text:
Wednesday, June 21, 2017, Vol. 19, No. 123
2ND TIME AROUND: Irate Consignors Mull Class Action
ADVANCED ANALYTICAL: Tillery Retains Judge to Pursue Claim
AHDS BAGEL: "Patricio" Action Claims Unpaid Overtime Pay
AIRBNB: Aimco Files Amended Class Action Complaint
AIRSERVICES AUSTRALIA: Faces Class Action Over Redundancy Program
ALLEN COUNTY, IN: Sheriff Sued for Denying Inmates Right to Vote
ALLSTATE: Seeks Dismissal of Bad-Faith Claims in Class Action
ALON USA: "Page" Action to Stop Shareholder Vote on Merger Deal
AT&T INC: Bid to Dismiss Complaint over NFL Sunday Ticket Pending
AT&T INC: Suit over Unlimited Data Plan Claims Underway
BETHANY HOME: "Penson" Labor Suit Seeks Overtime Pay
CANADA: Suspension Sought for Caledonia Case Lawyer's License
CANADA: Court to Decide on Remaining Huronia Settlement Funds
CANADA: WRPS Board Responds to Gender Discrimination Class Action
CHADBOURNE & PARKE: Stonewalling Discovery, Female Attorneys Say
CHESAPEAKE ENERGY: Still Defends Royalty Owners' Class Suits
CHESAPEAKE ENERGY: Antitrust Lawsuits Underway in Oklahoma
CHESAPEAKE ENERGY: Securities Class Action Pending in W.D. Okla.
CHESAPEAKE ENERGY: Still Defends Class Suits over Earthquakes
CHEVRON CORP: White Appeals Ruling in ESIP Plan Suit to 9th Cir.
CLEAR SPRINGS: Plaintiffs' Attorneys Seek $132,000 in Fees
COBALT INTERNATIONAL: Shareholder Affiliates Want Claims Tossed
CONTINENTAL CASUALTY: Need Not Defend Class Claims, Court Rules
COOK COUNTY, IL: Seventh Circuit Appeal Filed in "Lacy" Suit
CORDIS CORP: Can't Remove Cases to Federal Court CAFA, Court Says
CP FRANCHISING: "Quinn" Files Suit Over Illegal Termination
DELEK USA: "Phelps" Suit to Stop Shareholder Vote on Merger Deal
DELL INC: Faces Class Action Over Solicitation Calls
DENVER, CO: Killmer, Lane & Newman Joins Homeless Class Action
DISNEY: Judge Uses Lodestar Approach in No-Poach Class Action
DIVERSICARE HEALTHCARE: Class Suit in Arkansas in Early Stages
DYNAMEX OPERATIONS: Appeals Order in "Ouadani" Suit to 1st Cir.
EMCORE CORP: "Mirasol" Parties Preparing Formal Settlement
ENCAP INVESTMENTS: "Olenik" Sues Over Onerous Merger Deal
FACEBOOK INC: Ninth Circuit Appeal Filed in "Smith" Class Suit
GEICO GENERAL: Health Care Providers Class Certified in A&M Suit
GENERAL CABLE: ERISA Class Suit Underway in E.D. Kentucky
GENERAL CABLE: "Doshi" Complaint Underway in Kentucky
GENERAL MOTORS: Indian Units' Dealers Mull Class Action
GENERAL NUTRITION: Wants Aloe Vera Products Suit Dismissed
GEO GROUP: Florida Shareholder Suit Dismissed
GEO GROUP: No Fact Discovery Yet in Colorado Action
GLAXOSMITHKLINE: 3rd Cir. Upsets Pact in Flonase Antitrust Row
GOLDMAN SACHS: Amended Complaint Filed in FX Litigation
GOLDMAN SACHS: Defending Against Adeptus Health Securities Case
GOLDMAN SACHS: SunEdison Case Plaintiffs File 2nd Amended Suit
GOLDMAN SACHS: Bid to Dismiss Interest Rate Swap Suit Pending
GOLDMAN SACHS: NY Court Tossed Antitrust Claims
GOLDMAN SACHS: Motion to Dismiss Employment-Related Suit Denied
GOLDMAN SACHS: US Treasury Securities-Related Litigation Pending
HANOVER INSURANCE: Summary Judgment Motion Stayed
HARRY AND DAVID: Nonexempt Workers Class Certified in Rodkey Suit
HONEST CO: Settles False Advertising Class Action for $1.55MM
HSBC USA: Faces Class Suit over SSA Bonds
HSBC USA: Ahmed and Monteleone Class Suit Still Pending
HSBC USA: Claims in Platinum and Palladium Fix Suit Trimmed
JAGGED PEAK: Girard Gibb Investigates Potential Securities Claims
JAGGED PEAK: OK Police Fund Securities Suit Removed to D. Colo.
JC PENNY: Settles Securities Class Action for $97.5 Million
JOHNSON CONTROLS: "Laufer" Class Action Remains Pending
JOHNSON CONTROLS: Motion to Dismiss "Gumm" Suit Underway
LAFAYETTE, LA: Civil Rights Lawyers Sue Over Bail Policy
LASALLE COUNTY, IL: SAFE Unit Faces Civil Rights Class Action
MASIMO CORPORATION: Physicians Healthsource Seeks Rehearing
MASIMO CORPORATION: Eleventh Circuit Class Action Appeal Pending
MCDONALD'S: Gets Relief After DoL Withdraws 2015, 2016 Guidance
ORBIT BABY: Plaintiff Agrees to Voluntarily Dismiss Case
PANERA BREAD: "Remorenko" Balks at Offer Price in Acquisition
PERFECT TEAM: Appeals Decision in "Gao" Suit to Second Circuit
PHD FITNESS: Seeks Dismissal of Supplements Class Action
PIN WEI: Seeks Dismissal of Wage Class Action
POSHMARK INC: Reichman Appeals S.D. Cal. Ruling to Ninth Circuit
PRIME THERAPEUTICS: Sued in Minnesota Over EpiPen Pricing
RECKITT BENCKISER: Nurofen Marketing Class Action in Early Stages
ROCHE HOLDING: Faces Shareholder Class Action in New Jersey
ROCHE HOLDING: Faces Class Action, Aug. 7 Lead Plaintiff Deadline
ROCKWELL COLLINS: Settles Class Action for $8.6 Billion
ROOMS TO GO: Sued Over Bonded Leather Furniture Quality
ROYAL BANK: Remaining Shareholders Settle Class Action
SLATER & GORDON: Babscay Mulls Suit Over Misrepresentations
SOUTH CAROLINA: ACLU Files Suit Over Modern Day Debtors' Prison
SOUTHWESTERN ENERGY: Testimony Begins in Fayetville Shale Case
SUBARU OF AMERICA: Faces Class Action Over Windshield Defects
TANGOE INC: Faces Class Action, Aug. 7 Lead Plaintiff Deadline
TENNESSEE: "Martin" Seeks Compensation for Missed Meal Breaks
UNION ASSOCIATED: "Kerins" Files Labor Suit for Time-Shaving
UNIVERSAL HANDICRAFT: Faces Class Action Over Skin Care Products
USHEALTH ADVISORS: "Reynolds" Sues Over Telemarketing Calls
VALEANT PHARMACEUTICALS: Parties Agree to Limit Proposed Class
VALEANT PHARMACEUTICALS: Bid to Dismiss New Jersey Suit Pending
VOESTALPINE: Over 100 Portland Residents Join Class Action
VOESTALPINE: Attorneys Provide Update on Black Dust Lawsuit
WARREN BARR: "Pajarillaga" Seeks Overtime Pay, Back Wages
WELLS FARGO: Judge to Decide on Arbitration in Fake Scandal Case
WHITE STAR: Brockovich Discusses Options for Affected Homeowners
WORLD TECH TOYS: "Lee" Sues Over Declined Warranty
* Attorney Discusses Impact of 2017 Class Action Fairness Act
* Employers Face Challenges Following Unfavorable Waiver Rulings
* German Class Action Model Boon for Litigation Finance Firms
* Implementation of Canada's Anti-Spam Law Faces Delay
Hilary George-Parkin, writing for Racked, reports that since April
31, Manhattan's Houston Street location of consignment chain 2nd
Time Around has sat padlocked, its racks and shelves still stocked
with Chanel bags and DVF dresses handed over by consignors before
the landlord finally made good on his eviction notice. On its
website, the retailer posted a "going out of business"
announcement the same day, redirecting all calls to a third-party
restructuring firm and adding a note in the FAQ section that
consignors whose items sold before May 1st may not be paid at all.
Irate consignors have since taken to Facebook, Yelp, Twitter, and
Instagram with complaints about months-overdue checks for hundreds
or even thousands of dollars, accusations of fraud and breach of
contract, and threats of legal action. The situation in stores is
no better -- except that rather than a faceless digital handle or
social-media feed bearing the brunt of the frustration, it's
employees that are on the front lines. Unable to get answers
about the whereabout of their checks or property, angry consignors
have trashed signage, hurled verbal abuse, and grabbed merchandise
from the shelves as compensation, say employees.
"We've had to call the police because customers have physically
put their hands on employees. It's unnerving."
"Particularly in New York, it's been very difficult," says one
employee, who declined to be identified as she still works for the
company and will soon be looking for a new job. "Camera crews
have been barging into stores and causing utter chaos. We've had
to call the police because customers have physically put their
hands on employees. It's unnerving and it's scary to go to the
store when it's not even supposed to open for 45 minutes and
there's already a swarm of people ready to jump. They're trying to
push in the door while you're unlocking, and you still need to
turn on the lights and turn off the alarm, and they're just trying
to force their way in."
To deal with the situation, she continues, "We have to remember
that it's our job, number one, and number two, you have those
moments throughout the day where you have a really amazing person
come in and they're owed thousands of dollars, and they're upset,
but they're a human being, and they look at you and say, 'I am so
sorry that you have to deal with this, because this is not your
fault, and I feel so bad for you.' And those types of people just
remind you that there is still some humanity out there, but in
this world that we live in where people want instantaneous results
from everything, the majority of customers have not been that way.
People come into the store and they try to take other things --
they think because I can't give them cash, or I can't give them a
check or whatnot, that they can just take somebody else's personal
item as compensation. So we have that that we're dealing with.
We have consignors literally coming into the store trying to loot
us!"
Despite these tactics, the staff share consignors' frustrations
("they have money owed to them, and I understand that") and echo
one of their most common refrains: that getting clear information
from the company's corporate level -- about if and when checks
will be sent out or whether a store was in trouble -- has been
close to impossible, especially in recent weeks.
Lily, a former store manager, quit about a month ago after a
consignor who was owed money spit at her in a rage -- though she
says the final straw was the lack of support or information that
management offered to deal with the increasingly tense work
environment. In April, the company, which at its peak operated 40
stores nationwide, announced that 10 were closing, including
locations in Miami, Florida; West Hartford, Connecticut; and
Evanston, Illinois. While employees grew increasingly worried
about the security of their stores, she says, "if you asked
questions, it was met with a lot of hostility . . . all
communication was just kind of shut down."
Higher-ups at the company "would tell us 'business as usual' --
that was the wording we were given, even though that's definitely
not what it felt like in store," she recalls. "People were coming
in very, very angry. There were violent consignors. There were
police called many days. It would just be these very angry
conversations because we didn't have any answers, so of course
that makes people very upset."
The incidents hurt the bottom line, too. "Customers would
overhear these conversations and they would ask us what was going
on. Business got really slow. Numbers definitely dropped very
significantly, because a lot of our customers were our
consignors."
At a time when human interaction is less and less a part of the
shopping experience, 2nd Time Around stores retained a sense of
community. This is in part because of the company's history: it
was founded in 1973 and has since become thoroughly entrenched in
many East Coast neighborhoods, particularly in Boston, where the
company is headquartered and where its Newbury Street location has
been open since 1992. Consignment is also a particularly intimate
business, with consignors entrusting their local stores to price
and sell their personal items, which may be imbued with
sentimental value or freighted with memories. And while these
factors no doubt contributed to the company's success over the
years, they also seem to have added to the sting of its failures.
"We have consignors that have been dealing with us for years --
decades, even -- that have never experienced these issues before,
and then suddenly they're having these issues with not being able
to get their checks and their payments."
to get their checks and their payments, and that can only go on so
long before it just starts to implode," says the current employee.
The issues the company blames for its financial troubles will be
familiar to anyone with even a passing knowledge of the recent
carnage in the retail sector -- "skyrocketing rents" and
"increased competition from online retailers" -- but the nature of
the consignment business adds an extra layer of complexity and
human fallout to the process. While traditional retailers can
hire a liquidation company to sell off excess inventory and handle
store shutdowns, 2nd Time Around doesn't actually own any of the
items hanging on its racks, and has a legal responsibility to each
and every one of its thousands of active consignors to pay once
their items sell.
Upon dropping off their items, consignors sign a "Terms and
Policies" agreement stipulating that they will receive 40 percent
of the sale price for all goods over $100 (with higher percentages
offered for handbags), and that checks are mailed on the 15th of
each month. There is a clause absolving the company of
responsibility "for loss by theft, damages, negligence, or other
cause," but according to Adam Singer, a consumer litigator in New
York, this is more likely to cover events like fires or floods
than a loss of access following a legal eviction, and the company
is still obligated to pay for sales that have already been made.
"It seems like the people who admitted the items would be able to
sue, either for a return of the property from the store or
payment," he says. "They don't have the property, so they have a
right to get the payment according to the terms of the contract."
In New York state, Small Claims Court covers claims up to $5,000,
and fees are $15 to $20 per filing. "I would suspect that some
consumers whose merchandise is worth under that amount, they could
go to Small Claims Court and try to collect," he says. Whether
consignors have grounds for a class action suit, as many have
threatened on social media, would depend on whether they could
prove that the company employed "deceptive acts and practices"
under the law, which Mr. Singer is skeptical of. "I think the
people who dropped off merchandise probably have claims for a
breach of contract, but I think the issue is going to be, if the
store is closing, how are they going to collect?" he says.
That scenario -- that the company simply won't have the money to
pay up -- is exactly what many consignors say they fear.
Stephanie, a consignor in New York who says she's owed $472 in
checks and has around $200 in merchandise locked in the Houston
Street store, started a Facebook page, 2TA Needs to Pay, in order
to compile information from others like her and give people a
space to vent about their experiences and share links to public
offices like the Massachusetts Attorney General, the Better
Business Bureau of Boston, and the New York Department of Consumer
"Maybe I'm over-dramatizing it," she says, "but what I said to the
customer service person who was recording our conversation was
that this is like the 2008 financial crisis of the fashion world.
You have a corporation screwing over the little guy."
"This is like the 2008 financial crisis of the fashion world."
Especially maddening to some is the opaqueness around who the
corporation's executives are (and, thus, who to blame). The 2nd
Time Around website has no information about the company's
leadership, although news reports reveal that the company has been
majority-owned by private equity firm Generation Equity since at
least 2011, during which time the role of CEO changed hands from
founder Jeffrey Casler, first to Bill Soncini and later to Kristin
Kohler Burrows, who launched e-commerce and invested in a
nationwide rebranding, including a new name (the company was
previously known as Second Time Around), logo, and a more
contemporary aesthetic before leaving in December 2016.
It was soon after this that consignors started complaining about
checks bouncing or arriving months late, though at the time, they
say, they were assured that they would be paid in full and that
any payment issues were temporary -- the result of switching banks
or technical difficulties. Five months later, it seems clear that
was never the case, and far less certain whether consignors will
ever be able to recoup their money or property, especially as
locations close and sales are stunted by frenzied store
environments. In the case of the padlocked Houston Street store,
the company's website instructs consignors to direct complaints to
the building landlord, Eric Nelson, whose contact information they
posted in full -- a jerk move, per Mr. Nelson, who says he can't
do anything to help consignors beyond directing them to the
Department of Consumer Affairs, who is handling the complaints.
In a statement sent to Racked via the public relations firm it has
retained, 2nd Time Around reiterated the same points posted on its
website and emailed out to customers, saying that it is committed
to paying consignors for sales made after May 1st, and that
further information about sales before that date will be
forthcoming, pending the remaining sales. "We share the
disappointment that this announcement brings to our loyal and
valued employees, consignors, and customers," it says.
For employees who are tasked with returning unsold items to
customers, selling through what they can, and breaking down the
stores to return them in broom-swept condition to their respective
landlords (who, in some cases, have been barging in for weeks
demanding money from whatever college-age store associate happens
to be working that day, say employees), the situation is
especially bleak.
"These were the mistakes of people way above our pay grade. These
were the mistakes of people in the corporate entity that did not
manage this business properly, and we are just as frustrated as
these consignors," says the current employee.
"We feel so terrible for people who are on a fixed income and were
just looking to make some money by selling some of their items and
we can't pay them. That doesn't make us feel good. That makes us
feel terrible. We would never wish that upon anybody, and we're
unfortunately the only ones that people have to deal with it.
We're all losing our jobs at the end of this, so there's really no
light at the end of this for us except just to go out with a
little bit of dignity and try to do right by as many people as we
can for other people's wrongs." [GN]
The Madison County Record reports that Stephen Tillery has
retained former U.S. district judge Patrick Murphy to pursue a
claim that failure of a research contractor jeopardized a possible
class action among minor league baseball players.
Judge Murphy entered an appearance in U.S. district court on
June 2, in the Korein Tillery firm's action against Advanced
Analytical Consulting Group, of Massachusetts.
Judge Murphy filed a brief on jurisdiction on the same date,
arguing that the action belongs in St. Clair County.
Mr. Tillery started it there earlier this March, naming
researchers and economists Daniel Levy and Audrius Girnius as
second and third defendants.
Defendants removed the action to federal court in May, claiming
that Mr. Tillery fraudulently sued Mr. Girnius, an Illinois
citizen, to defeat federal jurisdiction.
Defense counsel Troy Bozarth moved for transfer to Massachusetts,
writing that the research contract provided that any action be
brought there.
District Judge Phil Gilbert ordered Mr. Tillery's firm to show
cause why he shouldn't find fraudulent joinder, and Judge Murphy
stepped forward.
Previously, firm member Aaron Zigler alone represented the firm.
"The gist of the dispute is that Levy and Girnius promised Korein
Tillery that they could estimate the work hours of minor league
baseball players as a whole and ultimately calculate their wage
and hour damages by observing a sample of these players entering
and leaving their ballparks," Judge Murphy wrote.
"However, just five weeks from the expert disclosure deadline, and
after collecting nearly $500,000, defendants admitted that they
were unable to tell the difference between baseball players and
ushers, concession workers or other employees entering the
ballparks; their entire study was worthless."
Judge Murphy wrote that by wasting months, "they jeopardized the
outcome of the case for the entire class of minor league baseball
players."
He wrote that the facts give rise to viable claims against both
Messrs. Girnius and Levy under Illinois consumer fraud law and
common law.
"On phone calls, Girnius claimed that the study would be able to
calculate class wide damages," he wrote.
"Those statements were false and they were at the least made with
reckless disregard for the truth.
"Girnius and Levy represented that they, as experts, could conduct
a study in a specific fashion.
"In fact, they could not do so, and they either knew this fact
before engaging in the study or they knew it shortly after
beginning the study."
Judge Murphy proposed to amend the complaint in order to
supplement individual allegations against Mr. Girnius.
He wrote that a new complaint would not change theories of
liability against Mr. Girnius but would simply clarify the
allegations.
Mr. Gilbert set a June 16 deadline for defendants to respond. [GN]
Maximo Patricio, individually and on behalf of others similarly
situated, Plaintiff, v. Ahds Bagel LLC, 1101 Bagel Corp., Ariey
Nussbaum, Islam Abbas and Haim Wysoki, Defendants., Case No. 1:17-
cv-04127 (S.D. N.Y., June 2, 2017), seeks unpaid minimum and
overtime wages pursuant to the Fair Labor Standards Act of 1938
and New York Labor Law, including applicable liquidated damages,
interest, attorneys' fees and costs.
Defendants own, operate, or control a bagel restaurant located at
1101 Lexington Avenue, New York, New York 10075 under the name
"Pick-a-Bagel." Maximo was employed as a stock man and ostensibly
as a delivery worker.
The Plaintiff is represented by:
Dianne M. Nast, Esq.
NASTLAW LLC
1101 Market Street, Suite 2801
Email: dnast@nastlaw.com
Michael L. Roberts, Esq.
ROBERTS LAW FIRM, P.A.
20 Rahling Circle
Email: mikeroberts@robetsslawfirm.us
Apartment Investment and Management Company (Aimco) on June 7
filed an amended complaint against Airbnb in the Superior Court of
California seeking injunctive relief and restitution under that
state's Unfair Competition Law and broadening its claims to
include all apartment owners whose properties have been rented
without Airbnb's first obtaining their permission. Aimco also
filed an amended complaint in its second lawsuit against Airbnb in
Miami-Dade County, Florida, Circuit Court.
Aimco believes that a significant portion of Airbnb's business and
revenues comes from its unauthorized short-term rentals of
properties that Airbnb does not own and that Airbnb wrongfully
profits from these transactions. In doing so Airbnb disregards
its own Terms of Service, which purport to prohibit rentals that
breach agreements with third-party property owners.
The lawsuits dispute Airbnb's assertion that it serves solely as a
passive, online listing platform and that all of its activities
are immune from liability under the federal Communications Decency
Act. The Act does not immunize Airbnb's unlawful rentals and
payment processing practices, both of which abuse landlords'
private property rights, interfere with their leases, and invite
trespassers onto their private properties. According to Aimco's
complaint, Airbnb is a short-term rental broker directly involved
in business transactions between hosts and guests and should be
held accountable for actively encouraging, participating in, and
profiting from the breaching of leases and trespassing.
"Airbnb continues its unlawful practice of knowingly promoting the
breaking of lease agreements between residents and property owners
and profiting from illegal rentals of properties it does not own,"
said Aimco CEO Terry Considine. "There are countless examples of
transient Airbnb guests causing disruption, using fraudulent
passes to access resident amenities, and showing no regard for the
safe, peaceful environment we strive to create for our permanent
residents. Aimco is proud to take the lead in filing a class
action complaint, standing up for our residents and for the
thousands of property owners who have experienced upheaval due to
Airbnb's actions."
All prospective Aimco residents undergo criminal background checks
and credit history reviews before their acceptance as qualified
renters. When approved, Aimco residents sign the Company's Good
Neighbor Policy as part of their lease -- a promise of good
behavior and consideration for their neighbors. Aimco objects to
the fact that Airbnb transient guests are unvetted and have no
vested interest in maintaining a peaceful community atmosphere.
On many occasions, Airbnb-supported trespassers have created
safety, noise, and nuisance concerns for Aimco's lawful residents,
including incidents of public drunkenness and fighting requiring
police assistance. Aimco repeatedly asked Airbnb to stop renting
Aimco's apartments in breach of Aimco's leases with its residents,
but Airbnb refused.
Aimco filed its initial lawsuits against Airbnb in February in
Florida and California. Airbnb's continuing refusal to stop its
illegal subletting of apartments and its disregard for the rights
of property owners motivated Aimco to step up its litigation
efforts.
Aimco -- http://www.aimco.com-- is one of the country's largest
owners and operators of apartments, with 188 communities in 22
states and the District of Columbia. Aimco common shares are
traded on the New York Stock Exchange under the ticker symbol AIV
and are included in the S&P 500. [GN]
Steven Trask, writing for Canberra Times, reports that Airservices
Australia faces a massive class action in the Federal Court
following the slashing of more than 500 jobs in a controversial
redundancy program.
The government entity could be stung as much as $12 million in
payouts and penalties for the "systemic" use of allegedly unlawful
contracts, said the Canberra law firm launching the claim.
Rory Markham, the employment litigation director for Chamberlains,
said the alleged contract breaches could have affected as many as
150 former employees.
"There was a large redundancy in 2016 -- the largest on
Airservice's record -- where 150 people alone in the Canberra
market at that level were let go," Mr Markham said.
"What appears to be the case is that there were a series of
contracts that came into existence that didn't meet enterprise
agreement standards.
"Those contracts were effectively relied upon to make those people
redundant."
Former employees who signed such contracts could be due thousands
of dollars in additional redundancy payments.
So far 78 former Airservices staff had registered for the class
action, which Mr Markham expected to lodge in the Federal Court.
"The losses can range between $70,000 up to about $130,000 per
person on our modelling," Mr Markham said.
"We suspect we have only reached about 60 per cent of the group
from what we know.
"If you looked at the accumulative value, it would be somewhere in
the total of about $5 to $8 million just on the redundancy
shortfalls alone."
In addition to the redundancy payouts, Airservices could be
eligible to pay around $4 million in penalties, Mr Markham said.
"The other thing that is significant is that -- if our case is
right -- this would be the first time that a government has
engaged in a breach of an enterprise agreement on a systemic
"Breaches of employment agreements carry penalties of up to
$52,000 per contravention. It might cost as much as $10 to $12
million with penalties on that basis."
The alleged contract breaches generally applied to employees on
individual contracts who were made redundant in the past six
years, he added.
Mr Markham said it was likely there were employees of other
government entities who had been impacted by similar alleged
breaches.
"I think it is a broader issue that applies in the public service.
It is most likely to apply outside of the key agencies of
"I suspect there has been a malaise that has come in around
employment relationships where they haven't quite held up to the
enterprise agreements they are being entered into."
Throughout 2016 Airservices offered redundancy packages to 523
employees in a bid to cut operating costs and halt shrinking
profitability.
Airservices profitability fell by 90 per cent between 2013 and
2015, from $45.5 million to $4.5 million.
The entity is responsible for air traffic control, fire fighting
and navigation services at a number of federally-leased airports
across the country.
Critics of the redundancy program feared that the loss of
frontline staff would impact safety at these airports.
Airservices chief executive Jason Harfield has previously
dismissed these claims as "irresponsible".
A spokeswoman for Airservices said the entity was willing to work
with any employees who felt they may have been affected.
"Airservices Australia complies with its obligations as an
employer, including those set out by the Fair Work Act 2009 and
other relevant legislative and industrial instruments," she said.
