/raid1/www/Hosts/bankrupt/CAR_Public/171228.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 28, 2017, Vol. 19, No. 257
Headlines
ACCOUNTABLE HEALTHCARE: Advantage Suit Seeks to Certify Class
ACORDA THERAPEUTICS: Wolf Haldenstein Files Securities Suit
ABBVIE INC: "Rubinstein" Suit Seeks to Certify Class
AFFINION GROUP: Appellate Proceedings Underway
AFFINION GROUP: Connecticut Suit vs. Webloyalty Still Ongoing
AFFINION GROUP: Calif. Class Suit vs. Webloyalty Still Ongoing
AMAZON.COM INC: Workers Sue, Claiming Denied OT Pay, Rest Breaks
APPLIANCE RECYCLING: Suit over ENERGY STAR(R) Rating Underway
ASPLUNDH TREE: "Belloso" Suit Seeks to Certify Employee Class
AUTOLIV INC: Settlement Amount in Antitrust Suit Already Paid
BANC OF CALIFORNIA: Class Certification Sought in Securities Case
BRASILAGRO: Motions to Appoint Lead Plaintiff & Counsel Pending
BRASILAGRO: Appeals in IDBD Suit Still Pending Israeli Court
BROADBAND INSTALLATIONS: Oxford et al. Suit Wins Certification
CALIFORNIA: Protective Order Issued in Suit vs. School District
CHINA COMMERCIAL: Court Clarifies Allocation on Attorneys' Fees
CHINA COMMERCIAL: Payment of Settlement Shares Awaits Court OK
CHINA COMMERCIAL: "Rojas" Stockholder Suit Dismissed
CONSUMERS ENERGY: Gas Index Price Reporting Suit Still Ongoing
CORECIVIC OF TENNESSEE: "Snead" Suit Seeks to Certify 3 Classes
CORELOGIC INC: "Henderson" Case Fairness Hearing in Jan. 2018
CORELOGIC INC: "Witt" Case Fairness Hearing in Jan. 2018
CORELOGIC INC: SafeRent Unit Defending Against "Feliciano" Suit
DIRECTV LLC: Bid to Certify Class in Flynn-Stead Case Shelved
DOLPHIN ENTERTAINMENT: Bid to Consolidate Suit Denied
DOLPHIN ENTERTAINMENT: 42West Seeks Dismissal of Cross-Claim
EMPIRE INTERNATIONAL: Conditional Class Certification Bid Dropped
ENSCO PLC: Atwood Merger-Related Suit Voluntarily Dismissed
FARIS PROPERTIES: Lizotte Seeks to Conditionally Certify Class
FIELDTURF USA: New Castle School District Seeks CA Status
GNC HOLDINGS: Trial over Calif. Wage & Break Claims in July 2018
GNC HOLDINGS: Appeal in Fluctuating Workweek Suit Underway
GOOGLE INC: Sued for Allegedly Stockpiling Users' Personal Info
GREAT PLAINS LENDING: Banks Seeks to Certify RICO Suit
HEALTH CARE: Court Narrows Claims in Insurance Coverage Suit
HOMELAND SECURITY: Class Certification Sought in Inland Suit
INDEPENDENT BANK: Still Defends Suit over BOH Acquisition
INTERCONTINENTAL EXPORT-IMPORT: DuPont Sued over Warehouse Fire
KATANGA MINING: Rosen Law Files Securities Class Action Lawsuit
KINDRED HEALTHCARE: Jan. 24 Settlement Fairness Hearing Set
KINDRED HEALTHCARE: Al-Najjar Class Certification Bid Vacated
L3 TECHNOLOGIES: Deal in EoTech Suit Okayed, Case Dismissed
L3 TECHNOLOGIES: NY Securities Action Dismissed With Prejudice
L3 TECHNOLOGIES: 401(k) Plan Suit Dismissed with Leave to Amend
LM FUNDING: Brickell Bay Suit Remains Stayed
LOCK HAVEN: Class-Action Status Sought in Age Bias Lawsuit
LOUISIANA: Suit Over SBL Contract Remains in District Court
MAERSK LINE: 3d Cir. Affirms Summary Judgment Against Seafarer
MIAMI, OH: "Marcum" Suit Seeks to Certify Class
MONTREAL: Minister Calls on School Boards to Create List of Items
NEW MEXICO: Court Denies Move to Dismiss Age Discrimination Suit
NORTH CAROLINA: Hawkins Seeks to Certify Class Suit v. DOHHS
NORTHLAND GROUP: Court Certifies "Santiago" Settlement Class
NORTHWEST BIOTHERAPEUTICS: "Lerner" Class Suit Terminated
NORTHWEST BIOTHERAPEUTICS: Court Approves Settlement in "Tharp"
NOVATION COMPANIES: Bid to Stay Litigation Pending Appeal Denied
NOVOCURE LIMITED: Bid to Dismiss Class Suit Underway
PHILIP MORRIS: Appeals in ADESF Suit in Brazil Still Ongoing
PHILIP MORRIS: Public Prosecutor's Class Action vs. Unit Ongoing
PHILIP MORRIS: "Letourneau" Class Action vs. Unit Still Ongoing
PHILIP MORRIS: "Blais" Class Action vs. Unit Still Ongoing
PHILIP MORRIS: Counsel in "Kunta" Case to Pursue Another Suit
PHILIP MORRIS: Preliminary Motions Still Pending in "Adams" Suit
PHILIP MORRIS: Counsel in "Semple" to Pursue Another Class Suit
PHILIP MORRIS: Counsel in "Dorion" to Pursue Another Class Suit
PHILIP MORRIS: Continues to Defend "McDermid" Class Action
PHILIP MORRIS: Continues to Defend "Bourassa" Class Action
PHILIP MORRIS: "Jacklin" Case Remains Dormant
PRICEWATERHOUSECOOPERS: "Rabin" Suit Seeks to Certify Class
QUEENSLAND: Class Action Suit Over 2011 Floods Begins
RUBY TUESDAY: Granted Final Approval of $5-Mil. Settlement
S.A.W. ENTERTAINMENT: Court Stays Proceedings in "Hughes" Suit
SAL-MARK RESTAURANT: Court Certifies Mariner's Workers Class
SEAWORLD ENTERTAINMENT: Investors Win Class-Action Status
SEI INVESTMENTS: Stanford Trust-Related Suits Still Ongoing
SYNCHRONY FINANCIAL: "Campbell" and "Neal" TCPA Suits Underway
SYNCHRONY FINANCIAL: Kincaid TCPA Class Action Suit Underway
T. ROWE PRICE: Says ERISA Class Suit Underway
TACOMANIA INC: "Sanchez" Suit Seeks to Certify Employees Class
TDJ OILFIELD: "Barnhill" Suit Has Conditional Class Certification
THRIFTY PAYLESS: Denial of Class Certification in "Noel" Affirmed
TIVITY HEALTH: Brower Piven Files Securities Class Action
TOYOTA MOTOR: Wiring Attracts Rodents, Class Action Suit
TRANZVIA LLC: Court Grants Dismissal of "Naiman" TCPA Suit
UBER TECHNOLOGIES: "Dulberg" Suit Seeks to Certify Class
UBER TECHNOLOGIES: Chicago Hires Law Firm to Sue Over Data Breach
UBER TECHNOLOGIES: Sued in Alberta Over Concealed Cyberattack
UNION PACIFIC: Antitrust Suit Denied Class Certification
UNITED STATES: "Mosquera" Suit Seeks Class Certification
UNITED STATES: Ibrahim, et al. Seek to Certify Class
VANGUARD HEALTH: Revised Class Certification Bid Unsealed
VANTIV INC: Settlement of Class Suit vs. Mercury Okayed
VIRTUS INVESTMENT: Court Denies 4th Bid to Amend Securities Suit
WATERSTONE MORTGAGE: Court Won't Vacate Arbitrator's Award
WELLS FARGO: New York Class Action Suit Ongoing
WENNER MEDIA: Court Certifies Settlement Class in "Sullivan" Suit
WEST VIRGINIA: "Burch" Suit Seeks Class Certification
WORK OUT WORLD: TCPA Class Action Over Single Call Lives On
WORLD WRESTLING: Laurinaitis and Windham Suit Still Ongoing
WORLD WRESTLING: Stipulation to Dismiss "Bagwell" Suit Okayed
WW GRAINGER: "Davies" Suit Closed Following Settlement
ZOOMPASS HOLDINGS: New Jersey Class Action Suit Underway
* Clubok, Deeley Join Latham & Watkins' Litigation Practice
*********
ACCOUNTABLE HEALTHCARE: Advantage Suit Seeks to Certify Class
-------------------------------------------------------------
In the lawsuit styled ADVANTAGE HEALTHCARE, LTD., an Illinois
corporation, individually and as the representatives of a class
of similarly-situated persons, the Plaintiff, v. ACCOUNTABLE
HEALTHCARE STAFFING, INC., the Defendant, Case No. 1:17-cv-09149
(N.D. Ill.), the Plaintiff moves for entry of an order certifying
a class of:
"each person or entity that was sent one or more telephone
facsimile messages after December 20, 2013 offering staffing
services from ahcstaff.com that did not inform the fax
recipient that he or she may make a request to the sender of
the advertisement not to send any future facsimile
advertisements and that failure to comply with the request
within 30 days in unlawful."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=obBEtzLB
The Plaintiff is represented by:
Phillip A. Bock, Esq.
Tod A. Lewis, Esq.
David. M. Oppenheim, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. La Salle St., Ste. 1000
Chicago, IL 60602
Telephone: (312) 658 5500
Facsimile: (312) 658 5555
ACORDA THERAPEUTICS: Wolf Haldenstein Files Securities Suit
-----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP disclosed that a class
action lawsuit has been filed against Acorda Therapeutics, Inc.
("Acorda" or the Company") (NASDAQ:ACOR) in the United States
District Court for the Southern District of New York with a class
period between April 18, 2016, and November 14, 2017, both dates
inclusive.
Investors who have incurred losses in Acorda Therapeutics, 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 incurred losses in the shares of Acorda Therapeutics,
Inc. and would like to assist with the litigation process as a
lead plaintiff, you may, no later than January 17, 2018, request
that the Court appoint you lead plaintiff of the proposed class.
Please contact Wolf Haldenstein to learn more about your rights
as an investor in Acorda Therapeutics, Inc.
The field Complaint alleges that throughout the Class Period,
Defendants made materially false and misleading statements
regarding the Company's business, operational and compliance
policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that:
-- tozadenant entailed significant undisclosed safety risks;
-- accordingly, the Company had overstated tozadenant's
approval prospects and commercial viability;
-- for the foregoing reasons, the Company had likewise
overstated the benefits of the Biotie Acquisition; and
-- as a result of the foregoing, Acorda's shares traded at
artificially inflated prices during the Class Period, and
class members suffered significant losses and damages.
On November 15, 2017, Acorda disclosed the deaths of several
patients in the Company's final-stage studies of tozadenant.
Acorda advised investors that it had paused new enrollment in
the drug's long-term safety studies, pending further
discussion with the independent Data Safety Monitoring Board and
the U.S. Food and Drug Administration.
On this news, Acorda's share price fell $11.20, or 39.72%, to
close at $17.00 on November 15, 2017, a market capitalization
drop of $525 million.
Wolf Haldenstein Adler Freeman & Herz LLP 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.
Kevin Cooper, Esq.
Wolf Haldenstein Adler Freeman & Herz LLP
Gregory Stone
Director of Case and Financial Analysis
Email: gstone@whafh.com
kcooper@whafh.com
Tel: (800) 575-0735
(212) 545-4774 [GN]
ABBVIE INC: "Rubinstein" Suit Seeks to Certify Class
----------------------------------------------------
In the lawsuit styled MURRAY RUBINSTEIN, JEFFREY F. ST. CLAIR,
WILLIAM MCWADE, HARJOT DEV and VIKAS SHAH, Individually and On
Behalf of All Others Similarly Situated, the Plaintiffs, v.
RICHARD GONZALEZ and ABBVIE INC., the Defendants, Case No. 1:14-
cv-09465 (N.D. Ill.), the Lead Plaintiffs move the Court for an
order granting class certification of:
"all persons who purchased or otherwise acquired American
Depository Shares or "ADS" or purchased call options or sold
put options (collectively, "Securities") of Shire plc
("Shire") during the short period between September 29 and
October 14, 2014, inclusive (the "Class Period")."
The Plaintiffs also ask the Court to be appointed Class
Representatives and that their counsel, Gardy & Notis, LLP and
Wolf Haldenstein Adler Freeman & Herz LLP be appointed Class
Counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=5QNbDgdU
The Plaintiffs are represented by:
Mark C. Rifkin, Esq.
Theodore B. Bell, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545 4600
Facsimile: (212) 545 4758
- and -
James S. Notis, Esq.
Jennifer Sarnelli, Esq.
Meagan A. Farmer, Esq.
GARDY & NOTIS, LLP
Tower 56
126 East 56th Street, 8th Floor
New York, NY 10022
Telephone: (212) 905 0509
Facsimile: (212) 905 0508
AFFINION GROUP: Appellate Proceedings Underway
----------------------------------------------
Affinion Group Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that the court of appeals was
slated to hold oral argument for October 27, 2017 in a class
action lawsuit in the United States District Court for the
District of Connecticut against the company and Trilegiant
Corporation.
On June 17, 2010, a class action complaint was filed against the
Company and Trilegiant Corporation ("Trilegiant") in the United
States District Court for the District of Connecticut. The
complaint asserts various causes of action on behalf of a
putative nationwide class and a California-only subclass in
connection with the sale by Trilegiant of its membership
programs, including claims under the Electronic Communications
Privacy Act ("ECPA"), the Connecticut Unfair Trade Practices Act
("CUTPA"), the Racketeer Influenced Corrupt Organizations Act
("RICO"), the California Consumers Legal Remedies Act, the
California Unfair Competition Law, the California False
Advertising Law, and for unjust enrichment.
On April 26, 2012, the court consolidated two additional lawsuits
making substantially similar allegations that were filed against
the Company, Trilegiant, and numerous other defendants. An
additional lawsuit, which was identical in all respects to these
cases, was also consolidated on March 28, 2014.
On December 7, 2012, all Defendants filed motions seeking to
dismiss the consolidated amended complaint. On March 28, 2014,
the court entered orders granting in part and denying in part the
motions to dismiss. After the motions, claims under the ECPA and
CUTPA and for unjust enrichment remained pending against the
Company and Trilegiant. On February 29, 2016, the Company filed a
Motion for Summary Judgment on the claims of the remaining named
Plaintiffs. On August 23, 2016, the court granted the Company's
motion for Summary Judgment as to all remaining claims against
the Defendants. Plaintiffs appealed. Briefing of the appeal is
complete, and the court of appeals has scheduled oral argument
for October 27, 2017.
Affinion Group Holdings, Inc. engages in designing, marketing,
and servicing customer engagement and loyalty solutions
worldwide. The Company was founded in 1973 and is headquartered
in Stamford, Connecticut.
AFFINION GROUP: Connecticut Suit vs. Webloyalty Still Ongoing
-------------------------------------------------------------
Affinion Group Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that the company continues to
defend itself against a putative class action suit in
Connecticut.
On August 27, 2010, a former member of Webloyalty's membership
programs filed a putative class action lawsuit against
Webloyalty, one of its former clients, and one of the credit card
associations in the United States District Court for the District
of Connecticut (the "Connecticut District Court"). The Plaintiff
alleged that Webloyalty's enrollment of the Plaintiff using debit
card information obtained from a third party via data pass, and
not directly from the Plaintiff, was deceptive. The Plaintiff
seeks to represent a nationwide class of consumers whose credit
or debit card data was transferred to Webloyalty via data pass on
or after October 1, 2008. The complaint, which was amended
several times, asserted, among others, claims for violations of
the Electronic Funds Transfer Act ("EFT"), the ECPA, and CUTPA as
well as other common law claims.
On October 15, 2015, the Connecticut District Court entered
judgment dismissing all claims with prejudice. The Plaintiff
appealed that judgment as to Webloyalty and its former client to
the United States Court of Appeals for the Second Circuit (the
"Second Circuit"). On December 20, 2016, the Second Circuit
affirmed the District Court of Connecticut's dismissal in part,
but reversed and remanded the dismissal of claims under CUTPA and
the EFT. On March 23, 2017, the District Court of Connecticut
held a scheduling conference and took the parties' respective
recommendations for the remaining case schedule under advisement.
The defendants have answered the complaint and denied any
liability. On June 30, 2017, the Plaintiff filed his opposition
to this motion, and the defendants' reply was filed on July 14,
2017.
Affinion Group Holdings, Inc. engages in designing, marketing,
and servicing customer engagement and loyalty solutions
worldwide. The Company was founded in 1973 and is headquartered
in Stamford, Connecticut.
AFFINION GROUP: Calif. Class Suit vs. Webloyalty Still Ongoing
--------------------------------------------------------------
Affinion Group Holdings, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that the company continues to
defend itself against a putative class action suit in California.
On June 7, 2012, a class action lawsuit was filed against
Webloyalty in the U.S. District Court for the Southern District
of California (the "District Court of S.C."). After filing
several amended complaints, the Plaintiff asserted a variety of
claims, including claims under the EFT, the ECPA, California
Business and Professional Code Section 17200, et seq. (the
"CBPC"), CUTPA, various privacy statutes, and common law. The
Plaintiff seeks to represent a nationwide class of consumers
whose credit or debit card information was obtained by Webloyalty
via data pass, and had their credit or debit cards charged on or
after October 1, 2008. On June 22, 2015, the District Court of
S.C. entered judgment dismissing the Plaintiff's federal claims
with prejudice, and his state claims without prejudice. The
Plaintiff appealed that judgement to the United States Court of
Appeals for the Ninth Circuit (the "Ninth Circuit"). On March 28,
2017, the Ninth Circuit affirmed the dismissal of the Plaintiff's
ECPA and privacy-based state law claims, but reversed and
remanded the dismissal of other claims, including the Plaintiff's
claims under the EFT, CBPC, and CUTPA. On September 5, 2017, the
Plaintiff filed a third amended complaint, which asserts the
claims that were remanded by the Ninth Circuit. Webloyalty has
answered the complaint and denied all liability. The District
Court of S.C. has not yet entered a scheduling order.
Affinion Group Holdings, Inc. engages in designing, marketing,
and servicing customer engagement and loyalty solutions
worldwide. The Company was founded in 1973 and is headquartered
in Stamford, Connecticut.
AMAZON.COM INC: Workers Sue, Claiming Denied OT Pay, Rest Breaks
----------------------------------------------------------------
Mark Glover, writing for The Sacramento Bee, reports that workers
at Amazon.com's California distribution centers, including the
recently opened Sacramento fulfillment center at Metro Air Park,
have filed a class-action complaint that contends they have been
denied rest breaks, overtime pay and appropriate payment of
wages.
The complaint, filed November 27 in Sacramento County Superior
Court names Amazon and Golden State FC LLC, a Palm Springs firm
identified as the company that runs Amazon facilities in the
state, as defendants.
The primary plaintiff in the filing is identified as Romeo Palma,
a Sacramento resident who works at Amazon's fulfillment center
near Sacramento International Airport. The complaint says Palma
"is assisting with packaging and fulfillment of internet
merchandise orders for shipment."
In a phone interview Thursday, Los Angeles attorney Joshua
Haffner, representing the workers, said the suit covers "all"
Amazon facilities in California, including various satellite
facilities besides the typically sprawling fulfillment centers.
"Amazon should pay its non-exempt workers according to law," he
said. "They're working long shifts. They should get rest breaks
and be paid overtime."
Haffner said "thousands" of Amazon workers are part of the
complaint, which asks the court to maintain it as a class-action
suit.
Amazon released this statement: "We follow all state and federal
employment regulations, but we have a long-standing practice of
not commenting on pending litigation."
Seattle-based Amazon formally launched its 855,000-square-foot
Sacramento fulfillment center Oct. 25. The site is designed to
sort, pack and ship comparatively small customer items such as
books, electronics and toys. It's expected to ultimately employ
about 1,500.
The local facility and other Amazon centers statewide currently
are staffed to handle the holiday season shopping rush, when
millions of customer orders and deliveries will be handled
between now and Christmas Day.
Amazon also operates extensive distribution centers in other
California communities, including Patterson and San Bernardino.
The complaint contends that Palma and other Amazon employees
regularly work more than 10 hours at a time, "without (Amazon)
providing or compensating for a third rest break at the overtime
rate, as required by California law."
The filing mentions specific times when Palma allegedly was
denied a required rest break, and accompanying overtime pay,
including Nov. 18-19.
The complaint also cites what it calls Amazon's "general
practice" of requiring workers to clock-in at a specific site at
the large fulfillment centers, then travel/walk to their work
shift site, adding yet more uncompensated time to long shifts.
The complaint seeks payment of unpaid wages, restitution and
statutory penalties. [GN]
APPLIANCE RECYCLING: Suit over ENERGY STAR(R) Rating Underway
-------------------------------------------------------------
Appliance Recycling Centers of America, Inc. said in its Form
10-Q Report filed with the Securities and Exchange Commission for
the quarterly period ended September 30, 2017, that Whirlpool
Corporation, the company, and various distributors of Whirlpool
products, including Sears, The Home Depot, and Lowe's continues
to defend a class action suit related to the Energy Star
qualification rating established by the U.S. Department of Energy
and the Environmental Protection Agency.
In February 2012, various individuals commenced a class action
lawsuit against Whirlpool Corporation ("Whirlpool") and various
distributors of Whirlpool products, including Sears, The Home
Depot, Lowe's and the company, alleging certain appliances
Whirlpool sold through its distribution chain, which includes the
company, were improperly designated with the ENERGY STAR(R)
qualification rating established by the U.S. Department of Energy
and the Environmental Protection Agency.
The claims against the company include breach of warranty claims,
as well as various state consumer protection claims. The amount
of the claim is, as yet, undetermined. Whirlpool has offered to
fully indemnify and defend its distributors in this lawsuit,
including the company, and has engaged legal counsel to defend
itself and the distributors.
Appliance Recycling said "We are monitoring Whirlpool's defense
of the claims and believe the possibility of a material loss is
remote."
Appliance Recycling Centers of America, Inc. and Subsidiaries are
in the business of being the bridge between utilities or
manufacturers to their customers by recycling, replacing, and
selling major household appliances in North America. The company
is based in Minneapolis, Minnesota.
ASPLUNDH TREE: "Belloso" Suit Seeks to Certify Employee Class
-------------------------------------------------------------
In the lawsuit styled MILTON ANTONIO BELLOSO, individually
and on behalf of all those similarly situated, the Plaintiffs, v.
ASPLUNDH TREE EXPERT, CO. and ASPLUNDH TREE EXPERT, LLC., the
Defendants, Case No. 6:17-cv-02020-PGB-GJK (M.D. Fla.), the Class
Representative asks the Court to enter an Order certifying a
class of:
"all Employees of Asplundh who: (1) are or were employed as
"General Foreperson" in Florida during the preceding three
years; (2) were paid an "hourly rate;" and (3) worked more
than forty hours in a work week without being paid proper
overtime compensation."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=W5t3NBOs
The Plaintiff is represented by:
Scott C. Adams, Esq.
N. Ryan Labar, Esq.
LABAR & ADAMS, P.A.
2300 East Concord Street
Orlando, FL 32803
Telephone: (407) 835 8968
Facsimile: (407) 835 8969
E-mail: sadams@labaradams.com
rlabar@labaradams.com
AUTOLIV INC: Settlement Amount in Antitrust Suit Already Paid
-------------------------------------------------------------
Autoliv, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that an antitrust case settlement has
received the required court approvals and is final, with amounts
being paid in 2017.
The Company is subject to civil litigation alleging anti-
competitive conduct in the U.S. and Canada. Specifically, the
Company, several of its subsidiaries and its competitors were
named as defendants in a total of nineteen purported antitrust
class action lawsuits filed between June 2012 and June 2015.
Fifteen of these lawsuits were filed in the U.S. and were
consolidated in the Occupant Safety Systems (OSS) segment of the
Automobile Parts Antitrust Litigation, a Multi-District
Litigation (MDL) proceeding in the United States District Court
for the Eastern District of Michigan. Plaintiffs in the U.S.
cases sought to represent four purported classes - direct
purchasers, auto dealers, end-payors, and, as of the filing of
the last class action in June 2015, truck and equipment dealers -
who purchased occupant safety systems or components directly from
a defendant, indirectly through purchases or leases of new
vehicles containing such systems, or through purchases of
replacement parts.
In May 2014, the Company, without admitting any liability,
entered into separate settlement agreements with representatives
of the three classes of plaintiffs then pending in the MDL.
Pursuant to the settlement agreements, the Company agreed to pay
$40 million to the direct purchaser settlement class, $6 million
to the auto dealer settlement class, and $19 million to the end-
payor settlement class, for a total of $65 million. This amount
was expensed during the second quarter of 2014.
In January 2015, the MDL court granted final approval of the
direct purchaser class settlement, which had been reduced to
approximately $35.5 million because of opt-outs; in December
2015, the MDL court granted final approval of the auto dealer
class settlement; and in June 2016, the MDL court granted final
approval of the end-payor class settlement, over the objections
of several individual class members, some of whom appealed the
MDL court's approval of the Company's end-payor settlement and
several other defendants' settlements that were approved at the
same time. These appeals have been voluntarily dismissed, and the
MDL court's approval of the Company's settlement with the end-
payor class became final as of the last such dismissal, on
September 20, 2017.
In addition, several individuals and one insurer (and its
affiliated entities) have opted-out of the pending end-payor
class settlements, including the Company's settlement. The class
settlements do not resolve any claims of settlement class members
who opt-out of the settlements or the unasserted claims of any
purchasers of occupant safety systems who are not otherwise
included in a settlement class, such as states and
municipalities.
In September 2016, the insurer (and its affiliated entities) that
opted out of the end-payor class settlement filed an antitrust
lawsuit in the United States District Court for the Eastern
District of Michigan, the venue for the MDL, against the Company
and the other settling defendants in the end-payor class
settlement. The defendants' motion to dismiss the complaint on
various grounds is pending. The Company cannot predict or
estimate the duration or ultimate outcome of this matter.
In March 2015, the Company, without admitting any liability,
reached agreements regarding additional settlements to resolve
certain direct purchasers' global (including U.S.) or non-U.S.
antitrust claims that were not covered by the direct purchaser
class settlement described above. The total amount of these
additional settlements was $81 million. Autoliv expensed during
the first quarter of 2015 approximately $77 million as a result
of these additional settlements, net of existing amounts that had
been accrued in 2014.
In April 2016, the Company entered into a settlement agreement
with the truck and equipment dealers class for an amount that is
not material to the Company's results of operations. In November
2016, the MDL court granted final approval of the settlement and
on February 3, 2017, the MDL court entered a final judgment
dismissing the case against the Company.
The remaining four antitrust class action lawsuits are pending in
Canada (Sheridan Chevrolet Cadillac Ltd. et al. v. Autoliv, Inc.
et al., filed in the Ontario Superior Court of Justice on January
18, 2013; M. Serge Asselin v. Autoliv, Inc. et al., filed in the
Superior Court of Quebec on March 14, 2013; Ewert v. Autoliv,
Inc. et al., filed in the Supreme Court of British Columbia on
July 18, 2013; and Cindy Retallick and Jagjeet Singh Rajput v.
Autoliv ASP, Inc. et al., filed in the Queen's Bench of the
Judicial Center of Regina in the province of Saskatchewan on May
14, 2014). The Canadian cases assert claims on behalf of putative
classes of both direct and indirect purchasers of occupant safety
systems. In February 2017, the Company entered into a settlement
agreement with plaintiffs in three of the four class actions to
settle on a nationwide class basis for an amount that is not
material to the Company's results of operations. The Company
accrued amounts for the period ended December 31, 2016 in
connection with these claims. The settlement has received the
required court approvals and is final, with amounts being paid in
2017. This national settlement includes the claims of the
putative members of the fourth class action.
Autoliv Inc. is the world's largest automotive safety supplier
with sales to all leading car manufacturers worldwide. The
company, Inc., through its subsidiaries, develops, manufactures,
and supplies automotive safety systems to the automotive industry
worldwide. The company is based in Stockholm, Sweden.
BANC OF CALIFORNIA: Class Certification Sought in Securities Case
-----------------------------------------------------------------
In the lawsuit re: BANC OF CALIFORNIA SECURITIES LITIGATION, Case
No. 8:17-cv-00118-AG-DFM (C.D. Cal.), the Lead Plaintiff will
move the Court on April 2, 2018, for an order:
1. granting class certification;
2. appointing Plaintiff as Class Representative; and
3. appointing Robbins Geller Rudman & Dowd LLP as Class
Counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=RmhlZY5Q
The Plaintiff is represented by:
Laurie L. Largent, Esq.
Matthew I. Alpert, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231 1058
Facsimile: (619) 231 7423
E-mail: llargent@rgrdlaw.com
malpert@rgrdlaw.com
BRASILAGRO: Motions to Appoint Lead Plaintiff & Counsel Pending
---------------------------------------------------------------
BrasilAgro - Brazilian Agricultural Real Estate Company said in
its Form 10-K report filed with the U.S. Securities and Exchange
Commission for the fiscal year ended June 30, 2017, that motions
for appointment of lead plaintiff and class counsel remain
pending in a class action suits that is now pending before to the
U.S. District Court for the Southern District of New York.
On April 29, 2016, a putative shareholder class action was filed
against Cresud S.A.C.I.F. y A. and its officers and directors
and, on May 9, 2016, a putative shareholder class action was
filed against IRSA- Inversiones y Representaciones Sociedad
Anonima and Irsa Popriedades Comerciales S.A., Cresud and their
officers and directors (some of which are also our directors), in
both cases in the United States District Court for the Eastern
District of Pennsylvania. The complaints assert violations of the
federal securities laws on behalf of persons that purchased ADRs
issued by IRSA and/or Cresud (as the case may be) during a
certain period of time and allege that defendants made materially
false and misleading statements and omissions relating to the
investment of those companies in IDB Development Corp Ltd. (or
IDBD).
These class actions were transferred to the United States
District Court for the Southern District of New York on July 14,
2016, and were referred to Judge Vernon S. Broderick on July 19,
2016. In each action, a putative class representative has filed a
motion to be appointed as lead plaintiff and to appoint class
counsel. Both such motions remain pending before the Court.
BrasilAgro - Brazilian Agricultural Real Estate Company is a
corporation (sociedade por acoes) organized under the laws of
Brazil, and was incorporated on September 23, 2005. The company
focuses on the acquisition, development and exploitation of
agricultural properties that it believe to be possess significant
potential for cash flow generation and value appreciation. The
company is based in Sao Paulo, Brazil.
BRASILAGRO: Appeals in IDBD Suit Still Pending Israeli Court
------------------------------------------------------------
BrasilAgro - Brazilian Agricultural Real Estate Company said in
its Form 10-K report filed with the U.S. Securities and Exchange
Commission for the fiscal year ended June 30, 2017, an appeal is
pending before the Israeli Supreme Court related to a class
action against IDB Development Corp Ltd.
The Company said, "In June 2015, an application for a Israeli
court to approve the commencement of a class action against IDB
Development Corp Ltd. (or IDBD), IDBD's directors (some of which
are also our directors), Dolphin Netherlands B.V. and C.A.A Extra
Holdings Ltd. was filed by individuals who argue that IDBD's
controlling shareholders and board of directors acted in concert
to frustrate the sale of shares of Clal Insurance Enterprises
Holdings Ltd (or Clal) to JT Capital Fund. The applicants argue
that this caused them material damages as, under the terms of the
debt restructuring of IDBD's holding company, IDB Holdings
Corporation Ltd., with its creditors, they would have been
entitled to receive a larger payment had the above mentioned sale
been consummated. Furthermore, they allege that the 2014 and 2015
rights offerings of IDBD discriminated against the minority
shareholders."
"On March 21, 2016, the respondents filed a motion to dismiss
this class action application. On June 2, 2016, the Court
partially accepted this motion, and ordered the applicants to
file an amended class action application that would include only
the arguments and remedies with respect to the said Clal
transaction. On August 2, 2016, the respondents filed a motion to
appeal (regarding the decision not to dismiss the arguments
concerning the Clal transaction) and, on August 14, 2016, the
applicants filed an appeal (regarding the decision to dismiss the
arguments concerning the rights offering) both before the Israeli
Supreme Court."
BrasilAgro - Brazilian Agricultural Real Estate Company is a
corporation (sociedade por acoes) organized under the laws of
Brazil, and was incorporated on September 23, 2005. The company
focuses on the acquisition, development and exploitation of
agricultural properties that it believe to be possess significant
potential for cash flow generation and value appreciation. The
company is based in Sao Paulo, Brazil.
BROADBAND INSTALLATIONS: Oxford et al. Suit Wins Certification
--------------------------------------------------------------
In the lawsuit styled SCOTT OXFORD, CHRISTOPHER COLEMAN, JONATHAN
GUY, and TIFFANY GOTSIS, individually and on behalf of all
persons similarly situated, the Plaintiffs, v. BROADBAND
INSTALLATIONS OF IOWA, LLC, and MEDIACOM COMMUNICATIONS CORP.,
Case No. 4:17-cv-00178-SMR-RAW (S.D. Iowa), the Hon. Judge
Stephanie M. Rose entered an order:
1. granting in part Defendants' motion for partial dismissal
and denying remainder of Defendants' motion;
2. granting Plaintiffs leave to amend their Complaint and
directing Plaintiff to have thirty days in which to file
their amended complaint;
3. granting Plaintiffs' motion for conditional certification
consistent with the provisions of this Order;
4. directing Defendants to turn over to counsel for Plaintiffs
the names, last known addresses, and email addresses of
putative members of the class within fourteen days of this
Order; and
5. directing parties to meet and confer to reach an agreement
regarding the language of the notice within twenty-one days
of this Order, and after such time, the parties will submit
notice and consent forms for judicial approval.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=S3pw0tuo
CALIFORNIA: Protective Order Issued in Suit vs. School District
---------------------------------------------------------------
The United States District Court for the Northern District of
California, San Francisco Division, issued a Protective Order
based on Parties' Stipulation in the case captioned STUDENT A, by
and through PARENT A, her guardian; STUDENT B, by and through
PARENT B, his guardian; STUDENT C, by and through PARENT C, his
guardian; and STUDENT D, by and through PARENT D, her guardian,
each one individually and on behalf of all other similarly
situated children, Plaintiffs, v. THE BERKELEY UNIFIED SCHOOL
DISTRICT and THE BOARD OF EDUCATION OF THE BERKELEY UNIFIED
SCHOOL DISTRICT, Defendants, Case No. 3:17-cv-02510-JST (N.D.
Calif.).
A full-text copy of the District Court's December 4, 2017 Order
is available at https://tinyurl.com/yak6aohg from Leagle.com.
Student A, by and through Parent A, her guardian, individually
and on behalf of all other similarly situated children,
Plaintiff, represented by Anjali Moorthy --
amoorthy@goodwinlaw.com -- Goodwin Procter LLP.
Student A, by and through Parent A, her guardian, individually
and on behalf of all other similarly situated children,
Plaintiff, represented by Arlene Brynne Mayerson --
amayerson@dredf.org -Disability Rights Education & Defense Fund,
Inc., Brendan Eugene Radke BRadke@goodwinlaw.com -- Goodwin
Procter LLP, Deborah Rose Jacobson --
djacobson@jacobsoneducationlaw.com -- Jacobson Education Law,
Inc., Larisa M. Cummings -- lcummings@dredf.org -- Disability
Rights Education & Defense Fund, Inc., Ramaah Sadasivam --
rsadasivam@dredf.org -- Jacobson Education Law, Inc. & David
Shane Brun -- sbrun@goodwinlaw.com -- Goodwin Procter LLP.
Student B, by and through Parent B, his guardian, individually
and on behalf of all other similarly situated children,
Plaintiff, represented by Anjali Moorthy, Goodwin Procter LLP,
Arlene Brynne Mayerson, Disability Rights Education & Defense
Fund, Inc., Brendan Eugene Radke, Goodwin Procter LLP, Deborah
Rose Jacobson, Jacobson Education Law, Inc., Larisa M. Cummings,
Disability Rights Education & Defense Fund, Inc., Ramaah
Sadasivam, Jacobson Education Law, Inc. & David Shane Brun,
Goodwin Procter LLP.
