responsible because it allegedly kept on calling the plaintiff on her cellular telephone using an automatic telephone dialing system despite her request to stop calling. The plaintiff requests a trial by jury and seeks $500 in statutory damages, $1,500 in treble damages, all legal fees and any other relief as the court deems just. She is represented by Todd M. Friedman, Adrian R. Bacon, and Meghan E. George of the Law Offices of Todd M. Friedman in Woodland Hills. U.S. District Court for the Eastern District of California Case number 2:17-cv-00706-JAM-CMK COLOSSAL CONTRACTORS: "Ramos" Suit Seeks Overtime Pay ----------------------------------------------------- Carlos Ramos, on behalf of himself and all others similarly situated Plaintiffs, v. Colossal Contractors Inc., Case No. 8:17- cv-00961, (D. Md., April 6, 2017), seeks to recover unpaid back wages, overtime pay, liquidated damages, treble damages, reasonable attorney's fees and costs under the federal Fair Labor Standards Act of 1938, Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law. Ramos worked as a painter for the Defendants at their construction sites in Maryland and Virginia. [BN] Plaintiff is represented by: James E. Rubin, Esq. RUBIN EMPLOYMENT LAW FIRM, PC 11 North Washington Street, Suite 520 Rockville, MD 20850 Telephone: (301) 760-7914 Facsimile: (301) 838-0322 Email: jrubin@rubinemploymentlaw.com CORIZON HEALTH: To Settle Suit Over Prisoners' Untreated Hernias ---------------------------------------------------------------- Mary Ellen Klas at Bradenton reports about 1,800 current and former Florida prison inmates who were denied medical care for hernias will be entitled to divide USD1.7 million in damages from a class-action lawsuit under a conditional settlement agreed to by the Department of Corrections and its former prison health-care provider, Corizon, and filed in federal court in Tallahassee last week. The suit was brought by the Florida Justice Institute and the Coral Gables law firm of Kozyak Tropin & Throckmorton in September 2015 on behalf of three inmates. It alleged Corizon and the agency violated the Eighth Amendment prohibition against cruel and unusual punishments by denying the inmates medical care in an effort to save money. The damages will be paid by Corizon, but the settlement agreement also requires the state prison system to adopt a new policy to provide consultations with surgeons for inmates with hernia symptoms in all Florida facilities. "Obviously, the inmates are there for a reason. We are not trying to make their time in detention a country club, but there is a responsibility to provide humane conditions for their incarceration and in this case we achieved a big step in making sure the medical treatment complies with the standard of care in the industry," said Ken Hartman, one of the attorneys for the plaintiffs. U.S. District Court Judge Robert Hinkle gave preliminary approval to the settlement at the March 29 hearing but because several of the affected inmates are residing in other states, the settlement requires that their state attorneys general be notified and given an opportunity to object to the agreement. Hinkle said he would enter a final an order in 100 days. Corizon would not comment on the settlement, citing the fact that it had not been finalized. Ashley Cook, spokesperson for the Florida Department of Corrections, would not comment on the specifics of the agreement. "The health and safety of our inmates is a top priority of the department, and we take any allegations regarding their well-being very seriously," she said, adding: "Corizon no longer provides medical services to the department's inmates.'' But two months after the lawsuit was filed in September 2015, Tennessee-based Corizon announced it would not renew its USD1.1 billion contract with the state to provide healthcare to an estimated 74,000 of the inmates in the state's prison system. In February 2015, FDC was ordered to renegotiate the medical contract by Sen. Greg Evers, R-Baker, chairman of the Senate Criminal Justice Committee, after a series of reports in the Miami Herald and other news organizations showed suspicious inmate deaths were covered up or never reviewed and inmate complaints of harmful medical care were dismissed or ignored. In April 2016, Centurion of Florida, LLC, a joint venture between Centene Corporation and MHM Services, Inc., replaced Corizon as the medical provider in Florida's prisons. "The chief goal of this litigation was to reform the way that FDOC treated patients with symptomatic hernias," the settlement states. "Before this litigation, the practice was to refuse to provide surgeries, or even surgical consultations -- despite the recommendations of doctors -- unless the patient was experiencing an emergency ..." Although the settlement does not require the agency to order a surgery if a doctor recommends it, the agency may not unreasonably refuse to allow it. A hernia occurs when the abdominal wall tears or weakens, forcing other tissue through the opening. It can cause intense pain and further problems if left untreated. The settlement states the agency and Corizon for years engaged "in a pattern of not permitting FDOC prisoners to have hernia surgeries, by denying them at various levels." "These scenarios played out for years, resulting in thousands of prisoners being left in severe pain, unable to engage in normal life activities, and at risk for serious complications or death,'' the settlement says. Although the initial complaint was filed on behalf of three inmates Amado Parra, Archie Green, and Tracy Copeland and detailed the stories of 15 current and former prisoners, after the lengthy examination of the agency and Corizon's health care records, the scope of the lawsuit was broadened to cover hundreds more. A consent order between the parties was reached on Sept. 23, 2016, to cover "all past and current prisoners in FDOC custody who were diagnosed with and/or treated for a hernia between Sept. 8, 2013 and May 31, 2016" while Corizon was the medical provider for that prison facility. To determine which current and former inmates were eligible, the lawyers reviewed all the medical records of inmates who arrived at the sick bays in Florida prisons during that time period and found the cases coded for a hernia condition, Hartman said. They also posted a notice in each of Florida's prison facilities and collected the names of hundreds more eligible inmates. The settlement will be divided among the class members by giving USD1.7 million to the affected inmates, divided into two subclasses: 308 will each receive about USD2,760 each because a request for a surgical consultation was submitted and potentially denied, and 1,480 who exhibited symptoms but were denied a surgical consultation will receive about USD574. Attorneys will be paid USD385,000 and the three individuals named in the lawsuit will be paid an additional USD5,000 each. CPN MECHANICAL: Diferro Contracting Seeks Payment of Services ------------------------------------------------------------- Diferro Contracting Corp., on behalf of itself and on behalf of all other beneficiaries of the trust referred to in this complaint similarly situated, Plaintiff, v. CPN Mechanical, Inc., Constantine Nikolis a/k/a Constantin Nikolis a/k/a Dino Nikolis and Yvonne Nikolis, Defendants, Case No. 603101/2017 (N.Y. Sup., April 10, 2017) seeks to recover trust assets with interest accrued, to enjoin the defendants from making any diversion of said trust funds not authorized pursuant to the provisions of Article 3-A of the Lien Law of the State of New York, damages for breach of trust obligation, interest accrued thereon, any provisional or ancillary relief, reasonable costs and expenses incident to the prosecution of this action, including a reasonable fee for DiFerro's attorneys and such other and further relief for breach of contract and New York's Lien Law. CPN was a trade subcontractor for HVAC and water systems for the project of Hudson Meridian Construction Group, LLC located at Block 00199, Lots 2 along 60, 90 and 130 Furman Street, Brooklyn, NY, where DiFerro furnished all mechanical piping and mechanical piping insulation. CPN still lacks the the sum of $926,552.29 excluding its claim for delay damages together with interest from October 19, 2016, says the complaint.[BN] The Plaintiff is represented by: Paula J. Warmuth, Esq. STIM & WARMUTH, P.C. 2 Eighth Street Farmingville, NY 11738 Tel: (631) 732-2000 CYNOSURE INC: "Rosenfeld" Suit over Hologic Merger Dismissed ------------------------------------------------------------ In the case, Joel Rosenfeld IRA v. Cynosure, Inc. et al., Case No. 1:17-cv-10309 (D. Mass.), the Hon. Denise J Casper on March 28, 2017, entered a Stipulation and Order concerning Plaintiff's Voluntary Dismissal. Cynosure said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Cynosure entered into an Agreement and Plan of Merger, or the Merger Agreement, with Hologic, Inc., or Hologic, and Minuteman Merger Sub, Inc., a wholly-owned subsidiary of Hologic, or the Purchaser. The Company said, "On February 24, 2017, a putative stockholder class action complaint, captioned Joel Rosenfeld IRA v. Cynosure, Inc., et al., Civ. Action No. 17-10309 (D. Mass.), or the Rosenfeld Action, was filed in the U.S. District Court for the District of Massachusetts in connection with the Offer and the Merger, naming as defendants us and each member of our board of directors. The complaint in the Rosenfeld Action, among other things, criticizes the proposed transaction price as inadequate and alleges that we and our board of directors omitted certain allegedly material information from the Solicitation/Recommendation Statement on Schedule 14D-9 in violation of the Exchange Act and related SEC regulations. The alleged omissions relate to (i) certain of our projections, (ii) certain data and inputs underlying the financial valuation analyses, and (iii) the background of the merger process." "The plaintiff in the Rosenfeld Action seeks an order (i) maintaining the action as a class action, certifying the plaintiff as the class representative, and certifying the plaintiff's counsel as class counsel, (ii) preliminarily and permanently enjoining defendants and all persons acting in concert with them from proceeding with, consummating, or closing the Offer or the Merger, (iii) in the event defendants consummate the Offer or the Merger, rescinding it and setting it aside or awarding rescissory damages, and (iv) awarding appropriate costs, attorneys' fees, and experts' fees. We and our directors believe this lawsuit is without merit." Cynosure develops, manufactures, and markets aesthetic treatment systems that enable plastic surgeons, dermatologists and other medical practitioners to perform non-invasive and minimally invasive procedures to remove hair, treat vascular and benign pigmented lesions, remove multi-colored tattoos, revitalize the skin, reduce fat through laser lipolysis, reduce cellulite, clear nails infected by toe fungus, ablate sweat glands and improve women's health. DFC GLOBAL: September 19 Settlement Fairness Hearing Set -------------------------------------------------------- Barrack Rodos & Bacine and Bernstein Litowitz Berger & Grossmann LLP on April 11 announced a proposed settlement of In re DFC Global Corp. securities litigation. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA IN RE DFC GLOBAL CORP. SECURITIES LITIGATION Civ. A. No. 2:13-cv-06731-BMS SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who purchased or otherwise acquired the common stock of DFC Global Corp. ("DFC Global") during the period from January 28, 2011 through February 3, 2014, inclusive, and were damaged thereby (the "Class"): Please read this notice carefully, your rights will be affected by a class action lawsuit pending in this court. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Eastern District of Pennsylvania, that the above- captioned litigation (the "Action") has been certified as a class action on behalf of the Class, except for certain persons and entities who are excluded from the Class by definition as set forth in the full printed Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for $30,000,000.00 in cash (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on September 19, 2017 at 9:30 a.m., before the Honorable Berle M. Schiller at the United States District Court for the Eastern District of Pennsylvania, James A. Byrne U.S. Courthouse, Courtroom 13-B, 601 Market Street, Philadelphia, PA 19106, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated February 28, 2017 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at DFC Global Corp. Securities Litigation, c/o A.B. Data, Ltd., P.O. Box 173030, Milwaukee, WI 53217, 1-877-239-4579. Copies of the Notice and Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.DFCGlobalSecuritiesLitigation.com. If you are a member of the Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than September 4, 2017. If you are a Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Class and wish to exclude yourself from the Class, you must submit a request for exclusion such that it is received no later than June 16, 2017, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be filed with the Court and delivered to Lead Counsel and Representative Defendants' Counsel such that they are received no later than June 16, 2017, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, DFC Global, the other Defendants or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP John Rizio-Hamilton, Esq. 1251 Avenue of the Americas, 44th Floor New York, NY 10020 (800) 380-8496 blbg@blbglaw.com BARRACK, RODOS & BACINE Jeffrey W. Golan, Esq. Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 (215) 963-0600 info@barrack.com Requests for the Notice and Claim Form should be made to: DFC Global Corp. Securities Litigation c/o A.B. Data, Ltd. P.O. Box 173030 Milwaukee, WI 53217 877-239-4579 www.DFCGlobalSecuritiesLitigation.com By Order of the Court DIAMOND RECONSTRUCTION: "Sierra" Suit Alleges FLSA Breach --------------------------------------------------------- Rene Sierra, Jose Sanchez, Yandy Rodriguez, Pedro Rodriguez, Djordj Sinavonic, Armando Leon, Daniel Figueredo And Yolexi Rodriguez, on behalf of themselves and on behalf of all others similarly situated Plaintiffs, v. Diamond Reconstruction of Tampa Bay, LLC, Diamond Reconstruction Services, LLC, Nicholas Exarhos, an individual and Jason Phillips, an individual Defendants, Case No. 8:17-cv-00812, (M.D. Fla., April 7, 2017), seeks unpaid back wages, liquidated damages, attorneys' fees and costs and such other and further relief under the Fair Labor Standards Act. Defendants operate a contracting company in Tampa, in Hillsborough County, Florida. Plaintiffs were employed by Defendants as laborers and/or handymen. Defendant allegedly avoided withholding employment taxes from their earnings, avoided paying mandatory employment taxes and failed to pay overtime wages. [BN] Plaintiff is represented by: Cynthia Gonzalez, Esq. CYNTHIA GONZALEZ P.A. 4023 North Armenia Ave., Suite 240 Tampa, FL 33607 Telephone (813) 333-1322 Fax (866) 593-6771 E-mail: cynthia@wagesdue.com - and - Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave., Ste. 300 Tampa, FL 33602-3343 Tel: (813) 224-0431 Fax: (813) 229-8712 Email: lcabassa@wfclaw.com DOORDASH: Settles Delivery Workers' Class Action for $5 Million --------------------------------------------------------------- Megan Rose Dickey, writing for TechCrunch, reports that on-demand food delivery startup DoorDash has reached an agreement with workers' rights lawyer Shannon Liss-Riordan regarding a class- action lawsuit that alleged DoorDash misclassified its delivery workers as independent contractors. As part of the settlement, DoorDash will pay class members of the suit $3.5 million, following the court's approval. The company has also agreed to pay an additional $1.5 million in four years or when one of three things happen: DoorDash goes public, the company is profitable for a full year or some other company acquires DoorDash at double its current valuation. In September 2015, Cynthia Marciano and Evan Kissner both separately filed lawsuits against DoorDash, alleging that DoorDash misclassified them and other delivery workers as independent contractors, and therefore violated certain provisions of the labor code. The named plaintiffs, Ms. Marciano and Mr. Kissner, will receive $7,500 each and Ms. Liss-Riordan will get up to $1.25 million, according to the settlement. The approximately 33,744 class members, which entail all those who worked for DoorDash as independent contractors at some point between September 23, 2011 through August 29, 2016, and completed at least one delivery, will receive payment as part of the settlement. Those who "were most active" on DoorDash will "receive proportionally higher payments," the settlement states. DoorDash has also updated its deactivation policy to ensure that all its delivery people retain access to the platform unless they violate the rules of engagement. Before, there was no single source of truth when it came to deactivating people from the platform. Another change is that DoorDash delivery workers will be able to appeal a deactivation if they feel they should not have been deactivated from the platform. This settlement, however, does not prevent other people from suing DoorDash over this exact same reason in the future. But given that DoorDash worked with Ms. Liss-Riordan, the lawyer whose name often shows up on these cases against Uber, Lyft and other on- demand companies, there's reason to believe that this type of case might be less attractive for complaints in the future. That's because the resolution they agreed on was not to change independent contractors to employee status, but rather change some policies to improve clarity and ensure more rights for the workers. "We firmly believe that the autonomy and flexibility Dashers love is made possible by, and consistent only with, their status as independent contractors," DoorDash General Counsel Keith Yandell wrote on the DoorDash blog. "That said, we feel that this settlement represents a fair compromise, addresses valuable Dasher feedback, and makes changes that will further cement Dashers' status as independent contractors." DOS REALES INC: "Olivera" Seeks Unpaid Overtime, Minimum Wages -------------------------------------------------------------- Anatolio Pena Olivera and Maria Fernanda Martinez, individually and on behalf all others similarly situated, Plaintiffs, v. Dos Reales, Inc. and Alvaro Quezada, Defendants, Case No. 2:17-cv- 02203 (D. Kan., April 62017), seeks to recover unpaid minimum and overtime wages without any tip credit deduction, liquidated damages, attorney fees, litigation costs and damages for violation of the Fair Labor Standards Act, the Kansas Minimum Wage and Maximum Hours Law and the Kansas Wage Payment Act. Plaintiffs worked as waiters at the Defendants' restaurant located at 8841 W 75th Street, Overland Park, Kansas 66204. The Plaintiff is represented by: Paul H. Mose, Esq. MOSE LAW LLC 3111 Strong Avenue, Kansas City, KS 66106 Tel: (913) 432-4484 Fax: (913) 432-4464 Email: Pablo@moselaw.com - and - Mark V. Dugan, Esq. Heather J. Schlozman, Esq. DUGAN SCHLOZMAN, LLC 8826 Santa Fe Drive, Suite, 307 Overland Park, KS 66212 Telephone: (913) 322-3528 Facsimile: (913) 904-0213 Email: mark@duganschlozman.com heather@duganschlozman.com DPP II INC: "Fleming" Suit to Recover Overtime Pay -------------------------------------------------- Taryn Fleming, on behalf of herself and all others similarly situated, Plaintiff v. DPP II, Inc. d/b/a Home Care Providers of Texas, Inc., Suzanne M. Rawlings and Kirk C. Hullison, individually, Defendants, Case No. 3:17-cv-00995, (N.D. Tex., April 7, 2017), seeks to recover overtime compensation, liquidated damages, attorney's fees, litigation costs, costs of court, and pre-judgment and post-judgment interest under the provisions of the Fair Labor Standards Act of 1938. Defendants provide home health care services. Plaintiff worked for Defendants as a licensed vocational field nurse. Plaintiff is represented by: Douglas B. Welmaker, Esq. DUNHAM & JONES, P.C. 1800 Guadalupe Street Austin, TX 78701 Tel: (512) 777-7777 Fax: (512) 340-4051 E-Mail: doug@dunhamlaw.com - and - Scotty Jones, Esq. DUNHAM & JONES, P.C. 1110 E. Weatherford Street Fort Worth, TX 76102 Tel: (817) 339-1185 Fax: (817) 810-0050 E-mail: sjones@dunhamlaw.com E*TRADE FINANCIAL: N.Y. Court Dismisses Securities Class Action --------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, wrote that on April 1, 2017, District Judge John G. Koeltl of the United States District Court for the Southern District of New York dismissed a putative class action against brokerage firm E*TRADE Financial Corporation and E*TRADE Securities LLC (collectively, "E*Trade"). Rayner v. E*TRADE Financial Corporation et al, No. 1:16-cv-7129 (S.D.N.Y. Apr. 1, 2017). Plaintiff brought claims for breach of fiduciary duty, unjust enrichment, and declaratory judgment, alleging that E*Trade selected third-party trading venues for the execution of trading orders based on the amount of rebates those venues paid or "kicked back" to E*Trade rather than selecting the most efficient or cost-effective trading venue for E*Trade's clients that plaintiff contends is required by the duty of best execution. The Court dismissed all of the claims, holding that they were precluded by the Securities Litigation Uniform Standards Act (the "SLUSA"), which prohibits class actions based on state law claims that rely on allegations that defendant made a misrepresentation or omission of material fact, or employed any manipulative or deceptive device, in connection with the purchase or sale of a covered security. At the outset, plaintiff conceded three of the elements necessary for a finding of SLUSA preclusion: that the complaint is a covered class action, based on state law, regarding covered securities. The Court's decision on the motion to dismiss, therefore, focused on whether plaintiff's claims (i) were grounded in misrepresentations or omissions, alleged manipulation and deceit and (ii) were made in connection with a security transaction. Regarding the first issue, plaintiff argued that the action only challenged E*Trade's underlying practices regarding its selection of venues when routing orders and accordingly did not rely on any allegations concerning misrepresentations or omissions. The Court disagreed, finding that the action was predicated on material misrepresentations allegedly designed to induce clients to execute the type of trade that granted E*Trade flexibility to select the trading venue of its choosing -- even though E*Trade allegedly had no intention of fulfilling its purported fiduciary obligations -- and thus could not "be disentangled from the misrepresentations or omissions." The Court reasoned that plaintiff's claims "necessarily challenge what E*Trade told the plaintiff" about its selection of trading venues and the nature of E*Trade's obligations to the plaintiff, and, accordingly, those claims rested on plaintiff's showing that E*Trade committed false conduct, thereby further precluding these claims under SLUSA. The Court also noted that the Securities and Exchange Commission has taken the position that the failure to provide "best execution" is a possible manipulative, deceptive, or otherwise fraudulent device, further supporting the Court's finding that plaintiff's claims based on allegations that E*Trade routed orders to "maximize kickback revenue in violation of its duty of best execution" were precluded by SLUSA. Turning to the issue of whether the alleged fraud was made "in connection with" a securities transaction, the Court found that the alleged fraud "plainly coincided with the securities transactions at issue" because the plaintiff took positions in covered securities through E*Trade and his purchase or sale decisions were materially affected by E*Trade's allegedly false promises of best execution. Notably, after finding that the claims were precluded by SLUSA, the Court pointed out that plaintiff's counsel had made clear at oral argument that plaintiff did not wish to proceed in the event that the claims were precluded by SLUSA, and had acknowledged that he already is a member of the proposed class in a related securities class action pending in the same court alleging violations of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 against E*Trade and several individual defendants. See Schwab v. E Trade Financial Corporation, et al., No. 16-cv-5891 (JGK) (S.D.N.Y). Accordingly, the Court dismissed plaintiff's claims in their entirety. The decision reinforces the limits imposed by SLUSA on a plaintiffs' ability to plead state law class actions relating to alleged disclosure violations. EGS FINANCIAL: Faces TCPA Class Action in Louisiana --------------------------------------------------- Noddy A. Fernandez, writing for Northern California Record, reports that a Ridgecrest man has filed a class-action lawsuit against EGS Financial Care Inc., a debt collector, and a number of its employees, citing alleged violation of telephone harassment statutes. Laurence Clayton, individually and on behalf of all others similarly situated, filed a complaint on April 3 in the U.S. District Court for the Eastern District of Louisiana alleging that the defendants knowingly violated the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that, between March 2016 and July 2016, he received calls on his cellular telephone from defendants attempting to collect an alleged outstanding debt. The calls caused him to incur certain charges and/or reduced telephone time for which he had previously paid. The plaintiff holds EGS Financial responsible because it allegedly made calls using an automatic telephone dialing system and without plaintiff's prior express consent. The plaintiff requests a trial by jury and seeks statutory damages of $500 for each and every negligent violation and $1,500 for each and every willful violations of the Act and all other relief that the Court deems just and proper. He is represented by Todd M. Friedman and Adrian R. Bacon of Law Offices of Todd M. Friedman PC in Woodland Hills. U.S. District Court for the Eastern District of Louisiana Case number 1:17-cv-00473 EMERGENT BIOSOLUTIONS: July 6 Hearing on Motion to Dismiss ---------------------------------------------------------- In the case, City of Cape Coral Municipal Firefighters' Retirement Plan v Emergent Biosolutions, Inc., HQ et al., Case No. 8:16-cv- 02625 (D. Md.), the Hon. Roger W Titus entered a Memorandum scheduling a hearing on Defendants' Motion to Dismiss Plaintiffs' Amended Complaint for July 6, 2017 at 10:00 a.m. Emergent Biosolutions Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the company's motion to dismiss the purported shareholder class action lawsuit filed July 19, 2016, by William Sponn remains pending. The Company said, "On July 19, 2016, Plaintiff William Sponn, or Sponn, filed a putative class action complaint in the United States District Court for the District of Maryland on behalf of purchasers of our common stock between January 11, 2016 and June 21, 2016, inclusive, or the Class Period, seeking to pursue remedies under the Securities Exchange Act of 1934 against us and certain of our senior officers and directors, collectively, the Defendants. The complaint alleges, among other things, that we made materially false and misleading statements about the government's demand for BioThrax and expectations that our five- year exclusive procurement contract with HHS would be renewed and omitted certain material facts. Sponn is seeking unspecified damages, including legal costs. "On October 25, 2016, the Court added City of Cape Coral Municipal Firefighters' Retirement Plan and City of Sunrise Police Officers' Retirement Plan as plaintiffs and appointed them Lead Plaintiffs and Robins Geller Rudman & Dowd LLP as Lead Counsel. "On December 27, 2016, the plaintiffs filed an amended complaint that cites the same class period, names the same defendants and makes similar allegations to the original complaint. We filed a Motion to Dismiss on February 27, 2017. The Defendants believe that the allegations in the complaint are without merit and intend to defend themselves vigorously against those claims." Emergent BioSolutions Inc. is a global life sciences company seeking to protect and enhance life by focusing on providing specialty products for civilian and military populations that address accidental, intentional and naturally emerging public health threats. ETSY INC: "Altayyar" Class Action Dismissed ------------------------------------------- In the case, Altayyar v. Etsy, Inc. et al., Case No. 1:15-cv-02785 (E.D.N.Y.), the Court on March 24, 2017, entered judgment granting the Defendant's motion to dismiss the complaint. The case is dismissed with prejudice. Etsy said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that on May 13, 2015, a purported securities class action complaint (Altayyar v. Etsy, Inc., et al., Docket No. 1:15-cv-02785) was filed in the United States District Court for the Eastern District of New York against the Company and certain officers. The complaint was brought on behalf of a purported class consisting of all persons or entities who purchased or otherwise acquired shares of the Company's common stock from April 16, 2015 through and including May 10, 2015. It asserted violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 based on allegedly false or misleading statements and omissions with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement and actions taken by third-party brands against Etsy sellers for trademark or copyright infringement. On October 22, 2015, the court appointed a lead plaintiff and lead plaintiff's counsel. On January 21, 2016, the lead plaintiff filed an amended class action complaint alleging false or misleading statements or omissions with respect to substantially the same topics as the original complaint. The amended complaint adds certain outside directors and underwriters as defendants, expands the purported class period to be April 16, 2015 to August 4, 2015, inclusive, and asserts violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, as well as Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The amended complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. The Company and the named officers and directors intend to defend themselves vigorously against this action. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of this matter and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. Etsy offers markets, services and technology that empower creative entrepreneurs and shape a positive future for business. ETSY INC: Consolidated Class Action Remains Stayed -------------------------------------------------- A consolidated class action lawsuit against Etsy, Inc. remains stayed, Etsy said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On July 21, 2015, a purported securities class action complaint (Cervantes v. Dickerson, et al., Case No. CIV 534768) was filed in the Superior Court of State of California, County of San Mateo against the Company, certain officers, directors and underwriters. The complaint asserts violations of Sections 11 and 15 of the Securities Act of 1933. As in the Altayyar litigation, the complaint alleges misrepresentations in the Company's Registration Statement on Form S-1 and Prospectus with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. The complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. On December 7, 2015, the Company and the underwriter defendants moved to stay the Cervantes action on the grounds of forum non conveniens. On November 5, 2015, another purported securities class action complaint (Weiss v. Etsy et al., No. CIV 536123) was filed in the Superior Court of State of California, County of San Mateo. The Weiss complaint names as defendants the Company and the same officers, directors and underwriters named in the Cervantes complaint, and also asserts violations of Sections 11 and 15 of the Securities Act of 1933 based on allegedly false or misleading statements or omissions with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. On December 24, 2015, the court consolidated the Cervantes and Weiss actions. The Company and the named officers and directors intend to defend themselves vigorously against these consolidated actions. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of this matter and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. On February 3, 2016, the court granted the Company's motion to stay the consolidated actions. No further updates were provided in the Company's SEC report. Etsy offers markets, services and technology that empower creative entrepreneurs and shape a positive future for business. FACEBOOK INC: Wants Suit Over Inflated Video Metrics Tossed ----------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that marketers who are suing Facebook over inflated video metrics shouldn't be able to proceed because they didn't say in their complaint that they relied on Facebook's metrics when buying the ads, the social networking service says. Facebook makes that argument in a motion filed on April 10, asking U.S. District Court Judge Thelton Henderson in San Francisco to dismiss the marketers' class-action complaint. The dispute between the advertisers and social networking service stems from last year's revelations that Facebook misreported two metrics related to its video ads. The result of both errors was that Facebook inflated the average time spent viewing ad clips by 60% to 80%. The company said last September that its mistaken calculations did not affect billing. Six marketers, including the bankrupt tech incubator Quirky, subsequently sued Facebook for allegedly violating a California law regarding unfair and fraudulent business acts, among other claims. They alleged that the incorrect video ad metrics induced marketers "to pay more for Facebook video advertising than they otherwise would have been willing to pay." But Facebook contends that the marketers haven't alleged enough facts to show that they relied on the erroneous metrics. "Not a single plaintiff -- let alone all of them -- alleges that he or it ever viewed either [metric] and then spent money on video ads because of an alleged misrepresentation," the company argues. Facebook also argues that the allegations in the lawsuit are too vague to support the marketers' claims. "Plaintiffs fail to allege which specific misrepresentations are at issue, when and where Facebook made those specific misrepresentations, when plaintiffs viewed or relied on them, and how they did so," Facebook writes. Judge Henderson is expected to consider the company's arguments at a hearing in June. FEDERAL SIGNAL: Hearing Loss Cases by 1,770 Firefighter Nixed ------------------------------------------------------------- Federal Signal Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the Circuit Court of Cook County has dismissed the hearing loss cases of 1,770 firefighter plaintiffs from the jurisdiction of the state of Illinois. The Company has been sued for monetary damages by firefighters who claim that exposure to the Company's sirens has impaired their hearing and that the sirens are therefore defective. There were 33 cases filed during the period of 1999 through 2004, involving a total of 2,443 plaintiffs, in the Circuit Court of Cook County, Illinois. These cases involved more than 1,800 firefighter plaintiffs from locations outside of Chicago. In 2009, six additional cases were filed in Cook County, involving 299 Pennsylvania firefighter plaintiffs. During 2013, another case was filed in Cook County involving 74 Pennsylvania firefighter plaintiffs. The trial of the first 27 of these plaintiffs' claims occurred in 2008, whereby a Cook County jury returned a unanimous verdict in favor of the Company. An additional 40 Chicago firefighter plaintiffs were selected for trial in 2009. Plaintiffs' counsel later moved to reduce the number of plaintiffs from 40 to nine. The trial for these nine plaintiffs concluded with a verdict against the Company and for the plaintiffs in varying amounts totaling $0.4 million. The Company appealed this verdict. On September 13, 2012, the Illinois Appellate Court rejected this appeal. The Company thereafter filed a petition for rehearing with the Illinois Appellate Court, which was denied on February 7, 2013. The Company sought further review by filing a petition for leave to appeal with the Illinois Supreme Court on March 14, 2013. On May 29, 2013, the Illinois Supreme Court issued a summary order declining to accept review of this case. On July 1, 2013, the Company satisfied the judgments entered for these plaintiffs, which has resulted in final dismissal of these cases. A third consolidated trial involving eight Chicago firefighter plaintiffs occurred during November 2011. The jury returned a unanimous verdict in favor of the Company at the conclusion of this trial. Following this trial, on March 12, 2012 the trial court entered an order certifying a class of the remaining Chicago Fire Department firefighter plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. The Company petitioned the Illinois Appellate Court for interlocutory appeal of this ruling. On May 17, 2012, the Illinois Appellate Court accepted the Company's petition. On June 8, 2012, plaintiffs moved to dismiss the appeal, agreeing with the Company that the trial court had erred in certifying a class action trial in this matter. Pursuant to plaintiffs' motion, the Illinois Appellate Court reversed the trial court's certification order. Thereafter, the trial court scheduled a fourth consolidated trial involving three firefighter plaintiffs, which began in December 2012. Prior to the start of this trial, the claims of two of the three firefighter plaintiffs were dismissed. On December 17, 2012, the jury entered a complete defense verdict for the Company. Following this defense verdict, plaintiffs again moved to certify a class of Chicago Fire Department plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. Over the Company's objection, the trial court granted plaintiffs' motion for class certification on March 11, 2013 and scheduled a class action trial to begin on June 10, 2013. The Company filed a petition for review with the Illinois Appellate Court on March 29, 2013 seeking reversal of the class certification order. On June 25, 2014, a unanimous three-judge panel of the First District Illinois Appellate Court issued its opinion reversing the class certification order of the trial court. Specifically, the Appellate Court determined that the trial court's ruling failed to satisfy the class-action requirements that the common issues of the firefighters' claims predominate over the individual issues and that there is an adequate representative for the class. During a status hearing on October 8, 2014, plaintiffs represented to the Court that they would again seek to certify a class of firefighters on the issue of whether the Company's sirens were defective and unreasonably dangerous. On January 12, 2015, plaintiffs filed motions to amend their complaints to add class action allegations with respect to Chicago firefighter plaintiffs as well as the approximately 1,800 firefighter plaintiffs from locations outside of Chicago. On March 11, 2015, the trial court granted plaintiff's motions to amend their complaints. Plaintiffs have indicated that they will now file motions to certify classes in these cases. On April 24, 2015, the cases were transferred to Cook County chancery court, which will decide all class certification issues. The Company intends to continue its objections to any attempt at certification. The Company has also filed motions to dismiss cases involving firefighters who worked for fire departments located outside of the state of Illinois based on improper venue. On February 24, 2017, the Circuit Court of Cook County entered orders dismissing the cases of 1,770 such firefighter plaintiffs from the jurisdiction of the state of Illinois. Federal Signal Corporation, founded in 1901, was reincorporated as a Delaware corporation in 1969. The Company designs, manufactures and supplies a suite of products and integrated solutions for municipal, governmental, industrial and commercial customers. FEDERAL SIGNAL: 556 Firefighters in NY and NJ Hearing Loss Cases ---------------------------------------------------------------- Federal Signal Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that: * A total of 451 firefighters are currently involved in hearing loss cases filed in the state of New York. * A total of 105 firefighters are currently involved in hearing loss cases filed in New Jersey. The Company has been sued on this issue outside of the Cook County, Illinois venue. Many of these cases have involved lawsuits filed by a single attorney in the Court of Common Pleas, Philadelphia County, Pennsylvania. During 2007 and through 2009, this attorney filed a total of 71 lawsuits involving 71 plaintiffs in this jurisdiction. Three of these cases were dismissed pursuant to pretrial motions filed by the Company. Another case was voluntarily dismissed. Prior to trial in four cases, the Company paid nominal sums to obtain dismissals. Three trials occurred in Philadelphia involving these cases filed in 2007 through 2009. The first trial involving one of these plaintiffs occurred in 2010, when the jury returned a verdict for the plaintiff. In particular, the jury found that the Company's siren was not defectively designed, but that the Company negligently constructed the siren. The jury awarded damages in the amount of $0.1 million, which was subsequently reduced to $0.08 million. The Company appealed this verdict. Another trial, involving nine Philadelphia firefighter plaintiffs, also occurred in 2010 when the jury returned a defense verdict for the Company as to all claims and all plaintiffs involved in that trial. The third trial, also involving nine Philadelphia firefighter plaintiffs, was completed during 2010 when the jury returned a defense verdict for the Company as to all claims and all plaintiffs involved in that trial. Following defense verdicts in the last two Philadelphia trials, the Company negotiated settlements with respect to all remaining filed cases in Philadelphia at that time, as well as other firefighter claimants represented by the attorney who filed the Philadelphia cases. On January 4, 2011, the Company entered into a Global Settlement Agreement (the "Settlement Agreement") with the law firm of the attorney representing the Philadelphia claimants, on behalf of 1,125 claimants the firm represented (the "Claimants") and who had asserted product claims against the Company (the "Claims"). Three hundred eight of the Claimants had lawsuits pending against the Company in Cook County, Illinois. The Settlement Agreement, as amended, provided that the Company pay a total amount of $3.8 million (the "Settlement Payment") to settle the Claims (including the costs, fees and other expenses of the law firm in connection with its representation of the Claimants), subject to certain terms, conditions and procedures set forth in the Settlement Agreement. In order for the Company to be required to make the Settlement Payment: (i) each Claimant who agreed to settle his or her claims had to sign a release acceptable to the Company (a "Release"), (ii) each Claimant who agreed to the settlement and who was a plaintiff in a lawsuit, had to dismiss his or her lawsuit with prejudice, (iii) by April 29, 2011, at least 93% of the Claimants identified in the Settlement Agreement must have agreed to settle their claims and provide a signed Release to the Company and (iv) the law firm had to withdraw from representing any Claimants who did not agree to the settlement, including those who filed lawsuits. If the conditions to the settlement were met, but less than 100% of the Claimants agreed to settle their Claims and sign a Release, the Settlement Payment would be reduced by the percentage of Claimants who did not agree to the settlement. On April 22, 2011, the Company confirmed that the terms and conditions of the Settlement Agreement had been met and made a payment of $3.6 million to conclude the settlement. The amount was based upon the Company's receipt of 1,069 signed releases provided by Claimants, which was 95.02% of all Claimants identified in the Settlement Agreement. The Company generally denies the allegations made in the claims and lawsuits by the Claimants and denies that its products caused any injuries to the Claimants. Nonetheless, the Company entered into the Settlement Agreement for the purpose of minimizing its expenses, including legal fees, and avoiding the inconvenience, uncertainty and distraction of the claims and lawsuits. During April through October 2012, 20 new cases were filed in the Court of Common Pleas, Philadelphia County, Pennsylvania. These cases were filed on behalf of 20 Philadelphia firefighters and involve various defendants in addition to the Company. Five of these cases were subsequently dismissed. The first trial involving these 2012 Philadelphia cases occurred during December 2014 and involved three firefighter plaintiffs. The jury returned a verdict in favor of the Company. Following this trial, all of the parties agreed to settle cases involving seven firefighter plaintiffs set for trial during January 2015 for nominal amounts per plaintiff. In January 2015, plaintiffs' attorneys filed two new complaints in the Court of Common Pleas, Philadelphia, Pennsylvania on behalf of approximately 70 additional firefighter plaintiffs. The vast majority of the firefighters identified in these complaints are located outside of Pennsylvania. One of the complaints in these cases, which involves 11 firefighter plaintiffs from the District of Columbia, was removed to federal court in the Eastern District of Pennsylvania. Plaintiffs voluntarily dismissed all claims in this case on May 31, 2016. The Company has moved to recover various fees and costs in this case, asserting that plaintiffs' counsel failed to properly investigate these claims prior to filing suit. With respect to claims of other out-of-state firefighters involved in these two cases, the Company moved to dismiss these claims as improperly filed in Pennsylvania. The Court granted this motion and dismissed these claims on November 5, 2015. During August through December 2015, another nine new cases were filed in the Court of Common Pleas, Philadelphia County, Pennsylvania. These cases involve a total of 193 firefighters, most of whom are located outside of Pennsylvania. The Company again moved to dismiss all claims filed by out-of- state firefighters in these cases as improperly filed in Pennsylvania. On May 24, 2016, the Court granted this motion and dismissed these claims. Plaintiffs have filed a notice of appeal regarding this decision. On May 13, 2016, four new cases were filed in Philadelphia state court, involving a total of 55 Philadelphia firefighters who live in Pennsylvania. During August 2016, the Company settled a case involving four Philadelphia firefighters that had been set for trial in Philadelphia state court during September 2016. During April through July 2013, additional cases were filed in Allegheny County, Pennsylvania. These cases involve 247 plaintiff firefighters from Pittsburgh and various defendants, including the Company. During May 2016, two additional cases were filed against the Company in Allegheny County involving 19 Pittsburgh firefighters. After the Company filed pretrial motions, the Court dismissed claims of 55 Pittsburgh firefighter plaintiffs. The Court scheduled the first trials of these Pittsburgh firefighters to occur in May, September and November 2016. On April 14, 2016, the Court granted the Company's motion for summary judgment regarding strict liability claims asserted by all plaintiff firefighters involved in the first trial scheduled for May 2016. Subsequently, the Court also dismissed all remaining negligence claims asserted by these firefighters. The next trial involving six Pittsburgh firefighters started on November 7, 2016. Shortly after this trial began, plaintiffs' counsel moved for a mistrial because a key witness suddenly became unavailable. The Court granted this motion and rescheduled this trial for March 6, 2017. During January 2017, plaintiffs also moved to consolidate and bifurcate trials involving Pittsburgh firefighters. In particular, plaintiffs seek one trial involving liability issues which will apply to all Pittsburgh firefighters who have filed suit against the Company. The Company intends to oppose this motion. During March 2014, an action also was brought in the Court of Common Pleas of Erie County, Pennsylvania on behalf of 61 firefighters. This case likewise involves various defendants in addition to the Company. After the Company filed pretrial motions, 33 Erie County firefighter plaintiffs voluntarily dismissed their claims. On September 17, 2014, 20 lawsuits, involving a total of 193 Buffalo Fire Department firefighters, were filed in the Supreme Court of the State of New York, Erie County. Several product manufacturers, including the Company, have been named as defendants in these cases. All of the cases filed in Erie County, New York have been removed to federal court in the Western District of New York. During February 2015, a lawsuit involving one New York City firefighter plaintiff was filed in the Supreme Court of the State of New York, New York County. The plaintiff named the Company as well as several other parties as defendants. That case has been transferred to federal court in the Northern District of New York. Plaintiffs agreed to voluntarily dismiss this case during May 2016. The Company also is aware that a lawsuit involving eight New York City firefighters was filed in New York County, New York, on April 24, 2015. The Company has not yet been served in that case. During November 2015 through January 2016, 28 new cases involving a total of 227 firefighters were filed in various counties in the New York City area. During December 2016, an additional case, involved 11 New York firefighters, was filed in New York County state court. A total of 451 firefighters are currently involved in cases filed in the state of New York. During November 2015, the Company was served with a complaint filed in Union County, New Jersey state court, involving 34 New Jersey firefighters. This case has been transferred to federal court in the District of New Jersey. During the period from January through May 2016, eight additional cases were filed in various New Jersey state courts. Most of the firefighters in these cases reside in New Jersey and work or worked at New Jersey fire departments. During December 2016, a case involving one New Jersey firefighter was filed in the United States District Court of New Jersey. A total of 105 firefighters are currently involved in cases filed in New Jersey. During May through October 2016, nine cases were filed in Suffolk County, Massachusetts state court, naming the Company as a defendant. These cases involve 194 firefighters who lived and worked in the Boston area. From 2007 through 2009, firefighters also brought hearing loss claims against the Company in New Jersey, Missouri, Maryland and Kings County, New York. All of those cases, however, were dismissed prior to trial, including four cases in the Supreme Court of Kings County, New York that were dismissed upon the Company's motion in 2008. On appeal, the New York appellate court affirmed the trial court's dismissal of these cases. Plaintiffs' attorneys have threatened to file additional lawsuits. The Company intends to vigorously defend all of these lawsuits, if filed. The Company's ongoing negotiations with its insurer, CNA, over insurance coverage on these claims have resulted in reimbursements of a portion of the Company's defense costs. These reimbursements are recorded as a reduction of corporate operating expenses. For the years ended December 31, 2016, 2015 and 2014, the Company recorded reimbursements from CNA of $0.2 million, $0.3 million, and $0.3 million, respectively, related to legal costs, respectively. Federal Signal Corporation, founded in 1901, was reincorporated as a Delaware corporation in 1969. The Company designs, manufactures and supplies a suite of products and integrated solutions for municipal, governmental, industrial and commercial customers. FERASS DELI: "Perez" Suit Seeks Overtime, Spread-of-Hours Pay ------------------------------------------------------------- Eloiza Perez and John Doe, on behalf of themselves and FLSA Collective Plaintiffs, v. Ferass Deli Corp., Ebrahim Alghurazy and Moises (last name unknown), Defendants, Case No. 1:17-cv-02502, (S.D. N.Y., April 6, 2017), seeks unpaid overtime, unpaid spread of hours premium, liquidated damages, statutory penalties and attorneys' fees and costs pursuant to the New York Labor Law and the Fair Labor Standards Act. Perez was hired by Defendants as a cashier for Defendants' Deli located at 831 6th Avenue, New York, NY 10001. Defendants failed to provide accurate wage statements, thus cannot account for her overtime, says the complaint. [BN] Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 FIAT CHRYSLER: Class Action Over Defective Jeep Gas Tanks Tossed ---------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Jeep Liberty gas tank lawsuit has been dismissed by a Missouri judge after the plaintiff claimed Fiat Chrysler concealed defects with the location of the gas tanks, causing a loss of vehicle value. The plaintiff says Chrysler lied about the gas tanks in Jeep vehicles, only to later order a recall of the SUVs. The plaintiff says he bought his 2003 Jeep Liberty in 2013 believing the SUV was safe, until Chrysler recalled the Jeeps to help protect the gas tanks from rear impacts that could cause the Jeeps to go up in flames. In 2013, the National Highway Traffic Safety Administration requested that FCA recall Jeep Liberty and Grand Cherokee SUVs at risk of fires due to the location of the gas tanks, but Chrysler fought the request and said the vehicles were safe. The case hinged on press releases from June 2013 when Chrysler said the Jeeps were not defective and that federal safety regulators were wanting recalls because those regulators didn't have the proper information. But it wasn't long after those statements that Fiat Chrysler announced a recall of 1.5 million Jeeps to install trailer hitches to the rear of the SUVs even though the government wanted 2.7 million Jeeps recalled. Chrysler had already won dismissal of the proposed class-action lawsuit in 2015, but the plaintiff amended the complaint and told the judge the automaker completely failed by placing the plastic gas tanks behind the rear axles of the Jeeps. According to the lawsuit, Jeep owners have lost money because of the recall and because of the location of the gas tanks. The judge ruled there was no evidence that two press releases Chrysler posted in 2013 were ever sent to the used car dealership where the plaintiff bought his Jeep Liberty. Those press releases talked about the safety of the SUVs and were posted to Chrysler's website after the government requested the automaker recall the Jeeps. The plaintiff claims the dealership should have known they were selling a defective Jeep, but the judge disagreed and said that Fiat Chrysler had no connection with the sale of the Jeep Liberty. In addition, just because the plaintiff eventually saw the press releases doesn't mean the dealership that sold the Jeep saw the press releases before selling the Jeep. The Jeep gas tank lawsuit was filed in the U.S. District Court Western District of Missouri - Faltermeier v. FCA US LLC. Faltermeier is represented by Shank & Moore LLC. FLORIDA: Court OKs Accurate Death Certs for Same Sex Widowers ------------------------------------------------------------- Florida Record reports that two same sex marriage widowers won a class action ruling for the right to accurate death certificates of spouses that acknowledge their marriage and recognize the surviving spouse, according to court documents March 23. Hal Birchfield and Paul Mocko married before same sex marriage was legal in Florida, and when their spouses died in 2013 and 2014, same sex marriage wasn't federal law yet, at least not until Obergefell v. Hodges in 2015. Even retroactively, amending a spouse's death certificate to acknowledge the same sex marriage and surviving partner's name -- though legal now -- was unheard of without a specific court order. Birchfield and Mocko filed a class action in 2015, and in March were finally able to receive some measure of closure, their attorney, Karen Loewy of Lambda Legal, said. "It's really a basic constitutional law," Loewy told the Florida Record, "that when the Supreme Court issued a ruling like Obergefell and applies it to the parties that are right before that court -- that ruling applies retroactively. All of these marriage bans were unconstitutional from the get-go. This ruling really recognizes the breadth of that unconstitutionally and the need for a remedy for everybody who experienced that discrimination." Birchfield and Mocko challenged that they and others similarly affected couples had a constitutional right to immediately receive the same benefit same sex marriage couples enjoyed since Obergefell. They said the state had a duty to backdate the remedy to include all cases regarding of the status of any preceding or current litigation. "Having a death certificate that erases your relationship and what you meant to each is incredibly painful," Loewy said. "It's inconceivable that [the ruling] could