/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161027.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 27, 2016, Vol. 18, No. 215 Headlines 3M CO: "Grande" Files Suit Over Exposure to Contaminated Water AARON'S INC: Consumers Class Certification Sought in "Byrd" Suit ADOREME INC: Faces Class Action Over Automatic Service Renewal AEGERION PHARMACEUTICALS: "Flanigon" Suit Dismissed AETNA INC: Meidl Seeks Certification of Health Plan Members Class ALBERT MUELLER: Can't Pay Wages Using Debit Card, Court Rules ALDRIDGE IT: "Hugdahl" Suit Seeks to Recoup Wages Under FLSA ALLIANCE ONE: Hirthe Seeks Certification of Class Under Damasco AMERICAN HONDA: Faces "Bertram" Suit Over Vibration in Vehicles ANSWER FINANCIAL: Court Rejects Stipulation in "Parker" Suit ANTHONY KRAUJALIS: Certification of Class Sought in "Hirthe" Suit APPLE INC: Employees' Wage Class Action Begins in California ART.COM INC: Customers Class Certification Sought in "Knapp" Suit AVECTUS HEALTHCARE: Raymond Files Appeal From S.D. Ohio Ruling B&B CONTRACTING: Wright Seeks to Certify Class of Tile Installers BED BATH: "Strycharz" Suit Claims Violation of New York Labor Law BELLA CABINETS: Faces "Bishop" Suit Alleging Violation of FLSA BRIXMOR PROPERTY: Plaintiffs to File Consolidated Amended Suit CAPITAL MANAGEMENT: Merkovich Seeks Class Cert. Under Damasco CAREER POINT COLLEGE: Faces Students' Lawsuit over Closure CENTENE CO: Faces "Chapa" Lawsuit Seeking OT Wages Under FLSA CENTRAL FREIGHT: Seeks 9th Cir. Review of Ruling in "Henry" Suit CIGNA CORP: "Negron" Suit Alleges Violation of ERISA, RICO Act COMPREHENSIVE CENTER: "Chu" Files Breach of Contract Suit CSX TRANSPORTATION: Class Certification Sought in "Tipton" Suit CSX TRANSPORTATION: Tipton Moves for Certification of Class CSX TRANSPORTATION: Tipton Seeks Certification of Class in Tenn. DIAMOND PARKING: 9th Circuit Appeal Filed in "Israel" Class Suit DOLE PACKAGED: "Amaya" Claims False Marketing of High-sugar Foods DREAMWORKS: Settles Animation Workers' Class Action for $50MM EAGLE MATERIALS: Class Certification Proceedings Ongoing EAGLE MATERIALS: Discovery in Homebuilders' Suit Ongoing EL PASO: "Alvaranga" Suit Alleges Violation of FLSA, NY Labor Law ESG USA: "Fuller" Suit Alleges Violation of FLSA, Labor Laws EVERBANK FINANCIAL: Faces Class Actions in Florida and Delaware FANNIE MAE: Shareholders Sue FHFA Over $195BB "Net Worth Sweep" FCA US: E-shift System Defective, "Brooks" Class Suit Alleges FCA US: Faces "Mack" Suit in N.Y. Over Defective E-shift System FIDELITY NATIONAL: "Maitchoukow" Suit Invokes FLSA, Cal. Wage Law FIRST SOLAR: Motion to Intervene and Unseal Court Records Denied FORD MOTOR: Seeks Dismissal of Power Steering Class Action GC SERVICES: Certification of Class Sought in "O'Boyle" Suit GROSSE POINT PARK, MI: Residents File Sewage Backup Class Action HAMCOR INC: "Coppernoll" Suit Alleges FLSA, Labor Law Violation INFOBLOX INC: "Lin" Sues Officers Over Planned Merger ISABELLA GERIATRIC: NY Court Certifies Class in Perez-Cortes Suit JACK IN THE BOX: Faces "Patel" Suit Under FLSA, Cal. Wage Code JACOB TRANSPORTATION: Faces "Brown" Suit Alleging FLSA Violation JANI-KING OF OKLAHOMA: DOL Sues Over Franchisees Misclassification JENNINGS, MO: Oct. 28 Settlement Claims Filing Deadline Set JOHNSON & JOHNSON: Seeks Review of Decision in "Goldemberg" Suit L BRANDS: Zander Sues Over Defective Bath & Body Fragrance LANCASTER SCHOOL DISTRICT: Issa's Bid to Certify Class Denied LOGAN COUNTY, IL: Brown Seeks to Certify 2 Classes & 2 Subclasses LOUISIANA: Lewis Seeks Certification of Prisoners Class LYFT INC: Nokchan Appeals N.D. Cal. Decision to Ninth Circuit MARICOPA COUNTY, AZ: Arpaio Charged with Contempt of Court MARION COUNTY, IN: Wrongful Detention Suit Ruling Appealed MICHIGAN: Minors' Parents Sue MDE Over Lead in Drinking Water MICROSOFT CORP: Gender Discrimination Class Action Can Proceed MONSANTO CO: Faces "Martin" Suit Over Roundup False Ad MYLAN PHARMACEUTICALS: Faces "Corcoran" Suit Over EpiPen Prices NEW YORK: Class Suit Alleges Long Term Care Program Abuses NU SKIN: Class Action Settlement Obtains Final Court Approval PINNACLE FINANCIAL: Reached Deal to Settle Bushansky Litigation ROLLS ROYCE: NSW Supreme Court Issues Class Closure Ruling RUBIN & ROTHMAN: Gamil Seeks Final Approval of Class Settlement SANTANDER CONSUMER: Court Tosses Levins' Bid to Certify Class SER SECURITY: "Irish" Suit Seeks to Recoup OT Pay Under FLSA SGE MANAGEMENT: 5th Cir. Affirms Class Certification in "Torres" SPECTRA ENERGY: Faces "Williams" Suit Over Merger With Enbridge SPEIGHTS & WORRICH: Implodes from Hail Storm Damage Claims STARBUCKS CORP: N.D. Ill. Court Dismisses "Galanis" Class Suit STARBUCKS CORP: Judge Tosses Class Action Over Ice in Cold Drinks STONELEIGH RECOVERY: Thalman Seeks Certification of Classes STRONGHAVEN INC: "Jennings" Seeks to Recoup OT Pay Under FLSA TAYLOR, MI: Refuses to Settle Water Billing Class Action TAYLOR SAFETY: Hernandez Seeks to Certify Class of Consultants TENET HEALTHCARE: "Pennington" Suit Alleges Securities Act Breach THANK YOU: Catzin Seeks Review of S.D.N.Y. Ruling to 2nd Circuit TIRRENIO INC: "Anguisaca" Suit Claims FLSA, NY Labor Law Breaches TYSON FOODS: "Chung" Suit Asserts Broiler Chicken Price-Fixing TYSON FOODS: Faces "Huser" Securities Class Suit in Calif. TYSON FOODS: Rosen Law Firm Files Securities Class Action UBER TECHNOLOGIES: Faces "Bank" Suit in N.Y. Over Robocalls UBER TECHNOLOGIES: Ruling May Bolster Independent Contractor Case UNILIFE CORPORATION: Consolidated Amended Complaint Due UNITED STATES: Outside Unltd. Appeals in "Gonzalez-Aviles" Suit UNIVERSAL FIDELITY: Mikolajczyk Seeks Certification of Class VANCOUVER, BC: Property Owners Sue Over Heritage Designation Bylaw VISIONWORKS OF AMERICA: "Lenart" Lawsuit Transferred to Ohio VIXEN'S LLC: Faces "Breighner" Suit Under FLSA, W.Va. Wage Laws VOLKSWAGEN AG: Canadian Diesel Owners Await Compensation VOLKSWAGEN CANADA: Faces Government Probe Over Defeat Devices WAWA INC: Faces "Ciuffardi" Suit Pursuant to FLSA, N.J. Wage Laws WELCH FOODS: Court Narrows Claims in Atik-Lau Mislabeling Suit WELLS FARGO: Faces Second Class Action Over Stock Drop WEST PUBLISHING: Tsao Sues Over Auto Renewal of Westlaw Services WEX INC: Swinter Group Seeks Certification of Class Under TCPA WOLF PETROLEUM: "Moss" Suit Seeks to Recoup Wages Under FLSA WWW.URBAN INC: Lee Seeks to Certify Class of Home Consultants YAHOO INC: "Finnegan" File Suit Over 2014 Security Breach YAHOO! INC: Hacking Plaintiffs Want to Pursue Claims in Calif. * Colorado Developers Seek Reform of Construction Defects Law * German Government Denies Delaying Class Action Reform * NCDRC Says Consumers with Common Grievance Can File Class Action * Supreme Court May Review Enforceability of Class Action Waivers ********* 3M CO: "Grande" Files Suit Over Exposure to Contaminated Water -------------------------------------------------------------- Leonard Grande, Keith Clerkin, Dina Clerkin, Paul Lutz, Darlene Lutz, James Seacrease, Valarie Seacrease, Patrick D. Enwright, Barbara Ann Garcia, Jeffrey Smith, Gloria Smith, and Kathleen M. Clapp, Plaintiffs v. The 3M Company (f/k/a Minnesota Mining and Manufacturing Co.), Angus Fire (a/k/a Angus International) Ansul (a/k/a Ansul Chemical Company a/k/a The Ansul Company a/k/a Ansul Fire Protection) Buckeye Fire Protection Company, Chemguard, and National Foam, Defendants, Case No. 2:16-cv-05380-PBT (E.D. Pa., October 13, 2016), seeks for themselves, and on behalf of all others similarly situated, medical monitoring and property damage as a result of their alleged exposure to water contaminated with toxic chemicals resulting from Defendants' harmful and defective products, aqueous firefighting foams and other materials containing perfluorochemicals including perfluorooctanesulfonic acid and related fluorochemicals that can degrade to perfluorooctanoic acid or PFOS, which were released onto the ground, into the environment and infiltrated the groundwater and Plaintiffs' drinking/potable water. The 3M Company promoted and sold the AFFF for the purposes of preventing, suppressing and extinguishing fires involving aviation fuel and other flammable liquids. The Plaintiffs are represented by: Joseph L. Feliciani, Esq. Heather A. Thomas, Esq. CREEDON & FELICIANI, P.C. 29 E. Marshall