Student C, by and through Parent C, his guardian, individually
and on behalf of all other similarly situated children,
Plaintiff, represented by Anjali Moorthy, Goodwin Procter LLP,
Arlene Brynne Mayerson, Disability Rights Education & Defense
Fund, Inc., Brendan Eugene Radke, Goodwin Procter LLP, Deborah
Rose Jacobson, Jacobson Education Law, Inc., Larisa M. Cummings,
Disability Rights Education & Defense Fund, Inc., Ramaah
Sadasivam, Jacobson Education Law, Inc. & David Shane Brun,
Goodwin Procter LLP.
Student D, by and through Parent D, her guardian, individually
and on behalf of all other similarly situated children,
Plaintiff, represented by Anjali Moorthy, Goodwin Procter LLP,
Arlene Brynne Mayerson, Disability Rights Education & Defense
Fund, Inc., Brendan Eugene Radke, Goodwin Procter LLP, Deborah
Rose Jacobson, Jacobson Education Law, Inc., Larisa M. Cummings,
Disability Rights Education & Defense Fund, Inc., Ramaah
Sadasivam, Jacobson Education Law, Inc. & David Shane Brun,
Goodwin Procter LLP.
Berkeley Unified School District, Defendant, represented by
Beatriz Berumen bberumen@gordonrees.com -- Gordon Rees Scully
Mansukhani, LLP & Mark S. Posard -- mposard@gordonrees.com --
Gordon Rees Scully Mansukhani, LLP.
Board of Education of the Berkeley Unified School District,
Defendant, represented by Beatriz Berumen, Gordon Rees Scully
Mansukhani, LLP & Mark S. Posard, Gordon Rees Scully Mansukhani,
LLP.
CHINA COMMERCIAL: Court Clarifies Allocation on Attorneys' Fees
---------------------------------------------------------------
China Commercial Credit, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended June 30, 2017, that a court has entered a clarifying
order to specify the allocation of attorneys' fees in accordance
with a stipulation in a securities class action.
On August 6, 2014, a purported shareholder Andrew Dennison filed
a putative class action complaint in the United States District
Court District of New Jersey (the "N.J. district court") relating
to a July 25, 2014 press release about the Company's progress in
recovering a significant portion of the $5.4 million the Company
paid in the first quarter of 2014 on behalf of loan guarantee
customers. The action, Andrew Dennison v. China Commercial
Credit, Inc., et al., Case No. 2:2014-cv-04956, alleges that the
Company and its current and former officers and directors Huichun
Qin, Long Yi, Jianming Yin, Jinggen Ling, Xiangdong Xiao, and
John F. Levy violated the federal securities laws by
misrepresenting in prior public filings certain material facts
about the risks associated with its loan guarantee business. On
October 2, 2014, purported shareholders Zhang Yun and
SanjivMehrotra (the "Yun Group") asserted substantially similar
claims against the same defendants in a putative class action
captioned Zhang Yun v. China Commercial Credit, Inc., et al.,
Case No. 2:14-cv-06136 (D. N.J.). Neither complaint states the
amount of damages sought.
On or about October 6, 2014, Dennison, the Yun Group and another
purported shareholder, Jason Stark, filed motions to consolidate
the cases, be appointed as lead plaintiff and to have their
respective counsel appointed as lead counsel. On October 31,
2014, the N.J. district court entered an order consolidating the
cases under the caption "In re China Commercial Credit Inc.
Securities Litigation" and appointing the Yun Group as lead
plaintiff ("Class Plaintiff") and the Yun Group's counsel as lead
counsel.
On November 18, 2014, the Yun Group and the Company, which at
that point was the only defendant served, entered into a
stipulation to transfer of the case to the Southern District of
New York. On December 18, 2014, Mr. Levy, who had by then been
served, joined in the stipulation. On December 29, 2014, the N.J.
district court entered an order transferring the action. The
transfer was effected on January 22, 2015, and assigned docket
number 1:15-cv-00557-ALC (S.D.N.Y.).
Under the schedule stipulated by the parties, the Yun Group was
to file an amended complaint within 60 days of the date that the
transfer was effected, and the defendants' date to answer or move
was within 60 days of that filing. On April 7, 2015, the Class
Plaintiff filed a Second Amended Class Action Complaint (the
"CAC"). The CAC also asserts securities law claims against
defendants Axiom Capital Management, Inc., Burnham Securities
Inc. and ViewTrade Securities, Inc. (collectively, the
"Underwriter Defendants"). The CAC alleges that the Company
engaged in a fraudulent scheme by engaging in undisclosed and
improper lending practices and made misleading representations
regarding its underwriting policies, the loan portfolio quality,
the loan loss allowance, compliance with U.S. GAAP and its
internal control systems.
In accordance with the Court's procedures, the Company and Mr.
Levy and the Underwriter Defendants requested a Pre-Motion
Conference in anticipation of filing a motion to dismiss the CAC,
which was held on June 25, 2015. At the conference, the Court
adjourned the date to answer or move in order to provide the
Class Plaintiff with time to serve certain overseas defendants.
After the conference, the Class Plaintiff voluntarily dismissed
Jianming Yin, Jinggen Ling and Xiangdong Xiao from the action,
and Long Yi agreed to waive service, which left Huichun Qin as
the sole remaining defendant to serve.
On November 22, 2016, the Company entered into a Stipulation and
Agreement of Settlement (the "Stipulation") to settle the
Securities Class Action. The Stipulation resolves the claims
asserted against the Company and certain of its current and
former officers and directors in the Securities Class Action
without any admission or concession of wrongdoing or liability by
the Company or the other defendants. On June 1, 2017, following
a final fairness hearing on May 30, 2017 regarding the proposed
settlement, the Court entered a final judgment and order that:
(i) dismisses with prejudice the claims asserted in the
Securities Class Action against all named defendants in
connection with the Securities Class Action, including the
Company, and releases any claims that were or could have been
asserted that arise from or relate to the facts alleged in the
Securities Class Action, such that every member of the settlement
class will be barred from asserting such claims in the future;
and (ii) approves the payment of $220,000 in cash and the
issuance of 950,000 shares of its common stock (the "Settlement
Shares") to members of the settlement class. The Company accrued
settlement cost aggregating US$1,863,500 and US$ 690,000 during
the six months ended June 30, 2017 and June 30, 2016,
respectively. In addition, the Company would incur a payment of
$25,000 in cash to class administrator.
On July 28, 2017, the Court entered a clarifying order to specify
the allocation of attorneys' fees in accordance with the
Stipulation. The Settlement Shares are exempt from registration
under Section 3(a)(10) of the Securities Act of 1933, as amended.
The settlement does not constitute any admission of fault or
wrongdoing by the Company or any of the individual defendants.
China Commercial Credit, Inc. is a holding company that is based
in Jiangsu Province, China and was incorporated under the laws of
the State of Delaware on December 19, 2011.
CHINA COMMERCIAL: Payment of Settlement Shares Awaits Court OK
--------------------------------------------------------------
China Commercial Credit, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that the company is awaiting for
the court to approve the disbursement of settlement shares.
On August 6, 2014, a purported shareholder Andrew Dennison filed
a putative class action complaint in the United States District
Court District of New Jersey (the "N.J. district court") relating
to a July 25, 2014 press release about the Company's progress in
recovering a significant portion of the $5.4 million the Company
paid in the first quarter of 2014 on behalf of loan guarantee
customers. The action, Andrew Dennison v. China Commercial
Credit, Inc., et al., Case No. 2:2014-cv-04956, alleges that the
Company and its current and former officers and directors Huichun
Qin, Long Yi, Jianming Yin, Jinggen Ling, Xiangdong Xiao, and
John F. Levy violated the federal securities laws by
misrepresenting in prior public filings certain material facts
about the risks associated with its loan guarantee business.
On October 2, 2014, purported shareholders Zhang Yun and
SanjivMehrotra (the "Yun Group") asserted substantially similar
claims against the same defendants in a putative class action
captioned Zhang Yun v. China Commercial Credit, Inc., et al.,
Case No. 2:14-cv-06136 (D. N.J.). Neither complaint states the
amount of damages sought.
On or about October 6, 2014, Dennison, the Yun Group and another
purported shareholder, Jason Stark, filed motions to consolidate
the cases, be appointed as lead plaintiff and to have their
respective counsel appointed as lead counsel. On October 31,
2014, the N.J. district court entered an order consolidating the
cases under the caption "In re China Commercial Credit Inc.
Securities Litigation" and appointing the Yun Group as lead
plaintiff ("Class Plaintiff") and the Yun Group's counsel as lead
counsel.
On November 18, 2014, the Yun Group and the Company, which at
that point was the only defendant served, entered into a
stipulation to transfer of the case to the Southern District of
New York. On December 18, 2014, Mr. Levy, who had by then been
served, joined in the stipulation. On December 29, 2014, the N.J.
district court entered an order transferring the action. The
transfer was effected on January 22, 2015, and assigned docket
number 1:15-cv-00557-ALC (S.D.N.Y.).
Under the schedule stipulated by the parties, the Yun Group was
to file an amended complaint within 60 days of the date that the
transfer was effected, and the defendants' date to answer or move
was within 60 days of that filing. On April 7, 2015, the Class
Plaintiff filed a Second Amended Class Action Complaint (the
"CAC"). The CAC also asserts securities law claims against
defendants Axiom Capital Management, Inc., Burnham Securities
Inc. and ViewTrade Securities, Inc. (collectively, the
"Underwriter Defendants"). The CAC alleges that the Company
engaged in a fraudulent scheme by engaging in undisclosed and
improper lending practices and made misleading representations
regarding its underwriting policies, the loan portfolio quality,
the loan loss allowance, compliance with U.S. GAAP and its
internal control systems.
In accordance with the Court's procedures, the Company and Mr.
Levy and the Underwriter Defendants requested a Pre-Motion
Conference in anticipation of filing a motion to dismiss the CAC,
which was held on June 25, 2015. At the conference, the Court
adjourned the date to answer or move in order to provide the
Class Plaintiff with time to serve certain overseas defendants.
After the conference, the Class Plaintiff voluntarily dismissed
Jianming Yin, Jinggen Ling and Xiangdong Xiao from the action,
and Long Yi agreed to waive service, which left Huichun Qin as
the sole remaining defendant to serve.
On November 22, 2016, the Company entered into a Stipulation and
Agreement of Settlement (the "Stipulation") to settle the
Securities Class Action. The Stipulation resolves the claims
asserted against the Company and certain of its current and
former officers and directors in the Securities Class Action
without any admission or concession of wrongdoing or liability by
the Company or the other defendants. On June 1, 2017, following a
final fairness hearing on May 30, 2017 regarding the proposed
settlement, the Court entered a final judgment and order that:
(i) dismisses with prejudice the claims asserted in the
Securities Class Action against all named defendants in
connection with the Securities Class Action, including the
Company, and releases any claims that were or could have been
asserted that arise from or relate to the facts alleged in the
Securities Class Action, such that every member of the settlement
class will be barred from asserting such claims in the future;
and (ii) approves the payment of $220,000 in cash and the
issuance of 950,000 shares of its common stock (the "Settlement
Shares") to members of the settlement class. In addition, the
Company would incur a payment of $25,000 in cash to class
administrator.
China Commercial said "At present, the Company is waiting for the
Court to approve the disbursement of the Settlement Shares.
Plaintiff is filing a motion to obtain such approval. The
$245,000 cash portion of the settlement has been paid in full.
The Company accrued settlement cost aggregating US$1,863,500 and
US$690,000 during the nine months ended September, 2017 and 2016,
respectively."
On July 28, 2017, the Court entered a clarifying order to specify
the allocation of attorneys' fees in accordance with the
Stipulation.
China Commercial Credit, Inc., is a holding company that was
incorporated in Delaware in 2011. The Company is a microcredit
company primarily engaged in providing direct loans and financial
guarantee services to small-to-medium sized enterprises, farmers
and individuals in Wujiang City, Jiangsu Province, in the
People's Republic of China.
CHINA COMMERCIAL: "Rojas" Stockholder Suit Dismissed
----------------------------------------------------
China Commercial Credit, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that the Company filed Amendment
No. 2 to its Preliminary Proxy Statement with the Commission in
further response to comments from the Commission.
The Company and its directors were parties to a lawsuit filed on
September 1, 2017, by Juan C. Rojas ("Plaintiff"), on behalf of
himself and all other similarly situated stockholders of China
Commercial Credit, Inc., in the Chancery Court of the State of
Delaware (the "Delaware Chancery Court") (Case No. 2017-0633-JTL)
(the "Action"), which sought injunctive relief, costs, and
attorney's fees. Plaintiff's Verified Class Action Complaint
("Complaint") alleged that the Company's directors breached their
fiduciary duties to the Company's stockholders by failing to
disclose all necessary material information relating to the
Company's entry into an Exchange Agreement ("Exchange Agreement")
with Sorghum Investment Holdings Limited ("Sorghum") on August 9,
2017, and preventing the Company's stockholders from casting a
fully informed vote on the Company's acquisition of Sorghum, and
other proposals contained in the Company's preliminary proxy
statement, dated August 14, 2017 ("Preliminary Proxy Statement").
Plaintiff filed a Motion to Expedite the Proceeding ("Motion to
Expedite") seeking to expedited consideration of Plaintiff's
Motion for Preliminary Injunction, which was filed simultaneously
with Plaintiff's Complaint. The Company opposed the Motion to
Expedite on September 20, 2017, and the Delaware Chancery Court
held a hearing on the Motion to Expedite on September 22, 2017,
wherein it denied Plaintiff's Motion to Expedite without
prejudice. On September 28, 2017, the Company filed a motion to
dismiss Plaintiff's Complaint ("Motion to Dismiss"). Plaintiff
has not responded to the Company's Motion to Dismiss.
On October 10, 2017, the Company filed Amendment No. 1 to its
Preliminary Proxy Statement (the "Amended Preliminary Proxy")
with the U.S. Securities and Exchange Commission (the
"Commission") in response to the Commission's September 8, 2017
comment letter ("Comment Letter"). After reviewing the Amended
Preliminary Proxy, Plaintiff determined that the Company's
Amended Preliminary Proxy rendered the claims asserted in
Plaintiff's Complaint moot and/or otherwise unsuitable for
further pursuit.
On October 19, 2017, the Company and Plaintiff entered into a
stipulation ("Stipulation") wherein Plaintiff agreed to
voluntarily dismiss his claims against the Company, and its
directors, with prejudice. The Delaware Chancery Court granted
the Stipulation on October 20, 2017, and entered an Order
dismissing the Action with prejudice. In accordance with the
Order, the Company will advise the Delaware Chancery Court within
fifteen (15) days of the earlier of (a) the stockholder vote on
the Exchange Agreement relating to the proposals, or (b) the
termination of the Exchange Agreement, and whether the parties to
the Action have reached an agreement with respect to Plaintiff's
anticipated request for fees and expenses. Currently, no
compensation in any form has passed from the Company, or its
directors, to Plaintiff or Plaintiff's attorneys in the Action,
and the Company has not made a promise to give any such
compensation. On November 6, 2017, the Company filed Amendment
No. 2 to its Preliminary Proxy Statement with the Commission in
further response to comments from the Commission.
China Commercial Credit, Inc., is a holding company that was
incorporated in Delaware in 2011. The Company is a microcredit
company primarily engaged in providing direct loans and financial
guarantee services to small-to-medium sized enterprises, farmers
and individuals in Wujiang City, Jiangsu Province, in the
People's Republic of China.
CONSUMERS ENERGY: Gas Index Price Reporting Suit Still Ongoing
--------------------------------------------------------------
Consumers Energy Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission for the quarterly period
ended September 30, 2017, that an unaffiliated company that is
also a defendant in a price reporting class action suit, filed
for bankruptcy which could increase the risk of loss to CMS
Energy.
CMS Energy, along with CMS MST, CMS Field Services, Cantera
Natural Gas, Inc., and Cantera Gas Company, have been named as
defendants in four class action lawsuits and one individual
lawsuit arising as a result of alleged inaccurate natural gas
price reporting to publications that report trade information.
Allegations include price-fixing conspiracies, restraint of
trade, and artificial inflation of natural gas retail prices in
Kansas, Missouri, and Wisconsin. Plaintiffs are making claims for
the following: treble damages, full consideration damages,
exemplary damages, costs, interest, and/or attorneys' fees.
After removal to federal court, all of the cases were transferred
to a single federal district court pursuant to the multidistrict
litigation process. In 2010 and 2011, all claims against CMS
Energy defendants were dismissed by the district court based on
FERC preemption. In 2013, the U.S. Court of Appeals for the Ninth
Circuit reversed the district court decision. The appellate court
found that FERC preemption does not apply under the facts of
these cases. The appellate court affirmed the district court's
denial of leave to amend to add federal antitrust claims. The
matter was appealed to the U.S. Supreme Court, which in 2015
upheld the Ninth Circuit's decision. The cases were remanded back
to the federal district court.
In May 2016, the federal district court granted the defendants'
motion for summary judgment in the individual lawsuit based on a
release in a prior settlement involving similar allegations and
reinstated CMS Energy as a defendant in one of the class action
lawsuits. The order of summary judgment has been appealed.
In December 2016, CMS Energy entities reached a settlement with
the plaintiffs in the three Kansas and Missouri cases for an
amount that was not material to CMS Energy. In August 2017, the
federal district court approved the settlement.
CMS Energy entities remain as defendants in the Wisconsin class
action lawsuits. In March 2017, the federal district court denied
plaintiffs' motion for class certification. The plaintiffs
appealed that decision to the U.S. Court of Appeals for the Ninth
Circuit, which has accepted the matter for hearing. In June 2017,
an unaffiliated company that is also a defendant in these cases
filed for bankruptcy, which could increase the risk of loss to
CMS Energy.
Consumers Energy said "These cases involve complex facts, a large
number of similarly situated defendants with different factual
positions, and multiple jurisdictions. Presently, any estimate of
liability would be highly speculative; the amount of CMS Energy's
reasonably possible loss would be based on widely varying models
previously untested in this context. If the outcome after appeals
is unfavorable, these cases could negatively affect CMS Energy's
liquidity, financial condition, and results of operations."
Consumers Energy Company is an energy company operating primarily
in Michigan. It is the parent holding company of several
subsidiaries, including Consumers, an electric and gas utility,
and CMS Enterprises, primarily a domestic independent power
producer.
CORECIVIC OF TENNESSEE: "Snead" Suit Seeks to Certify 3 Classes
---------------------------------------------------------------
In the lawsuit styled WENDY SNEAD, and EDWARD MOREDOCK,
individually and on behalf of all others similarly situated, the
Plaintiffs, v. CORECIVIC OF TENNESSEE, LLC f/k/a CORRECTIONS
CORPORATION OF AMERICA, Defendant, Case No. 3:17-cv-00949 (M.D.
Tenn.), the Plaintiffs move to certify these classes:
The Scabies Class:
"all current and former inmates who had a skin rash consistent
with a scabies infestation who were denied treatment, or whose
delayed treatment by the Defendant caused the inmate's
condition to worsen, since October 1, 2016";
The Denied Prescriptions Class:
"all current and former inmates who were prescribed medication
that was not administered as prescribed, or whose prescribed
plan of treatment was interrupted or delayed by the Defendant,
since October 1, 2016"; and
The Denied Medical Attention Class:
"all current and former inmates who requested, but were denied
medical attention or treatment since October 1, 2016."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=bLe6YWV3
The Plaintiff is represented by:
Bryant Kroll, Esq.
W. Gary Blackburn, Esq.
THE BLACKBURN FIRM, PLLC
213 Fifth Avenue North, Suite 300
Nashville, TN 37219
Telephone: (615) 254 7770
Facsimile: (866) 895 7272
E-mail: gblackburn@wgaryblackburn.com
bkroll@wgaryblackburn.com
- and -
Jeffery S. Roberts, Esq.
JEFF ROBERTS & ASSOCIATES, PLLC
213 Fifth Avenue North, Suite 300
Nashville, TN 37219
Telephone: (615) 425 4400
Facsimile: (615) 425 4401
E-mail: Jeff@middletninjury.com
- and -
R. Joshua McKee, Esq.
THE MCKEE LAW FIRM
213 Fifth Avenue North, Suite 300
Nashville, TN 37219
Telephone: (615) 425 4400
Facsimile: (615) 425 4401
E-mail: rjm@rjmckeelaw.com
CORELOGIC INC: "Henderson" Case Fairness Hearing in Jan. 2018
-------------------------------------------------------------
CoreLogic, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that a final fairness hearing is set for
January 2018 in the case, Tyrone Henderson, et al., v. CoreLogic
National Background Data, in the United States District Court for
the Eastern District of Virginia.
In February 2012, CoreLogic National Background Data, LLC (n/k/a
CoreLogic Background Data, LLC) ("CBD") was named as a defendant
in a putative class action styled Tyrone Henderson, et. al., v.
CoreLogic National Background Data, in the United States District
Court for the Eastern District of Virginia. Plaintiffs allege
violation of the Fair Credit Reporting Act, and have pled a
putative class claim relating to CBD's return of criminal record
data in response to search queries initiated by its consumer
reporting agency customers, which then prepare and transmit
employment background screening reports to their employer
customers.
Plaintiffs contend that CBD failed to send notice letters to
consumers each time search results were returned to CBD's
consumer reporting agency customers. In February 2016, the court
denied CBD's motion for partial summary judgment. Plaintiffs
initially sought to represent a nationwide class of consumers who
were the subject of searches conducted by CBD's customers. The
court denied without prejudice Plaintiffs' motion to certify a
nationwide class on three separate occasions in April 2015, April
2016 and September 2016. However, in September 2016, the court
allowed Plaintiffs to seek certification of three subclasses and
in March 2017, Plaintiffs filed a motion for class certification
as to one of these subclasses, seeking to certify a class of
consumers for whom sex offender records were returned that did
not reflect a date of birth associated with the record.
Following a series of judicial settlement conferences concluding
in August 2017, the parties entered into an agreement to settle
the case with respect to a class of 75,400 consumers. In
September 2017, the court preliminarily approved the settlement.
A final fairness hearing is set for January 2018.
CoreLogic, Inc. is a leading global property information,
analytics and data-enabled services provider operating in North
America, Western Europe and Asia Pacific. The company's vision is
to deliver unique property-level insights that power the global
real estate economy, differentiated by superior data, analytics
and data-enabled solutions. The company is based in Irvine,
California.
CORELOGIC INC: "Witt" Case Fairness Hearing in Jan. 2018
--------------------------------------------------------
CoreLogic, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that a final fairness hearing is set for
January 2018, in the case, Witt v. CoreLogic National Background
Data, et al. in the United States District Court for the Eastern
District of Virginia.
In June 2015, a companion case, Witt v. CoreLogic National
Background Data, et al. was filed in the United States District
Court for the Eastern District of Virginia by the same attorneys
as in Henderson, alleging the same claim against CBD. Witt also
names as a defendant CoreLogic SafeRent, LLC (n/k/a CoreLogic
Rental Property Solutions, LLC ("RPS") on the theory that RPS
provides criminal record "reports" to CBD at the same time that
CBD delivers reports to CBD's consumer reporting agency
customers. Witt is pending in the same court and before the same
judge as Henderson, and the two cases have been deemed related by
the Court.
In April 2017, Plaintiffs filed a motion for class certification,
seeking to certify a class of consumers for whom Virginia
criminal record data was returned that did not reflect a year of
birth associated with the record. Following a series of judicial
settlement conferences concluding in August 2017, the parties
entered into two agreements to settle the case with respect to
two classes, which together total 216,226 consumers. In September
2017, the court preliminarily approved the settlements. A final
fairness hearing is set for January 2018.
CoreLogic, Inc. is a leading global property information,
analytics and data-enabled services provider operating in North
America, Western Europe and Asia Pacific. The company's vision is
to deliver unique property-level insights that power the global
real estate economy, differentiated by superior data, analytics
and data-enabled solutions. The company is based in Irvine,
California.
CORELOGIC INC: SafeRent Unit Defending Against "Feliciano" Suit
---------------------------------------------------------------
CoreLogic, Inc. continues to defend itself against a putative
class action filed in the United States District Court for the
Southern District of New York, entitled Claudinne Feliciano, et.
al., v. CoreLogic SafeRent, LLC according to the Company's Form
10-Q for the quarterly period ended September 30, 2017.
On July 2017, CoreLogic SafeRent, LLC (n/k/a CoreLogic Rental
Property Solutions, LLC ("RPS") was named as a defendant in a
putative class action lawsuit styled Claudinne Feliciano, et.
al., v. CoreLogic SafeRent, LLC, in the United States District
Court for the Southern District of New York. An amended complaint
was filed on August 9 to name RPS as the Defendant, and service
was made on August 11. The case alleges violation of the Fair
Credit Reporting Act and the New York Fair Credit Reporting Act.
The named plaintiff alleges that RPS prepared a background
screening report about her that contained a record of a New York
Housing Court action without noting that the action had
previously been dismissed. Plaintiff seeks to represent a class
of similarly situated consumers with respect to reports issued
during the period of July 2015 to the present. RPS filed an
answer on October 2017, denying liability.
CoreLogic, Inc. said "RPS intends to defend against these claims
vigorously."
CoreLogic, Inc. is a leading global property information,
analytics and data-enabled services provider operating in North
America, Western Europe and Asia Pacific. The company's vision is
to deliver unique property-level insights that power the global
real estate economy, differentiated by superior data, analytics
and data-enabled solutions. The company is based in Irvine,
California.
DIRECTV LLC: Bid to Certify Class in Flynn-Stead Case Shelved
-------------------------------------------------------------
In the lawsuit styled JEAN M. FLYNN and JAMES E. STEAD,
Individually and on behalf of all others similarly situated, the
Plaintiffs, v. DIRECTV, LLC and MAS TEC, INC., the Defendants,
Case No. 3:15-cv-01053-JAM (D. Conn.), the Hon. Judge Jeffrey
Alker Meyer entered an order taking Plaintiffs' motion to certify
class under advisement.
A copy of the Courtroom Minutes-Civil is available at no charge
at http://d.classactionreporternewsletter.com/u?f=96XFmOlP
The Plaintiffs are represented by:
Bruce E. Newman, Esq.
BROWN PAINDIRIS & SCOTT, LLP
747 Stafford Avenue
Bristol, CT 0601
Telephone: (860) 583 520
Facsimile: (860) 589 5780
E-mail: bnewman@bpslawyers.com
- and -
Steven Bennett Blau, Esq.
Shelly A. Leonard, Esq.
BLAU, LEONARD LAW GROUP, LLC
23 Green Street, Suite 303
Huntington, NY 11743
Telephone: (631) 458 1010
E-mail: sblau@blauleonardlaw.com
sleonard@blauleonardlaw.com
The Defendants are represented by:
Nicholas Norton Ouellette, Esq.
MATTHEW DALLAS GORDON, LLC
836 Farmington Avenue, Suite 221A
West Hartford, CT 06119
- and -
Scott S. Orenstein, Esq.
Daniel B. Moar, Esq.
Troy Bataille, Esq.
GOLDBERG SEGALLA
100 Pearl Street, Suite 1100
Hartford, CT 06103-4506
- and -
Andrew Z. Edelstein, Esq.
MAYER BROWN LLP
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071-1503
DOLPHIN ENTERTAINMENT: Bid to Consolidate Suit Denied
-----------------------------------------------------
Dolphin Entertainment, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended June 30, 2017, that the panel denied plaintiffs' bid
to consolidate a lawsuit with other five class actions in a Multi
District Litigation proceeding.
A putative class action was filed on May 5, 2017, in the United
States District Court for the Southern District of Florida by
Kenneth and Emily Reel on behalf of a purported nationwide class
of individuals who attended the Fyre Music Festival, or the Fyre
Festival, in the Bahamas on April 28-30, 2017. The complaint
names several defendants, including 42West, along with the
organizers of the Fyre Festival, Fyre Media Inc. and Fyre
Festival LLC, individuals related to Fyre, and another entity
called Matte Projects LLC. The complaint alleges that the Fyre
Festival was promoted by Fyre as a luxurious experience through
an extensive marketing campaign orchestrated by Fyre and executed
with the assistance of outside marketing companies, 42West and
Matte, but that the reality of the festival did not live up to
the luxury experience that it was represented to be. The
plaintiffs assert claims for fraud, negligent misrepresentation
and for violation of several states' consumer protection laws.
The plaintiffs seek to certify a nationwide class action
comprised of "All persons or entities that purchased a Fyre
Festival 2017 ticket or package or that attended, or planned to
attend, Fyre Festival 2017" and seek damages in excess of
$5,000,000 on behalf of themselves and the class. The plaintiffs
sought to consolidate this action with five other class actions
also arising out of the Fyre Festival (to which 42West is not a
party) in a Multi District Litigation proceeding, which request
was denied by the panel.
Dolphin Entertainment, Inc. said "We believe the claims against
42West are without merit and that we have strong defenses to the
claims."
Dolphin Entertainment, Inc. is an independent entertainment
marketing and premium content development company. Through their
recent acquisition of 42West, the company provides expert
strategic marketing and publicity services to all of the major
film studios, and many of the leading independent and digital
content providers, as well as for hundreds of A-list celebrity
talent, including actors, directors, producers, recording
artists, athletes and authors. The company is based in Coral
Gables, Florida.
DOLPHIN ENTERTAINMENT: 42West Seeks Dismissal of Cross-Claim
------------------------------------------------------------
Dolphin Entertainment, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that 42West filed a motion to
dismiss the cross-claim in a class action lawsuit.
A putative class action was filed on May 5, 2017, in the United
States District Court for the Southern District of Florida by
Kenneth and Emily Reel on behalf of a purported nationwide class
of individuals who attended the Fyre Music Festival, or the Fyre
Festival, in the Bahamas on April 28-30, 2017. The complaint
names several defendants, including 42West, along with the
organizers of the Fyre Festival, Fyre Media Inc. and Fyre
Festival LLC, individuals related to Fyre, and another entity
called Matte Projects LLC.
The complaint alleges that the Fyre Festival was promoted by Fyre
as a luxurious experience through an extensive marketing campaign
orchestrated by Fyre and executed with the assistance of outside
marketing companies, 42West and Matte, but that the reality of
the festival did not live up to the luxury experience that it was
represented to be. The plaintiffs assert claims for fraud,
negligent misrepresentation and for violation of several states'
consumer protection laws. The plaintiffs seek to certify a
nationwide class action comprised of "All persons or entities
that purchased a Fyre Festival 2017 ticket or package or that
attended, or planned to attend, Fyre Festival 2017" and seek
damages in excess of $5,000,000 on behalf of themselves and the
class. The plaintiffs sought to consolidate this action with five
other class actions also arising out of the Fyre Festival (to
which 42West is not a party) in a Multi District Litigation
proceeding, or MDL, which request was denied by the Judicial
Panel on Multi District Litigation.
On September 10, 2017, one of the defendants filed a cross-claim
against all other named defendants seeking indemnity and
contribution. On October 2, 2017, 42West filed a motion to
dismiss the cross-claim.
Dolphin Entertainment said "We believe the claims against 42West
are without merit and that we have strong defenses to the
claims."
Dolphin Entertainment, Inc. is an independent entertainment
marketing and premium content development company. Through its
recent acquisition of 42West, the company provides expert
strategic marketing and publicity services to all of the major
film studios, and many of the leading independent and digital
content providers, as well as for hundreds of A-list celebrity
talent, including actors, directors, producers, recording
artists, athletes and authors. The company is based in Coral
Gables, Florida.
EMPIRE INTERNATIONAL: Conditional Class Certification Bid Dropped
-----------------------------------------------------------------
In the lawsuit styled YOLANDA PAUL On behalf of himself and those
similarly situated, et al., the Plaintiffs, v. EMPIRE
INTERNATIONAL, LTD doing business as EMPIRE CLS, DAVID SEELINGER
c/o EMPIRE INTERNATIONAL, LTD, D/B/A EMPIRE CLS, the Defendants,
Case No. 2:17-cv-12012-SDW-LDW (D.N.J.), the Hon Judge Leda Dunn
Wettre entered an order withdrawing without prejudice Plaintiffs'
motion for conditional certification of a collective action to
re-filing at the appropriate stage of action.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=bLe6YWV3
ENSCO PLC: Atwood Merger-Related Suit Voluntarily Dismissed
-----------------------------------------------------------
Ensco plc said in its Form 10-Q Report filed with the Securities
and Exchange Commission for the quarterly period ended September
30, 2017, that the plaintiffs in the consolidated class action
suit related to the Atwood merger deal subsequently voluntarily
dismissed the actions.
On June 23, 2017, a putative class action captioned Bernard Stern
v. Atwood Oceanics, Inc., et al, was filed in the U.S. District
Court for the Southern District of Texas against Atwood, Atwood's
directors, Ensco and Merger Sub. The Stern complaint generally
alleges that Atwood and the Atwood directors disseminated a false
or misleading registration statement on Form S-4 (the
"Registration Statement") on June 16, 2017, which omitted
material information regarding the proposed Merger, in violation
of Section 14(a) of the Exchange Act.
Specifically, the Stern complaint alleges that Atwood and the
Atwood directors omitted material information regarding the
parties' financial projections, the analysis performed by
Atwood's financial advisor, Goldman Sachs & Co. LLC ("Goldman
Sachs"), in support of its fairness opinion, the timing and
nature of communications regarding post-transaction employment of
Atwood's directors and officers, potential conflicts of interest
of Goldman Sachs, and whether there were further discussions with
another potential acquirer of Atwood following the May 30, 2017
announcement of the Merger. The Stern complaint further alleges
that the Atwood directors, Ensco and Merger Sub are liable for
these violations as "control persons" of Atwood under Section
20(a) of the Exchange Act.
With respect to Ensco, the Stern complaint alleges that Ensco had
direct supervisory control over the composition of the
Registration Statement. The Stern complaint seeks injunctive
relief, including to enjoin the Merger, rescissory damages, and
an award of attorneys' fees in addition to other relief.
On June 27, 2017, June 29, 2017 and June 30, 2017, additional
putative class actions captioned Joseph Composto v. Atwood
Oceanics, Inc., et al, Booth Family Trust v. Atwood Oceanics,
Inc., et al and Mary Carter v. Atwood Oceanics, Inc.et al,
respectively, were filed in the U.S. District Court for the
Southern District of Texas against Atwood and Atwood's directors.
These actions allege violations of Sections 14(a) and 20(a) of
the Exchange Act by Atwood and Atwood's directors similar to
those alleged in the Stern complaint; however, neither Ensco plc
nor Merger Sub is named as a defendant in these actions. On
October 2, 2017, the actions were consolidated and the Stern
matter was designated as the lead case. The plaintiffs
subsequently voluntarily dismissed the actions.
Ensco plc provides offshore contract drilling services to the oil
and gas industry worldwide. It owns and operates an offshore
drilling rig fleet of approximately 77 rigs, including 7 drill
ships, 13 dynamically positioned semisubmersible rigs, 7 moored
semisubmersible rigs, 49 jack up rigs, and 1 barge rig used to
drill and complete oil and natural gas wells. The Company's s
drilling rigs are located in Brazil, Europe and Mediterranean
region, the Middle East and Africa region, and the Asia Pacific
rim region. It serves government owned, and independent oil and
gas companies, as well as various independent operators. Ensco
based in London, England.
FARIS PROPERTIES: Lizotte Seeks to Conditionally Certify Class
--------------------------------------------------------------
In the lawsuit styled TAMMY LIZOTTE, on her own behalf and on
behalf of others similarly situated, the Plaintiff, v. FARIS
PROPERTIES, LLC, the Defendant, Case No. 3:17-cv-00195-JRG-CCS
(E.D. Tenn.), the Plaintiff moves the Court to conditionally
certify a class of persons to whom notice shall be sent regarding
Plaintiff's claims in this action, to approve Plaintiff's
proposed form of notice, and to require Defendant to produce an
Excel spreadsheet (or similarly-used electronic software format)
containing the full names, last known addresses, last known e-
mail addresses, last known phone numbers (including cell phone
numbers), and dates of employment of all employees who are
covered by the scope of the proposed class within 10 days of the
Court's Order.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=cQYHWx2D
Attorneys for Plaintiff Tammy Lizotte, on her Own:
James W. Friauf, Esq.
