/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170829.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 29, 2017, Vol. 19, No. 170 Headlines AMERICAN WATER: Chemical Spill Proceedings Stayed until Oct. 23 AMERICAN WATER: Water Main Break Class Action Pending ARCONIC INC: 3 Class Suits Filed over Grenfell Tower Fire ARES CAPITAL: Settlement of Shareholders Suit Pending BUILD-A-BEAR WORKSHOP: Elsayed Seeks to Recover Overtime for SMs CALIFORNIA FAIR: Sued in Cal. Over Insurance Claim Sublimit COMMUNITY HEALTH: To Fund "Lopez" Case Settlement in 3rd Quarter COMMUNITY HEALTH: Appeal in Shareholder Suit Underway CRAFT BREW: Motion to Dismiss California Class Suit Underway CYPRESS SECURITY: Does Not Properly Pay Employees, Action Claims DIGITAL REALTY: DFT Merger Litigation Underway DIGITALGLOBE INC: Brower Piven Named Lead Atty in Securities Suit DISANO CONSTRUCTION: Faces "Mena" Suit Over Failure to Pay OT ENOVA INTERNATIONAL: Appellate Briefing Now Complete FARMLAND MUTUAL: Nov. 30 Discovery Date in "Mejia" Vacated FIDELITY & GUARANTY: Paid $6M in Legal Costs in "Cressy" Suit FIDELITY & GUARANTY: Time to Seek Discretionary Review Expired GLOBAL FITNESS: Pulliam Appeals "Gascho" Suit Ruling to 6th Cir. GOLD'S GYM: Court Dismisses Individual Claims in "Hofstetter" GRAMERCY PROPERTY: Plaintiffs to Seek Dismissal of Maryland Suit HALYARD HEALTH: Bahamas Center's Suit over Surgical Gown Underway HALYARD HEALTH: Still Defends Against "Jackson" Case HEALTHCARE IQ: Brooks Sues Over Unpaid Overtime, Wages Under FLSA HEALTHSOUTH CORP: Hearing Not Yet Set in "Nichols" Appeal HOLOGIC INC: $8.5M Settlement of ARcare Suit Underway HPT SUITE: Accused by "Brito" Suit of Violating Disabilities Act IAC/INTERACTIVE CORP: 9th Cir. Affirms Ruling in Shareholder Suit INDEPENDENT HOME: Sued Over Failure to Pay Aides Overtime Wages INTELLIPHARMACEUTICS INT'L: Faces "Braverman" Securities Suit JPMORGAN CHASE: Class Cert. Bid in LIBOR-Related Actions Pending JPMORGAN CHASE: Supreme Court Petition in Madoff Case Due Sept. JPMORGAN CHASE: Appeal in Proprietary Products Litigation Pending KBR INC: Patels' Motion to Appoint Lead Plaintiff Underway KONA GRILL: Faces "Boots" Class Suit in Minnesota LABORATORY CORPORATION: "Jansky" Suit Dismissed LABORATORY CORPORATION: Sandusky Wellness Suit Remains Pending LABORATORY CORPORATION: Appeal in "Davis" Suit Underway LABORATORY CORPORATION: Motion to Dismiss Sequenom Case Pending LABORATORY CORPORATION: "Bloomquist" Suit Remains Pending LABORATORY CORPORATION: Bid to Dismiss "Bouffard" Suit Underway LABORATORY CORPORATION: Named as Defendant in "Gonzalez" Suit LAKELAND REGIONAL: Fails to Pay Overtime, "Amiel" Suit Alleges LOS ANGELES, CA: Sued in California Over Excessive Sewer Use Fees LUMBER LIQUIDATORS: Fails to Pay Employees OT, "Mason" Suit Says LYFT INC: Faces "Nieves" Suit Over Breach of Service Contract MASIMO CORP: Suit by Physicians Healthsource Inc. Underway MASIMO CORP: 11th Cir. Seeks Guidance from Alabama Supreme Court MDL 2262: Cal. Direct Plaintiffs Appeal Order in Libor MDL MDL 2672: Executive VW Not Class Member, Court Rules MEADWESTVACO CORP: Del. Court Dismisses Stockholders' Suit MICROSOFT CORP: Hearing to Begin Sept. in British Columbia Case MICROSOFT CORP: Canadian Cell Phone Suit Remains Dormant MOLSON COORS: Still Faces "Hughes" Suit in Canada MONDELEZ INTERNATIONAL: Class Suit in Discovery MONSANTO COMPANY: Court Narrows Claims in "Lamders" MRV COMMUNICATIONS: Still Defending "Vo" Class Action in Calif. MRV COMMUNICATIONS: Facing "Kachelmyer" Class Action MRV COMMUNICATIONS: Facing "Allia" Class Action MRV COMMUNICATIONS: Facing "Chelvaratnam" Class Action MRV COMMUNICATIONS: Facing "Scarantino" Class Action MRV COMMUNICATIONS: Facing "Trottier" Class Action NASDAQ INC: Still Defends City of Providence Case NATIONAL COLLEGIATE: Court OKs 15 Trusts' Bid to Dismiss "Winne" NATURAL HEALTH: Securities Class Action Stayed until Sept. 25 OMEGA PROTEIN: Consolidated Amended Securities Complaint Filed ONEOK INC: Dismissed from Gas Index Pricing Litigation ONEOK INC: Deal Reached Over Attorney's Fees OPHTHOTECH CORP: Bid to Join Micholle & Wasson Suits Pending PROSPECT MEDICAL: Gauzza Sues Over Unpaid Interrupted Meal Breaks R1 RCM INC: Class Action Fairness Act Hearing Set for Oct. 4 RAGAN & RAGAN: Court Denies "Napolitano" FDCPA Suit REGULUS THERAPEUTICS: Bid to Name Lead Plaintiff under Submission REVANCE THERAPEUTICS: $6.4M Settlement Granted Final Approval RIVERSIDE MOTORS: Has Made Unsolicited Calls, "Farrar" Suit Says ROCKET FUEL: "Debnath" Suit Wants to Enjoin Acquisition by Sizmek SABRA HEALTH: Care Capital Shareholder Suit in Preliminary Stage SALOV NORTH: Sweeney Appeals Order in "Kumar" Suit to 9th Circuit SANTANDER CONSUMER: Deka Lawsuit Stayed Pending Appeal SANTANDER CONSUMER: Bid to Dismiss Parmelee Suit Remains Pending SIMILASAN CORPORATION: Court Approves $700K Class Settlement SIMILASAN CORPORATION: Court Awards $175K Atty's Fees in "Allen" SOUTHERN COMPANY: Motion to Dismiss Amended Suit Underway SOUTHERN COPPER: Lacey-Siegfried Suit in Discovery Process SQUARE INC: Still Faces Independent Contractors' Suit STAAR SURGICAL: Oct. 16 Hearing on "Todd" Case Settlement SUNPOWER CORP: Hearing on Lead Plaintiff Bids Set for Aug. 31 TETRAPHASE PHARMACEUTICALS: First Circuit Appeal Underway TRANSDIGM GROUP: Sued by Firefighters Fund for Defrauding Gov't TRANSENTERIX INC: Motions to Dismiss "Bankley" Case Underway TRANSENTERIX INC: "Maine" Class Action Remains Stayed TRANSOCEAN LTD: Dismissal of Federal Securities Claims Now Final UBER TECHNOLOGIES: Denial of Arbitration in 2 Cases Vacated UNITED STATES: Approval of $100MM Deal in Takings Suit Upheld U.S. BANCORP: Court Orders "Hopkins" Case Closed US XPRESS: Seeks Ninth Circuit Review of Decision in "Ayala" Suit VERISK ANALYTICS: Final Approval Hearing Reset to October 18 VERISK ANALYTICS: Settlement of Interthinx Litigation Pending VERISK ANALYTICS: 10th Cir. Declined to Reverse Case Dismissal VOLKSWAGEN GROUP: Group 1 Has Payment from Emissions Scandal Case VOYA FINANCIAL: "Dezelan" Plaintiffs May File Amended Suit VOYA FINANCIAL: "Patrico" Plaintiffs Filed Amended Suit WD SERVICES: Accused by "Gray-Lingle" Suit of Violating TCPA WELLS FARGO: Magistrate Recommends Dismissal of "Singh" WERNER ENTERPRISES: Accrued $0.8M Jury Award in Short Break Case WESTINGHOUSE ELECTRIC: Faces "Gladden" Adversary Proceeding in NY WESTSTAR TRANSPORTATION: Cal. App. Affirms Denial of Arbitration WEYERHAEUSER COMPANY: Faces "Koppers" Suit Over Defective Joists WILLBROS GROUP: Lead Plaintiffs' Bid to Reinstate Case Pending XPO LOGISTICS-SC: "Lo" Class Suit Seeks to Recover Unpaid Wages ********* AMERICAN WATER: Chemical Spill Proceedings Stayed until Oct. 23 --------------------------------------------------------------- American Water Works Company, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Mass Litigation Panel has stayed its proceedings in the West Virginia Elk River Freedom Industries Chemical Spill until October 23, 2017. On January 9, 2014, a chemical storage tank owned by Freedom Industries, Inc. leaked two substances, 4-methylcyclohexane methanol, or MCHM, and PPH/DiPPH, a mix of polyglycol ethers, into the Elk River near the West Virginia-American Water Company ("WVAWC") treatment plant intake in Charleston, West Virginia. After having been alerted to the leak of MCHM by the West Virginia Department of Environmental Protection ("DEP"), WVAWC took immediate steps to gather more information about MCHM, augment its treatment process as a precaution, and begin consultations with federal, state and local public health officials. As soon as possible after it was determined that the augmented treatment process would not fully remove the MCHM, a joint decision was reached in consultation with the West Virginia Bureau for Public Health to issue a "Do Not Use" order for all of its approximately 93,000 customer accounts in parts of nine West Virginia counties served by the Charleston treatment plant. By January 18, 2014, none of WVAWC's customers were subject to the Do Not Use order. Following the Freedom Industries chemical spill, numerous lawsuits were filed against WVAWC and certain other Company affiliated entities (collectively, the "American Water Defendants") with respect to this matter in the U.S. District Court for the Southern District of West Virginia or West Virginia Circuit Courts in Kanawha, Boone and Putnam counties, and to date, 74 cases remain pending. Four of the cases pending before the U.S. district court were consolidated for purposes of discovery, and an amended consolidated class action complaint for those cases (the "Federal action") was filed in December 2014 by several plaintiffs. On January 28, 2016, all of the then-filed state court cases were referred to West Virginia's Mass Litigation Panel for further proceedings, which have been stayed pending the negotiation by the parties and approval by the court in the Federal action of a global agreement to settle all of such cases. On July 7, 2016, the court in the Federal action scheduled trial to begin on October 25, 2016, but the court has granted several continuances of the trial, which is currently postponed indefinitely in light of the binding global agreement in principle. The Mass Litigation Panel has also stayed its proceedings until October 23, 2017. WVAWC Binding Global Agreement in Principle to Settle Claims On October 31, 2016, the court in the Federal action approved the preliminary principles, terms and conditions of a binding global agreement in principle to settle claims (the "Settlement") among the American Water Defendants, and all class members, putative class members, claimants and potential claimants (collectively, the "Plaintiffs"), arising out of the Freedom Industries chemical spill. The terms of the Settlement propose a global federal and state resolution of all litigation and potential claims against the American Water Defendants and their insurers. A claimant may elect to opt out of any final settlement agreement, in which case such claimant will not receive any benefit from or be bound by the terms of the Settlement. Under the terms and conditions of the Settlement and any subsequent final settlement agreement, the American Water Defendants have not admitted, and will not admit, any fault or liability for any of the allegations made by the Plaintiffs in any of the actions to be resolved. The proposed aggregate pre-tax amount of the Settlement is $126 million, of which $65 million would be contributed by WVAWC, and the remainder would be contributed by certain of the Company's general liability insurance carriers. The Company has general liability insurance under a series of policies underwritten by a number of individual carriers. Two of these insurance carriers, which provide an aggregate of $50 million in insurance coverage to the Company under these policies, were requested, but presently have not agreed, to participate in the Settlement. The Company and WVAWC are vigorously pursuing their rights to insurance coverage from these non-participating carriers for any contributions by WVAWC to the Settlement. In this regard, WVAWC filed a lawsuit against one of these carriers alleging that the carrier's failure to agree to participate in the Settlement constitutes a breach of contract, and the Company is pursuing mandatory arbitration against the other non-participating carrier. The preliminary terms of the Settlement intend to establish a two- tier settlement fund for the payment of claims, comprised of (i) a simple claim fund, which is also referred to as the "guaranteed fund," of $76 million, of which $51 million will be contributed by WVAWC, including insurance deductibles, and $25 million would be contributed by one of the Company's general liability insurance carriers, and (ii) an individual review claim fund of up to $50 million, of which up to $14 million would be contributed by WVAWC and $36 million would be contributed by a number of the Company's general liability insurance carriers. Separately, up to $25 million would be contributed to the guaranteed fund by another defendant to the Settlement. As a result of these events, the Company recorded a charge to earnings, net of insurance receivables, of $65 million ($39 million after-tax) in the third quarter of 2016. The settlement amount of $126 million is reflected in Accrued Liabilities and the offsetting insurance receivable is reflected in Other Current Assets in the Consolidated Balance Sheet as of June 30, 2017. The Company intends to fund WVAWC's contributions to the Settlement through existing sources of liquidity, although no contribution by WVAWC will be required unless and until the terms of the Settlement are finally approved by the court in the Federal action. Furthermore, under the terms of the Settlement, WVAWC has agreed that it will not seek rate recovery from the Public Service Commission of West Virginia for approximately $4 million in direct response costs expensed in 2014 by WVAWC relating to the Freedom Industries chemical spill as well as for amounts paid by WVAWC under the Settlement. The Company's insurance policies operate under a layered structure where coverage is generally provided in the upper layers after claims have exhausted lower layers of coverage. The $36 million to be contributed by a number of the Company's general liability insurance carriers to the individual review claim fund, as noted above, is from higher layers of the insurance structure than the two insurance carriers that were requested, but presently have not agreed, to participate in the Settlement. Any recovery by WVAWC or the Company from the non-participating carriers would reimburse WVAWC for its contributions to the guaranteed fund. On April 27, 2017, the parties filed with the court in the Federal action a proposed settlement agreement providing details of the terms of the Settlement. The parties also requested that the court in the Federal action grant preliminary approval of the Settlement. On July 6, 2017, the court in the Federal action issued an opinion denying without prejudice the joint motion for preliminary approval of the Settlement. The court in the Federal action found the overall amount and structure of the Settlement to be fair, adequate and reasonable, but it declined to preliminarily approve the Settlement on several grounds, including the fairness of the methodology for allocating payments among members of the business class, the nature of the claims appeal process and the timing of the payment of claims that are subject to appeal, and the fairness of setting of fixed payments for the medical claims class. The American Water Defendants intend to work with the Plaintiffs to propose acceptable alternative provisions to the Settlement Agreement to satisfy the concerns of the court in the Federal action. If and when preliminary approval of the Settlement is obtained, notice of the terms of the Settlement would then be provided to members of the settlement class. Following the notice period, the court in the Federal action would hold a fairness hearing to consider final approval of the Settlement. Through its subsidiaries, American Water Works Company, Inc. is the largest and most geographically diverse investor-owned publicly-traded water and wastewater utility company in the United States, as measured by both operating revenue and population served. AMERICAN WATER: Water Main Break Class Action Pending ----------------------------------------------------- American Water Works Company, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Dunbar, West Virginia Water Main Break Class Action Litigation remains pending. On June 2, 2017, a class action complaint was filed in West Virginia Circuit Court in Kanawha County against WVAWC on behalf of a purported class of residents and business owners who lost water service or pressure as a result of the Dunbar main break. The complaint alleges breach of contract by WVAWC for failure to supply water, violation of West Virginia law regarding the sufficiency of WVAWC's facilities and negligence by WVAWC in the design, maintenance and operation of the water system. The plaintiff seeks unspecified alleged damages on behalf of the class for lost profits, annoyance and inconvenience, and loss of use, as well as punitive damages for willful, reckless and wanton behavior in not addressing the risk of pipe failure and a large outage. The Company and WVAWC believe that WVAWC has valid, meritorious defenses to the claims raised in this class action complaint. WVAWC intends to vigorously defend itself against these allegations. Given the current stage of this proceeding, the Company cannot reasonably estimate the amount of any reasonably possible losses or a range of such losses related to this proceeding. Through its subsidiaries, American Water Works Company, Inc. is the largest and most geographically diverse investor-owned publicly-traded water and wastewater utility company in the United States, as measured by both operating revenue and population served. ARCONIC INC: 3 Class Suits Filed over Grenfell Tower Fire --------------------------------------------------------- Arconic Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that three purported class action complaints were filed in July 2017 against Arconic and certain officers, directors and/or other parties, alleging that, in light of the Grenfell Tower fire, certain Company filings with the Securities and Exchange Commission contained false and misleading disclosures and omissions in violation of the federal securities laws. While the Company believes that these cases are without merit and intends to challenge them vigorously, there can be no assurances regarding the ultimate resolution of these matters. Given the preliminary nature of these matters and the uncertainty of litigation, the Company cannot reasonably estimate at this time the likelihood of an unfavorable outcome or the possible loss or range of losses in the event of an unfavorable outcome. The separation of Alcoa Inc. into two standalone, publicly-traded companies, Arconic Inc. (the new name for Alcoa Inc.) and Alcoa Corporation, became effective on November 1, 2016. ARES CAPITAL: Settlement of Shareholders Suit Pending ----------------------------------------------------- Ares Capital Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the settlement in a class action lawsuit by shareholders of American Capital remains pending. On or about February 10, 2017, shareholders of American Capital filed a second consolidated amended putative shareholder class action complaint allegedly on behalf of holders of the common stock of American Capital against the former members of American Capital's board of directors and certain former American Capital officers (collectively, the "American Capital defendants"), as well as Elliott Management Corporation, Elliott Associates, L.P., Elliott International, L.P. and Elliott International Capital Advisors Inc. (collectively "Elliott") in the Circuit Court for Montgomery County, Maryland challenging the American Capital Acquisition. This action is a consolidation of putative shareholder complaints filed against the directors of American Capital on June 24, 2016, July 12, 2016, July 21, 2016 and July 27, 2016, which were consolidated and in which an amended consolidated putative shareholder class action complaint was filed on August 18, 2016. The action alleges that the directors, officers and Elliott failed to adequately discharge their fiduciary duties to the public shareholders of American Capital by hastily commencing a sales process due to the board's manipulation by Elliott. In the alternative, the complaint alleges Elliott aided and abetted breaches of fiduciary duty by the American Capital directors and officers. The complaint also alleges that the directors and officers failed to obtain for the shareholders the highest value available in the marketplace for their shares in the American Capital Acquisition. The complaint further alleges that the merger was the product of a flawed process due to Elliott's continued manipulation, the use of deal protection devices in the American Capital Acquisition that precluded other bidders from making a higher offer to American Capital and the directors' conflicts of interest due to special benefits, including the full vesting of American Capital stock options and incentive awards or golden parachutes the directors received upon consummation of the proposed merger. Additionally, the complaint alleges that the registration statement, which was filed with the SEC on July 20, 2016 and included a joint proxy statement to American Capital's shareholders, is materially false and misleading because it omits material information concerning the financial and procedural fairness of the American Capital Acquisition. The complaint seeks to recover compensatory damages for all losses resulting from the alleged breaches of fiduciary duty and waste. The American Capital defendants filed their motion to dismiss the second consolidated amended complaint on March 3, 2017. Elliott filed its motion to dismiss the second consolidated amended complaint on April 14, 2017. Briefing on defendants' motions was completed on May 26, 2017. A hearing on the motions to dismiss was scheduled for June 9, 2017 before Judge Ronald Rubin of the Circuit Court for Montgomery County, Maryland (the "Court"); however, that hearing was stayed as to the American Capital defendants in light of a settlement. On June 9, 2017, the American Capital defendants reached an agreement in principle with plaintiffs regarding the proposed settlement of claims asserted against them in this action, and the American Capital defendants and plaintiffs subsequently executed a settlement term sheet (the "Term Sheet") on June 19, 2017. As set forth in the Term Sheet, the American Capital defendants have agreed to the proposed settlement solely to eliminate the burden, expense, distraction and uncertainties inherent in further litigation, and without admitting any liability or wrongdoing. The plaintiffs and American Capital defendants will seek preliminary approval of the proposed settlement from the Court by August 3, 2017; however, there can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the Court will approve such settlement even if the parties were to enter into such stipulation. The proposed settlement is not, and should not be construed as, as admission of wrongdoing or liability by any American Capital defendant. Ares Capital Corporation is a specialty finance company that is a closed-end, non-diversified management investment company incorporated in Maryland. The Company has elected to be regulated as a BDC under the Investment Company Act. The Company has elected to be treated as a regulated investment company ("RIC") under the Internal Revenue Code of 1986, as amended (the "Code") and operates in a manner so as to qualify for the tax treatment applicable to RICs. BUILD-A-BEAR WORKSHOP: Elsayed Seeks to Recover Overtime for SMs ---------------------------------------------------------------- ADAM ELSAYED, On behalf of himself and all other similarly situated employees v. BUILD-A-BEAR WORKSHOP, INC., Case No. 5:17- cv-03579-JLS (E.D. Pa., August 10, 2017), is brought to recover overtime wages pursuant to the Fair Labor Standards Act for the Plaintiff and other similarly situated store managers. Build-A-Bear is a Delaware corporation with its principal place of business in St. Louis, Missouri. The Company operates retail stores selling teddy bears and other stuffed animals, which are built by an interactive process through which customers assemble and customize the stuffed animal of their choice.[BN] The Plaintiff is represented by: Jason Conway, Esq. CONWAY LEGAL, LLC 1700 Market Street, Suite 1005 Philadelphia, PA 19103 Telephone: (215) 278-4782 Facsimile: (215) 278-4807 E-mail: jconway@conwaylegalpa.com - and - Gregg I. Shavitz, Esq. Camar R. Jones, Esq. SHAVITZ LAW GROUP, P.A. 1515 South Federal Highway, Suite 404 Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: gshavitz@shavitzlaw.oom cjones@shavitzlaw.com CALIFORNIA FAIR: Sued in Cal. Over Insurance Claim Sublimit ----------------------------------------------------------- Anna Segovia, on behalf of herself and all other similarly situated v. California Fair Plan Association and Does 1-100, inclusive, Case No. BC672505 (Cal. Super. Ct., August 15, 2017), arises out of the Defendants' unlawful conduct of imposing a $1,500.00 sublimit for claims for "smoke damages from fire or flames" that resulted to the drastic reduction of the coverage limits available to its insureds. California Fair Plan Association operates an insurance company located at 3435 Wilshire Blvd., Suite 1200, Los Angeles, California 90010. [BN] The Plaintiff is represented by: Joshua H. Haffher, Esq. Levi M. Plesset, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Telephone: (213) 514-5681 Facsimile: (213) 514-5682 E-mail: jhh@haffherlawyers.com lp@haffiierlawyers.com - and - Neil R. Anapol, Esq. LAW OFFICES OF NEIL R. ANAPOL 2550 Hollywood Way, Suite 202 Burbank, CA 91505 Telephone: (818) 566-7355 Facsimile: (818) 566-7875 COMMUNITY HEALTH: To Fund "Lopez" Case Settlement in 3rd Quarter ---------------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company expects to fund the settlement in the case, Lopez v. Yakima Regional Medical & Cardiac Center and Toppenish Community Hospital, in the third quarter of 2017. This class action lawsuit arose out of alleged conduct at these hospitals prior to the HMA acquisition. The suit alleges the hospitals' charity care policies did not comply with Washington state law. The trial court has certified a class and granted partial summary judgment in favor of the plaintiffs. This matter has now been settled, and the trial court has approved the settlement. The Company expects to fund the settlement in the third quarter of 2017. The Company recorded an estimate of the probable liability at December 31, 2016 based on the settlement of this matter. Community Health Systems, Inc. is one of the largest publicly traded hospital companies in the United States and a leading operator of general acute care hospitals and outpatient facilities in communities across the country. COMMUNITY HEALTH: Appeal in Shareholder Suit Underway ----------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that an appeal in the shareholders' securities class action cases remains pending. Three purported class action cases have been filed in the United States District Court for the Middle District of Tennessee; namely, Norfolk County Retirement System v. Community Health Systems, Inc., et al., filed May 9, 2011; De Zheng v. Community Health Systems, Inc., et al., filed May 12, 2011; and Minneapolis Firefighters Relief Association v. Community Health Systems, Inc., et al., filed June 21, 2011. All three seek class certification on behalf of purchasers of the Company's common stock between July 27, 2006 and April 11, 2011 and allege that misleading statements resulted in artificially inflated prices for the Company's common stock. In December 2011, the cases were consolidated for pretrial purposes and NYC Funds and its counsel were selected as lead plaintiffs/lead plaintiffs' counsel. In lieu of ruling on the Company's motion to dismiss, the court permitted the plaintiffs to file a first amended consolidated class action complaint, which was filed on October 5, 2015. The Company's motion to dismiss was filed on November 4, 2015 and oral argument was held on April 11, 2016. The Company's motion to dismiss was granted on June 16, 2016 and on June 27, 2016, the plaintiffs filed a notice of appeal to the Sixth Circuit Court of Appeals. The matter is fully briefed, and oral argument was heard on May 3, 2017. The Company believes this consolidated matter is without merit and will vigorously defend this case. Community Health Systems, Inc. is one of the largest publicly traded hospital companies in the United States and a leading operator of general acute care hospitals and outpatient facilities in communities across the country. CRAFT BREW: Motion to Dismiss California Class Suit Underway ------------------------------------------------------------ Craft Brew Alliance, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company's motion to dismiss a consolidated class action lawsuit remains pending. On February 28, 2017 and March 6, 2017, respectively, two lawsuits, Sara Cilloni and Simone Zimmer v. Craft Brew Alliance, Inc., and Theodore Broomfield v. Kona Brewing Co. LLC, Kona Brew Enterprises, LLP, Kona Brewery LLC, and Craft Brew Alliance, Inc., were filed in the United States District Court for the Northern Division of California. On April 7, 2017, the two lawsuits were consolidated into a single complaint under the Broomfield case. The consolidated lawsuit purports to be a class action brought on behalf of all persons who purchased Kona Brewing Company beer within the relevant statute of limitations period. The lawsuit alleges that the defendants misled customers regarding the state in which Kona Brewing Company beers are manufactured and in describing Kona Brewing Company beer as "craft beer." "We intend to vigorously defend against the foregoing action and, on April 28, 2017, we filed a motion to dismiss the complaint. We have not recorded any liabilities with respect to the claims," the Company said. Craft Brew Alliance, Inc. ("CBA") is the sixth largest craft brewing company in the U.S. and a leader in brewing, branding, and bringing to market world-class American craft beers. CYPRESS SECURITY: Does Not Properly Pay Employees, Action Claims ---------------------------------------------------------------- Albert Blatcher, individually and on behalf of all others similarly situated v. Cypress Security LLC and Does 1 through 25, Case No. BC672405 (Cal. Super. Ct., August 15, 2017), is brought against the Defendants for failure to provide accurate, itemized wage statements, failure to provide required meal and rest breaks, and failure to compensate Plaintiff and the rest of the Class for all amounts due at the time of discharge. Cypress Security LLC operates a security guard service company in Los Angeles, State of California. [BN] The Plaintiff is represented by: Aaron C. Gundzik, Esq. Rebecca G. Gundzik, Esq. GARTENBERG GELFAND HAYTON LLP 15260 Ventura Blvd., Suite 1920 Sherman Oaks, CA 91403 Telephone: (213) 542-2100 Facsimile: (213)542-2101 E-mail: agundzik@gghslaw.com rgundzik@gghslaw.com - and - Marshall A. Caskey, Esq. Daniel M. Holzman, Esq. N. Cory Barari, Esq. CASKEY & HOLZMAN 24025 Park Sorrento, Ste. 400 Calabasas, CA 91302 Telephone: (818) 657-1070 Facsimile: (818) 297-1775 DIGITAL REALTY: DFT Merger Litigation Underway ---------------------------------------------- Digital Realty Trust, Inc. and Digital Realty Trust, L.P. said in their Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company is defending the DFT Merger Litigation. The Company said, "On June 8, 2017, we entered into an Agreement and Plan of Merger (the "DFT Merger Agreement") with DuPont Fabros Technology, Inc., a Maryland corporation ("DFT"), and DuPont Fabros Technology, L.P., a Maryland limited partnership (the "DFT OP" and, together with DuPont, the "DFT Parties") pursuant to which, subject to the satisfaction or waiver of certain conditions, the DFT Parties will be merged with and into our wholly owned subsidiaries (the "DFT Merger")." "Following the announcement of the DFT Merger, three purported stockholder class actions were filed in United States District Court for the District of Columbia captioned Scarantino v. DuPont Fabros Technology, Inc., et al., No. 1:17-cv-01428 (D.D.C.) (filed July 18, 2017); Canchola v. DuPont Fabros Technology, Inc., et al., No. 1:17-cv-01481 (D.D.C.) (filed July 24, 2017); and Lawrence v. DuPont Fabros Technology, Inc., et al., No. 1:17-cv- 01465 (D.D.C.) (filed July 24, 2017). All three complaints allege purported violations of the federal securities laws and name as defendants DFT and the members of the DFT Board. The Scarantino complaint also names as defendants DFT OP, the company, our operating partnership and certain of our affiliates. Plaintiffs in each of the three actions allege primarily that the disclosures regarding the proposed merger in the Proxy Statement were inadequate in violation of Section 14(a) and 20(a) of the Securities Exchange Act of 1934, and Rule 14a-9. Plaintiffs seek to enjoin the merger, or damages in the event that it is consummated, along with costs and attorneys' fees. "While we believe that the allegations in the Scarantino complaint are without merit and intend to defend vigorously against these allegations, we cannot assure you as to the outcome of these, or any similar future lawsuits, including the costs associated with defending these claims or any other liabilities that may be incurred in connection with the litigation or settlement of these claims. DuPont Fabros Technology, Inc., or DFT, through its controlling interest in DuPont Fabros Technology, L.P., is a fully integrated, self-administered and self-managed company that owns, acquires, develops and operates wholesale data centers. DFT is a real estate investment trust, or REIT, for federal income tax purposes and is the sole general partner of the Operating Partnership, and as of June 30, 2017, owned 87.0% of the common economic interest in the Operating Partnership, of which 0.9% is held as general partnership units. DIGITALGLOBE INC: Brower Piven Named Lead Atty in Securities Suit ----------------------------------------------------------------- The United States District Court, District of Colorado, issued an Order granting Plaintiff Dane Gussin's Motion to be Appointed Lead Plaintiff and to Approve Proposed Lead Plaintiff's Choice of Counsel in the cases captioned GEORGE ASSAD, individually and on behalf of all others similarly situated, Plaintiff, v. DIGITALGLOBE, INC., et al., Defendants. JEWELTEX MANUFACTURING INC. RETIREMENT PLAN, on behalf of itself and all others similarly situated, Plaintiff, v. DIGITALGLOBE, INC., et al., Defendants. ROYCE BUSSEY, individually and on behalf of all others similarly situated, Plaintiff, v. DIGITALGLOBE, INC., et al., Defendants. DANE GUSSIN, Plaintiff, v. DIGITALGLOBE, INC., et al., Defendants. STUART ZAND, individually and on behalf of all others similarly situated, Plaintiff, v. DIGITALGLOBE, INC., et al., Defendants. Matthew Machion, individually and on behalf of all others similarly situated, Plaintiff, v. DIGITALGLOBE, INC., et al., Defendants. Civil Action Nos. 17-cv-01097-PAB, 17-cv-01140-PAB, 17-cv-01159-PAB, 17-cv-01190-PAB, 17-cv-01570-PAB, 17-cv-01692- PAB-NYW (D. Colo.). Plaintiff Matthew Machion's Motion is denied as moot. Plaintiff Matthew Machion's Motion for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection of Lead Counsel and Plaintiff Dane Gussin's (Mr. Gussin) Motion to be Appointed Lead Plaintiff and to Approve Proposed Lead Plaintiff's Choice of Counsel. This consolidated action (six actions in total) arises out of the proposed merger of Defendant DigitalGlobe, Inc. (DigitalGlobe) and a subsidiary of MacDonald, Dettwiler and Associates Ltd. (MDA). All six actions assert claims under the Securities Exchange Act of 1934, and Securities and Exchange Commission (SEC) challenging the proposed merger of DigitalGlobe and MDA. The Private Securities Litigation Reform Act (PSLRA) In assigning a lead plaintiff, the PSLRA establishes a rebuttable presumption that the most adequate plaintiff' is a person or group of persons that (1) either filed the complaint or made a motion in response to a notice, (2) has the largest financial interest in the relief sought, and (3) otherwise satisfies the requirements of Fed. R. Civ. P. 23. The PSLRA also provides that the lead plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class. Here, it is undisputed that Mr. Gussin timely moved for appointment as lead plaintiff, and that he has the largest known financial interest in the relief sought. First, Mr. Gussin's claims arise out of the same course of conduct and are based on the same theories as those of the absent class members and thus their interests are coextensive with and typical of those of all class members. Second, as to adequacy, because Mr. Machion withdrew his competing motion for appointment as lead plaintiff and no other Plaintiff has contended that Mr. Gussin will not fairly and adequately protect the interests of the class, this court concludes that Mr. Gussin will be most capable of adequately representing the interests of class members. Lastly, Mr. Gussin seeks court approval of his selection of lead counsel Brower Piven, A Profession Corporation (Brower Piven). In approving Brower Piven, Mr. Gussin must demonstrate that Brower Piven is qualified, experienced, and able to vigorously conduct the proposed litigation. Plaintiff Dane Gussin's Motion to be Appointed Lead Plaintiff and to Approve Proposed Lead Plaintiff's Choice of Counsel is granted. A full-text copy of the District Court's August 17, 2017 Order is available at http://tinyurl.com/ybouluvsfrom Leagle.com. George Assad, Plaintiff, represented by Rusty Evan Glenn - rusty@shumanlawfirm.com - Shuman Law Firm. Dane Gussin, Consol Plaintiff, represented by Jeffrey Mark Villanueva, Jeffrey M. Villanueva, P.C., 180 N Cook St Apt 208, Denver, Denver County, Colorado, Rusty Evan Glenn, Shuman Law Firm & Daniel Kuznicki - kuznicki@browerpiven.com - Brower Piven, P.C.. Jeweltex Manufacturing Inc. Retirement Plan, Consol Plaintiff, represented by Richard Adam Acocelli - racocelli@weisslawllp.com - Weiss Law LLP. Royce Bussey, Consol Plaintiff, represented by Richard Adam Acocelli, Weiss Law LLP. Stuart Zand, Consol Plaintiff, represented by James Milligan Wilson, Jr. -jwilson@faruqilaw.com - Faruqi & Faruqi, LLP & Michael Van Gorder - mvangorder@faruqi.com - Faruqi & Faruqi, LLP. Matthew Machion, Consol Plaintiff, represented by M. Gabriel McFarland, Evans & McFarland, LLC, 910 13th Street, Suite 200, Golden, CO 80401 & Danielle S. Myers denim@rgrdlaw.com - Robbins Geller Rudman & Dowd, L Danielle S. Myers, Robbins LP. DigitalGlobe, Inc, Defendant, represented by Emily Renwick Garnett - egarnett@bhfs.com -Brownstein Hyatt Farber Schreck, LLP, John V. McDermott - jmcdermott@bhfs.com - Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close - mclose@omm.com - O'Melveny & Myers, LLP & William K. Pao - wpao@omm.com - O'Melveny & Myers, LLP. Howell M. Estes, III, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Nick S. Cyprus, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Roxanne Decyk, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Lawrence A. Hough, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Warren C. Jenson, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. L. Roger Mason, Jr., Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Jeffrey R. Tarr, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Kimberly Till, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. Eddy Zervigon, Defendant, represented by Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, John V. McDermott, Brownstein Hyatt Farber Schreck, LLP, Matthew W. Close, O'Melveny & Myers, LLP & William K. Pao, O'Melveny & Myers, LLP. MacDonald, Dettwiler and Associates, Ltd., Defendant, represented by Caitlin C. McHugh - cmchugh@lrrc.com - Lewis Roca Rothgerber Christie LLP & Michael D. Plachy - mplachy@lrrc.com - Lewis Roca Rothgerber Christie LLP. SSL MDA Holdings, Inc., Defendant, represented by Caitlin C. McHugh, Lewis Roca Rothgerber Christie LLP & Michael D. Plachy, Lewis Roca Rothgerber Christie LLP. Merlin Merger Sub, Inc., Defendant, represented by Caitlin C. McHugh, Lewis Roca Rothgerber Christie LLP & Michael D. Plachy, Lewis Roca Rothgerber Christie LLP. DISANO CONSTRUCTION: Faces "Mena" Suit Over Failure to Pay OT ------------------------------------------------------------- Vicente Mena, on behalf of himself and all others similarly situated v. Disano Construction Co., Inc., and Pietro Oppedisano, Case No. 1:17-cv-04777 (E.D.N.Y., August 15, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants were engaged in the business of providing construction services and repairs. [BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 355-9668 E-mail: abdul@abdulhassan.com ENOVA INTERNATIONAL: Appellate Briefing Now Complete ---------------------------------------------------- Enova International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that appellate briefing is now complete in the appeal in a class action lawsuit. On March 8, 2013, Flemming Kristensen, on behalf of himself and others similarly situated, filed a purported class action lawsuit in the U.S. District Court of Nevada against the Company and other unaffiliated lenders and lead providers. The lawsuit alleges that the lead provider defendants sent unauthorized text messages to consumers on behalf of the Company and the other lender defendants in violation of the Telephone Consumer Protection Act. The complaint seeks class certification, statutory damages, an injunction against "wireless spam activities," and attorneys' fees and costs. The Company filed an answer to the complaint denying all liability. On March 26, 2014, the Court granted class certification. On July 20, 2015, the court granted the Company's motion for summary judgment, denied Plaintiff's motion for summary judgment and, on July 21, 2015, entered judgment in favor of the Company. Plaintiff filed a motion for reconsideration, which was denied. On May 3, 2016, Plaintiff filed a notice of appeal of the order granting summary judgment for the Company, the judgment in favor of the company, and the order denying Plaintiff's motion to reconsider. Appellate briefing is now complete. Neither the likelihood of an unfavorable appellate decision nor the ultimate liability, if any, with respect to this matter can be determined at this time, and the Company is currently unable to estimate a range of reasonably possible losses, as defined by ASC 450-20-20, Contingencies-Loss Contingencies-Glossary, for this litigation. The Company believes that the Plaintiff's claims in the complaint are without merit and intends to vigorously defend this lawsuit. Enova operates an internet-based lending platform to serve customers in need of cash to fulfill their financial responsibilities. FARMLAND MUTUAL: Nov. 30 Discovery Date in "Mejia" Vacated ---------------------------------------------------------- The United States District Court, Eastern District of California, issued an Order for pre-trial schedule in the case captioned SCARLETTE MEJIA, as an individual and on behalf of all others similarly situated, Plaintiffs, v. FARMLAND MUTUAL INSURANCE COMPANY, an Iowa corporation; FARMLAND MUTUAL INSURANCE CO, an unincorporated association; NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio corporation; and DOES 1 to 100, inclusive, Defendants, Case No. 2:17-CV-00570-TLN-KJN (E.D. Cal.). This Stipulation and proposed Order is entered into between Plaintiff SCARLETTE MEJIA and Defendants FARMLAND MUTUAL INSURANCE COMPANY, which was sued by its correct name and also as FARMLAND MUTUAL INSURANCE CO, and NATIONWIDE MUTUAL INSURANCE COMPANY. The parties stipulate that the November 30, 2017 discovery deadline, the December 28, 2017 expert witness disclosure deadline, and the February 22, 2018 filing deadline for a motion for class certification is vacated. If the Court denies Defendants' motion to dismiss and strike class allegations, the Parties will meet and confer and submit new proposed deadlines for discovery, expert witness disclosures, and certification motion filing within 14 days thereafter for the Court's consideration. The Court's May 19, 2017 Pre-trial Scheduling Order will remain in effect in all other respects. A full-text copy of the District Court's August 17, 2017 Order is available http://tinyurl.com/yad8ndzqfrom Leagle.com. Scarlette Mejia, Plaintiff, represented by Galen T. Shimoda - attorney@shimodalaw.com - Shimoda Law Corp. Scarlette Mejia, Plaintiff, represented by Justin Paul Rodriguez - justinatlaw@yahoo.com - Shimoda Law Corp. Farmland Mutual Insurance Company, Defendant, represented by Barbara Allyn Blackburn - bblackburn@littler.com - Littler Mendelson & Britney Noelle Torres - btorres@littler.com - Littler Mendelson, P.C.. Nationwide Mutual Insurance Company, Defendant, represented by Barbara Allyn Blackburn, Littler Mendelson & Britney Noelle Torres, Littler Mendelson, P.C. FIDELITY & GUARANTY: Paid $6M in Legal Costs in "Cressy" Suit ------------------------------------------------------------- Fidelity & Guaranty Life said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company has incurred and paid $6 million related to legal fees and other costs and $3 million related to settlement costs as of June 30, 2017, in the case, Cressy v. Fidelity Guaranty [sic] Life Insurance Company, et al. On July 5, 2013, Plaintiff Eddie L. Cressy filed a putative class Complaint captioned Cressy v. Fidelity Guaranty [sic] Life Insurance Company, et. al. in the Superior Court of California, County of Los Angeles (the "Court"), Case No. BC-514340. The Complaint was filed after the Plaintiff was unable to maintain an action in federal court. The Complaint asserts, inter alia, that the Plaintiff and members of the putative class relied on Defendants' advice in purchasing allegedly unsuitable equity- indexed insurance policies. On January 2, 2015, the Court entered Final Judgment in Cressy, certifying the class for settlement purposes, and approving the class settlement reached on April 4, 2014. On August 10, 2015, the Company tendered $1 million to the Settlement Administrator for a claim review fund. The Company implemented an interest enhancement feature for certain policies as part of the class settlement, which enhancement began on October 12, 2015. On October 24, 2016, the parties filed a Joint Motion to amend the January 2, 2015 Final Order and Judgment, to extend the deadline for settlement completion from October 24, 2016 to December 5, 2016. On December 5, 2016, Plaintiff Cressy filed a Notice of Filing Declaration of Settlement Administrator and Status of Completion of Settlement; the Declaration of Settlement Administrator included a certification by the Settlement Administrator that the Company had complied in all respects with the class settlement and that all eligible claims had been paid and the interest enhancement had been implemented pursuant to the terms of the class settlement. On March 24, 2017, the Court entered a Minute Order indicating that it was satisfied that the parties had fully and finally performed all of the terms of the settlement and recorded the matter as complete without the need for any further hearings. At June 30, 2017, the Company estimated the total cost for the settlement, legal fees and other costs related to Cressy would be $9 million, with no liability remaining for the unpaid portion of the estimate. The Company has incurred and paid $6 million related to legal fees and other costs and $3 million related to settlement costs as of June 30, 2017. Based on the information currently available the Company does not expect the actual cost for settlement, legal fees and other related costs to differ materially from the amount accrued. Fidelity & Guaranty Life is a subsidiary of HRG Group, Inc. (formerly, Harbinger Group Inc. ("HRG")). FGL markets products through its wholly-owned insurance subsidiaries, Fidelity & Guaranty Life Insurance Company ("FGL Insurance") and Fidelity & Guaranty Life Insurance Company of New York ("FGL NY Insurance"), which together is licensed in all fifty states and the District of Columbia. FIDELITY & GUARANTY: Time to Seek Discretionary Review Expired -------------------------------------------------------------- Fidelity & Guaranty Life said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that Dale R. Ludwick's time to seek discretionary review of this matter expired on July 12, 2017. On January 7, 2015, a putative class action complaint was filed in the United States District Court, Western District of Missouri (the "District Court"), captioned Dale R. Ludwick, on behalf of Herself and All Others Similarly Situated v. Harbinger Group Inc., Fidelity & Guaranty Life Insurance Company, Raven Reinsurance Company, and Front Street Re (Cayman) Ltd. The complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), requests injunctive and declaratory relief and seeks unspecified compensatory damages for the putative class in an amount not presently determinable, treble damages, and other relief, and claims Plaintiff Ludwick overpaid $0 for her annuity. On February 12, 2016, the District Court granted the Defendants' joint motion to dismiss the Plaintiff's claims. On March 3, 2016, Plaintiff Ludwick filed a Notice of Appeal to the United States Court of Appeals for the Eighth Circuit (the "Court of Appeals"). On April 13, 2017, the Court of Appeals affirmed the District Court's decision to dismiss the Plaintiff's claims. The Plaintiff has no appeal as of right from the Court of Appeals' decision but may seek discretionary review by the Court of Appeals en banc or by the United States Supreme Court. The Plaintiff's time to seek discretionary review of this matter expired on July 12, 2017. The Company said, "We do not believe that the Plaintiff has sought a discretionary review of this matter prior to such date. As of the date of this report, FGL does not have sufficient information to determine whether it has exposure to any losses that would be either probable or reasonably estimable beyond an expense contingency estimate of $2 million, which was accrued during the year ended September 30, 2016." Fidelity & Guaranty Life is a subsidiary of HRG Group, Inc. (formerly, Harbinger Group Inc. ("HRG")). FGL markets products through its wholly-owned insurance subsidiaries, Fidelity & Guaranty Life Insurance Company ("FGL Insurance") and Fidelity & Guaranty Life Insurance Company of New York ("FGL NY Insurance"), which together is licensed in all fifty states and the District of Columbia. GLOBAL FITNESS: Pulliam Appeals "Gascho" Suit Ruling to 6th Cir. ---------------------------------------------------------------- Interested Party Royce G. Pulliam filed an appeal from a court ruling relating to the lawsuit entitled Amber Gascho, et al. v. Global Fitness Holdings, LLC, et al., Case No. 2:11-cv-00436, in the U.S. District Court for the Southern District of Ohio at Columbus. The appellate case is captioned as Amber Gascho, et al. v. Global Fitness Holdings, LLC, et al., Case No. 17-3825, in the United States Court of Appeals for the Sixth Circuit. As previously reported in the Class Action Reporter, several interested parties have filed separate appeals in the lawsuit.[BN] Plaintiffs-Appellees AMBER GASCHO, ASHLEY BUCKENMEYER, MICHAEL J HOGAN, JULIA CAY, fka Julia Snyder, ANTHONY MEYER, TERRY E TROUTMAN, RITA ROSE, EDWARD LUNDBERG, ALBERT TARTAGLIA, MICHAEL BELL, MATT VOLKERDING and PATRICK CARY, on Behalf of Themselves and all Others Similarly Situated, are represented by: Thomas N. McCormick, Esq. VORYS, SATER, SEYMOUR & PEASE P.O. Box 1008 Columbus, OH 43215 Telephone: (614) 464-6400 E-mail: wgporter@vorys.com Interested Party-Appellant ROYCE G. PULLIAM is represented by: Christopher J. Hogan, Esq. ZEIGER, TIGGES & LITTLE LLP 41 S. High Street, Suite 3500 Columbus, OH 43215 Telephone: (614) 365-9900 Facsimile: (614) 365-7900 E-mail: hogan@litohio.com GOLD'S GYM: Court Dismisses Individual Claims in "Hofstetter" ------------------------------------------------------------- The United States District Court, Central District of California, issued an Order granting parties' Joint Stipulation for an Order dismissing Plaintiff Wayne Hofstetter's individual claims with prejudice in case captioned WAYNE HOFSTETTER, on behalf of himself, and all others similarly situated, Plaintiff, v. GOLD'S GYM SOUTHERN CALIFORNIA GROUP, Defendant, Case No. CV 17-361- GW(JPRx) (C.D. Cal.). Having read and considered the Joint Stipulation filed by Plaintiff Wayne Hofstetter and Defendant Gold's Gym Southern California Group for an Order dismissing Plaintiff's individual action, and good cause appearing therefore, the Court grants the parties' Joint Stipulation for an Order dismissing Plaintiff Wayne Hofstetter's individual claims with prejudice. Each party is to bear its own fees and costs. A full-text copy of the District Court's August 17, 2017 Memorandum is available at http://tinyurl.com/y9ozts8rfrom Leagle.com. Wayne Hofstetter, Plaintiff, represented by Ronald A. Marron - admin@consumersadvocates.com - Law Offices of Ronald A Marron APLC. Wayne Hofstetter, Plaintiff, represented by Alexis M. Wood - Wood@asu.edu -. Law Offices of Ronald A Marron APLC & Kas L. Gallucci, Law Offices of Ronald A Marron APLC. Golds Gym Southern California Group, Defendant, represented by Anthony J. Ellrod - aje@manningllp.com - Manning and Kass Ellrod Ramirez Trester LLP & Paul D. Harshaw - pdh@manningllp.com - Manning & Kass Ellrod Ramirez & Trester LLP. GRAMERCY PROPERTY: Plaintiffs to Seek Dismissal of Maryland Suit ---------------------------------------------------------------- Gramercy Property Trust and GPT Operating Partnership LP said in their Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that plaintiffs in a Maryland class action have filed a notice of dismissal with prejudice with the Circuit Court for Baltimore County, Maryland. Prior to December 17, 2015, the Company was known as Chambers Street Properties, or Chambers. On December 17, 2015, Chambers completed a merger, or the Merger, with Gramercy Property Trust Inc., or Legacy Gramercy. While Chambers was the surviving legal entity, immediately following consummation of the Merger, the Company changed its name to "Gramercy Property Trust" and its New York Stock Exchange, or NYSE, trading symbol to "GPT." Legacy Gramercy, its board of directors, and Chambers were named as defendants in various putative class action lawsuits brought by purported Legacy Gramercy stockholders challenging the Merger. The lawsuits were consolidated into a New York state court action, or the New York Action, and a Maryland state court action, or the Maryland Action. On March 1, 2017, the court entered a Final Order and Judgment approving the settlement, awarding plaintiffs' attorney fees and expenses, and dismissing the New York Action with prejudice. On March 22, 2017, pursuant to the stipulation of settlement, plaintiffs in the Maryland Action filed a notice of dismissal with prejudice with the Circuit Court for Baltimore County, Maryland, which the court entered on April 11, 2017. Gramercy Property Trust, or the Company or Gramercy, a Maryland real estate investment trust, or REIT, together with its subsidiary, GPT Operating Partnership LP, or the Operating Partnership, is a leading global investor and asset manager of commercial real estate. Gramercy specializes in acquiring and managing high quality, income producing commercial real estate leased to high quality tenants in major markets in the United States and Europe. HALYARD HEALTH: Bahamas Center's Suit over Surgical Gown Underway ----------------------------------------------------------------- Halyard Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the company continues to defend against the Bahamas Surgery Center surgical gown litigation. The Company said, "We have an Indemnification Obligation for, and have assumed the defense of, the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., No. 2:14-cv-08390-DMG-SH (C.D. Cal.) ("Bahamas"), filed on October 29, 2014. In that case, the plaintiff brought a putative class action asserting claims for common law fraud (affirmative misrepresentation and fraudulent concealment) and violation of California's Unfair Competition Law ("UCL") in connection with our marketing and sale of MicroCool surgical gowns." "On April 7, 2017, after a two-week trial, a jury returned a verdict for the plaintiff, finding that Kimberly-Clark was liable for $4 million in compensatory damages (not including prejudgment interest) and $350 million in punitive damages, and that Halyard was liable for $0.3 million in compensatory damages (not including prejudgment interest) and $100 million in punitive damages. Subsequently, the court also ruled on the plaintiff's UCL claim and request for injunctive relief. The court found in favor of the plaintiff on the UCL claim but denied the plaintiff's request for restitution. The court also denied the plaintiff's request for injunctive relief. "On May 25, we filed three post-trial motions: a renewed motion for judgment as a matter of law; a motion to decertify the class; and a motion for new trial, remittitur, or amendment of the judgment. The renewed motion for judgment as a matter of law seeks to have the court reverse the jury's verdict in whole or in part because it was based on insufficient facts and/or did not correctly apply the law. The motion to decertify the class seeks to have the court decertify the class on the basis that the evidence at trial did not support the Court's initial class certification order and therefore the case should not have proceeded as a class action. The motion for new trial, remittitur or amendment of the judgment seeks, among other relief, to have the court reduce the jury's punitive damages award because it was not supported by the facts and was excessive in violation of due process under the U.S. Constitution. "The U.S. Supreme Court has stated that the Constitutional outer limit for the ratio between punitive damages and compensatory damages in cases such as ours is approximately 9 to 1 or lower, and we believe that in a case such as ours that, if there is any award of punitive damages (a premise we dispute), the ratio should be 1 to 1. We intend to continue our vigorous defense of the Bahamas matter." Halyard Health, Inc. is a medical technology company focused on eliminating pain, speeding recovery and preventing infection for healthcare providers and patients. HALYARD HEALTH: Still Defends Against "Jackson" Case ---------------------------------------------------- Halyard Health, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the company continues to defend against the case, Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al. The Company said, "We were served with a complaint in a matter styled Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., No. 1:16-cv-05093-LTS (S.D.N.Y.), filed on June 28, 2016. In that case, the plaintiff brings a putative class action against the Company, our Chief Executive Officer, our Chief Financial Officer and other defendants, asserting claims for violations of the Securities Exchange Act, Sections 10(b) and 20(a). The plaintiff alleges that the defendants made misrepresentations and failed to disclose certain information about the safety and effectiveness of our MicroCool gowns and thereby artificially inflated the Company's stock prices during the respective class periods. The alleged class period for purchasers of Kimberly-Clark securities who subsequently received Halyard Health securities is February 25, 2013 to October 21, 2014, and the alleged class period for purchasers of Halyard Health securities is October 21, 2014 to April 29, 2016." "On February 16, 2017, we moved to dismiss the case. We intend to continue our vigorous defense of this matter." Halyard Health, Inc. is a medical technology company focused on eliminating pain, speeding recovery and preventing infection for healthcare providers and patients. HEALTHCARE IQ: Brooks Sues Over Unpaid Overtime, Wages Under FLSA ----------------------------------------------------------------- DERRICK BROOKS, And all others similarly situated v. HEALTHCARE IQ, INC., Case No. 8:17-cv-01897-CEH-JSS (M.D. Fla., August 10, 2017), is brought for alleged unpaid wages, and other relief under the Fair Labor Standards Act. The Plaintiff alleges that he was not paid overtime for all of the hours he worked beyond 40 in a single workweek. Healthcare IQ, Inc., provides state-of-the-art health insurance, hospital, and financial data management solutions. The Company operates and conducts business in, among others, Manatee County, Florida.[BN] The Plaintiff is represented by: W. John Gadd, Esq. Bank of America Building 2727 Ulmerton Rd., Suite 250 Clearwater, FL 33762 Telephone: (727) 524-6300 E-mail: wjg@mazgadd.com - and - Kyle J. Lee, Esq. LEE LAW, PLLC PO. Box 4476 Brandon, FL 33509-4476 Telephone: (813) 343-2813 E-mail: Kyle@KyleLeeLaw.com HEALTHSOUTH CORP: Hearing Not Yet Set in "Nichols" Appeal --------------------------------------------------------- HealthSouth Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Supreme Court of Alabama has not yet scheduled a hearing on the appeal in the Nichols Litigation. The Company said, "We have been named as a defendant in a lawsuit filed March 28, 2003 by several individual stockholders in the Circuit Court of Jefferson County, Alabama, captioned Nichols v. HealthSouth Corp. The plaintiffs allege that we, some of our former officers, and our former investment bank engaged in a scheme to overstate and misrepresent our earnings and financial position. The plaintiffs are seeking compensatory and punitive damages. This case was stayed in the Circuit Court on August 8, 2005." "The plaintiffs filed an amended complaint on November 9, 2010 to which we responded with a motion to dismiss filed on December 22, 2010. During a hearing on February 24, 2012, plaintiffs' counsel indicated his intent to dismiss certain claims against us. Instead, on March 9, 2012, the plaintiffs amended their complaint to include additional securities fraud claims against HealthSouth and add several former officers to the lawsuit. "On September 12, 2012, the plaintiffs further amended their complaint to request certification as a class action. One of the former officers named as a defendant has repeatedly attempted to remove the case to federal district court, most recently on December 11, 2012. We filed our latest motion to remand the case back to state court on January 10, 2013. On September 27, 2013, the federal court remanded the case back to state court. "On November 25, 2014, the plaintiffs filed another amended complaint to assert new allegations relating to the time period of 1997 to 2002. On December 10, 2014, we filed a motion to dismiss on the grounds the plaintiffs lack standing because their claims are derivative in nature, and the claims are time-barred by the statute of limitations. "On May 26, 2016, the court granted our motion to dismiss. The plaintiffs appealed the dismissal of the case to the Supreme Court of Alabama on June 28, 2016. The Supreme Court has not yet scheduled a hearing on the appeal. "We intend to vigorously defend ourselves in this case. Based on the stage of litigation, review of the current facts and circumstances as we understand them, the nature of the underlying claim, the results of the proceedings to date, and the nature and scope of the defense we continue to mount, we do not believe an adverse judgment or settlement is probable in this matter, and it is also not possible to estimate an amount of loss, if any, or range of possible loss that might result from an adverse judgment or settlement of this case." HealthSouth is one of the nation's largest providers of post-acute healthcare services, offering both facility-based and home-based patient services in 36 states and Puerto Rico through its network of inpatient rehabilitation hospitals, home health agencies, and hospice agencies. HOLOGIC INC: $8.5M Settlement of ARcare Suit Underway ----------------------------------------------------- Hologic, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the settlement of a class action lawsuit between ARcare and Cynosure remains pending. On July 27, 2016, plaintiff ARcare, Inc., individually and as putative representative of a purported nationwide class, filed a complaint against Cynosure. The plaintiff alleges that Cynosure violated the Telephone Consumer Protection Act by: (i) sending fax advertisements that did not comply with statutory and Federal Communications Commission requirements that senders provide recipients with certain information about how to opt out from receiving faxed advertisements in the future; and (ii) sending unsolicited fax advertisements. The complaint sought damages, declaratory and injunctive relief, and attorneys' fees on behalf of a purported class of all recipients of purported fax advertisements that the plaintiff alleges did not receive an adequate opt-out notice. On September 30, 2016, Cynosure answered the complaint and denied liability. On September 7, 2016, the plaintiff sent a demand letter seeking a class settlement for statutory damages under Massachusetts General Laws, Chapter 93A Sec. 9 ("Chapter 93A"). On October 7, 2016, Cynosure responded denying any liability under Chapter 93A, but offering the plaintiff statutory damages of $25 on an individual basis. In March 2017, Cynosure and ARcare entered into a settlement agreement, subject to court approval, which requires Cynosure to pay settlement compensation of $8.5 million notwithstanding the number of claims filed. If approved, Cynosure would receive a full release from the settlement class concerning the conduct alleged in the complaint. As a result of the settlement agreement, Cynosure recorded a charge of $9.2 million, in the period ended December 31, 2016, which is still accrued on the Company's balance sheet as of July 1, 2017. Hologic is a developer, manufacturer and supplier of premium diagnostics products, medical imaging systems and surgical products with an emphasis on women's health. On March 22, 2017, Hologic acquired Cynosure, Inc., a developer and manufacturer of a broad array of light-based aesthetic and medical treatment systems. HPT SUITE: Accused by "Brito" Suit of Violating Disabilities Act ---------------------------------------------------------------- CARLOS G. BRITO, an Individual v. HPT SUITE PROPERTIES TRUST, a Maryland Corporation, and HYATT HOTELS CORPORATION, a Delaware Corporation d/b/a Hyatt Place Colorado Springs, Case No. 1:17-cv- 01934-LTB (D. Colo., August 10, 2017), is brought on behalf of similarly situated mobility-impaired individuals arising from the Defendants' alleged violations of the Americans with Disabilities Act. Mr. Brito contends that he encountered architectural barriers at the Defendants' Hotel Property and Hotel Business, which denied or diminished his ability to visit the Hotel Property and Hotel Business and have endangered his safety. HPT Suite Properties Trust is a Maryland Corporation, with its principal office located in Baltimore, Maryland. The Trust owned and operated a hotel property/place of public accommodation located in Colorado Springs, Colorado. Hyatt Hotels Corporation is a Delaware Corporation, with its principal office located in Chicago, Illinois. Hyatt Hotels owned and operated a hotel business, which holds itself out to the public as "Hyatt Place Colorado Springs" located at 503 West Garden of the Gods Road, in Colorado Springs, Colorado.[BN] The Plaintiff is represented by: Anthony J. Perez, Esq. Alfredo Garcia-Menocal, 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 agmlaw@bellsouth.net IAC/INTERACTIVE CORP: 9th Cir. Affirms Ruling in Shareholder Suit ----------------------------------------------------------------- In the appeals case captioned BRAD GREENSPAN, Plaintiff-Appellant, v. IAC/INTERACTIVECORP, a Delaware corporation; et al., Defendants-Appellees, No. 16-15908 (9th Cir.), Brad Greenspan appeals from the district court's order denying his Federal Rule of Civil Procedure 60(b) motion for relief from the judgment dismissing for failure to prosecute Greenspan's putative shareholder class action. The United States Court of Appeals, Ninth Circuit, has jurisdiction under 28 U.S.C. Section 1291. The Ninth Circuit affirms. In his opening brief, Greenspan failed to challenge the district court's dismissal of his action or any other district court order, and therefore Greenspan waived any challenge. Greenspan's notice of appeal challenging the Securities and Exchange Commission's ("SEC") May 2, 2016 Order Determining Whistleblower Award Claim, which was filed in the district court, should have been filed in this court. The Ninth Circuit construes Greenspan's notice of appeal as a petition for review. In the interests of justice, the Ninth Circuit transfers Greenspan's petition for review to the court. The Clerk is directed to file Greenspan's notice of appeal as a petition for review of the SEC's May 2, 2016 order and open a new case in the court. Greenspan's motion to certify questions of law to the Delaware Supreme Court is denied. A full-text copy of the Ninth Circuit's August 17, 2017 Memorandum is available at http://tinyurl.com/y7hqtheyfrom Leagle.com. INDEPENDENT HOME: Sued Over Failure to Pay Aides Overtime Wages --------------------------------------------------------------- Audrea Mitchell, individually and on behalf of other members of the general public similarly situated v. Independent Home Care, Inc., Case No. 2:17-cv-00717-MHW-CMV (S.D. Ohio., August 15, 2017), is brought against the Defendants for failure to pay home health aides' overtime wages in violation of the Fair Labor Standards Act. Independent Home Care, Inc. is in the business of providing home health care, personal home care services. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 704-0546 Facsimile: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com INTELLIPHARMACEUTICS INT'L: Faces "Braverman" Securities Suit ------------------------------------------------------------- GUY BRAVERMAN, Individually and On Behalf of All Others Similarly Situated v. INTELLIPHARMACEUTICS INTERNATIONAL INC., ISA ODIDI, and DOMENIC DELLA PENNA, Case No. 1:17-cv-06045 (S.D.N.Y., August 10, 2017), accuses the Defendants of violating the Securities Exchange Act of 1934 by making materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Plaintiff alleges, the Defendants made false and misleading statements, and failed to disclose that: (i) IntelliPharma failed to conduct a human abuse liability study to support its Rexista New Drug Application ("NDA"); (ii) the Company did not include abuse-deterrent studies conducted to support abuse-deterrent label claims related to abuse of the drug by various pathways, including oral, intra-nasal and intravenous routes of abuse abuse; (iii) IntelliPharma was not submitting sufficient data to support approval of the Rexista NDA; and (iv) as a result of the foregoing, IntelliPharma's public statements were materially false and misleading at all relevant times. Founded in 1998, IntelliPharma is headquartered in Toronto, Canada. IntelliPharma is a pharmaceutical company specializing in research, development, and manufacture of novel and generic controlled-release and targeted-release oral solid dosage drugs. The Company's main product candidate is Rexista, an abuse- deterrent oxycodone hydrochloride extended release tablets. Isa Odidi co-founded and has served at all relevant times as the Company's Chief Executive Officer and Chief Scientific Officer. Domenic Della Penna has served at all relevant times as the Company's Chief Financial Officer.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com JPMORGAN CHASE: Class Cert. Bid in LIBOR-Related Actions Pending ---------------------------------------------------------------- JPMorgan Chase & Co. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Firm and other defendants have opposed the motion for class certification in the U.S. dollar LIBOR-related actions. The Firm has been named as a defendant along with other banks in a series of individual and putative class actions filed in various United States District Courts. These actions have been filed, or consolidated for pre-trial purposes, in the United States District Court for the Southern District of New York. In these actions, plaintiffs make varying allegations that in various periods, starting in 2000 or later, defendants either individually or collectively manipulated the U.S. dollar LIBOR, Yen LIBOR, Swiss franc LIBOR, Euroyen TIBOR, EURIBOR, Singapore Interbank Offered Rate ("SIBOR"), Singapore Swap Offer Rate ("SOR") and/or the Bank Bill Swap Reference Rate ("BBSW") by submitting rates that were artificially low or high. Plaintiffs allege that they transacted in loans, derivatives or other financial instruments whose values are affected by changes in U.S. dollar LIBOR, Yen LIBOR, Swiss franc LIBOR, Euroyen TIBOR, EURIBOR, SIBOR, SOR or BBSW and assert a variety of claims including antitrust claims seeking treble damages. These matters are in various stages of litigation. The Firm has agreed to settle the putative class actions related to Yen LIBOR, Euroyen TIBOR and Swiss franc LIBOR. Those settlements are subject to further documentation and approval by the Court. In the EURIBOR action, the District Court dismissed all claims except a single antitrust claim and two common law claims, and dismissed all defendants except the Firm and Citibank. In the U.S. dollar LIBOR-related actions, the District Court dismissed certain claims, including the antitrust claims, and permitted other claims under the Commodity Exchange Act and common law to proceed. In May 2016, the United States Court of Appeals for the Second Circuit vacated the dismissal of the antitrust claims and remanded the case to the District Court to consider, among other things, whether the plaintiffs have standing to assert antitrust claims. In July 2016, JPMorgan Chase and other defendants again moved in the District Court to dismiss the antitrust claims, and in December 2016, the District Court granted in part and denied in part defendants' motion, finding that certain plaintiffs lacked standing to assert antitrust claims. Those plaintiffs have filed an appeal. In May 2017, plaintiffs in three putative class actions moved in the District Court for class certification, and the Firm and other defendants have opposed that motion. The Firm is one of the defendants in a number of putative class actions alleging that defendant banks and ICAP conspired to manipulate the U.S. dollar ISDAFIX rates. Plaintiffs primarily assert claims under the federal antitrust laws and Commodity Exchange Act. In April 2016, the Firm settled the ISDAFIX litigation, along with certain other banks. Those settlements have been preliminarily approved by the Court. JPMORGAN CHASE: Supreme Court Petition in Madoff Case Due Sept. --------------------------------------------------------------- JPMorgan Chase & Co. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that Plaintiffs in the Madoff Litigation have until September 2017 to file a petition for writ of certiorari with the United States Supreme Court. A putative class action was filed in the United States District Court for the District of New Jersey by investors who were net winners (i.e., Madoff customers who had taken more money out of their accounts than had been invested) in Madoff's Ponzi scheme and were not included in a prior class action settlement. These plaintiffs alleged violations of the federal securities law, as well as other state and federal claims. The New Jersey court granted a transfer motion to the United States District Court for the Southern District of New York. The New York court granted the Firm's motion to dismiss, and the United States Court of Appeals for the Second Circuit has affirmed that dismissal. Plaintiffs have until September 2017 to file a petition for writ of certiorari with the United States Supreme Court. A similar action was filed in the United States District Court for the Middle District of Florida, although it was not styled as a class action, and included claims pursuant to Florida statutes. The Florida court granted the Firm's motion to dismiss the case, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal, and the United States Supreme Court denied plaintiffs' petition for writ of certiorari. In addition, the same plaintiffs have re-filed their dismissed state claims in Florida state court, where the action is stayed pending resolution of the federal court matters. JPMORGAN CHASE: Appeal in Proprietary Products Litigation Pending ----------------------------------------------------------------- JPMorgan Chase & Co. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that Plaintiffs in the proprietary products litigation have filed a petition for writ of certiorari with the United States Supreme Court, to which the Firm will respond. In December 2015, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC agreed to a settlement with the SEC, and JPMorgan Chase Bank, N.A. agreed to a settlement with the CFTC, regarding disclosures to clients concerning conflicts associated with the Firm's sale and use of proprietary products, such as J.P. Morgan mutual funds, in the Firm's CCB and AWM wealth management businesses, and the U.S. Private Bank's disclosures concerning the use of hedge funds that pay placement agent fees to JPMorgan Chase broker-dealer affiliates. The Firm settled with an additional government authority in July 2016, and continues to cooperate with inquiries from other government authorities concerning disclosure of conflicts associated with the Firm's sale and use of proprietary products. A putative class action, which was filed in the United States District Court for the Northern District of Illinois on behalf of financial advisory clients from 2007 to the present whose funds were invested in proprietary funds and who were charged investment management fees, was dismissed by the Court. The dismissal was affirmed on appeal. Plaintiffs have filed a petition for writ of certiorari with the United States Supreme Court, to which the Firm will respond. KBR INC: Patels' Motion to Appoint Lead Plaintiff Underway ---------------------------------------------------------- KBR, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that Kuberbhai M. Patel and Kanti K. Patel's motion to be appointed for lead plaintiff and to consolidate two class action lawsuits is pending. Susan Denenberg, in a recently filed claim, seeks class action status on behalf of shareholders, alleging violations of Sections 10(b) and 20(a) of the Exchange Act against the Company, and some of its officers. Similar claims were filed in a second lawsuit styled Porter v. KBR, Inc. et al. Movants Kuberbhai M. Patel and Kanti K. Patel filed a motion to be appointed for lead plaintiff and to consolidate both actions. The motion currently is pending. Plaintiffs assert that defendants violated the securities law in connection with KBR's disclosures associated with the SFO's investigations against KBR and its affiliates relating to Unaoil, which the SFO announced in April 2017. KBR disputes plaintiffs' allegations and claims. "At this time, we are not yet able to determine the likelihood of loss, if any, arising from this matter," the Company said. KBR, Inc., a Delaware corporation, was formed on March 21, 2006 and is headquartered in Houston, Texas. KBR, Inc. and its wholly owned and majority-owned subsidiaries is a global provider of differentiated, professional services and technologies across the asset and program life-cycle within the government services and hydrocarbons industries. KONA GRILL: Faces "Boots" Class Suit in Minnesota ------------------------------------------------- Mitchell Boots has filed a class action lawsuit against Kona Grill, Inc., the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017. On July 27, 2017, a class action complaint was filed against Kona Sushi, Inc., a wholly-owned subsidiary of the Company, by Mitchell Boots, individually and on behalf of a Proposed Rule 23 Class, in the United States District Court for Minnesota claiming, among other things, that the Company violated Minnesota gratuity/tip pooling laws with respect to certain classes of restaurant employees. The plaintiff has brought claims on behalf of a putative Minnesota class and a putative national class of employees. The Company is investigating the claims made in such complaint although it does not expect the result of such complaint to have a material adverse effect on the Company. Kona Grill, Inc., including its wholly-owned subsidiaries, owns and operates upscale casual dining restaurants under the name "Kona Grill." LABORATORY CORPORATION: "Jansky" Suit Dismissed ----------------------------------------------- Yvonne Jansky v. Laboratory Corporation of America, et al., has been dismissed, Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017. On June 7, 2012, the Company was served with a putative class action lawsuit, Yvonne Jansky v. Laboratory Corporation of America, et al., filed in the Superior Court of the State of California, County of San Francisco. The lawsuit alleged that the defendants committed unlawful and unfair business practices, and violated various other state laws by changing screening codes to diagnostic codes on laboratory test orders, thereby resulting in customers being responsible for co-payments and other debts. The lawsuit sought injunctive relief, actual and punitive damages, as well as recovery of attorney's fees, and legal expenses. In June 2015, Plaintiff's Motion for Class Certification was denied. The Plaintiff appealed the denial of Class Certification, and the Court of Appeal affirmed the denial of the Motion for Class Certification on January 20, 2017. On July 26, 2017, the parties reached a settlement of the Plaintiff's individual claim, and the lawsuit was dismissed on July 26, 2017. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LABORATORY CORPORATION: Sandusky Wellness Suit Remains Pending -------------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company continues to defend against the case, Sandusky Wellness Center, LLC, et al. v. MEDTOX Scientific, Inc., et al. On August 24, 2012, the Company was served with a putative class action lawsuit, Sandusky Wellness Center, LLC, et al. v. MEDTOX Scientific, Inc., et al., filed in the United States District Court for the District of Minnesota. The lawsuit alleges that on or about February 21, 2012, the defendants violated the U.S. Telephone Consumer Protection Act (TCPA) by sending unsolicited facsimiles to Plaintiff and more than 39 other recipients without the recipients' prior express invitation or permission. The lawsuit seeks the greater of actual damages or the sum of $0.0005 for each violation, subject to trebling under the TCPA, and injunctive relief. In September of 2014, Plaintiff's Motion for Class Certification was denied. In January of 2015, the Company's Motion for Summary Judgment on the remaining individual claim was granted. Plaintiff filed a notice of appeal. On May 3, 2016, the United States Court of Appeals for the Eighth Circuit issued its decision and order reversing the District Court's denial of class certification. The Eighth Circuit remanded the matter for further proceedings. On December 7, 2016, the District Court granted the Plaintiff's renewed Motion for Class Certification. The Company will vigorously defend the lawsuit. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LABORATORY CORPORATION: Appeal in "Davis" Suit Underway ------------------------------------------------------- The appeal in the case, Patty Davis v. Laboratory Corporation of America, et al., remains pending, Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017. On August 31, 2015, the Company was served with a putative class action lawsuit, Patty Davis v. Laboratory Corporation of America, et al., filed in the Circuit Court of the Thirteenth Judicial Circuit for Hillsborough County, Florida. The complaint alleges that the Company violated the Florida Consumer Collection Practices Act by billing patients who were collecting benefits under the Workers' Compensation Statutes. The lawsuit seeks injunctive relief and actual and statutory damages, as well as recovery of attorney's fees and legal expenses. In April 2017, the Circuit Court granted the Company's Motion for Judgment on the Pleadings. The Plaintiff has appealed the Circuit Court's ruling to the Florida Second District Court of Appeal. The Company will vigorously defend the lawsuit. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LABORATORY CORPORATION: Motion to Dismiss Sequenom Case Pending --------------------------------------------------------------- Defendants' motion to dismiss in the case, In re Sequenom, Inc. Shareholder Litig., remains pending, Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017. Prior to the Company's acquisition of Sequenom, between August 15, 2016, and August 24, 2016, six putative class-action lawsuits were filed on behalf of purported Sequenom stockholders (captioned Malkoff v. Sequenom, Inc., et al., No. 16-cv-02054- JAH-BLM, Gupta v. Sequenom, Inc., et al., No. 16-cv-02084-JAH-KSC, Fruchter v. Sequenom, Inc., et al., No. 16-cv-02101- WQH-KSC, Asiatrade Development Ltd. v. Sequenom, Inc., et al., No. 16-cv-02113-AJB- JMA, Nunes v. Sequenom, Inc., et al., No. 16-cv-02128-AJB-MDD, and Cusumano v. Sequenom, Inc., et al., No. 16-cv-02134-LAB-JMA) in the United States District Court for the Southern District of California challenging the acquisition transaction. The complaints asserted claims against Sequenom and members of its Board of Directors (the Individual Defendants). The Nunes action also named the Company and Savoy Acquisition Corp. (Savoy), a wholly owned subsidiary of the Company, as defendants. The complaints alleged that the defendants violated Sections 14(e), 14(d)(4) and 20 of the Securities Exchange Act of 1934 by failing to disclose certain allegedly material information. In addition, the complaints in the Malkoff action, Asiatrade action, and Cusumano action alleged that the Individual Defendants breached their fiduciary duties to Sequenom shareholders. The actions sought, among other things, injunctive relief enjoining the merger. On August 30, 2016, the parties entered into a Memorandum of Understanding (MOU) in each of the above-referenced actions. In connection with the settlement, Sequenom agreed to make certain additional disclosures to its stockholders. In September 6, 2016, the Court entered an order consolidating for all pre-trial purposes the six individual actions described above under the caption In re Sequenom, Inc. Shareholder Litig., Lead Case No. 16- cv-02054-JAH-BLM, and designating the complaint from the Malkoff action as the operative complaint for the consolidated action. On November 11, 2016, two competing motions were filed by two separate stockholders (James Reilly and Shikha Gupta) seeking appointment as lead plaintiff under the terms of the Private Securities Litigation Reform Act of 1995. On June 7, 2017, the Court entered an order declaring Mr. Reilly as the lead plaintiff and approving Mr. Reilly's selection of lead counsel. The parties agree that the prior MOU has been terminated. The Court has set a schedule for the filing of a consolidated Amended Complaint and briefing for the Defendants' Motion to Dismiss. The Company will vigorously defend the lawsuit. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LABORATORY CORPORATION: "Bloomquist" Suit Remains Pending --------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company continues to defend against the case, Daniel L. Bloomquist v. Covance Inc., et al. On August 3, 2016, the Company was served with a putative class action lawsuit, Daniel L. Bloomquist v. Covance Inc., et al., filed in the Superior Court of California, County of San Diego. The complaint alleges that Covance Inc. violated the California Labor Code and California Business & Professions Code by failing to provide overtime wages, failing to provide meal and rest periods, failing to pay for all hours worked, failing to pay for all wages owed upon termination, and failing to provide accurate itemized wage statements to Clinical Research Associates and Senior Clinical Research Associates employed by Covance Inc. in California. The lawsuit seeks monetary damages, civil penalties, injunctive relief, and recovery of attorney's fees and costs. On October 13, 2016, the case was removed to the United States District Court for the Southern District of California. On May 3, 2017, the United States District Court for the Southern District of California remanded the case back to the Superior Court. The Company will vigorously defend the lawsuit. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LABORATORY CORPORATION: Bid to Dismiss "Bouffard" Suit Underway --------------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company's Motion to Dismiss Plaintiffs' Complaint and Strike Class Allegation is pending. On March 10, 2017, the Company was served with a putative class action lawsuit, Victoria Bouffard, et al. v. Laboratory Corporation of America Holdings, filed in the United States District Court for the Middle District of North Carolina. The complaint alleges that the Company's patient list prices unlawfully exceed the rates negotiated for the same services with private and public health insurers in violation of various state consumer protection laws. The lawsuit also alleges breach of implied contract or quasi-contract, unjust enrichment, and fraud. The lawsuit seeks statutory, exemplary, and punitive damages, injunctive relief, and recovery of attorney's fees and costs. In May 2017, the Company filed a Motion to Dismiss Plaintiffs' Complaint and Strike Class Allegation; this motion is currently pending. The Company will vigorously defend the lawsuit. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LABORATORY CORPORATION: Named as Defendant in "Gonzalez" Suit ------------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company is defending against the case, Maria T. Gonzalez, et al. v. Examination Management Services, Inc. and Laboratory Corporation of America Holdings. On May 24, 2017, a putative class action lawsuit, Maria T. Gonzalez, et al. v. Examination Management Services, Inc. and Laboratory Corporation of America Holdings, was filed against the Company in the United States District Court for the Southern District of California. The complaint alleges that the Company misclassified phlebotomists as independent contractors through an arrangement with the co-Defendant temporary staffing agency. The complaint further alleges that the Company violated the California Labor Code and California Business and Professions Code by failing to pay minimum wage, failing to pay for all hours worked, failing to pay for all wages owed upon termination, and failing to provide accurate itemized wage statements. The lawsuit seeks monetary damages, civil penalties, injunctive relief, and recovery of attorney's fees and costs. The Company will vigorously defend the lawsuit. Laboratory Corporation of America(R) Holdings together with its subsidiaries (the Company) is a global life sciences company that is deeply integrated in guiding patient care, providing comprehensive clinical laboratory and end-to-end drug development services. LAKELAND REGIONAL: Fails to Pay Overtime, "Amiel" Suit Alleges -------------------------------------------------------------- CYNTHIA AMIEL, And all others similarly situated v. LAKELAND REGIONAL MEDICAL CENTER INC., Case No. 8:17-cv-01896-JDW-MAP, August 10, 2017), alleges that the Defendant failed to pay the Plaintiff overtime for all of the hours she worked beyond 40 in a single workweek. Lakeland Regional Medical Center, Inc., a not for-profit regional health system, provides inpatient and outpatient diagnostic and treatment services in Florida. The Company operates a trauma center, a neonatal intensive care unit, an institute for advanced rehabilitation medicine, and an emergency department.[BN] The Plaintiff is represented by: W. John Gadd, Esq. Bank of America Building 2727 Ulmerton Rd., Suite 250 Clearwater, FL 33762 Telephone: (727) 524-6300 E-mail: wjg@mazgadd.com - and - Kyle J. Lee, Esq. LEE LAW, PLLC 1971 West Lumsden Road, Suite 303 Brandon, FL 33511 Telephone: (813) 343-2813 E-mail: Kyle@KyleLeeLaw.com LOS ANGELES, CA: Sued in California Over Excessive Sewer Use Fees ----------------------------------------------------------------- Adam Hoffman, individually and on behalf of all others similarly situated v. City of Los Angeles, Case No. BC6723226 (Cal. Super. Ct., August 15, 2017), arises from the City's practice of overcharging residential properties of four or fewer units ("Residential Properties" or "Residential Customers") for sewer use as a result of overstating the amount of sewage generated by those customers. City of Los Angeles is a government entity operating under the laws of the State of California. [BN] The Plaintiff is represented by: Lionel Z. Glancy, Esq. Marc L. Godino, Esq. Mark S. Greenstone, Esq. Jonathan M. Rotter, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mgodino@glancylaw.com mgreenstone@glancylaw.com jrotter@glancylaw.com LUMBER LIQUIDATORS: Fails to Pay Employees OT, "Mason" Suit Says ---------------------------------------------------------------- Ashleigh Mason, Dan Morse, Ryan Carroll, and Osagie Ehigie, on behalf of themselves and all others similarly-situated v. Lumber Liquidators, Inc., Case No. 1:17-cv-04780 (E.D.N.Y., August 15, 2017), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. Lumber Liquidators, Inc. is a specialty chain retailer of hardwood flooring with hundreds of store locations through the United States. [BN] The Plaintiff is represented by: Justin R. Marino, Esq. STEVENSON MARINO LLP 75 Maiden Lane, Suite 402 New York, NY 10038 Telephone: (212) 939-7228 Facsimile: (212) 531-6129 E-mail: jmarino@stevensonmarino.com LYFT INC: Faces "Nieves" Suit Over Breach of Service Contract ------------------------------------------------------------- Keara Nieves, on behalf of herself and all others similarly situated v. Lyft, Inc., Case No. 3:17-cv-06146-FLW-DEA (D.N.J., August 15, 2017), is an action for damages as a proximate result of the Defendant's breach of the Lyft Terms of Service Agreement ("LTS"), specifically by failing to pay Lyft Drivers an amount equal to the fare it charged to Rider less Lyft's "Commission" percentage (20% or 25% of the fare, the applicable percentage being based on when the driver contracted with Lyft) and any applicable charges such as service fees, cancellation fees, damages fees, tolls, and surcharges for each successful ride but rather pay drivers based on a calculation of the distance and time actually driven. Lyft, Inc. operates a mobile phone application that allows consumers to obtain transportation services from Lyft drivers. [BN] The Plaintiff is represented by: Stephan T. Mashel, Esq. MASHEL LAW, LLC 500 Campus Drive #303 Morganville, NJ 07751 Telephone: (732) 536-6161 Facsimile: (732) 536-6165 E-mail: smashel@mashellaw.com MASIMO CORP: Suit by Physicians Healthsource Inc. Underway ---------------------------------------------------------- Masimo Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that a complaint filed by Physicians Healthsource, Inc. remains pending. On January 2, 2014, a putative class action complaint was filed against the Company in the U.S. District Court for the Central District of California by Physicians Healthsource, Inc. (PHI). The complaint alleges that the Company sent unsolicited facsimile advertisements in violation of the Junk Fax Protection Act of 2005 and related regulations. The complaint seeks $500 for each alleged violation, treble damages if the District Court finds the alleged violations to be knowing, plus interest, costs and injunctive relief. On April 14, 2014, the Company filed a motion to stay the case pending a decision on a related petition filed by the Company with the Federal Communications Commission (FCC). On May 22, 2014, the District Court granted the motion and stayed the case pending a ruling by the FCC on the petition. On October 30, 2014, the FCC granted some of the relief and denied some of the relief requested in the Company's petition. Both parties appealed the FCC's decision on the petition. On November 25, 2014, the District Court granted the parties' joint request that the stay remain in place pending a decision on the appeal. On March 31, 2017, the D.C. Circuit Court of Appeals vacated and remanded the FCC's decision, holding that the applicable FCC rule was unlawful to the extent it requires opt-out notices on solicited faxes. The stay of the District Court litigation has not yet been lifted. On April 28, 2017, PHI filed a petition seeking rehearing by the D.C. Circuit Court of Appeals. The D.C. Circuit Court of Appeals denied the requested rehearing on June 6, 2017. The plaintiffs have stated that they intend to file a petition to the United States Supreme Court seeking review of the D.C. Circuit Court of Appeals' opinion. The Company believes it has good and substantial defenses to the claims in the District Court litigation, but there is no guarantee that the Company will prevail. The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company in the accompanying condensed consolidated financial statements. Masimo is a global medical technology company that develops, manufactures and markets a variety of noninvasive monitoring technologies. MASIMO CORP: 11th Cir. Seeks Guidance from Alabama Supreme Court ---------------------------------------------------------------- Masimo Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Eleventh Circuit Court of Appeals has issued a Certification to the Supreme Court of Alabama seeking guidance on a legal question. On January 31, 2014, an amended putative class action complaint was filed against the Company in the U.S. District Court for the Northern District of Alabama by and on behalf of two participants in the Surfactant, Positive Pressure, and Oxygenation Randomized Trial at the University of Alabama. On April 21, 2014, a further amended complaint was filed adding a third participant. The complaint alleges product liability and negligence claims in connection with pulse oximeters the Company modified and provided at the request of study investigators for use in the trial. On August 13, 2015, the U.S. District Court for the Northern District of Alabama granted summary judgment in favor of the Company on all claims. The plaintiffs have appealed the U.S. District Court for the Northern District of Alabama's decision. The appellate hearing before the Eleventh Circuit Court of Appeals was held on December 13, 2016, and the parties are awaiting a decision. On July 7, 2017, the Eleventh Circuit Court of Appeals (Eleventh Circuit) issued a Certification to the Supreme Court of Alabama seeking guidance on a legal question. In that Certification, the Eleventh Circuit stated that the plaintiffs failed to establish that participation in the clinical study caused any injuries, and that the negligence, negligence per se, breach of fiduciary duty and products liability claims, which includes the claims currently alleged against the Company, were properly dismissed. The Company is unable to determine whether any loss will ultimately occur or to estimate the range of such loss; therefore, no amount of loss has been accrued by the Company in the accompanying consolidated financial statements. Masimo is a global medical technology company that develops, manufactures and markets a variety of noninvasive monitoring technologies. MDL 2262: Cal. Direct Plaintiffs Appeal Order in Libor MDL ---------------------------------------------------------- The California Direct Action Plaintiffs appeal from the Corrected Order for Entry of Partial Final Judgment pursuant to Federal Rule of Civil Procedure 54(b) entered on July 19, 2017, in the multidistrict litigation titled In re: LIBOR-Based Financial Instruments Antitrust Litigation, Master File No. 1:11-md-02262- NRB, in the U.S. District Court for the Southern District of New York. The California Direct Action Plaintiffs are The Regents of the University of California, East Bay Municipal Utility District, San Diego Association of Governments, City of Richmond, The Richmond Joint Powers Financing Authority, Successor Agency to the Richmond Community Redevelopment Agency, City of Riverside, The Riverside Public Financing Authority, County of Mendocino, County of Sacramento, County of San Diego, County of San Mateo, The San Mateo County Joint Powers Financing Authority, County of Sonoma, and David E. Sundstrom, in his official capacity as Treasurer of the County of Sonoma. As previously reported in the Class Action Reporter, several Plaintiffs have also filed appeals in the litigation. The Plaintiffs in the MDL allege that the Defendants conspired to artificially depress USD LIBOR for profit- and reputation-based reasons. The Defendants then sold price-fixed financial instruments incorporating USD LIBOR to U.S. financial institutions, including the Petitioners. The Petitioners also allege a broader conspiracy in which the Defendants agreed to boycott actual or potential LIBOR competitors in the market for interest-rate benchmarks to facilitate their price-fixing agreements. The appellate case is captioned as In re: LIBOR-Based Financial Instruments Antitrust Litigation, Case No. 17-2413, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Appellants California Direct Action Plaintiffs are represented by: Nanci E. Nishimura, Esq. COTCHETT, PITRE & McCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 E-mail: nnishimura@cpmlegal.com - and - Alexander E. Barnett, Esq. COTCHETT, PITRE & McCARTHY, LLP 40 Worth Street, 10th Floor New York, NY 10013 Telephone: (212) 201-6820 Facsimile: (917) 398-7753 E-mail: abarnett@cpmlegal.com Plaintiffs FTC Capital GMBH, on behalf of themselves and all others similarly situated, FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, FTC Futures Fund SICAV and Carpenters Pension Fund of West Virginia are represented by: Christopher Lovell, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 61 Broadway, Suite 501 New York, NY 10006 Telephone: (212) 608-1900 Facsimile: (212) 719-4677 E-mail: clovell@lshllp.com - and - Daniel Hume, Esq. David E. Kovel, Esq. Roger W. Kirby, Esq. Surya Palaniappan, Esq. KIRBY MCINERNEY LLP 825 Third Avenue, 16th Floor New York, NY 10022 Telephone: (212) 317-2300 Facsimile: (212) 751-2540 E-mail: dhume@kmllp.com dkovel@kmllp.com roger.w.kirby@gmail.com spalaniappan@kmllp.com - and - Samuel Howard Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com Plaintiffs FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, and FTC Futures Fund SICAV are represented by: Andrew Martin McNeela, Esq. Karen M. Lerner, Esq. Meghan Joan Summers, Esq. Thomas W. Elrod, Esq. KIRBY MCINERNEY LLP 825 Third Avenue, 16th Floor New York, NY 10022 Telephone: (212) 371-6600 Facsimile: (212) 751-2540 E-mail: amcneela@kmllp.com klerner@kmllp.com msummers@kmllp.com telrod@kmllp.com - and - Christopher F. Moriarty, Esq. MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Telephone: (843) 216-9000 Facsimile: (843) 216-9450 E-mail: cmoriarty@motleyrice.com - and - Merrill G. Davidoff, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3084 Facsimile: (215) 875-4671 E-mail: mdavidoff@bm.net Plaintiff Carpenters Pension Fund of West Virginia is represented by: Darren J. Robbins, Esq. David W. Mitchell, Esq. Lucas F. Olts, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: darrenr@rgrdlaw.com davidm@rgrdlaw.com lolts@rgrdlaw.com Plaintiff City of Dania Beach Police & Firefighters' Retirement System, Individually and on behalf of all others similarly situated, is represented by: George E. Barrett, Esq. Timothy L. Miles, Esq. BARRETTE, JOHNSTON & PARSLEY 217 2nd Avenue N Nashville, TN 37201 Telephone: (615) 244-2202 E-mail: gbarrett@barrettjohnston.com tmiles@barrettjohnston.com Plaintiff Ravan Investments, LLC, is represented by: Jay W. Eisenhofer, Esq. Peter Anthony Barile, III, Esq. GRANT & EISENHOFER P.A. 485 Lexington Avenue, 29th Floor New York, NY 10017 Telephone: (646) 722-8512 Facsimile: (646) 722-8501 E-mail: jeisenhofer@gelaw.com pbarile@scott-scott.com - and - John D. Radice, Esq. RADICE LAW FIRM, P.C. 34 Sunset Blvd. Long Beach, NJ 08008 Telephone: (646) 245-8502 Facsimile: (646) 385-0745 E-mail: jradice@radicelawfirm.com - and - Kevin Bruce Love, Esq CRIDEN & LOVE, P.A. 220 Alhambra Cir #400 Coral Gables, FL 33134 Telephone: (305) 357-9000 Facsimile: (305) 357-9050 E-mail: klove@cridenlove.com - and - Michael E. Criden, Esq. CRIDEN & LOVE, P.A. 200 South Biscayne Boulevard, Suite 2100 Miami, FL 33131 Telephone: (305) 579-1222 E-mail: mcriden@cridenlove.com Defendants Bank of America Corporation and Bank of America, N.A., are represented by: Paul Steel Mishkin, Esq. Arthur J. Burke, Esq. Edward Fu, Esq. Neal Alan Potischman, Esq. Patrick Wyatt Blakemore, Esq. Peter John Davis, Esq. Robert Frank Wise, Jr., Esq. DAVIS POLK & WARDWELL L.L.P. 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4292 Facsimile: (212) 450-3292 E-mail: paul.mishkin@dpw.com arthur.burke@davispolk.com edward.fu@davispolk.com Neal.Potischman@dpw.com patrick.blakemore@davispolk.com peter.davis@davispolk.com rwise@dpw.com - and - Julie Saranow Epley, Esq. DAVIS POLK & WARDWELL L.L.P. 1600 El Camino Real Menlo Park, CA 94025 Telephone: (650) 752-2061 E-mail: julie.saranow@dpw.com Defendants Barclays Bank Plc, Barclays Capital Inc. and Barclays U.S. Funding LLC are represented by: Amos Emory Friedland, Esq. BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8248 Facsimile: (914) 749-8300 E-mail: afriedland@bsfllp.com - and - David Harold Braff, Esq. Jeffrey T. Scott, Esq. Yvonne Susan Quinn, Esq. SULLIVAN AND CROMWELL, LLP 125 Broad Street New York, NY 10004 Telephone: (212) 558-4705 Facsimile: (212) 558-3333 E-mail: braffd@sullcrom.com scottj@sullcrom.com quinny@sullcrom.com - and - Jonathan David Schiller, Esq. BOIES SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 E-mail: jschiller@bsfllp.com Defendant Citibank NA is represented by: Alan M. Wiseman, Esq. Jonathan James Gimblett, Esq. Thomas A. Isaacson, Esq. COVINGTON & BURLING, LLP One City Center 850 10th Street NW Washington, DC 20001 Telephone: (202) 662-6000 Facsimile: (202) 662-6261 E-mail: awiseman@cov.com jgimblett@cov.com tisaacson@cov.com - and - Andrew Arthur Ruffino, Esq. COVINGTON & BURLING LLP 620 Eighth Avenue New York, NY 10018-1405 Telephone: (212) 841-1000 Facsimile: (212) 841-1010 E-mail: aruffino@cov.com - and - Tammy Albarran, Esq. COVINGTON & BURLING LLP One Front Street San Francisco, CA 94111 Telephone: (415) 591-6000 Facsimile: (415) 955-6566 E-mail: talbarran@cov.com - and - David Marx, Esq. Mark Jacob Altschul, Esq. MCDERMOTT, WILL & EMERY LLP 227 West Monroe Street, #4400 Chicago, IL 60606-5096 Telephone: (312) 372-2000 E-mail: dmarx@mwe.com maltschul@mwe.com MDL 2672: Executive VW Not Class Member, Court Rules ---------------------------------------------------- The United States District Court, Northern District of California, issued an Order regarding Motion to Enforce the Volkswagen-Branded Franchise Dealer Class Action Settlement Agreement in the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Order Relates To: Dkt. Nos. 3378, 3514, 3520, MDL No. 2672 CRB (JSC) (N.D. Cal.). The Environmental Protection Agency issued a notice of violation to Volkswagen, asserting that the company violated the Clean Air Act by using a defeat device in thousands of its "clean diesel" vehicles. The disclosure gave rise to a flood of litigation against Volkswagen, including suits by Volkswagen-branded franchise dealers. A class of dealers ultimately settled their claims against Volkswagen, as set forth in the Court-approved Volkswagen-Branded Franchise Dealer Class Action Settlement Agreement. Pursuant to the Settlement Agreement, Volkswagen Group of America, Inc. ("VWGoA") has agreed to make a series of payments "directly to . . . Class Members." Class Members are defined as "all authorized Volkswagen dealers in the United States who, on September 18, 2015, operated a Volkswagen branded dealership pursuant to a valid Volkswagen Dealer Agreement," and who did not opt-out of the Settlement. JO Imports Ltd., d/b/a/Executive Volkswagen of North Haven, currently operates a Volkswagen-branded franchise dealership located in North Haven, Connecticut. Executive VW purchased the dealership from Montesi Motors, Inc., in 2015. Although Executive VW and Montesi executed an Asset Purchase and Sale Agreement on July 11, 2015, the sale did not close until November 3, 2015, and Executive VW did not become an authorized Volkswagen dealer until November 4, 2015, when VWGoA and Executive VW executed a Volkswagen Dealer Agreement. Because Montesi was the authorized Volkswagen dealer for the North Haven dealership on September 18, 2015, VWGoA has and continues to make settlement payments to Montesi, not Executive VW. Executive VW filed a breach of contract action against Montesi in Connecticut Superior Court asserting that it entered into an agreement with Montesi before the dealership sale closed, in which Montesi agreed that it would distribute to Executive VW future payments it received from Volkswagen relating to the emissions scandal. Executive VW also filed an interpleader action in Connecticut Superior Court against Montesi, Montesi's president (Gary Montesi), and VWGoA, in which Executive VW asked the Superior Court to determine the parties' respective rights to the Settlement Payments. VWGoA filed a motion in the District Court to enforce the Settlement. In its motion, VWGoA asks the District Court to enjoin the interpleader action and to declare that Montesi, rather than Executive VW, is a Class Member under the Settlement. Executive VW followed by filing a motion to intervene to oppose VWGoA's motion and to file its own motion to enforce the Settlement. In its later-filed motion to enforce the Settlement, Executive VW seeks a declaration that it, rather than Montesi, is a Class Member, because it operated the North Haven dealership pursuant to an informal agreement with Montesi. Executive VW also seeks an order directing VWGoA to make settlement payments to it, not Montesi, and requests that the Court hold an evidentiary hearing. The Court first grants Executive VW's motion to intervene. A key question before the Court is whether Executive VW is a Class Member. Executive VW has a significant protectable interest in the resolution of that question. Executive VW also satisfies the other elements to intervene as of right. The Court denies Executive VW's motion to enforce the Settlement. Executive VW seeks a declaration that it, rather than Montesi, is a Class Member, because it operated the North Haven dealership pursuant to an informal agreement with Montesi. Even if Executive VW exercised day-to-day control over the North Haven dealership. Executive VW acknowledges that it was not an authorized Volkswagen dealer as of that date, and that its operation of the dealership at that time was not pursuant to a valid Volkswagen Dealer Agreement. Executive VW therefore falls outside the definition of a Class Member. And because Executive VW is not a Class Member, VWGoA is not required to make settlement payments to Executive VW. As for VWGoA's motion to enforce the Settlement, the Court grants in part and denies in part the motion. The Court grants the motion to the extent VWGoA seeks a declaration that Executive VW is not a Class Member. But the Court denies VWGoA's requests for an order enjoining the Connecticut interpleader action, and for an order declaring that Montesi is a Class Member. There is no reason to believe that the Connecticut Superior Court will seek to interpret the Settlement Agreement in a way that conflicts with the District Court's judgments, in light of the District Court's determination that Executive VW is not a Class Member, the District Court holds. For sake of clarity, it is also not necessary, nor is it appropriate, for the District Court to interfere with Executive VW's breach of contract action against Montesi in Connecticut Superior Court. As for VWGoA's request for a declaration that Montesi is a Class Member, the only party challenging Montesi's status as a Class Member is Executive VW, but Executive VW lacks standing to assert such a challenge because it is not a party to the Settlement Agreement. The requested declaration is therefore not appropriate. Executive VW's motion to intervene is granted. Executive VW's motion to enforce the Settlement is denied. VWGoA's motion to enforce the Settlement is granted in part and denied in part. Executive VW is not a Class Member under the Volkswagen-Branded Franchise Dealer Class Action Settlement Agreement. A full-text copy of the District Court's August 17, 2017 Order is available http://tinyurl.com/ybnr3re6from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey, - rob@hbsslaw.com - Hagens Berman Sobol Shapiro LLP, pro hac vice. Nicholas Benipayo, Plaintiff, represented by Steve W. Berman - steve@hbsslaw.com - Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser - toml@hbsslaw.com - Hagens Berman Sobol Shapiro LLP, pro hac vice. David Fiol, Plaintiff, represented by William M. Audet, - waudet@audetlaw.com - Audet & Partners, LLP, Jeff D. Friedman - jefff@hbsslaw.com - Hagens Berman Sobol Shapiro LLP, Peter B. Fredman - peter@peterfredmanlaw.com - Law Office of Peter Fredman, Robert B. Carey - rob@hbsslaw.com - Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart - astewart@shulaw.com - Shapiro Haber & Urmy LLP & Thomas G. Shapiro - tshapiro@shulaw.com - Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Nicholas Allen, Plaintiff, represented by Caleb Marker - caleb.marker@zimmreed.com - Zimmerman Reed LLP, pro hac vice & Charles S. Zimmerman - charles.zimmerman@zimmreed.com - Zimmerman Reed, PLLP, pro hac vice. Brett Alters, Plaintiff, represented by Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser Heimann & Bernstein, LLP & Tana Lin, Keller Rohrback LLP., 275 Battery St Fl 29. San Francisco, CA 94111 Donald Ardine, Plaintiff, represented by Amy Williams-Derry - awilliams-derry@kellerrohrback.com - Keller Rohrback L.L.P., Dean Noburu Kawamoto - dkawamoto@kellyrohrback.com - Keller Rohrback LLP, Derek William Loeser - dloeseer@kellerrohrback.com - Keller Rohrback, LLP, Gretchen Freeman Cappio gcappio@kellerrohrback.com - Keller Rohrback, LLP, pro hac vice, Lynn Lincoln Sarko - lsarko@kellerrohrback.com - Keller Rohrback L.L.P., pro hac vice & Tana Lin - tlin@kellerrohrback.com - Keller Rohrback LLP. Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio, Keller Rohrback, LLP, pro hac vice, Lynn Lincoln Sarko, Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Arkansas State Highway Employees Retirement System, Plaintiff, represented by Jai K. Chandrasekhar - jai@blbglaw.com - Bernstein Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod - jim.harrod@blbglaw.com - Bernstein Litowitz Berger Grossmann LLP, Matthew I. Henzi - mhenzi@swappc.com - Sullivan, War, Niki L. Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M. Shikowitz - ross@blbglaw.com - Bernstein Litowitz Berger Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law Offices of Susan R. Podolsky. Volkswagen Group of America, Inc., Defendant, represented by Amie Adelia Vague - avague@lightfootlaw.com - Lightfoot Franklin & White, Casey Erin Lucier - clucier@mcguirewoods.com - McGuireWoods LLP, Charles J. Baker, III - cbaker@wcsr.com - Womble Carlyle Sandridge and Rice, Colin Hampton Tucker - chtucker@rhodesokla.com - Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang - wlang@wcsr.com - Womble Carlyle Sandridge and Rice, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC, Elizabeth L. Deeley, Kirkland & Ellis LLP, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and Rice, Howard Feller, McGuireWoods LLP, Hugh J. Bode, Reminger & Reminger Co LPA, J. Randolph Bibb, Jr., Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey, Johns & Bell LTD, Jeffrey Lance Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg, Brownstein Hyatt Farber Schreck, LLP. Audi AG, Defendant, represented by Elizabeth L. Deeley - elizabeth.deeley@kirkland.com - Kirkland & Ellis LLP, Matthew Henry Marmolejo - mmarmolejo@mayerbrown.com - Mayer Brown LLP, Michael Howard Steinberg - steinbergm@sullcrom.com - Sullivan & Cromwell, LLP, Andrew Brian Clubok - andrew.clubok@kirkland.com - Kirkland & Ellis, pro hac vice, Andrew R. Levin - levin@sugarmanrogers.c0m -, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland - bleland@verrilldana.com - Verrill Dana LLP, David Maxwell James Rein - reind@sullcrom.com - Sullivan & Cromwell LLP, G. Stewart Webb, Jr. - gswebb@Venable.com - Venable LLP, Garrett L. Boehm, Jr. - boehmg@jbltd.com - Johnson & Bell LTD, J. Gordon Cooney, Jr. - gordon.cooney@morganlewis.com - Morgan Lewis & Bockius LLP, James K. Toohey - tooheyj@jbltd.com - Johns & Bell LTD, John Thomas Prisbe - jtprisbe@venable.com - Venable LLP, Laura Kabler Oswell - oswelll@sullcrom.com - Sullivan & Cromwell LLP, Robert J. Giuffra, Jr.- giuffrar@sullcrom.com - Sullivan and Cromwell LLP, Ryan P. McCarthy - ryan.mccarthy@morganlewis.com - Morgan, Lewis & Bockius LLP, Sharon L. Nelles - nelless@sullcrom.com - Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stephen D. Bell - bell.steve@dorsey.com - Dorsey & Whitney LLP, Stuart A. Drake - stuart.drake@kirkland.com - Kirkland and Ellis LLP, pro hac vice & William B. Monahan - monahanw@sullcrom.com - Sullivan and Cromwell LLP. Volkswagen AG, Defendant, represented by Elizabeth L. Deeley, Kirkland & Ellis LLP, Matthew Henry Marmolejo, Mayer Brown LLP, Michael Howard Steinberg, Sullivan & Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David Maxwell James Rein, Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan and Cromwell LLP. Audi of America LLC, Defendant, represented by Matthew Henry Marmolejo, Mayer Brown LLP, Andrew R. Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, C. Vernon Hartline, Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC, David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David Maxwell James Rein, Sullivan & Cromwell LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Michael R. Williams, Bush Seyferth & Paige PLLC, Ritchie E. Berger, Esq., Dinse, Knapp & McAndrew, P.C., Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stephen D. Bell, Dorsey & Whitney LLP, W. Scott O'Connell, Nixon Peabody LLP, pro hac vice & William B. Monahan, Sullivan and Cromwell LLP. Volkswagen Group of America, a New Jersey corporation, Defendant, represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC, Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP. Audi of America, Inc., Defendant, represented by Matthew Henry Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan & Cromwell LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC, Colin H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, David Maxwell James Rein, Sullivan & Cromwell LLP, pro hac vice, John H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, Laura Kabler Oswell, Sullivan & Cromwell LLP, Melissa Fletcher Allaman, Nelson, Mullins, Riley & Scarborough, LLP, Michael R. Williams, Bush Seyferth & Paige PLLC, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP. Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L. Parsons -aparsons@kslaw.com - King & Spalding LLP, Adam G. Sowatzka -asowatzka@kslaw.com - King & Spalding LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland - bleland@verrilldana.com - David M. Fine - dfine@kslaw.com - King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP, Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines, King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert, King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP, Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A. Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T. Bradshaw, KING & SPALDING, Sonya R. Braunschweig - sbraunschweig@briggs.com - DLA Piper LLP, W. Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F. Kiniry, Jr., DLA Piper LLP, pro hac vice. David Antellocy, Defendant, represented by Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Scott Moen, Defendant, represented by Peter B. Fredman, Law Office of Peter Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Porsche AG, Defendant, represented by Alexander K. Haas, King & Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA Piper LLP. MEADWESTVACO CORP: Del. Court Dismisses Stockholders' Suit ---------------------------------------------------------- The Court of Chancery of Delaware issued a Memorandum Opinion and Order granting Defendant's Motion to Dismiss the case captioned IN RE MEADWESTVACO STOCKHOLDERS LITIGATION, Consolidated C.A. No. 10617-CB (Del. Ch.). In this action, stockholders of MeadWestvaco Corporation seek damages relating to a strategic stock-for-stock merger of equals between MeadWestvaco and Rock-Tenn Company that closed. The complaint asserts a claim for breach of fiduciary duty against the members of the MeadWestvaco board, and a second claim for aiding and abetting against Rock-Tenn. The core issue before the Court is whether the complaint contains factual allegations sufficient to state a reasonably conceivable claim against MeadWestvaco's directors for bad faith in connection with their approval of the merger. Plaintiffs CWA Local 1180 Administrative Fund and CWA Local 1180 Members Annuity Fund allege they held shares of MeadWestvaco at all relevant times. Vertical Research Partners published an analyst note proposing a merger between RockTenn and MeadWestvaco. The note stated that RockTenn, which faced a billion-dollar pension deficit, could benefit from MeadWestvaco's pension surplus, which exceeded $1 billion. That same month, Starboard Value LP, a well-known activist investment firm, began purchasing MeadWestvaco stock. Starboard Acquires a 5.6% Stake and Sends a Letter to the Board The MeadWestvaco board received a letter from Starboard stating that it had acquired approximately 5.6% of MeadWestvaco's outstanding common stock, making it one of the Company's largest stockholders. Starboard asserted in the letter that the Company was not operating at its full potential and demanded an overhaul of the Company through cost cutting and the sale of its specialty chemicals business. After the transaction was announced, three class action lawsuits were filed, which were consolidated. Defendants moved to dismiss the Complaint under Court of Chancery Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The standards governing a motion to dismiss for failure to state a claim for relief are well settled: (i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the non-moving party; and (iv) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. Defendants make essentially two arguments in response -- that the allegations of the Complaint do not plead a viable claim for bad faith and, even if they did, that the board's decision to approve the merger was cleansed under Corwin v. KKR Fin. Holdings, LLC and its progeny by virtue of the stockholders' overwhelming approval of the merger. Count I Fails to State a Claim for Bad Faith This Court has held on numerous occasions that to state a bad- faith claim, a plaintiff must show either [1] an extreme set of facts to establish that disinterested directors were intentionally disregarding their duties or [2] that the decision under attack is so far beyond the bounds of reasonable judgment that it seems essentially inexplicable on any ground other than bad faith. The Complaint's allegations fall far short of pleading the extreme set of facts necessary to establish a reasonably conceivable bad- faith claim on the theory that the concededly overwhelming majority of disinterested and independent MeadWestvaco directors (8 of 9) intentionally disregarded their fiduciary duties with respect to the process that led to the merger. The allegations in the Complaint also do not support a reasonable inference that the ultimate decision to approve a strategic merger that impliedly valued the Company at approximately $9 billion was itself an act of bad faith. First, the MeadWestvaco board negotiated an exchange ratio representing a 9.1% premium to its stockholders in a strategic merger between two widely-held companies where MeadWestvaco stockholders obtained 50.1% of the combined entity even though, according to information provided to the board, MeadWestvaco contributed less than 50% of the combined company's revenue, net income, and EBITDA. Second, three separate, nationally recognized financial advisors, none of which are alleged to be conflicted, opined that the merger was fair to MeadWestvaco's stockholders. A board's receipt of a fairness opinion typically supports a factual inference that the board acted properly when deciding to proceed with a transaction. Third, the deal protections in the Merger Agreement, which included a fiduciary-out and a $230 million break-up fee, concededly were reasonable. The $3 billion in value that plaintiffs assert was left on the table is approximately thirteen times the size of the break-up fee. Count II Fails to State a Claim for Aiding and Abetting To adequately plead an aiding and abetting claim, plaintiffs must allege facts demonstrating (1) the existence of a fiduciary relationship, (2) a breach of the fiduciary's duty (3) knowing participation in that breach by the defendants, and (4) damages proximately caused by the breach. Count II fails to state a claim for a second reason. The knowing participation element of an aiding and abetting claim is a stringent standard that turn[s] on proof of scienter. But the Complaint contains no non-conclusory facts suggesting that RockTenn knew that MeadWestvaco's directors, who oversaw a process in which MeadWestvaco terminated negotiations on at least two occasions and obtained a premium for its stockholders after rejecting an at market proposal, had failed to discharge their fiduciary duties Defendants' motions to dismiss are granted. A full-text copy of the Court of Chancery's August 17, 2017 Memorandum Opinion and Order is available at http://tinyurl.com/yayfddhafrom Leagle.com. Peter B. Andrews - pandrews@andrewsspringer.com - Craig J. Springer - cspringer@andrewsspringer.com - and David M. Sborz - dsborz@andrewsspringer.com - of ANDREWS & SPRINGER LLC, Wilmington, Delaware; Gregory M. Nespole - gmn@whafh.com - Mark C. Rifkin - rifkin@whafh.com - Anita B. Kartalopoulos - abk@whafh.com - and Kevin G. Cooper - kcooper@whafh.com - of WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP, New York, New York; Lead Attorneys for Plaintiff. Gregory P. Williams - williams@rlf.com - and Sarah A. Clark - sclark@rlf.com - of RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Rachelle Silverberg - RSilverberg@wlrk.com - and A.J. Martinez - AJMartinez@wlrk.com - of WACHTELL, LIPTON, ROSEN & KATZ, New York, New York; Attorneys for Defendants MeadWestvaco Corporation, John A. Luke, Jr. Michael E. Campbell, James G. Kaiser, Richard B. Kelson, Susan J. Kropf, Gracia C. Martore, James E. Nevels, Timothy H. Powers, and Alan D. Wilson. William M. Lafferty wlafferty@mnat.com and Ryan D. Stottmann -- rstottman@mnat.com -=-- of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Gary A. Bornstein -- gbornstein@cravath.com -- of CRAVATH, SWAINE & MOORE LLP, New York, New York; Attorneys for Defendant Rock-Tenn Company. MICROSOFT CORP: Hearing to Begin Sept. in British Columbia Case --------------------------------------------------------------- Microsoft Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on August 2, 2017, for the fiscal year ended June 30, 2017, that a six-month oral hearing is scheduled to commence in September 2017 in the antitrust, unfair competition, and overcharge class action in British Columbia. The Company said, "Antitrust and unfair competition class action lawsuits were filed against us in British Columbia, Ontario, and Quebec, Canada. All three have been certified on behalf of Canadian indirect purchasers who acquired licenses for Microsoft operating system software and/or productivity application software between 1998 and 2010." "The trial of the British Columbia action commenced in May 2016. The plaintiffs filed their case in chief in August 2016, setting out claims made, authorities, and evidence in support of their claims. A six-month oral hearing is scheduled to commence in September 2017, consisting of cross examination on witness affidavits. "The Ontario and Quebec cases are inactive." Microsoft is a technology company. MICROSOFT CORP: Canadian Cell Phone Suit Remains Dormant -------------------------------------------------------- Microsoft Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on August 2, 2017, for the fiscal year ended June 30, 2017, that the Canadian cell phone class action has been dormant for more than two years. Nokia, along with other handset manufacturers and network operators, is a defendant in a 2013 class action lawsuit filed in the Supreme Court of British Columbia by a purported class of Canadians who have used cellular phones for at least 1,600 hours, including a subclass of users with brain tumors. Microsoft was served with the complaint in June 2014 and has been substituted for the Nokia defendants. The litigation has been dormant for more than two years. U.S. cell phone litigation Microsoft also disclosed that, "Nokia, along with other handset manufacturers and network operators, is a defendant in 19 lawsuits filed in the Superior Court for the District of Columbia by individual plaintiffs who allege that radio emissions from cellular handsets caused their brain tumors and other adverse health effects. We assumed responsibility for these claims as part of our acquisition of Nokia's Devices and Services business and have been substituted for the Nokia defendants. Nine of these cases were filed in 2002 and are consolidated for certain pre- trial proceedings; the remaining 10 cases are stayed. In a separate 2009 decision, the Court of Appeals for the District of Columbia held that adverse health effect claims arising from the use of cellular handsets that operate within the U.S. Federal Communications Commission radio frequency emission guidelines ("FCC Guidelines") are pre-empted by federal law. The plaintiffs allege that their handsets either operated outside the FCC Guidelines or were manufactured before the FCC Guidelines went into effect. The lawsuits also allege an industry-wide conspiracy to manipulate the science and testing around emission guidelines." "In 2013, defendants in the consolidated cases moved to exclude plaintiffs' expert evidence of general causation on the basis of flawed scientific methodologies. In 2014, the trial court granted in part and denied in part defendants' motion to exclude plaintiffs' general causation experts. The defendants filed an interlocutory appeal challenging the standard for evaluating expert scientific evidence, which the District of Columbia Court of Appeals heard en banc. In October 2016, the Court of Appeals issued its decision adopting the standard advocated by defendants and remanding the cases to the trial court for further proceedings under that standard. Plaintiffs have filed a motion to reopen discovery and file additional expert evidence." Microsoft is a technology company. MOLSON COORS: Still Faces "Hughes" Suit in Canada ------------------------------------------------- Molson Coors Brewing Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company continues to defend against the lawsuit by David Hughes and 631992 Ontario Inc. On December 12, 2014, a notice of action captioned David Hughes and 631992 Ontario Inc. v. Liquor Control Board of Ontario ("LCBO"), Brewers Retail Inc., Labatt Breweries of Canada LP, Molson Coors Canada and Sleeman Breweries Ltd. No. CV-14-518059- 00CP was filed in Ontario, Canada in the Ontario Superior Court of Justice. BRI and its owners, including Molson Coors Canada, as well as the LCBO are named as defendants in the action. The plaintiffs allege that The Beer Store (retail outlets owned and operated by BRI) and LCBO improperly entered into an agreement to fix prices and market allocation within the Ontario beer market to the detriment of licensees and consumers. The plaintiffs seek to have the claim certified as a class action on behalf of all Ontario beer consumers and licensees and, among other things, damages in the amount of approximately CAD 1.4 billion. "We note that The Beer Store operates according to the rules established by the Government of Ontario for regulation, sale and distribution of beer in the province. Additionally, prices at The Beer Store are independently set by each brewer and are approved by the LCBO on a weekly basis. As such, we currently believe the claim has been made without merit, and we intend to vigorously assert and defend our rights in this lawsuit," the Company said. Molson Coors Brewing Company is one of the world's largest brewers and has a diverse portfolio of owned and partner brands, including core brands Carling, Coors Light, Miller Lite, Molson Canadian and Staropramen, as well as craft and specialty beers such as Blue Moon, Creemore Springs, Cobra, Doom Bar, Henry's Hard Soda and Leinenkugel's. MONDELEZ INTERNATIONAL: Class Suit in Discovery ----------------------------------------------- Mondelez International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that a class action lawsuit against Mondelez Global and Kraft Foods Group is now in discovery. The Company said, "In April 2013, the staff of the U.S. Commodity Futures Trading Commission ("CFTC") advised us and Kraft Foods Group that it was investigating activities related to the trading of December 2011 wheat futures contracts that occurred prior to the Spin-Off of Kraft Foods Group. We cooperated with the staff in its investigation." "On April 1, 2015, the CFTC filed a complaint against Kraft Foods Group and Mondelez Global LLC ("Mondelez Global") in the U.S. District Court for the Northern District of Illinois, Eastern Division (the "CFTC action"). The complaint alleges that Kraft Foods Group and Mondelez Global (1) manipulated or attempted to manipulate the wheat markets during the fall of 2011; (2) violated position limit levels for wheat futures and (3) engaged in non- competitive trades by trading both sides of exchange-for-physical Chicago Board of Trade wheat contracts. The CFTC seeks civil monetary penalties of either triple the monetary gain for each violation of the Commodity Exchange Act (the "Act") or $1 million for each violation of Section 6(c)(1), 6(c)(3) or 9(a)(2) of the Act and $140,000 for each additional violation of the Act, plus post-judgment interest; an order of permanent injunction prohibiting Kraft Foods Group and Mondelez Global from violating specified provisions of the Act; disgorgement of profits; and costs and fees. "In December 2015, the court denied Mondelez Global and Kraft Foods Group's motion to dismiss the CFTC's claims of market manipulation and attempted manipulation, and the parties are now in discovery. "Additionally, several class action complaints were filed against Kraft Foods Group and Mondelez Global in the U.S. District Court for the Northern District of Illinois by investors in wheat futures and options on behalf of themselves and others similarly situated. The complaints make similar allegations as those made in the CFTC action and seek class action certification; an unspecified amount for damages, interest and unjust enrichment; costs and fees; and injunctive, declaratory and other unspecified relief. "In June 2015, these suits were consolidated in the Northern District of Illinois. In June 2016, the court denied Mondelez Global and Kraft Foods Group's motion to dismiss, and the parties are now in discovery. "It is not possible to predict the outcome of these matters; however, based on our Separation and Distribution Agreement with Kraft Foods Group dated as of September 27, 2012, we expect to bear any monetary penalties or other payments in connection with the CFTC action." Mondelez International manufactures and markets primarily snack food products, including biscuits (cookies, crackers and salted snacks), chocolate, gum & candy and various cheese & grocery products, as well as powdered beverage products. MONSANTO COMPANY: Court Narrows Claims in "Lamders" --------------------------------------------------- The United States District Court, Eastern District of Missouri, Southeastern Division, issued an Memorandum and Order granting in part and denying in part Defendant's Motion to Dismiss the case captioned STEVEN W. LANDERS, et al., on behalf of themselves, all other similarly situated, and the Class they seek to represent, Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 1:17-CV-20- SNLJ (E.D. Mo.). Plaintiffs' Count VIII for Unjust Enrichment and Count X for Civil Conspiracy are dismissed. Plaintiffs Steven and Deloris Landers are soybean, corn, and cotton farmers in New Madrid County, Missouri. They filed this action on behalf of a class of plaintiffs who farm in Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas, and whose crops were affected by the herbicide dicamba. Defendant Monsanto has moved to dismiss. Plaintiffs further allege that defendant's representatives made a practice of directing farmers who purchased the Xtend seeds to illegally spray dicamba to their Xtend crops to protect their crops. Plaintiffs claim they were harmed by defendant's release of the Xtend seeds because it was foreseeable that third-party farmers who purchased the seeds would illegally spray older formulations of dicamba onto their own crops to kill weeds, and that dicamba drifted onto plaintiff's property, causing millions of dollars of damages. Plaintiffs identify eleven counts in their complaint, including (1) strict liability defective design; (2) strict liability -- failure to warn; (3) negligent design and marketing;(4) negligent failure to warn; (5) negligent training; (6) breach of implied warranty of merchantability; (7) fraudulent concealment; (8) unjust enrichment; (9) punitive damages; (10) civil conspiracy; and (11) class action. Proximate Cause Common to all of plaintiffs' claims is the element of proximate causation. To prevail, plaintiffs must establish that defendant's actions proximately caused plaintiffs' injury. Defendant suggests that because it did not manufacture, distribute, or sell the dicamba that allegedly caused plaintiffs' damages, that it cannot be held liable for those damages Proximate causation is found when the defect in a product is the "cause or act of which the injury was the natural and probable consequence. The Court noted that even to the extent the third-party farmers' unlawful conduct was foreseeable, that foreseeability was negated by the GE seeds' product warning labels, which prominently advised that it was illegal to use dicamba with the seeds. However, the Court later denied Monsanto's motion to dismiss and granted the Bader Farms plaintiffs' motion to amend their complaint when those plaintiffs added as plaintiffs allege here that Monsanto's representatives actually advised third party farmers to apply the old dicamba product to their Xtend crops. As this Court stated, although the Court maintains reservation about whether defendant's action or inaction proximately caused plaintiffs' injuries, the allegation that defendant's representatives instructed seed-purchasing farmers to illegally spray dicamba on the defendant's seeds, if true, would seemingly negate the effectiveness of the product use labels attached to defendant's seeds in addition to altering the proximate causation analysis of this case. Plaintiffs have adequately pleaded causation. Duty of Care Next, defendant asserts that it owed plaintiffs no duty of care to prevent injuries caused by other manufacturers' products. Defendant is of course correct that it is not an innkeeper or other property owner in a premises liability action typical to this line of authority. But defendant knew that "old" dicamba could cause damage to neighboring crops, and, according to the allegations, defendant released a seed that invited the dangerous herbicide's use. Defendant's representatives are alleged to have in fact promoted its use. Those allegations squarely distinguish plaintiffs' case here from those in which courts have found a manufacturer owed plaintiffs no duty of care regarding actions by third parties. The Court holds that plaintiffs have sufficiently alleged that defendant owed a duty of care to plaintiffs. Fraudulent Concealment Plaintiffs allege that defendant concealed (1) the risks to third parties of illegal herbicide spraying from farmers, state regulatory and legislative bodies, farming associations, the general public, and Plaintiffs, (2) that defendant had created a situation where illegal spraying would happen, and (3) that catastrophic damage would occur to third parties as a result. To prevail on this claim, plaintiffs must show that defendant had a duty to speak. The Court agrees that the risks of illegal dicamba use is readily available information. However, that alone is not the only subject of plaintiffs' fraudulent concealment claim. Plaintiffs also claim that the defendant concealed its knowledge that use of dicamba by farmers on the GE seeds was inevitable. Plaintiffs even claim that Monsanto representatives told its GE seed buyers to apply dicamba in contravention of the warning label and despite the known risks to third parties. Thus, plaintiffs do plead that defendant had superior knowledge or information about the risks of dicamba use as it pertained to defendant's products such that a duty to speak arose. Although tenuous, for purposes of a motion to dismiss, plaintiffs have sufficiently stated a claim for fraudulent concealment. Civil Conspiracy To demonstrate a civil conspiracy existed, plaintiffs must show: (1) two or more persons; (2) with an unlawful objective; (3) after a meeting of the minds; (4) committed at least one act in furtherance of the conspiracy; and (5) [plaintiffs were] thereby damaged. The Court finds that plaintiffs have not sufficiently articulated the elements regarding unlawful objective and meeting of the minds. Plaintiffs state that defendant conspired with farmers to market the GE seeds so that other farmers would have no choice but to use the GE seeds themselves. However, plaintiffs' allegations do not support that the other farmers agreed to help sell defendant's seeds. Nor do plaintiffs even allege that defendant told GE seed buyers that they were required to use dicamba. Despite the contortions plaintiffs have attempted in order to hold the defendant and (nonparty) farmers responsible for co-conspirator liability, the allegations are simply too vague and tenuous to support a conspiracy claim. Count X will be dismissed. Unjust Enrichment Finally, defendant argues that plaintiffs' claim for unjust enrichment should be dismissed. Plaintiffs claim defendant was enriched by the sale, profits, and anticipated profits of its GE seeds from a benefit conferred by duping the public and cynically marketing" an unsafe product that resulted in destruction of plaintiffs' property. They have pleaded that they were harmed as a result of defendant's actions, but they have not alleged plaintiffs themselves conferred a benefit on defendant. Defendant Monsanto's motion to dismiss is denied in part and granting in part. Plaintiffs' Count VIII for Unjust Enrichment and Count X for Civil Conspiracy are dismissed. A full-text copy of the District Court's August 17, 2017 Memorandum and Order is available at http://tinyurl.com/ybegwolp from Leagle.com. Steven Wayne Landers, Plaintiff, represented by Billy R. Randles, RANDLES AND SPLITTGERBER, LLP. 3341 Campbell StKansas City, MO, 64109-1737 Steven Wayne Landers, Plaintiff, represented by Angela Marie Splittgerber, RANDLES AND SPLITTGERBER, LLP & Beverly Turina Randles, RANDLES AND SPLITTGERBER, LLP. 3341 Campbell StKansas City, MO, 64109-1737 Deloris Irene Landers, Plaintiff, represented by Billy R. Randles, RANDLES AND SPLITTGERBER, LLP, Angela Marie Splittgerber, RANDLES AND SPLITTGERBER, LLP & Beverly Turina Randles, RANDLES AND SPLITTGERBER, LLP. Monsanto Company, Defendant, represented by Ann E. Sternhell Blackwell, THOMPSON COBURN, LLP, 505 N 7th St Ste 3500Saint Louis, MO 63101-1623 & Jeffrey A. Masson - jmasson@thompsoncoburn.com - THOMPSON COBURN, LLP. MRV COMMUNICATIONS: Still Defending "Vo" Class Action in Calif. --------------------------------------------------------------- The case, Nhan T. Vo, individually and on behalf of other aggrieved employees vs. MRV Communications, Inc., Superior Court of California, County of Los Angeles, remains pending, MRV Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017. On June 27, 2013, the plaintiff in this matter filed a lawsuit against the Company alleging claims for failure to properly pay overtime or provide meal and rest breaks to its non-exempt employees in California, among other things. The complaint seeks an unspecified amount of damages and penalties under provisions of the Labor Code, including the Labor Code Private Attorneys General Act. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. Management believes it has accrued adequate reserves for this matter and does not expect the matter to have a material adverse effect on its business or financial condition. However, depending on the actual outcome of this case, further provisions could be recorded in the future which may have a material adverse effect on the Company's operating results. In April 2017, MRV received a complaint from Nestor Hilsenrat, a former employee, and a request for a labor board hearing. Mr. Hilsenrat, who had been working in Argentina as the Company's Regional Sales Director for Caribbean and Latin America prior to being terminated as part of a reduction in force, claims that MRV improperly calculated severance payouts related to his termination. Mr. Hilsenrat alleges that MRV owes additional severance along with penalties and interest totaling approximately $2.9 million. Management believes that these allegations are without merit and therefore has not accrued any provisions as of June 30, 2017. However, depending on the actual outcome of the prcoeedings, provisions could be recorded in the future which may have a material adverse effect on the Company's operating results. MRV Communications, Inc. and subsidiaries, a Delaware corporation, is a global supplier of communications solutions to telecommunications service providers, data center operators, enterprises and governments throughout the world. MRV COMMUNICATIONS: Facing "Kachelmyer" Class Action ---------------------------------------------------- MRV Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the claims in the case, Kachelmyer v. MRV Communications, Inc., et al., have no merit. On July 2, 2017, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with ADVA NA Holdings, Inc. ("Parent"), and Golden Acquisition Corporation, a wholly-owned Subsidiary of Parent ("Merger Sub").Concurrently with entering into the Merger Agreement, ADVA Optical Networking SE ("ADVA SE"), the German parent company of Parent, is guarantying for the benefit of the Company the payment obligations of Parent and Merger Sub under the Merger Agreement. On July 21, 2017, a putative securities class action complaint (the "Kachelmyer Complaint") for an action captioned Kachelmyer v. MRV Communications, Inc., et al. was filed in the Superior Court of California, Los Angeles County. The complaint names as defendants the members of the MRV Board of Directors, as well as MRV. The complaint purports to be brought individually and on behalf of similarly situated public shareholders of MRV and alleges, among other things, that the members of the MRV Board of Directors breached their fiduciary duties to the stockholders of MRV by approving the Merger Agreement and the transactions contemplated therein (the "Transactions") on terms and conditions alleged to be materially unfair to MRV's stockholders, and by issuing allegedly materially incomplete and misleading disclosures in connection therewith in the Schedule 14D-9. The complaint seeks, among other things, (i) injunctive relief, including enjoining the MRV Board of Directors, and anyone acting in concert with them, from consummating the Transactions, (ii) certification of the action as a class action, (iii) in the event the Transactions are consummated, rescinding the Transactions or awarding damages to MRV's stockholders, (iv) an award of attorneys' fees and other fees and costs and (v) such other further relief as the court deems just and proper. The Company says a preliminary injunction could delay or jeopardize the completion of the Transactions, and permanent injunctive relief could indefinitely enjoin completion of the Transactions. MRV believes that the claims stated in the Kachelmyer Complaint have no merit; however, the outcome of this matter is uncertain. MRV Communications, Inc. and subsidiaries, a Delaware corporation, is a global supplier of communications solutions to telecommunications service providers, data center operators, enterprises and governments throughout the world. MRV COMMUNICATIONS: Facing "Allia" Class Action ----------------------------------------------- MRV Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the claims in the case, Allia v. MRV Communications, Inc. et al., have no merit. On July 2, 2017, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with ADVA NA Holdings, Inc. ("Parent"), and Golden Acquisition Corporation, a wholly-owned Subsidiary of Parent ("Merger Sub").Concurrently with entering into the Merger Agreement, ADVA Optical Networking SE ("ADVA SE"), the German parent company of Parent, is guarantying for the benefit of the Company the payment obligations of Parent and Merger Sub under the Merger Agreement. On July 24, 2017, a putative securities class action complaint (the "Allia Complaint") for an action captioned Allia v. MRV Communications, Inc., et al. was filed in the United States District Court for the Central District of California by Peter Allia, a purported owner of Shares, on behalf of himself and all other public stockholders of MRV, against MRV and the members of the MRV Board of Directors in connection with the pending Offer, the Merger and the other transactions contemplated by the Merger Agreement. The Allia Complaint claims that, among other things, the members of the MRV Board of Directors breached their fiduciary duties to the stockholders of MRV by approving the Merger Agreement and the transactions contemplated thereby on terms and conditions alleged to be materially unfair to MRV's stockholders and by allegedly omitting and misrepresenting material information on MRV's Schedule 14D-9 in connection therewith, with such material information alleged to include, among other things, MRV's financial projections and sales process and certain financial analyses performed by Cowen in connection with the pending Offer, the Merger and the other transactions contemplated by the Merger Agreement. The Allia Complaint further alleges that MRV and the members of the MRV Board of Directors violated Section 14(e) and 20(a) of the Exchange Act by issuing the Schedule 14D-9 with such alleged omissions and misrepresentations of material information as described in the immediately preceding sentence. The Allia Complaint seeks various remedies, including, among other things, (i) certification of the action as a class action, (ii) enjoining the pending Offer and the Merger, (iii) in the event the Offer and the Merger