have gone the other way. This case provides a remedy for all surviving same sex spouses where the [partners] died before the marriage ban was struck down." She said these individuals now have the respect and dignity that recognize their relationships, adding. "Frankly, the simplest and most straight-forward thing for the state to have done would have been to issue the amended death certificates in the first place and not insist that the surviving spouses would have to jump through hoops before they would be willing to amend death certificates." The court ruled the state could no longer require specific court orders to amend same sex death certificates, though they still require supporting and verifiable documentation. Additionally, the same sex marriage couple must be legally married at the time a spouse passes, and to amend a death certificate, the original must have omitted marital status and the surviving spouse's name. "Appeals usually runs 30 days from entry of judgment and we're not even at two weeks yet," Loewy said. "But it will be pretty shocking for the state to take a position that they're not required to provide amended death certificates to same sex marriage spouses. It's a really straightforward application of all of the rulings regarding marriage equality and it would be an act of supreme resistance for the state to want to appeal this, not to mention just cruel to do so." FLORIDA: To Pay Millions to Homeowners for Lost Citrus Trees ------------------------------------------------------------ Gary Fineout at The Ledger reports that Florida may drop a long- running legal battle and instead agree to pay millions to homeowners across the state whose healthy citrus trees were torn down in a failed attempt to eradicate citrus canker. House Republicans have agreed to spend USD66 million to end lawsuits filed on behalf of homeowners in Broward, Lee and Palm Beach counties. There are also lawsuits that were filed in both Orange and Miami-Dade counties that could eventually push up the cost even more. Rep. Carlos Trujillo, a House budget chairman, defended making the payments now because lower courts have already ruled against the state in several counties. The House has included the money in its proposed USD81.2 billion budget that will be voted on next week. "We should pay a judgment that has been levied against us," Trujillo said. "Just kicking the can down the road for the next legislature is probably not the best idea." The House move to pay off the lawsuits now runs counter to a suggestion from Agriculture Commissioner Adam Putnam. Putnam said in a statement that "for the sake of fairness" he has maintained that the state should not pay anything until the court cases reach the state Supreme Court, adding the "courts have ordered wildly different amounts of compensation to the homeowners." Since 2011 Putnam's office has spent at least USD3.17 million with private attorneys to defend the state in the litigation. The Senate -- which is working on a rival budget -- so far has not agreed to go along with the payment. Sen. Rob Bradley, a north Florida Republican who oversees the budget committee responsible for spending on agricultural issues, said he was surprised that the House had proposed paying off the lawsuits now. But he said he was open to discussing the payments with the House. "It's certainly a liability that is hanging over the state of Florida," Bradley said. Canker is a bacterial disease that blemishes a tree's fruit and can cause it to drop prematurely, although fruit that ripens can still be squeezed for juice -- the primary use of Florida's commercial citrus crop. After a 53-year lull, canker reappeared in Florida in 1986 and was spread by the wind. A last-ditch attempt to protect Florida's USD9 billion dollar citrus industry from widespread contamination began in 2000, as the state ordered the destruction of even healthy citrus trees within 1,900 feet of an infected tree with or without the owner's permission. More than 16 million trees were destroyed statewide during the six-year program, including 865,000 residential trees, before a series of hurricanes spread canker too widely to be eradicated. For compensation, the state gave each homeowner a USD100 Wal-Mart gift card for the first tree killed and USD55 cash for each subsequent tree, but thousands complained their trees were worth much more. Class-action lawsuits were filed and courts agreed. Judges ordered homeowners in Broward, Lee, Orange and Palm Beach counties to be fully compensated. Those rulings total about USD100 million and a Miami-Dade County case that remains open could double that. Part of the judgments include payments to the law firms that filed the lawsuits. FLORIDA ROOFING: "Molina" Suit Claims Unpaid Overtime Pay --------------------------------------------------------- Richard Molina, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. Florida Roofing Solutions, Inc., Florida Gc Solutions, Inc. and Edwin Gaitan, Defendants, Case No. 4:17-cv- 01064 (S.D. Tex., April 6, 2017) seeks to recover unpaid overtime wages, liquidated damages and attorneys' fees and costs under the Fair Labor Standards Act. Defendants performs roofing, re-roofing, maintenance and repair work for clients in the commercial and industrial sectors throughout Florida where Molina worked as an iron worker. [BN] Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 FLOWERS BAKING: "Miller" Suit Seeks Overtime Pay ------------------------------------------------ Holley Miller, on behalf of herself and others similarly situated, Plaintiff, v. Flowers Baking Co. of Ohio, LLC, Defendant, Case No. 3:17-cv-00725 (N.D. Ohio., April 6, 2017), seeks damages in the amount of unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest, court costs, reasonable attorneys' fees and all other relief as allowed by the Fair Labor Standards Act. Flowers produces and markets a wide variety of fresh and frozen bakery food including breads, buns, rolls, snack cakes and pastries. Miller was employed by Defendant as a route driver. [BN] The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 Email: hans@ohlaborlaw.com Email: sdraher@ohlaborlaw.com - and - Anthony J. Lazzaro, Esq. Chastity L. Christy, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Phone: (216) 696-5000 Facsimile: (216) 696-7005 Email: chastity@lazzarolawfirm.com anthony@lazzarolawfirm.com FORD MOTOR: Class Action Over Exhaust Odors Can't Proceed --------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that an Illinois man will not be allowed to pursue his attempt at a class action lawsuit against Ford Motor Company over exhaust odors that had accumulated in passenger cabins of some of their vehicles -- in part because a similar class action is nearing settlement in Florida. On April 6, U.S. District Judge Sara L. Ellis dismissed with prejudice the second amended complaint of plaintiff David Schiesser, who said the 2013 Ford Explorer he bought from Joe Rizza Ford in Orland Park developed a problem with exhaust odor. According to the opinion, Schiesser bought the car in June 2012, and in August or September 2015 -- after the three-year warranty expired -- noticed the odor. He brought it to the dealership that October for repairs. Through the dealership, Ford proposed two repairs, each costing between $800 and $900, but neither guaranteed to fix the problem. Absent that promise, Mr. Schiesser opted not to have the work done. Mr. Schiesser filed suit in 2016, represented by attorneys with the firms of Wexler Wallace LLP, of Chicago, and Audet & Partners, of San Francisco. Judge Ellis' background said Ford began issuing technical service bulletins acknowledging the defect in December 2012. "Ford provided the TSBs to authorized dealerships, but not to non- Ford automotive repair facilities," Judge Ellis wrote. "Ford also did not disclose these TSBs to its customers." The National Highway Transportation Safety Administration started looking into the exhaust leak issue in July 2016. Judge Ellis also noted a federal court in Florida has preliminarily approved a nationwide settlement addressing Mr. Schiesser's allegations, further impeding his ability to sue. Mr. Schiesser's second amended complaint included claims for breach of express warranty, common law fraud and violation of the Magnuson-Moss Warranty Act, Illinois Uniform Deceptive Trade Practices Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. Ford moved to dismiss the complaint, challenging the sufficiency of Schiesser's allegations. Judge Ellis first considered whether Mr. Schiesser sufficiently claimed the vehicle's warranty terms are "unconscionable." He contended the terms were unconscionable because Ford knew of the defect when the car was sold, but Judge Ellis wrote the complaint "contains no allegations that Ford knew that carbon monoxide was entering vehicle compartments at the time Mr. Schiesser purchased his vehicle." Further, Mr. Schiesser declined purchase of an extended warranty and did not seek to have the problem repaired inside the time before the factory warranty expired. The Magnuson-Moss Warranty Act creates a federal cause of action for breach of written and implied warranties under state law, Ellis wrote, and Mr. Schiesser's claim here fails by virtue of the failure of the state breach complaint. In arguing Judge Ellis should dismiss the UDTPA claim, Ford said federal law does not allow Mr. Schiesser to request an injunction forcing the automaker to develop a fix for the defect. "Although Schiesser does not characterize his requested relief in so many words," Judge Ellis wrote, "he clearly seeks a recall" -- a determination functionally within the power only of the U.S. Secretary of Transportation, not a judge. Further, Judge Ellis said, Mr. Schiesser's pursuit of remedies distinct from what the Florida court has already preliminarily approved runs "contrary to well-established principles of judicial comity and efficiency." Judge Ellis rejected Mr. Schiesser's fraud allegations by finding he failed to identify "any communication by Ford, let alone one that omitted disclosure of the defect," that induced him to buy the car. His complaint referenced several Ford documents, but does not say, "he saw or heard any of the allegedly deceptive communications prior to purchasing the vehicle." In summary, Judge Ellis noted the second amended complaint does not cure the deficiencies identified in the first complaint, leading her to dismiss with prejudice, terminating the case. Ford was represented in the action by the firm of DLA Piper, of Chicago and Baltimore. FRANKLIN COLLECTION: "Hernandez" Suit Alleges FDCPA Violation ------------------------------------------------------------- Guillermo Hernandez, individually and on behalf of all others similarly situated, Plaintiff, v. Franklin Collection Service, Inc., and Does 1 through 10, inclusive, Defendant, Case No. 8:17- cv-00637, (C.D. Cal., April 7, 2017), seeks statutory damages, actual damages, reasonable attorneys' fees and costs of suit, prejudgment interest and such other further relief under the Federal Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act. Defendant contacted Plaintiff regarding an alleged debt using a letter making threats to sue Plaintiff if he did not pay the alleged debt in full. Hernandez feels deceived, anxious and harassed due to this. [BN] Plaintiff is represented by: Todd M. Friedman, 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 abacon@toddflaw.com GATEWAY GROUP: Faces Class Action in N.J. Over Racetrack Wages ------------------------------------------------------------- Bill Wichert, writing for Law360, reports that a security firm and other employers of workers at Monmouth Park Racetrack have been slapped with a putative class action in New Jersey state court alleging they have failed to pay the wages required under a state statute dealing with building services at state-owned and state- leased facilities. Named plaintiff Joseph DiCosta brought the suit against his onetime employer, Newark-based Gateway Group One, and other entities, claiming they are in violation of the New Jersey State Building Service Contracts Act, according to the complaint filed on March 29 in Essex County Superior Court. "Defendants' ongoing illegal policies of failing to pay class members at the proper hourly rate has resulted in class members being denied substantial legally required compensation," the complaint states. "As a result of defendants' conduct, the class members have endured significant economic damages." The complaint proposes a class of all individuals employed by the defendants since March 2011 at the racetrack in positions that require compensation pursuant to the statute, "including but not limited to security services, cleaners, painters, electricians, laborers and grounds workers." The proposed class members have lived in New Jersey at all times relevant to the matter, the complaint says. Gateway Group One entered into an agreement to perform security services at the racetrack, according to the complaint. The complaint states that Mr. DiCosta worked for the company at Monmouth Park during 2014, but it does not specify the position he held. The other defendants are identified in the complaint as "ABC Corps. and Jane and John Does." The racetrack, located in Oceanport Borough, New Jersey, is owned by the New Jersey Sports and Exposition Authority. The New Jersey Thoroughbred Horsemen's Association operates the racetrack under a lease agreement with the authority. Under the New Jersey State Building Services Contracts Act, contractors and subcontractors furnishing building services at state-owned and state-leased facilities must pay prevailing wages to their employees. In June 2015, Mr. DiCosta's attorney, Ravi Sattiraju, brought a similarly proposed class action against the operator of the Meadowlands Racetrack, alleging that the company failed to pay a security guard, Darlene Sharpe, and other workers the hourly rates required under the act. But a trial court in October 2015 dismissed Sharpe's first amended complaint against New Meadowlands Racetrack LLC, and a state appellate panel affirmed that decision on Jan. 20, 2017. The panel found that the prevailing wage requirements do not apply to the company since they are limited to contracts entered into by the state for the "principal purpose" of furnishing building services. Although a lease agreement with the New Jersey Sports and Exposition Authority, which owns the East Rutherford property, requires New Meadowlands to provide building services, "the contract between NJSEA and NMR was not for the principal purpose of furnishing building services, but rather to run a racetrack," the panel said. In an order filed on April 6, the New Jersey Supreme Court refused to second-guess the appellate ruling and denied Sharpe's petition for certification. Mr. Sattiraju and a spokesman for Gateway Group One could not immediately be reached for comment on April 10. Mr. DiCosta is represented by Ravi Sattiraju of the Sattiraju Law Firm PC. Counsel information for Gateway Group One was not immediately available. The case is Joseph DiCosta v. Gateway Group One et al, case number L-2310-17, in the Superior Court of New Jersey, County of Essex. GENEVA, NY: Faces Class Action Over Arsenic Contamination --------------------------------------------------------- David L. Shaw, writing for Finger Lake Times, reports that the city is responsible for the cleanup of lead and arsenic from the soil at the former Geneva Foundry on Jackson Street. In an update to City Council dated April 5, City Manager Matt Horn said a work plan was submitted to the state Department of Environmental Conservation for review and approval. The DEC is responsible for cleanup in the neighborhoods surrounding the foundry site, and Horn said the city is pushing for expedited remediation effort. Horn said he expects a public meeting in June to discuss remediation of the foundry property, which is owned by the city. The city hopes the property can be sold and redeveloped after the cleanup. "We expect the remediation will happen in August," Mr. Horn said. The plan calls for the removal of the top foot of soil on the property, disposal in an approved facility and replacement of the soil with clean soil cover. A class action lawsuit against the city, Ontario County, the DEC and state Health Department as been filed on behalf of 136 property owners in the Foundry neighborhood. One of them is City Councilor-at-Large Mark Gramling. The basis of the claims is that the lead and arsenic contamination was known in the mid-1980s, but property owners were not notified until last fall, preventing them from taking action to avoid the contamination or make decisions to not buy a home in that neighborhood. Mr. Horn said the city sent notices to the people who filed notices of claims against the city to schedule a 50-h hearing within 90 days. Those hearings have been scheduled from April through June. Other updates provided by Horn include: DEC NEIGHBORHOOD REMEDIATION: -- The state has retained two consulting firms, Ecology & Environment and LaBella Associates, to complete the investigation and remediation. -- The DEC issued a fact sheet in March to all property owners in the neighborhoods. -- City staff met with Ecology & Environmental and DEC officials on Feb. 17, Feb. 29, March 13, March 23 and April 4. They discussed the anticipated schedule, dissemination of information in English and Spanish to the residents, access to city property in the neighborhood for staging equipment used to remove, haul away and replace the contaminated soil and scheduling another public meeting. DEC REMEDIATION SCHEDULE: -- Mr. Horn said 30 properties have been identified as priority sites, based on their use, such as day care facilities, proximity to the former foundry site and ability to secure access from the property owners. -- For those 30 properties, notices were sent March 15. Further investigation is needed to prepare a remediation plan. Those properties will be remediated first. -- Mr. Horn said the city continues to push for an expedited schedule for remediation. -- Approximately 100 properties have been identified that need additional sampling. Notices were sent to those property owners March 21 and access is needed to sample and define the boundary of the remediation area. -- Other properties are supposed to get an updated letter. If such a letter is received, Horn said the property owners should send back the access authorization so DEC can start the process. REMEDIATION CONTRACTORS: -- DEC agreed to provide the city with weekly or bi-weekly scheduled updates. -- For April, a staging area will be set up on State Street across from the Geneva Peeps egg cooperative. A limited access agreement is being negotiated for the owners of that parcel. -- Consultants are completing property boundary surveys for residential properties. -- Consultants are sampling soils of residential properties. That will start for field sampling and April 17 for geoprobe or underground sampling. -- Remediation work is scheduled to start in July. "The city has no control over the neighborhood cleanup schedule and remains disappointed with the state's proposed remediation schedule," Mr. Horn said. "We continue to push for a quicker resolution by outreach to the DEC central office in Albany and the Region 8 director in Avon." He said once the initial rounds of sampling are completed and the consultants develop the work plans for the first round of residential areas, it's expected "the schedule will move faster." "The city will continue to push for a more expedited schedule once the initial investigation work is completed," Horn said. FOUNDRY FACTS A foundry operation at 23 Jackson St. began in 1868 and ended in 1988. During those 120 years, the foundry emitted lead, arsenic and other contaminants through its smokestacks, much of it landing on the foundry grounds and in the soils of surrounding residential neighborhoods. The city acquired the property for back taxes in 1998 and entered it into the state's environmental restoration program. The foundry buildings were demolished and removed in 2005, leaving only slabs and foundations. It is zoned for commercial and industrial uses. When operating, the foundry melted cast iron objects by burning processed coal or coke mixed in layers with scrap and unrefined iron. Soil samplings in the mid-1980s revealed elevated levels of lead and arsenic in the soil on a handful of nearby properties. However, no warnings were issued to homeowners until last fall. GENVEC INC: "Mussman" Sues Over Shady Merger Deal with Intrexon --------------------------------------------------------------- Steven Mussman, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. Genvec, Inc., Douglas J. Swirsky, Michael Richman, Wayne T. Hockmeyer, William N. Kelley, Stefan D. Loren, Quinterol J. Mallette and Marc R. Schneebaum, Defendants, Case No. 1:17-cv-00388 (D. Del., April 6, 2017) seeks to preliminarily and permanently enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of GenVec by Intrexon Corporation and any vote on such, unless and until defendants disclose and disseminate the material information to GenVec stockholders; rescissory damages in case the merger pushes through; costs of this action, including reasonable allowance for attorneys' and experts' fees; and such other and further relief under the Securities Exchange Act of 1934. For each share of GenVec common stock they own, GenVec stockholders will receive 0.297 shares of Intrexon common stock, representing $7.00 per share of GenVec common stock based on Intrexon's 5-day volume weighted average price as of January 23, 2017. The Registration Statement with the SEC in connection with the merger omits GenVec management's and Intrexon's projections, including projections utilized by Roth Capital Partners, LLC in its financial analyses, Roth's potential conflicts of interest and the valuation analyses prepared by Roth in connection with the rendering of its fairness opinion, says the complaint. GenVec is a clinical-stage biopharmaceutical corporation located at 910 Clopper Road, Suite 220N, Gaithersburg, Maryland 20878. Intrexon is a company focused on synthetic biology that designs, builds and regulates gene programs. [BN] The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Tel: (302) 295-5310 - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly C. Keenan, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 GERON CORP: Settles Class Action, July 21 Fairness Hearing Set -------------------------------------------------------------- Jason Aycock, writing for Seeking Alpha, reports that Geron says in a filing that it's entered into a settlement resolving a consolidated class-action securities lawsuit. In exchange for dismissal with prejudice of all claims against all defendants in the matter, Geron is settling for $6.25M in cash -- $6M of which will be paid by Geron's insurers, with the company ponying up $250K and admitting no wrongdoing. The class consisted of buyers of the company's stock between Dec. 10, 2012 through and including March 11, 2014. The settlement heads for a fairness hearing on July 21, 2017. GLOBAL TEL-LINK: $8.8MM Accord in Lee-Martin Suit Has Initial OK ---------------------------------------------------------------- In the lawsuit titled ALICE LEE and DAVID W. MARTIN, on behalf of themselves and all others similarly situated, the Plaintiffs, v. GLOBAL TEL-LINK CORPORATION, the Defendant, Case No. 2:15-cv- 02495-ODW-PLA (C.D. Cal.), the Court provisionally grants the motion for class certification and preliminarily approves class settlement. Settlement Fund and GTL's Changing Practices: GTL will pay $8,800,000 into a common settlement fund. Class members who submit a claim will receive a pro-rata share of the balance of that amount--after payment of notice and administration costs, any Court-ordered award of attorneys' fees and expenses, and any Court-ordered incentive award for Plaintiff. Because the amount that class members will receive depends on the number of claims submitted, the parties cannot estimate with specificity the amount that members who submit claims are likely to receive. However, they conservatively estimate that if the percentage of potential class members who submit claims is in keeping with typical TCPA cases (roughly 5%), then each class member will receive about $60. In addition to the payment to class members who submit claims, GTL will change its practices to include in all Notification Calls an interactive-voice and/or keyactivated opt- out mechanism that the called party may use to opt-out of all future Notification Calls. The called party will also be provided with a toll-free number that can be used to opt-out. Finally, opting out is effective to block all future calls, regardless of the number of times an inmate attempts to call that number. The settlement amount shall be reserved and paid out as follows: 1. Opting In and Opting Out: After Notice is initially sent, class members will have 60 days in which to submit timely and valid requests for exclusion. Requests for exclusion must be mailed to the settlement administrator. Similarly, objections to the settlement must be made within 60 days. Objections must be filed with the Court. The parties have agreed that in order to ensure that only valid class members can object to the settlement, objectors must provide a valid claim ID, demonstrate ownership of a telephone number that appears on the class list based on GTL's records, or produce telephone records establishing receipt of a Notification Call. 2. Release of Claims: Any class member who does not opt out within the 60-day period described above will release all claims against GTL arising out of Notification Calls, calls made by automatic telephone dialing systems, and/or artificial or prerecorded voice calls to mobile telephones during the class period. 3. Calculation of Payment: Once the claims period has ended, the settlement administrator will calculate the amount each class member is to receive (the amount will be uniform among all class members, aside from any incentive award to the named plaintiff). 4. Method of Payment: The settlement administrator will send checks to the class members who submit valid claims. The recipients will then have 120 days to cash the check. Any amounts that remain uncashed after 120 days will be part of a second distribution, whereby any remaining funds will be distributed to class members who did cash their checks, provided that each member would receive at least $10 in the second distribution. After 120 days of the date of the checks in the second distribution, any remaining funds will be paid to the National Consumer Law Center, which works with the FCC to enforce the protections of the TCPA. No funds will revert to GTL. 5. Attorneys' Fees and Incentive Award: Class counsel has indicated that they will file a motion for attorneys' fees and for an incentive award for the named plaintiff. Further, the parties have not agreed that GTL is stipulating to a certain amount of fees or awards; GTL is permitted to oppose the requested awards. Moreover, the parties have agreed that the settlement is not contingent upon any such awards being granted. 6. Costs to be Deducted from the Settlement Amount: Deducted from the settlement fund will be: costs of notice and administration of settlement; any Court-ordered award of attorneys' fees and expenses; and any Court-ordered incentive award for Plaintiff. 7. Blow-Up Clause: The parties have not identified any particular number of claims or opt-outs that would void the settlement. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=pegMZOTN GREAT LAKES: Has Until April 24 to Respond to Class Action ---------------------------------------------------------- Ann Maher, writing for Madison Record, reports that Great Lakes Educational Loan Services has until April 24 to respond to a proposed class action claiming financially stressed borrowers were steered into costly repayment programs instead of more affordable income-driven repayment options. Plaintiff Nicole Denise Nelson, 33, of Shiloh filed suit in February in federal court in East St. Louis on behalf of potentially thousands of others seeking in excess of $5 million in compensatory, exemplary and punitive damages. Ms. Nelson is an attorney formerly employed at the Belleville office of the Illinois Attorney General. She is represented by Brandon Wise -- bwise@prwlegal.com -- and Paul Lesko -- plesko@prwlegal.com -- of Pfeiffer Rosca Wolf Abdullah Carr & Kane in St. Louis. The suit claims that Great Lakes Educational Loan Services, based in Madison, Wisc., has encouraged financially strapped borrowers into forbearance, "which is more costly to the student loan borrower but significantly less costly for the student loan servicer." At the heart of the case is how Great Lakes handles borrowers experiencing financial hardships that are not temporary. Such borrowers are being encouraged to file for forbearances, rather than more appropriate income-driven repayment plans, because it's in the best interests of the student-loan servicer, the complaint says. "In sum, counseling borrowers about alternative student loan payment plans and enrolling those student loan borrowers in income-driven repayment plans is costly for Defendants and its employees," the complaint says. "In contrast, enrollment of student loan borrowers in forbearance can often be completed over the phone, in a matter of minutes, and generally without the submission of any paperwork." The complaint indicates that 10 as yet unnamed individual defendants may be added to the complaint. Ms. Nelson began making payments on her student loans in December 2009 but entered into forbearance by November 2012, according to her complaint. Over the next few years, Ms. Nelson bounced in and out of forbearance, changed jobs and became unemployed, but when she discussed her situation over the phone with Great Lakes employees, she was told that her options were forbearance or a deferment, according to the complaint. "Plaintiff was not informed of alternative or income-driven repayment option," the complaint says. "These other alternative or repayment options would have likely allowed Plaintiff a $0.00 or extremely low monthly payment, and would have counted as qualifying payments towards loan forgiveness. Instead, Plaintiff was, pursuant to Defendants' policy and practice, steered into forbearance." The complaint points out that federal student loan borrowers who can't make monthly payments on their student loan debt may opt for alternative repayment plans that can include a percentage of their discretionary income or that can count toward loan forgiveness programs. "However, despite the wide-spread availability of income-driven repayment plans, and their clear benefits to student loan borrowers, student loan servicers, like Great Lakes, systematically deterred Plaintiff, and upon information and belief, potentially thousands of other borrowers from obtaining access to some or all of the benefits and protections associated with income driven repayment plans," the complaint says. Great Lakes steered financially stressed borrowers into forbearance programs instead of other, more long-term but less lucrative student-loan repayment options, according to the complaint. "Consequently, Great Lakes has failed to perform its core duties in the servicing of student loans," the complaint says. "Instead, Great Lakes has violated its duties to Plaintiff and others similarly situated under the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as violating the trust that student loan borrowers placed in the company, by steering struggling student loan borrowers into forbearance, rather than an eligible 'income-driven' repayment plan that could have provided monthly payments as low as $0.00 per month, a significant benefit to the struggling student loan borrower, but (potentially) less profitable for Defendants." Members of the class in this case would be anyone who lives in Illinois, has student-loan contracts in the state and, since Feb. 21, 2014, "were subjected to Defendants' unfair and deceptive conduct," the complaint says. The case is presided over by District Judge Nancy Rosenstengel. Magistrate Judge Stephen Williams will handle pre-trial proceedings. HEALTHPORT TECHNOLOGIES: Sued for Overcharging for Health Records ----------------------------------------------------------------- Louie Torres, writing for Legal Newsline, reports that a class action lawsuit has been filed against Healthport Technologies LLC, IOD Inc. and CIOX Health LLC, citing alleged breach of contract, fraud and unjust enrichment from overcharging patients for health records. Leon Kuchenmeister, Cindy A. Hugger-Gravitt, and Beth A. Bretoi filed a complaint on behalf of all those similarly situated on March 20, in the U.S. District Court for the District of Georgia against the defendants, alleging that they excessively charged the plaintiffs for copies of their personal health information. According to the complaint, Mr. Kuchenmeister, Ms. Hugger-Gravitt and Ms. Bretoi sustained financial harm from being unlawfully charged. The plaintiffs hold Healthport Technologies, IOD Inc. and CIOX Health responsible because the defendants allegedly charged their patients for providing medical records requested by their physicians or hospitals. The plaintiffs request a trial by jury and seek out-of-pocket damages in an amount that exceeds $6.50 per request, compensatory damages, exemplary and/ or punitive damages, injunction against the defendant, court costs and any further relief the court grants. They are represented by Justin T. Holcombe and Kris Skaar of Skaar & Feagle LLP in Woodstock, Ga. U.S. District Court for the District of Georgia Case number 1:17- cv-01001-RWS HERON RIDGE: "Steinman" Suit to Recover Overtime Pay ---------------------------------------------------- Linda Steinman, individually and on behalf of all others similarly situated, Plaintiff, v. Heron Ridge Associates, PLLC and Debra Scheck, jointly and severally, Defendants, Case No. 2:17-cv-11123, (E.D. Mich., April 10, 2017), seeks to recover overtime compensation, liquidated damages, attorney's fees, litigation costs, costs of court, and pre-judgment and post-judgment interest under the provisions of the Fair Labor Standards Act of 1938. Heron Ridge, provides mental health and chemical dependency services throughout Southeast Michigan. It maintains offices in Clarkston, Ann Arbor, Plymouth and Bingham Farms. Steinman worked at Defendant's Plymouth and Ann Arbor offices as a billing coordinator and receptionist. Plaintiff is represented by: Charlotte Croson, Esq. Joseph X. Michaels, Esq. NACHTLAW, P.C. 101 North Main Street, Suite 555 Ann Arbor, MI 48104 Tel: (734) 663-7550 Email: ccroson@nachtlaw.com jmichaels@nachtlaw.com IAC/INTERACTIVECORP: Delaware Law Class Action in Discovery ----------------------------------------------------------- A Delaware Law class action litigation against IAC is in discovery, IAC/Interactivecorp said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On November 21, 2016, following the Company's announcement in its Definitive Proxy Statement of a proposal to adjust the Company's capital structure by adopting an amendment and restatement of the Company's certificate of incorporation (the "New Certificate") to establish a new class of non-voting capital stock, which would be known as Class C common stock, and potentially declaring and paying a dividend of one share of the Class C common stock for each outstanding share of IAC common stock and Class B common stock (the "Dividend" and, together with the adoption of the New Certificate, the "Class C Issuance"), a putative class action lawsuit was filed in the Delaware Court of Chancery against the Company and its Board of Directors purportedly on behalf of the Company's stockholders. See Miller et al. v. IAC/InterActiveCorp et al., C.A. No. 12929-VCL (Del. Ch. Ct.). The lawsuit generally alleged, among other things, that IAC's directors breached their fiduciary duties in connection with the proposed Class C Issuance inasmuch as it was allegedly designed to unduly benefit the Company's Chairman and Senior Executive, Barry Diller, in respect of his alleged voting control of the Company and would harm IAC's public stockholders. Among other remedies, the lawsuit sought to enjoin the filing of the New Certificate with the Delaware Secretary of State, as well as unspecified money damages. On November 22, 2016 and December 12, 2016, two additional putative class action lawsuits were filed in the Delaware Court of Chancery against the Company and its Board of Directors purportedly on behalf of the Company's stockholders and asserting substantially similar allegations, claims and remedies as in the Miller lawsuit. See Halberstam v. Bronfman et al., C.A. No. 12935-VCL (Del. Ch. Ct.), and California Public Employees' Retirement System v. IAC/InterActiveCorp et al., No. 12975-VCL (Del. Ch. Ct.). All three lawsuits have been consolidated as In re IAC/InterActiveCorp Class C Reclassification Litigation, No. 12975-VCL, and the Court has designated the CalPERS complaint as the operative complaint in the case and established a case schedule. On January 23, 2017 and February 3, 2017, the defendants filed answers denying the material allegations of the complaint. The case is currently in discovery. While the Class C Issuance was approved at the Company's 2016 Annual Meeting of Stockholders, the Company has agreed not to effect the Class C Issuance during the pendency of the lawsuit described immediately above, and the Delaware Court of Chancery has been so informed. "We believe that this lawsuit, and the material allegations and claims therein, are without merit and intend to continue to defend against them vigorously," the Company said. IAC is a media and Internet company comprised of widely known consumer brands, such as HomeAdvisor, Vimeo, Dictionary.com, The Daily Beast, Investopedia, and Match Group's online dating portfolio, which includes Match, Tinder, PlentyOfFish and OkCupid. IAC/INTERACTIVECORP: Still Defending Suit v. Match Group -------------------------------------------------------- IAC/Interactivecorp continues to defend a securities class action litigation against Match Group, IAC said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On February 26, 2016, a putative nationwide class action was filed in federal court in Texas against Match Group, five of its officers and directors, and twelve underwriters of Match Group's initial public offering in November 2015. See David M. Stein v. Match Group, Inc. et al., No. 3:16-cv-549 (U.S. District Court, Northern District of Texas). The complaint alleged that Match Group's registration statement and prospectus issued in connection with its initial public offering were materially false and misleading given their failure to state that: (i) Match Group's Non-dating business would miss its revenue projection for the quarter ended December 31, 2015, and (ii) ARPPU (as defined in "Item 2-Management's Discussion and Analysis of Financial Condition and Results of Operations-General-Key Terms") would decline substantially in the quarter ended December 31, 2015. The complaint asserted that these alleged failures to timely disclose material information caused Match Group's stock price to drop after the announcement of its earnings for the quarter ended December 31, 2015. The complaint pleaded claims under the Securities Act of 1933 for untrue statements of material fact in, or omissions of material facts from, the registration statement, the prospectus, and related communications in violation of Sections 11 and 12 and, as to the officer/director defendants only, control-person liability under Section 15 for Match Group's alleged violations. The complaint sought among other relief class certification and damages in an unspecified amount. On March 9, 2016, a virtually identical class action complaint was filed in the same court against the same defendants by a different named plaintiff. See Stephany Kam-Wan Chan v. Match Group, Inc. et al., No. 3:16-cv-668 (U.S. District Court, Northern District of Texas). On April 25, 2016, Judge Boyle in the Chan case issued an order granting the parties' joint motion to transfer that case to Judge Lindsay, who is presiding over the earlier-filed Stein case. On April 27, 2016, various current or former Match Group shareholders and their respective law firms filed motions seeking appointment as lead plaintiff(s) and lead or liaison counsel for the putative class. On April 28, 2016, the Court issued orders: (i) consolidating the Chan case into the Stein case, (ii) approving the parties' stipulation to extend the defendants' time to respond to the complaint until after the Court has appointed a lead plaintiff and lead counsel for the putative class and has set a schedule for the plaintiff's filing of a consolidated complaint and the defendants' response to that pleading, and (iii) referring the various motions for appointment of lead plaintiff(s) and lead or liaison counsel for the putative class to a United States Magistrate Judge for determination. In accordance with this order, the consolidated case is now captioned Mary McCloskey et ano. v. Match Group, Inc. et al., No. 3:16-CV-549-L. On June 9, 2016, the Magistrate Judge issued an order appointing two lead plaintiffs, two law firms as co-lead plaintiffs' counsel, and a third law firm as plaintiffs' liaison counsel. On July 27, 2016, the parties submitted to the Court a joint status report proposing a schedule for the plaintiffs' filing of a consolidated amended complaint and the parties' briefing of the defendants' contemplated motion to dismiss the consolidated complaint. On August 17, 2016, the Court issued an order approving the parties' proposed schedule. On September 9, 2016, in accordance with the schedule, the plaintiffs filed an amended consolidated complaint. The new pleading focuses solely on allegedly misleading statements or omissions concerning the Match Group's Non-dating business. The defendants filed motions to dismiss the amended consolidated complaint on November 8, 2016. The plaintiffs filed oppositions to the motions on December 23, 2016, and the defendants filed replies to the oppositions on February 6, 2017. "We and Match Group believe that the allegations in these lawsuits, and the material allegations and claims therein, are without merit and intend to continue to defend against them vigorously," the Company said. IAC is a media and Internet company comprised of widely known consumer brands, such as HomeAdvisor, Vimeo, Dictionary.com, The Daily Beast, Investopedia, and Match Group's online dating portfolio, which includes Match, Tinder, PlentyOfFish and OkCupid. IGNITE PAYMENTS: JWD Automotive Sues Over Unsolicited Fax --------------------------------------------------------- JWD Automotive, Inc. d/b/a individually and as the representative of a class of similarly-situated persons, Plaintiff, v. Ignite Payments, LLC and John Does 1-5, Defendants, Case 2:17-cv-00191 (M.D. Fla., April 7, 2017) seeks actual monetary loss, treble damages, pre-judgment interest, costs and such further relief under the federal Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. JWD Automotive, Inc. operates as Napa Auto Care of Cape Coral. On or about April 5, 2017, Defendants used a telephone facsimile machine, computer, or other device to send an unsolicited facsimile to Plaintiff. [BN] Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Email: rkelly@andersonwanca.com INGRAM MICRO: Class Action Over HNA Merger Plan Dismissed --------------------------------------------------------- If you held shares of Ingram Micro Inc. between February 17, 2016 and December 5, 2016, this Notice contains important information regarding the dismissal of a putative class action concerning the acquisition of Ingram Micro Inc., and an agreement to pay attorneys' fees and expenses to counsel for Plaintiff in that action. The purpose of this notice is to inform former stockholders of Ingram Micro Inc. ("Ingram Micro") about developments with respect to the litigation in the Delaware Court of Chancery styled Scheiner v. Ingram Micro Inc., et al., C.A. No. 12380-VCMR (the "Action"). On February 17, 2016, Ingram Micro announced the proposed acquisition of Ingram Micro by affiliates of HNA Group Co., Ltd. ("HNA Group") for $38.90 per share in cash, pursuant to a definitive agreement and plan of merger filed with the United States Securities and Exchange Commission ("SEC") on February 17, 2016 (the "Transaction"). On May 19, 2016, Ingram Micro filed a Definitive Proxy Statement on Schedule 14A (the "Proxy Statement") with the SEC in connection with the Transaction. On May 25, 2016, a purported Ingram Micro stockholder ("Plaintiff") commenced the Action by filing a Verified Class Action Complaint (the "Complaint") in the Delaware Court of Chancery, alleging claims for breach of fiduciary duty against the Board of Directors (the "Board") of Ingram Micro and aiding and abetting against HNA Group, Tianjin Tianhai Investment Company, Ltd. and GCL Acquisition, Inc. in connection with the Transaction. On May 25, 2016, Plaintiff filed a Motion for Expedited Proceedings in the Delaware Court of Chancery. On June 2, 2016, Ingram Micro filed a supplement to the Proxy Statement on Form DEF14A with the SEC that Plaintiff believes addressed and mooted the claims raised in the Complaint regarding the sufficiency of the disclosures in the Proxy Statement. On June 21, 2016, Ingram Micro stockholders voted to approve the Transaction, which closed on December 5, 2016. On March 13, 2017, the Delaware Court of Chancery entered a Stipulation and Order dismissing the Action with prejudice as to Plaintiff, and without prejudice as to any other putative class member, and retaining jurisdiction solely for the purpose to determine Plaintiff's counsel's anticipated application for an award of attorneys' fees and reimbursement of expenses based upon the alleged benefits provided by certain supplemental disclosures set forth in the supplement to the Proxy Statement (the "Fee and Expense Application"). After negotiations, Ingram Micro has agreed to make a fee and expense payment to Plaintiff's counsel in the Action in the amount of $142,500 to resolve the Fee and Expense Application. The Delaware Court of Chancery has not been asked to review, and will pass no judgment on, this payment of fees and expenses or its reasonableness. If you have any questions regarding the Action, please contact the attorneys below: RIGRODSKY & LONG, P.A. Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 (302) 295-5310 Attorneys for Plaintiff MORRIS, NICHOLS, ARSHT & TUNNELL LLP William M. Lafferty, Esq. 1201 North Market Street, 16th Floor Wilmington, DE 19801 (302) 658-9200 Attorneys for Defendants INTERACTIVE BROKERS: Motion to Dismiss Suit Underway ---------------------------------------------------- Interactive Brokers Group, Inc.'s motion to dismiss a class action complaint remains pending, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On December 18, 2015, a former individual customer filed a purported class action complaint against IB LLC, IBG, Inc., and Thomas Frank, PhD, the Company's Executive Vice President and Chief Information Officer, in the U.S. District Court for the District of Connecticut. The complaint alleges that the former customer and members of the purported class of IB LLC's customers were harmed by alleged "flaws" in the computerized system used by the Company to close out (i.e., liquidate) positions in customer brokerage accounts that have margin deficiencies. The complaint seeks, among other things, undefined compensatory damages and declaratory and injunctive relief. On February 19, 2016, the Company filed a motion to dismiss the class action complaint. On September 28, 2016, the Court issued an order granting the Company's motion to dismiss and dismissing the complaint in its entirety, and without providing plaintiff leave to amend. On October 5, 2016, the Court entered judgment in the Company's favor. On October 12, 2016, plaintiff filed motions for leave to file an amended complaint and to vacate or amend judgment, which the Company opposed. The Court has not yet ruled on these motions. "We believe that the proposed amended complaint, like the original complaint, lacks merit. Further, even if the complaint ultimately were to survive a motion to dismiss, we do not believe that a purported class action is appropriate given the great differences in portfolios, markets and many other circumstances surrounding the liquidation of any particular customer's margin-deficient account. IB LLC and the related defendants intend to continue to defend themselves vigorously against the case and, consistent with past practice in connection with this type of unwarranted action, any potential claims for counsel fees and expenses incurred in defending the case shall be fully pursued against the plaintiff." Interactive Brokers Group, Inc. is an automated global electronic broker and market maker. J&D TRANSPORTATION: "Thomas" Suit to Recover Overtime Pay --------------------------------------------------------- Bobby Thomas, on behalf of himself and those similarly situated, Plaintiff, v. J&D Transportation and John Does 1-10, Defendants, Case No. 3:17-cv-02434 (D.N.J., April 10, 2017) seeks overtime compensation and minimum wage compensation as well as reimbursement of all pay and benefits denied, liquidated damages, costs and expenses of this action and reasonable legal fees and all other relief under the Fair Labor Standards Act and the New Jersey Wage Payment Law. J&D Transportation operates a medical transportation company where Plaintiff worked as a driver. [BN] The Plaintiff is represented by: Matthew D. Miller, Esq. Justin L. Swidler, Esq. Richard S. Swartz, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway N., Ste. 402 Cherry Hill, NJ 08034 Phone: (856) 685-7420 Fax: (856) 685-7417 JANET ROUSSELL: "Legros" Suit to Recover Overtime Pay ----------------------------------------------------- Tyler Legros, Individually and on Behalf of All Others Similarly Situated, v. Janet Roussell, Shelby Roussell and Rocky Roussell, Case No. 6:17-cv-00506 (W.D. La., April 7, 2017) seeks unpaid overtime compensation, liquidated damages, attorneys' fees, costs and expenses, pre- and post-judgment interest and such other and further relief under the Fair Labor Standards Act of 1938. Janet Roussell, Shelby Roussell and Rocky Roussell rent solids control equipment such as centrifuges, de-sanders and de-silters, to the oil and gas industry. Defendants employed Plaintiff as field service technician to operate, maintain, service and repair these machines. The Plaintiff is represented by: Matthew S. Parmet, Esq. David I. Moulton BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Telecopier: (713) 877-8065 Email: mparmet@brucknerburch.com dmoulton@brucknerburch.com - and - Kenneth W. DeJean, Esq. LAW OFFICES OF KENNETH W. DEJEAN 417 W. University Ave. P.O. Box 4325 Lafayette, LA 70502 Telephone: (337) 235-5294 Telecopier: (337) 235-1095 Email: kwdejean@kwdejean.com JB & J: Residents Call for Investigation in Caravan Park -------------------------------------------------------- Carl Eve at The Herald reports that retired caravan park residents say they want Cornwall Council to investigate park owners for allegedly breaching terms of an order put in place to stop them treating residents unfairly. Tony Turner, chairman of the St Dominic Park Residents' Association in Cornwall has long battled on behalf of residents at Harrowbarrow, Cornwall, as well as residents at a number of other parks owned and operated by JB & J Small Park Homes, who also trade as Sovereign Park Homes Estates Ltd and Sovereign Park Home Developments Ltd. Mr. Turner said he formed the JBS Residents Action Alliance in order to bring residents' associations and their members across the various counties together and that this was a class action involving financial transparency. In 2014 The Herald reported how Plymouth Magistrates Court ordered Jeffery Small (Junior) -- co-owner of the St Dominic's Park and Planet Park in Delabole -- to pay more than GBP11,500 after he admitted a slew of health and safety breaches at the two sites. Small (Junior), who jointly operates the company with his mother and formerly his father, had previously admitted nine breaches of the company's caravan site licensing conditions after inspections by Cornwall Council officials. The court heard the breaches included street lamps left with broken glass fittings, exposed wiring in a clubhouse and a former swimming pool building being demolished by unqualified personnel and in 2015 he was also found guilty of two public protection charges involving a site in Torbay, when the Judge described his evidence a "somewhat vague and evasive" In July 2015 The Herald's sister paper, the Herald Express reported on a court case at Newton Abbot Magistrates' Court where District Judge Kevin Grey found Jeffrey Small (Junior) guilty of two counts of recklessly engaging in commercial practices which contravene the requirements of professional diligence under unfair trading regulations. Mr. Small, who owned Beechdown Park near Paignton, was ordered to pay GBP28,120 on two charges relating to the construction of the concrete bases from homes at the park. Judge Grey told Small his "your conduct led to severe disruption for over a year. You showed a lack of knowledge in the construction industry." Following the case a Torbay Council spokesman said they were pleased with the guilty verdict, adding that its Trading Standards team aimed to "promote a fair and safe trading environment for the people of Torbay." On February 28 this year Mr. Turner, accompanied by large number of elderly park residents and the Small's legal representative attended Plymouth County Court regarding alleged breaches of an order, secured by Cornwall Council in January 2011, which had seen Small Junior agree to abide by Section 219 of the Enterprise Act 2002 not to undertake harassment of his tenants or breach duties of care. Mr. Turner argued that a recent series of bills for services and utility supplies handed to residents were in excess to what they should be and that requests for the original bills from utility companies were not answered and that requested Statements of residents accounts had not been forthcoming. Mr. Turner said these actions were effectively a continual breach of the 2011 order. After lengthy debate Judge Cotter QC stayed the case until May 1 "so as to allow Cornwall County Council to consider its position in light of the allegations made within this action", noting that while the council had investigatory powers via its Trading Standards officers, he himself did not have such powers. He noted that if Cornwall Council indicated it "did not intend to take any action in relation to said allegations, the parties were to liaise" and seek to agree directions "for the future conduct of this action". Following the hearing, Sovereign's legal representative wrote to Mr. Turner agreeing to settle the dispute. Mr. Turner told The Herald: "I notified Cornwall Council of the settlement and reminded them that Judge Cotter had stayed the case until he heard from them about their plans. "Our feeling is local authorities don't do what they are supposed to do, which is protect residents. "Cornwall council's trading standards are supposed to investigate the breach of order and any other issues under the consumer act. They have received a large number of complaints about breaches to the order. "As a result of their refusal to take action we've had to take it through the courts. We have the evidence and we've provided it to them -- so why haven't they pursued it? "Their response to me is "we've only got 10 trading standards officers and we get 6,500 complaints a year." A spokesman for Cornwall Council said: "Cornwall Council has confirmed that it will consider the investigation of alleged breaches and criminal offences where sufficient evidence is produced but at this time it is not in a position to instigate legal action, especially where such action would duplicate the County Court action brought by Mr. Turner. "Furthermore, the Council has asked that future complaints by the Residents Association are registered via the Citizens Advice Consumer Service so as to afford the same fair and proper treatment as the other 6,500 consumer complaints received by Cornwall Council each year." JC PENNEY: To Settle Vacation Pay Class Action for $1.75MM ---------------------------------------------------------- Kat Greene at Law 360 reports J.C. Penney Co. agreed to pay USD1.75 million to a group of ex-workers who had alleged in a once-certified class action the retailer was shorting them on pay for unused vacation days after they left the company, according to a proposed deal filed in California on April 7. The company won a bid to decertify the class in late 2015 and had beaten the claims in a summary judgment ruling last year, but agreed last fall to clear the slate with the ex-retail store employees after they took the case to the Ninth Circuit, court records show. The settlement is about a third of the total damages the workers alleged they'd suffered by the company's non-payment, according to the proposal. "This is a substantial recovery and much more than is routinely approved," the workers said in their motion for preliminary approval of the deal. "Moreover, this percentage recovery compares very favorably with named plaintiffs' likelihood of success on appeal." The suit was originally filed in April 2011 by two former J.C. Penney workers accusing the retailer of illegally forfeiting wages when