2017

May 2017

INSIDE THIS ISSUE

U.S. District Court Preliminarily Approves Class Action Settlement in Home Depot Data Breach Litigation

Scott+Scott Recovers $10.25 Million for FireEye, Inc. Investors

New York Appellate Court Affirms Denial of a Motion to Dismiss Consumer Class Action Against Banco Popular

Scott+Scott Files Lawsuit Alleging Walgreens Overcharges its Customers with Health Insurance for Certain Generic Drugs

EU Antitrust Commission Announces New Whistleblower Tool

Conferences and Educational Seminars

 

U.S. District Court Preliminarily Approves Class Action Settlement in Home Depot Data Breach Litigation

 

On March 10, 2017, Judge Thomas W. Thrash, Jr. of the United States District Court for the Northern District of Georgia entered an order preliminarily approving a class action settlement in In re The Home Depot, Inc., Customer Data Security Breach Litigation, a case arising from one of the largest data security breaches in the United States.  Financial institutions affected by the Home Depot breach, which occurred from April through September 2014, claimed that the retailer negligently failed to protect their and their customers’ data and that Home Depot violated several state consumer protection statutes.  These financial institutions alleged that this misconduct resulted in substantial harm, including considerable costs resulting from fraud losses, as well as the cancellation and reissuance of millions of credit and debit cards.

 

The proposed settlement is the result of hard-fought, arms-length negotiations, and calls for Home Depot to pay approximately $27.25 million, of which $25 million will be paid directly to the settlement class, while up to $2.25 million will be paid to compensate certain sponsored entities whose claims were released after they received misleading communications.  Furthermore, Home Depot will pay the costs of notice, administration, and attorneys’ fees and expenses, all separately from the settlement proceeds that go directly to the class.  Home Depot has also agreed to certain prospective relief relating to improving its data security measures to prevent a future data breach.  The settlement class consists of all U.S. financial institutions that issued payment cards identified as having been at risk as a result of the data breach and that did not previously release their claims against Home Depot. 

 

Settlement class members can make a “fixed payment award” claim, entitling them to $2.00 per compromised payment card over and above any per-card amount they receive from MasterCard’s ADC recovery program or Visa’s Global Compromise Account Recovery (“GCAR”) program, or they have the option to make a “documentary damages award” claim, allowing them to receive up to 60% of their total fraud, reissuance, and other costs related to the data breach, less any amounts received through network recovery programs, such as ADC and GCAR.  This negotiated flexibility is a significant benefit to affected financial institutions, allowing each entity, based on individual needs and circumstances, to decide how it would like to be compensated for its losses.  If a class member submits both a fixed payment award and a documentary damages award claim, they will receive whichever amount is higher.

 

The Court appointed Scott+Scott, Attorneys at Law, LLP as Co-Lead Counsel in the Home Depot data breach litigation.  A settlement website containing the relevant court filings, additional settlement information, important deadlines, as well as the forms to submit a claim, has been created at: www.homedepotbanksettlement.com.  Claims must be filed by September 14, 2017.  Requests for exclusion, objections to the settlement, and a notice of intent to appear at the final approval hearing are due by July 12, 2017.  The Court set a final settlement hearing for September 22, 2017, at which time it will be determined whether the settlement is fair, reasonable, and adequate.   

 

Scott+Scott Recovers $10.25 Million for FireEye, Inc. Investors

 

FireEye, Inc. and its affiliated entities ( “FireEye”) have agreed to pay $10,250,000 to purchasers of its common stock issued in the Company’s March 6, 2014 secondary public offering to settle claims that FireEye and certain of its officers and directors made misrepresentations and omitted key material information regarding the Company’s business and prospects when it conducted the secondary offering.  The Scott+Scott lawyers who represent the Plaintiffs consider this a great result, and on March 10, 2017, the Honorable Judge Peter H. Kirwan granted preliminarily approval to the settlement. 

