/raid1/www/Hosts/bankrupt/CAR_Public/150331.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 31, 2015, Vol. 17, No. 64
Headlines
ACADIA PHARMACEUTICALS: Sued Over Misleading Financial Reports
ALABAMA: Strawser Gets OK to File 2nd Amended Complaint v. AG
ALLIED INTERSTATE: Must Face "Nicholson" FDCPA Action
ANTHEM INC: Faces "Bell" in S.D. Ga. Over Alleged Data Breach
ANTHEM INC: Faces "Coler" Suit in D.N.H. Over Alleged Data Breach
ANTHEM INC: Faces "Mertz" Suit in Ind. Over Alleged Data Breach
ANTHEM INC: Notice on Factors to Consider in Settlements Issued
APEX WIND: Judge Narrows Claims in "Walker" Class Action
BAUE FUNERAL: Illegally Terminates Employees, "Boland" Suit Says
BAYER AG: N.D. Cal. Judge Narrows Claims in "Gallagher" Suit
BLACKBERRY LTD: Judge Dismisses Securities Class Action
CALIFORNIA: Mag. Judge Recommends Dismissal of "Anderson" Suit
CAPITAL ONE: N.D. Ill. Judge Okays TCPA Class Action Settlement
CAR CONVEYANCE: Faces "Wright" Suit Over Failure to Pay Overtime
CCG MARKETING: Judge Awards $6k to Plaintiff, Nixes Junk Fax Suit
COMENITY BANK: Victoria's Secret Customer Can't Proceed as Class
COSTCO WHOLESALE: Judge Granted Bid to Dismiss "Perez" Suit
CREIG NORTHROP: D. Md. Judge Tosses Defendants' Counterclaims
CRESCENT DIRECTIONAL: "Page" Suit Seeks to Recover Unpaid OT
FACEBOOK INC.: Minor Class Certified in In-App Purchase Suit
FIRST STUDENT: C.D. Cal. Judge Won't Grant Class Certification
GADSDEN, AL: Judge Trims Suit Over Post-Arrest Referral Program
GENERAL MOTORS: Documents Reveal Ignition Switch Problem Cover-Up
GEORGE'S ITALIAN: Faces "Leyton" Suit Over Failure to Pay OT
GILSTER-MARY: W.D. Mo. Judge Remands Workers' Suit to State Court
H & C CHEMISTS: Suit Seeks to Recover Unpaid OT Wages & Damages
HOMEJOY INC: Faces Wage-and-Hour Suit in California
HONEYWELL INT'L: E.D. Mo. Judge Narrows Claims in "Johnsen" Suit
INOGEN INC: Sued in C.D. Cal. Over Misleading Financial Reports
JANI-KING: Court Certifies Class in "Myers" Class Action
JANSSEN PHARMA: Pa. Superior Court Upholds Topamax Verdict
KING INTELLIGENCE: "Decembre" Suit Seeks to Recover Unpaid OT
LAM CLOUD: Has Sent Unsolicited Fax Advertisement, Suit Claims
LENTUO INTERNATIONAL: Sued Over Failure to Pay Overtime Wages
LENOVO US: Faces "Ravencamp" Suit Over Harmful Spyware
LOUISIANA COSMETOLOGY: Bid to Dismiss Salon Owners' Suit Denied
LUMBER LIQUIDATORS: Faces "Giorlando" Suit Over Toxic Flooring
LUMBER LIQUIDATORS: Faces "Ronquillo" Suit Over Toxic Flooring
LUMBER LIQUIDATORS: Faces "Steinlauf" Suit Over Toxic Flooring
M-I LLC: "Sanchez" Seeks to Recover Unpaid OT Wages & Damages
MIDLAND CREDIT: Judge Ruled on Motion to Strike Expert Report
MISSOURI: Lombardi Gets Partial Summary Judgment in "Van Orden"
MOBIL EXPLORATION: Court Wants Amended Complaint Served to MOEPSI
MOLYCORP INC: Judge Grants Bid to Dismiss NY Securities Suit
MOMOYAMA INC: Faces "Reaves" Suit Over Failure to Pay Overtime
MOONLITE DINER: Faces "Fenty" Suit Over Failure to Pay Overtime
MSR GROUP: Has Sent Unsolicited Calls, "Fox' Suit Claims
NAT'L COLLEGIATE: Court Hears Arguments in Antitrust Class Action
NAT'L FOOTBALL: Jury Awards $75,000 to Ticketholder Plaintiffs
NEW YORK, NY: Settles Suit by Hearing Impaired Police Officers
NEW YORK: Order Dismissing Claims in "Clarke" Case Upheld
PASSAIC COUNTY, NJ: Judge Allows Inmate to Amend Complaint
PROPARK AMERICA: Appeals Court Affirms Settlement in "Kudrna" Case
RICK LEVIN: Faces "Metrick" Suit Over Failure to Pay Overtime
SAN DIEGO, CA: Modified Opinion Entered in Universal Case
SEARS HOLDING: D.N.J. Judge Sends "Ricci" Case to Arbitration
SKIN CABARET: Faces "Jones" Suit Over Failure to Pay Overtime
SOUTHWEST TRANSPORT: Sued Over Failure to Pay Overtime Wages
SPECIALTY GRAPHINCS: TCPA Claim Should Proceed, Judge Says
ST. JOSEPH SERVICES: "Peters" Suit Over Data Theft Tossed
STARBUCKS CORPORATION: Must Face "Heinzl" ADA Class Suit
T.B. YOSHIDA: Settlement in Server's Action Won Initial Approval
TELEFORA LLC: Bid to Vacate Clerk's Taxation Cost Junked
TJ MAXX: 2nd Amended Complaint to Be Filed in "Roberts" Suit
TRAVELERS COMMERCIAL: Del. Judge Dropped Policy Holders' Suit
UBER TECHNOLOGIES: Cab Companies File Suit Over Safety Claims
UNITED STATES: 9th Cir. Upholds "Villalta" Suit Dismissal
UNITED STATES: "Berman" Suit Goes Back to Medicare Appeals Council
VESUVIO'S II PIZZA: Faces "Solais" Suit Over Failure to Pay OT
VOLKSWAGEN AG: Judge Awards Attorneys' Fees to Class Counsel
WASTE MANAGEMENT: M.D. La. Judge Won't Grant Class Certification
WELLS FARGO: Cal. Appeals Court Flips Ruling in "Prestwood" Case
WEST PUBLISHING: 9th Cir. Reverses Atty. Fee Award Ruling
WINDSOR MOLD: Final Fairness Hearing Set for Aug. 20 in "Filby"
XCELERA INC: Judge Won't Certify Class in "Steginsky" Suit
* Class Actions Over Herbal Supplements Fraud Pile Up
* Securities Class Actions Against Life-Science Companies Double
*********
ACADIA PHARMACEUTICALS: Sued Over Misleading Financial Reports
--------------------------------------------------------------
Jeff Rihn, individually and on behalf of all others similarly
situated v. Acadia Pharmaceuticals Inc., Uli Hacksell and Stephen
R. Davis, Case No. 3:15-cv-00575 (S.D. Cal., March 13, 2015),
alleges that the Defendants made false and misleading statements,
as well as failed to disclose material adverse facts about the
Company's business, operations, and prospects.
Acadia Pharmaceuticals Inc. is a biopharmaceutical company focused
on the development and commercialization of medicines to address
unmet medical needs in neurological and related central nervous
system disorders.
The Plaintiff is represented by:
David C. Walton, Esq.
Trig R. Smith, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: davew@rgrdlaw.com
trigs@rgrdlaw.com
- and -
Frank J. Johnson, Esq.
Brett M. Weaver, Esq.
JOHNSON & WEAVER, LLP
600 West Broadway, Suite 154
San Diego, CA 92101
Telephone: (619) 230-0063
Facsimile: (619) 255-1856
E-mail: frankj@johnsonandweaver.com
brettw@johnsonandweaver.com
ALABAMA: Strawser Gets OK to File 2nd Amended Complaint v. AG
-------------------------------------------------------------
JAMES N. STRAWSER, et al., Plaintiffs, v. LUTHER STRANGE, in his
official capacity as Attorney General for the State of Alabama,
DON DAVIS, in his official capacity as Probate Judge of Mobile
County, Alabama, Defendants, CIVIL ACTION NO. 14-0424-CG-C, (S.D.
Ala.) is before the court on Plaintiffs' motion for leave to file
second amended complaint adding additional parties and plaintiff
and defendant classes.
"There being no substantial reason to deny leave to amend, the
court must allow the amendment," wrote District Judge Callie V. S.
Granade in his order entered March 18, 2015, a copy of which is
available at http://is.gd/CyqVuNfrom Leagle.com. "Accordingly,
Plaintiffs' motion for leave to file a second amended complaint is
hereby granted."
The Court said the Plaintiffs have alleged adequate facts to
support a potential class claim and the court will not engage in a
detailed and rigorous analysis of the class claims until all of
the current parties have had the opportunity to oppose or support
the motion for class certification.
James N. Strawser, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
John E. Humphrey, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
Robert Povilat, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
Anna Lisa Carmichael, Plaintiff, represented by Christopher F.
Stoll, National Center for Lesbian Rights, David Dinielli,
Southern Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq,
Dunn & Fann, P.C., Randall C. Marshall, ACLU of Alabama
Foundation, Inc., Scott D. McCoy, Southern Poverty Law Center,
Shannon P. Minter, National Center for Lesbian Rights, Ayesha Khan
& Zachary Alan Dietert.
Kristy Simmons, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
Milton Persinger, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
Meredith Miller, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
Marshay Safford, Plaintiff, represented by Christopher F. Stoll,
National Center for Lesbian Rights, David Dinielli, Southern
Poverty Law Center, Heather Rene Fann, Boyd, Fernambucq, Dunn &
Fann, P.C., Randall C. Marshall, ACLU of Alabama Foundation, Inc.,
Scott D. McCoy, Southern Poverty Law Center, Shannon P. Minter,
National Center for Lesbian Rights, Ayesha Khan & Zachary Alan
Dietert.
Luther Strange, in his official capacity as Attorney General of
the State of Alabama, Defendant, represented by James W. Davis,
Office of the Attorney General, Laura Elizabeth Howell & Andrew L.
Brasher.
Don Davis, in his official capacity as Probate Judge of Mobile
County, Alabama, Defendant, represented by Joseph Michael Druhan,
Jr., Johnston Druhan, LLP, Mark S. Boardman, Boardman, Carr,
Bennett, Watkins, Hill & Gamble, P.C., Clay Richard Carr,
Boardman, Carr & Hutcheson, P.C., Harry V. Satterwhite,
Satterwhite & Tyler, LLC, Lee L. Hale, Hale and Hughes & Teresa
Bearden Petelos.
ALLIED INTERSTATE: Must Face "Nicholson" FDCPA Action
-----------------------------------------------------
District Judge Joseph F. Bianco of the Eastern District of New
York denied defendants' motion in the case RICHARD NICHOLSON,
Plaintiff, v. ALLIED INTERSTATE, LLC, AND IQOR, INC., Defendants,
NO. 14-CV-1167 (JFB) (ARL) (E.D.N.Y.)
The plaintiff Richard Nicholson received a letter from the
defendant Allied Interstate, Inc. purporting to collect a student
loan debt owed to United Guaranty Residential Insurance Company.
Plaintiff asserts that he has never owed a debt to that company.
He mailed a letter of dispute to the address listed on the
collection letter, but the letter was returned to him marked not
deliverable as addressed/unable to forward.
Plaintiff avers that the address on the collection letter was, in
fact, the address of a call center owned by iQor, Inc. Plaintiff
asserts that Allied routinely uses iQor's mailing address, in
order to frustrate consumer complaints. Plaintiff asserts that
this practice violates Section 1692e of Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. Section 1692, et seq., which
prohibits the use of false, deceptive, or misleading
representation or means in connection with the collection of any
debt.
Defendants served plaintiff with an offer of judgment, pursuant to
Fed. R. Civ. P. 68, but plaintiff did not accept the offer, and
the offer expired.
Plaintiff brings an action against Allied and iQor, asserting
claims under the FDCPA. Plaintiff asserts claims individually and
as a representative of a putative class action.
Defendants move to dismiss the complaint for lack of subject
matter jurisdiction, arguing that plaintiff's claims are moot. In
the alternative, defendants seek dismissal of all claims against
defendant iQor, pursuant to Fed. R. Civ. P. 12(b)(6), on the
grounds that iQor cannot be held liable for Allied's conduct.
Judge Bianco denied defendants' motion to dismiss the complaint in
its entirety.
A copy of Judge Bianco's order dated March 10, 2015, is available
at http://is.gd/RyatLNfrom Leagle.com.
Plaintiff is represented by:
Debora Gerads, Esq.
THOMASSON LAW LLP
101 Hudson Street, 21st Floor
Jersey City, NJ 07302
Telephone: 201-479-9969
Facsimile: 855-479-9969
- and -
Abraham Kleinman, Esq.
KLEINMAN, LLC
626 RXR Plaza
Uniondale, NY 11556-0626
Telephone: 516-522-2621
Facsimile: 888-522-1692
Defendants are represented by Casey Laffey --
claffey@reedsmith.com -- Nana Japaridze --
njaparidze@reedsmith.com -- at Reed Smith LLP
ANTHEM INC: Faces "Bell" in S.D. Ga. Over Alleged Data Breach
-------------------------------------------------------------
Elizabeth Bell, individually and on behalf of all others similarly
situated v. Anthem, Inc., et al., Case No. 4:15-cv-00067 (S.D.
Ga., March 13, 2015), is brought against the Defendant for failure
to provide adequate security and protection for its computer
systems containing patient's personally identifiable information
and personal health information.
Anthem Inc. is an Indiana corporation that owns and operates a
managed health care company.
The Plaintiff is represented by:
Thomas A. Withers, Esq.
GILLEN WITHERS & LAKE, LLC
8 East Liberty Street
Savannah, GA 31401
Telephone: (912) 447-8400
Facsimile: (912) 629-6347
E-mail: twithers@gwllawfirm.com
- and -
Gary F. Lynch, Esq.
Edwin J. Kilpela Jr., Esq.
Jamisen A. Etzel, Esq.
CARLSON LYNCH SWEET & KILPELA, LLP
PNC Park
115 Federal Street, Suite 210
Pittsburgh, PA 15212
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@car1son1ynch.com
ekilpela@carlsonlynch.com
jetzel@carlsonlynch.com
- and -
Karen H. Riebel, Esq.
Heidi M. Silton, Esq.
Kate M. Baxter-Kauf, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: khriebel@locklaw.com
hmsilton@locklaw.com
kmbaxter-kauf@locklaw.com
- and -
Jayne A. Goldstein, Esq
POMERANTZ LLP
1792 Bell Tower Lane, Suite 203
Weston, FL 33326
Telephone: (954) 315-3454
Facsimile: (954) 315-3455
E-mail: jagoldstein@pomlaw.com
- and -
W. Daniel "Dee" Miles III, Esq.
Larry A. Golston, Esq.
Andrew E. Brashier, Esq.
BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C.
272 Commerce Street
Post Office Box 4160
Montgomery, AL 36103-4160
Telephone: (334)269-2343
Facsimile: (334) 954-7555
E-mail: dee.miles@beasleyallen.com
larry.golston@beasleya1len.com
Andrew.brashier@beasleyallen.com
ANTHEM INC: Faces "Coler" Suit in D.N.H. Over Alleged Data Breach
-----------------------------------------------------------------
Garrett Coler, on behalf of himself and all others similarly
situated v. Anthem, Inc., et al., Case No. 1:15-cv-00090 (D.N.H.,
March 13, 2015), is brought against the Defendant for failure to
provide adequate security and protection for its computer systems
containing patient's personally identifiable information and
personal health information.
Anthem Inc. is an Indiana corporation that owns and operates a
managed health care company.
The Plaintiff is represented by:
David W. Ruoff, Esq.
HOWARD & RUOFF PLLC
831 Union St
Manchester, NH 03104
Telephone: (603) 625-1254
Facsimile: (603) 203-5268
E-mail: druoff@howardruoff.com
ANTHEM INC: Faces "Mertz" Suit in Ind. Over Alleged Data Breach
---------------------------------------------------------------
Caroline Mertz, individually and on behalf of all others similarly
situated v. Anthem, Inc., et al., Case No. 1:15-cv-00422 (S.D.
Ind., March 13, 2015), is brought against the Defendant for
failure to provide adequate security and protection for its
computer systems containing patient's personally identifiable
information and personal health information.
Anthem Inc. is an Indiana corporation that owns and operates a
managed health care company.
The Plaintiff is represented by:
Sean P. Burke, Esq.
Hamish S. Cohen, Esq.
MATTINGLY BURKE COHEN & BIEDERMAN LLP
3646 N. Washington Blvd.
Indianapolis, IN 46205
Telephone: (317) 614-7320
E-mail: sean.burke@mbcblaw.com
hamish.cohen@mbclaw.com
- and -
Gary F. Lynch, Esq.
Edwin J. Kilpela Jr., Esq.
Jamisen A. Etzel, Esq.
CARLSON LYNCH SWEET & KILPELA, LLP
PNC Park
115 Federal Street, Suite 210
Pittsburgh, PA 15212
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
ekilpela@carlsonlynch.com
jetzel@carlsonlynch.com
- and -
Karen Hanson Riebel, Esq.
Heidi M. Silton, Esq.
Kate M. Baxter-Kauf, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401-2159
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: khriebel@locklaw.com
hmsilton@locklaw.com
kmbaxter-kauf@locklaw.com
- and -
Jayne A. Goldstein, Esq.
POMERANTZ LLP
1792 Bell Tower Lane, Suite 203
Weston, FL 33326
Telephone: (954) 315-3454
Facsimile: (954) 315-3455
E-mail: jagoldstein@pomlaw.com
- and -
W. Daniel "Dee" Miles III, Esq.
Larry A. Golston, Esq.
Andrew E. Brashier, Esq.
BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, P.C.
272 Commerce Street
Post Office Box 4160
Montgomery, AL 36103-4160
Telephone: (334) 269-2343
Facsimile: (334) 954-7555
E-mail: dee.miles@beasleyallen.com
larry.golston@beasleyallen.com
andrew.brashier@beasleyallen.com
- and -
Bryan L. Bleichner, Esq.
Francis J. Rondoni, Esq.
Jeffrey D. Bores, Esq.
CHESTNUT CAMBRONNE PA
17 Washington Avenue North, Suite 300
Minneapolis, MN 55401
Telephone: (612) 339-7300
Facsimile: (612) 336-2940
E-mail: bbleichner@chestnutcambronne.com
frondoni@chestnutcambronne.com
jbores@chestnutcambronne.com
- and -
Joseph P. Guglielmo, Esq.
David R. Scott, Esq.
Erin Green Comite, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW
156 South Main Street, P.O. Box 192
Colchester, CT 06415
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
E-mail: jguglielmo@scott-scott.com
david.scott@scott-scott.com
ecomite@scott-scott.com
ANTHEM INC: Notice on Factors to Consider in Settlements Issued
---------------------------------------------------------------
In CLIFF SOJOURNER, individually and on behalf of all others
similarly situated, Plaintiff, v. ANTHEM, INC., Defendant, NO. C
15-00637 WHA, (N.D. Cal.), District Judge William Alsup issued on
March 3, 2015, a notice regarding factors to be evaluated for any
proposed class settlement in the case.
Judge Alsup held that counsel should review these substantive and
timing factors that will be considered in determining whether to
grant preliminary and/or final approval to a proposed class
settlement.
1. ADEQUACY OF REPRESENTATION.
2. DUE DILIGENCE.
3. COST-BENEFIT FOR ABSENT CLASS MEMBERS.
4. THE RELEASE.
5. EXPANSION OF THE CLASS.
6. REVERSION.
7. CLAIM PROCEDURE.
8. ATTORNEY'S FEES.
9. DWINDLING OR MINIMAL ASSETS?
10. TIMING OF PROPOSED SETTLEMENT.
11. A RIGHT TO OPT OUT IS NOT A CURE-ALL.
12. INCENTIVE PAYMENT.
13. NOTICE TO CLASS MEMBERS.
A copy of the notice is available at http://is.gd/v13cEbfrom
Leagle.com.
Cliff Sojourner, Plaintiff, represented by Deborah Suzanne Dixon
-- ddixon@gomeztrialattorneys.com -- Gomez Trial Attorneys & John
Paul Fiske -- jfiske@gomeztrialattorneys.com -- Gomez Iagmin Trial
Attorneys.
APEX WIND: Judge Narrows Claims in "Walker" Class Action
--------------------------------------------------------
District Judge Timothy D. DeGiusti of the Western District of
Oklahoma granted in part and denied in part defendants' motion to
dismiss the case TERRA WALKER, et al., Plaintiffs, v. APEX WIND
CONSTRUCTION, LLC, et al., Defendants, CASE NO. CIV-14-914-D (W.D.
Okla.)
Plaintiffs are individuals who own land in Kingfisher and Oklahoma
Counties, within the State of Oklahoma. Plaintiff, Oklahoma Wind
Action Association (OWAA), is an Oklahoma Corporation which
purports to bring the present suit on behalf of itself and its
members. Plaintiffs allege that defendants are negotiating lease
agreements with landowners in Canadian and Kingfisher counties for
the construction, operation and maintenance of Industrial Wind
Energy Conversion Systems (IWECS) for production of electricity.
Plaintiffs bring claims for anticipatory nuisance and anticipatory
trespass and further seek a permanent injunction to enjoin
Defendants from constructing these IWECS. Plaintiffs also allege
facts in support of class certification pursuant to Rule 23 of the
Federal Rules of Civil Procedure.
Defendants move to dismiss the claims of OWAA on jurisdictional
grounds and contend the complaint fails to plausibly allege the
requisite facts for associational standing. Defendants also move
for dismissal of the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Defendants move for dismissal of
plaintiffs' anticipatory nuisance claim on grounds that the
complaint does not plausibly suggest the proposed wind farm or any
turbine in it is likely to adversely affect any plaintiffs' health
or safety. Defendants further move for dismissal of plaintiffs'
anticipatory trespass claim and contend the complaint fails to
identify an anticipated or actual physical invasion of plaintiffs'
property. Finally, defendants seek dismissal of the class action
allegations.
Judge Degiusti granted in part and denied in part defendants'
motion to dismiss. Defendants' Motion is granted as to claims
brought by plaintiff Oklahoma Wind Action Association on grounds
the complaint does not allege facts to plausibly support
associational standing, but plaintiffs are granted leave to file
an amended complaint to allege additional facts regarding
associational standing. Defendants' motion is granted as to
plaintiffs' anticipatory trespass claim and the claim is dismissed
pursuant to Rule 12(b)(6). Defendants' Motion is granted as to
plaintiffs' class allegations pursuant to Rule 12(b)(6), but
plaintiffs are granted leave to file an amended complaint to
allege facts regarding the numerosity requirement of Rule 23(a).
Defendants' motion is denied in all other respects.
A copy of Judge Degiusti's order dated January 26, 2015, is
available at http://is.gd/FjCyZQfrom Leagle.com
Plaintiffs, represented by:
Dallas L Dale Strimple, Esq.
AAMODT LAW FIRM
1723 South Boston Avenue
Tulsa, OK 74119
Telephone: 918-347-6169
Apex Wind Construction LLC, Apex Clean Energy Inc., Apex Clean
Energy Holdings LLC, Kingfisher Wind LLC, Kingfisher Transmission
LLC, Campbell Creek Wind LLC, Campbell Creek Wind Transmission
LLC, Defendants, represented by J Todd Woolery --
todd.woolery@mcafeetaft.com -- Jodi C Cole --
jodi.cole@mcafeetaft.com -- Patrick L Stein --
patrick.stein@mcafeetaft.com -- Timothy J Bomhoff --
tim.bomhoff@mcafeetaft.com -- at McAfee & Taft
Kingfisher Wind Land Holdings LLC, Defendant, represented by
Clayton D Ketter -- cdketter@phillipsmurrah.com -- Thomas G Wolfe
-- tgwolfe@phillipsmurrah.com -- at Phillips Murrah PC
BAUE FUNERAL: Illegally Terminates Employees, "Boland" Suit Says
----------------------------------------------------------------
Sarah Boland, on behalf of herself and others similarly situated
v. The Baue Funeral Home Co. and St. Charles Memorial Gardens,
Inc., Case No. 4:15-cv-00469 (E.D. Mo., March 13, 2015), alleges
that the Defendants terminated class members' employment in
without cause and tortuously interfered with their employment
without justification.
The Baue Funeral Home Co. is a Missouri corporation located in St.
Charles, Missouri. It is in the business of providing funeral home
services to customers.
St. Charles Memorial Gardens, Inc. is a Missouri corporation that
is in the business of providing cemetery services.