employees left work, and committing unlawful business practices under California laws. J.C. Penney has argued that its "my time off" vacation policy clearly advised workers they could accrue vacation benefits only after the expiration of a waiting period, which equaled one year for non-management employees, and that vacation-time deposits were advances for future work instead of compensation for past work. While California does not require employers to offer employees paid vacation, if an employer does choose to offer such benefits, they are effectively considered additional wages for services performed and protected from forfeiture under state labor laws, according to court documents. The workers in the case initially won class certification in late 2014, but were decertified a year later when the court found the class wasn't cohesive enough to be heard as one group, court records show. Then, J.C. Penney won a summary judgment ruling on all claims, prompting the workers to call on the Ninth Circuit for an appeal. The parties had first alerted the court they were gearing up for a settlement in September while the employees were still appealing the summary judgment order in J.C. Penney's favor, court records show. But both the appeal and the trial court case were put on hold late last year while the department store and its ex-workers hammered out the terms of their accord, according to filings in the case. The deal proposed April 7 covers attorneys' fees and costs and any penalties under the state's Private Attorneys General Act, the filing shows. The attorneys will seek about USD612,500 in fees and no more than USD75,000 in costs, they said, and after PAGA penalties are paid out, plus other administrative costs, the amount left to be paid to class members is USD975,481, according to the filing. The class includes all part-time, non-management employees who worked at the company between April 5, 2007, and Oct. 20, 2016, and whose employment was terminated sometime in that period without them signing an arbitration agreement. An attorney for the employees declined to comment. A representative for J.C. Penney didn't immediately respond to a request for comment on April 7. The employees are represented by James C. Kostas and David Huffman of Huffman & Kostas and Sheldon A. Ostroff of Law Ofc Sheldon A Ostroff. J.C. Penney is represented by Catherine A. Conway -- cconway@gibsondunn.com -- and Karl G. Nelson -- knelson@gibsondunn.com -- of Gibson Dunn. The case is Raymond Tshudy et al. v. J.C. Penney Co. et al., case number 3:11-cv-01011, in the U.S. District Court for the Southern District of California. JEVIC HOLDING: Supreme Court Opinion to Impact Hedge Funds ---------------------------------------------------------- AllAboutAlpha reports that the U.S. Supreme Court's recent opinion in Czyzewski v. Jevic Holding Corp. matters to hedge funds pursuing a distressed assets strategy, because the Justices have now made it more clear than they had before that the absolute priority rule under the U.S. bankruptcy code's chapter 11 is . . . absolute. It isn't a suggestion. The take-away is that those entities financing acquisitions, including hedge funds that may be seeking alpha through unconventional loans, should not do so in the expectation that should there be a default, or should an unforeseen global financial crisis arise, there will be the safety net of a quick in-and-out structured lending dismissal to allow the entity to take back equity or assets of the debtor. Hedge funds or others who might be tempted by such a thought, who might also think that it is possible through such a structured dismissal to pay off those junior creditors whose assistance may be needful for the continuing operation of an entity in such a case, at the expense of someone in the middle, will have to think again. Failure, and Two Lawsuits But let's delve into the facts. This case came about because a PE concern, Sun Capital Partners, bought out the trucking company, Jevic, in 2006, using money it borrowed from CIT Group. In those go-go days, the presumption was that the rising housing and derivatives-enabled tide would keep all ships afloat, however heavily laden. But when the financial crisis hit, Jevic Transportation went to bankruptcy court. It filed there on May 16, 2008, just one month after the failure of Bear Stearns. In that context, Jevic filed, and it sent its employees termination notices. Almost immediately, this move elicited two lawsuits. First, Casimir Czyzewski and other employees as a class alleged violation of the Worker Adjustment and Retraining Notification Act (so named because someone really wanted it to have the acronym WARN). The employees won a judgment worth $12.4 million. Not all of those millions were created equal, though: for purposes of the Supreme Court ruling, the important fact is that $8.3 million of that judgment consisted of a priority wage claim under the bankruptcy statute and (in the words of the Supreme Court upon review), that claim was "therefore entitled to payment ahead of general unsecured claims against the Jevic estate." Separately, the bankruptcy court allowed a committee of Jevic's unsecured creditors to file a fraudulent conveyance lawsuit against Sun and CIT for fraudulent transfer, that is, contending that they had "hastened Jevic's bankruptcy by saddling it with debts that it couldn't service." Workers Bear the Burden of Structured Dismissal The bankruptcy court in this matter issued a "structured dismissal" of the chapter 11 petition that meant stiffing the workers, the WARN judgment creditors. Why did it do this? In short, it found that there was no preferable alternative. The estate had dwindled in value to the point where it couldn't even satisfy outstanding administrative and priority claims. The situation could be improved somewhat by a resolution of the fraudulent-conveyance lawsuit against Sun and CIT on terms that would require either or both of them to pay money into the estate, but that would requirement either their consent or the continued expenditure of resources on litigation. Normally, administrative insolvency would have called for a movement away from chapter 11, into chapter 7 liquidation. But in this case, the bankruptcy court found, the workers also would have gotten nothing, other junior creditors would have gotten nothing, and the fraudulent transfer action would have had to have been abandoned in the absence of the resources necessary to pursue it. The bankruptcy court, then, approved a structured dismissal of the litigation that involved a deposit of $2 million by CIT into an account earmarked to pay the unsecured creditor's committee for its costs; the transfer of a lien held by Sun on Jevic's remaining $1.7 million into a trust, which would pay low priority unsecured creditors; the dismissal of the fraudulent conveyance action; and the dismissal of the chapter 11 bankruptcy itself. That court, and the district court and then the appeals court, all found that this was the best available distribution, and no worse for the class- action workers than the alternative liquidation [although no better, because they get nothing on either time line.] Appeals Court Bought it, SCOTUS Did Not The appellate court said that "in rare cases like this one, [we] approve structured dismissals that do not strictly adhere to the Bankruptcy Court's priority scheme." The Supreme Court would have none of it. "[We] cannot find in the violation of ordinary priority rules that occurred here any significant offsetting bankruptcy-related justification," Justice Breyer wrote. The justification that was offered, if allowed here, would not be rare, and would have deleterious systemic effects even if it were. As Charles M. Tatelbaum, of the Florida law firm Tripp Scott, has written, "unsecured creditors, labor unions, ands other subordinated debt holders will be empowered with enhanced bargaining power should the need for a bankruptcy reorganization arise." JL WOODE: Denial of Leave to Amend Reversed, Action Remanded ---------------------------------------------------------------- The Illinois Appellate Court affirmed in part, reversed in part, and remanded action the appeals case captioned, Charlene KOPNICK, Plaintiff-Appellant, v. JL WOODE MANAGEMENT COMPANY, LLC; JL WOODE LTD., LLC EXIST [(sic)]; JL WOODE LTD., LLC EXIST [(sic], d/b/a HAWTHORNE HOUSE; and HAWTHORNE HOUSE LP, Defendants-Appellees, Case No. 1-15-2054 (Ill. App.). Charlene Kopnick sued her former landlord, claiming a violation of section 5-12-170 of Chicago's Residential Landlord and Tenant Ordinance (RTLO) (Chicago Municipal Code Section 5-12-170 (amended Nov. 17, 2010)), a violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2012)), and common law unjust enrichment with regard to her 2014 lease. Kopnick began renting and residing in a high rise apartment building at 3450 North Lake Shore Drive, Chicago, in January 2013. In count I, Kopnick alleged the landlord "did not give" her a summary copy of the RLTO, either when offering the 2014 lease or when she executed the 2014 lease, in violation of section 5-12-170 of the RLTO. She proposed to represent the interests of herself and the class of individuals who signed a new lease or a renewal lease with her landlord on or after January 1, 2013. In count II, Kopnick alleged that the landlord required 60 days' notice of her intent to renew or move out at the end of her lease and had "charged" her a daily fee equal to one day's rent for each of the eight days that she had not provided timely notice. In count III, she realleged her prior material allegations and added that her landlord's "collection of notice fees and the enforcement of their notice fee policy is an unjust retention of a benefit obtained by coercion." Kopnick's landlord filed a combined motion to dismiss pursuant to section 2-619.1 of the Code. The trial court granted the landlord's motion to dismiss the three-count action with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). On appeal, Kopnick argues her allegations were factually sufficient and that, at minimum, she should have been allowed to amend. In an Opinion dated March 30, 2017 available at https://is.gd/dnKmYu from Leagle.com, the Appellate Court reversed the court's denial of leave to amend the allegations of violation of the RLTO because the court abused its discretion in rendering a "with prejudice" dismissal of Count I and denying Kopnick leave to amend, given that (1) Kopnick proposed allegations that would correct the defects of her original pleading, (2) amending would not prejudice or surprise Hawthorne House because the dismissed complaint was the only pleading on file and the defendant's discovery into possible defenses was still available, (3) the proposed amendment was timely made at the preliminary stages of this relatively new case, and (4) Kopnick had no previous opportunities to amend. The Appellate Court remanded for further proceeds as to RLTO claim only; and (3) affirmed the trial court's ruling as to the other claims because it is properly dismissed with prejudice. JOES BLUE MARKET: "Gonzalez" Suit Seek Overtime Pay --------------------------------------------------- Francisco Gonzalez, on behalf of himself and others similarly situated, Plaintiff, v. Joe's Blue Market Corp. and Terry Thompson, individually, Defendants, Case No. 1:17-cv-21331 (S.D. Fla., April 7, 2017), seeks unpaid minimum and overtime wages, liquidated damages, costs and reasonable attorneys' fees under the provisions of the Fair Labor Standards Act. Joe's Blue Market Corp. operates a market and kitchen selling packaged and cooked foods, household goods and beverages to its customers at its two locations in Miami-Dade County, Florida. Gonzales worked for the Defendants as stocker and cashier. [BN] The Plaintiff is represented by: Keith M. Stern, Esq. Hazel Solis Rojas, Esq. LAW OFFICE OF KEITH M. STERN, P.A. One Flagler 14 NE 1st Avenue, Suite 800 Miami, FL 33132 Telephone: (305) 901-1379 Facsimile: (561) 288-9031 E-mail: employlaw@keithstern.com hsolis@workingforyou.com JPMORGAN CHASE: Balks at Euribor Class Action Discovery Timetable ----------------------------------------------------------------- William Gorta and Cara Bayles, writing for Law360, report that a New York federal judge on April 10 told attorneys in a proposed putative class action by investors alleging J.P. Morgan and Citigroup conspired to manipulate Euribor that there was a "big hole in the donut" that is their proposed schedule, namely any indication when discovery will be completed. U.S. District Judge P. Kevin Castel told interim co-lead counsel Christopher Lovell -- CLovell@lshllp.com -- of Lovell Stewart Halebian Jacobson LLP that the 2013 case is the oldest on his calendar and the parties' less than ambitious timeline didn't make the cut. He was particularly unimpressed with a provision for another proposed schedule in January 2019 after motions on class certification are complete. "That's not going to happen. I have a proposed scheduling order," Judge Castel said, adding later, "I don't see anything in the parties' proposal that sets an end for fact discovery. . . . When I look at this there's a big hole in the donut." Judge Castel streamlined the case considerably in February when he cut four plaintiffs from the suit, saying they lacked standing, as well as six foreign defendants who didn't fall under his jurisdiction because their allegedly illegal activities to manipulate the euro interbank offered rate weren't tied to the U.S. He also dismissed all Racketeer Influenced and Corrupt Organizations Act and Commodity Exchange Act claims from the suit and cut three out of four Sherman Act claims in the case. Now the two remaining plaintiffs, FrontPoint Australian Opportunities Trust and the California State Teachers' Retirement System -- the only ones that could allege direct transactions with any defendants -- will move forward with one Sherman Act claim and common-law claims of unjust enrichment and breach of the implied covenant of good faith and fair dealing against Citigroup and J.P. Morgan. Mr. Lovell balked a little at the judge's schedule, which called for completion of all discovery, including class discovery, by December 2018, a month before the parties had hoped to return to court to discuss further scheduling. He told the judge that the discovery timetable would be difficult because of the need to overcome European privacy laws to obtain documentation. "I really don't think these are optimal dates," Mr. Lovells told the judge. "It's April 2017 and I gave you until December 2018. That's hardly a squeeze where I come from," said Judge Castel, who was born and reared in Queens. His prodding exchange with Mr. Lovell certainly sped up the proceedings on April 10. Other plaintiffs' counsel swiftly declined an offer to be heard and defense counsel quickly told the judge they could work within his schedule. The investors first sued the banks in Illinois federal court in February 2013, before the case transferred to New York that April. The suit claims that from June 2005 to March 2011, the banks conspired to fix Euribor, which is used to reflect the interest rate charged on short-term loans of unsecured funds in euros between prime banks and the wholesale money market. The European Banking Federation, an unregulated trade association, forbids banks from coordinating or submitting false data for their daily terms reports that inform the Euribor rate. According to the complaint, the scheme flouting those restrictions was orchestrated by Christian Bittar of Deutsche Bank and Philippe Moryoussef of Barclays and later RBS. In January, the plaintiffs reached a $45 million settlement with HSBC Bank PLC, and in December 2015, the court granted preliminary approval to a $94 million settlement with Barclays PLC. The plaintiffs also voluntarily dismissed BNP Paribas S.A. and Deutsche Bank AG and DB Group Services from the case. UBS, Rabobank, Credit Agricole, RBS, Societe Generale and ICAP were all deemed to be out of jurisdiction because their connections to the U.S. were too tenuous. While all the banks had branches in the U.S., Judge Castel said for those defendants, the conduct at issue in the case took place abroad, and without a "nucleus" in the states, it was outside his jurisdiction. Because Citigroup and J.P. Morgan Chase & Co. are Delaware corporations with headquarters in New York, the claims against them stuck. The investors are represented by interim co-lead class counsel Vincent Briganti -- vbriganti@lowey.com -- Geoffrey M. Horn -- ghorn@lowey.com -- Peter D. St. Phillip -- pstphillip@lowey.com -- and Michelle E. Conston -- mconston@lowey.com -- of Lowey Dannenberg Cohen & Hart PC and Christopher Lovell, Gary S. Jacobson -- GSJacobson@lshllp.com -- and Ian T. Stoll -- IStoll@lshllp.com -- of Lovell Stewart Halebian Jacobson LLP. Other counsel includes Joseph J. Tabacco -- jtabacco@bermandevalerio.com -- Patrick T. Egan -- PEgan@BermanDeValerio.com -- and Todd A. Seaver -- tseaver@bermandevalerio.com -- of Berman DeValerio, Brian P. Murray and Lee Albert of Glancy Prongay & Murray LLP, and David E. Kovel -- dkovel@kmllp.com -- of Kirby McInerney LLP. Citibank is represented by Lev Louis Dassin and Jonathan Samuel Kolodner -- jkolodner@cgsh.com -- or Cleary Gottlieb Steen & Hamilton LLP and by Andrew Arthur Ruffino -- aruffino@cov.com -- and Alan M. Wiseman -- awiseman@cov.com -- of Covington & Burling LLP. J.P. Morgan is represented by Francis John Acott -- francis.acott@stblaw.com -- Michael Steven Carnevale, Jeffery Li Ding, Abram Jeremy Ellis -- aellis@stblaw.com -- Paul Christopher Gluckow -- pgluckow@stblaw.com -- Alexander Nuo Li -- zander.li@stblaw.com -- Omari Largos Royter Mason, Thomas C. Rice, Elizabeth Jane Shutkin and Rachel Serenity Sparks Bradley of Simpson Thacher & Bartlett LLP. The case is Sullivan v. Barclays PLC, et al., case number 1:13-cv- 02811, in the U.S. District Court for the Southern District of New York. JPMORGAN CHASE: Settles Financial Adviser OT Wage Case for $5.7MM ----------------------------------------------------------------- Taylor Arluck, Alex Lawson and Stewart Bishop, writing for Law360, report that JPMorgan Chase & Co. and current and former Chase financial advisers who accused the bank of stiffing them on overtime pay told a New York federal court on April 7 they had reached a $5.7 million deal to end a collective and class action battle. JPMorgan and 1,056 opt-in plaintiffs filed a 32-page memorandum of law urging U.S. District Judge Laura Taylor Swain to preliminarily approve the settlement, which covers state and federal claims from workers who say they were denied overtime, had unauthorized deductions taken from their wages, and were improperly required to pay for expenses in violation of state laws. In addition to the Fair Labor Standard Act collective certified in 2013, the deal proposes classes encompassing financial and private-client advisers in New York and New Jersey as well as private-client and independent private-client advisers in California. "By reaching a settlement prior to trial, plaintiffs will avoid further expense and delay in obtaining a recovery for the class," the motion said. The tentative deal comes after extensive discovery and an appeal to the Second Circuit. In December 2011, Jeffrey Lloyd and Ellen Szymkiewicz hit JPMorgan with a proposed class action alleging violations of state and federal overtime laws. In June 2012, the court accepted a similar case by Kenneth Ciullo as related. The advisers won an opposed bid for conditional certification in September 2013. Judge Swain also granted JPMorgan's bid to compel arbitration for workers who had signed a version of Chase's arbitration agreement governed by American Arbitration Association rules, but kept the claims of those who signed a different version governed by Financial Industry Regulatory Authority rules in federal court. JPMorgan appealed the FINRA ruling, arguing the authority's current rules, which precluded arbitration, didn't apply because the rule changes went into effect after the former advisers signed their employment agreements. But in June 2015, a three-judge panel for the Second Circuit upheld the lower court. Attorneys for both parties declined to comment on April 10. The plaintiffs are represented by Justin M. Swartz, Deirdre A. Aaron and Chauniqua D. Young of Outten & Golden LLP and John Halebian -- JHalebian@lshllp.com -- and Adam Mayes -- AMayes@lshllp.com -- of Lovell Stewart Halebian Jacobson LLP. Chase is represented by Sam S. Shaulson -- sam.shaulson@morganlewis.com -- and Thomas A. Linthorst -- thomas.linthorst@morganlewis.com -- of Morgan Lewis & Bockius LLP. The cases are Lloyd et al. v. JPMorgan Chase & Co. et al. and Ciullo v. JP Morgan Chase & Co. et al., case numbers 1:11-cv-09305 and 1:12-cv-02197, in the U.S. District Court for the Southern District of New York. JPMORGAN CHASE: Hit With Proposed Class Suit Over Car Reposession ----------------------------------------------------------------- Dena Aubin at Reuters reports JPMorgan Chase Bank's auto finance unit has been hit with a proposed class action in Minnesota accusing it of repossessing cars and putting them up for sale without giving their owners legally required advance notice. Filed on April 6 in federal court in St. Paul, the lawsuit accuses Chase Auto Finance of wrongful repossession, conversion of consumers' property and violations of the U.S. Fair Debt Collection Practices Act (FDCPA), which bars repossessions unless the lender has a right to the property. KEYCORP: Appeal in Checking Account Overdraft Litigation Pending ---------------------------------------------------------------- KeyCorp's appeal in the Checking Account Overdraft Litigation remains pending, KeyCorp said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. In February 2010, KeyBank was named a defendant in a putative class action seeking to represent a national class of KeyBank customers allegedly harmed by KeyBank's overdraft practices. The case was transferred and consolidated for purposes of pretrial discovery and motion proceedings to a multidistrict proceeding styled In Re: Checking Account Overdraft Litigation pending in the United States District Court for the Southern District of Florida (the "District Court"). KeyBank filed a notice of appeal in regard to the denial by the District Court of a motion to compel arbitration. In August 2012, the United States Court of Appeals for the Eleventh Circuit (the "Eleventh Circuit") vacated the District Court's order denying KeyBank's motion to compel arbitration and remanded the case for further consideration. In June 2013, KeyBank filed with the District Court its renewed motion to compel arbitration and stay or dismiss litigation. The District Court granted KeyBank's renewed motion to compel arbitration and dismissed the case. The plaintiff appealed. On June 18, 2014, the Eleventh Circuit vacated the District Court's order granting KeyBank's renewed motion to compel arbitration and remanded the case to the District Court to address the issue of the enforceability of KeyBank's arbitration provision. On February 3, 2015, the District Court denied KeyBank's Second Renewed Motion to Compel Arbitration and Dismiss the Complaint. KeyBank has filed an appeal. KeyCorp is the parent holding company for KeyBank National Association ("KeyBank"), its principal subsidiary. KIMBERLY-CLARK CORP: To Challenge MicroCool Class Action Ruling --------------------------------------------------------------- Kimberly-Clark Corporation on April 10 disclosed that it will challenge the recent verdict in a California class action lawsuit involving MicroCool surgical gowns sold by Halyard Health, its former health care business. Nearly seventy million MicroCool gowns have been sold without a single complaint of an injury. The Company believes the jury's verdict is contrary to the evidence presented at trial and that its punitive damages award is baseless, excessive and not consistent with California and federal laws. The Company therefore intends to challenge the verdict in post-judgment motions in the District Court and, depending upon the rulings on those motions, to appeal to the United States Court of Appeals for the Ninth Circuit. Based on its confidence in the success of its challenge to the verdict, as well as an indemnification agreement with co-defendant Halyard Health, (which was spun off from Kimberly-Clark at the end of 2014) under which Halyard Health must cover Kimberly-Clark's losses, claims and expenses related to this litigation, Kimberly- Clark believes the final outcome of this litigation will not result in any material financial exposure for the company. About Kimberly-Clark Kimberly-Clark (NYSE: KMB) -- http://www.kimberly-clark.com-- and its well-known global brands are an indispensable part of life for people in more than 175 countries. Every day, nearly a quarter of the world's population trust Kimberly-Clark's brands and the solutions they provide to enhance their health, hygiene and well- being. With brands such as Kleenex, Scott, Huggies, Pull-Ups, Kotex and Depend, Kimberly-Clark holds No. 1 or No. 2 share positions in more than 80 countries. LABORATORY CORP: Sued Over Excessive Diagnostic Test Fees --------------------------------------------------------- Jessica Seaman, writing for Triad Business Journal, reports that a class-action lawsuit filed in Greensboro claims that Burlington- based Laboratory Corporation of America Holdings is overcharging patients for diagnostic tests. The lawsuit, filed in the Middle District of North Carolina, alleges that fees patients are being charged by LabCorp exceed fair market rates established for the tests. "The lab companies have two fee schedules -- they charge market prices to people with insurance and grossly exaggerated fees to people without insurance," said Robert Finkel -- rfinkel@wolfpopper.com -- an attorney with Wolf Popper LLP, which is representing patients in the suit, in a released statement. The law firm, based in New York, has filed a similar suit against Quest Diagnostics Inc. in New Jersey for overcharging patients. In the complaint, several individuals, on behalf of a larger class, claims that LabCorp issues patients invoices that are "intentionally deceptive and misleading." The filing says the invoices from LabCorp aggregate charges for multiple tests, third- party payments, and copays or deductibles. By issuing bills this way, the company does not inform patients of any insurance discounts or payments that are being applied to each individual lab test or what patients are being required to pay as a co-pay or deductible for each lab test, according to the 39-page complaint. The lawsuit also claims that LabCorp does not inform patients whether certain tests are covered by their insurance company. "Patients reasonably assume that the tests are covered by insurance or Medicare, or that the fees will be reasonable market prices, and are not in a position to negotiate the lab companies' excessive rates, as are insurance companies," Finkel said. The plaintiffs are seeking compensation for any overpayments as well as punitive damages. They have also requested that the court issue an order prohibiting LabCorp from engaging in the improper billing practices alleged in the complaint. When asked about the lawsuit, LabCorp spokeswoman Pattie Kushner said, "We don't publicly comment on pending litigation, but we believe our billing and pricing practices are lawful and we intend to vigorously defend this lawsuit." LECHONERA EL SAZON: "Hernandez" Seeks OT, Reimbursements, Tips -------------------------------------------------------------- Lorenzo Hernandez and John Doe, on behalf of themselves and FLSA Collective Plaintiffs, v. Lechonera El Sazon Criolllo Corp., Feliciano Ortiz, Elizabeth Colon and Flor Colon, Defendants, Case No. 1:17-cv-02498 (S.D. N.Y., April 6, 2017) seeks unpaid overtime, unpaid minimum wages, unreimbursed business related expenses, illegally retained tips, liquidated damages, statutory penalties and attorneys' fees and costs pursuant to the New York Labor Law and the Fair Labor Labor Standards Act. Hernandez was hired by the Defendants as a delivery person for their restaurant located at 632-A Castle Hill Avenue, Bronx, NY 10473. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 LENDINGCLUB CORP: Discovery Underway in Securities Class Actions ---------------------------------------------------------------- Parties in the case captioned, In re LendingClub Corporation Shareholder Litigation, No. CIV537300, have begun discovery, LendingClub said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. During the year ended December 31, 2016, five putative class action lawsuits alleging violations of federal securities laws were filed in California Superior Court, naming as defendants the Company, current and former directors, certain officers, and the underwriters in the December 2014 initial public offering (the IPO). All of these actions were consolidated into a single action (Consolidated State Court Action), entitled In re LendingClub Corporation Shareholder Litigation, No. CIV537300. In August 2016, plaintiffs filed an amended complaint alleging violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 (Securities Act) based on allegedly false and misleading statements in the IPO registration statement and prospectus. The Company filed a demurrer requesting the Court dismiss certain of the claims alleged in the amended complaint, which was granted in part in the fourth quarter of 2016. The plaintiffs thereafter filed a Second Amended Consolidated Complaint which the Company thereafter filed a new demurrer seeking to dismiss certain claims. The hearing on this demurrer will be in the first quarter of 2017. In the interim the parties have begun discovery. The Company believes that the plaintiffs' allegations are without merit, and intends to vigorously defend against the claims. Lending Club is the world's largest online marketplace connecting borrowers and investors. LENDINGCLUB CORP: Motion to Dismiss 2 Suits Remains Pending ----------------------------------------------------------- LendingClub Corporation's motion to dismiss the Evellard and Wertz class action lawsuits remains pending, LendingClub said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. In May 2016, two related putative securities class actions (entitled Evellard v. LendingClub Corporation, et al., No. 16-CV- 2627-WHA, and Wertz v. LendingClub Corporation, et al., No. 16-CV- 2670-WHA) were filed in the United States District Court for the Northern District of California, naming as defendants the Company and certain of its officers and directors. In mid-August 2016, the two actions were consolidated into a single action. The Company moved to dismiss the amended complaint filed in the fourth quarter of 2016. The Court is expected to hear this motion in the first quarter of 2017. The Company believes that the plaintiffs' allegations are without merit, and intends to vigorously defend against the claims. Lending Club is the world's largest online marketplace connecting borrowers and investors. LENDINGCLUB CORP: Motion to Compel Arbitration Approved ------------------------------------------------------- LendingClub Corporation's motion to compel arbitration in a federal consumer class action has been granted, LendingClub said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. In April 2016, a putative class action lawsuit was filed in federal court in New York, alleging that persons received loans, through the Company's platform, that exceeded states' usury limits in violation of state usury and consumer protection laws, and the federal RICO statute. The Company has filed a motion to compel arbitration on an individual basis, which was granted in February 2017. The Company believes that the plaintiff's allegations are without merit, and intends to defend this matter vigorously. Lending Club is the world's largest online marketplace connecting borrowers and investors. LG: Bootloop Defect Class Action Amended to Cover More Phones ------------------------------------------------------------- David Kravets, writing for Ars Technica, reports that a few weeks ago, Ars wrote about a proposed class-action lawsuit targeting two of LG's flagship devices, the G4 and V10. The suit complained of a well-known bootloop issue that either bricked the devices or slowed them to a snail's pace -- all to the backdrop of warranties or LG failing to fix the problem. After Ars published the story, many Android fans were wondering why other LG phones that suffered the same issues were not included in the original lawsuit. Wait no longer: the Southern California federal lawsuit has been amended to now include the Nexus 5X, and the LG G5 and LG V20. The updated lawsuit covers every high-profile LG phone from 2015 and 2016. Random reboots Among other things, the suit claims that the phones' processors were inadequately soldered to the motherboard, rendering them "unable to withstand the heat." Initially, the phones begin to freeze, suffer slowdowns, overheat, and reboot at random. Eventually, the suit says, they fail. LG, of South Korea, did not immediately respond for comment. Magistrate Judge Paul L. Abrams has given the gadget and appliance maker until May 8 to respond in court. LIFE CARE CENTERS: "Bowlin-Burdick" Sues Over Missed Breaks ----------------------------------------------------------- Barbara J. Bowlin-Burdick, individually on behalf of herself and all others similarly situated, Plaintiff, v. Life Care Centers of America, Inc. and Does 1 through 10 inclusive, Defendants, Case No. BC657139, (Cal. Super., April 10, 2017), seeks compensation for pay due and owing as required by California Labor Code and applicable Industrial Welfare Commission orders, penalties, penalties for failure to timely pay wages to terminated or resigned employees, prejudgment interest, attorneys' fees, costs of suit incurred and such other and further relief under the California Labor Code and the Business and Professions Code. Defendant operates ten convalescent, retirement living, rehabilitations and skilled nursing centers in California. Plaintiff worked as a receptionist at Defendant's Bel Tooren Villa Convalescent Hospital in Bellflower, California. She claims to have worked through her meal breaks. [BN] Plaintiff is represented by: George S. Azadian, Esq. Edrik Mehrabi, Esq. AZADIAN LAW GROUP, PC 790 E, Colorado Blvd., 9th Floor Pasadena, CA 91101 Tel: (626) 449-4944 Fax: (626) 628-1722 Email: George@azadianlawgroup.com LIGAND PHARMACEUTICALS: No Trial Set in California Action --------------------------------------------------------- Ligand Pharmaceuticals Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that no trial date has been set in a class action lawsuit in California. In November 2016, a putative shareholder class action lawsuit was filed in the United States District Court for the Southern District of California against the Company, its chief executive officer and chief financial officer. The complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, and seeks unspecified compensatory damages and other relief on behalf of a purported class of purchasers of the Company's securities between November 9, 2015 and November 14, 2016, inclusive. The complaint's allegations relate generally to the Company's November 2016 restatement of certain prior period financial statements. In January 2017, a purported Company shareholder filed a motion for appointment of lead counsel and lead plaintiff. The motion is scheduled to be heard by the court in March 2017. No trial date has been set. The Company believes that the lawsuit is without merit and intends to vigorously defend against the lawsuit. Ligand is a biopharmaceutical company focused on developing and acquiring technologies that help pharmaceutical companies discover and develop medicines. LIGAND PHARMACEUTICALS: Appeal in Pennsylvania Suit Still Pending ----------------------------------------------------------------- The appeal by plaintiffs in a class action lawsuit in Pennsylvania remains pending, Ligand Pharmaceuticals Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. The Company said, "In 2012, a federal securities class action and shareholder derivative lawsuit was filed in Pennsylvania alleging that the Company and its chief executive officer assisted various breaches of fiduciary duties based on our purchase of a licensing interest in a development-stage pharmaceutical program from the Genaera Liquidating Trust in 2010 and our subsequent sale of half of our interest in the transaction to Biotechnology Value Fund, Inc." "The district court granted our motion to dismiss an amended complaint on November 11, 2015 and the plaintiff has appealed that ruling to the U.S. Third Circuit Court of Appeals. The Company intends to continue to vigorously defend against the claims against the Company and its chief executive officer. The outcome of the matter is not presently determinable." Ligand is a biopharmaceutical company focused on developing and acquiring technologies that help pharmaceutical companies discover and develop medicines. LINCOLN WOOD: "Golzak" Sues Over Defective Windows -------------------------------------------------- Robert and Carol Golzak, and John Karnes on behalf of themselves and all others similarly situated, Plaintiffs, v. Lincoln Wood Products, Inc., Case No. 3:17-cv-00617, (M.D. Pa., April 6, 2017), seeks compensatory damages, equitable and/or injunctive relief, costs of suit, pre-judgment and post-judgment interest on any amounts awarded, punitive damages, reasonable attorneys fees and expert fees and such other and further relief resulting from negligence, breach of implied warranty of merchantability, breach of express warranty, unfair and deceptive acts and practices, fraudulent misrepresentation, fraudulent concealment, unjust enrichment and violation of the Magnuson-Moss Act. Plaintiffs purchased defective windows designed, marketed, manufactured, advertised, distributed and sold by Lincoln, in particular the aluminum wood clad, exterior glazed windows. Water allegedly seeps through unsealed or inadequately sealed areas of the window frame. Plaintiff is represented by: Benjamin F. Johns, Esq. Andrew W. Ferich, Esq. CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Phone: (610) 642-8500 Fax: (610) 649-3633 Email: bfj@chimicles.com awf@chimicles.com - and - Panagiotis V. Albanis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 12800 University Drive, Suite 600 Fort Myers, FL 33907 Tel: (239) 432-6605 Fax: (239) 433-6836 Email: palbanis@forthepeople.com - and - Frank Petosa, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 600 N. Pine Island Rd. Suite 400 Plantation, FL 33324 Tel: (954) 318-0268 Fax: (954) 333-3515 Email: fpetosa@forthepeople.com LIVING ESSENTIALS: Court Denies Bid to Strike Expert Testimony -------------------------------------------------------------- In the lawsuit entitled ABC DISTRIBUTING, INC., et al., the Plaintiffs, v. LIVING ESSENTIALS LLC, et al., the Defendants, Case No. 5:15-cv-02064-NC (N.D. Cal.), the Court denies Defendants' motion to strike the expert testimony of Dr. McDuff at this stage. The Court says a price discrimination case such as this one is an ill-fit for class certification. Ultimately, there are not common questions of law and fact, as price discrimination cases require an individualized showing of competition and injury. The Plaintiffs' motion to certify a class is denied. The parties have a pending discovery dispute which will be heard on April 26, 2017, at 1:00 p.m. At that time, the Court will hold a case management conference to discuss any changes to the case schedule and the scope of future discovery. In this price discrimination case under the Robinson-Patman Act, the Plaintiffs allege that Defendants sell 5-Hour Energy to wholesalers for different prices, to the disadvantage of small wholesalers. The Plaintiffs seek to certify two classes of small wholesalers, defined by their competition with the large wholesaler, Costco. In response, Defendants move to strike plaintiffs' class certification expert report. The Court finds that Dr. McDuff's expert report is admissible at this stage, but rejects its recommendations and conclusions. Thus, the Court denies Defendants' motion to strike the expert report. The Court also denies the motion for class certification because individual claims predominate over class-wide claims in a Robinson-Patman case. In addition, the classes are impermissibly vague because it is defined by proximity to Costco, a party neither in this case nor accused of any wrongdoing. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=F606x3mL LOFT ASSOCIATES: "Cunningham" Hits Illegal Telemarketing Calls -------------------------------------------------------------- Craig Cunningham, on behalf of himself and all others similarly situated, Plaintiff, v. Loft Associates, LLC d/b/a Cheddar Express, Defendant, Case No. 2:17-cv-02110 (E.D. N.Y., April 7, 2017), seeks damages, an injunction against Defendant prohibiting it from further calls and such other and further relief for violation of the Telephone Consumer Protection Act. Defendant, a financing company, allegedly used an automatic telephone dialing system to make at least four calls and text messages to Plaintiff's cell phone without Plaintiff's prior express consent. The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plains, NY 10606 Phone: (914) 358-5345 Fax: (212) 571-0284 Email: Aytan.Bellin@bellinlaw.com LOFT ASSOCIATES: Class Certification Sought in "Cunningham" Suit ---------------------------------------------------------------- In the lawsuit styled CRAIG CUNNINGHAM on behalf of himself and all others similarly situated, the Plaintiff, v. LOFT ASSOCIATES, LLC D/B/A CHEDDAR EXPRESS, the Defendant, Case No. 2:17-cv-02110 (E.D.N.Y.), the Plaintiff moves the Court for an order: a. granting Plaintiff's motion for class certification; or alternatively; b. taking this motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming Rule 23 scheduling order. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Ge04qC5j The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plains, NY 10606 Telephone: (914) 358 5345 Facsimile: (212) 571 0284 E-mail: Aytan.Bellin@bellinlaw.com MANUS ISLAND: Court to Live Stream Detainees' Class Action Trial ---------------------------------------------------------------- Michelle Price, writing for myGC.com.au, reports that lawyers representing Manus Island detainees in a class action have welcomed a landmark decision by the Victorian Supreme Court to live-stream the upcoming trial to a global audience. The Court recognised live-streaming was necessary to ensure access to justice for the significant proportion of group members who had no prospect of attending the hearing in person. Slater and Gordon Practice Group Leader Rory Walsh said the Court rejected applications to oppose and restrict access to live- streaming. "The Commonwealth originally opposed live-streaming proceedings completely, even to group members for whom it would be impossible to attend" Mr Walsh said. "They later changed their position, arguing access to the stream should not be available to the general public, but instead should be restricted to the group members. "The Supreme Court rejected this approach, citing the high degree of public interest, which extends well beyond those who live in Victoria. "We were not surprised the Commonwealth opposed this approach, but we are heartened that the treatment of group members at the Manus Detention Centre will now be properly tested in an Australian Court in an open and publically accessible manner." Mr Walsh said this is believed to be an Australian first. "As far as we're aware, this is the first time Australian Court proceedings will be streamed overseas" Mr Walsh said. "The potential size of the class is 1,905 people, the majority of whom (approximately 1,500) are either overseas or still in detention either on Manus Island or in Australia. "This case will be the largest and most forensic public examination of the events and conditions at the Manus Island Detention centre, which have been shrouded in secrecy until now. "Live-streaming the trial online means these group members and the general public will be able to view the proceedings that will affect and may finally determine the rights of these detainees. "We are prepared for a long trial and have fought hard to overcome numerous legal hurdles to ensure the evidence of whistle-blowers, experts and, most importantly, the detainees will be heard." MASSACHUSETTS MEDICAL: Physicians Healthsource Sues Over Fax Ad --------------------------------------------------------------- Physicians Healthsource, Inc., individually, and as the representatives of a class of similarly-situated persons, Plaintiff, v. The Massachusetts Medical Society and John Does 1-5, Defendants, Case No. 1:17-cv-00225 (S.D. Ohio, April 6, 2017) seeks damages and any other available legal or equitable remedies resulting from violations of the Telephone Consumer Protection Act and the Junk Fax Prevention Act. Physicians Healthsource is an Ohio corporation, and it operates a chiropractic clinic located at 3328 Westbourne Drive in Cincinnati, Ohio. The Massachusetts Medical Society produces and sells continuing education materials for the medical industry. It allegedly sent a faxed ad to the Plaintiff's fax machine. [BN] The Plaintiff is represented by: George D. Jonson, Esq. Matthew E. Stubbs, Esq. MONTGOMERY, RENNIE & JONSON 36 E. Seventh Street, Suite 2100 Cincinnati, OH 45202 Tel: (513) 241-4722 Fax: (513) 241-8775 Email: gjonson@mrjlaw.com mstubbs@mrjlaw.com MCDONALD'S: Franchise Workers Seek to Revive Wage Class Action -------------------------------------------------------------- Robert Iafolla, writing for Reuters, reports that workers for McDonald's franchises in California will ask a federal appeals court to revive their proposed class action seeking to hold McDonald's Corp liable for wage-and-hour violations because they believed the fast food giant was their employer. The workers filed a notice of appeal saying they would challenge rulings by U.S. District Judge Richard Seeborg in San Francisco that denied class certification to more than 1,200 current and former workers in January and threw out their individual claims under state labor law in March. MCGUINNESS DEV'T: Champ Construction Demands Payment for Services ----------------------------------------------------------------- Champ Construction Corp., individually, and as representatives of all trust beneficiaries similarly situated, Plaintiff(s), v. McGuinness Development, LLC, Britt Realty, LLC, The Horizon Group, Horizon 53 Broadway LLC, David Marom, Cathay Bank, Equity Environmental Engineering, LLC, Bank Of The Ozarks, and John Does 1-10 and other Lien Holders unknown, Case No. 507085/2017 (N.Y. Sup., April 10, 2017) seeks all trust funds misappropriated or otherwise improperly diverted, in an amount totaling at least $1,386,590.65 including additional damages for delays, lost profits and costs relating to continual and excessive alterations and fundamental changes to scopes of work. Champ contracted with Britt and Britt's alter-ego, Horizon Group and Horizon 53, to perform certain work in connection with McGuiness' ground-up multi-story residential construction project located at 211 McGuiness Boulevard, Brooklyn, New York. Defendants have refused to pay Champ for all of its work performed to date, leaving an outstanding balance of at least $1,386,590.65. [BN] Plaintiff is represented by: Brian L. Gardner, Esq. David T. Meglino, Esq. COLE SCHOTZ P.C. 1325 Avenue of the Americas, Suite 1900 New York, NY 10019 Tel: (212) 752-8000 MDL 1674: CBNV Mortgage Litigation Goes to Arbitration ------------------------------------------------------ The PNC Financial Services Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the CBNV Mortgage Litigation was submitted to binding arbitration before a panel of three arbitrators. Between 2001 and 2003, on behalf of either individual plaintiffs or proposed classes of plaintiffs, several separate lawsuits were filed in state and federal courts against Community Bank of Northern Virginia (CBNV), a PNC Bank predecessor, and other defendants asserting claims arising from second mortgage loans made to the plaintiffs. The state lawsuits were removed to federal court and, with the lawsuits that had been filed in federal court, were consolidated for pre-trial proceedings in a multidistrict litigation (MDL) proceeding in the U.S. District Court for the Western District of Pennsylvania under the caption In re: Community Bank of Northern Virginia Lending Practices Litigation (No. 03-0425 (W.D. Pa.), MDL No. 1674). In January 2008, the Pennsylvania district court issued an order sending back to the General Court of Justice, Superior Court Division, for Wake County, North Carolina the claims of two proposed class members, which have subsequently been dismissed. In October 2011, the plaintiffs in the MDL proceeding filed a joint consolidated amended class action complaint covering all of the class action lawsuits pending in this proceeding. The amended complaint names CBNV, another bank, and purchasers of loans originated by CBNV and the other bank (including Residential Funding Company, LLC (RFC)) as defendants. (In December 2013, the Chapter 11 bankruptcy proceeding involving RFC was completed with the company being liquidated and claims against the company being resolved, including, through a settlement between the plaintiffs and RFC approved in November 2013, the claims in these lawsuits.) The principal allegations in the amended complaint are that a group of persons and entities collectively characterized as the "Shumway/Bapst Organization" referred prospective second residential mortgage loan borrowers to CBNV and the other bank, that CBNV and the other bank charged these borrowers improper title and loan fees at loan closings, that the disclosures provided to the borrowers at loan closings were inaccurate, and that CBNV and the other bank paid some of the loan fees to the Shumway/Bapst Organization as purported "kickbacks" for the referrals. The amended complaint asserts claims for violations of the Real Estate Settlement Procedures Act (RESPA), the Truth in Lending Act (TILA), as amended by the Home Ownership and Equity Protection Act (HOEPA), and the Racketeer Influenced and Corrupt Organizations Act (RICO). The amended complaint seeks to certify a class of all borrowers who obtained a second residential non-purchase money mortgage loan, secured by their principal dwelling, from either CBNV or the other defendant bank, the terms of which made the loan subject to HOEPA. The plaintiffs seek, among other things, unspecified damages (including treble damages under RICO and RESPA), rescission of loans, declaratory and injunctive relief, interest, and attorneys' fees. In November 2011, the defendants filed a motion to dismiss the amended complaint. In June 2013, the court granted in part and denied in part the motion, dismissing the claims of any plaintiff whose loan did not originate or was not assigned to CBNV, narrowing the scope of the RESPA claim, and dismissing several of the named plaintiffs for lack of standing. The court also dismissed the claims against the other lender defendant on jurisdictional grounds. The limitation of the potential class to CBNV borrowers reduces its size to approximately 26,500 from the 50,000 members alleged in the amended complaint. Also in June 2013, the plaintiffs filed a motion for class certification, which was granted in July 2013. In July 2015, the U.S. Court of Appeals for the Third Circuit affirmed the grant of class certification by the Pennsylvania district court. PNC said, "We moved for a rehearing of the appeal, which was denied in October 2015. In November 2015, we filed a petition for a writ of certiorari with the U.S. Supreme Court seeking review of the decision of the court of appeals, which was denied in February 2016. We filed motions with the district court for decertification and summary judgment in April 2016." "In August 2016, we reached a settlement with the plaintiffs. In December 2016, the court granted final approval of the settlement. Under this settlement, in February 2017, the matter was submitted to binding arbitration before a panel of three arbitrators, who will determine whether we will pay the plaintiff class either an amount (inclusive of class counsel fees and expenses) we proposed ($24 million) or an amount proposed by the plaintiffs ($70 million), with no discretion to choose any other amount. The arbitrators are required to reach a decision by the end of March 2017." MERCK & CO: Attorneys' Fees in Vioxx Suit Yet to Be Determined -------------------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the amount of attorneys' fees to be paid in Vioxx product liability lawsuits is yet to be determined. Merck was a defendant in a number of putative class action lawsuits alleging economic injury as a result of the purchase of Vioxx, all but one of which have been settled. Under the settlement, Merck agreed to pay up to $23 million to resolve all properly documented claims submitted by class members, approved attorneys' fees and expenses, and approved settlement notice costs and certain other administrative expenses. The claims review process has been completed with the Company paying approximately $700,000. The amount of attorneys' fees to be paid is yet to be determined. MERCK & CO: 4,230 Fosamax Cases Pending in U.S. Courts ------------------------------------------------------ Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Merck is a defendant in product liability lawsuits in the United States involving Fosamax (Fosamax Litigation). As of December 31, 2016, approximately 4,230 cases are filed and pending against Merck in either federal or state court. In approximately 20 of these actions, plaintiffs allege, among other things, that they have suffered osteonecrosis of the jaw (ONJ), generally subsequent to invasive dental procedures, such as tooth extraction or dental implants and/or delayed healing, in association with the use of Fosamax. In addition, plaintiffs in approximately 4,210 of these actions generally allege that they sustained femur fractures and/or other bone injuries (Femur Fractures) in association with the use of Fosamax. MERCK & CO: Discovery Ongoing in 20 Remaining ONJ Cases ------------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that discovery is currently ongoing in 20 remaining cases alleging osteonecrosis of the jaw (ONJ). In August 2006, the Judicial Panel on Multidistrict Litigation (JPML) ordered that certain Fosamax product liability cases pending in federal courts nationwide should be transferred and consolidated into one multidistrict litigation (Fosamax ONJ MDL) for coordinated pre-trial proceedings. In December 2013, Merck reached an agreement in principle with the Plaintiffs' Steering Committee (PSC) in the Fosamax ONJ MDL to resolve pending ONJ cases not on appeal in the Fosamax ONJ MDL and in the state courts for an aggregate amount of $27.7 million. Merck and the PSC subsequently formalized the terms of this agreement in a Master Settlement Agreement (ONJ Master Settlement Agreement) that was executed in April 2014 and included over 1,200 plaintiffs. In July 2014, Merck elected to proceed with the ONJ Master Settlement Agreement at a reduced funding level of $27.3 million since the participation level was approximately 95%. Merck has fully funded the ONJ Master Settlement Agreement and the escrow agent under the agreement has been making settlement payments to qualifying plaintiffs. The ONJ Master Settlement Agreement has no effect on the cases alleging Femur Fractures. Discovery is currently ongoing in some of the approximately 20 remaining ONJ cases that are pending in various federal and state courts and the Company intends to defend against these lawsuits. MERCK & CO: Discovery Ongoing in Cases Alleging Femur Fractures --------------------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that discovery is ongoing in the Femur Fracture MDL and in state courts where Femur Fracture cases are pending. In March 2011, Merck submitted a Motion to Transfer to the JPML seeking to have all federal cases alleging Femur Fractures consolidated into one multidistrict litigation for coordinated pre-trial proceedings. The Motion to Transfer was granted in May 2011, and all federal cases involving allegations of Femur Fracture have been or will be transferred to a multidistrict litigation in the District of New Jersey (Femur Fracture MDL). In the only bellwether case tried to date in the Femur Fracture MDL, Glynn v. Merck, the jury returned a verdict in Merck's favor. In addition, in June 2013, the Femur Fracture MDL court granted Merck's motion for judgment as a matter of law in the Glynn case and held that the plaintiff's failure to warn claim was preempted by federal law. In August 2013, the Femur Fracture MDL court entered an order requiring plaintiffs in the Femur Fracture MDL to show cause why those cases asserting claims for a femur fracture injury that took place prior to September 14, 2010, should not be dismissed based on the court's preemption decision in the Glynn case. Pursuant to the show cause order, in March 2014, the Femur Fracture MDL court dismissed with prejudice approximately 650 cases on preemption grounds. Plaintiffs in approximately 515 of those cases are appealing that decision to the U.S. Court of Appeals for the Third Circuit (Third Circuit). The Femur Fracture MDL court has since dismissed without prejudice another approximately 540 cases pending plaintiffs' appeal of the