/raid1/www/Hosts/bankrupt/CAR_Public/170904.mbx
C L A S S A C T I O N R E P O R T E R
Monday, September 4, 2017, Vol. 19, No. 174
Headlines
ADVANCED PLUMBING: Two Tradesmen Charged Over Carwoola Bushfires
AGILITY ENERGY: Did Not Pay Overtime Wages, "Burton" Suit Says
AKARI THERAPEUTICS: David Solomon Named CEO Amid Class Actions
ALERE INC: Judge Tosses Most Claims in Securities Class Action
ALLEN COUNTY, IN: Sued Over Flawed Public Defender System
AMERICAN HONDA: Acura HandsFreeLink Class Action Can Proceed
AMERISOURCEBERGEN: Faces Class Action Over Unpaid Overtime Wages
ANGLOGOLD ASHANTI: Silicosis Class Action Hits 1st Half Earnings
ANNIE'S HOMEGROWN: Faces "Campbell" Suit in S.D. of Calif.
APARTMENT SHOP: Judge Certifies Class Action Against Owners
ARS NATIONAL: Faces "Uriarte" Suit in New Jersey
AUS MARKETING: Made Unsolicited Survey Calls, Says "Ambrezewicz"
AUSTRALIA: Robert Leonard's Victim Receives $717K in Compensation
BEHR PAINT: Faces "Kastanis" Suit in Central District of Cal.
BITHUMB: Approximately 140 Members to File Class Action
BLUE APRON: Robbins Geller Files Securities Class Action
BLUE APRON: Wolf Haldenstein Files Securities Class Action
CARDINAL HEALTH: Louisville Files Suit Over Opioid Epidemic
CAREFIRST INC: King & Spalding Attorney Discusses Court Ruling
CENTURYLINK: Faces "Miller" Suit Over Illegal Billing Practices
CJS WHOLESALERS: "Calderon" Labor Suit Seeks Unpaid OT Wages
COHN RESTAURANT: Faces Class Action Over Telephone Solicitation
COMMONWEALTH BANK: Faces Class Action Over Laundering Allegations
COMMONWEALTH BANK: Class Action to Benefit Lawyers, Funders
CONTINENTAL RESOURCES: "Cherry" Suit Seeks Unpaid Overtime Wages
CREDIT SOLUTIONS: Faces "Cameron" Suit in E. Dist. of Kentucky
DEONTE CARRAWAY: Gets Sentence Amid Child Sex Abuse Class Action
DELEK GROUP: Sharir Attorneys Discuss Israel Court Pre-Rulings
DIETZ & WATSON: Fails to Pay Overtime Wages, "Rozeboom" Suit Says
EDISON INT'L: Stinson Leonard Attorney Discusses SCOTUS Ruling
EDUCATIONAL COMPUTER: Faces "Washington" Suit in Penn.
EGGED: Sued for Discriminating Against Disabled Persons
ENDO INT'L: Faces Class Action for Misrepresenting Opana Safety
DEPOMED INC: October 17 Lead Plaintiff Motion Deadline Set
DUKE ENERGY: Faces Class Action Over Coal Ash at Power Plants
FACEBOOK INC: Settlement Over Private Messages Gets Final Okay
FIRST DATA: Sued Over Excessive Rent for Credit Card Terminals
FLOWERS FOODS: "Wiatrek" Suit Seeks Unpaid Overtime Pay
FORTRESS REAL: Court Strikes Down Claim in Harmony Class Actions
FRANKLIN COLLECTION: Illegally Collects Debt, "Rusk" Suit Claims
FRESH INC: Faces "Wu" Suit in S.D.N.Y.
GARLIC NY: "Rojas" Suit in N.Y. Seeks to Recover Unpaid Wages
GETTY REALTY: Faces "Badger" Suit in W. Dist. of Penn.
GLOBUS MEDICAL: Averts Securities Fraud Class Action
GOOGLE INC: Privacy Settlement Goes to Lawyers, Alma Maters
GOOGLE INC: Law Firm Mulls Employment Discrimination Suit
GOOGLE INC: Kelley Drye Attorney Discusses Cy Pres Settlements
GUIDANCE SOFTWARE: Sued in Cal. Over Sale to Open Text
HAIMS MOTORS: Sued in Florida Over Failure to Pay Minimum Wages
HOME CAPITAL: Ontario Court Okays $29.5MM Class Action Settlement
HUNTINGTON PLUMBING: Faces "Amaya" Suit in E.D. of New York
HYUNDAI MOTOR: Averts Class Action Over Defective Vehicle Paint
HYUNDAI MOTOR: McGuireWoods Attorneys Discuss Court Ruling
INDIANA: Class Action Over Vehicle Seizure Law Pending
INFOSYS: U.S. Law Firms Investigate Potential Securities Claims
INFOSYS: Panaya Acquisition May Prompt Investor Class Actions
INFOSYS: Indian Investors Have Option to File Class Action
INFOSYS: Security Fraud Probe Unlikely to Cause Serious Impact
JENSEN-LEWIS CO: Wu Files Suit in S.D.N.Y.
JOSEPHINE'S ITALIAN: Illegally Withheld Tips, Claims "Franks"
KANE'S FURNITURE: Faces "Joseph" Suit Over Failure to Pay OT
LIBRE BY NEXUS: Moves Into Mediation of Civil Class Action
LPL FINANCIAL: Judge Dismisses Stock Price Drop Class Action
MACY'S INC: Challenges TCPA Class Action Over Robocalls
MDL 2789: Sept. 12 Initial Conference Set in Nexium Cases
MUZZARELLA INC: "Hernandez" Claims Spread-of-Hours, Overtime Pay
NEBRASKA LAW ENFORCEMENT: Faces "Carter" Suit in Dist. of Neb.
NEW SOURCE: Nov. 20 Class Action Settlement Fairness Hearing
NORTH OKALOOSA: Faces Class Action Over Exorbitant CT Scan Fees
PA UNIFIED: Faces "Dougherty" Suit in M. Dist. of Penn.
PETHEALTH INC: Averts Pet Adopters' Class Action Over Robocalls
PORTFOLIO RECOVERY: Faces "Stewart" Suit in E.D.N.Y.
REGENCY BEAUTY: Appeals Court Affirms FLSA Class Action Dismissal
REMINGTON: Attorneys Want Court to Approve Rifle Settlement
SHELL OIL: Class Action Settlement Obtains Prelim. Court Approval
SHERWIN-WILLIAMS: Mitnick Law Office Files Class Action
SANTEE COOPER: Faces Class Action Over Pee Dee Plant Rate Hike
SENTRY LIFE: Faces "Maxon" Suit in M. Dist. of Fla.
SHORETEL INC: Faces "Scarantino" Suit Over Proposed Mitel Merger
SITE SERVICES: Faces "Duque" Suit in E.D. of New York
SOLARCITY CORP: Calif. Court Dismisses Securities Class Action
SONY MOBILE: Settles Xperia Water Damage Class Action
SOPHIE'S CUBAN: Faces "Wu" Suit in S. Dist. of New York
STANDARD BANK: Braces for Class Action Over Sale in Execution
SUSHI 21: "Chen" Action Seeks Spread-of-Hours, Overtime Pay
SUSHIRRITO NYC: Faces "Wu" Suit in S.D.N.Y.
TEMPUR SEALY: Seeks Dismissal of Data Breach Class Action
TEVA PHARMACEUTICALS: Kaufman, Coren & Ress Files Class Action
TOMORROW TELECOM: "Monroe" Suit Seeks to Recover Unpaid OT Wages
TOP SHIPS: Robbins Geller Rudman Files Securities Class Action
TRUMP VILLAGE: Class Action Mulled Against Co-op Board
UBER: Arbitration Provision Reinstated in Customer Agreements
UBER TECHNOLOGIES: Stinson Attorneys Discuss Arbitration Ruling
UBER: Ex-Engineer's Lawyers Want Arbitration Agreements Nixed
UNIQUE BEVERAGE: Wants Coconut Drink Class Action Dismissed
UNITED STATES: August Pipestone HRA to Join Class Action v. HUD
UNITED STATES: Legal Clinic Set in Cobell Settlement
V2 LOGISTICS: "Laucella" Suit Seeks to Recover Unpaid OT Wages
VERMONT MUTUAL: Faces "Martins" Suit in Mass. Super. Ct.
VOLVO CARS: 7th Circuit Revives Hybrid SUV Class Action
WASHINGTONFIRST BANKSHARES: Rigrodsky & Long Files Class Action
WELLS FARGO: Set to Begin Refunds in Fake Accounts Scandal
WEST MISSISSIPPI: "Arnold" Labor Suit Seeks Unpaid OT Wages
ZILLOW INC: Averts Class Action Over "Zestimate" Feature
ZILLOW GROUP: Oct. 23 Lead Plaintiff Motion Deadline Set
* Arizona AG Backs FTC's Class Action Fairness Project
* CFPB's Arbitration Ruling Faces Opposition
* CFPB Director Defends Move to Block Mandatory Arbitration
* DOL Seeks 18-Month Delay of Fiduciary Rule Implementation
* New Legislation to Enable Workers' Wage Theft Class Actions
* Recent Fifth Circuit Opinions Favor Class Action Waivers
* White House Says CFPB's Arbitration Rule Harms Consumers
*********
ADVANCED PLUMBING: Two Tradesmen Charged Over Carwoola Bushfires
----------------------------------------------------------------
Elliot Williams, writing for The Canberra Times, reports that two
tradesmen accused of starting the Carwoola bushfires in February
appeared in Queanbeyan Local Court on Aug. 21.
It is suspected the fire was ignited because the two men allegedly
used power tools on the property despite a total fire ban.
The men have been charged with causing or setting fire to another
person's property and failing to comply with the direction of a
minister regarding the ban.
Lawyers for the men requested a two-week adjournment in each case,
at which time pleas could be entered.
The two men will reappear in court on September 4.
The fire ripped through 3500 hectares of land, completely
destroyed eight homes and damaged a number of other buildings.
A class action for people who had property destroyed or damaged,
which lawyers claim could return more than $15 million, began in
early August in the NSW Supreme court. [GN]
AGILITY ENERGY: Did Not Pay Overtime Wages, "Burton" Suit Says
--------------------------------------------------------------
Alex Burton, individually and on behalf of all others similarly
situated, Plaintiff, v. Agility Energy, Inc., Defendant, Case No.
3:17-cv-00255 (W.D. Tex., August 15, 2017), seeks unpaid overtime
under the Fair Labor Standards Act and the New Mexico Minimum Wage
Act.
Agility Energy is a petroleum and frac proppant distributor
selling pumps, filters and tools where Burton worked as a sand
coordinator. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Richard M. Schreiber, Esq.
Andrew Dunlap, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
rschreiber@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
AKARI THERAPEUTICS: David Solomon Named CEO Amid Class Actions
--------------------------------------------------------------
Ben Adams, writing for Fierce Biotech, reports that former Zealand
Pharma chief David Horn Solomon, M.D., has taken up the challenge
of guiding biotech Akari Therapeutics during an increasingly
tumultuous period.
The change at the top comes after the former CEO quit earlier this
year amid a probe into the release of phase 2 data and a related
analyst report. An investigative committee ruled that Gur
Roshwalb, M.D., had broken company policy and found that an Akari
statement had falsely claimed a patient met the primary endpoint
in a phase 2 trial.
Akari convened the ad hoc committee in response to the publication
and subsequent withdrawal of a report by Edison Investment
Research. Edison drafted a report for Akari to describe data from
a phase 2 trial of Coversin, the biotech's rival to Alexion's
Soliris. The committee found that Dr. Roshwalb reviewed and
approved the Edison report. One day after publication, Edison
pulled the report after learning it contained "material errors."
At that time, Akari pointed investors to its own press release for
an accurate write-up of the data. But it has now emerged that the
errors extend beyond the Edison report.
Akari framed Dr. Roshwalb's recent decision to resign as a
consequence of him having contravened company policy by reviewing
and approving the Edison report. The analyst report claimed the
phase 2 data showed Coversin was a match for ultrarare (and
ultracostly) Soliris, a statement that looked flimsy even before
Akari revealed one of the five patients missed the primary
endpoint.
With Dr. Roshwalb quitting, Executive Chairman Ray Prudo, M.D.,
served as acting CEO. Now Solomon, who was CEO of European
diabetes biotech Zealand Pharma from 2008 to 2015, takes the reins
and will have a lot in his in-tray.
When Akari unveiled the phase 2 data, it set its sights on getting
Coversin into phase 3 by the end of the year. Akari began 2017
with $44 million, but the slide in the company's stock price has
diminished its ability to add to that pile. And it is subject to
two class action lawsuits that could distract it and eat into its
cash reserves. Akari has said it plans to "vigorously defend"
itself against the lawsuits.
Unsurprisingly, the biotech decided not to go into these troubles
in its release but instead focused on the future and its new
leader.
"I am very pleased that David will be joining Akari and that we
have been successful in attracting a person of his caliber and
with over 20 years of leadership experience in the biotechnology
industry," said Dr. Prudo. "David has a strong track record of
leading phase 2-stage companies like Akari, most notably at
Zealand Pharma where he led the development of lixisenatide, which
is now commercialized by Sanofi."
"I am excited by Akari's growing and diversified discovery
platform and its clinical programs in the complement mediated
diseases, PNH (paroxysmal nocturnal hemoglobinuria) and aHUS
(atypical hemolytic uremic syndrome)," added Dr. Solomon. "I
believe Akari's lead compound, Coversin, with its dual binding
sites also has potential in a wide range of other diseases where
both the complement and leukotriene pathways are implicated
including atopic keratoconjunctivitis in the eye and bullous
pemphigoid in the skin. Akari is building momentum in its
research programs and this is a hugely exciting time to join and
help advance its products."
Back in 2015, Deerfield Management led a $75 million round for
Akari, which was created out of Celsus Therapeutics' recent
acquisition of Volution Immuno Pharmaceuticals SA. The microcap
biotech had a market cap of just $44 million as of Aug. 18.
[GN]
ALERE INC: Judge Tosses Most Claims in Securities Class Action
--------------------------------------------------------------
Jack Newsham, writing for Law360, reports that medical diagnostic
equipment maker Alere Inc. won the dismissal of most of a
securities fraud class action on Aug. 23, with a Massachusetts
federal judge concluding that there was little to support the idea
that Alere's bosses knew about most of its alleged wrongdoing.
Alere's stock price took a beating last year as scandals emerged
and its proposed acquisition by Abbott Laboratories was delayed,
but U.S. District Judge Patti B. Saris said investors who sued the
company and three executives alleging fraud had failed to cite
facts that would support most of their claims. Only one part of
the amended complaint, involving the recall of its INRatio blood
testing products, was allowed to move into discovery.
"There is no denying that a steady drumbeat of negative
information about Alere was disclosed to the market beginning soon
after the merger announcement," the judge wrote. "2016 was a bad
year for Alere.
"However, most of the internal control problems involved far-flung
operations all over the world and very different kinds of
government regulatory problems facing different subsidiaries," she
continued. "With the exception of the problems related to
INRatio, the complaint does not support a strong inference of
prior knowledge on the part of senior management."
Things were looking up for Alere when it announced on Feb. 1,
2016, that Abbott had offered to buy it out for $56 a share, about
50 percent above its market price. Later that month, however, the
company announced that its results would be delayed because of
"internal control" failures involving its work in Africa and
China. It also said it had been subpoenaed by federal authorities.
In April, Abbotts CEO declined to affirm his company's commitment
to buy Alere. And in July, Alere recalled its INRatio devices,
which are used to measure blood coagulation so doctors give their
patients the right amount of blood thinning medication, after
class action lawsuits had been filed over their reliability. That
same month brought announcements that it had made accounting
errors for three years and that it was under investigation for
criminal fraud.
Lawyers for the proposed class had argued that Alere's management
had been bent on an acquisition so they would receive big payouts,
and cited reports from confidential witnesses that the problems
that came to light in 2016 had been pending for years. But Judge
Saris said there just wasn't enough to show that Alere itself or
the individual executives named in the suit knew about most of the
issues when the acquisition was announced.
Claims related to the INRatio recall were allowed to go forward,
however. While Alere sought to argue that it had warned
shareholders of the prospect, and that it had made efforts to fix
the devices that cut against the suggestion that it was covering
up the necessity to do so, the court said the timeline of the
recall -- and a confidential witness who said Alere had to hire
huge numbers of quality assurance employees as early as 2015 to
deal with INRatio complaints -- refuted that.
"Taken together, the inference that Alere and its senior
management knew or recklessly hid the facts necessitating an
INRatio recall-related loss reserve from the market is at least as
likely as the opposing inference that Alere would not have made
substantial efforts and investments to fix the problem if it knew
a recall was likely or probable," the decision said.
Carla Flakne, one of the individual defendants, was also dismissed
from the case because of a lack of individual allegations against
her.
The decision didn't say whether the dismissal was with prejudice
or whether the plaintiffs would be given a chance to amend their
lawsuit again. The parties were instructed to come to the court
with a proposed schedule in 30 days.
A lawyer for Alere declined to comment and a company
representative, and lawyers for the plaintiffs didn't respond to a
request for comment.
The proposed class is represented by The investors are represented
by Jeffrey S. Abraham, Lawrence D. Levit and Matthew E. Guarnero
of Abraham Fruchter & Twersky LLP and Edward F. Haber --
ehaber@shulaw.com -- and Adam M. Stewart -- astewart@shulaw.com --
of Shapiro Haber & Urmy LLP.
Alere is represented by Jane B. O'Brien -- jobrien@paulweiss.com -
- and Richard A. Rosen -- rrosen@paulweiss.com -- of Paul Weiss
Rifkind Wharton & Garrison LLP, and Deborah S. Birnbach and
Katherine G. McKenney of Goodwin Procter LLP.
The case is Godinez v. Alere Inc., et al., Case No. 1:16-cv-10766
(D. Mass.). The case is assigned to Judge Patti B. Saris. The
case was filed April 21, 2016. [GN]
ALLEN COUNTY, IN: Sued Over Flawed Public Defender System
---------------------------------------------------------
The Journal Gazette reports that a class-action lawsuit filed
against Allen County officials is highlighted in a new documentary
series about Indiana's flawed public defender system.
In an episode set to air on Aug. 24, the public television series
examines lawsuits in Allen and Johnson counties alleging that low-
income defendants receive inadequate representation in an
underfunded system.
The Allen County suit was filed in U.S. District Court in January
2016, naming the county, County Council, county commissioners and
the Allen County Public Defender Board as defendants. Motions
under review seek to certify the plaintiffs as a class.
Fort Wayne resident Asia Marshall, who was assigned a public
defender after she was charged with domestic battery and
disorderly conduct, is featured in the series, produced by
Bloomington-based Indiana Public Media.
Ms. Marshall tells interviewers she was repeatedly pressured to
accept a plea deal but refused because she was innocent of the
charges, which stemmed from an incident involving a former
boyfriend. He claimed injury when she threw a TV remote at him.
On advice from a public defender, she agreed to a defenseless
trial, where she was convicted and jailed.
"To me they're plea pushers," she tells WFIU. "It's easy to push
a plea, I don't have to research this case, I just make this
sweetness deal and make this sound good from a person."
David Frank, an attorney with Christopher C. Myers & Associates,
Fort Wayne, is lead attorney for the plaintiffs.
"The documentary does a really nice job of laying out the need for
a common-sense solution," he said. "I think it helps put a face
on who is being affected. It's people who haven't been convicted
of anything but have simply been accused of a crime and can't
afford legal representation."
The series paints a troubling picture of the state's public
defender system, which places responsibility for providing
indigent defense with Indiana counties. The Indiana Public
Defender Commission sets standards for county courts, including
maximum caseloads.
According to the Allen County lawsuit, more than 6,250 misdemeanor
cases between Jan. 1, 2013, and Aug. 1, 2015, were divided between
four part-time defense attorneys representing indigent defendants.
"All attorneys each appeared (on) at least 1,100 cases," according
to the suit, which also alleges the county's taxing bodies have
allocated no additional funds to assist with misdemeanor defenses
and that the Allen County Public Defender Board did not properly
supervise the public defender's office.
The Boston-based Sixth Amendment Center, established to safeguard
the constitutional rights of the accused, last October issued a
harsh report on Indiana's public defender system.
"The Indiana Model for providing Sixth Amendment right to counsel
services is inherently flawed," the report concludes. "It both
institutionalizes and legitimizes the choice of counties to not
fulfill the minimum parameters of effective representation."
The documentary series gives voice to attorneys and defendants who
see firsthand how the state's system is failing.
"It's not about bad lawyers. It's about (the fact) they have no
resources; they have no independence," says Larry Landis,
executive director of the Indiana Public Defender Council. "They
have inadequate compensation, excessive workloads. It's going to
impair quality of representation."
Few people see the legal system from the vantage point offered by
the series. It's a worthwhile look at a system in need of repair.
[GN]
AMERICAN HONDA: Acura HandsFreeLink Class Action Can Proceed
------------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that an
Acura HandsFreeLink class-action lawsuit will proceed after a
federal judge allowed a few claims to continue while dismissing
the majority of the class-action lawsuit.
The HandsFreeLink lawsuit has 12 named plaintiffs alleging they
purchased new or used Acura vehicles equipped with defective
Bluetooth and HandsFreeLink systems that caused a "parasitic
drain" on their electrical systems.
Acura advertised the systems as a way for customers to connect
their phones to the vehicles and enjoy hands-free phone calls and
other advantages, all at a premium price.
Within a few years of purchase, the plaintiffs allegedly began to
experience electronic issues with their vehicles, especially with
premature dead batteries. The plaintiffs claim they were forced
to purchase several new batteries at their own expense and make
other costly repairs.
According to the lawsuit, the electronic systems were failing
because the HandsFreeLink systems drained the batteries at
unusually high rates and affected other electronic devices, such
as the alternator.
The plaintiffs say Acura was aware of defects in the HandsFreeLink
system because in June 2005, Honda issued a technical service
bulletin (TSB) to dealers that allegedly said the HandsFreeLink
system "does not work" and may cause a dead or low battery.
In addition, the problem "effectively elude[d] diagnosis" and
"once the HandsFreeLink(TM) defect compromises the battery, the
system can 'reset,' hiding the problem until the system gets stuck
again." More bulletins were sent to dealers in 2008 and 2012
telling dealers the only way to fix the problem was to replace the
HandsFreeLink systems.
The plaintiffs also claim the problem is a safety hazard because
vehicles can stop operating while on the road.
The original lawsuit was filed in 2016 and then an amended lawsuit
was filed alleging 69 counts under 11 state laws related to the
HandsFreeLinks problems. Acura filed its motion to dismiss all
the claims because they are untimely or fail as a matter of law.
The court granted Acura's motion to dismiss implied warranty
claims under Delaware, Kansas, New Hampshire, Ohio, Texas and
Virginia law considering the statutes of limitations for claims
arising from a contract for sale is four years starting from the
time of sale. The judge ruled none of the claims were brought
within four years of purchasing their vehicles and are therefore
untimely.
Except for one plaintiff, the California Legal Remedies Act and
Unfair Competition Law claims are dismissed without prejudice, and
the Delaware, Kansas, New Hampshire, Virginia, Texas and Florida
consumer protection claims are dismissed without prejudice. The
consumer protection claim under Ohio is also dismissed, but with
prejudice.
However, the judge did rule certain claims related to California
consumer protection laws and fraudulent concealment can proceed.
The Acura HandsFreeLink lawsuit was filed in the U.S. District
Court for the Northern District of California -- Mark Gerstle, et
al., v. American Honda Motor Company, Inc.
The plaintiffs are represented by Hagens Berman Sobol Shapiro LLP,
Seeger Weiss, Carella, Byrne, Cecchi, Olstein, Brody & Agnello,
P.C. and Baron & Budd, P.C. [GN]
AMERISOURCEBERGEN: Faces Class Action Over Unpaid Overtime Wages
----------------------------------------------------------------
Hannah Meisel, writing for Law360, reports that drugmaker
AmerisourceBergen was hit with a proposed class action on
Aug. 21 alleging the company violates the Fair Labor Standards Act
by not paying call center employees for the time it takes to boot
up their computers and otherwise prepare for the day.
The case is the latest in a spate of "wage theft" suits filed by
call center workers, who often allege that because they are
expected to be ready to take their first call at the very
beginning of their shifts, they must come to work early to prepare
and stay later than their last call to finish up, but are not
compensated for that time.
The plaintiff in the AmerisourceBergen case, Illinois resident
Syrria Williams, worked in the company's Naperville, Illinois,
call center from 2014 to 2016. She alleges the drugmaker failed
to pay her and similarly situated workers for 10 to 15 minutes of
work per day.
"The net effect of Defendant's policies and practices, instituted
and approved by company managers, is that Defendant willfully
failed to pay regular and overtime compensation to Plaintiff and
others similarly situated, and willfully failed to keep accurate
time records to save payroll costs," the complaint said.
"Defendant thus enjoyed ill-gained profits at the expense of its
hourly employees."
Ms. Williams' three-count complaint includes allegations that
Pennsylvania-based AmerisourceBergen violated federal labor law by
failing to pay overtime wages and also violated the Illinois
Minimum Wage Law and the Illinois Wage Payment and Collection Act.
Those 10 to 15 minutes of unpaid time per day would add up to
about an extra hour of work per week, according to the lawsuit.
Ms. Williams' wage, for example, was $17.50 per hour.
The complaint alleged that the company's failure to pay overtime
wages was willful because the company clearly knew that its call
center employees needed to begin their workdays before the start
of their scheduled shifts and stay after the end of their last
call, and yet did nothing about it.
"Defendant's managers on the call center floor could and did
regularly see with their own eyes that Plaintiff and similarly
situated telephone-based employees arrived at their work stations
before the start of their scheduled shift time, logged into
Defendant's computers, and began working on their computers prior
to the start of their scheduled shift time," the complaint said.
"Despite seeing and knowing that Plaintiff and similarly situated
telephone-based employees performed work at their work stations
prior to their scheduled shift time start, Defendant and its
managers on the floor of the call center did not make any effort
to stop or otherwise disallow this pre-shift work and instead
allowed and permitted it to happen."
Ms. Williams alleged that she and other call center workers needed
time at the beginning and end of their workdays in order to boot
up their computers, initialize several software programs, read
company emails and instructions, log out of their computers and
report their last calls.
The complaint also alleged that AmerisourceBergen's software
allows the company to closely monitor what employees are doing at
all times, and the amount of time employees are working during
their shifts. In having this information at its fingertips, the
complaint said, AmerisourceBergen knew it was willfully depriving
employees of overtime pay.
"By possessing, controlling and/or accessing this information,
Defendant knew that Plaintiff and similarly situated telephone-
based employees worked prior to the start of their scheduled shift
time," the complaint said.
A spokesman for AmerisourceBergen declined to comment specifically
on the case, citing pending litigation.
"But we can say that AmerisourceBergen is committed to fair and
approrpiate compensation for all associates and have process and
protocol in place to ensure we are compliant with laws governing
wages and pay," spokesman Gabriel Weissman told Law360 in an
email.
Representatives for Ms. Williams could not be reached for comment
on Aug. 22.
Ms. Williams is represented by James Bormes and Catherine Sons of
the Law Office of James X. Bormes PC and Thomas Ryan of the Law
Office of Thomas M. Ryan PC.
Counsel for AmerisourceBergen could not be determined on Aug. 22.
The case is Syrria Williams v. AmerisourceBergen Drug Corporation,
case number 1:17-cv-06071 (N.D. Ill.). The case is assigned to
Judge Honorable Robert W. Gettleman. The case was filed August
21, 2017. [GN]
ANGLOGOLD ASHANTI: Silicosis Class Action Hits 1st Half Earnings
----------------------------------------------------------------
Alexandra Wexler, writing for Dow Jones Newswires, reports that
AngloGold Ashanti Ltd, the world's No. 3 gold producer, reported a
first-half loss on Aug. 21 as the miner restructures some of its
loss-making South African units.
AngloGold reported a loss of $176 million in the six months to
June 30, from a profit of $52 million during the same period in
2016, in line with the company's previously announced guidance.
Earnings were hit by an $86 million post-tax impairment related to
certain South African mines, as well as $47 million post-tax set
aside for potential staff layoff costs there as well as $46
million post-tax for the estimated cost of settling a silicosis
class action lawsuit brought against a group of major South
African miners.
The company said its headline loss, which strips out certain
exceptional and one-off items, came in at 22 cents a share, from a
profit of 23 cents a share a year earlier. AngloGold added that
higher operating costs, due to stronger local currencies in South
Africa and Brazil, as well as lower income from joint ventures
also hit its bottom line. Net debt has risen by 12% since Dec. 31
to $2.15 billion at June 30.
The South Africa-based mining company's shares are down 12% year-
to-date and 48% over the last 12 months on the Johannesburg Stock
Exchange.
Gold production rose 0.2% from the same six months in 2016, to
1,748,000 ounces in the January to June period. The company
received an average gold price of $1,236 an ounce in the first
half of 2017, up 1.1% from $1,222 from the first half of 2016,
though all-in sustaining costs rose 18% to $1,071 an ounce over
the same period.
Revenue for the first six months of the year rose 4.3% to $2.13
billion. [GN]
ANNIE'S HOMEGROWN: Faces "Campbell" Suit in S.D. of Calif.
----------------------------------------------------------
A class action lawsuit has been filed against Annie's Homegrown,
Inc. The case is styled as Janell Johnson Campbell, individually,
and on behalf of all others similarly situated, Plaintiff v.
Annie's Homegrown, Inc. and General Mills, Inc., Defendants, Case
No. 3:17-cv-01736-MMA-MDD (S.D. Cal., August 28, 2017).
Defendant manufactures, markets, and distributes the Annie's
Naturals (R) Products throughout the United States. Plaintiff
purchased said products based on claims on the Product's label
that the ingredients were "natural." However, products clearly
contain synthetic and highly chemically processed xanthan gum as
indicated on its label, says the complaint.[BN]
The Plaintiff is represented by:
John W. Davis, Esq.
Law Office Of John W. Davis
501 West Broadway, Suite 800
San Diego, CA 92101
Tel: (619) 400-4870
Fax: (619) 342-7170
Email: john@johnwdavis.com
APARTMENT SHOP: Judge Certifies Class Action Against Owners
-----------------------------------------------------------
Max Nesterak, writing for MPR News, reports that one of the
country's largest class-action lawsuits against a private landlord
is underway in Minneapolis. It could involve thousands of current
and former tenants of more than 60 buildings across the city.
The plaintiffs are everyone who has rented an apartment owned by
Stephen Frenz and Spiros Zorbalas in the last five years. Their
claim is that Messrs. Frenz and Zorbalas, who own The Apartment
Shop properties, did not keep their buildings safe and in
reasonable repair, as required by Minnesota state statute
504b.161. They also claim Mr. Frenz obtained his rental licenses
through fraud. They're seeking all their rent money be returned.
"I've never seen anything like it," said Larry McDonough, who's
not involved in the case. He's a lawyer at Dorsey Whitney and
expert in landlord-tenant law. "The scheme that's alleged. The
number of tenants involved. The number of units, and the time
frame. If the plaintiffs are successful, we're talking millions
of dollars. I've never seen that in a landlord-tenant case
before."
It's not hard to find tenants who are unhappy with Mr. Frenz and
The Apartment Shop. Tenants in Longfellow, Powderhorn, Uptown and
Stevens Square tell stories of persistent pest infestations,
broken appliances, water damage and mold.
Angela Norris, a resident in an Apartment Shop building in Uptown,
says she loves the location, but doesn't like the mice or the lack
of heat in winter.
"Wintertime is always hit or miss, so I have to use the oven and
space heaters just to keep warm," Norris said.
Mr. Frenz's lawyer Brad Kletscher declined to comment, but argued
in court that the buildings are well maintained. He pointed to the
fact that a city inspector gave Frenz's buildings the highest rank
of "Tier 1."
In terms of the second major claim, about fraudulent rental
licenses, you have to go back to 2011, when Minneapolis revoked
three rental licenses of another major landlord: Spiros Zorbalas.
The city banned him from renting apartments for five years because
of persistent code violations and poorly maintained buildings.
Mr. Zorbalas appealed the decision all the way the U.S. Supreme
Court, which declined to hear the case. So in 2012, he announced
that Frenz was buying all of his buildings outright.
But that wasn't true.
"In 2012, Mr. Zorbalas and Mr. Frenz got together and created a
number of corporations or LLC.'s that obfuscated Mr. Zorbalas's
ownership in over 60 buildings and their rental licenses," said
Michael Cockson, the lawyer for the plaintiffs.
The city of Minneapolis only found out about Mr. Zorbalas's
continued financial stake in all these buildings last fall because
Mr. Frenz told them in a sworn affidavit. After that, Minneapolis
moved to revoke Mr. Frenz's licenses; that case gets a hearing
next month.
This is the tenants' argument: Mr. Zorbalas wasn't supposed to
have a financial interest in rental properties, ergo the rental
licenses were fraudulent, ergo they should get all their rent
money back.
Messrs. Zorbalas and Frenz moved to dismiss the case and argued
tenants' complaints are too different to be considered together.
They also cited tenants who say maintenance was responsive to
their complaints. Hennepin County District Judge Mary Vasaly
denied all their motions.
She certified the case as class-action and asked the defense to
prepare a list of everyone who's lived in their buildings in the
last five years and get it to her by Aug. 25. [GN]
ARS NATIONAL: Faces "Uriarte" Suit in New Jersey
------------------------------------------------
A class action lawsuit has been filed against ARS National
Services, Inc. The case is styled as David Uriarte, individually
and on behalf of all others similarly situated, Plaintiff v. ARS
National Services, Inc., Defendant, Case No. 3:17-cv-06506 (D.
N.J., August 29, 2017).
ARS offers accounts receivable management services. It caters to
financial services organizations; banks; and credit card
companies.[BN]
The Plaintiff appears PRO SE.
AUS MARKETING: Made Unsolicited Survey Calls, Says "Ambrezewicz"
----------------------------------------------------------------
Lucas Alex Ambrezewicz, individually and on behalf of all others
similarly situated, Plaintiff, v. AUS Marketing Research Systems,
Inc. dba SSRS, a Pennsylvania corporation, Defendant, Case No.
2:17-cv-03650, (E.D. Pa., August 15, 2017), seeks actual and
statutory damages; an injunction requiring Defendant and its
agents to cease all unsolicited survey calls; reasonable
attorneys' fees and costs; and such other and further relief for
violation of the Telephone Consumer Protection Act.