The Plaintiff is represented by:
Kevin J. Dolley, Esq.
LAW OFFICES OF KEVIN J. DOLLEY, LLC
2726 S. Brentwood Blvd.
St. Louis, MO 63144
Telephone: (314) 645-4100
Facsimile: (314) 736-6216
E-mail: kevin@dolleylaw.com
BAYER AG: N.D. Cal. Judge Narrows Claims in "Gallagher" Suit
------------------------------------------------------------
District Judge William H. Orrick of the Northern District of
California granted in part and denied in part defendants' motion
to dismiss the case COLLEEN GALLAGHER, et al., Plaintiffs, v.
BAYER AG, et al., Defendants, CASE NO. 14-CV-04601-WHO (N.D. Cal.)
Plaintiffs sue Bayer AG and related entities for violation of
various consumer protection statutes under California, Florida,
and New York law because Bayer falsely and deceptively
misrepresents the health benefits of 20 varieties of its One A Day
multi-vitamin/multi-mineral supplements. Plaintiffs challenge
three statements made by Bayer on each of the supplements, that
the supplements promote or support heart health, immunity and
physical energy. Plaintiffs contend that the three statements are
made in the same manner on each of the twenty varieties of the
supplements and that all of the statements are based on the same
11 vitamins and minerals found in every One A Day product.
Plaintiffs assert that despite the different varieties of One a
Day products, the supplements are essentially the same product.
Bayer moves to dismiss for three reasons. First, it contends that
plaintiffs' claims are preempted by the Food, Drug and Cosmetic
Act (FDCA) because Bayer's statements are, as defined by Food and
Drug Administration (FDA) guidance, structure/function claims and
not disease claims. Second, it argues that the claims are without
basis under the state laws plaintiffs invoke because those state
laws require allegations that the claims are false, not just that
the claims may not be substantiated. Finally, it asserts that
plaintiffs lack standing because they do not allege they were not
benefitted by the products they purchased and they cannot sue over
claims made as to any One A Day Supplement except for the one each
plaintiff purchased.
Judge Orrick granted in part and denied in part defendants' motion
to dismiss. Plaintiffs' claims that Bayer is making illegal
disease claims by using the Statements "supports heart health" and
"supports immunity" are preempted and dismissed. Because
plaintiffs may be able to state additional facts showing that
those two statements are used in a manner that makes them
impermissible disease claims, plaintiffs are granted leave to
amend. Plaintiffs are also given leave to amend to plead that the
supports heart health and immunity Statements are false as
structure/function claims. The motion to dismiss is denied as to
plaintiffs' claims regarding "supports physical energy."
Plaintiffs' amended complaint shall be filed within 20 days of the
date of the Order.
A copy of Judge Orrick's order dated March 10, 2015, is available
at http://is.gd/YevXWYfrom Leagle.com.
Colleen Gallagher and Ilana Farar, Plaintiffs, represented by
Laurence D. King -- lking@kaplanfox.com -- Lauren I Dubick --
ldubick@kaplanfox.com -- Linda M. Fong -- lfong@kaplanfox.com --
Robert N. Kaplan -- rkaplan@kaplanfox.com -- at Kaplan Fox &
Kilsheimer LLP; Stephen Henry Gardner -- at Stanley Law Group --
Amanda Marie Howell -- at Center for Science in the Public
Interest
Andrea Lopez, Joann Cordaro and Rosanne Cosgrove Plaintiffs,
represented by Laurence D. King -- lking@kaplanfox.com -- at
Kaplan Fox & Kilsheimer LLP
Defendants, represented by Ryan M. Sandrock --
rsandrock@sidley.com -- Cara Rafaela Viglucci Lopez --
cvigluccilopez@sidley.com -- Eugene A Schoon -- eschoon@sidley.com
-- Jonathan Fredrick Cohn -- jfcohn@sidley.com -- Paul Joseph Ray
-- paul.ray@sidley.com -- at Sidley Austin LLP
BLACKBERRY LTD: Judge Dismisses Securities Class Action
-------------------------------------------------------
Scott Flaherty, writing for Law.com, reports that BlackBerry Ltd.
may still be grasping at the heels of its smartphone competitors,
but the company isn't having much trouble beating back securities
class actions over its spotty performance. On March 13, U.S.
District Judge Thomas Griesa in Manhattan dismissed the latest
investor lawsuit, handing a win to BlackBerry's defense team at
Morrison & Foerster.
The plaintiffs, represented by Kahn Swick & Foti, bought
BlackBerry stock between March 2013 and September 2013, when the
company was touting the prospects of its BlackBerry 10 line of
devices. They alleged that they were duped into investing by the
company's overly rosy statements, but Judge Griesa held that
investors hadn't done enough to allege securities fraud and that
BlackBerry's alleged misstatements amounted to "puffery."
Although BlackBerry sounded an optimistic tone in some of its
earnings releases, Judge Griesa wrote, the company wasn't out of
line when it made certain statements about the BlackBerry 10
devices, including that the new line marked a transition point for
the company.
"While the complaint succeeds in showing that defendants put a
positive gloss on the company's performance, it fails to show how
that gloss amounted to fraud," Judge Griesa wrote. "These
statements were so optimistic, and so lacking in tangible detail,
that they would be immaterial from a reasonable investor's
standpoint."
The Feb. 13 decision isn't BlackBerry's only recent litigation
victory over disgruntled investors. In June, the U.S. Court of
Appeals for the Second Circuit sided with the smartphone maker and
its lawyers at Skadden, Arps, Slate, Meagher & Flom in a similar
suit.
The Second Circuit's ruling came in a proposed class action that
dated back to 2011 and accused BlackBerry of misleading investors
about the prospects of its Playbook tablet and overall financial
performance.
Morrison & Foerster's Dan Marmalefsky -- dmarmalefsky@mofo.com --
who represented BlackBerry in the case before Judge Griesa, wasn't
immediately available to comment on March 16. Law.com also
reached out to Kim Miller at Kahn Swick & Foti but didn't hear
back.
CALIFORNIA: Mag. Judge Recommends Dismissal of "Anderson" Suit
--------------------------------------------------------------
Plaintiff Dion Anderson is a prisoner in the custody of the
California Department of Corrections and Rehabilitation (CDCR). He
is proceeding pro se and in forma pauperis in this civil action
pursuant to 42 U.S.C. Section 1983. On August 13, 2012, Plaintiff
filed his complaint. On May 17, 2013, the Court screened the
complaint and determined the complaint failed to state a claim for
relief. ECF No. 15. The complaint was dismissed and Plaintiff was
granted leave to file a First Amended Complaint. On February 14,
2014, Plaintiff filed a First Amended Complaint.
Plaintiff claims this is a class action for breach of contract and
warranty under admiralty law. He seeks release from prison, and
workers compensation for the years he spent in prison without
receiving minimum wage.
Magistrate Judge Dennis L. Beck held that Plaintiff's amended
complaint fails to state any cognizable claims against any
Defendant. Plaintiff has been afforded an opportunity to amend,
but has failed to correct the deficiencies. Therefore, the Court
found that further amendment is not warranted and recommended that
the action be dismissed without leave to amend.
These Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. Section 636(b)(1). Within 30 days after
being served with these Findings and Recommendations, Plaintiff
may file written objections with the Court. The document should be
captioned "Objections to Magistrate Judge's Findings and
Recommendations." Plaintiff is advised that failure to file
objections within the specified time may waive the right to appeal
the District Court's order.
The case is DION ANDERSON, Plaintiff, v. JERRY BROWN, et al.,
Defendants, CASE NO. 1:12-CV-01839-AWI-DLB PC, (E.D. Cal.).
A copy of Magistrate Judge's March 11, 2015 findings and
recommendation is available at http://is.gd/omZdimfrom
Leagle.com.
Dion Anderson, Plaintiff, Pro Se.
CAPITAL ONE: N.D. Ill. Judge Okays TCPA Class Action Settlement
---------------------------------------------------------------
District Judge James F. Holderman of the Northern District of
Illinois granted plaintiffs' requests in the case entitled IN RE
CAPITAL ONE TELEPHONE CONSUMER PROTECTION ACT LITIGATION. BRIDGETT
AMADECK, et al., v. CAPITAL ONE FINANCIAL CORPORATION, and CAPITAL
ONE BANK (USA), N.A. NICHOLAS MARTIN, et al., v. LEADING EDGE
RECOVERY SOLUTIONS, LLC, and CAPITAL ONE BANK (USA), N.A. CHARLES
C. PATTERSON, v. CAPITAL MANAGEMENT SERVICES, L.P. and CAPITAL ONE
BANK (USA), N.A., MASTER DOCKET NO. 12 C 10064, MDL NO. 2416, NO.
12 C 10135., 11 C 5886m 12 C 1061 (N.D. Ill.)
The three nationwide class actions were filed against Capital One,
its subsidiaries, and its participating vendors, as a result of
the defendants' allegedly using automatic telephone dialing
systems or artificial or prerecorded voice messages to contact
consumers' cell phones without prior express consent, in alleged
violation of the Telephone Consumer Protection Act (TCPA), 47
U.S.C. Section 227(b)(1)(A). Plaintiffs filed a Consolidated
Master Class Action Complaint superseding the complaints filed in
the three class actions. According to the Amended Master
Complaint, between January 18, 2008 and June 20, 2014, Capitol One
or one of its Participating Vendors called class members' cell
phones using an automatic telephone dialing system or an
artificial or prerecorded voice in connection with an attempt to
collect on a credit card debt.
The parties engaged in six months of class-wide discovery
sufficient to engage in meaningful settlement discussions. Capital
One and plaintiffs agreed thereafter to a settlement, and the
participating vendors agreed to join the settlement.
Plaintiffs filed their request for an order certifying the
proposed class for settlement purposes, preliminarily approving
the settlement agreement, approving the notice plan, ordering the
dissemination of notice as set out in the Settlement Agreement,
and appointing BrownGreer as the Notice and Claims Administrator.
Plaintiffs filed an amended motion seeking the same relief on July
13, 2014 and, on July 29, 2014, the court granted Plaintiffs'
amended motion.
Plaintiffs filed a motion for final approval of the class action
settlement, while class counsel, consisting of the attorneys who
collectively represent the class, have also filed a motion for
approval of attorneys' fees and for service awards to the class
representatives.
Judge Holderman granted plaintiffs' motion for final approval of
the class action settlement as the settlement is fair, reasonable,
and adequate. Class counsel's motion for approval of attorneys'
fees is granted in part and denied in part. The court awards
attorneys' fees and costs in the total amount of $15,668,265 and
incentive awards of $5,000 to each of the five named plaintiffs.
A copy of Judge Holderman's memorandum opinion and order dated
February 12, 2015, is available at http://is.gd/GFipBafrom
Leagle.com
In Re, Capital One Telephone Consumer Protection Act Litigation,
represented by Daniel W. Pisani, Sessions Fishman Nathan & Israel,
David J. Philipps, Philipps & Philipps, Ltd. & Dayle M. Van Hoose,
Sessions, Fishman, Nathan & Israel, L.L.C.
Charles C Patterson, Plaintiff, represented by Jonathan D. Selbin,
Lieff, Cabraser, Heimann & Bernstein, Llp, Daniel M. Hutchinson,
Lieff Cabraser Heimann & Bernstein, LLP, Douglas Ian Cuthbertson,
Lieff Cabraser Heimann & Bernstein Llp, Matthew R. Wilson, Meyer
Wilson Co. LPA & Michael Joseph Boyle, Jr., Meyer Wilson Co., Lpa
Jessica Vadella, Plaintiff, represented by Jessica Vadella, PRO SE
Devera R.D. Bartte, Objector, Plaintiff, Pro Se.
Bridgett Amadeck, Plaintiff, represented by Bridgett Amadeck, PRO
SE
Nicholas Martin, Plaintiff, represented by Nicholas Martin, PRO SE
Charles C Patterson, Plaintiff, represented by Charles C
Patterson, PRO SE
Allied Interstate, LLC, Defendant, represented by David M Schultz,
Hinshaw & Culbertson & Katherine Hannah Tresley, Hinshaw &
Culbertson Llp
Leading Edge Recovery Solutions, Defendant, represented by Alan I.
Greene, Hinshaw & Culbertson LLP
United Recovery Systems, L.P., Defendant, represented by Theresa
Berousek Carney, Rock Fusco & Connelly, Llc
AllianceOne Receivables Management, Inc., Defendant, represented
by Grace A Carter, Paul Hastings LLP
CAR CONVEYANCE: Faces "Wright" Suit Over Failure to Pay Overtime
----------------------------------------------------------------
Dwight Wright, on behalf of himself and those similarly situated
v. Car Conveyance, Ltd., and Conveyance, Inc., Case No. 3:15-cv-
00819 (N.D. Tex., March 13, 2015), is brought against the
Defendants for failure to pay overtime wages in violation of the
Fair Labor Standard Act.
The Defendants own and operate a car services company located in
619 Mercury Ave # 100, Duncanville, TX 75137.
The Plaintiff is represented by:
Frederick Eugene Williams, Esq.
THE LAW OFFICE OF FREDERICK E. WILLIAMS
1910 Pacific Avenue, Suite 14200
Dallas, TX 75201
Telephone: (214) 668-1395
Facsimile: (469) 930-6777
E-mail: fwill22002@yahoo.com
- and -
Deborah Jagai, Esq.
LAW OFFICES OF DEBORAH JAGAI
1910 Pacific Avenue, Ste. 14200
Dallas, TX 75201
Telephone: (214) 244-3529
E-mail: deborah@jagaiiplaw.com
CCG MARKETING: Judge Awards $6k to Plaintiff, Nixes Junk Fax Suit
-----------------------------------------------------------------
District Judge Sandra J. Feuerstein of the Eastern District of New
York ruled on the parties' motions in the case JOHN H. LARY, JR.,
M.D., individually and as the representative of a class of
similarly-situated persons, Plaintiff, v. REXALL SUNDOWN, INC.,
REXALL SUNDOWN 3001, NBTY, INC., UNITED STATES NUTRITION, INC.,
CORPORATE MAILINGS, INC. d/b/a CCG MARKETING SOLUTIONS and JOHN
DOES 1-10, Defendants. CORPORATE MAILINGS, INC. d/b/a CCG
MARKETING SOLUTIONS, Third-Party Plaintiff, v. HEALTHCARE DATA
EXPERTS, LLC, Third-Party Defendant, NO. 13-CV-5769 (SJF)
(S.D.N.Y.)
Corporate Mailing, Inc. d/b/a CCG Marketing Solutions is a
marketing company which entered into a Master Service and Support
Agreement with defendant United States Nutrition, Inc., a
corporate affiliate of defendant Rexall. CCG created an
advertisement, which was approved by all defendants, created a
list or database of physicians, acquired or licensed the
advertisement's use for transmission to those persons listed in
the database, determined that the advertisement should be sent by
fax, hired and paid for a third-party fax broadcaster to send the
advertisement to those persons on the list or in the database and
was reimbursed by the other defendants for these services.
On March 5, 2013, an unsolicited fax was sent, without permission,
to plaintiff and more than 40 other recipients via telephone
facsimile machine, by or on behalf of defendants, offering a free
sample of the dietary supplement Osteo Bi-Flex. The fax failed to
contain an opt-out notice. Plaintiff was allegedly damaged by the
(a) loss of toner and paper used by printing the fax; (b) loss of
time spent receiving and reviewing the fax; (c) loss of
plaintiff's privacy; and (d) use of plaintiff's facsimile machine
without permission.
On October 22, 2013, plaintiff sued Rexall Sundown, Inc., Rexall
Sundown, LLC, Rexall Sundown 3001, LLC, Rexall Inc., Rexall US
Delaware, Inc., NBTY, Inc. and John Does 1-10. On January 7, 2014,
plaintiff moved for class certification and for a temporary stay
of decision to prevent defendants from making an offer of judgment
to plaintiff. The defendants filed their answer on February 12,
2014 and on February 26, 2014, filed a third-party complaint
against CCG. On March 7, 2014, pursuant to stipulation, plaintiff
withdrew the motion for class certification without prejudice to
permit the parties to engage in discovery
On April 18, 2014, plaintiff filed a first amended complaint,
adding CCG as a defendant. On April 28, 2014, the Rexall
defendants voluntarily dismissed their third-party complaint and
filed a crossclaim for indemnification against CCG. On June 13,
2014, CCG filed its answer to the first amended complaint and
cross-claim and filed a cross-claim against the Rexall defendants.
On June 27, 2014, CCG filed a third-party complaint against
Healthcare Data Experts, LLC, asserting state law claims,
including breach of contract and unjust enrichment.
On June 26, 2014, CCG served plaintiff's counsel with an
individual offer of judgment of $3,500. On July 9, 2014, plaintiff
filed a second motion for class certification and a temporary stay
of the motion to prevent defendants from mooting plaintiff's
class-action claims through an offer of judgment prior to
certification. On July 21, 2014, CCG served plaintiff with a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1).
Judge Feurstein granted judgment in favor of plaintiff John Lary
Jr., individually, and against defendant Corporate Mailings, Inc.
d/b/a CCG Marketing Solutions in the amount of $6,000. CCG is
enjoined from sending any faxes to plaintiff's fax number without
proper opt-out notices pursuant to 47 U.S.C. Section 227.
Plaintiff's motion for class certification is denied and CCG's
motion to dismiss for lack of subject matter jurisdiction is
granted.
A copy of Judge Feuerstein's opinion and order dated February 10,
2015, is available at http://is.gd/ok37qcfrom Leagle.com.
John H. Lary, Jr., individually and as the representative of a
class of similarly-situated persons, Plaintiff, represented by
Aytan Yehoshua Bellin, Bellin & Associates LLC, Brian J Wanca,
Anderson & Wanca, Max Margulis, Margulis Law Group & Ryan Kelly,
Anderson Wanca
Rexall Sundown, Inc., Defendant, represented by John Hooper, Reed
Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry Pietrkowski,
Reed Smith LLP
Rexall Sundown 3001, LLC, Defendant, represented by John Hooper,
Reed Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry
Pietrkowski, Reed Smith LLP
NBTY, Inc., Defendant, represented by John Hooper, Reed Smith LLP,
Eric F. Gladbach, Reed Smith LLP & Henry Pietrkowski, Reed Smith
LLP
Corporate Mailings, Inc. d/b/a CCG Marketing Solutions, Defendant,
represented by Matthew J. Fedor, Drinker Biddle & Reath LLP,
Walter J. Fleischer, Drinker Biddle & Reath LLP & William A.
Wright, Drinker Biddle & Reath LLP
Rexall Inc., Defendant, represented by John Hooper, Reed Smith LLP
United States Nutrition, Inc., Defendant, represented by John
Hooper, Reed Smith LLP
Rexall Sundown, Inc., Cross Claimant, represented by John Hooper,
Reed Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry
Pietrkowski, Reed Smith LLP
Rexall Inc., Cross Claimant, represented by John Hooper, Reed
Smith LLP
NBTY, Inc., Cross Claimant, represented by John Hooper, Reed Smith
LLP, Eric F. Gladbach, Reed Smith LLP & Henry Pietrkowski, Reed
Smith LLP
United States Nutrition, Inc., Cross Claimant, represented by John
Hooper, Reed Smith LLP
Rexall Sundown 3001, LLC, Cross Claimant, represented by John
Hooper, Reed Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry
Pietrkowski, Reed Smith LLP
Corporate Mailings, Inc. d/b/a CCG Marketing Solutions, Cross
Defendant, represented by Matthew J. Fedor, Drinker Biddle & Reath
LLP, Walter J. Fleischer, Drinker Biddle & Reath LLP & William A.
Wright, Drinker Biddle & Reath LLP
Corporate Mailings, Inc. d/b/a CCG Marketing Solutions, Cross
Claimant, represented by Matthew J. Fedor, Drinker Biddle & Reath
LLP, Walter J. Fleischer, Drinker Biddle & Reath LLP & William A.
Wright, Drinker Biddle & Reath LLP
NBTY, Inc., Cross Defendant, represented by John Hooper, Reed
Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry Pietrkowski,
Reed Smith LLP
Rexall Inc., Cross Defendant, represented by John Hooper, Reed
Smith LLP
Rexall Sundown 3001, LLC, Cross Defendant, represented by John
Hooper, Reed Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry
Pietrkowski, Reed Smith LLP
Rexall Sundown, Inc., Cross Defendant, represented by John Hooper,
Reed Smith LLP, Eric F. Gladbach, Reed Smith LLP & Henry
Pietrkowski, Reed Smith LLP
United States Nutrition, Inc., Cross Defendant, represented by
John Hooper, Reed Smith LLP
Corporate Mailings, Inc. d/b/a CCG Marketing Solutions, ThirdParty
Plaintiff, represented by Matthew J. Fedor, Drinker Biddle & Reath
LLP, Walter J. Fleischer, Drinker Biddle & Reath LLP & William A.
Wright, Drinker Biddle & Reath LLP
COMENITY BANK: Victoria's Secret Customer Can't Proceed as Class
----------------------------------------------------------------
District Judge P. Kevin Castel of the Southern District of New
York granted defendant's motion for summary judgment in the case
ABIGAIL STRUBEL, individually and on behalf of all others
similarly situated, Plaintiff, v. COMENITY BANK, Defendant, NO.
13-CV-4462 (PKC) (S.D.N.Y.)
Comenity Bank issues private-label consumer credit cards branded
for use at specific retailers, including a card line affiliated
with Victoria's Secret. When consumers open new accounts, they
enter into a credit card agreement provided by Comenity. One
provision of the agreement required that if a consumer gives
written notice of a billing dispute, Comenity is obligated to
reply within 30 days, unless it had already corrected the error.
Another stated that a consumer had the right not to pay for
unsatisfactory goods and services if the consumer had made a good-
faith effort to correct the problem with the merchant. The
Agreement contained an arbitration provision and class action
waiver, both of which a consumer could reject by submitting a
signed, written notice to Comenity within 30 days.
On June 27, 2012, Abigail Strubel opened an account for a
Victoria's Secret-brand credit card, which she used to purchase a
$19.99 item of clothing. In addition to her purchase on the day
that she opened her account, Strubel used the card one other time,
to buy $118.50 in merchandise in August 2013. In her two purchases
using the card, Strubel returned no items, had no billing disputes
and paid in advance of the billing deadline.
Plaintiff brings a putative class action individually and on
behalf of consumers who use Victoria's Secret-brand credit cards
against Comenity. She alleges that Comenity violated the Truth in
Lending Act, 15 U.S.C. Section 1601, et seq. (TILA), and one of
its implementing regulations by failing to adequately disclose
certain consumer-rights policies. According to Strubel, Comenity
failed to provide certain information set forth in a model form
that was promulgated to ensure compliance with a TILA implementing
regulation that is commonly known as Regulation Z, 12 C.F.R.
Section 1026.6. Plaintiff also filed a motion for class
certification
Comenity moves for summary judgment.
Judge Castel granted Comenity's motion for summary judgment in its
entirety and terminated Strubel's motion for class certification.
A copy of Judge Castel's memorandum and order dated January 23,
2015 is available at http://is.gd/jM9hnbfrom Leagle.com.
Abigail Strubel, Plaintiff, represented by:
Harley Jay Schnall, Esq.
LAW OFFICE OF HARLEY J. SCHNALL
711 W End Ave.
New York, NY 10025
Telephone: 212-678-6546
- and -
Brian Lewis Bromberg, Esq.
Jonathan Robert Miller, Esq.
BROMBERG LAW OFFICE
26 Broadway, 21st Floor (Corner Beaver Street)
Manhattan, NY 10004
Telephone: 212-248-7906
Comenity Bank, Defendant, represented by, Nathaniel Ian Kolodny --
kolodnyn@bssfny.com -- Justin Anthony Angelo -- at Ballard Spahr
Stillman & Friedman LLP; Martin Christopher Bryce --
bryce@ballardspahr.com -- Nathan Catchpole -- at Ballard Spahr
LLP; David Michael Bizar -- dbizar@seyfarth.com -- at Seyfarth
Shaw LLP
COSTCO WHOLESALE: Judge Granted Bid to Dismiss "Perez" Suit
-----------------------------------------------------------
District Judge Larry Alan Burns of the Southern District of
California granted defendant's motion to dismiss the case ADAM
PEREZ, on behalf of himself and the general public, Plaintiff, v.
COSTCO WHOLESALE CORPORATION, Defendant, CASE NO. 13CV1687-LAB
(BGS) (S.D. Cal.)
Plaintiff Adam Perez brought an action against Costco Wholesale
Corporation, under California's Unfair Competition Law, Cal. Bus.
& Prof. Code Sections 172000, et seq. for selling certain trans
fat-containing foods that, in turn, he alleges are served in
restaurants and that Costco unfairly profits by selling this
foods.