"It would be inappropriate to comment on individual matters.
Airservices is willing to engage with relevant parties to resolve
any outstanding employment issues." [GN]
Sheryl Krieg, writing for The News-Sentinel, reports that a class-
action civil lawsuit filed in federal court on behalf of inmates
who were incarcerated last October and November claims Allen
County's sheriff denied them the right to vote as provided by the
14th Amendment of the U.S. Constitution.
The amended complaint filed on June 6 in U.S. District Court by
Demetrius Buroff and Ian Barnhart on behalf of the hundreds of
individuals who were incarcerated at the Allen County Jail last
October and November claim Allen County Sheriff David Gladieux
violated the U.S. Constitution by not allowing them access to
absentee ballots, early voting or the opportunity to vote on
Election Day, which was Nov. 8.
Mr. Buroff was held at the jail as a pretrial detainee on
misdemeanor criminal charges Oct. 31 to Dec. 15, while
Mr. Barnhart was held at the jail as a pretrial detainee on felony
criminal charges Nov. 4 to Nov. 26. Both claim they were eligible
to vote and not serving a felony criminal sentence while held in
the Allen County Jail.
The suit claims more than three-fourths of the 600 to 700
individuals incarcerated at the jail are pretrial detainees like
Messrs. Buroff and Barnhart and the majority of the approximately
one-fourth of the individuals are serving a criminal sentence for
a misdemeanor and not a felony crime.
The complaint said Mr. Gladieux's policies, acts, customs,
procedures, omissions, and/or failure to train and supervise his
employees discriminatorily violated the fundamental right to vote
of plaintiffs and class members.
Messrs. Buroff and Barnhart asked to be awarded compensatory
damages and legal fees and relief through a jury trial. [GN]
Kathleen McWilliams, writing for Hartford Courant, reports that
insurance companies named in a class-action lawsuit on behalf of
homeowners with failing foundations are looking to get the most
pressing claims against them dismissed.
Nearly 30 insurance companies, including Allstate and State Farm,
filed a motion requesting that the bad-faith claims in the lawsuit
and the class action be dismissed.
"The complaint fails to state a claim against [the insurance
companies] upon which relief can be granted," the motion reads.
Filed in January 2016 by Attorney Ryan Barry, the suit claims that
111 active Connecticut insurance companies are part of a
"concerted scheme to deny [homeowners] coverage for their failing
basement walls, which experts say must be replaced . . . because
they were built with defective concrete."
The suit was filed on behalf of four homeowners in Ashford,
Ellington, Manchester and Stafford.
Since the issue of failing foundations came to light, Gov. Dannel
P. Malloy has said as many as 34,130 homes are at risk for failing
foundations. At least 522 homeowners in 23 towns have filed
complaints with the state Department of Consumer Protection
stating that their concrete foundations are failing.
According to a state report in early January, a mineral known as
pyrrhotite was present in the concrete aggregate used for the
foundations that are now crumbling, and was partly to blame, as
was the amount of water used in installation.
Insurance companies have denied homeowners' claims, saying the
problem does not qualify for coverage under their definition of
collapse, leaving homeowners to bear the burden of a costly
foundation replacement. The cost to replace a foundation can be as
much as $200,000.
The class-action suit asks insurance companies to cover foundation
repairs and pay bad-faith damages under the Connecticut Unfair
Insurance Practices Act and Connecticut Unfair Trade Practices
The motion to dismiss says that while insurance companies cover
collapse, the homes in question have not collapsed in line with
the insurers' definition, so the claims were denied in good faith.
"Further, a denial of coverage based on the definition of
'collapse' in the policy would not violate CUIPA or CUTPA as it is
nothing more than a coverage dispute -- which is not an unfair
insurance practice," the motion reads.
In the motions to dismiss, filed individually, insurance companies
allege that the claims depend on the individual details of each
homeowner's policy and class action is an inappropriate method of
resolution since every policy is different.
"Plaintiffs' collective claims for declaratory judgment by all
plaintiffs against all defendants are particularly problematic,"
the motion to dismiss reads.
The homeowners' attorney did not return a request for comment.
[GN]
Stephen Page, individually and on behalf of all others similarly
situated, Plaintiff, v. Alon USA Energy Inc., Ezra Uzi Yemin,
Ronald W. Haddock, Zalman Segal, David Wiessman, Frederec C.
Green, Assaf Binzburg, William J. Kacal, Ilan Cohen, Mark D.
Smith, Avigal Soreq and Franklin R. Wheeler, Defendants, Case No.
1:17-cv-00671 (D. Del., June 2, 2017), seeks to enjoin Defendants
from proceeding with the shareholder vote on Alon's acquisition by
Delek. The suit further seeks damages, in the event the merger is
consummated, pursuant to Sections 14(a) and 20(a) of the Exchange
Delek will acquire the remaining fifty-three percent of Alon's
outstanding common stock not already owned by Delek, constituting
an implied enterprise value of $675 million. Alon stockholders
will receive 0.504 Delek shares, representing an implied value of
$12.13 per share. Said deal is allegedly unfair to Alon's public
shareholders in view of the Company's recent financial success and
prospects for future growth, says the complainy. Page is a
shareholder of Alon USA Energy Inc. [BN]
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 Third Ave., 26th Fl.
Email: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
Michael Van Gorder, Esq.
20 Montchanin Road, Suite 145
Email: mvangorder@faruqilaw.com
AT&T Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on May 4, 2017, for the quarterly period
ended March 31, 2017, that the court has not yet ruled on
DIRECTV's motion to compel arbitration and the NFL defendants'
motion to dismiss the complaint related to litigation challenging
DIRECTV's NFL Sunday Ticket.
More than two dozen putative class actions were filed in the U.S.
District Courts for the Central District of California and the
Southern District of New York against DIRECTV and the National
Football League (NFL). These cases were brought by residential and
commercial DIRECTV subscribers that have purchased NFL SUNDAY
TICKET. The plaintiffs allege that (i) the 32 NFL teams have
unlawfully agreed not to compete with each other in the market for
nationally televised NFL football games and instead have "pooled"
their broadcasts and assigned to the NFL the exclusive right to
market them; and (ii) the NFL and DIRECTV have entered into an
unlawful exclusive distribution agreement that allows DIRECTV to
charge "supra-competitive" prices for the NFL SUNDAY TICKET
package. The complaints seek unspecified treble damages and
attorneys' fees along with injunctive relief. The first complaint,
Abrahamian v. National Football League, Inc., et al., was served
in June 2015.
In December 2015, the Judicial Panel on Multidistrict Litigation
transferred the cases outside the Central District of California
to that court for consolidation and management of pre-trial
proceedings. In June 2016, the plaintiffs filed a consolidated
amended complaint.
"We vigorously dispute the allegations the complaints have
asserted," the Company said.
In August 2016, DIRECTV filed a motion to compel arbitration and
the NFL defendants filed a motion to dismiss the complaint. The
court held a hearing on both motions on February 13, 2017. The
court has not yet ruled.
AT&T provides wireless services in robustly competitive markets,
but are subject to substantial governmental regulation. Wireless
communications providers must obtain licenses from the FCC to
provide communications services at specified spectrum frequencies
within specified geographic areas and must comply with the FCC
rules and policies governing the use of the spectrum. While
wireless communications providers' prices and offerings are
generally not subject to state regulation, states sometimes
attempt to regulate or legislate various aspects of wireless
services, such as in the area of consumer protection.
ended March 31, 2017, that the the Company is defending against
class actions over unlimited data plan claims.
In October 2014, the Federal Trade Commission filed a civil suit
in the U.S. District Court for the Northern District of California
against AT&T Mobility, LLC seeking injunctive relief and
unspecified money damages under Section 5 of the Federal Trade
Commission Act. The FTC's allegations concern the application of
AT&T's Maximum Bit Rate (MBR) program to customers who enrolled in
our Unlimited Data Plan from 2007-2010. MBR temporarily reduces in
certain instances the download speeds of a small portion of our
legacy Unlimited Data Plan customers each month after the customer
exceeds a designated amount of data during the customer's billing
cycle. MBR is an industry-standard practice that is designed to
affect only the most data-intensive applications (such as video
streaming). Texts, emails, tweets, social media posts, internet
browsing and many other applications are typically unaffected.
"Contrary to the FTC's allegations, our MBR program is permitted
by our customer contracts, was fully disclosed in advance to our
Unlimited Data Plan customers, and was implemented to protect the
network for the benefit of all customers," the Company said.
"In March 2015, our motion to dismiss the litigation on the
grounds that the FTC lacked jurisdiction to file suit was denied.
In May 2015, the Court granted our motion to certify its decision
for immediate appeal. The United States Court of Appeals for the
Ninth Circuit subsequently granted our petition to accept the
appeal, and on August 29, 2016, issued its decision reversing the
district court and finding that the FTC lacked jurisdiction to
proceed with the action. The FTC has asked the Court of Appeals to
reconsider the decision but the Court has not ruled on that
request."
"In addition to the FTC case, several class actions have been
filed also challenging our MBR program. We vigorously dispute the
allegations the complaints have asserted.
Carrie Penson, on behalf of herself and on behalf of all others
similarly situated, Plaintiff, v. Bethany Home Health GP, LLC and
Bethany Home Health, LP, Defendants, Case No. 9:17-cv-00103 (E.D.
Tex., June 2, 2016), seeks overtime and back pay, liquidated
damages, attorneys' fees and court costs under the Fair Labor
Bethany Home Health provides home healthcare services where
Plaintiff worked as a staff nurse.
Don J. Foty, Esq.
KENNEDY HODGES, L.L.P.
4409 Montrose Blvd, Ste. 200
Email: DFoty@kennedyhodges.com
Nicole O'Reilly, writing for Hamilton Spectator, reports that the
Law Society of Upper Canada is calling for Hamilton lawyer
John Findlay to be suspended amid an investigation into $1.5
million missing from a fund for Caledonia residents disrupted by
the 2006 occupation of a housing project by members of Six
Nations.
A hearing was scheduled in Toronto for June 9 on the notice of
motion seeking to suspend Mr. Findlay's license "on the basis that
there are reasonable grounds for believing that there is a
significant risk of harm to members of the public, or the public
interest in the administration of justice."
Mr. Findlay's law firm, Findlay McCarthy Professional Corporation,
which handled the 800-member class-action lawsuit, admitted in an
official notice posted that it spent the $1.5 million in a fund
and doesn't have the means to pay it back.
The notice, posted on the Caledonia Class Action website set up to
communicate with members, does not explain what the money was
spent on. The law firm filed a "self-reporting complaint" to the
Law Society of Upper Canada, spurring an ongoing investigation.
The money was supposed to be the final payout from $20 million
agreed to by the Province of Ontario in 2011 to settle the class
action launched in the wake of the occupation by Six Nations
members at Douglas Creek Estates (DCE) on Argyle Street South.
The protesters, who occupied the site in February 2006, argue the
site was unsurrendered indigenous land.
This led to tense standoffs, blockades and violence. Ottawa said
the land was surrendered in the 1840s. The province bought the
property off the developers at the height of the conflict in 2006.
The dispute remains unsolved.
Mr. Findlay was paid $3 million out of the settlement.
When contacted, Mr. Findlay declined to comment, adding any
updates would be posted to the official website. He could not be
immediately reached for comment on June 7.
In 1997, Mr. Findlay was suspended in an unrelated case.
He admitted to misappropriating $85,000 from client trust funds in
1997 to cover overdrafts in the law firm's bank account.
At the time, he was running federally for the Progressive
Conservatives in the Hamilton West riding.
At his hearing in 2002, Mr. Findlay produced evidence that showed
he was under severe stress at that time due to his daughter's 1993
battle with leukemia and financial pressures, including the
dissolution of his law partnership with his brother in 1992. He
was suspended for two years and paid the money back.
According to the affidavit of David Johnson, CEO of PRO-C Limited,
which was hired by Findlay McCarthy Professional Corporation (an
agreement approved by the court) to administer the $1.5-million
fund, there were 716 class members expecting money.
PRO-C was to be paid a 10 per cent cut of the $1.5 million plus
interest for their work calculating and distributing the funds.
According to Johnson's April 13, 2016 affidavit, there was also
$1.1 million set aside to cover account fees and disbursements.
Johnson has not responded to requests for comment.
It was PRO-C's job to calculate how much each member was to
receive, track them down and arrange payments.
The agreement for the final payout was approved in court Jan. 23
and members say they had received letters in March indicating
payments were coming, before the bombshell dropped that the money
was gone.
In an interview before the suspension hearing announcement, lawyer
David Thompson, a partner at Scarfone Hawkins and class-action
expert, said fees, such as counsel or administrative fees, have to
be approved by the court in advance.
Money held in a fund for an extended period of time is typically
invested in "an interest-bearing account, with the interest
accruing to the benefit of the eligible class members."
Mr. Thompson said he cannot comment on the case specifically as he
knows Findlay "quite well." [GN]
Andrew Philips, writing for Orillia Packet and Times, reports that
another chapter in the long saga relating to three former
provincial institutions, including one in Orillia, played out in a
Toronto courtroom.
Marilyn Dolmage, one of the litigation guardians for the Huronia
Regional Centre class action, said they expect to learn later this
summer what will happen with the almost $7.5 million left over
from the class-action settlement funds relating to the "harm done
to people" at the government-run Huronia, Rideau and Southwestern
Regional Centres.
"We regret that all the money could not be claimed directly by
survivors -- especially because many could not independently
explain how they were harmed," Ms. Dolmage said, pointing out she
was also speaking on behalf of HRC representative plaintiffs Marie
Slark and Patricia Seth as well as her husband Jim Dolmage, the
other Huronia litigation guardian.
Lawyers for class members appeared in court on June 5 to seek
approval of a predetermined list of project recipients.
"Those advocating for class members took great care to consider
the 80 applications received," Ms. Dolmage noted. "We agreed on
37 projects that we think best assist class members."
Ontario Superior Court Justice Paul Perell will decide what
happens to the money. In court last summer, Justice Perell told
litigants that what mattered was "the particular benefit of the
class members."
According to Ms. Dolmage, class members would like to see
documentary filmmakers, musicians, writers and photographers "they
already trust to help them to tell their stories, in ways that
promote healing, positive personal planning and societal change."
Ms. Dolmage said a large contingent of survivors and "their
trusted allies" filled the courtroom.
"The judge noted that such involvement of representative
plaintiffs, class members and litigation guardians is important,
in class actions," she added.
"Our lawyers also stressed the importance of funding projects that
included class members in the planning and implementation of the
projects, as a form of empowerment and healing," she noted.
According to Ms. Dolmage, government lawyers argued that the money
should instead be used for projects related to anyone with a
developmental disability, not just institutional survivors and not
in relation to problems or issues affecting class members
specifically.
But Ms. Dolmage and her group said that's not fair since the most
anyone received through last year's settlement was $42,000, but
many received only $2,000 "even after decades of sexual assault,
physical injury and emotional harm."
"That's especially why we think the leftover money belongs to
class members and should be spent to assist them in the ways they
wish, with the help of the people they trust."
After the June 5 four-hour hearing, Justice Perell announced he
would reserve his decision with a written judgment expected later
this summer. [GN]
Caryn Ceolin, writing for 570 News, reports that Regional Police
remain tight-lipped a week after a lawsuit alleging gender-based
discrimination, harassment and sexual assault was launched against
The Police Services Board met on June 7, marking the first time
Regional Police have come to the table since they were served with
the class-action suit.
Board Chair Tom Galloway says, while he can't comment further on
the specifics of the case now that the matter is before the
courts, the allegations are being taken very seriously.
"In society there are these problems they show up in all
employment areas. We're not being dismissive of what may or may
not have happened, but it is now in a legal form and there's a
very limited amount that you can say."
Mr. Galloway adds that lawyers are now handling the matter, and he
hopes it'll come to completion sooner rather than later.
The board was briefed in closed session this morning about the
suit filed by two female constables, claiming routine harassment
and abuse at the hands of their male colleagues and superiors.
Chief Bryan Larkin says it's an important issue, and reiterates
that Regional Police take these types of accusations very
"I can't speak to the specific allegations. We have to respect
the judicial process as we do with all statement of claims," he
says. "But let me be very clear that we don't tolerate harassment
or discrimination." [GN]
Vin Gurrieri, Stewart Bishop and Braden Campbell, writing for
Law360, report that Chadbourne & Parke LLP is stonewalling on
discovery in a $100 million proposed gender bias class action
until the firm's bid to toss the case plays out, the female
attorneys behind the suit told a New York federal court on
June 5.
In a letter to U.S. District Judge J. Paul Oetken, counsel for
recently expelled Chadbourne partner Kerrie Campbell and two other
female Chadbourne lawyers who have added their names to the suit
said that Chadbourne is refusing to engage in discovery until the
firm's November motion for either summary judgment or the class
allegations' dismissal is ruled upon.
The Chadbourne attorneys' letter noted that Chadbourne's motion is
one of three fully briefed motions currently pending before the
court, but that "this case has stalled" because of the firm's
refusal to respond to any discovery requests or produce any
discovery.
"Discovery should proceed while the motions are pending," the
letter said. "No stay has been entered in this case. Further
direction from the court is required in order for this case to
proceed."
Besides Chadbourne's dismissal request, Ms. Campbell's motion to
dismiss a counterclaim and her motion for conditionally
certification of an Equal Pay Act collective action are currently
pending before Judge Oetken.
Late on June 6, Chadbourne filed its own letter with Judge Oetken,
saying the female attorneys are improperly trying to supplement a
previous filing in violation of the court's procedures.
"Although plaintiffs may want the 'last word' on the parties'
discovery dispute, the court's individual rules permit each side
to file only a single five-page letter to address discovery
issues," Chadbourne said. "Plaintiffs previously filed such a
letter, to which defendants responded. . . . Defendants
respectfully request that the court strike plaintiffs' letter as
an inappropriate submission as it provides no new information and
simply regurgitates the arguments that plaintiffs have already
made to the court."
The law firm's letter further contended that there is no need for
discovery in this case because the female attorneys' claims fail
as a matter of law and because the firm should not have had
"to begin the costly and time-consuming discovery process unless
and until" their dismissal motion is adjudicated.
Counsel for the plaintiffs did not respond to a request for
comment on June 6.
Ms. Campbell had initially filed a lawsuit in August, alleging
that the firm's male-dominated culture and management structure
resulted in a gender disparity in pay and bonuses and in the
exclusion of female partners from positions of authority.
In late April, Chadbourne voted to expel Campbell from the
partnership. A Sanford Heisler spokesperson told Law360 at the
time that about 70 Chadbourne partners voted to expel Campbell,
with a number of partners abstaining.
In confirming the vote, a Chadbourne representative said the firm
"reluctantly" voted for expulsion after Campbell refused the
firm's February 2016 request that she voluntarily transition to
another firm.
After Campbell filed suit, former Kiev, Ukraine, managing partner
Jaroslawa Johnson joined the case in October, and Mary Yelenick, a
retired former product liability chair and 35-year veteran of the
law firm, filed a consent to join the case in late February.
Yelenick is retired from the partnership and is currently of
counsel.
In November, Chadbourne had filed a motion arguing that the case
should be dismissed in part because partners at the firm act as
business owners and do not qualify as employees who fall under the
purview of employment discrimination laws.
Chadbourne, which revealed in February that it is merging with
global legal giant Norton Rose Fulbright, also argued that the
plaintiffs did not meet the numerosity or commonality requirements
needed for class certification.
Campbell responded to that motion in early January by arguing that
the firm's bid to toss the suit was "fatally premature," saying it
"jumped the gun" in seeking summary judgment and dismissal of
their class and collective allegations since discovery had not yet
begun.
The plaintiffs then raised concerns about the progress of
discovery in a May 6 letter to the court, which asked for an
informal conference to address the issue and said the plaintiffs
would move to compel production of documents if the firm
maintained its position that no discovery was yet warranted.
The plaintiffs are represented by David W. Sanford, Jeremy
Heisler, Andrew Melzer, Alexandra Harwin, Saba Bireda and Jennifer
Siegel of Sanford Heisler Sharp LLP.
Chadbourne is represented by Kathleen McKenna, Evandro Cristiano
Gigante and Rachel Sarah Fischer of Proskauer Rose LLP.
The case is Campbell et al. v. Chadbourne & Parke LLP et al., case
number 1:16-cv-06832, in the U.S. District Court for the Southern
District of New York. [GN]
Chesapeake Energy Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 4, 2017, for
the quarterly period ended March 31, 2017, that the Company
continues to defend against class actions in Pennsylvania and Ohio
on behalf of royalty owners.
Putative statewide class actions in Pennsylvania and Ohio and
purported class arbitrations in Pennsylvania have been filed on
behalf of royalty owners asserting various claims for damages
related to alleged underpayment of royalties as a result of the
Company's divestiture of substantially all of its midstream
business and most of its gathering assets in 2012 and 2013. These
cases include claims for violation of and conspiracy to violate
the federal Racketeer Influenced and Corrupt Organizations Act and
for an unlawful market allocation agreement for mineral rights.
One of the cases includes claims of intentional interference with
contractual relations and violations of antitrust laws related to
purported markets for gas mineral rights, operating rights and gas
gathering sources.
The Company said, "We believe losses are reasonably possible in
certain of the pending royalty cases for which we have not accrued
a loss contingency, but we are currently unable to estimate an
amount or range of loss or the impact the actions could have on
our future results of operations or cash flows. Uncertainties in
pending royalty cases generally include the complex nature of the
claims and defenses, the potential size of the class in class
actions, the scope and types of the properties and agreements
involved, and the applicable production years."
Chesapeake Energy owns interests in approximately 21,900 oil and
natural gas wells and produced an average of approximately 528
mboe per day in the Current Quarter, net to its interest.
the quarterly period ended March 31, 2017, that the Company is
defending lawsuits alleging various violations of the Sherman
Antitrust Act and state antitrust laws.
In 2016, putative class action lawsuits were filed in the U.S.
District Court for the Western District of Oklahoma and in
Oklahoma state courts, and an individual lawsuit was filed in the
U.S. District Court of Kansas, in each case against the Company
and other defendants. The lawsuits generally allege that, since
2007 and continuing through April 2013, the defendants conspired
to rig bids and depress the market for the purchases of oil and
natural gas leasehold interests and properties in the Anadarko
Basin containing producing oil and natural gas wells. The lawsuits
seek damages, attorney's fees, costs and interest, as well as
enjoinment from adopting practices or plans that would restrain
competition in a similar manner as alleged in the lawsuits.
defending against a securities class action in the Western
District of Oklahoma.
The Company has received, from the U.S. Department of Justice
(DOJ) and certain state governmental agencies and authorities,
subpoenas and demands for documents, information and testimony in
connection with investigations into possible violations of federal
and state antitrust laws relating to our purchase and lease of oil
and natural gas rights in various states. The Company also has
received DOJ, U.S. Postal Service and state subpoenas seeking
information on the Company's royalty payment practices. Chesapeake
has engaged in discussions with the DOJ, U.S. Postal Service and
state agency representatives and continues to respond to such
subpoenas and demands.
In addition, the Company received a DOJ subpoena and a voluntary
document request from the SEC seeking information on our
accounting methodology for the acquisition and classification of
oil and natural gas properties and related matters. Chesapeake has
engaged in discussions with the DOJ and SEC about these matters.
On October 4, 2016, a securities class action was filed in the
U.S. District Court for the Western District of Oklahoma against
the Company and certain current directors and officers of the
Company alleging, among other things, violations of federal
securities laws for purported misstatements in the Company's SEC
filings and other public disclosures regarding the Company's
accounting for the acquisition and classification of oil and
natural gas properties. The lawsuit seeks certification as a class
action, damages, attorneys' fees and other costs.
defending against lawsuits alleging that the Company and the other
defendants have operated produced water disposal wells in a manner
that has caused earthquakes.
The Company said, "On October 14, 2016, we were named as a
defendant in a putative class action in the U.S. District Court
for the Western District of Oklahoma, alleging that we and the
other defendants have operated produced water disposal wells in a
manner that has caused earthquakes. The proposed class would
consist of property owners in a twenty-six county area of
Oklahoma. The petition seeks, among other relief, reimbursement of
insurance premiums and an award of damages for injury to real
property."
Plaintiffs Charles E. White, Jr., Jeannette A. Finley, Verlan D.
Hoopes, John P. Jacobs, Nora L. Pennington and James A. Ray filed
an appeal from a court ruling in their lawsuit styled Charles
White, Jr., et al. v. Chevron Corporation, et al., Case No. 4:16-
cv-00793-PJH, in the U.S. District Court for the Northern District
of California, Oakland.
The appellate case is captioned as Charles White, Jr., et al. v.
Chevron Corporation, et al., Case No. 17-16208, in the United
States Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter on June 8,
2017, Judge Phyllis J. Hamilton granted the Defendants' motion to
dismiss with prejudice the Plaintiffs' first amended complaint.
The Plaintiffs are participants in the Chevron Employee Savings
Investment Plan ("the ESIP Plan") -- a Section 401(k) defined
contribution, individual account, employee pension benefit plan
under 29 U.S.C. Section 1002(2)(A) and Section 1002(34). As of
Dec. 31, 2014, the Plan had over $19 billion in total assets and
more than 40,000 participants with account balances.
The Plaintiffs assert that the defendants breached their fiduciary
duties in choosing certain funds in the Plan lineup, and in
failing to monitor those funds that were selected for the Plan
lineup. As in the original complaint, the Plaintiffs assert that
the Vanguard Prime Money Market Fund -- the Plan's sole
conservative capital preservation investment option -- was an
imprudent choice because of its low return starting in 2008. They
assert that stable value funds generally outperform money market
funds, and that in this case a stable value fund would have been a
more prudent choice than a money market fund.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 10, 2017;
-- Transcript is due on August 8, 2017;
-- Appellants Jeannette A. Finley, Verlan D. Hoopes, John P.
Jacobs, Nora L. Pennington, James A. Ray and Charles E.