are consummated, rescinding them and setting them aside or awarding rescissory damages, (iv) declaring the Merger Agreement unlawful and unenforceable, (v) awarding damages to the plaintiff and the public stockholders of MRV, (vi) awarding the plaintiff fees and expenses (including reasonable attorneys' and experts' fees and expenses) incurred by the plaintiff in connection with the litigation and (vii) granting such other and further relief as the court may deem just and proper. MRV says a preliminary injunction could delay or jeopardize the completion of the Transactions, and permanent injunctive relief could indefinitely enjoin completion of the Transactions. MRV believes that the claims stated in the Allia Complaint have no merit; however, the outcome of this matter is uncertain. MRV Communications, Inc. and subsidiaries, a Delaware corporation, is a global supplier of communications solutions to telecommunications service providers, data center operators, enterprises and governments throughout the world. MRV COMMUNICATIONS: Facing "Chelvaratnam" Class Action ------------------------------------------------------ MRV Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the claims stated in the case, Chelvaratnam v. Ken Traub, et al., have no merit. On July 2, 2017, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with ADVA NA Holdings, Inc. ("Parent"), and Golden Acquisition Corporation, a wholly-owned Subsidiary of Parent ("Merger Sub").Concurrently with entering into the Merger Agreement, ADVA Optical Networking SE ("ADVA SE"), the German parent company of Parent, is guarantying for the benefit of the Company the payment obligations of Parent and Merger Sub under the Merger Agreement. On July 25, 2017, a putative class action complaint (the "Chelvaratnam Complaint") for an action captioned Chelvaratnam v. Ken Traub, et al., was filed in the Superior Court of the State of California for the County of Los Angeles by Ravindran Chelvaratnam, a purported owner of Shares, on behalf of himself and all other public stockholders of MRV, against the members of the MRV Board of Directors in connection with the pending Offer and the Merger. The Chelvaratnam Complaint claims that, among other things, the members of the MRV Board of Directors breached their fiduciary duties to the stockholders of MRV by approving the Merger Agreement and the Transactions on terms and conditions and through processes alleged to be materially unfair to MRV's stockholders, and by issuing allegedly materially incomplete and misleading disclosures in connection therewith in the Schedule 14D-9. The Chelvaratnam Complaint seeks various remedies, including, among other things, (i) certification of the action as a class action; (ii) preliminarily and permanently enjoining the Merger from being consummated, (iii) to the extent already implemented, rescinding the Merger Agreement or any of the terms thereof, or granting the plaintiff and MRV's public stockholders rescissory damages, (iv) directing the defendants to account to the plaintiff and the public stockholders of MRV for all damages allegedly suffered, (v) awarding the plaintiff fees and expenses (including reasonable attorneys' and experts' fees and expenses) incurred by the plaintiff in connection with the action and (vi) granting such other and further relief as the court may deem just and proper. A preliminary injunction could delay or jeopardize the completion of the Offer or the Merger, and permanent injunctive relief could indefinitely enjoin completion of the Offer or the Merger. MRV believes that the claims stated in the Chelvaratnam Complaint have no merit; however, the outcome of this matter is uncertain. MRV Communications, Inc. and subsidiaries, a Delaware corporation, is a global supplier of communications solutions to telecommunications service providers, data center operators, enterprises and governments throughout the world. MRV COMMUNICATIONS: Facing "Scarantino" Class Action ---------------------------------------------------- MRV Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the claims stated in the case, Scarantino v. MRV Communications, Inc., have no merit. On July 2, 2017, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with ADVA NA Holdings, Inc. ("Parent"), and Golden Acquisition Corporation, a wholly-owned Subsidiary of Parent ("Merger Sub").Concurrently with entering into the Merger Agreement, ADVA Optical Networking SE ("ADVA SE"), the German parent company of Parent, is guarantying for the benefit of the Company the payment obligations of Parent and Merger Sub under the Merger Agreement. On July 25, 2017, a putative securities class action complaint (the "Scarantino Complaint") for an action captioned Scarantino v. MRV Communications, Inc., et al. was filed in the United States District Court for the Central District of California by Louis Scarantino, a purported owner of Shares, on behalf of himself and all other public stockholders of MRV, against MRV and the members of the MRV Board of Directors in connection with the pending Offer and the Merger. The Scarantino Complaint claims that, among other things, MRV and the members of the MRV Board of Directors violated Sections 14(e), 14(d) and 20(a) of the Exchange Act, as applicable, by allegedly misrepresenting and omitting material information on the Schedule 14D-9 in connection with the pending Offer, the Merger and the Transactions. The Scarantino Complaint seeks various remedies, including, among other things, (i) enjoining the Merger from being consummated, (ii) in the event the Merger is consummated, rescinding it and setting it aside or awarding rescissory damages, (iii) awarding the plaintiff fees and expenses (including reasonable attorneys' and experts' fees and expenses) incurred by the plaintiff in connection with the action and (iv) granting such other and further relief as the court may deem just and proper. A preliminary injunction could delay or jeopardize the completion of the Offer or the Merger, and permanent injunctive relief could indefinitely enjoin completion of the Offer or the Merger. MRV believes that the claims stated in the Scarantino Complaint have no merit; however, the outcome of this matter is uncertain. MRV Communications, Inc. and subsidiaries, a Delaware corporation, is a global supplier of communications solutions to telecommunications service providers, data center operators, enterprises and governments throughout the world. MRV COMMUNICATIONS: Facing "Trottier" Class Action -------------------------------------------------- MRV Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the claims stated in the case, Trottier v. MRV Communications, Inc., et al., have no merit. On July 2, 2017, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with ADVA NA Holdings, Inc. ("Parent"), and Golden Acquisition Corporation, a wholly-owned Subsidiary of Parent ("Merger Sub").Concurrently with entering into the Merger Agreement, ADVA Optical Networking SE ("ADVA SE"), the German parent company of Parent, is guarantying for the benefit of the Company the payment obligations of Parent and Merger Sub under the Merger Agreement. Trottier v. MRV Communications, Inc., et al. On July 27, 2017, a putative securities class action complaint (the "Trottier Complaint") for an action captioned Trottier v. MRV Communications, Inc., et al., Case No. 2:17-cv-05581, was filed in the United States District Court for the Central District of California by Mark Trottier, a purported owner of Shares, on behalf of himself and all other public stockholders of MRV, against MRV and the members of the MRV Board of Directors in connection with the pending Offer and the Merger. The Trottier Complaint claims that, among other things, MRV and the members of the MRV Board of Directors violated Sections 14(e), 14(d)(4) and 20(a) of the Exchange Act and Rule 14a-9 under the Exchange Act (17 C.F.R. Sec. 240.14a-9), as applicable, by allegedly making untrue statements of material fact and allegedly omitting certain material facts relating to the pending Offer, the Merger and the other transactions contemplated by the Merger Agreement on the Schedule 14D-9. The Trottier Complaint seeks various remedies, including, among other things, (i) certification of the action as a class action, (ii) preliminarily and permanently enjoining the Offer and the Merger from being consummated, (iii) in the event the Offer and the Merger are consummated, rescinding them and setting them aside or awarding rescissory damages, (iv) awarding the plaintiff costs (including reasonable attorneys' and experts' fees and expenses) incurred by the plaintiff in connection with the action and (v) granting such further relief as the court deems just and proper. MRV says a preliminary injunction could delay or jeopardize the completion of the Offer or the Merger, and permanent injunctive relief could indefinitely enjoin completion of the Offer or the Merger. MRV believes that the claims in the Trottier Complaint have no merit; however, the outcome of this matter is uncertain. MRV Communications, Inc. and subsidiaries, a Delaware corporation, is a global supplier of communications solutions to telecommunications service providers, data center operators, enterprises and governments throughout the world. NASDAQ INC: Still Defends City of Providence Case ------------------------------------------------- Nasdaq, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company continues to defend against the case, City of Providence v. BATS Global Markets, Inc., et al. The Company is named as one of many defendants in City of Providence v. BATS Global Markets, Inc., et al., 14 Civ. 2811 (S.D.N.Y.), which was filed on April 18, 2014 in the United States District Court for the Southern District of New York. The district court appointed lead counsel, who filed an amended complaint on September 2, 2014. The amended complaint names as defendants seven national exchanges, as well as Barclays PLC, which operated a private alternative trading system. The Company said, "On behalf of a putative class of securities traders, the plaintiffs allege that the defendants engaged in a scheme to manipulate the markets through high-frequency trading; the amended complaint asserts claims against us under Section 10(b) of the Exchange Act and Rule 10b-5, as well as under Section 6(b) of the Exchange Act. We filed a motion to dismiss the amended complaint on November 3, 2014. In response, the plaintiffs filed a second amended complaint on November 24, 2014, which names the same defendants and alleges essentially the same violations. We then filed a motion to dismiss the second amended complaint on January 23, 2015." "On August 26, 2015, the district court entered an order dismissing the second amended complaint in its entirety with prejudice, concluding that most of the plaintiffs' theories were foreclosed by absolute immunity and in any event that the plaintiffs failed to state any claim. "The plaintiffs have appealed the judgment of dismissal to the United States Court of Appeals for the Second Circuit. The Second Circuit heard oral argument on August 24, 2016. On August 25, 2016, the Second Circuit issued an order requesting the SEC's views on whether the district court had subject-matter jurisdiction over the case, and whether the defendants are immune from suit regarding the challenged conduct. "The SEC filed its brief on November 28, 2016. The exchanges and plaintiffs filed supplemental briefs responding to the SEC's brief on December 12, 2016. Given the preliminary nature of the proceedings, and particularly the fact that the complaints have been dismissed, we are unable to estimate what, if any, liability may result from this litigation. However, we believe (as the district court concluded) that the claims are without merit and will continue to litigate vigorously." Nasdaq manages, operates and provides products and services in four business segments: Market Services, Corporate Services, Information Services and Market Technology. NATIONAL COLLEGIATE: Court OKs 15 Trusts' Bid to Dismiss "Winne" ---------------------------------------------------------------- The United States District Court for the District of Maine issued an Order granting the Motions to Dismiss separately filed by defendants in the case captioned JANE C. FORRESTER WINNE, et al., Plaintiffs, v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1, et al., Defendants, No. 1:16-cv-00229-JDL (D. Me.). Jane Forrester Winne, Sarah Coffey, Vickie McMullen, and Karin Hills filed a Second Amended Complaint on behalf of a putative class against 24 named defendants, alleging claims arising out of attempts to collect on student loan debts. Fifteen Defendants, including 13 of the 17 National Collegiate Student Loan Trusts, Wilmington Trust Company, and The First Marblehead Corporation, now known as Cognition Financial Corporation, have moved to dismiss the claims against them. Plaintiffs have moved to supplement the record before the Court related to the motions to dismiss with the deposition of Bradley Luke, an employee of Defendant Transworld Systems, Inc., that was taken in a separate collection action filed against two of the named Plaintiffs. The Plaintiffs allege that they, along with other Maine residents, have been the subject of unlawful and fraudulent student debt collection activities. They allege, inter alia, that a large number of student loans purportedly owned by a series of National Collegiate Student Loan Trusts are not collectible because the Trusts do not have a lawful basis to collect on the loans, and that the collection efforts undertaken by the Defendants violate state and federal law. The Trusts move to dismiss the claims against them for lack of standing and failure to state a claim. Wilmington moves to dismiss the claims against it for lack of personal jurisdiction and failure to state a claim. First Marblehead moves to dismiss the claims against it for lack of standing, lack of personal jurisdiction, and failure to state a claim. To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. The burden of demonstrating that the complaint does not state a claim for which relief can be granted is on the Defendants. Motion to Dismiss for Lack of Personal Jurisdiction A plaintiff has the burden of establishing the court's personal jurisdiction over a defendant Specific jurisdiction exists when the cause of action arises directly out of, or is related to, the defendant's forum-based contacts. For both categories of personal jurisdiction, the defendant must have sufficient "minimum contacts" with the forum; those contacts must be purposeful; and the exercise of jurisdiction must be reasonable under the circumstances. Motion to Dismiss for Lack of Standing Article III of the Constitution limits the judicial power to actual cases and controversies. See Warth v. Seldin, 422 U.S. 490, 498 (1975). "One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Kerin v. Titeflex Corp., 770 F.3d 978, 981 (1st Cir. 2014) (quotation omitted). A plaintiff must plead three elements to satisfy the standing requirement: injury in fact, traceability, and redressability. Motion to Supplement the Record Wilmington and First Marblehead argue that consideration of the deposition testimony would violate the principles underlying Federal Rule of Civil Procedure 32 because they were not given notice of the deposition and did not have the opportunity to be represented by counsel at its taking. Rule 32 states that a deposition may be used against a party at a hearing or trial if the party was present or represented at the taking of the deposition or had reasonable notice of it. By its terms, however, Rule 32 applies to the use of deposition testimony at a hearing or trial, and therefore does not bar consideration of the transcript in ruling on the instant motions. Accordingly, the Plaintiffs' motion to supplement is granted. The Trusts' Motion The Trusts argue that the claims against them should be dismissed because the Plaintiffs lack standing and because the Complaint fails to state a claim. Standing The Trusts assert that at least one named plaintiff in a putative class action must have standing against each individual defendant, and that Plaintiffs have admitted that they do not have standing to sue because they acknowledge that they do not have individual claims against the 13 Trusts that brought the joint motion to dismiss. As a general rule in the First Circuit, named plaintiffs in a class action do not have standing to assert claims against defendants who are not directly implicated in the alleged harms suffered by those named plaintiffs. This case is more similar to Plumbers' Union, in which the First Circuit found no standing. The Trusts share a common Owner Trustee and Special Servicer, similar to the common depositor for the eight Plumbers' Union trusts, but are distinct entities made up of different assets that did not necessarily act in a manner identical to that of the other four Trusts. Plaintiffs therefore have not established that this case fits within the qualification contemplated by Plumbers' Union, and have not demonstrated that they have standing to sue the 13 Trusts who seek dismissal of the Complaint. Failure to State a Claim The Trusts further argue that the Complaint fails to state a claim against them because it does not allege any specific actions by the Trusts. Factual allegations made for the first time in a responsive memorandum are not properly considered in evaluating the sufficiency of a complaint under Rule 12(b)(6). The Complaint does not contain any allegations specific to the 13 Trusts of unlawful or abusive collection activities under the FDCPA or MFDCPA, of unfair or deceptive practices under the UTPA, of false representations constituting fraud, or of the breach of any contract. It therefore fails to state a plausible claim for relief against the 13 Trusts. Wilmington's Motion Wilmington moves to dismiss the Complaint against it for lack of personal jurisdiction and for failure to state a claim. The various agreements governing Wilmington's relationship with the National Collegiate Student Loan Trusts and the other Defendants demonstrate that Wilmington does not exercise the type of control over the actions of the other Defendants that would justify the imputation of their contacts with Maine to Wilmington for jurisdictional purposes. This relationship, as defined by the Administration Agreement, does not involve a sufficient level of control by Wilmington of First Marblehead Data Services' actions to justify the imputation of jurisdictional contacts. But even if it did, First Marblehead Data Services is not a Defendant in this case and is not alleged to have participated in the collection efforts against the named Plaintiffs. Plaintiffs have therefore failed to show that a sufficient, agency-like relationship exists between Wilmington and the other Defendants to justify the imputation of jurisdictional contacts. The exercise of specific personal jurisdiction over Wilmington is therefore not appropriate. Failure to State a Claim Wilmington also argues that the Complaint fails to state a plausible claim against it because it cannot be personally liable for its actions as Owner Trustee, and the Complaint does not contain factual allegations sufficient to support the conclusory allegation that it qualifies as a debt collector under the FDCPA and MFDCPA. Plaintiffs respond that Wilmington is vicariously liable for the actions of the other Defendants by virtue of its asserted agency relationship with the National Collegiate Student Loan Trusts and US Bank. Although a defendant may sometimes be held vicariously liable for the actions of its agents, the Plaintiffs have failed to demonstrate that an agency-like relationship exists between Wilmington and the other Defendants in this case. The Complaint therefore fails to state a plausible claim against Wilmington. First Marblehead's Motion First Marblehead argues that the Court lacks personal jurisdiction over it, that the Plaintiffs do not have standing to bring claims against it, and that the Complaint fails to state a claim against it. Plaintiffs concede that the exercise of general personal jurisdiction is not appropriate. They argue that the Court can exercise specific personal jurisdiction over First Marblehead on the basis of contacts of other Defendants in this case, imputed to First Marblehead based on the relationship among the Defendants. Neither of those alleged actions gives rise to the Plaintiffs' claims in this case, which are focused on allegedly unlawful attempts to collect debt, and therefore neither is a basis for exercising personal jurisdiction over First Marblehead. The evidence produced to support specific jurisdiction must show that the cause of action either arises directly out of, or is related to, the defendant's forum-based contacts. Plaintiffs have failed to establish that the exercise of personal jurisdiction over First Marblehead would be reasonable. Standing First Marblehead also argues that the Plaintiffs lack standing to bring claims against it because they have not alleged that they were harmed in any way by First Marblehead. In order to establish standing, a plaintiff must show a sufficiently direct causal connection between the challenged action and the identified harm. Plaintiffs do not respond to First Marblehead's standing argument in their responsive briefing. They instead suggest that the Court defer ruling on the standing issue, claiming that Rule 12(b)(1) provides for flexibility as to when and how [the Court] determines whether it has jurisdiction. Plaintiffs have not demonstrated that they have standing to bring claims against it. There is therefore no need to defer ruling on the standing question pending additional fact-finding, Failure to State a Claim First Marblehead also asserts that the Complaint fails to state a claim against it, under the standard of Rule 12(b)(6). It argues that the proposed claims under the FDCPA and MFDCPA are barred by the one-year statute of limitations, that Plaintiffs do not sufficiently allege that First Marblehead qualifies as a debt collector under those statutes, and that Plaintiffs have failed to allege any unfair or deceptive practice that would give rise to a claim under the Unfair Trade Practices Act. The Plaintiffs do not directly respond to the arguments about the statute of limitations and the Unfair Trade Practices Act. They argue instead that First Marblehead's alleged relationship with the other Defendants in this case provides a basis for concluding that First Marblehead is a "debt collector" under the FDCPA and MFDCPA. The Complaint does allege that First Marblehead's subsidiaries acted as Special Servicer and Administrator for the Trusts prior to 2012, but that allegation does not support a reasonable inference that a relationship existed between First Marblehead and the other Defendants sufficient to hold First Marblehead liable for the wrongdoing alleged in the Complaint, Thus, Plaintiffs have therefore failed to state a claim against First Marblehead. Plaintiffs' Motion to Supplement is granted. The Motion to Dismiss filed by the 13 National Collegiate Student Loan Trusts is granted. The Motion to Dismiss filed by Wilmington Trust Company is granted. The Motion to Dismiss filed by The First Marblehead Corporation, now known as Cognition Financial Corporation, is granted. A full-text copy of the District Court's August 17, 2017 Order is available at http://tinyurl.com/yc2aptfzfrom Leagle.com. ANE C FORRESTER WINNE, Plaintiff, represented by CYNTHIA A. DILL, LAW OFFICE OF CYNTHIA DILL, 511 Congress Street, Portland, Maine 04104-5011 JANE C FORRESTER WINNE, Plaintiff, represented by WILLIAM K. MCKINLEY -wmckinley@troubhheisler.com - TROUBH HEISLER. SARAH N COFFEY, Plaintiff, represented by CYNTHIA A. DILL, LAW OFFICE OF CYNTHIA DILL. VICKIE L MCMULLEN, Plaintiff, represented by CYNTHIA A. DILL, LAW OFFICE OF CYNTHIA DILL. KARIN A HILLS, Plaintiff, represented by CYNTHIA A. DILL, LAW OFFICE OF CYNTHIA DILL. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1, Defendant, represented by ADAM J. SHUB - ashub@preti.com - PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP, BRIAN D. ROTH - broth@sessions.legal.com - SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, BRYAN C. SHARTLE - bshartle@sessions.legal.com - SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, KRISTEN L. BURGE - kburge@sessions.legal.com - SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, MICHAEL D. ALLTMONT - malltmont@sessions.legal.com -SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice & MICHAEL MESSERSCHMIDT - mmesserschmidt@preti.com - PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3, Defendant, represented by ADAM J. SHUB, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP, BRIAN D. ROTH, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, BRYAN C. SHARTLE, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, KRISTEN L. BURGE, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, MICHAEL D. ALLTMONT, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice & MICHAEL MESSERSCHMIDT, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP. US BANK NATIONAL ASSOCIATION, Defendant, represented by JOHN J. AROMANDO, -jaromando@pierceatwood.com - PIERCE ATWOOD LLP & KATHERINE S. KAYATTA -kkayatta@pierceatwood.com - PIERCE ATWOOD LLP. ABRAHAMSEN RATCHFORD PC, Defendant, represented by DAVID S. SHERMAN, JR. - dsherman@dwmlaw.com - DRUMMOND WOODSUM & KASIA S. PARK - kpark@dwmlaw.com - DRUMMOND WOODSUM. TURNSTILE CAPITAL MANAGEMENT, Defendant, represented by BRIAN D. ROTH, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, BRYAN C. SHARTLE, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, KRISTEN L. BURGE, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, MICHAEL D. ALLTMONT, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, ADAM J. SHUB, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP & MICHAEL MESSERSCHMIDT, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, Defendant, represented by MICHAEL D. ALLTMONT, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, ADAM J. SHUB, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP & MICHAEL MESSERSCHMIDT, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, Defendant, represented by MICHAEL D. ALLTMONT, SESSIONS, FISHMAN, NATHAN & ISRAEL, pro hac vice, ADAM J. SHUB, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP & MICHAEL MESSERSCHMIDT, PRETI, FLAHERTY, BELIVEAU, & PACHIOS, LLP. NATURAL HEALTH: Securities Class Action Stayed until Sept. 25 ------------------------------------------------------------- Natural Health Trends Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that a securities class action has been stayed until September 25, 2017. In January 2016, two putative securities class action complaints were filed against the Company and its top executives in the United States District Court for the Central District of California. On March 29, 2016, the Court consolidated these actions under the caption Ford v. Natural Health Trends Corp., Case No. 2:16-cv-00255-TJH-AFMx, appointed two Lead Plaintiffs, Mahn Dao and Juan Wang, and appointed the Rosen Law Firm and Levi & Korsinsky LLP as co-Lead Counsel for the purported class. Plaintiffs filed a consolidated complaint on April 29, 2016. The consolidated complaint purports to assert claims on behalf of all persons who purchased or otherwise acquired our common stock between March 6, 2015 and March 15, 2016 under (i) Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against the Company and Chris T. Sharng, Timothy S. Davidson and George K. Broady (together, the "Individual Defendants"), and (ii) Section 20(a) of the Securities Exchange Act of 1934 against the Individual Defendants. The consolidated complaint alleges, inter alia, that the Company made materially false and misleading statements regarding the legality of its business operations in China, including running an allegedly illegal multilevel marketing business. The consolidated complaint seeks an indeterminate amount of damages, plus interest and costs. The Company moved to dismiss the consolidated complaint on June 15, 2016. After full briefing and a hearing, the Court denied defendants' motion to dismiss on December 5, 2016. On February 17, 2017, the Company filed an answer to the consolidated complaint. On April 14, 2017, the Court entered an order setting case management deadlines for the case, which include the conclusion of fact discovery in May 2018 and a final pretrial conference in August 2018. On July 10, 2017, the Court entered a stipulation between the parties, postponing all deadlines and staying the case for thirty days to allow the parties to engage in settlement discussions. On July 17, 2017, the parties reached an agreement in principle to settle the action. On July 18, 2017, the parties jointly filed a stipulation and proposed order with the Court, seeking to extend the stay for approximately sixty days to allow them an opportunity to negotiate the terms of a written settlement agreement and prepare and file the documentation necessary to obtain Court approval of the settlement. The Court entered the requested order on July 25, 2017, effecting a further stay of the case until September 25, 2017. If approved, the proposed settlement will be fully funded by the Company's insurers. Defendants continue to believe that these claims are without merit and intend to vigorously defend against them if a settlement is not finalized and approved by the Court. Natural Health is an international direct-selling and e-commerce company. OMEGA PROTEIN: Consolidated Amended Securities Complaint Filed -------------------------------------------------------------- Omega Protein Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the lead plaintiff in a consolidated securities class action lawsuit has filed a consolidated amended complaint. In March and April of 2017, three class action lawsuits were filed against the Company and two of its officers. One of the lawsuits was subsequently voluntarily dismissed and the other two lawsuits were subsequently consolidated into one lawsuit. On July 17, 2017, the lead plaintiff in the consolidated action filed a consolidated amended complaint. As with the pre-consolidated actions, the consolidated amended complaint asserts claims against the Company and two of its officers for alleged violations of Section 10(b) and Section 20(a) of the Exchange Act and Rule 10b-5 under the Exchange Act. The lead plaintiff seeks to represent a proposed class of all persons who purchased or otherwise acquired the Company's securities during the period from August 6, 2013 through March 1, 2017. The consolidated amended complaint seeks damages allegedly caused by alleged materially misleading statements and/or material omissions by the Company and two of its officers, which allegedly operated to inflate artificially the market price of the Company's securities during the class period. The complaint seeks unspecified compensatory damages, including interest thereon, attorneys' fees and other costs. Although the Company believes the allegations in this lawsuit are without merit and intends to contest such litigation vigorously, litigation is subject to inherent uncertainties and we are not able at this time to determine the outcome of this lawsuit or its potential liability, if any. It is possible that an adverse result in the litigation could have a material adverse effect on the Company's business, reputation, results of operations and financial condition. In addition, defending the lawsuit may be costly and could require significant involvement of the Company's senior management and divert management's attention from its business and operations. Omega Protein Corporation (the "Company") is a nutritional products company that develops, produces and delivers products throughout the world to improve the nutritional integrity of foods, dietary supplements and animal feeds. The Company operates through two industry segments: animal nutrition and human nutrition. ONEOK INC: Dismissed from Gas Index Pricing Litigation ------------------------------------------------------ ONEOK, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Court in the Gas Index Pricing Litigation has entered a final judgment dismissing these actions with prejudice as to the COmpant and its affiliates. The Company said, "In March 2017, the United States District Court for the District of Nevada (the Court) entered an order granting summary judgment in favor of our affiliate ONEOK Energy Services Company, L.P. (OESC), the lone defendant in the previously reported Sinclair case. The Court determined that the plaintiff's claim is barred by a release obtained in a prior lawsuit against us and OESC. Upon entry of a final judgment, Sinclair Oil Corporation may pursue an appeal of this determination to the Ninth Circuit Court of Appeals." "We expect that future charges, if any, from the ultimate resolution of the Sinclair case will not be material to our results of operations, financial position or cash flows. "In May 2017, the Court gave final approval to the previously announced settlements of Learjet, Inc., et al. v. ONEOK, Inc., et al. (filed in the District Court of Wyandotte, Kansas, in November 2005, transferred to MDL-1566 in the United States District Court for the District of Nevada); Arandell Corporation, et al. v. Xcel Energy, Inc., et al. (filed in the Circuit Court for Dane County, Wisconsin, in December 2006, transferred to MDL-1566 in the United States District Court for the District of Nevada); Heartland Regional Medical Center, et al. v. ONEOK, Inc., et al. (filed in the Circuit Court of Buchanan County, Missouri, in March 2007, transferred to MDL-1566 in the United States District Court for the District of Nevada); and NewPage Wisconsin System v. CMS Energy Resource Management Company, et al. (filed in the Circuit Court for Wood County, Wisconsin, in March 2009, transferred to MDL-1566 in the United States District Court for the District of Nevada and now consolidated with the Arandell case). Thereafter, the Court entered a final judgment dismissing these actions with prejudice as to us and our affiliates. The final judgment was not appealed and became final and nonappealable in July 2017. The amount paid to settle these cases was not material to our results of operations, financial position or cash flows and was paid with cash on hand." ONEOK INC: Deal Reached Over Attorney's Fees -------------------------------------------- ONEOK, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that in the ONEOK Partners Class Action Litigation, ONEOK Partners have entered into a settlement concerning attorney's fees and expenses for plaintiffs' counsel. In June 2017, ONEOK Partners settled two putative class action lawsuits captioned Juergen Krueger, Individually And On Behalf Of All Others Similarly Situated v. ONEOK Partners, L.P., et al. (filed in the United States District Court for the Northern District of Oklahoma) and Max Federman, On Behalf of Himself and All Others Similarly Situated v. ONEOK Partners, L.P., et al. (filed in the United States District Court for the Northern District of Oklahoma) by agreeing to make certain disclosures about the Merger Transaction in addition to those made in the final proxy statement filed with the SEC. The supplemental disclosure was filed with the SEC on June 12, 2017 and the Krueger and Federman actions were dismissed on June 14, 2017 as moot, with prejudice as to the named plaintiffs and without prejudice as to any other members of a putative class. In July 2017, ONEOK Partners entered into a settlement concerning attorney's fees and expenses for plaintiffs' counsel in an amount immaterial to the Company's results of operations, financial position or cash flows and was paid with cash on hand. OPHTHOTECH CORP: Bid to Join Micholle & Wasson Suits Pending ------------------------------------------------------------ Ophthotech Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that putative lead plaintiffs in the Micholle action have moved to consolidate the Micholle and Wasson lawsuits. On January 11, 2017, a putative class action lawsuit was filed against the Company and certain of its current and former executive officers in the United States District Court for the Southern District of New York, captioned Frank Micholle v. Ophthotech Corporation, et al., No. 1:17-cv-00210. The complaint purports to be brought on behalf of shareholders who purchased the Company's common stock between May 11, 2015 and December 12, 2016. The complaint generally alleges that the Company and certain of its 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 the Company's 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. On March 9, 2017, a second putative class action lawsuit was filed against the Company and the same group of its current and former executive officers in the United States District Court for the Southern District of New York, captioned Wasson v. Ophthotech Corporation, et al., No. 1:17-cv-01758. The complaint purports to be brought on behalf of shareholders who purchased the Company's common stock between May 11, 2015 and December 9, 2016. The allegations made in the complaint are similar to those made in the Micholle complaint. Putative lead plaintiffs in the Micholle action have moved to consolidate the Micholle and Wasson actions. The Company denies any allegations of wrongdoing and intends to vigorously defend against these lawsuits. The Company is unable, however, to predict the outcome of these matters at this time. Moreover, any conclusion of this matter in a manner adverse to the Company and for which it incurs substantial costs or damages not covered by the Company's directors' and officers' liability insurance would have a material adverse effect on its financial condition and business. In addition, the litigation could adversely impact the Company's reputation and divert management's attention and resources from other priorities, including the execution of business plans and strategies that are important to the Company's ability to grow its business, any of which could have a material adverse effect on the Company's business. Ophthotech is a biopharmaceutical company specializing in the development of novel therapeutics to treat ophthalmic diseases, with a focus on orphan and age-related retinal diseases. PROSPECT MEDICAL: Gauzza Sues Over Unpaid Interrupted Meal Breaks ----------------------------------------------------------------- NANCY GAUZZA and MELISSA McCLOSKEY, for themselves and all others similarly situated v. PROSPECT MEDICAL HOLDINGS, INC. and DELAWARE COUNTY MEMORIAL HOSPITAL, Case No. 2:17-cv-03599-WB (E.D. Pa., August 10, 2017), seeks to redress the Defendants' alleged violation of the Fair Labor Standards Act of 1938 and the Pennsylvania Minimum Wage Act of 1968 by knowingly suffering or permitting employees with hands-on patient care responsibilities to experience interrupted meal breaks without properly tracking these interruptions or paying overtime wages due for these breaks. Prospect is a privately-held Delaware corporation with a principal place of business in Los Angeles, California. Prospect currently owns and operates 19 full-service hospitals in six states, including seven hospitals in California, three hospitals in Connecticut, one hospital in New Jersey, four hospitals in Pennsylvania, one hospital in Rhode Island and three hospitals in Texas. DCMH is a 168-bed hospital that offers a broad range of acute and specialized services. Prospect acquired DCMH (along with Crozer- Chester Medical Center, Springfield Hospital and Taylor Hospital) in July 2016 by purchasing the Crozer-Keystone Health System.