The complaint identifies five particular brands and varieties of
food products sold in Costco's four business center locations in
California, which it alleges contain trans fat. These products are
types of clam chowder, butter flavored shortening, cream puffs,
margarine, and chocolate chunk cookies. All are sold in their
original manufacturer's packaging.
Costco moved to dismiss the complaint, both for lack of standing
and on the merits.
Judge Burns granted the motion to dismiss and dismissed the action
without prejudice for lack of jurisdiction, but without leave to
amend.
A copy of Judge Burns's order dated March 10, 2015, is available
at http://is.gd/HZhu55from Leagle.com.
Adam Perez, on behalf of himself and the general public,
Plaintiff, represented by:
Gregory S. Weston, Esq.
Melanie Rae Persinger, Esq.
Paul K. Joseph, Esq.
THE WESTON FIRM
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: 619-798-2006
Facsimile: 480-247-4553
Email: greg@westonfirm.com
Costco Wholesale Corporation, Defendant, represented by Trenton H
Norris -- Trent.Norris@aporter.com -- Zachary B Allen --
Zachary.Allen@aporter.com -- at Arnold & Porter LLP
CREIG NORTHROP: D. Md. Judge Tosses Defendants' Counterclaims
-------------------------------------------------------------
District Judge William D. Quarles, Jr., of the District of
Maryland Northern Division ruled on the parties' motions in the
case PATRICK BAEHR, et al., Plaintiffs, v. THE CREIG NORTHROP
TEAM, P.C., et al., Defendants, CIVIL ACTION NO. WDQ-13-0933 (D.
Md.)
The plaintiffs Patrick Baehr and Christine Baehr, on behalf of
themselves and others similarly situated, sued Long & Foster Real
Estate, Inc. (Long & Foster), The Creig Northrop Team, P.C. (The
Northrop Team), Creighton E. Northrop, III (Creig Northrop), Carla
Northrop, Lakeview Title Company, Inc. (Lakeview), and Lindell C.
Eagan, for violations of the Real Estate Settlement Procedures Act
(RESPA).
Plaintiffs hired Long & Foster, Creig Northrop, and the Northrop
Team to represent them in buying a new home. The defendants
referred the plaintiffs to Lakeview for title and settlement
services. Based on this recommendation, the plaintiffs used
Lakeview in the purchase of their home.
Plaintiffs alleged that the defendants devised two separate sham
arrangements. From 2000 through 2007, the defendants created a
"sham employment arrangement" between Lakeview and Carla Northrop,
to disguise payments of illegal referral fees. In 2008, Lakeview
stopped paying Carla Northrop and instead, Lakeview began
funneling the illegal kickbacks for referrals through a sham
Marketing Agreement'" with Creig Northrop and The Northrop Team.
The Northrop defendants answered the complaint and filed a
counterclaim against any Class members for attorney's fees and
asserted that the residential contract of sale between the
plaintiffs and Northrop created a contractual attorney's fees
provision.
On August 27, 2014, the plaintiffs moved to dismiss the
counterclaim. And Northrop opposed such motion. On October 14,
2014, the plaintiffs replied. The Northrop defendants seek to file
a surreply to address the plaintiffs' new but inaccurate
assertions in their Reply in Support of Motion to Direct Notice.
Judge Quarles, Jr., granted plaintiffs' motion to dismiss the
Northrop defendants' counterclaim. The Northrop defendants' motion
to file a surrreply is denied and plaintiffs' motion to direct
notice is granted in part and denied in part.
A copy of Judge Quarles memorandum opinion dated March 2, 2015, is
available at http://is.gd/qKovNRfrom Leagle.com.
CRESCENT DIRECTIONAL: "Page" Suit Seeks to Recover Unpaid OT
------------------------------------------------------------
Richard Page, individually and on behalf of all others similarly
situated v. Crescent Directional Drilling, L.P., Case No. 5:15-cv-
00193 (W.D. Tex., March 13, 2015), seeks to recover unpaid
overtime wages and damages pursuant to the Fair Labor Standard
Act.
Crescent Directional Drilling, L.P. is an oil field services
company providing directional drilling services throughout the
United States.
The Plaintiff is represented by:
Michael A. Josephson, Esq.
FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON
1150 Bissonnet
Houston, TX 77005
Telephone: (713) 751-0025
Facsimile: (713) 751-0030
E-mail: mjosephson@fibichlaw.com
FACEBOOK INC.: Minor Class Certified in In-App Purchase Suit
------------------------------------------------------------
District Judge Beth Labson Freeman of the Northern District of
California, San Jose Division granted in part and denied in part
plaintiffs' motion in the case entitled I.B., by and through his
guardian ad litem GLYNNIS BOHANNON, et al., Plaintiffs, v.
FACEBOOK, INC., Defendant, CASE NO. 12-CV-01894-BLF (N.D. Cal.)
Minor plaintiffs I.B. and J.W both spent a parent's money without
permission over Facebook, in slightly different ways, I.B. asked
his mother for $20 to make purchases in a game called "Ninja
Saga," but then spent more than he was permitted. While J.W. took
his parent's debit card without permission and began making
purchases. I.B. is a resident of Arizona and J.W. is a resident of
California.
Plaintiffs contend that Facebook's policy of representing that
purchases made through its website are final, or otherwise non-
refundable, violates Section 6701(c) of the California Family
Code, which states that a contract is void if the minor makes a
contract relating to any personal property not in the immediate
control of the minor. In the alternative, plaintiffs contend that
Facebook's policy violates Family Code Section 6710, which permits
a minor to disaffirm any contract before majority or within a
reasonable time afterwards.
I.B. and J.W., each through a parent as guardian ad litem,
presently move the Court to certify the following class and
subclass under Federal Rule of Civil Procedure 23(b)(2):
All Facebook users who are or were minor children according to
Facebook's own records for the four years preceding the date on
which the original complaint was filed through the date on which a
class is certified (the Minor Class). Within the Minor Class is a
subclass of Minors from whose Facebook accounts Facebook Credits
were purchased. (the Minor Purchasing Subclass).
Judge Freemand granted plaintiffs' motion to certify the following
class and subclass for claims for declaratory and relief under
Rule 23 (b)(2):
"All Facebook users who are or were minor children according to
Facebook's own records for the four years preceding the date on
which the original complaint was filed through the date on which a
class is certified ("the Minor Class"). Within the Minor Class is
a subclass of Minors from whose Facebook accounts Facebook Credits
were purchased. ("the Minor Purchasing Subclass")."
Plaintiffs' motion to certify this same class and subclass for
restitution or other monetary relief under Rule 23(b)(2) is
denied, without prejudice. Inasmuch as plaintiffs seek to certify
this class and subclass under Rule 23(b)(3), that motion is also
denied, without prejudice.
A copy of Judge Freeman's order dated March 10, 2015, is available
at http://is.gd/BOMSkbfrom Leagle.com.
Glynnis Bohannon, Julie Wright and J. W., Plaintiffs, represented
by John R. Parker, Jr. -- jparker@kcrlegal.com -- Curtis Brooks
Cutter -- bcutter@kcrlegal.com -- at Kershaw, Cutter & Ratinoff,
LLP; Daniel B. Edelman -- edelman@kmblegal.com -- at Katz,
Marshall and Banks LLP
I. B., Plaintiff, represented by John R. Parker, Jr. --
jparker@kcrlegal.com -- Curtis Brooks Cutter --
bcutter@kcrlegal.com -- at Kershaw, Cutter & Ratinoff, LLP; Daniel
B. Edelman -- edelman@kmblegal.com -- at Katz, Marshall and Banks
LLP; Benjamin Gordon Edelman, Attorney of the Law
Facebook, Inc., Defendant, represented by Whitty Somvichian --
wsomvichian@cooley.com -- Benjamin Hansel Kleine --
bkleine@cooley.com -- Kristine Anne Forderer --
kforderer@cooley.com -- Michael G. Rhodes -- rhodesmg@cooley.com
-- at Cooley LLP
FIRST STUDENT: C.D. Cal. Judge Won't Grant Class Certification
--------------------------------------------------------------
District Judge Otis D. Wright, II of the Central District of
California denied plaintiff's motion for class certification in
the case IMELDA VASQUEZ, on behalf of herself, all others
similarly situated, Plaintiff, v. FIRST STUDENT, INC.; FIRST
STUDENT MANAGEMENT, LLC; DOES 1-100, inclusive, Defendants, CASE
NO. 2:14-CV-06760-ODW(EX) (C.D. Cal).
Defendant First Student, Inc. is a transportation company
providing school bus services to school districts across the
country. Defendant First Student Management, LLC is the legal
employer of the drivers who work in First Student's California
operations.
At the time of hire and annually thereafter, drivers are provided
with copies of First Student's National Handbook. The National
Handbook includes general company-wide policies. However, those
policies are superseded by any collective bargaining agreement
that may be in place at a First Student location.
Plaintiff Imelda Vasquez was employed as a driver at the Pasadena
location from August 2012 until early 2013. At the time she was
hired she received both the CBA and location-specific handbook for
the Pasadena location. She always worked more hours per day/shift
than the guarantee included in the Pasadena CBA. Plaintiff
alleges that she was never told that she was paid for rest breaks
or that she was entitled to a 10-minute rest break if she worked
at least 3-1/2 hours in a day. She further claims that her wage
statements did not include the beginning date of the pay period or
reference to any tasks performed during the pay period.
Plaintiff filed her original class action complaint in Los Angeles
Superior Court, alleging causes of action for: (1) failure to pay
minimum wages for all hours worked based on allegations of off-
the-clock work by class members; (2) failure to provide accurate
written wage statements based on failure to pay for the alleged
off-the-clock work; (3) failure to timely pay all final wages
based again on the alleged off-the-clock work; and (4) Unfair
Competition (Cal. Bus. & Prof. Code Sections 17200, et seq.) based
on the alleged off-the-clock work.
Plaintiff requested leave to file a first amended complaint.
Plaintiff sought to add two new causes of action: rest period
violations of various California Labor Code sections, including
Labor Code Section 226.7; and civil penalties pursuant to Labor
Code Section 2628.
The state court granted plaintiff's motion to amend.
On August 28, 2014, defendants filed their notice of removal and
removed the first amended complaint to the present court.
Plaintiff filed a motion to remand, but the court denied the same.
Plaintiff filed a motion proposing to certify five classes and
subclasses: (1) minimum wage class, (2) rest break class, (3) wage
statement class, (4) piece-rate wage statement sub-class, and (5)
derivative wage statement sub-class. Defendants timely opposed.
Judge Wright denied plaintiff's motion for class certification.
A copy of Judge Wright's order dated March 12, 2015, is available
at http://is.gd/alKh2Hfrom Leagle.com.
Imelda Vasquez, on behalf of herself, all others similarly
situated, Plaintiff, represented by C Shaun Setareh --
shaun@setarehlaw.com -- at Setareh Law Group
First Student, Inc., an Ohio corporation, Defendant, represented
by Allison C Williams -- acwilliams@littler.com - Theodore R Scott
-- tscott@littler.com -- Ofelia Mishell Parreno Taylor --
mtaylor@littler.com -- at Littler Mendelson PC
First Student Management, LLC, an Ohio limited liability company,
Defendant, represented by Allison C Williams --
acwilliams@littler.com -- Theodore R Scott -- tscott@littler.com
-- Ofelia Mishell Parreno Taylor -- mtaylor@littler.com -- at
Littler Mendelson PC
GADSDEN, AL: Judge Trims Suit Over Post-Arrest Referral Program
---------------------------------------------------------------
District Judge Virginia Emerson Hopkins of the Northern District
of Alabama, Middle Division, granted in part and denied in part
defendants' motions in the case KIMBERLY L. BRANNON, et al.,
Plaintiffs, v. CITY OF GADSDEN, et al., Defendants, CASE NO. 4:13-
CV-1229-VEH (N.D. Ala.)
Plaintiffs initiated a civil rights lawsuit and purported class
allegations in 2013 but the lawsuit was corrected on March 4,
2014. Plaintiffs allege federal and state law claims against the
City of Gadsden (COG), City of Attalla (COA), Lenesha Zaner (Ms.
Zaner), and the Etowah County Court Referral Program, LLC (the
ECCRP).
Plaintiffs generally maintain they have suffered constitutional
and other injuries stemming from drug and alcohol testing
services, rehabilitation services, and monitoring services
contractually provided by ECCRP and its director, Ms. Zaner, for
the benefit of COG and COA in conjunction with the administration
of their respective municipal justice systems. The gravamen of
plaintiffs' suit is that defendants are all engaged in an
unconstitutional post-arrest/conviction court referral program
that has deprived them of their civil rights, including allegedly
subjecting plaintiffs to probation revocation, contempt orders,
and incarcerations without first making a written finding of the
plaintiffs' willful nonpayment of fees and placing them into a
never-ending cycle of ECCRP fees, costs and requirements in
violation of the statutory maximum allowed for misdemeanors.
Defendants ECCRP and Ms. Zaner filed a motion to dismiss on the
grounds of failure to state a claim based upon the provisions of
the Mandatory Treatment Act, Ala. Code Section 12-23-7, qualified
immunity, lack of standing to pursue declaratory and injunctive
relief and the Heck v. Humphrey doctrine.
The COG and COA defendants also filed a motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(6), anchored on judicial immunity, probation
officer immunity, municipal control and the so-called Monell
doctrine, post-deprivation remedies, including the Heck v.
Humphrey doctrine, private debt, Rooker-Feldman doctrine, no
standing for injunctive relief, no municipal liability for alleged
false imprisonment and false arrest, no municipal liability for
alleged wanton conduct, no municipal liability for alleged
punitive damages, no municipal liability for alleged negligent
supervision and training, statute of limitations, failure of
certain plaintiffs to state a claim against COA, failure of
certain plaintiffs to state a claim against COG.
District Judge Hopkins granted in part and denied in part
defendants' motions to dismiss. Plaintiffs are granted until April
9, 2015, to replead only their plausible claims, including their
elements and any alleged factual support in a non-shotgun format
consistent with the rulings and other concerns addressed in this
memorandum opinion. The stay previously in place is lifted, and
the parties are ordered to meet and file their report of parties'
planning meeting no later than April 30, 2015.
A copy of Judge Hopkins's memorandum opinion and order dated March
10, 2015, is available at http://is.gd/fh3Ionfrom Leagle.com.
Plaintiffs, represented by:
Charles J Lorant, Esq.
Vincent F Saylor, Esq.
LORANT LAW GROUP
First Commercial Bank Building
550Montgomery Hwy, Ste 101
Vestavia Hills, AL 35216
Telephone: 205-823-2250
City of Gadsden, Defendant, represented by Bradley W Cornett --
LawFirm@FordHowardCornett.com -- at FORD HOWARD & CORNETT PC
City of Attalla, Defendant, represented by Bradley W Cornett --
LawFirm@FordHowardCornett.com -- at FORD HOWARD & CORNETT PC;
David J Canupp -- djc@LanierFord.com -- George W Royer --
gwr@LanierFord.com -- at LANIER FORD SHAVER & PAYNE PC
Lenesha Zaner and Etowah County Court Referral Program, LLC
Defendants, represented by Robert M Ronnlund --
Ronnlund@sssandf.com -- William A Scott, Jr -- wscott@sssandf.com
-- at SCOTT SULLIVAN STREETMAN & FOX PC
GENERAL MOTORS: Documents Reveal Ignition Switch Problem Cover-Up
-----------------------------------------------------------------
Sue Reisinger, writing for Corporate Counsel, reports that lawyers
in a Georgia lawsuit against General Motors Co. said at a news
conference on March 16 that they have obtained documents
contradicting Anton Valukas' report and showing that GM was
engaged in a "strong case of fraud" and a cover-up of its fatal
ignition-switch problems.
The lawyers also said the role of former General Counsel
Michael Millikin in the alleged cover-up is still being examined
and will be subject to "further inquiry." Mr. Millikin retired
under pressure and was replaced by Craig Glidden on March 1. GM
spokesman Jim Cain declined to comment on the allegations.
The alleged cover-up reached a "high level," according to
Jere Beasley, and went well beyond the 15 former GM lawyers and
other employees who were dismissed last year in the scandal.
Mr. Beasley is founder of the Montgomery, Alabama, law firm
Beasley, Allen, Crow, Methvin, Portis & Miles.
"GM will never try a lawsuit where the defective ignition is
involved, in my opinion," Mr. Beasley said, because he and other
lawyers obtained documents "that make out a total case of product
liability against GM and a very strong case of fraud. They will
never let a jury hear it."
Mr. Beasley said he couldn't give specifics about the documents
because they remain under a court seal and confidential. But most
of them involve manufacturer Delphi Corp., which made the faulty
switch to GM's specifications.
He also said the lawyers obtained documents that contradict the
report done for GM by Mr. Valukas, managing partner of Jenner &
Block. "His report concluded that engineers legitimately believed
this wasn't a safety issue," Mr. Beasley said. But the documents
show "they knew it was, and ignored it for cost reasons."
Mr. Valukas' office said he was traveling and could not be reached
for comment.
Pressed for details, Mr. Beasley added, "You could take the Delphi
documents alone and make out a fraud case against GM. They
intentionally covered up a known defect. And they threw the
lower-level employees under the bus."
Mr. Beasley continued, "Hopefully the government will continue to
pursue this." He was referring to an ongoing criminal
investigation of GM by the U.S. Department of Justice.
Mr. Beasley and attorney Lance Cooper, of the Cooper Firm in
Marietta, Georgia, spoke at a news conference on March 16
ostensibly to discuss the settlement of the Ken and Beth Melton
case against GM. The Meltons' daughter, Brooke, died in an
accident caused by one of the switches. Terms of the settlement
are confidential.
But Mr. Cooper used the occasion to also talk about state and
federal cases against GM that are still ongoing, especially a big
multidistrict litigation that is tentatively scheduled for trial
in January. He said he believed the Melton documents would be
used and made public during the other trials.
Mr. Cooper said if it hadn't been for the Melton case, which
uncovered that a faulty spring in the ignition switch had been
secretly replaced in new units, without GM ever doing a recall on
the old ones, the company might have kept secretly settling
lawsuits over crashes.
But the Meltons fought to uncover the truth, he said, and GM had
to admit its culpability before Congress, conduct millions of
recalls and change its safety culture.
GEORGE'S ITALIAN: Faces "Leyton" Suit Over Failure to Pay OT
------------------------------------------------------------
Adonys Gerardo Zamora Leyton and all others similarly situated
under 29 U.S.C. 216(b) v. George Iglesias, Elizabeth Iglesias,
Case No. 1:15-cv-21026 (S.D. Fla., March 13, 2015), is brought
against the Defendants for failure to pay overtime wages for hours
work in excess of 40 in a week.
The Defendants own and operate George's Italian Restaurant &
Lounge in Dade County, Florida.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: 865-7167
E-mail: ZABOGADO@AOL.COM
GILSTER-MARY: W.D. Mo. Judge Remands Workers' Suit to State Court
-----------------------------------------------------------------
District Judge Douglas Harpool of the Western District of
Missouri, Southern Division, ruled on the parties' motions in the
case entitled PATRICIA HOOD, et al., Plaintiffs, v. GILSTER-MARY
LEE CORPORATION, Defendant, CASE NO. 3:14-CV-05012-MDH (W.D. Mo.)
Plaintiffs filed a suit in Jasper County, Missouri, on behalf of
themselves and all others similarly situated, alleging they are
former or current employees of defendant Gilster-Mary Lee
Corporation, which owns and operates a local microwave popcorn
packaging plant. Plaintiffs claim they suffer from lung impairment
and/or suffer from lung impairment that has not yet fully
manifested resulting from exposure to natural and artificial
butter flavoring products, compounds and ingredients, including
but not limited to diacetyl.
Former defendants Sigma-Aldrich and International Flavors &
Fragrances, who have been dismissed, removed the case based on
provisions of the Class Action Fairness Act (CAFA), 28 U.S.C.
Section 1332, 1441(a)-(b), and 1453.
The defendant Gilster-Mary Lee filed a motion to dismiss the
matter, while plaintiffs filed a motion to remand the case to
Circuit Court of Jasper County.
Judge Harpool granted plaintiffs' motion to remand the case to the
Circuit Court of Jasper County; and denied defendant's motion to
dismiss as moot.
A copy of Judge Harpool's order dated January 26, 2015, is
available at http://is.gd/HWj6Qofrom Leagle.com.
Plaintiffs, represented by:
J'Nan Kimak, Esq.
Kenneth B. McClain, Esq.
Kevin Daniel Stanley, Esq.
Michael S. Kilgore, Esq.
Timothy J. Kingsbury, Esq.
HUMPHREY, FARRINGTON, & McCLAIN, PC
221 West Lexington Avenue, Suite 400
Independence, MO 64050
Telephone: 816-398-7435
Facsimile: 816-836-8966
Gilster-Mary Lee Corporation, Defendant, represented by Charles
Steiner Elbert -- celbert@shandselbert.com -- Douglas W. King --
dking@shandselbert.com -- at Shands, Elbert, Gianoulakis & Giljum
LLP
H & C CHEMISTS: Suit Seeks to Recover Unpaid OT Wages & Damages
---------------------------------------------------------------
Octavio Rafael Perez, Jr., individually and on behalf of all
others similarly situated v. H & C Chemists, Inc. and Steven
Gelwan, Case No. 1:15-cv-01908 (S.D.N.Y., March 13, 2015), seeks
to recover unpaid overtime, liquidated damages, costs, and
reasonable attorneys' fees under the Fair Labor Standards Act
H & C Chemists, Inc. provides pharmacy services and gives
medication outcomes for their customers, including the facilities,
act teams and health care provider.
The Plaintiff is represented by:
Jason Travis Brown, Esq.
Michael G. Radigan, Esq.
JTB LAW GROUP, LLC
155 2nd Street, Suite 4
Jersey City, NJ 07302
Telephone: (212) 725-7272
Facsimile: (212) 488-4848
E-mail: jtb@jtblawgroup.com
radiganlaw@aol.com
HOMEJOY INC: Faces Wage-and-Hour Suit in California
---------------------------------------------------
David Ruiz, writing for Law.com, reports that Homejoy Inc. is the
latest company in the sharing economy that will have to defend the
way it classifies its workers after being hit with two suits
accusing the house-cleaning platform of violating California labor
laws. The complaints -- one a proposed employee class action and
the other filed under the Private Attorneys General Act -- claim
San Francisco-based Homejoy fails to pay its workers minimum wage
or overtime, denies workers legally mandated breaks and requires
house cleaners to incur their own business-related expenses, among
other infractions.
Homejoy has skirted the legal obligations, the suits allege, by
misclassifying its "cleaning professionals" as independent
contractors, rather than employees.
The question of how platforms that link up service providers and
customers should classify their fleets of workers under California
law is a thorny one. Two federal judges in the Northern District
of California ruled in cases against Uber Technologies Inc. and
Lyft Inc. that the determination would have to be made by a jury.
Byron Goldstein -- brgoldstein@gbdhlegal.com -- and Laura Ho --
lho@gbdhlegal.com -- of Goldstein, Borgen, Dardarian & Ho and
Browne Labor Law filed the two Homejoy suits in San Francisco
Superior Court on March 9 and March 16.
Mr. Goldstein said in a phone interview on March 18 that Homejoy
exerts specific control over its workers, including assigning them
specific houses to clean and what time to clean them. He said the
cleaners have little power.
"Let's say a cleaner goes into a stranger's home and is given two
hours to clean a two-bedroom home, but maybe that home is
extremely dirty and the job just can't get done well in that
time," Mr. Goldstein said. "If they don't clean it well, they'll
get bad ratings, but they don't really have control over the
quality of their work product."
A Homejoy representative did not respond to an email message
seeking comment.
According to the complaints, Homejoy workers must also wear a
shirt with the Homejoy logo on it while servicing homes and can be
subject to "performance improvement plans" if their ratings are
too low. The complaints assert that "cleaners are an integral
part of Homejoy's business of providing cleaning services, among
other services, to its customers."
Homejoy may see things differently. The company's terms of
service state -- in all capital letters -- that it "is not a
cleaning service provider," but merely a "venue" or a "platform"
that connects consumers to cleaners in their area.
Uber and Lyft made similar arguments to defend driver class
actions, but U.S. District judges Edward Chen and Vince Chhabria
weren't convinced. In their orders, Judge Chen called Uber's
argument to that effect "fatally flawed" and Judge Chhabria said
it was "obviously not true" that Lyft was merely a technology
platform, and not a transportation provider.
Mr. Goldstein cheered the decisions. "They show presumption of
employment and describe in detail, through careful thought and
analysis, how much control these companies exercise over their
workers," Mr. Goldstein said. "In the case of Homejoy, we think
the control they have over their workers is as significant as in
Uber or Lyft, or more so."