White Jr.'s opening brief is due on September 18, 2017;
-- Appellees Chevron Corporation and ESIP Investment
Committee's answering brief is due on October 18, 2017; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants CHARLES E. WHITE, Jr., JOHN P. JACOBS,
VERLAN D. HOOPES, NORA L. PENNINGTON, JAMES A. RAY and JEANNETTE
A. FINLEY, individually and as representative of a class of
similarly situated persons of the Chevron Employee Savings
Investment Plan, are represented by:
Jamie L. Dupree, Esq.
Jaime G. Touchstone, Esq.
FUTTERMAN DUPREE DODD CROLEY MAIER LLP
180 Sansome Street, 17th Floor
E-mail: jdupree@fddcm.com
jgodin@dfdlaw.com
Heather Lea, Esq.
Jerome Joseph Schlichter, Esq.
SCHLICHTER BOGARD & DENTON, LLP
100 S. 4th Street, Suite 1200
E-mail: hlea@uselaws.com
jschlichter@uselaws.com
Defendants-Appellees CHEVRON CORPORATION and ESIP INVESTMENT
COMMITTEE are represented by:
Brian D. Boyle, Esq.
O'MELVENY & MYERS LLP
1625 Eye Street, N.W.
E-mail: bboyle@omm.com
Mark Randall Oppenheimer, Esq.
E-mail: roppenheimer@omm.com
Catalina Joos Vergara, Esq.
400 South Hope Street
E-mail: cvergara@omm.com
John Sammon, writing for Legal Newsline, reports that farm
laborers hired to pick blueberries for the agricultural growing
company Clear Springs Farming who claimed they were discriminated
against because of their ethnicity have reached a new settlement,
requesting $132,000 in attorney fees.
Also named in the suit as defendants were the agricultural
companies Florida Gold Citrus Inc., Howard Leasing Inc. and
individual Jack Green Jr.
The pickers, from Haiti, were hired to pick blueberries from the
defendant's farm during the blueberry harvesting season of 2012.
The plaintiffs stated that after they reported to work, they were
sent home without pay. Claiming to be discriminated against due
to their race, color and national origin, the workers filed a
class action lawsuit under the Florida Civil Rights Act.
In July 2014, the plaintiffs' claims were certified as a "rule
class action" suit.
On Dec. 6, 2016, the Tampa Division of the Middle District of
Florida decertified the class action, finding that individualized
damages were not sufficiently common and were inherently
individual. Instead of a class action by the entire group of
pickers, the plaintiffs would now be required to pursue individual
actions against the defendants representing 125 individual claims.
"The plaintiffs' claims for compensatory and punitive damages
would require this court to conduct an overwhelming number of mini
trials to determine highly individualized issues pertaining to
each of the 125 individual plaintiffs' damages, which precludes
class treatment," the court brief stated.
Rather than consider each case individually, which could take
years to resolve, the court allowed a single forum to seek
accommodation. An all-day mediation was held on Dec. 7, 2016, and
with the assistance of mediator Edward O. Savitz, the parties
agreed on a settlement. On Jan. 27, the parties entered into a
settlement agreement.
On April 28, the settlement agreement requested the awarding of
attorney fees of approximately $132,000. That figure is out of a
total amount of $360,000 to be put into a "common fund" to pay for
additional expenses including alleged emotional distress.
Amy Darby and Andrew R. Schindler of Gordon & Rees LLP in Tampa
represented Clear Springs Farming.
Ryan Barack -- rbarack@ksbclaw.com -- and Michelle Erin Nadeau --
mnadeau@ksbclaw.com -- of the law firm of Kwall Barack Nadeau PLLC
in Clearwater, Florida, and Bradley Rothman of Weldon & Rothman PL
in Naples, Florida, served as class counsel in the case. [GN]
The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed
the quarterly period ended March 31, 2017, that in the Cobalt
International Energy Securities Litigation, shareholder affiliates
have moved to dismiss the claim alleging sales based on inside
Cobalt International Energy, Inc. (Cobalt), certain of its
officers and directors (including employees of affiliates of Group
Inc. who served as directors of Cobalt), affiliates of
shareholders of Cobalt (including Group Inc.) and the underwriters
(including GS&Co.) for certain offerings of Cobalt's securities
are defendants in a putative securities class action filed on
November 30, 2014 in the U.S. District Court for the Southern
District of Texas.
The second consolidated amended complaint, filed on March 15,
2017, asserts claims under the federal securities laws, seeks
compensatory and rescissory damages in unspecified amounts and
alleges material misstatements and omissions concerning Cobalt in
connection with a $1.67 billion February 2012 offering of Cobalt
common stock, a $1.38 billion December 2012 offering of Cobalt's
convertible notes, a $1.00 billion January 2013 offering of
Cobalt's common stock, a $1.33 billion May 2013 offering of
Cobalt's common stock, and a $1.30 billion May 2014 offering of
Cobalt's convertible notes.
The consolidated amended complaint alleges that, among others,
Group Inc. and GS&Co. are liable as controlling persons with
respect to all five offerings, and that the shareholder affiliates
(including Group Inc.) are liable for the sale of Cobalt common
stock on the basis of inside information. The consolidated amended
complaint also seeks damages from GS&Co. in connection with its
acting as an underwriter of 14,430,000 shares of common stock
representing an aggregate offering price of approximately $465
million, $690 million principal amount of convertible notes, and
approximately $508 million principal amount of convertible notes
in the February 2012, December 2012 and May 2014 offerings,
respectively, for an aggregate offering price of approximately
$1.66 billion.
On January 19, 2016, the court granted, with leave to replead, the
underwriter defendants' motions to dismiss as to claims by
plaintiffs who purchased Cobalt securities after April 30, 2013,
but denied the motions to dismiss in all other respects. On
November 3, 2016, plaintiffs moved for class certification. On
April 14, 2017, the shareholder affiliates moved to dismiss the
claim alleging sales based on inside information.
Ryan Boysen, writing for Law360, reports that Continental Casualty
Co. need not defend insureds against claims that an exclusion
explicitly bars from coverage despite the policy's broader
coverage for "all claims," an Alabama federal court recently said
in stripping the class claims from a suit seeking coverage for a
worker salary dispute.
American Chemicals & Equipment Inc., dba American Osment, had
brought the proposed class action on behalf of fellow
policyholders after Continental refused to defend American Osment
against underlying claims that it fraudulently underpaid one of
its employees.
Continental pointed to a strict labor law violation exclusion in
refusing to defend the underlying suit, but American Osment said
that did not matter, since the policy states that Continental has
a duty to defend "all claims even if the allegations are
groundless, false or fraudulent" or not covered.
U.S. District Judge Madeline Hughes Haikala begged to differ in
her opinion on June 2, saying that while an insurer's duty to
defend is broad, it is not quite that broad.
"The parties' pending motions rise and fall on American Osment's
ability to prove that . . . Continental has a contractual duty
based on a general term in the policy . . . to provide American
Osment with a defense for claims that the policy explicitly
excludes from coverage in more narrow provisions," Judge Haikala
wrote. "Under settled principles of Alabama law, Continental has
no such duty."
American Osment had sought to represent a class of all other
Continental policyholders with similar policy language who had
been refused a defense by the insurer.
On June 2, Judge Haikala struck those class claims and denied both
parties' motions for summary judgment, but held out a ray of hope
for American Osment: Because the ex-employee in the underlying,
since-settled suit was seeking damages for fraud, Continental may
have owed the company a defense for that reason.
Neither side raised the issue in their own briefs and motions, and
Judge Haikala gave them until July 1 to provide her their
arguments on it.
The underlying suit stems from the March 2014 hiring of American
Osment salesman Steve Pate. During the interview the company's
president allegedly offered Pate a $120,000 salary with a 36
percent commission rate, and Mr. Pate signed a contract "silent as
to the" commission rate, according to American Osment's complaint.
It is unclear whether the salary was included in the contract.
In any case, Pate allegedly found that his new job paid only
$100,000 with a 32 percent commission rate, and he sued American
Osment for fraudulent conduct. That suit was settled for $75,000,
according to court documents.
When American Osment asked for a defense in Pate's suit,
Continental said coverage was barred by an exclusion for "any
actual or alleged violation of . . . any federal, state or local
statutory law . . . anywhere in the world governing wage, hour and
payroll practices," as well as an "unpaid wages" exclusion.
American Osment acknowledged that the insurer would not have to
indemnify the company due to those exclusions, but said that
Continental was still obligated to provide defense coverage
because "the policy does not limit the defense of claims to
'covered claims.'"
Neither party responded on June 7 to requests for comment.
American Osment is represented by Charles A. Dauphin --
cdauphin@dauphinparis.com -- of Dauphin Paris LLC.
Continental is represented by Elizabeth Ann McMahan --
amcmahan@smgblawyers.com -- of Simpson McMahan Glick & Buford PLLC
and Marc E. Rindner -- mrindner@wileyrein.com -- and Richard A.
Simpson -- rsimpson@wileyrein.com -- of Wiley Rein LLP.
The case is American Chemicals & Equipment Inc. v. Continental
Casualty Co. et al., case number 2:15-cv-00299, in the U.S.
District Court for the Northern District of Alabama. [GN]
Plaintiffs Maurice Boston, Marquis Bowers, Kevin Dawson, Kenneth
Farris and Johnathan Lacy filed an appeal from a court ruling in
their lawsuit styled Johnathan Lacy, et al. v. Cook County,
Illinois, et al., Case No. 1:14-cv-06259, in the U.S. District
Court for the Northern District of Illinois, Eastern Division.
The appellate case is captioned as Johnathan Lacy, et al. v. Cook
County, Illinois, et al., Case No. 17-2202, in the U.S. Court of
Appeals for the Seventh Circuit.
As previously reported in the Class Action Reporter on June 15,
2017, Defendants Cook County, Illinois, and Thomas J. Dart filed
an appeal from a court ruling in the lawsuit. That appellate case
is captioned as Johnathan Lacy, et al. v. Cook County, Illinois,
et al., Case No. 17-2141, in the U.S. Court of Appeals for the
Seventh Circuit.
Plaintiffs Jonathan Lacy, Kenneth Farris, Marquis Bowers, Maurice
Boston, and Kevin Dawson, filed a putative class action amended
complaint against Defendants Thomas Dart, Sheriff of Cook County,
Illinois, Cook County, Illinois, Sergeant Johnson, and
correctional officers Nawara, Lopez, and Wilson, alleging
violations of section 202 of the Americans with Disabilities Act
and the Rehabilitation Act.
-- Transcript information sheet is due by June 26, 2017; and
-- Appellant's brief due on or before July 24, 2017, for
Maurice Boston, Marque Bowers, Kevin Dawson, Kenneth Farris
and Johnathan Lacy.[BN]
Plaintiffs-Appellants JOHNATHAN LACY, KENNETH FARRIS, MARQUIS
BOWERS, MAURICE BOSTON and KEVIN DAWSON, individually and for all
others similarly situated, are represented by:
Joel A. Flaxman, Esq.
LAW OFFICE OF KENNETH N. FLAXMAN P.C.
200 S. Michigan Avenue
E-mail: jaf@kenlaw.com
Defendant-Appellee COOK COUNTY, ILLINOIS, is represented by:
Jacqueline B. Carroll, Esq.
OFFICE OF THE COOK COUNTY STATE'S ATTORNEY
50 W. Washington Street
500 Richard J. Daley Center
E-mail: jacqueline.carroll@cookcountyil.gov
Defendant-Appellee THOMAS J. DART, Sheriff of Cook County, is
Nicholas Cummings, Esq.
E-mail: nicholas.cummings@cookcountyil.gov
Kenneth L. Chernof, Esq. -- kenneth.chernof@apks.com -- John D.
Lombardo, Esq. -- john.lombardo@apks.com -- Daphne Morduchowitz,
Esq. -- daphne.morduchowitz@apks.com -- Andrew K. Solow, Esq.,
David J. Weiner, Esq., Caitlin M. Annatoyn, Esq., Paul Beavers,
Esq., Tiffany M. Ikeda, Esq., Michael E. Kientzle, Esq., Colleen
S. Lima Esq., and Adam M. Rapp Esq., of Arnold & Porter Kaye
Scholer LLP, in an article for Mondaq, wrote that in April, the
Ninth Circuit ruled in Dunson v. Cordis Corp. that a defendant is
not entitled to remove cases to federal court based on the Class
Action Fairness Act of 2005 (CAFA) when plaintiffs consolidate
lawsuits with identical claims "for purposes of pretrial discovery
and proceedings, along with the formation of a bellwether-trial
process."
The decision hinged on the fact that although CAFA permits removal
when "monetary relief claims of 100 or more persons are proposed
to be tried jointly on the ground that the plaintiffs' claims
involve common questions of law or fact," proposing a bellwether
trial system is not necessarily equivalent to trying each
plaintiff's case jointly. The defendant argued that the
plaintiffs' statement that they intended to create a "bellwether-
trial process" meant the plaintiffs intended their claims to be
tried together. The Ninth Circuit relied on statements by the
plaintiffs that they were seeking consolidation merely to enable a
single judge to oversee common discovery and pretrial proceedings
as a means of ensuring that each plaintiff received similar
treatment, not to conduct a single trial for all plaintiffs'
claims.
The Ninth Circuit differentiated between binding bellwether
trials, which bind all plaintiffs on issues they have in common
with the bellwether trial, and non-binding bellwether trials,
which have no legal effect on other plaintiffs' cases and are only
used to inform parties of their chances of success and to promote
settlement. Because the Ninth Circuit determined the bellwether
trials proposed by the plaintiffs were non-binding, the defendant
was unable to prove that the plaintiffs had asked to hold a joint
trial of their claims, and therefore could not remove the cases to
federal court under CAFA. [GN]
Christine Quinn, Plaintiff, v. CP Franchising, LLC, Defendant,
Case No. 0:17-cv-61123 (S.D. Fla., June 2, 2016), seeks all
damages for all lost wages, overtime pay, job benefits, front pay,
back pay, liquidated damages, interest, costs and attorney's fees
under the Fair Labor Standards Act and the Family Medical Leave
Plaintiff was employed by Cruise Planners as a business
development specialist from approximately October 10, 2010 through
June 10, 2015. During her employment, Plaintiff suffered both an
injury to her shoulder. She was fired on June 10, 2015, soon after
returning from a 10-day medical leave from work.
Quinn agreed to act as a class representative in filing this case.
Steven F. Grover, Esq.
STEVEN F. GROVER, P.A.
507 S.E. 11 Ct.
E-mail: stevenfgrover@gmail.com
David Phelps, individually and on behalf of all others similarly
situated, Plaintiff, v. Delek US Holdings, Inc., Delek Holdco,
Inc. Ezra Uzi Yemin, William J. Finnerty, Carlos E. Jorda, Charles
H. Leonard, Gary M. Sullivan, Jr., Shlomo Zohar, and Avi Geffen,
Case No. 3:17-cv-00910 (M.D. Tenn., June 2, 2017), seeks to enjoin
Defendants from proceeding with a shareholder vote on Alon USA
Energy Inc.'s proposed acquisition by Delek as well as damages, in
the event the merger is consummated, pursuant to Sections 14(a)
and 20(a) of the Exchange Act.
Delek will acquire the remaining fifty-three percent of Alon USA
prospects for future growth. Page is a shareholder of Alon USA
Energy Inc. [BN]
J. Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Ave, Suite 200
Email: gerards@bsjfirm.com
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
350 Fifth Avenue, 59th Floor
Email: jmonteverde@monteverdelaw.com
Wadi Reformado, writing for Northern California Record, reports
that a consumer who has registered his number on the National Do-
Not-Call Registry alleges a computer manufacturer unlawfully
called him.
John Sloatman III filed a complaint on behalf of all others
similarly situated on May 24 in the U.S. District Court for the
Central District of California against Dell Inc. and Does 1
through 10 alleging violation of the Telephone Consumer Protection
According to the complaint, the plaintiff alleges that in April
2016, he suffered damages from receiving several unwanted calls
from the defendants in their attempt to solicit services. The
plaintiff holds Dell Inc. and Does 1 through 10 responsible
because the defendants allegedly kept on calling the plaintiff
using an automatic telephone dialing system to call the plaintiff.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages, $1,500 in treble damages, and any other relief as the
court deems just. He is represented by Todd M. Friedman, Adrian
R. Bacon and Meghan E. George of Law Offices of Todd M. Friedman
P.C. in Woodland Hills.
U.S. District Court for the Central District of California Case
number 2:17-cv-03918-GW-PLA
Chris Walker, writing for Westword, reports that Killmer, Lane &
Newman, a well-known civil-rights law firm, has joined a class
action lawsuit filed on behalf of thousands of homeless
individuals suing the City of Denver over its sweeps of homeless
encampments.
David Lane, a partner of the firm, calls the case an "extremely
uphill battle," but is convinced that he can help Jason Flores-
Williams, the attorney who filed the case, prove that the city
violated the Constitution when it conducted sweeps and enforced
its anti-camping ordinance.
"The rich and powerful in Denver have decided that homelessness is
bad for business," Mr. Lane says, "and Denver has dutifully fallen
into line behind their rich and powerful friends and criminalized
homelessness. It's a difficult [case] that we face, but there are
various, discrete aspects of it which are very winnable."
For example, Mr. Lane cites evidence of Denver Police taking
belongings of homeless individuals without any due process, which
could violate the Fourth and Fourteenth amendments.
District Court Judge William Martinez suggested that Flores-
Williams add a co-counsel to the case when he granted class
certification on April 27 (which made the nine homeless plaintiffs
in the case representative of all 3,600 homeless individuals in
Denver). In his brief, Judge Martinez wrote that, while he
admired Mr. Flores-Williams's passion for his clients, he
questioned the attorney's ability to take on such an extensive
case all by himself, and "strongly encouraged" him to find other
lawyers to join him.
Mr. Lane helped Mr. Flores-Williams draft a temporary restraining
order back in December when videos surfaced of Denver Police
officers confiscating tents and blankets from individuals
experiencing homelessness during the winter.
The restraining order stipulated that police could not confiscate
survival gear, and within 24 hours of Lane's calling the city and
threatening to file the motion, Mayor Michael Hancock issued a
public directive telling police officers that they could not take
items from the homeless while enforcing the city's camping ban.
In a separate lawsuit in county court, Mr. Flores-Williams tried
to defend three individuals -- two of whom were featured in the
viral video of police confiscating their blankets -- against
charges of illegal camping. A jury upheld those charges after a
dramatic and contentious two-day trial in April.
As for the ongoing class action lawsuit, Mr. Flores-Williams says
that the case -- because it's in federal court -- will have
national implications for how cities treat their homeless
populations.
Mr. Lane says that he is happy to join the case, and that when it
comes to fighting for the underdog, "that's what our firm is all
about." [GN]
Alison Frankel, writing for Reuters, reports that it's always
notable when a federal judge presiding over a big class action
slashes a fee request by millions of dollars -- but I think
there's another story lurking beneath the dollar signs in an
opinion issued on June 6 by U.S. District Judge Lucy Koh of San
Jose.
Three plaintiffs' firms that obtained nearly $170 million for
artists and engineers whose job prospects suffered under an
alleged no-poaching agreement among animation studios asked Judge
Koh to award them $31.5 million for squeezing a $150 million
settlement from Disney and Dreamworks. The judge instead granted
them $13.8 million. She previously awarded $4.7 million in fees
for a smaller classwide settlement, bringing the total fees for
plaintiffs' lawyers from Cohen Milstein Sellers & Toll, Hagens
Berman Sobol Shapiro and Susman Godfrey to about $18.5 million.
Notably, Judge Koh's award was based not on the recovery the firms
won for class members but on their hourly billings. The firms
wanted the judge to grant them 21 percent of the class recovery,
which, they argued, is less than the 25 percent benchmark
established by the U.S. Court of Appeals for the 9th Circuit.
Judge Koh, however, applied the alternative lodestar approach.
The plaintiffs' firms, she said, billed $9.3 million in the
animation case, and deserve double that lodestar because of the
risk they bore and the results they obtained. That's how Judge
Koh arrived at a total fee award of about $18.5 million.
Lodestar fee awards in class actions, as you probably know, are an
exception. For several decades, most judges have defaulted to the
alternative method of calculating plaintiffs' lawyers' fees as a
percentage of the common fund for class members. The California
Supreme Court, in a 2016 ruling that confirmed courts in the state
can use the percentage method to calculate fees, spelled out that
method's advantages: "relative ease of calculation, alignment of
incentives between counsel and the class, a better approximation
of market conditions in a contingency case and the encouragement
it provides counsel to seek an early settlement and avoid
unnecessarily prolonging the litigation."
But the state high court and the 9th Circuit also permit judges to
use the lodestar method. Judge Koh, for instance, awarded
lodestar-based fees in a previous no-poaching class action.
Another California federal judge, U.S. District Judge William
Alsup of San Francisco, used the lodestar method to calculate fees
in a $200 million class action against Wells Fargo in 2015.
And, most dramatically, U.S. District Judge Charles Breyer of San
Francisco opted for a lodestar fee award in the dealer wing of the
clean diesel litigation against Volkswagen. Plaintiffs' lawyers in
that case had asked for $28.6 million, which was a tiny percentage
-- 2.4 percent -- of the dealers' billion-dollar recovery. Judge
Breyer, however, said fees based on the recovery "would
overcompensate" class counsel. He awarded about $3 million, double
the plaintiffs' lodestar billings of $1.5 million.
If you're counting, that's three highly regarded California
federal judges in four recent outsized class actions who have
concluded that it makes more sense to base fees on the hours
plaintiffs' lawyers worked instead of the results they obtained.
Are we seeing the beginning of a pendulum swing away from
percentage-based fee awards in mega class actions?
Ms. Frankel emailed plaintiffs' lawyers in the animation case to
ask. Steven Berman of Hagen Berman -- who was also class counsel
in the VW dealers' case in which Judge Breyer granted only $3
million of the requested $28.6 million in fees -- said in an email
that he still doesn't think lodestar-based fees will make a
comeback.
"These were cases where judges thought the risk was reduced such
that a percentage yielded a windfall," Mr. Berman's email said,
suggesting that unique facts, not overarching policy, led Judges
Koh and Breyer to use lodestar calculations.
Mr. Berman, for one, isn't hoping for a broad return of lodestar
fee awards. "The effect of these rulings," he said, is to
encourage lawyers "to bill like crazy" and to discourage them from
taking risky cases.
"I agree with him on both points, but I also suspect the recent
cluster of lodestar fee awards is more than a coincidence.
Windfall has become a judicial dirty word. If plaintiffs' lawyers
are smart, they'll start adjusting fee requests accordingly," Ms.
Frankel said. [GN]
Diversicare Healthcare Services, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on May 4, 2017,
for the quarterly period ended March 31, 2017, that in January
2009, a purported class action complaint was filed in the Circuit
Court of Garland County, Arkansas against the Company and certain
of its subsidiaries and Garland Nursing & Rehabilitation Center
(the "Center"). The complaint alleges that the defendants breached
their statutory and contractual obligations to the patients of the
Center over the five-year period prior to the filing of the
complaints. The lawsuit remains in its early stages and has not
yet been certified by the court as a class action. The Company
intends to defend the lawsuit vigorously.
Diversicare Healthcare Services, Inc. provides long-term care
services to nursing center patients in ten states, primarily in
the Southeast, Midwest, and Southwest.
Defendant TF Final Mile LLC, formerly known as Dynamex Operations
East, LLC, filed an appeal from a court ruling in the lawsuit
titled DJAMEL OUADANI, on behalf of himself and all others
similarly situated v. DYNAMEX OPERATIONS EAST, LLC, Case No. 1:16-
cv-12036-PBS, in the U.S. District Court for the District of
Massachusetts, Boston.
As previously reported in the Class Action Reporter on May 17,
2017, Chief District Judge Patti B. Saris denied the Defendant's
motion to compel arbitration and dismiss the case.
Plaintiff Djamel Ouadani brings the putative class action against
the Defendant alleging violations of the Fair Labor Standards Act,
and the Massachusetts misclassification and wage laws.
The appellate case is captioned as Ouadani v. TF Final Mile LLC,
Case No. 17-1583, in the United States Court of Appeals for the
First Circuit.
The briefing schedule in the Appellate Case states that Appearance
form, Docketing Statement and Transcript Report/Order form is due
on June 23, 2017.[BN]
Plaintiff-Appellee DJAMEL OUADANI, on behalf of himself and all
others similarly situated, is represented by:
Stephen S. Churchill, Esq.
Rachel J. Smit, Esq.
FAIR WORK PC
192 South Street, Suit 450
E-mail: steve@fairworklaw.com
rachel@fairworklaw.com
Defendant-Appellant TF FINAL MILE LLC, f/k/a Dynamex Operations
East, LLC, is represented by:
Diane Saunders, Esq.
OGLETREE DEAKINS NASH SMOAK & STEWART PC
1 Boston Pl, Suite 3500
E-mail: daine@saunders@ogletree.com
EMCORE Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 4, 2017, for the
quarterly period ended March 31, 2017, that the parties in the
class action lawsuit by Christina Mirasol are preparing a formal
On December 15, 2015, Plaintiff Christina Mirasol ("Mirasol"), on
her own behalf and on behalf of a putative class of similarly
situated individuals composed of current and former non-exempt
employees of the Company working in California since December 15,
2011, filed a complaint against the Company in the Superior Court
of California, Los Angeles County. The complaint alleged seven
causes of action related to: (1) failure to pay overtime; (2)
failure to provide meal periods; (3) failure to pay minimum wages;
(4) failure to timely pay wages upon termination; (5) failure to
provide compliant wage statements; (6) unfair competition under
the California Business and Professions Code Sec. 17200 et seq.;
and (7) penalties under the Private Attorneys General Act. The
claims were premised primarily on the allegation that Mirasol and
the putative class members were not provided with their legally
required meal periods. Mirasol sought recovery on her own behalf
and on behalf of the putative class in an unspecified amount for
compensatory and liquidated damages as well as for declaratory
relief, injunctive relief, statutory penalties, pre-judgment
interest, costs and attorneys' fees.