LAW OFFICE OF JAMES W. FRIAUF, PLLC
9724 Kingston Pike, Suite 104
Knoxville, TN 37922
Telephone: (865) 236 0347
Facsimile: (865) 512 9174
E-mail: james@friauflaw.com
- and -
Mark N. Foster, Esq.
P.O. Box 869
Madisonville, KY 42431
Telephone: (270) 213 1303
E-mail: MFoster@MarkNFoster.com
FIELDTURF USA: New Castle School District Seeks CA Status
---------------------------------------------------------
Torsten Ove, writing for Pittsburgh-Post Gazette, reports that
the New Castle School District on November 30 became the latest
client to sue FieldTurf USA over what the district claims was
defective turf on its football field.
The district filed the suit, which seeks class-action status, in
federal court in Pittsburgh, saying the Florida-based company's
product has not performed as advertised since its launch in 2005
with a nationwide marketing blitz.
The company has been the target of many other lawsuits across the
country since an investigation in 2016 by a New Jersey media
outlet into its business practices. The media project's findings
are cited in the complaint.
Lawyers for the New Castle district said it bought FieldTurf's
"Duraspine Turf" for its football field in 2009 at a cost of
$800,000 but that it started to fall apart after a year.
The lawsuit, filed by Philadelphia lawyers Daniel Levin, Esq. --
dlevin@lfsblaw.com -- and Charles Schaffer, Esq. --
cschaffer@lfsblaw.com -- is asking for reimbursement for costs,
punitive damages and a determination that FieldTurf was "unjustly
enriched" by selling a product it knew was defective. Between
2005 and 2012, the lawsuit says, FieldTurf earned more than $570
million installing 1,400 fields.
FieldTurf disputed the New Castle claims, saying company records
show it installed a different kind of field at the school, not
Duraspine, that has not been the subject of complaints.
"The school district has gotten roughly 12 years of use from the
field -- well beyond the standard eight-year warranty term,"
FieldTurf said in an email.
The lawyers who filed the suit did not respond to messages
November 30.
According to the suit, FieldTurf marketed its Duraspine fields as
more durable than other artificial fields, saying they would last
10 years or more. But many started deteriorating quickly and
"crumbled to pieces," the lawsuit alleges, shortly after
installation.
The complaint also says the company was slow to honor warranties
and fully aware that its product did not match its advertising or
promotional promises.
In December 2006, according to the suit, an employee wrote an
email that was copied to the chief executive officer saying that
"we are seeing fields showing splitting after under a year of
play and have already had to replace one full-size field due to
yarn failure after only a few months of installation."
The employee also wrote that the company was lying about the
product's quality.
"Every day we are putting stuff out there that can't and won't
live up to the marketing spin," he wrote.
FieldTurf on November 30 defended itself against the Duraspine
claims, saying it has tried to be forthcoming with customers and
"not hid from this problem."
The company also said that the problems with Duraspine have not
impacted safety but only how the fields look as they wear.
In addition to FieldTurf USA, the suit names as defendants two
related companies, FieldTurf Inc. of Montreal and FieldTurf
Tarkett SAS of France. [GN]
GNC HOLDINGS: Trial over Calif. Wage & Break Claims in July 2018
----------------------------------------------------------------
GNC Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that trial on the class action suit filed by
Elizabeth Naranjo is scheduled on July 2018.
On February 29, 2012, former Senior Store Manager, Elizabeth
Naranjo, individually and on behalf of all others similarly
situated, sued General Nutrition Corporation ("GNC") in the
Superior Court of the State of California for the County of
Alameda. The complaint contains eight causes of action, alleging,
among other matters, meal, rest break and overtime violations for
which indeterminate money damages for wages, penalties, interest,
and legal fees are sought.
As of September 30, 2017, an immaterial liability has been
accrued in the accompanying financial statements. The Company
intends to conduct further discovery and file a motion to
decertify the class action prior to trial, which is scheduled for
July 2018.
GNC Holdings, Inc., together with its subsidiaries, operates as a
specialty retailer of health, wellness, and performance products.
The Company was founded in 1935 and is headquartered in
Pittsburgh, Pennsylvania.
GNC HOLDINGS: Appeal in Fluctuating Workweek Suit Underway
----------------------------------------------------------
GNC Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that a state court held oral argument on a
class action appeal in September 2017 but has not announced a
decision.
On September 18, 2013, Tawny Chevalier and Andrew Hiller
commenced a class action in the Court of Common Pleas of
Allegheny County, Pennsylvania. Plaintiff asserted a claim
against the Company for a purported violation of the Pennsylvania
Minimum Wage Act (PMWA), challenging the Company's utilization of
the "fluctuating workweek" method to calculate overtime
compensation, on behalf of all employees who worked for the
Company in Pennsylvania and who were paid according to the
fluctuating workweek method. In October 2014, the Court entered
an order holding that the use of the fluctuating workweek method
violated the PMWA. In September 2016, the Court entered judgment
in favor of Plaintiffs and the class related to damages and
ultimately legal fees for a combined immaterial amount, which has
been accrued in the accompanying interim Consolidated Financial
Statements.
The Company appealed from the adverse judgment. The Superior
Court held oral argument on the appeal in September 2017 but has
not announced a decision.
GNC Holdings, Inc., together with its subsidiaries, operates as a
specialty retailer of health, wellness, and performance products.
The Company was founded in 1935 and is headquartered in
Pittsburgh, Pennsylvania.
GOOGLE INC: Sued for Allegedly Stockpiling Users' Personal Info
---------------------------------------------------------------
Eric Lieberman, writing for The Daily Caller, reports that a
U.K.-based advocacy coalition recently filed a class action
lawsuit against U.S. tech giant Google for allegedly stockpiling
users' personal information in an illicit way.
The organization is specifically arguing that Google illegally
collected data by circumventing the iPhone's default privacy
settings, according to The Guardian.
Known as Google You Owe Us, the group says that around 5.4
million people in Britain could be owed some form of compensation
due to the potentially undue data harvesting. The figure is
apparently representative of the amount of iPhone users in the
country between June 2011 and February 2012.
"I believe that what Google did was simply against the law. Their
actions have affected millions, and we'll be asking the courts to
remedy this major breach of trust," Richard Lloyd, the leader of
the group, told The Guardian. "Through this action, we will send
a strong message to Google and other tech giants in Silicon
Valley that we're not afraid to fight back if our laws are
broken."
He asserts that the lawsuit is unprecedented.
"In all my years speaking up for consumers, I've rarely seen such
as massive abuse of trust where so many people have no way to
seek redress on their own," Lloyd continued. "This is . . . the
first case of its kind in the UK against a major tech company for
misusing our valuable personal data."
Google vehemently denies it violated the law or did anything
wrong, according to The Guardian.
Google, nor Google You Owe Us, responded to The Daily Caller News
Foundation's request for further details by time of publication.
[GN]
GREAT PLAINS LENDING: Banks Seeks to Certify RICO Suit
------------------------------------------------------
In the lawsuit styled INDIA BANKS, on Behalf of Herself and All
Others Similarly Situated, the Plaintiff, v. KENNETH REES, et
al., the Defendants, Case No. 8:17-cv-02201-SDM-AAS (M.D. Fla.),
Ms. Banks asks the Court to enter an order:
1. certifying classes and subclasses:
The Florida RICO Class:
"all Florida residents who executed a loan with Great
Plains where the loan was originated and/or any payment was
made on or after September 20, 2013";
The Florida Usury Class:
"all Florida residents who executed a loan with Great
Plains where any amount of principal, interest, or other
fees were paid";
The Florida Usury Subclass:
"all Florida residents who executed a loan with Great
Plains where any interest was paid on or after September
20, 2015;
The Declaratory Judgment Class:
"all persons who (1) executed a loan with Great Plains (2)
when they resided or were located in Florida, (3) which
contained an interest rate greater than eighteen percent;
The Declaratory Judgment Subclass:
"all persons who (1) executed a loan with Great Plains (2)
when they resided or were located in Florida, (3) which
contained a choice-of-law provision, arbitration provision,
or forum selection clause similar or identical to
Plaintiff's; and
Florida Unjust Enrichment Class:
"all Florida residents who executed a loan with Great
Plains where any amount of principal, interest, fees, or
other charges were repaid.;
2. appointing her as class representative, and
3. appointing her counsel as class counsel.
This case is a putative class action arising out of a massive
predatory lending scheme by Defendants, who ripped off thousands
of Florida borrowers through their unlawful enterprise by
charging them with astronomical and unlawful interest rates,
while attempting to insulate themselves from liability through a
transparent "rent-a-tribe" scheme.
The Plaintiff India Banks brings claims under the Racketeer
Influenced and Corrupt Organizations ("RICO") Act, the usury laws
of the state of Florida, for declaratory judgment, and for unjust
enrichment.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=92j9Bh5z
Counsel for Plaintiff and the Proposed Classes:
Andrew Silver, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street, N.W. Suite 1000
Washington, DC 20036 202 973 0900
Facsimile: 202-973-0950
E-mail: asilver@tzlegal.com
- and -
Andrew J. Guzzo, Esq.
Casey S. Nash, Esq.
Kelly & Crandall, PLC
3925 Chain Bridge Rd Ste 202
Fairfax, VA 22030
Telephone: 703 424 7572
Facsimile: 703 591 0167
E-mail: aguzzo@kellyandcrandall.com
casey@kellyandcrandall.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Fort Lauderdale, FL 33301
Telephone: (954) 400 4713
E-mail: mhiraldo@hiraldolaw.com
HEALTH CARE: Court Narrows Claims in Insurance Coverage Suit
------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting in part and denying in part Defendant's Motion to
Dismiss the case captioned LAURA BRISCOE, et al., Plaintiffs, v.
HEALTH CARE SERVICE CORPORATION and BLUE CROSS AND BLUE SHIELD OF
ILLINOIS, Defendants, Case No. 16-cv-10294 (N.D. Ill.).
Plaintiffs Laura Briscoe, Kristin Magierski, and Emily Adams gave
birth while insured by Blue Cross and Blue Shield of Illinois
(BCBSIL). Plaintiffs, on behalf of three proposed classes,
allege that Defendants Health Care Service Corporation (HCSC) and
BCBSIL violated the Patient Protection and Affordable Care Act
(ACA) by failing to cover lactation counseling services.
Adams gave birth in May 2016 while insured by BCBSIL through her
employer, the Illinois Attorney Registration and Disciplinary
Commission (ARDC). Before contacting an IBCLC that her
pediatrician recommended, Adams tried using PF to find an in-
network lactation consultant, but found PF as unhelpful as
Briscoe and Magierski did. Adams then called BCBSIL to ask about
providers; a representative told her that BCBSIL would reimburse
her an undisclosed allowed amount for out-of-network lactation
services because BCBSIL had no network of providers for lactation
services. So, Adams saw her pediatrician's IBCLC for an in-home
lactation consultation, paid $235 out of pocket, and submitted a
claim to BCBSIL for reimbursement. BCBSIL reimbursed her only
$109.64, applying $27.40 to coinsurance and denying the rest of
the claim as not covered without explaining how it calculated the
covered amount. BCBSIL upheld that decision when Adams appealed.
Plaintiffs' putative class action alleges that BCBSIL violated
the ACA by denying them coverage for, and access to, lactation
counseling. Plaintiffs assert their claims under various legal
theories, including ERISA (Counts I, II, and III), the ACA's
anti-discrimination provision (Count IV), and state law (Counts V
and VI).
The Court partially grants and partially denies Defendants'
motion to dismiss. The Court dismisses Counts IV and VI with
prejudice, and Counts I, II, and III with prejudice as to Adams.
The Court dismisses Counts I and III without prejudice as to
Briscoe. The Court denies the motion for Count V, and for Count
II as to Briscoe.
Here, Plaintiffs allege that BCBSIL should not have imposed cost
sharing on their out-of-network claims because BCBSIL has no
network of providers for lactation services. Although Defendants
offer evidence of lactation services providers in their network,
the Court declines to consider that evidence on a motion to
dismiss. Rule 12(b)(6) limits the Court's consideration to the
complaint, documents attached to the complaint, documents central
to the complaint (and to which the complaint refers), and
information properly subject to judicial notice.
Under Rule 12(d), if the Court does not exclude matters outside
the pleadings, the motion becomes "one for summary judgment under
Rule 56. Defendants fail to show how this Court can take
judicial notice of their evidence or why that evidence otherwise
qualifies as central to the complaint. As such, the Court does
not consider their evidence here.
Defendants also argue that Plaintiffs concede that BCBSIL's
network has lactation counseling providers. Not so, Plaintiffs
plainly allege the opposite in their amended complaint.
Defendants cite paragraph 84 of the amended complaint, which
includes a screenshot of information about breastfeeding
counseling that HCSC allegedly posted on its website in early
April 2016. The posting advises expectant and new mothers that
they may be able to receive breastfeeding support at no cost if
they go to a trained, in-network provider. The posting then tells
insureds to ask their doctors to identify local providers who
offer those services, after which the insureds should either use
PF or contact customer service to confirm the provider's network
status. Plaintiffs cite this posting as an example of the
administrative barriers through which Defendants allegedly
prevented them from accessing lactation counseling.
The conditional references in the web posting, however, fail to
prove that BCBSIL actually has in-network lactation counseling
providers, unless one draws several inferences in Defendants'
favor. Obviously, on Defendants' Rule 12(b)(6) motion, this Court
cannot construe allegations in Defendants' favor. Thus, one
paragraph in the amended complaint or even a few such paragraphs
that indicates that Defendants might have stated or implied that
they have in-network providers cannot override Plaintiffs'
express declarations that BCBSIL, in fact, does not have in-
network providers for lactation services.
A full-text copy of the District Court's December 4, 2017
Memorandum Opinion and Order is available at
https://tinyurl.com/yd79yogy from Leagle.com.
Laura Briscoe, on behalf of themselves and all other similarly
situated, Plaintiff, represented by Kimberly M. Donaldson Smith -
- kimdonaldson@chimicles.com -- Chimicles & Tikellis LLP, pro hac
vice.
Laura Briscoe, on behalf of themselves and all other similarly
situated, Plaintiff, represented by Nicholas E. Chimicles --
Nick@chimicles.com -- Chimicles & Tikellis LLP, pro hac vice,
Stephanie E. Saunders -- SES@chimicles -- Chimicles & Tikellis
LLP, pro hac vice, Kimberly M. Donaldson, Chimicles & Tikellis
LLP & Paul D. Malmfeldt -- pmalmfeldt@blau-malmfeldt.com -- Blau
& Malmfeldt.
Kristin Magierski, on behalf of themselves and all other
similarly situated, Plaintiff, represented by Kimberly M.
Donaldson Smith, Chimicles & Tikellis LLP, pro hac vice, Nicholas
E. Chimicles, Chimicles & Tikellis LLP, pro hac vice, Stephanie
E. Saunders, Chimicles & Tikellis LLP, pro hac vice, Kimberly M.
Donaldson, Chimicles & Tikellis LLP & Paul D. Malmfeldt, Blau &
Malmfeldt.
Emily Adams, on behalf of themselves and all other similarly
situated, Plaintiff, represented by Kimberly M. Donaldson,
Chimicles & Tikellis LLP.
Health Care Services Corporation, Defendant, represented by
Martin J. Bishop -- mbishop@reedsmith.com -- Reed Smith LLP,
Abraham Judson Souza -- asouza@reedsmith.com -- Reed Smith Llp &
Rebecca R. Hanson -- rhanson@reedsmith.com -- Reed Smith LLP.
Blue Cross and Blue Shield of Illinois, Defendant, represented by
Martin J. Bishop, Reed Smith LLP & Rebecca R. Hanson, Reed Smith
LLP.
HOMELAND SECURITY: Class Certification Sought in Inland Suit
------------------------------------------------------------
In the lawsuit styled INLAND EMPIRE -- IMMIGRANT YOUTH
COLLECTIVE, et al., on behalf of themselves and others similarly
situated,
Plaintiffs, v. KIRSTJEN NIELSEN, Secretary, U.S. Department of
Homeland Security, et al., the Defendants, Case No. 5:17-cv-
02048-PSG-SHK (C.D. Cal.), the Plaintiffs will move the Court
on February 5, 2018, for an order to certify a nationwide
Notice Class of:
"all recipients of Deferred Action for Childhood Arrivals
("DACA") who, after January 19, 2017, have had or will have
their DACA grant and employment authorization revoked without
notice or an opportunity to respond, even though they have not
been convicted of a disqualifying criminal offense."
The Plaintiffs further move to be appointed Class Representatives
and their counsel to be appointed Class Counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=YRlgqGu2
The Plaintiffs are represented by:
Jennifer Chang Newell, Esq.
Katrina L. Eiland, Esq.
David Hausman, Esq.
Ahilan T. Arulanantham, Esq.
Michael Kaufman, Esq.
Michael K. T. Tan, Esq.
Dae Keun Kwon, Esq.
ACLU FOUNDATION
IMMIGRANTS' RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0770
Facsimile: (415) 395-0950
E-mail: jnewell@aclu.org
keiland@aclu.org
mtan@aclu.org
dhausman@aclu.org
aarulanantham@aclusocal.org
mkaufman@aclusocal.org
akwon@aclusocal.org
INDEPENDENT BANK: Still Defends Suit over BOH Acquisition
---------------------------------------------------------
Independent Bank Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission for the quarterly
period ended September 30, 2017, that the company continues to
defend itself in a class action in the U.S. District Court
Northern District of Texas, Dallas Division
Independent Bank is a party to a legal proceeding inherited by
Independent Bank in connection with the Company's acquisition of
BOH Holdings, Inc. and its subsidiary, Bank of Houston, or BOH,
that was completed on April 15, 2014. Several entities related to
R. A. Stanford, or the Stanford Entities, including Stanford
International Bank, Ltd., or SIBL, had deposit accounts at BOH.
Certain individuals who had purchased certificates of deposit
from SIBL filed a class action lawsuit against several banks,
including BOH, on November 11, 2009 in the U.S. District Court
Northern District of Texas, Dallas Division, alleging, among
other things, that the plaintiffs were victims of fraud by SIBL
and other Stanford Entities and seeking to recover damages and
alleged fraudulent transfers by the defendant banks.
On May 1, 2015, the plaintiffs filed a motion requesting
permission to file a Second Amended Class Action Complaint in
this case, which motion was subsequently granted. The Second
Amended Class Action Complaint asserted previously unasserted
claims, including aiding and abetting or participation in a
fraudulent scheme based upon the large amount of deposits that
the Stanford Entities held at BOH and the alleged knowledge of
certain BOH officers. Given the new allegations, Independent Bank
notified its insurance carriers of the claims made in the Second
Amended Class Action Complaint. The insurance carriers have
initially indicated that a "loss" has not yet occurred or that
the claims are not covered by the policies. However, Independent
Bank is continuing to pursue insurance coverage for these claims,
as well as for the reimbursement of defense costs, through the
initiation of litigation and other means.
Independent Bank believes that the claims made in this lawsuit
are without merit and is vigorously defending this lawsuit. This
is complex litigation involving a number of procedural matters
and issues. As such, Independent Bank is unable to predict when
this matter may be resolved and, given the uncertainty of
litigation, the ultimate outcome of, or potential costs or
damages arising from, this case.
Independent Bank Group, Inc. operates as the bank holding company
for Independent Bank that provides a range of commercial banking
products and services to businesses, professionals, and
individuals in the United States. It offers various deposit
products, including checking and savings accounts, demand
accounts, money market accounts, and certificates of deposit, as
well as individual retirement accounts. The company was founded
in 1988 and is headquartered in McKinney, Texas.
INTERCONTINENTAL EXPORT-IMPORT: DuPont Sued over Warehouse Fire
---------------------------------------------------------------
Jeffrey Saulton, writing for The Parkersberg News and Sentinel,
reports that DuPont has been named as one of the defendants in
the fourth class-action lawsuit filed over the Oct. 21-29 fire at
the Intercontinental Export-Import Plastics warehouse on Camden
Avenue in Parkersburg.
Filed November 28 in U.S. District Court for the Southern
District of West Virginia in Charleston, the suit lists five area
residents and two local companies as plaintiffs and names IEI and
related companies Sirnaik LLC, Surnaik Holdings of WV LLC,
Polymer Alliance Services LLC and Green Sustainable Solutions LLC
as defendants, along with DuPont.
Concerns about safety at the warehouse raised by local volunteer
fire chiefs in 2008, repeat environmental violations noted by the
West Virginia Department of Environmental Protection in 2015,
facts about the fire and air quality testing results in its
aftermath are cited in the latest filing. The lawsuit says DuPont
"knew or should have known" about the issues at the warehouse but
kept selling materials to the company anyway.
When contacted November 30, Dan Turner, with DuPont corporate
relations, said the lawsuit lacked merit.
"We do not comment on pending litigation; however, we believe the
allegations against DuPont are without merit," Turner said.
Last month, Turner said DuPont has no direct affiliation with the
warehouses. Some of the materials stored in them were purchased
from DuPont by IEI, he said.
"We do not know how IEI stored product and had no control on
their distribution once IEI took ownership," Turner said.
Sunny Naik, accounts manager for SurNaik Holdings of West
Virginia LLC, declined to comment on the lawsuit November 30.
This lawsuit was filed by five Charleston attorneys, including
Vienna resident Harry Deitzler, and Parkersburg attorney Patrick
McFarland, Esq.
Plaintiffs named in the latest filing are Steve Mowish, Savannah
Rodgers, Scot Heckert, Sheila Heckert, Ransford Craig Heckert,
FJM Contracting LLC and O.B.'s Used Cars, RVs and Motorcycles
LLC.
According to the suit, items in the warehouse were stored in a
manner that resulted in violations.
"During this review (May 22, 2017), the West Virginia Department
of Environmental Protection found 25 safety violations at the
subject warehouse facility, including but limited to the failure
to maintain good housekeeping and the failure to properly operate
or maintain the facility," the suit states.
In the count against DuPont the suit states as a manufacturer,
the company had a duty "to work with customers, carriers,
suppliers, distributors and contractors to foster the safe and
secure use of its chemical products and to encourage and assist
other companies in the safe storage of the chemicals it sells to
others."
The lawsuit alleges DuPont breached its duty by continually
selling hazardous flammable materials to the SirNaik defendants
despite safety concerns dating back to 2008.
The acts of the defendants constituted a public and private
nuisance, trespassing and negligent infliction of emotion
distress, the lawsuit alleges.
They are asking for an order certifying the class and appointing
the plaintiffs and their counsel to represent the class,
compensatory damages against the defendants and the other class
members, compensatory damages, punitive damages, reasonable
attorneys' fees, filing fees and other reasonable costs of the
lawsuit, prejudgment and postjudgment interest and any other
relief the court deems just and proper. [GN]
KATANGA MINING: Rosen Law Files Securities Class Action Lawsuit
---------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, has filed a
class action lawsuit on behalf of purchasers of the securities of
Katanga Mining Limited (OTC:KATFF) from February 11, 2016 through
November 19, 2017, both dates inclusive (the "Class Period"). The
lawsuit seeks to recover damages for Katanga investors under the
federal securities laws.
To join the Katanga class action, go to
http://www.rosenlegal.com/cases-1244.htmlor call Phillip Kim,
Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on
the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO
NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) Katanga engaged in improper accounting practices; (2)
there were material weaknesses in Katanga's internal control over
financial reporting; and (3) as a result, Katanga's public
statements were materially false and misleading at all relevant
times. When the true details entered the market, the lawsuit
claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
January 29, 2018. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation. If you wish to join the litigation, go to
http://www.rosenlegal.com/cases-1244.htmlor to discuss your
rights or interests regarding this class action, please contact
Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-
3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com.
Follow us for updates on LinkedIn:
https://www.linkedin.com/company/the-rosen-law-firm or on
Twitter: https://twitter.com/rosen_firm.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Since 2014, Rosen Law Firm has
been ranked #2 in the nation by Institutional Shareholder
Services for the number of securities class action settlements
annually obtained for investors.
Laurence Rosen, Esq.
Phillip Kim, Esq.
Kevin Chan, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Tel: 212-686-1060
Toll Free: 866-767-3653
Fax: 212-202-3827
Email: lrosen@rosenlegal.com
pkim@rosenlegal.com
kchan@rosenlegal.com [GN]
KINDRED HEALTHCARE: Jan. 24 Settlement Fairness Hearing Set
-----------------------------------------------------------
NOTICE OF SETTLEMENT REGARDING KINDRED HEALTHCARE, INC.
Case No. 16-CI-001246
JEFFERSON CIRCUIT COURT
DIVISION TWELVE (12)
JUDGE SUSAN SCHULTZ GIBSON
COLLEEN WITMER
PLAINTIFF
v.
PHYLLIS YALE, et al.
DEFENDANTS
PROPOSED NOTICE OF PENDENCY OF DERIVATIVE ACTION, PROPOSED
SETTLEMENT OF SHAREHOLDER DERIVATIVE ACTION, SETTLEMENT HEARING,
AND RIGHT TO APPEAR
TO: ALL INDIVIDUALS OR ENTITIES WHO HOLD OF RECORD, OR
BENEFICIALLY OWN, COMMON STOCK OF KINDRED HEALTHCARE, INC. (THE
"COMPANY") AS OF THE CLOSE OF NOVEMBER 21, 2017, ("CURRENT
STOCKHOLDERS")
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. THIS
NOTICE RELATES TO A PROPOSED SETTLEMENT AND DISMISSAL OF THE
ABOVE-CAPTIONED SHAREHOLDER DERIVATIVE ACTION, AND CONTAINS
IMPORTANT INFORMATION REGARDING YOUR RIGHTS. YOUR RIGHTS MAY BE
AFFECTED BY THESE LEGAL PROCEEDINGS. IF THE COURT APPROVES THE
SETTLEMENT, YOU WILL BE FOREVER BARRED FROM CONTESTING THE
APPROVAL OF THE PROPOSED SETTLEMENT AND FROM PURSUING THE
RELEASED CLAIMS.
IF YOU HOLD OR HELD COMPANY STOCK FOR THE BENEFIT OF ANOTHER,
PLEASE PROMPTLY TRANSMIT THIS NOTICE TO SUCH BENEFICIAL OWNER.
THE COURT HAS MADE NO FINDINGS OR DETERMINATIONS CONCERNING THE
MERITS OF THIS ACTION. THE RECITATION OF THE BACKGROUND AND
CIRCUMSTANCES OF THE SETTLEMENT CONTAINED HEREIN DOES NOT
CONSTITUTE THE FINDINGS OF THE COURT. IT IS BASED ON
REPRESENTATIONS MADE TO THE COURT BY COUNSEL FOR THE PARTIES.
WHY YOU ARE RECEIVING THIS NOTICE
This Notice is provided pursuant to KRS Sec. 271B.7-400(3) and by
Order of the Jefferson Circuit Court of the Commonwealth of
Kentucky (the "Court"). The purpose of this Notice is to advise
you that, subject to approval of the Court, a proposed settlement
has been reached in the action styled as Colleen Witmer v.
Phyllis Yale, et al., Case No. 16-CI-001246 (the "Action").
The proposed settlement would fully, finally, and forever resolve
the Action on the terms and conditions summarized in this Notice.
The parties to the Action have submitted a Stipulation of
Settlement ("Stipulation") to the Court for approval.
A hearing in the Action (the "Settlement Hearing") will be held
on January 24, 2018, at 1:15 p.m., before the Honorable Susan
Schultz Gibson in Courtroom 903 at the Jefferson Circuit Court of
the Commonwealth of Kentucky, Division Twelve, Jefferson County
Judicial Center, 700 W. Jefferson St., Louisville, KY 40202, for
the purpose of considering: (i) whether the proposed settlement
of the Action asserted in this matter on the terms and conditions
set for the in the Stipulation will be approved by the Court
pursuant to KRS Sec. 271B.7-400(3); (ii) whether the Court should
enter the Judgment dismissing Plaintiff's Complaint (the
"Complaint") WITH PREJUDICE AND ON THE MERITS and all claims
which arise out of or are related to the facts and/or
circumstances set forth in the Complaint, including the releases
of claims and other provisions set forth in the Stipulation;
(iii) whether, if the Stipulation is approved, the appropriate
award to be made to Plaintiff's Counsel (defined below) for
Plaintiff's attorneys' fees; and (iv) such other matters as may
be necessary and proper.
SUMMARY OF THE DERIVATIVE ACTION
THE SUMMARY OF THE DERIVATIVE ACTION AND SETTLEMENT WHICH FOLLOWS
HAS BEEN PREPARED BY COUNSEL FOR THE PARTIES TO THE DERIVATIVE
ACTION. THE COURT HAS MADE NO FINDINGS WITH RESPECT TO SUCH
MATTERS, AND THIS NOTICE IS NOT AN EXPRESSION OR STATEMENT BY THE
COURT OF FINDINGS OF FACT.
On March 16, 2016, Plaintiff Colleen Witmer (the "Plaintiff")
commenced this Action by filing in the Court a shareholder
derivative complaint (the "Complaint") against Defendants Phyllis
Yale, Joel Ackerman, Jonathan Blum, Thomas Cooper, M.D., Heyward
Donigan, Richard Goodman, Christopher Hjelm, Frederick Kleisner,
Ann C. Berzin, Eddy J. Rogers, Jr., Edward L. Kuntz, Benjamin
Breier, Paul Diaz, and Richard A. Lechleiter (the "Individual
Defendants"), and naming the Company as nominal defendant
(together, "Defendants"), asserting claims for breach of
fiduciary duties in connection with two settlements between the
Company and the United States Department of Justice relating to
the Company's RehabCare segment ("RehabCare"), as well as in
connection with the compensation of certain executive directors
and/or officers of the Company.
On May 13, 2016, Defendants filed a motion to dismiss the
Complaint for failure to plead demand futility and, in the
alternative, for failure to plead personal jurisdiction as to
certain of the Individual Defendants who do not reside or
principally work in Kentucky (the "Motion to Dismiss").
Plaintiff filed her opposition on June 27, 2016, and Defendants
filed their reply on July 25, 2016. The Court heard oral
argument on the Motion to Dismiss on October 5, 2016, at which it
reserved decision.
By Memorandum and Order dated January 27, 2017, the Court denied
the Motion to Dismiss to the extent it sought dismissal for
failure to plead demand futility, but granted that motion in part
to the extent that it found the Complaint failed to adequately
plead personal jurisdiction as to the Individual Defendants who
do not reside or principally work in Kentucky, and allowed
Plaintiff to engage in jurisdictional discovery in order to
address this issue.
On February 6, 2017, Defendants filed a motion for
reconsideration of the Court's January 27, 2017 Memorandum and
Order to the extent it denied the Motion to Dismiss as to demand
futility (the "Motion for Reconsideration"); Plaintiff filed her
opposition on February 28, 2017; and Defendants replied on
March 14, 2017. On April 18, 2017, the Court issued a Memorandum
and Order denying the Motion for Reconsideration.
On February 14, 2017 and February 23, 2017, Plaintiff served
requests for production of documents directed at the Company and
the Individual Defendants, respectively. The Company and the
Individual Defendants served responses and objections thereto on
March 20, 2017 and March 28, 2017, respectively.
On March 16, 2017, Plaintiff filed two motions for commissions
for out-of-state non-party discovery (the "Non-Party Discovery
Motions"); Defendants filed an opposition on April 5, 2017; and
Plaintiff filed her reply on April 7, 2017. A hearing on the
Non-Party Discovery Motions was scheduled for May 18, 2017.
Following the Motion to Dismiss, the Parties engaged in
settlement discussions regarding a possible resolution of the
Action. In light of the ongoing settlement discussions, the
Parties requested that the Court postpone the hearing on the
Non-Party Discovery Motions pending a potential resolution of the
Action.
On May 26, 2017, the parties reached an agreement in principle to
settle the Action, which the parties subsequently memorialized in
a Memorandum of Understanding dated June 26, 2017. On June 29,
2017, the parties informed the Court that they had reached an
agreement in principle to settle the Action.
Following, and pursuant to, the Memorandum of Understanding, the
Parties engaged in due diligence and confirmatory discovery to
confirm the reasonableness of the settlement. The parties
produced documents on July 18 and 19, 2017, and made supplemental
productions thereafter. Plaintiff's counsel conducted an
interview of a representative of the Individual Defendants on
September 28, 2017.
After the parties completed their due diligence and confirmatory
discovery, the parties had further discussions regarding the
terms of the Stipulation, including regarding attorneys' fees,
and have reached agreement to settle the Action on the terms set
forth in the Stipulation.
TERMS OF THE PROPOSED SETTLEMENT
The principal terms and conditions of the proposed settlement are
set forth in the Stipulation, which has been filed with the
Court. The following description of the terms of the proposed
settlement is only a summary. Unless otherwise herein defined,
all capitalized terms used herein have the same meanings as in
the Stipulation.
As consideration for the Settlement, the Company shall implement,
to the extent not already implemented, certain corporate
governance and compliance enhancements as set forth in Exhibit D
to the Stipulation (the "Corporate Governance and Compliance
Enhancements").
The Individual Defendants and the Company have also agreed that
they will not object to or otherwise take any position on
Plaintiff's Counsel's petition to the Court for an award of
attorneys' fees and litigation expenses, based on the benefits
provided to the Company and its stockholders from the Settlement
and the prosecution of the Action, to be paid by the Company
and/or its insurers, and from no other source, which is no
greater than $950,000, and subject to the Court's approval.
Additional information about those attorneys' fees can be found
in Section V, infra.
Plaintiff, the Company, and the Individual Defendants believe
that the Settlement set forth herein is in the best interests of
the Company and its stockholders. Plaintiff, the Company, and
the Individual Defendants have agreed to settle pursuant to the
terms and provisions of the Stipulation after considering, inter
alia, the substantial benefits that the Company and its
stockholders will receive.
Although Plaintiff believes that the Action has merit, Plaintiff
and Plaintiff's Counsel recognize and acknowledge the expense and
length of time that would be required to prosecute the Action
through trial and appeal. Plaintiff and Plaintiff's Counsel have
also taken into account the uncertain outcome and the significant
risks of litigating the Action, as well as the difficulties and
delays inherent in such litigation.
Plaintiff, the Company, and the Individual Defendants acknowledge
that the Action has been filed, commenced, and prosecuted by
Plaintiff and defended by the Company and the Individual
Defendants in good faith and consistent with KRS Sec. 271B.7-400,
and that the Action is being voluntarily released and settled.
Plaintiff, the Company, and the Individual Defendants acknowledge
and agree that the Action filed and prosecuted by Plaintiff and
the negotiations leading to this Settlement were a substantial
factor in the decisions by the Company to maintain or adopt the
Corporate Governance and Compliance Enhancements.
The Individual Defendants, who believe they have substantial
defenses to the claims alleged against them in the Complaint, and
the Company, have denied and continue to deny the allegations of
wrongdoing, liability, and violation of any laws and the
existence of any damages asserted in or arising from the Action,
but have nevertheless concluded that further litigation in
connection with the Action would be time consuming and expensive,
and after weighing the costs and uncertainties of continued
litigation, have determined that the Action should be fully and
finally settled in the manner and upon the terms and conditions
set forth in this Stipulation, and that these terms and
conditions are fair, reasonable, and adequate to the Company and
its stockholders.
WHAT CLAIMS THE STIPULATION WILL RELEASE
IF THE COURT APPROVES THE SETTLEMENT, THE FOLLOWING RELEASES WILL
OCCUR:
RELEASES
Upon entry of the Judgment, the Company, Plaintiff, and each and
every other shareholder of the Company, on behalf of themselves
and any other person or entity who could assert any of the
Released Plaintiff's Claims on their behalf, in such capacity
only, shall fully, finally, and forever release, settle, and
discharge, and shall forever be enjoined from prosecuting, the
Released Plaintiff's Claims against Defendants' Releasees.
Upon entry of the Judgment, Defendants and the other Defendants'
Releasees, on behalf of themselves and any other person or entity
who could assert any of the Released Defendants' Claims on their
behalf, in such capacity only, shall fully, finally, and forever
release, settle, and discharge, and shall forever be enjoined
from prosecuting, the Released Defendants' Claims against
Plaintiff's Releasees.
DEFINITIONS
"Approval Date" means the date on which the Court enters the
Judgment.
"Current Stockholders" means all individuals or entities who hold
of record, or beneficially own, common stock of the Company as of
the close of business on November 21, 2017.
"Defendants' Counsel" means Fultz Maddox Dickens PLC and Cleary
Gottlieb Steen & Hamilton LLP.