The class action seeks damages in the amount of unpaid overtime
compensation, unpaid minimum-wage compensation, unpaid reimbursed
business expenses, one hour of additional pay for each workday
completed without meal breaks and another hour of compensation for
each work day without rest breaks -- all with interest. The
Private Attorneys General Act action seeks civil penalties and
attorney fees.
Goldstein, Borgen, Dardarian & Ho is also representing plaintiffs
in a similar suit against Handy, a competitor to Homejoy.
HONEYWELL INT'L: E.D. Mo. Judge Narrows Claims in "Johnsen" Suit
----------------------------------------------------------------
District Judge Ronnie L. White of the Eastern District of
Missouri, Eastern Division, granted in part and denied in part
defendant's motion to dismiss the case SCOTT JOHNSEN, individually
and on behalf of others similarly situated, Plaintiffs, v.
HONEYWELL INTERNATIONAL INC., a Delaware corporation, Defendant,
NO. 4:14CV594 RLW (E.D. Mo.)
The plaintiff Scott Johnsen installed two Honeywell TrueSTEAM
humidifiers, model numberHM506, in his home on December 2, 2008.
He claims that both humidifiers failed and required replacement
several times within the 5 year warranty timeframe. Plaintiff
contends that defendant's warranty is futile in that it does not
provide the services set forth in the warranty and maintains an
overly burdensome warranty claims process. Further, he alleges
that defendant routinely denies the remedy of repair or
replacement and declines to reimburse customers for damage caused
by the defective unit. Additionally, Johnsen maintains that the
replacement remedy is futile because defendant installs the same
defective Honeywell humidifiers.
Plaintiff brought this action on behalf of himself and the
putative class of individuals and entities who own or have owned
Honeywell TrueSTEAM humidifiers, model numbers HM506, HM509,
and/or HM512. In the Amended Class Action Complaint, plaintiff
alleges on behalf of all classes a claim for Breach of Express
Warranty (Count 1), on behalf of the Missouri Class, Plaintiff
claims Breach of Implied Warranties of Merchantability and Fitness
for a Particular Purpose (Count 2), Failure of Essential Purpose
(Count 3), Strict Products Liability (Count 4), Negligence (Count
5), Negligent Misrepresentation (Count 6), Violation of the
Missouri Merchandising Practices Act (Count 7), Unjust Enrichment
(Count 8), and for Injunctive and Declaratory Relief (Count 9).
Defendant filed a motion to dismiss plaintiff's class action
complaint, arguing that defendant Honeywell fulfilled its
obligations under the warranty and that the warranty expressly
disclaims recovery of incidental or consequential damages.
Defendant also maintained that the court should dismiss
plaintiff's negligence and strict products liability claims
because plaintiff has failed to identify a defect in his
humidifier. Finally, Honeywell asserted that plaintiff has failed
to allege any misrepresentation or deception sufficient to state a
claim for either negligent misrepresentation or violation of the
Missouri Merchandising Practices Act.
A copy of Judge White's memorandum and order dated February 12,
2015, is available at http://is.gd/resRf7from Leagle.com.
Scott Johnsen, Plaintiff, represented by:
Bonnie Joy Prober, Esq.
Michael J. Flannery, Esq.
CUNEO AND GILBERT, LLP
507 C St. NE
Washington, DC 20002
Telephone: 202-789-3960
Facsimile: 202-789-1813
- and -
Eric N. Linsk -- rnlinsk@locklaw.com -- Robert K. Shelquist --
rkshelquist@locklaw.com -- at LOCKRIDGE AND GRINDAL; Melissa W.
Wolchansky -- wolchansky@halunenlaw.com -- at HALUNEN AND
ASSOCIATES
Honeywell International Inc., Defendant, represented by Andrew J.
Scavotto -- andrew.scavotto@stinsonleonard.com -- Jason Andrew
Julien -- jason.julien@stinsonleonard.com -- Jeannine Louise Lee
-- jeannine.lee@stinsonleonard.com -- Todd Anders Noteboom --
todd.noteboom@stinsonleonard.com -- at STINSON AND LEONARD LLP
INOGEN INC: Sued in C.D. Cal. Over Misleading Financial Reports
---------------------------------------------------------------
Brad Christi, individually and on behalf of all others similarly
situated v. Inogen, Inc., Raymond Huggenberger, and Alison
Bauerlein, Case No. 2:15-cv-01864 (C.D. Cal., March 13, 2015),
alleges that the Defendants made false and misleading statements,
as well as failed to disclose material adverse facts about the
Company's business, operations, and prospects.
Inogen, Inc. is a medical technology company that develops,
manufactures, and markets portable oxygen concentrators, which
deliver supplemental oxygen therapy to patients suffering from
chronic obstructive pulmonary disease and other respiratory
conditions.
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
JANI-KING: Court Certifies Class in "Myers" Class Action
--------------------------------------------------------
District Judge R. Barclay Surrick granted a motion for class
certified filed in the case captioned PAMELA MYERS ET AL. v. JANI-
KING OF PHILADELPHIA, INC., ET AL., CIVIL ACTION NO. 09-1738,
(E.D. Pa.).
Judge Surrick certified the class defined as: All individuals who
signed contracts with Jani-King of Philadelphia, Inc., Jani-King,
Inc., or Jani-King International, Inc., and performed cleaning
services in Pennsylvania pursuant to such contract at any time
from March 20, 2006 to present.
Plaintiffs Darryl Williams and Howard Brooks are designated as the
representatives of the class. David J. Cohen and the law firm of
Kolman Ely PC; Elizabeth Tully and the law firm of Lichten & Liss-
Riordan PC; and Patrick Howard and the law firm of Saltz
Mongeluzzi Barrett & Bendesky will serve as class counsel, added
Judge Surrick.
A copy of the Court's March 11, 2015 order is available at
http://is.gd/9xVh7Dfrom Leagle.com.
DARRYL WILLIAMS, Plaintiff, represented by DAVID J. COHEN, KOLMAN
ELY PC, ELIZABETH TULLY, LICHTEN & LISS-RIORDAN PC, HILLARY
SCHWAB, LICHTEN & LISS-RIORDAN PC, SHANNON LISS-RIORDAN, LICHTEN &
LISS-RIORDAN PC, PATRICK HOWARD, SALTZ MONGELUZZI BARRETT &
BENDESKY & WAYNE A. ELY, KOLMAN ELY PC.
HOWARD BROOKS, Plaintiff, represented by DAVID J. COHEN, KOLMAN
ELY PC, ELIZABETH TULLY, LICHTEN & LISS-RIORDAN PC, HILLARY
SCHWAB, LICHTEN & LISS-RIORDAN PC, PATRICK HOWARD, SALTZ
MONGELUZZI BARRETT & BENDESKY, SHANNON LISS-RIORDAN, LICHTEN &
LISS-RIORDAN PC & WAYNE A. ELY, KOLMAN ELY PC.
JANI-KING OF PHILADELPHIA, INC., Defendant, represented by AARON
D. VANOORT, FAEGRE, BAKER, DANIELS, EILEEN M. HUNTER, FAEGRE &
BENSON, JASON J. STOVER, FAEGRE BAKER DANIELS LLP, KERRY L. BUNDY,
FAEGRE BAKER & DANIELS LLP & TODD ALAN EWAN, FISHER & PHILLIPS
LLP.
JANI-KING, INC., Defendant, represented by AARON D. VANOORT,
FAEGRE, BAKER, DANIELS, EILEEN M. HUNTER, FAEGRE & BENSON, JASON
J. STOVER, FAEGRE BAKER DANIELS LLP, KERRY L. BUNDY, FAEGRE BAKER
& DANIELS LLP & TODD ALAN EWAN, FISHER & PHILLIPS LLP.
JANI-KING INTERNATIONAL, INC., Defendant, represented by AARON D.
VANOORT, FAEGRE, BAKER, DANIELS, EILEEN M. HUNTER, FAEGRE &
BENSON, JASON J. STOVER, FAEGRE BAKER DANIELS LLP, KERRY L. BUNDY,
FAEGRE BAKER & DANIELS LLP & TODD ALAN EWAN, FISHER & PHILLIPS
LLP.
JANSSEN PHARMA: Pa. Superior Court Upholds Topamax Verdict
----------------------------------------------------------
P.J. D'Annunzio, writing for The Legal Intelligencer, reports that
the state Superior Court has upheld the largest verdict to come
from the Topamax litigation against Johnson & Johnson subsidiary
Janssen Pharmaceuticals.
In Powell v. Janssen Pharmaceuticals on March 16, a three-judge
panel affirmed an $11 million verdict awarded to the parents of
plaintiff Brayden Gurley, a child born with congenital defects due
to an anticonvulsant drug his mother took during pregnancy.
In addition to claiming the case was federally pre-empted, a claim
the Superior Court rejected, Janssen appealed on the basis that
the plaintiffs could not prove that Topamax caused their child's
cleft lip, and therefore the court should not have permitted the
negligent failure-to-warn claim to go to the jury.
Senior Judge William H. Platt wrote in the court's opinion that
the defendant claimed the plaintiffs did not show that a label
warning of an increased risk of cleft lip or cleft palate would
have altered the prescribing physician's decision.
However, Judge Platt said that based on the testimony of Dr. Bret
Warner, the doctor of plaintiff Haley Powell, Warner would not
have prescribed Topamax to Powell had he known of the increased
risks.
"We conclude that the trial court properly determined that 'the
evidence introduced [was] of sufficient weight to establish . . .
some reasonable likelihood that an adequate warning would have
prevented [Powell] from receiving the drug,'" Judge Platt said.
"The testimony showed that Dr. Warner was unaware of Topamax's
increased risk of cleft lip and/or palate in newborns when he
prescribed the drug to [Powell], and that knowledge of this risk
would have deterred him from prescribing the medication for her."
Janssen also argued the $10.6 million awarded to the plaintiffs
for non-economic damages was excessive given the injuries,
according to Judge Platt.
In upholding the damages award, Platt pointed to the trial court's
reasoning.
"'This verdict does not shock this court's sense of justice nor
does it demonstrate the jury was influenced by partiality,
prejudice, mistake or corruption. Rather, this verdict shows the
jury made an informed and educated finding based on the facts and
evidence presented at trial,'" the trial court said, according to
Judge Platt. "'Brayden Gurley's pain, suffering and loss were
significant and demonstrated on the record throughout the trial.
Hence, the jury decided on a just and fair award to compensate
Brayden Gurley for his injuries.'"
Janssen's attorney, Kenneth Murphy -- Kenneth.Murphy@dbr.com -- of
Drinker Biddle & Reath, did not immediately return a call seeking
comment, nor did the plaintiffs' attorney, Rosemary Pinto of
Feldman & Pinto.
KING INTELLIGENCE: "Decembre" Suit Seeks to Recover Unpaid OT
-------------------------------------------------------------
Yves Decembre, on his own Behalf and all others similarly situated
v. King Intelligence And Security Services, Inc. and Kaola King,
Case No. 9:15-cv-80339 (S.D. Fla., March 13, 2015), seeks to
recover unpaid overtime wages and damages pursuant to the Fair
Labor Standard Act.
The Defendants own and operate a security business in Broward
County, Florida.
The Plaintiff is represented by:
Jason S. Haselkorn, Esq.
Matthew N. Thibaut, Esq.
CIKLIN LUBITZ MARTENS & O'CONNELL
515 N Flagler Drive, Suite 2000
West Palm Beach, FL 33401-4343
Telephone: (561) 832-5900
Facsimile: (561) 833-4209
E-mail: jhaselkorn@ciklinlubitz.com
mthibaut@ciklinlubitz.com
LAM CLOUD: Has Sent Unsolicited Fax Advertisement, Suit Claims
--------------------------------------------------------------
The Jewish Press, Inc., individually, and on behalf of all others
similarly situated v. Lam Cloud Management LLC, Lam Cloud
Solutions, LLC and John Doe (1-10), Case No. 1:15-cv-01322
(E.D.N.Y., March 13, 2015), seeks to stop the Defendant's practice
of sending unsolicited facsimile advertisements.
The Defendants own and operate a Data Recovery Service company
with a principal place of business located at 1 Farr View Dr,
Cranbury, NJ 08512.
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
LAW OFFICE OF ALAN J. SASSON
1669 East 12th Street
Brooklyn, NY 11229
Telephone: (347) 526-4093
Facsimile: (347) 244-7178
E-mail: yzelman@gmail.com
LENTUO INTERNATIONAL: Sued Over Failure to Pay Overtime Wages
-------------------------------------------------------------
Felipe Garcia, Individually and on behalf of all others similarly
situated v. Hetong Guo, Jing Yang, Jiangyu Luo, and Lentuo
International Inc., Case No. 2:15-cv-01862 (C.D. Cal., March 13,
2015), alleges that the Defendants made false and misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Lentuo International Inc. operates automobile franchise
dealerships in the People's Republic of China.
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
LENOVO US: Faces "Ravencamp" Suit Over Harmful Spyware
------------------------------------------------------
Robert Ravencamp, on behalf of himself and all others similarly
situated v. Lenovo (United States), Inc. and Superfish, Inc., Case
No. 4:15-cv-01206 (N.D. Cal., March 13, 2015), seeks to stop the
Defendants' practice of selling new computers with preinstalled
harmful and offensive spyware and malware.
Lenovo (United States) Inc. is a subsidiary of Lenovo Group
Limited, a multinational computer technology company, which,
through its subsidiaries, designs, develops, manufactures and
sells personal computers, tablet computers, smartphones,
workstations, servers, electronic storage devices and smart
televisions.
Superfish, Inc. is a Delaware Corporation with its principal place
of business in Palo Alto, California. It is an advertising company
that develops various advertising-supported software products
based on a visual search engine.
The Plaintiff is represented by:
Jason S. Hartley, Esq.
STUEVE SIEGEL HANSON LLP
550 West C Street, Suite 1750
San Diego, CA 92101
Telephone: (619) 400-5822
Facsimile: (619) 400-5832
E-mail: hartley@stuevesiegel.com
- and -
Norman E. Siegel, Esq.
Barrett J. Vahle, Esq.
Ethan M. Lange, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
E-mail: siegel@stuevesiegel.com
vahle@stuevesiegel.com
lange@stuevesiegel.com
LOUISIANA COSMETOLOGY: Bid to Dismiss Salon Owners' Suit Denied
---------------------------------------------------------------
Chief District Judge Brian A. Jackson of the Middle District of
Louisiana denied defendant's motions in the case THOA T. NGUYEN,
ET AL. v. LOUISIANA STATE BOARD OF COSMETOLOGY, ET AL., CIVIL
ACTION NO. 14-00080-BAJ-RLB (M.D. La.)
Plaintiffs are Vietnamese- and Asian-American nail salon owners in
Louisiana who allege they have been subjected to disproportionate
and heightened inspections by the Louisiana State Board of
Cosmetology (LSBC) based on their ethnicity and race. Plaintiffs
filed suit against several defendants, including defendant Celia
R. Cangelosi, who is being sued in both her individual and
official capacities. Plaintiffs assert claims of racial
discrimination in violation of 42 U.S.C. Section 1983 and the
Fourteenth Amendment of the U.S. Constitution, and for false
imprisonment.
Defendant Cangelosi filed motions to dismiss pursuant to Rules
12(b)(6) and 12(b)(1), as well as motions to strike pursuant to
Rule 12(f) and La. C.C.P. article 971. With no opposition from any
defendants and with leave from the Court, plaintiffs filed a First
Amended and Supplemental Complaint for Injunctive Relief and
Damages. Cangelosi filed another set of motions to dismiss and
motions to strike arguing that plaintiffs lack standing to bring
their claims against her. Further, she argued that she is entitled
to absolute immunity because the claims arise from her performance
of a quasi-judicial or quasi-prosecutorial function or,
alternatively, that she is entitled to qualified immunity.
Separately, defendant moved to strike plaintiffs' allegations
subject to Rule 12(f) as impertinent and scandalous. She also
filed a Special Motion to Strike under La. C.C.P. art. 971,
requesting reasonable costs and attorney's fees on the basis that
plaintiffs' claims against defendant arise from defendant's
actions in furtherance of her right to free speech in connection
with a public issue.
Chief District Judge Jackson denied defendant Cangelosi's Rule
12(b)(6) and 12(b)(1) motions to dismiss and special motion to
strike plaintiffs' first amended and supplemental complaint in its
entirety. Defendant's Rule 12(b)(1) Motion to Dismiss is denied
without prejudice to reassert lack of subject matter jurisdiction
at a later stage in the proceedings. Defendant's Rule 12(b)(6)
Motion to Dismiss based on absolute and/or qualified immunity is
denied without prejudice to reassert immunity entitlement at a
later stage in the proceedings. Defendant's Rule 12(f) Motion to
Strike is denied with prejudice and defendant's Special Motion to
Strike under La. C.C.P. art. 971 is denied with prejudice.
A copy of Chief District Judge Jackson's ruling and order dated
February 11, 2015, is available at http://is.gd/NqoYGdfrom
Leagle.com.
Plaintiffs, represented by:
Ryan Ellis Beasley, Sr., Esq.
Anh Quang Cao, Esq.
CAO LAW FIRM
2439 Manhattan Blvd, Suite 302
Harvey, LA 70058
Telephone: 504-367-5001
Facsimile: 504-684-1231
Louisiana State Board of Cosmetology, Steve Young, Frances Hand,
Sherrie Stockstill, Margaret Keller, Defendants, represented by:
Carrie LeBlanc Jones, Esq.
Edmond Wade Shows, Esq.
James L. Hilburn, Esq.
SHOWS, CALI, BERTHELOT & WALSH, LLP
628 Saint Louis St.
Baton Rouge, LA 70802
Telephone: 225-346-1461
Celia Cangelosi, Defendant, represented by Paul H. Spaht --
paul@kswb.com -- Connell Lee Archey -- connell@kswb.com -- Keith
Fernandez -- keith@kswb.com -- at Kantrow, Spaht, Weaver & Blitzer
LUMBER LIQUIDATORS: Faces "Giorlando" Suit Over Toxic Flooring
--------------------------------------------------------------
Angela Giorlando, individually and on behalf of all others
similarly situated v. Lumber Liquidators, Inc., et al., Case No.
2:15-cv-00811 (E.D. La., March 13, 2015), alleges that the
Defendants manufactured, labeled and sold Chinese Flooring that
fails to comply with relevant and applicable formaldehyde
standards. The Chinese Flooring emits and off-gasses excessive
levels of formaldehyde, which is categorized as a known human
carcinogen by the United States National Toxicology Program and
the International Agency for Research on Cancer.
Lumber Liquidators, Inc., a retailer of hardwood flooring, is a
Delaware corporation with its principal place of business at 3000
John Deere Road, Toano, Virginia 23168.
The Plaintiff is represented by:
Russ M. Herman, Esq.
Leonard A. Davis, Esq.
Stephen J. Herman, Esq.
HERMAN, HERMAN & KATZ, LLC
820 O'Keefe Ave.
New Orleans, LA 70113
Telephone: (504) 581-4892
Facsimile: (504) 561-6024
E-mail: rherman@hhklawfirm.com
ldavis@hhklawfirm.com
sherman@hhklawfirm.com
- and -
Rene F. Rocha III, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
909 Poydras Street, Suite 1625
New Orleans, LA 70112
Telephone: (954) 318-0268
Facsimile: (954) 327-3018
E-mail: rrocha@forthepeople.com
- and -
Rachel Soffin, Esq.
John A. Yanchunis, Esq.
Jonathan B. Cohen, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin St., 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 222-2434
E-mail: rsoffin@forthepeople.com
LUMBER LIQUIDATORS: Faces "Ronquillo" Suit Over Toxic Flooring
--------------------------------------------------------------
Maria and Romualdo Ronquillo wife and husband; Adriana and Mark
Scotti, wife and husband; Monty Earl on behalf of themselves and
all others similarly situated v. Lumber Liquidators, Inc., Case
No. 4:15-cv-01209 (N.D. Cal., March 13, 2015), alleges that the
Defendants manufactured, labeled and sold Chinese Flooring that
fails to comply with relevant and applicable formaldehyde
standards. The Chinese Flooring emits and off-gasses excessive
levels of formaldehyde, which is categorized as a known human
carcinogen by the United States National Toxicology Program and
the International Agency for Research on Cancer.
Lumber Liquidators, Inc., a retailer of hardwood flooring, is a
Delaware corporation with its principal place of business at 3000
John Deere Road, Toano, Virginia 23168.
The Plaintiff is represented by:
Steve W. Berman, Esq.
Ari Y. Brown, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
ari@hbsslaw.com
- and -
Jeff D. Friedman, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
E-mail: jefff@hbsslaw.com
LUMBER LIQUIDATORS: Faces "Steinlauf" Suit Over Toxic Flooring
--------------------------------------------------------------
Karen Steinlauf and William Steinlauf, individually and on behalf
of all others similarly situated v. Lumber Liquidators, Inc., et
al, Case No. 1:15-cv-21032 (S.D. Fla., March 13, 2015), alleges
that the Defendants manufactured, labeled and sold Chinese
Flooring that fails to comply with relevant and applicable
formaldehyde standards. The Chinese Flooring emits and off-gasses
excessive levels of formaldehyde, which is categorized as a known
human carcinogen by the United States National Toxicology Program
and the International Agency for Research on Cancer.
Lumber Liquidators, Inc., a retailer of hardwood flooring, is a
Delaware corporation with its principal place of business at 3000
John Deere Road, Toano, Virginia 23168.
The Plaintiff is represented by:
Andrew F. Knopf, Esq.
KNOPF BIGGER
1560 N. Orange Avenue, Suite 220
Winter Park, FL 32789
Telephone: (407) 622-2111
Facsimile: (407) 622-2112
Primary E-mail: andrew@knopfbigger.com
Secondary E-mail: burton@knopfbigger.com
Additional E-mail: stephanie@knopfbigger.com
M-I LLC: "Sanchez" Seeks to Recover Unpaid OT Wages & Damages
-------------------------------------------------------------
Robert Sanchez, individually and on behalf of all others similarly
situated v. M-I, L.L.C. d/b/a Mi Swaco, Case No. 5:15-cv-00192
(W.D. Tex., March 13, 2015), seeks to recover unpaid overtime
wages and damages pursuant to the Fair Labor Standard Act.
M-I, L.L.C. a Schlumberger Corporation that provides Production
Technologies services to oil and gas companies.
The Plaintiff is represented by:
Michael A. Josephson, Esq.
FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON
1150 Bissonnet
Houston, TX 77005
Telephone: (713) 751-0025
Facsimile: (713) 751-0030
E-mail: mjosephson@fibichlaw.com
MIDLAND CREDIT: Judge Ruled on Motion to Strike Expert Report
-------------------------------------------------------------
District Judge Beth Labson Freeman of the Northern District of
California, San Jose Division, ruled on the parties' motions in
the case ELLEN ANNETE GOLD, Plaintiff, v. MIDLAND CREDIT
MANAGEMENT, INC., et al., Defendants, CASE NO. 13-CV-02019-BLF
(N.D. Cal.)
The named plaintiff Ellen Annete Gold has a consumer credit
account financial obligation to HSBC Bank Nevada, N.A, that was
consigned, placed or otherwise transferred to defendants Midland
Funding, LLC (Midland Funding) and Midland Credit Management, Inc.
(MCM) for collection.
MCM sent a collection letter and a brochure to Gold on 2012. In
the top right corner of the letter, in distinctive text, is the
statement "We can help you reduce your past due balance with HSBC
Bank Nevada, N.A. and get your finances back on track." The body
of the Letter occupies about two-thirds of the page and offers
varying discounts on Plaintiff's debt if she pays it in full
within a certain amount of time. Plaintiff contends that the
quoted passages misleadingly imply either that there is a debt
still owed to HSBC or that defendants can affect the manner in
which HSBC reports the debt to credit bureaus.
Plaintiff asserts that the letter violates provisions of Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. Section 1692, et seq.
and of the Rosenthal Act.
Defendants moved to strike expert report of Evan Hendricks.
Defendants contend that Mr. Hendricks lacks the proper
qualification to opine on the falsity of the letter and brochure;
his opinions on that subject are unreliable; and the opinions
impermissibly tread on the province of the court to determine the
ultimate legal question of liability under the FDCPA.
Defendant Midland Funding separately moves for summary judgment on
all of Plaintiff's claims on the ground that it is not a debt
collector subject to liability under the FDCPA and Rosenthal Act.
Plaintiff and MCM each moved for summary judgment on the question
of MCM's liability under the FDCPA and the Rosenthal Act.