In exchange for a one-time cash payment offered by the Company,
certain current and former employees previously agreed to release
the Company from all potential claims related to the matters
alleged in the Mirasol lawsuit. The Company had recorded an
accrual for these amounts at September 30, 2016 that was not
material to the Company's results of operations, financial
condition or cash flows, which had been recorded within Operating
Expenses for the fiscal year ended September 30, 2016.
On January 6, 2017, the Company and Mirasol agreed to a class
action settlement of $0.3 million with regards to all outstanding
claims. The parties are currently preparing a formal settlement
agreement, which will require approval by the Court. During the
six months ended March 31, 2017, the Company recorded an accrual
of $0.2 million within Operating Expenses related to the
settlement.
EMCORE Corporation together with its subsidiaries designs and
manufactures Indium Phosphide (InP) optical chips, components,
subsystems and systems for the broadband and specialty fiber
optics market.
Nicholas Olenik, individually and on behalf of all others
similarly situated and derivatively on behalf of Nominal Defendant
Earthstone Energy, Plaintiff, v. Frank A. Lodzinski, Ray
Singleton, Douglas E. Swanson, Brad Thielemann, Robert L. Zorich,
Jay F. Joliat, Zachary G. Urban, Phillip D. Kramer, Encap
Investments L.P., Bold Energy III LLC, Bold Energy Holdings LLC
and Oak Valley Resources, LLC, Defendants, and Earthstone Energy,
Inc., a Delaware corporation, Case No. 2017-0414, (Del. Ch., June
2, 2017), seeks equitable relief for breach of fiduciary duties.
Earthstone will acquire all of the outstanding membership
interests of Bold Energy III LLC, a portfolio company of EnCap
Investments LP. Current Earthstone stockholders will own
approximately 39% of the combined company and Bold members will
own the remaining 61% on a fully diluted basis.
Plaintiff owns a stake in Earthstone Energy Inc., an oil and gas
exploration firm. Olenik claims said deal is one-sided.
Chairman and CEO Frank A. Lodzinski is the controlling stockholder
of Earthstone. [BN]
Plaintiff is represented by:
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
David M. Sborz, Esq.
ANDREWS & SPRINGER LLC
3801 Kennett Pike, Building C, Suite 305
Plaintiffs Winston Smith, et al., filed an appeal from a court
ruling in their lawsuit entitled Winston Smith, et al. v.
Facebook, Inc., et al., Case No. 5:16-cv-01282-EJD, in the U.S.
District Court for the Northern District of California, San Jose.
2017, Judge Edward Davila dismissed the lawsuit without leave to
amend on May 9. The lawsuit accuses Facebook of spying on users,
who visit major cancer organization Web sites. Because the
medical organizations accused of handing users' private
information off to Facebook are outside of California, the Court
lacks power -- or "personal jurisdiction" -- over the case, Judge
Davila said.
The appellate case is captioned as WINSTON SMITH; JANE DOE I; JANE
DOE II, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants v. FACEBOOK, INC., Defendant-Appellee, and
AMERICAN CANCER SOCIETY, INC.; AMERICAN SOCIETY OF CLINICAL
ONCOLOGY, INC.; MELANOMA RESEARCH FOUNDATION; ADVENTIST HEALTH
SYSTEM; BJC HEALTHCARE; CLEVELAND CLINIC; UNIVERSITY OF TEXAS - MD
ANDERSON CANCER CENTER, Defendants, Case No. Case No. 17-16206, in
the United States Court of Appeals for the Ninth Circuit.
-- Transcript will be filed by court reporter on August 7,
-- Appellants' opening brief and excerpts of record must be
served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1
on September 18, 2017;
-- Appellee's answering brief and excerpts of record must be
on October 18, 2017; and
-- The optional appellants' reply brief must be filed and
served within 21 days of service of the appellee's brief,
pursuant to FRAP 32 and 9th Cir. R. 32-1.[BN]
The Hon. Beth Bloom entered an order in the lawsuit styled A&M
GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of
itself and all others similarly situated v. GEICO GENERAL
INSURANCE COMPANY, Case No. 0:16-cv-62610-BB (S.D. Fla.):
-- granting the Plaintiff's motion for class certification
certifying this class:
All health care providers that received an assignment of
benefits from a claimant and thereafter, pursuant to that
assignment, submitted claims for no-fault benefits under
GEICO PIP policies to which Endorsement FLPIP (01-13)
applies, and any subsequent policies with substantially
similar language that were in effect since January 1, 2013,
where GEICO utilized the Code BA with respect to the
payment of any claims.
-- appointing Plaintiff A&M Gerber Chiropractic LLC, a/a/o
Conor Carruthers, as Class Representative; and
-- appointing the Plaintiff's counsel, Todd Payne, Esq., and
Edward Zebersky, Esq., of Zebersky Payne LLP and Steven R.
Jaffe, Esq., and Mark S. Fistos, Esq., of Farmer, Jaffe,
Weissing, Edwards, Fistos & Lehrman, P.L., as Class
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=n7XQzoB5
General Cable Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 4, 2017, for the
quarterly period ended March 31, 2017, that the Company is
defending against a class action alleging violations of the
Employee Retirement Income Security Act.
The Company said, "On March 15, 2017, litigation was initiated
against us and certain of our current and former directors,
executive officers and employees by a former employee on behalf of
a purported class of employees who invested in the common stock of
General Cable through our 401(k) plan. The Plaintiff alleges that
we should have not retained the General Cable stock fund as an
investment option in our 401(k) plan during the period 2003-2016,
when they claim the price of the Company stock was artificially
inflated. The suit alleges various violations of the Employee
Retirement Income Security Act of 1974 ("ERISA") and was filed in
Kentucky. At this early stage in the litigation, we cannot
determine the likelihood of, nor can we reasonably estimate the
range of, any possible loss."
The Company is a global leader in the development, design,
manufacture, marketing and distribution of copper, aluminum and
fiber optic wire and cable products for use in the energy,
industrial, construction, specialty and communications markets.
The case captioned, Doshi v. General Cable Corporation et al.,
Case No. 2:17-cv-00025 (E.D. Ky.), is underway and on June 7,
Magistrate Judge Candace J. Smith entered an order granting a
Motion for Lawrence D. Levit to appear pro hac vice on behalf of
Plaintiff Employees Retirement System of the Puerto Rico Electric
Power Authority.
quarterly period ended March 31, 2017, that the Company has not
responded on the Doshi Complaint.
The Company said, "A civil complaint was filed in the United
States District Court for the Southern District of New York on
January 5, 2017, by named plaintiffs, on behalf of purported
classes of persons who purchased or otherwise acquired our
publicly traded securities, against us, Gregory Kenny, our former
President and Chief Executive Officer, and Brian Robinson, our
former Executive Vice President and Chief Financial Officer (the
"Doshi Complaint"). The parties have stipulated to the transfer of
the matter to the Eastern District of Kentucky, which has been
approved. The Doshi Complaint alleges claims under the antifraud
and controlling person liability provisions of the Exchange Act,
alleging generally, among other assertions, that the defendants
made materially false and misleading statements in various
quarterly and annual reports filed with the SEC between February
2012 and February 2016. Plaintiffs claim that the Corporation
failed to disclose during that period that it had paid bribes in
violation of the FCPA, failed to disclose that a portion of its
profits were subject to disgorgement, and failed to disclose that
when this conduct was discovered it would subject the Corporation
to significant monetary penalties. The Doshi Complaint alleges
that as a result of the foregoing, our stock price was
artificially inflated and the plaintiffs suffered damages in
connection with their purchase of our stock. The Doshi Complaint
seeks damages in an unspecified amount; reasonable costs and
expenses, including counsel and experts fees; and such equitable
injunctive or other relief as the Court deems just and proper."
"We have not yet responded to the Complaint. At this early stage
in the litigation, we cannot determine the likelihood of, nor can
we reasonably estimate the range of, any possible loss."
General Cable Corporation is represented in the case by:
Jason H. Wilson, Esq.
Marc J. Sonnenfeld, Esq.
Karen Pieslak Pohlmann, Esq.
Laura Hughes McNally, Esq.
E-mail: jason.wilson@morganlewis.com
marc.sonnenfeld@morganlewis.com
karen.pohlmann@morganlewis.com
lauramcnally@morganlewis.com
Bernard J. Garbutt, III, Esq.
E-mail: bernard.garbutt@morganlewis.com
David F. Fessler, Esq.
Fessler, Schneider & Grimme
14 N Grand Ave
Fort Thomas, KY 41075
Amrit Raj, writing for Livemint, reports that peeved by a
compensation offer that they say is arbitrary in nature, some of
General Motors India Pvt. Ltd's dealers plan to initiate legal
action against the company and its subsidiary Chevrolet Sales
India Pvt. Ltd (CSIPL), even as the US company starts the process
of exiting the country.
The dealers, as a group, have hired law firm Cyril Amarchand
Mangaldas to explore legal options, at least three company dealers
said on condition of anonymity.
The law firm declined to comment.
Some dealers, especially those that opened showrooms in the recent
months, also plan to file cases against the company.
The Federation of Automobile Dealers Associations (Fada), a lobby
group, will also file a representative class action against the
company, the three dealers added.
Some 70 dealers are also expected to visit GM's headquarters in
the US, they said.
GM's one-on-one talks with its dealers end on 7 June and the
dealers say more concrete action will take shape after that.
"The compensation package (on offer) has a lot of riders, which
are very uncomfortable. But there will be some small dealers who
do not have (the) wherewithal to fight and may accept GM's offer,"
said one of the three dealers.
". . . there will be some who opt for arbitration as there is a
clause for that. Some will also opt to file criminal and civil
cases," a second dealer said.
A GM India spokesperson said that the company has a strong
"partnership" with its dealers and is "working with them to
provide appropriate support through this transition".
"Our dealers are important partners in implementing our transition
plan, which is focused on providing continuity and peace of mind
for our customers."
For instance, the company could facilitate the transition of some
dealerships to "authorized service outlets" and it will "recognize
some of the investments made in dealerships", the spokesperson
said, adding that these discussions are "confidential, and it
would not be appropriate to discuss them publicly".
GM's dealers in India allege that the company kept them in the
dark even as it prepared a plan to exit the country. In November,
the company renewed contracts with its dealers for one year as
against a norm of three years.
In an email addressed to Fada on 21 May, GM India dealers advisory
body claimed that General Motors was "cheating and fooling all
their dealers".
"Time and again we were assured that General Motors is working
towards 10% market share and is developing a new product range for
India. We have been made to invest on commitments that we would
have a good future with General Motors," it said in the email.
The email further claimed the dealers were shown future models on
several occasions and assured that GM would invest "heavily to
revive its operations in India".
These dealers say they were assured that the company would launch
10 new products in India.
"We all are stuck with huge unsaleable stock of cars, which will
be difficult to liquidate as, till date, there is no additional
support from company, and financers will be reluctant in financing
cars which they know will have zero resale value," they said.
Fada took up the issue with General Motors but to no avail.
Responding to an email from Fada that sought the same parameters
of settlement across the dealership network, the company's
managing director Kaher Kazem wrote on 26 May that CSIPL had an
independent relationship under the retailer agreements with each
retailer and that the company would continue to work directly with
them to resolve the issues.
"We are engaging directly with each of our retail partners and
sharing with them our proposed transition plan. These discussions
are confidential between the retailer and CSIPL," he wrote.
The dealer advisory body said in the email to Fada that it has no
trust in GM. [GN]
Melissa Busch, writing for Legal Newsline, reports that General
Nutrition Corp. wants a class action lawsuit filed by an Illinois
consumer, alleging fraud and negligent misrepresentation over an
aloe vera product, dismissed.
On May 1, GNC submitted a memorandum in support of its motion to
dismiss the class action complaint filed by Thera Lambert of
Crete, Illinois, in the U.S. District Court for the Northern
District of Illinois, Eastern Division.
GNC is requesting the suit be dismissed for lack of standing to
assert claims under the laws of any jurisdiction other than the
state where the alleged purchase occurred and for failure to state
a claim upon which relief can be granted, according to court
On March 21, Ms. Lambert filed a suit against GNC, alleging false
claims regarding the actual ingredient used for its products.
She contends that labels on bottles of GNC's product, Aloe Vera
Skin Gel, are allegedly misleading because they state that the
product is "99 percent Aloe Vera Gel" and because they list aloe
barbadensis leaf juice as an ingredient. Lambert claims this is
untrue.
Ms. Lambert asserts only that tests performed at the request of
her counsel show that a bottle of the product -- a bottle that she
did not buy -- may or may not establish that the product was not
"99 percent Aloe Vera Gel" or made with aloe barbadensis leaf
juice.
GNC argues that Lambert bases her claim against GNC on tests
performed by undisclosed individuals on a bottle of the product
using undisclosed methods that allegedly show that the product
does not contain "acemannan." Ms. Lambert describes acemannan as
"a key aloe vera chemical component."
Based on these allegations, Lambert asserts claims for breach of
express warranty, breach of implied warranty, violation of state
consumer protection statutes of five states, and for violation of
the Illinois Consumer Fraud and Deceptive Business Practices Act.
GNC argues that there are not factual allegations establishing
that results of an HNMR test, which was performed by Lambert's
attorneys, will always show that a product that is "made with"
aloe vera or uses aloe barbadensis leaf juice as a raw ingredient
contains acemannan in the end product, according to court
GNC states Ms. Lambert alleges that it is possible for product
manufacturers to use aloe vera to make aloe vera gel but still
have "little or no acemannan" in the final product.
"Thus, plaintiff's allegation regarding the alleged absence of
acemannan does not plausibly render defendant's representations
false," according to GNC's memorandum.
Furthermore, GNC claims Ms. Lambert's allegations don't establish
that aloe vera and aloe barbadensis leaf juice were not
ingredients used to make the product or that her attorneys tested
any "chemical entity or mixture used as a component in the
manufacture of" the product.
Since the plaintiff has not alleged a representation that is false
or misleading, Ms. Lambert fails to state a claim for violation of
the ICFA, according to the company. [GN]
The GEO Group, Inc. said in its Form 10-Q Report filed with the
quarterly period ended March 31, 2017, that a purported
shareholder class action lawsuit in Florida has been dismissed
with prejudice and resulted in no liability to the Company.
On August 25, 2016, a purported shareholder class action lawsuit
was filed against the Company, its Chief Executive Officer, George
C. Zoley ("Mr. Zoley"), and its Chief Financial Officer, Brian R.
Evans ("Mr. Evans"), in the United States District Court for the
Southern District of Florida. The complaint alleged that the
Company and Messrs. Zoley and Evans made false and misleading
statements regarding the Company's business, operational and
compliance policies. The lawsuit alleged that it was brought by
John J. Mulvaney individually and on behalf of a class consisting
of all persons other than the defendants who purchased or
otherwise acquired the Company's securities during the alleged
class period between March 1, 2012 through and including August
17, 2016. The complaint alleged that the Company and Messrs. Zoley
and Evans violated Section 10(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and Rule 10b-5 promulgated
thereunder, and alleged that Messrs. Zoley and Evans violated
Section 20(a) of the Exchange Act.
On December 21, 2016, the appointed lead plaintiffs filed an
Amended Class Action Complaint, which reasserted the claims
against the Company and Messrs. Zoley and Evans, and asserted new
claims for alleged false and misleading statements in violation of
Section 20(a) of the Exchange Act against the Company's former
Senior Vice President, GEO Detention & Corrections Services, John
Hurley ("Mr. Hurley") and the Company's Senior Vice President and
President, GEO Corrections & Detention, David Donahue ("Mr.
Donahue"). The amended complaint sought damages, interest,
attorneys' fees, expert fees, other costs, and such other relief
as the court may deem proper.
On February 23, 2017, the Court entered an order granting the
Company's motion to dismiss the Amended Class Action Complaint. On
March 17, 2017, the case was dismissed with prejudice and resulted
in no liability to the Company.
The GEO Group, Inc., a Florida corporation, and subsidiaries is a
fully-integrated real estate investment trust ("REIT")
specializing in the ownership, leasing and management of
correctional, detention and reentry facilities and the provision
of community-based services and youth services in the United
States, Australia, South Africa and the United Kingdom. The
Company owns, leases and operates a broad range of correctional
and detention facilities including maximum, medium and minimum
security prisons, immigration detention centers, minimum security
detention centers, as well as community based reentry facilities
and offers an expanded delivery of offender rehabilitation
services under its 'GEO Continuum of Care' platform.
quarterly period ended March 31, 2017, that fact discovery in a
Colorado class action case has not yet begun.
On October 22, 2014, nine current and former civil immigration
detainees who were detained at the Aurora Immigration Detention
Center filed a purported class action lawsuit against the Company
in the United States District Court for the District of Colorado
(the "Court"). The complaint alleged that the Company was in
violation of the Colorado Minimum Wages of Workers Act and the
Trafficking Victims Protection Act, and claimed that the Company
was unjustly enriched as a result of the level of payment that the
detainees received for work performed at the facility, even though
the voluntary work program as well as the wage rates and standards
associated with the program that are at issue in this case are
authorized by the Federal government under guidelines approved by
the United States Congress.
On July 6, 2015, the Court granted the Company's motion to dismiss
the claim against the Company under the Colorado Minimum Wages of
Workers Act and otherwise denied the Company's motion to dismiss.
On February 27, 2017, the Court granted the plaintiffs' motion for
class certification. The Court ordered the parties to file a
revised Proposed Stipulated Scheduling and Discovery Order by
March 27, 2017 to proceed with the case.
On March 13, 2017, GEO filed for permission to appeal this class
certification order directly to the 10th Circuit Court of Appeal.
On April 11, 2017, the 10th Circuit Court of Appeal granted GEO's
petition to hear the case. As a result, GEO has filed a motion to
stay the proceedings in the trial court. Fact discovery in the
case has not yet begun.
The plaintiffs seek actual damages, compensatory damages,
exemplary damages, punitive damages, restitution, attorneys' fees
and costs, and such other relief as the Court may deem proper.
The Company intends to take all necessary steps to vigorously
defend itself and has consistently refuted the allegations and
claims in the lawsuit. The Company has not recorded an accrual
relating to this matter at this time, as a loss is not considered
probable nor reasonably estimable at this state of the lawsuit. If
the Company had to change the level of compensation under the
voluntary work program, or to substitute employee work for
voluntary work, this could increase costs of operating these
facilities.
Eric Kroh, writing for Law360, reports that the Third Circuit was
set to hear oral arguments over whether the state of Louisiana can
be bound to an antitrust class action settlement involving Flonase
nasal spray, in a case that could upend settlements in which
states are class members.
The appeals court's three-judge panel would mull if a federal
court has jurisdiction to make Louisiana abide by an agreement
GlaxoSmithKline reached with a class of indirect purchasers to
resolve claims that the company had stymied generic competition
for Flonase or whether, as the district court ruled, doing so
would violate the state's sovereign immunity.
GSK would argue that accepting the lower court's decision would
allow states to sidestep the binding consequences of class action
agreements, and defendants in class actions in which states are
potential class members could never be certain that they would not
face settled claims anew. Louisiana, meanwhile, would maintain
that upholding sovereign immunity in the case would not prevent
defendants from enforcing settlements.
According to Jarod M. Bona -- jarod.bona@bonalawpc.com -- of Bona
Law PC, if the district court's ruling were upheld, it would grant
states an unjustified advantage in the marketplace because they
could decline to opt out of class action settlements and reserve
the right to sue later.
"In a settlement, what you're doing is buying peace," Bona said.
"If the lower court's decision is allowed to stand, the ability to
buy peace in many cases is gone."
The case stems from a $35 million settlement in a Pennsylvania
federal court reached in 2012 between GSK and third-party buyers
of Flonase and its generics over allegations that the purchasers
had overpaid for the nasal spray because the company had abused
the U.S. Food and Drug Administration's citizens petition process
to delay entry of lower-cost alternatives.
According to court documents, the class excluded states unless
they purchased Flonase for their employees or others covered by a
government health plan. In compliance with the Class Action
Fairness Act, GSK sent a notice to the attorneys general of every
state, including Louisiana, in December 2012 informing them of the
In December 2014, Louisiana brought an antitrust action against
GSK in state court over the claims, and the company asked the
Pennsylvania federal court to enforce the settlement by enjoining
Louisiana from pursuing some of the state claims on the grounds
that the state was bound by the earlier settlement and could not
relitigate them.
U.S. District Judge Anita B. Brody dismissed GSK's request in
2015, saying the court lacked jurisdiction because binding
Louisiana to the settlement would violate the state's sovereign
immunity, which had not been waived. GSK then asked the Third
Circuit for review.
On appeal, GSK argued that Judge Brody's ruling was based on a
"radical new theory of sovereign immunity under which the Eleventh
Amendment is an escape hatch for states to avoid being bound by a
classwide settlement that covered them as absent class members."
Sovereign immunity shields a state from defending against a
lawsuit but not from being bound to a settlement as an absent
plaintiff member, GSK said. Judge Brody's approach, which the
company said ran against the precedent of the U.S. Supreme Court
and other circuit courts, would invite gamesmanship by states and
result in companies facing the prospect of defending themselves
against claims they thought had long been dispensed with, GSK
argued.
Louisiana waived its sovereign immunity by declining to opt out of
the settlement, GSK maintained. The CAFA notice that was sent to
the state's attorney general was sufficient to inform the state
that it was included in the class, and if it did not opt out, it
would consent to the settlement, the company argued.
GSK also said it had uncovered newly discovered evidence that was
improperly ignored by the district court that may have showed that
Louisiana had received money from the settlement fund, contrary to
the state's claims.
The pharmaceutical company was backed in its appeal by groups
including the National Association of Manufacturers and the U.S.
Chamber of Commerce, which said in separate amicus briefs that
allowing Judge Brody's decision to stand would undermine class
action settlements and the integrity of the judicial system.
Louisiana, for its part, has contended that the district court
correctly held that sovereign immunity had precluded it from being
bound to the settlement. Though the 11th Amendment on its face
only bars lawsuits against a state, the Supreme Court has
repeatedly held that sovereign immunity extends beyond a literal
reading of the text, the state said.
Louisiana also never consented to the indirect purchaser
settlement, it said. The CAFA notice it received pertained to
Louisiana citizens, not the state itself, and Louisiana never got
a so-called short-form notice that should have been sent to each
absent class member, it said.
As for GSK's purported newly discovered evidence, it consists of
nothing more than a document listing some claims submitted by
Humana Inc. to the claims administrator that includes "State of
Louisiana" in one of the columns, the state said. GSK did not
explain the meaning of the document, and it therefore doesn't even
qualify as evidence, Louisiana said.
GSK's warnings that the "sky will fall" and settlements will
become meaningless if Judge Brody's ruling is allowed to stand are
also out of line, Louisiana said. Under her reasoning, defendants
in class actions can still negotiate individually with states and
can still attempt to rebut their claims in state courts, it said.
"In sum, it is both unnecessary and inappropriate for the federal
courts to interfere with the pending state court litigation,"
Louisiana said. "While GSK and other class defendants might find
the states' sovereign immunity irksome, that is no reason to carve
out a new exception to a long-settled rule: The federal courts
cannot assert jurisdiction over sovereign states without their
consent."
Louisiana and the district court's reasonings go against recent
trends at the Supreme Court, in which the panel has looked askance
at granting government entities that participate in markets an
advantage over others, Bona said.
In 2015, for example, the high court ruled that a North Carolina
state dental board controlled by participants in the market was
not immune from an antitrust action by the Federal Trade
Commission because the board was not actively supervised by the
state, he said.
Should the Third Circuit uphold the district court's decision in
the Flonase case, it could raise a red flag among the high court
justices, Bona said.
"If the Third Circuit decides in favor of Louisiana, the Supreme
Court may be compelled to accept cert," he said.
The case is In re: Flonase Antitrust Litigation, case number 16-
3019, in the U.S. Court of Appeals for the Third Circuit. [GN]
the quarterly period ended March 31, 2017, that Goldman Sachs &
Co. LLC, formerly Goldman, Sachs & Co. (GS&Co.) and Group Inc. are
among the defendants named in a putative class action filed in the
U.S. District Court for the Southern District of New York on
September 26, 2016, on behalf of putative indirect purchasers of
foreign exchange instruments.
The amended complaint, filed on March 24, 2017, generally alleges
a conspiracy to manipulate the foreign currency exchange markets
and asserts claims under federal and state antitrust laws and
state consumer protection laws and seeks injunctive relief, as
well as treble damages in an unspecified amount.
Co. LLC, formerly Goldman, Sachs & Co. (GS&Co.), is among the
underwriters named as defendants in several putative securities
class actions, filed beginning in October 2016 in the U.S.
District Court for the Eastern District of Texas. In addition to
the underwriters, the defendants include Adeptus Health Inc.
(Adeptus), its sponsor, and certain directors and officers of
Adeptus.
As to the underwriters, the complaints generally allege
misstatements and omissions in connection with the $124 million
June 2014 initial public offering, the $154 million May 2015
secondary equity offering, the $411 million July 2015 secondary
equity offering, and the $175 million June 2016 secondary equity
offering. The complaints assert claims under the federal
securities laws and seek, among other things, unspecified monetary
damages.
GS&Co. underwrote 1.69 million shares of common stock in the June
2014 initial public offering representing an aggregate offering
price of approximately $37 million, 962,378 shares of common stock
in the May 2015 offering representing an aggregate offering price
of approximately $61 million, 1.76 million shares of common stock
in the July 2015 offering representing an aggregate offering price
of approximately $184 million, and all the shares of common stock
in the June 2016 offering representing an aggregate offering price
of approximately $175 million.
On April 19, 2017, Adeptus filed for Chapter 11 bankruptcy.
the quarterly period ended March 31, 2017, that in the TerraForm
Global and SunEdison Securities Litigation, certain plaintiffs
filed a second amended complaint relating to SunEdison's
convertible preferred stock offering.