[BN] The Plaintiffs are represented by: David J. Cohen, Esq. STEPHAN ZOURAS LLP 604 Spruce Street Philadelphia, PA 19106 Telephone: (215) 873-4836 E-mail: dcohen@stephanzouras.com - and - Ryan F. Stephan, Esq. James B. Zouras, Esq. Andrew C. Ficzko, Esq. STEPHAN ZOURAS LLP 205 N. Michigan Avenue, Suite 2550 Chicago, IL 60601 Telephone: (312) 233-1550 E-mail: rstephan@stephanzouras.com jzouras@stephanzouras.com aficzko@stephanzouras.com R1 RCM INC: Class Action Fairness Act Hearing Set for Oct. 4 ------------------------------------------------------------ R1 RCM Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Class Action Fairness Act (CAFA) hearing is set for October 4, 2017. On July 22, 2014, the Company was named as a defendant in a putative class action lawsuit filed in the U.S. District Court for the Eastern District of Michigan (Anger v. Accretive Health, Inc.). The primary allegations are that the Company attempted to collect debts without providing the notice required by the Fair Debt Collection Practices Act and Michigan Fair Debt Collection Practices Act and failed to abide by the terms of an agreed payment plan in violation of those same statutes. On August 27, 2015, the Court granted in part and denied in part the Company's motion to dismiss. An amended complaint was filed on November 30, 2015. Discovery is underway, but on July 15, 2016, the court postponed all deadlines in the case as the parties attempt to finalize a confidential agreement in principle to settle the case. On February 23, 2017, the parties reached a settlement in principle and have filed the proposed class action settlement with the Court, which will now conduct a Class Action Fairness Act (CAFA) hearing on whether to approve of the settlement. Members of the putative class have been notified of the settlement and are given an opportunity to object or opt-out of the settlement between now and the CAFA hearing on October 4, 2017. If the settlement is approved, the Company will pay a total of $1.3 million to a settlement fund to assist members of the class pay off healthcare debt, to pay for class notice and administration, to pay $15,000 to each of the named class representatives and depending upon Court approval, to reimburse plaintiff's attorneys' fees. If the settlement is not approved, the Company believes that it has meritorious defenses and intends to vigorously defend itself against these claims. R1 RCM Inc. (the "Company") is a provider of revenue cycle management ("RCM") services and physician advisory services ("PAS") to healthcare providers. RAGAN & RAGAN: Court Denies "Napolitano" FDCPA Suit --------------------------------------------------- The United States District Court, District of New Jersey, issued an Order granting Defendant's Motion for Judgment on the Pleadings, and denies Plaintiff's Cross-Motion to Amend the Complaint in the case captioned JESSICA NAPOLITANO, on behalf of herself and all others similarly situated, Plaintiffs, v. RAGAN & RAGAN, A Professional Corporation and JOHN DOES 1-25, Defendants, Civil Action No. 15-2732 (FLW) (D.N.J.). Defendant Ragan & Ragan (Defendant), pursuant to Fed. R. Civ. P. 12(c), moves for Judgment on the Pleadings with respect to Plaintiff Jessica Napolitano's Complaint, which accuses Defendant of violating the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Section 1692. Defendant mailed Plaintiff four substantially similar collection letters, generic in form. Each of the collection letters were printed on Defendant's law firm letterhead stating: "This is to advise you that we have been retained by a creditor for the collection of this debt." Plaintiff filed this putative class action, one-count Complaint, individually and on behalf of a class of all others similarly situated, alleging, inter alia, that Defendant violated Sections 1692e, 1692e(3), and 1692e(9) of the FDCPA by mailing collection letters on its firm letterhead, containing an attorney signature without it being from an attorney in any meaningful sense. Defendant move for judgment on the pleadings, arguing that Plaintiff lacks standing to bring suit, and that Plaintiff failed to state a claim under the FDCPA. In response, Plaintiff opposed Defendant's motion, and at the same time, cross-moved to amend the Complaint under Rule 15(a). Motion to Amend Plaintiff's motion to amend, Defendant does not argue, and the Court does not find, that any undue delay, dilatory motive or prejudice exists. Instead, Defendant argues that Plaintiff's proposed amendments as to standing under Article III are futile. To demonstrate standing, a plaintiff must establish: (1) an injury-in-fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. The Court finds that it is evident that Plaintiff alleges a particularized and concrete injury, namely that the debt collection letter sent to Plaintiff was allegedly deceptive by falsely implying that an attorney had meaningfully reviewed the case. Plaintiff avers that particular conduct violates the FDCPA. Indeed, Plaintiff has a substantive, and not merely procedural, statutory right under the FDCPA to be free from receiving allegedly false or deceptive information relating to the collection of a debt, the Court says. Because of the alleged violation, Plaintiff was placed at risk of economic injury by potentially being deceived. Accordingly, Plaintiff has standing to bring suit. The FDCPA prohibits a broad range of false and misleading debt collections activities. Relevant here, an attorney sending a debt collection letter without having meaningfully reviewed the case prior to issuing a collection letter falls within this broad range of false and misleading activities or tactics. Indeed, abuses by attorney debt collectors are more egregious than those of lay collectors because a consumer reacts with far more duress to an attorney's improper threat of legal action than to a debt collection agency committing the same practice. Plaintiff has not sufficiently stated a claim under the FDCPA, the Court finds. Rather, Plaintiff has merely alleged that Defendant violated the FDCPA by mailing four generic collection letters on its firm letterhead, containing an electronically reproduced facsimile of an attorney signature. Plaintiff's sole theory of the case hinges on the presence of the electronically reproduced attorney signature, and Plaintiff provides no allegations surrounding the circumstances of the letters that would imply that Defendant violated the FDCPA. In other words, by only pointing to the electronically reproduced attorney signature, Plaintiff accuses Defendant of violating the FDCPA by failing to meaningfully review her collection files. Contrary to Plaintiff's theory of the case, there is no authority in this district that stands for the proposition that mere presence of an electronically-reproduced attorney signatures is a per se violation under the FDCPA. Hence, simply alleging that a collection letter contains an electronic, facsimile of an attorney signature cannot adequately plead a FDCPA violation under the meaningful review standard. Instead, Plaintiff must allege what specific elements of the letters created the impression that the attorney who signed the collection letters was not meaningfully involved. Similar threadbare allegations regarding collection letters like the ones at issue, have been found by courts in this district to be insufficient to state a claim under the FDCPA. In the present case, Plaintiff has not sufficiently pled that Defendant's collection letters were false or misleading. More particularly, Plaintiff has not adequately alleged what aspects of the letters would give the impression that the attorney did not meaningfully review Plaintiff's files. Defendant's motion for judgment on the pleadings is granted, and Plaintiff's Complaint is dismissed without prejudice. Additionally, Plaintiff's Cross-Motion to amend the Complaint is denied. A full-text copy of the District Court's August 17, 2017 Order is available at http://tinyurl.com/y85gv5ugfrom Leagle.com. JESSICA NAPOLITANO, Plaintiff, represented by ARI HILLEL MARCUS - Ari@MarcusZelman.com - MARCUS ZELMAN LLC. JESSICA NAPOLITANO, Plaintiff, represented by YITZCHAK ZELMAN - Yzelman@MarcusZelman.com - Marcus Zelman, LLC. RAGAN & RAGAN, Defendant, represented by W. PETER RAGAN, SR. - wpr@raganlaw.com - RAGAN & RAGAN PC. REGULUS THERAPEUTICS: Bid to Name Lead Plaintiff under Submission ----------------------------------------------------------------- Regulus Therapeutics Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that a district court has taken the motions to consolidate and to appoint a lead plaintiff under submission. The company said, "On January 31, 2017, a putative class action complaint was filed by Baran Polat in the United States District Court for the Southern District of California, or District Court, against us, Paul C. Grint (our former Chief Executive Officer), and Joseph P. Hagan (then our Chief Operating Officer and currently our President and Chief Executive Officer). The complaint includes claims asserted, on behalf of certain purchasers of our securities, under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended. In general, the complaint alleges that, between January 21, 2016, and June 27, 2016, the defendants violated the federal securities laws by making materially false and misleading statements regarding our business and the prospects for RG-101, thereby artificially inflating the price of our securities. The plaintiff seeks unspecified monetary damages and other relief." "On February 10, 2017, a second putative class action complaint was filed by Li Jin in the District Court against the Company, Mr. Hagan, Dr. Grint, and Timothy Wright, the Company's Chief Research and Development Officer. The Complaint alleges claims similar to those asserted by Mr. Polat. The actions have been related. "On February 17, 2017, the District Court entered an order stating that defendants need not answer, or otherwise respond, until the District Court enters an order appointing, pursuant to the Private Securities Litigation Reform Act of 1995, lead plaintiff and lead counsel, and the parties then submit a schedule to the District Court for the filing of an amended or consolidated complaint and the timing of defendants' answer or response. "On April 3, 2017, two motions for consolidation of the two actions, appointment of lead plaintiff and approval of counsel were filed in the actions, or the Consolidation and Lead Plaintiff Motions. "On June 2, 2017, the District Court took the Consolidation and Lead Plaintiff Motions under submission. "We intend to vigorously defend this matter." Regulus Therapeutics is a clinical-stage biopharmaceutical company focused on discovering and developing first-in-class drugs targeting microRNAs to treat diseases with significant unmet medical need. REVANCE THERAPEUTICS: $6.4M Settlement Granted Final Approval ------------------------------------------------------------- Revance Therapeutics, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on August 2, 2017, that the Court has granted final approval of the settlement of a securities class action. On January 6, 2017, the Superior Court for the County of Santa Clara (the "Court") issued an order (the "Order") preliminarily approving the settlement proposed in the stipulation of settlement by and among the plaintiff class and all named defendants in the action, including the Company (the "Settlement"), in the securities class action complaint captioned City of Warren Police and Fire Retirement System, Individually and on Behalf of All Others Similarly Situated v. Revance Therapeutics, Inc., et al, Case No. 15-CV-287794, and directing that notice of the proposed settlement be given to all members of the plaintiff class. The Court scheduled a hearing on May 19, 2017 to, among other things, make a final determination whether the Settlement is fair, reasonable and adequate and should be approved by the Court. Following the hearing on May 19, 2017, the Court issued an order ruling that, while it appeared that the claims process was proceeding as expected, it was not yet complete. The Court therefore postponed its decision regarding final approval of the Settlement to a later hearing, set for July 28, 2017. At the hearing on July 28, 2017, the Court granted final approval of the Settlement and indicated that the judgment dismissing the action with prejudice would be entered forthwith, thereby ending the litigation. This litigation did not have a material adverse effect on the Company's business, results of operations, financial position or cash flows. The Settlement will result in the creation of a cash settlement fund of $6,400,000. The Settlement Amount, plus accrued interest and minus the costs of the Notice and all costs associated with the administration of the Settlement, as well as any attorneys' fees, expenses, and payment to Plaintiff for its time and expenses in representing the Class that may be approved by the Court, will be distributed to eligible Class Members pursuant to the Plan of Allocation that is described in the Notice. The law firms of Robbins Geller Rudman & Dowd LLP and Vanoverbeke Michaud & Timmony, P.C. represent Class Members. Additional information on the settlement is available at: http://www.revancesecuritiessettlement.com/ RIVERSIDE MOTORS: Has Made Unsolicited Calls, "Farrar" Suit Says ---------------------------------------------------------------- Janet Farrar, on behalf of herself and a class of similarly situated people v. Riverside Motors, Inc., Hopkins And Raines, Inc. and Prosperity Marketing, LLC, Case No. 4:17-cv-00518-BSM (Ark. Cir. Ct., August 15, 2017), seeks to stop the Defendants' practice of placing non-emergency, automated and unsolicited ca1ls to the Plaintiff and class members' cellular phones. Riverside Motors, Inc. operates a used car dealership company at 8 Colonel Glenn Plaza Drive, Little Rock, Arkansas 72210. Hopkins And Raines, Inc. and Prosperity Marketing, LLC operates a marketing company in Arkansas. [BN] The Plaintiff is represented by: Ray Baxter, Esq. Todd Turner, Esq. ARNOLD, BATSON, TURNER & TURNER, P.A. 501 Crittenden Street P.O. Box 480 Arkadelphia, AR 71923 Telephone: (870) 246-9844 Facsimile: (888) 866-9897 ROCKET FUEL: "Debnath" Suit Wants to Enjoin Acquisition by Sizmek ----------------------------------------------------------------- ARNAB DEBNATH, on behalf of himself and all others similarly situated v. ROCKET FUEL INC., E. RANDOLPH WOOTTON III, MONTE ZWEBEN, RICHARD A. FRANKEL, SUSAN L. BOSTROM, RONALD E. F. CODD, WILLIAM W. ERICSON, CLARK M. KOKICH, and JOHN J. LEWIS, Case No. 3:17-cv-04615 (N.D. Cal., August 10, 2017), seeks to enjoin the proposed acquisition of the Company by Sizmek Inc.; in the event the Proposed Transaction is consummated, to recover damages resulting from the Individual Defendants' violations of the Securities Exchange Act of 1934. On July 16, 2017, the Company announced that it had entered into a definitive agreement, by which Sizmek would commence a tender offer to acquire all of the outstanding shares of Rocket Fuel common stock for $2.60 per share in cash in a transaction valued at approximately $145 million. Rocket Fuel is a corporation organized and existing under the laws of the State of Delaware. The Company maintains its principal executive offices in Redwood City, California. Rocket Fuel is a predictive marketing platform. The Individual Defendants are directors and officers of the Company.[BN] The Plaintiff is represented by: Rosemary M. Rivas, Esq. LEVI & KORSINSKY, LLP 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 291-2420 Facsimile: (415) 484-1294 E-mail: rrivas@zlk.com - and - Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. LEVI & KORSINSKY, LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 337-1567 E-mail: denright@zlk.com etripodi@zlk.com SABRA HEALTH: Care Capital Shareholder Suit in Preliminary Stage ---------------------------------------------------------------- Sabra Health Care REIT, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the case, In re Care Capital Properties, Inc. Shareholder Litigation, are in a preliminary stage. On May 7, 2017, the Company and the Operating Partnership entered into an Agreement and Plan of Merger (the "Merger Agreement") with Care Capital Properties, Inc., a Delaware corporation ("CCP"), PR Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company ("Merger Sub"), and Care Capital Properties, L.P. ("CCPLP"), a Delaware limited partnership and wholly-owned subsidiary of CCP. Pursuant to the Merger Agreement, CCP will be merged with and into Merger Sub (the "Merger"), with Merger Sub continuing as the surviving entity in the Merger. Following the Merger, also pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company (the "Subsequent Merger"), with the Company continuing as the surviving entity in the Subsequent Merger. Simultaneously with the Subsequent Merger, also pursuant to the Merger Agreement, CCPLP will be merged with and into the Operating Partnership (the "Partnership Merger"), with the Operating Partnership continuing as the surviving entity in the Partnership Merger. Subsequent to its entry into the Merger Agreement, the Company, the Operating Partnership and Merger Sub were named, in addition to CCP and each member of CCP's board of directors (collectively, "CCP Defendants"), in two putative class action lawsuits (Loeb v. Care Capital Properties, Inc., et al., Case No. 1:17-cv-00866-UNA (D. Del. June 30, 2017), and Klein v. Care Capital Properties, Inc., et al., Case No 1:99-mc-09999 (D. Del. July 10, 2017)) filed in the United States District Court for the District of Delaware. Four other related actions have been filed against only the CCP Defendants, three in the U.S. District Court for the District of Delaware (Gordon v. Care Capital Properties, Inc., et al., Case No. 1:17-cv-00859-LPS; Vineyard v. Care Capital Properties, Inc., et al., Case No. 1:17-cv-00878-LPS; and Parrish v. Care Capital Properties, Inc., et al., Case No. 1:17-cv-00909-LPS) and one in the U.S. District Court for the Northern District of Illinois (Douglas v. Care Capital Properties, Inc., et al., Case No. 1:17- cv-04942). The lawsuits all seek to recover under federal securities laws on the basis that the joint proxy statement/prospectus included in the registration statement filed by the Company with the SEC purportedly omitted to disclose information necessary to make the statements therein not materially false or misleading. The lawsuits seek, among other things, an injunction of the Merger; dissemination of a revised registration statement; declarations that the registration statement violated federal securities laws; damages, including rescissory damages; and an award of costs and attorneys' fees. On July 25, 2017, the five actions filed in the United States District Court for the District of Delaware were consolidated under the lead-case caption In re Care Capital Properties, Inc. Shareholder Litigation, Civil Action No. 1:17-cv-00859-LPS. The lawsuits are in a preliminary stage. The Company believes that these actions are without merit. Sabra's primary business consists of acquiring, financing and owning real estate property to be leased to third party tenants in the healthcare sector. SALOV NORTH: Sweeney Appeals Order in "Kumar" Suit to 9th Circuit ----------------------------------------------------------------- Objector Pamela Sweeney filed an appeal from a court ruling in the lawsuit titled Rohini Kumar, et al. v. Salov North America Corp., Case No. 4:14-cv-02411-YGR, in the U.S. District Court for the Northern District of California, Oakland. The appellate case is captioned as Rohini Kumar, et al. v. Salov North America Corp., Case No. 17-16621, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, Objector Theodore H. Frank filed an appeal from a court ruling in the lawsuit. That appellate case is captioned as Rohini Kumar, et al. v. Salov North America Corp., Case No. 17-16405. Judge Yvonne Gonzalez Rogers has previously dismissed with prejudice the case pursuant to the Court's Order Granting Final Approval of Class Settlement. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by September 11, 2017; -- Transcript is due on October 10, 2017; -- Appellant Pamela Sweeney's opening brief is due on November 20, 2017; -- Appellees Rohini Kumar and Salov North America Corp.'s answering brief is due on December 20, 2017; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objector-Appellant PAMELA SWEENEY, of Madison, Wisconsin, appears pro se. Plaintiff-Appellee ROHINI KUMAR, an individual, on behalf of herself, the general public and those similarly situated, is represented by: Adam Joshua Gutride, Esq. Seth Adam Safier, Esq. Kristen G. Simplicio, Esq. GUTRIDE SAFIER LLP 835 Douglass Street San Francisco, CA 94114 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 E-mail: adam@gutridesafier.com seth@gutridesafier.com Kristen@gutridesafier.com - and - Jeffrey D. Kaliel, Esq. Hassan Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: jkaliel@tzlegal.com hzavareei@tzlegal.com Defendant-Appellee SALOV NORTH AMERICA CORP. is represented by: Sean Ashley Commons, Esq. Mark E. Haddad, Esq. Nitin Reddy, Esq. Collin Partington Wedel, Esq. SIDLEY AUSTIN LLP 555 West 5th Street Los Angeles, CA 90013 Telephone: (213) 896-6010 Facsimile: (213) 896-6600 E-mail: scommons@sidley.com mhaddad@sidley.com nreddy@sidley.com cwedel@sidley.com SANTANDER CONSUMER: Deka Lawsuit Stayed Pending Appeal ------------------------------------------------------ Santander Consumer USA Holdings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the court has granted an order staying the Deka Lawsuit pending the resolution of the appeal of a class certification order in In re Cobalt Int'l Energy, Inc. Sec. Litig. On August 26, 2014, a purported securities class action lawsuit was filed in the United States District Court, Southern District of New York, captioned Steck v. Santander Consumer USA Holdings Inc. et al., No. 1:14-cv-06942 (the Deka Lawsuit). The Deka Lawsuit was brought against the Company, certain of its current and former directors and executive officers and certain institutions that served as underwriters in the Company's IPO on behalf of a class consisting of those who purchased or otherwise acquired our securities between January 23, 2014 and June 12, 2014. In June 2015, the venue of the Deka Lawsuit was transferred to the United States District Court, Northern District of Texas. In September 2015, the court granted a motion to appoint lead plaintiffs and lead counsel, and the Deka Lawsuit is now captioned Deka Investment GmbH et al. v. Santander Consumer USA Holdings Inc. et al., No. 3:15-cv-2129-K. The amended class action complaint in the Deka Lawsuit alleges that our Registration Statement and Prospectus and certain subsequent public disclosures contained misleading statements concerning the Company's ability to pay dividends and the adequacy of the Company's compliance systems and oversight. The amended complaint asserts claims under Sections 11, 12(a) and 15 of the Securities Act of 1933 and under Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder, and seeks damages and other relief. On December 18, 2015, the Company and the individual defendants moved to dismiss the amended class action complaint, and on June 13, 2016, the motion to dismiss was denied. On December 2, 2016, the plaintiffs moved to certify the proposed classes, on February 17, 2017, the Company filed an opposition to the plaintiffs' motion to certify the proposed classes, and on March 31, 2017, the plaintiffs filed their reply brief. On July 11, 2017, the court granted an order staying the Deka Lawsuit pending the resolution of the appeal of a class certification order in In re Cobalt Int'l Energy, Inc. Sec. Litig., No. H-14-3428, 2017 U.S. Dist. LEXIS 91938 (S.D. Tex. June 15, 2017). Santander Consumer USA Holdings Inc., a Delaware corporation (together with its subsidiaries, SC or the Company), is the holding company for Santander Consumer USA Inc., an Illinois corporation, and its subsidiaries, a specialized consumer finance company focused on vehicle finance and third-party servicing. The Company's primary business is the indirect origination and securitization of retail installment contracts principally through manufacturer-franchised dealers in connection with their sale of new and used vehicles to retail consumers. SANTANDER CONSUMER: Bid to Dismiss Parmelee Suit Remains Pending ---------------------------------------------------------------- Santander Consumer USA Holdings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company's motion to dismiss the Parmelee lawsuit remains pending. On March 18, 2016, a purported securities class action lawsuit was filed in the United States District Court, Northern District of Texas, captioned Parmelee v. Santander Consumer USA Holdings Inc. et al., No. 3:16-cv-783 (the Parmelee Lawsuit). On April 4, 2016, another purported securities class action lawsuit was filed in the United States District Court, Northern District of Texas, captioned Benson v. Santander Consumer USA Holdings Inc. et al., No. 3:16-cv-919 (the Benson Lawsuit). Both the Parmelee Lawsuit and the Benson Lawsuit were filed against the Company and certain of its current and former directors and executive officers on behalf of a class consisting of all those who purchased or otherwise acquired the Company's securities between February 3, 2015 and March 15, 2016. On May 25, 2016, the Benson Lawsuit was consolidated into the Parmelee Lawsuit, with the consolidated case captioned as Parmelee v. Santander Consumer USA Holdings Inc. et al., No. 3:16-cv-783. The amended class action complaint in the Parmelee Lawsuit alleges that the Company made false or misleading statements, as well as failed to disclose material adverse facts, in prior Annual and Quarterly Reports filed under the Exchange Act and certain other public disclosures, in connection with, among other things, the Company's change in its methodology for estimating its allowance for credit losses and correction of such allowance for prior periods in, among other public disclosures, the Company's Annual Report on Form 10-K for the year ended December 31, 2015, the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, and the Company's amended filings for prior reporting periods. The amended class action complaint asserts claims under Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder, and seeks damages and other relief. On March 14, 2017, the Company filed a motion to dismiss the Parmelee Lawsuit. On December 20, 2016, the plaintiffs filed an amended class action complaint. The amended class action complaint in the Parmelee Lawsuit alleges that the Company made false or misleading statements, as well as failed to disclose material adverse facts, in prior Annual and Quarterly Reports filed under the Exchange Act and certain other public disclosures, in connection with, among other things, the Company's change in its methodology for estimating its allowance for credit losses and correction of such allowance for prior periods in, among other public disclosures, the Company's Annual Report on Form 10-K for the year ended December 31, 2015, the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, and the Company's amended filings for prior reporting periods. The amended class action complaint asserts claims under Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder, and seeks damages and other relief. On March 14, 2017, the Company filed a motion to dismiss the Parmelee Lawsuit, on April 25, 2017, the plaintiffs filed an opposition to the motion to dismiss, and on June 9, 2017, the Company filed a reply to the plaintiffs' opposition. Santander Consumer USA Holdings Inc., a Delaware corporation (together with its subsidiaries, SC or the Company), is the holding company for Santander Consumer USA Inc., an Illinois corporation, and its subsidiaries, a specialized consumer finance company focused on vehicle finance and third-party servicing. The Company's primary business is the indirect origination and securitization of retail installment contracts principally through manufacturer-franchised dealers in connection with their sale of new and used vehicles to retail consumers. SIMILASAN CORPORATION: Court Approves $700K Class Settlement ------------------------------------------------------------ The United States District Court, Southern District of California, issued an Order granting joint motion for approval of class action settlement in the case captioned KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SIMILASAN CORPORATION, Defendant, Case No. 12-cv-00376-BAS-JLB (S.D. Cal.). Plaintiffs filed this class action Complaint alleging that Similasan Corporation (Similasan) engaged in false or deceptive labeling of its homeopathic products. Now pending before the Court is the parties' joint motion for final approval of class action settlement. The proposed Settlement Agreement applies to class members (Class or Class Members) defined as purchasers of all Similasan Corporation homeopathic Products nationwide for personal or household use and not for resale. The Settlement contemplates that Similasan will establish a fund of $700,000. The Ninth Circuit maintains a strong judicial policy that favors the settlement of class actions. The Court concludes that class certification under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure is appropriate in this case. The Court further finds that the Proposed Settlement is fair, adequate and reasonable under Rule 23(e) of the Federal Rules of Civil Procedure. The Court grants the parties' Joint Motion for Final Approval of Class Action Settlement. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court certifies the following Class for settlement purposes: purchasers of all Similasan Corporation homeopathic Products nationwide for personal or household use and not for resale, as listed in Exhibit A to the Agreement from February 10, 2008 to the present. Pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, the Court finds that the named plaintiffs in this Action, Lainie Rideout and Kathleen Hairston are members of the Settlement Class. A full-text copy of the District Court's August 17, 2017 Order is available at http://tinyurl.com/y9zl7sswfrom Leagle.com. Lainie Rideout, Plaintiff, represented by Alexis M. Wood - admin@consumersadvocate.com - Law Offices of Ronald A. Marron. Lainie Rideout, Plaintiff, represented by Dean A. Goetz - dgoetz12@gmail.com - Law Offices of Dean A Goetz, Deborah S. Dixon - ddixon@gomeztrialattorneys.com - Gomez Trial Attorneys, John P. Fiske - Fiske@gomeztrialattorneys.com - Baron & Budd, P.C., John H. Gomez -john@gomeztrialattorneys.com - Gomez Trial Attorneys & Ronald Marron - admin@consumersadvocate.com - Law Office of Ronald Marron. Kathleen Hairston, Plaintiff, represented by Alexis M. Wood, Law Offices of Ronald A. Marron, Dean A. Goetz, Law Offices of Dean A Goetz, Deborah S. Dixon, Gomez Trial Attorneys, John P. Fiske, Baron & Budd, P.C., John H. Gomez, Gomez Trial Attorneys & Ronald Marron, Law Office of Ronald Marron. Similasan Corporation, Defendant, represented by Michelle Gillette - mgillette@crowell.com - Crowell & Moring LLP & Joshua Thomas Foust -jfoust@crowell.com - Crowell & Moring LLP. Mark Brnovich, Amicus, represented by Brunn Wall Roysden, III, Arizona Attorney General's Office. SIMILASAN CORPORATION: Court Awards $175K Atty's Fees in "Allen" ---------------------------------------------------------------- The United States District Court, Southern District of California, issued an Order granting Plaintiff's Motion for Attorney's fees, Costs and Incentive Award in the case captioned KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SIMILASAN CORPORATION, Defendant, Case No. 12-cv-00376-BAS-JLB (S.D. Cal.). Plaintiffs' counsel files an unopposed Motion for Attorneys' Fees, Costs and Incentive Award requesting $175,000 in attorneys' fees, $102,544.12 reimbursement for costs, $105,000 to administer the settlement and $2,500 each as incentive awards for the named Plaintiffs Lainie Rideout and Kathleen Hairston. The Court granted in part Defendant's Motion for Summary Judgment and granted in part/denied in part Plaintiffs' Motion for Class Certification. At a later date, with a Motion for Decertification of the Class and an additional Motion for Partial Summary Judgment pending, the parties notified the Court they had reached a settlement. The Court granted the parties' Joint Motion for Preliminary Approval of the Class Action Settlement. Plaintiffs claim that Similasan Corporation (Similasan) engaged in false and deceptive labeling of its homeopathic products. Plaintiffs claim Defendant's products are worthless because they do not work, describing several of the products as mere high- priced water. Courts have an independent obligation to ensure that the attorneys' fees and class representative awards, like the settlement, are reasonable. Turning first to the percentage of recovery method, the Court notes that the $175,000 requested for attorneys' fees is 25% of the $700,000 settlement fund and appropriately does not take into consideration the additional injunctive relief obtained. Not surprisingly, giving the long history of this case, the $175,000 is well below the lodestar amount in this case. Hence, the Court finds the $175,000 requested is appropriate. The Court grants Plaintiffs' Motion for Attorneys' Fees, Costs and Incentive Awards. The Court grants Plaintiff $175,000 in Attorneys' Fees, $102,544.12 in Costs, $105,000 for administering the Settlement, and $2,500 for each named plaintiff as an incentive award. A full-text copy of the District Court's August 17, 2017 Order is available at https://is.gd/LGqpj1 from Leagle.com. Lainie Rideout, Plaintiff, represented by Alexis M. Wood - admin@consumersadvocate.com - Law Offices of Ronald A. Marron. Lainie Rideout, Plaintiff, represented by Dean A. Goetz - dgoetz12@gmail.com - Law Offices of Dean A Goetz, Deborah S. Dixon - ddixon@gomeztrialattorneys.com - Gomez Trial Attorneys, John P. Fiske - Fiske@gomeztrialattorneys.com - Baron & Budd, P.C., John H. Gomez -john@gomeztrialattorneys.com - Gomez Trial Attorneys & Ronald Marron - admin@consumersadvocate.com - Law Office of Ronald Marron. Kathleen Hairston, Plaintiff, represented by Alexis M. Wood, Law Offices of Ronald A. Marron, Dean A. Goetz, Law Offices of Dean A Goetz, Deborah S. Dixon, Gomez Trial Attorneys, John P. Fiske, Baron & Budd, P.C., John H. Gomez, Gomez Trial Attorneys & Ronald Marron, Law Office of Ronald Marron. Similasan Corporation, Defendant, represented by Michelle Gillette - mgillette@crowell.com - Crowell & Moring LLP & Joshua Thomas Foust -jfoust@crowell.com - Crowell & Moring LLP. Mark Brnovich, Amicus, represented by Brunn Wall Roysden, III, Arizona Attorney General's Office. SOUTHERN COMPANY: Motion to Dismiss Amended Suit Underway --------------------------------------------------------- The Southern Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the defendants' motion to dismiss an amended securities class action complaint with prejudice remains pending. On January 20, 2017, a purported securities class action complaint was filed against Southern Company, certain of its officers, and certain former Mississippi Power officers in the U.S. District Court for the Northern District of Georgia, Atlanta Division, by Monroe County Employees' Retirement System on behalf of all persons who purchased shares of Southern Company's common stock between April 25, 2012 and October 29, 2013. The complaint alleges that Southern Company, certain of its officers, and certain former Mississippi Power officers made materially false and misleading statements regarding the Kemper IGCC in violation of certain provisions under the Securities Exchange Act of 1934, as amended. The complaint seeks, among other things, compensatory damages and litigation costs and attorneys' fees. On