"Defendants' Releasees" means Kindred, any and all current and
former members of the Kindred Board, Kindred's current and former
executive officers, parent corporations, affiliates,
subsidiaries, predecessors, successors, agents, assigns,
attorneys, and anyone acting or purporting to act on their
behalf.
"Effective Date" means the first date by which the Court has
entered the Judgment and the Judgment has become Final.
"Final" means, with respect to any judgment or order, that (i) if
no appeal is filed, the expiration date of the time for filing or
noticing of any appeal of the judgment or order; or (ii) if there
is an appeal from the judgment or order, the date of (a) final
dismissal of all such appeals, or the final dismissal of any
proceeding on certiorari or otherwise to review the judgment or
order, or (b) the date the judgment or order is finally affirmed
on an appeal, the expiration of the time to file a petition for a
writ of certiorari or other form of review, or the denial of a
writ of certiorari or other form of review of the judgment or
order, and, if certiorari or other form of review is granted, the
date of final affirmance of the judgment or order following
review pursuant to that grant. However, any appeal or proceeding
seeking subsequent judicial review pertaining solely to an order
issued with respect to attorneys' fees or expenses shall not in
any way delay or preclude the Judgment from becoming Final.
"Judgment" means the Order and Final Judgment, substantially in
the form attached hereto as Exhibit C, to be entered by the Court
approving the Settlement and dismissing with prejudice the claims
asserted in the Complaint.
"Notice" means the Notice of Pendency of Derivative Action,
Proposed Settlement of Derivative Action, Settlement Hearing, and
Right to Appear, substantially in the form attached hereto as
Exhibit B.
"Plaintiff's Counsel" means Strauss Troy, The Weiser Law Firm,
and Ryan & Maniskas LLP.
"Plaintiff's Releasees" means Plaintiff and all other Kindred
stockholders, and all parent corporations, affiliates,
subsidiaries, successors, predecessors, assigns, and attorneys.
"Preliminary Approval and Scheduling Order" means the Preliminary
Approval and Scheduling Order, substantially in the form attached
hereto as Exhibit A, to be entered by the Court pursuant to KRS
Sec. 271B.7-400.
"Released Defendants' Claims" means all claims and causes of
action of any kind, nature, or description, whether known claims
or Unknown Claims (as defined below), whether based on state,
local, foreign, federal, statutory, regulatory, common, or other
law or rule, that arise out of, are based upon, or relate in any
way to the institution, prosecution or settlement of the Action,
except for claims relating to the enforcement of the Settlement.
"Released Claims" means:
(i) Plaintiff, and each and every other Kindred
stockholder, on behalf of themselves, and their respective heirs,
executors, administrators, predecessors, successors and assigns
in their capacities as such only, and derivatively on behalf of
the Company, shall fully, finally, and forever release, settle,
and discharge, and shall forever be enjoined and permanently
barred from instituting, commencing, or prosecuting any and all
Released Plaintiff's Claims against the Defendants' Releasees.
(ii) The Individual Defendants, Kindred, and the other
Defendants' Releasees, on behalf of themselves, and their
respective heirs, executors, administrators, predecessors,
successors and assigns in their capacities as such only, shall
fully, finally, and forever release, settle, and discharge, and
shall forever be enjoined and permanently barred from
instituting, commencing, or prosecuting any and all Released
Defendants' Claims (defined above) against the Plaintiff's
Releasees (defined below).
"Released Plaintiff's Claims" means all claims and causes of
action of any kind, nature, or description, whether known claims
or Unknown Claims (as defined below), whether based on state,
local, foreign, federal, statutory, regulatory, common, or other
law or rule, (i) that Plaintiff asserted in the Complaint; or
(ii) that any Kindred stockholder could assert in a claim or
complaint that are based upon or arise out of or relate to, in
any way, any of the actions, transactions, occurrences,
statements, allegations, or facts stated in the Complaint, except
for claims relating to the enforcement of the Settlement.
"Released Claims" means Released Plaintiff's Claims and Released
Defendants' Claims.
"Releasees" means Plaintiff's Releasees and Defendants'
Releasees.
"Releases" means the releases set forth in Section II.B below.
"Settlement Hearing" means the hearing to be set by the Court
under KRS Sec. 271B.7-400(3) to consider whether to approve the
Settlement as fair, reasonable, and adequate, and in the best
interests of the Company and its stockholders.
"Unknown Claims" means any Released Plaintiff's Claims that the
Company, Plaintiff, or any other Plaintiff's Releasees does not
know or suspect to exist in his, her or its favor at the time of
the release of the Defendants' Releasees, and any Released
Defendants' Claims that any of Defendants or any of the other
Defendants' Releasees does not know or suspect to exist in his,
her or its favor at the time of the release of the Plaintiff's
Releasees, which, if known by him, her or it, might have affected
his, her or its decision(s) with respect to the Settlement. With
respect to any and all Released Claims, the Parties stipulate and
agree that the Company, Plaintiff and each of the Individual
Defendants shall expressly waive, and each of the other
Plaintiff's Releasees and Defendants' Releasees shall be deemed
to have waived, and by operation of the Judgment shall have
expressly waived, any and all provisions, rights, and benefits
conferred by California Civil Code Sec. 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Such waiver also includes any law of any state or territory of
the United States, or principle of common law or foreign law,
which is similar, comparable, or equivalent to California Civil
Code Sec. 1542. The Company, Plaintiff and each of the
Individual Defendants acknowledge, and each of the other
Plaintiff's Releasees and Defendants' Releasees shall be deemed
by operation of law to have acknowledged, that the foregoing
waiver was separately bargained for and is a key element of the
Settlement.
PLAINTIFF'S ATTORNEYS' FEES
Plaintiff's Counsel intends to petition the Court for an award of
attorneys' and litigation expenses, based on the benefits
provided to the Company and its stockholders from the Settlement
and the prosecution of the Action, to be paid by the Company
and/or its insurers, and from no other source, which is no
greater than $950,000 (the "Fee Application"). Defendants agree
that they will not object to or otherwise take any position on
the Fee Application.
The Company and/or its insurers shall cause to be paid on the
Company's and Individual Defendants' behalf to Plaintiff's
Counsel any attorneys' fees and expenses that are awarded by the
Court upon the Fee Application (the "Fee Award"). The Fee Award
shall be paid by the Company and/or its insurers to Plaintiff's
Counsel within ten (10) business days of the date that the Court
grants the Fee Award, notwithstanding the existence of any timely
filed objections thereto, or potential for appeal therefrom, or
collateral attack on the Settlement or any part thereof, provided
that Plaintiff's Counsel shall provide payment instructions to
Defendants' Counsel within two (2) business days of the date of
the Fee Award.
If, after payment of the Fee Award, the Fee Award is reversed,
vacated, or reduced by Final order, or the Settlement is
terminated in accordance with the terms of this Stipulation,
Plaintiff's Counsel shall, within ten (10) business days after
receiving from Defendants' Counsel or from a court of appropriate
jurisdiction notice of the termination of the Settlement or
notice of any reduction of the Fee Award by final non-appealable
order, make appropriate refunds or repayments to the Company.
The Fee Award shall be the sole aggregate compensation for
Plaintiff's Counsel in connection with the Action and the
Settlement. Plaintiff's Counsel shall allocate the attorneys'
fees in a manner which they, in good faith, believe reflects the
contributions of counsel to achieving the benefits of the
proposed Settlement. No payment from any attorneys' fees award
shall be made to any counsel not affiliated with Plaintiff's
Counsel. Defendants' Releasees shall have no responsibility for
or liability whatsoever with respect to the allocation or award
of attorneys' fees or expenses.
Neither Individual Defendants nor the Company shall be liable for
or obligated to pay any fees, expenses, costs, or disbursements,
or to incur any expense on behalf of, any person or entity
(including, without limitation, Plaintiff or Plaintiff's
Counsel), directly or indirectly, in connection with the Action
or the Settlement, except as expressly provided for in this
Stipulation.
Neither Plaintiff nor Plaintiff's Counsel shall be liable for or
obligated to pay any fees, expenses, costs, or disbursements to,
or incur any expenses on behalf of, any person or entity
(including, without limitation, Individual Defendants, the
Company, or their counsel), directly or indirectly, in connection
with the Action or the Settlement.
This Stipulation, the Settlement, the Judgment, and whether the
Judgment becomes Final are not conditioned upon the approval of
an award of attorneys' fees, either at all or in any particular
amount, by the Court.
RIGHT TO BE HEARD AT SETTLEMENT HEARING
The Settlement Hearing will be held on January 24, 2018 at 1:15
p.m., before the Honorable Susan Schultz Gibson, Judge in
Courtroom 903 at the Jefferson Circuit Court of the Commonwealth
of Kentucky, Division Twelve, Jefferson County Judicial Center,
700 W. Jefferson St., Louisville, KY 40202. At the Settlement
Hearing, the Court will consider and determine whether: (i) to
approve the Settlement; (ii) to enter the Judgment dismissing the
Action with prejudice, each party to bear his, her, or its own
costs except as provided for in the Stipulation; (iii) to bar and
enjoin permanently Plaintiff and the Current Stockholders from
litigating any of the Released Claims; and (iv) to consider and
approve an award of Plaintiff's attorneys' fees.
The Court may adjourn and reconvene the Settlement Hearing by
oral announcement at such hearing or at any time without notice
of any kind to anyone other than the parties to the Action. The
Court may approve the Settlement with or without modifications,
enter the Judgment, and order the payment of Plaintiff's
attorneys' fees without further notice of any kind.
STOCKHOLDERS WHO HAVE NO OBJECTION TO THE PROPOSED SETTLEMENT
NEED NOT TAKE ANY FURTHER ACTION.
If you are a Current Stockholder, you may have the right to
object to any aspect of the Settlement and may, but are not
required to, appear in person or through counsel at the
Settlement Hearing to object to the terms of the proposed
Settlement or Plaintiff's Counsel's application for an award of
attorneys' fees, or otherwise present evidence or arguments that
may be proper and relevant.
IF YOU CHOOSE TO OBJECT, YOU MUST FOLLOW THE FOLLOWING PROCEDURES
OR YOU WILL NOT BE HEARD, AND NO PAPERS, BRIEFS, OR OTHER
DOCUMENTS BY YOU WILL BE RECEIVED AND CONSIDERED BY THE COURT.
No later than January 12, 2018, which is ten (10) business days
prior to the Settlement Hearing, you must file with the Jefferson
Circuit Clerk of Courts the following:
(a) a written notice of objection with your name, address
and telephone number, along with a representation as to whether
you intend to appear at the Settlement Hearing;
(b) competent evidence that you currently own shares of the
Company, when those shares were first purchased, and that those
shares were continuously owned or held;
(c) a detailed statement of your specific position with
respect to the matters to be heard at the Settlement Hearing,
including the grounds therefore and the reasons for your desiring
to appear and be heard, as well as all documents or writings you
desire the Court to consider; and
(d) the identities of any witnesses you plan on calling at
the Settlement Hearing, along with a summary of their likely
testimony.
The Jefferson Circuit Clerk of Courts' address is:
Jefferson County Office of Circuit Court Clerk
Louis D. Brandeis Hall of Justice
600 W. Jefferson St., Room 2008
Louisville, KY 40202
YOUR WRITTEN OBJECTIONS MUST BE ON FILE WITH THE JEFFERSON
CIRCUIT CLERK OF COURTS AND SERVED ON COUNSEL FOR THE PARTIES NO
LATER THAN TEN (10) BUSINESS DAYS PRIOR TO THE SETTLEMENT
HEARING.
In addition, on or before January 12, 2018, which is ten (10)
business days prior to the Settlement Hearing, you must also
serve the same documents by electronic mail and by first-class
mail, postage prepaid, on each of the following counsel of
record:
Benjamin C. Fultz
Corey M. Shapiro
FULTZ MADDOX DICKENS PLC
101 S. Fifth Street, 27th Floor
Louisville, KY 40202-3116
T: 502-588-2000
F: 502-588-2020
bfultz@fmdlegal.com
cshapiro@fmdlegal.com
Roger A. Cooper
Mark E. McDonald
Michael R. Noveck
CLEARY GOTTLIEB STEEN & HAMILTON LLP
One Liberty Plaza
New York, New York 10006
T: 212-225-2000
F: 212-225-3999
racooper@cgsh.com
memcdonald@cgsh.com
mnoveck@cgsh.com
Ronald R. Parry
Robert R. Sparks
Amy L. Hunt
Richard S. Wayne
STRAUSS TROY CO., LPA
150 East Fourth Street
Cincinnati, Ohio 45202
T: (513) 621-2120
F: (513) 629-9426
rrparry@strausstroy.com
rrsparks@strausstroy.com
alhunt@strausstroy.com
rswayne@strausstroy.com
THE COURT WILL NOT CONSIDER ANY OBJECTION THAT IS NOT TIMELY
FILED AND SERVED AS DIRECTED ABOVE. ANY PERSON WHO FAILS TO
OBJECT OR OTHERWISE REQUEST TO BE HEARD IN THE MANNER PRESCRIBED
ABOVE WILL BE DEEMED TO HAVE WAIVED THE RIGHT TO OBJECT TO ANY
ASPECT OF THE SETTLEMENT (INCLUDING THE RIGHT TO APPEAL) OR TO
REQUEST TO BE HEARD AT THE SETTLEMENT HEARING, AND WILL BE
FOREVER BARRED FROM RAISING SUCH OBJECTION OR REQUEST IN THIS OR
ANY OTHER RELATED ACTION OR PROCEEDING.
HOW TO OBTAIN ADDITIONAL INFORMATION
This Notice contains only a summary of the Action and the terms
of the Settlement. For additional details regarding the Action
or Settlement, you may contact a representative of Plaintiff's
Counsel, Strauss Troy Co., LPA, 150 East Fourth Street,
Cincinnati, Ohio 45202, telephone 513-621-2120.
You may also inspect the case files, the Stipulation, and other
papers and documents filed with the Court by appearing in person,
during regular business hours, at the offices of the Jefferson
County Office of Circuit Court Clerk. However, you must appear
in person to inspect those documents. The Clerk's office will
not mail copies to you.
PLEASE DO NOT CALL, WRITE, OR OTHERWISE DIRECT QUESTIONS ABOUT
THIS NOTICE, THE SETTLEMENT, OR THE DERIVATIVE ACTIONS TO EITHER
THE COURT OR THE CLERK'S OFFICE.
Dated: December 12, 2017
BY ORDER OF THE JEFFERSON CIRCUIT COURT OF THE COMMONWEALTH OF
KENTUCKY, DIVISION TWELVE
* *
KINDRED HEALTHCARE: Al-Najjar Class Certification Bid Vacated
-------------------------------------------------------------
In the lawsuit styled TINAMARIE FATIAH AL-NAJJAR, the Plaintiff,
v. KINDRED HEALTHCARE OPERATING, INC. ET AL, the Defendant, Case
No. 2:17-cv-06166-PSG-FFM (C.D. Cal.), the Hon. Judge Philip S.
Gutierrez entered an order vacating a motion for class
certification.
According to the Civil Minutes, the Court, having read and
considered the joint report and having heard from counsel,
advises that dates will be set consistent with the parties'
discussion. Further, the Motion for Class Certification is
vacated. Defense counsel may file an ex parte application
regarding summary judgment motions.
A copy of the Civil Minutes - General is available at no charge
at http://d.classactionreporternewsletter.com/u?f=9FBMDrcx
L3 TECHNOLOGIES: Deal in EoTech Suit Okayed, Case Dismissed
-----------------------------------------------------------
L3 Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 29, 2017, that the court in the EoTech class suits had
entered an order granting final approval of the settlement and
dismissed the class action lawsuits with prejudice.
During 2015 and 2016, five putative class action complaints
against the Company were filed in the United States District
Court for the Western District of Missouri alleging that the
Company's EoTech business unit knowingly sold defective
holographic weapons sights (see Andrew Tyler Foster, et al., v.
L-3 Communications EoTech, Inc., et al., Case No. 6:15 CV 03519
BCW). In October 2016, the parties reached a settlement in
principle to resolve the allegations in these cases. On July 7,
2017, the court entered an order granting final approval of the
settlement and dismissing the class action lawsuits with
prejudice.
L3 Technologies, Inc. provides aerospace systems, and
communication and electronic systems and products used on
military and commercial platforms in the United States and
internationally. It operates in three segments: Electronic
Systems, Aerospace Systems, and Communication Systems. It was
formerly known as L-3 Communications Holdings, Inc. and changed
its name to L3 Technologies, Inc. in December 2016. The Company
was founded in 1997 and is headquartered in New York, New York.
L3 TECHNOLOGIES: NY Securities Action Dismissed With Prejudice
--------------------------------------------------------------
L3 Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 29, 2017, that the court handling a New York securities
class action suit had entered an order granting final approval of
the settlement and dismissed the case with prejudice.
In August 2014, three separate, putative class actions were filed
in the United States District Court for the Southern District of
New York against the Company and certain of its officers. A
consolidated amended and restated complaint was filed on March
13, 2015, alleging violations of federal securities laws related
to misconduct and accounting errors identified by the Company at
its Aerospace Systems segment. On March 30, 2016, the court
dismissed with prejudice all claims against the Company's
officers and allowed the claim against the Company to proceed to
discovery. On December 20, 2016, the parties reached an agreement
in principle to resolve this matter for $34.5 million, and the
Company's insurers subsequently paid the settlement amount into
an escrow account to fully fund the settlement. On August 16,
2017, the court entered an order granting final approval of the
settlement and dismissing the case with prejudice.
L3 Technologies, Inc. provides aerospace systems, and
communication and electronic systems and products used on
military and commercial platforms in the United States and
internationally. It operates in three segments: Electronic
Systems, Aerospace Systems, and Communication Systems. It was
formerly known as L-3 Communications Holdings, Inc. and changed
its name to L3 Technologies, Inc. in December 2016. The Company
was founded in 1997 and is headquartered in New York, New York.
L3 TECHNOLOGIES: 401(k) Plan Suit Dismissed with Leave to Amend
---------------------------------------------------------------
L3 Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 29, 2017, that a court has granted defendants' motion
to dismiss a complaint related to the Company-sponsored 401(k)
plan for failure to state a claim.
On January 27, 2017, a putative class action was filed in the
United States District Court for the Southern District of New
York on behalf of participants in and beneficiaries of a Company-
sponsored 401(k) plan. The complaint alleged that certain of the
Company's officers breached fiduciary duties owed under the
Employee Retirement Income Security Act by making the Company's
stock available as an investment alternative under the plan
during a period prior to the 2014 disclosure of misconduct and
accounting errors identified by the Company at its Aerospace
Systems segment. The complaint sought, among other things,
monetary damages, equitable relief, pre-judgment interest, and
fees and expenses. On October 4, 2017, the court granted
defendants' motion to dismiss the complaint for failure to state
a claim. The court also directed that the plaintiff had until
October 26, 2017 to file a motion seeking permission to amend the
complaint.
L3 Technologies said "The Company is unable to reasonably
estimate any amount or range of loss, if any, that may be
incurred in connection with this matter at this time."
L3 Technologies, Inc. provides aerospace systems, and
communication and electronic systems and products used on
military and commercial platforms in the United States and
internationally. It operates in three segments: Electronic
Systems, Aerospace Systems, and Communication Systems. It was
formerly known as L-3 Communications Holdings, Inc. and changed
its name to L3 Technologies, Inc. in December 2016. The Company
was founded in 1997 and is headquartered in New York, New York.
LM FUNDING: Brickell Bay Suit Remains Stayed
--------------------------------------------
LM Funding America, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission for the quarterly period
ended September 30, 2017, that a continuation of abatement of a
lawsuit was granted for 60 days from the date of the order in the
District Court of Appeal of Florida Third District.
The case Solaris at Brickell Bay Condominium Association, Inc. v.
LM Funding, LLC, Case No: 2014-20043-C, was brought before the
Circuit Court of the Eleventh Judicial Circuit, Miami-Dade Civil
Division on July 31, 2014.
On August 4, 2017, an order by the court was entered on
Plaintiff's Motion for Preliminary Approval of Class Action
Settlement Agreement. The motion of the Plaintiff, Solaris at
Brickell Bay Condominium Association, Inc., individually and on
behalf of the certified plaintiff class ("Plaintiffs"), for
approval of the Class Action Settlement Agreement with Defendant
LM Funding, LLC was granted.
LMF, despite its belief that it is not liable for the claims
asserted and has good defenses thereto, has nevertheless agreed
to enter into this Agreement in order to: (1) avoid any further
expense, inconvenience, and distraction of burdensome and
protracted litigation and its consequential negative financial
effects to LMF's operations; (2) obtain the releases, orders, and
final judgment contemplated by this Agreement; and (3) put to
rest and terminate with finality all claims that have been or
could have been asserted against LMF by the Class arising from
the facts alleged in the Lawsuit and allow LMF to continue its
operational model helping associations.
In the Court of the Eleventh Judicial Circuit in and for Miami-
Dade County, pursuant to the agreement subsequently reached
between counsel, all required actions and deadlines set forth in
the Parties' Class Action Settlement Agreement, approved of by
the Court in its Order Granting Preliminary Approval of same,
dated August 3, 2017, are currently stayed and again extended for
thirty (30) more days, effective October 18, 2017. On October 5,
a continuation of the abatement was granted for sixty (60) days
from the date of the order in the District Court of Appeal of
Florida Third District.
Required to Transfer Funds to Trust Account
LM Funding America said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
June 30, 2017, that the company was required to transfer funds
into the appropriate trust account by August 23, 2017.
According to the Company, Solaris at Brickell Bay Condominium
Association, Inc. v. LM Funding, LLC, Case No: 2014-20043-C, was
brought before the Circuit Court of the Eleventh Judicial
Circuit, Miami-Dade Civil Division on July 31, 2014. On August
4th, 2017 an order by the court was entered on Plaintiff's Motion
for Preliminary Approval of Class Action Settlement Agreement.
The motion of the Plaintiff, Solaris at Brickell Bay Condominium
Association, Inc., individually and on behalf of the certified
plaintiff class ("Plaintiffs"), for approval of the Class Action
Settlement Agreement with Defendant LM Funding, LLC was granted.
LMF, despite its belief that it is not liable for the claims
asserted and has good defenses thereto, has nevertheless agreed
to enter into the Agreement in order to: (1) avoid any further
expense, inconvenience, and distraction of burdensome and
protracted litigation and its consequential negative financial
effects to LMF's operations; (2) obtain the releases, orders, and
final judgment contemplated by this Agreement; and (3) put to
rest and terminate with finality all claims that have been or
could have been asserted against LMF by the Class arising from
the facts alleged in the Lawsuit and allow LMF to continue its
operational model helping associations.
LMF is required to transfer funds into the appropriate trust
account by August 23, 2017. Opposing counsel has agreed to work
with the Company in creating a joint motion to stay the timeline
and allow a workable solution as management does not expect to
fund the account before the required timeframe. The Company has
accrued cost of $505,000 as part of the class action settlement
agreement. The settlement amount is contingent upon the Company
obtaining financing within the allotted timeframe of the
settlement agreement.
LM Funding is a specialty finance company that provides funding
to nonprofit community associations primarily located in the
state of Florida and, to a lesser extent, nonprofit community
associations in the states of Washington, Colorado, and Illinois.
The company is based in Tampa, Florida.
LOCK HAVEN: Class-Action Status Sought in Age Bias Lawsuit
----------------------------------------------------------
Lancaster Online reports that a former university clerk is
seeking class-action status for her lawsuit accusing Lock Haven
University of forcing out older employees.
PennLive.com reports Pattiann Merrifield on November 27 asked a
federal judge to include employees of the central Pennsylvania
school who are older than 40 and who were terminated or resigned
in the past 10 years.
Merrifield claims she was given the option of early retirement
and was fired when she refused in 2016 and was replaced by a 34-
year-old. She claims she was fired at age 58 so the university
could avoid paying the retirement benefits she would have
received at 60.
Lock Haven has declined to comment on the suit. [GN]
LOUISIANA: Suit Over SBL Contract Remains in District Court
-----------------------------------------------------------
In the case captioned JMCB, LLC, ON BEHALF OF ITSELF AND ALL
OTHERS SIMILARLY SITUATED v. THE BOARD OF COMMERCE & INDUSTRY;
LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT; AND CAMERON LNG,
LLC, Civil Action No. 17-75-JWD-JCW (M.D. La.), Plaintiff alleges
in its Class Action Petition that it currently owns property in
Cameron Parish, which is subject to ad valorem taxes for which no
exemption is available. The Petition further claims that Sabine
Pass Liquefaction, LLC (SPL) applied for and entered into a
contract with the State Defendants for the tax exemptions.
According to the Petition, a Louisiana Department of Economic
Development worksheet recommending approval during the process
stated that the contract amount was $6 billion and that the ad
valorem tax was $1,447,200,000.
Plaintiff prays for a judgment declaring that the contract
between the State Defendants and SPL is, for various specified
reasons, an improper act of the Board in violation of Article
VII, Section 21(F), of the Louisiana Constitution of 1974, which
provides that the Board, with approval from the governor, may
enter into contracts for the exemption from ad valorem taxes of a
new manufacturing establishment or an addition to an existing
manufacturing establishment, on such terms and conditions as the
Board, with the approval of the governor, deem in the best
interest of the state. The Plaintiff also prays that the United
States District Court for Middle District of Louisiana declare
the Contract null and void and without legal effect.
Plaintiff JMCB argues that the Court should remand the matter.
Defendants The Board of Commerce & Industry and LDED and SPL
contend that there is jurisdiction in this case and that remand
is inappropriate.
Defendants asserted in their notice of removal that the District
Court has jurisdiction under the Class Action Fairness Act and
argue that the requirements for the statute are met.
Pursuant to CAFA, a court has subject matter jurisdiction if (1)
the number of individuals in the proposed class exceeds 100; (2)
minimal diversity of citizenship exists; that is, at least one
plaintiff and one defendant are from different states, and (3)
the amount in controversy, exclusive of interests and costs, is
greater than $5,000,000.
First, Plaintiff alleges in the Petition that there are several
thousand individuals and businesses, and several applicable
governmental bodies in Cameron Parish which would qualify as a
member of the proposed class. Thus, the proposed class exceeds
100.
Second, there is minimal diversity.
Here, SPL is alleged to be a foreign limited liability company
domiciled in Delaware. Further, SPL has submitted uncontroverted
evidence establishing (1) it is organized under the laws of
Delaware; and (2) its headquarters is in Texas, where its
officials control SPL's business activities; where its highest
ranking officials are based; and where its management and
strategic planning (among other operations) are conducted.
And third, the amount in controversy requirement is satisfied.
Here, Defendants have met their burden. The ad valorem tax at
issue is worth approximately $1.4 billion. Thus, Defendants have
established each requirement for jurisdiction under CAFA.
The District Court finds that it has jurisdiction under CAFA and
that remand is not required or appropriate under the that the Tax
Injunction Act, 28 U.S.C. Section 1341 ("TIA"), comity, the
Eleventh Amendment, or the Declaratory Judgment Act.
A full-text copy of the District Court's December 4, 2017 Ruling
an Order is available at https://tinyurl.com/ydfkqmjk from
Leagle.com.
JMCB, LLC, on behalf of Itself and All Others Similarly Situated,
Plaintiff, represented by Patrick Wayne Pendley --
pwpendley@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP.
JMCB, LLC, on behalf of Itself and All Others Similarly Situated,
Plaintiff, represented by Christopher D. Shows, Pierce & Shows,
601 Saint Joseph St., Baton Rouge, LA 70802-6053, Stanley P.
Baudin -- sbaudin@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP
& Troy D. Morain, The Morain Firm, LLC, 6717 Perkins Rd
Baton Rouge, LA 70808
The Board of Commerce & Industry, Defendant, represented by
Shelton Dennis Blunt -- dennis.blunt@phelps.com -- Phelps Dunbar,
LLP, Alfred Paul LeBlanc, Jr. -- paul.leblanc@phelps.com --
Phelps Dunbar, LLP, Jack Brandon Stanley --
jack.stanley@phelps.com -- Phelps Dunbar LLP & Richard Earold
Matheny -- richard.matheny@phelps.com -- Phelps Dunbar, LLP.
Louisiana Department of Economic Development, Defendant,
represented by Shelton Dennis Blunt, Phelps Dunbar, LLP, Alfred
Paul LeBlanc, Jr., Phelps Dunbar, LLP, Jack Brandon Stanley,
Phelps Dunbar LLP & Richard Earold Matheny, Phelps Dunbar, LLP.
MAERSK LINE: 3d Cir. Affirms Summary Judgment Against Seafarer
--------------------------------------------------------------
The United States Court of Appeals, Third Circuit, issued an
Opinion affirming the District Court's granting Defendant's
Summary Judgment in the case captioned JAMES L. JOYCE, Appellant,
v. MAERSK LINE LTD, No. 16-3553 (3rd Cir.).
James Joyce was a member of the Seafarers International Union.
He signed Articles of Agreement with the shipping company Maersk
Line Limited and agreed to serve as a bosun aboard the MAERSK
OHIO for a three-month period. The Union and Maersk had reached
a collective bargaining agreement that governed the terms of all
unionized seafarers' employment with Maersk. The collective
bargaining agreement was incorporated by reference into the
Articles of Agreement between Joyce and Maersk.
Dissatisfied, Joyce filed a putative class action in the United
States District Court for the District of New Jersey. He alleged
that the portions of the collective bargaining agreement
governing unearned wages violated general maritime law. More
particularly, he claimed that he was owed overtime pay.
The District Court disagreed and granted summary judgment to
Maersk on the ground that, as a matter of law, given the
collective bargaining agreement, Joyce was not entitled to
overtime.
Joyce's argument relies heavily on the Third Circuit's holding in
Barnes v. Andover Co., L.P., 900 F.2d 630 (3d Cir. 1990), so the
Third Circuit turned to it first. The question in that case was
whether a seafarer was bound by the maintenance rate set in a
collective bargaining agreement between the shipowner and the
seafarers' union.
In reaching that conclusion, the Third Circuit acknowledged that
it was departing from the reasoning of three other United States
Courts of Appeals -- the First, Sixth, and Ninth Circuits --
which had faced the same question but decided the matter
differently. Those other courts had determined that the
contractual rate should be binding so long as the collective
bargaining process had been fair and the rate of maintenance had
been subject to real negotiation. They recognized that federal
labor laws did not directly preempt maritime law on maintenance,
but they saw the policy behind national labor laws as
sufficiently weighty and clear to prevent courts from modifying a
bargained-for rate of maintenance in a union contract.
Barnes explicitly rejected that reasoning. Although the Third
Circuit indicated sympathy with an approach that would encourage
the use and reliability of collective bargaining agreements, the
Third Circuit believed it was not well-founded in law. The Third
Circuit declared that it knew of no basis for permitting those
contracts to override a common law maritime right of a seaman
that has not been pre-empted by the labor laws. Therefore, the
Third Circuit said, unless Congress determines that the
circumstances giving rise to the need for maintenance have
changed and that collective bargaining is now a more appropriate
way to deal with the issue of the ill or injured seaman, the
common law remedy must remain in full force.
The Third Circuit placed a caveat on its holding, however, noting
that unions and shipowners could agree on what they believe is a
realistic rate of maintenance with the expectation that the
parties would voluntarily abide by that rate and thereby avoid
litigation. Somewhat incongruously, though, the Third Circuit
then immediately approved the frustration of such expectations by
saying that the plaintiff in Barnes had met his common law burden
of producing evidence that the $8 rate was insufficient to
provide him with food and lodging.
Hence, the bargained-for rate was set aside.
Joyce argues that Barnes allows the Third Circuit to hold that he
is entitled to overtime pay in his unearned wages. His logic
proceeds in three steps.
First, he says that the seafarer's right to unearned wages dates
back almost a thousand years and should be treated exactly like
the right to maintenance.
Second, he claims that overtime pay has consistently been a part
of the common law right to unearned wages.
Third, Joyce connects the first two steps to Barnes: an unearned
wage rate set in a collective bargaining agreement can be set
aside when there is evidence that it is insufficient, as was the
maintenance rate in Barnes.
The Third Circuit does not take issue here with Joyce's first
assertion. There is ample evidence that, at common law,
seafarers were and still are entitled to unearned wages. There
is less of an historical anchor, though, for the second step in
Joyce's argument, that the common law right to unearned wages
includes overtime. Nonetheless, that proposition is sound. Wage
rates for ancient mariners were typically set by contract in an
agreement then known as the shipping articles, and the general
rule was that the stipulation in the shipping articles was
conclusive as to wages, and no more could be recovered on any
special promise to pay for severe or extra labor or exposure in
the course of duty. A seafarer's right to his full wages.
Modern courts have therefore included tips and accumulated time
off as part of the unearned wage remedy under general maritime
law. Thus, today, as long as the parties' reasonable expectation
includes 'overtime and such wages are not speculative, they are
recoverable.
The Third Circuit adopted a backstop protection for seafarers, as
prescribed by its sister circuits. Consistent with principles of
contract law, a seafarer with a basis to allege that an entire
collective bargaining agreement is, or the process whereby it was
entered into was, unfair or inadequate may bring that complaint
to court. The Second Circuit implicitly made that point when it
upheld a maintenance figure set in a union contract where there
was no allegation that the agreement was not a legitimately
negotiated agreement, or that the seafarer's interests were not
adequately represented in the negotiation process, or that the
agreement as a whole is unfair. Joyce has not challenged the
negotiation process or the contract in its entirety, so that
backstop is not at issue here.
The Third Circuit noted a significant further limitation on its
ruling: maintenance, cure, and unearned wages are so deeply
rooted in common law that, absent congressional action, they
cannot be completely abrogated by contract. The Third Circuit
would look askance, then, at any collective bargaining agreement
that purported to eliminate those rights. The Third Circuit need
not wrestle with that limitation today, however, because it is
satisfied that defining unearned wages without including overtime
was, in relation to the whole scheme of benefits,
It is the rare case in which the Third Circuit overrules its own
precedent. But when its Court is in disagreement with every other
circuit to consider a question, it can be wise to reconsider its
prior reasoning. Having done so here, the Third Circuit
overrules Barnes v. Andover and will enforce the rate of unearned
wages set forth in the collective bargaining agreement between
Joyce and Maersk.
Consequently, the Third Circuit will affirm.
A full-text copy of the Third Circuit's December 4, 2017 Opinion
is available at https://tinyurl.com/ybtvnd8k from Leagle.com.
Dennis M. O'Bryan, Esq. [ARGUED], O'Bryan Baun Karamanian, 401
South Woodward Avenue, Suite #463, Birmingham, MI 48009, Counsel
for Appellant.
John J. Walsh, Esq. [ARGUED], Freehill Hogan & Mahar, 80 Pine
Street, New York, NY 10005, Counsel for Appellee.
Martin J. Davies, Tulane University Law School, 6329 Freret
Street, Weinmann Hall, Room 255-F, New Orleans, LA 70118, Amicus
Curiae.
MIAMI, OH: "Marcum" Suit Seeks to Certify Class
-----------------------------------------------
In the lawsuit styled STATE EX REL. TED MARCUM, the
Plaintiff/Petitioner, v. SHERIFF DAVE DUCHAK, ELIZABETH S.
GUTMANN, JUDGE STACY WALL, ASSNT, PROSECUTOR, STEVE LAYMAN,
PUBLIC DEFENDER, and ROB DAVIE, CORRECTIONAL OFFICER, the
Defendant/Respondents, Case No. 1:17-cv-00853-MRB-SKB (Miami Ct.
of Common Pleas), the Petitioner asks the Court for an order to
appoint counsel, certifying a class; and release temporary
restraining order.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=oHjLpFq6
The Plaintiff appears pro se.
MONTREAL: Minister Calls on School Boards to Create List of Items
-----------------------------------------------------------------
CTV News Montreal reports that a class action lawsuit filed by a
Saguenay mother is putting school boards and the Ministry of
Education in a bind.
Daisye Marcil began the lawsuit in 2014 to contest the amount of
fees she was paying for workbooks, textbooks, and other school
supplies in addition to school fees for her children to attend
public school.
One year ago Quebec Superior court gave the lawsuit permission to
proceed against all school boards in the province.
Marcil is asking for $100 per student in punitive damages, in
addition to ensuring that school boards pay for necessary school
supplies going back to 2008.
Education Minister Sebastien Proulx has now given school boards a
deadline of Dec. 15, 2017 to work out what items should be paid
for by schools and what should be supplied by parents.