preemption ruling to the Third Circuit. On June 30, 2016, the Third Circuit heard oral argument on plaintiffs' appeal of the preemption ruling and the parties are awaiting the decision. In addition, in June 2014, the Femur Fracture MDL court granted Merck summary judgment in the Gaynor v. Merck case and found that Merck's updates in January 2011 to the Fosamax label regarding atypical femur fractures were adequate as a matter of law and that Merck adequately communicated those changes. The plaintiffs in Gaynor have appealed the court's decision to the Third Circuit. In August 2014, Merck filed a motion requesting that the court enter a further order requiring all plaintiffs in the Femur Fracture MDL who claim that the 2011 Fosamax label is inadequate and the proximate cause of their alleged injuries to show cause why their cases should not be dismissed based on the court's preemption decision and its ruling in the Gaynor case. In November 2014, the court granted Merck's motion and entered the requested show cause order. As of December 31, 2016, seven cases were pending in the Femur Fracture MDL, excluding the 515 cases dismissed with prejudice on preemption grounds that are pending appeal and the 540 cases dismissed without prejudice that are also pending the aforementioned appeal. As of December 31, 2016, approximately 2,860 cases alleging Femur Fractures have been filed in New Jersey state court and are pending before Judge Jessica Mayer in Middlesex County. The parties selected an initial group of 30 cases to be reviewed through fact discovery. Two additional groups of 50 cases each to be reviewed through fact discovery were selected in November 2013 and March 2014, respectively. A further group of 25 cases to be reviewed through fact discovery was selected by Merck in July 2015, and Merck has continued to select additional cases to be reviewed through fact discovery during 2016. As of December 31, 2016, approximately 280 cases alleging Femur Fractures have been filed and are pending in California state court. A petition was filed seeking to coordinate all Femur Fracture cases filed in California state court before a single judge in Orange County, California. The petition was granted and Judge Thierry Colaw is currently presiding over the coordinated proceedings. In March 2014, the court directed that a group of 10 discovery pool cases be reviewed through fact discovery and subsequently scheduled the Galper v. Merck case, which plaintiffs selected, as the first trial. The Galper trial began in February 2015 and the jury returned a verdict in Merck's favor in April 2015, and plaintiff has appealed that verdict to the California appellate court. Oral argument on plaintiff's appeal in Galper was held on November 17, 2016 and the parties are awaiting a decision. The next Femur Fracture trial in California that was scheduled to begin in April 2016 was stayed at plaintiffs' request and a new trial date has not been set. Additionally, there are five Femur Fracture cases pending in other state courts. Discovery is ongoing in the Femur Fracture MDL and in state courts where Femur Fracture cases are pending and the Company intends to defend against these lawsuits. MERCK & CO: 1,195 Januvia/Janumet Claims Served at Dec. 31 ---------------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Merck is a defendant in product liability lawsuits in the United States involving Januvia and/or Janumet. As of December 31, 2016, approximately 1,195 product user claims have been served on Merck alleging generally that use of Januvia and/or Janumet caused the development of pancreatic cancer and other injuries. These complaints were filed in several different state and federal courts. Most of the claims were filed in a consolidated multidistrict litigation proceeding in the U.S. District Court for the Southern District of California called "In re Incretin-Based Therapies Products Liability Litigation" (MDL). The MDL includes federal lawsuits alleging pancreatic cancer due to use of the following medicines: Januvia, Janumet, Byetta and Victoza, the latter two of which are products manufactured by other pharmaceutical companies. The majority of claims not filed in the MDL were filed in the Superior Court of California, County of Los Angeles (California State Court). As of December 31, 2016, eight product users have claims pending against Merck in state courts other than the California State Court. In November 2015, the MDL and California State Court -- in separate opinions -- granted summary judgment to defendants on grounds of preemption. Of the approximately 1,195 served product user claims, these rulings resulted in the dismissal of approximately 1,100 product user claims. Plaintiffs are appealing the MDL and California State Court preemption rulings. In addition to the claims noted, the Company has agreed, as of December 31, 2016, to toll the statute of limitations for approximately 50 additional claims. The Company intends to continue defending against these lawsuits. MERCK & CO: 1,330 Propecia/Proscar Suits Filed at Dec. 31 --------------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Merck is a defendant in product liability lawsuits in the United States involving Propecia and/or Proscar. As of December 31, 2016, approximately 1,330 lawsuits have been filed by plaintiffs who allege that they have experienced persistent sexual side effects following cessation of treatment with Propecia and/or Proscar. Approximately 50 of the plaintiffs also allege that Propecia or Proscar has caused or can cause prostate cancer, testicular cancer or male breast cancer. The lawsuits have been filed in various federal courts and in state court in New Jersey. The federal lawsuits have been consolidated for pretrial purposes in a federal multidistrict litigation before Judge Brian Cogan of the Eastern District of New York. The matters pending in state court in New Jersey have been consolidated before Judge Jessica Mayer in Middlesex County. In addition, there is one matter pending in state court in California, one matter pending in state court in New York, and one matter pending in state court in Ohio. The Company intends to defend against these lawsuits. MERCK & CO: Settlement Reached in K-DUR Antitrust Litigation ------------------------------------------------------------ Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Merck and Upsher-Smith have reached a settlement in principle with the class of direct purchasers and the opt-outs to the class. In June 1997 and January 1998, Schering-Plough Corporation (Schering-Plough) settled patent litigation with Upsher-Smith, Inc. (Upsher-Smith) and ESI Lederle, Inc. (Lederle), respectively, relating to generic versions of Schering-Plough's long-acting potassium chloride product supplement used by cardiac patients, for which Lederle and Upsher-Smith had filed Abbreviated New Drug Applications (ANDAs). Following the commencement of an administrative proceeding by the U.S. Federal Trade Commission in 2001 alleging anti-competitive effects from those settlements (which was resolved in Schering- Plough's favor), putative class and non-class action suits were filed on behalf of direct and indirect purchasers of K-DUR against Schering-Plough, Upsher-Smith and Lederle and were consolidated in a multidistrict litigation in the U.S. District Court for the District of New Jersey. These suits claimed violations of federal and state antitrust laws, as well as other state statutory and common law causes of action, and sought unspecified damages. In April 2008, the indirect purchasers voluntarily dismissed their case. In February 2016, the District Court denied the Company's motion for summary judgment relating to all of the direct purchasers' claims concerning the settlement with Upsher-Smith and granted the Company's motion for summary judgment relating to all of the direct purchasers' claims concerning the settlement with Lederle. In anticipation of trial, the parties filed motions to exclude certain expert opinions and other evidence, and defendants filed a motion for summary judgment. In February 2017, Merck and Upsher-Smith reached a settlement in principle with the class of direct purchasers and the opt-outs to the class. Merck will contribute approximately $80 million in the aggregate towards the overall settlement. Formal settlement agreements with the class and the opt-outs have yet to be executed and the settlement with the class is subject to approval by the District Court. MERCK & CO: "Smith" Sales Force Litigation Underway --------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the sales force litigation by Kelli Smith remains pending. In May 2013, Ms. Kelli Smith filed a complaint against the Company in the U.S. District Court for the District of New Jersey on behalf of herself and a putative class of female sales representatives and a putative sub-class of female sales representatives with children, claiming (a) discriminatory policies and practices in selection, promotion and advancement, (b) disparate pay, (c) differential treatment, (d) hostile work environment and (e) retaliation under federal and state discrimination laws. Plaintiffs sought and were granted leave to file an amended complaint. In January 2014, plaintiffs filed an amended complaint adding four additional named plaintiffs. In October 2014, the court denied the Company's motion to dismiss or strike the class claims as premature. In September 2015, plaintiffs filed additional motions, including a motion for conditional certification under the Equal Pay Act; a motion to amend the pleadings seeking to add ERISA and constructive discharge claims and a Company subsidiary as a named defendant; and a motion for equitable relief. Merck filed papers in opposition to the motions. On April 27, 2016, the court granted plaintiff's motion for conditional certification but denied plaintiffs' motions to extend the liability period for their Equal Pay Act claims back to June 2009. As a result, the liability period will date back to April 2012, at the earliest. On April 29, 2016, the Magistrate Judge granted plaintiffs' request to amend the complaint to add the following: (i) a Company subsidiary as a corporate defendant; (ii) an ERISA claim and (iii) an individual constructive discharge claim for one of the named plaintiffs. Approximately 700 individuals have opted-in to this action; the opt-in period has closed. MERCK & CO: Class Suits over M-M-R II Vaccine in Discovery ---------------------------------------------------------- Merck & Co., Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the class action lawsuits by direct purchasers of the M-M-R II vaccine have proceeded to discovery. On n June 21, 2012, the U.S. District Court for the Eastern District of Pennsylvania unsealed a complaint that has been filed against the Company under the federal False Claims Act by two former employees alleging, among other things, that the Company defrauded the U.S. government by falsifying data in connection with a clinical study conducted on the mumps component of the Company's M-M-R II vaccine. The complaint alleges the fraud took place between 1999 and 2001. The U.S. government had the right to participate in and take over the prosecution of this lawsuit, but notified the court that it declined to exercise that right. The two former employees are pursuing the lawsuit without the involvement of the U.S. government. In addition, two putative class action lawsuits on behalf of direct purchasers of the M-M-R II vaccine, which charge that the Company misrepresented the efficacy of the M-M-R II vaccine in violation of federal antitrust laws and various state consumer protection laws, are pending in the Eastern District of Pennsylvania. In September 2014, the court denied Merck's motion to dismiss the False Claims Act suit and granted in part and denied in part its motion to dismiss the then-pending antitrust suit. As a result, both the False Claims Act suit and the antitrust suits have proceeded into discovery. The Company intends to defend against these lawsuits. MEZENTCO SOLUTIONS: Judge Approves Class Action Settlement ---------------------------------------------------------- Adelle Loiselle, writing for Blackburn News, reports that a LaSalle mother of three who received diluted doses of chemotherapy says she's not giving up after a judge approved a class-action settlement that awards hundreds of cancer patients just $1,500 each. "I kinda hoped the judge was taking this long because he was looking into all the details himself," says Sarah Johnson. "It's just heart-breaking that it went the other way." Ms. Johnson is one of 49 litigants in a class-action lawsuit who filed an objection to the $2.3-million settlement before Justice Gregory Verbeem approved it. "I cried," she says describing her initial reaction on April 7. Ms. Johnson was first diagnosed with breast cancer in 2012. She was 37, and she was seven months pregnant with her third son. "I did the chemo like they told me to and you know, the first time you're diagnosed with cancer is very upsetting, but at the time time you have the mentality like well, I'm just going to beat this," she says. "But the second time you're diagnosed, it's the difference between life and death." Ms. Johnson suspects her incorrect dose is to blame for her second diagnosis and worries about her children's future. In a raw statement on Facebook the day of the judge's ruling, she expressed her disappointment. "They treated us like lab rats without our permission. They saved money by doing this, and they killed many of us by doing this. They've made my life a living hell by doing this, and they'll kill many more, including me by doing this. They will take my boys' mother away by doing this." Her oldest son is 12 now, and she says he can not remember what life was like before. Many of the litigants felt disrespected by the amount they would receive in the settlement, but even more so, many like Ms. Johnson, say the money is not the main issue. "I would like at least for them to acknowledge it and look into it. It's a pretty big mistake," says Ms. Johnson. "And it's not being treated like a big mistake." The settlement does not assign responsibility to Mezentco Solutions Inc., Marchese Hospital Solutions and MedBuy Corporation for supplying the diluted chemotherapy used by 1,200 patients. Of those, 290 patients were treated at Windsor Regional Hospital, and 691 at London Health Sciences Centre. The rest were treated at hospitals in Peterborough and New Brunswick. Ms. Johnson fears that without acknowledgement, a similar mistake could be made in the future. In his statement, Justice Verbeem wrote he is "very satisfied that the terms of the settlement are fair, reasonable and in the best interests of the class members as a whole." Ms. Johnson admits she is too emotional right now to say for certain what her next move will be but says she would like to opt out of the settlement if it is not too late. MICHAELS STORES: FCRA Provision Not Enough to Establish Harm ------------------------------------------------------------ Lisa Henderson, Esq., of Sedgwick LLP, in an article for Mondaq, reports that consent to a background check seems to be a part of any employment application these days, whether the job sought is with a large corporation or the corner deli. Employers gain a measure of protection from conducting background checks on prospective employees. They are useful for verifying that the prospective employee has been honest about their educational achievements and past employment, and identifying those prospective employees that may carry a risk of theft or workplace violence. However, courts have seen a recent wave of litigation over the sufficiency of the employer's disclosure of the background check and the prospective employee's consent to same. The Fair Credit Reporting Act (FCRA) requires that the employer's intent to obtain a background check be disclosed conspicuously, in a dedicated, stand-alone document: [A]n employer or prospective employer cannot "procure, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless: -- a clear and conspicuous disclosure has been made in writing to the consumer at any time...before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and -- the consumer has authorized in writing . . . the procurement of the report by that person. In re Michaels Stores, Inc., 2017 U.S. Dist. LEXIS 9310, *10-11 (D.N.J. Jan. 24, 2017) (citing 15 U.S.C. Sec. 1681b(b)(2)(A)). This FCRA disclosure requirement is known as the "stand-alone disclosure requirement," and it has been the subject of a number of recent opinions. The most recent of those is Vera v. Mondelez Global LLC, 2017 U.S. Dist. LEXIS 38328 (N.D. Ill. Mar. 17, 2017). Plaintiff Johnny Vera applied online for a job with Mondelez, an international manufacturer of food products that are marketed under a variety of brand names. As part of the application process, the website displayed a statement related to the general topic of background checks (the Statement). Vera was required to scroll down the webpage in order to read the Statement in its entirety. The Statement provided information about requesting a background check, and included an authorization for "all companies, credit agencies, educational institutions, persons, government agencies, criminal and civil courts, and former employers to release information they have about me and release them from any liability for doing so." In filing a putative class action lawsuit against Mondelez, Vera did not allege that the Statement failed to disclose the fact that Mondelez sought a background check as part of his employment application, nor that Vera denied Mondelez permission to conduct a background check. Instead, Vera alleged that the Statement violated FCRA's "stand-alone disclosure requirement" because the Statement contained more information than just a disclosure that Mondelez intended to procure a consumer report about Vera. In seeking to dismiss the putative class action, Mondelez argued that the Court did not have subject matter jurisdiction because Vera failed to allege an injury-in fact. In analyzing and ultimately accepting Mondelez's argument, the Court drew heavily from the recent U.S. Supreme Court opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Spokeo involved a FCRA provision that obligates consumer reporting agencies to follow certain procedures when collecting and reporting background and credit information about individuals. The Supreme Court noted that the clear intent of the provision was to decrease the risk of disseminating false information. Id. at 1550. The Supreme Court also noted, however, that an agency's failure to follow the procedures may result in no harm to the consumer where the information provided was entirely accurate. Id. Accordingly, the Supreme Court held that violation of the FCRA provision, alone, was insufficient to establish constitutional harm. Id. In Vera, the plaintiff never alleged he was deprived of information to which he was entitled under the FCRA. The pleadings were also devoid of any allegation that the receipt of such information implicated a fundamental right. The Court further noted, to the extent the FCRA establishes privacy right protections that implicate a fundamental right, such was not implicated here, as Vera admitted that he gave Mondelez permission to investigate his private information. Vera, 2017 U.S. Dist. LEXIS at *8-9. As a result, the Court concluded that the "stand- alone disclosure requirement" was akin to the FCRA provision at issue in Spokeo. Id. "A failure to comply with the procedures might cause the statutorily identified harm, i.e. inaccurate and unauthorized reporting . . .[b]ut a procedural violation will not necessarily cause that harm, so the procedural violation by itself is not an injury in fact." Id. at *10. The Court proceeded to dismiss Vera's lawsuit on the basis that it did not have subject matter jurisdiction. Id. at *11. As noted above, the Vera opinion is not an isolated one. Several federal courts have had the opportunity to analyze whether harm is presumed from a violation of the "stand-alone disclosure requirement." The majority appear to be in consensus in finding that the "stand-alone disclosure requirement" is procedural in nature, not substantive, and that any claimant must accordingly show harm from violation of the statute. See In re Michaels Stores, Inc., 2017 U.S. Dist. LEXIS 9310 (D.N.J. Jan. 24, 2017); Fields v. Beverly Health & Rehab. Servs., 2017 U.S. Dist. LEXIS 29771 (D. Minn. Mar. 1, 2017); Lee v. Hertz Corp., 2016 U.S. Dist. LEXIS 166911 (N.D. Cal. Dec. 2, 2016); Landrum v. Blackbird Enters., LLC, 2016 U.S. Dist. LEXIS 143044 (S.D. Tex. Oct. 3, 2016). But see Hargrett v. Amazon. Com DEDC, LLC, 2017 U.S. Dist. LEXIS 17236 (M.D. Fla. Jan. 30, 2017) (addressing an alleged violation of the "stand-alone disclosure requirement," and finding that injury-in-fact may exist solely by virtue of the statute creating legal rights). Employers should be careful to ensure that their application documents meet the disclosure requirements under the FCRA. While any lawsuit that may result from the failure to comply may ultimately be dismissed, it is costly and time consuming to defend against a potential class action complaint alleging violation of the "stand-alone disclosure requirement." MISSOURI: Public Defender System Suit Moved to Federal Court ------------------------------------------------------------ Jennifer Moore at KSMU reports the class action lawsuit filed by the ACLU and others against the state of Missouri over its public defender system has been moved from state to federal court, according to Missouri's public court records database. Jacquie Shipma, General Counsel for the Missouri State Public Defender, told KSMU that either court would have been appropriate, since the lawsuit alleges violations of both state and federal law. But all of the defendants have agreed to have the case moved to federal court, which is a requirement for the change. She said the Missouri State Public Defender system felt the federal court system would be better for this type of case, but declined to elaborate on why. This lawsuit is centered on the US Constitutional right to counsel, as provided by the 6th Amendment. In the original petition, the American Civil Liberties Union and other parties allege that Missouri's public defenders are not adequately representing their clients because of an ongoing lack of funding for the state program. Jeffrey Mittman, executive director of ACLU of Missouri, provided the following written statement on April 7 afternoon: "This afternoon, the state chose to remove the case to the federal district court for the Western District of Missouri as it is legally entitled to do. This change of venue, however, does nothing to alter or address the serious allegations made by the plaintiffs in this case, who continue to face prosecution across the state, without the benefit of adequately resourced attorneys. We look forward to moving forward with this important litigation in federal court." The director of the Missouri Public Defender System, Michael Barrett, told KSMU recently he was not surprised by the lawsuit, which was originally filed in March. "We knew that, when a public defender has 200 cases, 180 cases, that that's a constructive denial of an individual's right to counsel," Barrett said. Barrett drew national attention to Missouri's public defender system when he highlighted the lack of funding by attempting to appoint former Governor Jay Nixon as a public defender in a Cole County case. The New York Times Editorial Board caught wind of that and wrote a scathing editorial about Missouri's lack of funding for indigent criminal defense. Barrett says he feels he has done everything he can to streamline the MSPD system. "We have 350 lawyers for 82,000 cases. We resolve trial cases -- everything from misdemeanors to murder -- for an on average cost of 355 dollars per case. And that's including overhead. Now, anyone who's ever hired an attorney knows that 350 dollars is used up in the first hour of their work," Barrett said. And when someone's liberty is on the line, an attorney simply needs to spend more time than that on a case, he said. "The underfunding of indigent defense is a national epidemic. We're never going to be at the front line of receiving resources," Barrett said. But even within that national epidemic of underfunding, he said, Missouri trails at the end. Some states have developed models of partnerships involving private attorneys doing pro-bono work for indigent defendants. Several years ago, KSMU investigated other public defender systems and reported on their methods here. Barrett would not say whether he has looked to other states as examples on successful methods of providing adequate indigent defense. He said the solution does not need to be complicated. "The model is quite simple. You get in a room and you decide what are the maximum caseloads an individual lawyer can handle," Barrett said. Governor Eric Greitens has recommended in next year's budget about 25 million dollars less than what the Missouri State Public Defender says it needs to address the funding issue. Shipma said the next step in the federal court case will be for the defendants to file a response of pleading, often referred to as an "answer." Missouri's Attorney General, John Hawley, will file that on behalf of Governor Eric Greitens and the state of Missouri, both named as defendants. Shipma will file a response on behalf of the parties she is representing, which include Barrett and members of the Missouri State Public Defender Commission. MONSANTO CO: Jurisdiction Established Through Grable Doctrine ------------------------------------------------------------- Kimberly Gosling, Esq. -- kgosling@mofo.com -- and Samuel Cortina, Esq. -- scortina@mofo.com -- of Morrison & Foerster LLP, in an article for Lexology, wrote that establishing federal jurisdiction through the Grable doctrine is rare, but a Missouri federal court recently reminded us that it is not impossible. In Bader Farms, Inc. v. Monsanto Co., No. 1:16-CV-299 SNLJ, 2017 WL 633815 (E.D. Mo. Feb. 16, 2017), the court found that, even though federal jurisdiction did not appear on the face of the complaint, it existed under Grable because the plaintiffs' state-law claims required examination of the actual practices of and regulations guiding a federal agency, thus raising a significant federal issue. This case may be useful for many companies subject to federal regulation seeking to invoke removal jurisdiction. The Bader Farms plaintiffs, a group of farmers, originally sued Monsanto in Missouri state court, asserting a number of state law claims. They alleged that Monsanto fraudulently concealed information from the Animal and Plant Health Inspection Service (APHIS), the federal agency that regulates genetically engineered seeds, when it petitioned to deregulate genetically engineered soybean and cotton seeds. APHIS ultimately approved the petition, and the seeds were released to the public. According to the plaintiffs, Monsanto intentionally withheld from APHIS that a corresponding herbicide had yet to be approved by the EPA. Rather than wait for the new compatible herbicide, farmers who bought the new seeds treated their crops with an old, illegal herbicide that drifts onto nearby farms and kills non-genetically-engineered crops. The Bader Farms plaintiffs were farmers whose crops were allegedly damaged by this drifting herbicide. Monsanto removed the case to federal court. The complaint had only state-law claims against a non-diverse defendant, which almost always defeats federal jurisdiction. Yet Monsanto defeated the farmers' motion to remand. How? The answer lies in the "Grable doctrine," a rarely successful basis for federal question jurisdiction. Under the well-pleaded complaint rule, federal question jurisdiction must appear on the face of the complaint and cannot be created by a federal defense. This typically means that state-law claims cannot create federal question jurisdiction. In Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005), however, the Supreme Court established a narrow doctrine under which federal question jurisdiction exists if a state-law claim "raise[s] a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state responsibilities." Id. at 314. The Bader Farms court relied on Grable in finding that federal jurisdiction existed. According to the court, the farmers' allegations directly questioned the actual practices of and regulations governing APHIS -- for example, whether APHIS would have deregulated the genetically engineered seeds had Monsanto not allegedly concealed the truth. The case ultimately posed a "collateral attack on the validity of APHIS's decision to deregulate the new seed." Bader Farms Inc., 2017 WL 633815, at *3. Thus, the court concluded that the question raised a substantial federal issue under Grable. This outcome might seem straightforward, but it actually marks a significant victory for defendants. Efforts to establish federal jurisdiction through Grable have rarely succeeded. Indeed, courts routinely reject Grable arguments even where state-law claims clearly implicate federal issues and regulations. (We recently discussed one such case here.) Bader Farms might give some defendants a leg up in trying to avoid that result. Under Bader Farms, if a plaintiff alleges that (1) a defendant concealed from a federal agency information that it had a duty to disclose, (2) the information was material, and (3) the concealment prevented the agency from performing its regulatory duties, the defendant may be able to remove based on a significant federal issue. This precedent will be useful for companies in regulated industries who wish to litigate in federal court. MYLAN INC: "Nordstrum" Sues Over Overpriced EpiPen Injections ------------------------------------------------------------- Angie Nordstrum and Carly Bowersock, individually and on behalf of all others similarly situated, Plaintiffs, v. Mylan Inc., Mylan Specialty L.P., Pfizer, Inc., King Pharmaceuticals LLC and Meridian Medical Technologies, Inc., Defendants, Case No. 2:17-cv- 02401, (D. N.J., April 7, 2017), seeks to recover treble damages, costs of suit and reasonable attorneys' fees resulting from overcharging of epinephrine-injecting devices in violation of the Sherman Antitrust Act and the Clayton Antitrust Act as well as various state consumer protection laws. Defendants produce, market and sell the EpiPen, a self-injecting device that delivers epinephrine, a synthetic form of adrenaline used to relax muscles around airways and tightening blood vessels to maintain respiratory and cardiovascular function during allergies. Mylan Inc. is a Pennsylvania corporation with its principal place of business at 1000 Mylan Blvd., Canonsburg, Pennsylvania 15317. Mylan Pharmaceuticals Inc. is a West Virginia corporation with its principal place of business at TSl Chestnut Ridge Road, Morgantown, West Virginia 26505. Pfizer, through its wholly owned subsidiaries King and Meridian, is exclusive supplier of EpiPens to Mylan. King manufacturers the epinephrine for the EpiPen, and Meridian (who holds the EpiPen auto-injector patents) manufactures the EpiPen injector device itself. Defendants allegedly engage in anticompetitive and illegal exclusionary conspiracy to maintain monopoly over said product and has made billions of dollars at the expense of consumers and third-party payors. Plaintiffs have food allergies for which she has purchased several EpiPens annually from Mylan. Plaintiff is represented by: James E. Cecchi, Esq. Michael A. Innes, Esq. CARELLA, BRYNE, CECCHI, OLSTEIN, BRODY & ANGELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 Fax: (973) 994-1744 - and - Damien J. Marshall, Esq. Duane L. Loft, Esq. BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue, 7th Floor New York, NY 10022 Telephone: (212) 446-2300 Fax: (212) 446-2350 - and - Paul J. Geller, Esq. Stuart A. Davidson, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Fax: (561) 750-3364 - and - Brian O. O'Mara, Esq. Arthur L. Shingler III, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: (619) 231-1058 Fax: (619) 231-7423 - and - Brian D. Penny, Esq. GOLDMAN SCARLATO & PENNY, P.C. 161 Washington Street, Suite 1025 Conshohocken, PA 19428 Telephone: (484) 342-0700 Fax: (484) 580-8747 MYLAN INC: Teachers' Fund Sues Over Overpriced Anti-Depressant -------------------------------------------------------------- Philadelphia Federation of Teachers Health and Welfare Fund, on behalf of itself and all others similarly situated, Plaintiffs, v. Mylan, Inc., Sandoz, Inc. and Taro Pharmaceuticals USA Inc., Defendants, Case No. 2:17-cv-01557, (E.D. Pa., April 6, 2017), seeks to recover treble damages, costs of suit and reasonable attorneys' fees resulting from overcharging of generic chlomipramine hydrochloride capsules in violation of the Sherman Act and Clayton Act. Dhlomipramine hydrochloride is an anti-depressant used to treat obsessive compulsive disorder. Philadelphia Federation of Teachers Health and Welfare Fund is a voluntary employee benefits plan providing health benefits to eligible participants and beneficiaries, including prescription drug benefits, to approximately 34,000 participants, and their spouses and dependents. Mylan Inc. is a Pennsylvania corporation with its principal place of business at 1000 Mylan Blvd., Canonsburg, Pennsylvania 15317. Mylan Pharmaceuticals Inc. is a West Virginia corporation with its principal place of business at TSl Chestnut Ridge Road, Morgantown, West Virginia 26505. Taro Pharmaceuticals USA, Inc. is a New York corporation with its principal place of business in Hawthorne, New York. It is an owned subsidiary of Taro Pharmaceutical Industries, Ltd. Sandoz, Inc., is a Colorado corporation with its principal place of business in Princeton, New Jersey. It deals in generic pharmaceuticals and bio-similars. Plaintiff is represented by: Marc H. Edelson, Esq. EDESON AND ASSOCIATES LLC 3 Terry Drive, Suite 205 Newtown, PA 18940 Tel: (215) 867-2399 Fax: (267) 685-0676 Email: mcdelson@edelson-law.com - and - Paul J. Scarlato, Esq. GOLDMAN SCARLATO & PENNY, RC. 8 Tower Bridge, Suite 1025 161 Washington Street Conshohocken, PA 19428 Tel: (484) 342-0700 Fax: (484) 580-8747 Email: scarlato@lawgsp.com NABORS DRILLING: Calderon Seeks Certification of Welders Class -------------------------------------------------------------- In the lawsuit captioned JOSE CALDERON, on behalf of himself individually, and ALL OTHERS SIMILARLY SITUATED et al., the Plaintiffs, v NABORS DRILLING TECHNOLOGIES USA INC., NABORS CORPORATE SERVICES INC., NABORS INDUSTRIES INC. and EXPRESS PAYROLL INC., the Defendant, Case No. 4:17-cv-00710 (S.D. Tex.), Mr. Calderon seeks to certify a class of: "all Welders Who Worked for Defendants at the Crosby, Texas location Within the Past Three Years, Classified as Independent Contractors, and Paid Straight Time Instead of Time and a Half for Overtime Hours Worked". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UhYAaqtj The Plaintiffs are represented by: Taft L. Foley, II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Telephone: (832) 778 8182 Facsimile: (832) 778 8353 E-mail: Taft.Foley@thefoleylawfirm.com NEW ZEALAND: Brokovich Meets Christchurch Insurance Claimants ------------------------------------------------------------- Jamie Small, writing for Stuff.co.nz, reports that celebrity consumer rights activist Erin Brockovich says the Christchurch rebuild is taking too long. The 56-year-old American, who was immortalised in a Hollywood film about her battle against a US energy company, was in New Zealand on April 10 to speak with Christchurch insurance claimants. Ms. Brockovich spent time visiting the houses of people still dealing with insurance companies and the Earthquake Commission to settle their claims and repair their homes. "The conditions that they're living in broke my heart," she said. Ms. Brockovich said money was the main reason the process was being dragged out for so long. "At the end of the day these are huge payouts. It's the root cause for why we see, in most of these situations, big delays." Ms. Brockovich is most famous for her work as a legal clerk whose investigation led to the success of a major class action against the Pacific Gas and Electric Company in California in the 1990s. She came into the spotlight after the 2000 release of Erin Brockovich, starring Julia Roberts. Since then, Ms. Brockovich has worked on many high-profile cases, usually to do with environment and health. She consults for Shine Lawyers, an Australian legal firm that also practices in Christchurch. Ms. Brockovich said the link between her other cases and the situation in Christchurch was people's need for health, welfare and safety for their families. "We all have more in common than you realise." She said in her visits she saw families living in terrible conditions. "The black mould in these houses is suffocating. "I hope insurance companies continue to get the message: this is ridiculous." She said she had plenty of experience dealing with insurance companies. Claimants needed support to get justice, she said. "Oftentimes leadership isn't aware fully of what's going on in the community because people aren't talking to them." Visiting Christchurch had been an "eye-opening experience", she said. "It's been too long. Six years is too long." NUCOR CORPORATION: $23.4MM Settlement Granted Final Approval ------------------------------------------------------------ Nucor Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the court has granted final approval of the class action settlement. Since 2008, Nucor has been a defendant, along with other major steel producers, in several related antitrust class-action proceedings filed by Standard Iron Works and other steel purchasers in the United States District Court for the Northern District of Illinois. The majority of these complaints were filed in September and October of 2008, with two additional complaints being filed in July and December of 2010. Two of these complaints were voluntarily dismissed and are no longer pending. The plaintiffs alleged that from April 1, 2005 through December 31, 2007, eight steel manufacturers, including Nucor, engaged in anticompetitive activities with respect to the production and sale of steel. Nucor denies those allegations. The plaintiffs sought monetary and other relief on behalf of themselves and classes of direct and indirect purchasers of steel products from the defendants in the United States between April 1, 2005 and December 31, 2007. On September 30, 2016, Nucor entered into an agreement to settle the claims of the class of direct purchasers of steel products for the amount of $23.4 million, which was paid during the fourth quarter of 2016. Nucor believes the plaintiffs' claims are without merit and did not admit liability or the validity of the plaintiffs' claims as part of the settlement, but entered into the settlement in order to avoid the burden, expense and distraction of further litigation. The settlement was subject to court approval. On November 3, 2016, the court granted preliminary approval of the settlement. Direct purchasers of steel products were given notice of the settlement and the opportunity to object to the settlement or to opt out as class members. No purchasers timely objected to the settlement, and only two purchasers filed notices of intent to opt out. On February 16, 2017, the Court granted final approval of the settlement. The settlement does not resolve claims asserted by a separate putative class of indirect purchasers of steel products. Nucor and other Defendants have moved to dismiss those indirect purchaser claims. The company said, "We will continue to vigorously defend against the indirect purchasers' claims and any other claims relating to these allegations. We cannot at this time predict the outcome of the remaining litigation or estimate the range of Nucor's potential exposure (if any) and, consequently, have not recorded any reserves or contingencies related to the class of indirect purchasers." Nucor Corporation and its affiliates manufacture steel and steel products. OAKHURST: Maine Overtime Law Wording at Issue in Class Action ------------------------------------------------------------- Dee Thompson, writing for Legal Newsline, reports that the U.S. Court of Appeals issued a decision March 13 that impacted Maine's overtime law and at issue was the use of a simple comma. A summary judgment decision in a lawsuit against a group of truck drivers was reversed, resulting in the revival of the drivers' class action lawsuit for unpaid overtime against Oakhurst Dairy. The controversy revolved around the definitions in Maine's overtime law. The specific wording of the law as written discusses employees who work with food products, specifically the "canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution" of those particular products. The phrase that really came under the microscope was "packing for shipment or distribution." That phrase was at the center of the district court summary judgment motion. The drivers claimed that since they didn't pack goods, they were entitled to overtime. Kevin Haskins -- khaskins@preti.com -- an attorney at Preti Flaherty in Portland, Maine, said Oakhurst had argued that the phrase "packing for shipment or distribution" encompasses two distinct activities -- "packing for shipment" and "distribution" - - each of which is a stand-alone exempt activity. Oakhurst argued that the drivers were exempt and therefore not entitled to overtime because they were engaged in "distribution." A Maine federal court agreed. Mr. Haskins told Legal Newsline the "doctrine of parallel usage" applied in the case. "It's a rule of grammar, which basically says that words in a series should be parallel so that each word is a functional match of the others. So, for the drivers, they argued that the exemption contained a series of gerunds, or words ending in 'ing,' except for the last two words. "They argued that those two words -- 'shipment' and 'distribution' -- were functionally different from the gerunds and essentially served the same role as modifiers of the last gerund in the list: 'packing.' The problem with the drivers' parallel usage argument was that the last element of a series is usually preceded by a conjunction, like 'and' or 'or,' and the only conjunction in this series came before the word 'distribution,' which could suggest that 'distribution' did not merely modify 'packing,' but that it was a stand-alone exempt activity in its own right." Mr. Haskins went on to explain that neither side was able to make an argument that removed the ambiguity of the wording in the exemption. "The reason the drivers' interpretation ultimately prevailed was because the court agreed that ambiguous terms in Maine's wage and hour law should be construed liberally to further the 'beneficent' and 'remedial' purpose of the law," he said. "Because the drivers' interpretation resulted in a more narrow exemption -- and greater overtime pay protection -- the court simply found that it was more consistent with the remedial purpose of the law." Mr. Haskins doesn't foresee a wave of these types of decision in the future, or think this ruling sets a precedent for other actions in which wording or punctuation might be at issue. "What is also interesting about this case is that the legislative history of the exemption was as ambiguous as the text -- that is not always the case and, had there been greater clarity in that department, the end result might very well have been different," he notes. The decision was surprising, though, as Mr. Haskins explains; "The ambiguity in both the text of the exemption and its legislative history is surprising, particularly given the age of the statute, which dates back to the 1960s. And, as the court pointed out, there was no real guidance by way of Maine case law, either, which again is a bit surprising given the age of the statute." OCCAM NETWORKS: Class Rep's Incentive Award Request Challenged -------------------------------------------------------------- Matt Chiappardi and Jeff Montgomery, writing for Law360, report that shareholders' counsel in the Occam Networks Inc. merger case told the Delaware Chancery Court on April 10 to reject the class representative's request for an unprecedented incentive award measured in the millions of dollars, arguing it would set bad policy and "hang over every future class action in Delaware." During a hearing in Wilmington, Robert J. Katzenstein -- rjk@skjlaw.com -- of Smith Katzenstein & Jenkins LLP said that if investor Herbert Chen's request for what, at more than $3 million, would be the largest incentive award in Chancery Court history is approved, it would set a precedent that may well embolden other lead plaintiffs to play inappropriate roles in future cases. "It would encourage a new species of professional class representatives," Mr. Katzenstein told Vice Chancellor J. Travis Laster. "They may well insist on making strategic decisions and having veto power." Counsel would have to handle such class representatives with "kid gloves" and watch that any "off-the-cuff remark" could turn into full-blown litigation over fees, Mr. Katzenstein said. In the case challenging Occam's $200 million tie-up with Calix Inc., Mr. Chen is seeking what's known as a special or incentive award, which is a payment that can be doled out to a particular plaintiff that makes an extraordinary contribution to a case. The award Mr. Chen is seeking has previously been described at roughly $3 million, but at oral argument April 10, shareholders' counsel said it appeared that figure had ballooned to $7 million. Chen did not address the figure directly but said counsel was "mischaracterizing" his arguments. The investor argues that without his efforts, the case would have been either lost or resolved for much less than the ultimate $35.5 million settlement struck midway through a two-week trial in April 2016. Such incentive awards have traditionally been measured in the four- or five-figure range, and the attorneys representing the class had acknowledged that Chen played a valuable role, even recommending he be awarded about $1 million. That figure alone would be record-breaking, but class attorneys are resisting more money being added to the total. In court Monday, Mr. Katzenstein said Mr. Chen's pursuit of the incentive award has been filled with "insults and invective," riddled with illogical arguments and a notion that he alone led the case to success. "Whatever were the merits of Mr. Chen's argument for an incentive award, he cannot argue he did all the work," Mr. Katzenstein said in court. "He argues he has been more valuable than all the lawyers put together." Mr. Katzenstein said Mr. Chen is essentially seeking attorneys' fees, but he is not a lawyer, does not have the same responsibilities and is not bound by the same code of conduct. Mr. Chen argues that he is indeed entitled to the hefty award, claiming he did the equivalent of 6,500 hours of work on the case that reaped benefits, such as teasing out discovery that prompted the aiding and abetting claims against Wilson Sonsini Goodrich & Rosati PC, Occam's legal advisers until 2014, and the firm's ultimate withdrawal from the action. The investor claims that class counsel was at one point trying to effect a settlement by making an "end run" around him, and without his push, the case could have settled for much less money or even simple additional disclosures in proxy statements. Mr. Chen's characterization of his role has found some support from class counsel. Shareholders' attorney David A. Jenkins -- djenkins@skjlaw.com -- of Smith Katzenstein & Jenkins had previously testified that Mr. Chen was "by a factor of 10 more helpful than any other plaintiff I've been involved with." But Jenkins also said the litigation was a group effort, with Chen playing a role in an effective ensemble. The Occam settlement came after five years of litigation challenging the 2010 merger as undervalued, and class counsel has requested roughly $10 million in fees and expenses from the litigation. Vice Chancellor Laster did not rule on April 10; he said he would render a written opinion. Mr. Chen is proceeding pro se on his incentive award bid. The shareholders are represented by Robert J. Katzenstein, David A. Jenkins and Kathleen M. Miller of Smith Katzenstein & Jenkins LLP and Joseph Levi, Michael H. Rosner and Nicholas I. Porritt of Levi & Korsinsky LLP. The Occam directors and officers are represented by Peter J. Walsh Jr. -- pwalsh@potteranderson.com -- Arthur L. Dent -- adent@potteranderson.com -- and Aaron R. Sims of Potter Anderson & Corroon LLP, Patrick E. Gibbs -- pgibbs@cooley.com -- of Cooley LLP and Matthew Rawlinson -- matt.rawlinson@lw.com -- of Latham & Watkins LLP. Wilson Sonsini is represented by David E. Ross -- dross@ramllp.com -- of Ross Aronstam & Moritz LLP and Evan R. Chesler -- echesler@cravath.com -- Sandra C. Goldstein -- sgoldstein@cravath.com -- and Kevin J. Orsini -- korsini@cravath.com -- of Cravath Swaine & Moore LLP. The case is Chen et al. v. Occam Networks Inc. et al., case number 5878, in the Delaware Court of Chancery. OCWEN FINANCIAL: Property Inspection Case Dismissal Upheld ---------------------------------------------------------- Shanice Harris, writing for Legal Newsline, reports that the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of a class action lawsuit last month. The lawsuit questioned fees given during property inspections after the plaintiffs in the case had defaulted on their mortgages. Ocwen Financial Corp., a loan servicing company in Florida, charged Mary Lou Vega, Tara Inden and Regina Saffold-Sanders for property inspections. The inspections took place after the plaintiffs defaulted on their loans. According to Ocwen, the mortgage contracts that the plaintiffs signed specifically stated that they could charge the plaintiffs for property inspections that are necessary to protect the lender's interest. Those costs would be passed on to the plaintiffs. Once the plaintiffs defaulted on their loans, Ocwen sent property inspectors to the premises to see if the occupants were maintaining the integrity of the property. Ms. Vega, Ms. Inden and Ms. Saffold-Sanders sued Ocwen as a result, alleging that the higher ups at Ocwen were conspiring against them to commit fraud. They alleged that the lenders were in violations of RICO (The Racketeer Influenced Corrupt Organizations Act) and the California Unfair Competition Law. The plaintiffs said that the fees were never disclosed to them and that they were done too frequently and never reviewed with them. "I was not surprised by the Ninth Circuit's ruling," John Raffetto, attorney at Goodwin Law in Washington, D.C., told Legal Newsline. "It is in line with established precedent about what plaintiffs must allege to state fraud claims." The Ninth Circuit agreed with the trail court to dismiss the plaintiff's claims. It ruled that the allegations brought forth by the plaintiffs were not enough to claim fraud. The inspections were in accordance with the clause outlined in Ocwen's mortgage contracts, which was signed by the plaintiffs. Many circuits throughout the country have seen similar cases to Vega v. Ocwen. "Those cases sometimes involve different claims and different factual allegations, but the heart of those complaints is the same," Mr. Raffetto said. "When those cases involve fraud allegations, courts often have to address the issue that drove the decision in Vega." The case will be the blueprint in deciding future cases where defendants are facing fraud claims as it pertains to servicing obligations. "Because the Ninth Circuit's decision addressed a pleading standard, the decision is unlikely to directly affect borrowers, lenders, and loan servicers," Mr. Raffetto said. "Plaintiffs and defendants in similar cases will likely use the Ninth Circuit's decision to frame their litigation strategies." OLD REPUBLIC: "White" Lawsuit Awaiting Court's Dismissal -------------------------------------------------------- Old Republic International Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the "Ba" lawsuit has been dismissed with prejudice and the "White" lawsuit is awaiting the Court's dismissal. On December 30, 2011 and on January 4, 2013, purported class action suits alleging RESPA violations were filed in the Federal District Court, for the Eastern District of Pennsylvania targeting RMIC, other mortgage guaranty insurance companies, PNC Financial Services Group (as successor to National City Bank) and HSBC Bank USA, N.A., and their wholly-owned captive insurance subsidiaries. (White, Hightower, et al. v. PNC Financial Services Group (as successor to National City Bank) et al.), (Ba, Chip, et al. v. HSBC Bank USA, N.A., et al.). The lawsuits are two of twelve against various lenders, their captive reinsurers and the mortgage insurers, filed by the same law firms. All of these lawsuits were substantially identical in alleging that the mortgage guaranty insurers had reinsurance arrangements with the defendant banks' captive insurance subsidiaries under which payments were made in violation of the anti-kickback and fee splitting prohibitions of Sections 8(a) and 8(b) of RESPA. Ten of the twelve suits have been dismissed. A class has not been certified in either remaining suit. Those two remaining suits seeking unspecified damages, costs, fees and the return of the allegedly improper payments were settled with an agreement to make nominal payments. Ba has been dismissed with prejudice and White is awaiting the Court's dismissal. ONTARIO: C$8MM Settlement Reached for School of the Blind Suit -------------------------------------------------------------- Michelle McQuigge at The Star reports a class-action lawsuit involving allegations of physical, emotional and sexual abuse at an Ontario boarding school for the blind has been settled out of court. Lawyers representing the plaintiffs say the CAD8-million settlement with the province -- reached one day before the case was to go to trial -- must still be approved by courts. A hearing date is tentatively set for June. The class action included former students of the W. Ross Macdonald School for the Blind in Brantford, Ont. The defendant was not the school itself or any individual staff members, but rather the government of Ontario, which was responsible for overseeing the school. Allegations contained in the statement of claim contended students attending the school from the early 1950s to the late 2000s were subjected to psychological degradation, physical violence and sexual abuse. The suit also alleged some staff were improperly trained for their jobs and the school failed to conduct regular criminal or reference checks on employees. A former student who became the lead plaintiff in the class-action suit said he welcomed the settlement and hoped it would bring an end to a painful chapter for all concerned. "I'm pleased that we didn't have to go to trial on this one," said Robert Seed, who attended the school from 1954 to 1965. "I think all parties concerned, they were pretty level-headed about it and . . . wanted to make sure that the people that are in the lawsuit were taken care of." Ontario's Ministry of the Attorney General issued a statement outlining the general terms of the settlement, but declined further comment as the deal is still subject to court approval. W. Ross Macdonald referred all questions to the Ministry of Education, which did not respond to a request for comment. The class-action suit, which was certified by the Ontario Superior Court of Justice in 2012, covered students who attended W. Ross Macdonald between Jan 1, 1951 and May 4, 2012. A family class also covered close relatives of students who went to the school from March 31, 1978 to May 4, 2012. The statement of claim in the case contained allegations of widespread physical, emotional and sexual abuse spanning at least six decades. It alleged the Ontario government, as ultimate overseer of the school, failed to protect a particularly vulnerable population from harm. "Throughout the class period, the residence counsellors, teachers and administrators at Ross MacDonald treated the students with contempt, prejudice and indifference," the statement of claim alleged. "They engaged in abusive conduct, often taking advantage of the visual disabilities of students." Students were routinely punished for minor matters such as feeling homesick, struggling with their reading skills or using too much toilet paper, the statement of claim alleged. The suit claimed staff members from teachers to school aids often resorted to violence, such as forcing students to drink from urinals and jumping on the backs of those as young as six years old. The statement of claim also alleged staff played upon the visual impairments of students, sneaking up on them during private conversations and spinning students around to deliberately disorient them. Seed, for his part, alleged he was the target of unwanted sexual advances by a residence counsellor working at the school some time during his 11-year tenure. He also alleged witnessing another teacher striking students, throwing objects at them and making belittling remarks that eroded their confidence. Tom Dekker, a former student who had been scheduled to testify at the trial that was averted by the settlement, said he believes W. Ross Macdonald has undergone significant reforms in recent years and offers a valuable resource to blind students from across the country. He said he views the settlement as an acknowledgment of wrongdoing and welcomes it on those terms. "I think I'd be a lot better off in life if certain