Street Norristown, PA 19401 Phone: (610) 239-9630 Fax: 610-239-1599 E-mail: jfeliciani@cflawpc.com AARON'S INC: Consumers Class Certification Sought in "Byrd" Suit ---------------------------------------------------------------- The Plaintiffs in the lawsuit titled CRYSTAL BYRD and BRIAN BYRD, Individually, and on Behalf of all Similarly Situated Persons v. AARON'S, INC., et al., Case No. 1:11-cv-00101-CB-SPB (W.D. Pa.), move the Court to certify the proposed class defined as: All persons who leased and/or purchased one or more computers from Aaron's, Inc. and/or Aspen Way Enterprises, Inc., and their household members, on whose computers Designerware's Detective Mode was installed and activated without such person's consent on or after January 1, 2007. The class is so numerous that joinder of all members is impracticable, as the parties have identified at least 895 computers (of which 167 are leased/purchased from AspenWay) associated with intercepted electronic communications that are owned or leased by specific class members, the Plaintiffs argue. The Byrds also ask that they be appointed as representatives for the class, and that Frederick S. Longer, Esq., of Levin, Fishbein, Sedran & Berman; John H. Robinson, Esq., of Jamieson & Robinson, LLC; R. Daniel Fleck, Esq., of The Spencer Law Firm; Christopher V. Tisi, Esq., and Maury A. Herman, Esq., of Herman Gerel LLP, be appointed as "Class Counsel." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Vh90a3l0 The Plaintiffs are represented by: Arnold Levin, Esq. Frederick S. Longer, Esq. LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Telecopier: (215) 592-4663 E-mail: dlevin@lfsblaw.com flonger@lfsblaw.com - and - John H. Robinson, Esq. JAMIESON & ROBINSON, LLC 214 S. Grant Street Casper, WY 82601 Telephone: (307) 235-3575 Telecopier: (307) 577-9435 E-mail: robinsn@vcn.com - and - G. Bryan Ulmer, III, Esq. Mel C. Orchard, III, Esq. R. Daniel Fleck, Esq. THE SPENCE LAWFIRM PO Box 548 15 South Jackson Street Jackson, WY 83001 Telephone: (307) 733-7290 Telecopier: (307) 733-5248 - and - Christopher V. Tisi, Esq. HERMAN GEREL LLP 2000 L Street, NW Suite 400 Washington, DC 20036 Telephone: (202) 783-6400 Telecopier: (202) 416-6392 - and - Michelle A. Parfitt, Esq. James F. Green, Esq. HERMAN GEREL LLP 4900 Seminary Road, Suite 650 Alexandria, VA 2311 Telephone: (703) 931-5500 Telecopier: (703) 820-0630 E-mail: mparf@aol.com - and - Maury A. Herman, Esq. Leonard A. Davis, Esq. HERMAN GEREL LLP 820 O'Keefe Avenue New Orleans, LA 70113 Telephone: (504) 581-4892 Telecopier: (504) 561-6024 E-mail: mherman@hhklawfirm.com ldavis@hhklawfirm.com - and - Andrea S. Hirsch, Esq. HERMAN GEREL LLP 230 Peachtree Street, Ste. 2260 Atlanta, GA 30303 Telephone: (404) 880-9500 Telecopier: (404) 880-9605 E-mail: ahirsch@hermangerel.com ADOREME INC: Faces Class Action Over Automatic Service Renewal -------------------------------------------------------------- Louie Torres, writing for Legal Newsline, reports that a consumer is suing a New York business, alleging unfair competition and violation of state law. Kathy Lira filed a class action complaint, individually and on behalf of all others similarly situated, Oct. 7 in U.S. District Court for the Central District of California against Adoreme, Inc. and Does 1-10, alleging they made automatic continuous service offers to consumers without presenting the terms. According to the complaint, Ms. Lira suffered financial damages from having her credit/ debit card automatically charged. Ms. Lira alleges the defendants failed to inform the plaintiffs regarding the automatic renewal of services. Ms. Lira seeks damages, restitution, injunctive relief, court costs and all other relief the court grants. She is represented by attorneys Scott. J. Ferrell and Victoria C. Knowles of Pacific Trial Attorneys APC in Newport Beach, California. U.S. District Court for the Central District of California Case number 8:16-cv-1858 AEGERION PHARMACEUTICALS: "Flanigon" Suit Dismissed --------------------------------------------------- Aegerion Pharmaceuticals, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on October 24, 2016, that on October 3, 2016, a complaint captioned Flanigon v. Aegerion Pharmaceuticals, Inc., et al., C.A. 12794, was filed in the Delaware Court of Chancery (the "Delaware Action"). The Delaware Action was brought by Timothy Flanigon, who purports to be a stockholder of Aegerion, on his own behalf, and also seeks certification as a class action on behalf of all of the Aegerion stockholders. The Delaware Action alleges, among other things, that the Aegerion board of directors breached its fiduciary duties in connection with the proposed transaction by agreeing to an inadequate exchange ratio and engaging in a flawed sales process. The Delaware Action further alleges that QLT and MergerCo aided and abetted the alleged breaches. In addition, the Delaware Action alleges that the September 28, 2016 Amendment No. 2 to the Form S- 4 Registration Statement filed in connection with the proposed transaction is materially misleading. The Flanigon complaint seeks, among other things, to enjoin the proposed transaction, to rescind it or award rescissory damages should it be consummated and an award of attorneys' fees and expenses. Also on October 3, 2016, plaintiff in the Delaware Action filed motions seeking expedited discovery and a preliminary injunction. On October 21, 2016, the Delaware Action was dismissed without prejudice. AETNA INC: Meidl Seeks Certification of Health Plan Members Class ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned CHRISTOPHER MEIDL, on his own behalf and on behalf of all others similarly situated v. AETNA, INC., AETNA LIFE INSURANCE COMPANY, and MCMC, LLC, Case No. 3:15-cv-01319-JCH (D. Conn.), moves for class certification of a class of people enrolled in health plans administered by Aetna, Inc., and Aetna Life Insurance Company, who were wrongfully denied coverage for transcranial magnetic stimulation, a treatment for serious depression. Mr. Meidlm also asks the Court to appoint him as Class representative, and to appoint Zuckerman Spaeder LLP and Psych- Appeal, Inc., as Co-Lead Class Counsel for the TMS Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3WpGSw6H The Plaintiff is represented by: Andrew N. Goldfarb, Esq. ZUCKERMAN SPAEDER LLP 1800 M Street, NW, Suite 1000 Washington, DC 20036 Telephone: (202) 778-1800 Facsimile: (202) 822-8106 E-mail: agoldfarb@zuckerman.com - and - D. Brian Hufford, Esq. Jason S. Cowart, Esq. ZUCKERMAN SPAEDER LLP 399 Park Avenue, 14th Floor New York, NY 10022 Telephone: (212) 704-9600 Facsimile: (212) 704-4256 E-mail: dbhufford@zuckerman.com jcowart@zuckerman.com - and - Meiram Bendat, Esq. PSYCH-APPEAL, INC. 8560 West Sunset Boulevard, Suite 500 West Hollywood, CA 90069 Telephone: (310) 598-3690 Facsimile: (888) 975-1957 E-mail: mbendat@psych-appeal.com - and - Elizabeth K. Acee, Esq. Daniel P. Elliott, Esq. LECLAIRRYAN, A PROFESSIONAL CORPORATION 545 Long Wharf Drive, 9th Floor New Haven, CT 06511 Telephone: (203) 672-1638 Facsimile: (203) 672-3228 E-mail: elizabeth.acee@leclairryan.com daniel.elliott@leclairryan.com ALBERT MUELLER: Can't Pay Wages Using Debit Card, Court Rules ------------------------------------------------------------- Ryan Borchers, writing for Courthouse News Service, reported that paying Pennsylvania employees with debit cards is not a valid way to pay wages, a state appeals court ruled in a class action against McDonald's franchisees. Ruling out of Harrisburg on October 21, an appellate panel with the Superior Court of Pennsylvania affirmed advancement of the case in the Luzerne County Court of Common Pleas. The Pennsylvania Wage Payment and Collection Law is clear, Judge Anne Lazarus wrote for the panel: Employees must be paid either by check or lawful U.S. money, and debit cards do not count as lawful U.S. money. Lead plaintiff Alisha Siciliano sued Albert and Carol Mueller dba McDonald's on Aug. 23, 2013, for having paid them with JP Morgan Chase payroll cards since November 2010. They sought compensatory and punitive damages. The class was certified in May 2015 and two weeks later the trial court denied the Muellers' motion for summary judgment. The Muellers filed an interlocutory appeal, and the unanimous