Goldman Sachs & Co. LLC, formerly Goldman, Sachs & Co. (GS&Co.) is
among the underwriters, placement agents and initial purchasers
named as defendants in several putative class actions and
individual actions filed beginning in October 2015 relating to the
$675 million July 2015 initial public offering of the common stock
of TerraForm Global, Inc. (TerraForm Global), the August 2015
public offering of $650 million of SunEdison convertible preferred
stock, the June 2015 private placement of $335 million of
TerraForm Global Class D units, and the August 2015 Rule 144A
offering of $810 million principal amount of TerraForm Global
senior notes. SunEdison is TerraForm Global's controlling
shareholder and sponsor.
Beginning in October 2016, the pending cases were transferred to
the U.S. District Court for the Southern District of New York.
On January 16, 2017, certain plaintiffs filed a consolidated
amended complaint relating to TerraForm Global's initial public
offering, and, on March 17, 2017, certain plaintiffs filed a
second amended complaint relating to SunEdison's convertible
preferred stock offering.
The defendants also include TerraForm Global, SunEdison and
certain of their directors and officers. The complaints generally
allege misstatements and omissions in connection with the
offerings, assert claims under federal securities laws and, in
certain actions, state laws, and seek compensatory damages in an
unspecified amount, as well as rescission or rescissory damages.
TerraForm Global sold 154,800 Class D units, representing an
aggregate offering price of approximately $155 million, to the
individual plaintiffs. GS&Co., as underwriter, sold 138,890 shares
of SunEdison convertible preferred stock in the offering,
million and sold 2,340,000 shares of TerraForm Global common stock
in the initial public offering representing an aggregate offering
price of approximately $35 million. GS&Co., as initial purchaser,
sold approximately $49 million principal amount of TerraForm
Global senior notes in the Rule 144A offering. On April 21, 2016,
SunEdison filed for Chapter 11 bankruptcy.
the quarterly period ended March 31, 2017, that Defendants' motion
to dismiss the second consolidated amended complaint in the
Interest Rate Swap Antitrust Litigation remains pending.
Group Inc., Goldman Sachs & Co. LLC, formerly Goldman, Sachs & Co.
(GS&Co.), Goldman Sachs International (GSI), GS Bank USA and
Goldman Sachs Financial Markets, L.P. (GSFM) are among the
defendants named in putative antitrust class actions relating to
the trading of interest rate swaps, filed beginning in November
2015 and consolidated in the U.S. District Court for the Southern
District of New York. The second consolidated amended complaint
filed on December 9, 2016 generally alleges a conspiracy among the
defendants since at least January 1, 2007 to preclude exchange
trading of interest rate swaps. The complaint seeks declaratory
and injunctive relief, as well as treble damages in an unspecified
amount. Defendants moved to dismiss on January 20, 2017.
Goldman Sachs Financial Markets, L.P. (GSFM) are also among the
defendants named in antitrust actions relating to the trading of
interest rate swaps filed in the U.S. District Court for the
Southern District of New York beginning in April 2016 by two
operators of swap execution facilities and certain of their
affiliates. These actions have been consolidated with the class
action described above for pretrial proceedings. The second
consolidated amended complaint filed on December 9, 2016 generally
asserts claims under federal and state antitrust laws and state
common law in connection with an alleged conspiracy among the
defendants to preclude trading of interest rate swaps on the
plaintiffs' respective swap execution facilities and seeks
declaratory and injunctive relief, as well as treble damages in an
unspecified amount. Defendants moved to dismiss on January 20,
No further updates were provided in the Company's SEC report.
the quarterly period ended March 31, 2017, that the district court
has dismissed the antitrust claims in the Commodities-Related
Litigation but permitted certain of the Commodity Exchange Act
claims to proceed against certain defendants, including GSI.
Goldman Sachs International (GSI) is among the defendants named in
putative class actions relating to trading in platinum and
palladium, filed beginning on November 25, 2014 and most recently
amended on July 27, 2015, in the U.S. District Court for the
Southern District of New York. The complaints generally allege
that the defendants violated federal antitrust laws and the
Commodity Exchange Act in connection with an alleged conspiracy to
manipulate a benchmark for physical platinum and palladium prices
and seek declaratory and injunctive relief, as well as treble
damages in an unspecified amount.
On March 28, 2017, the district court dismissed the antitrust
claims but permitted certain of the Commodity Exchange Act claims
to proceed against certain defendants, including GSI.
has denied defendants' motion to dismiss the claims in the
employment-related class action.
On September 15, 2010, a putative class action was filed in the
U.S. District Court for the Southern District of New York by three
female former employees alleging that Group Inc. and Goldman Sachs
& Co. LLC, formerly Goldman, Sachs & Co. (GS&Co.), have
systematically discriminated against female employees in respect
of compensation, promotion, assignments, mentoring and performance
evaluations. The complaint alleges a class consisting of all
female employees employed at specified levels in specified areas
by Group Inc. and GS&Co. since July 2002, and asserts claims under
federal and New York City discrimination laws. The complaint seeks
class action status, injunctive relief and unspecified amounts of
compensatory, punitive and other damages.
On July 17, 2012, the district court issued a decision granting in
part Group Inc.'s and GS&Co.'s motion to strike certain of
plaintiffs' class allegations on the ground that plaintiffs lacked
standing to pursue certain equitable remedies and denying Group
Inc.'s and GS&Co.'s motion to strike plaintiffs' class allegations
in their entirety as premature.
On March 21, 2013, the U.S. Court of Appeals for the Second
Circuit held that arbitration should be compelled with one of the
named plaintiffs, who as a managing director was a party to an
arbitration agreement with the firm.
On March 10, 2015, the magistrate judge to whom the district judge
assigned the remaining plaintiffs' May 2014 motion for class
certification recommended that the motion be denied in all
respects. On August 3, 2015, the magistrate judge denied
plaintiffs' motion for reconsideration of that recommendation and
granted the plaintiffs' motion to intervene two female
individuals, one of whom was employed by the firm as of September
2010 and the other of whom ceased to be an employee of the firm
subsequent to the magistrate judge's decision.
On June 6, 2016, the district court affirmed the magistrate
judge's decision on intervention. On April 12, 2017, the district
court denied defendants' motion to dismiss the claims of the
intervenors for lack of standing and mootness.
Co. LLC, formerly Goldman, Sachs & Co. (GS&Co.) is among the
primary dealers named as defendants in several putative class
actions relating to the market for U.S. Treasury securities, filed
beginning in July 2015 and consolidated in the U.S. District Court
for the Southern District of New York. The complaints generally
allege that the defendants violated the federal antitrust laws and
the Commodity Exchange Act in connection with an alleged
conspiracy to manipulate the when-issued market and auctions for
U.S. Treasury securities, as well as related futures and options,
and seek declaratory and injunctive relief, treble damages in an
unspecified amount and restitution.
The Hanover Insurance Group, Inc. said in its Form 10-Q Report
for the quarterly period ended March 31, 2017, that the summary
judgment motion in the Durand Litigation has been stayed pending
additional discovery.
On March 12, 2007, a putative class action suit captioned Jennifer
A. Durand v. The Hanover Insurance Group, Inc., and The Allmerica
Financial Cash Balance Pension Plan, was filed in the United
States District Court for the Western District of Kentucky. The
named plaintiff, a former employee of our former life insurance
and annuity business who received a lump sum distribution from the
Company's Cash Balance Plan (the "Plan") at or about the time of
her separation from the company, claims that she and others
similarly situated did not receive the appropriate lump sum
distribution because in computing the lump sum, the Company and
the Plan understated the accrued benefit in the calculation. The
plaintiff claims that the Plan underpaid her distributions and
those of similarly situated participants by failing to pay an
additional so-called "whipsaw" amount reflecting the present value
of an estimate of future interest credits from the date of the
lump sum distribution to each participant's retirement age of 65
("whipsaw claim").
The plaintiff filed an Amended Complaint adding two new named
plaintiffs and additional claims on December 11, 2009. Two of the
three new claims set forth in the Amended Complaint were dismissed
by the District Court, which action was upheld in November 2015 by
the U.S. Court of Appeals, Sixth Circuit. The District Court,
however, did allow to stand the portion of the Amended Complaint
which set forth claims against the Company for breach of fiduciary
duty and failure to meet notice requirements arising under the
Employee Retirement Income Security Act of 1974 ("ERISA") from the
various interest crediting and lump sum distribution matters of
which plaintiffs complain, but only as to plaintiffs' "whipsaw"
claim that remained in the case.
On December 17, 2013, the Court entered an order certifying a
class to bring "whipsaw" and related breach of fiduciary duty
claims consisting of all persons who received a lump sum
distribution between March 1, 1997 and December 31, 2003. The
Company filed a summary judgment motion that was based on the
statute of limitations and seeks to dismiss the subclass of
plaintiffs who received lump sum distributions prior to March 13,
2002. This summary judgment motion has been stayed pending
At this time, the Company is unable to provide a reasonable
estimate of the potential range of ultimate liability if the
outcome of the suit is unfavorable. The statute of limitations
applicable to the sub-class consisting of all persons who received
lump sum distributions between March 1, 1997 and March 12, 2002
has not yet been finally determined, and the extent of potential
liability, if any, will depend on this determination. In addition,
assuming for these purposes that the plaintiffs prevail with
respect to claims that benefits accrued or payable under the Plan
were understated, then there are numerous possible theories and
other variables upon which any revised calculation of benefits as
requested under plaintiffs' claims could be based. Any adverse
judgment in this case against the Plan would be expected to create
a liability for the Plan, with resulting effects on the Plan's
assets available to pay benefits. The Company's future required
funding of the Plan could also be impacted by such a liability.
Hanover Insurance's business operations consist of four operating
segments: Commercial Lines, Personal Lines, Chaucer and Other.
The Hon. Thomas M. Rose grants the motion for conditional
certification and court-supervised notice filed by the Plaintiffs
of the lawsuit captioned PAMELA RODKEY and CHERIE CUMMINGS, on
behalf of themselves and all other similarly situated employees
nationwide, and on behalf of the Ohio and Oregon Classes v. HARRY
AND DAVID, LLC, 1-800-FLOWERS SERVICE SUPPORT CENTER, INC., and
DOES 1-20, INCLUSIVE, Case No. 3:16-cv-00311-TMR (S.D. Ohio).
The Class consists of:
All nonexempt employees who were employed by Defendants and
paid overtime and incentive pay, commissions and/or other
bonuses, within the past three years preceding the Complaint
filing date.
In their complaint, the Plaintiffs allege that they were denied
compensation that they were entitled to under the Fair Labor
Standards Act due to the Defendants' policy and practice of
excluding incentive pay, commissions, and bonuses in calculating
nonexempt employees' overtime compensation.
Judge Rose also approves the proposed Notice, as revised to
reflect the Court's rulings on the Defendants' objections.
http://d.classactionreporternewsletter.com/u?f=SlwtejCm
Mary Beth Quirk, writing for Consumerist, reports that
Jessica Alba's The Honest Company has agreed to pay $1.55 million
to resolve a class-action lawsuit that accused the brand of using
sodium lauryl sulfate (SLS) in its products -- an organic chemical
derived from coconut oil and found in common items like laundry
detergent and toothpaste -- despite the fact that the company had
pledged not to include that ingredient.
The proposed settlement will settle class-action claims that
accused Honest of misleading customers by claiming that its
products didn't contain SLS, which can be a skin irritant, though
it was using a "gentler" component of the chemical, sodium coco
sulfate (SCS).
After a March 2016 report in The Wall Street Journal claimed that
Honest Co.'s detergent used SLS, consumers filed six different
complaints against the company. In August, a judge ordered those
cases to be combined [PDF].
Under the proposed settlement -- which has a July 24 hearing date
to consider preliminary approval -- consumers will be able to
apply for refunds or credits on Honest's website for up to $50
without proofs of purchase, and larger amounts if they have
receipts. Honest.com credits will be valued at 1.5 times the
dollar recovery amount.
The agreement would also prevent Honest from marketing any
products that contain SCS as being free of SLS.
"This non-monetary relief directly addresses the allegations in
this lawsuit and ensures that consumers will be able to make more
informed purchasing decisions regarding the Products," the
proposed settlement agrees.
Honest Co. has not admitted any wrongdoing with the proposed plan,
but has agreed to reformulate its products and this time, skip
both ingredients entirely.
"We vigorously deny any and all allegations alleged in the lawsuit
-- specifically that any of our cleaning products contain SLS," a
spokesperson for Honest Co. told Consumerist. "However, given the
fact that continued litigation could be protracted and expensive,
we have settled this lawsuit to limit further costs and
distraction to our business. We stand behind the safety and
effectiveness of our products and the responsibility we have to
our consumers, and are gratified by the loyalty of both our
customers and retail partners." [GN]
HSBC USA Inc. said in its Form 10-Q Report filed with the
quarterly period ended March 31, 2017, that in April 2017, HSBC
Holdings, HSBC Bank plc, HSI and HSBC Bank USA, among other banks,
were named as defendants in a putative class action complaint
alleging a conspiracy to manipulate the market for U.S. dollar-
denominated Supranational, Sovereign and Agency ("SSA") Bonds
between 2005 to the present in violation of the federal antitrust
laws. This action is at an early stage.
HSBC USA Inc., incorporated under the laws of Maryland, is a New
York State based bank holding company and a wholly-owned
subsidiary of HSBC North America Holdings Inc., which is an
indirect wholly-owned subsidiary of HSBC Holdings plc.
quarterly period ended March 31, 2017, that in March 2017, the
putative class action Monteleone v. HSBC Finance Corporation, et
al. was dismissed and consolidated with another putative class
action pending in the U.S. District Court for the Central District
of California and an amended complaint has been filed. Ahmed and
Monteleone v. HSBC Bank USA, National Association (Case 5:16-cv-
02057). The consolidated action alleges that the defendants
contacted plaintiffs, or the members of the class that they seek
to represent, on their cellular telephones using an automatic
telephone dialing system or an artificial or prerecorded voice,
without prior express consent or despite revocation of prior
consent, in violation of the Telephone Consumer Protection Act, 47
U.S.C. Sec.227 et seq. Plaintiffs seeks statutory damages of up to
$1,500 for each violation.
quarterly period ended March 31, 2017, that Defendants' motion to
dismiss the second amended consolidated complaint in the Platinum
and Palladium Fix Litigation was granted in part and denied in
part in March 2017.
Girard Gibbs LLP is investigating potential claims on behalf of
investors in Jagged Peak Energy regarding allegations that the
company may have issued materially misleading statements regarding
its business prospects to the investing public at the time of the
company's IPO. A class action lawsuit was recently filed alleging
violations of federal securities laws.
On January 27, 2017, Jagged Peak Energy conducted its initial
public offering, selling $31,599,334 shares at a price of $15.00
per share. The offering raised approximately $474 million in
gross proceeds for the company. Since then, shares of Jagged Peak
Energy have dropped more than 15%, causing significant harm to
investors.
The complaint alleges that Jagged Peak Energy failed to disclose
in its offering documents the risks of its acreage, specifically
that many of its wells were positioned in an area where
extractability had not been tested and therefore there was
significant risk that its wells would produce less than other
wells in the Southern Delaware Basin.
If you purchased Jagged Peak Energy shares and would like to speak
privately with a securities attorney to contribute to or learn
more about the investigation, visit our website or contact the
securities team directly at (800) 254-9493.
Girard Gibbs LLP is one of the nation's leading firms representing
individual and institutional investors in securities litigation to
correct abusive corporate governance practices, breaches of
fiduciary duty, and proxy violations. The firm has recovered over
a billion dollars for its clients against some of the world's
largest corporations, and has earned Tier-1 rankings and been
named in the U.S. Lawyers - Best Law Firms list for five
consecutive years. [GN]
The case captioned Oklahoma Police Pension and Retirement System,
individually and on behalf of all others similarly situated,
Plaintiff, v. Jagged Peak Energy Inc., Joseph N. Jaggers, Robert
W. Howard, Shonn D. Stahlecker, Charles D. Davidson, S. Wil
Vanloh, Jr., Blake A. Webster, Citigroup Global Markets Inc.,
Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC,
Goldman, Sachs & Co., RBC Capital Markets, LLC, Wells Fargo
Securities, LLC, UBS Securities LLC, Keybanc Capital Markets,
Inc., ABN AMRO Securities (USA) LLC, Fifth Third Securities, Inc,
Petrie Partners Securities, LLC, Tudor, Pickering, Holt & Co
Securities, Inc., BMO Capital Markets Corp., Deutsche Bank
Securities Inc., Evercore Group L.L.C. and Scotia Capital (USA)
Inc., Defendants, Case No. 2017-CV-31757 (Colo. Dist., May 12,
2017), was removed to the United States District Court for the
District of Colorado on June 2, 2017 under Case No. 1:17-cv-01346.
Plaintiff alleges Defendants violated Sections 11, 12(a)(2), and
15 of the Securities Act of 1933 in connection with an initial
public offering of Jagged Peak securities.
Rusty E. Glenn, Esq.
THE SHUMAN LAW FIRM
600 17th Street, Suite 2800 South
Email: rusty@shumanlawfirm.com
Kip B. Shuman, Esq.
Post-Montgomery Ctr.
One Montgomery Street, Ste. 1800
Email: kip@shumanlawfirm.com
Thomas L. Laughlin IV, Esq.
Donald A. Broggi, Esq.
Rhiana L. Swartz, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
The Helmsley Building
230 Park Ave., 17th Floor
Email: tlaughlin@scott-scott.com
dbroggi@scott-scott.com
rswartz@scott-scott.com
Defendants are represented by:
Andrew R. Shoemaker, Esq.
SHOEMAKER GHISELLI + SCHWARTZ LLC
1811 Pearl Street
Email: ashoemaker@sgslitigation.com
Michael Holmes, Esq.
Andy Jackson, Esq.
George Padis, Esq.
VINSON &ELKINS LLP
2001 Ross Avenue, Suite 3700
Email: mholmes@velaw.com
ajackson@velaw.com
gpadis@velaw.com
Dee Thompson, writing for SE Texas Record, reports that a class-
action lawsuit filed against retailer J. C. Penney by Alan B.
Marcus and other investors has now been settled for $97.5 million
and other concessions.
Attorneys for both sides were contacted but declined to be
interviewed.
Alan B. Marcus, individually and on behalf of all others similarly
situated, v. J.C. Penney & Co. Inc., et.al., is a securities class
action suit filed in the Tyler Division of the Eastern District of
Texas in 2013. The settlement was reached in April.
Alan B. Marcus, the lead plaintiff, claimed that investors who
purchased shares in J. C. Penney's stock in August and September
2013 became victims of false claims by the company regarding
financial health and projections of financial liquidity.
The original complaint stated that "specifically, throughout the
class period, defendants violated the federal securities laws by
disseminating false and misleading statements to the investing
public in connection with the company's finances, assuring
investors that the company had sufficient cash through year-end.
As a result of defendants' false statements, J.C. Penney's stock
traded at artificially inflated prices during the class period,
reaching a high of $14.47 per share on Sept. 9, 2013."
Federal securities laws were violated, Marcus claimed.
Many large shareholders pulled out of the company in 2013, and
stock prices dropped drastically.
Judge K. Nicole Mitchell reported in her 2014 response to a motion
to dismiss that the press release investors relied on in 2013
included cautionary language, and the statements weren't
actionable unless they had been made without J. C. Penney knowing
they were false.
In March, U.S. District Judge Robert Schroeder certified the
class, after the magistrate judge's recommendation.
Danielle S. Myers of Robbins Geller Rudman & Dowd LLP in San Diego
represented the plaintiffs.
Michael E. Jones of Potter Minton PC in Tyler and Robert C.
Walters -- rwalters@gibsondunn.com -- Meryl L. Young --
myoung@gibsondunn.com -- and Jason J. Mendro --
jmendro@gibsondunn.com -- of Gibson Dunn& Crutcher of Dallas and
Irvine, California represented J.C. Penney.
In February, J.C. Penney announced it would close more than 130
stores due to lagging sales. [GN]
Johnson Controls International Plc said in its Form 10-Q Report
for the quarterly period ended March 31, 2017, that the "Laufer"
class action lawsuit remains pending.
On May 20, 2016, a putative class action lawsuit, Laufer v.
Johnson Controls, Inc., et al., Docket No. 2016CV003859, was filed
in the Circuit Court of Wisconsin, Milwaukee County, naming
Johnson Controls, Inc., the individual members of its board of
directors, the Company and the Company's merger subsidiary as
defendants. The complaint alleged that Johnson Controls Inc.'s
directors breached their fiduciary duties in connection with the
merger between Johnson Controls Inc. and the Company's merger
subsidiary by, among other things, failing to take steps to
maximize shareholder value, seeking to benefit themselves
improperly and failing to disclose material information in the
joint proxy statement/prospectus relating to the merger. The
complaint further alleged that the Company aided and abetted
Johnson Controls Inc.'s directors in the breach of their fiduciary
duties. The complaint sought, among other things, to enjoin the
On August 8, 2016, the plaintiffs agreed to settle the action and
release all claims that were or could have been brought by
plaintiffs or any member of the putative class of Johnson Controls
Inc.'s shareholders. The settlement is conditioned upon, among
other things, the execution of an appropriate stipulation of
On November 10, 2016, the parties filed a joint status report
notifying the court they had reached such agreement. On November
22, 2016, the court ordered that a proposed stipulation of
settlement be filed by March 15, 2017 and scheduled a status
hearing for April 20, 2017.
On March 10, 2017, the parties filed a joint letter requesting
that the filing and hearing be adjourned and that the parties be
allowed an additional 90 days to update the court in light of the
Gumm v. Molinaroli action proceeding in federal court. There can
be no assurance that the parties will ultimately enter into a
stipulation of settlement or that the court will approve the
settlement. In either event, or certain other circumstances, the
settlement could be terminated.
Johnson Controls International plc, headquartered in Cork,
Ireland, is a global diversified technology and multi industrial
leader serving a wide range of customers in more than 150
countries. The Company creates intelligent buildings, efficient
energy solutions, integrated infrastructure and next generation
transportation systems that work seamlessly together to deliver on
the promise of smart cities and communities.
for the quarterly period ended March 31, 2017, that the company's
motion to dismiss the case, Gumm v. Molinaroli, et al., remains
pending.
On June 15, Defendants filed a Reply Brief in Support of their
Motion to Dismiss for failure to state a claim.
On August 16, 2016, a putative class action lawsuit, Gumm v.
Molinaroli, et al., Case No. 16-cv-1093, was filed in the United
States District Court for the Eastern District of Wisconsin,
naming Johnson Controls, Inc., the individual members of its board
of directors at the time of the merger with the Company's merger
subsidiary and certain of its officers, the Company and the
Company's merger subsidiary as defendants. The complaint asserted
various causes of action under the federal securities laws, state
law and the Taxpayer Bill of Rights, including that the individual
defendants allegedly breached their fiduciary duties and unjustly
enriched themselves by structuring the merger among the Company,
Tyco and the merger subsidiary in a manner that would result in a
United States federal income tax realization event for the
putative class of certain Johnson Controls, Inc. shareholders and
allegedly result in certain benefits to the defendants, as well as
related claims regarding alleged misstatements in the proxy
statement/prospectus distributed to the Johnson Controls, Inc.
shareholders, conversion and breach of contract. The complaint
also asserted that Johnson Controls, Inc., the Company and the
Company's merger subsidiary aided and abetted the individual
defendants in their breach of fiduciary duties and unjust
enrichment. The complaint seeks, among other things, disgorgement
of profits and damages.
On September 30, 2016, approximately one month after the closing
of the merger, plaintiffs filed a preliminary injunction motion
seeking, among other items, to compel Johnson Controls, Inc. to
make certain intercompany payments that plaintiffs contend will
impact the United States federal income tax consequences of the
merger to the putative class of certain Johnson Controls, Inc.
shareholders and to enjoin Johnson Controls, Inc. from reporting
to the Internal Revenue Service the capital gains taxes payable by
this putative class as a result of the closing of the merger.
The court held a hearing on the preliminary injunction motion on
January 4, 2017, and on January 25, 2017, the judge denied the
plaintiffs' motion. Plaintiffs filed an amended complaint on
February 15, 2017, and the Company filed a motion to dismiss on
April 3, 2017.
Although the Company believes it has substantial defenses to
plaintiffs' claims, it is not able to predict the outcome of this
Michael Kunzelman, writing for Associated Press, reports that
court officials in a Louisiana community often hold poor people in
jail for months just because they can't afford bail, a federal
lawsuit claims.
Civil rights lawyers are suing the sheriff who oversees the
Lafayette Parish jail, a state judge and another court official
responsible for setting bail amounts for people arrested in
Lafayette, Vermilion and Acadia parishes. The class action
accuses them of running a "wealth-based detention scheme" that
violates the constitutional rights of impoverished people.
"Many of the 1,099 people detained pretrial in the Lafayette
Parish Jail would be immediately released if they could deposit
enough money," the suit says.
Attorneys from the Roderick & Solange MacArthur Justice Center and
the Civil Rights Corps filed the class action on June 5 on behalf
of a man arrested on June 3 on a theft charge. Edward Little's
suit says he lives on a farm in Carencro with his wife and their
two children, earning a modest living by collecting, refurbishing
and selling items over the internet. His family can't afford to
pay $375 to a for-profit bonding agent, the suit says.
Similar wealth-based bail practices are being challenged in court
in other states, including Alabama, Georgia, Mississippi and
Texas, said Eric Foley, one of Little's lawyers.
"This is a problem nationwide," he said.
The three defendants -- Lafayette Parish Sheriff Mark Garber,
Judge Kristian Earles and Lafayette court Commissioner Thomas
Frederick -- didn't immediately respond to calls seeking comment
on June 6.
The suit says Mr. Frederick presides over initial court hearings
that typically last just 25 to 30 seconds for people arrested in
the district, and refuses to address conditions of release.
"People who cannot afford to pay predetermined amounts of money
unrelated to their actual financial resources often spend months
in jail awaiting the disposition of their cases. They are all
presumed innocent," the suit says.
The suit seeks a court order permanently barring officials at the
state's 15th Judicial District Court from using bail money to
detain anyone without inquiring about their ability to pay the set
amount or considering "non-financial alternative conditions of
release."