AUS is a full-service market and survey research firm. It conducts
surveys on a wide variety of topics including current events,
health care, customer/product satisfaction, politics, media usage,
and many others. Plaintiff allegedly received such calls from AUS
made from an auto-dialer.
Plaintiff is represented by:
Kay E. Sickles, Esq.
105 Lodges Lane
Bala Cynwyd, PA 19004
Telephone: (484) 343-2741
Email: kaysickles.esguire@gmail.com
- and -
Blake J. Dugger, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
1011 W. Colter St., #236
Phoenix, AZ 85013
Telephone: (602) 441-3704
Facsimile: (888) 498-8946
Email: blake@stefancoleman.com
AUSTRALIA: Robert Leonard's Victim Receives $717K in Compensation
-----------------------------------------------------------------
Megan Bailey, writing for Cranbourne Leader, reports that a man
abused by paedophile teacher Robert Leonard Morris -- who taught
at schools in Cranbourne -- has been awarded $717,000 in
compensation from the State Government.
Mr. Morris, 72, was jailed for six years in March 2016 for his
crimes against children in Ringwood and Cranbourne in the 1970s,
and is the subject of a class-action lawsuit brought by Melbourne
firm Rightside Legal last year.
Rightside Legal partner Michael Magazanik, who is handling the
case, said eight out of the 10 cases resolved so far were from
Cranbourne.
"We've had a couple of inquiries from other men taught by Morris,"
he said.
"I'm sure further people will come forward over the coming days.
"I also understand that other men -- who have not contacted us --
have gone to the police about Morris and they are investigating
further charges."
On August 11 the Supreme Court heard the victim, now in his early
50s, was a Grade 4 student at Eastwood Primary School in the mid-
70s when Mr. Morris abused him.
The court heard the married father of two had suffered
psychological damage, depression and anxiety.
"I was happy when I was young . . . when this happened to me in
Grade 4 my life changed," the man said.
"I was worried about what the other kids thought about what I had
done and what happened to me and they must know and they must be
talking about me.
"It's just devastating -- I felt really helpless."
Justice Rita Zammit said she had taken into account the man's lost
earning capacity in her judgment.
"He said in evidence his bills are constantly going up and he
would have liked to have wanted to provide a better quality of
life for his children -- his family's needs are real and
significant," she said.
Education department spokesman Alex Munro described the case as
"tragic".
"We have settled a number of cases through mediation and
apologised unreservedly for failing to protect the victims of this
teacher when they were students in the 1970s," he said.
"Since the 1970s, there has been a complete overhaul of the way
schools identify and respond to suspected child abuse to prevent
this from happening again, including the introduction of the Child
Safe Standards and the new Reportable Conduct scheme, to help
schools build a culture that minimises the risk of abuse.
"We are seeking contribution from Mr Morris in respect of all
settlement sums."
So far the government been ordered to pay more than $7 million to
the victims. [GN]
BEHR PAINT: Faces "Kastanis" Suit in Central District of Cal.
-------------------------------------------------------------
A class action lawsuit has been filed against Behr Paint Corp. The
case is styled as Paula Kastanis and Brian Lange, individually and
on behalf of all others similarly situated, Plaintiffs v. Behr
Process Corp., Behr Paint Corp., Masco Corp., The Home Depot, Inc.
and Home Depot U. S. A., Inc., Defendants, Case No. 8:17-cv-01488-
CJC-DFM (C.D. Cal., August 29, 2017).
Behr Process Corporation, a wholly owned subsidiary of MASCO
Corporation, has manufactured and sold a deck resurfacing product
called DeckOver that is sold exclusively at Home Depot branded
stores. Behr Process Corporation and Behr Paint Corporation are
California corporations, with their principal place of business in
Santa Ana, California.
MASCO Corporation is a corporation organized and existing under
the laws of the state of Delaware, with its principal place of
business located in Taylor, Michigan. MASCO acquired Behr Process
Corporation in 1999. MASCO is one of the largest manufacturers
and suppliers of architectural paint, coatings, and exterior wood
care products in the United States.
Home Depot U.S.A., Inc. is a Delaware corporation, with its
principal place of business in Georgia. Home Depot operates as a
subsidiary of The Home Depot, Inc. The Home Depot, Inc. is a
Delaware corporation, with its principal place of business in
Georgia. The Home Depot, Inc. describes itself as the world's
largest home improvement retailer.[BN]
The Plaintiffs are represented by:
Mark A Ozzello, Esq.
Ozzello Practice PC
17383 West Sunset Boulevard Suite A-380
Pacific Palisades, CA 90272
Tel: (844) 774-2020
Fax: (310) 454-5970
Email: mark@ozzellolaw.com
- and -
Samuel M Ward, Esq.
Barrack Rodos and Bacine
One America Plaza
600 West Broadway Suite 900
San Diego, CA 92101
Tel: (619) 230-0800
Fax: (619) 230-1874
Email: sward@barrack.com
- and -
Stephen R Basser, Esq.
Barrack Rodos and Bacine
One America Plaza
600 West Broadway Suite 900
San Diego, CA 92101
Tel: (619) 230-0800
Fax: (619) 230-1874
Email: sbasser@barrack.com
BITHUMB: Approximately 140 Members to File Class Action
-------------------------------------------------------
Jung Suk-yee, writing for BusinessKorea, reports that it has been
found that approximately 140 Bithumb members are planning to file
a class action suit against Bithumb within this year.
"We recently appointed a law firm and decided to file the first
suit before the end of this year," they explained, adding, "More
litigation can follow down the road depending on the number of
victims."
The most controversial part is likely to be whether there is any
causality between the personal information leakage attributable to
the hacked Bithum employee PC and their pecuniary loss estimated
at four billion won or so in total. At present, the virtual
currency exchange is claiming that only e-mail addresses and phone
numbers have been compromised and it has minimized the pecuniary
loss by limiting withdrawals on June 30 immediately after the
leakage.
In response, the victims are claiming that their IDs and passwords
have been compromised as well and their loss has reached up to
hundreds of millions of won per person due to the incident. The
Seoul Central District Prosecutors' Office, the Korea
Communications Commission, and the Korea Internet & Security
Agency are currently investigating the incident and the result of
the investigation is scheduled to be announced within this month.
[GN]
BLUE APRON: Robbins Geller Files Securities Class Action
--------------------------------------------------------
Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Aug. 21
disclosed that a class action has been commenced on behalf of
purchasers of Blue Apron Holdings, Inc. ("Blue Apron") (NYSE:APRN)
Class A common stock in and/or traceable to the Registration
Statement issued in connection with Blue Apron's June 29, 2017
initial public stock offering (the "IPO"). This action was filed
in the District of New Jersey and is captioned Chaudhry v. Blue
Apron Holdings, Inc., No. 17-cv-6295.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 17, 2017. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Samuel H.
Rudman or David A. Rosenfeld of Robbins Geller at
800-449-4900 or 619-231-1058, or via e-mail at djr@rgrdlaw.com. If
you are a member of this class, you can view a copy of the
complaint as filed at http://www.rgrdlaw.com/cases/blueapron/.Any
member of the putative class may move the Court to serve as lead
plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member.
The complaint charges Blue Apron, certain of its officers and/or
directors and the underwriters of its IPO with violations of the
Securities Act of 1933. Blue Apron operates an e-commerce
marketplace that delivers original recipes and fresh ingredients
packaged as fresh meal-kits designed to be cooked at home by
consumers.
On June 28, 2017, the SEC declared the Registration Statement
issued in connection with the IPO effective and on or about
June 29, 2017, 30 million shares of Blue Apron Class A common
stock were sold to the public at $10 per share, raising $300
million in gross proceeds for the Company.
The complaint alleges that the Registration Statement for the IPO
was negligently prepared and, as a result, contained untrue
statements of material fact or omitted to state other facts
necessary to make the statements made not misleading, including
that the Company was experiencing delays at its new factory in
Linden, New Jersey, which would force the Company to delay new
product roll-outs; the Company had already decided to reduce
advertising expenditures in the second quarter of 2017, which
would depress sales in future quarters; the Company was aware of
Amazon.com's efforts to enter the meal-delivery business and that
Amazon.com was looking to acquire assets to help it in this
regard; and the Company was experiencing issues delivering meals
to customers on time and with all of the ingredients, which was
hurting customer retention rates. Since the IPO, the price of
Blue Apron Class A stock has declined approximately 47%, from the
IPO price of $10 per share to less than $5.30 per share.
Plaintiff seeks to recover damages on behalf of all purchasers of
Blue Apron Class A common stock in and/or traceable to the
Registration Statement issued in connection with Blue Apron's June
29, 2017 IPO (the "Class"). The plaintiff is represented by
Robbins Geller, which has extensive experience in prosecuting
investor class actions including actions involving financial
fraud.
Robbins Geller -- http://www.rgrdlaw.com-- is a law firm advising
and representing U.S. and international investors in securities
litigation and portfolio monitoring. With 200 lawyers in 10
offices, Robbins Geller has obtained many of the largest
securities class action recoveries in history. For the third
consecutive year, the Firm ranked first in both the total amount
recovered for investors and the number of shareholder class action
recoveries in ISS's SCAS Top 50 Report. Robbins Geller attorneys
have shaped the law in the areas of securities litigation and
shareholder rights and have recovered tens of billions of dollars
on behalf of the Firm's clients. Robbins Geller not only secures
recoveries for defrauded investors, it also implements significant
corporate governance reforms, helping to improve the financial
markets for investors worldwide. [GN]
BLUE APRON: Wolf Haldenstein Files Securities Class Action
----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Aug. 21 disclosed
that it has filed a federal securities class action lawsuit in the
United States District Court for the Eastern District of New York
on behalf of all persons or entities who purchased the common
stock of Blue Apron Holdings, Inc. (NYSE:APRN) pursuant to the
Registration Statement issued in connection with the Company's
initial public offering ("IPO").
Investors who have incurred losses in shares of Blue Apron
Holdings, Inc. are urged to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You
may obtain additional information concerning the action on our
website, www.whafh.com.
If you have purchased shares of Blue Apron Holdings, Inc. and
would like to assist with the litigation process as a lead
plaintiff, you may, no later than October 16, 2017, request that
the Court appoint you lead plaintiff of the proposed class.
Our filed complaint charges that Blue Apron violated the
Securities Act of 1933 because the Registration Statement failed
to disclose that:
-- rather than continue to significantly increase spending on
advertising, Blue Apron had already decided to significantly
reduce spending on advertising in Q2 2017, which would hurt sales
and profit margins in future quarters;
-- that Blue Apron was already experiencing adverse on-time in-
full rates, meaning orders were not arriving on time or with all
the ingredients needed, which was hurting customer retention; and
-- that the Company had run into delays in Q2 2017 with its new
factory in Linden, New Jersey.
Subsequent to the IPO, Blue Apron's stock declined immediately,
declining below $5 per share less than two months after the IPO on
June 28, 2017 -- a decline of 50% from the $10 per share IPO
price.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm
has attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm
in shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com. [GN]
CARDINAL HEALTH: Louisville Files Suit Over Opioid Epidemic
-----------------------------------------------------------
Beth Warren, writing for Courier-Journal, reports that Louisville
filed a federal lawsuit on Aug. 21 demanding that three major drug
distributors pay it millions of dollars for the deadly opioid
epidemic.
"As I walk and ride through our city, I see how the opioid crisis
has literally put people walking like zombies on our streets
either walking the streets or just slumped on the streets," Mayor
Greg Fischer said during a news conference at Metro Hall.
"It's time for the companies that started this epidemic, and
turned a blind eye to its consequences, to take responsibility for
the devastation they've caused," said Fischer, who added that more
than 360 people in Jefferson County died last year from an
overdose, mostly from opioids.
The lawsuit filed on Aug. 21 in U.S. District Court targets
Cardinal Health Inc., AmerisourceBergen Drug Corp. and McKesson
Corp. -- the three largest wholesale opioid distribution companies
in the United States with combined annual revenues of $400
billion.
The mayor said all three failed to monitor and identify suspicious
activity and report it to the U.S. Drug Enforcement
Administration. The city also accuses the companies of being a
public nuisance and violating the Racketeer Influenced and Corrupt
Organizations Act.
"There is no question our taxpayers -- all 760,000 Louisville
citizens -- are shouldering the financial responsibility for the
opioid crisis," Mayor Fischer said in a news release.
Fatal and nonfatal overdoses also have strained hospitals, police,
fire departments and other emergency services.
Levin Papantonio, a law firm based in Penascola, Florida, is
heading the lawsuit on behalf of Jefferson County. One of its
attorneys, Peter Mougey, said the firm will be paid only if
victorious. If it prevails, the firm would recoup 30 percent plus
expenses, he said.
The suit doesn't specify the amount of money the city is seeking
because the estimated costs associated with the opioid crisis is
still being calculated. But Mr. Mougey said it could be in the
high nine figures.
Louisville Metro is one of about 50 local governments suing opioid
distributors in federal court, with most taking aim at the same
three companies, Mr. Mougey said.
They aren't seeking a class-action status, but many of the firms
litigating the cases have agreed to share information, Mr. Mougey
said.
The first known suit of its kind was filed in West Virginia about
six months ago, with most of the suits in that state, Kentucky and
Ohio, he said.
Cardinal Health, headquartered in Dublin, Ohio, said in an email
that it will "vigorously" defend itself in the lawsuit, which it
characterized as a misguided "copycat" suit. It said it would
continue to work with regulators, manufacturers, prescribers,
pharmacists and patients to fight abuse and addiction, according
to the statement.
McKesson, headquartered in San Francisco, and AmerisourceBergen,
based in Chesterbrook, Pennsylvania, did not immediately return
phone calls seeking comment.
Jefferson County Attorney Mike O'Connell, who helped file the
local lawsuit, reminded reporters during the news conference that
his 33-year-old son, Matt, died of an overdose in 2014.
"Matt's death left a hole that, for a parent, I don't think can
ever fully heal," Mr. O'Connell said.
"This lawsuit is a chance at some small piece of justice for my
son Matt, and for the countless families who have been decimated
by the opioid plague and the grip of addiction," O'Connell said in
a news release.
From 2012 through mid-2017, more than 197 million doses of
prescription opioids were dispensed in Jefferson County, he said.
That's more than 258 doses for every man, woman and child.
Fatal overdoses have skyrocketed 90 percent in the county since
2012.
"These companies have profited off this epidemic," Mr. O'Connell
said. ". . . So, yes, I think there's liability." [GN]
CAREFIRST INC: King & Spalding Attorney Discusses Court Ruling
--------------------------------------------------------------
Brittany Clark, Esq. -- bclark@kslaw.com -- of King & Spalding, in
an article for JDSupra, report that on August 1, 2017, the U.S.
Court of Appeals for the D.C. Circuit revived a data breach class
action that was dismissed for lack of standing, holding that the
district court improperly applied the Article III injury-in-fact
standing requirement articulated by the U.S. Supreme Court in
Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013). The Attias v.
CareFirst, Inc. decision places the D.C. Circuit on one side of a
widening circuit split over the issue of whether individuals whose
sensitive personal information is lost, stolen, or otherwise
compromised as a result of a data breach can satisfy the Article
III injury requirement based solely on allegations of risk of
potential future injury, such as the possibility of future
identity theft.
The Attias case stems from a 2014 data breach by unknown hackers
who infiltrated 22 CareFirst computers, compromising the
unencrypted, sensitive, personal information of more than one
million CareFirst policyholders in the District of Columbia,
Maryland, and Virginia. CareFirst discovered the data breach in
April 2015, and notified its customers of the breach in May 2015.
At that time, CareFirst offered its customers two years of free
credit monitoring and identity theft protection to mitigate the
risk of future identity theft or other issues.
Shortly thereafter, seven individuals filed a putative class
action on behalf of all policyholders from D.C., Maryland, and
Virginia against CareFirst, alleging various state law claims
relating to the hack of the CareFirst computers. According to the
D.C. Circuit, the complaint alleged that the hack exposed the
plaintiffs' names, birthdates, email addresses, social security
numbers, and credit card information. As to injury, the circuit
court, citing the complaint, found that the plaintiffs alleged
that the cyber-attack allowed access to sensitive information that
could be used in the future by identity thieves to "'open new
financial account[s], incur charges in another person's name,' and
commit various other financial misdeeds." The D.C. Circuit held
that such allegations were sufficient to establish Article III
standing.
The district court had dismissed the complaint at the pleading
stage for lack of constitutional standing, holding that the
plaintiffs' alleged injury-increased risk of identity theft-was
insufficient. The district court found that the future harm
alleged was not sufficiently concrete and particularized, but
rather was too speculative to satisfy constitutional standing and
the standard set forth in Clapper. In reversing the dismissal,
the D.C. Circuit held that the plaintiffs' allegation of potential
future injury was sufficient for Article III standing, relying in
part on its conclusion that the district court misunderstood the
allegations of injury contained in the complaint when it found
that the complaint did not assert exposure of the plaintiffs'
credit card and social security numbers. Citing the Supreme
Court's opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016), the circuit court further held that the plaintiffs'
alleged injury was "fairly traceable" to the defendant's actions
and that it was "likely to be redressed" by the relief sought.
The circuit court left open the question of whether the complaint
fails to state a claim for which relief can be granted under
Federal Rule of Civil Procedure 12(b)(6), as well as the
antecedent question of "whether plaintiffs properly invoked the
district court's diversity jurisdiction under 28 U.S.C. Section
1332," finding it inappropriate to "reach beyond the standing
question."
As noted, the D.C. Circuit's decision places it on one side of a
growing circuit split regarding the sufficiency of allegations of
potential future injury to satisfy constitutional standing
requirements. The Sixth, Seventh, and Ninth Circuits have held
that such injury is sufficient for standing. The Second and
Fourth Circuits have held to the contrary. The Eighth Circuit
heard argument in May of 2017 in Alleruzzo v. Supervalu, No. 16-
2378/16-2528. Arguably, the Fourth Circuit's decision in Beck v.
McDonald, 848 F.3d 262 (4th Cir. 2017), cert. denied sub. nom.
Beck v. Shulkin, 137 S. Ct. 2307 (2017), can be distinguished
factually, and in such a way that could be significant to the
court's ultimate conclusion on standing. The D.C. Circuit,
quoting the Seventh Circuit's decision in Remijas v. Neiman Marcus
Group, 794 F.3d 688, 698 (7th Cir. 2015), queried: "'Why else
would hackers break into a . . . database and steal consumers'
private information?' Presumably, the purpose of the hack is,
sooner or later, to make fraudulent charges or assume those
consumer's identities." In Beck, however, patient and consumer
information was not compromised by a hack of a system or database,
but was compromised when a laptop computer was stolen or
misplaced. Both cases, however, involved databases containing
sensitive information that lacked certain data security measures,
such as encryption.
The D.C. Circuit's decision could significantly impact future data
breach litigation. After the Supreme Court's opinion in Spokeo,
the lower courts have struggled to consistently define what
constitutes a "concrete and particularized" injury for purposes of
constitutional standing in data breach and privacy litigation.
Arguably, the Attias case strengthens a data breach plaintiff's
likely argument that potential future injury, standing alone, can
qualify as concrete and particularized injury-in-fact,
particularly as it relates to intentional hacking by third parties
of systems or database containing unencrypted, sensitive consumer
information. [GN]
CENTURYLINK: Faces "Miller" Suit Over Illegal Billing Practices
---------------------------------------------------------------
Susan Miller, individually and as a representative of a class of
similarly situated persons v. CenturyLink, Inc., CenturyLink
Communications, LLC, CenturyLink Public Communications, Inc.,
CenturyLink Sales Solutions, Inc., Qwest Corporation, and
CenturyTel of Wisconsin, LLC, Case No. 3:17-cv-00648 (W.D. Wis.,
August 21, 2017), arises out of the Defendants' unlawful billing
practices of adding unauthorized charges to customers' internet or
telephone accounts in the state of Wisconsin.
The Defendants operate a global communications and IT services
company focused on connecting its customers to the power of the
digital world. [BN]
The Plaintiff is represented by:
Richard M. Hagstrom, Esq.
Anne T. Regan, Esq.
Nicholas S. Kuhlmann, Esq.
Jason Raether, Esq.
HELLMUTH & JOHNSON, PLLC
8050 West 78th Street
Edina, MN 55439
Telephone: (952) 941-4005
Facsimile: (952) 941-2337
E-mail: rhagstrom@hjlawfirm.com
aregan@hjlawfirm.com
nkuhlmann@hjlawfirm.com
jraether@hjlawfirm.com
- and -
Roxanne Barton Conlin, Esq.
ROXANNE CONLIN & ASSOCIATES, PC
319 Seventh Street, Suite 600
Des Moines, IA 50309
Telephone: (515) 283-1111
Facsimile: (515) 282-0477
E-mail: Roxlaw@aol.com
CJS WHOLESALERS: "Calderon" Labor Suit Seeks Unpaid OT Wages
------------------------------------------------------------Leonel
Calderon, Edgar Ladino and Valentin Melendez, on behalf of
themselves and others similarly situated, Plaintiffs, v. CJS
Wholesalers, Inc., Mandel Tobacco, Cheon Park and Hyun Ham,
Defendants, Case No. 1:17-cv-06154 (S.D. N.Y., August 15, 2017),
seeks to recover unpaid minimum wages, unpaid overtime
compensation, unpaid "spread of hours" premium, liquidated
damages, prejudgment and post-judgment interest, attorneys' fees
and costs pursuant to the Fair Labor Standards Act, New York Labor
Law and the New York State Wage Theft Prevention Act.
Plaintiffs were employed by CJS Wholesalers as a warehouseman,
driver and delivery person for its wholesale business operating as
AJS Wholesalers. [BN]
Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
708 Third Avenue, 6th Floor
New York, NY 10017
Tel. (212) 209-3933
Fax. (212) 209-7102
Email: info@jcpclaw.com
COHN RESTAURANT: Faces Class Action Over Telephone Solicitation
---------------------------------------------------------------
Don Bauder, writing for San Diego Reader, reports that The
Telephone Consumer Protection Act of 1991 was well-meaning
legislation, attempting to protect consumers from unwanted
telephone solicitation. But it appears that some lawyers are
abusing the act to shake down businesses for settlements. This is
similar to the Americans with Disabilities Act, which has a noble
purpose but has been a bonanza for some lawyers. (Theodore Pinnock
is a San Diego lawyer who got disbarred for abusing disabilities
act lawsuits.)
On August 9 in federal court, Austin Maxwell of Manhattan Beach
filed suit in federal court against Cohn Restaurant Group and one
of its 24 restaurants.
Mr. Maxwell complains that on June 27, he phoned a Cohn restaurant
in the Gaslamp Quarter, the Melting Pot, to make a reservation.
He was asked his cell phone number, he says. He received a text
message that his table was ready. But he had never consented to
receiving a text message from that restaurant, and the message was
not for emergency purposes. The restaurant used an automatic
telephone dialing system -- another violation of the Telephone
Consumer Protection Act, Mr. Maxwell charges.
Receiving the brief text message cost him money, complains
Mr. Maxwell, and was an invasion of his privacy. Mr. Maxwell's
law firm, Martin & Bontrager of Los Angeles, has filed several
such suits, including against big banks and corporations. It
boasts its lawyers are "tenacious consumer rights advocates." It
claims it recently got a $150,000 settlement from a major national
bank.
Maxwell is filing a putative class-action suit. He says he is
filing on behalf of others who have suffered such alleged
indignities.
David Cohn, head of Cohn Restaurant Group, says he would rather
not comment. [GN]
COMMONWEALTH BANK: Faces Class Action Over Laundering Allegations
-----------------------------------------------------------------
Clancy Yeates, writing for The Sydney Morning Herald, reports that
the Commonwealth Bank faces a potential investor class action over
its disclosure of more than 53,000 alleged breaches of anti-money
laundering laws, following a sharp fall in its share price when
the scandal emerged in early August.
Plaintiff law firm Maurice Blackburn, backed by listed litigation
funder IMF Bentham, said on Aug. 23 it would investigate a
potential class action on behalf of CBA shareholders, citing the
hit to the bank's share price.
Maurice Blackburn said it was "astounding" that the bank did not
tell investors about the alleged breaches earlier.
The law firm said it could be the largest shareholder class action
in Australian history. The current record for a shareholder class
action was a $200 million settlement for Centro shareholders of
2012.
CBA noted the potential action, saying it had not been served with
legal proceedings but would keep the market informed as needed.
The action is focused on how the bank disclosed allegations that
it failed to properly report or monitor suspicious transactions,
and that its ATMs were used by criminal gangs to wash millions of
dollars.
IMF Bentham said it was investigating claims relating to alleged
misleading or deceptive conduct by the bank, and alleged breaches
by the bank of its continuous disclosure obligations, relating to
Austrac's legal action against the bank.
Each contravention of the Anti-Money Laundering and Counter-
Terrorism Financing Act carries a maximum penalty of $18 million,
meaning CBA could face a massive fine.
"Austrac alleges that CBA contravened the AML/CTF Act on more than
53,000 occasions. The Austrac allegations are extensive and it is
astounding that the market would not be advised of such serious
and repeated breaches as soon as the company became aware of
them," the national head of class actions at Maurice Blackburn,
Andrew Watson, said.
Mr Watson said he was confident the action would proceed, and its
size was likely to be "very large" because of the very high number
of shareholders in CBA.
Mr Watson pointed to CBA's own statements that it was aware of
thousands of alleged breaches of its obligations to report
transactions above $10,000 to Austrac in 2015, but had not
informed the market.
He also said the bank had made "specific representations" to the
market that it was complying with anti-money laundering laws
through its website, and documents used in a capital raising and
annual reports.
CBA is facing most serious allegations from Austrac, and there are
serious questions to be answered about what the company knew and
when.
"It's just extraordinary, frankly, that you could have the level
of non-compliance which the Austrac pleadings allege, and a board
think that that was not sufficiently material that the
shareholders should be informed," he said.
The law firm is taking registrations from shareholders who bought
the stock between August 17, 2015 and August 3, 2017, the day the
Austrac action was announced.
CBA, which has been contacted for comment, has not yet lodged its
defence in the Austrac case.
Chief executive Ian Narev has previously said it was alerted to
two breaches by Austrac in August 2015, in which it failed to
notify authorities of cash deposits above $10,000. Mr Narev said
CBA then looked into the matter and found tens of thousands of
such breaches, which it said were caused by a "coding error".
The bank has said it did not become aware of Austrac's civil suit
against it until it was lodged on August 3.
It has not said when it became aware Austrac was conducting an
investigation into the bank, but has maintained it complied with
disclosure obligations, which require companies to tell investors
about news that is "material".
CBA's share price fell from an intraday high of $84.69 on the day
the Austrac action was announced, a Thursday, and opened at $80.11
on the following Monday, Maurice Blackburn said.
"Our investigations and analysis show that this drop was in the
top 1 per cent of price movements that CBA experienced in the past
five years, making it apparent that the news was of material
significance to shareholders," Mr Watson said.
Director of IMF Bentham, Hugh McLernon, said claims from
shareholders could be registered from Aug. 23.
"CBA is facing most serious allegations from Austrac, and there
are serious questions to be answered about what the company knew
and when," Mr McLernon said.
The action comes after the corporate watchdog also said in August
it was investigating whether CBA and its directors breached the
Corporations Act in their handling of Austrac's allegations,
including whether it properly disclosed material information. [GN]
COMMONWEALTH BANK: Class Action to Benefit Lawyers, Funders
-----------------------------------------------------------
Michael Pascoe, writing for Sydney Morning Herald, reports that
two ambulance-chasing firms are inviting CBA shareholders to punch
themselves in the head and pay the firms for the privilege.
A narrower version of the story is that lawyers Maurice Blackburn
and litigation funder IMF Bentham are out to profiteer by
provoking one group of innocent CBA shareholders to rip money off
another group of innocent CBA shareholders and further damage the
share price in the process.
The Commonwealth Bank is facing potential legal action over a
share price fall connected to alleged breaches of anti-money
laundering and counter-terrorism financing laws.
It's a prime example of how the often-noble class action vehicle
can be used primarily to benefit lawyers and litigation funders
gaming the legal system.
The MB/IMF class action is not necessary to "teach the CBA a
lesson" -- the regulators' actions and market reaction are doing
that. It won't punish the people most responsible for the CBA's
money laundering failure -- they are mainly gone or going. It's
about generating fees and profits for MB and IMF.
Leaving the twists and quibbles of the courts out of it, the very-
well-paid legal eagles and their financiers are seeking to punish
the millions of ordinary Australians who bought CBA shares before
August 17, 2015, and held onto them.
Aside from the hundreds of thousands of ordinary Australians who
hold CBA shares directly, it would be a very rare superannuation
fund that didn't hold CBA before the targeted class action date.
In effect, MB and IMF are out to rip off nearly every working and
investing Australian.
MB is using the excuse that those who bought CBA shares after
August 17, 2015 and before August 3, 2017, need compensating for
the bank not immediately disclosing its money laundering failure,
on the basis that the share price would have been lower when they
bought in. The scandal has knocked a few per cent off the CBA
share price.
By the time any class action is resolved, it's possible that this
scandal, too, shall pass. The share price dive should prove
temporary if the courts deal with CBA's failures in anything less
than draconian fashion. Given the extent of the CBA's vast
profits, a fine of even a few hundred million dollars will make
the current fall in the CBA share price look like an over-
reaction.
Ironically, the ambulance chasers' own legal action could make the
share price fall worse for all CBA shareholders.
Go ahead, pay a lawyer to punch yourself.
A grubby aspect is the coercive nature of launching this action.
If you are one of those who bought in the two-year window and you
don't take part in the action, you're a double loser. Financially,
MB is as good as forcing a class to step forward for them.
There's also the possibility of the "greenmail" aspect ambulance
chasers the world over commonly operate on -- a good chance the
targeted company will pay up because the costs of fighting any
action are themselves considerable. The lawyers get their fees,
the litigation funder takes its rich cut, and one sub-set of
alleged victims individually receive a pittance.
And spare me any line that it's OK, the company's insurer will pay
for it. We all end up paying for corporate insurance policies.
[GN]
CONTINENTAL RESOURCES: "Cherry" Suit Seeks Unpaid Overtime Wages
----------------------------------------------------------------
Ronnie Cherry, individually and for others similarly situated,
Plaintiff, v. Continental Resources, Inc. and Sierra Hamilton,
LLC, Defendants, Case No. 1:17-cv-01126 (S.D. Tex., August 15,
2017), seeks to recover the unpaid overtime wages and other
damages owed under the Fair Labor Standards Act.
Sierra Hamilton is a staffing company that provides outsourced
engineering, technology, solutions and on-site supervision
services to the oil and gas industry. Plaintiff worked for
Defendants as a Drilling Consultant assigned to Continental, an
independent oil producer. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Lindsay R. Itkin, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
litkin@mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
CREDIT SOLUTIONS: Faces "Cameron" Suit in E. Dist. of Kentucky
--------------------------------------------------------------
A class action lawsuit has been filed against Credit Solutions,
LLC. The case is styled as James Cameron, individually and on
behalf of all others similarly situated, Plaintiff v. Credit
Solutions, LLC and John Doe Sued as "John Does 1-25", Defendants,
Case No. 5:17-cv-00358-JMH (E.D. Ky., August 28, 2017).
Credit Solutions is a Revenue Cycle Management Company that was
established in May of 2003. The Company provides tailored Extended
Business Office (EBO) Solutions as well as a full range of Bad
Debt Recovery and Account Resolution service throughout the United
States.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
Marcus Zellman, LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Tel: (732) 695-3282
Fax: (732) 298-6256
DEONTE CARRAWAY: Gets Sentence Amid Child Sex Abuse Class Action
----------------------------------------------------------------
Lynh Bui, writing for The Washington Post, reports that to federal
prosecutors, he is a medically diagnosed pedophile who manipulated
children so he could sexually abuse them.
To his defense attorney, he is someone with a child's mind in a
man's body -- a victim of abuse himself.
And to the parents of the children Deonte Carraway abused under
the guise of helping them with homework or teaching them to sing,
he is simply a monster.
Varying portraits of Mr. Carraway emerged in court on Aug. 21 when
a federal judge sentenced the former elementary school aide and
volunteer to 75 years in prison in a wide-reaching child sex abuse
scandal that rattled Prince George's County.
Mr. Carraway, 23, of Glenarden, pleaded guilty in January to 15
counts of sexual exploitation of a minor to produce child
pornography.
In his first public statements about the case since his February
2016 arrest, Mr. Carraway said he was ashamed of his actions and
still loves the parents of the children victimized in the case.
"Kids have my heart . . . ," Mr. Carraway said in U.S. District
Court in Greenbelt, Md. "When I'm around kids, I feel like a
child."
Mr. Carraway, wearing black prison scrubs, said he did not know
that what he was doing was wrong, even though he sometimes felt
guilty after engaging in explicit acts with the children.
"I'm not the monster that people are portraying me to be,"
Mr. Carraway said.
Mr. Carraway's conviction in federal court involves 12 children
between the ages of 9 and 13, but the wide-ranging sex abuse
investigation involves at least twice as many children, according
to police and prosecutors.
Mr. Carraway also faces local charges in Prince George's County
Circuit Court, where a grand jury indicted him on 270 counts of
sex abuse and related charges.
Mr. Carraway worked and volunteered at Judge Sylvania W. Woods
Elementary School in Glenarden, where he also created a community
choir. In those roles, Mr. Carraway interacted often with
children and eventually created a group called the AKA Club.
He handed out cellphones to children and told them if they wanted
to join the club, they had to send him inappropriate videos or
photos of themselves through an anonymous social-messaging app,
authorities said.
"There's just no way, Mr. Carraway, to restate the magnitude and
the enormity of the harm you caused," U.S. District Court Judge
Deborah K. Chasanow said before imposing the sentence. "You knew
it was wrong in some sense and yet you persisted."
Federal prosecutors said Mr. Carraway is a medically diagnosed
pedophile who could not stop thinking about sex with children.
At a time when "children should have been playing on the
playground or collecting PokÇmon cards," a "wolf in sheep's
clothing" was indoctrinating them into a club he created to
manipulate and abuse them, Assistant U.S. Attorney Kristi N.
O'Malley said.
Mr. Carraway took advantage of the children and their parents,
offering to walk students to school or help with homework to gain
access to them, O'Malley said. When the children would not comply
with Mr. Carraway's instructions, he threatened to call 911 or to
tell their families about their conduct.
"Carraway not only robbed these children of their innocence,"
O'Malley said, "he robbed these families of their faith in
humanity."
In one incident inside the band room of the elementary school, Mr.
Carraway is heard on video instructing a boy and girl to perform
explicit acts, federal prosecutors said. In another incident,
prosecutors said, Mr. Carraway took advantage of a special-needs
child.