 

FireEye is a global network security company that provides automated threat forensics and various products and related software to protect against cyber-attacks.  Its main product lines purport to offer malware protection for web, email, and file security, as well as malware analysis services.  Plaintiffs in the case alleged that Defendants violated the Securities Act of 1933 by inaccurately or misleadingly claiming that FireEye’s: (1) cybersecurity products provided a “complete” solution for cybersecurity threats; (2) software had the ability to “identify and block” known and previously unknown cybersecurity threats with “negligible” false positive rates; and (3) recent acquisition of another cybersecurity firm, Mandiant Corporation, represented a “significant opportunity [for FireEye] to leverage the inherent synergies” between FireEye and Mandiant.  Plaintiffs further alleged that after FireEye shares were sold to members of the public at a price of $82 per share, the price of FireEye shares began to fall soon after the Offering in response to news that gradually disclosed the truth concerning the actual quality, capabilities, and weaknesses of FireEye’s products and business. 

 

The suit was first instituted in June of 2014 with the operative complaint filed on March 4, 2015.  In April 2015, Defendants filed demurrers to the Complaint, arguing that the suit should be dismissed in its entirety with prejudice.  On August 11, 2015, the Court overruled Defendants’ demurrers.  The Court later denied Defendants’ additional attempts at dismissal.  One such dismissal attempt was appealed to the California Supreme Court, and was pending in front of the United States Supreme Court at the time the parties settled the claims.  Additionally, on July 11, 2016, the Court granted Plaintiffs’ motion for class certification. 

 

The parties’ preliminary settlement agreement is subject to certain conditions, including the Court granting final approval to the settlement at the settlement fairness hearing scheduled on August 4, 2017.  If the Court grants final approval, the settlement would be the second largest settlement brought in California state court under the Securities Act of 1933 and would be the largest such settlement concerning a secondary offering rather than an initial public offering.  The case is In re FireEye, Inc., Securities Litigation, Case No. 1:14-cv-266866 in the Superior Court for the State of California, Santa Clara County.  For more information on the proposed settlement, please visit www.fireeyesecuritieslitigation.com.

 

New York Appellate Court Affirms Denial of a Motion to Dismiss Consumer Class Action Against Banco Popular

 

The Appellate Division of the First Judicial Department of the Supreme Court of the State of New York (the “Appellate Court”) affirmed the decision of the lower court to deny a motion to dismiss a consumer class action against Popular Community Bank (“Banco Popular”) in Josefina Valle, et al. v. Popular Community Bank, Index No. 653936/2012, pending before the Supreme Court of New York (“Overdraft Fee Litigation”).  The Plaintiffs in the Overdraft Fee Litigation allege that Banco Popular imposed overdraft charges on Plaintiffs and other class members in violation of Section 349 of the New York General Business Law (“GBL”) by: (1) re-ordering customer transactions to maximize overdraft charges; (2) providing inaccurate account information in response to Plaintiffs’ balance inquiries; (3) failing to disclose, prior to completion of a transaction, that ATM withdrawals or debit card transactions would cause the account to be overdrawn. 

 

In February 2016, the Honorable Anil C. Singh granted in part and denied in part Defendant’s motion to dismiss.  Judge Singh held that the controlling legal precedent, Feld v. Apple Bank for Sav., 116 AD3d 549 (1st Dep’t 2014) (“Feld”), was distinguishable on its facts from the present case, and therefore, did not foreclose the court from finding that Defendant’s re-ordering practices were deceptive as a matter of law.  Judge Singh concluded that the Plaintiffs sufficiently stated a claim for violation

 

On appeal, the Defendant contended that the lower court’s interpretation of Feld was erroneous as a legal matter and that a correct reading of Feld should have led to the dismissal of Plaintiffs’ claims.  Banco Popular also argued that the Plaintiffs failed to plead causation and injury.  The Appellate Court agreed with the reasoning of Judge Singh.  In this regard, the Appellate Court stated that Plaintiffs’ GBL §349 claim was “properly supported by allegations that defendant provided plaintiffs with inaccurate balance information, often showing a positive balance when in fact their account balance was negative, and failed to provide real-time notice that a given transaction would overdraw the account, despite the feasibility of doing so . . . .”