The five school boards operating on the island of Montreal say
that deadline does not give them enough time.
Angela Mancini, chair of the EMSB, said Montreal school boards
have the widest discrepancies among parent incomes in the
province.
"We are asking for the government to have more time to have a
debate that's going to be a public debate so that we are not
finding ourselves in a situation where come September we are no
longer able to charge any fees to our parents," said Mancini.
"They have to come to the table. He is putting us, unfortunately,
from my perspective, in a box by saying by December 15th you're
going to answer this at the same time as a class action suit is
hanging over our heads."
An aide to the education minister told CTV News did not seem
moved by the plea from the boards.
She said that if the boards do not propose a solution in two
weeks that Proulx would impose one himself.
She added that Proulx would likely table legislation in the new
year to dictate what parents must pay for, and what schools would
have to supply. [GN]
NEW MEXICO: Court Denies Move to Dismiss Age Discrimination Suit
----------------------------------------------------------------
The United States District Court for the District of New Mexico
issued a Memorandum Opinion and Order denying both Plaintiff's
Motion to Convert and Defendant's Motion to Dismiss the case
captioned EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
STATE OF NEW MEXICO, DEPARTMENT OF CORRECTIONS, Defendant, Civ.
No. 15-879 KG/KK (D.N.M.).
This is an age discrimination case arising from NMDC's alleged
failure to promote correctional officers over the age of 40.
Under the Age Discrimination in Employment Act (ADEA) on behalf
of three charging parties and an unidentified group of other
aggrieved individuals.
The Amended Complaint alleges three counts (Counts I, II, and IV)
on behalf of a class of unidentified aggrieved individuals under
29 U.S.C. Sections 623(a)(1) (age discrimination) and 623(d)
(retaliation). NMDC moves to dismiss those counts with respect
to the unidentified aggrieved individuals pursuant to Federal
Rule of Civil Procedure 12(b)(6). NMDC argues those claims are
insufficient under the Twombly/Iqbal standard and that EEOC
failed to provide sufficient notice about any additional
aggrieved individuals during the pre-filing conciliation period.
In support of these arguments, NMDC proffered various exhibits
relating to EEOC's investigation and conciliation.
The controversial exhibits NMDC seeks to proffer include: (1)
requests for information propounded on NMDC by EEOC (Exhibit E);
(2) EEOC's letter to NMDC employees soliciting information or
claims (Exhibit F); and (3) letters and e-mails between the
parties relating to EEOC's efforts at conference, conciliation,
and investigation. NMDC argues these exhibits were implicitly
referenced in EEOC's allegations regarding its pre-filing
investigation. Courts have consistently rejected his argument,
holding that the above exceptions do not include implicit,
subtle, or passing references to extraneous evidence.
The Court therefore cannot consider the Contested Exhibits under
Rule 12(c).
Given the choice, NMDC favors exclusion rather than conversion to
ensure any distinct arguments about notice pleading are not
subsumed by a converted summary judgment motion. The Court agrees
with this approach and will exclude the Contested Exhibits and
deny the Motion to Convert.
To demonstrate age discrimination under the ADEA, the plaintiff
must allege the aggrieved parties: (1) are over 40 years of age;
(2) suffered an adverse employment action; (3) were qualified for
the positions at issue; and (4) were treated less favorably than
others not in the protected class.
A retaliation claim under Section 623(d) requires a showing that
(1) the employees engaged in a protected activity; (2) the
employer took a subsequent materially adverse action against
them; and (3) a causal connection exists between the protected
activity and the adverse action.
Applying these principles, the Court concludes the Complaint
states a plausible claim for relief on behalf of the unidentified
aggrieved individuals. Counts 1, 2, and 4 allege all of the
necessary statutory elements of age discrimination and
retaliation claims under 29 U.S.C. Sections 623(a)(1) and (d).
The Complaint sets forth detailed factual allegations about the
charging parties' qualifications, Warden Romero's ageist
explanations for denying promotions, and the various ways in
which he retaliated against anyone who complained.
To demonstrate how other aggrieved individuals were impacted, the
Complaint describes: (1) the types of discrimination at issue;
(3) the class (NMDC workers over the age of 40); and (4) the
duration of the discriminatory conduct (since 2009 and ongoing).
EEOC also alleges Warden Romero was transferred to NMDC's Santa
Fe location and has instilled a culture of age discrimination
that is applied throughout the agency. If these allegations are
true, it is not difficult to envision how the alleged
discrimination impacted more than three workers.
The Court therefore declines to dismiss the Complaint under the
Twombly/Iqbal standard.
Whether EEOC is otherwise required to name each aggrieved party
under the party plaintiff rule contained in 29 U.S.C. Section
216(c).
At oral argument, EEOC offered to file an amended complaint to
satisfy the party plaintiff rule, if it in fact applies. The
Court agrees EEOC should identify each aggrieved individual in
the record, but will instead order EEOC to file a supplemental
pleading. A supplemental pleading will be less disruptive at
this phase in the litigation because an amendment triggers
various obligations and deadlines on the part of the defendant.
NMDC is permitted, but not required, to respond to EEOC's
supplemental pleading. When crafting any response, NMDC is
advised that the Court would prefer to address additional
substantive arguments through the summary judgment proceedings.
Motion to Dismiss and the Motion to Convert are denied.
A full-text copy of the District Court's December 4, 2017
Memorandum Opinion and Order is available at
https://tinyurl.com/ya7x2pwr from Leagle.com.
Equal Employment Opportunity Commission, Plaintiff, represented
by James P. Driscoll-MacEachron -- james.driscoll-
maceachron@eeoc.gov -- Equal Employment Opportunity Commission.
Equal Employment Opportunity Commission, Plaintiff, represented
by Loretta F. Medina -- loretta.medina@eeoc.gov -- EEOC, Gina E.
Carrillo -- gina.carrillo@eeoc.gov -- Equal Employment
Opportunity Commission, Michael Baskind --
michael.baskind@eeoc.gov -- Equal Employment Opportunity
Commission, pro hac vice & Wasan Awad -- Wasan.Awad@eeoc.gov --
Equal Employment Opportunity Commission, pro hac vice.
State of New Mexico Corrections Department, Defendant,
represented by Chelsea Rae Green, Hinkle, Hensley, Shanor &
Martin, LLP, Ellen S. Casey, Hinkle Shanor LLP, Jaclyn M. McLean,
Hinkle, Hensley, Shanor & Martin LLP, Jaime Rae Kennedy, Hinkle
Shanor LLP, Loren S. Foy, Hinkle Shanor LLP, MacDonnell Gordon,
Hinkle Shanor, LLP & Derek R. VerHagen, Hinkle Shanor LLP. 218
Montezuma, P.O. Box 2068, Santa Fe, NM 87504
NORTH CAROLINA: Hawkins Seeks to Certify Class Suit v. DOHHS
------------------------------------------------------------
In the lawsuit styled MARCIA ELENA QUINTEROS HAWKINS, ALICIA
FRANKLIN, VANESSA LACHOWSKI, and KYANNA SHIPP, on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
MANDY COHEN, in her official capacity as Secretary of the North
Carolina Department of Health and Human Services, the Defendant,
Case No. 5:17-cv-00581-FL (E.D.N.C.), the Plaintiffs ask the
Court to certify their case as a class action, with the class
defined as:
"all individuals whose Medicaid coverage was, is, or will be
interrupted or terminated, effective January 1, 2014 or later,
by Defendant Secretary of the North Carolina Department of
Health and Human Services (DHHS), or any of her employees,
contractors, agents, or assigns, without first making an
individualized determination of ineligibility under all
Medicaid eligibility categories."
The proposed class is made up of three subclasses defined as
follows:
Subclass One:
"all individuals whose Medicaid coverage was, is, or will be
terminated or interrupted, effective January 1, 2014 or later,
by Defendant Secretary of the North Carolina Department of
Health and Human Services (DHHS), or any of her employees,
contractors, agents, or assigns, without first making an
individualized determination of ineligibility under all
Medicaid eligibility categories and without first sending the
beneficiary at least 10-day prior written notice of the
termination of Medicaid that describes the specific reasons
for the termination, the specific regulation supporting the
termination, and the right to a pre-termination hearing";
Subclass Two:
"all individuals for whom Medicaid coverage was, is, or will
be terminated or interrupted, effective January 1, 2014 or
later, by Defendant Secretary of the North Carolina Department
of Health and Human Services (DHHS), or any of her employees,
contractors, agents, or assigns without first making an
individualized determination of ineligibility under all
Medicaid eligibility categories and without accommodating the
beneficiary's disability during the eligibility
redetermination process"; and
Subclass Three:
"all individuals for whom Medicaid coverage was, is, or will
be terminated or interrupted, effective January 1, 2014 or
later, by Defendant Secretary of the North Carolina Department
of Health and Human Services (DHHS), or any of her employees,
contractors, agents, or assigns, without first making an
individualized determination of ineligibility under all
Medicaid eligibility categories and without communicating
during the redetermination process in the beneficiary's
primary language where the beneficiary has limited English
proficiency."
The Plaintiffs also move the Court to appoint their counsel as
Class Counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=6epinDyL
Attorneys for Plaintiffs:
Douglas Stuart Sea, Esq.
CHARLOTTE CENTER FOR LEGAL ADVOCACY
1431 Elizabeth Avenue
Charlotte, NC 28204
Telephone: (704) 971 2593
E-mail: dougs@charlottelegaladvocacy.org
- and -
Jane Perkins, Esq.
NATIONAL HEALTH LAW PROGRAM
200 N. Greensboro Street, Ste. D-13
Carrboro, NC 27510
Telephone: (919) 968 6308
E-mail: perkins@healthlaw.org
NORTHLAND GROUP: Court Certifies "Santiago" Settlement Class
------------------------------------------------------------
In the lawsuit styled NORMA I. SANTIAGO, on behalf of herself and
those similarly situated, the Plaintiff, v. NORTHLAND GROUP INC.
and PINNACLE CREDIT SERVICES LLC, the Defendants, Case No. 2:15-
cv-03608-CLW (D.N.J.), the Hon. Judge Cathy L. Waldor entered an
order certifying a Settlement Class consisting of:
"all consumers residing in the State of New Jersey, to whom
Defendant Northland Group Inc. sent a collection letter; which
letter (a) was dated May 28, 2014 through and including May
28, 2015, (b) was seeking to collect a consumer debt allegedly
owed to Pinnacle Credit Services, LLC which arose out of a
Verizon Wireless account, and (d) was sent in a windowed
envelope such that the account number associated with the debt
was visible from outside the envelope."
The Settlement Agreement provides in part for Defendants to:
a. establish a class settlement fund in the amount of
$4,698.20, to be distributed among Settlement Class members
who timely submit claim forms. Any funds remaining in the
settlement fund after the expiration of time to make a
claim or cash settlement checks will be remitted as a cy
pres award to Civil Justice Clinic at Rutgers School of Law
- Newark, Center for Law and Justice;
b. separately pay Plaintiffs reasonable counsel fees, costs
and expenses, pursuant to the FDCPA, in the amount of
$99,750;
c. separately pay Plaintiff the total sum of $5,000.00, which
amount includes Plaintiffs individual claims and an
incentive payment for her services to the Settlement Class;
and
d. separately pay the costs of administration of the
settlement and Notice to the Settlement Class, as specified
more fully in the Settlement Agreement.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=pm3CT5bK
NORTHWEST BIOTHERAPEUTICS: "Lerner" Class Suit Terminated
---------------------------------------------------------
Northwest Biotherapeutics, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended June 30, 2017, that the lead plaintiffs in
the case Lerner v. Northwest Biotherapeutics, Inc., et al., No.
15-02532, submitted a letter advising the court that they do not
intend to file an amended complaint.
The case has been terminated as of April 12, 2017.
On August 26, 2015, a purported shareholder of the Company filed
a putative class action lawsuit in the U.S. District Court for
the District of Maryland, captioned Lerner v. Northwest
Biotherapeutics, Inc., et al., No. 15-02532 (D. Md., Aug. 26,
2015). The lawsuit named the Company and Ms. Powers as
defendants. On December 14, 2015, the court appointed two lead
plaintiffs. The Lead Plaintiffs filed an amended complaint on
February 12, 2016, purportedly on behalf of all of those who
purchased common stock in the Company between January 13, 2014
and August 21, 2015. The amended complaint generally claimed that
the defendants violated Section 10(b) and Section 20(a) of the
Securities Exchange Act of 1934 by making misleading statements
and/or omissions on a variety of subjects, including the status
and results of the Company's DCVax trials. The amended complaint
sought unspecified damages, attorneys' fees, and costs. The
Company and Ms. Powers filed a motion to dismiss the amended
complaint. On March 21, 2017, the court entered an order
dismissing the case, and on April 12, 2017, the Lead Plaintiffs
submitted a letter advising the court that they do not intend to
file an amended complaint.
Northwest Biotherapeutics, Inc. is a development-stage American
pharmaceutical company headquartered in Maryland that focuses on
developing immunotherapies against different types of cancer.
NORTHWEST BIOTHERAPEUTICS: Court Approves Settlement in "Tharp"
---------------------------------------------------------------
Northwest Biotherapeutics, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that the court has
entered a final order and judgment approving the settlement in
Tharp, et al. v. Cognate, et al.
On June 19, 2015, two purported shareholders filed a lawsuit in
the Delaware Court of Chancery, captioned Tharp, et al. v.
Cognate, et al., C.A. 11179-VCG (Del. Ch. filed June 19, 2015),
purportedly suing on behalf of a class of similarly situated
shareholders and derivatively on behalf of the Company. The
lawsuit named Cognate BioServices, Inc., Toucan Partners, Toucan
Capital Fund III, Northwest's CEO Linda Powers and the
individuals who then served on the Company's Board of Directors
as defendants, and named the Company as a "nominal defendant"
with respect to the derivative claims.
The complaint generally challenged certain transactions between
the Company and Cognate and the Toucan entities, in which Cognate
and the Toucan entities provided services and financing to the
Company, or agreed to the conversion of debts owed to them by the
Company into equity. The complaint sought unspecified monetary
relief for the Company and the plaintiffs, and various forms of
equitable relief, including disgorgement of allegedly improper
benefits, rescission of the challenged transactions, and an order
forbidding similar transactions in the future.
After considerable litigation and negotiations, the parties
reached an agreement to settle the case. On October 17, 2017, the
court entered a final order and judgment approving the
settlement.
Northwest Biotherapeutics, Inc. is focused on developing
personalized immune therapies for cancer. The company has
developed a platform technology, DCVax, which uses activated
dendritic cells to mobilize a patient's own immune system to
attack their cancer. The company is based in Bethesda, Maryland.
NOVATION COMPANIES: Bid to Stay Litigation Pending Appeal Denied
----------------------------------------------------------------
Novation Companies, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission for the quarterly period
ended June 30, 2017, that a court of appeals has denied the
temporary stay of the district court proceedings pending a
decision on the objector's request for a stay.
On May 21, 2008, a purported class action case was filed in the
Supreme Court of the State of New York, New York County, by
the New Jersey Carpenters' Health Fund, on behalf of itself and
all others similarly situated. Defendants in the case included
NovaStar Mortgage Funding Corporation ("NMFC") and NovaStar
Mortgage, Inc. ("NMI"), wholly-owned subsidiaries of the
Company, and NMFC's individual directors, several securitization
trusts sponsored by the Company ("affiliated defendants") and
several unaffiliated investment banks and credit rating agencies.
The case was removed to the United States District Court for the
Southern District of New York.
On June 16, 2009, the plaintiff filed an amended complaint. The
plaintiff seeks monetary damages, alleging that the defendants
violated sections 11, 12 and 15 of the Securities Act of 1933, as
amended, by making allegedly false statements regarding mortgage
loans that served as collateral for securities purchased by the
plaintiff and the purported class members. On August 31, 2009,
the Company filed a motion to dismiss the plaintiff's claims,
which the court granted on March 31, 2011, with leave to amend.
The plaintiff filed a second amended complaint on May 16, 2011,
and the Company again filed a motion to dismiss. On March 29,
2012, the court dismissed the plaintiff's second amended
complaint with prejudice and without leave to replead. The
plaintiff filed an appeal.
On March 1, 2013, the appellate court reversed the judgment of
the lower court, which had dismissed the case. Also, the
appellate court vacated the judgment of the lower court which had
held that the plaintiff lacked standing, even as a class
representative, to sue on behalf of investors in securities in
which plaintiff had not invested, and the appellate court
remanded the case back to the lower court for further
proceedings. On April 23, 2013 the plaintiff filed its memorandum
with the lower court seeking a reconsideration of the earlier
dismissal of plaintiff's claims as to five offerings in which
plaintiff was not invested, and on February 5, 2015 the lower
court granted plaintiff's motion for reconsideration and vacated
its earlier dismissal.
On March 8, 2017, the affiliated defendants and all other parties
executed an agreement to settle the action, with the contribution
of the affiliated defendants to the settlement fund being paid by
their insurance carriers. The court certified a settlement class
and granted preliminary approval to the settlement on May 10,
2017.
One member of the settlement class objected to the settlement and
sought a stay of the final settlement approval hearing on the
ground that it did not receive notice of the settlement and had
no opportunity to timely opt out of the class. After the court
rejected the motion for a stay, the objector filed an appeal and
requested a stay of the district court proceedings pending
disposition of the appeal. The court of appeals denied the
temporary stay of the district court proceedings pending a
decision on the objector's request for a stay.
Assuming the settlement is approved and completed, the Company
will incur no loss. The Company believes that the affiliated
defendants have meritorious defenses to the case and, if the
settlement is not approved, expects them to defend the case
vigorously.
Novation Companies, Inc., through its subsidiary, Healthcare
Staffing, Inc., provides outsourced health care staffing and
related services primarily to Community Service Boards in
Georgia. It also owns a portfolio of mortgage securities. The
company is based in Kansas City, Missouri.
NOVOCURE LIMITED: Bid to Dismiss Class Suit Underway
----------------------------------------------------
NovoCure Limited said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that the plaintiffs filed an opposition to
the threshold motion to dismiss a class action lawsuit.
In January 2017, two putative class action lawsuits were filed
against the Company, its directors and certain of its officers,
as well as the underwriters in the Company's October 2015 initial
public offering. The complaints, which purport to be brought on
behalf of a class of persons and/or entities who purchased or
otherwise acquired ordinary shares of the Company pursuant and/or
traceable to the registration statement and prospectus issued in
connection with the Company's initial public offering, allege
material misstatements and/or omissions in the Company's initial
public offering materials in alleged violation of the federal
securities laws and seek compensatory damages, among other
remedies.
The two actions have been consolidated and the plaintiffs filed a
consolidated amended complaint on May 31, 2017. The court granted
the defendants' motion to bifurcate the motion to dismiss into
two stages: a threshold motion to dismiss for lack of personal
jurisdiction, lack of subject matter jurisdiction, and
insufficient process and service of process; and, if the matter
is not dismissed following that threshold motion, a subsequent
merits motion to dismiss regarding whether the allegations in the
amended complaint state a claim under the securities laws. The
defendants filed the threshold motion to dismiss on July 31,
2017, and the plaintiffs filed an opposition to the threshold
motion to dismiss on September 29, 2017.
NovoCure said "The Company believes that the amended complaint is
without merit and plans to defend the consolidated lawsuits
vigorously. The Company has not accrued any amounts in respect of
these lawsuits, as a liability is not probable and the amount of
any potential liability cannot be reasonably estimated.
NovoCure Limited is a commercial stage oncology company
developing a profoundly different cancer treatment centered on a
proprietary therapy called Tumor Treating Fields ("TTFields"),
the use of electric fields tuned to specific frequencies to
disrupt solid tumor cancer cell division.
PHILIP MORRIS: Appeals in ADESF Suit in Brazil Still Ongoing
------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that an en banc appeal
filed by ADESF to the Supreme Court of Justice in Brazil and a
constitutional appeal filed by defendants in the case to the
Federal Supreme Tribunal on the basis that plaintiff did not have
standing to bring the lawsuit, are still pending.
In a class action pending in Brazil, The Smoker Health Defense
Association (ADESF) v. Souza Cruz, S.A. and Philip Morris
Marketing, S.A., Nineteenth Lower Civil Court of the Central
Courts of the Judiciary District of Sao Paulo, Brazil, filed July
25, 1995, our subsidiary and another member of the industry are
defendants. The plaintiff, a consumer organization, is seeking
damages for all addicted smokers and former smokers, and
injunctive relief.
In 2004, the trial court found defendants liable without hearing
evidence and awarded "moral damages" of R$1,000 (approximately
$312) per smoker per full year of smoking plus interest at the
rate of 1% per month, as of the date of the ruling. The court did
not award actual damages, which were to be assessed in the second
phase of the case. The size of the class was not estimated.
Defendants appealed to the Sao Paulo Court of Appeals, which
annulled the ruling in November 2008, finding that the trial
court had inappropriately ruled without hearing evidence and
returned the case to the trial court for further proceedings.
In May 2011, the trial court dismissed the claim. In February
2015, the appellate court unanimously dismissed plaintiff's
appeal. In September 2015, plaintiff appealed to the Superior
Court of Justice. In February 2017, the Chief Justice of the
Supreme Court of Justice denied plaintiff's appeal. In March
2017, plaintiff filed an en banc appeal to the Supreme Court of
Justice. In addition, the defendants previously filed a
constitutional appeal to the Federal Supreme Tribunal on the
basis that plaintiff did not have standing to bring the lawsuit.
Both appeals are still pending.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Public Prosecutor's Class Action vs. Unit Ongoing
----------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that the plaintiff in
the case, Public Prosecutor of Sao Paulo v. Philip Morris Brasil
Industria e Comercio Ltda., appeals the Sao Paulo Court of
Appeals' decision to the Superior Court of Justice.
In Brazil, a class action suit entitled, Public Prosecutor of Sao
Paulo v. Philip Morris Brasil Industria e Comercio Ltda., Civil
Court of the City of Sao Paulo, Brazil, filed August 6, 2007, the
Company's subsidiary is a defendant. The plaintiff, the Public
Prosecutor of the State of Sao Paulo, is seeking (i) damages on
behalf of all smokers nationwide, former smokers, and their
relatives; (ii) damages on behalf of people exposed to
environmental tobacco smoke nationwide, and their relatives; and
(iii) reimbursement of the health care costs allegedly incurred
for the treatment of tobacco-related diseases by all Brazilian
States and Municipalities, and the Federal District.
In an interim ruling issued in December 2007, the trial court
limited the scope of this claim to the State of Sao Paulo only.
In December 2008, the Seventh Civil Court of Sao Paulo issued a
decision declaring that it lacked jurisdiction because the case
involved issues similar to the ADESF case discussed above and
should be transferred to the Nineteenth Lower Civil Court in Sao
Paulo where the ADESF case is pending. The court further stated
that these cases should be consolidated for the purposes of
judgment. In April 2010, the Sao Paulo Court of Appeals reversed
the Seventh Civil Court's decision that consolidated the cases,
finding that they are based on different legal claims and are
progressing at different stages of proceedings. This case was
returned to the Seventh Civil Court of Sao Paulo, and our
subsidiary filed its closing arguments in December 2010.
In March 2012, the trial court dismissed the case on the merits.
In January 2014, the Sao Paulo Court of Appeals rejected
plaintiff's appeal and affirmed the trial court decision. In July
2014, plaintiff appealed to the Superior Court of Justice.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: "Letourneau" Class Action vs. Unit Still Ongoing
---------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that its subsidiary
company continues to defend itself in a class action suit
entitled, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans,
Benson & Hedges Inc. and JTI Macdonald Corp., filed in Quebec
Superior Court, Canada.
In a class action pending in Canada, Cecilia Letourneau v.
Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI
Macdonald Corp., Quebec Superior Court, Canada, filed in
September 1998, the Company's subsidiary and other Canadian
manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald
Corp.) are defendants. The plaintiff, an individual smoker,
sought compensatory and punitive damages for each member of the
class who is deemed addicted to smoking.
The class was certified in 2005. Trial began in March 2012 and
concluded in December 2014. The trial court issued its judgment
on May 27, 2015. The trial court found our subsidiary and two
other Canadian manufacturers liable and awarded a total of CAD
131 million (approximately $104 million) in punitive damages,
allocating CAD 46 million (approximately $36 million) to our
subsidiary. The trial court found that defendants violated the
Civil Code of Quebec, the Quebec Charter of Human Rights and
Freedoms, and the Quebec Consumer Protection Act by failing to
warn adequately of the dangers of smoking. The trial court also
found that defendants conspired to prevent consumers from
learning the dangers of smoking. The trial court further held
that these civil faults were a cause of the class members'
addiction.
The trial court rejected other grounds of fault advanced by the
class, holding that: (i) the evidence was insufficient to show
that defendants marketed to youth, (ii) defendants' advertising
did not convey false information about the characteristics of
cigarettes, and (iii) defendants did not commit a fault by using
the descriptors light or mild for cigarettes with a lower tar
delivery. The trial court estimated the size of the addiction
class at 918,000 members but declined to award compensatory
damages to the addiction class because the evidence did not
establish the claims with sufficient accuracy. The trial court
ordered defendants to pay the full punitive damage award into a
trust within 60 days and found that a claims process to allocate
the awarded damages to individual class members would be too
expensive and difficult to administer. The trial court ordered a
briefing on the proposed process for the distribution of sums
remaining from the punitive damage award after payment of
attorneys' fees and legal costs.
Philip Morris said, "In June 2015, our subsidiary commenced the
appellate process by filing its inscription of appeal of the
trial court's judgment with the Court of Appeal of Quebec. Our
subsidiary also filed a motion to cancel the trial court's order
for payment into a trust within 60 days notwithstanding appeal.
In July 2015, the Court of Appeal granted the motion to cancel
and overturned the trial court's ruling that our subsidiary make
the payment into a trust within 60 days. In August 2015,
plaintiffs filed a motion with the Court of Appeal seeking
security in both the Letourneau case and the captioned case,
Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais v.
Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI
Macdonald Corp., Quebec Superior Court, Canada. In October 2015,
the Court of Appeal granted the motion and ordered our subsidiary
to furnish security totaling CAD 226 million (approximately $179
million), in the form of cash into a court trust or letters of
credit, in six equal consecutive quarterly installments of
approximately CAD 37.6 million (approximately $29.8 million)
beginning in December 2015 through March 2017. The Court of
Appeal heard oral arguments on the merits appeal in November
2016."
Philip Morris added, "Our subsidiary and PMI believe that the
findings of liability and damages were incorrect and should
ultimately be set aside on any one of many grounds, including the
following: (i) holding that defendants violated Quebec law by
failing to warn class members of the risks of smoking even after
the court found that class members knew, or should have known, of
the risks, (ii) finding that plaintiffs were not required to
prove that defendants' alleged misconduct caused injury to each
class member in direct contravention of binding precedent, (iii)
creating a factual presumption, without any evidence from class
members or otherwise, that defendants' alleged misconduct caused
all smoking by all class members, (iv) holding that the addiction
class members' claims for punitive damages were not time-barred
even though the case was filed more than three years after a
prominent addiction warning appeared on all packages, and (v)
awarding punitive damages to punish defendants without proper
consideration as to whether punitive damages were necessary to
deter future misconduct."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: "Blais" Class Action vs. Unit Still Ongoing
----------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that its subsidiary
company continues to defend itself in a class action suit
entitled, Conseil Quebecois Sur Le Tabac Et La Sante and Jean-
Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges
Inc. and JTI Macdonald Corp., filed in Quebec Superior Court,
Canada.
In a class action pending in Canada entitled, Conseil Quebecois
Sur Le Tabac Et La Sante and Jean-Yves Blais v. Imperial Tobacco
Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp.,
Quebec Superior Court, Canada, filed in November 1998, our
subsidiary and other Canadian manufacturers (Imperial Tobacco
Canada Ltd. and JTI-MacDonald Corp.) are defendants. The
plaintiffs, an anti-smoking organization and an individual
smoker, sought compensatory and punitive damages for each member
of the class who allegedly suffers from certain smoking-related
diseases. The class was certified in 2005.
The Company said, "Trial began in March 2012 and concluded in
December 2014. The trial court issued its judgment on May 27,
2015. The trial court found our subsidiary and two other Canadian
manufacturers liable and found that the class members'
compensatory damages totaled approximately CAD 15.5 billion,
including pre-judgment interest (approximately $12.3 billion).
The trial court awarded compensatory damages on a joint and
several liability basis, allocating 20% to our subsidiary
(approximately CAD 3.1 billion, including pre-judgment interest
(approximately $2.45 billion)). In addition, the trial court
awarded CAD 90,000 (approximately $71,200) in punitive damages,
allocating CAD 30,000 (approximately $23,700) to our subsidiary
and found that defendants violated the Civil Code of Quebec, the
Quebec Charter of Human Rights and Freedoms, and the Quebec
Consumer Protection Act by failing to warn adequately of the
dangers of smoking. The trial court also found that defendants
conspired to prevent consumers from learning the dangers of
smoking. The trial court further held that these civil faults
were a cause of the class members' diseases."
"The trial court rejected other grounds of fault advanced by the
class, holding that: (i) the evidence was insufficient to show
that defendants marketed to youth, (ii) defendants' advertising
did not convey false information about the characteristics of
cigarettes, and (iii) defendants did not commit a fault by using
the descriptors light or mild for cigarettes with a lower tar
delivery. The trial court estimated the disease class at 99,957
members. The trial court ordered defendants to pay CAD 1 billion
(approximately $791 million) of the compensatory damage award
into a trust within 60 days, CAD 200 million (approximately $158
million) of which is our subsidiary's portion and ordered
briefing on a proposed claims process for the distribution of
damages to individual class members and for payment of attorneys'
fees and legal costs. In June 2015, our subsidiary commenced the
appellate process by filing its inscription of appeal of the
trial court's judgment with the Court of Appeal of Quebec. Our
subsidiary also filed a motion to cancel the trial court's order
for payment into a trust within 60 days notwithstanding appeal.
"In July 2015, the Court of Appeal granted the motion to cancel
and overturned the trial court's ruling that our subsidiary make
an initial payment within 60 days. In August 2015, plaintiffs
filed a motion with the Court of Appeal seeking an order that
defendants place irrevocable letters of credit totaling CAD 5
billion (approximately $3.96 billion) into trust, to secure the
judgments in both the Letourneau and Blais cases. Plaintiffs
subsequently withdrew their motion for security against JTI-
MacDonald Corp. and proceeded only against our subsidiary and
Imperial Tobacco Canada Ltd. In October 2015, the Court of Appeal
granted the motion and ordered our subsidiary to furnish security
totaling CAD 226 million (approximately $179 million) to cover
both the Letourneau and Blais cases. Such security may take the
form of cash into a court trust or letters of credit, in six
equal consecutive quarterly installments of approximately CAD
37.6 million (approximately $29.8 million) beginning in December
2015 through March 2017. The Court of Appeal ordered Imperial
Tobacco Canada Ltd. to furnish security totaling CAD 758 million
(approximately $600 million) in seven equal consecutive quarterly
installments of approximately CAD 108 million (approximately
$85.5 million) beginning in December 2015 through June 2017.
"In March 2017, our subsidiary made its sixth and final quarterly
installment of security for approximately CAD 37.6 million
(approximately $29.8 million) into a court trust. This payment is
included in other assets on the condensed consolidated balance
sheets and in cash used in operating activities in the condensed
consolidated statements of cash flows. The Court of Appeal
ordered that the security is payable upon a final judgment of the
Court of Appeal affirming the trial court's judgment or upon
further order of the Court of Appeal. The Court of Appeal heard
oral arguments on the merits appeal in November 2016."
Philip Morris added, "Our subsidiary and PMI believe that the
findings of liability and damages were incorrect and should
ultimately be set aside on any one of many grounds, including the
following: (i) holding that defendants violated Quebec law by
failing to warn class members of the risks of smoking even after
the court found that class members knew, or should have known, of
the risks, (ii) finding that plaintiffs were not required to
prove that defendants' alleged misconduct caused injury to each
class member in direct contravention of binding precedent, (iii)
creating a factual presumption, without any evidence from class
members or otherwise, that defendants' alleged misconduct caused
all smoking by all class members, (iv) relying on epidemiological
evidence that did not meet recognized scientific standards, and
(v) awarding punitive damages to punish defendants without proper
consideration as to whether punitive damages were necessary to
deter future misconduct."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Counsel in "Kunta" Case to Pursue Another Suit
-------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that plaintiff's
counsel informed defendants in the case Kunta v. Canadian Tobacco
Manufacturers' Council, et al., that he did not anticipate taking
any action in case while he pursues the class action filed in
Adams v. Canadian Tobacco Manufacturers' Council, et al., The
Queen's Bench, Saskatchewan, Canada.
The Company said, "In a class action suit pending in Canada,
Kunta v. Canadian Tobacco Manufacturers' Council, et al., The
Queen's Bench, Winnipeg, Canada, filed June 12, 2009, we, our
subsidiaries, and our indemnitees (PM USA and Altria), and other
members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and chronic obstructive pulmonary disease ("COPD"), severe
asthma, and mild reversible lung disease resulting from the use
of tobacco products. She is seeking compensatory and punitive
damages on behalf of a proposed class comprised of all smokers,
their estates, dependents and family members, as well as
restitution of profits, and reimbursement of government health
care costs allegedly caused by tobacco products."
"In September 2009, plaintiff's counsel informed defendants that
he did not anticipate taking any action in this case while he
pursues the class action filed in Adams v. Canadian Tobacco
Manufacturers' Council, et al., The Queen's Bench, Saskatchewan,
Canada."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Preliminary Motions Still Pending in "Adams" Suit
----------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that preliminary
motions remain pending in the class action, Adams v. Canadian
Tobacco Manufacturers' Council, et al., The Queen's Bench,
Saskatchewan, Canada.
The Company said, "In a class action pending in Canada entitled,
Adams v. Canadian Tobacco Manufacturers' Council, et al., The
Queen's Bench, Saskatchewan, Canada, filed July 10, 2009, we, our
subsidiaries, and our indemnitees (PM USA and Altria), and other
members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and COPD resulting from the use of tobacco products. She is
seeking compensatory and punitive damages on behalf of a proposed
class comprised of all smokers who have smoked a minimum of
25,000 cigarettes and have allegedly suffered, or suffer, from
COPD, emphysema, heart disease, or cancer, as well as restitution
of profits. Preliminary motions are pending."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Counsel in "Semple" to Pursue Another Class Suit
---------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that no activity in
the "Semple" case is anticipated while plaintiff's counsel
pursues the class action filed in Adams v. Canadian Tobacco
Manufacturers' Council, et al., The Queen's Bench, Saskatchewan,
Canada.
The Company said, "In a class action pending in Canada, Semple v.
Canadian Tobacco Manufacturers' Council, et al., The Supreme
Court (trial court), Nova Scotia, Canada, filed June 18, 2009,
we, our subsidiaries, and our indemnitees (PM USA and Altria),
and other members of the industry are defendants. The plaintiff,
an individual smoker, alleges his own addiction to tobacco
products and COPD resulting from the use of tobacco products. He
is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers, their estates,
dependents and family members, as well as restitution of profits,
and reimbursement of government health care costs allegedly
caused by tobacco products. No activity in this case is
anticipated while plaintiff's counsel pursues the class action
filed in Adams v. Canadian Tobacco Manufacturers' Council, et
al., The Queen's Bench, Saskatchewan, Canada."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Counsel in "Dorion" to Pursue Another Class Suit
---------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that no activity in
the "Dorion" class action lawsuit is anticipated while
plaintiff's counsel pursues the class action filed in Adams v.
Canadian Tobacco Manufacturers' Council, et al., The Queen's
Bench, Saskatchewan, Canada."
The Company said, "In a class action pending in Canada, Dorion v.
Canadian Tobacco Manufacturers' Council, et al., The Queen's
Bench, Alberta, Canada, filed June 15, 2009, we, our
subsidiaries, and our indemnitees (PM USA and Altria), and other
members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and chronic bronchitis and severe sinus infections resulting from
the use of tobacco products. She is seeking compensatory and
punitive damages on behalf of a proposed class comprised of all
smokers, their estates, dependents and family members,
restitution of profits, and reimbursement of government health
care costs allegedly caused by tobacco products. To date, we, our
subsidiaries, and our indemnitees have not been properly served
with the complaint. No activity in this case is anticipated while
plaintiff's counsel pursues the class action filed in Adams v.