three- judge panel affirmed the trial court ruling. "The WPCL [Wage Payment and Collection Law] states that wages 'shall be paid in lawful money of the United States or check.' The language is clear. A debit card is not 'lawful money' and it is not a 'check' as contemplated by the drafters of the WPCL. We agree with the learned trial judge, the Honorable Thomas Burke, Jr., that the Legislature obviously did not contemplate the concept of a payroll debit card when it adopted the language of section 260.3 in 1961," Lazarus wrote. The Muellers' argument that the debit cards are functionally the same as checks or lawful money fails because the cards may subject employees to fees, the judge found. The American Payroll Association said in an amicus brief that employers can pay employees through direct deposit, but Lazarus said employers may do this only at the written request of employees. "The use of a voluntary payroll debit card may be an appropriate method of wage payment. However, until our General Assembly provides otherwise, the plain language of the WPCL makes clear that the mandatory use of payroll debit cards at issue here, which may subject the user to fees, is not." Class counsel David Senoff with Anapol Weiss said: "We were pleased with the ruling. The fact that it was unanimous not only underscored the merits of our argument, but underscored what I thought was an excellent opinion of the trial court. It leaves little doubt in my mind about the illegality of receiving your wages by debit card without any option." The Muellers are represented by Matthew Hank -- mhank@littler.com -- with Littler Mendelson, who said, "The Muellers are aware of the ruling and they are evaluating their options." ALDRIDGE IT: "Hugdahl" Suit Seeks to Recoup Wages Under FLSA ------------------------------------------------------------ KEN HUGDAHL, and others similarly situated, Plaintiffs, v. ALDRIDGE IT SERVICES, LLC, Defendant, Case No. 4:16-cv-3073 (S.D. Tex., October 17, 2016), seeks to recoup unpaid wages pursuant to the Fair Labor Standards Act. ALDRIDGE IT SERVICES, LLC, is primarily engaged in the business of providing IT outsourcing throughout the United States. The Plaintiff is represented by: Thomas H. Padgett, Jr., Esq. ROSS LAW GROUP 4809 Pine St. Bellaire, TX 77401 Phone: 800-634-8042 Phone: 512-474-7677 Fax: 512-4745306 E-mail: tpadgett@rosslawgroup.com - and - Charles L. Scalise, Esq. Daniel B. Ross, Esq. 1104 San Antonio St. Austin, Texas 78701 ALLIANCE ONE: Hirthe Seeks Certification of Class Under Damasco --------------------------------------------------------------- Melissa Hirthe moves the Court to certify the classes described in the complaint of the lawsuit titled MELISSA HIRTHE, Individually and on Behalf of All Others Similarly Situated v. ALLIANCE ONE RECEIVABLES MANAGEMENT, INC., Case No. 2:16-cv-01385-NJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, Ms. Hirthe asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Ms. Hirthe asserts. She argues that she is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, Ms. Hirthe points out. Ms. Hirthe also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=cww6eAs4 The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com AMERICAN HONDA: Faces "Bertram" Suit Over Vibration in Vehicles --------------------------------------------------------------- AMY BERTRAM, Plaintiff, v. AMERICAN HONDA MOTOR CO., INC. SERVE: The Corporation Company, 120 South Central Avenue, Clayton, Missouri 63105, Defendant, Case No. 4:16-cv-01120-DGK (D. Mo., October 19, 2016), alleges individually and on behalf of all others similarly situated, that Honda is unable to provide solution to vibration issues in its vehicles, including the 2015 Honda CR-V, particularly those sold in Missouri. AMERICAN HONDA MOTOR CO., INC. is in the business of designing, manufacturing, marketing, distributing, selling, and/or warranting vehicles which it mass-produces. The Plaintiff is represented by: Thomas K. Mendel, Esq. 20 E. Franklin Street Liberty, MO 64048 Phone: 816-781-4111 Fax: 816-817-6162 E-mail: Bryce@BellLawKC.com MS@BellLawKC.com Tom@Mendellawfirmllc.com - and - A. Scott Waddell, Esq. WADDELL LAW FIRM LLC 2600 Grand Blvd., Suite 580 Kansas City, MO 64108 Phone: 816-914-5365 E-mail: scott@aswlawfirm.com ANSWER FINANCIAL: Court Rejects Stipulation in "Parker" Suit ------------------------------------------------------------ Judge George H. King rejects a stipulation regarding the Plaintiff's placeholder motion for class certification filed in the lawsuit styled JESSE PARKER individually and on behalf of all others similarly situated v. ANSWER FINANCIAL, Inc., a California corporation, Case No. 2:16-cv-05785-GHK-JC (C.D. Cal.). The so-called "placeholder" Motion is denied without prejudice, according to Judge King's order. The Court will set a deadline for class certification motion at the scheduling conference. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=jxotfo71 ANTHONY KRAUJALIS: Certification of Class Sought in "Hirthe" Suit ----------------------------------------------------------------- Melissa Hirthe moves the Court to certify the class described in the complaint of the lawsuit captioned MELISSA HIRTHE, Individually and on Behalf of All Others Similarly Situated v. ANYTHONY C. KRAUJALIS LAW OFFICES, Case No. 2:16-cv-01386-WED (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, Ms. Hirthe contends, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Ms. Hirthe contends. She argues that she is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, Ms. Hirthe contends. Ms. Hirthe also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ywM5r1xH The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com APPLE INC: Employees' Wage Class Action Begins in California ------------------------------------------------------------ Jack Purcher, writing for Patently Apple, reports that in 2013 Patently Apple posted a report titled "Apple Store Employee Files Class Action Lawsuit over Lost Wages." The report covered a full-time non-exempt Apple Store Specialist who worked at both Spokane and San Francisco stores over a two year period has filed a Class Action lawsuit against Apple on behalf of himself and all non-exempt employees who are employed by Apple as non-exempt Specialists, Lead Specialists and Expert Specialists and non- exempt Managers, Senior Managers, Developmental Managers and Business Managers. Specialists and Managers are collectively referred to as Hourly Employees. The nuts and bolts of the complaint revolved around the fact that employees that are paid hourly wages should be compensated for the time lost waiting in lines for mandatory Apple security checks every day. Considering this is a requirement by Apple, employees should be compensated. Apple was sued in a similar case in July by two former Apple Store employees from New York and Los Angeles. Our report covers the full basic complaint filed with the court in San Francisco." The case was set to finally begin on Oct. 18 in San Diego's Superior Court. ART.COM INC: Customers Class Certification Sought in "Knapp" Suit ----------------------------------------------------------------- The Plaintiff in the lawsuit titled JAMES KNAPP, individually and on behalf of all others similarly situated v. ART.COM, INC., a California corporation; and DOES 1 through 50, inclusive, Case No. 3:16-cv-00768-WHO (N.D. Cal.), move the Court for an order certifying for class treatment all his claims against Art.com, with the class defined as: All persons, who on or after February 16, 2012, purchased any product from Art.com through the e-commerce websites www.art.com, www.posters.com, and/or www.allposters.com pursuant to a site-wide all products sale by entering a coupon code, and whose product was shipped to an address in the United States. Excluded from the Class are the following individuals and/or entities: Art.com and its parents, subsidiaries, affiliates, officers and directors, current or former employees, and any entity in which Art.com has a controlling interest; all individuals who make a timely election to be excluded from this proceeding using the correct protocol for opting out; all judges assigned to hear any aspect of this litigation, as well as their immediate family members. Mr. Knapp