 

Since Scott+Scott filed the action in New York Supreme Court in November 2012, the action was removed to federal court by Defendants, then subsequently remanded back to state court in August 2013.  Valle v. Popular Cmty. Bank, 2013 WL 4017165 (S.D.N.Y. Aug. 6, 2013).  In July 2015 and November of last year, Plaintiffs successfully defended Defendants’ repeated attempts to compel arbitration and to bifurcate discovery.  As noted above, Plaintiffs defeated Banco Popular’s motion to dismiss and also successfully struck certain of Defendant’s affirmative defenses from its Answer.    

 

Discovery is ongoing, and Plaintiffs’ class certification motion is currently due on August 1, 2017.  The parties are scheduled to appear before the Court on June 20, 2017 to discuss discovery. 

 

Scott+Scott Files Lawsuit Alleging Walgreens Overcharges its Customers with Health Insurance for Certain Generic Drugs

 

Eighty-nine percent of all prescriptions written in the United States are now for generic drugs.  A class action complaint recently filed on behalf of individual consumers and institutional investors by Scott+Scott, Attorneys at Law, LLP, alleges that the Walgreen Company (“Walgreens”) has been systematically overcharging millions of customers who use health insurance, rather than Walgreens’ own prescription savings program, to buy certain generic drugs.

 

Federal and state regulations prohibit pharmacies from charging more than their “usual and customary” prices for prescription drugs.  The usual and customary price is determined by the price charged by the pharmacy to cash-paying customers. 

 

Since 2007, Walgreens’ customers have been able to enroll in its Prescription Savings Club, which provides more than 500 commonly prescribed generic drugs to cash-paying customers at set pricing levels: 30-day prescriptions for $5, $10, or $15; and 90-day prescriptions for $10, $20, or $30.  These prices are the usual and customary prices used by Walgreens for the generic drugs at issue.

 

The complaint alleges that Walgreens regularly charges more than the Prescription Savings Club price to customers who pay for generic prescriptions with health insurance rather than cash.  As a result of this dual pricing scheme, the plaintiffs and other class members paid more than the usual and customary price at Walgreens.  The complaint seeks to remedy Walgreens’ unlawful activities, and asserts claims for fraud, negligent misrepresentation, unjust enrichment, and violations of several state consumer protection statutes.

 

The case is Dorothy Forth, et al. v. Walgreen Co., et al., Case No. 1:17-cv-02246, in the U.S. District Court for the Northern District of Illinois, Eastern Division.

 

EU Antitrust Commission Announces New Whistleblower Tool

 

On March 16, 2017, the European Union Antitrust Commission announced the introduction of a new tool that it hopes will encourage individuals to come forward and report violations of the EU’s antitrust policies.  Known as “whistleblowers,” these individuals typically have inside knowledge regarding secret business cartels and other breaches of antitrust law.  Like similar laws in the United States, EU antitrust laws exist to prevent companies from colluding and are designed to protect consumers by ensuring fair competition.

 

Frequently, the prosecutions of antitrust violations rely on the detailed inside information from whistleblowers.  As Margrethe Vestager, the commissioner in charge of EU competition policy recently acknowledged, “inside knowledge can be a powerful tool to help the Commission uncover cartels and other anti-competitive practices.”  

 

However, there are often legitimate concerns by potential whistleblowers about reporting known or suspected violations.  Fear of retribution or retaliation can prevent some individuals from coming forward.  The EU Antitrust Commission already has an established policy that allows individuals who are willing to reveal their identity to contact the Commission’s competition department directly through a dedicated phone number or email and report violations.  Nonetheless, most of the cartels that have been detected and prosecuted to date have been uncovered through the Commission’s leniency program.  That program relies on companies to self-report in exchange for reduced fines and penalties.