Plaintiff contends that the letter and brochure threaten to take
action that cannot legally be taken, a violation of Section
1692e(5) of the FDCPA, and that the communications are materially
misleading, a violation of Section 1692e(10) of the Act. MCM
contends that the letter and brochure are not misleading and do
not threaten any action and, accordingly, do not violate the
FDCPA.
Judge Freeman granted in part and denied in part defendants'
motion to strike expert report and testimony of plaintiff's expert
Evan Hendricks. Defendant Midland Funding's motion for summary
judgment is granted and defendant Midland Credit Management's
motion for summary judgment is granted. Plaintiff's motion for
summary judgment or in the alternative, summary adjudication is
denied.
A copy of Judge Freeman's order dated March 10, 2015, is available
at http://is.gd/tFWNTkfrom Leagle.com.
Ellen Annete Gold, Plaintiff, represented by:
Fred W. Schwinn, Esq.
Raeon Rodrigo Roulston, Esq.
CONSUMER LAW CENTER, INC.
12 South First Street, Suite 1014
San Jose CA 95113
Telephone: 408-294-6100
Facsimile: 408-294-6190
- and -
Randolph Bragg -- Rand@horwitzlaw.com -- at Horwitz,Horwitz &
Associates
Midland Credit Management, Inc. and Midland Funding, LLC,
Defendants, represented by Tomio Buck Narita -- tnarita@snllp.com
-- Christopher M Spain -- Jeffrey A. Topor -- jtopor@snllp.com --
Liana Mayilyan -- Liana@snllp.com -- at Simmonds and Narita LLP
MISSOURI: Lombardi Gets Partial Summary Judgment in "Van Orden"
---------------------------------------------------------------
District Judge Audrey G. Fleissig granted partial summary judgment
to the defendant in the case captioned JOHN VAN ORDEN, et al.,
Plaintiffs, v. KEITH SCHAFER, et al., Defendants, CASE NO.
4:09CV00971 AGF, (E.D. Mo.).
Plaintiffs in this class action are civilly committed residents of
Missouri's Sex Offender Rehabilitation and Treatment Services
("SORTS") facilities. They assert claims against several state
officials representing the Missouri Department of Mental Health
("DMH") and against George Lombardi in his official capacity as
Director of the Missouri Department of Corrections ("DOC"). The
Court bifurcated the trial into two phases: liability and remedy.
Mr. Lombardi moved for summary judgment.
According to Judge Fleissig, the DMH Defendants have previously
argued to the Court that if Plaintiffs succeed in proving
liability, the Court cannot accord the complete relief sought by
Plaintiffs, including an injunction to stop the SVP civil
commitment process, without joinder of the DOC. Therefore, the
Court will deny Lombardi's motion for summary judgment to the
extent it relates to the remedy phase of this case.
However, "Lombardi's motion for summary judgment shall be granted
in part, with respect to liability," wrote Judge Fleissig in her
March 11, 2015 memorandum and order, a copy of which is available
at http://is.gd/UkRc6kfrom Leagle.com.
MOBIL EXPLORATION: Court Wants Amended Complaint Served to MOEPSI
-----------------------------------------------------------------
In CATHERINE M. BERNARD v. JOSEPH GREFER, ET AL., SECTION "L" (2),
CIVIL ACTION NO. 14-887, (E.D. La.), before the Court is Defendant
Mobil Exploration & Producing Southeast Inc.'s (MOEPSI) motion to
dismiss pursuant to Rules 12(b)(4) and 12(b)(5).
This case arises out of alleged personal injuries and property
damages that resulted from alleged exposure to naturally occurring
radioactive material (NORM), also known as technologically
enhanced radioactive materials (TERM), as part of oil operations
by various pipe-cleaning defendants. In addition to the pipe-
cleaning defendants, Plaintiffs name landowners who owned the land
upon which the pipe-cleaning operations were conducted and oil
companies as defendants. The Petition asserts claims by
approximately 465 Plaintiffs, and they originally filed their
claims in the Civil District of Orleans Parish on March 5, 2014.
Defendant Transco Exploration Co. removed the case to the Eastern
District of Louisiana Court pursuant to the Class Action Fairness
Act. Defendant MOEPSI is named in the original complaint.
District Judge Eldon E. Fallon, in his order & reasons entered
March 17, 2015, a copy of which is available at
http://is.gd/WN5b9Hfrom Leagle.com, ruled that "Defendants have
requested dismissal with prejudice; however, dismissal is only
appropriate where the defect in service is prejudicial to the
defendant. Even then, such dismissal is typically without
prejudice. Here, Defendants have offered no evidence that they are
prejudiced by the service defects in this case. Indeed, it is
apparent that MOPESI has received actual notice of this suit.
Dismissal is therefore inappropriate."
Judge Fallon ordered that Plaintiffs must properly serve MOEPSI
with the complaint and summons in this matter, or obtain a waiver
of service. If the Plaintiffs fail to do so, the Court will
dismiss the action against MOEPSI.
Catherine M Bernard, Plaintiff, represented by George Febiger
Riess, Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Alvarez A Brown, Plaintiff, represented by George Febiger Riess,
Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Mary Louise Butler, Plaintiff, represented by George Febiger
Riess, Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Shirley Ann Chase, Plaintiff, represented by George Febiger Riess,
Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Robert Coleman, Plaintiff, represented by George Febiger Riess,
Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Rivers Davis, Jr., Plaintiff, represented by George Febiger Riess,
Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Lafabian A. Fluker, Plaintiff, represented by George Febiger
Riess, Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Joseph William Burkess, Plaintiff, represented by George Febiger
Riess, Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Dionne Monique Clofer, Plaintiff, represented by George Febiger
Riess, Law Offices of George F. Riess & Associates, LLC, Dwight
Jefferson, Coats, Rose, Yale, Ryman & Lee, P.C. & James L. Wright,
Law Offices of Environmental Litigation Group, P.C.
Exxon-Mobil Corporation, Defendant, represented by Glen Marion
Pilie, Adams & Reese, LLP, Donald Cole Massey, Adams & Reese, LLP,
E. Paige Sensenbrenner, Adams & Reese, LLP, John Jerry Glas,
Deutsch, Kerrigan & Stiles, LLP, Martin Alan Stern, Adams & Reese,
LLP, Raymond C. Lewis, Deutsch, Kerrigan & Stiles, LLP, Roland M.
Vandenweghe, Jr., Adams & Reese, LLP, Valeria M. Sercovich, Adams
& Reese, LLP & William Everard Wright, Jr., Deutsch, Kerrigan &
Stiles, LLP.
Intracoastal Tubular Services, Inc., Defendant, represented by
Thomas E. Balhoff, Roedel, Parsons, Koch, Blache, Balhoff &
McCollister & Carlton Jones, III, Roedel, Parsons, Koch, Blache,
Balhoff & McCollister.
Mobil Exploration & Producing Southeast, Inc., Defendant,
represented by Glen Marion Pilie, Adams & Reese, LLP, Donald Cole
Massey, Adams & Reese, LLP, E. Paige Sensenbrenner, Adams & Reese,
LLP, Martin Alan Stern, Adams & Reese, LLP, Roland M. Vandenweghe,
Jr., Adams & Reese, LLP & Valeria M. Sercovich, Adams & Reese,
LLP.
OFS, Inc., Defendant, represented by Charles Bruce Colvin,
Kingsmill Riess, LLC, Marguerite Kern Kingsmill, Kingsmill Riess,
LLC & R. A. Osborn, Jr., Osborn & Osborn.
Shell Offshore, Inc., Defendant, represented by Mary S. Johnson,
Johnson, Gray, McNamara, LLC, Chadwick J. Mollere, Johnson, Gray,
McNamara, LLC, Jill Thompson Losch, Johnson, Gray, McNamara, LLC &
Nichole M. Gray, Johnson Gray McNamara.
MOLYCORP INC: Judge Grants Bid to Dismiss NY Securities Suit
------------------------------------------------------------
District Judge Paul A. Crotty of the Southern District of New York
granted defendants' motion in the case entitled IN RE MOLYCORP,
INC. SECURITIES LITIGATION, NO. 13 CIV 5697 (PAC) (S.D.N.Y.)
The defendant Molycorp, Inc. is a Delaware corporation with
headquarters in Greenwood Village, Colorado. It produces and
sells rare earth and rare metal products. The individual
defendants, Constantine Karayannopoulos, Mark A. Smith, Michael F.
Doolan, John L. Burba, and John F. Ashburn, are the officers of
Molycorp holding different positions.
Plaintiffs filed a class action suit alleging that Molycorp,
Karayannopoulos, Smith, Doolan, Burba, Ashburn violated Section
10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder
and Section 20(a) of the Exchange Act. Plaintiffs, who purchased
Molycorp's common stock between February 21, 2012 and October 15,
2013, claim that defendants made material misstatements and
omissions during the February 21, 2012 and October 15, 2013
regarding the progress of the first phase of Project Phoenix, an
effort to modernize Molycorp's rare earths mine in Mountain Pass,
California to expand its production capacity, the amount of
inventory carried on Molycorp's balance sheet and its cost of
sales in the first quarter of 2013 and Molycorp's progress in
building commercial potential for SorbX, Molycorp's proprietary
water filtration product made of cerium gleaned from Molycorp's
Mountain Pass mine.
Defendants move, pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b), to
dismiss the consolidated amended class action complaint.
Judge Crotty granted defendants' motion in an opinion and order
dated March 12, 2015, available at http://is.gd/uIchydfrom
Leagle.com.
Gary Armstrong and Ronald Simmers, Lead Plaintiffs, represented by
Ira M. Press -- ipress@kmllp.com -- at Kirby McInerney LLP
Macie J. Jurkowski, Plaintiff, represented by Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- Lesley Frank Portnoy --
Matthew L Tuccillo -- mltuccillo@pomlaw.com -- Patrick Vincent
Dahlstrom -- pdahlstrom@pomlaw.com -- at at Pomerantz LLP; Ira M.
Press -- ipress@kmllp.com -- at Kirby McInerney LLP
Paul Saldana, Allen Trempe, Gail Fialkov and Brett Huber,
Plaintiffs, represented by Ira M. Press -- ipress@kmllp.com -- at
Kirby McInerney LLP
John Sailer, Jr., Movant, represented by Jeremy Alan Lieberman --
jalieberman@pomlaw.com -- at Pomerantz LLP
Molycorp, Inc., Defendant, represented by Robert F. Serio --
rserio@gibsondunn.com -- Gabrielle Frances Levin --
glevin@gibsondunn.com -- at Gibson, Dunn & Crutcher, LLP
Constantine E. Karayannopoulos, Mark A. Smith, Michael F. Doolan,
John L. Burba and John F. Ashburn, Jr., Defendants, represented by
Eric N. Landau -- elandau@jonesday.com -- Robert W. Gaffey --
rwgaffey@jonesday.com -- Paul Bartholomew Green --
bartgreen@jonesday.com -- at Jones Day
MOMOYAMA INC: Faces "Reaves" Suit Over Failure to Pay Overtime
--------------------------------------------------------------
Neal Javier Reaves and all others similarly situated under 29
U.S.C. 216(b) v. Momoyama, Inc. d/b/a Gabose Restaurant, Eun Suk
Hong, Case No. 0:15-cv-60528 (S.D. Fla., March 13, 2015), is
brought against the Defendants for failure to pay overtime wages
for hours work in excess of 40 in a week.
The Defendants own and operate a restaurant in Broward County,
Florida.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: 865-7167
E-mail: ZABOGADO@AOL.COM
MOONLITE DINER: Faces "Fenty" Suit Over Failure to Pay Overtime
---------------------------------------------------------------
Tatiana Fenty, on behalf of herself and others similarly situated
v. Moonlite Diner II, Inc., a Florida profit corporation, Case No.
0:15-cv-60531 (S.D. Fla., March 13, 2015), is brought against the
Defendant for failure to pay overtime wages in violation of the
Fair Labor Standard Act.
Moonlite Diner II, Inc. owns and operates a restaurant in Broward
County, Florida.
The Plaintiff is represented by:
Richard Bernard Celler, Esq.
RICHARD CELLER LEGAL, P.A.
7450 Griffin Road, Suite 230
Davie, FL 33314
Telephone: (954) 243-4295
Facsimile: (954) 337-2771
E-mail: richard@floridaovertimelawyer.com
MSR GROUP: Has Sent Unsolicited Calls, "Fox' Suit Claims
--------------------------------------------------------
Ann Fox, individually and on behalf of all others similarly
situated v. The MSR Group, LLC, Case No. 2:15-cv-01868 (C.D. Cal.,
March 13, 2015), seeks to stop the Defendant's practice of making
unsolicited calls using an automatic telephone dialing system.
The MSR Group, LLC is a full-service research firm specializing in
customer experience management, brand awareness, advertising and
creative testing.
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Suren N. Weerasuriya, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
324 S. Beverly Dr. #725
Beverly Hills, CA 90212
Telephone: (877) 206-4741
Facsimile: (866)633-0228
E-mail: tfriedman@attorneysforconsumers.com
sweerasuriya@attorneysforconsumers.com
abacon@attorneysforconsumers.com
- and -
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
- and -
Joshua B. Swigart, Esq.
HYDE & SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108-3551
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
NAT'L COLLEGIATE: Court Hears Arguments in Antitrust Class Action
-----------------------------------------------------------------
Ross Todd, writing for The Recorder, reports that lawyers
representing the National Collegiate Athletic Association squared
off against attorneys for a class of former athletes in the U.S.
Court of Appeals for the Ninth Circuit on March 17 in a fight over
whether top college football and men's basketball players should
be paid for their roles in the big business of college athletics.
During an hour-plus of arguments, a three-judge Ninth Circuit
panel grappled with U.S. District Judge Claudia Wilken's 2014
ruling that found the NCAA had violated antitrust law by refusing
to share revenue it and its member schools earn from licensing
athletes' names, images and likenesses.
Arguing for the NCAA, Wilmer Cutler Pickering Hale and Dorr
partner Seth Waxman said the decision undermines amateurism rules
that were central to the association at its founding -- rules he
called pro-competitive.
"Until the decision below, no court had ever found that the
antitrust laws condemn a rule that's purpose" is to protect
amateurism, he said. Mr. Waxman pointed out that although the
plaintiffs' antitrust claims were dependent on their rights to
their names, images and likenesses, there's no federal court
decision that supports such a claim in live-game broadcasts.
The panel allowed long periods of uninterrupted argument from both
Mr. Waxman and Michael Hausfeld of Washington, D.C.'s Hausfeld
firm, lead lawyer for the athletes. Mr. Hausfeld's client,
6-foot-8-inch Ed O'Bannon, who won a national championship as a
basketball player at the University of California at Los Angeles,
squeezed into the second row of the gallery of the packed Ninth
Circuit courtroom on March 17.
The same three judges, Chief Circuit Judge Sidney Thomas, Circuit
Judge Jay Bybee and U.S. District Judge Gordon Quist of the
Western District of Michigan, decided an appeal of a related case
in 2013, finding that video game maker Electronic Arts Inc. had no
First Amendment defense to right-of-publicity claims brought by
former college football player Samuel Keller.
The appeal heard on March 17 sprang from a landmark ruling from
Judge Wilken, which found that schools should be allowed to pay
the full cost of athletes' education -- about $3,000 more than the
amount allowed under prior NCAA rules. She also ordered the NCAA
to allow schools to put up to $5,000 a year from broadcast and
video game licensing in trust for athletes until after the end of
their playing days.
Judge Wilken's ruling followed a 15-day bench trial in the
Northern District of California. Hausfeld and the other 31 firms
who worked on the case are asking for $50 million in fees and
costs. The NCAA's lawyers have argued the plaintiffs firms are
entitled to just $8 million due to their "limited success." The
fee issue is pending before Judge Wilken.
Judge Thomas, who dissented from the panel's decision in the
earlier case, took issue with Mr. Waxman's assertion that athletes
have no legal right to the use of their names, images and
likenesses in live sports broadcasts. The court, he said, would
have to give some consideration to the fact that broadcasters
typically ask for such rights in their contracts with the NCAA and
conferences. He also prodded Waxman on how that argument applied
to video games.
Mr. Waxman told the court that the NCAA is out of the video game
business going forward, but if it changed course "that would be
another case" rather than something that should subject to an
antitrust injunction.
Hausfeld said the landscape is quickly changing. During the
course of the litigation, he said, the five conferences with teams
that have the highest revenue and the most nationally known
athletes had complained that the structure of the NCAA limited
their ability to provide athletes more benefits. Hausfeld argued
that the NCAA's structure -- in which smaller schools with limited
sports budgets have more votes and control of the organization's
rules -- led to a situation that effectively lowers competition to
the level of "the most inefficient or least efficient competitor."
"That's the antithesis of the antitrust laws," he said.
Judge Thomas asked Hausfeld why athletes' names, likeness and
images have value in the context of the antitrust laws.
Hausfeld responded that they have value because there were
commercial entities willing to pay for those rights and the NCAA
commercializes them, pointing in particular to Electronic Arts.
Judge Quist questioned the justification for the $5,000 limit
imposed in Judge Wilken's order, asking why it wasn't $8,000 or
$10,000. "Where are you going to stop?" he asked.
Attacking the $5,000 cap from the other end, Judge Bybee said it
seemed to have "crossed the line" about what it means to be an
amateur.
Hausfeld said the figure came from the NCAA's own witnesses who
said that payments of $5,000 wouldn't affect an athlete's amateur
status. After Judge Bybee asked for the names of particular
witnesses to whom Hausfeld referred, Judge Thomas said one of
those witnesses had said only that he "wouldn't have a problem"
with the $5,000 figure. That was "far from an economic
assertion," Judge Thomas said. Judge Bybee added that the $5,000
number wasn't mentioned specifically with regards to preserving an
athlete's amateur status.
"That's the problem of dealing with the term amateur without a
definition," Hausfeld responded. "They're supposed to be
students. . . . They should not be athletes masquerading as
students."
NAT'L FOOTBALL: Jury Awards $75,000 to Ticketholder Plaintiffs
--------------------------------------------------------------
Miriam Rozen, writing for Texas Lawyer, reports that neither the
National Football League officials nor NFL's outside counsel from
Haynes and Boone coached or counseled a contractor who worked on
seating for Super Bowl XLV before he testified for a videotaped
deposition played at a federal trial, according to Thad Behrens --
thad.behrens@haynesboone.com -- a partner in Dallas' Haynes and
Boone, who represents the NFL.
That trial ended with a jury verdict which awarded about $75,000
to ticketholder plaintiffs who had alleged breach of contract
claims against the NFL; but the same jury nixed the plaintiffs'
fraudulent inducement claims against the league.
According to Mr. Behrens, the contractor, Scott Suprina, who
worked on the stadium seating construction, clarified at a court-
ordered post-verdict deposition, held in judge's chambers on
March 17, that no one from Haynes and Boone or the NFL influenced
him before his previous videotaped deposition. The court had
scheduled Mr. Suprina's post-verdict deposition after the
plaintiffs alleged that the NFL or its counsel had possibly
influenced the contractor prior to his first deposition. The
plaintiffs based their suspicions on an ESPN.com interview of
Mr. Suprina posted March 11.
At the post-verdict March 17 deposition, according to Mr. Behrens,
Mr. Suprina stated specifically that he did not have a
conversation with anyone from Haynes and Boone before a videotaped
deposition that played at trial. Nor did he have a conversation
about the first deposition prior to it taking place with anyone
from the NFL. The judge asked Mr. Suprina if, given the
opportunity, he would make any changes to his first deposition
testimony. He said no, according to Behrens.
ESPN Article
In the ESPN.com article, posted March 11, Mr. Suprina was quoted
as saying league officials encouraged him to stay quiet.
"They encouraged me not to tell the whole story," ESPN quoted
Mr. Suprina as saying. "They reinforced what my position should
be before the deposition."
According to the article, Mr. Suprina said that the NFL failed
five of his employees on background checks, causing delays. "They
never told us why," ESPN quoted Mr. Suprina as saying.
After ESPN's publication of Mr. Suprina's interview, the
plaintiffs filed an emergency motion seeking the opportunity to
depose Mr. Suprina again.
U.S. District Judge Barbara M.G. Lynn agreed, but also ordered
that the deposition take place under her supervision and that she
would rule on any objections during the proceeding. Judge Lynn
also ordered that "no party" may pay Mr. Suprina's expenses. She
did not allow reporters to attend the deposition.
Michael J. Avenatti of Newport Beach, California's Eagan Avenatti,
who represents plaintiffs, did not return a call after Mr.
Suprina's post-verdict deposition.
Prior to it, Mr. Avenatti said: "We look forward to getting to the
bottom of the statements made by Mr. Suprina in the ESPN article.
If they are true, and we don't know yet if they are true, it will
have serious ramifications for this case and the National Football
League."
Stephen Jones, a lawyer in Enid, Oklahoma, reportedly has begun
representing Mr. Suprina. But Mr. Jones did not return a call to
confirm that by press time. Mr. Jones previously defended Timothy
McVeigh, who was convicted and executed for the 1995 truck bombing
in Oklahoma City that left more than 100 dead.
NEW YORK, NY: Settles Suit by Hearing Impaired Police Officers
--------------------------------------------------------------
Mark Hamblett, writing for New York Law Journal, reports that
hearing-impaired police officers in New York City will have the
chance to use hearing aids as long as it does not hamper their
ability to do their jobs, under a settlement being finalized in
federal court.
Attorneys with Disability Rights Advocates and the Law Offices of
Meenan & Associates reached a settlement with the Law Department
March 9 in the case of Phillips v. The City of New York, 11-cv-
06685. The case was brought under the Americans with Disabilities
Act and the New York City Human Rights Law.
Under the settlement, plaintiffs lawyers said in a statement on
March 17, the city agreed to reinstate plaintiff Daniel Carione, a
20-year veteran of the New York Police Department, who was
challenging his involuntary retirement from the force.
The city, they said, also agreed to review its hearing aid policy
and evaluate officers on a case-by-case basis while wearing
hearing aids. All officers currently using aids can to continue
to do so until the policy review is completed.
The plaintiffs are represented by Rebecca Rodgers and Stuart
Seaborn of Disability Rights Advocates and Colleen Meenan and
Shelley Ann Quilty-Lake.
Ms. Rodgers said in an interview on March 17 that some details
must be worked out before a final settlement agreement can be
presented for scrutiny by Judge Katherine Polk Failla.
Lawrence Profeta, of counsel at the Law Department, represents the
city.
NEW YORK: Order Dismissing Claims in "Clarke" Case Upheld
---------------------------------------------------------
The United States Court of Appeals, Second Circuit affirmed a
district court judgment entered in Howard D. Clarke, et al.,
Plaintiffs-Appellants, v. Bill de Blasio, et al., Defendants-
Appellees, NO. 14-3390-CV.
Plaintiffs-Appellants New York State Professional Process Servers
Association, Inc., Howard D. Clarke, and Stephen Boyko, Inc.,
brought this class action against the City of New York and 38
individual defendants in their official and individual capacities.
Plaintiffs appealed from a judgment of the district court
dismissing their claims against Defendants, arguing, inter alia,
that they were entitled to relief under 42 U.S.C. Section 1983
because Defendants acted ultra vires in adjudicating alleged
violations of process server regulations and violated Plaintiffs'
procedural due process rights in denying renewal of process server
licenses absent a hearing.
In its summary order entered March 12, 2015, a copy of which is
available at http://is.gd/Jabofwfrom Leagle.com, the Second
Circuit concluded, for substantially the same reasons as did the
district court in its thorough opinion and order, that "the
Plaintiffs' amended complaint fails to allege facts sufficient to
withstand a Rule 12(b)(6) motion to dismiss."
In particular, held the Second Circuit, the Plaintiffs' factual
allegations do not support their claim that Defendants acted ultra
vires in administratively enforcing violations of Title 20 of the
Administrative Code, which governs the oversight of process server
licensing. The Second Circuit agreed with the district court that
several provisions of the Administrative Code together with
provisions of the City Charter provide substantial authority to
Defendants to oversee, regulate and enforce the laws governing
process server licensing. It also agreed with the district court
that Plaintiffs' procedural due process claim fails. Plaintiffs do
not allege sufficient facts to demonstrate that absent a hearing
Defendants' denial of process server licenses rises to the level
of a procedural due process violation. As the district court
explained, Defendants are given great discretion in determining
whether to renew a license and neither the Administrative Code nor
the City Charter requires Defendants to grant a renewal on the
condition that certain criteria are met. Plaintiffs fail to
demonstrate a cognizable property interest and "legitimate claim
of entitlement" so as to warrant a hearing in connection with the
denial of renewal of their process server licenses, it added.
TRACY J. HARKINS, Mt. Sinai, NY, for Plaintiff-Appellant.
DRAKE COLLEY, Assistant Corporation Counsel, for Zachary W.