June 12, 2017, the plaintiffs filed an amended complaint that provided additional detail about their claims, increased the purported class period by one day, and added certain other former Mississippi Power officers as defendants. On July 27, 2017, the defendants filed a motion to dismiss the plaintiffs' amended complaint with prejudice. Southern Company Gas is an energy services holding company whose primary business is the distribution of natural gas through utilities in seven states -- Illinois, Georgia, Virginia, New Jersey, Florida, Tennessee, and Maryland. Southern Company Gas and its subsidiaries are also involved in several other complementary businesses. SOUTHERN COPPER: Lacey-Siegfried Suit in Discovery Process ---------------------------------------------------------- Southern Copper Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the case, Carla Lacey and Barbara Siegfried, on behalf of themselves and all other similarly situated stockholders of Southern Copper Corporation, and derivatively on behalf of Southern Copper Corporation, is currently in the discovery process. A purported class action derivative lawsuit filed in the Delaware Court of Chancery was served on the Company and its Directors in February 2016 relating to the 2012 capitalization of 99.999% of Mexico Generadora de Energia S. de R.L. ("MGE") by Controladora de Infraestructura Energetica Mexico, S.A. de C.V., an indirect subsidiary of Grupo Mexico (the "CIEM Capitalization"), the Company's entry into a power purchase agreement with MGE in 2012 (the "MGE Power Purchase Agreement"), and the 2012 restructuring of a loan from the Company's Mexican Operations to MGE for the construction of two power plants to supply power to the Company's Mexican operations (the "MGE Loan Restructuring"). The action purports to be brought on behalf of the Company and its common stockholders. The complaint alleges, among other things, that the CIEM Capitalization, the MGE Power Purchase Agreement and the MGE Loan Restructuring were the result of breaches of fiduciary duties and the Company's charter. The Company has filed a response denying these allegations and is currently in the discovery process. Southern Copper is a majority-owned, indirect subsidiary of Grupo Mexico S.A.B. de C.V. ("Grupo Mexico"). At June 30, 2017, Grupo Mexico through its wholly-owned subsidiary Americas Mining Corporation ("AMC") owned 88.9% of the Company's capital stock. Southern Copper is an integrated producer of copper and other minerals, and operates mining, smelting and refining facilities in Peru and Mexico. The Company conducts its primary operations in Peru through a registered branch (the "Peruvian Branch" or "Branch" or "SPCC Peru Branch"). The Peruvian Branch is not a corporation separate from the Company. The Company's Mexican operations are conducted through subsidiaries. The Company also conducts exploration activities in Argentina, Chile, Ecuador, Mexico and Peru. SQUARE INC: Still Faces Independent Contractors' Suit ----------------------------------------------------- Square, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the Company is involved in a class action lawsuit concerning independent contractors in connection with the Company's Caviar business. On March 19, 2015, Jeffry Levin, on behalf of a putative nationwide class, filed a lawsuit in the United States District Court for the Northern District of California against the Company's wholly owned subsidiary, Caviar, Inc., which, as amended, alleges that Caviar misclassified Mr. Levin and other similarly situated couriers as independent contractors and, in doing so, violated various provisions of the California Labor Code and California Business and Professions Code by requiring them to pay various business expenses that should have been borne by Caviar. The Court compelled arbitration of Mr. Levin's individual claims on November 16, 2015 and dismissed the lawsuit in its entirety with prejudice on May 2, 2016. On June 1, 2016, Mr. Levin filed a Notice of Appeal of the Court's order compelling arbitration with the United States Court of Appeals for the Ninth Circuit. Mr. Levin filed his opening appellate brief regarding the order compelling arbitration of his individual claims on October 7, 2016. The Company filed its answering brief on December 7, 2016, and Mr. Levin filed his reply on December 21, 2016. No hearing date has been set. Mr. Levin also sought an award of penalties pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA). The parties stipulated that Mr. Levin would no longer pursue this PAGA claim but that it may instead be pursued by a different courier. Subsequently, couriers Nadezhda Rosen and La'Dell Brewster filed a new PAGA-only claim in the Superior Court of the State of California for the County of San Francisco on November 7, 2016. Plaintiffs claim that Caviar misclassified its couriers as independent contractors resulting in numerous violations of the California Labor Code, pursuant to which plaintiffs seek statutory penalties for those violations. In February 2017, the Company participated in a mediation with the parties in these Caviar misclassification suits to explore resolution of the matters at hand. After continued negotiation, the parties reached a preliminary global settlement of these suits, which is subject to final approval by the arbitrator. The Company has made appropriate accruals in the financial statements for the immaterial amounts expected to be paid as settlement. Square, Inc. creates tools that help sellers start, run, and grow their businesses. Square enables sellers to accept card payments and also provides reporting and analytics, next-day settlement, and chargeback protection. STAAR SURGICAL: Oct. 16 Hearing on "Todd" Case Settlement --------------------------------------------------------- STAAR Surgical Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the court has scheduled a final approval hearing regarding the settlement of the "Todd" stockholder securities litigation for October 16, 2017. On July 8, 2014, a putative securities class action lawsuit was filed by Edward Todd against STAAR and three officers in the U.S. District Court for the Central District of California. The plaintiff claims that STAAR made misleading statements to and omitted material information from our investors between February 27, 2013 and June 30, 2014 about alleged regulatory violations at STAAR's Monrovia manufacturing facility. On October 20, 2014, plaintiff amended its complaint, dismissed two Company officers, added one other officer, reduced the alleged Class Period to November 1, 2013 through June 30, 2014, and demanded compensatory damages and attorneys' fees. On January 5, 2017, the court granted plaintiff's Motion for Class Certification. On July 10, 2017, the court granted plaintiff's application for preliminary approval of a class action settlement in the amount of $7,000,000. If finally approved, the Company's insurance carriers will fund the entire settlement. The court scheduled a final approval hearing regarding the settlement for October 16, 2017. The Company has not recorded any loss or accrual in the accompanying condensed consolidated financial statements at June 30, 2017 and December 30, 2016 for this matter. STAAR Surgical Company designs, develops, manufactures, and sells implantable lenses for the eye and companion delivery systems used to deliver the lenses into the eye. SUNPOWER CORP: Hearing on Lead Plaintiff Bids Set for Aug. 31 ------------------------------------------------------------- SunPower Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended July 2, 2017, that new motions to be appointed lead plaintiff are set for hearing on August 31, 2017. On August 16, 2016 and August 26, 2016, two securities class action lawsuits were filed against the Company and certain of its officers and directors (the "Defendants") in the United Stat `es District Court for the Northern District of California on behalf of a class consisting of those who acquired the Company's securities from February 17, 2016 through August 9, 2016 (the "Class Period"). The substantially identical complaints allege violations of Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a) and SEC Rule 10b-5, 17 C.F.R. Sec.240.10b-5. The complaints were filed following the issuance of the Company's August 9, 2016 earnings release and revised guidance and generally allege that throughout the Class Period, Defendants made materially false and/or misleading statements and failed to disclose material adverse facts about the Company's business, operations, and prospects. On December 9, 2016, the court consolidated the cases and appointed a lead plaintiff. On March 31, 2017, the court granted the lead plaintiff's motion to withdraw as lead plaintiff. Two investor groups comprised of individual investors filed new motions to be appointed lead plaintiff, which are set for hearing on August 31, 2017. No operative complaint has been filed. SunPower Corporation is a global energy company that delivers complete solar solutions to residential, commercial, and power plant customers worldwide through an array of hardware, software, and financing options and through utility-scale solar power system construction and development capabilities, operations and maintenance ("O&M") services, and "Smart Energy" solutions. TETRAPHASE PHARMACEUTICALS: First Circuit Appeal Underway --------------------------------------------------------- Tetraphase Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the plaintiffs' appeal in a class action lawsuit to the United States Court of Appeals for the First Circuit remains pending. The Company said, "In January 2016 and March 2016, two securities class action lawsuits were filed against us, our chief executive officer, our former chief operating officer and our former chief financial officer, in the United States District Court for the District of Massachusetts. In May 2016, the court consolidated the two lawsuits and appointed lead plaintiffs and lead counsel. The lead plaintiffs filed a consolidated amended complaint in July 2016 and filed a second consolidated amended complaint in August 2016. "The second amended complaint is brought on behalf of an alleged class of those who purchased our common stock between March 5, 2015 and September 8, 2015, and alleges claims arising under Sections 10 and 20 of the Exchange Act of 1934, as amended. The complaint generally alleges that the defendants violated the federal securities laws by, among other things, making material misstatements or omissions concerning IGNITE2. The complaint seeks, among other relief, unspecified compensatory damages, attorneys' fees, and costs. "In October 2016, we filed a motion to dismiss the second amended complaint in its entirety, which plaintiffs have opposed. Our motion to dismiss was granted by the United States District Court for the District of Massachusetts in May 2017. In July 2017 plaintiffs appealed this decision to the United States Court of Appeals for the First Circuit. We believe we have valid defenses against these claims, and will engage in a vigorous defense of such litigation." Tetraphase Pharmaceuticals, Inc. (the "Company") is a clinical- stage biopharmaceutical company using its proprietary chemistry technology to create novel antibiotics for serious and life- threatening multidrug-resistant infections. The Company is developing its lead product candidate, eravacycline, a fully- synthetic fluorocycline, as an intravenous, or IV, and oral antibiotic for use as a first-line empiric monotherapy for the treatment of multidrug-resistant infections, including multidrug- resistant, or MDR, Gram-negative infections. The Company is also pursuing the discovery and development of additional antibiotics that target unmet medical needs, including multidrug-resistant Gram-negative bacteria. TRANSDIGM GROUP: Sued by Firefighters Fund for Defrauding Gov't --------------------------------------------------------------- CITY OF HOLLYWOOD FIREFIGHTERS' PENSION FUND, Individually and on Behalf of All Others Similarly Situated v. TRANSDIGM GROUP, INC., W. NICHOLAS HOWLEY, AND TERRANCE PARADIE, Case No. 1:17-cv-01677- DCN (N.D. Ohio, August 10, 2017), involves an alleged fraudulent and illegal scheme by TransDigm and its senior executives to artificially inflate TransDigm's growth and profitability by price gouging the U.S. Government. TransDigm has recently been accused of operating as a hidden monopoly and of engaging in waste, abuse and fraud against the Government, the Plaintiff states. Specifically, the Company has engaged in a series of unreasonable price increases for products for which it is the only supplier and also disguised its cost structure and identity from Pentagon procurement officers, in violation of the rules governing the bidding on such government contracts. TransDigm is a Delaware corporation with its principal executive offices located in Cleveland, Ohio. TransDigm designs, produces, and supplies aircraft components to customers around the globe. W. Nicholas Howley was, at all relevant times, Chief Executive Officer, President and Chairman of the Board of Directors of TransDigm. Terrance Paradie was, at all relevant times, Executive Vice President and Chief Financial Officer of TransDigm.[BN] The Plaintiff is represented by: Scott D. Simpkins, Esq. CLIMACO WILCOX PECA & GAROFOLI CO., LPA 55 Public Square, Suite 1950 Cleveland, OH 44113 Telephone: (216) 621-8484 Facsimile: (216) 771-1632 E-mail: sdsimp@climacolaw.com - and - Maya Saxena, Esq. Joseph E. White, III, Esq. Lester R. Hooker, Esq. SAXENA WHITE P.A. 5200 Town Center Circle, Suite 601 Boca Raton, FL 33486 Telephone: (561) 394-3399 Facsimile: (561) 394-3382 E-mail: msaxena@saxenawhite.com jwhite@saxenawhite.com lhooker@saxenawhite.com - and - Steven B. Singer, Esq. SAXENA WHITE P.A. 4 West Red Oak Lane, Suite 312 White Plains, NY 10604 Telephone: (914) 437-8551 Facsimile: (888) 631-3611 E-mail: ssinger@saxenawhite.com - and - Stuart A. Kaufman, Esq. KLAUSNER KAUFMAN JENSEN & LEVINSON 7080 Northwest 4th Street Plantation, FL 33317 Telephone: (954) 916-1202 Facsimile: (954) 916-1232 E-mail: stu@robertdklausner.com TRANSENTERIX INC: Motions to Dismiss "Bankley" Case Underway ------------------------------------------------------------ TransEnterix, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the motions to dismiss the class action lawsuit by Ashok V. Bankley remains pending. On June 2, 2016 a stockholder filed a putative class action complaint, Ashok V. Bankley, individually and on behalf of all others similarly situated vs. TransEnterix, Inc., Todd M. Pope and Joseph P. Slattery , in the United States District Court for the Eastern District of North Carolina (Case No. 5:16-cv-00313-D) (the "Initial Complaint"), against the Company and two of its executive officers on behalf of all persons who purchased or otherwise acquired the Company's common stock between February 10, 2016 and May 10, 2016. On August 4, 2016, the defendants filed a motion to dismiss the Initial Complaint for failure to state a claim under the securities laws. On August 30, 2016, the court appointed Randall Clark, Samir Patel, the Underhill Cemetery Association, and the North Underhill Cemetery Association as the lead plaintiffs in the Initial Complaint, and also provided the plaintiffs an opportunity to amend the Initial Complaint. On September 26, 2016, the lead plaintiffs filed an Amended Complaint. Among other things, the Amended Complaint asserts revised claims against the Company and Messrs. Pope and Slattery, and adds claims against certain current and former members of the Company's Board of Directors, and Cantor Fitzgerald & Co., the sales agent under the 2016 Sales Agreement, under which the Company offered and sold, through Cantor, shares of common stock in its 2016 ATM Offering. The Amended Complaint alleges that the defendants made false and misleading public statements related to the Company's SurgiBot System and its 510(k) application in violation of certain federal securities laws. The Amended Complaint seeks class certification of a class consisting of all persons who purchased or otherwise acquired the Company's common stock between February 10, 2016 and May 10, 2016, class certification of a subclass of persons who purchased or otherwise acquired the Company's common stock in connection with the 2016 ATM Offering between February 9, 2016 and April 19, 2016, unspecified monetary damages, costs, and attorneys' fees. On November 8, 2016, the defendants moved to dismiss the Amended Complaint, which the plaintiffs later opposed. As of January 23, 2017, the motions to dismiss were fully briefed and deemed submitted to the court for decision. TransEnterix, Inc. is a medical device company that is pioneering the use of robotics to improve minimally invasive surgery by addressing the clinical challenges associated with current laparoscopic and robotic options. TRANSENTERIX INC: "Maine" Class Action Remains Stayed ----------------------------------------------------- TransEnterix, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the case, Scott Maine vs. Paul LaViolette, et al., remains stayed. On March 3, 2017, a stockholder filed a putative class action complaint on behalf of the Company, captioned Scott Maine vs. Paul LaViolette, et al., in the Court of Justice, Superior Court Division, Wake County, North Carolina (case number 17CV002590) (the "Maine Action"). The complaint in the Maine Action is substantially similar to the complaint in the Pikal Action, asserting similar claims and seeking similar relief against largely the same group of defendants named in the complaint in the Pikal Action. On April 11, 2017, the court entered an order staying the Maine Action pending resolution of the motion to dismiss the Amended Complaint in the Bankley Action. TransEnterix, Inc. is a medical device company that is pioneering the use of robotics to improve minimally invasive surgery by addressing the clinical challenges associated with current laparoscopic and robotic options. TRANSOCEAN LTD: Dismissal of Federal Securities Claims Now Final ---------------------------------------------------------------- Transocean Ltd. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the dismissal of federal securities claims is now final. The Company said, "On September 30, 2010, a proposed federal securities class action was filed against us in the U.S. District Court for the Southern District of New York. In the action, a former shareholder of the acquired company alleged that the joint proxy statement related to our shareholder meeting in connection with the merger with the acquired company violated various securities laws and that the acquired company's shareholders received inadequate consideration for their shares as a result of the alleged violations and sought compensatory and rescissory damages and attorneys' fees." "On March 11, 2014, the District Court for the Southern District of New York dismissed the claims as time-barred. Plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit (the "Second Circuit"), but on March 17, 2016, the Second Circuit affirmed the dismissal. Plaintiffs filed a petition for writ of certiorari with the U.S. Supreme Court on August 12, 2016. On June 27, 2017, the petition was denied and the dismissal is now final." Transocean Ltd. is an international provider of offshore contract drilling services for oil and gas wells. UBER TECHNOLOGIES: Denial of Arbitration in 2 Cases Vacated ----------------------------------------------------------- The United States Court of Appeals, Second Circuit, issued an opinion vacating the District Court Order denying Defendant's Motion to Compel Arbitration and remanding the case for further proceedings in the appeals cases captioned SPENCER MEYER, Individually and on behalf of those similarly situated, Plaintiff- Counter-Defendant-Appellee, v. UBER TECHNOLOGIES, INC., Defendant- Counter-Claimant-Appellant, TRAVIS KALANICK, Defendant-Appellant, ERGO, Third-Party Defendant, Docket Nos. 16-2750-cv, 16-2752-cv (2d. Cir.). Plaintiff-counter-defendant-appellee Spencer Meyer downloaded onto his smartphone a software application offered by defendant- counter-claimant-appellant Uber Technologies, Inc. (Uber), a technology company that operates, among other things, a ride- hailing service. Meyer then registered for an Uber account with his smartphone. After using the application approximately ten times. The district court joined Uber as a defendant and denied motions by Kalanick and Uber to compel arbitration. In doing so, the district court concluded that Meyer did not have reasonably conspicuous notice of and did not unambiguously manifest assent to Uber's Terms of Service when he registered. The district court held that Meyer therefore was not bound by the mandatory arbitration provision contained in the Terms of Service. Uber offers a software application for smartphones (the Uber App) that allows riders to request rides from third-party drivers. Meyer registered for an Uber account with the Uber App on a Samsung Galaxy S5 phone running an Android operating system. After registering, Meyer took ten rides with Uber drivers in New York, Connecticut, Washington, D.C., and Paris. Below the input fields and buttons on the Payment Screen is black text advising users that by creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY. The capitalized phrase, which is bright blue and underlined, was a hyperlink that, when clicked, took the user to a third screen containing a button that, in turn, when clicked, would then display the current version of both Uber's Terms of Service and Privacy Policy. Meyer recalls entering his contact information and credit card details before registering, but does not recall seeing or following the hyperlink to the Terms and Conditions. He declares that he did not read the Terms and Conditions, including the arbitration provision. The Terms of Service further provided that the American Arbitration Association (AAA) would hear any dispute, and that the AAA Commercial Arbitration Rules would govern any arbitration proceeding. Defendants timely appealed the district court's order denying the motions to compel arbitration pursuant to 9 U.S.C. Section 16, which permits interlocutory appeals from the denial of a motion to compel arbitration. Under the Federal Arbitration Act (the FAA), a written provision in a contract to settle by arbitration a controversy thereafter arising out of such contract shall be valid, irrevocable, and enforceable. State law principles of contract formation govern the arbitrability question. The Second Circuit agrees with the district court's determination that California state law applies, and note that New York and California apply "substantially similar rules for determining whether the parties have mutually assented to a contract term. Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms. Thus, only if the undisputed facts establish that there is reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms" will the Second Circuit finds that a contract has been formed. While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract, the Second Circuit holds. Courts around the country have recognized that an electronic 'click' can suffice to signify the acceptance of a contract, and that there is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement. The Second Circuit considered whether Meyer was on inquiry notice of the arbitration provision by virtue of the hyperlink to the Terms of Service on the Payment Screen and, thus, manifested his assent to the agreement by clicking "Register." Defendants argue that Meyer is precluded from arguing that no contract was formed by an allegation in his complaint that to become an Uber account holder, an individual first must agree to Uber's terms and conditions. The Second Circuit disagrees. First, as the district court observed, the pleading is not obviously a concession in that it makes no reference to Meyer's knowledge. Second, Meyer volunteered to amend his complaint on the record to delete the allegation at issue, an offer that was accepted by the district court. Third, regardless of the allegation or even the validity of Meyer's amendment, Meyer has attested that, at the time he signed up for an Uber account, he was not aware of the existence of the Terms of Service or the arbitration clause contained therein. In considering the question of reasonable conspicuousness, precedent and basic principles of contract law instruct that the Second Circuit considers the perspective of a reasonably prudent smartphone user. Turning to the interface at issue in this case, the Second Circuit concludes that the design of the screen and language used render the notice provided reasonable as a matter of California law. The Payment Screen is uncluttered, with only fields for the user to enter his or her credit card details, buttons to register for a user account or to connect the user's pre-existing PayPal account or Google Wallet to the Uber account, and the warning that "By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY. The Second Circuit disagrees with the district court's determination that the location of the arbitration clause within the Terms and Conditions was itself a barrier to reasonable notice. The Second Circuit concludes that the Uber App provided reasonably conspicuous notice of the Terms of Service as a matter of California law and turn to the question of whether Meyer unambiguously manifested his assent to those terms. Although Meyer's assent to arbitration was not express, the Second Circuit is convinced that it was unambiguous in light of the objectively reasonable notice of the terms. The fact that clicking the register button had two functions creation of a user account and assent to the Terms of Service does not render Meyer's assent ambiguous. The Second Circuit concludes on the undisputed facts of this case that Meyer unambiguously manifested his assent to Uber's Terms of Service as a matter of California law. The order of the district court denying defendants' motions to compel arbitration is vacated, and the case is remanded to the district court to consider whether defendants have waived their rights to arbitration and for any further proceedings consistent with this opinion. A full-text copy of the Second Circuit's August 17, 2017 Opinion is available at http://tinyurl.com/yayfddhafrom Leagle.com. JEFFREY A. WADSWORTH (Brian Marc Feldman, Edwin Michael Larkin, III, Gregory M. Dickinson,1600 Bausch @ Lomb Place, Rochester, NY 14604 on the brief), Harter Secrest & Emery LLP, Rochester, New York, and Bryan L. Clobes, Ellen Meriwether, Cafferty Clobes Meriwether & Sprengel LLP, Philadelphia, Pennsylvania, 1101 Market Street, Suite 2650,Philadelphia, PA 19107 and Matthew L. Cantor - mcantor@constantinecannon.com - Ankur Kapoor - akapoor@constantinecannon.com - Constantine Cannon LLP, New York, New York, for Plaintiff-Counter-Defendant-Appellee Spencer Meyer. THEODORE J. BOUTROUS JR. (Daniel G. Swanson - dswanson@gibsondunn.com - Cynthia E. Richman - crichman@gibsondunn.com - Joshua S. Lipshutz - jlipshutz@gibsondunn.com - Reed Brodsky - rbrodsky@gibsondunn.com - on the brief), Gibson, Dunn & Crutcher LLP, Los Angeles, California, Washington, D.C., and New York, New York, for Defendant-Counter-Claimant-Appellant Uber Technologies, Inc. Karen L. Dunn, William A. Isaacson, Ryan Y. Park, Peter M. Skinner, Boies, Schiller & Flexner LLP, Washington, D.C., 1401 New York Ave, NW Washington, DC 20005 and New York, New York, for Defendant- Appellant Travis Kalanick. Jonathan D. Selbin, Jason L. Lichtman, Lieff Cabraser, Heimann & Bernstein, LLP, 250 Hudson Street, 8th Floor , New York, NY 10013 and Jahan Sagafi, Paul W. Mollica, Outten & Golden LLP, One Embarcadero Center , 38th Floor , San Francisco, CA 94111 and Chicago, Illinois, for Amicus Curiae Public Justice, P.C. Alexander H. Schmidt, Wolf Haldenstein Adler Freeman & Herz LLP, 270 Madison Avenue, New York, NY 10016-0601 for Amici Curiae Law Professors. Rees F. Morgan - rmorgan@coblentzlaw.com - Mark L. Hejinian - mhejinian@coblentzlaw.com -Skye D. Langs - slangs@coblentzlaw.com - Coblentz Patch Duffy and Bass LLP, San Francisco, California, for Amici Curiae Internet Association and Consumer Technology Association. Kate Comerford Todd, Warren Postman, U.S. Chamber Litigation Center, Washington, D.C., and Andrew J. Pincus - apincus@mayerbrown.com - Evan M. Tager - etager@mayerbrown.com - Archis A. Parasharami -aparasharami@mayerbrown.com - Mayer Brown LLP, Washington, D.C., for Amicus Curiae The Chamber of Commerce of the United States of America. UNITED STATES: Approval of $100MM Deal in Takings Suit Upheld ------------------------------------------------------------- The United States Court of Federal Claims issued an Opinion and Order denying the Government's Motion for Reconsideration in the case captioned Daniel and Kathy HAGGART, et al., For Themselves and As Representatives of a Class of Similarly Situated Persons, Plaintiffs, v. UNITED STATES, Defendant, No. 09-103L (Fed. Cl.). This rails-to-trails takings class action is in a very unusual, perhaps even unique, procedural posture. A total of 520 class members brought claims. After resolution of a number of motions for partial summary judgment, extensive discovery, and lengthy, detailed settlement negotiations assisted by a senior judge of this court, 253 class members and the government reached a settlement calling for payment of $110 million to class members, plus interest, attorneys' fees, and litigation costs. One class member, a married couple, Mr. and Mrs. Woodley, owning property that would receive just compensation under the settlement, appealed the court's approval of the settlement and award of common-fund attorneys' fees on the ground that class counsel had not provided sufficient information in written form (oral explanations had been provided) to class members that would enable cross-checking calculations of the settlement amount to be received by them. In the appeal, the government changed position from that it had taken at the fairness hearing and supported the Woodleys, but it did not itself file an appeal or raise any additional issues on appeal. The court of appeals ruled that approval of the Settlement Agreement was improper on the ground that written information had to have been provided to enable class members to comparatively calculate their amounts to be awarded, and it also reversed this court's award of attorneys' fees under a common fund.8 In short, the court of appeals vacated the court's approval of the Settlement Agreement and remanded the case for further action by this court. The government has taken the position that the vast majority of class [m]embers own no property interest in the railroad corridor and are entitled to nothing. With this further change of position, the government seeks to negate the unconditional, comprehensive Settlement Agreement that the government executed with the class. The Federal Circuit held that the Settlement Agreement was and remains a binding and enforceable contract. The court also considered the district court's decision in the Western District of Washington that addressed some of the properties at issue here, concluding that the decision "is not binding on this court and cannot and does not affect the enforceability of the Settlement Agreement. The government has moved for reconsideration of this court's decision. With respect to this court's approval of the Settlement Agreement, the Federal Circuit articulated the "precise issue" presented on appeal by the Woodleys: "The precise issue before us is whether the Claims Court abused its discretion by finding class counsel's act of explaining, as opposed to physically providing objecting class members with a copy of the final spreadsheet detailing the precise methodology used to calculate the allocation of their property values, satisfied the requirement that the settlement agreement be fair, reasonable and adequate." The government contends that the Federal Circuit vacated this court's prior judgment in its entirety to encompass the Settlement Agreement itself but that position is inconsistent with the Federal Circuit's decision. Given the scope of the Woodleys' appeal, the court of appeals addressed whether class counsel's explanations sufficiently permitted class members to evaluate their respective property valuations and compare those values across the class. The Federal Circuit therefore explained that the government's acquiescence that the settlement agreement in total was fair, reasonable, and adequate is not inconsistent with the government's current assertion that class counsel failed to provide adequate disclosure of how the settlement agreement was distributed among every individual class member. In the context of the Federal Circuit's opinion, the court of appeals only vacated this court's approval of the Settlement Agreement and award of common-fund attorneys' fees. Compliance with the Federal Circuit's Mandate In accord with the Federal Circuit's mandate, this court initially sought to ensure that all information pertinent to the appraisal process was made available to class members in written form. Class counsel, counsel for the Woodleys, and the government have thus had the opportunity to seek any and all relevant documents through discovery. Indeed, the government manifestly has had the three spreadsheets throughout the course of the remand proceedings, and notably it attached the three disputed spreadsheets to its motion for reconsideration, making them a matter of public record. Issues with respect to the spreadsheets thus have no bearing on this court's most recent decision or the government's pending motion for reconsideration. A contract may be abandoned as the result of a written or verbal agreement, or by the acts and conduct of the parties. With respect to conduct, the acts of the parties must be positive, unequivocal and inconsistent with an ntent to be further bound by the contract. Here, the government's reliance on class counsel's conduct is misplaced. Class counsel's exchanges with class members reflect his effort to comply with the Federal Circuit's mandate and provide class members with sufficient information and documentation, not an intent to abandon the Settlement Agreement. Thus, the government has not met its burden of demonstrating that the parties unequivocally intended to abandon the Settlement Agreement. Enforceability of the Settlement Agreement The attachment to the Settlement Agreement presented to the court in 2014, however, specifies the amount allocated to each class member before consideration of attorneys' fees. Settlement Agreement, Attach. B. That attachment can therefore stand on its own and allocate the full $110 million settlement amount, plus interest, to class members. At this juncture, class counsel and the Woodleys have proposed allocating the $110 million to class members in accord with the allocations set forth in the Settlement Agreement presented to the court in 2014, but without the possibility of any reduction for common fund-attorneys' fees. The government finally argues that the court lacks the authority to bind the government to the Settlement Agreement but such a contention is misguided. The government's argument is unpersuasive because, as discussed supra, the court of appeals only addressed the documentary disclosure provided to class members with respect to individual allocations, not the Settlement Agreement itself or any other aspect of that Agreement. The government even agreed that the Settlement Agreement was undisturbed until the recent district court decision in Washington. Where a defendant changes its position regarding a settlement in light of a new legal development, courts have uniformly concluded that a change in law will not affect the binding nature of a settlement agreement. The Settlement Agreement therefore remains a binding and enforceable contract. The government's motion for reconsideration is denied A full-text copy of the Court of Federal Claims' August 17, 2017, Opinion and Order is available at http://tinyurl.com/y72dcv59from Leagle.com. DANIEL HAGGART, Plaintiff, represented by Steven Mathew Wald - WALD@SWM.LEGAL - Stewart Wald & McCulley, LLC. KATHY HAGGART, Plaintiff, represented by Steven Mathew Wald, Stewart Wald & McCulley, LLC. GORDON ARTHUR WOODLEY, Plaintiff, represented by David Charles Frederick - dfrederick@kellogghansen.com - Kellogg, Hansen, et al. DENISE L. WOODLEY, Plaintiff, represented by David Charles Frederick, Kellogg, Hansen, et al. WESTPOINT PROPERTIES, LLC, Plaintiff, Pro Se. Cleveland Square, LLC, Plaintiff, Pro Se. RC TC Meridian Ridge LLC, Plaintiff, Pro Se. TWOSONS LLC, Plaintiff, Pro Se. Gretchen Chambers, Plaintiff, Pro Se. William Ames, Plaintiff, Pro Se. U.S. BANCORP: Court Orders "Hopkins" Case Closed ------------------------------------------------ The United States District Court, Southern District of Ohio, Western Division, issued an Order granting the Motion to Dismiss the amended complaint in the case captioned LOUIS HOPKINS, on behalf of himself and others similarly situated, Plaintiff, v. U.S. BANCORP., et al., Defendants, Case No. 1:16-cv-552 (S.D. Ohio). The Court also ordered the case closed. This civil action is before the Court on Defendants' motion to dismiss and the parties' responsive memoranda. For purposes of this motion to dismiss, the Court must: (1) view the complaint in the light most favorable to Plaintiff; and (2) take all well-pleaded factual allegations as true. This is a class action seeking damages for Plaintiff and the class he seeks to represent, consisting of all hourly paid employees who worked for Defendants in the United States, and who were not paid for all hours worked (Class). Defendants allegedly entered into a compensation agreement