Mr. Carraway's federal public defender, John Chamble, said his
client has an IQ of 60 and was abused in an educational setting as
a child. Mr. Chamble said Mr. Carraway became part of a cycle of
abuse in which victims go on to victimize others.
Mr. Chamble likened Mr. Carraway to the character of Lennie in the
John Steinbeck novel "Of Mice and Men."
"He's done some monstrous things, but he is not a monster,"
Mr. Chamble said. "He's trapped. He's confused."
Police discovered the abuse after an uncle checking a student's
cellphone discovered inappropriate photos and contacted
authorities.
The arrest of Mr. Carraway in February 2016 enraged the school
community at Sylvania Woods, with parents questioning how
Mr. Carraway was allowed to be unsupervised with the children long
enough to film them on campus during the school day. The school
system launched a task force after his arrest to review how it
handles reports of child sex abuse and recommended sweeping
changes to keep students safer.
"We've been taking serious steps to put new safeguards in place to
protect children, even from people who have no prior criminal
history," said John White, a spokesman for Prince George's County
Public Schools.
Mr. Carraway's trial in Prince George's County Circuit Court is
pending, as are at least nine civil suits and one class-action
lawsuit filed by families of the affected children against
Mr. Carraway, the school system and Glenarden.
"The court issued an appropriately strong sentence today," said
Timothy F. Maloney, an attorney representing several of the
families suing Mr. Carraway and the school system. "Deonte
Carraway will spend the rest of his life in federal prison. But
of course no sentence can ever make up for the harm to these
children and their families."
A few parents of the children who were abused attended the
hearing, but none addressed the court publicly.
After the hearing, a great-grandfather of one of the children said
Mr. Carraway should have gotten 100 years in prison.
The great-grandfather is not being named to protect the identity
of the child. The Washington Post does not usually identify
individuals in sexual assaults without their agreement.
"He ruined their lives," said the great-grandfather. "He
shouldn't be allowed to be out here." [GN]
DELEK GROUP: Sharir Attorneys Discuss Israel Court Pre-Rulings
--------------------------------------------------------------
Yoram Shiv, Esq. -- yoram@sask.co.il -- and Alex Berman, Esq. --
alex@sask.co.il -- of Sharir, Shiv & Co. Law Offices, in an
article for Mondaq, wrote that as part of an appeal on a lower
court's decision to approve a class action The Israeli Supreme
Court ("Supreme Court") discussed the legal status of a pre-ruling
issued by the Israel Securities Authority ("ISA").
In this case, the request to file a class action concerned a
transaction in which the Delek Group Ltd. ("Delek") purchased
shares held by the Cohen and Tadmor families (the "Shareholders")
in Cohen Development and Industrial Buildings Ltd. (the "Company")
and whether the means by which the Shareholders held their shares
constituted "joint" or "separate" holdings and consequently
whether the Shareholders should be classified as control holders
that would exempt the transaction from the special tender offer
rules.
Prior to the transaction, despite past filings submitted by the
Shareholders that adopted a conflicting position, the Shareholders
requested a pre-ruling from the ISA stating that the Shareholders
are "joint" holders of the Company's stock. The Supreme Court
noted that the ISA transmitted its response orally and did not
present a clear position on the mater presented to it. The ISA
only stated that it would not express a position regarding an
updated report that the Shareholders intended to submit to the
Israeli Stock Exchange stating that the Shareholders constituted a
control group and that the ISA would not send any response to the
Company following publication of the report.
The Supreme Court ruled that an ISA position provided as a
response during a pre-ruling process only has effect vis-Ö-vis the
pre-ruling supplicant and the ISA. Thus, Delek Group Ltd could
not rely on the pre-ruling given to the Shareholders.
Additionally, the Supreme Court held that while an ISA pre-ruling
represents the professional preliminary position of the ISA with
respect to the matter at hand, and may even bind the ISA to the
position it presented, a pre-ruling does not create new, or change
existing, legal norms regarding control persons and special tender
offers.
The Supreme Court also discussed the applicability of Article 6 of
The Torts Ordinance, which provides protection against liability
in tort for a person acting with reasonable belief or in good
faith that there was legal authorization for the wrongdoing
committed. It was determined by the Supreme Court that such
defense would only be applicable if the ISA had the authority to
authorize a certain action -- which was not the case in the matter
at hand. In addition, given that the ISA did not explicitly grant
the requested pre-ruling, the Supreme Court could not find
reasonable belief in the existence of legal authorization by the
Shareholders of an exemption from the requirements of the
publication of a special tender offer. As the Shareholders did
not have relief under Article 6 of The Torts Ordinance, Delek as
well could not benefit from this protection.
The filing of the class action against the Delek and the
Shareholders was approved. [GN]
DIETZ & WATSON: Fails to Pay Overtime Wages, "Rozeboom" Suit Says
-----------------------------------------------------------------
Sharon Rozeboom and Anthony Lavalley, individually and on behalf
of all others similarly situated v. Dietz & Watson, Inc., Case No.
2:17-cv-01266 (W.D. Was., August 21, 2017), is brought against the
Defendants for failure to properly pay employees the requisite
overtime premiums for all work performed in excess of 40 hours in
a work week.
Dietz & Watson, Inc. is a manufacturer of premium deli meats and
artisan cheeses, offering more than 400 products at the finest
supermarkets and neighborhood delis throughout the United States.
[BN]
The Plaintiff is represented by:
Toby J. Marshall, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 319-5450
E-mail: tmarshall@terrellmarshall.com
- and -
Rebekah L. Bailey, Esq.
Jason D. Friedman, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 215-6870
E-mail: bailey@nka.com
jfriedman@nka.com
EDISON INT'L: Stinson Leonard Attorney Discusses SCOTUS Ruling
--------------------------------------------------------------
Jeffrey P. Cairns, Esq. -- jeff.cairns@stinson.com -- of Stinson
Leonard Street LLP, in an article for Lexology, wrote the U.S.
Supreme Court in Tibble vs. Edison International 135 S. CT. 1823
(2015) the Supreme Court found that the ERISA six year statute of
limitations would not be a bar to a breach of fiduciary duty which
occurred outside of the six year statute if actions could have and
should have been taken within the statute of limitations period to
remedy an earlier breach. The Supreme Court sent the case down to
the 9th Circuit to reconsider whether the defendant investment
committees had breached their fiduciary duty in failing to move
the retail mutual funds into lower cost institutional share
classes which were available or in the case of three funds which
were added during the statute of limitations period, when such
institutional shares became available. The 9th Circuit remanded
the case back down to the Federal District Court directing the
lower court to reconsider the facts in light of the Supreme
Court's decision and make a ruling.
Rehearing
On August 16, 2017, Judge Steven V. Wilson of the U.S. District
Court Central District of California once again delivered a ruling
in favor of Tibble and the other employee participants in the
Edison International 401(k) Savings Plan. He ruled that of the 17
mutual funds selected in March of 1999, all of these funds
remained in the Plan beyond August 16, 2001 the first date for
consideration under the ERISA 6-year statute of limitations. Judge
Wilson found that the institutional share classes for 14 of the
funds were available in 2001 and that the institutional class
shares in the 14 mutual funds were identical to the retail class
shares except that the retail shares charged much higher fees. The
Court found that a prudent fiduciary in similar circumstances
would always have selected the lower cost institutional funds and
that the failure to convert or to inquire as to waiver of
institutional share requirements was a breach of the duty to
monitor Plan investments. There was considerable discussion in
the various court decisions about the fiduciaries' obligations to
periodically request waivers of minimum eligibility requirements
for institutional share classes. One of the witnesses in trial,
Daniel Esch (now of Cap Trust formerly of Defined Contribution
Advisers), testified that he had periodically received such
waivers for plans with as little as $50 million in the trust.
The defendants introduced an argument at the rehearing that since
the higher cost retail funds included revenue sharing that was
available to the Plan for payment of the Hewitt Associates
recordkeeping fees, the participants were not harmed as the
Company could have imposed these costs on the participants in
accordance with the terms of the Plan at any time. The Court
rejected this argument as speculative.
The defendants also argued that the fiduciaries should have a
reasonable time to implement the share class change once a
decision is made to do so. They suggested two to five months as a
reasonable time period. The District Court rejected that argument
and ruled based on one of the trial experts testimony that share
class changes can be made "in a day". The Court ruled that these
changes should have happened immediately.
Findings
The lower Court found that the damages to the class participants
on the difference between the fees on the different share classes
would be calculated for the open period of the statute of
limitations 2001 forward. During the period 2001 through 2011 the
parties stipulated that a damages amount of just over $7.5 million
was the differential in the fees and the related earnings of the
respective mutual funds. The Court ruled that for 2011 to the
present, after the mutual funds were all removed from the Plan,
the earnings to be applied to the damage amount would be the
overall Plan rate of return including returns of participants
participating in the brokerage window. [GN]
EDUCATIONAL COMPUTER: Faces "Washington" Suit in Penn.
------------------------------------------------------
A class action lawsuit has been filed against Educational Computer
System, Inc. The case is styled as Cummie Washington, on behalf of
herself and all others similarly situated, Plaintiff v.
Educational Computer System, Inc, Defendant, Case No. 2:17-cv-
01137-CB (W.D. Pa., August 29, 2017).
Educational Computer Systems, Inc. provides solutions and services
for the student loan management industry. It offers federal and
private student loan billing and payment processing, receivables
management, default prevention, electronic billing and payment
processing, tuition payment plans, and federal tax reporting
solutions.[BN]
The Plaintiff is represented by:
Cynthia Levin, Esq.
Law Offices of Todd Friedman, PC
1150 First Avenue, Suite 501
King of Prussia, PA 19406
Tel: (888) 595-9111 ext 618
Fax: (866) 633-0228
Email: czlevin@comcast.net
EGGED: Sued for Discriminating Against Disabled Persons
-------------------------------------------------------
Yonah Jeremy Bob, writing for Jerusalem Post, reports that a
special Justice Ministry division on Aug. 21 announced it is suing
the Egged bus company for NIS 67.5 million for discrimination
against disabled persons in a first-of-its-kind civil class-action
lawsuit.
The lawsuit, filed by the Representative for Equality for Disabled
Persons and two disabled persons in the name of 45,000 disabled
people, was the first class-action lawsuit filed by any government
agency.
In the case, the ministry also requested that the Jerusalem
District Court issue an injunction requiring Egged to comply with
laws defending the rights to disabled persons.
Usually class-action lawsuits by a large number of plaintiffs
claiming to be similarly harmed, often by a large company, are
filed only by private law firms and their individual clients.
The class-action lawsuit provides for the equality representative
and two other government agencies to file a class-action case, but
none of the agencies had ever done so before.
Technically served on Egged on Aug. 17, the ministry waited to
publicize the lawsuit to the media until Aug. 21 to ensure that
Egged was not disputing whether it had been properly served.
According to the lawsuit, the main complaint is that Egged's
buses, on a wide systematic basis, often lack an intercom system
that could direct disabled persons through their bus travels.
The case claims that Egged "systematically" violates the law
against discrimination against disabled persons by failing to have
operating intercoms at its bus stops and on its buses.
The basis for the case is a large volume of complaints made by
disabled persons as well as observations made by the ministry
itself doing a large number of spot checks of the bus system.
In the spot checks, the ministry found that Egged had "violated
the law on a wide and ongoing basis" in 156 out of 570 spots --
meaning 30% of bus areas checked did not have an operating
intercom system.
Under the law prohibiting discriminating against disabled persons,
buses must "be accessible" in a variety of ways to the disabled
including intercom systems in order to guarantee their basic right
to travel.
The representative for equality for disabled persons Avrami Torem
said the lawsuit was filed to prevent continuation of the current
situation in which "the absence of access harms the right to
dignity and freedom of travel" of disabled persons.
Torem added that "there is no one-time malfunction which can
explain such a large volume of defects in access over such a large
period. Egged is a central and substantial player in public
transportation in Israel causing its violations to have greater
consequences for thousands of Israeli citizens."
According to reports, Egged denied the allegations, asserting that
there was no systematic issue and only a regular limited number of
instances of malfunctions which the company fixes on a regular
basis. [GN]
ENDO INT'L: Faces Class Action for Misrepresenting Opana Safety
---------------------------------------------------------------
Rachel Graf, writing for Law360, reports that Endo International
PLC misrepresented the safety of its opioid Opana ER, ultimately
causing the company to pull the drug from the market and the stock
price to plunge, according to a proposed class action filed in
Pennsylvania federal court.
Shareholder Brandon Bier on Aug. 17 said that a reformulated
version of Opana falsely claimed to be crush-resistant and
therefore "abuse-deterrent" because it was more difficult to snort
or inject the painkiller. Shares declined after Endo pulled the
drug from the market amid pressure by the U.S. Food and Drug
Administration following revelations that the drug could in fact
be crushed, according to the complaint.
"Defendants engaged in a scheme to deceive the market and a course
of conduct that artificially inflated the company's stock price,
and operated as a fraud or deceit on acquirers of the company's
securities," Mr. Bier said in the complaint.
Shares of Endo fell to roughly $11.15 each from $34.97 apiece
between May 2013 and July 2017 as the FDA became increasingly
concerned about Opana's ability to deter abusive use, according to
the filing.
Endo agreed in August 2016 to withdraw its supplemental New Drug
Application for Opana's abuse-deterrent labeling, and the FDA in
June urged the company to withdraw the drug from the market
entirely, according to the filing. Bier said that the
announcements sent shares down more than 5 percent and more than
19 percent, respectively. Endo decided in July to comply with the
FDA's request to pull the drug from the market, pushing shares
another 2 percent lower, the complaint said.
Bier said Endo executives knew that reformulated Opana was not
"crush-resistant" or "abuse-deterrent," but nonetheless issued
statements asserting the opposite.
"Defendants' materially false and misleading statements or
omissions alleged herein directly or proximately caused the
damages suffered by the plaintiff and other class members," the
suit said. "Those statements were materially false and misleading
through their failure to disclose a true and accurate picture of
Endo's business, operations and financial condition, as alleged
herein."
Mr. Bier seeks to represent a class of investors who purchased
Endo stock between Nov. 30, 2012, and July 6, 2017. He is
alleging violation of federal securities laws.
Representatives for Endo and counsel for Mr. Bier didn't
immediately respond to requests for comment on Aug. 21.
Mr. Bier is represented by Ryan M. Ernst -- rernst@oelegal.com --
and Daniel P. Murray -- dmurray@oelegal.com -- of O'Kelly Ernst &
Joyce LLC, and Nicholas I. Porritt, Adam M. Apton and Alexander A.
Krot III of Levi & Korsinsky LLP.
Counsel information for Endo was not immediately available on Aug.
21.
The case is Brandon Bier v. Endo International PLC et al., Case
No. 2:17-cv-03711 (E.D. Pa.). The case is assigned Timothy J.
Savage. The case was filed August 18, 2017. [GN]
DEPOMED INC: October 17 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, notifies investors that a
class action lawsuit has been filed against of Depomed, Inc.
("Depomed" or the "Company") (NASDAQ: DEPO) securities and certain
of its officers, on behalf of a class who purchased Depomed
securities between February 26, 2015 and August 7, 2017, both
dates inclusive, (the "Class Period"). Such investors are
encouraged to join this case by visiting the firm's site:
www.bgandg.com/depo.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1933.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies and/or
failed to disclose that: (1) Depomed engaged in questionable
practices in connection with the sales and marketing of the
Company's opioid products; (2) the foregoing conduct, when it
became known, would likely subject the Company to heightened legal
and regulatory scrutiny; and (3) consequently, Depomed's public
statements were materially false and misleading at all relevant
times.
On August 7, 2017, after-market hours, Depomed revealed that it
had received notice from the U.S. Senate Committee on Homeland
Security and Governmental Affairs and from the Office of the
Attorney General of Maryland and the U.S. Department of Justice
requesting information relating to the promotion of opioids.
Following this news, Depomed stock dropped $3.09 per share, or
33.42%, to close at $6.15 on August 8, 2017.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/depo or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz
& Grossman, LLC at 212-697-6484. If you suffered a loss in
Depomed you have until October 17, 2017 to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Its primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. [GN]
DUKE ENERGY: Faces Class Action Over Coal Ash at Power Plants
-------------------------------------------------------------
WBTV reports that nine people living near Duke Energy power plants
have filed a class action lawsuit against the company over coal
ash.
The lawsuit, filed on Aug. 23, states that the families were sent
letters from Duke offering money in exchange for giving up any
future legal claims related to coal ash and contaminated well
water.
The plants and their neighbors mentioned in the lawsuit include
the Allen Plant in Gaston County, the Buck Plant in Rowan County,
the Marshall Plant in Catawba County, the Cliffside Plant in
Cleveland County and five other plants across North Carolina.
In early December 2016, Duke issued a press release stating the
company would be giving a "financial supplement" and permanent
water replacement to neighbors whose water supply had been
affected by coal ash.
"Dukes formal press release dated December 7, 2016 failed to
include any mention of a release of liability. Rather, it touted
that the utility would be '[o]ffering eligible property owners a
connection to a public water supply and/or installation of whole-
home water filter systems' for 'about 950 eligible households,'"
the lawsuit states.
The lawsuit states that on January 13, The NC Department of
Environmental Quality (DEQ) approved the plans for supplying
neighbors with a permanent water replacement. It was only after
that approval and into January and February, the lawsuit states,
that homeowners learned Duke was "requiring execution of a release
that would mean residents would give up their right to sue Duke
over coal ash claims anytime in the future" for the financial
supplement agreement.
The handout, mailed to those families in late January, "still did
not state the actual language of the release," according to the
lawsuit. It wasn't until late July that they received the final
language of the supplement agreement.
The final page of that agreement states:
BY ENROLLING IN THE FINANCIAL SUPPLEMENT PROGRAM AND ACCEPTING
THESE BENEFITS FROM DUKE ENERGY, I ACKNOWLEDGE THAT DUKE ENERGY
HAS FULLY COMPENSATED ME FOR ANY HARM OR LOSS THAT I HAVE
SUFFERED, OR MAY SUFFER, AS A RESULT OF ANY CONTAMINATION IN MY
WELL WATER AT THE PROPERTY IDENTIFIED BELOW, INCLUDING ANY INJURY
TO ME OR DAMAGE TO MY PROPERTY, THAT IS ALLEGED TO HAVE BEEN
CAUSED BY DUKE ENERGY OR ANY OF ITS AFFILIATES. I, INDIVIDUALLY,
AND ON BEHALF OF MY HEIRS, SUCCESSORS AND ASSIGNS, AGREE NOT TO
SEEK ANY FURTHER COMPENSATION FROM, OR TAKE ANY LEGAL ACTION
AGAINST, DUKE ENERGY OR ANY OF ITS AFFILIATES ARISING FROM OR
RELATING TO ANY CONTAMINATION OF WELL WATER OR DAMAGE TO MY
PROPERTY ALLEGEDLY CAUSED BY DUKE ENERGYS COAL COMBUSTION RESIDUAL
IMPOUNDMENTS.
The lawsuit alleges that instead of giving residents the promised
"peace of mind," the language made neighbors "more concerned than
ever."
"Duke after insisting its coal ash waste was safe, now wanted a
broad release of any claims of contamination, harm or loss, based
on what the homeowners 'alleged' when they had not even sued," the
lawsuit states.
The plaintiffs are asking for Duke to perform the financial
supplement with the release term stricken.
Duke sent a statement regarding the lawsuit on Aug. 23.
"This is obviously another effort by trial lawyers to make money
for themselves when the company is already doing more than anyone
to care for our plant neighbors.
Specifically, the company is voluntarily offering a financial
package to plant neighbors that is above and beyond what the law
requires, which they can choose to accept or decline. If they
accept the package, it is customary to sign a waiver, closing out
the issue once and for all. Remember, neighbors are welcome to
accept the package or not. It is up to them and them alone.
Regardless of whether they accept the voluntary package, the will
still receive the permanent new water supply."
"In addition to a voluntary financial package, other actions the
company has taken to bring this issue to a close for plant
neighbors include:
"We voluntarily offered bottled water when others caused needless
worry and concern.
"We supported a new law to provide neighbors with a permanent new
water supply even though a strong body of evidence demonstrates
that ash basins are NOT impacting their wells.
"We did all of this to provide our neighbors with peace of mind
and also to preserve the full range of science-based closure
options to safely protect the environment and to benefit all
customers." [GN]
FACEBOOK INC: Settlement Over Private Messages Gets Final Okay
--------------------------------------------------------------
Wendy Davis, writing for MediaPost, reports that a federal judge
in California has granted final approval to Facebook's settlement
of a class-action alleging that the company scanned the private
messages users sent to each other through its platform.
"The settlement offers immediate, tangible benefits," U.S.
District Court Judge Phyllis Hamilton in the Northern District of
California wrote in a decision issued on Aug. 18.
The agreement, unveiled earlier this year, stems from a 2013
lawsuit alleging that Facebook violated the federal wiretap law by
intercepting users' messages to each other and scanning them. The
company allegedly did so in order to determine whether people were
sending their friends' links to outside sites.
The deal requires Facebook to pay up to almost $4 million to the
class-action attorneys who brought the case, and $5,000 each to
the two Facebook users who served as plaintiffs, but no monetary
awards to the company's other users. Instead, users who want to
pursue claims for monetary damages may bring new lawsuits.
The settlement terms also require Facebook to add the following
sentence to its terms of service: "We use tools to identify and
store links shared in messages, including a count of the number of
times links are shared."
The allegations at the center of the battle emerged in 2012, when
security researcher Ashkan Soltani reported that Facebook counts
in-message links as "likes." Facebook said at the time that no
private information is exposed, but confirmed that the like-
counter "reflects the number of times people have clicked those
buttons and also the number of times people have shared that
page's link on Facebook."
The company has since changed that practice, but the settlement
doesn't prohibit Facebook from changing it back again.
The deal drew an objection from Anna St. John, who servers as a
lawyer with the Center for Class Action Fairness -- a group that
has objected to other proposed class-action settlements.
She argued that the deal primarily benefits the class-action
lawyers who brought the case, as opposed to Facebook's users.
Judge Hamilton rejected that argument. "It is true, as [the]
objector points out, that much of the relief obtained for the
class was the result of Facebook's changes in business practice in
response to the litigation, rather than a result of the settlement
agreement," Judge Hamilton wrote. "However, the settlement still
provides substantial benefits to the class, who give up almost
nothing in return."
The judge added that it isn't clear what other benefits the users
could have obtained had the case moved forward to trial, given
that Facebook has already changed its policy. [GN]
FIRST DATA: Sued Over Excessive Rent for Credit Card Terminals
--------------------------------------------------------------
William Fox, individually and on behalf of all others similarly
situated, Plaintiff v. First Data Merchant Services, LLC
Defendant, Case No. 9:17-cv-80949 (S.D. Fla., August 15, 2017),
seeks compensatory damages, restitution, disgorgement of profits,
costs of suit, treble damages, attorneys' fees, declaratory
judgment, injunctive relief and any other relief for breach of
contract, the covenant of good faith and fair dealing and for
violation of the Consumer Leasing Act and various state statutes
prohibiting unfair and deceptive acts and practices.
Defendant is a global payment processor engaged in the business of
processing credit and debit card transactions for merchants and
independent sales organizations who use First Data's card
processing services. Plaintiff is a small business owner, who
unjustly paid inflated monthly rental fees for credit card
processing terminals and inflated early termination fees.
Defendant leases equipment to its merchants, hiding the actual
fair market value of the equipment. Defendant also failed to
disclose hidden fees (an insurance fee and a lease fee), which are
not disclosed to the consumer, says the complaint. [BN]
Plaintiff is represented by:
John A. Yanchunis, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
Email: jyanchunis@forthepeople.com
FLOWERS FOODS: "Wiatrek" Suit Seeks Unpaid Overtime Pay
-------------------------------------------------------
Richard Wiatrek, Individually and on behalf of all others
similarly situated Plaintiffs, v. Flowers Foods, Inc. and Flowers
Baking Co. of San Antonio LLC, Defendants, Case No. 5:17-cv-00772
(W.D. Tex., August 15, 2017), seeks unpaid wages at overtime
rates, penalties, liquidated damages, prejudgment interest,
reasonable attorneys' fees and costs and such other and further
legal and equitable relief under the federal Fair Labor Standards
Act.
Defendants distribute bakery and snack food products to retail
customers using a centralized network of communication,
distribution and warehousing facilities. Plaintiffs work as
distributors for the Defendants, delivering products to customers,
distributors, stocking the products on store shelves and
assembling promotional displays. [BN]
The Plaintiff is represented by:
Alfonso Kennard, Jr., Esq.
Keenya R. Harrold, Esq.
2603 Augusta Drive, 1450
Houston TX 77057
Main: (713) 742-0900
Fax: (713) 742-0951
Email: Alfonso.Kennard@KennardLaw.com
- and -
Arnoldo J. Rodriguez, Esq.
KENNARD RICHARD, PC
100 N.E. Loop 410, Ste. 610
San Antonio, TX 78216
Tel: (210) 314-5688
Fax: (210) 314-5687
Email: aj.rodriguez@kennardlaw.com
FORTRESS REAL: Court Strikes Down Claim in Harmony Class Actions
----------------------------------------------------------------
Chris Simon, writing for Simcoe.com, reports that the future of
the former Harmony Village Lake Simcoe site is less than peaceful,
following a few significant developments for its property owner.
Fortress Real Developments, which operates the Bradford Street
site in Barrie now known as The Kemp, is considering selling the
property due to the interest it has received since it bought the
land in November 2016. The project is currently undergoing an
environmental assessment.
"Since purchasing the land, Fortress has been evaluating multiple
options for development of the site," Fortress communications
manager Natasha Alibhai said.
This news comes about a week after Ontario Superior Court Justice
Paul Perell struck down a Statement of Claim in four proposed
class-action lawsuits filed against Fortress, including litigation
pertaining to Harmony. Projects in Toronto, Burlington and
Brampton were also included in the case.
Justice Perell also dismissed claims against Fortress founders
Jawad Rathore and Vince Petrozza because the Statements of Claim
did not disclose any legal causes of action, Alibhai said.
"It is plain and obvious that there is no reasonable cause of
action against Rathore or Petrozza in their personal capacity, and
the claims against them should be struck . . . and the actions
against them should be dismissed," Justice Perell said in the
ruling.
Justice Perell also dismissed the claims against two real estate
development companies, Empire Pace and Adi Developments, that had
borrowed funds for real estate projects through syndicated
mortgage loans -- defined as a situation where a group of people
jointly invest in a single mortgage on a property.
The plaintiffs had no legal standing to bring claims against them,
Ms. Alibhai said.
"We are extremely pleased with the ruling," Mr. Petrozza said in a
statement. "The allegations made in the claims are untrue,
misleading, and aimed at damaging the reputation of Fortress and
Fortress projects in an attempt to benefit companies and
individuals trying to compete with Fortress."
The plaintiffs can file new Statements of Claim with the court
within 40 days.
The Kemp is planned as a mixed-use development located off
Kempenfelt Bay. The property has frontage on Lakeshore Drive.
Initial plans had included six residential towers, townhouses and
ground-floor retail.
Fortress expects the EA process to be complete in the fall.
The company also operates Collier Centre, which is up for sale and
has a controversial history, as well. The decision to sell the
property forced the City of Barrie, which planned to use some of
the office space, to change course.
And last year, two people who invested money in a syndicated
mortgage on Collier also filed a $27.5-million class-action
lawsuit against Fortress, alleging the company did not disclose
several major investment risks pertaining to the site.
Fortress did agree to repay the syndicated mortgage investors
using "all available cash flow" after the repayment of all other
costs.
When Collier developer Mady sought bankruptcy protection in
January 2015 and stopped work before selling the project to
Fortress, it owed $50 million to its creditors, mostly Laurentian
Bank and construction trades. All of them rank ahead of the
syndicated mortgage holders for repayment. [GN]
FRANKLIN COLLECTION: Illegally Collects Debt, "Rusk" Suit Claims
----------------------------------------------------------------
Malinda Rusk, individually and on behalf of all others similarly
situated v. Franklin Collection Service, Inc., Case No. 5:17-cv-
01420-UJH-KOB (N.D. Ala., August 21, 2017), seeks to stop the
Defendant's practice of using false and deceptive or misleading
representation or means in connection with the collection of a
debt.
Franklin Collection Service, Inc. operates a nationwide debt
collection business and attempts to collect debts from consumers
in virtually every state, including consumers in the State of
Alabama. [BN]
The Plaintiff is represented by:
David J. Philipps, Esq.
Mary E. Philipps, Esq.
PHILIPPS & PHILIPPS, Ltd.
9760 S. Roberts Road Suite
One Palos Hills, IL 60465
Telephone: (708) 974-2900
Facsimile: (708) 974-2907
E-mail: davephilipps@aol.com
mephilipps@aol.com
- and -
Ronald C. Sykstus, Esq.
BOND, BOTES, SYKSTUS, TANNER & EZZELL, P.C.
225 Pratt Avenue
Huntsville, AL 35801
Telephone: (256) 539-9899
Facsimile: (256) 713-0237
E-mail: Rsykstus@bondnbotes.com
FRESH INC: Faces "Wu" Suit in S.D.N.Y.
--------------------------------------
A class action lawsuit has been filed against Fresh, Inc. The case
is styled as Kathy Wu and on behalf of all other persons similarly
situated, Plaintiff v. Fresh, Inc., Defendant, Case No. 1:17-cv-
06535 (S.D.N.Y., August 28, 2017).
Fresh, Inc. engages in the production and sale of beauty products
in the United States.[BN]
The Plaintiff is represented by:
Justin Alexander Zeller, Esq.
The Law Office of Justin A. Zeller, P.C.
277 Broadway, Suite 408
New York, NY 10007
Tel: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
GARLIC NY: "Rojas" Suit in N.Y. Seeks to Recover Unpaid Wages
-------------------------------------------------------------
Rafael Rojas and John Doe, on behalf of themselves v. Garlic NY
Pizza Bar Co. Ltd. d/b/a Garlic New York Pizza Bar, Francesco
Lapuma and Alex Lapuma, Case No. 1:17-cv-06342 (S.D.N.Y., August
21, 2017), seeks to recover unpaid overtime, unpaid minimum wages
based on an invalid tip credit, illegally retained tips,
liquidated damages and attorneys' fees and costs pursuant to the
Fair Labor Standards Act.
The Defendants own and operate Garlic New York Pizza Bar
restaurant located at 629 2nd Ave, New York, New York 10016. [BN]
The Plaintiff is represented by:
Anne Melissa Seelig, Esq.
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465-1124
Facsimile: (212) 465-1181
E-mail: anne@leelitigation.com
cklee@leelitigation.com
GETTY REALTY: Faces "Badger" Suit in W. Dist. of Penn.
------------------------------------------------------
A class action lawsuit has been filed against Getty Realty
Corporation. The case is styled as Josie Badger and Christopher
Williams, individually and on behalf of all others similarly
situated, Plaintiffs v. Getty Realty Corporation doing business
as: gty-Pacific Leasing, LLC doing business as: Getty Leasing,
Inc., Defendant, Case No. 2:17-cv-01134-RCM (W.D. Pa., August 29,
2017).
Getty Realty Corp. operates as a real estate investment trust in
the United States.[BN]
The Plaintiff is represented by:
Benjamin J. Sweet, Esq.
Carlson Lynch Sweet & Kilpela, LLP
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Fax: (412) 231-0246
Email: bsweet@carlsonlynch.com
GLOBUS MEDICAL: Averts Securities Fraud Class Action
----------------------------------------------------
Jeannie O'Sullivan and Matt Fair, writing for Law360, report that
the Third Circuit on Aug. 23 declined to revive a putative
securities fraud class action accusing Globus Medical Inc. of
failing to adequately warn investors about a potential revenue
slump, issuing a precedential decision that clarified when a
company's disclosure duties are triggered.
The three-judge panel's decision dealt a blow to plaintiffs Mark
Silverstein and Austin Williams, who argued that Globus neglected
to mention its decision to cut ties with a key distributor in its
regulatory reports, making the risk disclosures in the filings
"inaccurate, incomplete or misleading."
Siding with the Pennsylvania district court judge who tossed the
suit, the appeals court cited the 2011 U.S. Supreme Court case of
Matrixx Initiatives Inc. v. Siracusano, holding that disclosure of
material information is required only when its omission would make
a statement misleading. The plaintiffs in the Globus case didn't
do enough to show that the omitted information was vital to the
subject of the company's disclosures, the Third Circuit said.
The U.S. Securities and Exchange Commission filings at issue
included an annual report filed in March 2014 and a quarterly
report filed in April 2014. In the filings, Globus warned that
"if any of our independent distributors were to cease to do
business with us, our sales could be adversely affected," but it
didn't expressly state that it was ending its relationship with
Vortex Spine LLC.
The appeals court noted that a company may be liable for
misleading investors when it describes as hypothetical a risk that
has already come to fruition, and cited case law to that effect.
But nothing in the plaintiffs complaint suggested Globus sales
were adversely affected by the decision to terminate Vortex at the
time of the filings, the panel concluded.
"The risk actually warned of is the risk of adverse effects on
sales -- not simply the loss of independent distributors
generally. Accordingly, the risk at issue only materialized --
triggering Globus duty to disclose -- if sales were adversely
affected at the time the risk disclosures were made," the decision
said.
The annual report was filed when Vortex was still distributing
Globus products under a four-month extension of an existing
distributorship agreement, and the quarterly report was filed less
than two weeks after Vortex rejected Globus proposed terms for a
new agreement, the panel noted.
"Plaintiffs have not pleaded facts sufficient to show that Globus
sales were adversely affected within that short window," the
decision said.
The September 2015 suit accused Globus of duping investors through
sales projections that included figures from Vortex Spine, even
though Globus was already planning on terminating its deal with
the distributor.
U.S. District Judge Wendy Beetlestone nixed the complaint in
August 2016 after determining that the suit "contains no factual
allegations from which the court could plausibly infer that the
projections incorporated revenue from Vortex or how significant
Vortex's revenue would have been compared to Globus total sales."
She also ruled that risk disclosure statements provided to
investors were not actionable because they warned only about a
potential slump in sales from a decision by distributors not to
continue doing business with Globus.
The judge in September 2016 rejected the plaintiffs motion to
reconsider her ruling.
Third Circuit Judges Michael J. Chagares, Anthony J. Scirica and
D. Michael Fisher sat on the panel.
The securities fraud plaintiffs are represented by Jacob Goldberg
-- jgoldberg@rosenlegal.com -- and Keith Lorenze --
klorenze@rosenlegal.com -- of The Rosen Law Firm, and Robert V.