 

As a result, the Commission enacted their new whistleblower tool to provide for anonymous reporting in the hopes that more individuals will come forward as whistleblowers if they know their identity will be protected.  The new tool seeks to protect whistleblowers’ anonymity through the use of a specifically-designed encrypted system that is run by an external service provider.  This provides an intermediary, relaying only the content of received messages without forwarding any metadata that could later be used to identify the reporting individual. According to Vestager, “with our new tool it is possible to provide information, while maintaining anonymity.  Information can contribute to the success of our investigations quickly and more efficiently to the benefit of consumers and the EU’s economy as a whole.”

 

While the ultimate impact that this new tool will have on the number of whistleblower reports is yet to be determined, the Commission is confident that it has established various means to encourage reports of antitrust violations.  Between the leniency program that provides for self-reporting in the hopes of reduced fines, the direct reporting that requires an individual to identify themselves, and the anonymous whistleblower tool, the Commission expects antitrust prosecutions to rise in the near future.

 

Conferences and Events

May Events

 

 

+May 2 - 5, 2017

 

Illinois Public Pension Fund Association Midwest Pension Conference (IPPFA)

Eaglewood Resort & Conference Center

Itasca, IL

 

The Illinois Public Pension Fund Association is available to more than 600 Police and Fire Pension Funds.  The original IPPFA, Illinois Police Pension Fund Association, was organized by a group of police trustees in 1985 for the education and protection of Police pension funds in Illinois. The Firefighters joined the group more than eight years later and the IPPFA became known as the Illinois Public Pension Fund Association.  The IPPFA educational programs are certified trustee programs and are offered throughout the year at various locations throughout the state.  Other IPPFA sponsored programs include regional seminars, referral programs, on-line training,  legislative support, an annual conference as well as financial support to all member families who have lost a police officer or firefighter in the line of duty.  The Trustee Education Certification program will run in conjuction with the annual conference.

 

 

+May 3, 2017

 

Connecticut Public Pension Forum (CPPF)

CTCPA Education Center

Rocky Hill, CT

 

The Connecticut Public Pension Forum (CPPF) is a not-for-profit association created to provide a formal setting of educational and related programs for all public retirement systems within the State of Connecticut.  The CPPF's primary objective is to provide continuing educational programs to public retirement systems through scheduled seminars and written and verbal communications.  The purpose of the seminars will be to provide objective research on specific issues of common interest and create resources for public retirement systems.  Additionally, the seminars will provide a forum for discussion on national and state issues of interest to public retirement systems.

 

 

+May 16-19, 2017

 

State Association of County Retirement Sytems (SACRS)

Napa Valley Marriott Hotel

Napa, CA

 

An association of 20 California county retirement systems that have made education and legislation their principle focus, particularly education in the investment and fiduciary responsibility area.  SACRS was organized under the County Retirement Act of 1937 and has 2 main conferences annually; one in the fall and one in the spring as well as various symposiums throughout the year. This year’s conference will offer an opportunity to complete a special 2017-2018 Lobbyists’ Ethics Course.  More than 700 attendees are expected to register for the 4day conference.

 

 

+May 19- 23, 2017

 

American Alliance Conference & Educational Conference of Benefit Plans

La Fontainebleau

Miami, FL

 

This four day Union Conference provides several sessions of education, roundtable discussions and networking events.  Taft-Hartley and Union fund trustees, administrators, business managers and association leaders as well as service providers to the funds will be in attendance to learn the latest cost-saving ideas, legislative and legal developments in the pension fund and financial areas.  Fiduciary roles are growing in complexity as more legislation such as pension and health reform  which directly affect plan fiduciaries.  The American Alliance presents objective information as it is a nonlobbying and nonpartisan organization. Interesting topics include How to Deal with Expensive Specialty Drugs: to Pay or Not to Pay, Genetic Testing: to Pay or Not to Pay, The Mental Health Parity Act and Developments in Criminal Law Relating to Union and Benefit Fund Representatives.

 

 

+May 20 - 23, 2017

 

Michigan Association of Public Employee Retirement Systems Spring Conference

Grand Traverse Resort

Acme, MI

 

The Michigan Association of Public Employee Retirement Systems (MAPERS) was established to provide educational training and legislative updates to trustees of Public Employee Retirement Systems within the State of Michigan.  The legislative updates are issued by a full time professional lobbyist, hired thru Capitol Services, Inc.  Trustees, administrators, and staff representing Michigan public pension plans as well as state officials, investment, financial and legal consultants attend the annual spring and fall conferences.