Canadian Tobacco Manufacturers' Council, et al., The Queen's
Bench, Saskatchewan, Canada."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Continues to Defend "McDermid" Class Action
----------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that the company
continues to defend itself in a class action suit, entitled
McDermid v. Imperial Tobacco Canada Limited, et al., filed in the
Supreme Court, British Columbia, Canada.
The Company said, "In a class action pending in Canada, McDermid
v. Imperial Tobacco Canada Limited, et al., Supreme Court,
British Columbia, Canada, filed June 25, 2010, we, our
subsidiaries, and our indemnitees (PM USA and Altria), and other
members of the industry are defendants. The plaintiff, an
individual smoker, alleges his own addiction to tobacco products
and heart disease resulting from the use of tobacco products. He
is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers who were alive on June
12, 2007, and who suffered from heart disease allegedly caused by
smoking, their estates, dependents and family members, plus
disgorgement of revenues earned by the defendants from January 1,
1954, to the date the claim was filed."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: Continues to Defend "Bourassa" Class Action
----------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that the company
continues to defend itself in a class action suit, entitled
Bourassa v. Imperial Tobacco Canada Limited, et al., filed in the
Supreme Court, British Columbia, Canada.
The Company said, "In a class action pending in Canada, Bourassa
v. Imperial Tobacco Canada Limited, et al., Supreme Court,
British Columbia, Canada, filed June 25, 2010, we, our
subsidiaries, and our indemnitees (PM USA and Altria), and other
members of the industry are defendants. The plaintiff, the heir
to a deceased smoker, alleges that the decedent was addicted to
tobacco products and suffered from emphysema resulting from the
use of tobacco products. She is seeking compensatory and punitive
damages on behalf of a proposed class comprised of all smokers
who were alive on June 12, 2007, and who suffered from chronic
respiratory diseases allegedly caused by smoking, their estates,
dependents and family members, plus disgorgement of revenues
earned by the defendants from January 1, 1954, to the date the
claim was filed. In December 2014, plaintiff filed an amended
statement of claim."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PHILIP MORRIS: "Jacklin" Case Remains Dormant
---------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that the plaintiff's
counsel in the case Suzanne Jacklin v. Canadian Tobacco
Manufacturers' Council, et al., has indicated that he does not
intend to take any action in this case in the near future.
The Company said, "In a class action pending in Canada, Suzanne
Jacklin v. Canadian Tobacco Manufacturers' Council, et al.,
Ontario Superior Court of Justice, filed June 20, 2012, we, our
subsidiaries, and our indemnitees (PM USA and Altria), and other
members of the industry are defendants. The plaintiff, an
individual smoker, alleges her own addiction to tobacco products
and COPD resulting from the use of tobacco products. She is
seeking compensatory and punitive damages on behalf of a proposed
class comprised of all smokers who have smoked a minimum of
25,000 cigarettes and have allegedly suffered, or suffer, from
COPD, heart disease, or cancer, as well as restitution of
profits. Plaintiff's counsel has indicated that he does not
intend to take any action in this case in the near future."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other tobacco products, and
other nicotine-containing products. Its portfolio of brands
comprises Marlboro, Merit, Parliament, Virginia S., L&M, Philip
Morris, Bond Street, Chesterfield, Lark, Muratti, Next, and Red &
White. Philip Morris International Inc. was incorporated in 1987
and is based in New York, New York.
PRICEWATERHOUSECOOPERS: "Rabin" Suit Seeks to Certify Class
-----------------------------------------------------------
In the lawsuit styled STEVE RABIN and JOHN CHAPMAN, on behalf of
themselves, and all others similarly situated, the Plaintiffs, v.
PRICEWATERHOUSECOOPERS LLP, the Defendant, Case No. 3:16-cv-
02276-JST (N.D. Cal.), the Plaintiffs will move the Court on
March 1, 2018, for an order:
1. conditionally certifying proposed collective;
2. approving Plaintiffs' proposed notice and distribution
plan, on behalf of:
"all aged 40 and over who applied for and were denied (or
attempted to apply for Covered Positions in PwC's Assurance
and Tax lines of service pursuant to Section 216(b) of the
Fair Labor Standards Act, the provision authorizing
collective adjudication of claims under the ADEA." and
3. requiring PwC to produce collective member data.
This case challenges Defendant PwC's alleged policy or practice
of giving preference to job applicants under age 40 for its
Associate, Experienced Associate, and Senior Associate accounting
positions,1 and passing over equally or more qualified applicants
aged 40 and over.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=f7yWDdDx
Attorneys for Plaintiffs and Proposed Class and Collective
Members:
Jahan C. Sagafi, Esq.
Cristina Schrum-Herrera, Esq.
Adam T. Klein, Esq.
Melissa L. Stewart, Esq.
Daniel Stromberg, Esq.
Lucy B. Bansal, Esq.
OUTTEN & GOLDEN LLP
One Embarcadero Center, 38th Floor
San Francisco, CA 94111
Telephone: (415) 638 8800
Facsimile: (415) 638 8810
E-mail: jsagafi@outtengolden.com
cschrumherrera@outtengolden.com
atk@outtengolden.com
mstewart@outtengolden.com
dstromberg@outtengolden.com
lbansal@outtengolden.com
- and -
Daniel Kohrman, Esq.
Laurie McCann, Esq.
Dara Smith, Esq.
AARP FOUNDATION LITIGATION
601 E. Street, N.W.
Washington, D.C. 20049
Telephone: (202) 434 2060
Facsimile: (202) 434 2082
E-mail: dkohrman@aarp.org
lmccann@aarp.org
dsmith@aarp.org
- and -
Jennifer L. Liu, Esq.
THE LIU LAW FIRM, P.C.
1170 Market Street, Suite 700
San Francisco, CA 94102
Telephone: (415) 896 4260
Facsimile: (415) 231 0011
E-mail: jliu@liulawpc.com
QUEENSLAND: Class Action Suit Over 2011 Floods Begins
-----------------------------------------------------
Michael Madigan, writing for The Courier-Mail, reports that
nearly seven years after the devastation of the January 2011
floods, more than 6000 Queenslanders are about to have their day
in court as one of the nation's largest class actions gets under
way in a Sydney court on November 27.
The action by Maurice Blackburn Lawyers in the New South Wales
Supreme Court is being brought against Seqwater, Sunwater and the
State of Queensland as operators of Wivenhoe and Somerset dams.
The action, set down for two weeks in the first hearings, alleges
operations of the dams during the floods led to widespread
flooding downstream.
Maurice Blackburn lawyers will argue, specifically, that there
was a failure to use rainfall forecasts in making decisions about
operating strategies.
Lawyers will also argue there was a failure to preserve a
reasonable amount of the dams' storage capacity in order to
provide optimum protection of urbanised areas from inundation.
Rebecca Gilsenan, principal at Maurice Blackburn, said Somerset
and Wivenhoe dams were "high hazard infrastructure''.
"In a flood event, their primary purpose is to reduce flooding in
urban areas,'' Ms Gilsenan said.
"In the 2010/2011 flood event, the dams were not operated in a
way that reduced flooding.
"The case will show that the dams were managed in a way that
increased rather than decreased the flooding, with devastating
consequences for the people of South East Queensland.''
Flood victim and Ipswich City Councillor Paul Tully said
thousands of people had waited patiently for the court action
to begin, and urged the State Government to wind up a legal
matter which is expected to continue well into 2018.
"I would still urge the State Government to consider settling out
of court,'' Cr Tully said.
Seqwater has remained determined to fight the action, saying it
never wavered in belief the dam operators had done their job to
the best of their ability.
"Seqwater is confident its management of Wivenhoe and Somerset
dams during the January, 2011, flood will be vindicated by the
NSW Supreme Court,'' the water body said in a statement.
"We have never wavered from our belief that our flood engineers
did an extraordinary job in the most difficult and demanding
circumstances.
"This position has not changed.''
The January, 2011, weather event was one of the most damaging and
extreme natural disasters ever experienced in the southeast.
While the flows from the dam are not alleged to have caused
deaths, the wider impacts of the January flooding led to 35
deaths, including 21 in the Toowoomba and Lockyer Valley region.
The hearings will be adjourned in two weeks after all opening
statements have been heard. They will resume mid-February when
the first witnesses will be called. [GN]
RUBY TUESDAY: Granted Final Approval of $5-Mil. Settlement
----------------------------------------------------------
Ruby Tuesday, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission for the fiscal year ended
June 6, 2017, that the court has granted final approval of the
settlement agreement.
In May 2014, a securities class action case styled Dennis Krystek
v. Ruby Tuesday, Inc. et al, was filed in the U.S. District Court
for the Middle District of Tennessee, Nashville Division. The
case alleged that the company and some of its former executives
made false and misleading statements about the company's
financial performance and the financial performance of the Lime
Fresh concept. On March 29, 2017, the company agreed to settle
the case for $5.0 million.
Ruby Tuesday said "We maintain insurance to cover these types of
claims with our primary insurance carrier, subject to a self-
insured retention which has been met. Our insurance policies
cover amounts in excess of our self-insured retention." The
parties agreed to resolve the matter and the settlement was
funded by the insurance carrier as of June 6, 2017. Final court
approval of the settlement agreement was obtained on August 7,
2017. In accordance with ASC Subtopic 405-20-40, Extinguishment
of Liabilities, and ASC Subtopic 210-20, Balance Sheet
Offsetting, Ruby Tuesday have recorded both an accrued liability
(included within Accrued liabilities: Rent and other) and
Restricted cash, in the amount of $5.0 million, in our
Consolidated Balance Sheet as of June 6, 2017."
Ruby Tuesday, Inc. is a multinational foodservice retailer that
owns, operates, and franchises Ruby Tuesday restaurants. The
Company-owned and operated restaurants are concentrated primarily
in the Southeast, Northeast, Mid-Atlantic, and Midwest regions of
the United States. The company is based in Maryville, Tennessee.
S.A.W. ENTERTAINMENT: Court Stays Proceedings in "Hughes" Suit
--------------------------------------------------------------
In the lawsuit styled NICOLE HUGHES, et al., the Plaintiffs, v.
S.A.W. ENTERTAINMENT, LTD, et al., the Defendants, Case No. 16-
cv-03371-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered an
order deferring decision on parties' pending motions.
The court additionally stays these cases pending the Supreme
Court's decision in Morris and the court's decision, to follow
thereafter, on the defendants' motions to compel arbitration. The
court equitably tolls the Fair Labor Standards Act statute of
limitations for potential opt-in plaintiffs while these actions
are stayed.
A copy of the Court's Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Mn8B4tzX
* * *
In the lawsuit styled NICOLE HUGHES, et al., the Plaintiffs, v.
S.A.W. ENTERTAINMENT, LTD, et al., the Defendants, Case No. 3:17-
cv-00138-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered an
order deferring decision on parties' pending motions.
The court additionally stays these cases pending the Supreme
Court's decision in Morris and the court's decision, to follow
thereafter, on the defendants' motions to compel arbitration. The
court equitably tolls the Fair Labor Standards Act statute of
limitations for potential opt-in plaintiffs while these actions
are stayed.
A copy of the Court's Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=8mumjYSS
SAL-MARK RESTAURANT: Court Certifies Mariner's Workers Class
------------------------------------------------------------
In the lawsuit styled VICENTE CRUZ, Individually and on Behalf of
All Others Similarly Situated, the Plaintiff, v. SAL-MARK
RESTAURANT CORP. d/b/a MARINER'S HARBOR RESTAURANT, MATTEO-BELLA,
LLC d/b/a FRANK GUIDO'S LITTLE ITALY, FRANK GUIDO, SALVATORE
GUIDO III, and MARK GUIDO, Jointly and Severally, the Defendants,
Case No. 1:17-cv-00815-GTS-DJS (N.D.N.Y.), the Hon. Judge Daniel
Stewart entered an order:
1. approving collective action notice entitled "COURT
AUTHORIZED NOTICE OF LAWSUIT, for mailing to potential
plaintiffs in English and Spanish;
2. certifying collective class of potential plaintiffs
consisting of:
"all persons who worked as non-exempt, full-time employees
(working 30 or more hours per week) at Mariner's Harbor
Restaurant or Frank Guido's Little Italy at any time
between July 24, 2014 and the present";
3. directing Defendants to provide to Plaintiff's counsel the
names, last known addresses, phone numbers and email
addresses, if available, and kept in the regular course of
business (the "Contact Information"), of all potential
plaintiffs who worked at Mariner's Harbor Restaurant or
Frank Guido's Little Italy at any time between July 24,
2014 and the present (the "Potential Plaintiffs").
4. directing Plaintiff's counsel to mail the notice of
collective action to all Potential Plaintiffs no later than
ten days following Defendants' disclosure of the contact
information for the Potential Plaintiffs, and provide proof
of such mailing, including the date of such mailing, to
counsel for the Defendants; and
5. if any notice to any Potential Plaintiff is returned as
undeliverable, directing Defendants' counsel to provide
Plaintiff's counsel with such other information available
to help facilitate the location of a proper address for the
potential plaintiff. Any such instance of secondary notice
by Plaintiffsúcounsel must be sent prior to the end of the
opt-in period, and does not extend the opt-in period; and
6. directing Plaintiff's counsel to promptly file executed
consents with the Court. All Potential Plaintiffs must opt-
in no later than 45 days after the date of the mailing of
the notice, by returning the executed form entitled
"Consent to Join,".
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=wrJFjbaU
The Plaintiff is represented by:
Brent E. Pelton, Esq.
PELTON GRAHAM LLC
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385 9700
E-mail: pelton@peltongraham.com
- and -
Benjamin W. Hill, Esq.
DREYER BOYAJIAN LLP
75 Columbia Street
Albany, New York 12210
Telephone: (518) 463 7784
E-mail: bhill@dreyerboyajian.com
SEAWORLD ENTERTAINMENT: Investors Win Class-Action Status
---------------------------------------------------------
Lori Weisberg, writing for The San Diego Union-Tribune, reports
that investors who have accused SeaWorld Entertainment of failing
to acknowledge the financial fallout from the anti-animal
captivity documentary, "Blackfish," have won class- action
certification for their lawsuit.
U.S. District Judge Michael Anello issued a ruling agreeing that
the lawsuit deserves class-action status, rejecting SeaWorld's
claims that the plaintiffs failed to make their case for
certification.
The investor lawsuit alleges that SeaWorld had initially denied
that the 2013 documentary had any impact on attendance at
SeaWorld's three marine parks and that when the company
ultimately did acknowledge an impact on the business, investors
lost nearly 33 percent of the value of their SeaWorld stock in a
single day.
In granting the class-action status, Anello defined the class as
anyone who purchased SeaWorld stock between Aug. 29, 2013, and
Aug. 12, 2014, and who did not sell the securities before Aug.
13, 2014.
The plaintiffs claim that the class could potentially encompass
"thousands of investors" in SeaWorld stock.
The U.S. Department of Justice also is in the midst of a related
criminal investigation into SeaWorld concerning its disclosures.
The Orlando-based company has been trying for some time to win
back visitors as attendance has continued to fall in recent
years.
More recently, SeaWorld has stepped up its marketing efforts in
hopes of bolstering its image as a company devoted to
conservation and rescue efforts. In the meantime, SeaWorld San
Diego is in the midst of constructing a new roller coaster -- the
Electric Eel -- for next year that it expects will also boost
visitation. [GN]
SEI INVESTMENTS: Stanford Trust-Related Suits Still Ongoing
-----------------------------------------------------------
SEI Investments Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission for the quarterly period
ended September 30, 2017, that the lawsuits arising from a
subsidiary's provision of back-office services to Stanford Trust
Company remain pending.
SEI has been named in seven lawsuits filed in Louisiana courts;
four of the cases also name SPTC as a defendant. The underlying
allegations in all actions relate to the purported role of SPTC
in providing back-office services to Stanford Trust Company. The
complaints allege that SEI and SPTC participated in some manner
in the sale of "certificates of deposit" issued by Stanford
International Bank so as to be a "seller of the certificates of
deposit for purposes of primary liability under the Louisiana
Securities Law or so as to be secondarily liable under that
statute for sales of certificates of deposit made by Stanford
Trust Company. Two of the actions also include claims for
violations of the Louisiana Racketeering Act and possibly
conspiracy, and a third also asserts claims of negligence, breach
of contract, breach of fiduciary duty, violations of the uniform
fiduciaries law, negligent misrepresentation, detrimental
reliance, violations of the Louisiana Racketeering Act, and
conspiracy.
The procedural status of the seven cases varies. The Lillie case,
filed originally in the 19th Judicial District Court for the
Parish of East Baton Rouge, was brought as a class action and is
procedurally the most advanced of the cases. SEI and SPTC filed
exceptions, which the Court granted in part, dismissing claims
under the Louisiana Unfair Trade Practices Act and permitting the
claims under the Louisiana Securities Law to go forward. On March
11, 2013, newly-added insurance carrier defendants removed the
case to the United States District Court for the Middle District
of Louisiana. On August 7, 2013, the Judicial Panel on
Multidistrict Litigation transferred the matter to the Northern
District of Texas where MDL 2099, In re: Stanford Entities
Securities Litigation ("the Stanford MDL"), is pending. On
September 22, 2015, the District Court on the motion of SEI and
SPTC dismissed plaintiffs' claims for primary liability under
Section 714(A) of the Louisiana Securities Law, but declined to
dismiss plaintiffs' claims for secondary liability under Section
714(B) of the Louisiana Securities Law based on the allegations
pled by plaintiffs. On November 4, 2015, the District Court
granted SEI and SPTC's motion to dismiss plaintiffs' claims under
Section 712(D) of the Louisiana Securities Law.
Consequently, the only claims of plaintiffs still pending before
the District Court in Lillie are plaintiffs' claims for secondary
liability against SEI and SPTC under Section 714(B) of the
Louisiana Securities Law. On May 2, 2016, the District Court
certified the class as being "all persons for whom Stanford Trust
Company purchased or renewed Stanford Investment Bank Limited
certificates of deposit in Louisiana between January 1, 2007 and
February 13, 2009". Notice of the pendency of the class action
was mailed to potential class members on October 4, 2016.
On December 1, 2016, a group of plaintiffs who opted out of the
Lillie class filed a complaint against SEI and SPTC in the United
States District Court in the Middle District of Louisiana,
alleging claims essentially the same as those in Lillie. In
January 2017, the Judicial Panel on Multidistrict Litigation
transferred the proceeding to the Northern District of Texas and
the Stanford MDL. During February 2017, SEI filed its response to
the Complaint and in March 2017 the District Court for the
Northern District of Texas approved the stipulated dismissal of
all claims in this complaint predicated on Section 712(D) or
Section 714(A) of the Louisiana Securities Law.
Another one of the cases, filed in the 23rd Judicial District
Court for the Parish of Ascension, also was removed to federal
court and transferred by the Judicial Panel on Multidistrict
Litigation to the Northern District of Texas and the Stanford
MDL. The schedule for responding to that Complaint has not yet
been established.
The plaintiffs in two of the cases remaining in the Parish of
East Baton Rouge have granted SEI and SPTC indefinite extensions
to respond to the petitions.
In the two additional cases, filed in East Baton Rouge and
brought by the same counsel who filed the Lillie action,
virtually all of the litigation to date has involved motions
practice and appellate litigation regarding the existence of
federal subjection matter jurisdiction under the federal
Securities Litigation Uniform Standards Act (SLUSA). After the
matter was removed to the United States District Court for the
Northern District of Texas, that court dismissed the action under
SLUSA. The Court of Appeals for the Fifth Circuit reversed that
order, and the Supreme Court of the United States affirmed the
Court of Appeals judgment on February 26, 2014. The matter was
remanded to state court and no material activity has taken place
since that date.
SEI Investments said "While the outcome of this litigation
remains uncertain, SEI and SPTC believe that they have valid
defenses to plaintiffs' claims and intend to defend the lawsuits
vigorously. Because of uncertainty in the make-up of the Lillie
class, the specific theories of liability that may survive a
motion for summary judgment or other dispositive motion, the
relative lack of discovery regarding damages, causation,
mitigation and other aspects that may ultimately bear upon loss,
the Company is not reasonably able to provide an estimate of
loss, if any, with respect to the foregoing lawsuits."
SEI Investments Company is a publicly owned asset management
holding company. Through its subsidiaries, the firm provides
wealth management, retirement and investment solutions, asset
management, asset administration, investment processing
outsourcing solutions, financial services, and investment
advisory services to its clients. SEI Investments Company is
based in Oaks, Pennsylvania.
SYNCHRONY FINANCIAL: "Campbell" and "Neal" TCPA Suits Underway
--------------------------------------------------------------
Synchrony Financial said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that the company continues to defend itself
from class action lawsuits alleging violation of the Telephone
Consumer Protection Act.
The cases are entitled Campbell et al. v. Synchrony Bank, in the
U.S. District Court for the Northern District of New York and
Neal et al. v. Wal-Mart Stores, Inc. and Synchrony Bank, in the
U.S. District Court for the Western District of North Carolina.
The Bank or the Company is, or has been, defending a number of
putative class actions alleging claims under the federal
Telephone Consumer Protection Act ("TCPA") as a result of phone
calls made by the Bank. The complaints generally have alleged
that the Bank or the Company placed calls to consumers by an
automated telephone dialing system or using a pre-recorded
message or automated voice without their consent and seek up to
$1,500 for each violation, without specifying an aggregate
amount.
Campbell et al. v. Synchrony Bank was filed on January 25, 2017
in the U.S. District Court for the Northern District of New York.
The original complaint named only J.C. Penney Company, Inc. and
J.C. Penney Corporation, Inc. as the defendants but was amended
on April 7, 2017 to replace those defendants with the Bank.
Neal et al. v. Wal-Mart Stores, Inc. and Synchrony Bank, for
which the Bank is indemnifying Wal-Mart, was filed on January 17,
2017 in the U.S. District Court for the Western District of North
Carolina. The original complaint named only Wal-Mart Stores, Inc.
as a defendant but was amended on March 30, 2017 to add Synchrony
Bank as an additional defendant.
Synchrony Financial is one of the premier consumer financial
services companies in the United States. The company provides a
range of credit products through programs the company have
established with a diverse group of national and regional
retailers, local merchants, manufacturers, buying groups,
industry associations and healthcare service providers, which the
company refers to as its "partners." The Company is based in
Stamford, Connecticut.
SYNCHRONY FINANCIAL: Kincaid TCPA Class Action Suit Underway
------------------------------------------------------------
Synchrony Financial said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that the company continues to defend in a
putative class action suit entitled, Michael W. Kincaid, DDS et
al. v. Synchrony Financial.
The Company is a defendant in a putative class action lawsuit
alleging claims under the TCPA relating to facsimiles. In Michael
W. Kincaid, DDS et al. v. Synchrony Financial, plaintiff alleges
that the Company violated the TCPA by sending fax advertisements
without consent and without required notices, and seeks up to
$1,500 for each violation. The amount of damages sought in the
aggregate is unspecified. The original complaint was filed in
U.S. District Court for the Northern District of Illinois on
January 20, 2016. On August 11, 2016, the Court granted the
Company's motion to dismiss based on the lack of personal
jurisdiction. On August 15, 2016, the plaintiff re-filed the case
in the Southern District of Ohio.
Synchrony Financial is one of the premier consumer financial
services companies in the United States. The company provides a
range of credit products through programs the company have
established with a diverse group of national and regional
retailers, local merchants, manufacturers, buying groups,
industry associations and healthcare service providers, which the
company refers to as its "partners." The Company is based in
Stamford, Connecticut.
T. ROWE PRICE: Says ERISA Class Suit Underway
---------------------------------------------
T. Rowe Price Group, Inc. continues to defend itself against a
putative class suit related to alleged violations of the Employee
Retirement Income Security Act (ERISA), according to the
Company's Form 10-Q filed with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2017.
On February 14, 2017, T. Rowe Price Group, Inc., T. Rowe Price
Associates, Inc., T. Rowe Price Trust Company, current and former
members of the management committee, and trustees of the T. Rowe
Price U.S. Retirement Program were named as defendants in a
lawsuit filed in the United States District Court for the
District of Maryland. The lawsuit alleges breaches of ERISA's
fiduciary duty and prohibited transaction provisions on behalf of
a class of all participants and beneficiaries of the T. Rowe
Price 401(k) Plan from February 14, 2011, to the time of
judgment. The plaintiffs are seeking certification of the
complaint as a class action.
T. Rowe Price believes the claims are without merit and is
vigorously defending the action. This matter is in the early
stages of litigation and we cannot predict the eventual outcome
or whether it will have a material negative impact on our
financial results, or estimate the possible loss or range of loss
that may arise from any negative outcome.
T. Rowe Price Group, Inc. is a publicly owned investment manager.
The firm provides its services to individuals, institutional
investors, retirement plans, financial intermediaries, and
institutions. The firm was previously known as T. Rowe Group,
Inc. and T. Rowe Price Associates, Inc. The Company was founded
in 1937 and is based in Baltimore, Maryland.
TACOMANIA INC: "Sanchez" Suit Seeks to Certify Employees Class
--------------------------------------------------------------
In the lawsuit styled ZELYN SANCHEZ, ELOINA FUENTES; JENNY
FUENTES; ERIK LAZO-RODRIGUEZ (sic); GUSTAVO VALENZUELA; MARIA
AYALA; MARIA ANGELA CEJA; on behalf of themselves and those
similarly situated individuals, the Plaintiffs, TACOMANIA, INC.,
JOSEFINA FLORES; and JOSE a. ROMERO, the Defendants, Case No.
5:17-cv-01691-EJD (N.D. Cal.), the Plaintiff will move the Court
on January 25, 2017, for an order pursuant to the Fair Labor
Standards Act:
1. conditionally certifying class and sending notice of this
action to join on behalf of:
"all present and former non-administrative, non-exempt,
hourly employees of Tacomania, Inc. who worked from March
28, 2014 to the present, including but not limited to
cashiers, cooks, and food preparation workers at the fixed
and mobile Tacomania facilities from march 28, 2014, to
judgment".
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=MPcpdTcQ
Attorneys for Plaintiffs:
Robert David Baker, Esq.
ROBERT DAVID BAKER, INC.
80 South White Road
San Jose, CA 95127
Telephone: (408) 251 3400
Facsimile: (408) 251 3401
E-mail: rbaker@rdblaw.com
TDJ OILFIELD: "Barnhill" Suit Has Conditional Class Certification
-----------------------------------------------------------------
In the lawsuit styled CORY BARNHILL, Individually and on behalf
of all others similarly situated, Plaintiff, v. TDJ OILFIELD
SERVICES, LLC, and JOEY MOORE, the Defendants, Case No. 7:17-cv-
00160-RAJ-DC (W.D. Tex.), the Hon. Judge Robert Junell entered a
order on Dec. 18, 2017:
1. approving conditional certification of a proposed class as
agreed to by the Parties and authorizing Notice to the
Parties' Joint Motion;
2. directing Defendants within 14 days after of this Order, to
provide Plaintiff's counsel with the names, last known
addresses, e-mail addresses, and telephone numbers of the
potential opt-in plaintiffs, in a usable electronic format.
Telephone numbers shall be used only to verify addresses or
e-mail addresses for potential opt-in plaintiffs in the
event that putative class members' initial mailed Notice is
returned as "undeliverable," and shall not be used to
solicit.
3. directing Plaintiff's counsel shall, upon obtaining the
Court-Ordered Information, to send notices of this action
in the form set forth in Plaintiffs Revised Proposed Notice
by mail for a period of 90 days from the date Defendants
provides Plaintiff with the Court-Ordered Information; and
4. directing Defendants to post the notice during the 90-day
notice period which ends 90 days from the date Defendants
provide Plaintiff's counsel with the Court-Ordered
Information) at the district offices in the same areas in
which it is required to post government-required notices to
which the putative class members have access;
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=ruhTuO2k
THRIFTY PAYLESS: Denial of Class Certification in "Noel" Affirmed
-----------------------------------------------------------------
The Court of Appeals of California, First District, Division
Four, issued an Opinion affirming denial of the Trial Court on
Plaintiff's Motion for Class Certification in the captioned DIANA
NIEVES NOEL, as Personal Representative, etc., Plaintiff and
Appellant, v. THRIFTY PAYLESS, INC., Defendant and Respondent,
No. A143026. (Cal. App.)
Plaintiff James A. Noel bought an inflatable swimming pool at
defendants' drugstore that turned out to be much smaller than the
pool pictured on the box. He sued defendant Thrifty Payless, Inc.
on behalf of himself and similarly situated individuals, alleging
defendants violated the Consumers Legal Remedies Act (CLRA),
Unfair Competition Law (UCL), and False Advertising Law (FAL) by
selling the pool with deceptive advertising to consumers in its
California retail stores.
When Noel moved to certify the class, the trial court denied his
motion on the UCL and FAL causes of action, finding Noel's
proposed class consisting of more than 20,000 potential members
was not ascertainable under Code of Civil Procedure section 382.
The trial court also refused to certify a class on Noel's CLRA
cause of action because it determined common questions of law or
fact did not predominate over individual questions of reliance
and causation.
Noel insists the class was ascertainable because the class
definition was clear and simple: All persons who purchased the
Ready Set Pool at a Rite Aid store located in California within
the four years preceding the date of the filing of this action.
The Court finds that Noel's emphasis on precision of drafting is
not incorrect, but it is somewhat beside the point. Precision of
definition chiefly comes into play if the defendant claims the
class definition is overbroad or otherwise flawed. Here Rite
Aid's opposition to class certification did not turn on the class
definition, but rather the lack of records through which to
identify class members. Noel failed to articulate and support
with evidence any means of identifying potential class members,
as required by case law. As noted, determining whether a class
is ascertainable, the trial court examines the class definition,
the size of the class and the means of identifying class members.
Noel, even after having had an opportunity to conduct discovery,
presented no evidence of a practical or even viable means of
identifying the individuals associated with the more than 20,000
transactions disclosed by Rite Aid's sales records for purposes
of giving them notice. He has not attempted to prove or even
explain how Rite Aid's records might be mined for evidence of
customer identity or cross-referenced with other available
evidence to obtain the identities of the purchasers of the Ready
Set Pool or any means of contacting them. Nor has he established
that personal notice cannot be given.
On this record, the trial court made no finding that the proposed
class was unascertainable on any conceivable set of facts;
rather, what the court concluded was that the class cannot be
ascertained on the evidentiary showing Noel made, which lacked
any level of assurance that there is an available means to notify
putative class members of the pendency of the action at the
beginning of the proceeding, rather than at the end when all is
said and done. The Court cannot say the court's call denying
certification in these circumstances was an abuse of discretion.
Noel contends the court required him, in effect, to prove the
merits of his CLRA claim, which he insists was not required at
the certification stage. The Court agreed the merits are not to
be resolved at class certification but that is not what happened
here. Presented with a class certification motion, a trial court
must examine the plaintiff's theory of recovery, assess the
nature of the legal and factual disputes likely to be presented,
and decide whether individual or common issues predominate. To
the extent the propriety of certification depends upon disputed
threshold legal or factual questions, a court may, and indeed
must, resolve them.
Because the merits of Noel's claims were intertwined with issues
pertinent to class certification, there was no error in
considering Rite Aid's evidence insofar as relevant to the
questions raised by the class certification motion. The court's
ruling did not require Noel to prove the merits of his cause of
action; it was a simple, evidence-based prediction that disputed
issues at trial were more likely to be individual than common.
The ruling neither included nor arose from a finding that Noel's
claim lacked merit, and in fact the court reached the opposite
conclusion, finding that Noel had raised a triable issue on the
merits.
Having rejected Noel's claims of legal error, the Court also
rejected the contention that the court abused its discretion in
making this final determination. It is not clear from the
court's order to which causes of action this finding pertains.
If the court intended to include lack of superiority as a reason
for rejecting class certification on the CLRA cause of action,
that was error, but harmless due to the other valid reasons for
denying class certification. If the court intended its negative
superiority finding to apply only to the FAL and UCL causes of
action, then it was supported by the evidence and did not amount
to an abuse of discretion.
Noel's counsel was in control of the litigation; no one forced
him to file a premature class certification motion. Plaintiffs
lacking adequate evidence on class issues may reasonably defer
moving to certify or seek a continuance to gather evidence, and
trial courts should avoid ruling on the merits until satisfied
that a plaintiff has had a fair opportunity to present the case
for certification.
Although Noel retained new counsel between the filing of the
motion and the hearing on it, nothing compelled Wimmer to proceed
with the motion if he concluded insufficient discovery had been
conducted, or he did not have time to prepare for the hearing.
Wimmer could have withdrawn the pending motion and conducted
further discovery before refiling it.
Because Noel's counsel were responsible for the timing of the
motion, it was not an abuse of discretion to hold them to the
proof of facts necessary to certify the class. That class actions
are generally favored is not reason enough to mandate that Noel's
attorneys be allowed to press forward with the hearing on the
motion and then abandon it mid-hearing in favor of conducting
further discovery. Just as the Court is not inclined to overturn
the denial of certification, the Court cannot say the trial court
abused its discretion by failing to grant a continuance in the
midst of the hearing.
The order denying class certification and denying a continuance
for the taking of further discovery is affirmed.
A full-text copy of the Court of Appeals' December 4, 2017
Opinion is available at https://tinyurl.com/yayhwzeb from
Leagle.com.
Emergent Legal, Emergent and Christopher Wimmer --
chris@emergent.law.com -- for Plaintiff and Appellant.
Kelly, Hockel & Klein, Klein, Hockel, Iezza & Patel, Michael D.
Early and Mark P. Iezza for Defendant and Respondent. 455 Market
Street, Suite 1480, San Francisco, CA 94105
TIVITY HEALTH: Brower Piven Files Securities Class Action
---------------------------------------------------------
The securities litigation law firm of Brower Piven, A
Professional Corporation, disclosed that a class action lawsuit
has been commenced in the United States District Court for the
Middle District of Tennessee on behalf of purchasers of Tivity
Health, Inc. (NASDAQ:TVTY) ("Tivity" or the "Company") securities
during the period between February 24, 2017 and November 3, 2017,
inclusive (the "Class Period"). Investors who wish to become
proactively involved in the litigation have until January 19,
2018, to seek appointment as lead plaintiff.
If you wish to choose counsel to represent you and the class, you
must apply to be appointed lead plaintiff and be selected by the
Court. The lead plaintiff will direct the litigation and
participate in important decisions including whether to accept a
settlement for the class in the action. The lead plaintiff will
be selected from among applicants claiming the largest loss from
investment in Tivity securities during the Class Period. Members
of the class will be represented by the lead plaintiff and
counsel chosen by the lead plaintiff. No class has yet been
certified in the above action.
The complaint accuses the defendants of violations of the
Securities Exchange Act of 1934 by virtue of the defendants'
failure to disclose during the Class Period that Tivity was aware
that its customer, United Healthcare, Inc. ("United Healthcare"),
planned to expand its fitness benefit to seniors and the
expansion would represent direct competition to Tivity's core
program SilverSneaker.
According to the complaint, following a November 6, 2017 press
release from United Healthcare announcing expansion of its
fitness benefits, the value of Tivity shares declined
significantly.
If you have suffered a loss in excess of $100,000 from investment
in Tivity securities purchased on or after February 24, 2017 and
held through the revelation of negative information during and/or
at the end of the Class Period and would like to learn more about
this lawsuit and your ability to participate as a lead plaintiff,
without cost or obligation to you, please visit our website at
http://www.browerpiven.com/casesandinvestigations.html. You may
also request more information by contacting Brower Piven either
by email at hoffman@browerpiven.com or by telephone at (410) 415-
6616.
Attorneys at Brower Piven have extensive experience in litigating
securities and other class action cases and have been advocating
for the rights of shareholders since the 1980s. If you choose to
retain counsel, you may retain Brower Piven without financial
obligation or cost to you, or you may retain other counsel of
your choice. You need take no action at this time to be a member
of the class.
Charles J. Piven, Esq.
Brower Piven, A Professional Corporation
1925 Old Valley Road
Stevenson, Maryland 21153
Telephone: 410-415-6616
Email: hoffman@browerpiven.com [GN]
TOYOTA MOTOR: Wiring Attracts Rodents, Class Action Suit
--------------------------------------------------------
Tire Review reports that a proposed class action was moved from a
state to federal court in Massachusetts that accuses Toyota of
incorporating soy-based materials in some of its cars' electrical
wiring systems, baiting rodents to gnaw the wiring but refusing
to cover repairs under warranty.