Prongay, Jason L. Krajcer and Charles H. Linehan --
clinehan@glancylaw.com -- of Glancy Prongay & Murray LLP.
Globus is represented by Cheryl W. Foung -- cfoung@wsgr.com --
Barry M. Kaplan -- bkaplan@wsgr.com -- and Gregory L. Watts --
gwatts@wsgr.com -- of Wilson Sonsini Goodrich & Rosati PC, and
Marc J. Sonnenfeld -- marc.sonnenfeld@morganlewis.com -- and
Timothy D. Katsiff -- katsifft@ballardspahr.com -- of Morgan Lewis
& Bockius LLP.
The case is Silverstein v. Globus et al., case number 16-3607 (3rd
Cir.). [GN]
GOOGLE INC: Privacy Settlement Goes to Lawyers, Alma Maters
-----------------------------------------------------------
Kieren McCarthy, writing for The Register, reports that the US
Ninth Circuit Court of Appeals has narrowly approved an $8.5m
Google payout for privacy violations following a lengthy argument
over who should receive the money.
Despite the class-action lawsuit being brought on behalf of
roughly 129 million folks in the US who Googled between 2006 and
2014, none of the money will actually go to them but will instead
be split between the attorneys and organizations they have
designated.
It just so happens that, as part of a settlement, three of those
seven "cy pres recipients" are the alma maters of the attorneys:
cash-strapped Harvard University, Stanford University and the
Chicago-Kent College of Law.
The others named in the settlement are AARP Inc, Carnegie Mellon
University, the MacArthur Foundation and the World Privacy Forum -
- all of whom are frequent recipients of Google's corporate
largesse.
The proposed provision of funds has repeatedly fallen foul of the
judges in charge of the case. Back in 2014, US District Judge
Edward Davlia complained about the disbursement: "The elephant in
the room is that many of them are law schools that you attended,"
he said, adding, "I'm disappointed that the usual suspects are
still usual."
In case you are wondering how those organizations were chosen,
you're not the only one. Judge Davlia noted the complete lack of
transparency over where the $6.5m not being awarded to the lawyers
was going, and said it "raises a red flag" and "doesn't pass the
smell test."
The case
The actual case and settlement is over Google violating users'
privacy by revealing their search terms to third-party websites.
The search terms included things like people's real names,
addresses, and credit card numbers.
But when Google agreed to settle the case -- handing $2.1m to the
attorneys and $6.5m to the "cy pres recipients" -- both sides
agreed it was not possible to provide that money to actual Google
users because all of them would have to "get something" for it to
be a legitimate settlement. The settlement amount per user would
be roughly five cents (the lawyers claim four cents) and there
would likely be huge distribution and advertising costs in getting
it to people.
That explanation, and the final recipients, have been repeatedly
questioned, however.
Ted Frank of the Competitive Enterprise Institute attended the
most recent hearing and argued that there was a clear conflict of
interest in attorneys listing their alma maters as recipients. He
argued that the money should be given to charities rather than
extremely wealthy universities.
And by arguing that it wasn't possible to pay any money to users
because it was an all-or-nothing situation where every user would
have to get something, Frank argued that the case could
effectively undermine every future consumer class action lawsuit
and funnel hundreds of millions of dollars to organizations chosen
by lawyers.
Other groups also opposed the agreement. The Electronic Privacy
Information Center and Consumer Watchdog complained that Google
users will get nothing and the settlement money would have no
impact on Google's behavior because the amount was so small
compared to its revenues and profits.
The lawyers' arguments for the recipients that they and Google's
lawyers had chosen were that each of them works on privacy issues
and each will track how the money is spent. So a degree of
transparency is included. That transparency argument was what
sparked Judge Davila to note that it didn't "pass the smell test."
[GN]
GOOGLE INC: Law Firm Mulls Employment Discrimination Suit
---------------------------------------------------------
Sarah Emerson, writing for Motherboard, reports that the law firm
representing fired Google engineer James Damore says it's
investigating the tech company for alleged employment
discrimination over political views and "other protected
characteristics."
Dhillon Law Group announced its probe in a release on Aug. 23. It
claims Google has violated labor laws for retaliating against
employees like Damore, a former Google software engineer who was
fired in August for publishing a memo that argued gender gaps in
STEM fields can be attributed to biological differences between
men and women.
The firm implies that additional employees may file suit against
the company.
"Numerous individuals have contacted us about this issue, but as
their names are not public, I will not be commenting about their
individual situations at this time," Harmeet Dhillon, a partner at
the firm, told Motherboard in an email. In the past, the firm has
launched class-action lawsuits in certain cases, but, in a follow
up email, Mr. Dhillon would not confirm whether the firm was
looking into a class-action suit in this case.
The San Francisco-based law firm, which specializes in business
and labor litigation, is currently seeking information from Google
employees about the following alleged actions:
-- Discriminated against at Google based on your political
views;
-- Been written up for "un-Googly conduct" for refusing to
comply with to the political orthodoxy at the company;
-- Retaliated against for complaining about employment
discrimination at Google;
-- Defamed/slandered/smeared/blacklisted at Google for your
political views, or views about affirmative action at Google; or
-- Punished for blowing the whistle on illegal employment
practices at Google?
In his own labor complaint against the company, Mr. Damore is
being represented by Dhillon, Gregory Michael, and Ravdeep Grewal
of Dhillon Law Group.
"We have strong policies against retaliation, harassment and
discrimination in the workplace. We also strongly support the
right of Googlers to express themselves. An important part of our
culture is lively debate. But like any workplace that doesn't mean
that anything goes, as we explained here," a Google spokesperson
told Motherboard in an email.
Mr. Damore's complaint, which was filed to the National Labor
Relations Board (NLRB) this month, and partially obtained by
Gizmodo, states that Google "interfered with, restrained, and
coerced employees in the exercise of rights protected by Section 7
of the Act . . . by making threats of unspecified reprisals"
against them.
Legally speaking, Google was within its rights to fire Mr. Damore
as an at-will employee under California law. However, Mr. Damore
says he filed an NLRB complaint prior to his dismissal, which
means Google must prove that it didn't terminate Mr. Damore in
retaliation against the charge.
Under Section 7 of the National Labor Relations Act referred to in
Mr. Damore's complaint, Google cannot lawfully interfere with
group activities aimed at improving pay or working conditions.
Dhillon Law Group implies that it has multiple clients who could
charge Google with discrimination complaints. It's unclear who,
other than Mr. Damore, the firm is representing. As Motherboard
reported, many Google employees internally defended Mr. Damore and
his viewpoints, so it's possible other employees have interest in
joining a potential lawsuit.
"I've been advised not to talk too much about my legal case, but
I've been told that I can win it. It's been hard to decide on a
lawyer because I don't really know how to distinguish between
them, especially in my currently overwhelmed state," Mr. Damore
wrote in a Reddit AMA this month.
In addition, more than 60 current and former employees say they
are considering a gender discrimination class-action lawsuit
against Google. These plaintiffs claim that women at Google
consistently earn less than their male counterparts, and that the
company fosters a "culture that is hostile to women." [GN]
GOOGLE INC: Kelley Drye Attorney Discusses Cy Pres Settlements
--------------------------------------------------------------
Jeffrey S. Jacobson, Esq., of Kelley Drye & Warren LLP, in an
article posted at the law firm's Ad Law Access Blog, wrote that
What should a corporation do when a class action lawsuit claims it
broke the law, the group of allegedly affected people is massive,
but the real-world "harm" is effectively nil?
If the lawsuit fails to state a valid claim, obviously you move to
dismiss it. But what if your best arguments require expensive
discovery, you can't be certain of a victory even then, and the
downside risk -- such as from statutory minimum damages -- is
intolerable to you?
One good strategy for corporate defendants facing these situations
is to settle by making corrective changes to address the alleged
problem and, in lieu of what would be tiny damages payments to
affected class members, contribute a palatable amount of money to
non-profit groups working to protect the interests of those
consumers.
Last month, Mr. Jacobson reported on an objection to one of these
"cy pres" settlements filed by 12 state Attorneys General.
Echoing concerns expressed in an objection by the Competitive
Enterprise Institute's Center for Class Action Fairness ("CCAF")
in a case against Google, these AGs argued to the Third Circuit
that the $3 million Google would pay to non-profits should go to
class members instead. The AGs agree that the class is massive,
and that if everyone claims relief, the damages would be
minuscule. Because only a tiny percentage of class members would
file claims, the AGs argued, the relief could be $15 or $20 per
class member. The AGs think it better to give those intrepid few
claimants the money than to have it go to non-profits.
The Third Circuit case remains undecided, but on Aug. 22 the Ninth
Circuit-in another case involving Google, which drew the same kind
of objection from the CCAF-rejected that argument out-of-hand. The
panel in In re Google Referrer Header Privacy Litigation, No. 15-
15858, split 2-1 on the separate question of whether the district
court appropriately vetted the non-profits the parties selected
for ties to the plaintiffs' counsel. The panel held unanimously,
however, that paying non-profits instead of the class was
appropriate in the case. The language the judges used -- "we
quickly dispose of the argument that the district court erred by
approving a cy pres-only settlement--shows the question was not
close.
Google's total agreed payment in the case is $8.5 million, with
$3.2 million paying the plaintiffs' fees and the rest (after
administrative costs) going to six non-profits. With "an estimated
129 million class members," each one would have been "entitled to
a paltry 4 cents in recovery." Acknowledging that "cy pres-only
settlements are considered the exception, not the rule," the Ninth
Circuit held this case to fall well within the exceptional
category. Rejecting the CCAF's proposed alternatives of a "random
lottery distribution," or simply relying on tiny claims rates, the
Ninth Circuit held that "[o]ur review is not predicated simply on
whether there may be 'possible' alternatives . . . [but] whether
the district court discharged its obligation to assure that the
settlement is 'fair, adequate, and free from collusion."
The Third Circuit case has different facts, and that court will
have to take seriously an objection from 12 Attorneys General.
Unless the Third Circuit departs radically from the Ninth
Circuit's reasoning, however, an important and well-trod path to
settle privacy and consumer fraud class actions by contributing to
non-profit groups will remain open. [GN]
GUIDANCE SOFTWARE: Sued in Cal. Over Sale to Open Text
------------------------------------------------------
Patricia Mayer, individually and on behalf of all others similarly
situated v. Guidance Software, Inc., Robert Van Schoonenberg,
Reynolds C. Bish, Max Carnecchia, John Colbert, Patrick Dennis,
Michael McConnell, Wade W. Loo, Open Text Corporation, and Galileo
Acquisition Sub Inc., Case No. 2:17-cv-06190 (C.D. Cal., August
21, 2017), is brought on behalf of all public stockholders of
Guidance Software, Inc., for breaches of fiduciary duty as a
result of Defendants' efforts to sell the Company to Open Text
Corporation as a result of an unfair process, and for an unfair
price.
According to the complaint, Guidance filed a
Solicitation/Recommendation Statement on Schedule 14D-9 with the
U.S. Securities and Exchange Commission, in an effort to solicit
stockholders to tender their Guidance shares in favor of the
Proposed Transaction. However, Solicitation/Recommendation
Statement omits and/or misrepresents material information
concerning, among other things: (a) the Company's financial
projections; (b) the sales process of the Company; and (b) the
data and inputs underlying the financial valuation analyses that
purport to support the fairness opinions provided by the Company's
financial advisor Morgan Stanley & Co., LLC; and (c) the financial
analyses performed by Morgan Stanley in support of the Proposed
Transaction.
The complaint says the failure to adequately disclose such
material information constitutes a violation of the Exchange Act
as stockholders need such information in order to cast a fully-
informed vote in connection with the Proposed Transaction. The
complaint asserts that the Proposed Transaction will unlawfully
divest Guidance's public stockholders of the Company's valuable
assets without fully disclosing all material information
concerning the Proposed Transaction to Company stockholders. To
remedy the Defendants' Exchange Act violations, the Plaintiff
seeks to enjoin the stockholder vote on the Proposed Transaction
unless and until such problems are remedied.
Guidance Software, Inc. is a technology company that is a provider
of endpoint investigation solutions for cyber-security analytics,
security incident response, e-discovery, data privacy and forensic
analysis. [BN]
The Plaintiff is represented by:
Evan J. Smith, Esq.
BRODSKY & SMITH, LLC
9595 Wilshire Boulevard, Suite 900
Beverly Hills, CA 90212
Telephone: (877) 534-2590
Facsimile: (310) 247-0160
E-mail: esmith@brodskysmith.com
HAIMS MOTORS: Sued in Florida Over Failure to Pay Minimum Wages
---------------------------------------------------------------
Felipe Pinto and other similarly situated individuals v. Haims
Motors Inc. and Oded Haims, Case No. 0:17-cv-61678-UU (S.D. Fla.,
August 21, 2017), is brought against the Defendants for failure to
pay minimum wages in violation of the Fair Labor Standards Act.
Haims Motors Inc. operates a car dealership company in Broward
County, Florida. [BN]
The Plaintiff is represented by:
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: msaenz@saenzanderson.com
HOME CAPITAL: Ontario Court Okays $29.5MM Class Action Settlement
-----------------------------------------------------------------
The Canadian Press reports that embattled alternative mortgage
lender Home Capital Group is another step closer to rebuilding
after an Ontario court approved the settlement of a $29.5 million
class-action lawsuit by investors.
Shareholders pulled away from the Toronto-based company earlier
this year following allegations by the Ontario Securities
Commission of misleading disclosure.
The Aug. 21 class-action settlement follows a separate OSC
settlement approved earlier this month, in which Home Capital and
three former executives agreed they failed to tell investors
quickly and completely about fraudulent activity by some mortgage
brokers associated with the lender.
About $11 million of the payments being made to the OSC will go
toward the $29.5-million, class-action settlement.
Each settlement had been conditional on approval of the other.
The OSC's announcement of its allegations in April contributed to
a sudden exodus of Home Capital depositors that pushed the company
to borrow about $2 billion at staggeringly high interest rates in
order to stay afloat.
Home Capital shares and prospects have improved since Warren
Buffett's Berkshire Hathaway announced in June that it would
support the lender through an investment of $153 million,
acquiring a 19.99 per cent stake in the company.
Berkshire Hathaway also agreed to invest a further $246.7 million,
at $10.30 per share, which would increase its indirect stake in
Home Capital to 38.4 per cent.
Shareholders will vote at a meeting on Sept. 12 on whether to
accept the additional equity investment. [GN]
HUNTINGTON PLUMBING: Faces "Amaya" Suit in E.D. of New York
-----------------------------------------------------------
A class action lawsuit has been filed against Huntington Plumbing
Supply Co., Inc. The case is styled as Carlos Chavez Amaya, on
behalf of himself and all other persons similarly situated,
Plaintiff v. Huntington Plumbing Supply Co., Inc., Gerald Shukow,
Miguel Zuniga, Defendants, Case No. 2:17-cv-01137-CB (E.D. NY,
August 29, 2017).
Huntington Plumbing Supply Co., Inc. is engaged in the plumbing
fixtures, parts, supplies-retail business in Huntington Station,
NY.[BN]
The Plaintiff appears PRO SE.
HYUNDAI MOTOR: Averts Class Action Over Defective Vehicle Paint
---------------------------------------------------------------
John Kennedy and Daniel Siegal, writing for Law360, report that
Hyundai on Aug. 21 beat a proposed class action claiming it sold
cars with defective paint that begins peeling and flaking after
too short a time, with a California federal judge finding that the
vehicle owners still hadn't provided enough facts to support their
claims.
U.S. District Judge Beverly Reid O'Connell dismissed the first
amended consolidated class action complaint from owners of 2006-16
Santa Fe, Sonata and Elantra vehicles, saying the allegations
remained largely unchanged from a previous complaint that was
dismissed in April. She also said that even though the automaker
marketed its vehicles as being coated with paint that will "stand
the test of time," such a statement must be consistent with the
manufacturer's three-year, 36,000-mile warranty on the paint,
because nothing lasts forever and a warranty can't be infinite.
Judge O'Connell ultimately dismissed the complaint with prejudice,
finding that any amendment would be futile.
"This court has twice before put plaintiffs on notice of the
defects in their pleadings and given plaintiffs the opportunity to
amend their pleadings," Judge O'Connell said. "Yet, plaintiffs'
[complaint] still contains the same defects as alleged in their
prior complaints, demonstrating that 'it is clear that the
complaint could not be saved by amendment.'"
The named plaintiffs are 15 people from various states who claimed
that the paint on their Hyundai vehicles bubbles, peels and flakes
as the result of a defect, leading to rusting and corrosion. They
also said the automaker fraudulently concealed the defect when
they bought the vehicles and has refused to offer any relief.
The drivers said that Hyundai made specific statements about its
paint promoting it as a selling point until at least May 2016,
despite "scores" of complaints about peeling, rust and corrosion.
These statements included a Super Bowl commercial that said
"beautiful works of art are meant to last" and ended with a
statement that its paint quality was better than that of Mercedes,
they said.
Judge O'Connell dismissed the drivers' consolidated complaint in
mid-April for similar reasons.
"Though plaintiffs allege generally that there were 'concerns'
regarding the possibility of self-healing paints or coats peeling
. . . plaintiffs do not allege who had these concerns, the
substance of the concerns, or whether the concerns were ever
communicated to Hyundai," she said in that opinion.
At that time, all but one of the drivers' claims were dismissed
with leave to amend.
Neither side could be reached for comment on Aug. 21.
The car owners are represented by Napoli Shkolnik PLLC, Morgan &
Morgan, Greg Coleman Law PC, Jean Sutton Martin PLLC and
McCuneWright LLP.
Hyundai is represented by Eric Y. Kizirian --
Eric.Kizirian@lewisbrisbois.com -- and Dyanne Cho --
Dyanne.Cho@lewisbrisbois.com -- of Lewis Brisbois Bisgaard & Smith
LLP.
The case is Resnick et al. v. Hyundai Motor America Inc. et al.,
Case No. 8:16-cv-00593 (C.D. Cal.). The case is assigned to Judge
Beverly Reid O'Conne. The case was filed March 30, 2016. [GN]
HYUNDAI MOTOR: McGuireWoods Attorneys Discuss Court Ruling
----------------------------------------------------------
Alicia A. Baiardo, Esq. -- abaiardo@mcguirewoods.com -- and S.
Virginia Bondurant Price, Esq. -- vbondurantprice@mcguirewoods.com
-- of McGuireWoods LLP, in an article for Lexology, wrote that a
recent 40-page opinion from the Central District of California
illustrates how a Rule 12(b)(6) motion is still a viable vehicle
to fight back against putative class actions. The McGuireWoods
attorneys have seen an increase in the number of product liability
consumer class actions over the past ten or so years where
plaintiffs expressly disclaim personal injury and wrongful death
damages and only allege damages of repair of the product,
diminution in value of the product, overpayment of the product, or
some combination of those. In a large number of these consumer
class actions, the plaintiffs assert claims of fraudulent
concealment, fraudulent omission, and a variety of state-specific
fraud-based causes of actions like false advertising claims and
unfair and deceptive trade practices claims. Hyundai Motor
America, Inc., recently scored a substantial victory in the
Central District of California in getting an entire putative class
dismissed at the Federal Rule of Civil Procedure 12(b)(6) stage.
In Resnick v. Hyundai Motor America, Inc., Judge O'Connell of the
Central District of California dismissed without prejudice a
putative class action that alleged Hyundai sold cars with
defective "self-healing" paint that would bubble, flake, and not
fix the scratches it was advertised as being able to "self-heal"
or "self-fix."
While Judge O'Connell dismissed the entire, 14-count, putative
class action, we focus here on the fraud causes of action that
Judge O'Connell dismissed. Judge O'Connell concentrated her
analysis of the fraud claims on the allegations concerning
Hyundai's knowledge of the purported paint defect pre-sale. Judge
O'Connell relied on, Williams v. Yamaha Motor Corp. There, the
Ninth Circuit upheld Judge O'Connell's decision dismissing a
proposed class action at the Rule 12(b)(6) stage. Williams
reiterated the requirement that a plaintiff must establish pre-
sale knowledge of a defect. However, in Hyundai, the plaintiffs'
allegations went a step further and alleged Hyundai's potential
knowledge. Judge O'Connell found these allegations were likewise
insufficient to state a fraud claim under Rule 9(b) because there
were no allegations demonstrating any direct link to Hyundai
having pre-sale knowledge of any defect. The plaintiffs attempted
to allege knowledge, but Judge O'Connell found those allegations
were insufficient because they lacked any link to Hyundai's actual
pre-sale knowledge. Specifically, the following allegations
failed to state a claim for fraud, as they did not establish pre-
sale knowledge to Hyundai:
The Court conducted a detailed analysis of the Plaintiffs'
allegations in ultimately holding that they failed to state a
fraud-based claim. It is clear from the Court's lengthy order
that Plaintiffs at least attempted to allege facts that
established Hyundai's knowledge regarding the alleged defect. Yet,
it is also equally clear that the Court's analysis did more than
simply take the plaintiff's allegations at face value as the
Supreme Court's holdings in Ashcroft v. Iqbal, 556 U.S. 662
(2009), mandates. The Court applied the heightened Rule 9(b)
standards in analyzing whether the plaintiffs' allegations met the
heightened pleading requirements of Rule 9(b). This is a very
positive development for putative class actions in California and
everywhere for defendants. [GN]
INDIANA: Class Action Over Vehicle Seizure Law Pending
------------------------------------------------------
Fatima Hussein, writing for Indystar, reports that a federal judge
has issued an order that partially halts the police seizure of
vehicles in Indiana drug cases and other related crimes, calling
the seizure of vehicles before an official forfeiture action
unconstitutional.
U.S. District Chief Judge Jane Magnus-Stinson ruled that Indiana's
forfeiture law violates the due process clause of the Fifth and
Fourteenth Amendments of the U.S. Constitution.
"The Court concludes that the statutory provisions allowing for
the seizure and retention of vehicles without providing an
opportunity for an individual to challenge the pre-forfeiture
deprivation are unconstitutional," Judge Stinson ruled
The order comes as the Indiana legislature reexamines the state's
forfeiture laws in an interim study committee.
Under Indiana law, law enforcement can hold a vehicle for up to
six months. If the state decides to file a forfeiture claim
against the vehicle within the first 180 days, the vehicle is held
indefinitely until the case is concluded, which can often be
several additional months, according to court documents.
Last November, Jeff Cardella, a professor at Indiana University's
Robert H. McKinney School of Law, filed the federal class-action
lawsuit, on behalf of Leroy Washington, whose vehicle was taken by
police in September. Washington was arrested and charged with
resisting law enforcement, dealing in marijuana and obstruction of
justice. That case is pending.
Plaintiffs in the class-action lawsuit have argued that Indiana
law allows police to seize property from alleged drug dealers and
others, regardless of their guilt or innocence, and therefore
violates criminal defendants' constitutional right to due process.
The suit, limited specifically to vehicles in IMPD possession,
does not seek monetary damages. Rather, Washington wants law
enforcement to give back the vehicles of countless individuals
whose property was seized under Indiana's civil forfeiture laws.
Today, all states allow for forfeiture and there are more than 400
federal forfeiture statutes. Legal opinions written on the matter
show an inconsistency as to what is and is not a violation of an
individual's property rights.
Stinson criticized the system as it stands in Indiana.
"Unlike some states' statutes, Indiana's forfeiture provisions do
not allow for interim relief during the pendency of proceedings,"
she wrote. "Such interim relief could include returning the
seized vehicle subject to the posting of a surety bond or other
adequate security."
The Indiana legislature considered passing Senate Bill 8 last
session, which would have repealed a current provision permitting
the state to turn over seized property to the federal government.
The bill passed through Senate but died in the House.
Mr. Cardella told IndyStar that he is pleased with Stinson's
decision.
"This is an injustice that I have wanted to change for several
years," he said.
Indianapolis attorney, Todd Ess, who specializes in forfeiture
cases, says it is up to the legislature to reform forfeiture laws
in the state,
"Senate Bill 8 needs to be revived to address these issues," he
said.
A representative from the Indiana attorney general's office was
not immediately available for comment on whether the state plans
to appeal the decision. [GN]
INFOSYS: U.S. Law Firms Investigate Potential Securities Claims
---------------------------------------------------------------
BW Online Bureau reports that four US law firms have said they are
investigating potential claims on behalf of Infosys investors on
whether the Indian company and some of its officials and directors
have violated federal securities laws.
The development comes a day after the IT major, which is also
listed in the US, saw its CEO Vishal Sikka resign citing slander
by founders, led by NR Narayana Murthy.
The US law firms are: Bronstein, Gewirtz & Grossman; Rosen Law
Firm; Pomerantz Law Firm and Goldberg Law PC.
The first non-founder CEO of Infosys, Mr. Sikka had the company's
support but was forced to leave following what its Board termed as
a "misguided" campaign by Murthy.
Rosen said in a statement that it is investigating "potential
securities claims" on behalf of Infosys shareholders resulting
from allegations that the firm may have issued materially
misleading business information to the investing public.
It added that it is "preparing a class action lawsuit to recover
losses suffered by Infosys investors".
Bronstein said its investigation concerns whether Infosys and
certain officers and/or directors have complied with federal
securities laws.
Pomerantz said its investigation is to ascertain whether Infosys
and some of its officers/directors have engaged in securities
fraud or other unlawful business practices.
On similar lines, Goldberg said its investigation focuses on
whether Infosys and its officers/directors had violated federal
securities laws.
The equity shares of Infosys are listed on BSE and NSE in India,
while its American Depositary Share (ADS) is listed on the New
York Stock Exchange.
Following Mr. Sikka's resignation, Infosys' ADS dropped as much as
$1.43 per share, or nearly 9 per cent, during intra-day trading on
August 18, the day Sikka suddenly quit as CEO.
In India too, the company's stocks plummeted nearly 10 per cent on
the BSE, with its market valuation falling by over Rs 22,518
crore.
Separately, the Infosys board approved a share buyback plan of up
to Rs 13,000 crore.
Among other things, Infosys said that given the significant
shareholding of the US residents through ADS' and equity shares,
it was necessary to obtain exemptive relief from the American
market regulator US SEC on certain aspects of the tender offer
procedures.
This is due to conflicting regulatory requirements between Indian
and US laws for tender offer buybacks and the same has been
obtained, it explained. [GN]
INFOSYS: Panaya Acquisition May Prompt Investor Class Actions
-------------------------------------------------------------
Shilpa Phadnis, writing for Times of India, reports that proxy
advisory firms believe allegations around Infosys' $200-million
Panaya acquisition, deleted emails and information being hid from
the board could be the subject of investigations planned in order
to file class action suits against the company.
TOI had reported on Aug. 20 that several US law firms are looking
at class-action suits on behalf of investors that will argue that
the latter suffered losses on account of fraud.
"It is very likely that during the discovery stage, all emails and
papers will be examined. The actions of the board, the management,
the various firms that investigated the matter -- Cyril Amarchand
Mangaldas, Gibson Dunn, and Control Risks -- will be brought to
the fore. There is also the likelihood of shareholders in India
filing a class-action suit here as the Companies Act, 2013, allows
it. The board and the management are likely to be now expending
time and efforts addressing these class-action suits," said
Shriram Subramanian, MD of corporate governance research firm
InGovern Research Services.
Some whistleblowers' letters had alleged that the Panaya
acquisition was overvalued and that some of Infosys' top
executives had personal interests in the acquisition. It has been
alleged that the hefty severance packages to former CFO Rajiv
Bansal and former chief legal officer David Kennedy were given to
silence them on this issue.
It has also been alleged that the severance package agreement was
not disclosed to the board for a long time. The Infosys board,
however, has repeatedly pointed out that highly reputed global
investigation and forensic agencies were employed to investigate
the matter, and had found everything in order.
J N Gupta, managing director of non-profit corporate governance
advisory firm Stakeholders Empowerment Services (SES), said
anything which has an intention of fraud or deceit or instances of
deleting of history of records, calls for an investigation and it
could lead to a class-action suit. Mr. Gupta said Infosys founder
N R Narayana Murthy should present facts instead of third-party
references to prove his allegations. "In the parlance of law,
these are allegations and they need to be backed by proof," he
said.
Ray Wang, CEO of Constellation Research, said there are many
dramatic things Murthy can do, such as ask for an EGM to muscle
shareholder support. But right now, the board needs to sit down
and come up with resolutions that are good for clients, employees
and shareholders. "It's going to take some strong arbitration and
it needs to be done in a closed room and not aired out in public
as it has been. I'm not sure if it was the board or the promoters
or other factors. What I have seen is that the governance model
broke down as personal interests got in the way of client,
employee and shareholder interests." [GN]
INFOSYS: Indian Investors Have Option to File Class Action
----------------------------------------------------------
K. T. Jagannathan, writing for The Hindu, reports that the Infosys
episode seemed to have opened a Pandora's box. With
Mr. Vishal Sikka, who quit as CEO and co-founder N.R. Narayana
Murthy -- going to town virtually with their blame games,
stakeholders have moved swiftly to position their strategies.
Indications are Infosys may face a class action suit from U.S.
investors. Indian law also permits similar action.
A class action suit allows a number of claimants, who have a
common grouse, to pool their resources and file a suit against a
company. Such option for company law cases is a well-established
principle in foreign jurisdictions, especially in the U.S. The
Satyam episode forced company law formulators to incorporate a
rule providing for such action in India. Section 245 of the
Companies Act, 2013 provides for such an option for Indian
investors. Such a suit can be filed before the National Company
Law Tribunal (NCLT). Sec. 245 also gives the option to claim
damages or compensation or demand any other suitable action
against "the company or its directors for any fraudulent, unlawful
or wrongful act or omission or conduct or any likely act or
omission or conduct on its or their part."
Public notice
One can sue the firm, its directors, auditors and technical
advisers who are party to alleged fraud.
Once the suit is admitted, NCLT will issue a public notice to
allow those not having enough qualifying shares to join. Similar
applications in other jurisdictions will be consolidated into a
single application. [GN]
INFOSYS: Security Fraud Probe Unlikely to Cause Serious Impact
--------------------------------------------------------------
Nilesh Christopher, writing for Economic Times, reports that
investigations into a would be class-security fraud at InfosysBSE
2.01 % by multiple law firms are not likely to have any serious
impact on the beleaguered IT company, as industry watchers say
this is a classic case of 'ambulance chasing'.
Under US Tort law, a lawyer can work on 'contingency' in which
they get a cut of any award or settlement and do not get paid
otherwise. The term 'ambulance chasers' comes from lawyers who
used to follow accident victims asking them to sue a wide-range of
individuals who could have caused the accident in the hopes of
receiving a settlement.
"These guys sue everyone," R Ray Wang, Principal Analyst & Founder
at Constellation Research, told ET. With 226 new security fraud
suits, class action filings in the US hit a record high in the
first half of 2017.
In a recent report published by Cornerstone Research and the
Stanford Law School Securities Class Action Clearinghouse, Rosen
Law Firm was ranked second in the US for the number of Securities
Class Action Settlements in 2016.
Four investor rights law firms in the US -- Bronstein, Gewirtz &
Grossman, Pomerantz Law Firm, Goldberg Law PC, and Rosen Law Firm
-- have initiated investigations against NYSE-listed Infosys for
security fraud and issuance of misleading business information to
public shareholders by directors.
The class-action investigation "feels like ambulance chasing but
it will depend on what institutional investors line up behind the
lawyers", Wang said. "If you see a lot of institutional investors
follow suit, then there will be some substance behind the law
suits."
"Many retail investors are angry so it (the four law firms) might
get support from them. Not sure if it will be enough to become a
class-action suit," said Pareekh Jain, managing director India,
HfS Refresh.
The investigations were launched a day after former CEO Vishal
Sikka resigned after repeated "personal attacks" from cofounder
Narayan Murthy raising questions on the dwindling corporate
governance standards at the company he founded. Under the US law,
shareholders of a listed firm can file class action suits if they
suspect security fraud in the company they have invested in.
The happenings at Infosys "is not a common occurrence as the
situation in the boardroom is not common. When your story is
spilled out into the public in the manner that has happened, it
creates a situation," Wang said, adding, "However, the lawyers
here are classic ambulance chasers. They are up there in prestige
with activist investors."
"There is a legislative threshold that the shareholders need to
cross before the class-action goes to court or before there is a
trial," said Suhas Tuljapurkar, Managing Partner at independent
law firm Legasis partners, adding, "The threshold under the
applicable laws in the US goes beyond merely a prima facie proof".
[GN]
JENSEN-LEWIS CO: Wu Files Suit in S.D.N.Y.
------------------------------------------
A class action lawsuit has been filed against Jensen-Lewis Co.
Inc. The case is styled as Kathy Wu and on behalf of all other
persons similarly situated, Plaintiff v. Jensen-Lewis Co. Inc. and
Jensen-Lewis East, Inc., Defendants, Case No. 1:17-cv-06534 (S.D.
N.Y., August 28, 2017).
Jensen-Lewis Co. Inc. is a furniture store company.[BN]
The Plaintiff is represented by:
Justin Alexander Zeller, Esq.
The Law Office of Justin A. Zeller, P.C.
277 Broadway, Suite 408
New York, NY 10007
Tel: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
JOSEPHINE'S ITALIAN: Illegally Withheld Tips, Claims "Franks"
-------------------------------------------------------------
Jason Franks, Roberto Schmeda, Guilherme Marques and Peter
Voutsinas, on behalf of themselves and all others similarly
situated, Plaintiffs, v. Josephine's Italian Restaurant, Inc., a
Florida corporation and Josephine Tribunella, individually,
Defendants, Case No. 9:17-cv-80953 (S.D. Fla., August 15, 2017),
seeks unpaid wages, unpaid overtime, damages, unlawfully retained
tips and other amounts unlawfully withheld, liquidated damages,
penalties, restitution and attorneys' fees and costs under the
Fair Labor Standards Act and Florida's Minimum Wage Law.
Defendant is a Florida corporation doing business and operating a
restaurant, "Josephine's" where Plaintiffs are hourly paid,
"tipped" employees. Defendants illegally claimed a "tip credit"
thus rendering Plaintiffs' pay less than the Florida minimum wage
rate for hours worked. [BN]
Plaintiff is represented by:
Robin I. Frank, Esq.
SHAPIRO, BLASI, WASSERMAN & HERMANN, P.A.
7777 Glades Road, Suite 400
Boca Raton, FL 33434
Telephone: (561) 477-7800
Facsimile: (561) 477-7722
E-Mail: rifrank@sbwlawfirm.com
KANE'S FURNITURE: Faces "Joseph" Suit Over Failure to Pay OT
------------------------------------------------------------
Rashan Joseph, on his own behalf and others similarly situated v.
