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    Mealey's Litigation Procedure - Judge Declines To Strike Survey In False Ad Suit Between 2 Pharmaceutical Companies

    BOSTON - In a false advertisement lawsuit between two pharmaceutical companies over a bowel prep for colonoscopies, a Massachusetts federal judge on Oct. 14 refused to strike a survey examining whether a "superior cleansing efficacy" advertisement conveys a certain message (Ferring Pharmaceuticals Inc. v. Braintree Laboratories Inc., No. 13-12553, D. Mass.; 2016 U.S. Dist. LEXIS 142636).

    Mealey's Litigation Procedure - Judge Allows Mechanical Engineer To Testify On Defects In Lawn Mower

    BOSTON - A mechanical engineer may testify as to the defects in a lawn mower and the causation of a man's injuries while a doctor of bio-mechanics may testify as to the timing of the accident, a Massachusetts federal judge held Oct. 17 (Anthony Provanzano v. MTD Products Co. and Lowe's Home Centers LLC, No. 15-11720, D. Mass.; 2016 U.S. Dist. LEXIS 143402).

    Mealey's Litigation Procedure - 5th Circuit Won't Reconsider Split Ruling On Unnamed Opt-In Plaintiffs' Appeal

    NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Oct. 14 declined to reconsider its earlier ruling in which a split panel dismissed for want of jurisdiction an appeal by unidentified opt-in plaintiffs in a wage-and-hour dispute who were seeking an extension of equitable tolling (Joanna Marie Wilson, et al. v. Navika Capital Group, L.L.C., et al., No. 15-20204, 5th Cir.; 2016 U.S. App. LEXIS 18552).

    Mealey's Litigation Procedure - 5th Circuit: State Court Approved Settlement Can Preclude FLSA Claims

    NEW ORLEANS - A California state court approved opt-out class settlement that released Fair Labor Standards Act (FLSA) claims precludes FLSA claims brought in a federal court on behalf of California plaintiffs, a Fifth Circuit U.S. Court of Appeals panel ruled Oct. 14 (Raymond Richardson, et al. v. Wells Fargo Bank, N.A., et al., No. 15-20711, 5th Cir.; 2016 U.S. App. LEXIS 18528).

    Mealey's Litigation Procedure - Government Defends TCPA Constitutionality In Facebook Text Message Suit

    SAN FRANCISCO - The U.S. government intervened in a putative consumer class action in California federal court Oct. 17, filing a memorandum defending the constitutionality of the Telephone Consumer Protection Act (TCPA) in response to a question raised by defendant Facebook Inc. related to allegations that the social network violated the act by sending text notifications without user consent (Christine Holt v. Facebook Inc., No. 3:16-cv-02266, N.D. Calif.).

    Mealey's Litigation Procedure - Residents Affected By Toxic Chemical Spill Seek Class Status

    KNOXVILLE, Tenn. - A group of residents on Oct. 14 filed a brief in a Tennessee federal court arguing that it should certify a class action against CSX Transportation Inc. and another railroad company related to a spill of toxic chemicals that resulted from a train derailment based on the need to evacuate the residential area surrounding the site (Charles Tipton, et al. v. CSX Transportation Inc., et al., No. 15-311, E.D. Tenn.).

    Mealey's Litigation Procedure - Supreme Court Won't Revisit Daubert, Rule 702 Interaction In Denture Cream Case

    WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 17 denied a petition by 36 denture cream plaintiffs asking the high court to settle what they say is a conflict between the high court's expert testimony ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 [1993]) and Federal Rule of Evidence 702 (Ellenie Steele, et al. v. Proctor & Gamble Distributing LLC, et al., No. 16-338, U.S. Sup.).

    Mealey's Litigation Procedure - New York Federal Judge Allows 3 Counts In Action Against Deutsche Bank

    NEW YORK - A New York federal judge on Oct. 13 allowed three counts in a putative class action complaint alleging that Deutsche Bank entities mismanaged their 401(k) plan in violation of the Employee Retirement Income Security Act to proceed, saying that the plaintiffs' breach of fiduciary duty claim plausibly alleges that the plan fiduciaries breached their duties to act in the best interest of the plan and with due care by failing to remove excessively costly proprietary mutual funds (Ramon Moreno, et al. v. Deutsche Bank Americas Holding Corp., et al., No. 1:15cv9936, S.D. N.Y.; 2016 U.S. Dist. LEXIS 142601).

    Mealey's Toxic Tort/Environmental - Residents Affected By Toxic Chemical Spill Seek Class Status

    KNOXVILLE, Tenn. - A group of residents on Oct. 14 filed a brief in a Tennessee federal court arguing that it should certify a class action against CSX Transportation Inc. and another railroad company related to a spill of toxic chemicals that resulted from a train derailment based on the need to evacuate the residential area surrounding the site (Charles Tipton, et al. v. CSX Transportation Inc., et al., No. 15-311, E.D. Tenn.).