The suit arose after Ray Roscoe said a Toyota Motor Sales USA
Inc. dealership told him in December 2016 that an additional
extended warranty he had purchased did not cover the extensive
damage mice wrought on his 2012 Toyota Sequoia because rodents
are considered an "outside source of damage to the car" -- even
though the dealership has to retain a "mouse man" whose sole job
is to repair the vehicle damage rodents cause, according to his
complaint.
"The inclusion of soy-based materials in class vehicle electrical
wiring and wiring components attracts rodents and other animals
that nest under the hoods of class vehicles and feast on the soy
insulation and electrical wires, thereby compromising the
integrity of class vehicle electrical systems and rendering class
vehicles fully or partially inoperable," the complaint says.
The Massachusetts suit is not the first brought by consumers over
soy wiring. In October, Kia Motors America Inc. urged a
California federal judge to toss a similar suit because no expert
evidence showed rats and other critters even like the taste of
the material. In 2016, consumers sued Honda Motor Co. and said
the carmaker had denied any defects, but sold the car owners a
mouse-deterring tape to try to protect their cars' wiring.
Roscoe's filing says complaints on the National Highway Traffic
Safety Administration website show that many consumers have
suffered wire damage because rodents and other animals chew the
soy-based portions of the wiring in multiple Toyota models. Class
vehicles include the 2009-2016 Camry, 2002-2016 Camry Hybrid and
the 2014-2016 Corolla, among other models.
According to Roscoe, Toyota must have been aware of the defect
from the NHTSA records as well as various news reports and its
own log of customers' complaints, but nevertheless "routinely
refuses" to repair the vehicles under warranty because it says
rodent damage is an environmental problem.
"The environmentally friendly and less expensive soy-based
coating is the problem," the complaint said. "While class
vehicles are essentially being attacked by rodents and other
animals, older vehicles with non-soy-based insulated wires that
are exposed to similar conditions do not experience rodent-caused
damage."
Roscoe filed the class action in Massachusetts state court on
Oct. 20, but Toyota got the case removed to federal court on
November 27 after pointing out that more than $5 million is
probably at stake.
Roscoe seeks a minimum of $17,405.36 in damages to recoup the
cost of repairs and a rental car he used while his car was in the
shop. His proposed class is defined to include everyone in
Massachusetts who owns or leases one of 17 Toyota vehicle models
-- which could include "many thousand[s]" of class members,
according to his complaint. [GN]
TRANZVIA LLC: Court Grants Dismissal of "Naiman" TCPA Suit
----------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Defendant's Motion to Dismiss
the case captioned SIDNEY NAIMAN, Plaintiff, v. TRANZVIA LLC,
Defendant, Case No. 17-cv-4813-PJH (N.D. Cal.).
Plaintiff claims that his cell phone number was called with a
pre-recorded message by Gordon Rose's office. The caller ID
showed that the call was from the phone number (270) 594-7041.
According to plaintiff, when the call was answered, there was a
lengthy pause and a click followed by silence before a voice came
on the line, which plaintiff asserts indicated that the call was
made using an automatic telephone dialing system ("ATDS").
Following the lengthy pause and extended silence, a pre-recorded
message played words to the effect that the call was being made
to sell credit card processing services and the called party was
instructed to press a button on his telephone for further
information.
Plaintiff does not assert a claim of direct liability against
TranzVia for violation of the Telephone Consumer Protection Act,
47 U.S.C. Section 227 ("TCPA"), but rather alleges that TranzVia
is vicariously liable, because Rose, acting as TranzVia's agent,
violated the TCPA. A defendant may be held vicariously liable
for TCPA violations where the plaintiff establishes an agency
relationship, as defined by federal common law, between the
defendant and a third-party caller.
To state a plausible claim based on Rose's actual authority,
plaintiff must allege facts showing that TranzVia had the right
to control Rose and the manner and means of the calls Rose made.
TranzVia argues that the court need not accept as true the bare
legal conclusion that it is liable for Rose's acts, and that such
an allegation is not sufficient to state a plausible claim for
relief under the circumstances, given that plaintiff has not pled
a single fact demonstrating that TranzVia actually had control
over Rose such that it can be held vicariously liable for any of
Rose's purported violations of the TCPA.
Here, however, plaintiff does not allege that TranzVia made the
two calls at issue. The complaint asserts that TranzVia hired
Rose to generate new customers for TranzVia to market its payment
services. However, the Agreement, which plaintiff does not
challenge, and which is attached to TranzVia's motion, is an
agreement between TranzVia and Arris. The Agreement bears the
signature of Rose, as CEO of Arris, but Rose is not a contracting
party (and plaintiff does not allege that he is).
Nor does plaintiff directly allege that Rose himself made the
disputed calls or that he directed or oversaw the equipment that
made the disputed calls. Plaintiff asserts that Rose had a
strategy for generating new customers which involved the use of
an ATDS to solicit business.
He also alleges that TranzVia accepted business that originated
through the illegal telemarketing calls from Mr. Rose; that
TranzVia hired a company to make calls on its behalf; that the
company that Mr. Rose hired manifested assent or otherwise
consented to act' on behalf of TranzVia; that TranzVia had
control over Mr. Rose's actions on its behalf; that TranzVia
failed to prohibit Mr. Rose from using an ATDS to contact
potential customers of TranzVia; and that Rose transferred
prospective customer information, including information about
plaintiff, directly to TranzVia.
In order to demonstrate that the court has personal jurisdiction
over TranzVia based on Rose's conduct, plaintiff must put forth
evidence showing that Rose is subject to this court's
jurisdiction, and that Rose's actions are attributable to
TranzVia because Rose was TranzVia's agent with respect to the
calls that Rose allegedly made to plaintiff. It is only when the
acts of an agent can be imputed to the principal that the court
can exercise personal jurisdiction over the principal for those
acts.
The court finds that allegations in of the complaint, which
plaintiff asserts show that TranzVia had control over Mr. Rose's
actions on its behalf, are insufficient to demonstrate that
plaintiff has a plausible claim for relief against TranzVia based
on TranzVia's alleged vicarious liability for Rose's acts.
Plaintiff also fails to allege agency based on a theory of
ratification. Ratification is the affirmance of a prior act done
by another, whereby the act is given effect as if done by an
agent acting with actual authority. A person ratifies an act by
(a) manifesting assent that the act shall affect the person's
legal relations, or (b) conduct that justifies a reasonable
assumption that the person so consents. The sole requirement for
ratification is a manifestation of assent or other conduct
indicative of consent by the principal.
In order to allege that TranzVia ratified Rose's allegedly
improper calls, plaintiff must allege facts sufficient to allow
the court to reasonably infer that TranzVia knew that Rose
violated the TCPA and that it knowingly accepted the benefits of
Rose's violation.
Here, plaintiff does not allege the existence of a principal-
agent relationship between Rose and TranzVia, nor does plaintiff
allege facts showing that TranzVia approved of violations of the
TCPA perpetrated by Rose, Arris, or any other entity. Thus, there
is no allegation of vicarious liability based on ratification.
The motion is granted.
A full-text copy of the District Court's December 4, 2017 Order
is available at https://tinyurl.com/y9nmeqnz from Leagle.com.
Sidney Naiman, individually and on behalf of all others similarly
situated, Plaintiff, represented by Jon Bernhard Fougner --
Jon@FougnerLaw.com
Sidney Naiman, individually and on behalf of all others similarly
situated, Plaintiff, represented by Anthony I. Paronich --
anthony@broderick-law.com -- Broderick & Paronich, P.C., pro hac
vice, Edward A. Broderick -- ted@broderick-law.com -- Broderick
and Paronich, P.C. & Matthew P. McCue -- mccue@massattorneys.net
-- The Law Office of Matthew P. McCue.
Tranzvia LLC, Defendant, represented by Ryan Kent McComber --
ryan.mccomber@figdav.com -- Figari and Davenport LLP, Timothy A.
Daniels -- tim.daniels@figdav.com -- Figari Davenport, LLP &
Amber Dawn Reece -- amber.reece@figdav.com -- Figari Davenport,
LLP.
UBER TECHNOLOGIES: "Dulberg" Suit Seeks to Certify Class
---------------------------------------------------------
In the lawsuit styled MARTIN DULBERG, individually, and on behalf
of all others similarly-situated, the Plaintiff, v. UBER
TECHNOLOGIES, INC., and RASIER, LLC, the Defendants, Case No.
3:17-cv-00850-WHA (N.D. Cal.), the Plaintiff will move the Court
on February 8, 2018, for an order granting his motion for class
certification and appointment of Napoli Shkolnik PLLC as class
counsel.
This case involves the interpretation of the December 11, 2015
Technology Services Agreement (the "TSA"), a form contract of
adhesion that Uber1 drafted. All class members are bound to the
TSA and the only substantive issue in this case is whether Uber
breached the TSA when, after implementing upfront pricing, it
paid drivers based on a different fare than the one it collected
from passengers. Because this case involves the alleged breach of
a form agreement, it is tailor-made for class certification.
Notably, courts in this district have held time and time again
that claims arising from the interpretation of a form contract
present the ideal case for class treatment and they routinely
certify such cases.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=QjhZRCEw
Counsel for Martin Dulberg:
Paul B. Maslo, Esq.
Andrew J. Dressel, Esq.
NAPOLI SHKOLNIK PLLC
360 Lexington Avenue, 11th Floor
New York, NY 10017
Telephone: (212) 397 1000
Facsimile: (646) 843 7603
E-mail: pmaslo@napolilaw.com
adressel@napolilaw.com
UBER TECHNOLOGIES: Chicago Hires Law Firm to Sue Over Data Breach
-----------------------------------------------------------------
Jimmy Koo, writing for Bloomberg News, reports that Chicago has
retained a plaintiffs' litigation firm that focuses on technology
and privacy cases to file a class consumer fraud lawsuit against
Uber Technologies Inc. over a recently disclosed breach that
exposed the data of potentially hundreds of thousands of Illinois
residents.
That move was closely followed by an announcement that Washington
state has filed its own lawsuit against the ride-hailing company.
Uber should be accountable for the new breach because it failed
to live up to promises it made in a 2014 data breach settlement
with the city to correct information system vulnerabilities,
according to the complaint filed Nov. 27 in Cook County Circuit
Court in Illinois ( Chicago v. Uber Techs., Inc. , Ill. Cir. Ct.,
No. 2017-CH-15594, complaint filed 11/27/17 ).
The city looks at issues on a case-by-case basis and sometimes
hires outside counsel, depending on the city's capacity to carry
out such litigation and the available expertise and resources of
outside law firms, a spokesman for Chicago told Bloomberg Law on
background Nov. 28. There isn't yet an estimate of the total
damages the city is seeking, the spokesman said.
Uber never made basic corrections to its data security platform
it had agreed to in the 2014 settlement, the complaint said. The
company experienced another data breach in October 2016, which
allegedly exposed the data of more than 57 million users and
drivers. The company's "substandard security practices"
compromised information included names, email addresses, and
phone numbers. Uber tried to conceal the 2016 data breach by
paying hackers $100,000 to delete the compromised data, according
to the complaint.
Outside Counsel
Chicago Mayor Rahm Emanuel (D) and State's Attorney Kimberly M.
Foxx (D) announced in a Nov. 27 statement that Chicago-based
plaintiffs' litigation firm Edelson PC will represent Chicago and
Cook County, Ill., where the city is located.
The Edelson firm will recover fees as an undisclosed percentage
of any damages recovered in the lawsuit, according to the
statement.
Edelson has represented clients in lawsuits against the city and
the county, according to Bloomberg data.
Jay Edelson, founder and CEO of Edelson PC, declined Bloomberg
Law's request for comment.
Widening Fallout
Fallout from revelations about the 2016 data breach has been
extensive. Uber is facing a similar lawsuit by San Francisco, as
well as direct class claims from consumers and state attorneys
general.
Washington Attorney General Bob Ferguson, Esq. (D) filed a state
court complaint Nov. 28 on behalf of state residents that may
have been affected by the breach (Washington v. Uber Techs., Inc.
, Wash. Super. Ct., Case number unavailable, complaint filed
11/28/17 ).
The complaint alleges that Uber violated the Washington data
breach notification statute by not timely notifying the attorney
general or consumers whose data were breached. A 2015 amendment
to the state law requires that companies notify consumers within
45 days of discovery of a breach and notify the Attorney
General's Office within 45 days if a breach affects 500 or more
state residents.
U.S. and overseas regulators have opened investigations into the
breach and alleged cover-up.
Uber didn't immediately respond to Bloomberg Law's email request
for comment. [GN]
UBER TECHNOLOGIES: Sued in Alberta Over Concealed Cyberattack
-------------------------------------------------------------
Bradly Shankar, writing for Mobile Syrup, reports that a law firm
has launched a class-action lawsuit against Uber on behalf of
Albertans whose personal information was compromised in the
company's recently revealed widespread data breach.
The ride-hailing company admitted to covering up a 2016
cyberattack that affected 57 million customers. Personal
information from 50 million Uber riders was accessed, which
included names, email addresses and phone numbers. Meanwhile,
seven million Uber drivers also had their information accessed,
including approximately 600,000 U.S. driver's license numbers.
Instead of disclosing the breach, Uber's since-terminated chief
security officer Joe Sullivan agreed to pay the hackers who stole
the data $100,000 to destroy it.
According to a statement of claim filed in Calgary by Branch
MacMaster LLP, Uber's handling of the breach was "willful,
reckless, wanton, negligent, callous and in total disregard for
the security and rights of the plaintiff and class members."
The lawsuit currently names an Alberta woman who was affected by
the data breach as the plaintiff, although she seeks to have the
class action certified to include a broader number of people.
Luciana Brasil, a partner with Branch MacMaster LLP, told CBC
News that should the court certify the case, the rule is that
others deemed to be affected by the breach will "automatically
participate unless they take steps to exclude themselves."
On top of a range of general damages, the lawsuit also seeks
special damages for costs related to credit counselling,
compensation for the plaintiffs' lost time and income and costs
for credit monitoring and other methods of identity theft
protection.
The lawsuit alleges Uber failed to do its duty to inform both
customers and regulators in Alberta of the cyberattack.
"At no time did Uber notify the Office of the Privacy
Commissioner, the plaintiff, class members or other affected
individuals," reads the statement of claim. "Had it not been for
recent media exposure of the Uber hack, class members would to
this day remain unaware that their personal information had been
compromised."
None of the allegations in the statement of claim have yet to be
proven in court.
Uber has not publicly identified the attackers. However, the
current CEO, Dara Khosrowshahi, who replaced Travis Kalanick back
in September, said in a statement that "none of this should have
happened, and I will not make excuses for it." He also said that
Uber is "changing the way we do business." [GN]
UNION PACIFIC: Antitrust Suit Denied Class Certification
--------------------------------------------------------
Union Pacific Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission for the quarterly period
ended September 30, 2017, that the parties in a lawsuit received
on October 10, 2017, a U.S. court ruling denying class
certification.
According to Union Pacific, "20 rail shippers (many of whom are
represented by the same law firms) filed virtually identical
antitrust lawsuits in various federal district courts against us
and four other Class I railroads in the U.S. Currently, UPRR and
three other Class I railroads are the named defendants in the
lawsuit. The original plaintiff filed the first of these claims
in the U.S. District Court in New Jersey on May 14, 2007. The
number of complaints reached a total of 30. These suits allege
that the named railroads engaged in price fixing by establishing
common fuel surcharges for certain rail traffic."
"In addition to suits filed by direct purchasers of rail
transportation services, a few of the suits involved plaintiffs
alleging that they are or were indirect purchasers of rail
transportation and sought to represent a purported class of
indirect purchasers of rail transportation services that paid
fuel surcharges. These complaints added allegations under state
antitrust and consumer protection laws. On November 6, 2007, the
Judicial Panel on Multidistrict Litigation ordered that all of
the rail fuel surcharge cases be transferred to Judge Paul
Friedman of the U.S. District Court in the District of Columbia
for coordinated or consolidated pretrial proceedings. Following
numerous hearings and rulings, Judge Friedman dismissed the
complaints of the indirect purchasers, which the indirect
purchasers appealed. On April 16, 2010, the U.S. Court of Appeals
for the District of Columbia affirmed Judge Friedman's ruling
dismissing the indirect purchasers' claims based on various state
laws.
"On June 21, 2012, Judge Friedman issued a decision that
certified a class of plaintiffs with eight named plaintiff
representatives. The decision included in the class all shippers
that paid a rate-based fuel surcharge to any one of the defendant
railroads for rate-unregulated rail transportation from July 1,
2003, through December 31, 2008. On July 5, 2012, the defendant
railroads filed a petition with the U.S. Court of Appeals for the
District of Columbia requesting that the court review the class
certification ruling. On August 9, 2013, the Circuit Court
vacated the class certification decision and remanded the case to
the district court to reconsider the class certification decision
in light of a recent Supreme Court case and incomplete
consideration of errors in the expert report of the plaintiffs.
On October 31, 2013, Judge Friedman approved a schedule agreed to
by all parties for consideration of the class certification issue
on remand. After reviewing an intervening case, supplemental
expert materials and related briefing from the parties, Judge
Friedman scheduled and completed a new class certification
hearing during the week of September 26, 2016. On October 10,
2017, the parties received a ruling from Judge Friedman denying
class certification.
Union Pacific Corporation (UPC) operates through its principal
operating subsidiary, Union Pacific Railroad Company. Union
Pacific Railroad (UPRR) links 23 states in the western two-thirds
of the country by rail. UPRR's business mix includes Agricultural
Products, Automotive, Chemicals, Coal, Industrial Products and
Intermodal. The company is based in Omaha, Nebraska.
UNITED STATES: "Mosquera" Suit Seeks Class Certification
--------------------------------------------------------
In the lawsuit styled OMAR ANCHICO MOSQUERA, ET AL., the
Plaintiffs, v. UNITED STATES OF AMERIC, ET AL. the Defendants,
Case No. 1:17-cv-02160-UNA (D.C.), the Plaintiffs ask the Court
to grant their request for class certification of civil action.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Ob38E4RY
The Plaintiffs are represented by:
FCC Coleman-Medium
P.O. Box 1032
Coleman, FL 33521-1032
UNITED STATES: Ibrahim, et al. Seek to Certify Class
----------------------------------------------------
In the lawsuit styled FARAH IBRAHIM, et al., Petitioners and
Plaintiffs, v. U.S. ATTORNEY GENERAL, et al., the Respondents and
Defendants, Case No. 1:17-cv-24574-DPG (S.D. Fla.), the
Petitioners ask the Court to enter an order:
1. certifying a class of:
"all persons with final orders of removal and currently
facing removal to Somalia who are located within the
jurisdiction of the Miami ICE Field Office, including all
persons whom ICE sought to deport to Somalia on the
December 7, 2017 contract flight;
2. appointing Petitioners, Farah Ibrahim, Ibrahim Musa, Khalid
Abdallah Mohmed, Ismail Jimcale, Abdiwali Ahmed Siyad,
Ismael Abdirashed Mohamed, and Khadar Abdi Mohamed, as
representative plaintiffs for the Proposed Class and
Subclass; and
3. appointing Plaintiffs' counsel as class and subclass
counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=BUNIWj4d
The Plaintiffs are represented by:
Rebecca Sharpless, Esq.
IMMIGRATION CLINIC
UNIVERSITY OF MIAMI SCHOOL OF LAW
1311 Miller Drive Suite E-273
Coral Gables, FL 33146
Telephone: (305) 284 3576
E-mail: rsharpless@law.miami.edu
- and -
Lisa Lehner, Esq.
Andrea Crumrine, Esq.
AMERICANS FOR IMMIGRANT JUSTICE
3000 Biscayne Blvd., Suite 400
Miami, FL 33137
Telephone: (305) 573 1106
E-mail: llehner@aijustice.org
acrumrine@aijustice.org
- and -
Benjamin Casper Sanchez, Esq.
JAMES H. BINGER CENTER FOR NEW
AMERICANS UNIVERSITY OF MINNESOTA LAW SCHOOL
190 Mondale Hall
229 19th Avenue South
Minneapolis, MN 55455
Telephone: (612) 625 6484
E-mail: caspe010@umn.edu
- and -
Andrea Montavon-McKillip, Esq.
LEGAL AID SERVICE OF
BROWARD COUNTY, INC.
491 N. State Rd. 7
Telephone: (954) 736 2493
Facsimile: (954) 736 2484
Plantation, FL 33317
E-mail: amontavon@legalaid.org
VANGUARD HEALTH: Revised Class Certification Bid Unsealed
---------------------------------------------------------
In the lawsuit styled MARISSA MADERAZO, et al., the Plaintiffs,
v. VANGUARD HEALTH SYSTEMS a/k/a BAPTIST HEALTH SYSTEMS; VHS
ACQUISITION SUBSIDIARY NUMBER 5, INC.; HCA, INC., a/k/a METHODIST
HEALTHCARE SYSTEM OF SAN ANTONIO, LTD. L.L.P; CHRISTUS SANTA ROSA
HEALTH CARE CORP., the Defendants, Case No. 5:06-cv-00535-OLG
(W.D. Tex.), the Hon. Judge Orlando L. Garcia entered an order on
December 19, 2017:
1. directing Clerk of the Court to unseal Plaintiffs' Amended
Motion for Class Certification and all documents filed in
Support;
2. granting Plaintiffs' Motion to Unseal Documents filed in
support of their Amended Motion for Class Certification;
3. denying following motions to seal because there has been no
particularized showing as to why the referenced documents
remain Confidential or Highly Confidential and should be
sealed and protected from public disclosure:
a. Defendants' Motion for Leave to File Sealed Documents;
b. Defendants' Motion for Leave to File Under Seal
Defendants' Corrected Opposition to Plaintiffs' Amended
Motion for Class Certification;
c. Plaintiffs' Motion for Leave to File Sealed Document;
and
d. Plaintiffs' [Corrected] Motion to Seal their Reply in
Support of Amended Motion for Class Certification;
4. directing Clerk of the Court to file, but not seal,
Defendants' Corrected Opposition to Plaintiffs' Amended
Motion for Class Certification;
5. directing Clerk of the Court to file, but not seal,
Plaintiffs' Opposition to Defendants' Motion to Exclude the
Expert Testimony of Henry S. Farber;
6. directing Clerk of the Court to file, but not seal,
Plaintiffs' Reply in Support of Amended Motion for Class
Certification;
7. denying these motions as moot:
a. Defendant' Motion for Leave to File Sealed Opposition to
Class Certification is denied as moot because a
corrected opposition was subsequently submitted or
filing;
b. Defendant' Motion for Leave to File an Over-Length
Motion to Exclude the Expert Testimony of Henry S.
Farber is denied as moot because the Amended Unopposed
Motion for Leave to File an Over-Length Motion to
Exclude the Expert Testimony of Henry S. Farber was
subsequently granted;
c. Plaintiffs' Motion to Seal their Reply in Support of
Amended Motion for Class Certification is denied as moot
because Plaintiffs subsequently filed their [Corrected]
Motion to Seal their Reply in Support of Amended Motion
for Class Certification; and
8. directing Clerk of the Court to terminate Plaintiffs'
[Redacted] Motion to Certify Class [Public Version] because
the motion is a duplicate of the previously filed motion,
which will be unsealed.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=e9HUVolv
VANTIV INC: Settlement of Class Suit vs. Mercury Okayed
-------------------------------------------------------
Vantiv, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that a final approval hearing took place on
August 29 and a settlement agreement was approved.
On April 17, 2017, the Company entered into a preliminary
settlement agreement (the "Agreement") to settle class action
litigation filed by plaintiffs in the United States District
Court for the Northern District of Georgia (the "Court") under
the caption Champs Sports Bar & Grill Co.et al. v. Mercury
Payment Systems, LLC et al. regarding certain legacy business
practices of the defendants, Mercury Payment Systems, LLC
("Mercury") and Global Payments Direct, Inc., dating back to
2009. The Company acquired Mercury on June 13, 2014.
The Company has agreed to settle the lawsuit after engaging in a
successful mediation session occurring on February 16, 2017, at
which the parties first identified the potential for resolution,
and subsequent negotiations between the parties. The parties
agreed to such mediation session after a previous mediation
session held in December 2016 ended without a potential path
toward resolution.
Under the terms of the Agreement, in exchange for a release from
all claims relating to such legacy business practices from the
beginning of the applicable settlement class period through the
date of preliminary approval of the settlement, the Company
anticipates paying $38 million based on the estimated number of
participants who opt-in to the settlement.
While the agreement contains no admission of wrongdoing and the
Company believes it has meritorious defenses to the claims, the
Company agreed to the structure of the settlement, in order to
save costs and avoid the risks of on-going litigation.
In connection with the settlement, the Company recorded a charge
of $38 million in the first quarter of 2017. The Company will pay
the settlement amount from available resources.
On May 16, 2017, the Court determined the proposed Agreement
satisfied the criteria for preliminary approval and issued a
preliminary approval order. Pursuant to the terms of the
Agreement, the preliminary approval order required that the
Company fund an escrow account to pay all future class action
claims, legal fees and administrative fees. The Company funded
such account on July 5, 2017. On August 29, 2017, a final
approval hearing took place and the Agreement was approved.
Vantiv, Inc., through its subsidiary, Vantiv Holding, LLC,
provides electronic payment processing services to merchants and
financial institutions in the United States. It operates in two
segments, Merchant Services and Financial Institution Services.
The Company markets its services through various distribution
channels, including national, regional, and mid-market sales
teams, as well as through third-party reseller clients and
telesales operation. Vantiv, Inc. was incorporated in 2009 and is
headquartered in Cincinnati, Ohio.
VIRTUS INVESTMENT: Court Denies 4th Bid to Amend Securities Suit
----------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order denying Plaintiff's Motion to
Amend Complaint for the fourth time its complaint in the case
captioned MARK YOUNGERS, individually and on behalf of all others
similarly situated, Plaintiffs, v. VIRTUS INVESTMENT PARTNERS
INC., et al. Defendants, No. 15cv8262 (S.D.N.Y.), based on the
purported discovery of new facts.
After litigating this putative securities fraud class action for
nearly two and a half years, Plaintiffs now seek to file a fourth
iteration of their complaint styled as the Third Amended
Complaint. Although their request comes on the heels of the
Court's decision denying class certification, Plaintiffs contend
that new facts obtained during discovery warrant amendment.
Defendants made another document production containing a
communication dated October 2013 where F-Squared Investment,
Inc., et al.'s counsel notified Virtus of the U.S. Securities and
Exchange Commission's investigation into F-Squared concerning the
use of an inaccurate AlphaSector indices track record. The
communication further reflects that F-Squared would remove that
information from its marketing materials. Plaintiffs contend
that F-Squared's communication coincided with Virtus's
publication of a new prospectus which also removed that track
record a fact that further supports their contention that Aylward
and VIP knew, if not as early as July 2013, then at the latest
October 2013, that the AlphaSector indices track record was
inaccurate.
Plaintiffs moved for class certification. The Court denied
Plaintiffs' motion for class certification largely on the basis
that Plaintiffs failed to satisfy Rule 23's predominance
requirement. Because the Second Amended Complaint was primarily
built around misrepresentations, and omissions, if any, only
served to exacerbate and bolster those misrepresentation claims,
this Court held that Plaintiffs were not entitled to a
presumption of reliance under Affiliated Ute Citizens of Utah v.
United States, 406 U.S. 128 (1972).
Plaintiffs cite to two categories of evidence that they lacked at
the time the Second Amended Complaint was filed: (1) George R.
Aylward and Francis G. Waltman's SEC deposition testimony; and
(2) a copy of an October 2013 communication from F-Squared
notifying Defendants that it was under investigation by the SEC.
According to Plaintiffs, these documents contain new facts that
significantly alter their theory of liability.
The key question here then is whether, at the time of the Second
Amended Complaint, Plaintiffs had the information to assert a
duty to correct claim against the Defendants they now target in
their proposed amendment. Put another way, good cause to amend
would not exist if the Plaintiffs possessed information of a
similar nature found in the SEC deposition transcripts or F-
Squared's October 2013 communication yet failed to assert a duty
to correct claim against Aylward and VIP in their Second Amended
Complaint.
That facts on which the Plaintiffs seek to amend their complaint
were discovered in SEC deposition transcripts documents so
fundamentally and obviously germane to both the subject matter
and claims in this securities fraud action begs the question as
to why Plaintiffs never requested these transcripts.
While Plaintiffs claim that these documents were not included in
Defendants' initial production of documents that Defendants were
ordered to produce by September 12, 2016, pursuant to the August
2016 Scheduling Order, the particular paragraph in question
simply directs the Defendants to produce substantially all
documents previously produced in government investigations. It
encompasses documents produced to the SEC, but does not so
clearly extend to documents generated in connection with SEC
proceedings.
Moreover, in December 2016 nearly four months after discovery
began, Newfound Research produced SEC deposition transcripts of
Corey Hoffstein and Tom Rosedale. Receiving some SEC deposition
transcripts raises the question why Plaintiffs did not request
all relevant SEC deposition transcripts of the key players in
this action. Indeed, while the In re Virtus plaintiffs sought
transcripts of SEC interviews and depositions, it appears the
Youngers Plaintiffs here were simply beneficiaries of that
request as Defendants voluntarily produced a raft of transcripts
in January 2017 to both groups of plaintiffs. In this context, it
appears that Plaintiffs could have been more diligent about what
they sought in discovery, especially where civil fraud actions
such as this one offer the opportunity to piggyback on the
investigation of a government regulator.
Nevertheless, though the Plaintiffs could have acted sooner to
obtain these critical documents, they could not have done so
prior to either the January 4, 2016 deadline set forth in the
November 2015 Scheduling Order or at any period referenced in the
August 2016 Scheduling Order. While it is true that the Second
Amended Complaint alleges the back-tested results of the
AlphaSector indices were miscalculated, there is no specific
indication that either Aylward or VIP discovered those errors as
early as July 2013. The Second Amended Complaint alleges, in
relevant part, that the Defendants concealed the fact that the
back-test was performed incorrectly and contained a performance
error, leading to grossly inflated results, and that Virtus
Opportunities Trust, the issuer of the misstated registration
statements, did not retract or correct the prior
misrepresentations based on the calculation errors.
But all of these allegations pertain to the Defendants generally
and make no distinction as to who knew, or should have known,
about these calculation errors. Nor do the allegations provide an
indication as to when any individual Defendant learned about the
miscalculated track records. Those distinctions are critical,
particularly with regard to scienter, in view of the heightened
pleading standards against which a Section 10(b) claim is
assessed Had Plaintiffs asserted their proposed claims against
Aylward and VIP based on the allegations in the Second Amended
Complaint, Defendants likely would have exploited this pleading
deficiency in their motion to dismiss.
A full-text copy of the District Court's December 4, 2017 Opinion
and Order is available at https://tinyurl.com/ybmm8p5a from
Leagle.com.
Mark Youngers, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Laurence Matthew Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm P.A.
Mark Youngers, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Erica Lauren Stone --
estone@rosenlegal.com -- The Rosen Law Firm, P.A., Gonen Haklay -
- ghaklay@rosenlegal.com -- The Rosen Law Firm, P.A., Jonathan
Stern -- jstern@rosenlegal.com -- The Rosen Law Firm, P.A. &
Laurence Matthew Rosen, The Rosen Law Firm P.A.
Alfred Tolli, Plaintiff, represented by Erica Lauren Stone, The
Rosen Law Firm, P.A., Gonen Haklay, The Rosen Law Firm, P.A.,
Jonathan Stern, The Rosen Law Firm, P.A. & Laurence Matthew
Rosen, The Rosen Law Firm P.A.
Brendan Hoffman, Plaintiff, represented by Erica Lauren Stone,
The Rosen Law Firm, P.A., Gonen Haklay, The Rosen Law Firm, P.A.,
Jonathan Stern, The Rosen Law Firm, P.A. & Laurence Matthew
Rosen, The Rosen Law Firm P.A.
Joseph D. Mitchell, Plaintiff, represented by Erica Lauren Stone,
The Rosen Law Firm, P.A., Gonen Haklay, The Rosen Law Firm, P.A.,
Jonathan Stern, The Rosen Law Firm, P.A. & Laurence Matthew
Rosen, The Rosen Law Firm P.A.
Kimball Lloyd, Plaintiff, represented by Erica Lauren Stone, The
Rosen Law Firm, P.A., Gonen Haklay, The Rosen Law Firm, P.A.,
Jonathan Stern, The Rosen Law Firm, P.A. & Laurence Matthew
Rosen, The Rosen Law Firm P.A.
Frances Briggs, Plaintiff, represented by Erica Lauren Stone, The
Rosen Law Firm, P.A., Gonen Haklay, The Rosen Law Firm, P.A.,
Jonathan Stern, The Rosen Law Firm, P.A. & Laurence Matthew
Rosen, The Rosen Law Firm P.A.
William Echols, Plaintiff, represented by Erica Lauren Stone, The
Rosen Law Firm, P.A. &Jonathan Stern, The Rosen Law Firm, P.A.
Louise Quigley, Plaintiff, represented by Erica Lauren Stone, The
Rosen Law Firm, P.A. &Jonathan Stern, The Rosen Law Firm, P.A.
Virtus Group, Movant, represented by Laurence Matthew Rosen, The
Rosen Law Firm P.A.
Virtus Investment Partners Inc., Defendant, represented by George
S. Wang -- gwang@stblaw.com -- Simpson Thacher & Bartlett LLP,
Joseph Michael McLaughlin -- jmclaughlin@stblaw.com -- Simpson
Thacher & Bartlett LLP, Michael David Kibler --
mkibler@stblaw.com -- Simpson Thacher & Bartlett LLP, Daniel
Joseph Stujenske -- dstujenske@stblaw.com -- Simpson Thacher &
Bartlett LLP, Meredith Dawn Karp -- meredith.karp@stblaw.com --
Simpson Thacher & Bartlett LLP & Shannon Kyle McGovern --
smcgovern@stblaw.com -- Simpson Thacher & Bartlett LLP.
Virtus Investment Advisers, Inc., Defendant, represented by
Joseph Michael McLaughlin, Simpson Thacher & Bartlett LLP,
Michael David Kibler, Simpson Thacher & Bartlett LLP, Daniel
Joseph Stujenske, Simpson Thacher & Bartlett LLP & Shannon Kyle
McGovern, Simpson Thacher & Bartlett LLP.
Virtus Opportunities Trust, Defendant, represented by Joseph
Michael McLaughlin, Simpson Thacher & Bartlett LLP, Michael David
Kibler, Simpson Thacher & Bartlett LLP, Daniel Joseph Stujenske,
Simpson Thacher & Bartlett LLP & Shannon Kyle McGovern, Simpson
Thacher & Bartlett LLP.
F-Squared Investments, Inc., Defendant, represented by Aric Hugo
Wu -- awu@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP.
F-Squared Alternative Advisors, LLC, Defendant, represented by
Aric Hugo Wu, Gibson, Dunn & Crutcher, LLP.
F-Squared Institutional Advisors, LLC, Defendant, represented by
Aric Hugo Wu, Gibson, Dunn & Crutcher, LLP.
F-Squared Investment Management, LLC, Defendant, represented by
Aric Hugo Wu, Gibson, Dunn & Crutcher, LLP.
Euclid Advisors, LLC, Defendant, represented by Joseph Michael
McLaughlin, Simpson Thacher & Bartlett LLP, Michael David Kibler,
Simpson Thacher & Bartlett LLP, Daniel Joseph Stujenske, Simpson
Thacher & Bartlett LLP & Shannon Kyle McGovern, Simpson Thacher &
Bartlett LLP.
George R. Aylward, Defendant, represented by George S. Wang,
Simpson Thacher & Bartlett LLP, Joseph Michael McLaughlin,
Simpson Thacher & Bartlett LLP, Michael David Kibler, Simpson
Thacher & Bartlett LLP, Daniel Joseph Stujenske, Simpson Thacher
& Bartlett LLP, Meredith Dawn Karp, Simpson Thacher & Bartlett
LLP & Shannon Kyle McGovern, Simpson Thacher & Bartlett LLP.
W. Patrick Bradley, Defendant, represented by Joseph Michael
McLaughlin, Simpson Thacher & Bartlett LLP, Michael David Kibler,
Simpson Thacher & Bartlett LLP, Daniel Joseph Stujenske, Simpson
Thacher & Bartlett LLP & Shannon Kyle McGovern, Simpson Thacher &
Bartlett LLP.