Kane's Furniture Corporation, Case No. 8:17-cv-01976-SDM-TGW (M.D.
Fla., August 21, 2017), is brought against the Defendants for
failure to pay overtime wages in violation of the Fair Labor
Standards Act.
Kane's Furniture Corporation is in the home furnishing business in
Florida.
The Plaintiff is represented by:
W. John Gadd, Esq.
THE LAW OFFICE OF W.JOHN GADD
Bank of America Building
2727 Ulmerton Rd. Ste. 250
Clearwater, FL 33762
Telephone: (727) 524-6300
E-mail: wjg@mazgadd.com
- and -
Kyle J. Lee, Esq.
LEE LAW, PLLC
P.O. Box 4476
Brandon, FL 33509-4476
Telephone: (813) 343-2813
E-mail: Kyle@KyleLeeLaw.com
LIBRE BY NEXUS: Moves Into Mediation of Civil Class Action
----------------------------------------------------------
Brad Zinn, writing for NewsLeader, reports that Libre by Nexus,
which is part of Verona-based Nexus Services Inc., is moving into
mediation of multi-million dollar civil class-action lawsuit filed
against the company in February, according to federal court
records.
The company characterizes the mediation as a court-required
procedure.
The lawsuit was filed by a Honduran man and woman who fled their
country after being targeted by gangs. They claim Libre exploits
Spanish-speaking migrant detainees through deceptive practices,
the lawsuit said.
Libre by Nexus offers GPS tracking to detained immigrants so they
can be released while awaiting court hearings.
According to the initial lawsuit filing, Libre leases the GPS
trackers under false pretenses and "preys on detainees'
vulnerability and limited understanding of English to foist
crushing financial terms and GPS shackles on detainees in exchange
for its 'service' of arranging for a third party to post
detainees' bonds."
The lawsuit contends that through misrepresentations and
omissions, Libre can charge close to $10,000 in the first year
alone through an "unconscionable" lease agreement. The suit
contends the agreement is written mostly in English, is laden with
deceptive language and includes a Spanish disclosure that the
plaintiffs say doesn't represent the full cost of the service.
For a $10,000 bond, the lawsuit says in the first year alone an
immigrant will pay roughly $9,000, which is non-refundable, and
said the non-refundable fee rises to $13,000 in the second year.
The GPS tracker provided by Libre is also faulted in the lawsuit.
Libre pays $3 a day for each tracker and charges detainees $14 a
day, said the lawsuit, which also contends Libre charges a $4,000
replacement fee for a device that reportedly costs just $450.
"All in all, this is a shockingly bad deal, even relative to the
other bad options available to immigrant detainees, and is
unconscionable on its face," the lawsuit states.
However, it now appears that Libre and the plaintiffs are talking.
The court previously referred this case to mediation, but Libre
and the plaintiffs agreed to a private mediator, court documents
show.
"The Parties agree that further proceedings in this case should be
suspended temporarily while the Parties attempt to resolve the
claims through mediation," wrote United States District Judge
Claudia Wilken in a court filing.
Discovery, essentially an exchange of information between
attorneys prior to the trial itself, has been halted in the case
as both parties pursue a possible settlement.
The lawsuit is seeking a minimum of $5 million.
Following the filing of the lawsuit, Libre contended that without
its help the only option for most immigrants is longterm
detention.
On Aug. 22, Mike Donovan, CEO of Nexus, said, "The court rules
require that the parties engage in mediation, and in accordance
with those rules required mediation is taking place. Libre by
Nexus strongly denies the false and unsubstantiated claims made in
the lawsuit against us and plans to aggressively defend itself in
federal court. Already, most of the original claims have been
dismissed or withdrawn. All of the salacious claims covered by
this newspaper and others, including peonage and rights violations
have been dismissed or withdrawn, actions that were not covered by
this newspaper or other media outlets." [GN]
LPL FINANCIAL: Judge Dismisses Stock Price Drop Class Action
------------------------------------------------------------
Bruce Kelly, writing for InvestmentNews, reports that LPL
Financial Holdings Inc. won a legal victory when a federal judge
on Aug. 18 dismissed a lawsuit that alleged the broker-dealer and
top executives deceived investors before its stock price fell off
a cliff in February 2016.
The matter is not completely resolved, as the judge, Barry Ted
Moskowitz, gave the pension plan plaintiffs 45 days in which to
file an amended complaint.
But the defendants, including LPL Financial Holdings and its
former CEO, Mark Casady, were clearly sanguine with the
development.
"We are pleased with the court's decision in this matter," wrote
company spokesman, Jeff Mochal, in an email.
"I am pleased with the court's decision in this matter," said
Mr. Casady, who retired as LPL's CEO at the end of last year.
Tricia McCormick, an attorney for the Michigan pension plan, did
not return a call on Aug. 22 to comment.
Last March, a month after LPL shares dropped to all-time lows of
$16.50, a Michigan pension plan, the Charter Township of Clinton
Police and Fire Retirement System, filed the complaint in U.S.
District Court in the Southern District of California, alleging
that a 2015 stock buyback program cost the company, and ultimately
its shareholders, $115 million. The complaint also named Matthew
Audette, LPL's chief financial officer.
When LPL announced the stock buyback program -- $500 million in
total -- at the close of October 2015, company shares closed
trading at $42.91. But about six weeks later, the stock began a
decline, culminating in a one-day 35% plunge on Feb. 12 to $16.50
per share. This occurred after the company announced, the
previous day, fourth-quarter earnings of 37 cents per share, well
below analysts' estimates of 51 cents per share.
The broad market was in a sell-off of stocks at the start of last
year. LPL Financial Holdings shares have since recovered, and
were trading at $46.40 on Aug. 22.
The heart of the lawsuit focused on Mr. Casady's and Mr. Audette's
positive comments about the company during a Dec. 8, 2015,
financial services conference sponsored by Goldman Sachs. TPG
Capital, which was one of the two private equity firms that bought
a controlling stake in LPL in 2005, sold more than four million of
its shares in late 2015 to LPL as part of the stock buyback
program, raising the suspicions of the plaintiffs in the lawsuit.
For example, the complaint cited LPL's statement that the share
repurchase plan was the "best use" of the company's capital
because of the then-current price. Both Mr. Casady and
Mr. Audette at the conference gave other positive assessments of
LPL, according to the complaint, including that commission
revenues were slow in the fourth quarter but would be similar to
that of the third quarter. In fact, alternative investment
revenues "would drop a staggering 75% year-over-year," according
to the complaint.
LPL, Mr. Casady and Mr. Audette filed their motion to dismiss the
lawsuit this April.
"The defendants' statements allegedly misrepresented, or failed to
disclose, weaknesses in LPL's financial performance as of the
December 8th presentation," Judge Moskowitz wrote in his decision.
However, the lawsuit lacked specific financial details to support
its allegations, he added.
"Without allegations quantifying LPL's financial data as of
December 8th, 2015, it is not possible to determine what
defendants actually or constructively knew regarding LPL's
finances, or whether their 'optimistic representations to the
contrary' were 'consciously misleading,'" the judge wrote in the
dismissal order.
The timing of LPL's purchase of its shares from TPG did give him
pause, however. Judge Moscowitz added that "the court agrees with
the plaintiff that the timing of LPL's buyback of shares from TPG
is suspicious, particularly in light of its previous statement
that the buyback would take months." [GN]
MACY'S INC: Challenges TCPA Class Action Over Robocalls
-------------------------------------------------------
Dan Monk, writing for WCPO, reports that Macy's Inc. offered a
peek behind the curtain of its debt-collection practices while
defending itself from a lawsuit alleging it made robocalls in
violation of the Telephone Consumer Protection Act.
Orlando, Florida resident Deborah Clark claims she was harassed by
automated calls for more than a year by Macy's, even after she
told the company that it was her daughter's debt -- not hers.
Clark claimed Macy's called her "several times during one day, and
on back-to-back days," wasting her time, using up her cell phone
minutes and "depleting her battery life." She's asking for her
case to be certified as a class action for all consumers who
received similar calls in the last four years.
In a 13-page affidavit, Macy's executive Daniel Delgado said
Ms. Clark's daughter "gave consent to call the cell phone number"
at the heart of the dispute.
"The first call . . . occurred on July 28, 2015 and the last call
occurred on September 5, 2015. There were a total of 37 calls
made to this cell number," stated Mr. Delgado, the Clearwater,
Florida-based director of collections for FDS Bank, a Macy's
subsidiary.
Mr. Delgado's redacted affidavit offers extensive detail on Macy's
handling of delinquent loans, which begins with FDS Bank then
transfers to Department Stores National Bank after 120 days. DSBN
is a service company created by Macy's and Citibank to jointly
handle the credit card operations of Macy's and Bloomingdale's
department stores.
"According to FDS Bank's records, the number at issue . . . is a
cell phone number that was obtained by DSNB on October 17, 2014
through a skip trace process," Mr. Delgado explained. "A skip
trace is a process by which a collector uses third party sources
to try and find an active and valid telephone number for a
customer that the company has not been able to contact through
other means."
Because it was obtained through a skip trace, Mr. Delgado said the
number "would only be called manually" until Clark's daughter gave
permission to call it. That happened on July 23, 2015, according
to Delgado's affidavit. None of the 37 calls that followed were
answered. But on Sept. 6, the daughter asked FDS Bank to stop
calling. [GN]
MDL 2789: Sept. 12 Initial Conference Set in Nexium Cases
---------------------------------------------------------
Federal Nexium lawsuit filings and other proton pump inhibitor
claims involving kidney failure, chronic kidney disease, and other
serious kidney complications are beginning to move forward in the
multidistrict litigation recently established in the U.S. District
Court, District of New Jersey. (IN RE: Proton-Pump Inhibitor
Products Liability Litigation (No. II), MDL No. 2789)
According to court documents, the litigation is scheduled to
convene its Initial Conference on September 12th, at which time
matters pertaining to discovery and other pre-trial proceedings
will be addressed. The parties have been directed to submit a
Joint Agenda to the court by September 8th.
"Our Firm is representing a number of clients who are pursuing
proton pump inhibitor lawsuits over renal complications allegedly
related to their use of Nexium and similar drugs. We look forward
to this conference and will be monitoring the proceeding for any
developments that might impact our clients' cases," says Sandy A.
Liebhard -- Liebhard@bernlieb.com -- a partner at Bernstein
Liebhard LLP. The Firm is now offering free legal reviews to
individuals who were diagnosed with chronic kidney disease, kidney
failure, acute kidney injury, or acute interstitial nephritis
following extended use of prescription or over-the-counter proton
pump inhibitors.
What is the Proton Pump Inhibitor Litigation About?
Proton pump inhibitors are a class of heartburn drugs that
includes prescription and over-the-counter versions of Nexium,
Prilosec, and PrevAcid, among others. They are intended for
short-term treatment of GERD and other stomach disorders
associated with the over-production of stomach acid. In 2013, more
than 15 million Americans used prescription proton pump
inhibitors, at a cost of more than $10 billion. However, it has
been estimated that between 25% and 70% of these prescriptions
have no appropriate indication.
Because heartburn drugs like Nexium have become so commonplace,
most people assume that proton pump inhibitors carry very little
risk. However, several recent studies have suggested that their
long-term use might increase a patient's risk for kidney failure,
chronic kidney disease, acute interstitial nephritis, and acute
kidney injuries.
Court documents indicate that nearly 200 proton pump inhibitor
lawsuits are pending in the District of New Jersey. Plaintiffs
involved in this litigation claim that the manufacturers of
Nexium, Prilosec, PrevAcid, Dexilant, and Protonix failed to
adequately warn consumers that the medications could cause
irreparable harm to the kidneys. They further assert that they
could have avoided life-threatening kidney complications had they
and their doctors been provided with appropriate safety warnings.
Proton pump inhibitor patients who were diagnosed with serious
kidney complications may be eligible to join this litigation. To
learn more, please visit Bernstein Liebhard LLP's website, or call
800-511-5092 to arrange for a free, no obligation case review.
About Bernstein Liebhard LLP
Bernstein Liebhard LLP is a New York-based law firm exclusively
representing injured persons in complex individual and class
action lawsuits nationwide since 1993. As a national law firm,
Bernstein Liebhard LLP possesses all o f the legal and financial
resources required to successfully challenge billion-dollar
pharmaceutical and medical device companies. [GN]
MUZZARELLA INC: "Hernandez" Claims Spread-of-Hours, Overtime Pay
----------------------------------------------------------------
Victor Hugo Ortega Hernandez, individually and on behalf of others
similarly situated, Plaintiff, v. Muzzarella, Inc. Defendants,
Case No. 1:17-cv-06164 (S.D. N.Y., August 15, 2017), seeks unpaid
overtime wages pursuant to the Fair Labor Standards Act of 1938
and New York Labor Law, "spread of hours," including applicable
liquidated damages, interest, attorneys' fees and costs.
Muzzarella Pizza is a pizzeria/restaurant owned by John Russo and
Anthony Muzzarella, located at 221 Avenue A, New York, New York,
10009, where Ortega worked as a food preparer, counter attendant,
pizza maker and delivery worker. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Fax: (212) 317-1620
\NEBRASKA LAW ENFORCEMENT: Faces "Carter" Suit in Dist. of Neb.
--------------------------------------------------------------
A class action lawsuit has been filed against Nebraska Law
Enforcement Training Center. The case is styled as John M. Carter
and on behalf of other similarly situated, Plaintiff v. William
Muldoon, individually and in his official capacity as Director of
NLETC, Dave Stolz, individually and in his official capacity as
Counsel for the NLETC, Nebraska Law Enforcement Training Center
and Does 1-25 inclusive, Defendants, Case No. 8:17-cv-00319-RGK-
PRSE (D. Neb., August 28, 2017).
Nebraska Law Enforcement Training Center is engaged in training
services for Police Officers.[BN]
The Plaintiff appears PRO SE.
NEW SOURCE: Nov. 20 Class Action Settlement Fairness Hearing
------------------------------------------------------------
The Rosen Law Firm, P.A. and Wolf Haldenstein Adler Freeman & Herz
LLP on Aug. 21 disclosed that the United States District Court for
the Southern District of New York has approved the following
announcement of a class action settlement that would benefit
purchasers of New Source Energy Partners L.P.'s 11% Series A
Cumulative Convertible Preferred Units:
SUMMARY NOTICE OF PENDENCY AND SETTLEMENT OF CLASS ACTION
TO: ALL PERSONS WHO PURCHASED NEW SOURCE ENERGY PARTNERS
L.P.'S 11% SERIES A CUMULATIVE CONVERTIBLE PREFERRED UNITS
PURSUANT AND/OR TRACEABLE TO THE MAY 5, 2015 OFFERING PRIOR TO
OCTOBER 21, 2015.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Southern District of New York, that a
hearing will be held on November 20, 2017 at 11:00 a.m. before the
Honorable Kimba M. Wood, United States District Judge of the
Southern District of New York, 500 Pearl Street, Courtroom 18B,
New York, New York, 10007-1312 (the "Settlement Hearing") for the
purpose of determining: (1) whether to certify the Settlement
Class pursuant to Federal Rule of Civil Procedure 23(a) and (b);
(2) whether the Settlement Amount consisting of the sum of
$2,850,000 should be approved by the Court as fair, reasonable,
and adequate; (3) whether Final Judgment should be entered,
dismissing the Action with prejudice and ordering the release of
claims in accordance with the Stipulation of Settlement; (4)
whether the Plan of Allocation to distribute the settlement
proceeds is fair, reasonable, and adequate; (5) whether the
application for an award of attorneys' fees of $950,000 or
one-third of the Settlement Amount, and reimbursement of expenses
of not more than $35,000 and a case contribution award payment of
no more than $15,000 collectively to all Lead Plaintiffs should be
approved; (6) the merits of any objections to the Settlement; and
(7) such other matters as the Court may deem appropriate.
If you purchased New Source Energy Partners L.P. 11% Series A
Cumulative Convertible Preferred Units ("Series A Preferred Units"
or "Units") pursuant and/or traceable to New Source's
May 5, 2015 offering of the Units prior to the commencement of
this Action on October 21, 2015 (the "Settlement Class Period"),
your rights may be affected by the Settlement of this Action. If
you have not received a detailed Notice of Pendency and Settlement
of Class Action ("Notice") and a copy of the Proof of Claim and
Release, you may obtain copies by writing to New Source Energy
Partners L.P. Securities Litigation, c/o Strategic Claims
Services, P.O. Box 230, 600 N. Jackson St., Ste. 3, Media PA
19063; (Tel) (866) 274-4004; (Fax) (610) 565-7985;
info@strategicclaims.net; or going to the website at
www.strategicclaims.net. If you are a member of the Settlement
Class, in order to share in the distribution of the Net Settlement
Fund, you must submit a Proof of Claim and Release postmarked no
later than October 10, 2017 to the Claims Administrator,
establishing that you are entitled to recovery. Unless you submit
a written request for exclusion, you will be bound by any judgment
rendered in the Action whether or not you make a claim. If you
desire to be excluded from the Settlement Class, you must submit a
request for exclusion to the Claims Administrator received no
later than October 23, 2017, in the manner and form explained in
the Notice.
Any objection to the Settlement, Plan of Allocation, Co-Lead
Counsel's request for an award of attorneys' fees and
reimbursement of expenses, or case contribution award payment must
be in the manner and form explained in the Notice and received no
later than November 2, 2017, to each of the following:
Clerk of the Court
United States District Court
Southern District of New York
500 Pearl Street
New York, New York 10007-1312
Co-Lead Counsel
Phillip Kim
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, New York 10016
-and-
Peter C. Harrar
WOLF HALDENSTEIN
ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Counsel for Individual
Defendants
Ari M. Berman
VINSON & ELKINS L.L.P.
666 Fifth Avenue, 26th Floor
New York, NY 10103
Counsel for Underwriter
Defendants
Peter B. Morrison
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
300 South Grand Ave., Ste.
3400
Los Angeles, CA 90071
If you have any questions about the Settlement, you may call or
write to Co-Lead Counsel
Phillip Kim
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
275 Madison Avenue, 34th Floor
New York, NY 10016
Tel.: 212-686-1060
Fax: 212-202-3827
-and-
Peter C. Harrar
THE ROSEN LAW FIRM, P.A.
270 Madison Avenue
New York, New York 10016
Tel: 212-545-4600
Fax: 212-686-0114
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: JULY 27, 2017
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK
[GN]
NORTH OKALOOSA: Faces Class Action Over Exorbitant CT Scan Fees
---------------------------------------------------------------
Annie Blanks, writing for nwfdailynews.com, reports that a class
action lawsuit has been filed against North Okaloosa Medical
Center by a man who said he was charged $40,000 for four scans in
the emergency room there after a car accident last fall.
According to a press release from his attorneys, George Washington
MacNeil, an Okaloosa county resident, is suing the hospital for
"charging automobile accident victims exorbitant amounts for CT
scans" and violating the Florida Motor Vehicle No-Fault Law, which
prohibits hospitals from charging car crash victims unreasonable
amounts for medically necessary services.
"We are seeking a declaration from the court that these charges
violate the law, and commend Mr. MacNeil for taking a stand on
behalf of his friends and neighbors who also were overcharged for
CT Scans in the emergency department following a car accident,"
MacNeils attorney, Richard Bennett, said in the press release.
North Okaloosa Medical Center spokeswoman Alicia Booker said in an
email to the Daily News that it is not the hospitals practice to
comment on litigation matters.
According to court records, Mr. MacNeil was involved in a car
accident in Crestview on Oct. 20, 2016 in which a car turned left
in front of him and struck his vehicle, resulting in injuries to
his head, neck, wrist, shoulder and ribs. He was transported via
paramedics to North Okaloosa Medical Center, the only emergency
room in north Okaloosa County, and was administered four CT scans
before being released to recover at home.
When Mr. MacNeil received his bill for nearly $50,000 -- most of
which was for the four CT scans -- he said he felt he was "a
victim twice that day."
Mr. MacNeil is seeking an injunction from the court saying the
hospital overcharged him. If a judge approves his attorneys
request for a class action lawsuit, anyone treated in the past
four years in the hospital's emergency room after a car accident
will receive a notice inviting them to be a part of the lawsuit.
Should a jury decide the charges weren't reasonable, a judge could
issue monetary damages or other "equitable relief," according to
Bennett. [GN]
PA UNIFIED: Faces "Dougherty" Suit in M. Dist. of Penn.
-------------------------------------------------------
A class action lawsuit has been filed against PA Unified Judiciary
in their official capacity. The case is styled as Keith Dougherty,
Brent Frey, Erica Frey, R. Michael Best and all others similarly
situated, Plaintiffs v. Jared Dupes PA Department of Revenue
Bureau of Compliance In his individual and supervisory capacity,
Commonwealth Court Clerk in its executive and official capacity,
Christopher Conner in his executive function, Caldwell, Jones,
Carlson, Blewit, Welsh in their official capacity, PA Unified
Judiciary in their official capacity, Defendants, Case No. 1:17-
cv-01541-YK-MCC (M.D. Pa., August 28, 2017).
Pennsylvania's Unified Judicial System provides comprehensive
public access to court records online and upon request unless
exempted by court order, state law or administrative policy.[BN]
The Plaintiffs appears PRO SE.
PETHEALTH INC: Averts Pet Adopters' Class Action Over Robocalls
---------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that
saying he understands many of his colleagues have ruled
differently, a federal judge in Chicago has denied an attempt by a
group of pet adopters to turn their legal beef into a class action
against a pet health insurance provider, saying the company did
not "harm" the new pet owners by calling to urge them to take
advantage of a "gift" of 30-day free health insurance for their
new pet, which the new owners had been told was included with the
adoption of their animal.
On Aug. 15, U.S. District Judge Robert W. Gettleman sided with
PetHealth Inc. and PTZ Insurance Agency, denying the request by
two plaintiffs to expand their lawsuit against the companies into
a class action, for allegedly violating federal telecommunications
laws forbidding robocalling or calling people without their
written consent.
". . . Defendants have submitted affidavits from shelter employees
who conducted the adoption processes," Judge Gettleman wrote.
"Those employees state that after taking the adopters' cell phone
numbers, the employees told the adopters to expect to receive
'communications' from defendants. Whether such 'communications'
included cell phone calls as well as e-mail messages would depend
on the nature of the conversations between the shelter employees
and the adopters, and the adopters' expectations resulting from
the conversations.
"This evidence convinces the court that the trial in this case
will be consumed and overwhelmed by testimony from each individual
class member, and the shelter employee who assisted that member in
the adoption process, to determine whether the class member
consented to receive the calls in question. In short, the trial
will involve hundreds, if not thousands, of mini-trials on the
issue of consent alone."
The decision comes as the latest step in litigation dating back to
2014, when attorneys with the firm of Keogh Law, in Chicago, filed
suit in federal court against the companies on behalf of named
plaintiffs Christopher Legg and Page Lozano, accusing the
defendant companies of violating the federal Telephone Consumer
Protection Act when they called pet adopters who had not consented
in writing to receive promotional phone calls.
According to the lawsuit, PetHealth and PTZ offer new pet adopters
who adopt through partnering animal shelters 30 days of free pet
health insurance. The shelters, according to court documents,
"gather information from adopters during the adoption process for
the purpose of providing the 30-day free gift." As part of the
adoption process, court documents said adopters must "provide a
valid email address and 'opt-in' to receiving communications" from
the pet health insurance providers.
"The paperwork provides that unless they opt-out they may be sent
information and special offers by mail or email regarding products
or services that may be of interest, and that their personal
information may be shared with third parties so those third
parties may 'contact you by mail or email for their own marketing
purposes,'" the judge wrote in his decision.
PetHealth and PTZ then would routinely send two emails and place
two "pre-recorded robocalls" to new adopters, encouraging them to
sign up for the pet health insurance.
Plaintiffs alleged these calls broke the law, but the companies
argued the calls didn't harm the new adopters in any way, as the
adopters had agreed to receive marketing communications from
"third parties."
As there was no "harm," the companies argued the Supreme Court's
decision in Spokeo v Robins, which held technical violations of
laws like the TCPA don't merit class action lawsuits unless there
was concrete harm to those suffering the calls, should cage up any
class actions in this case.
Judge Gettleman noted other judges have found even technical
violations of the TCPA could establish "concrete injury."
But in this case, he said, the plaintiffs consent during the pet
adoption process to receive the third-party communications make
this case different from many others.
"In the instant case, defendants argue that adopters have
expressly agreed to receive the calls, that they just did not do
so in writing," Judge Gettleman wrote. "The lack of a writing
does not make the calls unsolicited. If the class members agreed
to receive the calls, they lack a 'genuine controversy.'"
PetHealth and PTZ were represented in the action by attorneys with
the firm of SmithAmundsen LLC, of Chicago. [GN]
PORTFOLIO RECOVERY: Faces "Stewart" Suit in E.D.N.Y.
----------------------------------------------------
A class action lawsuit has been filed against Portfolio Recovery
Associates LLC. The case is styled as James Stewart, on behalf of
himself and all others similarly situated, Plaintiff v. Portfolio
Recovery Associates LLC., Defendant, Case No. 1:17-cv-05066 (E.D.
N.Y., August 28, 2017).
Defendant operates a nationwide debt collection business.[BN]
The Plaintiff appears PRO SE.
REGENCY BEAUTY: Appeals Court Affirms FLSA Class Action Dismissal
-----------------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that a
Chicago federal appellate court has scalped a class-action lawsuit
filed by a onetime student of a nationwide beauty school, which
alleged student cosmetologists should be paid for on-the-job
training, as the hands-on work experience serves as compensation
and is required for licensing.
The Aug. 14 decision was authored by Chief Judge Diane Wood, with
agreement from Circuit Judges William Bauer and David Hamilton, of
the U.S. Court of Appeals for the Seventh Circuit. The ruling
dismissed a suit against the now-defunct Regency Beauty Institute
brought by a group of cosmetology students led by Venitia Hollins.
Regency was in business 50 years. At the time it closed Sept. 28,
2016, it had been operating 79 cosmetology schools in 20 states.
Ms. Hollins enrolled in a Regency school in Merrillville, Ind. in
2011, then transferred to a Regency school in Tinley Park,
graduating in 2012. Ms. Hollins then went into business as a
beautician.
As part of her schooling at Regency, Ms. Hollins said she
practiced on customers. Ms. Hollins, and students like her,
received credit hours, but no pay for this practical training.
Regency charged customers lower prices for these services by
students, generating a significant amount of revenue this way for
the company in 2011, 2012 and 2013, according to Ms. Hollins.
Ms. Hollins filed suit in 2013 in U.S. District Court for Northern
Illinois in Chicago, alleging Regency owed pay to students,
because the work students did classified them as employees under
the federal Fair Labor Standards Act. Regency countered that,
instead of pay, students received education, which was the
"primary benefit of their relationship with Regency."
In October 2015, U.S District Judge John Tharp granted Regency's
motion to dismiss, determining the significant factor in the
"economic reality" of the student-Regency relationship was the
value of the instruction furnished by Regency. Judge Tharp
further found that work is a "component of required training" and
the "work performed by the student is primarily performed for the
benefit of the student, not the school."
Ms. Hollins appealed Judge Tharp's decision, but the court of
appeals sheared her.
Judge Wood pointed out the states require students undergo on-the-
job training to graduate and obtain a cosmetology license. In
addition, Ms. Hollins paid tuition to Regency for classroom
instruction and supervised practical experience, with Wood drawing
attention to the fact Regency was in the business of education,
not the salon business.
Judge Wood observed Ms. Hollins tried to get around this point by
arguing students, besides doing hair and nails, also had to
perform menial tasks, such as cleaning the floor, selling salon
products, restocking shelves and acting as receptionists. However,
Judge Wood noted these tasks are part of a cosmetologist's job. In
particular, beauticians need to learn time management. Further,
the subject of "Salon Safety and Sanitation" is the most "heavily
tested" part of the Illinois and Indiana cosmetology licensing
examinations, Wood said.
Ms. Hollis and members of the class action have been represented
by the Chicago firm of Robert Orman & Associates and Las Vegas
attorney Leon Greenberg.
Regency has been defended by the firms of Morgan, Lewis & Bockius,
of Chicago, and OMelveny & Myers, of New York. [GN]
REMINGTON: Attorneys Want Court to Approve Rifle Settlement
-----------------------------------------------------------
Scott Cohn, writing for CNBC.com, reports that attorneys for
America's oldest gun maker say gun owners' suspicions about the
government may explain why only a relative handful have expressed
interest in getting their Remington rifles repaired under a
nationwide class action settlement. Nonetheless, they say claims
have jumped roughly 25 percent since February, and that is reason
enough for a federal appeals court to let the settlement proceed.
Timing is critical, with this year's hunting season just a few
months away.
The case involves Remington's iconic Model 700 rifle, as well as a
dozen other Remington firearms with similar designs. CNBC first
reported in 2010 on allegations that, for decades, Remington
covered up a design flaw that allows the guns to fire without the
trigger being pulled.
Lawsuits have linked the alleged defect to dozens of deaths and
hundreds of serious injuries. Remington has steadfastly denied the
allegations. The company maintains that the guns are safe and
free of defects, and blames all of the incidents on user errors.
Nonetheless, the company has agreed to replace the trigger
mechanisms in nearly all of the guns, free of charge, in hopes of
putting the matter behind itself once and for all. Earlier this
year, a federal judge in Kansas City approved the class action
settlement, which covers roughly 7.5 million guns.
But two Model 700 owners -- a sheriff's deputy in Louisiana and an
attorney in Oklahoma -- appealed the ruling to the 8th U.S.
Circuit Court of Appeals. Lewis Frost and Richard Denney accuse
Remington of deliberately downplaying the risk from the guns in
order to suppress claims under the settlement. They argue that the
small number of claims -- only about 22,000 as of February --
proves the company has not done enough to notify the public.
Attorneys general from 13 states and the District of Columbia have
also urged the appeals court to reject the settlement, calling the
guns a threat to public safety.
If the owners of all 7.5 million guns were to submit claims, the
repairs would cost Remington upwards of half a billion dollars,
according to multiple court filings. According to Remington and
plaintiffs' attorneys, the number of claims had risen to 29,214.
While that still represents less than half of one percent of the
guns in question, Remington argues in its latest filing that the
figure is significant.
"Low claims rates are hardly unusual in consumer class actions,"
the filing says, adding that the issue is especially tricky when
it comes to guns.
"Rifle owners may be suspicious of any claims process that
involves the government and lawyers," the filing says.
Attorneys for class action plaintiffs -- who stand to collect
$12.5 million in fees if the appeal is denied -- agree that the
settlement is fair, and that the public has received ample notice.
"Both the agreement and claims process have been extensively
publicized through the formal due process notice plan,
supplemental notice plan, and independent media," they write.
It is not clear how long it will take before the appeals court
rules on the settlement. Regardless, it is unlikely that
customers who send in their guns will get them back in time for
this fall's hunting season.
The official web site for the settlement estimates the repair
process will take 12 weeks from the time Remington receives the
gun, and all claims are currently on hold as the appeal process
plays out.
In addition, some owners will be unable to get their guns
retrofitted at all. Under the settlement, owners of some of the
oldest models are only eligible to receive a Remington product
voucher worth as little as $10.
In addition to the Model 700, the settlement covers Remington
models Seven, Sportsman 78, 673, 710, 715, 770, 600, 660, 721,
722, 725, and the XP-100 pistol. [GN]
SHELL OIL: Class Action Settlement Obtains Prelim. Court Approval
-----------------------------------------------------------------
John Revak, writing for Madison Record, reports that the U.S.
District Court for the Southern District of Illinois recently
issued a preliminary order of approval for the settlement of a
class action lawsuit between residents of Roxana and Shell Oil Co.
This is indicative that the parties have agreed to, at the very
least, the basic terms of a settlement.
The order, issued Aug. 2 in response to the plaintiff's unopposed
motion for preliminary approval of class settlement, also outlines
the terms of the suit, such as who may be included in the class
and class representation.
Judge Nancy J. Rosenstengel appointed plaintiff Jeana Parko as
class representative and appointed Chicago law firm Simmons Hanly
Conroy as counsel for the class. Rust Consulting's Tiffaney
Janowicz was appointed as neutral arbitrator.
Additionally, the class size was limited to all those people who
reside within the Illinois Environmental Protection Agency area of
study, which is described as an area bordered by South Central
Avenue, Rand Avenue and South Chaffer Avenue.
Furthermore, Judge Rosenstengel designated "all persons who own or
owned or occupy or occupied real property in the village of
Roxana, Illinois, within the settlement area, during the
settlement time period, regardless of whether or not they file a
claim form in accordance with the procedures set forth in the
agreements," as accepted in the class.
The final approval hearing is set to be held before Dec. 18 at
9:30 a.m., at which time the court will determine if the specific
terms of the settlement are indeed fair.
The lawsuit was filed by Roxana residents who claim leaked
chemicals from a local Shell refinery have entered their drinking
water and caused them health problems, including cancer.
Claims of negligence, trespass, public nuisance, private nuisance
and unjust enrichment were filed. In addition to Shell, the
companies Equilon Enterprises, ConocoPhillips, WRB Refining,
ConocoPhilips WRB Partners and Cenovus GPCO were also mentioned in
the suit.
Compensatory damages in the amount of $250,000 were initially
sought, in addition to other costs and relief. A medical
monitoring program was also desired in order to track the
plaintiff's health. [GN]
SHERWIN-WILLIAMS: Mitnick Law Office Files Class Action
-------------------------------------------------------
Mitnick Law Office, LLC disclosed that on August 22, 2017, a class
action lawsuit was filed in New Jersey Federal Court against the
Fortune 500 company, Sherwin-Williams. A filing in the District
Court of New Jersey alleges that Sherwin-Williams, who owned a
paint manufacturing facility in the quaint New Jersey town of
Gibbsboro from 1930 until 1978, contaminated the town's soil and
groundwater with unsafe levels of lead, arsenic and other
carcinogens. That contamination has now migrated to surrounding
residences and businesses within Gibbsboro, causing a cancer
cluster within the town.
Residents of the Gibbsboro community are asking the federal court
to hold Sherwin-Williams accountable for the contamination that is
causing residents, including children, to develop cancer and other
serious medical conditions. Contaminated areas of Gibbsboro have
been listed on the Environmental Protection Agency's National
Priority List since 1999 and designated as Superfund sites.
The Borough of Gibbsboro is located within central Camden County,
New Jersey. The Borough is approximately 2.2 miles in size and is
home to approximately 2,274 residents according to the 2010 United
States Census. The Borough is located about 15 miles southeast of
Philadelphia Pennsylvania. Land-use in this small community is
comprised of a combination of commercial, industrial, open spaces,
and residential zones.