further moves the Court for an order designating him as Class representative and appointing Schneider Wallace Cottrell Konecky Wotkyns LLP and the Wand Law Firm as Class Counsel. The Court will commence a hearing on February 1, 2017, at 2:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UROigdEC The Plaintiff is represented by: Aubry Wand, Esq. THE WAND LAW FIRM 400 Corporate Pointe, Suite 300 Culver City, CA 90230 Telephone: (310) 590-4503 Facsimile: (310) 590-4596 E-mail: awand@wandlawfirm.com - and - Todd M. Schneider, Esq. Jason H. Kim, Esq. Kyle G. Bates, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: tschneider@schneiderwallace.com jkim@schneiderwallace.com kbates@schneiderwallace.com AVECTUS HEALTHCARE: Raymond Files Appeal From S.D. Ohio Ruling -------------------------------------------------------------- Plaintiffs Keith Raymond and Timothy Strunk filed an appeal from a court ruling in their lawsuit styled Keith Raymond, et al. v. Avectus Healthcare Solutions, et al., Case No. 1:15-cv-00559, in the U.S. District Court for the Southern District of Ohio at Cincinnati. The appellate case is captioned as Keith Raymond, et al. v. Avectus Healthcare Solutions, et al., Case No. 16-4172, in the United States Court of Appeals for the Sixth Circuit. In an Opinion and Order dated Sept. 30, 2016, a copy of which is available at https://is.gd/QBHRBP from Leagle.com, District Judge Michael R. Barrett granted the separate motions filed by defendants Mercy Health and Avectus Healthcare seeking dismissal of the suit. On February 10, 2015, Plaintiff Keith Raymond was injured after slipping and falling on a wet floor. Raymond was treated at Mercy Health Anderson Hospital. On June 12, 2013, Plaintiff Timothy Strunk was injured in an automobile accident. Strunk was treated at Mercy Health Clermont Hospital. Defendant Mercy Health is the owner and/or parent company of Mercy Health Anderson Hospital and Mercy Health Clermont Hospital. During their admission to the hospitals, Plaintiffs informed Mercy that they had health insurance coverage through health insurance corporations. Defendant Avectus Healthcare Solutions, LLC provides debt collection and third party recovery services on behalf of Mercy. After Plaintiffs received their medical treatment, Avectus sent a letter to Plaintiffs' legal counsel requesting that legal counsel sign a letter of protection against any settlement or judgment. Defendants have failed and/or refused to submit the claims or medical expenses to Plaintiff's health insurance corporations. Plaintiffs claim that this attempt to collect tort proceeds from Plaintiffs is prohibited by Ohio Revised Code Sec. 1751.60 (A). Plaintiffs bring the following claims: (1) breach of contract, (2) breach of third-party beneficiary contract, (3) violation of the Ohio Consumer Sales Practices Act, (4) violation of the Fair Debt Collection Practices Act, (5) fraud, (6) conversion, (7) unjust enrichment, and (8) punitive damages. Defendants argue that Plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants explain that their attempt to recover outstanding medical expenses from potentially responsible third-parties does not violate Ohio Revised Code Sec. 1751.60. Plaintiffs-Appellants KEITH RAYMOND and TIMOTHY STRUNK, Individually and on behalf of all others similarly situated, are represented by: Gary F. Franke, Esq. GARY F. FRANKE COMPANY 120 E. Fourth Street, Suite 1040 Cincinnati, OH 45202 Telephone: (513) 564-9222 Defendant-Appellee AVECTUS HEALTHCARE SOLUTIONS, LLC, aka Medpay Assuance, LLC, is represented by: Chad R. Ziepfel, Esq. TAFT, STETTINIUS & HOLLISTER LLP 425 Walnut Street, Suite 1800 Cincinnati, OH 45202 Telephone: (513) 381-2838 Facsimile: (513) 381-0205 E-mail: cziepfel@taftlaw.com Defendant-Appellee MERCY HEALTH is represented by: Kris M. Dawley, Esq. ICE MILLER LLP 250 West Street, Suite 700 Columbus, OH 43215 Telephone: (614) 462-2700 E-mail: kris.dawley@icemiller.com B&B CONTRACTING: Wright Seeks to Certify Class of Tile Installers ----------------------------------------------------------------- The Plaintiffs in the lawsuit entitled OTIS JAMES WRIGHT, VIRGIL ALAN MOODY and all others similarly situated v. B&B CONTRACTING, INC., a Florida Corporation, and WALTER BEATON, individually, Case No. 0:16-cv-62020-WPD (S.D. Fla.), move the Court to conditionally certify and authorize them to mail and e-mail notice of the lawsuit and consent to become a party plaintiff form, in both English and Spanish, to: All employees who worked as tile installers and floor levelers, who worked overtime hours and whom were not paid the correct overtime wages during any given work week of their employment. The Case is a collective action to enforce the overtime provisions of the Fair Labor Standards Act. The Plaintiffs worked as non- exempt laborers, who leveled flooring and installed tile for the Defendants. The Defendants are a tile installation contractor. The Plaintiffs also ask the Court to direct the Defendants to produce to the Plaintiffs' counsel a list containing the full names, last known addresses, telephone numbers, and e-mail addresses of putative class members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=n0U822kH The Plaintiffs are represented by: Isaac Mamane, Esq. MAMANE LAW LLC 1150 Kane Concourse, Fourth Floor Bay Harbor Islands, FL 33154 Telephone (305) 773 - 6661 E-mail: mamane@gmail.com BED BATH: "Strycharz" Suit Claims Violation of New York Labor Law ----------------------------------------------------------------- Cheryl A. Strycharz and Danielle Brown, Plaintiffs, v. BED BATH AND BEYOND, INC., Defendant, Index No. 608039/2016 (N.Y. Sup., County of Nassau, October 18, 2016), seeks to recover (1) overtime wages, (2) damages for alleged failure to provide proper wage statements (3) liquidated damages, interest, costs, and attorneys' fees under the New York Labor Law and NYCRR. Defendant, Bed Bath & Beyond, Inc. is a national chain of domestic merchandise retail stores. The Plaintiffs are represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Avenue, Suite 1003 Flushing, NY 11354 Phone: (718) 353-8588 BELLA CABINETS: Faces "Bishop" Suit Alleging Violation of FLSA -------------------------------------------------------------- KAITLYN BISHOP, on behalf of herself and others similarly situated, Plaintiff, v. BELLA CABINETS LLC D/B/A MASTERGRANITE a Florida Limited Liability Company, and ANTONINO BIANCO, Individually, Defendants, Case No. 4:16-cv-00661-RH-CAS (N.D. Fla., October 19, 2016), alleges failure by Defendants to pay overtime wages pursuant to the Fair Labor Standards Act. Defendant BELLA CABINETS, LLC, was, and continues to be an institution primarily engaged in the production of cabinetry and granite products. The Plaintiff is represented by: Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Rd., Ste. 400 Plantation, FL 33324 Phone: 954-318-0268 Fax: 954-333-3517 E-mail: PBotros@forthepeople.com BRIXMOR PROPERTY: Plaintiffs to File Consolidated Amended Suit -------------------------------------------------------------- Brixmor Property Group Inc. and Brixmor Operating Partnership LP said in their Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2016, for the quarterly period ended September 30, 2016, that pursuant to a stipulation, plaintiffs in a class action lawsuit are required to file a consolidated amended complaint within 60 days after the Court appoints a lead plaintiff and lead counsel. On February 8, 2016, the Company issued a press release and filed a Form 8-K reporting the completion of a review by the Audit Committee of the Company's Board of Directors that began after the Company received information in late December 2015 through its established compliance processes. The Audit Committee review led the Board of Directors to conclude that specific Company accounting and financial reporting personnel, in certain instances, were smoothing income items, both up and down, between reporting periods in an effort to achieve consistent quarterly same property net operating income growth. As a result of the Audit Committee review and the conclusions reached by the Board of Directors, the Company's Chief Executive Officer, its President and Chief Financial Officer, its Treasurer and Chief Accounting Officer, and an accounting employee