WATERSTONE MORTGAGE: Court Won't Vacate Arbitrator's Award
----------------------------------------------------------
The United States District Court for the Western District of
Wisconsin issued an Opinion and Order granting in part and
denying in part Defendant's Motion to Vacate Award or Modify
Award in the case captioned PAMELA HERRINGTON, individually and
on behalf of all other similarly situated persons, Plaintiffs, v.
WATERSTONE MORTGAGE CORPORATION, Defendant, No. 11-cv-779-bbc
(W.D. Wis.). Defendant's motion to stay is denied. Plaintiff's
motion for sanctions is denied.
Now before the court are several motions relating to the
arbitrator's final award. Plaintiff has moved for confirmation of
the award under 9 U.S.C. Section 9, while defendant has moved to
vacate or modify the award. Plaintiff has moved for sanctions
against defendant, arguing that defendant's objections to
confirmation of the award are frivolous. Finally, defendant has
moved to stay any action relating to the award until the United
States Supreme Court reaches a decision in the consolidated cases
of Ernst & Young, LLP v. Morris, 137 S.Ct. 809 (2017).
Plaintiff Pamela Herrington filed this proposed class action
under the Fair Labor Standards Act and state law, alleging that
defendant Waterstone Mortgage Corporation failed to pay its loan
officers for overtime work.
Plaintiff commenced arbitration and the arbitrator issued a final
decision, holding that defendant was liable under the Fair Labor
Standards Act for unpaid minimum wages and overtime and attorney
fees and costs, but not liable under Wisconsin statutory or
contract law. Arbitrator Pratt ordered that defendant owed
$7,267,919.00 in damages, $3,318,851.00 in attorney fees and
costs and an incentive fee in the sum of $20,000 to be paid to
named plaintiff Herrington.
The ultimate decision whether to allow this case to proceed on a
collective basis was made by the arbitrator, not this court. In
concluding that plaintiff should be permitted to proceed with
arbitration on a collective basis, the arbitrator noted that this
court had held that the class waiver provision was invalid under
the National Labor Relations Act and that he was bound by that
decision. However, the arbitrator also noted that the
arbitration clause in the employment agreement was ambiguous;
although it contained a waiver clause, it also stated that
arbitration should proceed in accordance with the rules of the
American Arbitration Association, which permits class
arbitration.
The arbitrator noted that defendant at the very least created an
ambiguity, which must be construed against [defendant,] the party
who drafted the Agreement. The arbitrator also noted plaintiff's
argument that the language of the so-called waiver clause should
actually be read as permitting class or collective arbitration,
rather than prohibiting it, though the arbitrator chose not to
resolve that dispute. In other words, the arbitrator's discussion
suggests that he believed there were independent bases for
permitting collective arbitration, aside from this court's
previous decision. Thus, it is far from clear that the Supreme
Court's decision in the Morris cases would cause the arbitrator
to change his decision to permit collective arbitration.
Regardless whether this case should have proceeded on a
collective basis, it would have been necessary to take up
defendant's claims of arbitrator bias and misconduct as they
relate to plaintiff's individual claim. Additionally, it is
possible that the arbitrator's merits decisions would apply in
subsequent individual arbitrations under the doctrine of issue
preclusion. In short, the Supreme Court's decision will not
clearly simplify the issues in this case.
Under these circumstances, the Court declined to grant
defendant's request for a discretionary stay of this case.
Defendant argues that Arbitrator Pratt demonstrated bias in favor
of plaintiff when he sent a survey to potential class members as
part of his decision whether to certify a class. Defendant points
out that when the survey was submitted, discovery on class
certification was closed and the arbitrator had stated that
plaintiff's evidence supporting class certification was lacking.
Additionally, defendant argues that the phrasing of the survey
was biased in favor of plaintiff.
The Court disagrees that the survey demonstrates bias against
defendant. The questions are simply "yes" and "no" questions
regarding the experiences of putative class members. Further, the
arbitrator permitted the parties to argue and submit briefing
regarding the survey and issued a written decision explaining his
reasons for considering the results. The arbitrator later issued
a well-reasoned 16-page written decision on class certification,
explaining the survey results and his conclusion that the results
supported class certification. Finally, the arbitrator made it
clear in his decision that he understood the evidentiary
limitations of the survey results, noting that, of course, the
questionnaire results cannot be considered as proof that
Waterstone has actually violated the FLSA.
Defendant's argument on the Arbitrator's alleged sleeping during
proceedings is not persuasive. There appears to be a factual
dispute regarding whether Arbitrator Pratt dozed during portions
of the multi-day hearing and if so, when he did so. As an initial
matter, the Court agree with plaintiff that if defendant believed
Arbitrator Pratt was dozing off, defendant should have asked for
a break during the hearing. To raise this issue now seems far too
late. But even setting that aside and assuming that the
arbitrator dozed off, defendant has pointed to nothing suggesting
that it was prejudiced by the alleged napping.
Therefore, the Court will not vacate the arbitration award based
on defendant's suggestion that Arbitrator Pratt may have been
sleeping during portions of testimony that may have been
important to his final decision.
Plaintiff has moved for sanctions against defendant, arguing that
defendant should be sanctioned because all of its arguments
against confirmation of the award were frivolous. The Court
considers this a close question, but will deny it. The Court
agrees with plaintiff that defendant appears to have delayed this
litigation far longer than necessary and continues to do so.
However, his arguments opposing confirmation of the award were
not wholly frivolous, although they were not persuasive.
Defendant identified the mathematical error in the final
arbitration award and pointed out the correct statute regarding
post-judgment interest.
Accordingly, the Court declines to issue sanctions against
defendant for seeking to vacate the award.
Plaintiff Pamela Herrington's motion to enforce judgment of the
arbitration award and defendant Waterstone Mortgage Corp.'s
motion to vacate arbitration award or, in the alternative, to
modify the award are granted in part and denied in part as
follows:
Arbitration award is confirmed, with a single modification
to the amount of attorney fees, costs and incentive fees as
follows: Defendant must pay plaintiff $3,298,851 in attorney fees
and costs, and a $20,000 incentive fee to plaintiff Herrington.
Defendant's motion to stay is denied. Plaintiff's motion for
sanctions is denied.
A full-text copy of the District Court's December 4, 2017 Opinion
and Order is available at https://tinyurl.com/y7qvsgqy from
Leagle.com.
Pamela Herrington, individually and behalf of all others
similarly situated, Plaintiff, represented by Dan Getman, Getman
& Sweeney, PLLC, 9 Paradies Lane New Paltz, NY 12561-4017
Pamela Herrington, individually and behalf of all others
similarly situated, Plaintiff, represented by Matthew Dunn,
Getman & Sweeney, PLLC, 9 Paradies Lane, New Paltz, NY 12561-4017
Waterstone Mortgage Corporation, Defendant, represented by Jesse
Ferrantella -- jesse.ferrantella@ogletree.com -- Ogletree
Deakins, Timothy Johnson -- tim.johnson@ogletree.com- Ogletree
Deakins & Spencer Skeen -- spencer.skeen@ogletree.com -- Ogletree
Deakins.
WELLS FARGO: New York Class Action Suit Ongoing
-----------------------------------------------
SG Commercial Mortgage Securities Trust 2016-C5 said in its Form
10-D Report filed with the Securities and Exchange Commission for
the monthly distribution period from July 13, 2017 to August 11,
2017, that Wells Fargo Bank, N.A. continues to face a class
action complaint in New York.
On June 18, 2014, a group of institutional investors filed a
civil complaint in the Supreme Court of the State of New York,
New York County, against Wells Fargo Bank, N.A., ("Wells Fargo
Bank") in its capacity as trustee under 276 residential mortgage
backed securities ("RMBS") trusts, which was later amended on
July 18, 2014, to increase the number of trusts to 284 RMBS
trusts. On November 24, 2014, the plaintiffs filed a motion to
voluntarily dismiss the state court action without prejudice.
That same day, a group of institutional investors filed a
putative class action complaint in the United States District
Court for the Southern District of New York (the "District
Court") against Wells Fargo Bank, alleging claims against the
bank in its capacity as trustee for 274 RMBS trusts (the "Federal
Court Complaint"). In December 2014, the plaintiffs' motion to
voluntarily dismiss their original state court action was
granted.
As with the prior state court action, the Federal Court Complaint
is one of six similar complaints filed contemporaneously against
RMBS trustees (Deutsche Bank, Citibank, HSBC, Bank of New York
Mellon and US Bank) by a group of institutional investor
plaintiffs.
The Federal Court Complaint against Wells Fargo Bank alleges that
the trustee caused losses to investors and asserts causes of
action based upon, among other things, the trustee's alleged
failure to: (i) notify and enforce repurchase obligations of
mortgage loan sellers for purported breaches of representations
and warranties, (ii) notify investors of alleged events of
default, and (iii) abide by appropriate standards of care
following alleged events of default. Relief sought includes money
damages in an unspecified amount, reimbursement of expenses, and
equitable relief. Other cases alleging similar causes of action
have been filed against Wells Fargo Bank and other trustees in
the District Court by RMBS investors in these and other
transactions, and these cases against Wells Fargo Bank are
proceeding before the same District Court judge. A similar
complaint was also filed May 27, 2016 in New York state court by
a different plaintiff investor. On January 19, 2016, an order was
entered in connection with the Federal Court Complaint in which
the District Court declined to exercise jurisdiction over 261
trusts at issue in the Federal Court Complaint; the District
Court also allowed plaintiffs to file amended complaints as to
the remaining, non-dismissed trusts, if they so chose, and three
amended complaints have been filed. On December 17, 2016, the
investor plaintiffs in the 261 trusts dismissed from the Federal
Court Complaint filed a new complaint in New York state court
(the "State Court Complaint").
On July 11, 2017, certain PIMCO investment funds filed a civil
complaint relating to Wells Fargo Bank's setting aside reserves
for legal fees and expenses in connection with the liquidation of
11 RMBS trusts at issue in the State Court Complaint. The
complaint seeks, among other relief, declarations that Wells
Fargo Bank is not entitled to (i) indemnification from, (ii)
advancement of funds from, or (iii) taking reserves from trust
funds for legal fees and expenses it incurs in defending the
claims in the State Court Complaint. With respect to the
foregoing litigations, Wells Fargo Bank believes plaintiffs'
claims are without merit and intends to contest the claims
vigorously, but there can be no assurances as to the outcome of
the litigations or the possible impact of the litigations on
Wells Fargo Bank or the RMBS trusts.
Wells Fargo Bank is the Master Servicer and Certificate
Administrator for SG Commercial Mortgage Securities Trust
2016-C5.
WENNER MEDIA: Court Certifies Settlement Class in "Sullivan" Suit
-----------------------------------------------------------------
In the lawsuit styled KYLE SULLIVAN and JEANNE SLOAN,
individually and on behalf of all others similarly situated, the
Plaintiffs, v. WENNER MEDIA LLC, a Delaware corporation, the
Defendant, Case No. 1:16-cv-00960-JTN-ESC (W.D. Mich.), the Hon.
Judge Janet T. Neff entered an order:
1. preliminary approving proposed Settlement;
2. certifying class certification for settlement purposes
only:
"all persons with Michigan street addresses who received a
subscription to Rolling Stone, Men's Journal, or Us Weekly
and were subscribers between January 1, 2010, and December
31, 2011. The Settlement Class includes Direct Subscriber
Subclass Members and Indirect Subscriber Subclass Members
as defined in Paragraphs 1.04 and 1.09 of the Agreement".
The Settlement Class does not include Defendant, any
affiliate, parent, or direct or indirect subsidiary, or any
entity that has a controlling interest therein, or their
current or former directors, officers, managers, employees,
partners, advisors, counsel, and their immediate families.
The Settlement Class also does not include any persons who
validly request exclusion from the Settlement Class.
3. appointing Kyle Sullivan and Jeanne Sloan as Representative
Plaintiffs for settlement purposes only;
4. appointing Gary F. Lynch of Carlson Lynch Sweet Kilpela and
Carpenter, LLP and Daniel O. Myers of The Law Office of
Daniel O. Myers as counsel for the Settlement Class.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=cbTebJXK
Attorney for Plaintiffs:
Gary F. Lynch, Esq.
CARLSON LYNCH SWEET KILPELA &
CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15232
Telephone: (412) 322 9243
E-mail: glynch@carlsonlynch.com
Attorney for Defendant:
Sharon L. Schneier, Esq.
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
New York, NY 10020
Telephone: (212) 489 8230
E-mail: sharonschneier@dwt.com
WEST VIRGINIA: "Burch" Suit Seeks Class Certification
-----------------------------------------------------
In the lawsuit styled DENNIS BURCH and THE CLASS OF SIMILARLY
SITUATED PERSONS, the Plaintiffs, v. BENITA MURPHY, CHAIRPERSON,
WEST VIRGINIA PAROLE BOARD, ET AL., the Defendants, Case No.
2:17-cv-03311 (S.D.W.Va.), the Plaintiff move the Court to review
a "Civil Rights Complaint" and two filed motions -- Motion for
Appointment of Counsel and Motion for Certification of Class.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=ruhTuO2k
The Plaintiff appears pro se.
WORK OUT WORLD: TCPA Class Action Over Single Call Lives On
-----------------------------------------------------------
Michael Booth, writing for New Jersey Law Journal, reports that
about five months after the U.S. Court of Appeals for the Third
Circuit revived the case by ruling that a single unwanted
promotional call was enough to allege a Telephone Consumer
Protection Act violation, a federal judge in New Jersey has
allowed it to proceed despite the defense's "apparent . . .
attempt to thwart class certification" by offering to settle for
the full amount of the plaintiff's claim.
U.S. District Judge Peter Sheridan, sitting in Trenton, refused
Nov. 28 to dismiss the lawsuit, filed by plaintiff Noreen
Sussino, against Work Out World Inc. (WOW), even though the gym
insisted it had resolved Sussino's claims by depositing $1,501
into her credit card account. The lawsuit alleged that WOW, in
leaving a single unsolicited voice mail on Sussino's phone,
violated the TCPA.
Sussino alleged that she rejected the settlement offer from WOW
and added that the money was instead deposited into her
employer's credit card account and that she has received no
funds. Sussino had been a member of the gym and the telephone
call was intended to attempt to persuade her to rejoin, according
to Sheridan's opinion.
WOW argued that the lawsuit should be dismissed as moot since it
tendered full relief, but Sheridan disagreed, citing a closely
watched U.S. Supreme Court case from last year.
"Here, it is apparent that WOW sought settlement with plaintiff
in an attempt to thwart class certification," Sheridan said in
his ruling.
"However, to deny class certification at this point would be to
deprive her of a 'fair opportunity to show that certification is
warranted,'" he added, quoting the U.S. Supreme Court's 2016
ruling in Campbell-Ewald v. Gomez.
The Campbell-Ewald decision barred settlement offers designed to
"pick off" lead plaintiffs in class actions but reserved any
opinion on whether the situation would be different if the
defendant actually paid the funds.
Sheridan noted that while the Third Circuit has yet to weigh in
on whether a tender of full relief by a defendant that is
rejected by a plaintiff moots classwide claims, the Seventh
Circuit has ruled that it does not.
Earlier this year, in Fulton Dental v. Bisco, the Seventh Circuit
ruled that a defendant's deposit of $3,600 into a court account
that compensated the lead plaintiff in full did not moot the
entire class action.
Similarly, Sheridan noted, the Ninth Circuit found last year in
Chen v. Allstate Insurance that Allstate Insurance Co.'s deposit
of $20,000 into an escrow fund for the lead plaintiff didn't moot
a class action.
Pick-off settlements have been the subject of much controversy
among litigators.
As Laura McNally, a partner in the Chicago office of Loeb & Loeb,
told The National Law Journal in June, challenges to such
settlement offers are percolating in several district courts. She
said she expected more circuits to weigh in, possibly sending the
issue back to the Supreme Court.
"This is going to continue to come up," she said. "Because if it
works, it could be such a powerful weapon for defendants."
In the Sussino case, Sheridan said WOW failed to show how its
settlement offer to Sussino constituted complete relief for the
entire putative class.
"Not only did Plaintiff reject this offer, but WOW's offer did
not provide any monetary relief to the putative class under 47
U.S.C. Sec. 227(b)(3)," Sheridan said. "As such, since WOW has
failed to offer complete relief on Plaintiff's class-wide claims,
judgment is not warranted."
The judge added that there also remains a factual dispute since
WOW insisted it deposited the money into the credit card account
Sussino originally used to join the gym and Sussino claimed that
account belonged to her employer.
This is the second time the case has been before Sheridan.
The judge initially had dismissed the lawsuit, saying that one
call alone was not sufficient to allege a violation of the act.
However, in July, a three-judge panel of the Third Circuit
reversed.
WOW had argued that the act prohibits a single call only if the
recipient is charged for that call, maintaining that the missed
call and minutelong voice mail didn't cost Susinno any money.
"If it were the case . . . that cellphone calls not charged to
the recipient were not covered by the general prohibition, there
would have been no need for Congress to grant the [Federal
Communications Commission] discretion to exempt some of those
calls," Third Circuit Judge Thomas Hardiman wrote in the court's
opinion. "We also think it significant that this section states
'calls to a [cellphone] . . . . not charged to the called party'
can implicate 'privacy rights' that Congress 'intended to
protect,' even if the phone's owner is not charged for the call."
The gym also claimed that the TCPA section in question pertains
to landlines, not cellphones.
However, Hardiman noted, "Although it is true that the TCPA
placed particular emphasis on intrusions upon the privacy of the
home in 1991, this expression of particular concern for
residential calls does not limit -- either expressly or by
implication -- the statute's application to cellphone calls.
Accordingly, the TCPA provides Sussino a cause of action for the
conduct she alleged."
Another portion of the Third Circuit's ruling dealt with whether
Sussino had standing to sue. Considering congressional intent,
the Third Circuit ruled she did.
"Congress squarely identified this injury. The TCPA addresses
itself directly to single prerecorded calls from cellphones, and
states that its prohibition acts 'in the interest of [ ] privacy
rights,'" Hardiman said. "The congressional findings in support
of the TCPA likewise refer to complaints that 'automated or
prerecorded telephone calls are a nuisance [and] . . . an
invasion of privacy.'"
WOW's attorney, Joshua Bauchner, Esq. -- jb@ansellgrimm.com --
said he was disappointed with Sheridan's latest ruling.
"We offered full relief," said Bauchner, of the Woodland Park
office of Ansell Grimm & Aaron. "We made every possible effort to
provide relief, and they refused to accept it."
Sussino's attorney, Timothy Sostrain, Esq. of Keogh Law in
Chicago, was away from his office and could not be reached for
comment. [GN]
WORLD WRESTLING: Laurinaitis and Windham Suit Still Ongoing
-----------------------------------------------------------
World Wrestling Entertainment, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that a Connecticut
court ordered on September 29, 2017, that within 35 days of the
date of the order the Laurinaitis plaintiffs and the Windham
defendants file amended pleadings that comply with the Federal
Rules of Civil Procedure and that each of the Laurinaitis
plaintiffs and the Windham defendants submit to the court for in
camera review affidavits signed and sworn under penalty of
perjury setting forth facts within each plaintiff's or
declaratory judgment-defendant's personal knowledge that form the
factual basis of their claim or defense.
On October 23, 2014, a lawsuit was filed in the U. S. District
Court for the District of Oregon, entitled William Albert Haynes
III, on behalf of himself and others similarly situated, v. World
Wrestling Entertainment, Inc. This complaint was amended on
January 30, 2015 and alleges that the Company ignored,
downplayed, and/or failed to disclose the risks associated with
traumatic brain injuries suffered by WWE's performers and seeks
class action status. On March 31, 2015, the Company filed a
motion to dismiss the first amended class action complaint in its
entirety or, if not dismissed, to transfer the lawsuit to the
U.S. District Court for the District of Connecticut. Without
addressing the merits of the Company's motion to dismiss, the
Court transferred the case to Connecticut on June 25, 2015. The
plaintiffs filed an objection to such transfer, which was denied
on July 27, 2015.
On January 16, 2015, a second lawsuit was filed in the U. S.
District Court for the Eastern District of Pennsylvania, entitled
Evan Singleton and Vito LoGrasso, individually and on behalf of
all others similarly situated, v. World Wrestling Entertainment,
Inc., alleging many of the same allegations as Haynes. On
February 27, 2015, the Company moved to transfer venue to the
U.S. District Court for the District of Connecticut due to forum-
selection clauses in the contracts between WWE and the plaintiffs
and that motion was granted on March 23, 2015. The plaintiffs
filed an amended complaint on May 22, 2015 and, following a
scheduling conference in which the court ordered the plaintiffs
to cure various pleading deficiencies, the plaintiffs filed a
second amended complaint on June 15, 2015. On June 29, 2015, WWE
moved to dismiss the second amended complaint in its entirety.
On April 9, 2015, a third lawsuit was filed in the U. S. District
Court for the Central District of California, entitled Russ
McCullough, a/k/a "Big Russ McCullough," Ryan Sakoda, and Matthew
R. Wiese a/k/a "Luther Reigns," individually and on behalf of all
others similarly situated, v. World Wrestling Entertainment,
Inc., asserting similar allegations to Haynes. The Company again
moved to transfer the lawsuit to Connecticut due to forum-
selection clauses in the contracts between WWE and the
plaintiffs, which the California court granted on July 10, 2015.
On September 21, 2015, the plaintiffs amended this complaint and,
on November 16, 2015, the Company moved to dismiss the amended
complaint.
Each of these suits seeks unspecified actual, compensatory and
punitive damages and injunctive relief, including ordering
medical monitoring. The Haynes and McCullough cases purport to be
class actions.
On February 18, 2015, a lawsuit was filed in Tennessee state
court and subsequently removed to the U.S. District Court for the
Western District of Tennessee, entitled Cassandra Frazier,
individually and as next of kin to her deceased husband, Nelson
Lee Frazier, Jr., and as personal representative of the Estate of
Nelson Lee Frazier, Jr. Deceased, v. World Wrestling
Entertainment, Inc. A similar suit was filed in the U. S.
District Court for the Northern District of Texas entitled
Michelle James, as mother and next friend of Matthew Osborne,
minor child, and Teagan Osborne, a minor child v. World Wrestling
Entertainment, Inc.
These lawsuits contain many of the same allegations as the other
lawsuits alleging traumatic brain injuries and further allege
that the injuries contributed to these former talents' deaths.
WWE moved to transfer the Frazier and Osborne lawsuits to the
U.S. District Court for the District of Connecticut based on
forum-selection clauses in the decedents' contracts with WWE,
which motions were granted by the respective courts. On November
23, 2015, amended complaints were filed in Frazier and Osborne,
which the Company moved to dismiss on December 16, 2015 and
December 21, 2015, respectively. On November 10, 2016, the Court
granted the Company's motions to dismiss the Frazier and Osborne
lawsuits in their entirety.
On June 29, 2015, the Company filed a declaratory judgment action
in the U. S. District Court for the District of Connecticut
entitled World Wrestling Entertainment, Inc. v. Robert Windham,
Thomas Billington, James Ware, Oreal Perras and various John and
Jane Does seeking a declaration against these former performers
that their threatened claims related to alleged traumatic brain
injuries and/or other tort claims are time-barred. On September
21, 2015, the defendants filed a motion to dismiss this
complaint, which the Company opposed. The Court previously
ordered a stay of discovery in all cases pending decisions on the
motions to dismiss. On January 15, 2016, the Court partially
lifted the stay and permitted discovery only on three issues in
the case involving Singleton and LoGrasso. Such discovery was
completed by June 1, 2016. On March 21, 2016, the Court issued a
memorandum of decision granting in part and denying in part the
Company's motions to dismiss the Haynes, Singleton/LoGrasso, and
McCullough lawsuits.
The Court granted the Company's motions to dismiss the Haynes and
McCullough lawsuits in their entirety and granted the Company's
motion to dismiss all claims in the Singleton/LoGrasso lawsuit
except for the claim of fraud by omission. On March 22, 2016, the
Court issued an order dismissing the Windham lawsuit based on the
Court's memorandum of decision on the motions to dismiss. On
April 4, 2016, the Company filed a motion for reconsideration
with respect to the Court's decision not to dismiss the fraud by
omission claim in the Singleton/LoGrasso lawsuit and, on April 5,
2016, the Company filed a motion for reconsideration with respect
to the Court dismissal of the Windham lawsuit. On July 21, 2016,
the Court denied the Company's motion in the Singleton/LoGrasso
lawsuit and granted in part the Company's motion in the Windham
lawsuit. On April 20, 2016, the plaintiffs filed notices of
appeal of the Haynes and McCullough lawsuits. On April 27, 2016,
the Company moved to dismiss the appeals for lack of appellate
jurisdiction, which motions were granted and the appeals were
dismissed with leave to appeal upon the resolution of all of the
consolidated cases. The Company has filed a motion for summary
judgment on the sole remaining claim in the Singleton/LoGrasso
lawsuit.
Lastly, on July 18, 2016, a lawsuit was filed in the U.S.
District Court for the District of Connecticut, entitled Joseph
M. Laurinaitis, et al. vs. World Wrestling Entertainment, Inc.
and Vincent K. McMahon, individually and as the trustee of
certain trusts. This lawsuit contains many of the same
allegations as the other lawsuits alleging traumatic brain
injuries and further alleges, among other things, that the
plaintiffs were misclassified as independent contractors rather
than employees denying them, among other things, rights and
benefits under the Occupational Safety and Health Act (OSHA), the
National Labor Relations Act (NLRA), the Family and Medical Leave
Act (FMLA), federal tax law, and various state Worker's
Compensation laws. This lawsuit also alleges that the booking
contracts and other agreements between the plaintiffs and the
Company are unconscionable and should be declared void, entitling
the plaintiffs to certain damages relating to the Company's use
of their intellectual property. The lawsuit alleges claims for
violation of RICO, unjust enrichment, and an accounting against
Mr. McMahon. The Company and Mr. McMahon moved to dismiss this
complaint on October 19, 2016. November 9, 2016, the Laurinaitis
plaintiffs filed an amended complaint. On December 23, 2016, the
Company and Mr. McMahon moved to dismiss the amended complaint.
On September 29, 2017, the Court issued an order on the motion to
dismiss pending in the Laurinaitis case and on the motion for
judgment on the pleadings pending in the Windham case. The Court
ordered that within thirty-five (35) days of the date of the
order the Laurinaitis plaintiffs and the Windham defendants file
amended pleadings that comply with the Federal Rules of Civil
Procedure. The court further ordered that each of the Laurinaitis
plaintiffs and the Windham defendants submit to the court for in
camera review affidavits signed and sworn under penalty of
perjury setting forth facts within each plaintiff's or
declaratory judgment-defendant's personal knowledge that form the
factual basis of their claim or defense.
World Wrestling Entertainment said "The Company believes all
claims and threatened claims against the Company in these various
lawsuits are being prompted by the same plaintiffs' lawyer and
are without merit. The Company intends to continue to defend
itself against these lawsuits vigorously."
World Wrestling Entertainment, Inc. is an integrated media and
entertainment company, principally engaged in the production and
distribution of content through various channels, including its
premium over-the-top WWE Network, television rights agreements,
pay-per-view event programming, live events, feature films,
licensing of various WWE themed products, and the sale of
consumer products featuring its brands. The company is based in
Stamford, Connecticut.
WORLD WRESTLING: Stipulation to Dismiss "Bagwell" Suit Okayed
-------------------------------------------------------------
The Hon. Janet C Hall of the U.S. District Court for the District
of Connecticut on Dec. 8, 2017, entered an order granting a
Stipulation of Dismissal filed by World Wrestling Entertainment
in the case, Bagwell v. World Wrestling Entertainment, Inc., Case
No. 3:16-cv-01350 (D. Conn.). The case was terminated effective
Dec. 8.
World Wrestling Entertainment, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission for the
quarterly period ended September 30, 2017, that on August 9,
2016, a lawsuit was filed in the U.S. District Court for the
District of Connecticut entitled Marcus Bagwell, individually and
on behalf of all others similarly situated v. World Wrestling
Entertainment, Inc. The lawsuit alleges claims for breach of
contract, breach of fiduciary duty, unjust enrichment and
violations of the Connecticut Unfair Trade Practices Act, C.G.S.
Section 42-110a, et seq., principally arising from WWE's alleged
failure to pay royalties for streaming video on WWE Network. On
September 7, 2016, a motion for leave to amend was filed along
with a proposed amended complaint that, among other things,
sought to add Scott Levy as an individual plaintiff and WCW, Inc.
as a defendant.
On November 4, 2016, the Court granted plaintiffs' motion for
leave to amend and plaintiffs filed their amended complaint on
November 7, 2016. On December 2, 2016, the Company moved to
dismiss the amended complaint. On May 5, 2017, the Court granted
in part and denied in part the Company's motion to dismiss. The
Court dismissed plaintiff's declaratory judgment, unjust
enrichment and successor liability claims, as well as all claims
asserted against WCW, Inc. The Court also granted plaintiffs
leave to file a second amended complaint, which plaintiffs filed
on May 19, 2017. Plaintiffs then sought leave to file a third
amended complaint to correct certain errors by plaintiffs'
counsel, which the Court granted and plaintiffs filed their third
amended complaint on June 15, 2017. The third amended complaint
continues to assert claims for breach of contract, breach of
fiduciary duty, and violations of the Connecticut Unfair Trade
Practices Act, C.G.S. Section 42-110a, et seq. against WWE.
World Wrestling Entertainment, Inc. is an integrated media and
entertainment company, principally engaged in the production and
distribution of content through various channels, including its
premium over-the-top WWE Network, television rights agreements,
pay-per-view event programming, live events, feature films,
licensing of various WWE themed products, and the sale of
consumer products featuring its brands. The company is based in
Stamford, Connecticut.
WW GRAINGER: "Davies" Suit Closed Following Settlement
------------------------------------------------------
W.W. Grainger, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission for the quarterly period ended
September 30, 2017, that the class action suit filed by David
Davies in the Circuit Court of Cook County, Illinois, has been
dismissed following individual settlement.
On April 5, 2013, David Davies filed a putative class action
lawsuit in the Circuit Court of Cook County, Illinois under the
Telephone Consumer Protection Act of 1991, as amended by the Junk
Fax Prevention Act of 2005, and sought certification of a class
of persons who may have received one or more faxes the Company
sent in connection with a 2009 marketing campaign. The Company
removed the suit to the Federal District Court for the Northern
District of Illinois (the "District Court").
On June 27, 2014, the District Court refused to certify the
class. The United States Court of Appeals for the Seventh Circuit
denied Davies' petition for immediate review of that ruling. The
Company has now entered into an individual settlement with Davies
resolving all of his claims on terms not material to the Company.
The case was dismissed with prejudice on September 28, 2017.
W.W. Grainger, Inc. distributes maintenance, repair, and
operating (MRO) supplies; and other related products and services
that are used by businesses and institutions in the United
States, Canada, Europe, Asia, and Latin America. It operates
through two segments, U.S. and Canada. W.W. Grainger, Inc. is
based in Lake Forest, Illinois.
ZOOMPASS HOLDINGS: New Jersey Class Action Suit Underway
--------------------------------------------------------
Zoompass Holdings, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission for the quarterly period
ended September 30, 2017, that the company is facing a class
action complaint in the U.S. District Court for the District of
New Jersey.
According to Zoompass, during the nine months ended September 30,
2017, the Company was served with a class action complaint had
been filed against the Company, its Chief Executive Officer and
its Chief Financial Officer in the United States District Court
for the District of New Jersey. The complaint alleges, inter
alia, that the defendants violated the federal securities laws
by, among other things, failing to disclose that the Company was
engaged in an unlawful scheme to promote its stock.
The Company has analyzed the complaint and has concluded that the
complaint is legally deficient and otherwise without merit. The
Company intends to vigorously defend against these claims.
Zoompass Holdings, Inc. develops a mobile money platform that
enables brands to transform their financial interactions with
customers. Its platform facilitates employee reward incentives,
compensation, customer rewards and promotions, and managed
services, as well as enables businesses to visualize their
financial transactions with customers, employers, and suppliers.
* Clubok, Deeley Join Latham & Watkins' Litigation Practice
-----------------------------------------------------------
Latham & Watkins LLP disclosed that Andrew Clubok, Esq. --
andrew.clubok@lw.com -- and Elizabeth Deeley, Esq. --
elizabeth.deeley@lw.com -- have joined the firm's Litigation &
Trial Department. Both Mr. Clubok, who will practice in
Washington, D.C. and New York, and Ms. Deeley, who will practice
in San Francisco, are leading lawyers in complex commercial
litigation matters with substantial trial experience. Their
clients have included key players in the financial services and
technology sectors, among others, and both regularly advise
clients on disputes in the US and overseas.
Mr. Clubok is a Global Co-chair of the firm's Securities
Litigation & Professional Liability Practice and is also a member
of the firm's Complex Commercial Litigation Practice. He has
diverse national and international experience in trial,
appellate, and administrative litigation in a wide range of
substantive areas including securities law, tax, environmental,
telecommunications, restructuring and commercial litigation. He
is a go-to trial lawyer for some of the world's biggest brands
and has tried cases and/or obtained dismissals on behalf of
financial institutions, automobile manufacturers,
telecommunication providers, internet companies, pharmaceutical
companies, and others in dozens of securities class actions,
shareholder derivative lawsuits, arbitrations, toxic tort
actions, commercial disputes, and tax controversies. He is
recognized as a leading lawyer for his work in Chambers USA and
The Legal 500 US and was selected as a Securities MVP in Law360's
"MVPs of the Year" 2012 list. In 2016, Super Lawyers recognized
Andy as a Top Rated Antitrust Litigation Attorney in Washington,
D.C.
Ms. Deeley's practice covers a broad range of business disputes,
including fraud, consumer protection and unfair business
practices, securities, antitrust, contract, trade secrets,
privacy and other business torts. She is a seasoned trial lawyer
with extensive experience defending companies in class actions
and high-stakes lawsuits. She has represented top companies,
officers and directors across a variety of industries, including
technology, social-media, banking, finance, insurance, food and
fitness. Ms. Deeley has tried cases before federal and state
judges and juries as well as arbitrators with significant wins
for defendants and plaintiffs.
Jamie Wine, Esq. -- jamie.wine@lw.com -- Global Chair of Latham's
Litigation & Trial Department, said: "Andy and Beth are fantastic
additions to the talented team of trial lawyers and litigators at
Latham & Watkins. They join battle-tested colleagues with vast
experience handling the most complex, tough and novel legal
challenges that face corporations and executives today. I'm
thrilled to welcome them both to the firm."
They are the latest in a string of top-notch lawyers who have
joined Latham's Litigation & Trial Department in the last year.
That list includes Eric Leon, Esq. -- eric.leon@lw.com --
Nicholas McQuaid, Esq. -- nicholas.mcquaid@lw.com -- and Joseph
Serino, Esq. -- joseph.serino@lw.com -- in New York; Steven
Croley, Esq. -- steven.croley@lw.com -- and Kevin Wheeler, Esq. -
- kevin.wheeler@lw.com -- in Washington, D.C.; Leslie R.
Caldwell, Esq. -- leslie.caldwell@lw.com -- and Michael Rubin,
Esq. -- michael.rubin@lw.com -- in San Francisco; Terra Reynolds,
Esq. -- terra.reynolds@lw.com -- in Chicago; Martin Davies, Esq.
-- martin.davies@lw.com -- and Ian Felstead, Esq. --
ian.felstead@lw.com -- in London; and Joshua Hamilton, Esq. --
joshua.hamilton@lw.com -- and Thomas Nolan, Esq. --
thomas.nolan@lw.com -- in Los Angeles.
Latham & Watkins operates as a limited liability partnership
worldwide with affiliated limited liability partnerships
conducting the practice in the United Kingdom, France and Italy
and affiliated partnerships conducting the practice in Hong Kong,
Japan and Singapore. Latham & Watkins operates in Seoul as a
Foreign Legal Consultant Office. Latham & Watkins practices in
Saudi Arabia in association with the Law Office of Salman M.
Al-Sudairi.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA.
Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A.
Adala, Joy A. Agravante, Julie Anne L. Toledo, Christopher G.
Patalinghug, and Peter A. Chapman, Editors.
Copyright 2017. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
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* * * End of Transmission * * *