things hadn't happened to me at that place," he said from Victoria, B.C. "So this is just kind of compensation to give me some kind of resources to catch up on things I missed out on." Seed agreed, saying the suit was not meant to tarnish the school's reputation, but rather to seek justice for people who continue to feel the effects of their time there to this day. He likened their situation to other more high-profile instances of alleged abuse in residential school facilities. "In a lot of cases we were measured up against the residential school abuse that the indigenous people suffered," he said. "I attended the hearings in Thunder Bay, Ont., and the stories that I heard were much the same as W. Ross Macdonald." OPHTHOTECH CORP: 2 Pension Funds Compete for Lead Plaintiff Role ---------------------------------------------------------------- Ophthotech Corporation is defending a class action lawsuit by Frank Micholle et al., the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. Pending before the Court are: -- a Motion to Appoint City of Bristol Pension Fund, Brandon Suedekum, Ashok Dalal, Sergio Albonico, and Mayur Shah (OPHT Investor Group) to serve as lead plaintiff(s); and -- a Motiom to Consolidate Cases 1:17-cv-00210-; 1:17-cv- 01758; and a Motion to Appoint Sheet Metal Workers' Pension Plan of Southern California, Arizona and Nevada to serve as lead plaintiff(s) and their Motion to Appoint Counsel. The Company said, "A purported class action lawsuit has been filed against us and certain of our current and former executive officers in the United States District Court for the Southern District of New York, captioned Frank Micholle et al. v. Ophthotech Corporation, et al., No. 1:17-cv-00210, filed on January 11, 2017. The complaint purports to be brought on behalf of shareholders who purchased our common stock between May 11, 2015 and December 12, 2016. The complaint generally alleges that we and certain of our officers violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making allegedly false and/or misleading statements concerning the prospects of our Phase 3 trials for Fovista in combination with anti-VEGF drugs for the treatment of wet AMD. The complaint seeks equitable and/or injunctive relief, unspecified damages, attorneys' fees, and other costs." "We deny any allegations of wrongdoing and intend to vigorously defend against this lawsuit. We are unable, however, to predict the outcome of this matter at this time. Moreover, any conclusion of these matters in a manner adverse to us and for which we incur substantial costs or damages not covered by our directors' and officers' liability insurance would have a material adverse effect on our financial condition and business. In addition, the litigation could adversely impact our reputation and divert management's attention and resources from other priorities, including the execution of business plans and strategies that are important to our ability to grow our business, any of which could have a material adverse effect on our business." Ophthotech is a biopharmaceutical company specializing in the development of novel therapeutics to treat ophthalmic diseases, with a focus on diseases of the back of the eye. PARTNER COMMS: Customers' Suit Recognized as Class Action --------------------------------------------------------- Partner Communications Company Ltd. ("Partner" or the "Company"), an Israeli communications operator, on April 9 disclosed that the Company received a lawsuit and a motion for the recognition of this lawsuit as a class action, filed against Partner in the Haifa District Court on April 2, 2017. The claim alleges that Partner enrolls customers to its "internet and fixed-line communications" service (the "Service") and charges them for the Service without their having ordered it and with respect to some of them, charges them without their having used the Service. In addition, it is claimed that customers that contacted Partner in writing, claiming that they were overcharged and were afterwards credited by Partner, did not receive a written response to their letters so that they were unable to know whether the credit is partial or full. If the claim filed against Partner is recognized as a class action, the total amount claimed against Partner is estimated by the plaintiffs to be approximately NIS 60 million. Partner is reviewing and assessing the lawsuit and is unable at this preliminary stage, to evaluate, with any degree of certainty, the probability of success of the lawsuit or the range of potential exposure, if any. PATHPOINT: "Gonzalez" Seeks Overtime, Missed Break Premiums ----------------------------------------------------------- Cindy Gonzales as an individual and on behalf of all others similarly situated, Plaintiff, v. Pathpoint, a California Corporation and Does 1 through 100, Defendants, Case No. BC657147 (Cal. Super., April 10, 2017), seeks minimum wages, liquidated damages and penalties, compensatory, consequential, general and special damages, statutory penalties, prejudgment interest on all due and unpaid wages, attorneys' fees and costs and such other and further relief under the California Labor Code. Defendants operate various programs and centers throughout Los Angeles County and numerous other counties in California, serving clients suffering from developmental disabilities. Plaintiff is employed by Defendants as a Direct Support Professional. Gonzales claims to have worked through meal periods, paid below minimum wage and denied wage statements. [BN] The Plaintiff is represented by: Paul K. Haines, Esq. Tuvia Korobkin, Esq. Sean M. Blakely, Esq. HAINES LAW GROUP, APC 2274 East Maple Ave. El Segundo, CA 90245 Tel: (424) 292-2350 Fax: (424) 292-2355 Email: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com sblakely@haineslawgroup.com PEABODY ENERGY: Missouri Court Dismisses ERISA Suit --------------------------------------------------- District Judge Audrey G. Fleissig of the United States District Court for the Eastern District of Missouri granted motion to dismiss the case captioned, LORI J. LYNN and JAVIER GONZALEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. PEABODY ENERGY CORPORATION, et al., Defendants, Case No. 4:15CV00916 AGF (E.D. Mo.). The putative class action is brought under the Employee Retirement Income Security Act of 1974, (ERISA), claiming breach of fiduciary duties by Defendants, the fiduciaries of three ERISA-governed Employee Stock Option Plans (ESOPs) made available to employees of Peabody Energy Corporation (Peabody) as retirement investment options. Plaintiffs initiated the action on June 11, 2015, on behalf of three Peabody ESOP Plans and their participants and beneficiaries. Named as Defendants in Plaintiffs' original complaint were three Peabody-related corporate entities, and various entities and individuals who allegedly had responsibilities regarding the management and investment of the Plans' assets. Plaintiffs asserted that all Defendants were ERISA fiduciaries who breached their fiduciary duties by continuing to offer Peabody Stock as an investment option for the Plans from December 14, 2012, onward (the Class Period) when it was imprudent to do so; maintaining the Plans' existing significant investment in Peabody Stock when it was no longer a prudent investment for the Plans; failing to avoid conflicts of interest; and failing adequately to monitor other persons to whom management of the Plans was delegated. The imprudence alleged was based on the collapse of coal prices during the Class Period and indications that Peabody was headed to bankruptcy. The second amended -- and operative -- complaint was filed on March 11, 2016. The gravamen of Plaintiffs' claims continues to be that Defendants breached their duties as ERISA fiduciaries by retaining Peabody stock as a retirement investment option in the Plans from December 14, 2012, onward. As a remedy, Plaintiffs seek monetary damages that would restore the values of the Plans' assets to what they would have been if the Plans had been properly administered. Defendants file a motion to dismiss the action for failure to state a claim. In a Memorandum and Order dated March 30, 2017 available at https://is.gd/hBuVlZ from Leagle.com, Judge Fleissig held that Plaintiffs failed to allege facts to support a claim that Defendants here breached their fiduciary duties by not monitoring the ESOP investments. Lori J Lynn, et al. are represented by Don R. Lolli, Esq. -- dlolli@dysarttaylor.com -- DYSART AND TAYLOR -- Donna Siegel Moffa, Esq. -- dmoffa@ktmc.com -- Edward W. Ciolko, Esq. -- eciolko@ktmc.com -- Julie E. Siebert-Johnson, Esq. -- jsjohnson@ktmc.com -- Mark K. Gyandoh, Esq. -- mkgyandoh@ktmc.com -- and -- James A. Maro, Jr., Esq. -- jamaro@ktmc.com -- KESSLER AND TOPAZ Gregory H. Boyce, et al. are represented by Darren A. Shuler, Esq. -- dshuler@kslaw.com -- Martha B. Daniels, Esq. -- mdaniels@kslaw.com -- and -- David Tetrick, Jr., Esq. -- dtetrick@kslaw.com -- KING AND SPALDING, LLP -- James F. Bennett, Esq. -- jbennett@dowdbennett.com -- and -- Sheena R. Hamilton, Esq. -- shamilton@dowdbennett.com -- DOWD BENNETT, LLP PENNSYLVANIA: Admin Added as Defendants in Water Crisis Suit ------------------------------------------------------------ Ben Schmtt at Trib Live reports two former Butler Area School District administrators have been added to a federal lawsuit in connection with the lead water crisis that forced the closure of Summit Elementary School. On April 7, plaintiff's lawyers added the district's maintenance director Glenn Terwilliger and assistant superintendent Mary Wolf as defendants. Former superintendent Dale Lumley was already a defendant in the original lawsuit filed in early February. All three administrators resigned in February in the midst of the scandal. The school district announced in a Jan. 20 letter to parents that students and staff at Summit Elementary School had been told not to drink the water from a well on the property because it was contaminated with lead. But the possible cover-up of the lead problems might date back to August. The lawsuit against the school district contends that Lumley and administrators concealed information for months that Summit Elementary School's water supply contained dangerous amounts of lead. About 250 students attend the school. Further testing found E. coli bacteria in the well that supplies the school, prompting the building to be closed indefinitely. Students at Summit are attending classes in the shuttered Broad Street School until the water issues are resolved. Jennifer Tait sued the district and Lumley after her daughter, Jillian, who attended Summit, tested positive for lead exposure. The case filed by attorneys Brendan Lupetin and Douglas Olcott seeks class-action status, which would let families of other students exposed to lead in the water join the lawsuit. The lawsuit seeks unspecified monetary damages and an order for the district to pay for future periodic lead testing for Summit students. Their lack of action created "a school full of poisonous drinking water," the lawsuit contends. "By conspiring together each one of the defendant co-conspirators is jointly and severally liable for any and all harm resulting to the class members," the attorneys wrote in the amended lawsuit. The Pennsylvania State Police and Butler County District Attorney's office are investigating whether criminal charges against administrators are warranted. Their lack of action created "a school full of poisonous drinking water," the lawsuit contends. PHILADELPHIA, PA: Loses Bid to Dismiss Civil Forfeiture Suit ------------------------------------------------------------ District Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Philadelphia denied FJD Defendants' motion to dismiss and the City Defendants' motion to dismiss the case captioned, CHRISTOS SOUROVELIS, et al., Plaintiffs, v. CITY OF PHILADELPHIA, et al., Defendants, Case No. 14-4687 (E.D. Pa.). Plaintiffs filed the putative class action on August 11, 2014, challenging Philadelphia's civil forfeiture policies and practices. Plaintiffs originally filed six claims under 42 U.S.C. Section 1983 against the City of Philadelphia, the Mayor, and the Police Commissioner (City Defendants); and the Philadelphia District Attorney and D.A.'s Office (D.A. Defendants). Plaintiffs Sourovelis, Welch, and Hernandez are the owners of real property against which the D.A. Defendants commenced, under the CSFA, forfeitures that were pending in the Court of Common Pleas of Philadelphia County at the time the First Amended Complaint was filed. After all of Plaintiffs' claims survived a motion to dismiss and the parties settled Counts One and Two, Plaintiffs filed a Second Amended Complaint, adding four state court administrators as defendants and adding a seventh claim. Plaintiffs' Second Amended Complaint contains allegations relating to three sets of procedures: (1) the civil forfeiture procedures that existed at the time they filed this action, which Plaintiffs allege were in place from approximately January 2, 2007, through October 19, 2015 (Prior Procedures); (2) the civil forfeiture procedures in place from October 19, 2015, through July 25, 2016, pursuant to interim measures adopted by Defendants in response to the instant lawsuit; and (3) the current civil forfeiture procedures, which the First Judicial District adopted on July 25, 2016 (Current Procedures). In response to the Second Amended Complaint, the City Defendants filed a motion to dismiss Counts Four and Six of the Second Amended Complaint. The FJD Defendants move to dismiss all four claims against them pursuant to Rules 12(b)(1) and 12(b)(6) and Rule 12(b)(1). The City Defendants move to dismiss Counts Four and Six of the Second Amended Complaint on the basis that (1) Plaintiffs have not plausibly alleged that the City's policies or customs caused the conduct at issue in Counts Four and Six; and (2) Plaintiffs have failed to alleged conduct by a City policymaker in connection with those two claims. In a Memorandum dated March 30, 2017 available at https://is.gd/wfj5YV from Leagle.com, Judge Robreno found that the Plaintiffs have standing with respect to all of their claims against the FJD Defendants. As to the City Defendants' motion, the court denied dismissal because Rule 12(h)(6) does not permit a party to file duplicative, successive motions to dismiss as the City Defendants have done. Doila Welch, et al. are represented by David Rudovsky, Esq. -- drudovsky@krlawphila.com -- KAIRYS RUDOVSKY MESSING & FEINBERG LLP -- and -- Darpana M. Sheth, Esq. Dan Alban, Esq. Milad Emam, Esq. Robert P. Frommer, Esq. INSTITUTE FOR JUSTICE 901 N. Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703)682-9320 City of Philadelphia, et al. are represented by: Michael R. Miller, Esq. CITY OF PHILADELPHIA LAW DEPT 1515 Arch St, Philadelphia, PA 19102 Tel: (215)686-1776 Philadelphia District Attorney's Office, et al. are represented by: Bryan C. Hughes, Esq. Elizabeth J. Rubin, Esq. Branden James Albaugh, Esq. Douglas Weck, Esq. Michael R. Miller, Eq. PHILADELPHIA DISTRICT ATTORNEY'S OFFICE 3 S Penn Square, Philadelphia, PA 19107 Tel: (215)686-8000 PLAINS ALL AMERICAN: Court Tosses Exchange, Securities Act Claims ----------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, wrote that on March 29, 2017, Chief District Judge Lee Rosenthal of the United States District Court for the Southern District of Texas, Houston Division dismissed a putative class action against Plains All American Pipeline, a major national oil and gas pipeline operator, and its holding companies (collectively, "Plains Defendants"), as well as individual officer and director defendants of Plains All American Pipeline, L.P. (collectively, "Individual Defendants"), and financial institutions which acted as underwriters in the securities offerings at issue (collectively, "Underwriter Defendants"). In re Plains All American Pipeline, L.P. Sec. Litig., Case No. H:15-2404 (S.D.T.X. Mar. 29, 2017). Plaintiffs, individuals and institutional investors who purchased equity and debt instruments issued by entities affiliated with Plains All American Pipeline in seven different public offerings, brought claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 thereunder, and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the "Securities Act"). The claims were brought after a May 2015 oil spill allegedly caused by a ruptured Plains pipeline that resulted in approximately 101,000 gallons of oil spilling into the Pacific Ocean. Plaintiffs alleged that, prior to and after the spill, the company falsely claimed to have a comprehensive, effective environmental and regulatory compliance program to prevent oil spills and, if such spills occurred, to quickly remediate the effects. The Court dismissed the Exchange Act claims, holding that the majority of the statements at issue were not "actionably misleading," and that plaintiffs failed to allege facts giving rise to a strong inference of scienter. The Court also dismissed the Securities Act claims for lack of subject-matter jurisdiction as to all offerings except one, and dismissed the remaining Securities Act claims on the basis that they sounded in fraud and were subject to the same particularized pleading requirement as the Exchange Act allegations, and therefore were not actionably misleading for the same reasons. Notably, in dismissing plaintiffs' Securities Act claims, the Court addressed Underwriter Defendants' argument that claims for certain offerings should be dismissed for lack of subject-matter jurisdiction because plaintiffs lacked standing to assert claims based on alleged misrepresentations that occurred in the offerings for securities they did not purchase. The Court declined to follow the Second Circuit Court of Appeals' decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012), a case that denied a motion to dismiss an action brought by a shareholder who purchased securities in some, but not all, of a series of offerings. The Court disagreed with NECA on the ground that it was at odds with the prior rulings from the Supreme Court in Gratz v. Bollinger, 539 U.S. 244 (2003), Blum v. Yaretsky, 457 U.S. 991 (1982), and Lewis v. Casey, 518 U.S. 343 (1996). The Court noted that even if it did follow NECA, plaintiffs lacked standing because plaintiffs did not allege a sufficient identity of interests between the representative and the absent putative class members. In considering the remaining claims, the Court divided the statements at issue into four topic categories: (1) integrity management, corrosion control of pipelines, and leak detection; (2) legal compliance; (3) spill-response capabilities; and (4) the size and scope of the spill. The Court held that plaintiffs' allegations as to each category of alleged misstatements failed to plead a claim. The Court found that many of the statements were inactionable for various different reasons, including that: plaintiffs did not allege that certain statements were false or did not allege facts that rendered the statements false or misleading; many allegedly false statements were vague and general; and some statements were examples of corporate cheerleading, or truisms, which could not be the basis of a securities-fraud claim. The Court also found that allegations as to certain statements of opinion did not plead a claim under Omnicare. Regarding plaintiffs' allegations as to statements made in the underwriting agreements, the Court declined to hold that such statements could not form the basis of an Exchange Act claim as a matter of law, but also found that plaintiffs had not made particularized allegations of falsity as to such statements. Although the Court found that a handful of other alleged misstatements -- such as a statement that the company performed scheduled maintenance on all of the pipelines and made repairs and replacements when necessary -- potentially could be actionably misleading and material, the Court held that the allegations regarding these misstatements failed to plead scienter. For the statements by the company's safety and security director who had been designated to speak on the company's behalf, scienter was not adequately pled because the complaint contained "no allegations about what [he] knew and when he knew it." Further, for statements on the company's website that it performed regular maintenance, plaintiffs neither alleged that the statement was made or authorized by an officer with the requisite scienter, nor was it so "important and dramatic" that it must have been approved by corporate officials. The Court also found that plaintiffs' more general allegations of scienter -- including group -- pleading allegations and allegations regarding defendants' financial incentives -- were insufficient. The Court did note, however, that defendants' loss-causation arguments did not provide a separate sufficient basis to dismiss the case at that time. Concerning the remaining Securities Act claims, the Court found that those claims, too, sounded in fraud and were subject to the same particularized pleading standard as the Exchange Act and Rule 10b-5 claims, and were inadequately pleaded for the same reasons. As a result, the Court dismissed the complaint in its entirety, without prejudice and with leave to amend. PLAINS ALL-AMERICAN: November Trial Set in Oil Spill Class Action ----------------------------------------------------------------- Giana Magnoli, writing for Noozhawk, reports that the criminal case against Plains All-American Pipeline regarding the 2015 Refugio Oil Spill will next be in court in November for a trial call date, according to the Santa Barbara County District Attorney's Office. A county Grand Jury indicted the company on 46 criminal counts one year after the May 19, 2015, spill, in which a 24-inch Plains crude oil pipeline ruptured and spilled 123,228 gallons onto the coastline and into the ocean near Refugio State Beach on the Gaviota Coast. Superior Court proceedings thus far have included closed hearings regarding Grand Jury testimony, and a motion by Plains attorneys to move the trial out of Santa Barbara County, which was denied. Some motions are still awaiting rulings and the possible trial schedule will likely be looked at again at the Nov. 2 hearing. On a separate track, a class-action lawsuit against Plains has moved forward with certification for the subclass of fisher and fish-industry people, which includes those affected by the fishery closures during the oil spill clean-up. Lead plaintiffs include companies and individuals who fish for sea cucumbers, shrimp, halibut, rock crab, black cod, squid and California spiny lobster, as well as those who purchase seafood along the Central Coast for processing or retail sale. Attorneys for plaintiffs in the case, including Santa Barbara- based Cappello & Noel, are working to get the other three subgroups class certified by a federal judge, including oceanfront property owners, the business tourism industry, and the oil industry. The District Court judge consolidated the class-action suits into one case. The timeline of the civil class-action suit is not impeded or helped by the progress of the criminal case, said Leila Noel of Cappello & Noel. Ms. Noel and Barry Cappello are among the lead counsel on the class-action suit. Noel said the attorneys hope and expect the other plaintiff subclasses will be certified as well, after a new motion is submitted and another hearing is held. Cappello & Noel specifically is working with several experts for the plaintiffs, including one who is doing ocean-flow modeling of where the spilled oil went, and a real property expert looking at affected land owners, she said. U.S. District Judge Philip Gutierrez's ruling "certifies the following class to pursue this class action: Persons or entities who owned or worked on a vessel that landed seafood within the California Department of Fish & Wildlife fishing blocks 651 to 657, 664 to 671, 681 to 683, as well as persons or entities who owned or worked on a vessel that landed ground fish, including but not limited to sablefish, halibut and rockfish, in fishing blocks 631 to 633, 637 to 639, 643 to 645, 658 to 659, and 684 to 690, between May 19, 2010 and May 19, 2015 and were in operation as of May 19, 2015, as well as those persons and businesses who purchased and re-sold commercial seafood so landed, at the retail or wholesale level, that were in operation as of May 19, 2015." The court also appointed lead counsel for fisheries plaintiffs in this case, including Robert J. Nelson of the firm Lieff, Cabraser, Heimann & Bernstein, LLP; Lynn Sarko -- lsarko@kellerrohrback.com -- and Juli Farris -- jfarris@kellerrohrback.com -- of Keller Rohrback L.L.P.; A. Barry Cappello of the firm Cappello & Noel; and William M. Audet of Audet & Partners. PLURALSIGHT: Court Dismisses Suit Over Auto-Renewal Program ----------------------------------------------------------- Corinne Lincoln-Pinhiero at Legal Newsline reports a Sacramento man sued an online IT training company under California's Automatic Purchase Renewals Statute (CAPRS) and the Unfair Competition Law (UCL), but the case was dismissed for misinterpretation of the statute and failure to establish a legitimate right of action. The U.S. District Court for the Eastern District of California issued its order Feb. 17. Kyle Johnson sued Pluralsight, an online video training company for IT professionals and software developers, under the Auto- Renewal Law (ARL) and UCL, alleging he subscribed to a free trial of the videos and Pluralsight didn't notify him of the auto- renewal program. "The ruling wasn't surprising," Perrie Weiner, an attorney at DLA Piper, told Legal Newsline. "When you read the (CAPRS) statute and the legislative history it's pretty clear that to bring a claim relating to the ARL, you have to do it under the UCL or the false advertising law, and it has to be a legitimate claim." The ARL has a series of requirements state businesses must adhere to if they are to provide continuous service programs to consumers. CAPRS allows an individual to sue for an ARL-related claim under other statutes such as the UCL or the false advertising law. Because of this, the Johnson claim was dismissed with prejudice. In a DLA Piper analysis Weiner co-wrote with Edward Totino and Kirby Hsu, they claimed most of the current cases haven't been correctly applied, including Johnson. "Think of a private right of action like this," Wiener said. "When a legislature drafts laws, they intend for normal civil litigants and plaintiffs to be able to bring a claim under it if the terms of that statute have already been violated. That's why you always have to look at the legislative intent of the law before you bring a claim to see if it is intended for a consumer to be able to state a private right of action under that law. CAPRS is a very harsh and draconian statute so you can see why they want it to be applied in truly appropriate facts and circumstances." Additionally, all ARL-related claims must meet two standing requirements: proof of injury-in-fact and proof of causation, which is key. A plaintiff's allegations must show they suffered both injury and loss of money or property. "The statute is evolving," Weiner said. "It's meant more for attorney generals and the district attorney to be able to pursue claims. So, what the courts are doing is saying if you can actually articulate a claim, meaning if you can prove these two requirements then maybe they'll let you bring this as a class action." However, for a claim to be truly successful, part of the issue is whether you can actually get the claim class-certified because the true value in these cases is if they're brought as a class action, Weiner said. "An individual plaintiff's claim isn't worth all that much," he said. "If you can get it class certified, you're talking about rendering anything a company gave as a product (now as) a gift -- and thus not being able to charge for it. Lawyers typically appeal these (individual) decisions. But (Johnson) really didn't appear to be injured. If we can find proper plaintiffs may be this might be a different story. But most of these claims are imaginary plots to game the statutes." U.S. District Court for the Eastern District of California Court Case number 2:16-cv-1148 PNC FINANCIAL: Appeal in Overdraft Litigation Remains Pending ------------------------------------------------------------- The PNC Financial Services Group, Inc.'s appeal in the Overdraft Litigation remains pending, PNC said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. Beginning in October 2009, PNC Bank, National City Bank and RBC Bank (USA) have been named in lawsuits brought as class actions relating to the manner in which they charged overdraft fees on ATM and debit transactions to customers and related matters. All but two of these lawsuits, both pending against RBC Bank (USA), have been settled. The pending lawsuits naming RBC Bank (USA), along with similar lawsuits pending against other banks, have been consolidated for pre-trial proceedings in the U.S. District Court for the Southern District of Florida (the MDL Court) under the caption In re Checking Account Overdraft Litigation (MDL No. 2036, Case No. 1:09-MD-02036-JLK ). A consolidated amended complaint was filed in December 2010 that consolidated all of the claims in these MDL Court cases. The first case against RBC Bank (USA) pending in the MDL Court (Dasher v. RBC Bank (10-cv-22190-JLK)) was filed in July 2010 in the U.S. District Court for the Southern District of Florida. The other case against RBC Bank (USA) (Avery v. RBC Bank (Case No. 10-cv-329)) was originally filed in North Carolina state court in July 2010 and was removed to the U.S. District Court for the Eastern District of North Carolina before being transferred to the MDL Court. A consolidated amended complaint was filed in November 2014. These cases seek to certify multi-state classes of customers for the common law claims described below (covering all states in which RBC Bank (USA) had retail branch operations during the class periods), and subclasses of RBC Bank (USA) customers with accounts in North Carolina branches, with each subclass being asserted for purposes of claims under those states' consumer protection statutes. No class periods are stated in any of the complaints, other than for the applicable statutes of limitations, which vary by state and claim. The customer agreements with the plaintiffs in these two cases contain arbitration provisions. RBC Bank (USA)'s original motion in Dasher to compel arbitration under these provisions was denied by the MDL Court. This denial was appealed to the U.S. Court of Appeals for the Eleventh Circuit. While this appeal was pending, the U.S. Supreme Court issued its decision in AT&T Mobility v. Concepcion, following which the court of appeals vacated the MDL Court's denial of the arbitration motion and remanded to the MDL Court for further consideration in light of the Concepcion decision. RBC Bank (USA)'s motion to compel arbitration, now covering both Dasher and Avery, was denied in January 2013. PNC said, "We appealed the denial of the motion to the U.S. Court of Appeals for the Eleventh Circuit, which, in February 2014, affirmed the order of the district court denying arbitration. We filed a motion asking the court of appeals to reconsider its decision, which it denied in March 2014. In December 2014, we filed a motion to compel arbitration as to the claims of the plaintiff in Dasher based on an arbitration provision added to the PNC account agreement in 2013. In August 2015, the district court denied our motion. Later in August 2015, we appealed the denial of our arbitration motion to the court of appeals. The appeal is pending. "In December 2014, we filed a motion to dismiss the complaint. In February 2016, the district court denied our motion. "The consolidated amended complaint alleges that the banks engaged in unlawful practices in assessing overdraft fees arising from electronic point-of-sale and ATM debits. The principal practice challenged in these lawsuits is the banks' purportedly common policy of posting debit transactions on a daily basis from highest amount to lowest amount, thereby allegedly inflating the number of overdraft fees assessed. Other practices challenged include the failure to decline to honor debit card transactions where the account has insufficient funds to cover the transactions. "The plaintiffs assert claims for breach of contract and the covenant of good faith and fair dealing; unconscionability; conversion; unjust enrichment; and violation of the consumer protection statute of North Carolina. The plaintiffs seek, among other things, restitution of overdraft fees paid, unspecified actual and punitive damages (with actual damages, in some cases, trebled under state law), pre-judgment interest, attorneys' fees, and declaratory relief finding the overdraft policies to be unfair and unconscionable." PNC FINANCIAL: Interlocutory Appeal Sought in Reinsurance Action ---------------------------------------------------------------- The PNC Financial Services Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that in the Captive Mortgage Reinsurance Litigation, PNC has filed a petition to certify for interlocutory appeal to U.S. Court of Appeals for the Third Circuit. In December 2011, a lawsuit (White, et al. v. The PNC Financial Services Group, Inc., et al. (Civil Action No. 11-7928)) was filed against PNC (as successor in interest to National City Corporation and several of its subsidiaries) and several mortgage insurance companies in the U.S. District Court for the Eastern District of Pennsylvania. This lawsuit, which was brought as a class action, alleges that National City structured its program of reinsurance of private mortgage insurance in such a way as to avoid a true transfer of risk from the mortgage insurers to National City's captive reinsurer. The plaintiffs allege that the payments from the mortgage insurers to the captive reinsurer constitute kickbacks, referral payments, or unearned fee splits prohibited under the Real Estate Settlement Procedures Act (RESPA), as well as common law unjust enrichment. The plaintiffs claim, among other things, that from the beginning of 2004 until the end of 2010 National City's captive reinsurer collected from the mortgage insurance company defendants at least $219 million as its share of borrowers' private mortgage insurance premiums and that its share of paid claims during this period was approximately $12 million. The plaintiffs seek to certify a nationwide class of all persons who obtained residential mortgage loans originated, funded or originated through correspondent lending by National City or any of its subsidiaries or affiliates between January 1, 2004 and the present and, in connection with these mortgage loans, purchased private mortgage insurance and whose residential mortgage loans were included within National City's captive mortgage reinsurance arrangements. Plaintiffs seek, among other things, statutory damages under RESPA (which include treble damages), restitution of reinsurance premiums collected, disgorgement of profits, and attorneys' fees. In August 2012, the district court directed the plaintiffs to file an amended complaint, which the plaintiffs filed in September 2012. PNC said, "In November 2012, we filed a motion to dismiss the amended complaint. The court dismissed, without prejudice, the amended complaint in June 2013 on statute of limitations grounds. A second amended complaint, in response to the court's dismissal order, was filed in July 2013. We filed a motion to dismiss the second amended complaint, also in July 2013. In August 2014, the court denied the motion to dismiss. "We then filed an uncontested motion to stay all proceedings pending the outcome of another matter then on appeal before the U.S. Court of Appeals for the Third Circuit that involves overlapping issues. In September 2014, the district court granted the stay. In October 2014, the court of appeals decided that other matter, holding that the RESPA claims in that case were barred by the statute of limitations. We then filed a motion for reconsideration of the denial of our motion to dismiss in light of the court of appeals' decision. "In January 2015, the district court denied our motion. In March 2015, the parties stipulated to, and the court ordered, a stay of all proceedings pending the outcome of a new other matter currently on appeal before the U.S. Court of Appeals for the Third Circuit that also involves overlapping issues. In February 2016, the court of appeals in the other matter issued a decision favorable to our position. "In September 2016, the plaintiffs moved to lift the stay and for permission to file a Third Amended Class Action Complaint to add claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) and to assert that the RESPA claim is not barred by the statute of limitations under the "continuing violation theory" because every acceptance of a reinsurance premium is a new occurrence for these purposes. "In January 2017, the court denied the plaintiffs' motion to amend to add a RICO claim, but granted their motion permitting them to rely on the continuing violation theory to assert claims under RESPA. We have filed a petition to certify this issue for interlocutory appeal to U.S. Court of Appeals for the Third Circuit and have sought a stay in the district court pending an appeal." PNC FINANCIAL: Amended and Supplemental Complaint Filed ------------------------------------------------------- The PNC Financial Services Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that each of the counsel in the Interchange Litigation has filed a proposed amended and supplemental complaint on behalf of its respective proposed class. Beginning in June 2005, a series of antitrust lawsuits were filed against Visa, MasterCard, and several major financial institutions, including cases naming National City (since merged into PNC) and its subsidiary, National City Bank of Kentucky (since merged into National City Bank which in turn was merged into PNC Bank). The plaintiffs in these cases are merchants operating commercial businesses throughout the U.S., as well as trade associations. Some of these cases (including those naming National City entities) were brought as class actions on behalf of all persons or business entities that have accepted Visa(R) or MasterCard(R). The cases have been consolidated for pre-trial proceedings in the U.S. District Court for the Eastern District of New York under the caption In re Payment Card Interchange Fee and Merchant-Discount Antitrust Litigation (Master File No. 1:05-md- 1720-JG-JO). In July 2012, the parties entered into a memorandum of understanding with the class plaintiffs and an agreement in principle with certain individual plaintiffs with respect to a settlement of these cases, under which the defendants agreed to pay approximately $6.6 billion collectively to the class and individual settling plaintiffs and agreed to changes in the terms applicable to their respective card networks (including an eight- month reduction in default credit interchange rates). The parties entered into a definitive agreement with respect to this settlement in October 2012. The court granted final approval of the settlement in December 2013. Several objectors appealed the order of approval to the U.S. Court of Appeals for the Second Circuit, which issued an order in June 2016, reversing approval of the settlement and remanding for further proceedings. In November 2016, the plaintiffs filed a petition for a writ of certiorari with the U.S. Supreme Court to challenge the court of appeal's decision, which is still pending. As a result of the reversal of the approval of the settlement, the class actions have resumed in the district court. In November 2016, the district court appointed separate interim class counsel for a proposed class seeking damages and a proposed class seeking equitable (injunctive) relief. In February 2017, each of these counsel filed a proposed amended and supplemental complaint on behalf of its respective proposed class. These complaints make similar allegations, including that the defendants conspired to monopolize and to fix the prices for general purpose card network services, that the restructuring of Visa and MasterCard, each of which included an initial public offering, violated the antitrust laws, and that the defendants otherwise imposed unreasonable restraints on trade, resulting in the payment of inflated interchange fees and other fees, which also violated the antitrust laws. In their complaints, collectively the plaintiffs seek, among other things, injunctive relief, unspecified damages (trebled under the antitrust laws) and attorneys' fees. PNC is named as a defendant in the complaint seeking damages but is not named as a defendant in the complaint that seeks equitable relief. PORTFOLIO RECOVERY: "Pollak" Suit Seeks Certification of Classes ---------------------------------------------------------------- In the lawsuit styled BRACHA POLLAK and DAVID BENELI, on behalf of themselves and all others similarly situated, the Plaintiffs, v. PORTFOLIO RECOVERY ASSOCIATES, LLC and JOHN DOES 1-25, the Defendant, Case No. 3:15-cv-04025-BRM-DEA (D.N.J.), the Plaintiffs move the Court for certification of classes: Class A: "all New Jersey consumers (1) who received a 'LL1' template collection letter from the Defendant (2) on an obligation owed or allegedly owed to U.S. Bank, (3) during the time period of June 9, 2014 to the present". Class B: "all New Jersey consumers (1) who received a 'LL1' template collection letter from the Defendant, (2) on an obligation owed or allegedly owed to Citibank N.A., (3) during the time period of March 9, 2015 to the present." The Fair Debt Collection Practices Act provides that a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. The statute prohibits debt collectors from, inter alia making threats to take any action that cannot legally be taken or that is not intended to be taken. Despite this clear statutory directive, Portfolio engaged in a collection practice, wherein it would mail an 'LL1' Collection Letter to its debtors. These LL1 Letters contained a 30-day response deadline, along with implicit threats of imminent litigation if no response was received was received before the expiration of this arbitrarily set deadline. The Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Hgjod0gc The Plaintiff is represented by: Ari H. Marcus, Esq. Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (347) 526 4093 Facsimile: (732) 298 6256 E-mail: yzelman@MarcusZelman.com PRINCETON INFORMATION: Settlement in "Escort" Has Prelim Approval ----------------------------------------------------------------- District Judge Vernon S. Broderick of the United States District Court for the Southern District of New York granted motions for preliminary approval of class settlement, conditional certification of proposed class, and appointment of class counsel and denied approval of the proposed notice of settlement in the case captioned, HOPE ESCORT, ET AL., Plaintiffs, v. PRINCETON INFORMATION LTD, ET AL., Defendants, Case No. 15-CV-4487 (VSB) (S.D.N.Y.). Plaintiffs Hope Escort and Anthony Barratt bring the action against Defendants Citigroup, Inc., Citibank, N.A., Citigroup Technology, Inc., Baha Industries Corp. d/b/a Open Systems Technologies, and Princeton Information Ltd. on behalf of themselves and a putative class of similarly situated employees of Defendants. Plaintiffs allege that Defendants failed to pay them overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq. (FLSA), and New York Labor Law Section 190 et seq. Plaintiffs and members of the settlement class are current and former employees of various third-party staffing vendors who performed work on behalf of an affiliate of Defendant Citigroup Inc. Plaintiffs and members of the settlement class worked as "Know Your Customer Analysts" between June 10, 2009 and the present. On December 11, the Court held a status conference at which the Court granted the parties' request for a 60 day stay of all proceedings to facilitate settlement negotiations. On January 4, 2016, the parties met for an in-person settlement conference in Philadelphia, Pennsylvania. On April 11, 2016, the parties reported that they had settled. Plaintiffs' unopposed motion for: (1) preliminary approval of a class settlement agreement; (2) conditional certification of the proposed class; (3) approval of the proposed notice of the settlement; and (4) appointment of class counsel. In a Memorandum and Opinion dated March 30, 2017 available at https://is.gd/Sjxy5A from Leagle.com, Judge Broderick concluded that (1) the settlement is the result of substantial investigative efforts, arm's length negotiations and that its terms are within the range of possible settlement approval; (2) the proposed Settlement Class satisfies Rule 23(b); and (3) Plaintiffs' counsel, Andrew R. Frisch of the law firm Morgan & Morgan, PA meets the requirements of Rule 23(g) as class counsel. A fairness hearing is set on July 7, 2017, at 11:00 a.m. Hope Escort is represented by: Carlos V. Leach, Esq. Charles R. Morgan, Esq. Andrew Ross Frisch, Esq. MORGAN & MORGAN, P.A. 850 3rd Ave Suite 402 Brooklyn, NY 11232 Tel:(212)564-1637 Princeton Information LTD, et al. are represented by Michael Jonathan Puma, Esq. -- michael.puma@morganlewis.com -- and -- Sam Scott Shaulson, Esq. -- sam.shaulson@morganlewis.com -- MORGAN, LEWIS &BOCKIUS LLP Open Systems Technologies, Inc. is represented by Andrew Herman, Esq. -- aherman@chjllp.com -- and -- Debra S. Morway, Esq. -- dmorway@chjllp.com -- and -- Michael A. Curley, Esq. -- mcurley@chjllp.com -- CURLEY & MULLEN LLP -- Michael Jonathan Puma, Esq. -- michael.puma@morganlewis.com -- MORGAN, LEWIS AND BOCKIUS LLP R.J. REYNOLDS: Fla. Top Court Rules Lawsuits Can Continue --------------------------------------------------------- Richard Craver at Greensboro reports the Florida Supreme Court ruled unanimously on April 6 that thousands of lawsuits can continue against R.J. Reynolds Tobacco Co. The decision appears to increase the odds that the U.S. Supreme Court may choose to address the legal disputes in the future. Reynolds spokesman Bryan Hatchell said on April 7 the company declines to comment on the ruling. The lawsuits sprang from a decision in 2006 by the Florida Supreme Court that decertified a USD145 billion class-action lawsuit initially filed by Howard Engle. That ruling limits former class members to filing individual lawsuits stating that cigarettes caused their respective illnesses. The Florida Supreme Court ruled against Reynolds' motion that the Engle cases are preempted by federal law set by Congress, which allows cigarettes to be advertised, marketed and sold at retail. The case involves a USD3.48 million jury award in 2013 to the estate of Phil Marotta. Marotta's lawyers claimed his lung cancer was caused by his addiction to cigarettes made and sold by Reynolds. The jury, based on liability claims, assigned 58 percent of the blame for Marotta's illness to Reynolds and 42 percent to Marotta. The justices ruled that Marotta's estate is eligible to pursue punitive damages and remanded the case to the initial trial court. In April 2015, a three-judge panel of the federal 11th Circuit Court of Appeals ruled that federal law preempts certain state product liability and negligence claims since Congress wanted to regulate, but not ban, cigarettes. The panel determined Engle plaintiffs must prove the cigarettes smoked by themselves or relatives were defective. However, in January 2016, a majority of the 11-member appeals court vacated that ruling. The Florida justices said "Reynolds contends that Congress, through decades of legislation, has established its intention to regulate cigarettes while foreclosing their removal from the market, and that any state law that conflicts with this objective is implicitly preempted. Reynolds argues that imposing tort liability for the sale of ordinary cigarettes amounts to a ban, and therefore such claims are preempted." However, the justices said Congress "only intended to preempt state laws to the extent that they relate to labeling or advertising of tobacco product." "We hold that permitting Engle progeny plaintiffs to bring state law strict liability and negligence claims against Engle defendants does not conflict with these objectives.. . . There is no indication that Congress had a 'clear and manifest purpose' to insulate the tobacco industry from state tort liability." The justices determined Engle claims are rooted in accusations that tobacco companies manipulated nicotine levels to attract and then addict smokers. The case is R.J. REYNOLDS TOBACCO COMPANY, Petitioner, v. PHIL J. MAROTTA, etc., Respondent, No. SC16-218 (Fla.). RAILWORKS TRACK: "Gonzalez" Suit Seeks Overtime Pay ---------------------------------------------------- Pablo Gonzalez and Jerry A. Snow, Jr., individually and on behalf of all others similarly situated Plaintiffs, v. Railworks Track Services, Inc., Defendant, Case No. 4:17-cv-00733, (S.D. Ohio, April 7, 2017), seeks unpaid compensation, including overtime wages, liquidated damages, costs and disbursements, and reasonable allowances for fees of counsel and experts and reimbursement of expenses, relief or any other recovery pursuant to the Fair Labor Standards Act, Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. Railworks is a private corporation specializing in railroad track construction and maintenance and maintenance service where Snow worked as an operator, laborer and foreman. [BN] Plaintiff is represented by: Trent R. Taylor, Esq. Robert E. DeRose, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Fax: (614) 744-2300 Email: ttaylor@barkanmeizlish.com bderose@barkanmeizlish.com RESOURCE CORPORATION: "Hernandez" Suit Seeks Overtime Pay --------------------------------------------------------- Myriam Restrepo Hernandez, Individually and on behalf of all others similarly situated, Plaintiff, v. Resource Corporation of America and Recovery of Texas, LLC, Resource Corporation Of America, Defendant, Case No. 5:17-cv-00284, (W.D. Tex., April 6, 2017), seeks unpaid back wages, liquidated damages, taxable costs and allowable expenses of this action, attorneys' fees, pre- judgment and post-judgment interest, declaratory and injunctive relief under the Fair Labor Standards Act of 1938. Resource Corporation of America contracts with hospitals throughout the United States to provide billing services on their behalf. Plaintiff worked for the defendants as a Social Security Disability and Medicaid Specialist Leads and Patient Support Representative from January 7, 2009 until June 30, 2016. [BN] Plaintiff is represented by: Edmond S. Moreland, Jr., Esq. MORELAND LAW FIRM, P.C. 13590 Ranch Road 12 Wimberley, TX 78676 Telephone: (512) 782-0567 Telecopier: (512) 782-0605 Website: www.morelandlaw.com Email: edmond@morelandlaw.com - and - John Judge, Esq. JUDGE COSTRA AND PUTMAN P.P. The Commissioners House at Heritage Square 2901 Bee Cave Road, Box L Austin, TX 78746 Telephone: (512) 328-9099 Facsimile: (512) 328-4132 Email: jjudge@jkplaw.com REVANCE THERAPEUTICS: May 19 Settlement Fairness Hearing -------------------------------------------------------- A Court has scheduled a Settlement Fairness Hearing on May 19, 2017, at 9:00 a.m. Pacific Time at the Court, located at 191 North First Street, San Jose, CA 95113, to, among other things, make a final determination of the Settlement of a class action lawsuit against Revance Therapeutics, Inc., the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. As of May 2015, the Company became subject to a securities class action complaint, captioned City of Warren Police and Fire Retirement System v. Revance Therapeutics Inc., et al, CIV 533635, which was filed on behalf of City of Warren Police and Fire Retirement System in the Superior Court for San Mateo County, California against the Company and certain of its directors and executive officers at the time of the June 2014 follow-on public offering, and the investment banking firms that acted as the underwriters in the follow-on public offering. In general, the complaint alleges that the defendants misrepresented the then- present status of the RT001 topical clinical program and made false and misleading statements regarding the formulation, manufacturing and efficacy of its drug candidate, RT001 topical, for the treatment of crow's feet at the time of the follow-on public offering. The complaint has been brought as a purported class action on behalf of those who purchased common stock in the follow-on public offering and seeks unspecified monetary damages and other relief. On October 5, 2015, the Company made a motion for transfer of the action to the Superior Court for the County of Santa Clara on the basis that venue was improper in San Mateo County. Plaintiff's counsel did not oppose the transfer motion, and the action was received by Santa Clara Superior Court on November 6, 2015 and assigned the following case number, 15-CV- 287794. On November 23, 2015, the Court issued an Order deeming the case complex and staying all discovery and motions pending further order. Before proceeding with further Court action, including the filing of its motions to dismiss under California rules, the Company agreed with Plaintiff to conduct a mediation. The parties did not reach agreement during the mediation. However, following the mediation, the parties continued discussions and, on October 31, 2016, executed a stipulation of settlement (the "Stipulation"). Under the Stipulation, in exchange for a release of all claims by the plaintiff class, the Company has agreed to settle the litigation for $6.4 million in cash, of which the Company expects $5.9 million to be covered by its insurance policies. The Stipulation maintains that the defendants, including the Company, deny all wrongdoing and liability related to the litigation. Plaintiff's counsel filed a motion for preliminary approval of the settlement on November 11, 2016 and a hearing regarding preliminary approval was set for January 6, 2017. On January 6, 2017, the Court issued an order (the "Order") preliminarily approving the settlement proposed in the Stipulation by and among the plaintiff class and all named defendants in the Action, including the Company (the "Settlement"), and directing that notice of the proposed settlement be given to all members of the plaintiff class (the "Class Members"). The Court scheduled a hearing ("Settlement Fairness Hearing") on May 19, 2017, at 9:00 a.m. Pacific Time at the Court, located at 191 North First Street, San Jose, CA 95113, to, among other things, make a final determination whether the Settlement is fair, reasonable and adequate and should be approved by the Court. The Order provides that Class Members may opt out of the Settlement and that they may object to the Settlement in advance of and/or at the Settlement Fairness Hearing. The Stipulation and the Settlement remain subject to final approval by the Court and certain other conditions. It is anticipated that the Settlement, if approved, would not have a material impact on the Company's business. This litigation, including the Settlement, remains subject to uncertainty, and the actual defense and disposition costs may depend upon many unknown factors. Therefore, there can be no assurance that this litigation will not have a material adverse effect on our business, results of operations, financial position or cash flows. Revance Therapeutics, Inc. is a clinical-stage biotechnology company focused on the development, manufacturing, and commercialization of novel botulinum toxin products for multiple aesthetic and therapeutic indications. RHODE ISLAND: ACLU's Class Action Over Sex Offenders Bill Ongoing ----------------------------------------------------------------- Amanda Milkovits, writing for Providence Journal, reports that for the last few years, Harrington Hall, the largest homeless shelter in Rhode Island, has become by default a last stop for dozens of sex offenders -- to the dismay of local residents and politicians. Now, House Speaker Nicholas Mattiello said he's supporting a bill to limit the number of sex offenders at most residential facilities, like Harrington Hall, in order to force Gov. Gina Raimondo's administration to do something about the problem. "Right now, we have a default situation that's creating a danger for Cranston and Rhode Island," Mr. Mattiello said by phone on April 7. Rep. Robert Lancia, R-Cranston, would limit the number of sex offenders to no more than 10 percent of residents at facilities receiving state funding. Hospitals, nursing homes, long-term care and psychiatric facilities would be exempt. This is aimed at Harrington Hall, where neighboring residents have complained about an increase of offenders. "We cannot be the dumping ground for sex offenders," Mr. Lancia said on April 9, during one of the three public forums he's hosting on the issue. Mr. Mattiello, whose district includes Harrington Hall, said he will bring Mr. Lancia's bill to the House floor after the legislative break. (Another bill by Mr. Lancia that would require homeless shelters to report sex offenders to local police within an hour, is still under consideration.) If the 10-percent bill passes, the administration will have until Jan. 1 to come up with a solution. After that, facilities with too many sex offenders will have to send them elsewhere. But where? Mr. Mattiello said that's up to the state administration and Crossroads Rhode Island, which runs Harrington Hall, to figure out. "If people are placed intelligently and thoughtfully, there's not the danger that's created at Harrington Hall," Mr. Mattiello said by phone on April 