Lawyers from the MacArthur Justice Center have filed similar
lawsuits in two other Louisiana parishes.
A suit filed in March accuses Bossier Parish court officials of
discriminating against poor people whose bail is automatically set
under a fixed schedule following their arrests on minor criminal
charges. In September 2015, a settlement resolved a class action
that accused Ascension Parish of operating an unlawful, generic
"bail schedule" that jailed poor people for up to three days
without seeing a judge. [GN]
Kirk Allen, writing for Edgar County Watchdogs, reports that an
eight-count Federal Class Action Complaint against Defendants
LaSalle County, former LaSalle County State's Attorney, Brian
Towne, and John Doe State's Attorney Felony Enforcement ("SAFE")
Unit Officers has been filed in the United States District Court
for the Northern District of Illinois Eastern Division.
"This is a civil class action for damages arising under 42 U.S.C.
Sec. 1983, to redress deprivations of the civil rights of
Plaintiffs and all Class members through acts and/or omissions of
Defendants committed under color of law, and under the common law
and statutes of the State of Illinois. Plaintiffs seek monetary,
declaratory, and injunctive relief."
"In 2011, former LaSalle County State's Attorney, Brian Towne
("Defendant Towne") formed a vigilante police force, called the
State's Attorney Felony Enforcement ("SAFE") unit, without proper
authority and outside the realm of his jurisdiction."
The filing is quite a read and I suspect Brian Towne and the rest
of his cronies involved are probably not going to sleep real well
for a while. You can review the numerous articles we wrote on the
malfeasance and violations of law that happen under the failed
leadership of Brian Towne at this link.
Some of the allegations mirror our reporting as it relates to
illegal spending of seized money by Brian Towne. It is nice to
see people standing up against this type of abuse and attempting
to hold them accountable.
After Towne was smoked in the election, he landed a job
approximately a day later with the Illinois Appellate Prosecutor's
office, of which he was the immediate Chairman of the Board.
Nothing like getting your employee to hire you after the public
threw you to the curb.
Enjoy the reading, and may Brian Towne and the rest of his cronies
think long and hard about their future. [GN]
Masimo Corporation said in its Form 10-Q Report filed with the
quarterly period ended April 1, 2017, that Physicians
Healthsource, Inc. filed a petition seeking rehearing by the D.C.
Circuit Court of Appeals.
On January 2, 2014, a putative class action complaint was filed
against the Company in the U.S. District Court for the Central
District of California by Physicians Healthsource, Inc. (PHI). The
complaint alleges that the Company sent unsolicited facsimile
advertisements in violation of the Junk Fax Protection Act of 2005
and related regulations. The complaint seeks $500 for each alleged
violation, treble damages if the District Court finds the alleged
violations to be knowing, plus interest, costs and injunctive
relief.
On April 14, 2014, the Company filed a motion to stay the case
pending a decision on a related petition filed by the Company with
the Federal Communications Commission (FCC). On May 22, 2014, the
District Court granted the motion and stayed the case pending a
ruling by the FCC on the petition.
On October 30, 2014, the FCC granted some of the relief and denied
some of the relief requested in the Company's petition. Both
parties appealed the FCC's decision on the petition.
On November 25, 2014, the District Court granted the parties'
joint request that the stay remain in place pending a decision on
the appeal.
On March 31, 2017, the D.C. Circuit Court of Appeals vacated and
remanded the FCC's decision, holding that the applicable FCC rule
was unlawful to the extent it requires opt-out notices on
solicited faxes. The stay of the District Court litigation has not
yet been lifted.
On April 28, 2017, PHI filed a petition seeking rehearing by the
D.C. Circuit Court of Appeals.
The Company believes it has good and substantial defenses to the
claims in the District Court litigation, but there is no guarantee
that the Company will prevail. The Company is unable to determine
whether any loss will ultimately occur or to estimate the range of
such loss; therefore, no amount of loss has been accrued by the
Company in the accompanying condensed consolidated financial
Masimo is a global medical technology company that develops,
manufactures and markets a variety of noninvasive monitoring
technologies.
quarterly period ended April 1, 2017, that plaintiffs' appeal
before the Eleventh Circuit Court of Appeals remains pending.
On January 31, 2014, an amended putative class action complaint
was filed against the Company in the U.S. District Court for the
Northern District of Alabama by and on behalf of two participants
in the Surfactant, Positive Pressure, and Oxygenation Randomized
Trial at the University of Alabama.
On April 21, 2014, a further amended complaint was filed adding a
third participant. The complaint alleges product liability and
negligence claims in connection with pulse oximeters the Company
modified and provided at the request of study investigators for
use in the trial.
On August 13, 2015, the U.S. District Court for the Northern
District of Alabama granted summary judgment in favor of the
Company on all claims.
The plaintiffs have appealed the U.S. District Court for the
Northern District of Alabama's decision. The appellate hearing
before the Eleventh Circuit Court of Appeals was held on December
13, 2016, and the parties are awaiting a decision.
The Company is unable to determine whether any loss will
ultimately occur or to estimate the range of such loss; therefore,
no amount of loss has been accrued by the Company in the
accompanying consolidated financial statements. From time to time,
the Company may be involved in other litigation and investigations
relating to claims and matters arising out of its operations in
the normal course of business. The Company believes that it
currently is not a party to any other legal proceedings which,
individually or in the aggregate, would have a material adverse
effect on its condensed consolidated financial position, results
of operations or cash flows.
Erik Sherman, writing for Inc.com, reports that McDonald's has
been under potential legal doom since January 2016. It was the
result of a Department of Labor reaction to a National Labor
Relations Board finding a couple of years before. And now, under
the Trump administration, the clouds have parted, meaning good
news, at least for the central company. Franchise owners,
however, may find themselves left out in the cold.
The Department of Labor had issued Administrator's Interpretation
No. 2016-1 (since removed from the DoL site) that discussed how
the agency would consider joint employment. This is the condition
when workers effectively have more than one employer.
In the case of McDonald's, the issue was brought up earlier when
the NLRB said the company was effectively a joint employer of
people working for its franchisees because of the control the
central company exerted over operations. Essentially, some
workers, backed by union help, had filed suit alleging the company
had illegally withheld wages in a number of ways.
Normally, such lawsuits would focus on the immediately employer.
But workers and unions pushed for the joint employment
interpretation so they could create class action suits that would
reach into the pocket of McDonald's itself and force various types
of change throughout all U.S. franchises.
On June 7, the Department of Labor walked back this interpretation
and some previous guidance from 2015:
U.S. Secretary of Labor Alexander Acosta on June 7 announced
the withdrawal of the U.S. Department of Labor's 2015 and 2016
informal guidance on joint employment and independent contractors.
Removal of the administrator interpretations does not change the
legal responsibilities of employers under the Fair Labor Standards
Act and the Migrant and Seasonal Agricultural Worker Protection
Act, as reflected in the department's long-standing regulations
and case law. The department will continue to fully and fairly
enforce all laws within its jurisdiction, including the Fair Labor
Standards Act and the Migrant and Seasonal Agricultural Worker
Protection Act.
As labor lawyer Alex Passantino of the firm Seyfarth Shaw wrote in
a blog post on June 7, "The withdrawal likely indicates a changing
focus in the Department's enforcement efforts away from the
'fissured' industry initiative of the Obama Administration."
The "fissured" language refers to certain industries such as
construction, hotels, and restaurants in which companies may
indirectly employ people, whether through a claimed independent
contractor status, through a third-party labor employer, or via
business partners like franchise owners.
The DoL decision doesn't suddenly invalidate anything that the
NLRB has already approved. Lawsuits can continue. But the
important news for McDonald's is that, under the Trump
administration, it can expect a reduction of attention to -- if
not an all-out dismissal of -- fissure industries and the
potential for facing the results of potential labor law
infractions of the business partners.
So, you won't hear the cheering that you might had the suits been
dismissed. But there must have been a collective sigh of relief
in the board room, at among management teams at other franchisors.
Although, franchisees may be less happy. If attention doesn't
turn to the wealthy central companies, small business owners will
find themselves without direct allies or help when faced with
labor lawsuits. They owners will have to pony up for lawyers and,
if they lose, restitution.
There are also significant implications for other industries,
especially those using a gig-economy model in which workers are
hired through online platforms. That is good news for many
companies that have used the gig worker providers to undertake
tasks without having to add to their permanent payroll. [GN]
Melissa Busch, writing for Legal Newsline, reports that a man who
sued car seat manufacturers, claiming they failed to disclose the
amount of harmful flame-retardant chemicals contained in their
products, has agreed to voluntarily dismiss the case.
On May 3, attorneys representing Spencer Price filed a pleading in
U.S. District Court for the Central District of California,
voluntarily dismissing with prejudice its claims against Orbit
Baby Inc. and The Ergo Baby Carrier Inc.
The parties agreed to not move forward with the case because Orbit
Baby Inc., which designed, manufactured, and sold the car seats,
has entered into a consent judgment in Center for Environmental
Health v. Orbit Baby Inc., in Alameda County Superior Court Case.
Under that settlement, Orbit Baby will provide replacement car
seats, which have a manufacturer's suggested retail price of more
than $400, to all consumers who are eligible and make a claim to
the putative class in this action, according to court documents.
Due to the judgment, the parties agreed that the claims asserted
in the Price case should no longer be prosecuted on a class-wide
basis, and instead settled on an individual basis, according to
court documents.
Prior to Mr. Price's suit, Orbit Baby ceased manufacturing car
seats. Furthermore, the defendants denied all allegations in the
action, including the claim that the seats contained harmful
The Ergo Baby Carrier Inc. contended it was improperly named as a
defendant in Price's claim because it only owns the stock of Orbit
Baby and played no role in the design, manufacture or sale of the
car seats.
On Nov. 30, Mr. Price filed a complaint on behalf of all others
similarly situated individuals, alleging the manufacturers
violated the California Consumer Legal Remedies Act, common law
fraud, and other claims. Mr. Price alleged that he was owed
damages because he was misled into purchasing the Orbit Baby
Essentials G2 Car Seat, according to court documents.
Mr. Price alleged that the manufacturers allegedly made false
claims regarding the amount of material levels of TDCPP,
chlorinated tris, contained in the product. The substance is
known to cause cancer or reproductive harms. [GN]
John Remorenko, on behalf of himself and all others similarly
situated, Plaintiff, v. Panera Bread Co., Ronald M. Shaich,
William W. Moreton, Domenic Colasacco, Diane Hessan, Fred Foulkes,
Larry Franklin, Thomas E. Lynch and Mark Stoever, James White,
Defendants, Case No. 4:17-cv-01610 (E.D. Miss, June 2, 2017),
seeks to preliminarily and permanently enjoin Defendants and all
persons acting in concert with them from proceeding with,
consummating, or closing the acquisition of Panera in an all-cash
transaction, by JAB Holdings. The suit further seeks rescissory
or other damages in the event Defendants consummate the said
merger, costs of this action, including reasonable allowance for
attorneys' and experts' fees and such other and further relief
under the Securities and Exchange Act.
Defendants are trying to solicit the tendering of stockholder
shares in connection with the sale of Panera to an affiliate of
JAB Holdings B.V., Rye Parent Corp., by way of Rye Merger Sub,
Inc. Panera stockholders will receive $315.00 cash for each share
of Panera stock that they own. Said deal is valued at
approximately $7.5 billion. Remorenko says that the offer price is
inadequate because the intrinsic value of the Company is
materially in excess of the amount offered.
Panera is a national bakery-cafe concept with 2,042 Company owned
and franchise-operated bakery-cafe locations in 46 states, the
District of Columbia and Ontario, Canada. The Company is
headquartered in St. Louis, Missouri, and operates company-owned
bakery-cafe operations, franchise operations and manufactures
fresh dough and other product operations. [BN]
James J. Rosemergy, Esq.
CAREY DANIS & LOWE
8235 Forsyth, Suite 1100
Facsimile: (314)721-0905
Email: jrosemergy@careydanis.com
Brian D. Long, Esq.
Seth D. Rigrodsky, Esq.
Gina M. Serra, Esq
Jeremy J. Riley, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Tel: (302) 295-531
Email: sdr@rl-legal.com
bdl@rl-legal.com
gms@rl-legal.com
Donald J. Enright, Esq.
LEVI & KORSINSKY LLP
Elizabeth K. Tripodi, Esq.
1101 30th Street, N.W., Suite 115
Email: denright@zlk.com
etripodi@zlk.com
Defendants Chun Kit Cheng, Perfect Team Corporation and Jia Li
Wang filed an appeal from court rulings entered in the lawsuit
entitled Gao v. Perfect Team Corporation, Case No. 10-cv-1637, in
the U.S. District Court for the Eastern District of New York
(Brooklyn).
The appellate case is captioned as Gao v. Perfect Team
Corporation, Case No. 17-1839, in the United States Court of
Appeals for the Second Circuit.
As previously reported in the Class Action Reporter, Li Rong Gao
and Xiao Hong Zheng filed their class action against the
Defendants seeking damages and injunctive relief under the Fair
Labor Standards Act and New York Labor Law on April 13, 2010. The
Plaintiffs subsequently amended their Complaint to add Shu F.
Jiang, Wei S. Tan, and Wei J. Wu as plaintiffs. The Amended
Complaint also revised defendant Chen's name to Zhuo Ping Chen.
The Plaintiffs seek sanctions against defendants Perfect Team,
Cheng, and Wang -- Perfect Team defendants -- and defendants Ji
Shiang and Lin -- Ji Shiang defendants -- "in the form of default
judgment, costs and attorneys' fees."
The Plaintiffs were servers at Guang Zhou Restaurant during the
period from March 2006 through June 2009, when it was operated by
the Perfect Team defendants, and during the period from June 2009
until the date of the Complaint, when it was operated by the Ji
Shiang defendants. The Plaintiffs allege that the defendants
failed to pay plaintiffs minimum wages, overtime premiums, and
spread-of-hours pay in violation of the FLSA and NYLL, and that
the defendants violated the NYLL by illegally withholding portions
of plaintiffs' tips and retaliating against plaintiffs Gao and
Zheng by terminating them after they complained about the unlawful
employment practices.[BN]
Plaintiff-Appellee Li Rong Gao is represented by:
Carmela Huang, Esq.
URBAN JUSTICE CENTER
E-mail: chuang@urbanjustice.org
Defendants-Appellants Chun Kit Cheng, AKA Jun Jie Zheng, Jia Li
Wang and Perfect Team Corporation, DBA Guang Zhou Restaurant, are
Samuel Joseph Chuang, Esq.
LAW OFFICES OF SAMUEL CHUANG
135-11 40th Road
E-mail: samuel.chuang@chuanglaw.com
Corinne Lincoln-Pinheiro, writing for Legal Newsline, reports that
a California-based fitness company sued for alleged fraud and
negligent misrepresentation has filed a motion to dismiss against
the plaintiff over allegations he failed to state a claim for
Initially, Jeff Johnson, John Sandviks and Tanner Kirchoff sued
PhD Fitness LLC in a class action filed in U.S. District Court for
the Eastern District of Michigan, Southern Division, alleging
negligence and misrepresentation regarding its supplements Pre-JYM
and Post-JYM. They said PhD, a sports supplement company, claimed
both supplements scientifically aided in pre- and post-workout
benefits. The plaintiffs sought damages and restitution, among
On April 6, PhD filed a motion to dismiss all claims, stating, for
starters, plaintiffs failed to provide a notice to sue prior to
filing their original complaint.
When Sandviks (of South Carolina) and Kirchoff (of Washington)
withdrew from the lawsuit, Johnson, a Michigan native, filed an
amended claim for breach of express and implied warranty, unjust
enrichment and violations of state consumer protection laws.
However, PhD filed another motion to dismiss for several reasons.
PhD claimed Mr. Johnson didn't give it an opportunity to
investigate, rectify, attempt to negotiate or settle his claim
before filing a class action. Specifically, the day before he
filed the amended claim, he sent a letter of notice, which it said
was too late to satisfy notice requirements.
Unlike Messrs. Sandviks and Kirchoff, Johnson purchased the
supplements from a GNC store and not from PhD's website. He
claimed he read the product labels before purchase and that
constituted misrepresentation.
However, his amended claim continued to focus on the website's
statements (alleged by Messrs. Sandviks and Kirchoff) and omitted
footnotes highlighting the store-bought label disclaimers, the
company says.
PhD alleged he failed to support his fraud claim and lacked
specificity. It requested paragraphs discussing the website be
removed because they no longer applied.
PhD then claimed there was no contract as the express warranty
claim asserted. It said this and his unjust enrichment complaint
were contradictory.
Mr. Johnson claimed the labeling and marketing issues were part of
a contract with class members, which spoke to misrepresentation
and, "formed the basis of (his) unjust enrichment claim," PhD
alleged. But doing so unraveled the latter claim because an
"alleged contract would supersede any implied contract in equity."
Hence, Mr. Johnson failed to state a claim, it said.
The defendant is represented by Davis Wright Tremaine LLP in
Washington, D.C., and Portland, Oregon, and by Honigman Miller
Schwartz and Chon LLP in Detroit and Lansing, Michigan,
The plaintiff is represented by Barbat, Mansour & Suciu PLLC in
Bloomfield Hills, Michigan, and by Kohn, Swift & Graf P.C. in
Philadelphia. [GN]
U.S. District Court for the Eastern District of Michigan case
number 2:16-cv-14152-LJM-SDD
Denise Royal, writing for Pennsylvania Record, reports that the
owners and managers of Pin Wei Restaurant are asking a federal
court to throw out a class-action lawsuit from six plaintiffs
alleging unpaid wages and breach of contract.
The motion states that the King of Prussia restaurant owners and
managers did not violate the Federal Labor Standards Act (FLSA)
and Pennsylvania Minimum Wage Act (PAMWA) by underpaying its
To the contrary, the defendants claim that the allegations
contained in the complaint itself support a finding that the six
plaintiffs were paid more than the statutorily required minimum
wage.
This overage, defendants claim, establishes that plaintiffs also
received tip income. The defendants also claim that the
plaintiff's complaint is overly broad, vague and ambiguous,
failing to specify a time period for which they were underpaid.
The plaintiffs allege they sustained damages from working long
hours, typically around 65 hours per week, without being
adequately compensated. The plaintiffs hold the defendants
responsible because they allegedly failed to pay minimum and
overtime wages to the plaintiffs.
The plaintiffs are represented by Philip Downey of the Downey Law
Firm LLC in Unionville and John Troy of Troy Law PLLC in Flushing,
New York. Vincent Pentima of the Pentima Law Firm in Bala Cynwyd
represents the defendants.
The original complaint, filed March 10 in U.S. District Court for
the Eastern District of Pennsylvania, sought injunction, unpaid
minimum and overtime wages, liquidated and compensatory damages,
interest and other payments. [GN]
U.S. District Court for the Eastern District of Pennsylvania case
number 2:17-cv-01073-RBS
Plaintiff Christopher J. Reichman filed an appeal from a court
ruling relating to the lawsuit titled Christopher Reichman v.
Poshmark, Inc., Case No. 3:16-cv-02359-DMS-JLB, in the U.S.
District Court for the Southern District of California, San Diego.
As previously reported in the Class Action Reporter, the lawsuit
was filed on September 19, 2016, and was assigned to Judge Dana M.
Sabraw.
Poshmark operates a platform where women come together to buy and
sell clothing and accessories from each other's closets.
The appellate case is captioned as Christopher Reichman v.
Poshmark, Inc., Case No. 17-55826, in the United States Court of
Appeals for the Ninth Circuit.
-- Appellant Christopher J. Reichman's opening brief is due on
September 18, 2017;
-- Appellee Poshmark, Inc.'s answering brief is due on
October 17, 2017; and
Plaintiff-Appellant CHRISTOPHER J. REICHMAN, individually and on
Behalf of All Others Similarly Situated, is represented by:
David C. Beavans, Esq.
LAW OFFICES OF DAVID C. BEAVANS, APC
4542 Ruffner Street, Suite 150
Telephone: (619) 234 7848
Facsimile: (619) 234 7849
E-mail: dbeavans@theSDlawyers.com
Defendant-Appellee POSHMARK, INC., a Delaware corporation, is
Brooks Russell Brown, Esq.
Laura A. Stoll, Esq.
GOODWIN PROCTER LLP
601 S. Figueroa Street, 41st Floor
E-mail: bbrown@goodwinlaw.com
lstoll@goodwinlaw.com
Jacklyn Wille, writing for Bloomberg News, reports that pharmacy
benefit managers CVS Health Corp., Express Scripts Inc., and Prime
Therapeutics LLC are in the crosshairs of a new proposed class
action challenging the prices of EpiPens, a common treatment for
allergic reactions (Klein v. Prime Therapeutics, LLC , D. Minn.,
No. 0:17-cv-01884, complaint filed 6/2/17).
The PBMs -- which act as intermediaries between health insurance
companies and drug makers like Mylan Inc., which makes EpiPens --
didn't effectively negotiate for lower EpiPen prices, the lawsuit
alleges. Rather, they negotiated for "increasingly large rebates"
from Mylan, which benefited the PBMs and their clients and drove
EpiPen prices up by more than 600 percent over the past decade,
according to the lawsuit.
More than 3.6 million EpiPen prescriptions were written in 2015,
according to the complaint. This lawsuit, filed June 2 in a
federal court in Minnesota, seeks to represent "tens of thousands"
of people whose prescription drug benefits are administered by
CVS, Express Scripts, and Prime Therapeutics. The PBMs are
accused of breaching their duties under the Employee Retirement
Income Security Act.
"Indeed, instead of negotiating for lower or stable prices for all
plan members, Defendants negotiated for increasingly large rebates
from Mylan for themselves and their clients, driving up the price
of EpiPen," the lawsuit says. "Rather than passing these rebates
on to Class members in the form of lower or stable prices,
Defendants kept significant amounts, resulting in massive revenue
increases for themselves and massive price increases for members
of the Class."
A spokesman for CVS denied the allegations and told Bloomberg BNA
that the lawsuit was "built on a false premise" about the role of
PBMs.
"Pharmaceutical companies alone are responsible for the prices
they set in the marketplace for the products they manufacture,"
Mike DeAngelis, senior director of corporate communications for
CVS Health, said. "Nothing in our agreements prevents a drug
manufacturer from lowering the prices of their products and we
would welcome such an action."
A spokesman for Express Scripts gave a similar statement.
"Rebates don't raise drug prices, drug makers raise drug prices,"
Brian Henry, vice president of corporate communications for
Express Scripts, told Bloomberg BNA. "We will vigorously defend
ourselves."
A spokeswoman for Prime Therapeutics said the company believes the
lawsuit to have no merit and vowed to vigorously defend against
it. She declined to comment further, citing an internal policy
against discussing pending litigation.
The case is Elan and Adam Klein, Leah Weaver and Arissa
Paschalidis, and all others similarly situated, Plaintiffs, v.
Prime Therapeutics, LLC; Express Scripts Holding Co., Express
Scripts, Inc. and CVS Health Corp., Defendants, Case No. 0:17-cv-
01884 (D. Minn., June 2, 2017). [GN]
Karen Hanson Riebel, Esq.
David W. Asp, Esq.
Kristen G. Marttila, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.
Email: dwasp@locklaw.com
kgmarttila@locklaw.com
khriebel@locklaw.com
Kathleen M. Donovan-Maher, Esq.
Patrick T. Egan, Esq.
Justin N. Saif, Esq.
Steven L. Groopman, Esq.
BERMAN DEVALERIO
One Liberty Square, 8th Floor
Email: kdonovanmaher@bermandevalerio.com
pegan@bermandevalerio.com
jsaif@bermandevalerio.com
sgroopman@bermandevalerio.com
Marc J. Greenspon, Esq.
3507 Kyoto Gardens Drive, Suite 200
Email: mgreenspon@bermandevalerio.com
Anthony F. Maul, Esq.
THE MAUL FIRM, P.C.
68 Jay Street, Suite 201
Email: afmaul@maulfirm.com
Toby Biddle, Esq. -- toby.biddle@nortonrosefulbright.com -- and
Helen Macpherson, Esq. -- helen.macpherson@nortonrosefulbright.com
-- of Norton Rose Fulbright, report that a new type of product
claim is emerging in the Australian class action market; one which
has been part of the US class action landscape for many years.
Unlike previous product class actions where the safety of the
product was typically in issue, the new product claims focus on
statements/ representations made in the marketing of the product,
and whether or not the statements/ representations contravene the
misleading and deceptive conduct provisions of the Australian
Consumer Law.
The Nurofen class action
The most high profile example of this new breed of class action is
the Nurofen class action. The Nurofen class action is in its
early stages and "piggy backs" off the successful ACCC action, in
which Reckitt Benckiser, the makers of Nurofen, was fined $6
million for making representations on its website and product
packaging that Nurofen Specific Pain products were each formulated
to specifically treat a particular type of pain, when this was not
the case.
While Reckitt Benckiser has admitted that the representations were
misleading (in line with the ACCC action), they are contesting
whether any damage was caused by these representations. The
plaintiffs' case is that damage arose because -- but for the
misleading representations -- the plaintiffs would not have bought
the Nurofen Specific Pain products but would have instead
purchased cheaper pain relief products.
Non-class action marketing cases
"Marketing" cases outside of the class action context are nothing
new in Australia. For decades, government regulators (such as the
ACCC and more recently, ASIC) have been taking companies to court
in relation to marketing which they consider falls foul of the
misleading & deceptive conduct laws. Companies have also used the
misleading and deceptive conduct laws to directly take on their
competitors in relation to their marketing campaigns.
However, the use of the class action forum for "marketing" cases
represents a new dimension in this type of case. The class action
forum significantly alters the strategic and legal issues which
need to be addressed in marketing cases.
First, the strategies used in class actions will affect the
strategy for prosecuting and defending claims of misleading and
deceptive marketing. For example, a class action defendant may
challenge whether such actions are appropriate to proceed as class
actions: in particular, whether there is a common issue to be
decided for all group members, or on the basis that the cost to
the defendant of identifying the group members and distributing
any amounts to be paid would be excessive.