    Mealey's Litigation Procedure - Subclasses Denied In Inmates' Lawsuit Alleging Lack Of Dental Care

    CHICAGO - An Illinois federal judge on Oct. 13 denied a motion to divide a certified class into subclasses filed by inmates who claim that they were denied proper dental care while incarcerated (John Smentek, et al. v. Sheriff of Cook County, et al., No. 09-529, N.D. Ill.; 2016 U.S. Dist. LEXIS 141759).

    Mealey's Litigation Procedure - Gucci Will Issue Vouchers To Settle Song-Beverly Class Complaint

    SAN DIEGO - A California federal judge on Oct. 13 granted final approval to a settlement under which Gucci America Inc. will provide certain consumers with vouchers good for a free item or discount to settle claims that it improperly collected personal information from customers paying with a credit card (Jessica Manner, et al. v. Gucci America, Inc., No. 15-45, S.D. Calif.; 2016 U.S. Dist. LEXIS 142770).

    Mealey's Litigation Procedure - Cocoa Trading House Appeals Order Vacating $2.6M Award To 2nd Circuit

    NEW YORK - A New Jersey cocoa trading house on Oct. 14 filed a notice of appeal with the Second Circuit U.S. Court of Appeals, seeking to appeal an order granting a petition to vacate a $2,606,626 arbitral award issued against a cooperative made up of Peruvian farmers (Cooperativa Agraria Industrial Naranjillo Ltda. V. Transmar Commodity Group Ltd., No. 16-3356, S.D. N.Y.; 2016 U.S. Dist. LEXIS 129969).

    Mealey's Litigation Procedure - Michigan Federal Judge Bars Damages Experts' Opinions In Patent Infringement Suit

    DETROIT - In a patent infringement lawsuit concerning car navigational methods, a Michigan federal judge ruled Oct. 14 that damages experts failed to present a reliable methodology for a conjoint study to assist a jury in determining what portion of Garmin International Inc.'s profits could be attributed to the incremental value that the four patented features added to the overall value of the accused devices (Visteon Global Technologies Inc. and Visteon Technologies LLC v. Garmin International Inc., No. 10-10578, E.D. Mich.; 2016 U.S. Dist. LEXIS 142395).

    Mealey's Litigation Procedure - Judge Bars Expert Opinion On Responsible Care Initiative In Tainted Water Supply Suit

    CHARLESTON, W.Va. - Having found that American Chemistry Council's Responsible Care initiative is not an industry standard and does not impose an independent duty of care on a chemical distributor, a West Virginia federal judge on Oct. 13 excluded expert testimony on the initiative from both the distributor and plaintiffs accusing it of contaminating their water supply (Crystal Good, et al. v. American Water Works Company Inc., et al., No. 14-01374, S.D. W.Va.; 2016 U.S. Dist. LEXIS 141865).

    Mealey's Litigation Procedure - Investor Failed To Plead Elements Of Federal Securities Law Claims, Judge Rules

    SAN JOSE, Calif. - A federal judge in California on Oct. 12 granted several motions to dismiss filed by defendants in a securities class action lawsuit against a semiconductor producer and certain of its current and former executive officers, ruling that the lead plaintiff in the action failed to plead the elements of its securities fraud claims as required (Daniel Luna v. Marvell Technology Group Ltd., et al., No. 15-5447, N.D. Calif.; 2016 U.S. Dist. LEXIS 141567).

    Mealey's Litigation Procedure - Wells Fargo 401(k) Plan Participant Files Class Action Under ERISA

    MINNEAPOLIS - A former Wells Fargo & Co. employee and participant in its 401(k) plan on Oct. 14 filed a class action complaint under the Employee Retirement Income Security Act against the company, former and current executives and investment committee members, alleging that they breached their fiduciary duty by, among other things, retaining common stock of Wells Fargo as an investment option in the plan when a reasonable fiduciary using the "care, skill prudence, and diligence . . . that a prudent man acting in a like capacity and familiar with such matters" would have done otherwise (Lynette Fletcher, et al. v. Wells Fargo & Co., et al., No. 0:16-cv-03495, D. Minn.).

    Mealey's Litigation Procedure - U.S. Government: 2nd Circuit Erred In Denying Access To Irish-Based Emails

    NEW YORK - In an Oct. 13 motion for rehearing, the U.S. government tells the Second Circuit U.S. Court of Appeals that a panel ruling improperly deemed unenforceable a warrant seeking emails stored in a Microsoft Inc. server in Ireland because the provisions of the Stored Communications Act (SCA), under which the warrant was issued, cannot apply extraterritorially (In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.[Microsoft v. United States], No. 14-2985, 2nd Cir.).