The Lawsuit alleges that as part of its operations, Sherwin-
Williams utilized and generated hazardous substances, including
lead, arsenic, pentachlorophenol, benzene, cadmium, and numerous
other known carcinogens.
"The process by which Sherwin-Williams manufactured, stored and
disposed of paint and paint by-products had the effect of
releasing and omitting toxic chemicals and hazardous substances,
including lead, arsenic, benzene, barium and pentachlorophenol
into the grounds, air and surrounding environment. Over time
these hazardous substances have migrated into surrounding
corporate, business and residential properties. This
contamination has existed far too long and a company of Sherwin-
Williams size should have had the corporate responsibility to
protect the residents and visitors of Gibbsboro," Craig Mitnick,
Esq.
"Air, land and groundwater contaminated by the Defendant's
activities at the Sherwin-Williams Site have migrated for years,
and continue to spread to further surrounding areas, with
hazardous chemical levels exceeding acceptable NJDEP and USEPA
regulatory background guidelines."
The Environmental Protection Agency published the following in a
1999 Administrative Consent Order issued between Sherwin-Williams
and the EPA:
"Exposure to the various hazardous substances present at the Site
by direct contact, inhalation, or ingestion may cause a variety of
adverse human health effects . . . and the conditions present at
the Site constitute an imminent and substantial endangerment to
public health, welfare, or the environment." (United States
Environmental Protection Agency, Region II, Administrative Order
on Consent for Removal Action, 1999)
Also in 1999, the New Jersey Department of Health and Senior
Services (NJDHSS) and the Agency for Toxic Substances and Disease
Registry (ATSDR) concluded that an urgent health hazard existed to
children and adults who lived, worked and visited the Sherwin-
Williams Site areas. Even with this fact, continued development
on contaminated land took place, including constructing public
walking trails, constructing commercial establishments, opening
new restaurants and renovating existing residential properties.
Defendant Sherwin-Williams has contaminated both public and
private property, inadequately addressed the contamination they
caused, and failed to warn residents and the public of the
contamination it knew existed. Sherwin-Williams ignored the health
hazards, concealed those hazards from residents by not engaging
the community and by not actively addressing the contamination
that it caused. Sherwin-Williams failed to warn Plaintiffs and the
public of the contamination it knew existed and the dangers of
exposure, including cancer.
A copy of the full federal complaint is available at
cmitnick.net/gibbsboro.pdf
[GN]
SANTEE COOPER: Faces Class Action Over Pee Dee Plant Rate Hike
--------------------------------------------------------------
Ian Cross, writing for WMBF News, reports that a Conway lawyer has
filed paperwork for a class action lawsuit against Santee Cooper
and the South Carolina Public Service Authority, alleging the
utility raised the rates on over 160,000 retail customers and
spent over $362 million on a coal power plant from a Chinese "kit"
in the Pee Dee area that remains unused.
The lawsuit, filed by Conway attorney George Hearn on behalf of
"himself and all other similarly situated," includes a class of
customers who paid increased rates from November 2009 to present,
totaling more than 163,000 customers across Berkeley, Georgetown
and Horry counties.
The lawsuit comes after Santee Cooper abandoned the VC Summer
nuclear power plant in Fairfield County after raising the rates on
customers for years to pay for it. SC Gov. Henry McMaster said all
options are on the table to sell the plant to restart construction
on the project.
The suit alleges that Santee Cooper's Board of Directors approved
the permitting for two coal power plant units in May 2006 at the
utility's Pee Dee Energy Campus. In 2007, Santee Cooper issued
bonds for about $342 million to finance the construction of the
Pee Dee plant. It then used the proceeds to pay about $249
million for a disassembled coal plant "kit" from China to be
delivered to the Florence County site.
The lawsuit claims that Santee Cooper purchased the power plant
kit before it could possibly obtain all the necessary permits to
construct and operate the plant.
Santee Cooper issued additional bonds in 2008 and 2009 to finance
construction of the Chinese power plant, totaling $406 million in
2008 and $164 million in 2009, the suit states.
Then, according to the lawsuit, in August 2009, the Board of
Director made the decision to "suspend efforts to permit" the
proposed power plant.
While the board did not approve a 2009 proposal to increase
overall customer bills by 4.4 percent and an additional 5.5
percent, the residential rate was increased from 6.32 cents per
kilowatt hour (KWH) to 8.88 cents per KWH, with an additional 1
cent per KWH increase during the summer months, the lawsuit
alleges.
"This rate increase against residential and other rate payers was
not authorized by Santee Cooper, nor by statute, and was very much
in excess of the increase being considered," the lawsuit states.
Then in April of 2010, the board cancelled plans to construct the
Pee Dee plant, and reclassified the prepaid expenses, which
"artificially inflated the financial condition of Santee Cooper,"
the lawsuit alleges.
In September 2012, Santee Cooper announced the board approved a
two-year rate hike totaling a 7 percent increase, but then, the
lawsuit alleges, began charging rates at about 10 percent higher.
This rate hike was not presented or discussed at public hearings,
as required by law, the suit claims.
To date, the Chinese Power Plant kit sits unassembled and unused
at the Pee Dee property in Kingsburg, Florence County, the suit
states. Santee Cooper continues to spend about $13 million per
year for maintenance and security, and about $3.5 million annual
to keep the equipment in working condition.
The suit claims Santee Cooper approved financing of the plant
without ensuring the necessary permits would be issued and
continues to pass the costs of the plant on to customers, "causing
continued damage to the rate payers," and charging customers
illegal electricity rates.
The paperwork filed seeks to certify the matter as a class action,
grant judgment in favor of the class for their damages, attorney's
fees, and other remedy to which they may be entitled, grant any
further relief that the court deems proper. [GN]
SENTRY LIFE: Faces "Maxon" Suit in M. Dist. of Fla.
---------------------------------------------------
A class action lawsuit has been filed against Sentry Life
Insurance Company. The case is styled as Prudence F. Maxon,
individually and On Behalf of all others similarly situated,
Plaintiff v. Sentry Life Insurance Company, Defendant, Case No.
6:17-cv-01569-PGB-TBS (M.D. Fla., August 29, 2017).
Sentry Life Insurance Company provides insurance services.[BN]
The Plaintiff is represented by:
John Allen Yanchunis, Sr., Esq.
Morgan & Morgan, Tampa P.A.
7th Floor
One Tampa City Center
201 N Franklin Street
Tampa, FL 33602-5157
Tel: (813) 223-5505
Fax: (813) 223-5402
Email: jyanchunis@forthepeople.com
SHORETEL INC: Faces "Scarantino" Suit Over Proposed Mitel Merger
----------------------------------------------------------------
Louis Scarantino, individually and on behalf of all others
similarly situated v. Shoretel, Inc., Don Joos, Marjorie Bowen,
Mark Bregman, Kenneth Denman, Charles Kissner, Shane Robison,
Constance Skidmore, Josef Vejvoda, Mitel US Holdings, Inc., Shelby
Acquisition Corporation, and Mitel Networks Corporation, Case No.
4:17-cv-04857-YGR (N.D. Cal., August 21, 2017), stems from a
proposed transaction announced on July 27, 2017, pursuant to which
ShoreTel, Inc. will be acquired by affiliates of Mitel Networks
Corporation for $7.50 per share in cash.
According to the complaint, Shoretel filed a filed a
Solicitation/Recommendation Statement with the U.S. Securities and
Exchange Commission in connection with the Proposed Transaction.
However, the Solicitation Statement omits or misrepresents
material information concerning, among other things: (i)
Relationship with Parent and the Offeror; and (ii) Background of
the Offer; Reasons for Recommendation. The failure to adequately
disclose such material information constitutes a violation of the
Exchange Act as stockholders need such information in order to
cast a fully-informed vote in connection with the Proposed
Transaction. The Complaint says the Proposed Transaction will
unlawfully divest Shoretel's public stockholders of the Company's
valuable assets without fully disclosing all material information
concerning the Proposed Transaction to Company stockholders. To
remedy the Defendants' Exchange Act violations, Plaintiff seeks to
enjoin the stockholder vote on the Proposed Transaction unless and
until such problems are remedied.
Shoretel, Inc. provides businesses with communication solutions,
comprised of integrated voice, video, data, and mobile
applications based on Internet Protocol technologies that make
interactions simple. [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 -
Brian D. Long, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Telephone: (302) 295-5310
E-mail: bdl@rl-legal.com
SITE SERVICES: Faces "Duque" Suit in E.D. of New York
-----------------------------------------------------
A class action lawsuit has been filed against Site Services Group,
Inc. The case is styled as Enry Duque, on behalf of himself and
others similarly situated, Plaintiff v. Site Services Group, Inc.
and Bradford May a/k/a Brad May, Defendants, Case No. 2:17-cv-
05094 (E.D. N.Y., August 29, 2017).
Site Services Group, Inc. offers landscaping services.[BN]
The Plaintiff appears PRO SE.
SOLARCITY CORP: Calif. Court Dismisses Securities Class Action
--------------------------------------------------------------
Shearman & Sterling LLP, in an article for Lexology, wrote that on
August 11, 2017, Judge Lucy H. Koh of the United States District
Court for the Northern District of California dismissed a putative
securities class action brought against SolarCity Corp.
("SolarCity") and four of its senior officers that alleged the
defendants made materially misleading misrepresentations in
SolarCity's SEC filings, written communications with investors,
and quarterly earnings calls with analysts. In re SolarCity Corp.
Sec. Litig., No. 5:16-cv-4686, 2017 WL 3453387 (N.D. Cal. Aug. 11,
2017). Plaintiffs asserted a claim under Section 10(b) of the
Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-
5 thereunder against all defendants, and a claim under Section
20(a) of the Exchange Act against the individual defendants. In
dismissing the complaint and granting leave to amend, the Court
held that plaintiffs had not adequately alleged that any of the
defendants had either made actionable false or misleading
statements or acted with the requisite fraudulent intent.
SolarCity provides solar energy systems for commercial and
residential use. Plaintiffs alleged that from May 2015 until
May 2016, SolarCity misled investors about key operational metrics
that tracked (i) the number of customers who had installed or were
contracted to install one of its systems, (ii) the number of
contracts with customers who had agreed to use energy developed by
SolarCity, (iii) megawatt production capacity SolarCity systems,
and (iv) recurring payments due from customers. Plaintiffs
alleged that these metrics were inflated because SolarCity's
customer contracts were unreliable due to overly aggressive sales
practices and because demand for the company's products was
falling. According to plaintiffs, once the true financial
condition was disclosed, SolarCity's stock price plummeted more
than 50 percent.
Judge Koh held that all of the alleged misstatements were
nonactionable because they are either (i) forward-looking
statements that are protected by the Private Securities Litigation
Reform Act's ("PSLRA") Safe Harbor, (ii) nonactionable statements
of corporate optimism, or (iii) statements that are true and not
misleading. Judge Koh initially determined that various alleged
misstatements were protected by the PSLRA Safe Harbor because
those statements were both forward-looking and accompanied by
meaningful cautionary language. In particular, the Court found
that the alleged statements concerning SolarCity's predictions
regarding its key performance metrics were both forward-looking
and expressly referenced the potential lack of demand in the
company's products and services and warned that the predictions
were subject to risks and uncertainties that could cause actual
performance or results to differ. The Court also agreed with
defendants' argument that many of the alleged misstatements at
issue were statements of corporate optimism that were vague and
generalized statements of "mere puffing" that could not give rise
to a claim. Such statements include that the company was
"extremely bullish" on certain markets, was "highly optimistic"
about the U.S. market, and anticipated that it would close out the
fiscal year "with greater strength, momentum and record results as
well as set the stage for continued strong growth for 2016 and
beyond." Separately, Judge Koh held that plaintiffs had failed to
allege specific facts indicating that any of the remaining alleged
misstatements were untrue or misleading. For example, while
plaintiffs alleged that some customer contracts were "low
quality," they did not allege how many "low quality" contracts
there were and how those contracts were not adequately reflected
in the Company's reported performance metrics. In this regard,
Judge Koh concluded that plaintiffs had not adequately alleged
that the disclosure of any omitted fact would have altered the
total mix of information. For all of these reasons, the Court
dismissed the Section 10(b) claim against all defendants, and also
dismissed the Section 20(a) claim against the individual
defendants because plaintiffs failed to plead a primary securities
law violation.
Anticipating an amended complaint, Judge Koh then addressed other
defects in the plaintiffs' operative complaint. Foremost, the
Court noted that even if it were to assume that the alleged
misstatements were misleading, the complaint failed to adequately
allege that defendants had acted with the requisite scienter.
While plaintiffs relied on statements from a number of
confidential witnesses that suggested demand for SolarCity
products and services was in decline, the Court found that these
witness statements failed to allege that this information was
known by the SolarCity officers when any of the alleged
misstatements were made. Nor had plaintiffs alleged any specific
admissions by the SolarCity officers showing that they were
involved in the details of tabulating business metrics such that
they knew the alleged misstatements at issue were false. For
these reasons, the Court found that the "general" and "vague"
statements of the confidential witnesses did not create a strong
inference of scienter. Separately, the Court found that one of
the individual defendants, SolarCity's Chief Revenue Officer,
cannot be held liable because he did not make any of the allegedly
false and misleading statements. Citing the U.S. Supreme Court's
decision in Janus Capital, which held that a person can only be
held liable under Section 10(b) for false or misleading statements
if he or she is the "maker of a statement," Judge Koh found that
the Chief Revenue Officer had not prepared or published any
statement at issue on behalf of another. Notably, Judge Koh
disagreed with plaintiffs and Judge Rakoff's decision in City of
Pontiac Gen. Emps.' Ret. Sys. v. Lockheed Martin Corp., 875 F.
Supp. 2d 359 (S.D.N.Y. 2012), which held that Janus involved a
"third party" and is not applicable to corporate officers. Here,
Judge Koh reasoned that in Janus, the Supreme Court's
interpretation of the word "make" in Rule 10b-5 "was based on the
text of the regulation and not the circumstances of the parties."
This case highlights the various hurdles that plaintiffs must
overcome in order to survive a motion to dismiss a securities
fraud claim, and reinforces that plaintiffs are required to allege
specific and particularized facts to plead material
misrepresentations with the requisite scienter. [GN]
SONY MOBILE: Settles Xperia Water Damage Class Action
-----------------------------------------------------
Hardocp reports that a federal court in New York ruled against
Sony in a case that involved the waterproof capabilities of 24
Xperia models. Owners of the devices named in the lawsuit are
entitled to have their warranty coverage for water damage extended
by one year for models still in production, and 6 months for
devices that are out of warranty. Also if you had a claim for
water damage rejected by Sony, you are entitled for reimbursement
of 50% of the devices MSRP.
Sony is quite a large company to put it mildly, but offering 50%
refund on phones like the Z3+ that launched at $710, this could
turn out to be quite expensive for them. If you need to submit a
claim, you can find the website for the lawsuit at
http://www.xperiawaterproofsettlement.com/
The case revolves around Sony's "misrepresentation" of the named
devices as being waterproof even though the plaintiffs claim that
the products were not designed for ordinary underwater use. The
plaintiffs, on behalf of the Class, state that "Sony exploited
certain international water resistance ratings in order to launch
a deceptive marketing campaign promoting the Devices. [GN]
SOPHIE'S CUBAN: Faces "Wu" Suit in S. Dist. of New York
-------------------------------------------------------
A class action lawsuit has been filed against Sophie's Cuban
Cuisine Inc. The case is styled as Kathy Wu and on behalf of all
other persons similarly situated, Plaintiff v. Sophie's Cuban
Cuisine Inc. and Sophie's Cuban Cuisine Franchising, Inc.,
Defendants, Case No. 1:17-cv-06533 (S.D. NY, August 28, 2017).
The Defendants operate a food services enterprise self-entitled as
Sophie's Cuban. The food services enterprise includes eight
Sophie's Cuban Restaurants in various New York locations.[BN]
The Plaintiff appears PRO SE.
STANDARD BANK: Braces for Class Action Over Sale in Execution
-------------------------------------------------------------
Ilze-Marie Le Roux, writing for Eyewitness News, reports that
at least one of the country's four banks has confirmed it has
started preparing should a R60 billion class action lawsuit go
ahead.
Banking giants FNB, Absa, Nedbank and Standard Bank could soon
face the R60 billion class action lawsuit should the
Constitutional Court agree to hear the matter.
The financial institutions could be taken to the Constitutional
Court for selling the properties of 219 defaulters at a fraction
of their value.
This claim has been flatly denied by Standard Bank.
It has already appointed external counsel to deal with the matter
should it end up in court.
The bank says a sale in execution is always done as a last resort,
adding that every effort is made to avoid a sale under so-called
distressed conditions.
The bank has, however, vowed to probe any allegations of
misconduct. [GN]
SUSHI 21: "Chen" Action Seeks Spread-of-Hours, Overtime Pay
-----------------------------------------------------------
Jun Chen, on behalf of himself and others similarly situated,
Plaintiff, v. Sushi 21 NY Inc. d/b/a Sushi 21, and Shan Chen a/k/a
Sam Chen, Defendants, Case No. 1:17-cv-06153 (S.D. N.Y., August
15, 2017), seeks to recover unpaid minimum wages, unpaid overtime
compensation, unpaid "spread of hours" premium, liquidated
damages, prejudgment and post-judgment interest, attorneys' fees
and costs pursuant to the Fair Labor Standards Act, New York Labor
Law and the New York State Wage Theft Prevention Act.
Plaintiff worked as a deliveryman for Defendants' Japanese
restaurant at 174 Seventh Avenue, New York, NY 10011. [BN]
Plaintiff is represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Blvd., Suite 119
Flushing, NY 11355
Tel: (718) 762-1324
Fax: (718) 762-1342
Email: johntroy@troypllc.com
SUSHIRRITO NYC: Faces "Wu" Suit in S.D.N.Y.
-------------------------------------------
A class action lawsuit has been filed against Sushirrito NYC 23rd,
LLC. The case is styled as Kathy Wu and on behalf of all other
persons similarly situated, Plaintiff v. Sushirrito NYC 23rd, LLC
and Sushirrito NYC BP, LLC, Defendant, Case No. 1:17-cv-06532
(S.D.N.Y., August 28, 2017).
Sushirrito NYC 23rd, LLC is engaged in restaurant business.[BN]
The Plaintiff is represented by:
Justin Alexander Zeller, Esq.
The Law Office of Justin A. Zeller, P.C.
277 Broadway, Suite 408
New York, NY 10007
Tel: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
TEMPUR SEALY: Seeks Dismissal of Data Breach Class Action
---------------------------------------------------------
Joyce Hanson and Shayna Posses, writing for Law360, report that
Tempur Sealy International Inc. and its former website host, Aptos
Inc., asked a Georgia federal judge on Aug. 18 to toss a proposed
class action alleging the companies' lack of security left
consumers vulnerable to a 2016 data breach, arguing the consumer
who filed the suit failed to show she had been harmed.
Both Tempur Sealy and Aptos in their separate motions to dismiss
the suit asserted that lead plaintiff Michelle Provost lacks
Article III standing because she failed to establish any "injury
in fact." The mattress retailer also said Provost could trace the
breach to Aptos only, while Aptos said Provost failed to allege
either that she reviewed Tempur Sealy's privacy policy before
making her purchase or that Aptos gave her information about
security risks on which she relied in making her purchase.
Tempur Sealy asserted that Provost wrongly seeks to hold it liable
for an alleged criminal third-party data breach of Aptos'
independent, unaffiliated third-party systems that began in
February 2016.
"Plaintiff's own complaint allegations make clear that her
information was compromised, if at all, during a breach of Aptos
Inc.'s systems," Tempur Sealy said. "Plaintiff does not allege
that Tempur Sealy's systems were breached, that Tempur Sealy or
its systems were in any way used to perpetrate the breach, or that
any of her personal information was compromised while in the
possession, custody or control of Tempur Sealy."
Aptos, meanwhile, said that Provost failed to allege any
actionable claims against the website host, and that she found
merely one charge on her bank statements dated April 22, 2016,
that she believed might involve a fraudulent charge.
"Plaintiff's speculation as to one possible fraudulent charge is
too slender a reed on which to base Article III standing," Aptos
said. "And given that plaintiff only identifies a single
suspected fraudulent charge despite alleging that the data breach
began in February 2016, plaintiff cannot show threatened future
harm to be certainly impending or a substantial risk for purposes
of demonstrating an injury-in-fact."
Provost's June 12 proposed class action complaint accuses Tempur
Sealy and Aptos of lax security practices that opened the door to
the 2016 data breach that compromised sensitive data such as
customers' names, phone numbers, payment card account numbers and
card expiration dates, saying the mattress company then failed to
inform customers about the breach in a timely fashion.
Until October, Atlanta-based Aptos hosted and maintained Tempur
Sealy's website and online payment system, according to the
complaint. In early 2016, intruders took advantage of security
failures that allowed them to access and instruct malware to
capture payment card information provided to Aptos for 40 online
retailers, including Tempur Sealy, the suit alleges.
Aptos discovered the security breach in November, and -- after
being told by law enforcement to hold off on notifications --
informed the mattress retailer and other clients about the
incident in February, according to the suit. The website host
took no steps to tell consumers about the breach, instead leaving
notification up to the affected businesses, the suit says.
Tempur Sealy didn't tell customers about the breach until almost
two months later, finally informing shoppers in April that
personal information provided for online purchases prior to
October may have been compromised, according to the complaint. The
companies still haven't disclosed the extent of the breach,
including how many consumers were affected, the suit says.
The breach was made possible by the companies' knowing failure to
comply with best practices and industry standards for protecting
personal information, even though Tempur Sealy says in its privacy
policy that the retailer uses reasonable safeguards to help
protect customer data from unauthorized access, the complaint
says.
A portion of what customers paid for Tempur Sealy's products
should have gone to ensuring compliance with data protection
measures, meaning consumers incurred actual monetary damages
because they overpaid for privacy protections they didn't receive,
according to the suit.
Customers also suffered a number of other injuries, including
unauthorized bank account withdrawals and related fees, which is
precisely what happened to Provost, she says. After learning in
April that her debit card information was compromised in the
breach, the New York resident reviewed her bank statement and
found at least one fraudulent charge for which she never received
reimbursement, Provost alleges.
In addition to these charges, Provost and other consumers had the
value of their personal information take a hit and are at
increased risk of future fraud, identity theft and misuse, the
complaint says.
Representatives for the parties didn't immediately return requests
for comment on Aug. 21.
Michelle Provost is represented by David J. Worley --
David@ewlawllc.com -- James M. Evangelista -- jme@ewlawllc.com --
and Kristi Stahnke McGregor -- Kristi@ewlawllc.com -- of
Evangelista Worley LLC, William B. Federman of Federman &
Sherwood, and Gary S. Graifman and Jay I. Brody of Kantrowitz
Goldhamer & Graifman PC.
Tempur Sealy International is represented by Kristine M. Brown --
kristy.brown@alston.com -- and Donald M. Houser --
donald.houser@alston.com -- of Alston & Bird LLP.
Aptos is represented by James F. Bogan III --
Jbogan@kilpatricktownsend.com -- C. Allen Garrett Jr. --
Agarrett@kilpatricktownsend.com -- and Jeffrey H. Fisher --
JFisher@kilpatricktownsend.com -- of Kilpatrick Townsend &
Stockton LLP.
The suit is Michelle Provost v. Aptos Inc. and Tempur Sealy
International Inc., Case No. 1:17-cv-02120 (N.D. Ga.). The case
is assigned to Judge Eleanor L. Ross. The case was filed June 9,
2017. [GN]
TEVA PHARMACEUTICALS: Kaufman, Coren & Ress Files Class Action
--------------------------------------------------------------
Kaufman, Coren & Ress, P.C., on Aug. 23 disclosed that it filed a
class action lawsuit in the U.S. District Court, Eastern District
of Pennsylvania, 17-CV- 003743, on behalf of purchasers of Teva
Pharmaceutical Industries Ltd. ("Teva") American Depository Shares
("ADSs") on the New York Stock Exchange ("NYSE") and/or common
stock on the Tel Aviv Stock Exchange ("TASE") between November 15,
2016 and August 2, 2017, inclusive ("Class Period"), alleging
violations of the federal securities laws.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 23, 2017. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Deborah
Gross, Esq. -- dgross@kcr-law.com -- or 215-735-8700. Any member
of the putative class may move the Court to serve as lead
plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member.
The Complaint charges Teva and certain of its officers and/or
directors with violations of the Securities Exchange Act of 1934.
Teva develops, manufactures, markets, and distributes generic
medicines. The Complaint alleges that during the Class Period,
defendants issued materially false and misleading statements
and/or failed to disclose adverse information regarding Teva's
business and outlook. Specifically, the Complaint alleges that the
poor performance of its U.S. generics business resulted in Teva's
recording a goodwill impairment charge related to the acquisition
of Actavis Generics and was a key factor in cutting Teva's
dividend by 75%.
Defendants' disclosed on August 3, 2017, the goodwill impairment
charge of $6.1 billion in the second quarter of 2017, and lower
than expected Q2 results attributed to the accelerated price
erosion and decreased volume experienced in the U.S. generics
business due to customer consolidation, greater competition, and
delayed product launches. In reaction to these announcements,
Teva shares dropped from closing prices of 111.30 (ILS) per common
share and $31.25 per ADS on August 2, 2017, to a new 52-week low
closing price of 71.28 (ILS) per common share on August 6, 2017,
and $20.60 per ADS on August 4, 2017, on heavy two-day trading
volume.
Plaintiff seeks to recover damages on behalf of all purchasers of
Teva, ADS, and common stock during the Class Period. The
plaintiff is represented by Kaufman, Coren & Ress, P.C., which is
experienced in prosecuting investor class actions including
actions involving financial fraud. [GN]
TOMORROW TELECOM: "Monroe" Suit Seeks to Recover Unpaid OT Wages
----------------------------------------------------------------
Beonka Monroe, on behalf of herself and other persons similarly
situated v. Tomorrow Telecom Incorporated and Tomorrow PCS, LLC,
Case No. 2:17-cv-08072 (E.D. Lo., August 21, 2017), seeks to
recover unpaid overtime wages, interest, liquidated damages, and
attorneys' fees and costs pursuant to the Fair Labor Standards
Act.
The Defendants operate a telecommunication company in Kenner,
Louisiana. [BN]
The Plaintiff is represented by:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
Emily A. Westermeier, Esq.
BEAUMONT COSTALES LLC
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534-5005
E-mail: rlc@beaumontcostales.com
whb@beaumontcostales.com
eaw@beaumontcostales.com
TOP SHIPS: Robbins Geller Rudman Files Securities Class Action
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Aug. 23
disclosed that a class action has been commenced on behalf of
purchasers of Top Ships Inc. ("Top Ships") (NASDAQ:TOPS) common
stock during the period between January 17, 2017 and August 22,
2017 (the "Class Period"). This action was filed in the Eastern
District of New York and is captioned Brady v. Top Ships Inc., et
al, No. 17-cv-4987.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 23, 2017. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiffs counsel, David C.
Walton of Robbins Geller, at 800/449-4900 or 619/231-1058, or via
e-mail at davew@rgrdlaw.com. If you are a member of this class,
you can view a copy of the complaint as filed at
http://www.rgrdlaw.com/cases/topships/. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member.
The complaint charges Top Ships, certain of its officers and/or
directors and Kalani Investments Limited and certain of its
related entities ("Kalani") with violations of the Securities
Exchange Act of 1934. Top Ships is an international owner and
operator of tanker vessels focusing on the transportation of crude
oil, petroleum products and bulk liquid chemicals.
The complaint alleges that through his control of Top Ships, the
Company's CEO, Evangelos J. Pistiolis ("Pistiolis"), caused Top
Ships to engage in a series of manipulative share issuance/sales
transactions with Kalani through which Top Ships would sell its
common shares and securities convertible into common shares to
Kalani at a significant discount to market price and file
registration statements so that Kalani could resell these shares
into the market. When Kalanis sales of Top Ships stock caused the
price of Top Ships stock to decline, the Company would reverse
split the stock, causing a certain number of outstanding shares to
be merged into a single share, and thereby raise the price of Top
Ships stock. Then, Top Ships would again sell securities to
Kalani and the same pattern of transactions would ensue. At the
same time that Top Ships was engaging in these transactions,
defendants failed to disclose the true purpose of the transactions
and related stock issuances and reverses -- to finance related-
party transactions and acquisitions that primarily benefited
Pistiolis and his related companies, and otherwise funnel money to
Company insiders.
By August 2017, Top Ships, through Kalani, had issued and sold
into the market tens of millions of shares of its common stock,
vastly diluting the Company's existing shareholders. While Top
Ships has used the proceeds from these offerings to further enrich
Pistiolis and his affiliates through various related-party
transactions, the value of Top Ships common stock has plummeted by
more than 99%.
Plaintiff seeks to recover damages on behalf of all purchasers of
Top Ships common stock during the Class Period (the "Class"). The
plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud.
Robbins Geller -- http://www.rgrdlaw.com-- is a law firm advising
and representing U.S. and international investors in securities
litigation and portfolio monitoring. With 200 lawyers in 10
offices, Robbins Geller has obtained many of the largest
securities class action recoveries in history. [GN]
TRUMP VILLAGE: Class Action Mulled Against Co-op Board
------------------------------------------------------
Aaron Elstein, writing for Crain's New York Business, reports that
Faina Shvadronova and her 8-year-old son, Jerry, emigrated from
the Soviet Union to Brooklyn in 1979. She found work cracking
eggs at a bakery and taking care of an elderly couple, while Jerry
helped furnish their Borough Park apartment by scavenging for
tables and chairs off the streets. A few years ago the breast
cancer Shvadronova thought had gone into remission returned. She
died at age 68 in February 2016.
For all her struggles, Shvadronova managed to leave something
substantial behind for Jerry: a two-bedroom co-op in Coney Island
that she bought for about $30,000 in 1993.
The apartment, in a complex called Trump Village, was built in
1964 by Donald Trump's father, Fred. It was the first project the
young Donald worked on as a developer and the first property the
family named for itself. Trump Village consists of seven 23-story
towers housing 3,700 co-op and rental apartments close to the
beach. To help pay for the $70 million project ($564 million in
today's dollars), Fred Trump turned to a state and city program
called Mitchell-Lama that granted him financial incentives in
exchange for building affordable housing. The Trumps owned parts
of Trump Village until 2003, when the family sold them and other
outer-borough properties for $600 million four years after Fred
died.
In spite of the constraints imposed by Mitchell-Lama-landlord
profits were capped, and residents were barred from selling their
apartments for more than they paid-nearly 140,000 affordable units
were built under the program between the late 1950s and the early
1980s. Demand far outstrips supply: Middle-class New Yorkers who
qualify under the income requirements routinely have to wait years
to get one.
Shvadronova waited at least five years for hers, recalled Jerry, a
librarian who is now 45 and has shortened his last name to
Shvadron. "The apartment was my mother's great achievement," he
said.
To pass that achievement on to her son, Shvadron's mother placed
ownership in a trust that named him the sole beneficiary. After
her death he prepared to move into her apartment with his two
daughters and his wife, a secretary at Coney Island Hospital.
Something important had changed, however, since his mother bought
the place: Trump Village was no longer the affordable-housing
complex that Fred Trump had built. Much as Donald left behind his
father's vision of building apartments for teachers and police
officers to focus on luxury condos, in 2007 Trump Village
residents voted to leave the Mitchell-Lama program, which meant
they were free to sell their apartments for whatever the market
would bear. It also meant the apartment Shvadron inherited was
worth serious money -- $400,000, by his estimation. His good
fortune didn't sit well with the Trump Village co-op board, which
refused to let him move in without coughing up a hefty sum that
would have made the apartment unaffordable.
"Trump Village is defying my mother's very clear wishes," said
Shvadron, who sued to get his apartment. The co-op fired back by
suing him for libel after he criticized building management, the
second such suit filed against one of its residents.
The war inside Trump Village provides a vivid example of the
fights taking place as more of New York's affordable housing is
converted into market-rate apartments. In the past 20 years,
owners of 38,000 Mitchell-Lama apartments, representing 28% of the
program's housing, have left. That has depleted the city's
affordable-housing supply and poses a formidable challenge to
Mayor Bill de Blasio, who has promised to preserve or create
200,000 affordable units. As additional Mitchell-Lama apartments
look to enter the market, more battles loom for control of these
valuable properties.
"Mitchell-Lama was one of the most successful affordable-housing
programs ever," said Erica Buckley, a partner at law firm Nixon
Peabody and former chief of the state attorney general's Real
Estate Finance Bureau, where she reviewed the plans of buildings
looking to exit the program. "As apartments leave, it has caused
lots of complications."
Trumpian salesmanship
Fred Trump used the sort of puffery Donald would make famous when
describing his newly built Trump Village. He called it a "miracle
mile [of] luxury housing" featuring "a Taj Mahal of aesthetically
appealing apartment houses [that would] combine resort living with
city life," according to Gwenda Blair's book The Trumps: Three
Generations That Built an Empire.
In reality, the apartments didn't come with air conditioning, and
the buildings resembled many of the austere public-housing blocks
rising up at the time. An architect whose firm designed Trump
Village acknowledged as much. "The aesthetics of that job were
not great," he said.
Trump Village was built under a program designed to address a
problem in 1950s New York that sounds familiar today: lack of
affordable housing for a surging population. In an effort to ease
the shortage, in 1955 state lawmakers MacNeil Mitchell and Alfred
Lama sponsored the Limited Profit Housing Companies Act, which
offered low-interest loans and property-tax reductions to
developers who agreed to build housing where their annual return
would be capped at 6% for 50 years.
Few developers were interested, so a few years later the law was
amended to say Mitchell-Lama properties could be rented or sold
for whatever the market would bear after 35 years. It was
subsequently lowered to 20 years if the mortgage was paid off.
The last tweak made affordable-housing development sufficiently
attractive, especially for developers who built large complexes to
help offset the small profit margins. Investors in Mitchell-Lama
projects included Bob Dylan, once part owner of an apartment
building in Rockaway, Queens. (That's right, the author of the
song that begins, "Dear landlord / Please don't put a price on my
soul" was once a New York landlord.)
In all, developers built 66,000 Mitchell-Lama rental units and
69,000 co-ops before the program petered out and the Reagan tax-
reform package of 1986 marked its death knell. The new law
discouraged investors in rental properties from using "passive
losses," such as depreciation costs, to offset wages or other
sources of "active income." As a result, "people with high active
incomes were no longer motivated to invest in real estate as a tax
shelter," said Tom Waters, a housing-policy analyst at the
Community Service Society, a research nonprofit.