Second, there are legal issues which typically play little or no
role in "marketing" cases which are now critical to the success of
"marketing" class actions. For example, in the class action forum
it is now critical to be able to prove that the allegedly
misleading marketing caused damage ("causation") and then to be
able to quantify that damage. This is because the primary purpose
of a class action is to recover a damages sum for group members.
It's also how litigation funders make their money out of class
actions, assuming litigation funding can be obtained for such
actions.
By contrast, in an ACCC action or competitor action for allegedly
misleading marketing, the main focus is on stopping the marketing
and not on proving and quantifying damage. It is generally
recognised in such actions that proving and quantifying damage
will be a complex and complicated exercise, and potentially
Other marketing class actions
There are also marketing class actions threatened in relation to
other products. Many of these again seek to "piggy back" off
successful ACCC actions or to "piggy back" off overseas class
action judgments or settlements.
For example, one class action law firm is currently calling for
group members for a class action against Bet365 in relation to
their "Free Bets" online betting campaign. In the ACCC action,
Bet 365 was fined $2.75 million in relation to its "$200 FREE BETS
FOR NEW CUSTOMERS" offer to customers in Australia. The Court
held that this marketing campaign was misleading and deceptive
because there were a number of restrictions and limitations that
applied to the offer that were not brought to the customer's
attention. The aim of the threatened class action is again to
recover the damages and losses said to have been suffered by group
members.
The number and scope of this new breed of class action is yet to
be seen. Although many of these claims may result in relatively
low damages payouts/settlement sums compared to class actions in
the product liability or financial contexts, the applicants' legal
costs and defence costs (both of which could potentially be borne
by insurers) will be as significant as in other types of class
actions. The reputational consequences for insured companies and
their products will also be considerable.
Given the proliferation of such class actions in the United
States, it is likely that this will be a growth area for class
actions -- and consequently, for insurers -- in Australia. [GN]
Abraham Moussako, writing for Law360, reports that Roche was hit
with a potential shareholder class action in New Jersey federal
court on June 6, alleging that the drugmaker misrepresented to
investors the effectiveness of a breast cancer treatment under
Thomas Biondolillo, a shareholder in Roche Holding AG, alleged on
behalf of a would-be class of shareholders that the company, along
with CEO Severin Schwan and Chief Financial and Information
Technology Officer Alan Hippe, misled investors as to the
effectiveness of Perjeta, a medicine approved in the U.S. and
Europe to be used in combination with another drug, Herceptin, as
a treatment for some forms of breast cancer.
"Defendants made false and/or misleading statements and/or failed
to disclose that: (1) the combination of Perjeta and Herceptin is
only marginally more effective than Herceptin alone in preventing
breast cancer; and (2) as a result, defendants' statements about
the company's business, operations and prospects were materially
false and misleading and/or lacked a reasonable bases at all
relevant times," the complaint says.
The complaint seeks to represent a class of those who bought
shares in Roche from March 2, 2017, through June 5, 2017.
On March 2, the complaint alleges, Roche published a press release
on the Phase III Aphinity study, which stated that patients with
aggressive, early-stage breast cancer who took Perjeta along with
Herceptin and chemotherapy lived longer than those who had taken
just Herceptin and underwent chemotherapy.
On June 5, the complaint alleges, Roche published another press
release on the study, again touting its reduction in the chances
of cancer returning in patients compared to treatments using only
Herceptin.
The same day, the complaint alleges, a number of press reports
subsequently characterized the Perjeta results as being marginal.
Reports noted that the results would likely dampen enthusiasm
among medical professionals for using the drug in treatments, due
to its cost and side effects, which included severe diarrhea in
some patients, according to the complaint.
After those reports, shares of Roche dropped on June 5 by
approximately 5.12 percent, or $1.76 per share, closing at $32.61
per share.
The complaint alleges one claim of violations of Section 10b of
the Exchange Act and Rule 10b-5, claiming the company provided
misleading information to investors in the class period. A second
claim alleges that the named executives violated Section 20a of
the Exchange Act, through allowing the sending of the allegedly
misleading statements.
Counsel for the would-be class of shareholders was not immediately
available for comment on June 7.
Mr. Biondolillo is represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- of The Rosen Law Firm PA.
Counsel information for Roche was not immediately available on
The case is Biondolillo v. Roche Holding AG et al., case number
3:17-cv-04056, in the U.S. District Court for the District of New
Jersey. [GN]
Lundin Law PC, a shareholder rights firm, on June 6 announced the
filing of a class action lawsuit against Roche Holding AG ("Roche
Holding" or the "Company") (Other OTC: RHHBY) for possible
violations of federal securities laws between March 2, 2017 and
June 5, 2017, inclusive (the "Class Period"). Investors who
purchased or otherwise acquired shares during the Class Period
should contact the firm prior to the August 7, 2017 lead plaintiff
motion deadline.
You can also call Brian Lundin, Esquire, of Lundin Law PC, at 888-
713-1033, or you can e-mail him at brian@lundinlawpc.com.
No class has been certified in the above action yet. Until a class
is certified, you are not considered represented by an attorney.
You may also choose to do nothing and be an absent class member.
According to the Complaint, throughout the Class Period, Roche
Holding issued materially false and misleading statements and/or
failed to disclose that the combination of the Company's breast
cancer drug, Perjeta, and its older treatment, Herceptin, is only
marginally more effective than Herceptin alone in preventing
breast cancer; and that as a result, Roche Holding's statements
about its business, operations and prospects were materially false
and misleading and/or lacked a reasonable bases at all relevant
times. When this information was released to the public, shares of
Roche Holding fell in value, causing investors harm according to
the Complaint.
Lundin Law PC -- http://lundinlawpc.com/-- was established by
Brian Lundin, a securities litigator based in Los Angeles
dedicated to upholding shareholders' rights. [GN]
Triad Business Journal reports that Rockwell Collins Inc. has
settled two class-action lawsuits that arose following its plan to
acquire of B/E Aerospace Inc. for $8.6 billion, essentially
agreeing to pay $150,000 in legal fees, according to a disclosure
filed on June 5.
Rockwell and B/E had agreed in October to merge, a deal t hat
closed on April 13 and has implications for the Triad employment
base. But before the deal was consummated, two class action
lawsuits related to the merger were filed in the Delaware Court of
Chancery. B/E Aerospace and its directors were listed as
defendants in both suits and Rockwell Collins and Quarterback
Merger Sub Corp. were named as defendants in one of them.
The plaintiffs argued that B/E Aerospace's directors breached
their fiduciary duties to B/E Aerospace's stockholders and that
Rockwell Collins and Quarterback aided and abetted the alleged
breaches. The lawsuits sought various remedies, including
enjoining the merger from being consummated, rescission of the
merger if implemented, rescissory damages and plaintiffs' costs
and fees.
Ultimately, the court had approved in March a stipulation under
which the plaintiffs voluntarily dismissed the action with
prejudice as to themselves and without prejudice as to the
putative class members, with Rockwell Collins agreeing to make a
$150,000 payment to the plaintiff's attorneys for fees and
expenses.
The disclosure comes only a couple weeks after Rockwell Collins
officials visited the Triad for a tour of B/E Aerospace's local
facilities, a time that also allowed the company to share its
vision for where the company is headed, as well as to discuss how
it is evolving, including through 3-D technology. [GN]
Malena Carollo, writing for Tampa Bay Times, report that bonded
leather is back in the courts. Seffner, Fla.-based furniture
company Rooms To Go faces a lawsuit seeking class action status in
Tampa Bay following customer complaints that their bonded leather
furniture didn't live up to the company's promises of durability
and quality.
The lawsuit was filed on behalf of Brandon resident Robert
Blobner, 63. According to the suit, he bought a couch and chaise
from Rooms To Go for $1,193 back in 2013. But just a week later,
the material began to peel and flake. And when the company sent a
replacement after he complained, the same thing happened.
He later found that the furniture, the lawsuit says, was
upholstered with bonded leather, a mix of leather and synthetic
fibers. He is hoping to recoup damages for himself and any Rooms
customers who bought bonded leather furniture within the last five
"We filed this case as a class action in order to level the
playing field and so that thousands of consumers will have a
voice," Christopher S. Polaszek, one of Mr. Blobner's lawyers,
said in an email.
Bonded leather was the subject of a 2015 case involving Kane's
Furniture Corp., a Pinellas Park furniture chain. Customers
brought a class-action suit against Kane's following widespread
"peeling and flaking" of bonded leather furniture they purchased,
which ended up being only a small percent genuine leather. The
lawsuit alleged Kane's did not honor a lifetime warranty on such
furniture.
Kane's settled the lawsuit in February, blaming its manufacturer
in Mississippi for the defective furniture. Customers who
complained about such issues were eligible for either a full
refund if they complained within a year of purchase or 50 percent
if they complained before two years after purchase. Kane's also
agreed to pay as much as $2.5 million to refund some portion of
bonded leather purchases made by customers who did not complain.
A Rooms To Go spokesperson was not available for comment by end of
day on June 6.
Just a day before the most recent lawsuit against Rooms To Go,
another lawsuit was filed against the furniture retailer by one of
the company's independent contractor drivers. The lawsuit, which
also seeks class action status, alleges that Rooms To Go charged
its drivers too much for insurance and did not pay them enough for
some kinds of deliveries.
Rooms To Go operates in 10 states and has seven locations in Tampa
Bay. [GN]
Scottish Legal News reports that The RBoS Shareholders Action
Group has voted to accept an 82p a share offer to finally settle
with Royal Bank of Scotland over its disastrous 2008 rights issue.
The group comprises 9,000 private and commercial shareholders who
claimed they were duped into handing ú12 billion to the bank
during the financial crisis.
The amount is below the 200p-230p a share that investors paid
during the fundraising at the height of the financial crisis, when
they say RBS lied about its financial health.
The settlement means that the disgraced former chief executive of
RBS, Fred Goodwin, will not appear in court.
The groups of investor, who have held out after many others
settled before this month's scheduled court case, voted on the
settlement on June 5, but have declined to comment on whether the
decision was unanimous.
Shares in RBS fell 1.1 per cent to 256.85p.
Shortly after the rights issue in 2008, RBS was bailed out with
GBP45bn of taxpayers' money.
The state still owns more than 70 per cent of the bank. [GN]
The Australia Associated Press reports that Slater and Gordon is
facing more legal action, with one of its shareholders planning
proceedings against the troubled law firm over allegations of
misleading representations in three straight sets of full-year
The law firm, which is already facing two potential class actions
from shareholders whose stakes have plummeted in value, on June 8
said it received a letter stating Babscay intends to take action
over allegations of misleading representations in the company's
2013, 2014 and 2015 financial statements.
Slater and Gordon said, in a statement to the Australian
Securities Exchange, the full details of Babscay's claim were not
included in the letter from Johnson Winter & Slattery Lawyers.
Babscay is not listed among Slater and Gordon's 20 largest
Slater and Gordon's market value has fallen from $2.8 billion in
April 2015, to just $32.3 million following its disastrous $1.2
billion acquisition of Quindell's professional services division
in the UK,
At 9.3 cents, its shares are valued at just one per cent of the
$8.07 they were worth in April 2015.
Slater and Gordon in May announced plans for a $1 billion claim
for fraud against the company from which it acquired the UK
business, which dragged it to a $1 billion loss in 2015/16 and to
the brink of bankruptcy.
But Slater and Gordon is itself facing allegations, with rival law
firm Maurice Blackburn leading a class action representing
thousands of shareholders over disclosure of financial information
between March 2015 and February 2016.
ACA Lawyers is also investigating a potential class action
relating to a period between August 2014 and February 2016. [GN]
Ryan J. Farrick, writing for Legal Reader, reports that the
American Civil Liberties Union is launching a lawsuit against
South Carolina's Lexington County, accusing it of running a modern
day debtors' prison.
The ACLU, along with Terrell Marshall Law Group, are targeting
what they say is a rampant issue with a class-action suit filed in
a U.S. District Court in Columbia, SC.
According to the civil liberties watchdog and its legal ally,
Lexington County runs a nasty practice of routinely jailing
individuals unable to pay court-ordered fines on time. In some
cases, they say, men and women have had bench warrants issued for
their arrest mere days after accruing a past-due balance.
Nusrat Choudhury, the senior staff attorney with ACLU's Racial
Justice Program, said she and her colleagues would be notifying
other entities about the need to address what she terms 'the
modern-day debtors' prison.'
"This lawsuit is a call to action," she said. "Poor people should
never be locked up behind bars because of their poverty."
The Post and Courier reports that the ACLU has filed seven similar
lawsuits in states and districts across the country. Several have
already succeeded in forcing counties and states to revise their
treatment of the penalized poor, with victories coming out of
Dekalb County, GA, and Biloxi, MS.
The Courier notes a Charleston, SC, commission is already
examining new routes which can be established to help low-income
offenders avoid serving jailtime when they're unable to pay fines.
Kristy Danford, a member of the Charleston County Criminal Justice
Coordinating Council, said she wasn't surprised the ACLU is
initiating legal action in South Carolina.
"This is a big national issue," she said. "And we're seeing it
play out here just like we're seeing it across the country."
"I think it's our obligation to be mindful of the principles of
justice in general. If we are stepping out of those lines, we need
to find our way back to them," Ms. Danford said.
According to the Courier, South Carolina county clerks have the
power to issue warrants when fines are past due -- in some cases,
only five days after payment has been missed. Other penalties can
include the revocation of drivers licenses, making it even more
difficult for impoverished individual to draw an income.
The ACLU's class-action suit began on behalf of five plaintiffs,
who were detained and thrown behind bars for long stretches of
time -- often due to their inability to pay rather small amounts.
One woman was jailed for three weeks after she couldn't pay court
fines totaling $647, while another was arrested at home and taken
away in front of her children over $1900 in unpaid fines and fees
-- following her arrest, she was detained in county jail for
nearly two months.
Orrie West, a circuit public defender in Horry County, told the
Courier she's seen the cycle herself.
"They lose their jobs, then they lose their public housing," she
said. "Then, when they finally get out [of jail], they get a low-
paying job at McDonald's, and they still can't afford their fine."
One of the plaintiffs, Twanda Marshinda Brown, said she was taken
away from her children after falling behind on payments for a
traffic ticket.
"I was locked up for 57 days because I couldn't pay my traffic
fines," Ms. Brown said, lamenting the lost time with her children.
Despite working at a fast food establishment and putting money
towards her fine, she was arrested after she missed a single due
"It was devastating for me and my kids," she said.
Ms. Choudhury said the effects on communities could be
devastating.
"The poorest people among us, particularly people of color, are
punished disproportionately," she said. "It's not just wrong and
unfair -- it's counterproductive and wasteful." [GN]
Emily Walkenhorst, writing for Northwest Arkansas Democrat
Gazette, reports that testimony in one of the biggest class-action
lawsuits to emerge from Fayetteville Shale activity began on June
6 with two hours of questions for an educator from Nashville,
Tenn., who sued Southwestern Energy Co. and three subsidiaries,
alleging underpayment for the use of her land during the natural-
gas boom in north-central Arkansas.
Connie Jean Smith's case hinges on what a 12-person federal jury
will decide is "reasonable" for SWN Production, formerly known as
SEECO, to deduct from Ms. Smith's promised cut of the company's
proceeds.
Ms. Smith's case is class-action certified to represent about
12,000 Arkansas landowners whom Smith's attorneys say were cheated
out of $98 million during years of royalty payments for the use of
their land to produce natural gas. That averages out to more than
$8,000 per lease.
Attorneys for Ms. Smith argue that two of the subsidiaries, run by
many of the same officers and all answering to Southwestern
Energy, conspired to create the third subsidiary with delegated
tasks and costs that the companies could then deduct, from
Ms. Smith's promised compensation, to create additional profit.
Such an action, Ms. Smith's attorneys argue, should not be
considered a "reasonable cost" for deduction from such
compensation.
Attorneys for the companies argue the lease allows for deductions
related to the "reasonable costs" of doing business, that
companies should be allowed to profit from their business and that
Ms. Smith and thousands of other landowners have already benefited
immensely from the royalty payments they've received.
Ms. Smith's case is one of numerous lawsuits filed against
Southwestern Energy subsidiaries and other natural-gas companies
in Arkansas and elsewhere that allege the shortchanging of royalty
payments to landowners.
Ms. Smith's case covers the largest number of people among the
lawsuits against Southwestern Energy subsidiaries in the shale,
and it is class-action certified along with two other state
circuit court lawsuits against the companies over similar
complaints. The companies opted to settle one of the cases --
Eldridge Snow v. SEECO, et. al. -- in Conway County Circuit Court
last month for $45 million. A circuit judge will hold a fairness
hearing on the settlement June 28 before deciding on final
approval.
Southwestern Energy produced about 70 percent of the gas in the
shale field, which still has active wells but no drilling rigs
creating new wells.
The trial, which requires six court reporters and features
hundreds of exhibits, began on June 5 with five hours of jury
selection and nearly two hours of opening statements. It is
expected to last three to four weeks.
Ms. Smith owns 30.3 acres off Interstate 40 in Conway County and
half of the mineral rights for the property, according to
testimony on June 6. She inherited the land from her father in
1996 and has operated a tree farm of loblolly pines on it.
Ms. Smith signed a lease with SEECO, short for Southwestern Energy
Exploration Co., in 2005 for five years and one-eighth of the
company's proceeds from the sale of the gas from her land. She
chose SEECO over other natural-gas companies after deciding that
the company's offer was the best, she said. SEECO drilled a well
on a neighbor's property but extracted gas from under Smith's
She testified on June 6 that pay stubs never indicated that costs
for the DeSoto Gathering subsidiary were deducted from her
compensation and that she wouldn't have known about it if a family
friend, Morrilton lawyer Ben Caruth, hadn't called her in May 2014
to tell her about another lawsuit alleging underpayments of
royalties to landowners who reside in Arkansas. After that, Smith
decided to sue in federal court.
According to Smith's attorneys, SEECO and Southwestern Energy
Services Co., -- both subsidiaries of Southwestern Energy Co. --
created DeSoto Gathering Co. to gather, compress and treat natural
gas, which SEECO had been doing, and then deducted DeSoto's cost
of doing business from compensation promised to
Ms. Smith by SEECO.
Mark Boling, executive vice president of Southwestern Energy Co.,
testified in a November 2015 deposition -- a nearly two-hour
excerpt of which was played in federal court on June 6 -- that
creating DeSoto Gathering as a separate company was necessary
because Southwestern Energy had certain desires for the kind of
leadership it wanted for the gathering process.
Mr. Boling also said that Southwestern wanted three separate
entities -- SEECO, DeSoto and Southwestern Energy Services -- to
run three separate steps of the natural-gas business. SEECO
explored and produced natural gas; DeSoto gathered, compressed and
treated it; and Southwestern Energy Services marketed it.
"In my mind, it was the most prudent thing to do, to do that, and
that's why we did it," Mr. Boling said.
On cross-examination, Mike Powell, an attorney for the companies,
questioned Smith's definition of "reasonable costs," which she
said were "actual costs," and asked Smith whether she was opposed
to companies earning a profit. Ms. Smith said she was not. Mr.
Powell also questioned whether she was trying to rewrite her lease
in court.
"I like the lease as it is," Ms. Smith said. "I just don't
believe the lease has been honored in good faith." [GN]
Katherine Coig, writing for glassBYTEs.com, reports that
Lucia Luong has filed a class action lawsuit against Subaru of
America Inc. in the Northern District of California, claiming the
windshields of 2015 through 2016 Subaru Outback and Legacy
vehicles "contain one or more design and/or manufacturing defects
that cause the windshield to crack, chip and/or fracture."
Ms. Luong alleges the company knew as early as 2014 that their
windshields were designed and/or manufactured with a defect, due
to "pre-production testing, pre-production design failure mode and
analysis data, production design failure mode and analysis data,
early consumer complaints made exclusively to Subaru's network of
dealers and directly to Subaru, aggregate warranty data compiled
from Subaru's network of dealers, testing conducted by Subaru in
response to consumer complaints, and repair order and parts data
received by Subaru from Subaru's network of dealers."
Ms. Luong purchased a new Subaru Outback in February 2015. Around
March 2017, she claims to have noticed a crack that had
"spontaneously appeared" from the base of the windshield. The
plaintiff alleges she had not witnessed any impact that would
cause the windshield to do so, nor had she driven the vehicle the
previous day. After taking her vehicle to the dealership for a
replacement, she claims she was denied warranty coverage.
According to the lawsuit, replacement windshields suffered from
the same defect, and dealers refused warranty coverage, despite
the windshield damage showing no point of impact.
Ms. Luong's attorneys cite numerous complaints to the National
Highway Traffic Safety Administration (NHTSA) by Subaru owners
regarding their windshields spontaneously cracking. According to
the court document, hundreds of thousands Subaru owners have made
complaints to NHTSA about the windshield defect.
This, the plaintiff says, presents a serious safety hazard that
Subaru should disclosed to consumers of the affected vehicles.
Attorneys for Ms. Luong have requested class action status,
stating they meet all requirements. The plaintiff also requests a
trial by jury.
The lawsuit was filed in the Northern District of California
San Francisco Division because Ms. Luong is a California resident.
The glass manufacturer was not named in the lawsuit, and Subaru
has yet to respond to the complaint as of press time. [GN]
Levi & Korsinsky, LLP, on June 7 disclosed that it has filed a
class action lawsuit in the United States District Court for
District of Connecticut on behalf of current stockholders of
Tangoe, Inc. (NASDAQ:TNGO) in connection with the planned
acquisition of the company by Marlin Equity Partners ("Marlin").
On April 28, 2017, Tangoe announced it had entered into an
agreement in which Marlin Equity Partners would acquire all
outstanding shares of Tangoe common stock for $6.50 per share
through a tender offer currently set to expire on June 13, 2017.
The lawsuit, entitled McArthur v. Tangoe, Inc., et al. (Case No.
3:17-cv-00832) alleges that the defendants solicit the tendering
of stockholder shares in connection with the sale of the Company
to Marlin through a recommendation statement that omits material
facts necessary to make the statements therein not false or
misleading. Stockholders require this material information to
decide whether to tender their shares.
If you wish to serve as lead plaintiff, you must move the Court no
later than August 7, 2017. If you wish to discuss this action or
have any questions concerning this notice or your rights or
interests, please contact plaintiff's counsel, Joseph E. Levi, at
Levi & Korsinsky, LLP, (212) 363-7500 or, or via e-mail at
jlevi@levikorsinsky.com. Any member of the putative class may
move the Court to serve as lead plaintiff through counsel of their
choice or may choose to do nothing and remain an absent class
A CLASS HAS NOT BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
Levi & Korsinsky -- http://www.zlk.com-- is a national firm with
offices in New York, California, Connecticut, and Washington D.C.
The firm's attorneys have extensive expertise and experience
representing investors in securities litigation, and have
recovered hundreds of millions of dollars for aggrieved
shareholders. [GN]
Terri Martin, Greta Duncan and Esther Imasuen, Individually, and
on behalf of themselves and all other similarly situated current
and former employees, Plaintiffs, v. State of Tennessee and
Commissioner Bonnie Hommich, Defendant, Case No. 3:17-cv-00907
(M.D. Tenn., June 2, 2017), seeks overtime compensation,
liquidated damages, interest, and attorneys' fees and costs
pursuant to the Fair Labor Standards Act.
Plaintiffs have been employed as hourly-paid Case Managers in the
Office of Child Safety of the Tennessee Department of Children's
Services. They claim to have worked through their one-hour unpaid
meal breaks.
Gordon E. Jackson, Esq.
James L. Holt, Jr., Esq.
J. Russ Bryant, Esq.
Paula R. Jackson, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Email: gjackson@jsyc.com
jholt@jsyc.com
rbryant@jsyc.com
pjackson@jsyc.com
Margaret J. Kerins, individually and on behalf of others similarly
situated, Plaintiff v. Union Associated Physician Clinic, LLC
(a/k/a AP&S Clinic, LLC or Union Medical Group), Defendant, Case
No. 2:17-cv-00249 (S.D. Ind., June 2, 2017), seeks damages
available under the Fair Labor Standards Act, including all unpaid
overtime wages, all liquidated damages, reasonable attorney's
fees, costs and expenses, unpaid and underpaid wages, statutory
damages owed under the Indiana Wage Claims Statute, including, but
not limited to, all treble damages, costs and statutorily
authorized damages, prejudgment interest, if available and any and
all other relief just and proper in the premises.
Kerins worked as a receptionist for UAP's Convenient Care Clinic
in Terre Haute, Vigo County, until she was involuntarily
terminated on or about April 20, 2017. She complains that her
actual time was rounded down to the nearest hour in favor of the
lower value. [BN]
Robert P. Kondras, Jr., Esq.
HUNT, HASSLER, KONDRAS & MILLER LLP
Email: kondras@huntlawfirm.net
Wadi Reformado, writing for Legal Newsline, reports that a Florida
woman has filed a class action lawsuit against a beauty care
products business, alleging negligent misrepresentation.
Millie Land of Mineola, Florida, filed a complaint, individually
and on behalf of others similarly situated and the general public,
May 25 in U.S. District Court for the Southern District of Florida
against Universal Handicraft, Inc., doing business as "Deep Sea
Cosmetics" doing business as "Adore Organic Innovations," and Shay
Sabag Segev, alleging false claims regarding their skin care
According to the complaint, Land suffered damages from being
misled into purchasing a falsely advertised skin care product that
the defendants falsely alleged could halt the aging process.
Ms. Land seeks trial by jury, certifying this case as a class
action damages, restitution and disgorgement, injunctive relief,
punitive damages, order the defendant to engage in a corrective
advertising campaign, all legal fees, and all other relief the
court deems just. She is represented by attorney Cullin O'Brien -
cullin@cullinobrienlaw.com -- of Cullin O'Brien Law PC in Fort
Lauderdale, Florida, and by Ronald Marron and Michael Houchin of
the Law Offices of Ronald Marron APLC in San Diego.