9. While both Mr. Mattiello and Lancia say it will require more resources, there's no estimate of cost. Mr. Lancia said he wants to collaborate with agencies working with the homeless. Ideally, he'd like to see a facility with directed programs -- in an industrial park somewhere else. Trouble is, there aren't many places that will accept sex offenders. Federal law already bans them from living in federally subsidized housing. Rhode Island passed a law in 2008 banning them from living within 300 feet of a school. Then, in 2015, after Warwick state Rep. Joseph McNamara said "parents were panicking" in his district, the General Assembly expanded the ban to 1,000 feet for Level III offenders, deemed most likely to re-offend. That made nearly 64 percent of Providence off-limits for housing and forced dozens of sex offenders to move. The Rhode Island affiliate of the American Civil Liberties Union filed a class- action lawsuit in U.S. District Court in October 2015 to stop the law. Enforcement is delayed as the case winds through federal court. However, it made Harrington Hall the only men's shelter in Rhode Island that could take homeless high-risk sex offenders. The average rose from five offenders to several dozen staying there, and locals complained. Mr. Lancia said he wants to force the state government to deal with the issue. As he told a small crowd of residents and local politicians on April 9, "We're not playing anymore." RINGCENTRAL INC: Bid to Dismiss Supply Pro Sorbents' Suit Pending ----------------------------------------------------------------- RingCentral, Inc.'s motion to dismiss an amended complaint by Supply Pro Sorbents, LLC remains pending, RingCentral said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On February 7, 2017, the Clerk of Court entered a Notice vacating hearing on the Defendant's motion to dismiss. The Company said, "On April 21, 2016, Supply Pro Sorbents, LLC (SPS) filed a putative class action against us in the United States District Court for the Northern District of California (Court), alleging common law conversion and violations of the federal Telephone Consumer Protection Act (TCPA) arising from fax cover sheets used by our customers when sending facsimile transmissions over our system (Lawsuit). SPS seeks statutory damages, costs, attorneys' fees and an injunction in connection with its TCPA claim, and unspecified damages and punitive damages in connection with its conversion claim." "On July 6, 2016, we filed a Petition for Expedited Declaratory Ruling before the Federal Communications Commission (FCC), requesting that the FCC issue a ruling clarifying certain portions of its regulations promulgated under TCPA at issue in the Lawsuit (Petition). The Petition remains pending. "On July 8, 2016, we filed a motion to dismiss the Lawsuit in its entirety, along with a collateral motion to dismiss or stay the Lawsuit pending a ruling by the FCC on our Petition. On October 7, 2016, the Court granted our motion to dismiss and gave SPS 20 days to amend its complaint. The Court concurrently dismissed our motion to dismiss or stay as moot. "SPS filed its amended complaint on October 27, 2016, alleging essentially the same theories and claims. On November 21, 2016, we filed a motion to dismiss the amended complaint, along with a renewed motion to dismiss or stay the case pending resolution of the FCC Petition. The motions to dismiss and to stay the Lawsuit are fully briefed and under submission to the Court. Discovery has not yet commenced. "We intend to vigorously defend ourselves in the Lawsuit. Litigation is inherently uncertain, however, and it is too early in this proceeding to predict the outcome of this Lawsuit. Based on the information known by us as of the date of this filing and the rules and regulations applicable to the preparation of our consolidated financial statements, it is not possible to provide an estimated amount of any such loss or range of loss that may occur." RingCentral is a provider of software-as-a-service, or SaaS, solutions for businesses to support modern communications for their increasingly mobile and distributed workforces. SAREPTA THERAPEUTICS: Oral Argument Held in "Corban" Suit --------------------------------------------------------- Sarepta Therapeutics, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that oral argument was scheduled for March 7, 2017, in the "Corban" class action lawsuit in Massachusetts. Purported class action complaints were filed against the Company and certain of its officers in the U.S. District Court for the District of Massachusetts on January 27, 2014 and January 29, 2014. The complaints were consolidated into a single action (Corban v. Sarepta, et. al., No. 14-cv-10201) by order of the court on June 23, 2014. Plaintiffs' consolidated amended complaint, filed on July 21, 2014, asserted violations of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Securities and Exchange Commission Rule 10b-5 against the Company, and Chris Garabedian, Sandy Mahatme, and Ed Kaye ("Individual Defendants," and collectively with the Company, the "Corban Defendants"), and violations of Section 20(a) of the Exchange Act against the Individual Defendants. Plaintiffs alleged that the Corban Defendants made material misrepresentations or omissions during the putative class period of July 24, 2013 through November 12, 2013, regarding a data set for a Phase 2b study of eteplirsen and the likelihood of the FDA accepting the Company's new drug application for eteplirsen for review based on that data set. Plaintiffs sought compensatory damages and fees. On August 18, 2014, the Corban Defendants filed a motion to dismiss, which the Court granted on March 31, 2015. Plaintiffs subsequently sought leave to file a second amended complaint, which the Corban Defendants opposed. On September 2, 2015, the Court denied Plaintiffs' motion for leave to amend as futile. Plaintiffs filed a notice of appeal on September 29, 2015, seeking review of the Court's March 31, 2015 order dismissing the case and the Court's September 2, 2015 order denying leave to amend. On January 27, 2016, Plaintiffs filed in the district court a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(2), arguing that the FDA Briefing Document published on or about January 15, 2016, was material and would have changed the Court's ruling. On February 26, 2016, the First Circuit stayed the appeal pending the district court's ruling on the 60(b)(2) motion. Defendants opposed the 60(b)(2) motion, and on April 21, 2016, the Court denied Plaintiffs' motion for relief from judgment. On May 19, 2016, Plaintiffs filed a motion to alter or amend the April 21, 2016 order pursuant to Federal Rule of Civil Procedure 59(e). On May 20, 2016, the Court denied Plaintiffs' motion, and Plaintiffs filed a notice of appeal of the Court's April 21, 2016 denial of their 60(b)(2) motion and May 20, 2016 denial of their 59(e) motion. On June 13, 2016, the First Circuit granted Plaintiffs' motion to consolidate the two appeals. Oral argument was scheduled for March 7, 2017. An estimate of the possible loss or range of loss cannot be made at this time. Sarepta is a commercial-stage biopharmaceutical company focused on the discovery and development of unique RNA-targeted therapeutics for the treatment of rare neuromuscular diseases. SAREPTA THERAPEUTICS: No Briefing Schedule Yet in "Kader" Suit -------------------------------------------------------------- Sarepta Therapeutics, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that a briefing schedule has not yet been set in the appeal related to the "Kader" class action lawsuit. A complaint was filed in the U.S. District Court for the District of Massachusetts on December 3, 2014 styled William Kader, Individually and on Behalf of All Others Similarly Situated v. Sarepta Therapeutics Inc., Christopher Garabedian, and Sandesh Mahatme (Kader v. Sarepta et.al 1:14-cv-14318). On March 20, 2015, Plaintiffs filed an amended complaint asserting violations of Section 10(b) of the Exchange Act and Securities and Exchange Commission Rule 10b-5 against the Company, and Chris Garabedian and Sandy Mahatme ("Individual Defendants," and collectively with the Company, the "Kader Defendants"), and violations of Section 20(a) of the Exchange Act against the Individual Defendants. Plaintiffs alleged that the Kader Defendants made material misrepresentations or omissions during the putative class period of April 21, 2014 through October 27, 2014, regarding the sufficiency of the Company's data for submission of an NDA for eteplirsen and the likelihood of the FDA accepting the NDA based on that data. Plaintiffs sought compensatory damages and fees. The Kader Defendants moved to dismiss the amended complaint on May 11, 2015. On April 5, 2016, following oral argument on March 29, 2016, the Court granted Defendants' motion to dismiss. On April 8, 2016, Lead Plaintiffs filed a motion for leave to file an amended complaint, which Defendants opposed. On January 6, 2017, the Court denied Plaintiffs' motion for leave to amend and dismissed the case. Plaintiffs filed a notice of appeal on February 3, 2017. A briefing schedule has not yet been set. An estimate of the possible loss or range of loss cannot be made at this time. Sarepta is a commercial-stage biopharmaceutical company focused on the discovery and development of unique RNA-targeted therapeutics for the treatment of rare neuromuscular diseases. SEQWATER: Court Orders Mediation in 2011 Floods Class Action ------------------------------------------------------------ Mark Solomons, writing for Brisbane Times, reports that the New South Wales Supreme Court has ordered the Queensland government and the bodies that run the state's dams to sit down with lawyers for almost 7000 flood victims to find a mediated settlement in the multimillion-dollar class action brought over the way Wivenhoe and Somerset dams were managed during the 2011 flood crisis. The parties will meet in private from August 14 to try to find a way to avoid the costs of a mammoth trial, set down for 54 days to start in October. Lawyers Maurice Blackburn wrote to the more than 6800 residents of Brisbane and Ipswich it represents, warning of the risks of going to trial. "If the case goes to trial and the court makes a decision, there will be a winner and a loser. A mediated outcome provides a compromise between these binary outcomes . . . having regard to the risks involved for each of them in going to trial," the firm wrote in its letter, obtained by Fairfax Media. "A mediated outcome would deliver compensation to group members sooner because it would not be subject to the possibility of appeals . . . which can take several more years." Maurice Blackburn lawyer Vavaa Mawuli told Fairfax Media the firm was assessing the losses suffered by its clients using a sample of 250 of the group, but the work was still at "very early stages". She said this information was being gathered with a view to presenting it at mediation in August. Seqwater, which manages Wivenhoe and Somerset dams, told Fairfax Media it was "surprised that the loss assessment process only commenced in January when the proceedings were filed in July 2014". The order for mediation comes as Ipswich flood victims Phillip and Koula Hassid pursue a rival class action in the same court for people who suffered pure economic loss, such as where property values were depressed but direct property damage not sustained. Lawyer for Mr Hassid, Michael Gillis, said potentially hundreds of people were in this category. He planned to place advertisements seeking interest in the action in coming days. Maurice Blackburn stopped pursuing this type of loss for its clients in March 2016. "We took a decision weighing up various things and whether it's viable," said the firm's Ms Mawuli. "It's a perfectly legitimate claim but to establish those claims - - it's very difficult and complex." Seqwater, the state government and Maurice Blackburn all raised concerns at a court hearing last month that the Hassids' action could delay proceedings for the other litigants. "Our main priority is for our clients to have their day in court," Ms Mawuli said. The main class-action claim is that Seqwater failed to release enough water from Wivenhoe Dam in the early stages of the flood or to take proper account of rainfall forecasts. The Hassids plan to use the same evidence to argue their case. Seqwater said it was "confident that its management of the event, and the actions taken by its flood engineers, will continue to be shown to have significantly reduced the impact of the flood." SEVENTY-SEVEN ENERGY: "Gael" Sues Over Shady Merger Deal -------------------------------------------------------- Mainard Gael, individually and on behalf of all others similarly situated, Plaintiff, v. Seventy-Seven Energy, Inc., Jerry L. Winchester, Victor Danh, Andrew Axelrod, Douglas J. Wall, David King, Edward J. Dipaolo and Steven Hinchman, Defendants, Case No. 2017-0266, (Del. Ch., April 7, 2017), seeks to enjoin, preliminarily and permanently, the acquisition of Seventy-Seven by Patterson-UTI Energy, Inc. The suit further seeks damages, costs of this action, including a reasonable allowance for the fees and expenses of Plaintiff's attorneys and experts and such other further relief for breach of fiduciary duties. On December 12, 2016, the Company announced that Patterson-UTI Energy, Inc. will acquire Seventy-Seven Energy, Inc. (SSE) in exchange for shares of newly-issued common stock wherein its stockholders will receive 49,559,000 shares of Patterson-UTI common stock. The transaction is valued at approximately $1.42 billion. The complaint says Defendants failed to disclose material information concerning the Company's financial projections for years 2017 through 2020, thus leading the Plaintiffs to question the basis of the merger amount. SSE is an Oklahoma-based diversified oilfield services company, providing well site services and equipment to U.S. land-based exploration and production customers for unconventional extraction of oil and natural gas. They provide drilling, pressure pumping, and oilfield rental tools. [BN] Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Tel: (302) 295-5310 - and - Donald J. Enright, Esq. LEVI & KORSINSKY, LLP 1101 30th Street, N.W., Suite 115 Washington, DC 20007 Tel: (202) 524-4290 SHORE FUNDING: "Cunningham" Suit Seeks Certification of Class ------------------------------------------------------------- In the lawsuit captioned CRAIG CUNNINGHAM on behalf of himself and all others similarly situated, the Plaintiff, v. SHORE FUNDING SOLUTIONS INC., the Defendant, Case No. 2:17-cv-02080 (E.D.N.Y.), the Plaintiff moves the Court for an order: a. granting Plaintiff's motion for class certification; or alternatively; b. taking the motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming Rule 23 scheduling order. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=AlT1qyWK The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plains, NY 10606 Telephone: 914 358 5345 Facsimile: 212 571 0284 E-mail: Aytan.Bellin@bellinlaw.com SILVERSCRIPT INSURANCE: Class Action Seeks Medicare Beneficiaries ----------------------------------------------------------------- Frier Levitt on April 10 announced a search for Medicare beneficiaries with Part D coverage through SilverScript Insurance Company ("SilverScript") that may have paid excessive copayments for a possible class action lawsuit. Medicare beneficiaries with Part D benefits that pay more than $200 out of pocket for covered medications may have claims against SilverScript for overpaying for medications year after year and may be able to serve as a class action representative. Upon success, class action representatives are not only compensated for their loss, but also receive payment for their service as a class action representative. Medicare beneficiaries that participate in SilverScript may have overpaid for the drug benefit copayment. SilverScript, the largest Medicare-approved Part D prescription drug plan provider, is a wholly owned subsidiary of CVS Health, Inc., which also owns and operates CVS Caremark, a Pharmacy Benefit Manager. SilverScript calculates Medicare beneficiary out of pocket copayments based in part on the amount of money that Caremark, who processes prescription drug claims, pays to the participating pharmacy at the point of sale. Through utilization of Direct and Indirect Remuneration Fees ("DIR Fees"), SilverScript and Caremark may have inflated the initial costs of medication paid to the pharmacy at the point of sale, only to reduce the amount paid to pharmacies months later, well after patients have received their medications. The damage to Medicare beneficiaries occurs because SilverScript does not re-calculate the Medicare beneficiaries' copayment and is believed to not refund the excess copayment made by patients. Patients paid a copayment at the point of sale based on a price set by SilverScript and Caremark that may not have been accurate. Patients may have paid hundreds or thousands of dollars more than they should have over the course of a single year. Frier Levitt is looking to file a class action against SilverScript challenging the over payment by patients. Medicare beneficiaries with Part D coverage through SilverScript who pay more than $200 out of pocket for covered medications are encouraged to contact attorney Steven L. Bennet, Esq. at sbennet@frierlevitt.com or (973) 618-1660. Beneficiaries have the right to express concerns with their Part D coverage and doing so does not put their coverage at risk. About Frier Levitt, LLC Frier Levitt -- http://www.FrierLevitt.com-- is a national boutique healthcare law firm. Our 27 healthcare attorneys include pharmacist-lawyers, class action attorneys, trial attorneys and those whose practice concentrates in Medicare law. SMUCKER FOODS: Faces Class Action Over Robin Hood Flour Recall -------------------------------------------------------------- The Canadian Press reports that a pair of Alberta-based law firms say they've filed a class-action lawsuit on behalf of people who bought or consumed a popular brand of flour that's been linked to illnesses from E. coli. James H. Brown and Associates and Higgerty Law say they're seeking damages from Smucker Foods of Canada Corp. following a national recall of 10-kilogram bags of Robin Hood Original All Purpose Flour. A statement of claim says the representative plaintiff lives in Victoria, B.C., and became so sick after eating cookie dough that her kidneys began shutting down. The Canadian Food Inspection Agency issued a recall in Western Canada for the flour late last month, and the Public Health Agency of Canada says an outbreak of E. coli O121 has been linked to the flour. The health agency says there have been 26 cases of people being infected with the bacteria in British Columbia, Saskatchewan, Alberta and Newfoundland and Labrador. No deaths have been reported, but at least six people required hospital care. SNYDER'S-LANCE: June 21 Status Hearing in "Roxberry" IBO Suit ------------------------------------------------------------- In the case, Roxberry et al v. Snyders-Lance, Inc. et al., Case No. 1:16-cv-02009 (M.D. Pa.), the Hon. John E Jones, III, entered on April 13, 2017, a Scheduling Order providing that the Court will conduct a status call in this matter on June 21 at 11:00 a.m. Counsel for the Plaintiffs shall initiate the call to Chambers, (717) 221-3986, with all counsel on the line and prepared to proceed. Snyder's-Lance, Inc. continues to defend against the case captioned, Roxberry, et. al, v. S-L Distribution Company, LLC, Snyder's-Lance, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On July 25, 2016, plaintiffs comprised of independent business owners ("IBO") filed a putative class action against Snyder's- Lance, Inc. and our distribution subsidiary, S-L Distribution Company, Inc. in the Eastern District Court of Tennessee. The case was transferred to the Middle District of Pennsylvania (Case No. 1:16-cv-02009) on October 3, 2016. The lawsuit seeks statewide class certification on behalf of a class comprised of IBOs in Tennessee, and nationwide certification for the Federal law collective action. The plaintiffs allege that they were misclassified as independent contractors and should be considered employees. "We believe we have strong defenses to all the claims that have been asserted against us. At this time, no demand has been made, and we cannot reasonably estimate the possible loss or range of loss, if any, from this lawsuit," the Company said. Snyder's-Lance, Inc., a North Carolina corporation incorporated in 1926, is a branded snack food company with operations in North America and Europe. SNYDER'S-LANCE: Seeks to Dismiss or Transfer "Scheurer" Suit ------------------------------------------------------------ In the case, Scheurer, LLC v. S-L Distribution, Inc. Case No. 2:16-cv-08783 (D. N.J.), Defendant's Motion to Dismiss Plaintiff's Class Action Complaint, and/or in the Alternative, Motion to Transfer Venue and Motion to Strike remains pending. The case is pending before the Hon. Madeline Cox Arleo. Snyder's-Lance, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that on December 8, 2016, plaintiff served a putative class action on behalf of all similarly situated independent business owners ("IBO") in New Jersey against its distribution subsidiary, S-L Distribution Company, LLC. Plaintiff is a former IBO whose distribution agreement was terminated pursuant to the re-engineering and buyback of routes in New Jersey in 2011, resulting from the merger of Snyder's of Hanover, Inc. and Lance, Inc. The lawsuit seeks statewide class certification on behalf of a class comprised of IBOs in New Jersey for alleged violations of the New Jersey Franchise Practices Act ("NJFPA") relative to various terminations of the distributor agreement. "We believe we have strong defenses to all the claims that have been asserted against us. At this time, no demand has been made, and we cannot reasonably estimate the possible loss or range of loss, if any, from this lawsuit," the Company said. Snyder's-Lance, Inc., a North Carolina corporation incorporated in 1926, is a branded snack food company with operations in North America and Europe. SNYDER'S-LANCE: Merger-Related Suit Dismissed --------------------------------------------- Snyder's-Lance, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the court has granted a stipulated order of dismissal of the Merger-related Litigation. On November 10, 2015, a putative class action lawsuit was filed on behalf of Diamond Foods' stockholders in the Court of Chancery of the State of Delaware. The complaint names as defendants Diamond Foods, the members of Diamond Foods' board of directors, Snyder's- Lance, Shark Acquisition Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of Snyder's-Lance ("Merger Sub I") and Shark Acquisition Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Snyder's-Lance ("Merger Sub II"). The complaint generally alleges, among other things, that the members of Diamond Foods' board of directors breached their fiduciary duties to Diamond Foods' stockholders in connection with negotiating, entering into and approving the merger agreement with Snyder's-Lance, Inc. The complaint additionally alleges that Snyder's-Lance, Merger Sub I and Merger Sub II aided and abetted such breaches of fiduciary duties. The complaint sought injunctive relief, including the enjoinment of the merger, certain other declaratory and equitable relief, damages, costs and fees. An amended complaint was filed on December 21, 2015. The amended complaint adds further allegations related to the merger process and disclosures contained in the Registration Statement on Form S-4 filed by Snyder's-Lance on November 25, 2015. On January 15, 2016, plaintiff filed a motion for expedited proceedings requesting a preliminary injunction and expedited discovery, which the Court denied on February 3, 2016. Plaintiff also filed a books and records demand case in North Carolina, which the court subsequently dismissed with prejudice. On January 19, 2016, another action was filed in the court of chancery in the state of Delaware similar to the above matter. On October 24, 2016, plaintiff filed a second amended complaint, which modified some of plaintiff's allegations, including now expressly seeking a quasi-appraisal remedy or rescissory damages. Defendants moved to dismiss the second amended complaint on December 22, 2016. On February 3, 2017, plaintiffs moved to consolidate the two Delaware cases, which defendants did not oppose, and which the Court granted on February 3, 2017. On February 24, 2017, the parties filed a stipulated proposed order of dismissal, seeking voluntary dismissal of the Delaware litigation with prejudice as to the named plaintiffs and without prejudice as to the putative class. The court granted the stipulated order of dismissal on February 27, 2017. Snyder's-Lance, Inc., a North Carolina corporation incorporated in 1926, is a branded snack food company with operations in North America and Europe. SNYDER'S-LANCE: Accord in Calif. Labor Suit Has Preliminary OK -------------------------------------------------------------- Snyder's-Lance, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the court has granted preliminary approval of the settlement of a California Labor Code Litigation. Former employee Patricia Sparks filed a putative class action lawsuit against Diamond Foods on November 25, 2015 in San Francisco Superior Court alleging Diamond Foods' violation of the California Labor Code by failing to include on wage statements the start date of the pay period and by failing to include on wage statements the name and address of the legal entity that is the employer. Plaintiff amended her complaint on January 4, 2016 to add a claim for penalties under California's Private Attorneys General Act based on the same underlying violations. Diamond Foods timely answered the First Amended Complaint on March 7, 2016. The parties attended the initial case management conference on May 2, 2016 and a further case management conference occurred on August 1, 2016. "We accrued $8.3 million associated with this outstanding claim in the Diamond Foods opening balance sheet as that represented our best estimate of the probable liability at that time. We determined such accrual by estimating the aggregate potential penalties that we believed it was probable could be assessed under the applicable California laws, which are strict liability penalties," the Company said. "On September 19, 2016, the parties to this litigation reached a tentative settlement pursuant to which we have agreed to pay $0.7 million on a class wide basis. We signed a memorandum of understanding reflecting this preliminary settlement amount. The parties submitted a settlement agreement to the court and the court granted preliminary approval of the settlement. As a result, we have recorded a measurement period adjustment to reduce the opening balance sheet accrual. Accordingly this settlement amount did not impact our Consolidated Statements of Income for the year ended December 31, 2016." Snyder's-Lance, Inc., a North Carolina corporation incorporated in 1926, is a branded snack food company with operations in North America and Europe. SNYDER'S-LANCE: Late July's Motion to Dismiss Underway ------------------------------------------------------ Snyder's-Lance, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that Late July's motion to dismiss an amended complaint in the Evaporated Cane Juice Litigation remains pending. A putative class action suit was filed against Late July on September 18, 2013, and is pending in the US District Court for the Northern District of California. The action accuses Late July of violating federal and state law by using the term "evaporated cane juice" ("ECJ") in the ingredients list on its products' labels. The plaintiffs' complaint alleges ECJ is not the common and usual name for the ingredient at issue and is misleading. The complaint attempts to state claims for violation of California's Unfair Competition Law, California's False Advertising Law, California's Consumers Legal Remedies Act, and unjust enrichment. Late July filed a motion to dismiss the complaint on November 27, 2013, based on the primary jurisdiction doctrine, lack of standing, and failure to state a claim. On May 22, 2014, the Court stayed the action, applying the doctrine of primary jurisdiction, due to the FDA's ongoing consideration of the issue of using the term ECJ on food labels. On May 26, 2016, the FDA issued its guidance for industry on the topic. As a result, the stay was lifted on July 22, 2016. On August 31, 2016, plaintiffs filed an amended complaint that, among other things, relies on the FDA's recently issued guidance. Late July filed a motion to dismiss such amended complaint, and a hearing on that motion was held on February 16, 2017. "At this time, we cannot reasonably estimate the possible loss or range of loss, if any, from this lawsuit," the Company said. Snyder's-Lance, Inc., a North Carolina corporation incorporated in 1926, is a branded snack food company with operations in North America and Europe. SOHO SUSHI: "Zhao" Seeks Overtime Pay, Claims No Pay Stubs ---------------------------------------------------------- Kewei Zhao, on behalf of himself and others similarly situated Plaintiff, v. Soho Sushi, Inc. d/b/a Soho Sushi, Yufita Tjhin and Li Bin Cao, Defendants, Case No. 1:17-cv-02517 (S.D. N.Y., April 7, 2017) seeks to recover unpaid minimum wage, unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest, attorneys' fees and costs pursuant to New York Labor Law and the Fair Labor Standards Act. Soho Sushi, Inc. operates Soho Sushi, a Japanese restaurant at 231 Sullivan Street, New York, NY 10012, where Kewei Zhao was employed as a deliveryman. Defendants failed to keep full and accurate records of Plaintiff's hours and wages, the complaint asserts. [BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Blvd., Suite 119 Flushing, NY 11355 Tel: (718) 762-1324 Fax: (718) 762-1342 Email: johntroy@troypllc.com SSE: Shareholder Files Class Action Over Patterson-UTI Deal ----------------------------------------------------------- Reuters reports that Patterson-UTI Energy said that Mainard Gael, SSE stockholder, filed putative class action challenging disclosures in connection with deal against SSE and SSE's board. The company related complaint alleges that sse's board of directors breached its fiduciary duties The alleged omissions generally relate to certain financial projections. The complaint alleges the board failed to disclose in joint proxy statement/prospectus filed in relation with deal certain allegedly material information. STANDARD INNOVATION: Settles We-Vibe Privacy Class Action --------------------------------------------------------- Shane Olafson, Esq. -- solafson@lrrc.com -- of Lewis Roca Rothgerber Christie LLP, in an article for Mondaq, wrote that the Internet of Things (or "IoT") is a hot topic in privacy circles, given its rapid expansion among everyday consumer products. Broadly referring to Internet-connected-devices, the IoT encompasses a variety of consumer goods, such as kitchen appliances (smart ovens and refrigerators), home security, window blinds, light bulbs, and lawn care equipment. Many personal devices are now connected as well, including toothbrushes, a smart hairbrush that measures hair density and brushing habits, a pillow that monitors snoring and analyzes sleeping habits, and even sexual devices -- which brings us to the present story. The company Standard Innovation Corp. sells a personal vibrator product called the We-Vibe. According to the class complaint: "To fully operate the We-Vibe, users download Defendant's 'We-Connect' application from the Apple App Store or the Google Play store and install it on their smartphones. With We-Connect, users can 'pair' their smartphone to the We-Vibe, allowing them -- and their partners -- remote control over the vibrator's customizable settings and features." However, "[u]nbeknownst to its customers . . . Defendant designed We-Connect to (i) collect and record highly intimate and sensitive data regarding consumers' personal We-Vibe use, including the date and time of each use and the selected vibration settings, and (ii) transmit such usage data -- along with the user's personal email address -- to its servers in Canada." The plaintiffs also allege that the company misrepresented the security of the app, as evidenced by two hackers at the 2016 Def Con conference being able to hack into and control someone else's device. The proliferation of IoT hacking has led some to suggest that a better name might be IoTTCBH, or Internet of Things That Can Be Hacked. As part of the settlement, in addition to monetary compensation for the class, the company agreed to implement or change many of its privacy practices. Specifically, the company agreed to (1) not collect email addresses through its We-Connect app, (2) update its privacy notice to specifically disclose its data collection and use practices, (3) provide users with a method to opt out of their data being provided to third parties, (4) take various steps to ensure that all users with the We-Connect app receive notice of the company's privacy policies, and (5) purge certain consumer privacy information already collected. As more devices are interconnected, concerns over the security of those devices and the data collection/use practices of IoT device makers are growing. The We-Vibe class action highlights the importance of appropriate privacy policies and practices, as well as technical device security. STELLAR RECOVERY: "Salinas" Sues Over Illegal Collections Calls --------------------------------------------------------------- Rosario Salinas, individually and on behalf of all others similarly situated, Plaintiff, v. Stellar Recovery, Inc., and Does 1-10, inclusive, and each of them, Defendant, Case No. 3:17-cv- 01961, (N.D. Fla., April 7, 2017), seeks actual and statutory damages, costs and reasonable attorney's fees and such other and further relief for negligent violations of the Telephone Consumer Protection Act, Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act. Stellar Recovery, Inc. is debt collection company tasked to collect a debt from the Plaintiff by use of the mails and telephone. Defendant repeatedly called Plaintiff using an automatic telephone dialling system despite Plaintiff's express revocation of consent to be called. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, 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 abacon@toddflaw.com mgeorge@toddflaw.com STRATEGIC HVAC: "Barragan" Sues Over Unpaid Overtime Wages ---------------------------------------------------------- Rogelio Perez Barragan on behalf of himself individually, and all others similarly situated, Plaintiffs, v. Strategic HVAC & Insulation LLC, Defendants, Case No. 4:17-cv-01090, (S.D. Tex., April 10, 2017), seeks unpaid overtime compensation, liquidated damages, attorneys' fees and costs, post-judgment interest on all amounts awarded and all such other and further relief under the Fair Labor Standards Act. Barragan was an employee of Strategic HVAC & Insulation LLC at its location in Houston, Texas, applying insulating materials to ductwork. [BN] Plaintiff is represented by: Taft L. Foley, II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Phone: (832) 778-8182 Facsimile: (832) 778-8353 Email003A Taft.Foley@thefoleylawfirm.com SWEETWATER, FL: Conditional Class Cert. Sought in "Peneda" Suit --------------------------------------------------------------- In the lawsuit titled JUAN M. RAMIREZ PENEDA, the Plaintiff, v. CITY OF SWEETWATER, FLORIDA, the Defendants, Case No. 1:17-cv- 20067-UU (S.D. Fla.), the Plaintiff asks the Court to issue an order: a. conditionally certifying a class of: "current and former maintenance persons who worked for Defendant in the last three years and who were not paid overtime compensation for their hours worked over 40 each week; b. directing Defendant to produce, in an electronic readable format, to the undersigned counsel within 14 days of the Order granting this Motion a list containing the full names, last known addresses, telephone numbers, and email addresses of putative class members who worked for Defendants between January 2014 and the present; c. authorizing the undersigned counsel to send initial notice, in both English and Spanish, to all individuals whose names appear on the list produced by the Defendants' counsel by first-class mail; d. directing Defendants to post at all of its business locations located within Florida, a copy of the initial notice in the form, in both English and Spanish; e. authorizing the undersigned counsel to send a follow-up notice, in both English and Spanish, to all individuals whose names appear on the list produced by the Defendants' counsel but who, by the 14th day prior to the close of the Court-approved notice period, have yet to opt in to the instant action; f. providing all individuals whose names appear on the list produced by Defendants' counsel a total of 60 days from the date the notices are initially mailed to file a Consent to Become Opt-In Plaintiff form; and g. providing other and further relief as the Court deems just under the circumstances. The case is a collective action to enforce the overtime provisions of the Fair Labor Standards Act. The Plaintiff was a non-exempt maintenance person for Defendant from on or about May 5, 2001 through on or about September 14, 2016. On January 6, 2017, Plaintiff filed this lawsuit on behalf of himself and all others similarly-situated alleging that he and the other non-exempt employees who worked for Defendant were not properly paid for each hour worked in excess of 40 hours per week. Specifically, Defendant, in Plaintiff's paystubs, would classify overtime compensation as regular other and pay out certain hours worked over forty hours as regular time instead of time and a half. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=MboAp0aE The Plaintiff is represented by: Rainier Regueiro, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler St., Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 The Defendant is represented by: Anthony Joseph Perez, Esq. GARCIA-MENOCAL & PEREZ, P.L. 4937 SW 74th Court No. 3 Miami, FL 33155 Telephone: 305-553 3464 Facsimile: 305.553 3031 E-mail: ajperezlaw@gmail.com SWISHER HYGIENE: Motions to Dismiss Amended Complaint Underway -------------------------------------------------------------- Swisher Hygiene Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on February 28, 2017, that the Company is filing this Current Report on Form 8-K for the purpose of updating its stockholders on events, through the date of this report, relating to the civil suit filed against the Company, certain of the Company's current and former officers and directors, and Ecolab Inc. ("Ecolab") in the State of Illinois action captioned, Paul Berger v. Swisher Hygiene Inc. et al. (Case No. 2015 CH 13325), Circuit Court of Cook County, Illinois Chancery Division (the "Berger litigation"). On November 17, 2016, the Court granted Defendants' motions to dismiss the Berger litigation and granted Plaintiff leave to amend its complaint with respect to claims against Ecolab. On December 15, 2016, Plaintiff filed an amended complaint against Ecolab and the Company as a Nominal Defendant, captioned Paul Berger on behalf of himself and all others similarly situated v. Ecolab Inc. as Defendant, and Swisher Hygiene Inc. as Nominal Defendant (Case No. 2015 CH 13325) (the "Amended Complaint"). In the Amended Complaint, Plaintiff asserts a direct claim against Ecolab, stating that it aided and abetted the Company's directors in breaching their fiduciary duties by approving the sale of the Company assets to Ecolab and issuing a misleading Proxy Statement. In addition, Plaintiff asserts a derivative claim against Ecolab, purportedly on behalf of the Company as nominal defendant, for alleged fraudulent transfer of assets, arising out of the same facts. Plaintiff seeks (1) a determination that the action is a class action; (2) a declaration that the Company's directors breached their fiduciary duties and that Ecolab aided and abetted such purported breaches of fiduciary duty; (3) rescission of the transfer of assets; (4) avoidance of the transfer of assets pursuant to the Fraudulent Transfers Act; (5) an award of damages, interest, attorneys' fees, expert fees and costs; and (6) the grant of such other relief as the Court may find just and proper. On February 10, 2017, Ecolab and the Company filed motions to dismiss the Amended Complaint, which motions are currently pending. Plaintiff's right to appeal the Court's adverse rulings issued on November 17, 2016 are stayed until a final appealable ruling on the motions to dismiss the Amended Complaint. TESLA: Disputes Son Ji-chang's Sudden Acceleration Claim -------------------------------------------------------- Topspeed reports that it's no secret that Tesla has been the target of plenty of lawsuits over the last year or two. In fact, it seems that just about anyone who crashes their Model S or Model X wants to blame Tesla. Musk was smart, however, and has equipped each of Tesla's vehicles with a data recorder, which has proven invaluable in protecting the company from people that seem to forget how to drive. Usually, it's someone saying autopilot screwed up, but there are others that claim their vehicle accelerated all on its own. This guy from California, however, really takes the cake. Last year, this cat (Son Ji-chang) drove his car through his garage and firmly lodged it right into his living room. He immediately pointed the finger at Tesla and initiated yet another lawsuit -- one that's attempting to evolve into class-action status. He even used his wealth to launch a media campaign to slander Tesla a bit. His claim? "The vehicle spontaneously began to accelerate at full power, jerking forward and crashing through the interior wall of the garage, destroying several wooden support beams in the wall and a steel sewer pipe, among other things, and coming to rest in (his) living room." Well, the suit also names several other complaints that have been reported to the NHTSA, a good number of which point to driver error. In other words, the driver hit the accelerator, and the car did what it was supposed to do; Go. And, in this specific case, a third-party even reviewed the logs from one of these alleged rogue cars and determined the same thing, so it's not necessarily just Tesla trying to flip things around. Well, the people behind the most recent suit have changed their approach, and instead of saying Tesla is responsible for this unintended acceleration, they say that Tesla is responsible for not preventing this unintended acceleration. Basically, they say the car should know that the driver accidentally hit the gas pedal and ignore that input . . . So, to put things simply, Son Ji-chang and a number of others, say that Tesla is responsible for these "sudden acceleration" accidents because it hasn't built a failsafe car. Tesla vehicles should be able to understand what the driver's intentions are and prevent them from making mistakes -- or in Son Ji-chang's case -- stop them from creating a homemade drive-in. The sudden acceleration suit against Toyota was legitimate, to a certain degree, as the floor mats of certain vehicles were found to hang up on the accelerator. But, in this situation, the suit is claiming that Tesla is under obligation to build a "failsafe car." Tesla disagrees: "According to Plaintiffs, the purported defect is that Tesla's vehicles are allegedly prone to sudden, unintended acceleration. Plaintiffs allege that the sudden acceleration may be caused by defects in various vehicle systems or by driver negligence, but that, in any event, Tesla should have designed a failsafe system to prevent it. Tesla contends that each sudden acceleration incident alleged in the FAC (First Amended Complaint) was the result of driver error, denies that its cars are defective in any way, and disputes that there is a legal duty to design a failsafe car." Is this really what the world is coming to? We pass off blame for our own wrongdoings just to save a buck? Come on, people. If you accidentally floor the accelerator and smash into some shit, that's your fault. You can't just push blame on the company that made the car because you don't want to pay for your mistake. This specific suit will next continue come May 1st in Santa Ana federal court. I can't wait to see what happens next. Maybe the court will rule against Son Ji-chang, and he'll suit the court for hurting his feelings. TRANSWORLD SYSTEMS: Illinois Court Narrows Claims in "Eul" ---------------------------------------------------------- District Judge Ruben Castillo of the United States District Court for the Northern District of Illinois granted in part Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) the case captioned, SHARON EUL et al., on behalf of themselves and a class, Plaintiffs, v. TRANSWORLD SYSTEMS et al., Defendants, Case No. 15 C 7755. (N.D. Ill.). Plaintiffs in the putative class action allege that the Defendants -- various debt holders, debt servicers, and law firms retained to collect debt -- violated multiple provisions of the federal Fair Debt Collection Practices Act (FDCPA), the Illinois Interest Act, the Illinois Collection Agency Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act in the course of their attempts to collect on alleged student loan debt from the Plaintiffs. The Plaintiffs are 19 individuals, mostly citizens of Illinois, who all currently live in Illinois or at some relevant time in the past lived in Illinois. All but one of them allege that they have been sued in Cook County Circuit Court to collect on alleged student loan debts, some because they were cosigners on the loans. All the actions taken on behalf of the NCT entities against the Plaintiffs were actually performed by a "servicing agent," either Defendant NCO Financial Systems, Inc. (NCO) or its successor, Defendant Transworld Systems (Transworld), or by attorneys employed by these servicing agents. The Defendants presently move to dismiss most Counts of the Consolidated Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argue that the Court cannot credit Plaintiffs' so-called "rent-a-charter" scheme as plausible, because exhibits should trump allegations when they conflict and the Plaintiffs' loan documents themselves. Defendants' second argument is that, as assignees of the Plaintiffs' student loan debts, they are permitted to charge and collect interest at the same rate at the original lender. Defendants argue that Count III fails to state a claim under the FDCPA because the allegedly prohibited debt collection lawsuits were timely under the applicable statute of limitations, which Defendants contend is 10 years. In his Memorandum Opinion and Order dated March 30, 2017 available at https://is.gd/7CEggd from Leagle.com, Judge Castillo dismissed as to Count III finding that Plaintiffs have not alleged any debt collection lawsuits that were filed outside a 10-year limitations period because Plaintiffs' student loan agreements constitute "written contracts" such that a 10-year statute of limitations applies. Count VI is dismissed because Plaintiffs have no implied private right of action under Section 9, they also have failed to state a claim under Section 8a-1; Count VII is dismissed without prejudice because Plaintiffs have failed to adequately allege either intent or proximate causation and therefore fail to state a claim under the ICFA; Count X because Plaintiffs have failed to state a claim under Section 1692e; Count XII because the Court is unable to discern what, if any, factual allegations support the bare legal conclusion that "Defendants violated" 225 ILL. COMP. STAT. 425/9; and Count XIII because as a matter of law that the letters' creditor identification was not false or misleading. As to Count V the Court declines to dismiss because Defendants do not offer any other arguments for why Plaintiffs fail to state a Section 1692e claim; Count VIII because Plaintiffs do not dispute that Section 2.03 of the ICAA applies to Blitt and WWR; Count IX because Plaintiffs have stated a claim under Section 1692e(8); and Count XI because Plaintiffs have plausibly alleged injury in fact to confer Article III standing and have statutory standing to pursue a violation of Section 2S of the ICFA. Stephen Knox, Sr., et al. are represented by: Cassandra P. Miller, Esq. Cathleen M. Combs, Esq. Daniel A. Edelman, Esq. James O. Latturner, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN LLC 20 South Clark Street Suite 1500 Chicago, IL 60603 Tel: (312)739-4200 Transworld Systems, Inc., et al. are represented by David M. Schultz, Esq. -- dschultz@hinshawlaw.com -- Todd Philip Stelter, Esq. -- tstelter@hinshawlaw.com -- and -- Jason L. Santos, Esq. -- jsantos@hinshawlaw.com -- HINSHAW & CULBERTSON, LLP -- James Kevin Schultz, Esq. -- jschultz@sessions.legal -- Bryan C. Shartle, Esq. -- bshartle@sessions.legal -- Daniel W. Pisani, Esq. -- dpisani@sessions.legal -- and -- Morgan Ian Marcus, Esq. -- mmarcus@sessions.legal -- SESSIONS FISHMAN NATHAN & ISRAEL, LLC Blitt and Gaines, P.C., et al. are represented by James Kevin Schultz, Esq. -- jschultz@sessions.legal -- Bryan C. Shartle, Esq. -- bshartle@sessions.legal -- Daniel W. Pisani, Esq. -- dpisani@sessions.legal -- and -- Morgan Ian Marcus, Esq. -- mmarcus@sessions.legal -- SESSIONS FISHMAN NATHAN & ISRAEL, LLC TRINET GROUP: Underwriters Seek to Dismiss Welgus Amended Suit -------------------------------------------------------------- In the case, Welgus v. Trinet Group, Inc. et al., Case No. 5:15- cv-03625 (N.D. Cal.), a Motion to Dismiss the Second Amended Complaint; and Memorandum of Points and Authorities In Support Thereof, were filed on April 17 by Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Jefferies LLC, Morgan Stanley & Co., LLC, Stifel, Nicolaus & Company, Incorporated, Wiliam Blair & Company, LLC. A hearing on the Motion is set for Sept. 14, 2017, at 9:00 a.m. in Courtroom 3, 5th Floor, San Jose before Hon. Beth Labson Freeman. Responses are due by June 1 and replies are due by June 22. Trinet Group, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that in August 2015, Howard Welgus, a purported stockholder filed a putative securities class action lawsuit, Welgus v. TriNet Group, Inc. et. al., under the Securities Exchange Act of 1934 in the United States District Court (the Court) for the Northern District of California. The complaint was later amended in April 2016. The Company said, "The amended complaint generally alleges that TriNet and the other defendants caused damage to purchasers of our stock by misrepresenting and/or failing to disclose facts generally pertaining to alleged trends affecting health insurance and workers' compensation claims. The other defendants include certain of our officers and directors, General Atlantic, LLC, a former significant shareholder, and the underwriters of our IPO." "n November 2016, the parties appeared at a hearing before the Court on our motion to dismiss the amended complaint in its entirety. "In January 2017, the Court issued an order granting TriNet's and the other defendants' motions to dismiss. The Court dismissed the plaintiff's claims in part with prejudice and in part without. As a result, the Court has given the plaintiff until March 3, 2017 to file a second amended complaint with respect to claims not dismissed with prejudice. "If the plaintiff chooses not to file a second amended complaint, the case will be dismissed with prejudice and a final judgment will be entered. We are unable to reasonably estimate the possible loss or range of losses, if any, arising from this litigation." TriNet is a leading provider of human resources (HR) solutions for small to midsize businesses (SMBs). U.S. IMMIGRATION: Hearing on Class Certification Bid Continued -------------------------------------------------------------- The Hon. Robert M. Dow Jr. entered an order in the lawsuit entitled Rony Chavez Aguilar, the Plaintiff, v. U.S. Immigration and Customs Enforcement Chicago Field Office, et al., the Defendant, Case No. 1:17-cv-02296 (N.D. Ill.), generally continuing the hearing on Plaintiff's motion for class certification. According to the docket entry made by the Clerk on April 6, 2017, as discussed on the record, before any discovery requests are served, a motion shall be filed and noticed up for presentment. The June 15, 2017 status hearing is to stand. If Mr. Weintraub would like to, he may appear by phone for status hearings, by e-mailing the Courtroom Deputy Carolyn_Hoesly@ilnd.uscourts.gov (cc counsel of record) a few days in advance. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=FS3T6cFU UBER TECHNOLOGIES: Class Action Mulled Over Manipulative System --------------------------------------------------------------- Catriona Harvey-Jenner, writing for Cosmopolitan.com, reports that Uber can't catch a break. If the ride-hailing app isn't being inundated with accusations of its drivers sexually assaulting passengers, then its former employees are making claims about sexual harassment and gender bias in the workplace. And now there's this: allegations that Uber's technology sneakily defrauds both passengers and drivers in order to make both parties lose out in the financial stakes. According to Ars Technica, a class-action lawsuit against Uber has been proposed over the manipulative system that apparently short- changes riders and drivers when it comes to upfront fare calculations (a feature which isn't yet available in the UK). The system apparently works as follows: passengers are shown an upfront ride fare that's higher than it should be because it calculates a "slower and longer route" compared to the one the driver is shown. Drivers, therefore, are shown a lower fare for the quicker, more efficient route which is the one ultimately paid out by the app. If this is true, Uber is effectively playing drivers and passengers off against one another; we're made to pay a higher price for an indirect route, while drivers aren't earning commission from that higher fare. They're only making money off the quicker, lower-priced route. Not cool, Uber, not cool. The lawsuit has allegedly been filed by a driver based in LA, and the legal documents accuse Uber of having "deliberately manipulated the navigation data used in determining the fare amount paid by its users and the amount reported and paid to its drivers." It goes on to label the sneaky technology as a "well-planned scheme to deceive drivers and users", before calling it "shocking", "methodical", and "extensive". The legal case claims Uber's programme acts as a "breach of contract, unjust enrichment, fraud, and unfair competition," according to Ars Technica. If courts find against Uber in this instance, not only could it lead to a potentially massive payout in miscalculated fares, but also the prospect of an entire overhaul of its technology. Ouch. UBER TECHNOLOGIES: Software Engineer's Suit Stayed -------------------------------------------------- Magistrate Judge Jacqueline Scott Corley of the United States District Court for the Northern District of California denied Defendant's motion to compel arbitration and stayed proceedings in the case captioned, H. McELRATH, Plaintiff, v. UBER TECHNOLOGIES, INC., Defendant, Case No. 16-cv-07241-JSC (N.D. Cal.), pending the Supreme Court's ruling of Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir 2016). In mid-2014, Plaintiff Lenza H. McElrath was recruited by Uber Technologies, Inc., and another technology company for employment as a software engineer. Relying primarily on Uber's offer to provide Plaintiff with 20,000 Incentive Stock Options (ISO), Plaintiff joined Uber. Plaintiff subsequently entered into an Employment Agreement with Uber. Among other things, the Agreement promised Plaintiff 20,000 ISOs "to the maximum extent allowed by the tax code" and that an ISO-qualifying exercise schedule would apply." The Employment Agreement also included an Offer Letter which required Plaintiff to sign the Employment Agreement, and noted that he must agree that all disputes relating to his employment would be fully and finally resolved by binding arbitration. Plaintiff filed an action against Uber in San Francisco Superior Court, alleging claims under the Private Attorney General Act (PAGA), as well as two claims of fraud. Plaintiff later amended the state court complaint to allege only a PAGA claim. On February 6, 2017, upon the parties' request, the state action was stayed pending final judgment in the action or further order of the state court. Seven months after filing suit in state court, Plaintiff filed this putative class action in this Court alleging six claims for relief under California law. All the claims are premised on Plaintiff's allegation that Defendant represented to Plaintiff and the putative class that they would receive 20,000 ISO stocks, but most of what they were given were NSO. Defendant moves to compel arbitration seeking to enforce the ADR Agreement and class action waiver. Plaintiff, for his part, urges that the Agreement prohibits him from engaging in concerted activity and is unenforceable under Morris v. Ernst & Young, 834 F.3d 975 (9th. Cir. 2016). In her Order dated March 30, 2017, available at https://is.gd/5nTwBu from Leagle.com, Magistrate Judge Corley held that the entire arbitration Agreement is unenforceable because Morris action bars the relief Uber seeks. A stay of proceedings until the Supreme Court resolves Morris is appropriate because the majority of Landis factors weigh in favor of granting a stay, and the issue before the Supreme Court is central to the issue in the instant case. A case management conference is set on December 7, 2017 at 1:30 p.m. Lenza H. McElrath, III is represented by Brian Samuel Clayton Conlon, Esq. -- bsc@phillaw.com -- Nicholas A. Carlin, Esq. -- nac@phillaw.com -- and -- Randy Scott Erlewine, Esq. -- rse@phillaw.com -- PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP Uber Technologies, Inc. is represented by Michelle T. Ton, Esq. -- mton@cooley.com -- and -- Patrick Edward Gibbs, Esq. -- pgibbs@cooley.com -- COOLEY LLP UNIQUE BEVERAGE: Plaintiff's Attorney Files Motion for Sanctions ---------------------------------------------------------------- Chandra Lye, writing for Legal Newsline, reports that a class action lawsuit over coconut water has resulted in the plaintiff's attorney filing a motion for sanctions after being accused of using the media to strengthen his position. A class action lawsuit was filed on March 9 in the U.S. District Court in the District of Oregon against Unique Beverage Co., claiming it was falsely advertising a coconut beverage that contained no coconut. The plaintiff, Vicky Silva, alleged she suffered damages after purchasing the product. On March 14, the attorneys for the company wrote a letter that accused the plaintiff of releasing details of the case to the media. It called into question how such a move violated both the Oregon and California Rule of Professional Conduct. "There is no question that your intention in doing so was to prejudice Unique's ability to defend against your unfounded allegations. Frankly, it's not a noble way for you to begin this lawsuit in Oregon," Joe Hochman of Hochman Legal Group wrote. Mr. Hochman also advised that there was to be no contact made with Unique Beverages or its personnel but rather that any communication be directed to the Hochman law firm. Plaintiff's lawyer, Michael Fuller, filed a motion for sanctions on March 21, requesting to be reimbursed for the cost of hiring an independent ethics counsel to handle the complaint of the letter. In a court document, Mr. Fuller states that there was no contact made with the media following the filing of the complaint on March 9. "Defendant's March 14 letter had no basis or justification in fact or law. The letter was an intentional bad faith attempt to threaten plaintiff's counsel, attack the professionalism and ethics of plaintiff's counsel, gain leverage in the litigation, and chill plaintiff's speech in the future," Mr. Fuller wrote to the court. In addition Mr. Fuller detailed his attempts to contact Mr. Hochman through voice messages and email but indicated Mr. Hochman had not responded and therefore showing a willful refusal to confer. Ms. Silva has requested a trial by jury and seeks actual, statutory, punitive damages, interest and reimbursement for legal fees. UNIT CORP: Class Certification Issues in Panola Case Underway ------------------------------------------------------------- Unit Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that there is no timetable for when the court will issue its ruling on class certification issues in the case, Panola Independent School District No. 4, et al. v. Unit Petroleum Company, No. CJ-07-215, District Court of Latimer County, Oklahoma. The Company said, "Panola Independent School District No. 4, Michael Kilpatrick, Gwen Grego, Carla Lessel, Thelma Christine Pate, Juanita Golightly, Melody Culberson, and Charlotte Abernathy are the Plaintiffs in this case and are royalty owners in oil and gas drilling and spacing units for which the company's exploration segment distributes royalty. The Plaintiffs' central allegation is that the company's exploration segment has underpaid royalty obligations by deducting post-production costs or marketing related fees. Plaintiffs sought to pursue the case as a class action on behalf of persons who receive royalty from us for our Oklahoma production." "We have asserted several defenses including that the deductions are permitted under Oklahoma law. We have also asserted that the case should not be tried as a class action due to the materially different circumstances that determine what, if any, deductions are taken for each lease. "On December 16, 2009, the trial court entered its order certifying the class. On May 11, 2012 the court of civil appeals reversed the trial court's order certifying the class. The Plaintiffs petitioned the supreme court for certiorari and on October 8, 2012, the Plaintiff's petition was denied. "On January 22, 2013, the Plaintiffs filed a second request to certify a class of royalty owners that was slightly smaller than their first attempt. Since then, the Plaintiffs have further amended their proposed class to just include royalty owners entitled to royalties under certain leases located in Latimer, Le Flore, and Pittsburg Counties, Oklahoma. "In July 2014, a second class certification hearing was held where, in addition to the defenses described above, we argued that the amended class definition is still deficient under the court of civil appeals opinion reversing the initial class certification. Closing arguments were held on December 2, 2014. There is no timetable for when the court will issue its ruling. The merits of Plaintiffs' claims will remain stayed while class certification issues are pending." Unit Corporation was founded in 1963 as an oil and natural gas contract drilling company. Today, in addition to drilling operations, it has operations in the exploration and production and mid-stream areas. UNITED KINGDOM: Post Office Could Face Suit by Subpostmasters ------------------------------------------------------------- Rebecca Ratcliff at the Guardian reports that more than 1,000 subpostmasters who claim they were wrongly accused of theft or false accounting could join a class action against the Post Office to clear their names. The case could result in a payout of tens of millions to the subpostmasters, who say that a faulty IT system led to accounting shortfalls. Many lost their jobs and were forced to pay back thousands of pounds that had gone missing from their branches, while some were given prison sentences. The legal firm Freeths, which is leading the action, said hundreds of current and former subpostmasters had come forward since a group litigation order was granted in January, and that many more might do so before the deadline of 26 July. "Our claim goes back to 1999, the year when the Horizon IT system was installed. There are thousands and thousands of subpostmasters out there who may be entitled to join the group claim . . . the potential pool of claimants is very significant, but we just don't know how many people will come forward over the next few months," said James Hartley, a partner with Freeths. The claimant group says that the Post Office failed in its legal duty because it held subpostmasters responsible for financial losses before properly investigating shortfalls and failed to inform individuals that their cases were not isolated incidents. It is also claimed that Post Office personnel harassed the subpostmasters involved -- alleged incidents include Post Office employers acting aggressively while interrogating subpostmasters, and searching individuals' homes. A review by forensic accountants Second Sight, published in 2015, found the Post Office had failed to investigate irregularities at sub-post offices before launching civil and criminal inquiries. Advertisement Alan Bates, who set up the campaign group Justice for Subpostmasters Alliance after his contract with the Post Office ended in 2003, hoped the case would bring the Post Office to account. "We want to expose the truth. They've had more than one opportunity to come forward and put their hands up and say 'look, we know there's things that we've not got right', but we're going to have to do that through the courts. We just want it known how badly the Post Office has treated people. They've ruined lives the length and breadth of this country. It's not just one person -- the subpostmaster -- who's affected, it's whole families." Scott Darlington, who ran a Post Office in Alderley Edge, Cheshire, received a suspended prison sentence, 120 hours' community service and a GBP410 fine after he was convicted of false accounting. He first started noticing problems with Horizon when it reported that he was GBP1,700 down on stamps. He reported the shortfall to the Post Office and was made to repay the money. "I just thought something will come back -- this is far too much for this to be some kind of accounting error." Six months later he faced a GBP44,000 shortfall and was accused of false accounting. "I can't really tell you how bad it's been," he said. "My whole life has been turned upside down. Once you have a criminal record, for a start, doing 120 hours of community service that took six months because I was only allowed to do it on a Friday. I was signing on, I was getting housing benefit. I'd been earning GBP35k a year up until this point. I couldn't get a job for three-and-a- half years." Parallel to the group litigation order, the Criminal Cases Review Commission is looking at more than 30 cases where subpostmasters received convictions to decide if some were unsafe. If so, they will be referred to the appeal court and could be overturned. Tracey Merritt, who was accused by auditors of theft and false accounting at her branch in Yetminster -- though they have since dropped the charges -- said the Post Office had failed to provide adequate training in Horizon or to give any support when problems occurred. Merritt lost her post office and shop, and faced hefty solicitors' fees and abuse from some members of the community. She wants her name cleared. The Post Office said in a statement: "The Post Office welcomes the group litigation order as offering the best opportunity for the matters in dispute to be heard and resolved. We will not otherwise comment on litigation while it is ongoing. We continue to have confidence in the Horizon system, which has around 78,000 users across 11,600 branches nationwide to process six million transactions a day." UNITED STATES: ACLU Advises Against ICE Enforcement Agreements -------------------------------------------------------------- Mankato Free Press reports that there is one thing worse than a bad policy, and that's unfair enforcement of a bad policy. That's the case with the Trump administration's recent immigration detainer policy, which coerces and pressures local sheriffs to detain suspects in illegal immigration cases beyond what is legally defensible. Attorney General Jeff Sessions adds insult to injury by producing a weekly list of sheriff's offices who are not standing in line with an overreaching policy. An in-depth report by The Free Press showed Blue Earth and Nicollet county sheriffs and the Mankato Police department have a policy of "Don't arrest, do assist" and "Don't stop, don't ask." Blue Earth County Sheriff Brad Peterson and Nicollet County Sheriff Dave Lange say they cooperate with Immigration and Customs Enforcement authorities, but they're not obligated to do the ICE's work. The sheriffs and Mankato Police don't ask about immigration status as a matter of routine. If they "discover" a person is in the country illegally, they are obligated to notify ICE and that's what they do. Mankato Public Safety Director Todd Miller says his department doesn't stop people just to ask their immigration status. They also don't ask victims or witnesses to a crime about their citizenship status. Mr. Peterson said the sheriff's office does not notify ICE even though they may suspect a tipster, witness or victim might not be a citizen. The sheriff's department's first responsibility, he said, is to ensure the community's safety, and that may be hampered if victims and witnesses are afraid to come forward when a crime has been committed. That policy will likely rile those with a narrow view of a complex immigration law and the duties of law enforcement, but it's a common sense approach that squares with the law. In fact, court cases in New Mexico and Oregon make local authorities liable for detaining suspects after they would be released on a local charge. In response to the verdict in a New Mexico class action case, the jail was found to be illegally holding the ICE suspects and the court awarded them a financial settlement. The Minnesota Sheriffs Association sent out an advisory letter in response to the case, letting sheriff's offices know of the consequences of these actions, though the association offered no advice. The American Civil Liberties Union has advised sheriff's offices and others to reject ICE detainer requests and says they risk more by honoring them. The ACLU also advises sheriff's offices to avoid enforcement agreements with ICE, which have been encouraged. Local authorities have taken the right approach to these legally suspect ICE practices. They are fulfilling all their legal obligations of cooperation, but are not spending local time and resources on the job that should be done by the federal government. UNITED STATES: Travel Ban Violates Constitution, ACLU Says ---------------------------------------------------------- Yeganeh Torbati and Mica Rosenberg at Reuters report that Internal State Department instructions to implement President Donald Trump's temporary travel ban on citizens of six Muslim-majority nations help demonstrate that the ban violates the constitution, the American Civil Liberties Union argued in court filings late on April 6. The ACLU made the argument as part of its lawsuit in federal court in the Northern District of California on behalf of three student visa holders against Trump's March 6 executive order barring travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days and refugees for four months. The lawsuit, which seeks class-action status, says the order discriminates against Muslims. U.S. Secretary of State Rex Tillerson issued instructions to implement Trump's order in a series of four cables to consular officers worldwide last month, which were first revealed by Reuters. The ACLU pointed to language from one of the cables that directs consular officers to assess whether applicants from the six countries "found otherwise eligible" for U.S. visas could still be denied visas based on Trump's order. The ACLU said the guidance "amounts to an unconstitutional amendment of existing law." Tillerson issued the cable on March 10, and followed it with another set of instructions on March 15, the day before the ban was supposed to go into effect. After federal courts blocked the central tenets of Trump's order, Tillerson issued two other cables that rescinded many of his previous instructions but left some tighter visa vetting procedures in place. A State Department official declined to comment on the litigation or the cables. The Department of Justice also declined to comment. The Trump administration has said that the travel ban and increased screening of foreigners are crucial to protecting the United States from terrorist attacks. The government is arguing in court that the president has broad authority under the law to make immigration decisions when there are concerns about national security. The March executive order replaced a more sweeping travel ban that Trump signed on Jan. 27, which sparked chaos and protests at airports and was challenged by more than two dozen lawsuits. The original ban had covered citizens of Iraq, as well as the six countries also included in the revised ban. Iraq was dropped from the revised order, as was an indefinite ban on all refugees from Syria. The revised ban aimed to overcome legal hurdles by excluding legal permanent residents and allowing for waivers for people with ties to the United States. The ACLU, in its claims that the order discriminates against Muslims, points to calls by Trump on the campaign trail for a "Muslim ban" and to a speech he made last month calling the new ban a "watered-down" version of the first. VCA INC: Seeks to Prevent Duran from Pursuing PAGA Action --------------------------------------------------------- VCA Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016, that the Company's motion to prevent Jorge Duran from pursuing his PAGA action remains pending before the court. The Company said, "On May 29, 2013, a former veterinary assistant at one of our animal hospitals filed a purported class action lawsuit against us in the Superior Court of the State of California for the County of Los Angeles, titled Jorge Duran vs. VCA Animal Hospitals, Inc., et. al. The lawsuit seeks to assert claims on behalf of current and former veterinary assistants employed by us in California, and alleges, among other allegations, that we improperly failed to pay regular and overtime wages, improperly failed to provide proper meal and rest periods, and engaged in unfair business practices. The lawsuit seeks damages, statutory penalties, and other relief, including attorneys' fees and costs. Plaintiff Duran moved to certify a meal period premium class, a rest period premium class and a class under California's Business and Professions Code Sections 17200 et seq., on January 9, 2014. "On May 7, 2014, we obtained partial summary judgment, dismissing four of eight claims of the complaint, including the claims for failure to pay regular and overtime wages. On June 24, 2015, the Court denied Plaintiff's Motion. "The plaintiff continues to have a Private Attorney Generals Act ("PAGA") claim. On or about January 10, 2017, VCA filed a motion to prevent Duran from pursuing his PAGA action. That motion is currently pending before the court. "We intend to continue to vigorously defend against the remaining claim in this action. At this time, we are unable to estimate the reasonably possible loss or range of possible loss, but do not believe losses, if any, would have a material effect on our results of operations or financial position taken as a whole." VCA is a national animal healthcare company operating in the United States and Canada. It provides veterinary services and diagnostic testing to support veterinary care, and sells diagnostic imaging equipment and other medical technology products and related services to the veterinary market. VCA INC: Discovery Underway in "Bradsbery and Brakensiek" Suit -------------------------------------------------------------- Discovery is proceeding in the class action lawsuit by La Kimba Bradsbery and Cheri Brakensiek, VCA Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. The Company said, "On July 16, 2014, two additional former veterinary assistants filed a purported class action lawsuit against VCA in the Superior Court of the State of California for the County of Los Angeles, titled La Kimba Bradsbery and Cheri Brakensiek vs. Vicar Operating, Inc., et. al. The lawsuit seeks to assert claims on behalf of current and former veterinary assistants, kennel assistants, and client service representatives employed by us in California, and alleges, among other allegations, that VCA improperly failed to pay regular and overtime wages, improperly failed to provide proper meal and rest periods, improperly failed to pay reporting time pay, improperly failed to reimburse for certain business-related expenses, and engaged in unfair business practices. The lawsuit seeks damages, statutory penalties, and other relief, including attorneys' fees and costs. This lawsuit and the Duran case above are related and are before the same Judge." "In September 2014, the court issued an order staying the La Kimba Bradsbery lawsuit. On or about August 23, 2016, the Court lifted the stay and discovery is proceeding. "We intend to vigorously defend against the Bradsbery action. At this time, we are unable to estimate the reasonably possible loss or range of possible loss, but do not believe losses, if any, would have a material effect on our results of operations or financial position taken as a whole." VCA is a national animal healthcare company operating in the United States and Canada. It provides veterinary services and diagnostic testing to support veterinary care, and sells diagnostic imaging equipment and other medical technology products and related services to the veterinary market. VCA INC: Appeal in "Graham" Class Suit Underway ----------------------------------------------- Defendants' appeal related to the class action lawsuit by Tony M. Graham remains pending, VCA Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. The Company said, "On March 12, 2014, an individual client who purchased goods and services from one of our animal hospitals filed a purported class action lawsuit against us in the United States District Court for the Northern District of California, titled Tony M. Graham vs. VCA Antech, Inc. and VCA Animal Hospitals, Inc. The lawsuit sought to assert claims on behalf of the plaintiff and other individuals who purchased similar goods and services from our animal hospitals and alleged, among other allegations, that we improperly charged such individuals for "biohazard waste management" in connection with the services performed. The lawsuit sought compensatory and punitive damages in unspecified amounts, and other relief, including attorneys' fees and costs. VCA successfully had the venue transferred to the Southern District of California. Plaintiffs filed their motion for class certification on February 12, 2016." "On May 16, 2016, VCA filed its opposition to plaintiffs' motion for class certification. On June 10, 2016, VCA filed a motion for summary judgment as to all of plaintiffs' individual claims. The Honorable Christina Snyder issued her decision on September 12, 2016, granting Defendants' summary judgment motion and denying Plaintiffs' motion for class certification as moot. On October 13, 2016, Defendants filed a Notice to Appeal. No further updates were provided in the Company's SEC report. "We intend to continue to vigorously defend this action. At this time, we are unable to estimate the reasonably possible loss or range of possible loss, but do not believe losses, if any, would have a material effect on our results of operations or financial position taken as a whole." VCA is a national animal healthcare company operating in the United States and Canada. It provides veterinary services and diagnostic testing to support veterinary care, and sells diagnostic imaging equipment and other medical technology products and related services to the veterinary market. VCA INC: Judge Bernal to Hear "Moran" Suit over Mars Merger ----------------------------------------------------------- The case, Frances Moran v. VCA Inc. et al., Case No. 2:17-cv-01502 (C.D. Cal.), has been from Magistrate Judge Jacqueline Chooljian and Judge R. Gary Klausner to Judge Jesus G. Bernal and Magistrate Judge Sheri Pym for all further proceedings. VCA Inc. continues to defend a class action lawsuit related to its merger with Mars Incorporated, VCA said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. VCA said, "On January 7, 2017, we entered into an Agreement and Plan of Merger (the "Merger Agreement") with MMI Holdings, Inc. ("Acquiror"), Venice Merger Sub Inc., a wholly owned subsidiary of Acquiror ("Merger Sub"), and, solely for purposes of Section 9.15 of the Merger Agreement, Mars, Incorporated ("Mars"), pursuant to which, among other things, at the closing of the merger, we will become a wholly-owned subsidiary of Acquiror (the "Merger")." "Following the announcement of the execution of the Merger Agreement, two putative stockholder class action complaints were filed in the United States District Court for the Central District of California relating to the proposed Merger with Mars: (1) Hight vs. VCA Inc., et al., Case No. 5:14-cv-00289, filed February 15, 2017, which named the Company, the Company's Board of Directors, Mars, Merger Sub and Acquiror, as defendants, and which alleges, among other allegations, that (a) the consideration to be paid to the Company's stockholders in connection with the proposed Merger is inadequate, (b) the Company's Board of Directors and management have a conflict of interest due to continued employment and/or change in control payments, (c) the proposed Merger contains deal protection devices that preclude other bidders from making successful competing offers for the Company, and (d) the disclosures included in the proxy statement filed by the Company contain materially false or misleading statements or omissions; and (2) Moran vs. VCA Inc., et al., Case No. 2:17-cv-01502, filed February 23, 2017, which named the Company and the Company's Board of Directors as defendants, and which alleges, among other allegations, that the disclosures included in the proxy statement filed by the Company contain materially false or misleading statements or omissions. Each of the actions assert claims under Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder. "The actions seek, among other things, (a) to enjoin the defendants from proceeding with the shareholder vote on the Merger or completing the Merger on the agreed upon terms, (b) rescission of the Merger or an award of rescissory damages, to the extent the proposed Merger has already been consummated, and (c) an award of plaintiff's costs, including attorneys' and experts' fees, and other equitable relief as the court deems proper. "The Company believes that the actions are without merit, and intends to vigorously defend against all claims asserted." VCA is a national animal healthcare company operating in the United States and Canada. It provides veterinary services and diagnostic testing to support veterinary care, and sells diagnostic imaging equipment and other medical technology products and related services to the veterinary market. VONAGE HOLDINGS: Class Suit by Merkin & Smith, et al. Underway --------------------------------------------------------------- A class action lawsuit by Merkin & Smith, et als. remains pending, Vonage Holdings Corp. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 28, 2017, for the fiscal year ended December 31, 2016. On September 27, 2013, Arthur Merkin and James Smith filed a putative class action lawsuit against Vonage America, Inc. in the Superior Court of the State of California, County of Los Angeles, alleging that Vonage violated California's Unfair Competition Law by charging its customers fictitious 911 taxes and fees. On October 30, 2013, Vonage filed a notice removing the case to the United States District Court for the Central District of California. On November 26, 2013, Vonage filed its Answer to the Complaint. On December 4, 2013, Vonage filed a Motion to Compel Arbitration, which the Court denied on February 4, 2014. On March 5, 2014, Vonage appealed that decision to the United States Court of Appeals for the Ninth Circuit. On March 26, 2014, the district court proceedings were stayed pending the appeal. On February 29, 2016, the Ninth Circuit reversed the district court's ruling and remanded with instructions to grant the motion to compel arbitration. On March 22, 2016, Merkin and Smith filed a petition for rehearing. On May 4, 2016, the Ninth Circuit withdrew its February 29, 2016 decision and issued a new order reversing the district court's order and remanded with instructions to compel arbitration. The Ninth Circuit also declared as moot the petition for rehearing. On June 27, 2016, the lower court stayed the case pending arbitration. A joint status report was filed with the District Court on December 23, 2016. Vonage is a provider of cloud communications services for businesses and consumers. WASHINGTON: Faces Suit Over Driver's Act Violation -------------------------------------------------- Nina Culver at Spokesman reports that a Spokane woman has filed a lawsuit against the Washington State Patrol Chief John Bastiste, alleging that the department's practice of selling unredacted accident reports is a violation of the Driver's Privacy Protection Act. The act forbids the release of personal information contained in motor vehicle records without consent. The WSP reports are automatically filled in electronically with information from motor vehicle records. Jade Wilcox was in a car accident on July 9, 2016. Only five days later she received a letter from the law office of Craig Swapp in an attempt to solicit her business, according to the lawsuit filed by Spokane attorney Jim Sweetser. "This is a common and routine sale of DPPA-protected personal information," the lawsuit states. Attorneys, chiropractors and others obtain WSP collision reports for solicitation and their own personal profit, it said. Swapp buys hundreds of accident reports in bulk every month and uses them to contact people offering his services, the lawsuit states. Wilcox's report was one of the reports his company purchased. The lawsuit filed in federal court, which Sweetser hopes will become a class action, seeks USD2,500 per violation of the DPPA plus punitive damages. The suit also seeks an immediate injunction barring the public sale of accident reports by the WSP. WASHINGTON METROPOLITAN: Race Discrimination Class Action OK'd -------------------------------------------------------------- Thomas Ahlering, Esq., Alex Karasik, Esq., Gerald Maatman, Jr., Esq., of Seyfarth Shaw LLP, in an article for JDSupra, wrote that one of the hottest areas in workplace class actions involves criminal background checks used by employers. On one end of the spectrum, employers want to be sure they are not subjecting their businesses, employees, and clients to any potential criminal conduct by their own workers. On the other hand, many prospective employees with criminal backgrounds may have been adequately rehabilitated through the criminal justice system and merely need an opportunity to prove they can be counted on as an employee. In Little v. Washington Metropolitan Area Transit Authority, No. 14- 1289, 2017 U.S. Dist. LEXIS 48637 (D.D.C. Mar. 31, 2017), Plaintiffs alleged that a criminal background check policy used by the Washington Metropolitan Area Transit Authority ("WMATA") to screen candidates and employees was facially neutral, but had a disparate impact on African-Americans. After the Plaintiffs moved for class certification , Judge Collyer of the U.S. District Court for the District of Columbia granted Plaintiffs' motion in part and certified three classes pursuant to Rule 23(b)(2) and 23(c)(4), finding that Plaintiffs had satisfied Rule 23's requirements with respect to liability and the availability of injunctive or other declaratory relief, but that the proposed classes failed to meet the predominance requirement of Rule 23(b)(3) because the case involved "more than just the individual determination of damages." Id. at *65. The Little ruling puts employers on notice that even if their workforce is predominately made up by one protected class, their criminal background policies can still be challenged as having a disparate impact on that class for purposes of class certification. Case Background WMATA, the primary public transit agency for the Washington D.C. metropolitan region, adopted its Policy 7.2.3 to govern how and when individuals with criminal convictions can obtain or continue employment with WMATA and its contractors and sub-contractors. Id. at *4-5. Plaintiffs alleged that although the policy was facially neutral, it had a disparate impact on African-Americans. WMATA argued that the policy was adopted as a business necessity. Id. at *6. Further, WMATA argued that the make-up of its employee and contractor workforce, which included 12,000 individuals, was 75% African-American, thus demonstrating that no discrimination occurred. Plaintiffs moved for certification of a hybrid Rule 23(b)(2) and Rule 23(b)(3) class, seeking both injunctive and individual monetary damages for the alleged discriminatory policy. Id. at *16. Alternatively, if the Court determined monetary damages were not suitable for class-wide determination, Plaintiffs proposed certification under Rule 23(b)(2) for liability and injunctive relief determinations and the application for Rule 23(c)(4) to allow the question of liability to be answered on a class-wide basis (but with individual hearings on damages owed to each specific class member). The Court's Decision The Court held that certification was proper under Rule 23(b)(2) and Rule 23(c)(4) and certified three classes for a determination of liability and injunctive relief under Rule 23(b)(2), but withheld any individual damages determinations. Id. at *46. Beginning with its Rule 23(a) analysis, the Court first noted that as WMATA did not dispute Plaintiffs' assertion that the overall class included over 1,000 individuals, and each sub-class included at least 200, the Court found that Plaintiffs satisfied the numerosity requirement. Further, the Court determined that Plaintiffs satisfied the commonality requirement since the policy at issue was mandated for non-discretionary application to all hiring decisions regard the class members, regardless of whether the candidates applied for positions with different contractors, sub-contractors, or directly with the WMATA. Id. at *50. Regarding typicality, the Court concluded that the class representatives' claims were typical of the class as they addressed each part of the policy with the exception of one policy appendix, for which Plaintiffs did not present a class representative. Finally, regarding adequacy, the Court rejected WMATA's argument that the proposed named Plaintiffs were inadequate because they lacked standing, noting the merits of their allegations were not to be considered as part of the class certification calculus. Id. at *56-57. Next, the Court analyzed Plaintiffs' motion for certification of a hybrid Rule 23(b)(2) and (b)(3) class. WMATA argued that Plaintiffs failed to identify which parts of Policy 7.2.3 produced a disparate impact, and their failure to identify the particular challenged employment practice prohibited certification. Noting that each appendix to the policy constituted a separate employment practice, and that Plaintiffs identified three appendices to the policy that allegedly had a disparate impact on African-Americans, the Court found that Plaintiffs satisfied their burden under Rule 23(b)(2). Id. at *59-60. However, the Court held that Plaintiffs failed to meet the predominance requirement under Rule 23(b)(3) and therefore refused to certify the class for monetary damages. Id. at *65-66. Specifically, the Court reasoned that the case involved "more than just the individual determination of damages" -- namely, the trier of fact must also determine, for each individual class member, whether that class member was not hired or fired due to the Policy 7.2.3., or for some other reason. Accordingly, the Court granted in part Plaintiffs' motion for class certification and certified three classes under Rule 23(b)(2) and Rule 23(c)(4) with respect to liability and the availability of injunctive relief. Implications For Employers This ruling illustrates that even if a majority of an employer's workforce is part of a protected class, an employer's policies potential can still be considered to have a disparate impact on that class for purposes of Rule 23 class certification. Plaintiffs will likely use this ruling in subsequent motions for class certification in class actions involving the disparate impact of criminal background policies. As such, employers should be cognizant of the effect of its policies, and continue to ensure they are neutrally applied. WELLS FARGO: Former Executives Criticized in Fake Accounts Probe ---------------------------------------------------------------- Ken Sweet, writing for The Associated Press, reports that the problems at Wells Fargo and its overly aggressive sales culture date back at least 15 years, and management had little interest in dealing with the issue until it spiraled out of control resulting in millions of accounts being opened fraudulently, according to an investigation by the company's board of directors. The bank's board also clawed back another $75 million in pay from two former executives, CEO John Stumpf and community bank executive Carrie Tolstedt, saying both executives dragged their feet for years regarding problems at the second-largest U.S. bank. Both were ultimately unwilling to accept criticism that the bank's sales-focused business model was failing. The 110-page report has been in the works since September, when Wells acknowledged that its employees opened up to 2 million checking and credit card accounts without customers' authorization. Trying to meet unnaturally high sales goals, Wells employees even created phony email addresses to sign customers up for online banking services. "(Wells' management) created pressure on employees to sell unwanted or unneeded products to customers and, in some cases, to open unauthorized accounts," the board said in its report. Many current and former employees have talked of intense and constant pressure from managers to sell and open accounts, and some said it pushed them into unethical behavior. The April 10 report backs up those employees' stories. "It was common to blame employees who violated Wells Fargo's rules without analyzing what caused or motivated them to do so . . . (or determine) whether there were responsible individuals, who while they might have no directed the specific misconduct, contributed to the environment (that caused it)," the board said. The report also says that problems in the bank's sales culture date back to at least 2002, far earlier than what the bank had previously said. And that Mr. Stumpf knew about sales problems at a branch in Colorado since at least that year. Wells Fargo's CEO, Tim Sloan, said in a conference call with reporters it was "frustrating" to hear that the bank may have had sales problems dating back so long ago. The bank has already paid $185 million in fines to federal and local authorities and settled a $110 million class-action lawsuit. The scandal also resulted in the abrupt retirement last October of Mr. Stumpf, not long after he underwent blistering questioning from congressional panels. The bank remains under investigation in several states and by federal authorities. The board's report recommended that Mr. Stumpf and Ms. Tolstedt have more of their compensation clawed back for their negligence and poor management. Ms. Tolstedt will lose $47.3 million in stock options, on top of $19 million the board had already clawed back. Mr. Stumpf will lose an additional $28 million in compensation, on top of the $41 million the board already clawed back. Along with the millions clawed back from other executives earlier this year, the roughly $180 million in clawbacks are among the largest in U.S. corporate history. The board was unrelenting in their criticism of Mr. Stumpf and Ms. Tolstedt, saying that both, when presented with the growing problems in Wells' community banking division, were unwilling to hear criticism or consider changes in behavior. The board repeatedly faulted Ms. Tolstedt, calling her "insular and defensive" and unable to accept scrutiny from inside or outside her organization. The board also found that Ms. Tolstedt actively worked to downplay any problems in her division. In a report made in October 2015, nearly three years after a Los Angeles Times investigation uncovered the scandal, Ms. Tolstedt "minimized and understated problems at the community bank." When the scandal first broke, Wells said it had fired roughly 5,300 employees as a result of the sales practices. But when that figure was revealed it was the first time that the board of directors had heard the sales practices problems were of such a large size and scope. According to the report, as recently as May 2015, senior management told the board that only 230 employees had been fired for sales practices violations. Ms. Tolstedt declined to be interviewed for the investigation, the board said, on advice from her lawyers. Ms. Tolstedt did issue a statement to the media, however, disputing the board's conclusions. "We strongly disagree with the report and its attempt to lay blame with Ms. Tolstedt. A full and fair examination of the facts will produce a different conclusion," said Enu Mainigi with the law firm Williams & Connolly. Mr. Stumpf also received his share of criticism. In its report, the board found that Mr. Stumpf was also unwilling to change Wells' business model when problems arose. "His reaction invariably was that a few bad employees were causing issues . . . he was too late and too slow to call for inspection or critical challenge to (Wells') basic business model," the board said. Mr. Stumpf, however, did not seem to express regret for how he handled those initial weeks after the bank was fined, including where he initially levied most of the blame on low-level employees for the sales practices problems instead of management, said Stuart Baskin, lawyer with Shearman & Sterling, the firm that the board hired to investigate the sales scandal. The investigation found that Wells' corporate structure was also to blame. Under Mr. Stumpf, Wells operated in a decentralized fashion, with executives of each of the businesses running their divisions almost like separate companies. While there is nothing wrong with operating a large company like Wells in a decentralized fashion, the board said, the structure backfired in this case by allowing Ms. Tolstedt and other executives to hide the problems in their organization from senior management and the board of directors. Wells has instituted several corporate and business changes since the problems became known nationwide. Wells has changed its sales practices, and called tens of millions of customers to check on whether they truly opened the accounts in question. The company also split the roles of chairman and CEO. Tim Sloan, Wells' former president and chief operating officer, took over as CEO. Stephen Sanger, who had been the lead director on Wells' board since 2012, became the company's independent chairman. Since taking that position, Mr. Sanger has clawed back tens of millions of dollars in stock awards and compensation due to Mr. Stumpf and Ms. Tolstedt. In January, the board took the unusual action of publicly firing four executives whom the board said had major roles in the bank's sales practices at the center of the scandal. It also cut bonuses to other major executives, including Mr. Sloan. However, the board's concluded that Mr. Sloan had little direct involvement in the questionable sales practices. Mr. Sanger said on April 10 that, with the release of the report, the board would take no more actions to fire management who may have been involved with the sales scandal. However, Mr. Sloan said that the bank was still reviewing records and some management has been fired in recent months. Notably, Mr. Sloan said that the bank actually had hired back roughly 1,000 employees who may have been dismissed for not meeting those unrealistic sales quotas, or those who may have left on their own accord because they did not want to violate their ethics. The report is unlikely to quell the criticism aimed at Wells Fargo. The bank is still under investigation by Congress, state and federal authorities. And last week an influential shareholder advisory firm said investors should vote out nearly the entire board of directors when the bank holds its annual shareholder meeting later this month. Better Markets, a left-leaning group that wants stricter regulations on banks, called the report "grossly deficient" and said it was "too little, too late." WOOD GROUP: Certification of Class Sought in "Kibodeaux" Suit ------------------------------------------------------------- In the lawsuit styled MICHAEL KIBODEAUX, individually and on behalf of all others similarly situated, the Plaintiff, v. WOOD GROUP PRODUCTION AND CONSULTING SERVICES, INC. the Defendant, Case No. 4:16-cv-03277 (S.D. Tex.), Kibodeaux asks the Court to conditionally certify a class consisting of: "all persons who worked for Wood Group Production and Consulting Services, Inc., as Drilling Consultants, Completions Consultants, and/or Construction Consultants who were classified as independent contractors and paid a day-rate at any time from 2014 to the present. The Plaintiff worked for the Defendant, regularly working more than twelve-hour days for weeks at a time. Wood Group paid Kibodeaux for these long hours on a day-rate basis, paying him a flat amount for all hours that he worked in a single day, even though day-rate workers like Kibodeaux are entitled to overtime under the Fair Labor Standards Act (FLSA). Kibodeaux's claims are straightforward: Wood Group's compensation plan for day-rate workers like himself (namely, its Drilling, Completions, and Construction Consultants) violated the FLSA because it failed to pay these workers overtime. Kibodeaux seeks conditional certification under the FLSA and authorization to send notice to other putative plaintiffs so that they may learn of (and potentially join) this matter before their statutes of limitations expire. Because Wood Group denied Kibodeaux and the putative class of day- rate workers overtime under its uniform compensation policy, these workers are similarly situated. The Court should thus allow Kibodeaux to send Court-approved notice of this action to the putative class members informing them of their rights and providing them the opportunity to make a claim for unpaid wages. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0NSIZfKf The Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352 1100 Facsimile: (713) 352 3300 E-mail: cmjosephson@mybackwages.com litkin@mybackwages.com - and - Richard J. (Rex) Burch BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877 8788 Facsimile: (713) 877 8065 E-mail: rburch@brucknerburch.com WOOLWORTHS: Class Action Mulled Over 2015 Profit Downgrade ---------------------------------------------------------- Georgia Wilkins, writing for Sydney Morning Herald, reports that Woolworths' disastrous foray into hardware continues to haunt the retail giant after law firm Maurice Blackburn revealed plans for a $100 million class action against Australia's biggest supermarket chain. Despite closing the doors on its loss-making Masters Home Improvement business last year, the proposed class action relates to alleged breaches of the Corporations Act dating back to Woolworths' shock profit downgrade in early 2015 and attempts to stem big losses from its hardware operation. By late 2014, analysts were reporting Woolworths was putting up margins at the supermarket chain, cutting staffing levels and leaning on suppliers in an attempt to make up burgeoning losses at its failed Masters Home Improvement chain and Big W. Shopper backlash to price increases and a broader deterioration across the supermarket chain gained momentum between December 2014 and January 2015, eventually forcing the retailer's management to cut its full-year earnings outlook in February 2015. Woolworths' shares dived 13.7 per cent in the wake of the profit downgrade. One analyst said Woolworths eventually confessed to being too focused on meeting short-term earnings targets but the insight came too late to prevent many shoppers abandoning the chain, creating an opening for Wesfarmers' Coles business to exploit. "They just kept on trying to meet earnings targets by going back to the milking cow that was the supermarkets business," one analyst said. The proposed class action could exceed $100 million, Maurice Blackburn said on April 11. It has opened a registration portal for shareholders to sign up to the claim. While Maurice Blackburn's investigation continues, the law firm alleged Woolworths knew that it was significantly behind its profit projections as early as October 2014 but continued to maintain its profit guidance until the publication of its half- year accounts in February 2015. "When corporations don't abide by the laws requiring they make timely and accurate market disclosures, these aren't mere technical breaches -- it causes loss to shareholders, undermines the integrity of the market and distorts the efficient allocation of capital that could go to more deserving companies," Maurice Blackburn principal Andrew Watson said. "The end result is that shareholders, both individual everyday Australians and large institutional investors entrusted with members' savings such as large superannuation funds, unwittingly suffer the consequences and lose out in a major way." Fears the poor performance of Masters was hurting Woolworths' core supermarket business surfaced after the supermarket chain reported soft first-quarter sales in late 2014, prompting a number of analysts to question whether the retail giant would meet its full- year net profit guidance. In a research note from December 3, less than a week after Woolworths reaffirmed its full-year guidance, Bank of America Merrill Lynch analyst David Errington slashed the earnings outlook for the retailer by 5 per cent for fiscal 2016 and 13 per cent for fiscal 2017. Merrill Lynch forecast the 2015 full-year net profit after tax would grow by 4.5 per cent, at the bottom end of the retail giant's guidance of between 4 and 7 per cent growth. "The key reason for our earnings downgrade are our view of the continued deterioration of Woolworths' non-supermarket business, notably Masters and Big W and the reduced ability in our view of Woolworths supermarkets to continue increasing margins," Mr Errington said. "In our view, continuing to drive margins higher in Australian supermarkets is seeing a loss in competitive position, leading to deteriorating sales and ultimately a fall in margins." Woolworths cut its full-year net profit after tax guidance to the "lower end" of analyst forecasts as part of its half-year results in February 2015. The retailer's 2015 full-year net profit before one-off costs inched up by just 0.1 per cent to $2.45 billion, while its full- year net profit slumped 12.5 per cent to $2.15 billion, thanks to big losses at the Masters chain. IMF Bentham has proposed to fund the class action, which would deal with claims of alleged misleading or deceptive conduct and alleged breaches of continuous disclosure laws between November 27, 2014 and February 26, 2015. Senior investment manager at IMF Bentham, Wayne Attrill, said like all shareholder class actions, it would proceed only if enough shareholders signed up. "This is a chance for investors who believe they were deprived of information on the true state of affairs of the company standing up and being able to access a meaningful redress," Mr Attrill said. Woolworths on April 11 said it had not been served with proceedings and would defend any action. "Woolworths considers that it has, at all times, complied with its continuous disclosure obligations," the company said in a statement. The class action follows failed action against Woolworths by the Australian Competition and Consumer Commission. According to Maurice Blackburn, Woolworths said in its defence to the ACCC proceedings that it had forecast in October 2014 that there would be a variance in its gross profit before freight of $53 million. The competition watchdog's case was launched in December 2015 and related to the company's dealings with suppliers to plug a profit shortfall after discovering a $50 million hole in its books. The Federal Court last year ruled the conduct towards suppliers was not unconscionable. Australian Shareholders' Association director Allan Goldin said he would watch the case closely. "If continuous disclosure didn't happen, then we are obviously very concerned," he said. Class actions need seven or more people to run, but their financial viability depends on the size of shareholder losses. Maurice Blackburn would not say whether any institutional shareholders were behind the action. * Workers of Gig Economy Companies Fight for Labor Rights --------------------------------------------------------- The New York Times reports that the promises Silicon Valley makes about the gig economy can sound appealing. Its digital technology lets workers become entrepreneurs, we are told, freed from the drudgery of 9-to-5 jobs. Students, parents and others can make extra cash in their free time while pursuing their passions, maybe starting a thriving small business. In reality, there is no utopia at companies like Uber, Lyft, Instacart and Handy, whose workers are often manipulated into working long hours for low wages while continually chasing the next ride or task. These companies have discovered they can harness advances in software and behavioral sciences to old- fashioned worker exploitation, according to a growing body of evidence, because employees lack the basic protections of American law. A recent story in The Times by Noam Scheiber vividly described how Uber and other companies use tactics developed by the video game industry to keep drivers on the road when they would prefer to call it a day, raising company revenue while lowering drivers' per-hour earnings. One Florida driver told The Times he earned less than $20,000 a year before expenses like gas and maintenance. In New York City, an Uber drivers group affiliated with the machinists union said that more than one-fifth of its members earn less than $30,000 before expenses. Gig economy workers tend to be poorer and are more likely to be minorities than the population at large, a survey by the Pew Research Center found last year. Compared with the population as a whole, almost twice as many of them earned under $30,000 a year, and 40 percent were black or Hispanic, compared with 27 percent of all American adults. Most said the money they earned from online platforms was essential or important to their families. Since workers for most gig economy companies are considered independent contractors, not employees, they do not qualify for basic protections like overtime pay and minimum wages. This helped Uber, which started in 2009, quickly grow to 700,000 active drivers in the United States, nearly three times the number of taxi drivers and chauffeurs in the country in 2014. Opinion Today The use of independent contractors is hardly an innovation. Traditional businesses like garment factories, construction companies and trucking have often misclassified employees as contractors to avoid offering benefits, paying payroll taxes and abiding by labor laws. What makes this different is that gig economy businesses are arguing that their use of the independent contractor model is in fact better for workers. Increasingly workers, and government agencies are pushing back. Seattle passed an ordinance in 2015 allowing drivers for Uber, Lyft and other ride-hailing apps to unionize. A federal judge temporarily blocked that law on April 11 after the U.S. Chamber of Commerce and some conservative groups filed lawsuits against the city. Workers have also sued various gig economy companies to seek overtime pay, reimbursement for expenses and other damages. Lyft recently agreed to pay $27 million to settle a class-action lawsuit brought by drivers in California. Legislation and lawsuits might ensure that traditional labor laws are applied to the gig economy. But a few smaller companies, like Hello Alfred, which dispatches people to do household chores, and Managed by Q, which provides office maintenance and cleaning services, are taking steps on their own, by treating workers as employees. They say that this lowers turnover and improves the quality of their services. Over time even bigger companies like Uber, many of which lose money and rely on investors to keep pouring in billions of dollars of capital, might find that it pays to treat workers better and even make some of them employees. But so far, experience with these companies shows that without the legal protections and ethical norms that once were widely accepted, workers will find the economy of the future an even more inhospitable place. * Blake Cassel Attorneys Discuss 2016 Pharma Class Action Rulings ----------------------------------------------------------------- Robin Linley, Esq., and Jessica Lam, Esq., of Blake, Cassels & Graydon LLP, in an article for Mondaq, wrote that the end of 2016 brought with it some good news for the defence in respect of pharmaceutical class actions, including a successful defence verdict in the first pharmaceutical product liability common issues trial in Canada. In 2016, Canadian courts also signalled a willingness to embrace summary judgment as a potential tool for early resolution of class proceedings and confirmed once again that an innovator (brand name) manufacturer does not owe a duty of care to generic users of the medicine. Defendants also achieved significant successes in resisting certification of proposed pharmaceutical class actions, despite the frequent certification of such actions in Canada. The key decisions from 2016 in respect of pharmaceutical class actions are briefly summarized below. 1. SUMMARY JUDGMENT AS A POTENTIAL TOOL IN CLASS PROCEEDINGS Two decisions in 2016 show the Ontario courts embracing the cultural shift called for by the Supreme Court of Canada in Hryniak v. Mauldin, and the move away from the conventional trial, in the interests of fairness and proportionality. In Wise v. Abbott Laboratories Limited (Wise),the representative plaintiff brought a proposed class action against Abbott Laboratories (Abbott) alleging that AndroGel", a testosterone replacement therapy for the treatment of hypogonadism (testosterone deficiency) in men, caused serious cardiovascular events, such as heart attacks and strokes, and that AndroGel was sold by Abbott as a remedy for "LowT", despite having no therapeutic benefits. Abbott denied all claims of negligence and brought a motion for summary judgment in advance of certification to dismiss the action on a number of grounds including that the plaintiff could not prove general causation, a constituent element in all product liability claims. Ultimately, Justice Perell of the Ontario Superior Court of Justice granted the defendant's motion, concluding, among other reasons, that there was no genuine issue requiring a trial because there was insufficient evidence of general causation. 