all resigned. Following these resignations the Company appointed a new Interim Chief Executive Officer and President, Interim Chief Financial Officer and Interim Chief Accounting Officer. A new Chief Executive Officer and Chief Financial Officer were appointed effective May 20, 2016. Prior to the Company's February 8, 2016 announcement, the Company voluntarily reported to the SEC the matters. The SEC has commenced an investigation with respect to these matters, and the Company is cooperating fully. In addition, the Company was contacted by the United States Attorney's Office for the Southern District of New York which advised that it is investigating these matters as well and the Company is cooperating fully. On March 31, 2016, the Company and the former officers were named as defendants in a putative securities class action complaint filed in the United States District Court for the Southern District of New York (the "Court"). The complaint, captioned Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds v. Brixmor Property Group Inc., et al. (Case No. 16- CV-02400 (AT)), asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 based on the facts described in the Company's February 8, 2016 press release and Form 8-K. Pursuant to a stipulation between the parties, plaintiffs will file a consolidated amended complaint within sixty days after the Court appoints a lead plaintiff and lead counsel pursuant to the Private Securities Litigation Reform Act of 1995. The Company believes it has valid defenses in this action and intends to vigorously defend itself. CAPITAL MANAGEMENT: Merkovich Seeks Class Cert. Under Damasco ------------------------------------------------------------- Jeffrey Merkovich moves the Court to certify the class described in the complaint of the lawsuit captioned JEFFREY MERKOVICH, Individually and on Behalf of All Others Similarly Situated v. CAPITAL MANAGEMENT SERVICES, LP, Case No. 2:16-cv-01381-WED (E.D. Wisc.), and further moves that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, Mr. Merkovich asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Mr. Merkovich states. He asserts that he is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. Mr. Merkovich also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5Aj9EVgi The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com CAREER POINT COLLEGE: Faces Students' Lawsuit over Closure ---------------------------------------------------------- Ryan Kocian, writing for Courthouse News service, reported that 59 students have sued Texas-based Career Point College, claiming the profit-seeking school induced them to take out high-interest student loans then shut down this month under federal investigation, leaving them drowning in debt. Christopher Kinna and 53 others sued the college, its corporate affiliates and associates, its CEO Lawrence D. Earle, and vice president Carol B. Kendall, on Oct. 20 in Bexar County Court. Five other students filed a similar complaint on Oct. 18 in the same court. Career Point's main campus and headquarters is in San Antonio, with other campuses in Austin and Tulsa, Okla. It claimed on its website "to provide career-specific diplomas and degree programs relating to in-demand fields in business, medical, nursing, cosmetology and information technology." In the Oct. 18 lawsuit, five women say Career Point instructed them and other students to apply for federal student loans "ranging from $19,000 to over $30,000," and for federal Pell Grants. "Unfortunately, Career Point did not inform the students that Career Point alone would retain control over the grant funds and that it would solely decide if and when to distribute these monies, if any, to plaintiffs. Certain plaintiffs never received a penny of their Pell Grant and Career Point's use of these funds remains unknown," lead plaintiff Erica Eckols says in that complaint. Eckols adds: "Acting alone or in concert with third-party lenders, Career Point induced plaintiffs to obtain additional loans with interest ranging from 18 to 24 percent." Only one of these five plaintiffs was provided with information on the cost of tuition -- $19,440 -- but the college called that "merely an estimate," these plaintiffs say. San Antonio media have reported that the lawsuits are class actions, though that is not explicitly stated in the complaints. Career Point sent a mass email on Oct. 16, telling students the school was closing immediately. In that email, which is cited in the complaint, defendant CEO and President Earle said that "three long-term employees had collaborated to violate the rules related to student aid funds." Earle wrote that "no money was stolen," and that Career Point "self-reported the violation and agreed to repay all inappropriately received funds," but the U.S. Department of Education refused to accept its "plan." "Instead, the Department of Education severely restricted government funds going to the college, making it impossible for the college to continue operations." Eckols et al. call Earle "the president and sole owner of Career Point." They say Earle gave them no information on what the "three long-term employees" did, and omitted important details, for instance, the "misappropriation of federal funds." "Apparently, employees of Career Point, acting in the course and scope of their employment, improperly obtained over $4,600,000 in federal loan funds," the complaint states, citing reports from two San Antonio news stations. These reports "stat(ed) that Career Point 'failed to pay credit balances and required returns of unearned Title IV program funds totaling more than $4.6 million,'" according to the complaint. It continues: "According to Mr. Earle, Career Point previously exhausted its other financial resources and was forced to close immediately. Mr. Earle did not disclose that the Department of Education required Career Point to obtain a $10,000,000 letter of credit to continue its operations." Eckols says that Earle "further stated in the notification that Career Point would assist its students in transferring to other schools. However, the phone lines for Career Point are disconnected and plaintiffs have no mechanism to obtain any information or documents concerning their education." Most of the website has been disabled as well, leaving it "a shell of its former self," Eckols says. "At every turn, plaintiffs were promised by representatives of Career Point that documents and information would be provided. At every turn, that did not occur." Eckols claims that Career Point "took affirmative steps to conceal information from plaintiffs and the other 1,000-plus students regarding their financial aid and the manner in which it was used." To cap it off, Eckols says, when she learned of the financial fiasco, "Career Point embarked on a campaign to defame and discredit (her), telling students that they should not communicate with her because of her negativity." She says the dean told her she could drop out "if she did not like the way the school was managing its affairs." Eckols claims that "Career Point intentionally concealed the investigation by the Department of Education" to keep the money rolling in until the last minute. In the days before the fatal Oct. 16 email, Eckols says, "Career Point continued to enroll students and induce them to incur significant debt, including certain plaintiffs herein. Upon information and belief, on or about October 10, 2016, Career Point enrolled a new class of approximately 16 students. The defendants' actions are deceptive, fraudulent, and were clearly designed to keep the money flowing. Without new students and hundreds of thousands of dollars in new financial aid funds, Career Point was insolvent and could not operate." The Oct. 20 complaint from 54 students makes similar allegations. For instance: "Defendants have maintained silence concerning the closure, except for information posted on its website directing students to make email requests for information, none of which have been honored." In this complaint, some students say that unauthorized, fraudulent loans were taken out in their names, and they have been told that despite the fraud, they will have to pay off the loans. The students say their debts range from $5,000 to $30,000 apiece. As the complaints