 

 

+May 21-24, 2017

National Council for Public Employees Retirement System (NCPERS)

Westin Diplomat Hotel and Conference Center

Hollywood, FL

 

Founded in 1941, the National Conference on Public Employee Retirement Systems is the largest trade association for public sector pension funds, representing more than 550 funds throughout the United States and Canada.  More than 1,000 trustees, administrators, state and local officials, investment, financial and union officers from across the nation attend this annual conference and exhibition. NCPERS works to promote and protect pensions by focusing on advocacy, research and education for the benefit of public pension shareholders. The pre-conference Trustee Educational Seminar (TEDS) will take place May 20-21.

 

 

+May 21 – 24, 2017

 

Government Finance Officers’ Association 108th Annual Conference:

The Future of Government Finance

Colorado Convention Center

Denver, CO

 

The Government Finance Officers’ Association is a North American organization that originated 111 years ago.  This year thousands of public finance professionals will gather for this three-day conference to share ideas, develop technical and managerial skills, view new products, and network with peers.  The “keynote theme” of this year's conference and record setting registration is “Good to Great and the Social Sectors; Built to Last”.  Participants can earn over 20 CPE credits during the GFOA annual conference and over 30 if delegates attend GFOA pre-conference seminars. Pre-conference educational seminars will take place May 19-20.

 

 

 

+May 22-23,  2017

 

International Foundation of Employee Benefit Plans-Legislative Update

The Capital Hilton

Washington, D.C.

 

The Washington Legislative Update is designed to keep trustees abreast of the latest legislative and regulatory changes.  Learn from Washington insiders on how the events in Washingon will impact your plans.  The Washington Legislative Update is a must-attend program in 2017.  Following the implementation of the Affordable Care Act (ACA) this program will help you understand the future of the ACA and possible dramatic changes to our health care system and what potential ramifications these changes may have to employee benefit plans.  From policy initiatives to recent and proposed regulations, this conference will provide invaluable information. Many attendees schedule meetings with their congressional representatives around this conference. Trump’s First 100 Days will be reviewed as part of the 2017 political landscape.

 

 

+May 23 - 26, 2017

 

Police Officers Association of Michigan (POAM)

Amway Grand Hotel

Grand Rapids, MI

 

POAM is a full service labor organization formed to provide labor related service and representation.  This highly attended conference promises to deliver comprehensive legislative updates.  Traditionally the Police Officer of the Year award is announced at the conference. “POAM is the choice of Professionals.”

 

 

+May 24 – 25, 2017

Pennsylvania Association of Public Employees Retirement System (PAPERS)

Hilton Hotel and Convention Center

Harrisburg, PA

 

This is PAPERS 13th  Annual Spring Forum and is expected to be have the largest attendance since the organization was founded.  PA-PERS’ primary purpose in conducting an annual educational forum is to provide the basis for improved financial and operational performance of the public employee retirement systems in the state. PA-PERS acts as a central resource for educational purposes and networking agent. This year’s session topics range from Cyber Security and Social Media to Due Diligence and post-election Policy, Politics and Investments. PAPERS also conducts a Public Pension Certified Professional Program at various times throughout the year.

 

 

Government Finance Officers’ Association State Conferences:

 

 

+May 3- 5, 2017     

Louisiana GFOA 

Golden Nugget Hotel

Lake Charles, LA

http://www.lagfoa.org 

 

 

+May 4-5, 2017

New Hampshire GFOA

North Conway Grand

North Conway, NH

http://www.nhgfoa.org

 

 

+May 10 – May 12, 2017

GFOA of Missouri

Camden on the Lake

Lake of the Ozarks, MO

http://www.gfoa-mo.org

 

 

+May 10-12, 2017

Virginia GFOA Spring Conference

Hilton Virginia Beach Hotel

Virginia Beach, VA

http://www.vgfoa.org