Since 1990 half of Mitchell-Lama rentals have left the program,
according to Waters' research, as landlords who waited decades to
charge market-rate rents began to do so. Last decade Mayor
Michael Bloomberg began offering owners millions' worth of
incentives to keep apartments in the program, and de Blasio and
Gov. Andrew Cuomo have done the same.
Most co-ops have so far elected to remain in the program because
their property taxes would soar if they left. Property-tax bills
jumped to $8 million a year from $1.6 million after residents at
Southbridge Tower in lower Manhattan narrowly voted to exit
Mitchell-Lama in 2014, resulting in steep monthly maintenance
increases for tenants, Manhattan Borough President Gale Brewer
testified at a City Council hearing last year. Even so, soaring
housing prices are intensifying pressure on co-ops to leave
Mitchell- Lama so residents can sell their apartments for big
sums. Buckley wrote in a Law360 article last year that of the 20
co-ops eligible to leave, two have had exit plans approved by the
attorney general's office, and at least five others were
considering it.
One of the first co-ops to take the plunge was Trump Village.
No entry
It didn't take Shvadron long to realize he wouldn't be able to
move into his mother's apartment without a fight. He visited the
place two weeks after she died, only to find it blocked off by
packing tape. "It looked as if a crime had been committed
inside," he said.
Trump Village management wrongly told him his trust documents had
been shredded, and before moving in he had to pay a $100,000
transfer fee. Such fees, also known as flip taxes, are commonly
levied by co-ops when residents sell their apartments. But
Shvadron understood that, under the building's bylaws, children
inheriting apartments from parents were exempt from flip taxes.
Residents had insisted such language be included when they voted
to leave Mitchell-Lama.
"Without the clause carving out children from flip taxes, I don't
think people would have voted for conversion," said Allan Grody, a
Wall Street executive whose parents moved into Trump Village
around 1968 and whose mother lived there until she died in 2013 at
age 100. Grody shared a copy of the bylaws that reads, "Bequests
by stockholders and bona fide gifts by stockholders to members of
their immediate family are exempt from the transfer fee." Trump
Village attorney Dean Roberts asserts that apartments are not
exempt from flip taxes if they're transferred to a trust before
being passed to an individual.
After the tape incident Shvadron turned to the co-op's general
manager and former president, Igor Oberman. The two men hailed
from the same city of Gomel, Belarus, emigrating two years apart,
and many years ago Shvadron's uncle helped Oberman's father get a
job as a plumber's assistant. But those ties meant little when
control of a vacant apartment was in question. Oberman threatened
to have the locks changed and call the police if Shvadron tried to
get inside his mother's apartment, according to court documents.
He also urged Shvadron to sell his nearby apartment to demonstrate
he really planned to live in Trump Village, which Shvadron did.
Nevertheless, last summer the co-op board unanimously denied
Shvadron's application to move in.
Oberman represented a generation of owners remaking Trump Village
after it left Mitchell-Lama. A former Taxi and Limousine
Commission attorney and City Council candidate, he joined the co-
op board in 2010 and became president in 2012, not long before
Superstorm Sandy blew through. The storm not only caused more
than $10 million worth of damage, but apartment sales also
collapsed because nobody wanted to buy property in a flood zone.
Trump Village's flip-tax revenue fell by 35%, or $700,000,
according to city records, and accountants warned of a serious
budget shortfall at the co-op that over the years had grown into
an enterprise with more than $16 million in annual revenue.
Oberman figured the best way to shore up the co-op's balance sheet
was to make the place more attractive to families priced out of
Brooklyn's brownstone neighborhoods. He directed the organization
to spend $250,000 on playground equipment and an indoor playroom.
The co-op also changed its formal name from Trump Village Section
4 Inc. to the more inviting Trump Village West.
The strategy quickly paid dividends. Trump Village sales and
property values picked up as memories of Sandy faded. The median
price of a Coney Island co-op has risen by 58% since 2012,
according to the Real Estate Board of New York, double the rate of
increase in Brooklyn overall.
While the fortunes of the neighborhood and the co-op improved,
plenty who bought their apartments in the Mitchell-Lama days
remained. If these residents were to sell, the co-op would not
only collect at least 20% of the sale proceeds in flip taxes, but
because bylaws give the co-op the right to match any potential
buyer's offer, it could also accumulate an inventory of apartments
to sell into the red-hot market and generate even more revenue for
improvements and upkeep. City records show that the co-op bought
one apartment from a resident for $200,000 in December 2015 and
sold it four months later for $370,000. It bought another for
$200,000 in May 2015, which it sold 14 months later for $470,000.
"The gestalt is to get the old-timers out," said Grody. "Buildings
are being refurbished. Coney Island is being dressed up. It's
the rebirth of Brooklyn. The losers are people looking for
affordable housing."
Oberman said he had "no idea what this allegation is" and added
that Trump Village supports longtime residents, noting that the
board contributes $100,000 annually to the nonprofit Jewish
Association Serving the Aging.
Justice Department charges
Nonetheless, in 2015 the U.S. Justice Department charged Oberman
and the co-op with unlawfully attempting to evict residents,
citing a "pattern or practice of discrimination against
residents." The feds said Oberman allegedly began eviction
proceedings against a resident who had a dog in violation of
building rules at the time. It turned out the dog owner was a
veteran of combat in Afghanistan who under federal law had the
right to own a pet-a shih tzu named Mickey-to help cope with post-
traumatic stress disorder. Prosecutors also accused Oberman and
Trump Village of threatening to evict three other dog-owning
residents, denying them preferred parking spaces and retaliating
against one by removing the person from the co-op board.
The case came after the U.S. Department of Housing and Urban
Development charged Oberman and Trump Village in 2015 with
freezing people on the waiting list for parking spaces and
leapfrogging at least one person to the top of the line.
Oberman, who stepped aside as co-op board president in 2015, said
Trump Village is now pet-friendly and the Justice Department case
was settled confidentially in July.
In the meantime Oberman faces other legal challenges. As part of
the strategy to market Trump Village apartments to families, a
photo showing him with his wife and young child was put on the co-
op's marketing materials at the same time he was running for City
Council. In May the Campaign Finance Board staff determined that
Oberman illegally used co-op cash to promote his unsuccessful
campaign, according to records obtained by Crain's under the
Freedom of Information Law. He and his campaign face up to
$25,000 in penalties and restitution, although a lawyer for
Oberman, Laurence Laufer, said he believes the case will be
dismissed without financial penalties at an administrative hearing
scheduled for Aug. 21. In 2014 the city fined Oberman $7,500
after saying he used his TLC workplace phone to raise money for
his campaign.
Shvadron knew of Oberman's troubles and plenty about his
background when he confronted Oberman about taking possession of
his mother's apartment. When Shvadron lashed out in frustration,
he knew how to make it hurt.
"You know, people say you're a Russian gangster. They fear you're
part of the mob," Shvadron recalled telling Oberman, who remembers
the exchange differently, saying in court papers that Shvadron
accused him of running "a scam," of being a "Russian f--king
gangster" and "a f--king connected mobster."
What's not in dispute is that after that exchange, Shvadron posted
a petition on moveon.org urging fellow residents to storm the
barricades. "We are the shareholders of Trump Village, and we are
tired of being treated unfairly by the management," the
proclamation read. "We are tired of being afraid to speak up
against the management. Stop Trump Village harassment and
intimidation of its shareholders and residents."
"The gestalt is to get the old-timers out. It's the rebirth of
Brooklyn. The losers are people looking for affordable housing"
Oberman fired back by suing Shvadron for libel and slander earlier
this year. It was the second libel suit Oberman and Trump Village
filed against residents. The first was in 2014 against two women,
Julia Bezvoleva and Inna Yeselson, who under the online pseudonym
Josef Stalin called Oberman a "psychopath" and complained "Igor
Oberman spends corporate money for his personal retaliation
(eviction attempts)." They said he monitored neighbors with a
personal video camera and used security guards to threaten
residents who asked "inconvenient questions." The case has been
halted while Bezvoleva, a U.S. Army reservist, is deployed at an
undisclosed Middle East location. "The most authoritarian aspects
of Soviet life have found their way into Trump Village," Shvadron
said.
Oberman, who sold his Trump Village apartment last year but
remains the building manager, responded: "America has freedom of
speech but has limits. To defame reputations online will not be
tolerated, and I look forward to our day in court."
Buckley, the former attorney general's office official, said the
brawl at Trump Village should serve as a cautionary tale for co-
ops thinking about leaving Mitchell-Lama. One of the benefits of
sticking with the program is co-ops can turn to city or state
authorities to handle disputes, while residents in private co-ops
are left to fight their battles before a judge. "They have a
whole set of problems, no one to turn to, and they're begging for
a co-op or condo ombudsman that the Mitchell-Lamas have," she
said.
The wars of words within Trump Village may be only the start of a
long legal battle. Shvadron has found a potentially powerful ally
in Grody, the Wall Street executive who has his own beef with the
co-op.
Grody believes Trump Village charged him more than $9,000 in
excessive flip taxes when he sold his mother's apartment for
$185,000 after her death. He said the co-op's financial
statements may be materially distorted by improperly collected
flip-tax revenue and has submitted numerous requests for
information with the attorney general's office. He thinks the co-
op may be a corrupt organization and is looking to lead residents
in a class-action lawsuit against Oberman and the Trump Village
board. As a former partner at accounting firm Coopers & Lybrand
(now PwC), where he advised financial giants like Goldman Sachs
and JPMorgan, the 72-year-old Grody says he has the expertise,
patience and legal contacts to make his case.
"I'm doing this for my mother," he said. "She wouldn't be at all
happy with how things have gone at Trump Village." [GN]
UBER: Arbitration Provision Reinstated in Customer Agreements
-------------------------------------------------------------
Michael Hiltzik, writing for Los Angeles Times, reports that for a
brief, shining moment, a federal judge imposed the principle of
equality in Uber's dealings with its passengers. The judge was
Jed S. Rakoff of U.S. district court in New York, who in a price-
fixing lawsuit last year overturned an obscure provision of the
company's customer agreement that required all disputes to be
resolved by an arbitrator and barred class-action complaints.
Uber can breathe easier now, because that moment is over. On Aug.
18, a federal appeals court overruled Judge Rakoff and reinstated
the arbitration provision.
Even though Spencer Meyer, the customer who brought the lawsuit,
said he hadn't seen the arbitration language when he set up his
Uber account, the appeals court said he could have read it if he
wanted to. It was right there, lurking within a "terms and
conditions" page hyperlinked on his smartphone. Once he clicked
the "I agree" button to set up his account, however, he was sunk,
because the customer agreement incorporated the arbitration
mandate whether he agreed to it or not.
"Courts around the country have recognized that [an] electronic
'click' can suffice to signify the acceptance of a contract," the
appellate judges ruled.
You can count that as another example of a court that doesn't have
a clue about the real world.
Mr. Meyer's lawsuit alleges that Uber and its former CEO, Travis
Kalanick, were engaged in illegally price-fixing Uber fares.
(Kalanick was ousted as CEO earlier this year, but he's still on
the Uber board and fighting to stay involved.) After Mr. Meyer
filed his lawsuit seeking class-action certification in 2015,
Mr. Kalanick and Uber moved to throw out the lawsuit and force Mr.
Meyer into arbitration, citing the arbitration clause.
That's when Judge Rakoff cried foul.
Obama strikes a blow against the scourge of forced arbitration
It's proper to note that Judge Rakoff has been a long-term critic
of mandatory arbitration. In an article for the New York Review
of Books last November, he listed it as one of the chief factors
denying ordinary Americans their day in court. Arbitration
provisions, he wrote, were almost always the result of "one-sided
contracts imposed on weaker parties who have no realistic ability
to negotiate, let alone contest the terms."
Among those who routinely and implicitly agree to arbitration
clauses are employees, bank customers, software buyers and
physician and hospital patients. These clauses put all of them at
a disadvantage, because arbitrators can set their own standards
for evidence and don't have to set forth the reasoning behind
their decisions. The arbitration clauses typically forbid punitive
damages and class-action complaints. And although the clauses may
allow both sides to share in selecting the arbitrator, these rump
judges know where their bread is buttered; any given consumer may
land in arbitration once in his or her life, but a company is a
return client.
Judge Rakoff observed that federal courts have favored arbitration
for decades as a docket-paring device, but he pinpointed a 2011
Supreme Court decision involving AT&T wireless service, written by
Justice Antonin Scalia for a pro-business majority, as throwing
the door open even wider to the abridgment of Americans'
constitutional right to trial by jury.
He's not the only skeptic. In 2014, President Obama decreed by
executive order that complaints against federal contractors about
workplace discrimination or abuse could be arbitrated only with
the consent of the parties after the disputes arise. Surprise
arbitration clauses, in other words, were out. The rule,
naturally, is in the crosshairs of the Trump administration.
In his ruling against Uber in July 2016, Rakoff took aim at the
"legal fiction," bizarrely common among his fellow jurists, that
ordinary consumers have waived their right to a jury trial
"because they supposedly agreed to lengthy "terms and conditions"
they often weren't even aware of.
The Uber situation, he found, was a perfect example. He applied a
microscope to the Uber account registration process. This began
on Meyer's Samsung smartphone with a couple of screens that
invited the customer to enter their name, a password, their
address and their credit card information.
At the bottom of the second page was a hyperlink to Uber's "Terms
of Service & Privacy Policy," but that didn't need to be clicked
on to complete the account registration. Even if one does, the
user would simply be taken to yet another page requiring a further
click to access the policies themselves.
And what were they like? In Judge Rakoff's words, "nine pages of
highly legalistic language that no ordinary consumer could be
expected to understand." To Judge Rakoff, the presentation of the
arbitration clause indicated that "the creators of Uber's
registration screen hoped the eye would be drawn seamlessly to the
credit card information and register buttons instead of being
distracted by the formalities in the language below."
Who could possibly doubt that? The average consumer, having once
tried to navigate any of these "agreements," is all but
conditioned to skip them, click on "I agree" without a second
thought, and complete the transaction. When I tried to access
Uber's terms, I found them to be 6,000 words of legalese, with the
arbitration clause a 1,000-word block buried deep within the
whole.
On a smartphone, it's practically impossible to read them, much
less ponder them, as they come at least six or seven screens down.
If there's a way to print the entire agreement from an iPhone to
give it serious consideration other than by grabbing it screen by
screen, I couldn't find it. The agreement is accessible on Uber's
website, but Uber's entire business model is built around
smartphone use, not the Web. Its pitch is that users will find it
quick and easy to sign up, sign in and order a car; the hassle of
digging out the arbitration agreement and reading it is exactly
what it knows its target audience doesn't want. And of course
there's no way to opt out of the arbitration clause, unless you
don't want an Uber account at all.
The appellate judges who examined Judge Rakoff's ruling seemed to
be utterly oblivious to all this. Their conclusion, written by
Appeals Judge Denny Chin, was that the arbitration clause was
accessible enough. The hyperlink to the terms and conditions was
on the same page as the account registration button -- never mind
that the terms and conditions themselves were at least two clicks
away.
Judge Chin pointed to a 2012 federal court ruling upholding click-
through online agreements -- which was itself based on a Supreme
Court case upholding the fine print on the back of a Carnival
Cruise Line ticket. "For those to whom the internet is an
indispensable part of daily life," the 2012 ruling held, "clicking
the hyperlinked phrase is the twenty-first century equivalent of
turning over the cruise ticket." If you don't read it, he said in
effect, don't come whining to us.
Is this enough? The appeals court essentially has given businesses
in all walks of life the latitude to lard their terms and
conditions with legal gibberish and hide them behind just enough
click walls to discourage anyone from reading them. Consumer
companies, doctors, hospitals, and employers know that almost no
one reads these things, and that even if they do, they have no
recourse if they want the merchandise or service, the medical
treatment, or the job on offer.
There's no technological obstacle, obviously, that would prevent
Uber or any other service from posting, right on top of the
registration page in big red letters: "IF YOU CLICK HERE, YOU GIVE
UP YOUR RIGHT TO SUE US IN COURT." There's no reason why Congress
shouldn't mandate such disclosure. The only reason not to do so
is to allow a business to conceal the truth. Why would any
legislators or judges worth the name want to allow a business to
mistreat its customers this way? [GN]
UBER TECHNOLOGIES: Stinson Attorneys Discuss Arbitration Ruling
---------------------------------------------------------------
Liz Kramer, Esq., of Stinson Leonard Street LLP, in an article for
Lexology, wrote that on Aug. 17, the Second Circuit found that the
arbitration agreement in Uber's Terms of Service was conspicuous
enough to be binding and enforceable. As a result, the claims of
a putative class of consumers will be dismissed unless they can
show that Uber waived its right to arbitrate their claims. Meyer
v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17,
2017).
For those of you who still take yellow taxis, Uber is a "ride-
hailing service," where customers use an "app" on their smart
phones to alert a nearby Uber driver that the customer wants a
ride to a specific location. Critically to this case, when
customers open an account with Uber, they see black text at the
bottom of the registration screen advising that "by creating an
Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY."
The phrase "terms of service" is in blue font and hyperlinked to a
page where the customer can read those terms. The terms include an
arbitration agreement that waives the right to any class or
consolidated action.
A potential class of Uber customers started a lawsuit in New York
alleging that Uber allows illegal price fixing. In response, Uber
first moved to dismiss for failure to state a claim. Upon losing
that motion, Uber moved to compel arbitration and the federal
district court denied that motion also, finding that the parties
never formed an arbitration agreement because the consumers did
not meaningfully consent.
On appeal, the Second Circuit vacated and remanded. It applied
California contract law in its de novo review, and applied
California's rule that a customer who lacks actual notice of the
terms of an agreement can be bound if a "reasonably prudent user
would be on inquiry notice of the terms." In its analysis, the
court noted that Uber did not use a "clickwrap" agreement, which
involves consumers having to click "I agree" after being presented
with a list of terms and conditions, and which is "routinely
uph[e]ld" by courts. Even so, the court concluded that the design
of the registration screens were clear enough to put the plaintiff
on inquiry notice of the arbitration provision. What were those
design features?
-- Hyperlinked text to terms and conditions appears right below
the registration button;
-- The entire screen is visible at once (no scrolling
required);
-- The screen is "uncluttered"; and
-- Although font is "small," dark print contrasts with white
background.
Therefore, the Second Circuit concluded that the named plaintiff
"agreed to arbitrate his claims with Uber." However, the Court
threw the class a bone by remanding on the question of whether
Uber waived its right to arbitrate by bringing the motion to
dismiss on the merits.
What's fascinating about this opinion is not just that Uber is a
famous company that is facing intriguing antitrust allegation. No,
what's fascinating from the arbitration angle is that the Second
Circuit came out on the opposite side of this same issue almost
exactly one year ago in Nicosia v. Amazon.com, Inc., 2016 WL
4473225 (Aug. 25, 2016). The same judge wrote both opinions.
In Nicosia, the named class representative had placed an order on
Amazon in 2012. Instead of a true "clickwrap" agreement, there
was simply language on the Order Page stating that "by placing
your order, you agree to Amazon.com's privacy notice and
conditions of use." The conditions of use were hyperlinked to the
relevant terms. Sounds pretty much the same as Uber's setup,
right? Well, applying Washington law, the Second Circuit found
that reasonable minds could differ about whether that notice was
sufficiently conspicuous to be binding. It complained that the
critical sentence was in a "smaller font," that there were too
many other distracting things taking place on the order page
(summary of purchase and delivery information, suggestions to try
Amazon Locker, opportunity to enter gift cards and have a free
trial of Amazon Prime, for example.) There were other links on the
page, in different colors and fonts. Critically, it found
"[n]othing about the'Place your order' button alone suggests that
additional terms apply, and the presentation of terms is not
directly adjacent to the 'Place your Order" button . . ."
Therefore, the Second Circuit reversed the district court's
dismissal based on the arbitration provision.
As the fundamental context of on-line purchases has not changed in
the last year, and the Second Circuit's recitation of California
and Washington law appears pretty similar, one has to conclude
that the difference between these two cases is the graphic design
of the key pages. In particular, the level of "clutter" on
Amazon's page is the primary difference-maker between these two
cases.
UBER: Ex-Engineer's Lawyers Want Arbitration Agreements Nixed
-------------------------------------------------------------
Connie Loizos, writing for TechCrunch, reports that Susan Fowler,
the former Uber engineer whose blog post about the company's
troubling internal workings eventually led to the ouster of its
CEO Travis Kalanick, has a new message for the Supreme Court: get
rid of arbitration agreements.
In a development first reported on by The Recorder, Fowlers legal
team at the San Francisco-based firm Baker Curtis & Schwartz has
filed an amicus brief in three high court cases, asking the
justices to consider that class and collective action bans in
workplace arbitration agreements violate federal labor laws.
The issue Fowler is trying to tackle -- and one that we've written
before -- is the inability of Uber's employees to join class-
action lawsuits and otherwise fight the company in court. Uber
instead forces employees into individual arbitration, a maneuver
designed to move a lawsuit off its path toward a courtroom and
onto the desk of an adjudicator, whose verdict is legally binding
and completely confidential. No one ever hears about employees
grievances, so there's little incentive for companies to fix
what's broken.
Uber is far from alone in employing the tactic. Employment
attorneys we've interviewed say that something like 80 percent of
tech companies compel their employees into arbitration.
That doesn't make it right, argues Fowler, via her attorneys. In
fact, says her brief: the arbitration agreement, and the attendant
"class-action waiver" that Uber asks employees to sign when they
start their careers with the company, "takes away from these
workers the concerted activity in which they are most likely to
engage, and from which they are most likely to benefit: The right
to engage in collective litigation."
Her lawyers argument against them is three-pronged, stating that:
As the Uber example demonstrates, companies do not require
arbitration agreements with class action waivers to resolve
disputes "cheaply or quickly." Companies require class action
waivers to limit or eliminate the legal risk associated with
systemic -- and potentially or certainly illegal -- employment
practices.
The right to litigate collectively is particularly important in
the 21st century in that such litigation is the most readily
available means for modern day workers to act in concert to
improve their working conditions. Much of the modern workforce
cannot reasonably engage in the "traditional" concerted activity
of strikes or picketing.
Collective litigation -- when meritorious -- usually results in
settlement negotiations (or bargaining), a "collective" settlement
agreement, an improvement in working conditions, and a reduction
of industrial strife. Without the right to collective citation,
there will be more systemic employment law violations, less
effective ways to remedy them, and the balance between companies
(i.e., capital) and talent (i.e., labor) will shift firmly in
favor of capital.
Certainly, employment attorneys not involved in the case agree,
particularly given that arbitrations tend to favor businesses -
with arbitrators commonly considering companies their clients.
A recent case in Silicon Valley shows how a disagreement, when
allowed to be aired in a courtroom setting, can be an impetus for
change.
When former Kleiner Perkins Caufield & Byers investor Ellen Pao
set out to sue her former employer over gender discrimination in
2012, Kleiner tried to move the case into arbitration. It failed
on a technicality.
Though Ms. Pao eventually lost her case against Kleiner when it
was finally tried in 2015, it had ripple effects on the broader
startup industry that continue to be felt today. In fact, many
consider Ms. Pao, who recently published a book about the ordeal,
the reason that gender and harassment is finally being examined
-- and eradicated -- in Silicon Valley, case by case. [GN]
UNIQUE BEVERAGE: Wants Coconut Drink Class Action Dismissed
-----------------------------------------------------------
Elizabeth Alt, writing for Legal Newsline, reports that
Washington-based Unique Beverage Co. has filed a motion to dismiss
a second amended class action complaint against it over the
company's Cascade Ice sparkling water.
In a motion filed July 11, the company seeks dismissal of Vicky
Silva lawsuit that says she purchased the product assuming it was
a coconut water drink, but realized after drinking it that it
contained no coconut. She claims she would not have purchased the
drink had she known it did not have coconut in it and felt
tricked.
Ms. Silva emailed the company shortly after the purchase of the
drink to complain about the allegedly deceitful label, which
features large picture of coconuts with the name "Coconut."
Ms. Silva says she is filing the class action suit on behalf of
all consumers who were similarly duped into buying the drink.
Unique responded on April 4 with a motion to dismiss the first
complaint, claiming its beverage label meets all federal
guidelines and labeling requirements. The company stated that
Silva hasn't alleged any facts of misrepresentation, emphasizing
that the label clearly states that the drink does not contain
coconut. Unique argued that federal guidelines allow for pictures
of fruit to be on a product if it has the characteristics of the
fruit, and that the coconuts displayed on the bottle of Cascade
Coconut.
The court granted Unique's motion to dismiss the first complaint
on June 15 because the "plaintiff failed to state a claim under
Oregon's Unlawful Trade Practices Act."
Now, Ms. Silva has amended her lawsuit, and the company is again
seeking dismissal.
The company also points out that because coconut is an allergen,
there would have been a required warning on the label if it had
contained any coconut, as is required of any food or beverage
meant for human consumption by the Food and Drug Administration.
"Plaintiff had multiple chances to plead her best possible case,
yet the SAC is equally deficient as the FAC and still fails to
state a valid UTPA claim," the company says.
"The Court should dismiss plaintiff's SAC without leave to amend
because any further amendment would be futile.
Unique is represented by Hochman Legal Group PLLC.
U.S. District Court for the District of Oregon case number 3:17-
cv-00391-HZ [GN]
UNITED STATES: August Pipestone HRA to Join Class Action v. HUD
---------------------------------------------------------------
Jen Burris, writing for Pipeton County Star, reports that at the
August Pipestone Housing and Redevelopment Authority (HRA) meeting
the board unanimously voted to join a class action lawsuit against
Housing and Urban Development (HUD) for withholding operating
subsidies in 2012.
This is the second class action lawsuit to be filed against HUD.
The United States Federal Claims Court ruled in favor in January
of this year of the housing authorities in the first class action
lawsuit. The award was over $135 million. The second lawsuit is
for $230 million, if all housing authorities that did not
participate in the first lawsuit join. Of that, the Pipestone
HRAs share would be the $150,922 allegedly withheld in 2012.
The Public Housing Authorities Directors Association (PHADA) and
the National Association of Housing and Redevelopment Officials
(NAHRO) administered the first lawsuit and will do the same for
the second. The law firm Coan and Lions out of Washington D.C.,
will provide legal services, as they did on the first lawsuit.
PHADA has offered the Pipestone HRA and other housing authorities
that did not opt into the initial lawsuit against HUD to
participate in a second class action lawsuit. The lawsuit must be
filed by Nov. 18, 2017, the end of the six-year statute of
limitations for filing a breach of contract lawsuit against the
U.S.
According to Executive Director Tammy Manderscheid, Pipestone did
not join the first lawsuit for a couple of reasons.
"We did not get involved with it due to the fact that the money
that you had to pay to be involved had to be non-federal funds,"
she said. "At the time we said we dont really have any non-
federal funds that dont already belong to the building."
When the first lawsuit started Manderscheid also raised concern
about, "biting the hand that feeds us."
To participate in the lawsuit as a small housing authority with
less than 250 units, the Pipestone HRA has to pay $1,000, which
again cannot be federal funding. The HRA board unanimously
approved borrowing this money from the tenants laundry and vending
fund, pending confirmation from their auditor that they are not
using the money inappropriately.
The money from the fund is gained from tenant use of the washers,
dryers, candy and pop machines. The machines are owned by the
tenants. Thirty percent of the revenue generated by the machines
is paid to the HRA for electric and water bills. The remainder is
used on things like a tenant Christmas dinner Currently, the
tenants have around $5,000 in a CD and about $3,500 in their
checking account.
Ms. Manderscheid said they could repay the tenant fund double if
the lawsuit was won. If lost, it would be repaid by suspending a
portion of the electric and water bills until the $1,000 was paid
back.
"I personally feel that with $150,000 sitting on the table, we
should take a stab in the dark and go after it," Ms. Manderscheid
said.
Board member Jamie Norling, who is a resident of the building,
said she had "no problem with it at all" to use the tenant fund.
"If we win, its a win-win." [GN]
UNITED STATES: Legal Clinic Set in Cobell Settlement
----------------------------------------------------
The Lawton Constitution reports that a free legal clinic for class
members in the Cobell Settlement was offered from 10 a.m. to 3
p.m. Aug. 30 at the Marlow Chickasaw Housing Complex, 25 Marlow
Drive.
The Marlow clinic is one of a series being offered by the Oklahoma
Indian Legal Services Inc. to assist Chickasaw citizens
and other Native Americans.
The deadline to provide information for a settlement payment is
Nov. 27.
Clinics are designed to assist Chickasaw citizens and other Native
Americans in filing and finalizing claims to determine
eligibility. Officials ask citizens to bring any paperwork that
might help in filing a claim. That includes such items as
birth/death certificates, probate orders, genealogy and ancestry
information.
A class-action lawsuit to recover mismanaged Indian trust funds
and property began in 1996. Federal courts ordered the Department
of Interior and Department of Treasury to distribute $3.4 billion
to Native Americans beginning in 2010. [GN]
V2 LOGISTICS: "Laucella" Suit Seeks to Recover Unpaid OT Wages
--------------------------------------------------------------
Vincent Laucella and Mynor Melendez, individually and on behalf of
all others similarly situated v. V2 Logistics Corp. and
Christopher Vilardi, Case No. 2:17-cv-04915 (E.D.N.Y., August 21,
2017), seeks to recover unpaid overtime wages and damages pursuant
to the Fair Labor Standards Act.
The Defendants own and operate a logistics and transportation
company that offers nationwide and overseas shipping of vehicles.
[BN]
The Plaintiff is represented by:
Adam Sackowitz, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
E-mail: ajsackowitz@katzmelinger.com
VERMONT MUTUAL: Faces "Martins" Suit in Mass. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against Vermont Mutual
Insurance Group. The case is styled as Jonathan Martins, on behalf
of himself and all others similarly situated, Plaintiff v. Vermont
Mutual Insurance Group, Defendant, Case No. 1784CV02738 (Mass.
Super. Ct., August 28, 2017).
Vermont Mutual Insurance Group is engaged in the home, automobile,
property, inland marine, personal and commercial insurance
business.[BN]
The Plaintiff is represented by:
John R. Yasi, Esq.
2 Salem Green, Suite 2
Salem, MA 01970
Tel: (617) 231-7829
Email: jyasi@forrestlamothe.com
VOLVO CARS: 7th Circuit Revives Hybrid SUV Class Action
-------------------------------------------------------
Hannah Meisel, Diana Novak Jones and Linda Chiem, writing for
Law360, report that a Seventh Circuit panel on Aug. 22 rejected a
district court's finding that the lead plaintiff in a proposed
class action against Volvo over its electric hybrid SUV gave up
legal standing when she rejected a remediation attempt by the
company before filing the lawsuit.
The circuit judges reversed a judgment last year that tossed the
claims of Illinois couple Xavier and Khadija Laurens, who alleged
their hybrid Volvo held far less of an electric charge than was
advertised.
Among its arguments at the appellate court in April, Volvo
contended that Khadija Laurens, whose name was on the title of the
vehicle, lacked standing to sue because the company had offered
her a full refund in a boilerplate letter, which she declined.
Seventh Circuit Chief Judge Diane Wood, who authored the opinion,
did not buy Volvo's argument that its letter prevented Khadija
Laurens from suing.
"Consider what this case would look like if the parties' roles
were reversed," Judge Wood wrote. "Khadija could not argue that
she had the right unilaterally to compel an unwilling Volvo to
trade a full refund in exchange for her claim. Our legal system
places a premium on property rights, and protecting them is among
the judiciary's most important functions."
The Laurenses placed an order for the $83,475 Volvo XC90 T8 seven-
passenger electric sport utility vehicle in February 2015 and
received the car nearly a year later in January 2016. According to
the couple's original complaint in district court, the vehicle
appealed to them because of the advertised 25 miles the SUV could
go on just a battery charge without using gasoline -- perfect for
daily commuting in Chicago.
But upon receiving the vehicle, the Laurenses quickly learned that
the car could go only about 8 to 10 miles on just a charge, a
mileage range Judge Wood characterized as "puny" in her Aug. 22
opinion. In their complaint, the couple alleges that had they
known Volvo's mileage claims weren't true, they would never have
paid the nearly $84,000 price tag for the car, especially when
Volvo had another model, the Volvo XC90, which runs on gas but is
$20,000 less.
To explain how Volvo's settlement letter does not void the
Laurens' complaint, Judge Wood and the panel cited the 2016 U.S.
Supreme Court decision in Campbell-Ewald Co. v. Gomez, which held
that an unaccepted settlement offer does not moot a plaintiff's
case.
"If forcing a contract on an unwilling party is unacceptable under
the judicially supervised procedures of Rule 68 and Rule 67, we
see no reason why an impersonal note offering a refund should have
such a powerful effect," Judge Wood wrote. "Nor does it matter
that Volvo's offer preceded Khadija's lawsuit. Campbell-Ewald's
core lesson is that unaccepted contract offers are nullities;
settlement proposals are contract offers; and therefore unaccepted
settlement proposals are nullities. Nothing about that logic
turns on whether a suit has been filed."
The Laurenses filed their suit against Volvo in April 2016, but
U.S. District Judge Harry Leinenweber dismissed the case in
October, siding with Volvo that Xavier Laurens lacked standing
because it was his wife's name on the car papers. Even after
Khadija was added as a plaintiff, Volvo argued that the letter
sent to her offering a refund for the car should still moot the
case. But Judge Wood chided Volvo for its argument that the
simple offer of a refund should have prevented the case from being
filed in the first place.
"Any first-year law student knows that contract formation requires
offer, acceptance, and consideration," Judge Wood wrote. "Whether
we characterize the deal Volvo was proposing as a swap of a car
for money (as we suggested earlier) or a swap of a claim for money
(dropping the claim in exchange for $83,475), until there is an
acceptance there is no contract. (We take no position on which is
the better description.) Khadija considered the trade and found it
wanting. Whether she did so because of the cost of the charging
station, or because she wanted additional damages for Volvo's
betrayal, or she wanted to be reimbursed for the nuisance of a
short-range electric car, or she wanted a bonus for serving as a
class representative, is beside the point. Volvo has no right
preemptively to force her to accept a contract offer. Indeed, an
offeror is almost never permitted to force acceptance on an
unwilling offeree."
In a short concurrence, Judge Michael Kanne wrote, "I join in the
majority's opinion reversing and remanding the district court's
decision for further consideration. I write separately to further
emphasize that on remand the district court is free to draw, or
not to draw, the conclusion that Khadija has not met her burden to
show standing for injunctive relief."