Carter, Corporation Counsel of the City of New York, New York, NY,
WALTER A. KRETZ, JR., Scoppetta Seiff Kretz & Abercrombie, New
York, NY, for Defendants-Appellees.
PASSAIC COUNTY, NJ: Judge Allows Inmate to Amend Complaint
----------------------------------------------------------
Magistrate Judge Cathy L. Waldor of the District of New Jersey
granted plaintiff's motion to amend the complaint, commencing the
case JEREMY CRUMP individually and on behalf of a Class of others
similarly situated, Plaintiff, v. PASSAIC COUNTY, PASSAIC COUNTY
SHERIFF'S OFFICE, RICHARD H. BERDNIK, both Individually and in his
official capacity as Sheriff of Passaic County and MICHAEL
TOLERICO both individually and in his official capacity as Warden
of the Corrective Services Division of the Passaic County
Sheriff's Office, Defendants, CIVIL ACTION NO. 2:14-2365
(WHW)(CLW) (D.N.J.)
Jeremy Crump filed a class action complaint with the United States
District Court for the District of New Jersey, on behalf of
himself and those who were placed into custody of the Passaic
County Jail after being charged with non-indictable offenses and
were strip-searched upon their transfer and entry into the Passaic
County Jail.
The plaintiff has structured his complaint upon two causes of
action. The first of which alleges that the defendants violated
the United States and New Jersey Constitutions under the color of
state law for unreasonable searches and failure to implement
policies and practices to avoid constitutional deprivation under
color of state law. Specifically, he alleges violation of the
Fourth Amendment of the United States Constitution, as enforced
under 42 U.S.C. Section 1983, and Article 1, of the New Jersey
Constitution, as enforced by the New Jersey Civil Rights Act
(NJCRA), the New Jersey Statutes Annotated (N.J.S.A.) 10:6-2(c),
as well as the New Jersey Strip Search Statute, N.J.S.A. 2:A:161A-
1. The second cause of action asserts that the defendants violated
the plaintiff's statutory rights under the New Jersey Civil Rights
Act (NJCRA), N.J.S.A. 10:6-1 et seq.
The defendants filed their answer denying the plaintiff's claims
and raising 56 of their own affirmative defenses. On November 14,
2014, the defendants filed a motion for judgment on the pleadings,
in which defendants argued that the plaintiff's complaint is
predicated on a demonstrably false assumption as to defendants'
strip search policy and that this detailed policy is fully
consistent with New Jersey and federal law. The plaintiff filed a
Notice of Cross-Motion to Amend Complaint on December 23, 2014.
Magistrate Judge Waldor granted plaintiff's motion to amend and
within 10 days of the date of the order, the plaintiff shall file
and serve an amended complaint.
A copy of Magistrate Judge Waldor's opinion and order dated March
9, 2015, is available at http://is.gd/H8umOVfrom Leagle.com.
JEREMY CRUMP, Plaintiff, represented by:
William A. Riback, Esq.
WILLIAM RIBACK, LLC
132 N Haddon Ave.
Haddonfield, NJ 08033
Telephone: 856-857-0008
Defendants, represented by JACQUELINE A. DEGREGORIO --
jdegregorio@weinerlesniak.com -- at WEINER LESNIAK, LLP
PROPARK AMERICA: Appeals Court Affirms Settlement in "Kudrna" Case
------------------------------------------------------------------
Justice Stuart R. Pollak of the Court of Appeals of California,
First District, Division Three, affirmed the judgment of the trial
court in the appealed case entitled MARK KUDRNA et al., Plaintiffs
and Respondents, v. PROPARK AMERICA WEST, LLC, Defendant and
Respondent; ANTHONY JOHNSON et al., Objectors and Appellants, NO.
A141887 (Cal. Ct. App.)
Plaintiff Mark Kudrna filed a class action against Propark on
behalf of himself and all persons who were employed in nonexempt
parking attendant positions by Propark in California at any time
on or after March 26, 2006. The complaint alleges causes of action
for: (1) unlawful failure to pay wages due; (2) unlawful failure
to pay overtime wages; (3) failure to provide meal and rest
periods; (4) failure to provide accurate itemized wage statements;
and (5) unfair business practices under the unfair competition
law.
At the outset, the parties agreed to informally exchange key data
and documents necessary for class counsel to properly evaluate the
claims for purposes of settlement. After the second mediation
session on January 9, 2012, the parties reached agreement on the
essential terms of a class-wide settlement. The parties reached an
agreement to the final settlement terms after months of additional
bilateral negotiations, and executed the proposed settlement
agreement on May 17, 2012.
The trial court granted preliminary settlement approval and class
certification after Kudrna filed a third motion for preliminary
approval. Kudrna then filed a renewed motion for final approval
and on May 2, 2014, the trial court granted final approval of the
class action settlement agreement.
Anthony Johnson and Seth King, two objectors to the settlement,
appeal from the judgment approving the deal. They contend the
settlement is not fair, adequate and reasonable, and the notice of
the proposed settlement sent to class members was insufficient to
satisfy due process requirements.
Justice Pollak affirmed the judgment of the trial court, observing
that the lower court did not abuse its discretion in approving the
deal.
A copy of Justice Pollak's unpublished opinion dated January 28,
2015, is available at http://is.gd/QmdoX1from Leagle.com.
The panel for the Court of Appeals of California, First District,
Division Three consists of Presiding Justice William R. McGuiness
and Justices Stuart R. Pollak and Martin J. Jenkins.
RICK LEVIN: Faces "Metrick" Suit Over Failure to Pay Overtime
-------------------------------------------------------------
Robert Metrick, on behalf of himself and all other similarly
situated v. Rick Levin & Associates, Case No. 1:15-cv-02227 (N.D.
Ill., March 13, 2015), is brought against the Defendant for
failure to pay overtime wages in violation of the Fair Labor
Standard Act.
Rick Levin & Associates owns and operates a real estate agency
located at 1050 North State Street #202, Chicago, IL 60610, United
States.
The Plaintiff is represented by:
Terrence Buehler, Esq.
TOUHY, TOUHY & BUEHLER, LLP
55 West Wacker Drive, 14th Floor
Chicago, IL 60601
Telephone: (312) 372-2209
Facsimile: (312) 456-3838
E-mail: tbuehler@touhylaw.com
SAN DIEGO, CA: Modified Opinion Entered in Universal Case
---------------------------------------------------------
The Court of Appeals of California, Fourth District, Division One
issued on March 12, 2015, an order modifying an opinion in the
case captioned UNIVERSAL PROTECTION SERVICE, L.P., Petitioner, v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent, FLORIDALMA
FRANCO, Real Party in Interest, NO. D066919.
The Court held that the opinion filed on February 27, 2015, is
modified such that on page 8, footnote 3 is deleted and replaced
with:
The question presented here is whether the parties' reference to
AAA rules, including rules that expressly state the arbitrator
"shall determine as a threshold matter . . . whether the
applicable arbitration clause permits the arbitration to proceed
on behalf of or against a class," constitutes clear and
unmistakable evidence that they agreed the arbitrator is to
decide that question. Different but related issues are pending
before the Supreme Court in Sandquist v. Lebo Automotive, Inc.,
review granted November 12, 2014, S220812 and Network Capital
Funding Corporation v. Papke, review granted January 14, 2015,
S222638.
There is no change in the judgment.
A copy of the modified opinion is available at http://is.gd/y2mvmS
from Leagle.com.
As previously reported, Universal petitioned for a writ of mandate
and/or prohibition challenging the superior court's order granting
real party in interest Floridalma Franco's demand to arbitrate her
employment-related disputes with Universal and ruling the
arbitrator would decide the arbitrability of Franco's class action
claims. Universal contended the court legally erred in its ruling
because the parties' arbitration agreement did not clearly and
unmistakably submit arbitrability questions to the arbitrator, and
thus it was for the superior court to decide whether the agreement
authorized class and/or representative arbitration.
The Calif. Appeals Court concluded that the court erred by
granting Franco's petition in reliance on Green Tree Financial
Corp. v. Bazzle (2003) 539 U.S. 444 (Bazzle). Nevertheless, it
agreed with Franco that the parties' reference to American
Arbitration Association (AAA) rules, which unambiguously state
that the arbitrator is to decide whether the parties' arbitration
agreement permits class arbitration, constitutes clear and
unmistakable evidence of their intent that the arbitrator decide
this issue, which is a threshold question of arbitrability.
Because the trial court reached the correct conclusion, the Appeal
Court denied the petition.
Sheppard, Mullin, Richter & Hampton and Richard J. Simmons, Jason
Wade Kearnaghan, Cassidy M. English, Michael T. Campbell for
Petitioner.
The Dion-Kindem Law Firm and Peter R. Kindem, The Blanchard Law
Group and Lonnie C. Blanchard, Jeffrey D. Holmes for Real Party in
Interest.
SEARS HOLDING: D.N.J. Judge Sends "Ricci" Case to Arbitration
-------------------------------------------------------------
District Judge Renee Marie Bumb of the District of New Jersey
granted defendants' motion to compel arbitration in the case
STEVEN RICCI, Plaintiff, v. SEARS HOLDING CORPORATION, et al.,
Defendants, CIVIL NO. 14-3136 RMB/JS (D.N.J.)
The plaintiff Steven Ricci was hired by the defendants in November
of 2007 to work as a hardline merchandiser in the defendants'
Somers Point Kmart store. On April 27, 2012, plaintiff agreed to
abide by the terms of a binding Arbitration Policy/Agreement,
which constitutes a waiver of his right to bring an action in a
court of law and, instead, requires arbitration of his claims. By
its terms, the Agreement applies to employment discrimination
disputes under federal and any and all state statutes.
On July 18, 2013, plaintiff was performing work in the warehouse
when the metal shelves he was loading began to cascade over him
causing plaintiff to be injured. After the injury, plaintiff had
difficulty performing his duties and returned to work with
restrictions ordered by his physician.
Plaintiff sued in state court, asserting claims against the
defendants under the New Jersey Law Against Discrimination,
N.J.S.A., 10:5-1 et seq., stating that they have discriminated
against plaintiff for his need for a reasonable accommodation for
a work-place injury and retaliated against him for his disclosures
and protests of being treated differently in respect to the amount
of hours he was being assigned to work.
The defendants removed the plaintiff's complaint to the District
Court on the basis of diversity jurisdiction and filed a motion to
compel arbitration and to dismiss plaintiff's complaint.
Judge Bumb granted defendants' motion to compel and to dismiss.
A copy of Judge Bumb's opinion dated January 23, 2015, is
available at http://is.gd/DhXc3Ffrom Leagle.com.
Attorneys for Plaintiff:
Daniel M. Kurkowski, Esq.
KURKOWSKI LAW LLC
1252 Route 109 South
Cape May, NJ 08204
Telephone: 609-884-1788
Facsimile: 609-884-1163
Todd Alan Ewan -- tewan@laborlawyers.com -- Christin Choi -- at
Fisher & Phillips LLP, Attorneys for Defendants
SKIN CABARET: Faces "Jones" Suit Over Failure to Pay Overtime
-------------------------------------------------------------
Kim Jones, on Behalf of Herself and on Behalf of All Others
Similarly Situated v. Skin Cabaret Trademark, d/b/a Skin
Cabaret, Todd Borowsky, and Richard J. Cea Jr., Case No. 2:15-cv-
00469 (D. Ariz., March 13, 2015), is brought against the
Defendants for failure to pay overtime wages in violation of the
Fair Labor Standard Act.
The Defendants own and operate an adult entertainment club in
Scottsdale, Arizona.
The Plaintiff is represented by:
Michelle Ray Matheson, Esq.
MATHESON & MATHESON PLC
15300 N 90th St., Ste. 550
Scottsdale, AZ 85260
Telephone: (480) 889-8951
Facsimile: (480) 339-4538
E-mail: mmatheson@mathesonlegal.com
SOUTHWEST TRANSPORT: Sued Over Failure to Pay Overtime Wages
------------------------------------------------------------
Jose M. Quintana, and all others similarly situated under
29 U.S.C. Sec. 216(b) v. Southwest Transport, Inc., d/b/a
"Southland" The Towing Company, Robert J. Muriedas, Case No. 1:15-
cv-21025 (S.D. Fla., March 13, 2015), is brought against the
Defendants for failure to pay overtime wages for hours work in
excess of 40 in a week.
The Defendants own and operate a freight and cargo company.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: 865-7167
E-mail: ZABOGADO@AOL.COM
SPECIALTY GRAPHINCS: TCPA Claim Should Proceed, Judge Says
----------------------------------------------------------
John Colin Suttles alleges that on May 21, 2014, Specialty
Graphics Inc. contacted him on his cellular telephone number via
an automated telephone dialing system (ATDS). Suttles alleges he
received ten calls from this caller designated as unknown or
0000000000. Plaintiff Suttles individually and on behalf of all
others similarly situated, sued Specialty Graphics, alleging
violations of the Telephone Consumer Protection Act (TCPA), 47
U.S.C. Section 227, et seq., a statute enacted to regulate
telemarketers.
On May 30, 2014, Suttles filed his Original Class Action
Complaint, and on June 23, 2014, Suttles amended the case, and
asked for an award of statutory damages to the class members,
including treble damages, together with costs and reasonable
attorneys' fees.
On June 24, 2014, Specialty Graphics filed its answer, and also
made an offer of judgment to Suttles, offering what it contends is
the maximum amount Suttles could recover for his claims.
Specifically, it offered to pay Suttles $15,000, or $1,500 per
call for the ten calls Suttles alleges he received, which is
comprised of the statutory fine plus treble damages. The offer
further proffers to pay reasonable attorneys' fees and costs, to
be determined by the Court if the parties are unable to reach an
agreement. Lastly, with regard to injunctive relief, Specialty
Graphics offered to comply with applicable law and make no
telephone calls to Suttles in the future. Suttles did not accept
the offer of judgment.
On August 4, 2014, Suttles filed two motions, a Motion to Certify
Class and a motion seeking to strike the offer of judgment. He
alleges that Specialty Graphics is attempting to improperly pick
him off as the representative plaintiff in a class action, in an
improper attempt to render the entire case moot.
Specialty Graphics moved to dismiss the case, contending that the
Court lacks jurisdiction over it and alleged that it offered
judgment to Suttles in an amount that would give him complete
relief on his claims, thereby rendering his claims moot for lack
of Article III standing.
Magistrate Judge Andrew W. Austin of the Western District of
Texas, Austin Division, recommends that the District Judge deny
defendant's motion to dismiss Suttles' TCPA Claim, and deny
plaintiff's motion to strike the Offer of Judgment.
The case is entitled JOHN COLIN SUTTLES, individually and on
behalf of all others similarly situated, v. SPECIALTY GRAPHICS,
INC., NO. A-14-CA-505 RP (W.D. Tex.). A copy of Magistrate Judge
Austin's report and recommendation dated February 11, 2015, is
available at http://is.gd/2ZYHqQfrom Leagle.com
John Colin Suttles, Plaintiff, represented by Brian B. Kilpatrick
-- brian@hughesellzey.com -- Jarrett Lee Ellzey --
jarrett@hughesellzey.com -- W. Craft Hughes --
craft@hughesellzey.com -- at Hughes Ellzey, LLP
Specialty Graphics, Inc., Defendant, represented by Kellie J.
Mitchell -- kmitchell@cckc-law.com -- William Raney --
braney@cckc-law.com -- at Copilevitz & Canter LLC; E. G. Morris
-- mail@egmlaw.com -- at Law Office of E.G. Morris
ST. JOSEPH SERVICES: "Peters" Suit Over Data Theft Tossed
---------------------------------------------------------
District Judge Kenneth M. Hoyt of the Southern District of Texas,
Houston Division granted defendant's motion to dismiss the case
BEVERLY T PETERS, Plaintiff, v. ST. JOSEPH SERVICES CORPORATION
d/b/a ST. JOSEPH HEALTH SYSTEM, et al, Defendants, CO BEVERLY T
PETERS, Plaintiff, v. ST. JOSEPH SERVICES CORPORATION d/b/a ST.
JOSEPH HEALTH SYSTEM, et al, Defendants, CIVIL ACTION NO. 4:14-CV-
2872 (S.D. Tex.)
The defendant St. Joseph Services Corporation is a health care
service provider headquartered in Texas doing business as St.
Joseph Health System. The plaintiff Beverly T. Peters was a former
St. Joseph patient, who in the course of purchasing health
services from the defendant had given the latter personal
information such as plaintiff's name, social security number,
birth date, address, medical records and bank account information.
In a letter on February 4, 2014, St. Joseph announced that between
December 16, 2013 and December 18, 2013, a security breach of its
computer system occurred. It was reported that hackers had
infiltrated its computer network and potentially gained access to
the personal information of Peters and approximately 405,000 other
St. Joseph patients, employees, and some employees' beneficiaries.
Upon discovery of the attack on December 18, 2013, St. Joseph shut
down access to the involved computer. St. Joseph encouraged Peters
and the Class Members to take steps to safeguard their personal
information by monitoring their credit reports and account
statements.
Peters brought a class action lawsuit against the defendants for
damages arising from an intrusion into St. Joseph's computer
network and the resulting data breach. Peters alleges violations
of the Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq.
(FCRA), and various state and common law claims sounding in tort
and contract.
St. Joseph moves to dismiss the complaint via Rule 12(b)(1) of the
Federal Rules of Civil Procedure, contending that the court lacks
subject matter jurisdiction to hear Peters' claims because she has
not suffered an injury, actual or imminent, that is traceable to
St. Joseph's conduct.
Judge Hoyt granted St. Joseph's Rule 12(b)(1) motion to dismiss
for want of subject matter jurisdiction and dismissed the
complaint without leave to amend. The Court expressed no opinion
about the viability of Peters' state or common law claims,
however. The Court dismissed those claims without prejudice and
granted Peters 30 days to raise her remaining claims in state
court.
A copy of Judge Hoyt's memorandum opinion and order dated February
11, 2015, is available at http://is.gd/AJuKyhfrom Leagle.com.
Beverly T Peters, Plaintiff, represented by:
Jason Charles Webster, Esq.
THE WEBSTER LAW FIRM
6200 Savoy Drive, Suite 515
Houston, TX 77036
Telephone: 713-396-5197
- and -
Mitchell A Toups, Esq.
WELLER GREEN ET AL
St. Joseph Services Corporation and St. Joseph Regional Health
Center, Defendants, represented by Kent M Adams --
Kent.Adams@lewisbrisbois.com -- Kristie E Johnson --
Kristie.Johnson@lewisbrisbois.com -- at Lewis Brisbois Bisgaard &
Smith, LLP
STARBUCKS CORPORATION: Must Face "Heinzl" ADA Class Suit
--------------------------------------------------------
Magistrate Judge Robert C. Mitchell of the Western District of
Pennsylvania denied defendant's motion to dismiss the case SARAH
HEINZL, individually and on behalf of all others similarly
situated, Plaintiff, v. STARBUCKS CORPORATION, Defendant, CIVIL
ACTION NO. 14-1316 (W.D. Pa.)
The plaintiff Sarah Heinzl has a mobility disability and is
limited in the major life activity of walking, causing her to be
dependent upon a wheelchair for mobility. She has visited
defendant Starbucks Corporation's property located at 1050 Park
Manor Boulevard in Pittsburgh, Pennsylvania, defendant's property
located at 971 Greentree Road in Pittsburgh, Pennsylvania, and at
3145 Bankesville Road in Pittsburgh, Pennsylvania. During these
visits, she experienced unnecessary difficulty and risk due to
excessive slopes in purportedly accessible parking spaces and
access aisles and along the routes to the entrances of the
facilities.
Plaintiff, brought an action individually and on behalf of all
others similarly situated against defendant, alleging violations
of Title III of the Americans With Disabilities Act, 42 U.S.C.
Sections 12181 to 12189 (ADA). Specifically, she alleges that the
facilities at Starbucks are not fully accessible to and
independently usable by individuals who use wheelchairs for
mobility, as she does, because of various barriers in the parking
lots and along the routes to the building entrances.
Defendant challenges plaintiff's standing to bring the action, at
least with respect to Starbucks locations she has not visited, and
contends that she has sued the incorrect party, and/or that she
has failed to join necessary and indispensable parties because
Starbucks does not own, occupy or control the place of public
accommodation at issue, the parking lots in question, but is only
a tenant.
Magistrate Judge Mitchell denied defendant' motion to dismiss and
directed the defendant to file an answer to the complaint by March
23, 2015.
A copy of Magistrate Judge Mitchell's memorandum opinion and order
dated March 9, 2015, is available at http://is.gd/cmcsMdfrom
Leagle.com.
SARAH HEINZL, individually and on behalf of all others similarly
situated, Plaintiff, represented by Benjamin J. Sweet --
bsweet@carlsonlynch.com -- at Carlson Lynch Sweet & Kilpela, LLP
STARBUCKS CORPORATION, Defendant, represented by Anthony W. Hinkle
-- ahinkle@c-wlaw.com -- at Cipriani & Werner
T.B. YOSHIDA: Settlement in Server's Action Won Initial Approval
----------------------------------------------------------------
District Judge Gene E.K. Pratter of the Eastern District of
Pennsylvania granted preliminary approval of the settlement
reached in the case, DEREK LEAP, Plaintiff, v. TAKASHI YOSHIDA et
al., Defendants, CIVIL ACTION NO. 14-3650 (ED. Pa.)
The defendants T.B. Yoshida Inc. and TNM Corporation, both of
which are controlled by Takashi Yoshida, are the corporate owners
of the Hikaru restaurants.
The plaintiff Derek Leap is a former employee at Hikaru Center
City and Hikaru Manayunk, two restaurants in Philadelphia where he
was a server. Mr. Leap filed a suit alleging that the defendants
violated the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections
206, 216(b), the Pennsylvania Minimum Wage Act, 43 Pa. Stat.
Sections 333.101 et seq., the Pennsylvania Wage Payment and
Collection Law, 43 Pa. Cons. Stat. Sections 260.1 et seq., and the
Philadelphia Gratuity Protection Ordinance, Phila. Code Section 9-
614. Mr. Leap also claims that the defendants' retention of
plaintiffs' gratuities constituted conversion and unjust
enrichment.
Mr. Leap filed a Motion for Class Action Certification of the
State Law Claims and a Motion for Conditional Certification of
Collective Action under Section 16(b) of the Fair Labor Standards
Act.
Before defendants responded to the motions, the parties reached a
settlement that resolved both the class action and collective
action claims. The parties asked for (a) the Court's preliminary
approval of the settlement under Federal Rule of Civil Procedure
23, (b) the Court's preliminary certification of the Class for
purposes of settling the state law claims, and (c) the Court's
conditional certification of the Collective for purposes of
settling the FLSA claim.
In his memorandum dated February 12, 2015, available at
http://is.gd/vDlVMUfrom Leagle.com, Judge Pratter preliminarily
approved the parties' settlement agreement, preliminarily
certified the class for settlement purposes and conditionally
certified the collective for purposes of settling the FLSA claim.
The Settlement Agreement defines "Class/Collective Members" as
"all employees who worked at Hikaru Center City and Hikaru
Manayunk from June 14, 2011 until October 5, 2014." Under the
Settlement Agreement, every member of the putative Class is also a
member of the putative Collective and vice versa.
The Settlement Agreement provides that Defendants shall pay a
maximum settlement amount of $225,000. The Settlement Payment
includes attorneys' fees and costs, a service claim to Mr. Leap,
and a payment to a claims administrator. The remainder of the
Settlement Payment will be paid as FLSA damages on a percentage
basis to Class/Collective Members who join the litigation by
"opting in".
In return for their share of the Net Settlement Fund, the Opt-In
Plaintiffs will release all claims under the FLSA, the
Pennsylvania Minimum Wage Act, the Pennsylvania Wage Payment and
Collection Law, and the Philadelphia Gratuity Protection
Ordinance, as well as all claims of common law conversion and
unjust enrichment.
Plaintiffs have retained the Garden City Group as the claims
administrator in connection with this litigation.