with Plaintiff and the Class members whereby Defendants agreed to compensate them an hourly wage for every hour worked. A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal of a complaint for failure to state a claim upon which relief can be granted To show grounds for relief, Fed. R. Civ. P. 8(a) requires that the complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. The indefiniteness of the agreement as alleged by Plaintiff is sufficient to defeat Plaintiff's breach of contract claims, the Court held. The Plaintiff's complaint alleges that he was paid an annual salary based on Defendant's calculation of 2080 working hours per year when the true number of working hours per year was either 2088 or 2096, leaving either 8 or 16 hours per year unpaid (this difference is based on the difference between 52 weeks and 365 (or 366) days). Even at Plaintiff's lowest salary, 2080 hours at $15.68 per hour is greater pay than the 2096 hours at $15 per hour that Plaintiff has alleged he was promised, the Court noted. Defendant more than adequately compensated Plaintiff even if the oral agreement alleged by Plaintiff is considered a binding contract, the Court concluded. The claims in Plaintiff's amended complaint are dismissed. The Clerk is directed to enter judgment accordingly, the case is be closed in the Court. A full-text copy of the District Court's August 17, 2017 Order is available at http://tinyurl.com/ycldc22hfrom Leagle.com. Louis Hopkins, Plaintiff, represented by Wesley Matthew Nakajima, O'Connor, Acciani & Levy., 1014 Vine St., Suite 2200. Cincinnati, OH 0 513-241-7111 Louis Hopkins, Plaintiff, represented by Carlos V. Leach, Morgan & Morgan, P.A., pro hac vice & Barry David Jacobson Levy, O'Connor Acciani & Levy. 1014 Vine St. Suite 2200, Cincinnati, OH 45202 U.S. Bancorp, Defendant, represented by Angelique Paul Newcomb - anewcomb@littler.com - Littler Mendelson, P.C., Andrew J. Voss - avoss@littler.com - Littler Mendelson PC, pro hac vice & Anthony de Sam Lazaro, Littler Mendelson, P.C., pro hac vice. U.S. Bank National Assocation, Defendant, represented by Angelique Paul Newcomb - anewcomb@littler.com - Littler Mendelson, P.C., Andrew J. Voss, Littler Mendelson PC, pro hac vice & Anthony de Sam Lazaro, Littler Mendelson, P.C., 1300 IDS Center80 South 8th StreetMinneapolis, MN 55402, pro hac vice. US XPRESS: Seeks Ninth Circuit Review of Decision in "Ayala" Suit ----------------------------------------------------------------- Defendants U.S. Xpress Enterprises, Inc., and U.S. Xpress, Inc., filed an appeal from a court ruling in the lawsuit styled Anthony Ayala v. U.S. Xpress Enterprises, Inc., et al., Case No. 5:16-cv- 00137-GW-KK, in the U.S. District Court for the Central District of California, Riverside. As previously reported in the Class Action Reporter on August 15, 2017, the Honorable George H. Wu granted the Plaintiff's renewed motion for class certification. In the complaint, the Plaintiff asserts claims for violations of the California Labor Code and California Industrial Commission Wage Orders, including failure to provide meal and rest periods and failure to compensate for all hours of work performed. The appellate case is captioned as Anthony Ayala v. U.S. Xpress Enterprises, Inc., et al., Case No. 17-80157, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent ANTHONY AYALA, Individually and on behalf of all others similarly situated, is represented by: James Kan, Esq. David Borgen, Esq. Laura L. Ho, Esq. GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417 E-mail: jkan@gbdhlegal.com dborgen@gbdhlegal.com lho@gbdhlegal.com - and - James M. Sitkin, Esq. LAW OFFICES OF JAMES M. SITKIN 1 Kaiser Plaza, Suite 505 Oakland, CA 94612 Telephone: (415) 318-1048 Facsimile: (415) 362-3268 E-mail: jsitkin@sitkinlegal.com - and - Richard S. Swartz, Esq. Justin Lee Swidler, Esq. SWARTZ SWIDLER, LLC 1101 North Kings Highway Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: rswartz@swartz-legal.com jswidler@swartz-legal.com Defendants-Petitioners U.S. XPRESS ENTERPRISES, INC., and U.S. XPRESS, INC., are represented by: James Harold Hanson, Esq. R. Jay Taylor, Jr., Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY PC 10 West Market Street Indianapolis, IN 46204 Telephone: (317) 492-9205 Facsimile: (317) 687-2414 E-mail: jhanson@scopelitis.com jtaylor@scopelitis.com - and - Christopher Chad McNatt, Jr., Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY PC 2 North Lake Avenue Pasadena, CA 91101 Telephone: (626) 795-4700 E-mail: cmcnatt@scopelitis.com - and - Adam Carl Smedstad, Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY PC 30 West Monroe Street Chicago, IL 60603 Telephone: (312) 255-7181 E-mail: asmedstad@scopelitis.com VERISK ANALYTICS: Final Approval Hearing Reset to October 18 ------------------------------------------------------------ The August 17, 2017 final fairness hearing on the settlement of the Intellicorp Records, Inc. Litigation has been rescheduled for October 18 at 9:30 a.m. According to Verisk Analytics, Inc. in its Form 10-Q Report filed with the Securities and Exchange Commission on August 1, 2017, for the quarterly period ended June 30, 2017, the Company was served on September 9, 2015, with a nationwide putative class action complaint filed in the Court of Common Pleas, Cuyahoga County in Ohio naming the Company's subsidiary Intellicorp Records, Inc. ("Intellicorp") titled Sherri Legrand v. Intellicorp Records, Inc. and The Cato Corporation et al. Defendants removed the case to the United States District Court for the Northern District of Ohio on October 8, 2015. Plaintiffs filed their First Amended Class Action Complaint on November 5, 2015 ("Amended Complaint"), which like the prior complaint claims violations of the Fair Credit Reporting Act ("FCRA") and alleges two putative class claims against Intellicorp, namely (i) a section 1681k(a) claim on behalf of all individuals who were the subjects of consumer reports furnished by Intellicorp, which contained public record information in the "Government Sanctions" section of the report on or after Sept. 4, 2013 and continuing through the date the class list is prepared, and (ii) a section 1681e(b) claim on behalf of all individuals who were the subjects of consumer reports furnished by Intellicorp, which contained public record information in the "Government Sanctions" section of the report where the address or social security number of the subject of the report do not match the social security number or address contained in the government database on or after Sept. 4, 2013 and continuing through the date the class list is prepared. Count I of the Amended Complaint alleges that defendant Cato violated the FCRA by procuring consumer reports on the plaintiff and other class members without making the stand-alone disclosure required by FCRA section 1681b(b)(2)(A)(i). Counts II and III allege that Intellicorp violated the FCRA section 1681e (b) by failing to follow reasonable procedures to assure maximum accuracy of the adverse information included in its consumer reports and FCRA section 1681k (a) by failing to maintain strict procedures to assure that the public record information reported, which was likely to have an adverse effect on the consumer was complete and up to date, respectively. The Amended Complaint alleges that defendants acted willfully and seeks statutory damages for the classes in an amount not less than one hundred dollars and not more than one thousand dollars per violation, punitive damages, equitable relief, costs and attorney's fees. On April 24, 2017, the parties agreed to resolve the litigation in a Settlement Agreement and Release and plaintiffs filed their Motion for Preliminary Approval of the settlement on the same day. The settlement provides for a non-material cash payment by the Company, as well as certain non-monetary relief. Specifically, IntelliCorp has agreed to provide a settlement fund of $1,100,000.00. This money will be divided among the Settlement Class Members, and will also be used to pay for any Court-approved attorneys' fees, costs, and Class Representative award. The exact amount each Settlement Class Member will receive will depend on the amount of fees, costs, and award, as well as the number of settlement participants. There are 4,791 class members. Although the exact amount will vary depending on the amount of attorneys' fees, costs, and Class Representative award, and exclusions, it is expected that Settlement Class Members will receive $136.37. In addition, IntelliCorp has agreed to implement certain processes for the next five years: it will conduct a manual review of each background report it furnishes on each Settlement Class Member before such report is completed; it will verify any Government Sanctions hit records during the preparation of background reports at the source; and prior to utilizing any additional database information for Government Sanctions product, IntelliCorp will conduct a special audit of such database. The District Court granted the Motion for Preliminary Approval on April 25, 2017. Additional information is available at: http://www.intellicorplegrandclassaction.com/ Verisk Analytics is a data analytics provider serving customers in insurance, natural resources and financial services. VERISK ANALYTICS: Settlement of Interthinx Litigation Pending ------------------------------------------------------------- Verisk Analytics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 1, 2017, for the quarterly period ended June 30, 2017, that the final approval hearing of the settlement in the case, Interthinx, Inc. Litigation, has been postponed until sometime in late August 2017. On April 20, 2015, the Company was served with a putative class action titled John Weber v. Interthinx, Inc. and Verisk Analytics, Inc. The plaintiff, a former employee of the Company's former subsidiary Interthinx, Inc. in Missouri, filed the class action complaint in the United States District Court for the Eastern District of Missouri on behalf of all review appraisers and individuals holding comparable positions with different titles who were employed by Interthinx for the last three years nationwide and who were not paid overtime wages. The class complaint claims that the review appraiser employees were misclassified as exempt employees and, as a result, were denied certain wages and benefits that would have been received if they were properly classified as non-exempt employees. It pleads a Collective Action under section 216(b) of the Fair Labor Standards Act for unpaid overtime and seeks overtime wages, liquidated damages, declaratory relief, interest, costs and attorneys' fees. On March 11, 2014, the Company sold 100 percent of the stock of Interthinx, Inc. The parties agreed to resolve this matter with the Company's contribution of a non-material amount in the Class Action Settlement Agreement executed on November 8, 2016. For settlement purposes only, this matter was consolidated with a related action pending in the Los Angeles Superior Court in which the Company is not a party, titled Sager v. Interthinx. On February 21, 2017, the Los Angeles Superior Court approved the settlement at the preliminary approval hearing and the final approval hearing has been postponed until sometime in late August 2017. Verisk Analytics is a data analytics provider serving customers in insurance, natural resources and financial services. VERISK ANALYTICS: 10th Cir. Declined to Reverse Case Dismissal -------------------------------------------------------------- Verisk Analytics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 1, 2017, for the quarterly period ended June 30, 2017, that in the Insurance Services Office, Inc. Litigation, the U.S. Court of Appeals for the Tenth Circuit has denied the Appellants' motion for en banc reconsideration of the Appeals Court's affirmance of the dismissal of the case. The Appellants had until August 24, 2017 to petition the U.S. Supreme Court for a writ of certiorari. On August 1, 2014 the Company was served with an Amended Complaint filed in the United States District Court for the District of Colorado titled Snyder, et. al. v. ACORD Corp., et al. The action is brought by nineteen individual plaintiffs, on their own behalf and on behalf of a putative class, against more than 120 defendants, including the Company and ISO. Except for the Company, ISO and the defendant Acord Corporation, which provides standard forms to assist in insurance transactions, most of the other defendants are property and casualty insurance companies that plaintiffs claim conspired to underpay property damage claims. Plaintiffs claim that the Company and ISO, along with all of the other defendants, violated state and federal antitrust and racketeering laws as well as state common law. On September 8, 2014, the Court entered an Order striking the Amended Complaint and granting leave to the plaintiffs to file a new complaint. On October 13, 2014, plaintiffs filed their Second Amended Complaint, which was re-filed by plaintiffs to correct errors as the Third Amended Complaint. The Third Amended Complaint similarly alleges that the defendants conspired to underpay property damage claims, but does not specifically allege what role the Company or ISO played in the alleged conspiracy. It claims that the Company and ISO, along with all of the other defendants, violated state and federal antitrust and racketeering laws as well as state common law, and seeks all available relief including injunctive, statutory, actual and punitive damages as well as attorneys' fees. On January 15, 2016, the Court granted defendants' motions to dismiss all claims asserted in the Third Amended Complaint. Plaintiffs filed a motion for reconsideration of this dismissal on February 16, 2016. The Court granted defendants' motion to strike the motion for reconsideration on March 2, 2016 and gave plaintiffs leave to file another motion for reconsideration in accordance with the rules which plaintiffs filed on March 11, 2016 and, which was denied by the Court on April 25, 2016. On April 1, 2016, plaintiffs also filed a Notice of Appeal of the Court's January 15, 2016 Order, which dismissed all claims in the Third Amended Complaint. Plaintiffs also filed an appeal of the Court's denial of the motion for reconsideration, which the Court of Appeals for the 10th Circuit consolidated with the appeal of the Court's January 15, 2016 dismissal. Appellants filed their brief in support of the consolidated appeal on July 21, 2016 and Appellees filed their brief in response on September 21, 2016. On April 6, 2017, the Court of Appeals for the 10th Circuit affirmed the Court's dismissal of the Third Amended Complaint. A copy of that decision is available at: https://www.ca10.uscourts.gov/opinions/16/16-1111.pdf Appellants filed a motion for en banc reconsideration of the 10th Circuit's affirmance of the dismissal of the Third Amended Complaint which was denied on May 26, 2017. Appellants had until August 24, 2017 to petition the Supreme Court for a writ of certiorari. Verisk Analytics is a data analytics provider serving customers in insurance, natural resources and financial services. VOLKSWAGEN GROUP: Group 1 Has Payment from Emissions Scandal Case ----------------------------------------------------------------- Group 1 Automotive, Inc. has received settlement payments fro Volkswagen and Audi, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017. In late June 2016, Volkswagen agreed to pay up to an aggregate of $14.7 billion to settle claims stemming from the diesel emissions scandal, including claims from customers and automotive dealers. In October 2016, the Company received notification from Volkswagen that it is entitled to receive, in the aggregate, approximately $13.2 million in connection with the Company's current and prior ownership of seven Volkswagen dealerships in the U.S. The Company accepted and executed the offer in the fourth quarter of 2016 and received half of the compensation in a lump sum amount in January 2017 with the remaining amount to be paid over 18 months. The Company has received five of the remaining 18 monthly installments as of June 30, 2017. The Company recognized the entire settlement as an offset to Selling, General and Administrative Expenses ("SG&A") in the Consolidated Statements of Operations for the year ended December 31, 2016. Also, in conjunction with the Volkswagen diesel emissions scandal, Volkswagen agreed in March 2017 to settle allegations of damages by the Company relative to its three Audi branded dealerships. The Company received the cash and recognized the settlement as an offset to SG&A in the accompanying Consolidated Statements of Operations for the six months ended June 30, 2017. Through its dealerships, Group 1 sells new and used cars and light trucks; arranges related vehicle financing; sells service and insurance contracts; provide automotive maintenance and repair services; and sells vehicle parts. VOYA FINANCIAL: "Dezelan" Plaintiffs May File Amended Suit ---------------------------------------------------------- Voya Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that a court has granted the Company's motion to dismiss the case, Dezelan v. Voya Retirement Insurance and Annuity Company, but permitted the plaintiff to file an amended complaint. Dezelan v. Voya Retirement Insurance and Annuity Company (USDC District of Connecticut, No. 3:16-cv-1251) (filed July 26, 2016), is a putative class action in which plaintiff, a participant in a 403(b) Plan, seeks to represent a class of plans whose assets are invested in Voya Retirement Insurance and Annuity Company ("VRIAC") "Group Annuity Contract Stable Value Funds." Plaintiff alleges that VRIAC has violated the Employee Retirement Income Security Act of 1974 ("ERISA") by charging unreasonable fees and setting its own compensation in connection with stable value products. Plaintiff seeks declaratory and injunctive relief, disgorgement of profits, damages and attorney's fees. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. On July 7, 2017, the district court granted the Company's motion to dismiss, but permitted the plaintiff to file an amended complaint. Voya Financial, Inc. and its subsidiaries (collectively the "Company") is a financial services organization in the United States that offers a broad range of retirement services, annuities, investment management services, mutual funds, life insurance, group insurance and supplemental health products. VOYA FINANCIAL: "Patrico" Plaintiffs Filed Amended Suit ------------------------------------------------------- Voya Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that the plaintiff in the case, Patrico v. Voya Financial, Inc., et al., has filed an amended complaint. Patrico v. Voya Financial, Inc., et al (USDC SDNY, No. 1:16-cv- 07070) (filed September 9, 2016), is a putative class action in which plaintiff, a participant in a 401(k) Plan, seeks to represent a class of plans "for which Voya or its subsidiaries provide recordkeeping, investment management or investment advisory services and for which Financial Engines provides investment advice to plan participants." Plaintiff alleges that the Company and its affiliates have violated ERISA by charging unreasonable fees in connection with in-plan investment advice provided in conjunction with Financial Engines, a third-party investment adviser. Plaintiff seeks declaratory and injunctive relief, disgorgement of profits, damages and attorney's fees. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. On June 20, 2017, the district court granted the Company's motion to dismiss, but permitted the plaintiff to file an amended complaint. On July 19, 2017, the plaintiff filed an amended complaint. Voya Financial, Inc. and its subsidiaries (collectively the "Company") is a financial services organization in the United States that offers a broad range of retirement services, annuities, investment management services, mutual funds, life insurance, group insurance and supplemental health products. WD SERVICES: Accused by "Gray-Lingle" Suit of Violating TCPA ------------------------------------------------------------ XUANDAO GRAY-LINGLE, individually and on behalf of all others similarly situated v. WD SERVICES LLC; DOES 1 through 10, inclusive, Case No. 2:17-cv-01661-KJM-CKD (E.D. Cal., August 10, 2017), seeks damages and other remedies resulting from the Defendants' alleged illegal actions in negligently, knowingly, and willfully contacting the Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act, thereby, invading his privacy. WD Services LLC is a pay-day lender. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com WELLS FARGO: Magistrate Recommends Dismissal of "Singh" ------------------------------------------------------- Magistrate judge Edmund F. Brennan of the United States District Court, Eastern District of California, issued a Findings and Recommendation granting defendant Wells Fargo Bank, N.A.'s motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure (Rule) 12(b)(6) for failure to state a claim in the case captioned RAJ SINGH and KAREN SINGH, on behalf of themselves and all other similarly situated, Plaintiffs, v. WELLS FARGO BANK and DOES 1 through 1000, Defendant, No. 2:15-cv-2664-JAM-EFB PS (E.D. Cal.). Plaintiffs generally allege that defendant has engaged in a policy of misleading and discriminating against borrowers by charging erroneous fines and costs. Defendant also allegedly denied short sales, loan modification and other foreclosure alternatives illegally and in misleading ways. Rule 12(b)(6) Standard To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a formulaic recitation of the elements of a cause of action; it must contain factual allegations sufficient to raise a right to relief above the speculative level Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Defendant argues that the complaint must be dismissed for failure to allege sufficient facts to state a claim for relief. Defendant further argues that, to the extent plaintiffs' claims are predicated on the foreclosure of the subject property, they are barred by the applicable statute of limitations. In his opposition, plaintiff Raj Singh appears to acknowledge that the complaint is deficient and provides additional factual background concerning the foreclosure of the subject property. He also filed a proposed first amended complaint, which he intends to serve as a more definite statement. Mr. Singh explains that this action was filed primarily to correct the amount of cancelled debt. He explains that Ms. Singh obtained a loan from defendant in the amount of $357,000, which was secured by a deed of trust on the subject property. Mr. Singh's opposition and proposed amended complaint demonstrate that leave to amend would be futile. First, Mr. Singh's claim that defendant purchased the property without tendering payment, even if true, does not provide a basis for relief. Mr. Singh's contention that defendant wrongfully reported a debt to the IRS also fails to provide a basis for liability. Mr. Singh claims that defendant should not have reported a debt to the IRS because any debt owed to defendant was extinguished upon foreclosure of the property. Accordingly, contrary to Mr. Singh's contention, the unsatisfied portion of the debt was not extinguished after the foreclosure of the subject property, and therefore the reporting of the remaining debt fails to support a claim upon which relief may be granted. As it is clear from the facts already presented by plaintiff that granting leave to amend would be futile, it is recommended that plaintiff's complaint be dismissed without further leave to amend. Defendant's motion to dismiss the complaint for failure to state a claim be granted. A full-text copy of the magistrate's August 17, 2017 Findings and Recommendations is available at http://tinyurl.com/ya5cz84mfrom Leagle.com. Raj Singh, Plaintiff, Pro Se. Karen Singh, Plaintiff, Pro Se. Wells Fargo Bank, Defendant, represented by Megan Catherine Kelly - mck@severson.com - Severson & Werson. WERNER ENTERPRISES: Accrued $0.8M Jury Award in Short Break Case ---------------------------------------------------------------- Werner Enterprises, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2017, for the quarterly period ended June 30, 2017, that as of June 30, the Company had accrued for the $0.8 million jury's award in the short break matter and had not accrued for the sleeper berth matter. The Company said, "We are involved in class action litigation in the U.S. District Court for the District of Nebraska, in which the plaintiffs allege that we owe drivers for unpaid wages under the Fair Labor Standards Act (FLSA) and the Nebraska Wage Payment and Collection Act and that we failed to pay minimum wage per hour for drivers in our student driver training program, related to short break time and sleeper berth time. The period covered by this class action suit is August 2008 through March 2014. The case was tried to a jury in May 2017, resulting in a verdict of $0.8 million in plaintiffs' favor on the short break matter and a verdict in our favor on the sleeper berth matter. As of June 30, 2017, we had accrued for the jury's award in the short break matter and had not accrued for the sleeper berth matter." "We are also involved in certain class action litigation in which the plaintiffs allege claims for failure to provide meal and rest breaks, unpaid wages, unauthorized deductions and other items. Based on the knowledge of the facts, management does not currently believe the outcome of these class actions is likely to have a material adverse effect on our financial position or results of operations. However, the final disposition of these matters and the impact of such final dispositions cannot be determined at this time." Werner operates in the truckload and logistics sectors of the transportation industry. WESTINGHOUSE ELECTRIC: Faces "Gladden" Adversary Proceeding in NY ----------------------------------------------------------------- Kent Gladden, on behalf of himself and all others similarly situated v. Westinghouse Electric Company LLC, et al., Case No. 17-01109-mew (Bankr. S.D.N.Y., August 10, 2017), is an adversary proceeding brought to recover money/property. Westinghouse Electric Company LLC provides nuclear power plant products and services to utilities worldwide. The Company primarily engages in the development, licensing, detailed engineering, project management, and component manufacturing, as well as provision of startup support for new nuclear power plants.[BN] The Plaintiff is represented by: M. Vance McCrary, Esq. Mary E. Olsen, Esq. THE GARDNER FIRM, P.C. 201 S. Washington Avenue Mobile, AL 36602 Telephone: (251) 433-8100 Facsimile: (251) 434-8259 E-mail: vmccrary@thegardnerfirm.com molsen@thegardnerfirm.com - and - Stuart J. Miller, Esq. LANKENAU & MILLER 132 Nassau Street, Suite 423 New York, NY 10038 Telephone: (212) 581-5005 Facsimile: (212) 581-2122 E-mail: sam@lankmill.com WESTSTAR TRANSPORTATION: Cal. App. Affirms Denial of Arbitration ---------------------------------------------------------------- The Court of Appeals of California, Second District, Division Six, issued an Opinion denying Defendant Weststar Transportation, Inc.'s Motion to Compel Arbitration in the case captioned GUY BEAUDOIN et al., Plaintiffs and Respondents, v. WESTSTAR TRANSPORTATION, INC. et al., Defendants and Appellants, 2d Civil No. B271072 (Cal. App.). Plaintiff employees bring a class action against their employer in which they allege employment law violations. The employer moves to compel arbitration of the dispute. The company requires its employees to sign an arbitration agreement when they are hired. Weststar Partnership (Weststar) is engaged in the business of transporting pipe and related materials to various locations in California. Guy Beaudoin, a former employee of Weststar, brought a class action alleging illegal employment practices resulting in the violation of various Labor Code sections and corresponding wage and hour regulations and for unfair business practices. The agreement was not signed by anyone from Weststar. Nor is there a place on the agreement for a signature by a Weststar official. Beaudoin opposed the motion for arbitration on the grounds: (1) the arbitration agreement is with Weststar, Inc. and not with the employer, Weststar Partnership; (2) Weststar breached the agreement and acted in bad faith by coercing employees to sign agreements opting out of the lawsuit; and (3) the arbitration agreement is unconscionable. The trial court did not rule on Weststar's motion to compel arbitration. Instead, it granted Beaudoin leave to amend his complaint by adding another Weststar former employee, Joram Cortez, as plaintiff. The trial court denied Weststar's motion to compel arbitration. Weststar did not request a statement of decision. Weststar contends the trial court erred in finding that the arbitration agreement is unenforceable for lack of mutuality. The party seeking arbitration has the burden of proving the existence of an arbitration agreement. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) Thus Weststar bears the burden of proving the agreement is between Weststar Partnership and its employees, and not Weststar, Inc. Weststar did not request a statement of decision. A statement of decision is required for the denial of a motion to compel arbitration upon a timely request. In the absence of a statement of decision, we indulge in all intendments and presumptions in favor of the judgment or order. Thus we presume the trial court considered Corriea's declaration and rejected it for lack of sufficient verity. Weststar contends the trial court erred in finding the arbitration agreement unconscionable. In any event, there is more here that militates against the enforcement of the agreement than the modest degree of unconscionability that Weststar acknowledges. First, the employer identified in the arbitration agreement, Weststar, Inc., is not the plaintiffs' employer. The trial court found it was not a typographical error. Assuming that Weststar, Inc. is a typographical error, it would be unconscionable to enforce the agreement. Weststar claims it did not know the contents of its own agreement. Yet it expects its employees to know the contents of the agreement and abide by its terms. Second, Weststar also breached its own arbitration agreement. The paragraphs contemplate prior written notice, a reasonable period to consider the matter, a private meeting and good faith discussions aimed at reaching a resolution of the dispute by consensus of both parties. None of that happened. Instead, employees were summoned without prior notice to a meeting with their superior and handed pre-printed settlement agreements. The settlement checks were available at the meeting and contained the employee's name preprinted on the check, thus making it obvious that Weststar not only expected the employee to sign the settlement agreement, but to sign it right then and there. The judgment order is affirmed. A full-text copy of the Cal. App.'s August 17, 2017 Opinion is available at http://tinyurl.com/yb7sloaafrom Leagle.com. Call & Jensen, John T. Egley, 610 Newport Center DriveSuite 700Newport Beach, CA 92660 and Jamin S. Soderstrom - jamin@soderstromlawfirm.com - for Defendants and Appellants Weststar Transportation, Inc. and Weststar Partnership. Justice Law Corporation, Douglas Han - dhan@justicelawcorp.com - Shunt Tatavos-Gharajeh - statavos@justicelawcorp.com - Daniel J. Park - dpark@justicelawcorp.com - and Joy D. Llaguno - jllaguno@justicelawcorp.com - for Plaintiffs and Respondents Guy Beaudoin and Joram Cortez. WEYERHAEUSER COMPANY: Faces "Koppers" Suit Over Defective Joists ---------------------------------------------------------------- KRISTEN KOPPERS and JEFFREY KOPPERS, on behalf of themselves and all others similarly situated v. WEYERHAEUSER COMPANY, Case No. 6:17-cv-06557 (W.D.N.Y., August 10, 2017), arises out of alleged damages sustained by the Plaintiffs and the Class that were proximately caused by Weyerhaeuser's defective TJI Joists with Flak Jacket Protection used in the construction of their homes and other structures. Weyerhaeuser manufactured the alleged defective Joists, and since at least December 2016, sold and distributed the Joists throughout New York and the United States for installation in homes and other structures. Weyerhaeuser Company is a Washington corporation with its principal place of business located in Seattle, Washington. Weyerhaeuser is one of the world's largest forest products companies, controlling 13.1 million acres of timberlands, primarily in the United States, and managing additional timberlands under long-term licenses in Canada.[BN] The Plaintiffs are represented by: Shanon J. Carson, Esq. Lawrence Deutsch, Esq. Jacob M. Polakoff, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-4656 Facsimile: (215) 875-4604 E-mail: scarson@bm.net ldeutsch@bm.net jpolakoff@bm.net - and - E. Michelle Drake, Esq. Joe Hashmall, Esq. BERGER & MONTAGUE, P.C. 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5933 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net jhashmall@bm.net WILLBROS GROUP: Lead Plaintiffs' Bid to Reinstate Case Pending -------------------------------------------------------------- Willbros Group, Inc. `said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 1, 2017, for the quarterly period ended June 30, 2017, that Lead Plaintiffs' motion asking the Court to reconsider its order in 2016 dismissing certain claims remains pending. Litigation and Regulatory Matters Related to the Company's October 21, 2014 Press Release Announcing the Restatement of Condensed Consolidated Financial Statements for the Quarterly Period Ended June 30, 2014 After the Company announced it would be restating its Condensed Consolidated Financial Statements for the quarterly period ended June 30, 2014, a complaint was filed in the United States District Court for the Southern District of Texas ("USDC") on October 28, 2014 seeking class action status on behalf of purchasers of the Company's stock and alleging damages on their behalf arising from the matters that led to the restatement. The original defendants in the case were the Company, its former chief executive officer, Robert R. Harl, and its current chief financial officer. On January 30, 2015, the court named two employee retirement systems as Lead Plaintiffs. Lead Plaintiffs filed their consolidated complaint, captioned In re Willbros Group, Inc. Securities Litigation, on March 31, 2015, adding as a defendant John T. McNabb, II, the former chief executive officer who had succeeded Mr. Harl, and claims regarding the restatement of the Company's Condensed Consolidated Financial Statements for the quarterly period ended March 31, 2014. On June 15, 2015, Lead Plaintiffs filed a second amended consolidated complaint, seeking unspecified damages and asserting violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Act"), based on alleged misrepresentations and omissions in the SEC filings and other public disclosures in 2014, primarily regarding internal controls, the performance of the Oil & Gas segment, compliance with debt covenants and liquidity, certain financial results and the circumstances surrounding Mr. Harl's departure. On July 27, 2015, the Company filed a motion to dismiss the case. At a hearing on May 24, 2016, the court granted the motion to dismiss in part and denied it in part. On July 22, 2016, the Company filed an answer to the suit denying the remaining allegations in the case, which complain of alleged misrepresentations and omissions in violation of the Act regarding internal controls, the performance of the Oil & Gas segment and Mr. Harl's departure. On June 28, 2017, Lead Plaintiffs filed a motion asking the Court to reconsider its order in 2016 dismissing certain claims and allow Lead Plaintiffs to replead two of the claims the Court has dismissed; the Company opposes the motion. The Company continues to vigorously defend against the Lead Plaintiffs' allegations, which the Company believes are without merit. The Company is not able at this time to determine the likelihood of loss, if any, arising from this matter. Willbros Group, Inc., a Delaware corporation, and its subsidiaries, is a specialty energy infrastructure contractor serving the oil and gas and power industries with offerings that primarily include construction, maintenance and facilities development services. The Company's principal markets for continuing operations are the United States and Canada. The Company obtains its work through competitive bidding and negotiations with prospective clients. Contract values range from several thousand dollars to several hundred million dollars, and contract durations range from a few weeks to more than two years. The Company has three reportable segments: Oil & Gas, Utility T&D and Canada. XPO LOGISTICS-SC: "Lo" Class Suit Seeks to Recover Unpaid Wages --------------------------------------------------------------- Chimeng Lo, on behalf of himself and all others similarly situated v. XPO Logistics-SC of Texas, LLC and XPO Logistics, Inc., Case No. 4:17-cv-00674-O (N.D. Tex., August 15, 2017), seeks to recover unpaid 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. The Defendants are in the business of providing transportation and logistics services throughout the United States and globally. [BN] The Plaintiff is represented by: Douglas B. Welmaker, Esq. DUNHAM & JONES ATTORNEYS AT LAW, P.C. 1800 Guadalupe St. Austin, TX 78701 E-mail: doug@dunhamlaw.com - and - Scotty Jones, Esq. DUNHAM & JONES, P.C. 1110 E. Weatherford Street Fort Worth, TX 76102 Telephone: (817) 339-1185 Facsimile: (817) 810-0050 E-mail: sjones@dunhamlaw.com - and - Michael R. Minkoff, Esq. 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