    Mealey's Litigation Procedure - Federal Judge Finds Use Of Police Policies Does Not Make Testimony Irrelevant

    ROANOKE, Va. - Expert testimony is relevant under Federal Rules of Evidence 401 and 402 because the expert's use of police policies was one factor in forming his opinion, a Virginia federal judge ruled Oct. 12, also finding that the testimony should not be excluded under Federal Rule of Evidence 403, provided that the testimony does not equate policy violations with constitutional violations (Michael E. Wyatt v. Johnny Owens, et al., No. 14-00492, W.D. Va.; 2016 U.S. Dist. LEXIS 140878).

    Mealey's Litigation Procedure - Power Home Remodeling Settles TCPA Class Suit For $5.2 Million

    PHILADELPHIA - A Pennsylvania federal judge on Oct. 12 granted final approval of a $5.2 million settlement to be paid by Power Home Remodeling Group LLC to end a class complaint accusing the company of placing repeated automated sales calls to the cells phones of more than 1.1 million people in violation of the Telephone Consumer Protection Act (TCPA) (Teofilo Vasco v. Power Home Remodeling Group LLC, No. 15-4623, E.D. Pa.; 2016 U.S. Dist. LEXIS 141044).

    Mealey's Litigation Procedure - Vivendi Seeks Rehearing Of Panel's Affirmation Of Verdict In Securities Suit

    NEW YORK - A Second Circuit U.S. Court of Appeals panel erred in affirming a federal jury's verdict against a French company for issuing a series of misrepresentations regarding liquidity in violation of federal securities law, and rehearing is necessary because the ruling is in conflict with U.S. Supreme Court precedent, the company argues in an Oct. 11 motion for rehearing and rehearing en banc (In re Vivendi S.A. Securities Litigation, No. 15-180, 2nd Cir.).

    Mealey's Litigation Procedure - Defendants: Flint, Mich., Residents' Claims Fail In Water Crisis Lawsuit

    DETROIT - A group of defendants in a putative class action filed by residents of Flint, Mich., contending that various state officials are liable for injuries that have stemmed from exposure to lead-contaminated drinking water moved in Michigan federal court to have the case dismissed on grounds that they are covered by sovereign immunity and federal law pertaining to drinking water "provides a comprehensive remedial scheme which precludes all claims" (Lawrence Washington, Jr., et al. v. Governor Richard Dale Snyder, et al., No. 16- 11247, E.D. Mich.).

    Mealey's Litigation Procedure - Judge Finds Removal Of Wage-Related Class Was Improper, Remands

    LOS ANGLES - A California federal judge on Oct. 13 granted a motion to remand a case filed by an employee who alleged wage-related and other claims against his former employer, finding that the amount in controversy did not meet the requirements for removal of a class action to a federal court (Gustavo Segura Santoya v. Consolidated Foundries Inc., et al., No. 16-02232, C.D. Calif.; 2016 U.S. Dist. LEXIS 142112).

    Mealey's Litigation Procedure - Federal Judge Refuses To Enter Default For Alleged Unlawful Broadcast

    SAN FRANCISCO - A California federal judge on Oct. 13 refused to enter a default ruling in favor of a sports production company on its claims for violation of California's unfair competition law (UCL) and other causes of action in relation to the alleged unlawful broadcast of a boxing match, finding that it failed to plead sufficient facts to support a finding that a restaurant owner was liable (J&J Sports Productions Inc. v. Yolanda K. Crawford, No. 16-cv-01744, N.D. Calif.; 2016 U.S. Dist. LEXIS 142038).

    Mealey's Litigation Procedure - California Employer To Pay $6 Million To Settle Federal, State Wage Claims

    SAN FRANCISCO - A California federal judge on Oct. 11 granted preliminary approval of a $6 million settlement to be paid by a company that provides asset protection solutions to hourly technicians who are members of a putative class and collective action in which they alleged that they were denied compensation for work-related activities, including mandatory trainings and traveling to and from customer worksites (Edgar Viceral, et al. v. Mistras Group, Inc., No. 15-2198, N.D. Calif.; 2016 U.S. Dist. LEXIS 140759).

    Mealey's Litigation Procedure - Judge Bars Employee From Testifying On Trademark Confusion In Trade Secrets Suit

    PHILADELPHIA - In a misappropriation of trade secrets lawsuit, a company's employee in its marketing department is unqualified due to a lack of technical knowledge to testify on issues such as "branding, trademark confusion, customer reactions, business ethics, or trademark law," a Pennsylvania federal judge ruled Oct. 12, excluding the testimony (Alpha Pro Tech Inc. v. VWR International LLC, No. 12-1615, E.D. Pa.; 2016 U.S. Dist. LEXIS 141030).