DEREK LEAP, Plaintiff, represented by ALICE W. BALLARD --
INFO@AWBALLARD.COM -- at LAW OFFICE OF ALICE W. BALLARD, PC;
JEFFREY E. GOLDMAN -- jeff@jgoldmanlaw.com -- at The Law Offices
of Jeffrey E. Goldman
TAKASHI YOSHIDA and T.B. YOSHIDA, INC., Defendant, represented by
MALCOLM S. GOULD -- mgould@sanddlawyers.com -- MARK S. HALTZMAN --
mhaltzman@sanddlawyers.com -- at SILVERANG & DONOHOE LLC
TNM CORPORATION, Defendant, represented by by MALCOLM S. GOULD --
mgould@sanddlawyers.com -- at SILVERANG DONOHOE ROSENZWEIG &
HALTZMAN LLC
TELEFORA LLC: Bid to Vacate Clerk's Taxation Cost Junked
--------------------------------------------------------
MONICA BRUCE; DONNA STUBBS, Plaintiffs, v. TELEFORA, LLC,
Defendant, CASE NO. 2:13-CV-3279-ODW(CWX), (C.D. Cal.) arises from
Plaintiffs' voluntary dismissal of a class action lawsuit. On June
18, 2014, the Court granted Plaintiffs' Motion for Voluntary
Dismissal but denied Plaintiffs' request to bar Defendant from
obtaining prevailing-party costs. The Court gave Plaintiffs the
option to accept or decline the conditional dismissal, and
Plaintiffs accepted. On July 18, 2014, the Court dismissed the
action with prejudice. On August 4, 2014, Defendant filed a
Corrected Notice of Application to the Clerk to Tax Costs seeking
$8,463.62. Ultimately, the Clerk authorized $7,231.12.
Plaintiffs now request the Court review the Clerk's decision and
vacate or substantially reduce the amount imposed.
District Judge Otis D. Wright, II, in an order entered March 17,
2015, a copy of which is available at http://is.gd/NBYdegfrom
Leagle.com, denied the Plaintiffs' motion to vacate or modify the
clerk's taxation of costs.
The Court found that the instant Motion largely asserts the same
arguments the Court evaluated and rejected in its June 16, 2014
Order -- that is, the Court should bar Defendant from obtaining
prevailing-party costs because ordering Plaintiffs to pay such
costs would be unjust and inequitable. Additionally, the Court
found Plaintiffs' objections to Defendants' specific costs
meritless. Plaintiffs' arguments are conclusory and provide no
supporting argument that Defendant's costs are "impermissible" or
"unnecessary," Judge Wright held.
Monica Bruce, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Jeff S Westerman, Westerman
Law Corp, Adam J Levitt, Grant and Eisenhofer PA, Edmund S
Aronowitz, Grant and Eisenhofer PA, Michael T Fantini, Berger and
Montague PC & Sherrie R Savett, Berger and Montague PC.
Donna Stubbs, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Jeff S Westerman, Westerman
Law Corp, Adam J Levitt, Grant and Eisenhofer PA, Edmund S
Aronowitz, Grant and Eisenhofer PA, Michael T Fantini, Berger and
Montague PC & Sherrie R Savett, Berger and Montague PC.
Teleflora LLC, Defendant, represented by Azadeh Allayee, Roll Law
Group PC & James Paul Pecht, Roll Law Group P.C.
TJ MAXX: 2nd Amended Complaint to Be Filed in "Roberts" Suit
------------------------------------------------------------
Defendants TJ Maxx of CA, LLC, Marshalls of CA, LLC and HomeGoods,
Inc., through their counsel of record Littler Mendelson, P.C.,
Plaintiff Kimberly Roberts, through her counsel of record Marlin &
Saltzman, LLP and Carneisha Forney (Plaintiff in the action Forney
v. The TJX Companies, Inc., et al.) through her counsel of record
The Aegis Law Firm, The Cooper Law Firm and The Carter Law Firm
stipulate that:
1. The Court grant Plaintiff Kimberly Roberts leave to file the
Second Amended Consolidated Complaint.
2. The Court permit the Parties to resolve the dispute statute of
limitations issue as to TJ Maxx employees and HomeGoods employees
through litigation and further discovery.
District Judge Maria-Elena James approved the stipulation on
February 26, 2015. "Plaintiffs shall efile the Second Amended
Complaint as a separate docket entry," she said.
A copy of the court-approved stipulation is available at
http://is.gd/sbpLcffrom Leagle.com.
The case is KIMBERLY ROBERTS, individually and on behalf of other
individuals similarly situated, Plaintiffs, v. TJ MAXX OF CA, LLC,
a Delaware limited liability company; MARSHALLS OF CA, LLC, d
Delaware limited liability company; HOMEGOODS, INC., a Delaware
corporation; and DOES 1-10, inclusive, Defendants, CASE NO. 3:13-
CV-04731-MEJ, (N.D. Cal.).
JOSHUA J. CLIFFE, EMILY E. O'CONNOR, LITTLER MENDELSON, P.C., San
Francisco, CA.
JULIE DUNNE, LITTLER MENDELSON, P.C., San Diego, CA, Attorneys for
Defendants TJ MAXX OF CA, LLC, MARSHALLS OF CA, LLC; HOMEGOODS,
INC.
MARCUS J. BRADLEY, KILEY L. GROMBACHER, MARLIN & SALTZMAN, LLP,,
Agoura Hills, CA, Attorneys for Plaintiff KIMBERLY ROBERTS.
SAMUEL A. WONG, AEGIS LAW FIRM, PC, SCOTT B. COOPER, THE COOPER
LAW FIRM, P.C., ROGER R. CARTER, THE CARTER LAW FIRM, Attorneys
for Plaintiff in Forney v. The TJX Companies, Inc., et al., Orange
County Superior Court Case No. 30-20-14-00705828-CU-OE-CXC.
TRAVELERS COMMERCIAL: Del. Judge Dropped Policy Holders' Suit
-------------------------------------------------------------
President Judge Jan R. Jurden of the Superior Court of Delaware,
New Castle County, granted defendant's motion in the case LESLIE
L. MYERS, NAOMI J. MANALO and OLIVER A. MANALO, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
TRAVELERS COMMERCIAL INSURANCE COMPANY, Defendant, C.A. NO. N14C-
03-091 (Del. Super.)
Defendant Travelers Commercial Insurance Company is an underwriter
of automobile insurance in Delaware, including first-party medical
benefits for persons injured while driving or occupying motor
vehicles.
The plaintiffs Leslie L. Myers, Naomi J. Manalo, and Oliver A.
Manalo (and others similarly situated), are named insureds under
automobile insurance policies issued by Travelers. The plaintiffs
seeks a declaration that defendant has acted improperly and in
violation of Delaware law by adopting a practice under 21 Del. C.
Section 2118B whereby it unlawfully delays processing, payment,
and denial of claims for Personal Injury Protection (PIP).
Plaintiffs also seek a declaration that this practice constitutes
a repudiation of the contractual obligations owed by the defendant
to its Delaware automobile policyholders.
President Judge Jurden granted defendant's motion to dismiss
plaintiffs' complaint. A copy of President Judge Jurden's opinion
dated January 26, 2015, is available at http://is.gd/UAcLFXfrom
Leagle.com.
Attorney for Plaintiffs
John S. Spadaro, Esq.
JOHN SHEEHAN SPADARO, LLC
724 Yorklyn Road, Suite 375
Hockessin, DE 19707
Matthew A. Goldberg, Esquire -- matthew.goldberg@dlapiper.com --
Nancy Shane Rappaport, Esquire -- nancy.rappaport@dlapiper.com --
Brian A. Biggs, Esquire, -- brian.biggs@dlapiper.com - at DLA
Piper LLP, Attorney for Defendant Travelers
UBER TECHNOLOGIES: Cab Companies File Suit Over Safety Claims
-------------------------------------------------------------
Ross Todd, writing for The Recorder, reports that a group of
California cab companies has joined the growing list of plaintiffs
to sue Uber Technologies Inc. over the company's claim that it
offers the "safest rides on the road." The cab companies' false-
advertising complaint, filed in U.S. District Court for the
Northern District of California on March 18 by lawyers from
Pearson, Simon & Warshaw and The Dolan Law Firm, comes after
district attorneys in Los Angeles and San Francisco sued the
transportation network company over its safety claims. At least
three proposed class actions have also been filed on behalf of
passengers targeting Uber's safety measures.
Pearson Simon's Bruce Simon said in a phone interview on March 18
that the lawsuit was the first to bring Lanham Act claims on
behalf of cab companies against Uber related to safety claims.
"We've had ongoing relationships with cab companies over the years
and we've had conversations about how Uber was affecting their
business," Mr. Simon said. "This got to the point they felt they
couldn't take it anymore."
Mr. Simon said since the cab companies aren't seeking to certify a
class and they're not subject to the arbitration clause Uber is
likely to wield in lawsuits brought by passengers, their action
could potentially proceed more quickly than the other private
suits.
The 19 cab companies claim Uber put forth false and misleading
advertisements regarding the safety of rides on its "UberX"
platform, and that Uber has disparaged the safety of taxi rides on
its website and in the media.
"This causes plaintiffs to lose significant amounts of revenue,
including, but not limited to, through a decrease in the amount of
leasing revenue they can receive for their taxi cabs, a decreased
number of calls into dispatch, a reduced fleet of drivers, a
reduced number of taxi cabs in service, a reduced number of shifts
worked by drivers, and/or a devaluing of share prices," the
complaint asserts.
The cab companies claim they conduct more thorough driver
background checks than Uber by requiring their drivers to submit
fingerprints. The taxi companies also say they continuously track
driving and criminal records, in contrast to Uber which only
monitors driving violations, according to the complaint. The suit
also claims Uber requires no driver training or written
examinations, and its drivers' vehicles are subject to much less
stringent vehicle inspections and maintenance requirements than
cabs.
"Uber suggests that people choose them because of convenience and
lower cost. Part of the reason they sometimes offer a lower fare
is because they don't have to comply with the same rules,"
Mr. Simon said.
Uber spokesperson, Eva Behrend, said in an emailed statement that
lawsuit was "frivolous" and "simply without merit." She said
Uber's driver screening includes county, federal and multistate
checks, and the rating system of its app "gives riders and drivers
unprecedented transparency."
"This lawsuit was filed by an industry that for decades has
ignored the safety of riders and drivers -- and that in
San Francisco, allows up to two drug or alcohol offenses for
drivers and only looks back five years into a driver's background,
with limited recourse for complaints and wrongdoings," she said.
The March 18 lawsuit follows a rough month for Uber in the
Northern District. In early March, U.S. Magistrate Judge
Nathanael Cousins indicated he was unlikely to toss claims that
Uber drivers discriminated against blind passengers accompanied by
service animals. U.S. District Judge Edward Chen found that a
jury should decide whether Uber's drivers should be treated as
employees or contractors under California law. Littler Mendelson
represents the company in the discrimination case, while Morgan,
Lewis & Bockius represents Uber in the employment suit.
Clarence Dyer & Cohen's Nanci Clarence --
nclarence@clarencedyer.com -- and Irell & Manella represent Uber
in the previous safety-claim cases. Uber's Behrend didn't say
which firm would defend the Lanham Act suit.
UNITED STATES: 9th Cir. Upholds "Villalta" Suit Dismissal
---------------------------------------------------------
In SELOMI M. VILLALTA, Plaintiff-Appellant, v. ERIC H. HOLDER,
Jr., Attorney General; et al., Defendants-Appellees, NO. 12-17579,
Mr. Villalta appealed pro se from the district court's judgment
dismissing his action alleging that the government breached an
immigration-related class action settlement agreement (the "ABC
agreement").
The United States Court of Appeals, Ninth Circuit affirmed the
district court ruling saying the district court properly dismissed
Mr. Villalta's claims because the complaint and attached exhibits
failed to show that defendants breached the ABC agreement or
violated the United States Constitution. Furthermore, the
district court did not abuse its discretion in denying Villalta's
motion for leave to file an amended complaint because the proposed
amendment was untimely and would have been futile, it added.
A copy of the Court's March 20, 2015 memorandum is available at
http://is.gd/TZ7tGFfrom Leagle.com.
UNITED STATES: "Berman" Suit Goes Back to Medicare Appeals Council
------------------------------------------------------------------
Magistrate Judge Kevin Nathaniel Fox of the Southern District of
New York ruled on the parties' motions in the case SONIA BERMAN,
Plaintiff, v. KATHLEEN SEBELIUS AS SECRETARY OF THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES, Defendant, NO. 13-CV-4513 (KNF)
(S.D.N.Y.)
The plaintiff Sonia Berman is a recipient of Medicare, governed by
Title XVIII of the Social Security Act, 42 U.S.C. Sections 1395-
1395111. From November 27, 2007, to January 25, 2008, the
plaintiff received home-health-aide services, including physical
therapy, from Americare CSS, a home-health agency. Medicare
coverage for those services was terminated, as of January 31,
2008. The decision to terminate coverage was upheld by a qualified
improvement organization, IPRO, on March 22, 2008. The plaintiff
appealed.
The Administrative Law Judge (ALJ) determined that the termination
of Medicare coverage for the services was proper. The Medicare
Appeals Council (MAC) affirmed the ALJ's decision, on May 6, 2009.
Thereafter, the plaintiff commenced an action in District court.
The parties reached an agreement resolving their dispute, and a
stipulation and order was approved by the judicial officer to whom
the matter was assigned, on February 14, 2011. The parties agreed
that the action should be dismissed and remanded to the MAC,
pursuant to sentence four of 42 U.S.C. Sections 405(g). The
February 14, 2011 stipulation and order directed the MAC to remand
the case to an ALJ, with an instruction that the ALJ will hold a
hearing and issue a new decision in connection with plaintiff's
2008 claim for Medicare reimbursement.
On August 26, 2011, the ALJ found that Medicare coverage of the
plaintiff's home-health services was terminated properly. On April
30, 2013, the MAC determined that no basis existed for changing
the ALJ's decision and denied the plaintiffs request for
attorney's fees.
Plaintiff seeks review of the April 30, 2013 decision by the MAC,
upholding the ALJ's August 26, 2011 decision, which found that the
termination of the Medicare coverage for the plaintiff's home-
health services, as of January 31, 2008 was proper. Both parties
filed their respective motions for judgment on the pleadings,
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Magistrate Judge Fox granted plaintiff's motion in part, and
remanded the case to the MAC for further consideration, pursuant
to sentence four of 42 U.S.C. Section 405(g). The plaintiff's
request for a further hearing on damages and attorney's fees is
denied; and defendants' motion is denied.
A copy of Magistrate Judge Fox's memorandum and opinion dated
February 11, 2015, is available at http://is.gd/9insoMfrom
Leagle.com.
Sonia Berman, Plaintiff, represented by Daniel Feist Schreck --
dschreck@koppellaw.com -- Gabriel Oliver Koppell --
okoppell@koppellaw.com -- at Law Offices of G. Oliver Koppell &
Assoc.
Kathleen Sebelius, as Secretary of the Department of Health and
Human Services, Defendant, represented by John E. Gura, Jr, U.S.
Attorney's Office.
VESUVIO'S II PIZZA: Faces "Solais" Suit Over Failure to Pay OT
--------------------------------------------------------------
Miriam Martinez Solais, on behalf of herself and all others
similarly situated v. Vesuvio's II Pizza & Grill, Inc. and
Giovanni Scotti D'Abbusco, Case No. 1:15-cv-00227 (M.D.N.C., March
13, 2015), is brought against the Defendants for failure to pay
overtime compensation for all hours worked in excess of 40 in a
week.
The Defendants own and operate a restaurant located at 35 Abbitt
St., Roxboro, North Carolina 27573.
The Plaintiff is represented by:
Gilda A. Hernandez, Esq.
LAW OFFICES OF GILDA A. HERNANDEZ, PLLC
315 S. Salem St., Ste. 310
Apex, NC 27502
Telephone: (919) 741-8693
Facsimile: (919) 869-1853
E-mail: ghernandez@gildahernandezlaw.com
VOLKSWAGEN AG: Judge Awards Attorneys' Fees to Class Counsel
------------------------------------------------------------
District Judge William G. Young of the District of Massachusetts
awards attorneys' fees to class counsel in the case entitled IN
RE: VOLKSWAGEN AND AUDI WARRANTY EXTENSION LITIGATION, CIVIL
ACTION NO. 07-MD-01790-WGY (D. Mass.)
Separate class action lawsuits were filed against defendants
Volkswagen of America, Inc., Volkswagen AG, and Audi AG.
Plaintiffs alleged that certain Audi and Volkswagen automobiles
have defective-designed engines. Purportedly, the 1.8 liter turbo-
charged engines in Audi vehicles from the 1997 to 2004 model years
and Volkswagen Passat vehicles from the 1998 to 2004 model years
were unusually prone to the formation of oil sludge and coking
deposits, even when maintained according to the Defendants'
recommendations.
On August 29, 2006, the Judicial Panel on Multidistrict Litigation
ordered four statewide class actions pending in separate districts
to be consolidated and transferred and assigned to Judge Tauro of
the District of Massachusetts who, ably managed the litigation and
approved its settlement on March 24, 2011. On the same day, Judge
Tauro granted the class plaintiffs' motion for attorneys' fees and
costs, awarding class counsel $30,000,000 in fees.
On appeal, however, the First Circuit vacated the award and
remanded on July 27, 2012, so that class counsel's fees could be
calculated in accordance with Massachusetts, not federal, law. The
remanded case was reassigned to this Court on October 10, 2012,
pursuant to Local Rule 40.1(k)(2). In addition to class counsel's
initial motion for attorneys' fees and costs, other fees-related
motions are pending before the court. Class counsel has filed a
motion for additional attorneys' fees and costs incurred after
Judge Tauro's original award. Moreover, numerous motions for fees
and costs from the beginning of the litigation have been filed by
Non-class counsel.
Judge Young ordered the defendants to pay attorneys' fees to these
class counsel and non-class counsel:
(1) Class Counsel as a whole: $15,468,000, for work
undertaken prior to Judge Tauro's original award
(2) Irwin & Boesen: $442,144.56, for work undertaken after
Judge Tauro's original award
(3) McNulty Law Firm: $286,488.33, for work undertaken after
Judge Tauro's original award
(4) Berger & Montague: $282,255.34, for work undertaken after
Judge Tauro's original award
(5) Shapiro, Haber & Urmy: $153,759.42
(6) Waller Law Firms: $707,402.62
(7) Fox Rothschild, LLP: $146,315.00
(8) Yarkony Counsel: $79,409.50
(9) Resnick & Moss, P.C.: $6,087.50
(10) Jackson & Tucker, P.C.: $76,089.33
(11) Sacks & Weston: $152,011.33
(12) Vaughan Law Group: $81,064.00
(13) Mark Schlachet: $146,718.00
(14) Brian Ruschel: $124,200.00
(15) Thomas Sobran: $43,298.20
(16) Chimicles & Tikellis, LLP: $158,036.25
In addition to these fees, the defendants were ordered to
reimburse these class counsel and non-class counsel for costs and
expenses:
(1) Plaintiffs' counsel as a whole: $1,195,234.43, for costs
and expenses incurred by all class counsel and non-class counsel
firms prior to Judge Tauro's original award;
(2) Class counsel as a whole: $159,136.23, for costs and
expenses incurred after Judge Tauro's original award; and
(3) Non-class counsel as a whole: $26,270.24, for costs and
expenses incurred after Judge Tauro's original award.
A copy of Judge Young's memorandum and order dated February 10,
2015, is available at http://is.gd/ceLshrfrom Leagle.com
Volkswagen and Audi Warranty Extension Litigation, In Re,
represented by Andrew R Levin, Sugarman, Rogers, Barshak & Cohen,
PC & David A. Barry, Sugarman Rogers Barshak & Cohen
Carol Carter, Consolidated Plaintiff, represented by Peter J.
McNulty, McNulty Law Firm, Jonathan H. Waller, Waller Law Office
PC, Julie D. Goldstein, Fox Rothschild LLP, Kirk D. Tresemer,
Boesen Law LLC,Michael B. Bogdanow, Meehan, Boyle, Black &
Bogdanow, PC, Russell D. Henkin, Berger & Montague, P.C. & Sheryl
S. Levy, Berger & Montague, P.C.
Eric Becker, Consolidated Plaintiff, represented by Kevin C.
Maxwell, Vaughan & Maxwell, P.A., Thomas Vaughan, Vaughan &
Maxwell, P.A., Julie D. Goldstein, Fox Rothschild LLP, Russell D.
Henkin, Berger & Montague, P.C. & Sheryl S. Levy, Berger &
Montague, P.C.
Mildred Kasten, Consolidated Plaintiff, represented by Charles E.
Mangan, Sacks & Weston, Joel L. DiLorenzo, Jackson & Tucker PC,
John K. Weston, Sacks & Weston, Joseph L. Tucker, Jackson & Tucker
PC, K. Stephen Jackson, Jackson & Tucker, P.C., Julie D.
Goldstein, Fox Rothschild LLP, Kirk D. Tresemer, Boesen Law LLC,
Russell D. Henkin, Berger & Montague, P.C. & Sheryl S. Levy,
Berger & Montague, P.C.
William Cohen, Consolidated Plaintiff, represented by Charles E.
Mangan, Sacks & Weston, John K. Weston, Sacks & Weston, Jonathan
H. Waller, Waller Law Office PC, Julie D. Goldstein, Fox
Rothschild LLP, Kirk D. Tresemer, Boesen Law LLC, Russell D.
Henkin, Berger & Montague, P.C. & Sheryl S. Levy, Berger &
Montague, P.C.
James Craig, Consolidated Plaintiff, represented by Adam M.
Stewart, Shapiro Haber & Urmy LLP, Brad R. Irwin, Irwin & Boesen,
P.C., Edward F. Haber, Shapiro Haber & Urmy LLP, Jack Gorny, Fox
Rothschild LLP, Joseph G. Sauder, Chimicles & Tikellis LLP, Kirk
D. Tresemer, Boesen Law LLC, Randal R. Kelly, Kelly Law Firm,
Sheryl S. Levy, Berger & Montague, P.C., Thomas G. Shapiro,
Shapiro Haber & Urmy LLP, Julie D. Goldstein, Fox Rothschild LLP,
Michael B. Bogdanow, Meehan, Boyle, Black & Bogdanow, PC & Russell
D. Henkin, Berger & Montague, P.C.
Kenneth Nager, Consolidated Plaintiff, represented by Adam M.
Stewart, Shapiro Haber & Urmy LLP, Brad R. Irwin, Irwin & Boesen,
P.C., Edward F. Haber, Shapiro Haber & Urmy LLP, Jack Gorny, Fox
Rothschild LLP, Joseph G. Sauder, Chimicles & Tikellis LLP, Kirk
D. Tresemer, Boesen Law LLC, Randal R. Kelly, Kelly Law Firm,
Sheryl S. Levy, Berger & Montague, P.C., Thomas G. Shapiro,
Shapiro Haber & Urmy LLP, Julie D. Goldstein, Fox Rothschild LLP &
Russell D. Henkin, Berger & Montague, P.C.
Patricia Murphy, Consolidated Plaintiff, represented by Adam M.
Stewart, Shapiro Haber & Urmy LLP,Brad R. Irwin, Irwin & Boesen,
P.C., Edward F. Haber, Shapiro Haber & Urmy LLP, Jack Gorny, Fox
Rothschild LLP, Joseph G. Sauder, Chimicles & Tikellis LLP, Kirk
D. Tresemer, Boesen Law LLC, Randal R. Kelly, Kelly Law Firm,
Sheryl S. Levy, Berger & Montague, P.C., Thomas G. Shapiro,
Shapiro Haber & Urmy LLP, Julie D. Goldstein, Fox Rothschild LLP &
Russell D. Henkin, Berger & Montague, P.C.
Laura Cole, Consolidated Plaintiff, represented by Adam M.
Stewart, Shapiro Haber & Urmy LLP, Brad R. Irwin, Irwin & Boesen,
P.C., Edward F. Haber, Shapiro Haber & Urmy LLP, Jack Gorny, Fox
Rothschild LLP, Joseph G. Sauder, Chimicles & Tikellis LLP, Kirk
D. Tresemer, Boesen Law LLC, Randal R. Kelly, Kelly Law Firm,
Sheryl S. Levy, Berger & Montague, P.C., Thomas G. Shapiro,
Shapiro Haber & Urmy LLP, Jonathan H. Waller, Waller Law Office
PC, Julie D. Goldstein, Fox Rothschild LLP, Michael B. Bogdanow,
Meehan, Boyle, Black & Bogdanow, PC & Russell D. Henkin, Berger &
Montague, P.C.
Scott Tyder, Consolidated Plaintiff, represented by Adam M.
Stewart, Shapiro Haber & Urmy LLP, Brad R. Irwin, Irwin & Boesen,
P.C., Edward F. Haber, Shapiro Haber & Urmy LLP, Jack Gorny, Fox
Rothschild LLP, Joseph G. Sauder, Chimicles & Tikellis LLP, Kirk
D. Tresemer, Boesen Law LLC, Randal R. Kelly, Kelly Law Firm,
Sheryl S. Levy, Berger & Montague, P.C., Thomas G. Shapiro,
Shapiro Haber & Urmy LLP, Jonathan H. Waller, Waller Law Office
PC, Julie D. Goldstein, Fox Rothschild LLP, Michael B. Bogdanow,
Meehan, Boyle, Black & Bogdanow, PC & Russell D. Henkin, Berger &
Montague, P.C.