The Laurens' attorney, Todd McLawhorn of Siprut PC, told Law360 on
Aug. 22 that the circuit judges ruled correctly and saw through
Volvo's defenses.
"We are pleased that the Seventh Circuit recognized Volvo's offer,
and other similar pick off attempts, for what they are --
procedural mechanisms to avoid addressing the merits of
plaintiffs' case," Mr. McLawhorn said in an email. "Volvo
promised one thing and delivered another; it would be perverse
that having been called out on its misrepresentations, Volvo would
then get to decide the appropriate remedy by deciding the terms of
its offer. The Seventh Circuit decision recognizes that
plaintiffs cannot be forced to accept such offers, and are free to
seek the relief of their choosing for corporate wrongdoing. The
judge and jury will decide the remedy for Volvo's
misrepresentations, not Volvo."
In addition to Judges Wood and Kanne, Circuit Judge Ilana Rovner
sat on the panel.
Representatives for Volvo could not be reached for comment on Aug.
22.
The Laurenses are represented by Joseph Siprut, Todd McLawhorn and
Ke Liu of Siprut PC.
Volvo is represented by Robert Roth -- rroth@reedsmith.com --
Jennifer Ilkka -- jilkka@reedsmith.com -- and Henry Pietrkowski --
hpietrkowski@reedsmith.com -- of Reed Smith LLP.
The appellate case is Xavier Laurens et al. v. Volvo Cars of North
America LLC et al., Case No. 16-3829 (7th Cir.). [GN]
WASHINGTONFIRST BANKSHARES: Rigrodsky & Long Files Class Action
---------------------------------------------------------------
Rigrodsky & Long, P.A., on Aug. 21 disclosed that it has filed a
class action complaint in the United States District Court for the
Eastern District of Virginia on behalf of holders of
WashingtonFirst Bankshares, Inc. ("WashingtonFirst")
(NasdaqCM:WFBI) common stock in connection with the proposed
acquisition of WashingtonFirst by Sandy Spring Bancorp, Inc. and
its affiliate (together, "Sandy Spring") announced on May 16, 2017
(the "Complaint"). The Complaint, which alleges violations of the
Securities Exchange Act of 1934 against WashingtonFirst, its Board
of Directors (the "Board"), and Sandy Spring, is captioned
Parshall v. WashingtonFirst Bankshares, Inc., Case No. 1:17-cv-
00877 (E.D. Va.).
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, please contact
plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at
Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington,
DE 19803, by telephone at (888) 969-4242, by e-mail at info@rl-
legal.com, or at http://rigrodskylong.com/contact-us/.
On May 15, 2017, WashingtonFirst entered into an agreement and
plan of merger (the "Merger Agreement") with Sandy Spring.
Pursuant to the Merger Agreement, shareholders of WashingtonFirst
will receive 0.8713 shares of Sandy Spring common stock for each
share of WashingtonFirst stock they own (the "Proposed
Transaction").
Among other things, the Complaint alleges that, in an attempt to
secure shareholder support for the Proposed Transaction,
defendants issued materially incomplete disclosures in a Form S-4
Registration Statement (the "Registration Statement") filed with
the United States Securities and Exchange Commission on July 20,
2017. The Complaint alleges that the Registration Statement,
which recommends that WashingtonFirst stockholders vote in favor
of the Proposed Transaction, omits material information necessary
to enable shareholders to make an informed decision as to how to
vote on the Proposed Transaction, including material information
with respect to WashingtonFirst's and Sandy Spring's financial
projections, the analyses performed by WashingtonFirst's financial
advisor, and potential conflicts of interest. The Complaint seeks
injunctive and equitable relief and damages on behalf of holders
of WashingtonFirst common stock.
If you wish to serve as lead plaintiff, you must move the Court no
later than October 20, 2017. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the proposed class may move the Court
to serve as lead plaintiff through counsel of their choice, or may
choose to do nothing and remain an absent class member.
With offices in Wilmington, Delaware and Garden City, New York
Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com--
regularly prosecutes securities fraud, shareholder corporate, and
shareholder derivative litigation on behalf of shareholders in
state and federal courts throughout the United States. [GN]
WELLS FARGO: Set to Begin Refunds in Fake Accounts Scandal
----------------------------------------------------------
Richard Craver, writing for Winston-Salem Journal, reports that
Wells Fargo & Co.'s top executives told employees on Aug. 22 that
the bank is "within a few weeks" of completing the remediation
process for its fraudulent customer-accounts scandal.
The bank released a question-and-answer styled employee memo by
Timothy Sloan, the banks chief executive.
Mr. Sloan said the bank will announce at that time its retail
account analysis, conducted by a third party, for 2009 through
2016.
At least 2.1 million customer checking and credit-card accounts
are confirmed to have been affected in the scandal, although Mr.
Sloan cautioned the number could be significantly higher.
Sloan said the bank will begin sending refunds of fees or charges
incurred on potentially unauthorized accounts. Mr. Sloan said the
refund total now tops $5 million. Customers will be notified
whether they will receive a refund check or a credit to an
account.
The bank also plans within weeks to send notices about the $142
million class-action settlement to current and former customers,
including information about how they can participate. The
settlement has received preliminary approval from a federal judge.
Customers who had an account opened without their approval will be
automatically enrolled in the settlement.
"We've heard customers concerns about potential harm to credit
scores due to unauthorized accounts, and that's why an important
part of this settlement is remediation to customers for increased
borrowing costs due to credit-score impact associated with a
potentially unauthorized account," Mr. Sloan said.
"Our retail banking account analysis, the class-action settlement,
broad customer outreach and resolution of customer complaints are
all very meaningful milestones," Mr. Sloan said.
"It will help us fulfill our commitment to make things right for
customers harmed by improper sales practices in our community
bank."
Seeking Alpha contributor Chris Murphy said Mr. Sloan's memo may
have "added more uncertainty to the mix" on the negative impact of
the scandal.
"The news could get even worse for the company since additional
class-action suits could be filed as customers receive notices of
the current suit," Mr. Murphy said. "The CEO mentioned the suits
could be an issue in the future."
"I'm not sure how they'll calculate 'remediation for increased
borrowing costs, but the uncertainty of what that final number and
any additional fines or class-action settlements are likely to put
enormous pressure on Wells Fargo's stock in the coming weeks and
months.
"In short, the other shoe has yet to drop," Mr. Murphy said.
Analysts, investors and key congressional leaders, in particular
U.S. Sen. Elizabeth Warren, D-Mass., have been calling for
significant changes to Wells Fargo and its board of directors
since the scandal erupted nearly a year ago.
The bank announced Aug. 15 a major shake-up, with Chairman Stephen
Sanger and two other members retiring Dec. 31 and Vice Chairwoman
Betty Duke transitioning to chairwoman Jan. 1.
The Securities and Exchange Commission, the U.S. Justice
Department, state attorneys general offices and at least two
congressional committees are conducting inquiries into the bank.
Wells Fargo confirmed Aug. 4 it could experience overall losses
reaching $3.3 billion in its attempt to resolve its customer-
account scandals. The estimated loss has more than tripled since
October 2016.
Already, John Stumpf was allowed by the board to retire as
chairman and chief executive on Oct. 12, while community bank head
Carrie Tolstedt resigned and was retroactively fired with cause.
Stumpf lost $69 million in compensation as one ripple effect of
the scandal.
Sanger transitioned from lead independent director to non-
executive chairman after Stumpf's retirement.
"The results of our reviews will generate news headlines, but even
as we face this renewed coverage, the best thing we can do is stay
focused on fixing problems, making things right for customers, and
building a better, stronger Wells Fargo," Sloan said. [GN]
WEST MISSISSIPPI: "Arnold" Labor Suit Seeks Unpaid OT Wages
-----------------------------------------------------------
Altrece Arnold, individually and on behalf of all others similarly
situated, v. West Mississippi Home Health Services, Inc. d/b/a
Camellia Healthcare, Defendants, Case No. 3:17-cv-00673 (S.D.
Miss., August 15, 2017), seeks to recover unpaid overtime,
liquidated damages, attorneys' fees and costs for violation of the
Fair Labor Standards Act.
Defendant is a home health care provider that provides nursing and
therapy at patient's homes. It currently operates twenty-four
locations that are located in Alabama, Louisiana, Mississippi and
Tennessee. Arnold worked for the Defendant as a therapist. [BN]
Plaintiff is represented by:
Louis H. Watson, Jr.Esq.
WATSON & NORRIS, PLLC
1880 Lakeland Drive, Suite G
Jackson, MS 39216
Telephone: (601) 968-0000
Facsimile: (601) 968-0010
Email: nick@watsonnorris.com
ZILLOW INC: Averts Class Action Over "Zestimate" Feature
--------------------------------------------------------
Diana Novak Jones and Dave Simpson, writing for Law360, report
that real estate website Zillow dodged a proposed class action
filed by a group of property owners over its "Zestimate" feature
on Aug. 23 after an Illinois federal judge said it does not
mislead potential buyers about the value of properties listed for
sale.
A proposed class of Illinois property owners didn't show how
Zillow Inc. and Zillow Group Inc., which operate the real estate
listing site, violate Illinois state law through the appraisal
feature, U.S. District Judge Amy St. Eve said in an opinion
granting Zillows motion to dismiss the three-month-old suit.
The website is clear about what the Zestimate is, what it is based
on, and its accuracy, Judge St. Eve said, shutting down the class
claims that it is an appraisal that doesn't meet the Uniform
Standards of Professional Appraisal Practices, the standards for
the appraisal process adopted by Congress. Zestimates arm buyers
with incorrect information about a property's worth, making it
difficult for the seller to get the price they want, the suit
claims.
"Based on the pleadings, however, Zestimates are not false,
misleading, or likely to confuse," Judge St. Eve wrote. "The word
'Zestimate -- an obvious portmanteau of 'Zillow and 'estimate --
itself indicates that Zestimates are merely an estimate of the
market value of a property."
In a statement on Aug. 23, a Zillow spokeswoman said the company
was pleased with the ruling. The suits dismissal came the same day
the site was hit with a shareholder suit in California over a drop
in stock prices caused by a Consumer Financial Protection Bureau
investigation.
The suit dismissed on Aug. 23 was filed by named plaintiffs Vipul
Patel, Bhasker Patel, Jyotsna Patel and Castle Bldrs.com Inc., who
all own property in the Chicago area. The plaintiffs sued Zillow
in Illinois state court in May, claiming violations of the
Illinois Real Estate Appraiser Licensing Act, invasions of
privacy, the Illinois Uniform Deceptive Trade Practices Act and
the Illinois Consumer Fraud and Deceptive Business Practices Act.
Zillow moved the case to federal court in June.
The plaintiffs, who sued on behalf of any Illinois property owner
whose real estate is listed on Zillow, claimed the Zestimate is an
appraisal that the website is not licensed to offer. The figures
violate the privacy of the property owner while driving away
buyers and confusing them, forcing sellers to hire a real estate
broker to address the problem, the suit claimed.
Zillow claimed the First Amendment required dismissal of the
proposed class claims, as the Zestimate is a constitutionally
protected expression of opinion. In her ruling on Aug. 23, Judge
St. Eve said the First Amendment arguments are persuasive but
unnecessary because the class state law claims fail.
The Illinois Real Estate Appraiser Licensing Act gives no private
cause of action, and it exempts automated valuation models like
Zestimate from the licensing requirement, the judge said.
She also rejected claims under the Illinois Uniform Deceptive
Trade Practices Act and the Illinois Consumer Fraud and Deceptive
Business Practices Act, saying the class failed to show how Zillow
was attempting to deceive buyers.
Zillow is clear that the Zestimate is an estimate and not an
official appraisal, the judge wrote. The site goes so far as to
provide detailed information about the accuracy of Zestimates both
nationally and in certain metro areas, she said.
"Given Zillows representations regarding Zestimates, as pled in
the complaint, plaintiffs have failed to plausibly allege that
Zestimates are anything more than nonactionable statements of
opinion," Judge St. Eve said.
She rejected the class claim of intrusion upon seclusion as well,
saying Zillow relies on publicly available information to create
its Zestimate.
Judge St. Eve dismissed the Illinois Real Estate Appraiser
Licensing Act claim with prejudice, but said the class could amend
the rest of its complaint by Sept. 15.
Barbara Andersen of Andersen Law LLC, who is representing the
class, told Law360 on Aug. 23 she is looking into amending the
complaint.
"I do not believe that it is correct that a third party can
unilaterally impair someone else's ability to sell without
permission," Andersen said.
"I also do not believe that a company should be able to recklessly
give opinions as to ones assets when their opinions have no basis
in [the Uniform Standards of Professional Appraisal Practice],"
Ms. Andersen added.
The class is represented by Barbara Andersen of Andersen Law LLC
and Jeffrey Thut of Noonan & Thut Ltd.
Zillow is represented by Eric D. Brandfonbrener --
EBrandfonbrener@perkinscoie.com -- and Rebecca S. Engrav --
REngrav@perkinscoie.com -- of Perkins Coie LLP and Eugene Volokh
of Mayer Brown LLP.
The case is Patel et al v. Zillow Inc. et al, Case No. 1:17-cv-
04008 (N.D. Ill.). The case is assigned to Judge Honorable Amy J.
St. Eve. The case was filed May 25, 2017. [GN]
ZILLOW GROUP: Oct. 23 Lead Plaintiff Motion Deadline Set
--------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, on Aug. 23 notified investors
that a class action lawsuit has been filed against Zillow Group,
Inc. ("Zillow" or the "Company") (NASDAQ: Z) securities and
certain of its officers, on behalf of a class who purchased Zillow
securities between February 12, 2016 through August 8, 2017, both
dates inclusive (the "Class Period"). Such investors are
encouraged to join this case by visiting the firm's site:
www.bgandg.com/z.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the Class Period, defendants
made false and/or misleading statements and/or failed to disclose
that: (1) Zillow's co-marketing program did not comply with the
Real Estate Settlement Procedures Act; and (2) as a result,
Zillow's public statements were materially false and misleading at
all relevant times.
In April 2017, Zillow received a Civil Investigative Demand from
the Consumer Financial Protection Bureau (the "CFPB"). On August
8, 2017, Zillow revealed that the CFPB has concluded its
investigation and has invited Zillow to discuss possible
settlement and intends to pursue further action if a settlement
cannot be reached. Following this news, Zillow stock dropped
$4.34 per share or over 9% to close at $43.59 per share on August
9, 2017.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/z or you may contact Peretz Bronstein, Esq. or his
Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz &
Grossman, LLC at 212-697-6484. If you suffered a loss in Zillow
you have until October 23, 2017 to request that the Court appoint
you as lead plaintiff. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. It represents institutions and other investor
plaintiffs in class action security litigation, the firm's
expertise includes general corporate and commercial litigation, as
well as securities arbitration. [GN]
* Arizona AG Backs FTC's Class Action Fairness Project
------------------------------------------------------
Mark Iandolo, writing for Legal Newsline, reports that Arizona
Attorney General Mark Brnovich announced Aug. 16 that he has filed
a formal comment with the Federal Trade Commission (FTC) in
support of the agency's Class Action Fairness Project.
Mr. Brnovich also supports the FTC's pending proposal to conduct a
study examining whether consumers properly understand the class
action notices that involve them. Mr. Brnovich argues that class
action notices are a key process in helping consumers understand
their rights, and the current system needs improvement.
"Protecting consumers in the class action settlement process
continues to be our top priority," Mr. Brnovich said. "Our
efforts to date, and the briefs we have filed with bipartisan
support, have produced meaningful results for consumers, including
improved settlement terms that make sure that consumers get a real
benefit from class action settlements that affect their rights."
Mr. Brnovich noted that to create better outcomes for consumers,
the agency needs to work to increase consumer involvement.
"It will provide insights into the failings of the current class
action notice process and help bolster efforts to reform the
process to produce more consumer engagement and better consumer
outcomes," Mr. Brnovich said. [GN]
* CFPB's Arbitration Ruling Faces Opposition
--------------------------------------------
Palmetto Business Daily reports that since its introduction in
July, the Consumer Financial Protection Bureau's (CFPB) ruling
that prevents class-action waivers in almost all instances of
financial consumer-service agreements has been met with opposition
from financial institutions and politicians.
Sen. Tim Scott (R-SC) was one of the sponsors to eliminate the
ruling, having claimed that the CFPB had "overreached with
misguided efforts," as stated in a previous interview with
Palmetto Business Daily.
Sen. Scott's sentiments have been echoed by SC Bankers
Association's President and CEO Fred Green III, who explained why
removing arbitration as an option for consumers was harmful.
"The CFPB conducted a study and it showed the benefit of consumers
under arbitration and then consumers under class action, and it's
overwhelmingly in favor of arbitration,"
Mr. Green told Palmetto Business Daily.
The CFPB study found that consumers who prevail in arbitration
recover, on average, more than $5,000, while class action
settlements recover an average of $32 for a consumer and $424,000
for attorneys.
"It isn't fair to the consumer, it's unfair to the financial
institutions because now it's not the cost issue as much as the
tracking and compliance cost associated with monitoring the
accounts that were set up prior to this ruling and those
afterwards and any changes in between," Mr. Green said. "There's
a pretty big administrative cost to financial institutions with no
benefit to the consumer . . . the ones that really benefit would
be the class-action lawyers."
Mr. Green stated that Sen. Lindsey Graham (R-SC) seemed to be
siding with Democrats on the ruling, as various sources
corroborated. Since then, Sen. Graham has released a public
statement on the ruling, claiming that he was not in support of
the CFPB.
"You've had banks and credit-card companies nickel-and-diming
consumers, and one of the things that makes them think twice is
the idea of a massive lawsuit," Sen. Graham said.
As stated in letter from SC Bankers and 49 other bankers
associations, to the Majority Leader Mitch McConnell (R-KY) and
Minority Leader Charles Schumer (D-NY), "If allowed to take
effect, the Rule would create a windfall for unscrupulous class-
action attorneys, provide litter or no relief to harmed consumers,
and effectively eliminate an accessible alternative to the often-
daunting judicial system."
* CFPB Director Defends Move to Block Mandatory Arbitration
-----------------------------------------------------------
Richard Cordray, the director of the Consumer Financial Protection
Bureau, in an opinion published at The New York Times, states when
a data breach at Home Depot in 2014 led to losses for banks
nationwide, a group of banks filed a class-action lawsuit seeking
compensation. Companies have the choice of taking legal action
together. Yet consumers are frequently blocked from exercising
the same legal right when they believe that companies have wronged
them.
That's because many contracts for products like credit cards and
bank accounts have mandatory arbitration clauses that prevent
consumers from joining group lawsuits, forcing them to go it
alone. For example, a group lawsuit against Wells Fargo for
secretly opening phony bank accounts was blocked by arbitration
clauses that pushed individual consumers into closed-door
proceedings.
"In 2010, the Consumer Financial Protection Bureau, which I
direct, was authorized to study mandatory arbitration and write
rules consistent with the study. After five years of work, we
recently finalized a rule to stop companies from denying groups of
consumers the option of going to court when they are treated
unfairly," Mr. Cordray.
"Opponents have unleashed attacks to overturn the rule, and the
House just passed legislation to that end. Before the Senate
decides whether to protect companies or consumers, it's worth
correcting the record.
"First, opponents claim that plaintiffs are better served by
acting individually than by joining a group lawsuit. This claim
is not supported by facts or common sense. Our study contained
revealing data on the results of group lawsuits and individual
actions. We found that group lawsuits get more money back to more
people. In five years of group lawsuits, we tallied an average of
$220 million paid to 6.8 million consumers per year. Yet in the
arbitration cases we studied, on average, 16 people per year
recovered less than $100,000 total.
"It is true that the average payouts are higher in individual
suits. But that is because very few people go through
arbitration, and they generally do so only when thousands of
dollars are at stake, whereas the typical group lawsuit seeks to
recover small amounts for many people. Almost nobody spends time
or money fighting a small fee on their own. As one judge noted,
'only a lunatic or a fanatic sues for $30.'
"When a bank charges illegal fees to millions of customers and
then blocks them from suing together, a result is not millions of
individual claims, but zero. So the bank gets to pocket millions
in ill-gotten gains.
"Not only do group lawsuits help consumers recover money they
otherwise would forfeit, but they also protect many more consumers
by halting and deterring harmful behavior. For example, when
banks reordered bank debits to charge more overdraft fees,
consumers sued and recovered $1 billion. Most banks have since
stopped the practice.
"Our rule does not ban individual arbitration, as our opponents
falsely claim. It simply ensures that consumers have the option
of joining together to sue companies. Companies and consumers can
still use arbitration to resolve their differences, but companies
cannot unilaterally block group lawsuits.
"Opponents also claim that the rule benefits lawyers rather than
consumers. In reality, lawyers collect a small portion compared
with consumers, and only if they succeed. For every $10 that a
company pays out for wrongdoing, we found about $8 goes to
consumers and $2 goes to pay legal costs. In any event, banks
choose to hire lawyers to file class-action lawsuits, and ordinary
people deserve to make the same choice.
"Finally, this rule does not risk the safety or soundness of the
banking system. We estimate the potential costs of this rule for
the entire financial system at under $1 billion per year, whereas
banks alone made $171 billion in profits last year. The law
already bans mandatory arbitration clauses in financial contracts
for military service members and in mortgages (the largest
consumer financial market), yet the financial sector remains
strong.
"In truth, by blocking group lawsuits, mandatory arbitration
clauses eliminate a powerful means to get justice when a little
harm happens to a lot of people. It is the height of hypocrisy
for companies to say they're helping consumers by closing off the
very same legal option they use when they've been wronged.
"A cherished tenet of our justice system is that nobody should
escape accountability for breaking the law. Our rule restores
consumers' legal right to stand up for themselves and have their
day in court without having to wait on the government to act. That
is an idea everyone should support." [GN]
* DOL Seeks 18-Month Delay of Fiduciary Rule Implementation
-----------------------------------------------------------
Could technology solve the conflict between critics and advocates
of the DOL fiduciary rule's enforcement mechanism? Morningstar
says it can, reports BenefitsPro.com.
The DOL wants an 18-month delay of the rule's full implementation
and is apparently taking a hard look at the best interest contract
exemption; BICE is the lever that plaintiffs could use to launch
class-action lawsuits. Many in the industry hate BICE, while
consumer advocates support it.
Morningstar is suggesting a big-data solution in which every
client portfolio would be scored according to the "quality and
cost of investments, the appropriateness of asset allocation
relative to a specific investor's needs, and the value and extent
of personalized advice given," writes BenefitsPro.
Each portfolio would be benchmarked against thousands of others,
producing a clear best-interest score. the publication says.
"Moreover, the database could be applied to determine if a 401(k)
rollover recommendation satisfies the fiduciary rule's impartial
conduct standards," it says.
One benefit of that approach, according to Morningstar, is that it
would be more effective than lawsuits in ensuring fiduciary
portfolios. [GN]
* New Legislation to Enable Workers' Wage Theft Class Actions
-------------------------------------------------------------
Mark Gruenberg, writing for Press Associates Union News Service,
reports that saying too many bosses steal workers' wages,
congressional Democrats introduced legislation to crack down on
wage theft, through stiff fines, enabling worker class action
suits, and, in the worst cases, threats of criminal prosecution.
The measure is designed to particularly help low-wage workers, the
lawmakers said. But overall, citing Economic Policy Institute
data, they said employers steal at least $15 billion yearly from
workers.
"Today, across the country, many people are putting in long hours
on the job and working hard for an honest day's pay, only to have
their employers cheat them out of their wages," said Senate co-
sponsor Ed Markey, D-Mass.
"While the vast majority of employers do the right thing and
treat workers fairly, too many others force their workers to work
off the clock, refuse to pay workers the minimum wage, deny
workers overtime pay even after they work more than 40 hours a
week, steal workers' tips, or knowingly misclassify workers to
avoid paying fair wages.
"This bill will strengthen fundamental protections to allow
workers to get the money they have earned through hard work and it
will crack down on the corporations that subject workers to these
abuses. These steps will help ensure our country can work for all
Americans, not just the wealthiest few, so our economy grows from
the middle out, not the top down," he added.
Other sponsors of the Wage Theft Prevention and Wage Recovery Act
include lead House sponsor Rep. Rosa DeLauro, D-Conn., Rep. Bobby
Scott, D-Va., and Democratic Sens. Sherrod Brown of Ohio, Al
Franken of Minnesota, Dick Durbin of Illinois and Patty Murray of
Washington.
Key provisions of the legislation would:
-- Require employers to pay all wages to a wage theft victim.
Current law lets such victims recover only the minimum wage, plus
overtime pay.
-- Require employers to provide initial disclosures of the
terms of their employment and regular paystubs to all workers, and
fine them if they don't.
-- Order the employer to give a worker his or her final
paycheck within two weeks of the worker's departure or the by the
end of the relevant pay period, whichever is shorter.
-- Fine the employer $2,000 for each violation of the federal
minimum wage and overtime pay law, or for not giving workers their
"full compensation" when they leave. Willful or repeat offenders
would face $10,000 fines per violation. Right now, repeater face
$1,100 fines and first-timers aren't fined at all.
-- Increase damages wage theft victims can claim, from twice
the owed wages to triple the owed wages, plus interest. The worker
victim would also have four years, not two, to file a wage theft
claim. And if the employer retaliates against a worker-turned-
whistleblower, the employer would face a fine of quadruple the
owed wages, plus interest.
-- Raise the fines on employers who keep sloppy records, or
none at all, in their attempts to avoid convictions for wage
theft.
-- Make it easier for employees to take collective action to
recover their stolen wages. Right now, workers must 'opt-in' to
engage in a collective action under the minimum wage and overtime
pay law. The new legislation would automatically include them
unless they opt out.
-- Order the Labor Department to send cases of comprehensive
wage theft to the Justice Department for prosecution of the
employers.
* Recent Fifth Circuit Opinions Favor Class Action Waivers
----------------------------------------------------------
Daniel B. Pasternak, Esq., of Squire Patton Boggs (US) LLP, in an
article for The National Law Review, wrote that in early August,
the United States Court of Appeals for the Fifth Circuit issued
two decisions regarding class and collective action waivers. Like
its earlier decisions in D.R. Horton, Inc. and Murphy Oil USA,
Inc., both decisions supported employers use of waivers to
eliminate group lawsuits against them in employment cases. The
two new cases, Convergys Corp. v. NLRB and Logisticare Solutions,
Inc. v. NLRB, were both heard by the Fifth Circuit after the
National Labor Relations Board ("NLRB" or "Board") found each
employer had violated Section 8(a)(1) of the National Labor
Relations Act ("NLRA") by requiring applicants and employees to
sign stand-alone class and collective action waivers. (As a
reminder, Section 8(a)(1) of the NLRA prohibits employers from
interfering with employees rights under Section 7 of the NLRA.
Section 7 protects employees rights to act collectively to improve
the terms and conditions of their employment, which includes a
broad category of "other concerted activity.")
Several Circuit Courts--in addition to the Fifth Circuit--have
considered whether class and collective action waivers violate the
NLRA, as the NLRB repeatedly has held in its own administrative
decisions. What has resulted is a split in authority among the
federal courts of appeals on the issue. The United States Supreme
Court is scheduled to resolve that split by hearing three of these
cases as a consolidated matter in October 2017. One of the
original decisions leading to the split was D.R. Horton, Inc. v.
NLRB, which was a Fifth Circuit decision. In D.R. Horton, the
Fifth Circuit determined that class waivers did not violate
Section 7 the NLRA.Back to Convergys and Logisticare. Despite the
Fifth Circuits precedent holding to the contrary in earlier cases,
the NLRB determined in both cases that the class waivers in those
cases violated the NLRA because the right to participate in a
class or collective action is "other concerted activity"
explicitly protected by Section 7. The Board arrived at this
decision by distinguishing D.R. Horton as a case in which the
class waivers were part of an arbitration agreement, putting the
waivers under the protection of the Federal Arbitration Act. The
stand-alone class waivers in Convergys and Logisticare, the NLRB
argued, should be treated differently.
However, the Fifth Circuit vehemently disagreed with the Boards
take on D.R. Horton. In Convergys, which the Court heard before
Logisticare, the panel reiterated that the Fifth Circuit precedent
set by D.R. Horton is that the NLRA does not protect the right to
engage in class or collective lawsuits because participating in a
class action is not a substantive right, but instead is a
"procedure" that can be waived. The Convergys panel said this is
true whether such a waiver is part of an arbitration agreement or
a stand-alone agreement. The opinion pointedly stated, "The NLRB
has persistently clung to its view that Section 7 guarantees a
substantive right to class and collective actions, and we have
persistently declined to enforce Board orders based on this
disregard for our law."
Having first decided Convergys, the Fifth Circuit doubled down (or
perhaps properly stated, at least tripled down) on its position in
Logisticare, citing both Convergys and D.R. Horton in finding that
Logistic Are's stand-alone class and collective action waiver did
not violate the NLRA because class actions are not a substantive
right under Section 7. In Logisticare, however, the Board also
had gone one step further and argued that the class and collective
action waiver in that case also violated Section 8(a)(1) because
it was ambiguously worded such that employees might read it to
prohibit filing an unfair labor charge with the NLRB, an action
that is unquestionably protected by Section 7. This Board finding
relied again upon D.R. Horton and also Murphy Oil USA (another
Fifth Circuit decision, and one of the consolidated cases to be
heard by the Supreme Court this Fall) in which class and
collective action waivers stated employees were broadly waiving
things like "any claims" or "any disputes" in "any forum" (Murphy
Oil) and referred to "agency actions" and "lawsuits or other civil
proceedings" (D.R. Horton), which the Fifth Circuit determined
could reasonably be interpreted to include a charge with the NLRB.
In contrast, however, the Fifth Circuit said the Logisticare
waiver was specific -- the waiver only included "lawsuits" and
referred to "trial lawyers" and "trial by jury." This language,
the Court found, could not reasonably be interpreted to include
filing an unfair labor practice charge with the Board.
Notably in both Convergys and Logisticare, the majority decision
was delivered over dissenting opinions that expressed disagreement
with the Circuits precedent that class and collective actions are
not protected by Section 7, but nonetheless noted the panels
obligation to follow existing Circuit law absent an overruling
opinion by legislative action, en banc consideration by the
Circuit, or a Supreme Court decision. Decisions like these
continue to tee up the tension between employers and the NLRB over
class and collective action waivers, making the much-anticipated
Supreme Court decision even more critical. [GN]
* White House Says CFPB's Arbitration Rule Harms Consumers
----------------------------------------------------------
Beau Brunson, writing for Washington Examiner, reports that before
Congress left Washington, D.C., for the August recess, the Trump
administration signaled its support for repeal of a recent
Consumer Financial Protection Bureau (CFPB) rule that puts lawyers
before consumers.
In a Statement of Administration Policy, the White House wrote
that the CFPB's arbitration "rule would benefit trial lawyers by
increasing frivolous class-action lawsuits; harm consumers by
denying them the full benefits and efficiencies of arbitration;
and hurt financial institutions by increasing litigation expenses
and compliance costs."
Senator Elizabeth Warren, D-Mass., pushed back against the
administration, knowing that repealing the rule would be a high
priority in the fall session of Congress. In the hopes of
countering White House warnings that financially vulnerable
consumers bear a disproportionate share of this burden,
Sen. Warren sent a letter of her own to sixteen banks demanding
various information and data related to arbitration clauses.
Sen. Warren likely won't be getting the data she's looking for,
not only because the banks aren't obligated to provide it to her,
but because the numbers she wishes to see don't exist. The fact
is, consumers fare better under forced arbitration. While the
CFPB's rule enabling consumers to file class action suits has the
appearance of being consumer-friendly, it is nothing of the sort.
It contradicts the CFPB's own findings on the benefits of
arbitration and ensures class action lawyers receive substantially
greater compensation than those very consumers the bureau is
supposed to protect.
Proponents of the CFPB rule argue that mandatory arbitration
favors banks and credit card companies, asserting that consumers
tend to forgo arbitration altogether and instead opt to cut their
losses. However, a study conducted by the Bureau itself, and
presented to Congress in 2015, contradicts this argument.
In fact, according to the CFPB study, consumers regularly pursue
arbitration remedies for disputed charges, and they often employ
legal counsel. The study also notes arbitration cases are
typically completed quickly (i.e. within months), and the average
award for consumers is just under $5,400.
If the CFPB was concerned that consumers are unaware of how
arbitration clauses worked, the bureau could have proposed a rule
requiring additional disclosure or more comprehensive consumer
education. However, the agency instead sought to prohibit
mandatory arbitration altogether and open a Pandora's Box of
class-action lawsuits.
In other words, the CFPB seems to have taken the position that
there just aren't enough consumers hiring lawyers.
Conversely, the CFPB study also shows that class-action litigation
takes years, and in each case examined, the Bureau found that the
complainant either withdrew the suit or settled, never going to
trial. Of the $1.1 billion granted to complainants in the settled
cases, consumers only received an average of $32, often in the
form of awards with no cash value, such as complimentary services
like credit score reporting or credit monitoring. However, lawyer
fees averaged $1 million per case, or about 41 percent of
settlement awards, increasing in cases with fewer class
participants.
While these litigators have a financial stake in seeing a class-
action suit to completion, they have no real impetus to ensure
that consumers get the best deal possible. The mission of the
CFPB is to ensure that consumer financial products and services
work for all Americans, not foster a system that encourages
massive and expensive litigation at the expense of taxpayers and
the individual consumer.
This rule will also create unintended consequences. Keith Noreika,
the acting Comptroller of Currency and primary banking regulator
for American banks, sent a letter on July 10 to the CFPB saying,
"A variety of OCC [Office of the Comptroller of the Currency]
staff have reviewed the CFPB's arbitration proposal . . . and have
expressed concerns about its potential impact on the institutions
that make up the federal banking system and its customers."
Charged with ensuring the safety and soundness of the United
States banking system, the OCC is rightly concerned with how the
CFPB's rule will impact the banking system. Companies will limit
the credit access to the least profitable segment of consumers --
often those with the fewest financial resources. Banks will
increase checking account fees, card interest rates, and minimum
balance requirements, making it even harder for lower income
Americans to afford basic banking services.
In its zeal to unleash litigation, the bureau charged with
consumer protection has forgotten its own purpose. Both the
direct and indirect consequences of this rule are clear, and the
House has already voted to repeal and reject the rule. Despite
Senator Warren's attempt to run out the clock on the Congressional
Review Act, when Congress returns from recess, the Senate must
move quickly to repeal the rule and ensure consumers don't
ultimately pay the price for misguided CFPB actions.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Marion
Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala,
Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2017. All rights reserved. ISSN 1525-2272.
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