state, Career Point's telephone number has been disconnected. It did not respond to an email request for comment. The students seek compensatory and punitive damages for breach of contract, fraud, deceptive trade, misrepresentation, usury and conversion. They also want an injunction preventing Career Point from destroying or transferring assets. Defendants in the 54 students' complaint include Dickinson of San Antonio Inc., Dickinson of Austin Inc., Dickinson of Spencer Lane Inc. dba Career Point College, Academic Financial Solutions LLC, San Antonio Multi-Media Inc., Earle and Kendall. The five women sued Earle, Kendall, Dickinson of San Antonio Inc., Academic Financial Solutions LLC, River City High School Inc., Dickinson of Austin Inc., and Dickinson of Spencer Lane Inc. The five plaintiffs are represented by Randall Pulman -- rpulman@pulmanlaw.com -- with Pulman, Cappuccio, Pullen, Benson & Jones; the 54 by Aric Garza, both of San Antonio. CENTENE CO: Faces "Chapa" Lawsuit Seeking OT Wages Under FLSA ------------------------------------------------------------- CAMELIA CHAPA, On Behalf Of Herself and All Others Similarly Situated, Plaintiffs, v. CENTENE COMPANY OF TEXAS, L.P. d/b/a CENTENE - SUPERIOR HEALTH, Defendants, Case No. 7:16-cv-00608 (S.D. Tex., October 19, 2016), seeks to recover alleged unpaid and/or underpaid overtime wages and other damages under the Fair Labor Standards Act. CENTENE COMPANY OF TEXAS, L.P. is an affiliate of Centene Corporation, a Fortune 500 multi-national healthcare enterprise that provides a portfolio of services to government-sponsored healthcare programs, focusing on under-insured and uninsured individuals. The Plaintiff is represented by: Michael K. Burke, Esq. LAW OFFICES OF MICHAEL M. GUERRA, BURKE & KHIRALLAH, LLP 3900 N. 10th St., Suite 850 McAllen, TX 78501 Phone: (956) 682-5999 Fax: (888) 317-8802 E-mail: mburke@mmguerra.com - and - Ryan C. Solis, Esq. LAW OFFICE OF RYAN C. SOLIS, PLLC 3900 N. 10th St., Suite McAllen, TX 78501 Phone: (956) 686-9600 Fax: (956) 686-7033 E-mail: ryan@rsolislaw.com CENTRAL FREIGHT: Seeks 9th Cir. Review of Ruling in "Henry" Suit ---------------------------------------------------------------- Defendant Central Freight Lines, Inc., filed an appeal from a court ruling in the lawsuit entitled Rickey Henry v. Central Freight Lines, Inc., Case No. 2:16-cv-00280-JAM-EFB, in the U.S. District Court for the Eastern District of California, Sacramento. As previously reported in the Class Action Reporter on Oct. 13, 2016, District Judge John A. Mendez approved the Plaintiff's motion to remand the Case to the Superior Court for the County of Sacramento. The Court cited the Defendant's failure to show that the amount in controversy exceeds the $5 million jurisdictional threshold required by the Class Action Fairness Act. Moreover, the Court can no longer decide on the Defendant's motion to change venue following its decision to remand the case. The appellate case is captioned as Rickey Henry v. Central Freight Lines, Inc., Case No. 16-80157, in the United States Court of Appeals for the Ninth Circuit. Plaintiff-Respondent RICKEY HENRY, an individual, on behalf of himself, and on behalf of all persons similarly situated, is represented by: Aparajit Bhowmik, Esq. Norman B. Blumenthal, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 E-mail: aj@bamlawlj.com norm@bamlawlj.com - and - Kyle R. Nordrehaug, Esq. BLUMENTHAL & MARKHAM 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 E-mail: kyle@bamlawca.com Defendant-Petitioner CENTRAL FREIGHT LINES, INC., is represented by: Jonathan Liu, Esq. Spencer C. Skeen, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: (858) 652-3100 E-mail: jonathan.liu@ogletreedeakins.com spencer.skeen@odnss.com CIGNA CORP: "Negron" Suit Alleges Violation of ERISA, RICO Act -------------------------------------------------------------- KIMBERLY A. NEGRON, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. CIGNA CORPORATION and CIGNA HEALTH AND LIFE INSURANCE COMPANY, Defendants, Case No. 3:16-cv- 01702 (D. Conn., October 13, 2016), alleges violations of the Employee Retirement Income Security Act of 1974 and (b) violations of the Racketeering Influenced and Corrupt Organizations Act by Defendants and/or their agents because they required network pharmacies to charge insured patients unauthorized and excessive amounts for prescription drugs. Defendant Cigna Corporation, through its wholly-owned subsidiaries, including Defendant Cigna Health and Life Insurance Company, is a fully integrated health insurance company. The Plaintiff is represented by: Robert A. Izard, Esq. Craig A. Raabe, Esq. Christopher M. Barrett, Esq. IZARD, KINDALL & RAABE, LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Phone: (860) 493-6292 Fax: (860) 493-6290 E-mail: rizard@ikrlaw.com craabe@ikrlaw.com cbarrett@ikrlaw.com - and - Ronen Sarraf, Esq. Joseph Gentile, Esq. SARRAF GENTILE LLP 14 Bond Street, Suite 212 Great Neck, NY 11021 Phone: (516) 699-8890 Fax: (516) 699-8968 E-mail: ronen@sarrafgentile.com joseph@sarrafgentile.com COMPREHENSIVE CENTER: "Chu" Files Breach of Contract Suit --------------------------------------------------------- Amy Chu, Bi-Tao Ng, Channy Bakst, Charo Nespral, Devorah Weiss, Diana Normatov, Edward Zarow, Eunyoung Chang, Wendy Hui, Jason Gatpandan, John Cucuzza, Kareema Craig, Lauren Wong, Peter H. Lee, Lisa Plaskett, Margaret Chu, Mary Jo Corso, Min-Tang Yeh, Qi Guo, Queenie Huang, Shiang Tien, Sophia Dong, Shira Spira, Suleyka Hernandez, Tova Frenkel, Wendie Benderly, Ysotte Ortega, Yuet Ngor-Margaret Lam, Adina Edelstein, Valia M. Patterson, Jesse McMurry, Qiu Jian, Susana Linker, Rachelle Lubin, Sharon Guo, Hailin Tchou, Jaely Ricciardi, on behalf of themselves and others similarly situated, Plaintiffs, v. The Comprehensive Center, LLC. d/b/a Comprehensive Kids Developmental School a/k/a Comprehensive Evaluation Services, Comprehensive Staffing Solutions LLC., New York's Comprehensive Home Care Services, LLC, Grand Street Medicine & Rehabilitation, P.C. and Nathan Sklar, jointly and severally, Defendants, Case No. 1:16-cv-08007 (S.D.N.Y., October 13, 2016), was brought under the Fair Labor Standards Act for alleged late payment of wages. Plaintiffs also bring a cause of action for breach of contract. The Comprehensive Center, LLC. d/b/a Comprehensive Kids Developmental School a/k/a Comprehensive Evaluation Services, Comprehensive Staffing Solutions LLC., New York's Comprehensive Home Care Services, LLC, Grand Street Medicine & Rehabilitation, P.C. were set up to provide health-care services to children and adults with developmental problems, such as autism. The Plaintiffs are represented by: Ariadne Panagopoulou, Esq. PARDALIS & NOHAVICKA, LLP 3510 Broadway, Suite 201 Astoria, NY 11106 Phone: (718) 777-0400 Fax: (718) 777-0599 CSX TRANSPORTATION: Class Certification Sought in "Tipton" Suit --------------------------------------------------------------- The Plaintiffs in the lawsuit captioned CHARLES TIPTON; KELLI JOHNSON and AARON JOHNSON; DOREENE CHRISTIE and JAMES CHRISTIE; BILLY TIPTON, all individually and on behalf of a class of persons similarly situated v. CSX TRANSPORTATION, INC.; UNION TANK CAR COMPANY, Case No. 3:15-cv-00311-TAV-CCS (E.D. Tenn.), move for class certification pursuant to Rules 23(a), 23(b)(3) and, alternatively, Rule 23(c)(4) of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=pnXpjoVD The Plaintiffs are represented by: Gary A. Davis, Esq. DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 Telephone: (828) 622-0044 Facsimile: (828) 398-0435 E-mail: gadavis@enviroattorney.com jwhitlock@enviroattorney.com - and - Jeffrey E. Friedman, Esq. FRIEDMAN, DAZZIO, ZULANAS & BOWLING, PC 3800 CorporateWoods Drive Birmingham, AL 35242 Telephone: (205) 278-7000 Facsimile: (205) 278-7001 E-mail: jfriedman@friedman-lawyers.com mconn@friedman-lawyers.com - and - Mark Bryant, Esq. BRYANT LAW CENTER 601 Washington Street Paducah, KY 42001 Telephone: (270) 442-1422 E-mail: mark.bryant@bryantpsc.com - and - D. Blayne Honeycutt, Esq. FAYARD & HONEYCUTT, APC 519 Florida Avenue, SW Denham Springs, LA 70726 Telephone: (225) 664-4193 Facsimile: (225) 664-6925 E-mail: dbhoneycutt@fayardlaw.com - and - David Karnas, Esq. BELLOVIN & KARNAS, PC 4810 E. Broadway Boulevard Tucson, AZ 