2016 also saw plaintiffs embracing summary judgment on the general causation issue. In Levac v. James (Levac), the Ontario Superior Court of Justice not only certified the action, but also granted the plaintiff partial judgment against the defendant doctor. While not a pharmaceutical case, the motion has potential application in that context. The action arose from an infectious disease outbreak at a clinic where the defendant doctor administered epidural injections. The representative plaintiff alleged that the doctor, who was personally colonized with the bacteria, was responsible for the outbreak and was negligent because he implemented substandard infection prevention and control practices. On the summary judgment motion, the court found that the doctor owed a duty of care to class members, that he breached this duty and that general causation had been established for all class members. On the evidence, there was no dispute that the doctor's breach of the duty of care could be a source of harm to patients, making the case appropriate for summary judgment. The Ontario Superior Court of Justice not only found that general causation had been established for all class members, but that specific causation had also been established for those class members who were infected with the same bacteria as the doctor -- a finding that was made in the absence of individual issues trials. Both Wise and Levac suggest that we can expect to see greater use of summary judgment motions in the pharmaceutical class action context. 2. REJECTION OF INNOVATOR LIABILITY FOR GENERIC USE In the 2016 decision in Brown v. Janssen (Brown), the Ontario Superior Court of Justice confirmed Goodridge v. Pfizer Inc. (Goodridge) -- that an innovator brand name drug manufacturer owes no duty of care to consumers of generic versions of the drug manufactured and sold by a generic competitor. The decision is one of the few cases in Canada to date to consider innovator liability. In Brown, the plaintiffs' proposed class action alleged that the antipsychotic medicine Risperdal(R) caused gynecomastia, a condition of male breast growth, and that the defendants failed to adequately warn consumers of both Risperdal and generic risperidone about the risk of developing gynecomastia. The plaintiffs pleaded that the defendants knew or ought to have known that manufacturers of generic risperidone "would be bound by Health Canada's regulations to reproduce exactly in the product monographs for generic risperidone the safety data in the product monographs for Risperdal, such that prescribers and consumers of generic risperidone would necessarily be relying on safety data presented by the defendants in the product monographs for Risperdal." The innovator defendants in Brown argued that Goodridge and other cases had already refused to impose a duty of care on a manufacturer for products manufactured by others, and that even if the court wished to reconsider the question of innovator liability, no such duty of care should be recognized. Among other arguments, the defendants argued that allowing such liability would make brand name manufacturers de facto insurers for the whole industry, and that this involved policy choices more appropriately within the legislative domain. The court in Brown ultimately granted the defendants' request to strike all allegations of innovator liability in the plaintiffs' amended claim on the grounds that the plaintiffs' claims relating to generic risperidone had no reasonable chance of success. A similar victory in favour of innovators was also obtained this past year at a trial in Quebec. In Brousseau c. Laboratoires Abbott ltee (Brousseau), the first pharmaceutical product liability common issues trial in Canada (discussed below), the Superior Court of Quebec affirmed that individuals who consumed generic versions of a drug have no claim against the manufacturer of the innovator drug under Quebec civil law. 3. OPPOSING CERTIFICATION 2016 also saw important defence verdicts in respect of proposed class certification. While pharmaceutical class actions are frequently certified in Canada, three proposed class actions were denied certification in 2016. In Batten v. Boehringer Ingelheim (Canada) Ltd. (Batten), the plaintiffs sought certification of a class action related to the anticoagulant drug, Pradaxa(R). The plaintiffs alleged that Pradaxa(R) carried the risk of excessive bleeding and that Boehringer breached its duty to warn that there was no antidote for the drug. At the certification motion, the Ontario Superior Court of Justice rejected this claim, finding on the evidence that there was no basis in fact to conclude that the absence of an antidote was a danger in the ordinary use of the medicine, and even if the absence of an antidote was a danger in ordinary use, there was no basis in fact to conclude that the absence of an antidote was a danger common to all class members. The proposed common causation issue also failed the commonality test because of the absence of a methodology to prove general causation. Accordingly, the court denied certification. In Harrison v. Afexa Life Sciences Inc. (Harrison), the British Columbia Supreme Court denied class certification in a case involving the over the counter product Cold- Fx. The plaintiff alleged that the labelling, packaging and marketing of Cold-Fx misled the proposed class of purchasers of the product into believing that the product provided "immediate relief" of cold and flu symptoms. On the evidence, however, the court found that the class definition was overly broad because not all of the Cold- Fx products sold during the relevant time contained the alleged misrepresentations. Furthermore, not all purchasers of Cold-Fx would have purchased the product for short term relief or because of the alleged representations and not all were purchasers dissatisfied with the product. Moreover, the court found that the representative plaintiff could not fairly and adequately represent the class because she appeared to be no more than a placeholder and the litigation plan for advancing the action was "boilerplate". The plaintiff has appealed the decision. In Baratto c. Merck Canada inc. (Baratto), the plaintiff sought authorization to institute a class action for all persons residing in Quebec who were prescribed Propecia(R) and/or Proscar(R) prior to November 18, 2011 for the treatment of baldness. The plaintiff alleged that the defendant failed to adequately advise class members of the health risks associated with the use of the medications, including depression and erectile dysfunction. The Superior Court of Quebec refused to authorise the proposed class action, concluding that the plaintiff's allegations were purely hypothetical, including the fact that there were numerous alternative possible causes for his problems. The court further held that an analysis of the evidence of proposed members of the class could only be done on an individual basis, such that a class action would be ill-suited to advance the rights of class members. The plaintiff has appealed the decision. The 2016 decisions in Batten, Harrison, and Baratto reaffirm that certification of a pharmaceutical class action is not guaranteed and that Canadian court will exercise an important gatekeeper function at the certification stage. Despite the welcomed decisions in Batten, Harrison, and Baratto, the Nova Scotia Supreme Court certified a proposed class action after allowing the plaintiffs leave to file supplemental evidence on the identifiable class criterion. In Sweetland v. GlaxoSmithKline Inc., the plaintiffs alleged that Avandia(R), a medication for the treatment of Type 2 diabetes, caused cardiovascular events including heart failure, heart attacks and strokes, and that the defendants were liable for negligent design, negligent distribution and marketing, and waiver of tort. At the initial certification hearing in 2015, the court refused to certify the action, but "in the interests of fairness", permitted the plaintiffs to supplement evidence related to the identifiable class criterion, and to file a revised list of common issues. Furthermore, the court refused to dismiss the possibility of compensation based upon waiver of tort at the certification stage, and deferred the matter to the common issues trial. At the second certification hearing, the court held that it was satisfied that the evidence provided by the plaintiff, including two affidavits from individuals who were prescribed Avandia, remedied the deficiencies noted in the first certification decision to establish the existence of two or more class members. Similarly in Dembrowski v. Bayer Inc., the Saskatchewan Court of Queen's Bench, at the initial certification hearing, granted leave to the plaintiff to file a revised litigation plan after finding that the other certification criteria had been met. At the second certification hearing, the court certified the proposed action, concluding that with some amendments, the second litigation plan was sufficient to meet the certification criteria. 4. FIRST PHARMACEUTICAL PRODUCT LIABILITY COMMON ISSUES TRIAL IN CANADA A report of the defence successes of 2016 in pharmaceutical cases would also be incomplete without reporting on the 2016 decision of the Superior Court of Quebec in Brousseau. As noted above, Brousseau was the first ever decision of a Canadian court ruling on the merits of a pharmaceutical product liability common issues trial. In Brousseau, the plaintiffs alleged that class members experienced certain psychiatric reactions while taking the drug, Biaxin(R), and that Abbott Laboratories failed to sufficiently inform users of the risk of these reactions. The Superior Court of Quebec dismissed the action, concluding that the plaintiffs had not met their burden of proof with respect to causation. The court held that the inclusion of side effects in the product monograph was not proof that the manufacturer believed there to be a causal link between the drug and the side effect and that the mere possibility of a causal link (e.g., evidence of case reports) was insufficient to prove general causation on a balance of probabilities. The plaintiffs requested an appeal of the decision, which was rejected by the Quebec Court of Appeal. The decision highlights that once a product liability case is certified, plaintiffs must still establish causation with credible and convincing scientific and expert evidence at trial. Summary The defence can be encouraged by these decisions, which suggest that certification of a pharmaceutical class action is not guaranteed. Where appropriate, the defence may also be encouraged to take cases to a merits hearing -- either on a motion for summary judgment or trial. Canadian courts have made clear that plaintiffs must establish issues such as causation based on solid scientific and expert evidence in order to be successful on the merits. * Class Actions Mulled v. UK Councils Over Term-Time Holidays ------------------------------------------------------------- Harry Yorke and Luke Mintz, writing for The Daily Telegraph, report that parents who face fines for taking children on term- time holidays are to launch a legal class action against the councils who misled them, a law firm has revealed. Solicitors at Simpson Millar told The Daily Telegraph they are preparing a group law suit against local authorities who allegedly issued misleading guidance to parents which seemed to say it was permissible to take children out of school without headteachers' approval. The disclosure comes days after the Supreme Court ruled parents cannot take children on term-time holiday without the school's authorisation, regardless of previous good attendance. That decision had seemed to conclude a two-year legal battle between businessman Jon Platt and the Isle of Wight Council, after he refused to pay a GBP120 fine for taking his six-year-old daughter to Disneyland Florida. During Mr Platt's case, as many as 28 education authorities relaxed their truancy policy -- despite explicit requests from central government not to do so -- with several telling parents they would not be prosecuted so long as the child's attendance was above a given threshold. Now those authorities are reviewing their policies to reflect the Supreme Court ruling, meaning parents who were told last year that they could book term-time holidays, may now be prosecuted for taking them. The councils involved said they had not intended to mislead and were now reviewing their guidance pending Department for Education clarification. They include Wakefield Council, which said that 85 percent attendance would be considered "regular"; Trafford, which permitted 90 percent, and Derbyshire County Council, which said it would accept 94 percent. Patrick Campbell, of Simpson Millar, said parents now faced being "punished retrospectively", adding councils had left the door open to a wave of legal actions. "This has created an unfair situation for parents who have sought guidance from their local authority and have relied on that guidance, only to be subsequently told that they could now be prosecuted," he added. "We have been contacted by a number of parents and are looking into a potential class action." The Department for Education said it had made its position clear to councils throughout Mr Platt's legal battle, adding that it had continually stated that "no child should be taken out of school without good reason". At the time of the High Court ruling last year, Mr Gibb also wrote to councils and headteachers to advise that the High Court did not establish a "hard and fast rule" on whether attendance over 90 percent was grounds for them to avoid prosecution. He said that he expected councils to "refuse" parents asking for a refund of previous fines they had been issued, adding that children should only be taken out of school in "exceptional circumstances". "I am clear that we need to continue reducing absence, building on the success schools and local authorities have already achieved, to support attainment and ensure all pupils fulfil their potential," he added. * Class Action Costs Under BIC Between $70MM-$150MM Each Year ------------------------------------------------------------- Meghan Milloy, Director of Financial Services Policy at the American Action Forum, reports that the fiduciary rule is the most expensive regulatory action of 2016 and the second most expensive non-environmental rule since 2005. It has the potential to increase consumer costs by $46.6 billion, or $813 annually per account, in addition to the $1500 in duplicative fees for retirement savers that have already paid a fee on their commission-based accounts. Based on a minimum balance requirement of $30,000, the rule could force 28 million Americans out of managed retirement accounts completely. Even with a minimum account balance of $5,000, over 13 million would lose access to managed retirement accounts. Wealth management firms covered under the fiduciary rule will see annual litigation costs up to $150 million as a result of class- action lawsuits stemming from the Best Interest Contract Exemption, in addition to the cost of wasted resources and foregone opportunities due to the uncertainty of litigation. Introduction As we approach the originally-scheduled effective date of the Department of Labor's (DOL) now delayed fiduciary rule, interested parties should not lose sight of why this rule has faced so much push back for the past several years. The American Action Forum (AAF) has previously written that the fiduciary rule will not only reduce investors' access to investment advice and investors' choice in investment products, but that it will also cost investors upwards of $1500 in duplicative fees. As more and more financial companies announce their plans to either leave the retirement advice market completely or draw down their advisory business, it is important to drill down to what this rule and its unintended consequences will really mean for consumers, especially low and middle income consumers who benefit most from retirement advice. When the fiduciary rule was originally finalized in 2016, it was (and still is) the most expensive regulation that year, with $31.5 billion in total costs and $2 billion in annual burdens. Although the rule has not yet become effective, AAF research has found that three major companies have left part of the brokerage business, and six more are drawing down their business or switching to a fee-based arrangement. From these companies alone, reported compliance costs have already topped $100 million, affecting 92,000 investment advisors, $190 billion in assets, and at least 2.3 million consumers. Advocates for DOL's fiduciary rule argue that it is necessary to prevent bad actors from acting in their own best interest instead of that of their clients. They argue that without it, consumers will be cheated out of a portion of their retirement savings by being conned into investments that don't work for them. On its face, a fiduciary standard is widely supported throughout the industry. The problem with DOL's fiduciary rule is not the requirement to act in a client's best interest, but the dissuasion of commission-based accounts and the imposition of the Best Interest Contract (BIC) Exemption, which opens up financial advisors to the risk of a litigious clientele. Despite its length and complexity, the fiduciary rule can be broken down into two paths of compliance for advisors: 1) Moving to a primarily fee-based model or 2) Entering into the BIC with clients. The consequences resulting from each of these options are explored in detail below. 1. Moving to a primarily fee-based model Created by the Employee Retirement Income Security Act of 1974 (ERISA), individual retirement accounts (IRAs) have become an integral part of Americans' retirement saving strategies. Based on data from the Internal Revenue Service (IRS), by the end of 2014, 57.3 million Americans own at least one IRA all totaling nearly $7.3 trillion in assets. In 2011, a survey of 25.3 million IRA accounts found that a large majority of IRA investors opted for a commission-based instead of a fee-based arrangement, and that those investors with lower IRA account balances preferred a commission-based arrangement at even higher levels than those with higher account balances as seen in the chart below. Source Oliver Wyman Study, 2011 In a 2014 study, the Investment Company Institute (ICI) found that nearly 23 percent of the 57.3 million Americans with IRAs have balances less than $5,000, over 42 percent have less than $20,000, and almost 74 percent have less than $100,000. Source: ICI's IRA Investor Database All of this data is important to the fiduciary rule's effects on consumers because the fiduciary rule will force many investment advisors to move away from a commission-based model to a fee-based model in order to avoid any possibility of an apparent conflict of interest. In fact, some firms have already announced that they are doing away with their commission-based IRAs entirely. This presents two major problems for consumers. First, fee-based accounts are much more expensive for investors. As Morningstar explains, fee-based accounts yield upwards of 50 percent more revenue for firms than commission-based accounts because "[f]ee- based accounts are already under a fiduciary standard of care that is defined by the Securities Exchange Commission (SEC). This SEC fiduciary standard requires increased monitoring, legal liability, and typically is accompanied with a higher service level than commission-based accounts, so clients are charged more." By way of background, the reason DOL is involved in a developing a fiduciary standard is because of its oversight of ERISA and the retirement plans under it, which are the only ones covered by this rule. One study found that advisors earn .54 percent on commission-based accounts versus 1.18 percent on fee-based accounts. With nearly $7.3 trillion of assets in IRAs, that's a difference between consumers paying a total of $39.4 billion or $86 billion in fees each year, an average of $813 per IRA account holder -- an unaffordable amount for many. The second major problem is that because fee-based accounts mean increased monitoring, liability, and servicing, advisors will be forced to require higher minimum account balances in order to remain financially viable. For example, Edward Jones will require investors to have $100,000 in retirement assets to open a fee- based IRA, whereas other firms will require minimum balances of $20,000 or $30,000. Looking back at the third chart above, even with a minimum account balance requirement of $20,000 that leaves over 42 percent of IRA investors will be forced out of managed retirement accounts, and almost half if that minimum is increased to $30,000. Even with a minimum balance of just $5000, over 13 million accounts will fail to qualify for managed advice. In 2013 the Retail Distribution Review initiative (RDR) was implemented in the United Kingdom. It's not an exact match of DOL's fiduciary rule, in that it explicitly forbids commission- based accounts, but it is a close comparison. Since the RDR was implemented, several studies have been conducted looking at its effects on investment advisors and their clients. Without getting bogged down in the details because it is an imperfect comparison, it would be remiss ignore them completely. The UK's Financial Conduct Authority (FCA) conducted a review in 2016 of the changes in the retirement advice market as a result of the RDR. One of the more telling findings is that "over the last two years, the proportion of firms who ask for a minimum portfolio of more than GBP100,000 has more than doubled, from around 13 percent in 2013 to 32 percent in 2015. The FCA's recent survey of advisors also supports this, suggesting that 45 percent of firms very rarely advise customers on retirement income options if those customers have small funds (i.e. less than GBP30,000) to invest." Another review of the RDR's impact on the UK's financial advice market conducted by the Cass Business School at the City University London found that the enhanced requirements on advisors will drive advisors out of the investment advice market completely. "Advisor numbers fell from 40,000 at the end of 2011 to 31,000 by the start of 2013: we find that the remaining financial advisors are unduly optimistic about their own business prospects in the RDR world." Further, they found "that the average advisor expects to garner around GBP1,500 from each of roughly 150 clients to sustain the GBP220,000 of gross revenue that they tell us they require to function as a business. With fees averaging approximately 1 percent of assets under advisory this means that the average client will need to have around GBP150,000 in investible assets on average." In sum, the fiduciary rule will force many IRA investors into fee- based accounts which, at a minimum, will noticeably increase the amount they pay their advisor each year, and, at a maximum, will cut them out of the investment advice market completely. Considering that the IRAs with the lowest account balances will be hit the hardest, it's a reasonable conclusion that the fiduciary rule will end up hurting those low to middle income retirement savers that it was intended to protect the hardest. 2. Entering into the BIC with clients The second option presented to investment advisors by the fiduciary rule is to enter into the BIC with their clients. Like the rule itself, on its face, the BIC sounds good -- a best interest contract between advisor and advisee. But in reality the BIC will open the door to litigation, especially to class action lawsuits. Specifically, the BIC exemption purports to "allow entities such as registered investment advisors, broker-dealers, banks and insurance companies . . . and their employees, agents and representatives . . . that are ERISA or Code fiduciaries by reason of the provision of investment advice, to receive compensation that may otherwise give rise to prohibited transactions as a result of their advice to plan participants and beneficiaries, IRA owners and certain plan fiduciaries . . . " In other words, the BIC exemption allows advisors to provide investment advice which on its face may seem conflicted so long as they enter into a contract with their client stating that it is in fact in their best interest, and, if it's not, their client can sue them for breach of contract. And while it does allow for the inclusion of mandatory arbitration clauses, the BICs cannot waive the client's ability to file or participate in a class action lawsuit. In 2016 alone, nearly 4000 FINRA arbitration cases were filed by consumers alleging some wrongdoing by their broker-dealers, yet only 158 cases were decided in favor of the consumer, which means many broker-dealers spent significant time and money defending themselves, perhaps unnecessarily. One could expect BIC litigation to fall along the same lines, but with the added threat of class action lawsuits and, at times, their resulting settlements. One study estimated the costs of class action lawsuits under the BIC using historical restitution data from wealth management firms, claims on implied errors and omissions insurance policies, DOL monetary estimates, and previous settlements on retirement plan class actions. It found that the long-term costs for class action lawsuits is between $70 million and $150 million each year -- in addition to DOL's estimate of $1.5 billion in ongoing costs. The study goes on to say that the near-term class action settlements could exceed the long-term estimates by a multiple "as firms try to figure out how to determine, demonstrate, and document best interest." Some strategic litigation could force targeted investment advisors into some extremely costly settlements -- not as a result of their malpractice, but as a result of gray area in the law of the fiduciary rule and the BIC. The same study estimates that near-term class action settlements could decrease the operating margins on commission-based IRAs by 24 to 36 percent. Strangely, proponents of the fiduciary rule seem to view the litigation risk as a positive product of the rule. Barbara Roper of the Consumer Federation of America has been on record saying, "That enforceable [Best Interest] Contract provides a hook for litigation." And AARP has said that the provision which bars the ability to waive class action liability is "one among several steps" that DOL is taking to "curb companies' efforts to shield themselves . . . through the fine print." In an effort to curb potential litigation costs, investment advisors may purchase liability insurance. DOL's cost estimates pin the increase in premiums at approximately 10 percent, or $300 per year, but independent studies estimate that number to be much higher. In an Oxford Economics study, researchers found that the potential cost of litigation stemming from the fiduciary rule was the greatest concern to investment advisors, largely because it is the area of the greatest unknown. Due to that uncertainly, the study does not give an exact estimate of the increase in the cost of insurance, but it does say, "importantly, from an economic perspective, the full cost of all this may be far larger than the ultimate amount spent on litigation -- although that could end up being quite large as well. The cost of the uncertainty caused by the proposed rule could be far greater, as firms waste resources and forgo opportunities because of the risk of litigation . . . DOL assumes that Error and Omission insurance costs for some representatives will increase by 10 percent. This appears to be a wild underestimation of the potential costs of litigation, and the uncertainty it fosters as a result of the proposed rule." Morningstar estimates that, in the short-term, class action settlements could double the costs of the fiduciary rule for firms. Source: Morningstar Conclusion At the end of the day, the fact remains that the fiduciary rule is the most expensive regulatory action of 2016 and the second most expensive non-environmental rule since 2005. Even DOL's own conservative compliance cost estimates are astronomical. Based on the above data, the fiduciary rule has the potential to increase consumer costs by $46.6 billion, or $816 annually per account, in addition to the $1500 in duplicative fees for retirement savers that have already paid a fee on their commission-based accounts that move the same investments into a fee-based account. Worse, based on a minimum balance requirement of $30,000, the fiduciary rule could force 28 million Americans out of managed retirement accounts completely. Add that to $150 million in annual litigation costs and operating margins reduced by 24 to 36 percent, which will ultimately either be passed on to consumers or force firms out of the market, decreasing the supply of advice, and the fiduciary rule will end up doing a lot more harm than good. DOL's fiduciary rule is well-intended, but the costs it imposes, especially to low- and middle-income consumers, are too high to justify implementing the rule as it is currently written. * Construction Defects Bill Aims to Resolve Condo Class Actions --------------------------------------------------------------- TheDenverChannel.com reports that talks over issues "critical" to a proposed bipartisan construction defects bill have pushed back a hearing on the bill. Supporters of HB1279 hope it will resolve complaints by builders that Colorado laws make it too easy for condo associations to file class action lawsuits against them that have led fewer affordable condos being built in a tight housing market. "So many of the projects that have the opportunity to be built aren't being built because insurance rates are so high," Kathy Barstar of the Home Ownership Opportunity Alliance told Nicole Brady on the Politics Unplugged. "They are often finding that their insurance costs are so high that they [developers] can't make it work unless they are doing it at that significantly higher price point which you see in Cherry Creek and various other places." Lakewood mayor Adam Paul says whatever changes are made, homeowners still need to be protected. "Let's get it taken care of. Let's make sure that all of the owners have the opportunity to understand what the issue might be. Let them all weigh-in, get it fixed," Mr. Paul told Brady. "Lets keep it out of litigation. Let's keep it out of court. And we're certainly here to make sure on the city's end that they're being built right through our codes and our rules and regulations." * Junk Fax Rule as Applied to Faxes Struck Down by D.C. Circuit --------------------------------------------------------------- Albert Bianchi, Jr., Esq., and Michelle L. Dama, Esq., at Michael Best & Friedrich LLP, in an article for The National Law Review, wrote that in 2014, the Federal Communications Commission (FCC) issued a rule that required faxes to contain an opt-out notice even if the fax had been requested or solicited (as opposed to being unsolicited), 47 C.F.R. Section 64.1200(a)(4). Accordingly, under the FCC's rule, even when someone affirmatively agreed to receive an advertisement via fax from another company, if the fax did not contain a detailed opt-out notice, the faxing company would be liable under the Junk Fax Prevention Act's amendment to the Telephone Consumer Protection Act. Unsurprisingly, that rule opened the door to a surge of litigation under the Junk Fax Prevention Act. There were numerous class actions, seeking between USD500 and USD1,500 per fax, in which the named plaintiff would provide a fax number confirming a request for an advertisement via fax, and upon receipt of the faxed ad, the individual or business would sue the faxing company for failure to include a proper opt- out notice. In a move that should put a damper on such class actions, in a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC's rule requiring opt-out notices on solicited faxes, even as to persons who have previously consented to receive faxes. The majority noted that the question it was answering was "whether the Act's requirement that businesses include an opt-out notice on unsolicited fax advertisements authorizes the FCC to require business to include an opt-out notice on solicited fax advertisements." Based on the text of the statute, the majority reasoned that Congress did not empower the FCC to regulate solicited faxes. It held that "Congress drew a line in the text of the statute between unsolicited fax advertisements and solicited fax advertisements" and "it is the Judiciary's job to respect the line drawn by Congress. . . " The dissent disagreed, instead arguing that requiring opt-out notices on all fax ads, whether solicited and unsolicited, was proper implementation of Congress's ban on unsolicited fax ads because Congress had not explicitly prohibited the FCC from doing so. This ruling will now make pursuing class actions under the Junk Fax Prevention Act's opt-out notice provision more difficult. Given that a plaintiff now must show that the fax was unsolicited, it will be difficult to argue that the case should be properly pursued as a class action, as such showing would arguably require an individualized inquiry making class status improper. This ruling also brings an all too rare measure of common sense to the Junk Fax Protection Act. Liability for advertisements the recipient has given permission to send makes little sense, and the D.C. Circuit seems to agree. * Legislation Aims to Avert ADA Class Actions Against Businesses ---------------------------------------------------------------- The Oklahoman reports that legislation has been filed this year to protect Oklahoma businesses from being sued because blind people can't use a company's website. That such a law is necessary is sad, but true. Nationally, there have been more than 240 lawsuits filed alleging companies' websites are not compliant with the federal Americans with Disabilities Act. These mostly class-action lawsuits are more legal shake-down than anything else. The lawsuits can target businesses even when ownership has tried to address problems, and despite the fact there is little legal clarity regarding what businesses are required to do. Initially the ADA didn't apply to websites. Subsequent court rulings have found otherwise. But those rulings have been inconsistent. As attorneys Lewis S. Wiener, a former senior trial lawyer with the U.S. Department of Justice, and Alexander P. Fuchs noted in an article for the website Law 360, there is a "a circuit split regarding whether a website must have a nexus with a 'physical place of public accommodation' to fall within the scope of the ADA." The typical way to address the needs of blind and visually impaired individuals is to code a company's website so it works with screen reader technology that reads content aloud. But Messrs. Wiener and Fuchs write, "Even websites that may have been designed initially to be compatible with screen reader software may become inaccessible when new features are added or the website is updated." The Department of Justice was supposed to issue technical guidelines specifying what it takes for business websites to comply with the ADA. Those guidelines were supposed to be released in 2010, but they've been delayed until at least 2018. Read all the recent editorials from The Oklahoman. In short, it's not clear which companies are required to make websites ADA-complaint. It's not known with certainty what an ADA-compliant website involves. And even inadvertent problems created by routine updates can leave companies exposed to litigation. That's an environment ripe for abuse, which is what has occurred. The Wall Street Journal reported in November that of 40 nearly identical cases that went before a single federal judge in the Pittsburgh area, all but one were filed by a single law firm. Of the roughly 240 such cases filed, most companies settled, paying $10,000 to $75,000, "with the money typically going toward plaintiffs' attorneys' fees and expenses," the Journal reported. Two bills have been filed in our Legislature to reduce this legal abuse and provide greater protection to companies acting in good faith. House Bill 1429 and Senate Bill 651 both require an individual to notify an organization in writing of any alleged website noncompliance with ADA requirements, and that notice must be provided at least 120 days before filing a lawsuit. If a business promptly addresses problems and a lawsuit is filed anyway, the bill mandates that the lawsuit be tossed and court costs and reasonable attorney fees be awarded to the defendant. SB 651 passed without opposition in the Senate. HB 1429 passed with overwhelming support in the House. Support has been broadly bipartisan. While the needs of people with vision problems shouldn't be ignored, neither should businesses be financially exploited for failure to follow nonexistent guidelines. * Lieff Cabraser Attorney Says FCALA to Protect Price Fixing ------------------------------------------------------------ Nicholas Gueguen, writing for Northern California Record, report that the U.S. House of Representatives recently voted 220-201 to pass the Fairness In Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, and one attorney is not pleased to see the bill pass. "The bill's name should be The Pro-Corruption, Price-Fixer Defense Act, Protection Act," Eric Fastiff, an attorney at Lieff Cabraser Heimann and Bernstein LLP, told the Northern California Record. "The fact that the House passed it without holding a hearing, without understanding what it was doing just proves that it was an attempt by the Chamber of Commerce to buy off House members in order to promote its pro-corruption agenda." Mr. Fastiff is not happy with the U.S. Chamber of Commerce. "The Chamber of Commerce is seeking to protect companies that are fixing prices, foreign companies in particular," Mr. Fastiff said. "And they're depriving U.S. small businesses and consumers from recovering the money that is stolen from them from anti-trust violations such as price fixing." Congress.gov shows that the U.S. Senate has read the bill two times and sent it to the Senate Judiciary Committee. Mr. Fastiff said he hasn't heard about any proposed state or local government legislation coming into play in California because of the bill. "I don't see that at this time," he said. Mr. Fastiff said the bill could adversely affect plaintiffs in these types of cases. "I think there's always the potential that cases can be removed to federal court," Mr. Fastiff said. "So a state case under the Class Action Fairness Act can be removed often to federal court. And if so, this bill will seriously undermine the ability of the plaintiffs to recover funds that they normally would've been able to recover under federal law or under state law." The National Law Journal reported that "the Fairness in Class Action Litigation Act of 2017 would make several changes designed to reduce the number of class actions, particularly those that critics say seek large payouts for speculative or nonexistent injuries." The National Law Journal also reported that the Fairness in Class Action Litigation Act "also would tie attorney fees to the amount of settlements, restrict who plaintiffs attorneys could represent and halt discovery early on in the cases." * More 401(k) Advisers Face Litigation Risk Under Fiduciary Rule ---------------------------------------------------------------- Greg Iacurci, writing for Investment News, reports that a greater number of advisers and firms servicing 401(k) plans and their participants could be at risk of litigation in a few months' time, when implementation of some provisions of the Labor Department's fiduciary rule are set to kick in. This is due to the details of the recently finalized delay to the fiduciary rule issued by the Trump administration, as well as nuances of the regulation and its interplay with federal retirement law. While the delay pushed off compliance with some aspects of the rule until 2018, advisers will have to act as fiduciaries and adhere to impartial conduct standards when giving investment advice for a fee in retirement accounts come June 9. That's significant for non-fiduciary advisers to 401(k) plans and participants: They may take on fiduciary status in June, depending on the nature of their advice, putting them more squarely in the line of fire of the litigation enforcement mechanism that exists under the Employee Retirement Income Security Act of 1974. Investors would, in theory, be able to sue for breach of fiduciary duty, similar to claims in excessive-fee lawsuits that have targeted plan sponsors and financial services firms over the past decade, said those with knowledge of such litigation. To this point, advisers and their broker-dealers have largely avoided 401(k) lawsuits alleging fiduciary breach, because proving an adviser served as a fiduciary to a 401(k) plan is difficult under current law. "The ERISA litigation has been there and the risk of ERISA litigation was always there," David Levine, principal at Groom Law Group, said. "The rule becomes applicable Jun. 9 and more people could be in at that point." A similar enforcement mechanism doesn't exist for retail retirement investors in individual retirement accounts. The best- interest contract exemption, a provision of the fiduciary rule, will give these investors the right to bring class-action litigation against financial firms, though. BICE is currently set to come into force in January 2018. The only enforcement that's currently available in the IRA market are excise taxes imposed by the Internal Revenue Service. S o, come June, there will be an expanded pool of fiduciary advisers, but relatively little by way of enforcement in the retail retirement market, observers said. For 401(k) advisers and non-fiduciary 401(k) service providers, they will "have to do all the preparation [for the rule] they anticipated" to reduce their litigation risk, albeit with an extra 60 days to do it, said Michael Hadley -- MLHADLEY@DAVIS-HARMAN.COM -- a partner at Davis & Harman, a lobbying firm for financial services organizations. "In the 401(k) market, the class action plaintiffs' lawyers have found 401(k)s as fertile ground for securing settlements, because it is very hard to get rid of these cases early on," Mr. Hadley said. "And the class-action plaintiff's lawyers know it." Although more advisers and firms will be exposed to this risk, the environment for litigation, which could pertain to investment advice to a 401(k) plan or rollover recommendations to a 401(k) participant, may not be as ripe as may seem from the outset, some observers said. That's largely because compliance with the DOL rule between Jun. 9 and the beginning of 2018 won't be too difficult, relatively speaking, they said. For example, the DOL's 60-day delay of the fiduciary rule eliminated the need for certain disclosures associated with the BICE, such as written fiduciary acknowledgement for clients. So, the only thing that firms need to do to receive relief from BICE (an exemption allowing for receipt of variable compensation, otherwise prohibited by the rule) is adhere to impartial conduct standards. There are three factors involved: acting in a client's best interest, receiving reasonable compensation and making no misleading statements to clients. Mr. Levine referred to this form of BICE compliance as BIC Ultra Lite, and it's one route firms can take to protect themselves from ERISA lawsuits. "It's very, very simple. It's extremely short," he said. Further, some brokerage firms have already moved to levelize compensation for advisers in order to avoid running afoul of the rule, he added. And, since some of the more detailed parts of BICE won't come into effect until next year, bringing class-action lawsuits under ERISA will likely be more difficult during the transition period from June to January 2018 when the broad principles-based impartial conduct standards are the only applicable factor, said Andrew Oringer, a partner at Dechert. There will be less room for plaintiff's attorneys to sue firms for "mistakes and footfaults" in technical compliance, he said. "The mechanics and the plumbing [of the BICE] are getting put off. And that's often where people bring claims," Mr. Oringer said. "Those sort of laser-shot claims are going to be harder to make." * Plaintiff-Style Aggregate Damages Play Key Role in Class Suits ---------------------------------------------------------------- Catherine J. Galley, Erin E. McGlogan and Pierrick Morel, of Cornerstone Research, in an article for Law360, report that "Plaintiff-style" aggregate damages are commonly calculated for securities class actions. These estimates provide a plaintiffs' view of the defendant's potential dollar exposure assuming the plaintiffs prevail on the merits of their case. Despite criticisms of typical plaintiff-style aggregate damages, including those made by several courts, they, along with aggregate damages estimates incorporating defendant adjustments (typically concerning class period and inflation) can play an important role throughout the life cycle of a case, in particular when it comes to settlement negotiations. It is therefore useful to have information on the extent to which these estimates may exceed the dollar amount of damages claims submitted and approved to be paid if a case settles or if the plaintiffs prevail on their allegations at trial. Such data are limited, however, because data for securities class actions that settle are generally not publicly available and very few cases reach trial and result in a verdict in favor of plaintiffs such that damages are ultimately awarded. This study identifies and analyzes two securities class actions that relatively recently reached trial and resulted in a verdict in favor of plaintiffs: In re Vivendi Universal SA Securities Litigation and In re Household International Inc. The data from these cases show the extent to which aggregate damages estimates can exceed approved damages claims, excluding the effect of differences between the plaintiffs' allegations and the jury's findings. In Vivendi, the "approved claims rate" was 20 percent, and for Household, the "approved claims rate" was 38 percent. When applied to aggregate damages estimates for other cases, these approved claims rates can provide an indication of the potential damages exposure, which may be of interest to securities litigators, their clients, and directors and officers insurers. Calculation Of Approved Claims Rates Aggregate damages estimates are likely to differ from the total amount of approved claims resulting from any judgment in favor of plaintiffs for a number of reasons. As a foundational matter, plaintiff-style aggregate damages estimates assume the plaintiffs prevail on their initial allegations regarding class period and the amount of inflation in the defendant company's shares during the class period. For this study, this difference is removed by using the class period and amount of inflation from the jury verdicts in Vivendi and Household in the calculation of aggregate damages. Differences between aggregate damages estimates and total approved claims are also likely to occur because: 1. The trading models used in aggregate damages estimates are unreliable in that they do not provide an accurate estimate of damaged shares; 2. Not all damaged investors submit damages claims; 3. Some claims may be rejected (e.g., because defendants successfully rebut the presumption of reliance on the market price); and 4. There can be differences in damages methodologies attributable to the court's determination of how damages will be calculated for individual investors. The analysis in this study measures the effect of these four items by using publicly available information to calculate "approved claims rate" as the ratio of approved damages claims to aggregate damages estimates based on the jury verdicts. Vivendi and Household The total dollar amount of approved claims for Vivendi and Household, according to judgments issued, was $41,082,476 and $1,476,490,844, respectively. For the aggregate damages estimates, as noted above, the class period and amount of inflation in the defendant company's shares at issue were based on the jury verdicts. In Vivendi, the jury ruled that Vivendi's American depository shares (ADS) (1) bought during the class period, between Oct. 30, 2000, and Aug. 13, 2002, and (2) held over the corrective disclosure, Aug. 14, 2002, are eligible for damages. The jury determined that the amount of inflation in Vivendi's ADS for each day in the Vivendi class period ranged from $0 to $11 per ADS. In Household, the jury ruled that (1) shares bought during the class period, between March 23, 2001, and Oct. 11, 2002, and (2) sold during or after the start of the corrective disclosure period, beginning Nov. 15, 2001, and ending Oct. 10, 2002, were eligible for damages. The jury determined that the amount of inflation in Household's shares for each day in the Household class period reached a high of $23.94 per share. The aggregate damages estimates for each matter are otherwise calculated using methodologies typically applied by plaintiffs. Plaintiff-style aggregate damages are usually estimated using publicly available information -- such as the number of shares available to be traded (float) during the class period and the volume of shares traded each day -- along with a number of assumptions and related adjustments. Float is typically calculated for each day during the class period as the number of shares outstanding less shares held by company officers and directors. Other common adjustments include subtracting estimated long-term holdings by larger institutional investors and adding the number of shares comprising short interest. Float was calculated for both Vivendi and Household in accordance with these typical calculations and adjustments. Plaintiffs commonly use the calculated float as an input into trading models, along with trading volume for the shares at issue. Trading models purportedly estimate how many of the shares that comprise daily trading volume are purchased for the first time during the class period (and therefore become eligible for damages) and whether and/or when those shares were sold. One model commonly used by plaintiffs -- sometimes referred to as the 80/20 two-trader model -- assumes that 20 percent of the trading volume is attributable to 80 percent of shares, and the remaining 80 percent of the trading volume is attributable to the remaining 20 percent of shares. While simplifying assumptions such as these generally render aggregate damages estimates unreliable, as noted by various courts, these estimates are commonly used in the context of settlement negotiations. Using the calculated float, trading volume, the 80/20 two-trader model, and the class period and amount of inflation per the jury verdicts, aggregate damages estimates are calculated. Comparing the total dollar amount of approved claims for each case to the aggregate damages estimates results in approved claims rates of 20 percent for Vivendi and 38 percent for Household. Catherine Galley is a senior vice president in Cornerstone Research's Los Angeles office. She developed the firm's financial institutions practice, and has been active in the firm's securities and corporate and government investigations practices for more than 25 years. In addition, Galley has managed cases involving breach of contract, corporate governance, valuation, and auditor liability. Erin McGlogan manages development initiatives for the firm's practice areas encompassing financial institutions, finance, and securities. She is based in Cornerstone Research's Los Angeles office, where she has over 10 years of experience consulting on economic and financial issues in a variety of cases, including securities, finance and financial institutions. Pierrick Morel is a principal in Cornerstone Research's Los Angeles office. He focuses primarily on matters relating to securities, finance and financial institutions. Morel also has experience with cases involving intellectual property, general damages, breach of contract, bankruptcy, and forensic accounting. * Sheffield Lake Council to Join Class Action Over Bill 331 ----------------------------------------------------------- Jon Wysochanski, writing for The Chronicle-Telegram, reports that the Sheffield Lake council passed legislation on April 11 to join a class-action lawsuit challenging Senate Bill 331, which was signed into law in December. Sheffield Lake Law Director David Graves said the bill, which was passed by the Legislature during a lame-duck session, has been dubbed the "Petland Bill" because it specifies that cities cannot limit the outlets from which pet stores or retailers purchase dogs and it also includes sections that prohibit bestiality and cockfighting. Mr. Graves said some municipalities are challenging the law on the grounds that it violates the "one subject rule" because laws cannot be passed that deal with more than one subject. On its face the legislation deals with animal issues, Mr. Graves said, but tacked into it are an assortment of other regulations. For example, the law includes portions that bar cities from setting their own minimum wage laws and there is a section which allows cell phone providers to erect towers in the public right- of-way without the need for approval from municipalities. The section dealing with cell phone towers is what many cities are opposed to because the law allows towers up to 50 feet tall to be placed anywhere in a right-of-way and local zoning departments have no power to regulate the towers' placement. "They snuck this other portion in which takes away our ability to regulate cell phone tower technology in the public right-of-way," Mr. Graves said. "Basically since they are designated a public utility, they can put these towers up wherever they wanted to. The state Legislature thought this was a good thing because this would put the state on the forefront of 5G technology and high-speed connectivity." Mr. Graves said the law also appears to violate municipalities' rights of home rule, and the more communities that join the better. "By us joining, it sends a clear message to our community and residents that we are not going to stand for this type of restriction on our home rule powers," Mr. Graves said. The city will pay $3,000 to obtain the services of Walter Haverfield LLP to join a suit that 32 other Ohio cities have joined to challenge the law. The law firm also is representing Avon, Avon Lake and Oberlin. * Trump Supreme Court Appointee to Affect Pending Cases ------------------------------------------------------- Lawrence Hurley at Reuters reports Neil Gorsuch, President Donald Trump's appointee to the U.S. Supreme Court who was confirmed by the Senate to the lifetime job on April 7 in a 54-45 vote, will have an immediate impact on cases already pending before the justices. The nine-seat court has operated with only eight justices after the death of conservative Antonin Scalia on Feb. 13, 2016, with four liberals and four conservatives. Gorsuch's confirmation restores a 5-4 conservative majority. The new justice could cast the deciding vote in new cases before the court as well as some cases already argued during the current term that ends in June. The court could decide to hear fresh arguments in cases in which they otherwise would be split 4-4. Here is a list of five such cases in which Gorsuch could be pivotal. Religious rights: Trinity Lutheran Church v. Comer A case from Missouri to be argued on April 19 in which a church contends the state violated the U.S. Constitution's First Amendment guarantee of religious freedom by denying it funds for a playground project because of a state ban on aid to religious organizations. Employee class-action lawsuits: Epic Systems Corp v. Lewis A significant case for business and labor on whether companies can head off costly class-action lawsuits by forcing employees to give up their right to pursue work-related legal claims as a group in court. An issue that has divided the court in the past, this case is set to be argued in the next term, which starts in October. Housing discrimination: Bank of America v. Miami The eight-justice court appeared closely divided when it heard arguments on Nov. 8 on whether the city of Miami could pursue lawsuits accusing major banks of predatory mortgage lending to black and Hispanic home buyers. The court may need to reargue the case with Gorsuch on board to avoid a 4-4 split. Cross-border shooting: Hernandez v. Mesa A 4-4 split appeared possible when the court heard arguments in this civil rights case on Feb. 21. The court has been asked to revive a civil rights lawsuit filed by the family of a Mexican teenager against a U.S. Border Patrol agent who fatally shot the 15-year-old from across the border in Texas in 2010. Corporate liability: Jesner v. Arab Bank In a case to be heard next term, the court agreed on April 3 to consider reviving litigation that seeks to hold Arab Bank Plc financially liable for militant attacks in Israel and the Palestinian territories and accuses the Jordan-based bank of being the "paymaster" to militant groups. The question of whether companies can be held liable for actions overseas under a federal law called the Alien Tort Statute is one the court also took up in 2013 but failed to decide. ********* 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 * * *