U.S. District Court for the Southern District of Florida case
number 1:17-cv-21947-CMA
Trudy Reynolds, individually and on behalf of all others similarly
situated, Plaintiff, v. USHealth Advisors, LLC, a Texas limited
liability company; Michael Smoot, individually; and Donald Dente,
individually, Defendants, Case No. 0:17-cv-61098 (S.D. Fla., May
31, 2017), seeks statutory damages, punitive damages, costs and
attorney fees.
Plaintiff claims that she received automated telemarketing calls
from Fente and Smoot without her prior express written consent.
USHealth Advisors hired Smoot and Fente to generate new business.
USHealth is a national health insurance distribution company,
which sells individual health coverage and supplementary insurance
products to America's self-employed, small business and individual
insurance market. [BN]
Scott D. Owens, Esq.
SCOTT D. OWENS, P.A.
3800 S. Ocean Dr., Ste. 235
Email: scott@scottdowens.com
Matthew P. McCue, Esq.
LAW OFFICE OF MATTHEW P. MCCUE
1 South Avenue, 3rd Floor
Email: mmccue@massattorneys.net
Beth E. Terrell, Esq.
Jennifer Rust Murray, Esq,
TERRELL MARSHALL LAW GROUP PLLC
Email: bterrell@terrellmarshall.com
jmurray@terrellmarshall.com
the quarterly period ended March 31, 2017, that the parties in the
Valeant Pharmaceuticals International Securities Litigation in
Canada have agreed to limit the proposed class by excluding U.S.
purchasers in the offerings.
Goldman Sachs & Co. LLC, formerly Goldman, Sachs & Co. (GS&Co.),
and Goldman Sachs Canada Inc. (GS Canada) are among the
underwriters and initial purchasers named as defendants in a
putative class action filed on March 2, 2016 in the Superior Court
of Quebec, Canada. In addition to the underwriters and initial
purchasers, the defendants include Valeant Pharmaceuticals
International, Inc. (Valeant), certain directors and officers of
Valeant and Valeant's auditor.
As to GS&Co. and GS Canada, the complaint generally alleges
misstatements and omissions in connection with the offering
materials for the June 2013 public offering of $2.3 billion of
common stock, the June 2013 Rule 144A offering of $3.2 billion
principal amount of senior notes, and the November 2013 Rule 144A
offering of $900 million principal amount of senior notes. The
complaint asserts claims under the Quebec Securities Act and the
Civil Code of Quebec and seeks compensatory damages in an
unspecified amount.
to dismiss the Valeant Pharmaceuticals International Securities
Litigation in New Jersey remains pending.
among the initial purchasers named as defendants in a putative
class action filed on June 24, 2016 in the U.S. District Court for
the District of New Jersey. In addition to the initial purchasers
for Valeant's Rule 144A debt offerings, the defendants include
Valeant, certain directors and officers of Valeant, Valeant's
auditor and the underwriters for a common stock offering in which
GS&Co. did not participate. As to GS&Co., the complaint generally
alleges misstatements and omissions in connection with the June
2013 and November 2013 Rule 144A offerings, asserts claims under
the federal securities laws, and seeks rescission and compensatory
damages in an unspecified amount. Defendants moved to dismiss on
GS&Co. and GS Canada, as sole underwriters, sold 27,058,824 shares
of common stock in the June 2013 offering representing an
aggregate offering price of approximately $2.3 billion and, as
initial purchasers, sold approximately $1.3 billion and $293
million in principal amount of senior notes in the June 2013 and
November 2013 Rule 144A offerings, respectively.
KIII News reports that homeowners in Portland are learning more
about a class action lawsuit filed against Voestalpine.
On June 6 the law firm behind the lawsuit met with residents who
say they are seeing a mysterious black dust covering their homes
and vehicles.
Voestalpine has offered to clean up properties affected, but the
law firm says that isn't enough.
Residents filled the auditorium at Gregory-Portland Jr. High
School to listen to a team of lawyers from Anderson 2x PLLC
regarding a lawsuit filed against the iron manufacturer.
Attorney Clif Alexander says the goal of the lawsuit is to make
sure residents are not in harms way living next to the plant.
It was last month when 3News first told you about concerns of
residents when they began to notice a mysterious black dust
coating everything from their cars to their homes. They believe it
was coming from the plant.
Mr. Alexander says residents he's talked to have concerns on
everything from potential property damage, to the health of their
pets and families.
Laura Hallowell first noticed it about a month ago in her pool.
"I'm worried about health concerns in the future. Property values
are going to be affected by this cause now we have to disclose
there is this problem. My garage door is already rusting. "
Karen Gutierrez, another resident, who lives off Calley Springs
and says her front door faces the plant. "We have a pet in the
back yard, he has a water dish, and we are having to empty it out
twice a day."
The Texas Commission of Environmental Quality has collected test
samples from the area.
Voestalpine has responded to the concerns in a recent press
release saying they will offer to pay to clean up properties
quote, "that have been affected by the black material that may
have come from temporary operations conducted at our facility."
The company also said the material poses no threat.
"We are not anti-business. We are not anti-development, we want
businesses to thrive that produces jobs, but they have to be good
neighbors." says Mr. Alexander.
Anderson 2x PLLC says over one-hundred people have joined the
lawsuit. [GN]
Jane Caffrey, writing for Kristv.com, reports that mysterious
black dust has been covering Portland homes for nearly a month
now, it has led to a federal lawsuit against voestalpine. On June
7 dozens of homeowners came out to learn more about that lawsuit
at a public meeting.
The mysterious black dust has been worrying Portland residents
since it started appearing on their homes in mid-May. Homeowners
believe the dust is coming from the nearby voestalpine plant, and
many came out to the June 7 public meeting with the attorneys that
filed a class action lawsuit seeking money in damages from
voestalpine.
The lawsuit accuses voestalpine of "failure to . . . prevent the
release . . . of potentially harmful toxins" and putting public
health at risk.
At the meeting, attorneys gave Portland residents an update on the
litigation process, laid out the claims the lawsuit is making, and
answered questions about how homeowners can get involved.
Voestalpine has not made a comment on the lawsuit. Company leaders
did responded to community concerns by offering cleanup services
to homes affected by the dust.
They add the plant's materials are iron based, a natural
substance, and say the dust does not pose any health risks or
environmental hazards.
However, homeowners are still leery, and just want the dust gone.
It is still unclear exactly what the black dust is, where it came
from, and whether it is harmful. The Texas Commission on
Environmental Quality has collected samples and is conducting an
investigation. They will release a report once that investigation
is complete. [GN]
Ryan C Pajarillaga, on behalf of himself, and all other plaintiffs
similarly situated, known and unknown, Plaintiff v. Warren Barr
Living & Rehab Center LLC, Defendant, Case No. 1:17-cv-04204,
(N.D. Ill., June 2, 2017), seeks to recover overtime and unpaid
back wages earned, damages, reasonable attorney's fees, costs and
litigation expenses, and such additional relief under the Fair
Labor Standards Act, Portal-to-Portal Act and the Illinois Minimum
Wage Law.
Warren Barr Living & Rehab Center provides senior care and
rehabilitation services to the public at approximately five
different locations throughout Chicago, Illinois. Plaintiff worked
as a nurse caregiver. [BN]
John William Billhorn, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 840
Amanda Werner and Christopher L. Peterson, writing for Deseret
News, report that on June 7, a Utah judge will decide whether more
than 50 consumers defrauded by banking giant Wells Fargo in its
fake account scandal will be forced to pursue claims one by one in
a secret arbitration system. Even as the bank's PR machine loudly
trumpets a focus on restoring consumer trust, Wells Fargo is
insisting once again that defrauded customers should be barred
from having their day in court.
Last September, the Consumer Financial Protection Bureau led a
$185 million enforcement action against the bank for opening as
many as 3.5 million fraudulent accounts and credit cards, which it
then used to charge illegal fees. While Wells Fargo initially
responded by firing 5,300 front-line employees it deemed "bad
apples," bank executives had, in fact, been made aware of this
fraud years earlier, warned directly by workers on multiple
occasions. A recent report from the Office of the Comptroller of
the Currency noted 700 whistleblower complaints related to the
aggressive cross-selling quotas pushed by upper management as far
back as 2010, and customers tried to sue the bank over fake
accounts since at least 2013.
Rather than addressing this systemic wrongdoing, Wells Fargo moved
to keep the scandal out of the public eye by pointing to "ripoff
clauses" buried deep in its contracts that force consumers to file
individual claims in secret hearings. It may seem strange that
the bank would prefer to face hundreds of thousands of consumers
one by one and not defend itself in a handful of class-action
lawsuits. Yet in practice, forced arbitration is not simply an
alternate forum, but a way to ensure the bank never has to give
consumers their money back.
A recent report from the nonprofit Level Playing Field found just
215 Wells Fargo customers pursued claims against the bank in
arbitration since 2009, despite millions of fake accounts exposed
by the CFPB. Looking at the numbers, it is not surprising so few
consumers file. Of the 48 cases that advanced to a final hearing,
only seven consumers in eight years received a dime from Wells
Fargo with the bank paying out just $349,549. Indeed, consumers
paid more restitution to Wells Fargo in arbitration than the other
way around.
No wonder the bank won't let it go.
Wells Fargo customers in the Utah case have argued -- quite
logically -- that the bank cannot use its contracts as a shield
against liability for systemic fraud. While forced arbitration
has been upheld in many contexts, it is clear Wells Fargo
customers could not reasonably understand that signing a standard
agreement for one product would block them from suing over a
separate account they never agreed to open. Indeed, at least one
consumer represented in this class action never even banked with
Wells Fargo.
Fortunately, the CFPB has proposed a rule that would restore
consumers' right to join together and challenge banks in court,
even when the fraud is not as egregious or widespread as Wells
Fargo's. The rule would also return transparency to the
arbitration process by creating a public record of claims and
outcomes, making it easier to unearth illegal practices before
they impact millions.
However, this rule can only protect consumers harmed by future
financial fraud. For the many thousands ensnared in Wells Fargo's
fake account scam, the federal court system is their last line of
While federal precedent often enforces fine print that almost
nobody reads, judges cannot allow corporate wrongdoers to pervert
freedom of contract into a license to steal from American
consumers. A more profound notion of freedom includes preserving
the public's right to equal justice under the law. [GN]
Jennifer Falsetti, writing for KOKH, reports that environmental
activist, Erin Brockovich is in Oklahoma to speak with those
impacted by the recent earthquakes.
Ms. Brockovich was joined by the Weitz & Luxenberg law firm to
discuss options for homeowners who experienced damage in the
earthquakes. They are a New York based Lawfirm that filed two
class action lawsuits against oil and gas companies in response to
the Cushing and Pawnee earthquakes.
Recently they overcame a motion to dismiss the suit in Payne
"We're very pleased, that means that the class action is going to
move forward," said Curt Marshall with the Weitz & Luxenberg law
firm.
The group spoke to concerned residents on June 6 at Oklahoma State
Erin Brockovich tells FOX 25 she is happy to see the Oklahoma
Corporation Commission step in by shutting down injection wells
near earthquake epicenters. She goes on to say that the action is
not enough to protect people and their property.
"I was really happy to see, as everybody was that they backed off
which has reduced the amount of earthquakes, helped the severity
of the earthquakes. But if you read some of the science reports
they clearly state it's not an all clear because the pressure is
still significant," she said.
Ms. Brockovich will be holding a second town hall meeting in
Shawnee at St. Gregory's University at 6:30 p.m. on June 7.
The suit has been filed against White Star Petroleum, Crown Energy
Company, PetroWarrior LLC, FHA Investments LLC and Cher Oil
Company. [GN]
Christopher Lee, individually, and on behalf of other members of
the general public similarly situated, Plaintiff, v. World Tech
Toys, Inc. and Does 1-10 Inclusive, Defendant, Case No. 8:17-cv-
00955 (C.D. Cal., June 2, 2017), seeks punitive damages, as
allowable, any and all statutory enhanced damages, reasonable and
necessary attorneys' fees and costs, pre- and post-judgment
interest and all other relief, general or special, legal and
equitable for violation of the Unfair Competition Law of the
California Business and Professions Code.
Plaintiff purchased Defendant's Elite Mini Orion HD Camera Drone
online through its vendor HobbyTron. While operating the Drone in
normal use, one of the legs on the Drone broke off. Defendant
refused to replace the Drone thereby refusing to honor its
warranty. [BN]
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
Ryan DiClemente, Esq. -- rdiclemente@saul.com -- of Saul Ewing
LLP, in an article for insideArm, reports that from 2004 until
2015, the number of putative class actions filed in the United
States has nearly quadrupled. In an effort to stem the tide of
class actions filings, the U.S. House of Representatives has
proposed legislation that could significantly impact the way class
actions are filed, litigated and settled in the future. This two-
part update details the potential changes to the class action
landscape and the impact these initiatives could have on future
class action litigation.
The Fairness in Class Action Act of 2017
On March 9, 2017, the U.S. House of Representatives passed the
Fairness in Class Action Act of 2017 ("the 2017 Class Action
Fairness Act"). The 2017 Class Action Fairness Act seeks to make
significant changes to the judicial code and the standard by which
courts certify class actions. Specifically, the Class Action
Fairness Act, among other things, will:
Prohibit federal courts from certifying class personal injury or
economic loss classes unless "each proposed class member suffered
the same type and scope of injury as the named class
representatives"; and
Require a party seeking to maintain a class action to demonstrate
a reliable and administratively feasible mechanism for the court
to determine whether putative class members fall within the class
definition and for the distribution of any monetary relief
directly to a substantial majority of class members (also known as
"ascertainability" in a variety of courts).
The 2017 Class Action Fairness Act also addresses the "conflicts
of interest" that may exist between a class representative and
class counsel. The Act requires putative class complaints to: (1)
disclose whether any named plaintiff is a relative of, a present
or former employee or client of, or has any contractual
relationship with class counsel; (2) describe "the circumstances
under which each class representative or named plaintiff agreed to
be included in the complaint; and (3) identify any other class
action in which such class representatives or plaintiffs have "a
similar role."
In addition, the 2017 Class Action Fairness Act places certain
limits on attorneys' fee awards in these cases. First, it limits
attorneys' fees to a reasonable percentage of: (1) any payments
received by class members; and (2) the value of any equitable
relief. Second, it prohibits the payment of any attorneys' fees
based on monetary relief until the monetary relief has been
provided to the class members.
The 2017 Class Action Fairness Act also seeks to limit the
litigation burden that these cases can create by requiring a stay
of discovery during the pendency of any motions to transfer,
strike class allegations or dismiss, or any other motion which
would dispose of the class allegations. The Act would also
require the court of appeals to hear all appeals of orders
granting or denying class certification (this decision currently
lies in the discretion of the court of appeals).
The 2017 Class Action Fairness Act will require class counsel to
submit certain data regarding the disbursement of funds paid by
defendants in class action settlements to the Federal Judicial
Center and the Administrative Office of the U.S. Courts. The
Judicial Conference of the United States will use this information
to prepare an annual summary for Congress and the public on the
use of these funds.
Current status and potential impact of The 2017 Class Action
Fairness Act
The Act's proposed changes were met with significant criticism
from a variety of groups. This included oppositions filed by the
American Bar Association, the Federal Judicial Center, the
Standing Committee on Rules, and the Administrative Office of U.S.
Courts, among others. These objections raised a number of
potential issues with the proposed legislation including, but not
limited to, the burden it could have on the court system by
requiring parties to file suits in smaller groups, further
delaying the time to disposition for class actions, and increasing
the burden on appellate courts. Notwithstanding these objections,
the 2017 Class Action Fairness Act was passed by the U.S. House of
Representatives and is now before the Senate's Judiciary
If entered into law, the 2017 Class Action Fairness Act could have
a significant impact on class action practice across the county.
Specifically, the requirement that economic damage classes
demonstrate that each proposed class member suffer the same "type
and scope" of injuries will require significant judicial
interpretation. Regardless of how this new requirement would be
interpreted over time, it would provide defense counsel with a new
and potentially significant defense to class actions. In
addition, the Act could impact the use of professional and/or
repeat plaintiffs or class representatives through the new
restrictions and limitations on class representatives described
Whether this Act is eventually adopted in whole, or in part, it is
certainly a development that is worth monitoring given its
potentially significant impact on class actions across the
country. Stay tuned for Part 2 of this update, in which we will
explore the proposed changes to Federal Rule of Civil Procedure 23
and its potential impact on class action practice. [GN]
Keith Anderson, Esq., of Bradley Arant Boult Cummings LLP, in an
article for Lexology, wrote that joining two other circuit courts,
the 6th Circuit concluded that employers cannot take advantage of
class action and collective action waivers as part of employment
arbitration agreements. In NLRB v. Alternative Entertainment,
Inc., the divided court agreed with the National Labor Relations
Board (NLRB) that prohibiting employees from pursuing class action
litigation or collective action arbitration violated the National
Labor Relations Act (NLRA). The 6th Circuit agreed with the 7th
and 9th Circuits, which are at odds with the 5th and 8th Circuits
on the class action waiver question. Based on the circuit split,
the U.S. Supreme Court has agreed to take up the question and will
ultimately decide whether class action and collective action
waivers in employment arbitration agreements violate the NLRA.
The Facts of the Case
AEI was changing its field technicians' compensation structure.
James DeCommer felt the change would cause him to lose between
$7,000 and $10,000 per year in compensation. Mr. DeCommer
complained about the compensation restructuring to his manager and
company president, and also spoke with 10 or more other
technicians who shared his frustration. Finally, Mr. DeCommer
spoke with AEI's CFO to express that he had talked with other
employees and all had concluded they would lose "quite a bit of
money" with the salary restructuring.
Two days after the conversation with the CFO, AEI fired
Mr. DeCommer because the "relationship [was] not working out," and
Mr. DeCommer had said he would not perform certain home sales
calls based on the new salary structure. Mr. DeCommer filed
charges against AEI with the NLRB.
The case centered around two employment documents: (1) an
arbitration agreement that stated that "[b]y signing this policy,
you and AEI also agree that a claim may not be arbitrated as a
class action, also called 'representative' or 'collective'
actions, and that a claim may not otherwise be consolidated or
joined with claims of others," and (2) the employee handbook that
prohibited unauthorized disclosure of confidential business
information "including any compensation or employee salary
information."
An administrative law judge (ALJ) concluded that AEI's mandatory
arbitration policy (with its class action and collection waivers)
prevented employees from taking concerted legal action as
protected under the NLRA. The NLRB agreed with the ALJ.
The 6th Circuit's Decision
The 6th Circuit agreed that the arbitration provision violated the
NLRA in preventing concerted action. Two federal statutes came
into play to evaluate whether the arbitration provision was
enforceable: the Federal Arbitration Action and the NLRA.
The FAA sets forth that arbitration agreements are generally
enforceable, and interpretive case law has consistently reflected
the "liberal federal policy favoring arbitration agreements." The
FAA provides that arbitration agreements are as enforceable as any
other contract, but, notably, the FAA does not make arbitration
agreements more enforceable than other contracts which is commonly
known as the "savings clause" in the FAA. For its part, the NLRA
gives employees the right to engage in "concerted activities for
the purpose of collective bargaining or other mutual aid or
protection" along with making it an unfair labor practice to
"interfere with, restrain, or coerce employees in the exercise" of
those rights. The court surmised that the two statutes were
compatible because the FAA's savings clause addressed the scenario
presented: The NLRA makes AEI's mandatory arbitration provision --
that interferes with the right to engage in concerted activity --
illegal on grounds that would be applicable to any other contract.
In other words, "because any contract that attempts to undermine
employees' right to engage in concerted legal activity is
unenforceable, an arbitration provision that attempts to eliminate
unenforceable." According to the 6th Circuit, the NLRA makes
clear that the right to concerted activity is a substantive right
that is not subject to waiver.
Where Does It Go From Here?
Several other federal circuit courts have weighed in on this
issue. The 9th and 7th Circuits agreed with the 6th Circuit that
mandating individual arbitration violated the NLRA based on the
savings clause. The 5th and 8th Circuits, on the other hand, have
found that class and collective action waivers as part of
arbitration agreements were enforceable and did not violate the
NLRA. The AEI opinion took particular issue with the 5th
Circuit's view that the policy behind the FAA trumped the policy
considerations behind the NLRA.
The AEI opinion included a partial dissent contending that the
employer and employee contracted to do just what the FAA allowed
in having disputes resolved in the efficient and cost-effective
forum of arbitration and that arbitration provisions have been
uniformly upheld. The dissent highlighted that neither the
majority opinion nor NLRB confronted what would make class or
collective litigation "concerted" in such a way that makes it a
substantive right that could not be voluntarily waived by the
employee.
So there is obvious dissension among the circuits on this question
of class action waiver, and the U.S. Supreme Court agreed in
January to resolve the circuit split with review of a related NLRB
decision. For now, however, employers with these agreements under
the 6th Circuit's jurisdiction (Kentucky, Michigan, Ohio, and
Tennessee) should evaluate their arbitration provisions and expect
challenges. Employers with these types of agreements in the
jurisdiction of the 5th Circuit (Louisiana, Mississippi, and
Texas) and 8th Circuit (Arkansas, Iowa, Minnesota, Missouri,
Nebraska, North Dakota, and South Dakota) are okay for now. Stay
tuned for the Supreme Court's final decision on the matter. [GN]
Michael McDonald, writing for Above the Law, reports that as
litigation finance continues to expand around the world,
peculiarities in some countries' legal models are offering new
opportunities for investors in the space. One example of this is
Germany has a lot going for it from an investor's point of view
-- a stable government, wealthy populace, vibrant economy, etc.
The country also does not allow class action law suits in the
traditional sense. This is potentially a boon to litigation
finance firms.
In the U.S., class action suits are often financed by the law
firms themselves. Attorneys in the U.S. can file a suit for a
single lead plaintiff and ask that it be certified as a class
action for all plaintiffs in a similar situation. Then, if
successful, members of the class often never even talk to an
attorney. While attorneys bear the risk upfront that their case
won't be successful, it is a calculated risk that many law firms
have made fortunes taking.
Litigation finance is already playing an active role in the U.S.
class action market. Attorneys can essentially convert their
"equity" in a class action case into a combination of contingent
debt and equity via litigation finance. That's an appealing
proposition, and it has helped to create opportunities for a
number of firms. While some industry giants like Burford have
avoided the space, other boutique firms like Towncenter Partners
are actively exploring the field.
As appealing as the U.S. model is, though, the German model is
even better -- so much so that every litigation finance company
ought to be trying to hire an associate who speaks German.
Under the German model, each plaintiff looking to participate in a
class action suit must file individually, and pay their legal fees
upfront. Investment lawsuits can be bundled for gathering
evidence, but all other suits (such as the VW suits going on at
present) have to proceed essentially independently. German
plaintiffs must pay their own legal bills if they lose (the
country has a "loser pays all" rule), and attorneys cannot finance
lawsuits or operate on a contingent fee basis.
What does all this mean?
It means that in Germany, the single biggest competitor to
litigation finance -- law firms taking cases on a contingent-fee
basis -- are barred, and the first world status of the country
means that there is dramatic need for financing. Litigation
finance is allowed in Germany, and a few British firms are already
operating there.
Traditionally, German firms have gotten around the country's rules
by setting up related party offices in foreign jurisdictions with
lower regulatory thresholds. This is a difficult process and it
is inefficient in many cases.
By partnering with a litigation finance firm, a law firm can take
cases and finance them, while allowing individual attorneys to
personally invest in the litigation finance firm as investors (if
desired).
There are proposals to change the German system, but so far it
does not appear these are going anywhere. While German attorneys
would love to see rules eased, German companies -- a powerful
constituency across the country -- worry about what effect a rules
change would have on their legal bills.
Overall, litigation finance has an opportunity to help both
plaintiffs and defendants in the German market to correct an
inefficiency that current finance providers do not effectively
service. Much of the excitement in the litigation finance market
these days is about opportunities in Hong Kong and Singapore, and
while those regions are potentially lucrative as well, the German
market is probably the single best opportunity in the space today.
Drew Hasselback, writing for Financial Post, reports that
companies have won a reprieve that prevents class action lawyers
from launching lawsuits over alleged breaches of Canada's anti-
spam law.
Canada's anti-spam legislation (CASL) was passed by Parliament
back in 2010, but the federal government has been bringing various
parts of the law into force in stages.
The third and final set of those provisions was supposed to enter
into force on July 1, and they would have set up a statutory
regime under which class action lawyers could sue companies for
breaches of the law.
But a cabinet order dated June 2 indefinitely repeals that July
coming-into-force date so Parliament can examine the legislation.
Barry Sookman -- bsookman@mccarthy.ca -- of McCarthy Tetrault LLP
in Toronto, who has repeatedly criticized CASL as deeply flawed,
said he is happy with the suspension.
"There is a commitment to listen to what we are saying and to fix
CASL if it needs to be fixed," he said in an interview.
On Twitter, University of Ottawa law professor Michael Geist
chided the Federal Liberal government for halting the rollout
because the Liberals voted for the legislation in 2010 while they
were in opposition, he said.
"Government apparently caving to lobbying pressure by delaying
anti-spam right of action," he said in a tweet.
The law has already given regulators, such as the Canadian Radio-
television and Telecommunications Commission, the power to bring
administrative cases against companies.
Introducing a "private right of action" would give members of the
public the right to sue companies, too. As a practical matter, the
most efficient way for that to happen is through the filing of
class action law suits.
Because CASL has been around since 2010, corporate lawyers have
already spent a long time advising clients on how to comply with
the law. They've long complained that even companies with the
best of intentions can run afoul of the law and expose themselves
to sanction from federal regulators. Tossing potential class
actions into the mix would add to those legal bills.
At a gathering of the Canadian Corporate Counsel Association in
Toronto last April, one in-house lawyer described plaintiff-side
class action lawyers as "counting their sleeps" until July 1.
"I can pretty much guarantee you that there's no one in the room
who complies with CASL today. It is a horrible, pervasive,
invasive piece of legislation that ought to keep you awake at
night," said Peter Clausi, general counsel with GTA Resources and
Mining Inc. [GN]
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