85711 Telephone: (520) 571-9700 E-mail: karnas@bellovinkarnas.com - and - Steven Weinberger, Esq. LAYFIELD & BARRETT, APC 7135 E Camelback Rd., Suite 230 Scottsdale, AZ 85251 Telephone: (480) 440-0426 E-mail: s.weinberger@layfieldbarrett.com - and - Beecher A. Bartlett, Jr., Esq. KRAMER RAYSON LLP 800 S. Gay Street, Suite 2500 Knoxville, TN 37929 Telephone: (865) 525-5134 Facsimile: (865) 522-5723 E-mail: bbartlett@kramer-rayson.com CSX TRANSPORTATION: Tipton Moves for Certification of Class ----------------------------------------------------------- The Plaintiffs in the lawsuit styled CHARLES TIPTON; KELLI JOHNSON and AARON JOHNSON; DOREENE CHRISTIE and JAMES CHRISTIE; BILLY TIPTON, all individually and on behalf of a class of persons similarly situated v. CSX TRANSPORTATION, INC.; UNION TANK CAR COMPANY, Case No. 3:15-cv-00497-TAV-CCS (E.D. Tenn.), move for class certification pursuant to Rules 23(a), 23(b)(3) and, alternatively, Rule 23(c)(4) of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=AvDiy5A5 The Plaintiffs are represented by: Gary A. Davis, Esq. DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 Telephone: (828) 622-0044 Facsimile: (828) 398-0435 E-mail: gadavis@enviroattorney.com jwhitlock@enviroattorney.com - and - Jeffrey E. Friedman, Esq. FRIEDMAN, DAZZIO, ZULANAS & BOWLING, PC 3800 CorporateWoods Drive Birmingham, AL 35242 Telephone: (205) 278-7000 Facsimile: (205) 278-7001 E-mail: jfriedman@friedman-lawyers.com mconn@friedman-lawyers.com - and - Mark Bryant, Esq. BRYANT LAW CENTER 601 Washington Street Paducah, KY 42001 Telephone: (270) 442-1422 E-mail: mark.bryant@bryantpsc.com - and - D. Blayne Honeycutt, Esq. FAYARD & HONEYCUTT, APC 519 Florida Avenue, SW Denham Springs, LA 70726 Telephone: (225) 664-4193 Facsimile: (225) 664-6925 E-mail: dbhoneycutt@fayardlaw.com - and - David Karnas, Esq. BELLOVIN & KARNAS, PC 4810 E. Broadway Boulevard Tucson, AZ 85711 Telephone: (520) 571-9700 E-mail: karnas@bellovinkarnas.com - and - Steven Weinberger, Esq. LAYFIELD & BARRETT, APC 7135 E Camelback Rd., Suite 230 Scottsdale, AZ 85251 Telephone: (480) 440-0426 E-mail: s.weinberger@layfieldbarrett.com - and - Beecher A. Bartlett, Jr., Esq. KRAMER RAYSON LLP 800 S. Gay Street, Suite 2500 Knoxville, TN 37929 Telephone: (865) 525-5134 Facsimile: (865) 522-5723 E-mail: bbartlett@kramer-rayson.com CSX TRANSPORTATION: Tipton Seeks Certification of Class in Tenn. ---------------------------------------------------------------- The Plaintiffs in the lawsuit entitled CHARLES TIPTON; KELLI JOHNSON and AARON JOHNSON; DOREENE CHRISTIE and JAMES CHRISTIE; BILLY TIPTON, all individually and on behalf of a class of persons similarly situated v. CSX TRANSPORTATION, INC.; UNION TANK CAR COMPANY, Case No. 3:15-cv-00337-TAV-CCS (E.D. Tenn.), move for class certification pursuant to Rules 23(a), 23(b)(3) and, alternatively, Rule 23(c)(4) of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=iTM8dU8J The Plaintiffs are represented by: Gary A. Davis, Esq. DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 Telephone: (828) 622-0044 Facsimile: (828) 398-0435 E-mail: gadavis@enviroattorney.com jwhitlock@enviroattorney.com - and - Jeffrey E. Friedman, Esq. FRIEDMAN, DAZZIO, ZULANAS & BOWLING, PC 3800 CorporateWoods Drive Birmingham, AL 35242 Telephone: (205) 278-7000 Facsimile: (205) 278-7001 E-mail: jfriedman@friedman-lawyers.com mconn@friedman-lawyers.com - and - Mark Bryant, Esq. BRYANT LAW CENTER 601 Washington Street Paducah, KY 42001 Telephone: (270) 442-1422 E-mail: mark.bryant@bryantpsc.com - and - D. Blayne Honeycutt, Esq. FAYARD & HONEYCUTT, APC 519 Florida Avenue, SW Denham Springs, LA 70726 Telephone: (225) 664-4193 Facsimile: (225) 664-6925 E-mail: dbhoneycutt@fayardlaw.com - and - David Karnas, Esq. BELLOVIN & KARNAS, PC 4810 E. Broadway Boulevard Tucson, AZ 85711 Telephone: (520) 571-9700 E-mail: karnas@bellovinkarnas.com - and - Steven Weinberger, Esq. LAYFIELD & BARRETT, APC 7135 E Camelback Rd., Suite 230 Scottsdale, AZ 85251 Telephone: (480) 440-0426 E-mail: s.weinberger@layfieldbarrett.com - and - Beecher A. Bartlett, Jr., Esq. KRAMER RAYSON LLP 800 S. Gay Street, Suite 2500 Knoxville, TN 37929 Telephone: (865) 525-5134 Facsimile: (865) 522-5723 E-mail: bbartlett@kramer-rayson.com DIAMOND PARKING: 9th Circuit Appeal Filed in "Israel" Class Suit ---------------------------------------------------------------- Plaintiff Hank Israel filed an appeal from a court ruling in the lawsuit entitled Hank Israel v. Diamond Parking Services Inc., et al., Case No. 2:16-cv-00687-JCC, in the U.S. District Court for the Western District of Washington, Seattle. The appellate case is captioned as Hank Israel v. Diamond Parking Services Inc., et al., Case No. 16-35840, in the United States Court of Appeals for the Ninth Circuit. U.S. District Judge John C Coughenour on Oct. 11 granted Defendant's Motion to Dismiss Israel's claims with without prejudice. The briefing schedule in the Appellate Case is set as follows: -- Appellant Hank Israel's opening brief is due on January 25, 2017; -- Answering brief of Appellees Diamond Parking Services Inc. and Diamond Parking Services LLC is due on February 24, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant HANK ISRAEL, individually and on behalf of all similarly situated individuals, is represented by: Eric A. Grover, Esq. Robert Spencer, Esq. KELLER GROVER LLP 1965 Market Street San Francisco, CA 94103 Telephone: (415) 543-1305 E-mail: eagrover@kellergrover.com rspencer@kellergrover.com - and - Daniel A. Rogers, Esq. BADGLEY MULLINS TURNER, PLLC 19929 Ballinger Way NE Shoreline, WA 98155 Telephone: (206) 621-6566 Facsimile: (206) 621-9686 E-mail: drogers@badgleymullins.com Defendants-Appellees DIAMOND PARKING SERVICES INC, a Washington corporation, DBA Diamond Airport Parking, and DIAMOND PARKING SERVICES LLC, a Washington limited liability company, DBA Diamond Airport Parking, are represented by: Rudy A. Englund, Esq. D. Michael Reilly, Esq. Jennifer Sheffield, Esq. LANE POWELL PC 1420 Fifth Avenue P.O. Box 91302 Seattle, WA 98111-9402 Telephone: (206) 223-7042 E-mail: englundr@lanepowell.com reillym@lanepowell.com sheffieldj@lanepowell.com DOLE PACKAGED: "Amaya" Claims False Marketing of High-sugar Foods ----------------------------------------------------------------- SALVADOR AMAYA, on behalf of himself and all others similarly situated, Plaintiff, v. DOLE PACKAGED FOODS, LLC, Defendant, Case No. 2:16-cv-07734 (C.D. Cal., October 18, 2016), seeks to enjoin Dole from using alleged deceptive health and wellness claims to market high-sugar foods. DOLE PACKAGED FOODS, LLC -- https://dolesunshine.com/ -- is in the business of growing, sourcing, distributing and marketing fruit and "healthy" snacks. The Plaintiff is represented by: Melanie Persinger, Esq. Trevor M. Flynn, Esq. Jack Fitzgerald, Esq. THE LAW OFFICE OF JACK FITZGERALD, PC Hillcrest Professional Building 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Phone: (619) 692-3840 Fax: (619) 362-9555 E-mail: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com DREAMWORKS: Settles Animation Workers' Class Action for $50MM ------------------------------------------------------------- Ted Johnson, writing for Variety, reports that a settlement has been reached between a group of animation workers and DreamWorks Animation in a class action lawsuit alleging that DreamWorks and other companies violated antitrust laws by conspiring to set animation wages via nonpoaching agreements. According to documents filed in U.S. District Court in San Jose on Oct. 17, the settlement provides for a cash payment of $50 million to a settlement fund. The named plaintiffs, Robert Nitsch, David Wentworth, and Georgia Cano, already had reached settlement agreements with Sony ImageWorks and Blue Sky Studios. Other defendants in the case are the Walt Disney Co., Lucasfilm, Pixar and ImageMovers. Tjose cases are still pending. Under the terms of the proposed DreamWorks settlement, the class includes certain animation and visual effects workers who worked at DreamWorks from 2004 to 2010; Pixar from 2004 to 2010; Lucasfilm from 2004 to 2010; The Walt Disney Co. from 2004 to 2010; Sony Pictures Animation and Sony Pictures Imageworks from 2004 to 2010; Blue Sky from 2005 to 2010; and ImageMovers from 2007 to 