Eugenia Diveroli, Consolidated Plaintiff, represented by Thomas P.
Sobran, Julie D. Goldstein, Fox Rothschild LLP, Russell D. Henkin,
Berger & Montague, P.C. & Sheryl S. Levy, Berger & Montague, P.C.
Ken Winokur, Consolidated Plaintiff, represented by Thomas P.
Sobran, Julie D. Goldstein, Fox Rothschild LLP, Russell D. Henkin,
Berger & Montague, P.C. & Sheryl S. Levy, Berger & Montague, P.C.
Judith Yarkony, Consolidated Plaintiff, represented by Garrett D.
Blanchfield, Jr., Reinhardt Wendorf & Blanchfield, Ilan Chorowsky,
Progressive Law Group, Phillip A. Bock, Bock & Hatch, LLC, Timothy
G. Orlando, Resnick & Moss, PC, Eugene R. Richard, Wayne, Richard
& Hurwitz, LLP, Julie D. Goldstein, Fox Rothschild LLP, Russell D.
Henkin, Berger & Montague, P.C. & Sheryl S. Levy, Berger &
Montague, P.C.
Megan Shero, Consolidated Plaintiff, represented by Brian G.
Ruschel, Mark Schlachet, Law Offices of Mark Schlachet, Julie D.
Goldstein, Fox Rothschild LLP & Sheryl S. Levy, Berger & Montague,
P.C.
Marie Montag, Plaintiff, represented by Jonathan H. Waller, Waller
Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael B.
Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
Matthew Leonetti, Plaintiff, represented by Jonathan H. Waller,
Waller Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael
B. Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
Stacy Leonetti, Plaintiff, represented by Jonathan H. Waller,
Waller Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael
B. Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
Eric Emanuelson, Plaintiff, represented by Jonathan H. Waller,
Waller Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael
B. Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
Margaret Moreau, Plaintiff, represented by Jonathan H. Waller,
Waller Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael
B. Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
David Marks, Plaintiff, represented by Jonathan H. Waller, Waller
Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael B.
Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
Carrie Marks, Plaintiff, represented by Jonathan H. Waller, Waller
Law Office PC, Kirk D. Tresemer, Boesen Law LLC & Michael B.
Bogdanow, Meehan, Boyle, Black & Bogdanow, PC
Ashley Birkeland, Plaintiff, represented by John J. Pentz, Class
Action Fairness Group
Mark nmi Schlachet, Plaintiff, Pro Se
Thomas P. Sobran, Plaintiff, represented by Thomas P. Sobran
Volkswagenwerk Aktien-Gesellschaft, Consolidated Defendant,
represented by Andrew R Levin, Sugarman, Rogers, Barshak & Cohen,
PC & David A. Barry, Sugarman Rogers Barshak & Cohen
Audi Aktien-Gesellschaft, Consolidated Defendant, represented by
Andrew R Levin, Sugarman, Rogers, Barshak & Cohen, PC & David A.
Barry, Sugarman Rogers Barshak & Cohen
Volkswagen AG, Consolidated Defendant, represented by Hugh J.
Bode, Reminger & Reminger, Martin T. Galvin, Reminger & Reminger,
Andrew R Levin, Sugarman, Rogers, Barshak & Cohen, PC & David A.
Barry, Sugarman Rogers Barshak & Cohen
Audi, AG, Consolidated Defendant, represented by David A. Barry,
Sugarman Rogers Barshak & Cohen,Hugh J. Bode, Reminger & Reminger,
Martin T. Galvin, Reminger & Reminger & Andrew R Levin, Sugarman,
Rogers, Barshak & Cohen, PC
Volkswagen of America, Inc, Defendant, represented by Andrew R
Levin, Sugarman, Rogers, Barshak & Cohen, PC, Daniel V. Gsovski,
Herzfeld & Rubin, David A. Barry, Sugarman Rogers Barshak &
Cohen,Jeffrey L Chase, Herzfeld & Rubin, P.C., Natalie Flores
Campbell, Herzfeld & Rubin, P.C., Andrew R Levin, Sugarman,
Rogers, Barshak & Cohen, PC, David A. Barry, Sugarman Rogers
Barshak & Cohen,Hugh J. Bode, Reminger & Reminger, Jeffrey L
Chase, Herzfeld & Rubin, P.C., Martin T. Galvin, Reminger &
Reminger & Natalie Flores Campbell, Herzfeld & Rubin, P.C.
Jackson & Tucker, P.C., Respondent, represented by Joseph L.
Tucker, Jackson & Tucker PC
Sacks & Weston, Respondent, represented by Joseph L. Tucker,
Jackson & Tucker PC
Vaughan Law Group, Respondent, represented by Joseph L. Tucker,
Jackson & Tucker PC
Brian Ruschel, Respondent, represented by Brian Ruschel & Brian G.
Ruschel
WASTE MANAGEMENT: M.D. La. Judge Won't Grant Class Certification
----------------------------------------------------------------
District Judge Shelly D. Dick of the Middle District of Louisiana
denied plaintiff's motion for class certification in the case
PLAZA 22, LLC, v. WASTE MANAGEMENT OF LOUISIANA, LLC AND WASTE
MANAGEMENT NATIONAL SERVICES, INC., CIVIL ACTION NO. 13-618-SDD-
SCR (M.D. La.)
Plaza 22, appearing on its own behalf and others similarly
situated, contends that it entered into a contractual relationship
with defendants Waste Management of Louisiana, LLC and Waste
Management National Services, Inc., to provide small-containerized
solid waste hauling services. The waste hauling service firms
collect their respective small containers using front end load
vehicles, in which the waste is compacted and then hauled off to a
landfill or disposal site. Plaza 22 contends that, as a result of
defendants' unlawful business practices, putative class members
have paid more for small containerized solid waste hauling
services. Plaza 22 alleges that Waste Management utilized certain
contractual terms with its small-containerized, waste hauling
customers that resulted in the exclusion of any rivalry business
competition and allowed defendants to achieve and maintain a
monopoly in Louisiana.
Plaza 22 seeks to certify a class pursuant to Rule 23 of the
Federal Rules of Civil Procedure and proposes the following class
definition:
"All entities in Louisiana who were purchasers (excluding
governmental entities, defendant, subsidiaries and affiliates of
the defendant) in said market of small-containerized hauling
services at any time during the time period 1988 to the present in
the State of Louisiana who were injured as a result of the
defendant's contract, understanding or agreement, express or
implied, in violation of La. R.S. 51:122 et seq., La. R.S. 51:1405
et seq., La. R.S. 10:1-203, La. C.C.P. arts. 1953 et seq., 1983,
and 2315."
Judge Dick denied Plaza 22's motion for class certification.
Among other things, the Court concluded that individual issues
predominate over issues common to the class. A copy of Judge
Dick's ruling dated March 12, 2015, is available at
http://is.gd/G9Xt07from Leagle.com.
Plaza 22 LLC, Plaintiff, represented by:
Timothy Earle Pujol, Esq.
Barbara Lane Irwin, Esq.
Matthew W. Pryor, Esq.
PUJOL PRYOR & IRWIN, LLC
Building 4, Suite C
12320 Louisiana Highway 44
Gonzales, LA 70737
Telephone: 225-644-0607
Waste Management of Louisiana, LLC and Waste Management National
Services, Inc., Defendants, represented by John Stone Campbell,
III -- johnstone.campbell@taylorporter.com -- Amy Collier Lambert
-- amy.lambert@taylorporter.com -- Erin B. Sayes --
erin.sayes@taylorporter.com -- at Taylor, Porter, Brooks &
Phillips
Waste Pro of Louisiana, Inc. and Waste Pro USA, Interested
Parties, represented by Susan Fahey Desmond --
Susan.Desmond@jacksonlewis.com -- at Jackson Lewis P.C.
WELLS FARGO: Cal. Appeals Court Flips Ruling in "Prestwood" Case
----------------------------------------------------------------
Robert Prestwood and his wife filed for Chapter 7 bankruptcy on
December 10, 2010. At the time, he was a cross-defendant in a
lawsuit pending in Orange County Superior Court. His attorney,
Paul Orloff of Orloff & Associates, gave notice in January 2011 to
the parties in the state court action that Prestwood was in
bankruptcy. Prestwood filed his action against Wells Fargo on
November 15, 2011, while the bankruptcy was still pending. Ronald
Moore obtained a default judgment in the bankruptcy court against
Prestwood for $94,665.
Moore filed notice of his default judgment lien in the state court
action on July 11, 2012. In March 2013, Prestwood and Wells Fargo
settled. Of the $17,000 settlement amount, $15,500 was designated
to go to Orloff, while Prestwood got $2,000 minus some deductions.
Because of Moore's judgment lien, Wells Fargo was reluctant to pay
the settlement proceeds directly to Prestwood or to Orloff. The
court ordered Wells Fargo to deposit the settlement proceeds with
the court and once that was accomplished, Wells Fargo would be
dismissed.
On August 8, 2013, Wells Fargo deposited $17,058 with the court,
and Wells Fargo was duly dismissed without prejudice. The court
ruled that Orloff's attorney lien took precedence over Moore's
judgment lien and ordered the deposited funds released to Orloff.
With regard to the bankruptcy issue, the court stated that,
Prestwood should have permitted the bankruptcy trustee to pursue
this case. Moore appealed.
Acting Presiding Justice William W. Bedsworth of the Court of
Appeals of California, Fourth District, Division Three, reversed
the order of disbursal and returned the matter to the trial court
with instructions to vacate all of the orders entered since the
matter was filed, and to dismiss the case without prejudice. The
funds deposited by Wells Fargo are to be returned to Wells Fargo.
The appealed case is RONALD L. MOORE, Plaintiff and Appellant, v.
ROBERT PRESTWOOD, Defendant and Respondent, NO. G049565 (Cal. Ct.
App.). A copy of Justice Bedsworth's unpublished opinion dated
January 28, 2015, is available at http://is.gd/pJe4usfrom
Leagle.com.
Andrew D. Weiss -- oclawadw@aol.com -- at Law Offices of Andrew D.
Weiss, for Plaintiff and Appellant
For Defendant and Respondent:
Paul Orloff, Esq.
ORLOFF & ASSOCIATES
8402 Florence Ave #B1
Downey, Ca 90240
Telephone: 562-869-3034
Facsimile: 562-869-3539
The Court of Appeals of California, Fourth District, Division
Three panel consists of Acting Presiding Justice William W.
Bedsworth and Justices Eillen C. Moore and Richard D. Fybel.
WEST PUBLISHING: 9th Cir. Reverses Atty. Fee Award Ruling
---------------------------------------------------------
In RYAN RODRIGUEZ, on behalf of himself and all others similarly
situated; REENA B. FRAILICH, on behalf of herself and all others
similarly situated; JENNIFER BRAZEAL; LOREDANA NESCI; LISA GINTZ,
Plaintiffs-Appellees, v. WEST PUBLISHING CORPORATION, a Minnesota
corporation, DBA BAR/BRI, Defendant, And GEORGE SCHNEIDER, Class
Member; JONATHAN M. SLOMBA, Class Member; JAMES PUNTUMAPANITCH,
Class Member; JUSTIN HEAD; RYAN HELFRICH, Objectors, and KENDRICK
& NUTLEY; LAW OFFICES OF JOHN J. PENTZ; SCOTT KESSINGER, Attorney
at Law, Appellants, NO. 13-55222, counsel for a group of objectors
to the nationwide class action settlement appealed from the
district court's award of attorneys' fees. They contend that the
district court abused its discretion and disobeyed the United
States Court of Appeals, Ninth Circuit's mandate in Rodriguez v.
Disner, 688 F.3d 645 (9th Cir. 2012) when it awarded fees using
the lodestar method. Instead, they argue, the Ninth Circuit's
prior decision bound the district court to award a percentage of
the benefit conferred upon the class by Appellants' action.
Alternatively, they contend that the district court erred in
applying the lodestar method, both by excluding certain claimed
time, reducing the lodestar amount to $315,516.37, and by applying
a 0.75 multiplier (i.e., a 25% reduction) to the adjusted lodestar
amount, further reducing the ultimate fee award to $236,637.
In a Memorandum dated March 12, 2015, a copy of which is available
at http://is.gd/ebwcJ3from Leagle.com, the United States Court of
Appeals, Ninth Circuit concluded that the district court did not
abuse its discretion in choosing the lodestar method, or in its
reduction of Appellants' lodestar hours. However, it agreed with
Appellants that the district court erred by further applying the
0.75 multiplier to the adjusted lodestar amount.
On this basis, the Ninth Circuit reversed the district court's
award of $236,637 in attorneys' fees to Appellants. On remand, the
district court was instructed to award $315,516.37 in fees,
representing its original, unadjusted calculation of Appellants'
lodestar.
WINDSOR MOLD: Final Fairness Hearing Set for Aug. 20 in "Filby"
---------------------------------------------------------------
District Judge Jeffrey J. Helmick issued a memorandum opinion on
March 11, 2015, granting initial approval to a settlement in the
case captioned Sonia Filby, et al., Plaintiffs, v. Windsor Mold
USA, Inc., Defendant, CASE NO. 3:13 CV 1582, (N.D. Ohio).
The class proposed in the Settlement Agreement is preliminarily
certified for settlement purposes. The class is defined as: All
persons employed by Defendant as "Plant Operators(a/k/a Press
Operators) and "Decorators" (a/k/a "Painters") at one or both of
Defendant's Bellevue, Ohio facilities. Precision Automotive
Plastics and Autoplas between July 22, 2007 and December 31, 2013.
The law firm of Murray & Murray, Co., L.P.A. is appointed to serve
as class counsel and the Named Plaintiffs are appointed to serve
as Class Representatives.
Plaintiffs are to file a petition for an award of attorneys' fees
and costs by August 6, 2015.
A final fairness hearing is set for August 20, 2015 at 10:30 a.m.
The unopposed motion to approve the CAFA Notice is granted.
A copy of the ruling is available at http://is.gd/qvDy7sfrom
Leagle.com.
Sonia Filby, Plaintiff, represented by John T. Murray, Murray &
Murray, Florence Jesrani Murray, Murray & Murray, Michael J.
Stewart, Murray & Murray & Leslie O. Murray, Murray & Murray.
Amy Edwards, Plaintiff, represented by John T. Murray, Murray &
Murray, Florence Jesrani Murray, Murray & Murray, Michael J.
Stewart, Murray & Murray & Leslie O. Murray, Murray & Murray.
Justin Buck, Plaintiff, represented by John T. Murray, Murray &
Murray, Michael J. Stewart, Murray & Murray & Leslie O. Murray,
Murray & Murray.
Windsor Mold USA, Inc, Defendant, represented by Fred G. Pressley,
Jr., Porter, Wright, Morris & Arthur.
XCELERA INC: Judge Won't Certify Class in "Steginsky" Suit
----------------------------------------------------------
District Judge Stefan R. Underhill of the District of Connecticut
denied plaintiff's motion for class certification in the case
Gloria Steginsky, Plaintiff, v. Xcelera, Inc., et al., Defendants,
NO. 3:12-CV-188 (SRU) (D.Conn.)
Xcelera, Inc. is a conglomerate of technology companies controlled
by Alexander and Gustav Vik and their father through VBI
Corporation. By 2004, Xcelera's stock had fallen from a high of
$110 a share to around $1 a share and was delisted by the American
Stock Exchange in November 2004, which caused the price of its
stock to fall to $.25 a share. By 2010, unbeknownst to its
shareholders, many of Xcelera's holdings had become profitable
again. In order to take advantage of the company's still-deflated
stock price, the Viks privately approached a one-time Xcelera
director, Hans Eirik Olav, and asked Olav to form a shell company
through which the Viks could arrange a tender offer to acquire
outstanding shares. Olav agreed, and registered OFC in Malta, a
country that does not require companies to disclose their
directors' or shareholders' names. OFC then sent a letter to
Xcelera shareholders in December of 2010 offering to buy up to
10,000,000 shares of Xcelera at the last known price, $.25 per
share.
Gloria Steginsky, a minority shareholder of defendant Xcelera,
received notice of the OFC tender offer. Steginsky believed that
Xcelera stock was worth more than the $.25 per share tender offer
price. Steginsky tendered 100,010 shares of Xcelera to OFC at $.25
per share. At the time she tendered, Steginsky believed that the
defendants were perpetrating fraud by not informing shareholders
of the actual value of the stock. She sold anyway, because she
needed the money.
Steginsky instituted a lawsuit in February 2012, asserting
violations of sections 10(b), 14(e), 20(a) and 20A(a) of the
Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b),
78n(e), 78t(a) and 78t-l(a), and Rules 10b-5 and 14e-3 promulgated
thereunder, 17 C.F.R. Sections 240.10b-5 and 240.14e-3, as well as
common law claims for breach of fiduciary duty.
Steginsky filed a motion for class certification under Fed. R.
Civ. P. 23, seeking to certify a class of shareholders who
tendered Xcelera stock to OFC. She also seeks, once again, to sue
on behalf of anyone who sold Xcelera stock to any of the
defendants on or after February 6, 2007.
Judge Underhill denied plaintiff's motion for class certification.
"It is apparent that Steginsky is attempting to circumvent the
rules of pleading in securities fraud cases in order to obtain
discovery to which she is not entitled. Nothing raised in her
motion alters the conclusion that she does not have standing to
bring claims on behalf of purchasers other than the proposed
'tender offer class,'" the Court said.
A copy of Judge Underhill's ruling dated March 10, 2015, is
available at http://is.gd/wVFiHvfrom Leagle.com.
Gloria Steginsky, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Deborah Clark-
Weintraub -- dweintraub@scott-scott.com -- Erin Green Comite --
ecomite@scott-scott.com -- Joseph P. Guglielmo --
jguglielmo@scott-scott.com -- at Scott & Scott LLP; Jeffrey S.
Abraham -- jabraham@aftlaw.com -- Scott, Mark S. Hamill --
mhamill@aftlaw.com -- Philip T. Taylor -- ptaylor@aftlaw.com -- at
Abraham Fruchter & Twersky, LLP
Xcelera Inc., VBI Corporation, Alexander M. Vik, and Gustav M.
Vik, Defendants, represented by Andrea Dreyer --
andrea.dreyer@wilmerhale.com -- David F. Olsky -- David Zetlin-
Jones -- Peter J. Macdonald -- peter.macdonald@wilmerhale.com --
at Wilmer, Cutler, Pickering, Hale & Dorr, LLP; Charles W.
Pieterse -- cpieterse@wbamct.com -- at Whitman, Breed, Abbott &
Morgan
Hans Eirik Olav, Defendant, Pro Se
* Class Actions Over Herbal Supplements Fraud Pile Up
-----------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that the plaintiffs bar has filed more than 50 class actions in
the past month that accuse retailers like Target Corp. and
Wal-Mart Stores Inc. of widespread fraud through the sale of
herbal supplements.
The lawsuits cite New York Attorney General Eric Schneiderman's
findings last month that just 21 percent of herbal supplements
subjected to a series of tests in his office had DNA of the plants
listed on the labels. In most cases, the results found various
unlisted fillers, including houseplants and rice.
Mr. Schneiderman has subpoenaed Target Corp., Wal-Mart Stores
Inc., GNC Holdings Inc. and Walgreen Co., insisting that they
explain the ingredients in their products.
Plaintiffs lawyers expect that more companies will be named in
their lawsuits, in addition to the defendants already identified.
"You have companies that say they're selling a particular product
that contains certain ingredients and, in fact, many of their
products don't contain the ingredients they say is in the
product," said Jason Zweig -- jasonz@hbsslaw.com -- head of the
New York office of Seattle-based Hagens Berman Sobol Shapiro,
which filed a class action against all four retailers last month.
"Unlike a lot of claims with different food products that seem to
be focused primarily on issues regarding efficacy or the amount of
fat, or all natural, this is just an outright brazen fraud by
these companies."
Industry groups have challenged the science behind the findings,
arguing that the tests are unreliable because DNA gets destroyed
in the manufacturing of herbal supplements.
"The litigation is likely to focus in substantial part on the
testing criteria," said Daniel Girard, managing partner of San
Francisco's Girard Gibbs, who filed a class action against Target.
GNC, represented by John Hooper -- jhooper@reedsmith.com -- a
partner in the New York office of Reed Smith, is seeking to debunk
the attorney general's science and, on March 10, announced that a
new round of its own tests found its Herbal Plus products to be
"safe, pure, properly labeled and in full compliance with all
regulatory requirements."
Wal-Mart, which faces the most lawsuits, has retained Kevin
Rising, a partner in the Los Angeles office of Indianapolis-based
Barnes & Thornburg. Spokesman Randy Hargrove said the products at
issue were found to be safe in tests the manufacturers conducted.
Walgreen has retained Amanda Groves, a partner in the Charlotte
office of Chicago-based Winston & Strawn. Spokeswoman Emily
Hartwig said Walgreen is reviewing the matter and will cooperate
with the attorneys general.
A spokesman for Target, which has retained Jonathan Paikin, a
Washington partner at Wilmer Cutler Pickering Hale and Dorr,
declined to comment.
The global market for herbal supplements and remedies, which don't
require FDA approval as do food and drugs, is projected to reach
$115 billion by 2020, according to a report released last month by
Global Industry Analysts Inc. Many of the fastest-growing
supplements, such as ginseng and St. John's wort, were among the
six tested by Mr. Schneiderman's office. The tests found that 35
percent of the products actually contained fillers and allergens,
such as wheat.
In addition to the four retailers, Mr. Schneiderman sent letters
to four brand-name manufacturers. He's also expanded his
investigation to include attorneys general from Connecticut,
Indiana and Puerto Rico.
In court, plaintiffs attorneys have accused the companies of
violating various state consumer fraud statutes by misrepresenting
the ingredients in their products. Mr. Zweig said his case isn't
limited to the herbal supplements that Mr. Schneiderman tested.
"We have information that suggests that what the attorney general
has uncovered is not specific to these herbal supplements that he
disclosed in his letters," he said.
Plaintiffs lawyers have asked the U.S. Judicial Panel on
Multidistrict Litigation to coordinate the cases before a single
judge, advocating for several courts in Arkansas, California,
Florida, Illinois, Ohio and Kentucky. The panel is expected to
take up the matter at its May 28 hearing in Minneapolis.
The retailers have pulled some products from shelves but so far
haven't responded in court.
* Securities Class Actions Against Life-Science Companies Double
----------------------------------------------------------------
Sheri Qualters, writing for The National Law Journal, reports that
securities class actions against life-sciences companies more than
doubled last year, to 39 cases compared with 19 during 2013,
according to a survey by Dechert.
The firm attributed the trend to a large number of pharmaceutical
companies with products in the early stages of development Any
negative news about these products could prompt securities fraud
lawsuits, said David Kotler, a white-collar and securities
litigation partner who practices in New York and Princeton, N.J.
Mr. Kotler wrote the Dechert Survey of Securities Fraud Class
Actions Brought Against U.S. Life Sciences Companies, issued on
March 16. "It's really just a reflection on the increased stakes
in the game for early-stage life-sciences companies," he said.
The lack of recent economic catastrophes and stock-price plunges
that might trigger securities lawsuits is another factor,
Mr. Kotler said.
Securities fraud filings against life-sciences companies
represented 23 percent of the cases filed last year, compared with
11 percent in 2013, 18 percent in 2012 and 9 percent in 2011.
More than one-fifth of life-sciences securities cases filed since
2011 -- 22 percent -- have already been tossed out of court, Mr.
Kotler found. That's 23 out of 106 total cases. He said the
average dismissal rate of securities class action cases is usually
about 10 to 15 percent.
"Just because there was an adverse development in the
commercialization of a product doesn't mean it was fraud," he
said. "[That argument] hasn't made logical sense in the eyes of
the court."
Nine cases have settled and 20 have pending dismissal or summary-
judgment motions. Just over half, or 54 cases, are in the
discovery stage.
Mr. Kotler acknowledged that two recent plaintiff-friendly
securities rulings by U.S. Supreme Court haven't yet affected
life-sciences fraud litigation. In 2013, the court ruled, 6-3, in
Amgen v. Connecticut Retirement Plans & Trust Funds that
plaintiffs do not have to prove at the class-certification stage
that a company misrepresentation was material to the stock-price
change.
And last year, in Halliburton v. Erica P. John Fund, known as
Halliburton II, the court upheld the fraud-on-the-market
presumption. That theory posits that share prices reflect
publicly available information or misinformation, and allows
plaintiffs to bring cases without specific proof that company
statements misled particular investors.
"As the active cases work their way through courts and class
certification, I would expect to see some impact by this time next
year," Mr. Kotler said.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina
Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan,
Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A.
Chapman, Editors.
Copyright 2015. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552.
* * * End of Transmission * * *