2010. The plaintiffs' attorneys may ask for up to 30 percent of settlement funds for attorneys fees. If the court approves, each of the named plaintiffs would receive up to $10,000 each. Exact payments for each employee will be based on a formula, posted on the class action website. The settlement still must be approved by U.S. District Judge Lucy Koh. A hearing is scheduled for Jan. 19. The lawsuit was filed by Mr. Nitsch, a former DreamWorks Animation senior character effects artist; Wentworth, a former ImageMovers Digital production engineer; and Cano, a digital artist who held jobs at Rhythm & Hues, Walt Disney Feature Animation and ImageMovers Digital. In its settlement, Sony agreed to pay $13 million to the settlement fund, and Blue Sky agreed to contribute $5.95 million. The workers contend that the roots of the anti-poaching agreements go back to the mid-1980s, when George Lucas and Ed Catmull, the president of Steve Jobs' newly formed company Pixar, agreed to not raid each other's employees. Other companies then joined the conspiracy, the suit contended, with agreements on such things as cold calling and notifying each other when making an offer to an employee of another company. Lucasfilm and Pixar were already targets of a Justice Department antitrust lawsuit in 2010, along with Apple, Google, Adobe Systems, Intel Corp. and Intuit, in which the government contended that their "no solicitation" agreements prevented highly skilled employees from commanding better wages and job opportunities. The companies settled the litigation by agreeing to end such practices for a period of five years. In a settlement of a class action civil suit that Judge Koh approved in May 2014, Lucasfilm and Pixar agreed to pay $9 million, and Intuit agreed to pay $11 million. But during the litigation, emails were disclosed that appeared to link other companies to the "no poaching" agreements. The animation workers filed their own class action lawsuit in December 2014. EAGLE MATERIALS: Class Certification Proceedings Ongoing -------------------------------------------------------- Eagle Materials Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2016, for the quarterly period ended September 30, 2016, that in the Domestic Wallboard Antitrust Litigation, the motions filed by direct purchaser plaintiffs and indirect purchaser plaintiffs seeking class certification are ongoing. Since late December 2012, several purported class action lawsuits were filed in various United States District Courts, including the Eastern District of Pennsylvania, Western District of North Carolina and the Northern District of Illinois, against the Company's subsidiary, American Gypsum Company LLC ("American Gypsum"), alleging that the defendant wallboard manufacturers conspired to fix the price for drywall sold in the United States in violation of federal antitrust laws and, in some cases related provisions of state law. The complaints allege that the defendant wallboard manufacturers conspired to increase prices through the announcement and implementation of coordinated price increases, output restrictions, and other restraints of trade, including the elimination of individual "job quote" pricing. In addition to American Gypsum, the defendants in these lawsuits include CertainTeed Corp., USG Corporation and United States Gypsum (together "USG"), New NGC, Inc., Lafarge North America ("Lafarge"), Temple Inland Inc. ("TIN") and PABCO Building Products LLC. On April 8, 2013, the Judicial Panel on Multidistrict Litigation ("JPML") transferred and consolidated all related cases to the Eastern District of Pennsylvania for coordinated pretrial proceedings. On June 24, 2013, the direct and indirect purchaser plaintiffs filed consolidated amended class action complaints. The direct purchasers' complaint added the Company as a defendant. The plaintiffs in the consolidated class action lawsuits bring claims on behalf of purported classes of direct or indirect purchasers of wallboard from January 1, 2012 to the present for unspecified monetary damages (including treble damages) and in some cases injunctive relief. On July 29, 2013, the Company and American Gypsum answered the complaints, denying all allegations that they conspired to increase the price of drywall and asserting affirmative defenses to the plaintiffs' claims. In 2014, USG and TIN entered into agreements with counsel representing the direct and indirect purchaser classes pursuant to which they agreed to settle all claims against them. On August 20, 2015, the court entered orders finally approving USG and TIN's settlements with the direct and indirect purchaser plaintiffs. Initial discovery in this litigation is complete. Following completion of the initial discovery, the Company and remaining co- defendants moved for summary judgement. On February 18, 2016, the court denied the Company's motion for summary judgement. On June 16, 2016, Lafarge entered into an agreement with counsel for the direct purchaser class under which it agreed to settle all claims against it. The court entered an order preliminarily approving this settlement on July 18, 2016. On July 28, 2016, Lafarge entered into an agreement with counsel representing the indirect purchaser class under which it agreed to settle all claims against it. Indirect purchaser plaintiffs filed a motion for preliminary approval of this settlement in September 2016. On July 14, 2016, the Company's motion for permission to appeal the summary judgement decision to the U.S. Court of Appeals for the Third Circuit was denied. Direct purchaser plaintiffs and indirect purchaser plaintiffs filed their motions for class certification on August 3, 2016 and October 12, 2016, respectively. Class certification proceedings are ongoing. "We are unable to estimate the amount of any reasonably possible loss or range of reasonably possible losses. We deny the allegations in these lawsuits and will vigorously defend ourselves against these claims," the Company said. EAGLE MATERIALS: Discovery in Homebuilders' Suit Ongoing -------------------------------------------------------- Eagle Materials Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2016, for the quarterly period ended September 30, 2016, that a group of homebuilders filed on March 17, 2015, a complaint against defendants, including American Gypsum, based upon the same conduct alleged in the consolidated class action complaints. On March 24, 2015, the Judicial Panel on Multidistrict Litigation ("JPML") transferred this action to the multidistrict litigation already pending in the Eastern District of Pennsylvania. Following the transfer, the homebuilder plaintiffs filed two amended complaints, on December 14, 2015 and March 25, 2016. Discovery in this lawsuit is ongoing. EL PASO: "Alvaranga" Suit Alleges Violation of FLSA, NY Labor Law ----------------------------------------------------------------- Nalvin Alvaranga, and Amelia Fernandez Cardona, on behalf of themselves and others similarly situated Plaintiffs, v. EL PASO TAQUERIA GRILL CORP., ROBERTO HERNANDEZ AND DORIAN SIGN HERNANDEZ, In their individual capacities, Defendants, Case No. 2:16-cv- 05788-LDW-ARL (E.D.N.Y., October 18, 2016), alleges that Defendants willfully violated the Fair Labor Standards Act and the New York Labor Law by failing to pay its employees overtime compensation. EL PASO TAQUERIA GRILL CORP. sells and serves food and beverages. The Plaintiffs are represented by: Delvis Melendez, Esq. LAW OFFICE OF DELVIS MELENDEZ 90 Bradley Street Brentwood, NY 11717 Phone: 631-434-1443 Fax: 631-434-1443 ESG USA: "Fuller" Suit Alleges Violation of FLSA, Labor Laws ------------------------------------------------------------ CEDRIC FULLER, on Behalf of Himself and on Behalf of All Others Similarly Situated Plaintiff, V. ESG USA INC., Defendant, Case No. 4:16-cv-03051 (S.D. Tex., October 13, 2016), alleges illegal pay practices by Defendants in violation of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, and the California Labor Code. Defendant is an oilfield services company that provides seismic monitoring services to energy exploration companies. It provides the tools necessary to conduct monitoring activities during drilling and fracturing operations. The Plaintiff is represented by: Don J. Foty, Esq. KENNEDY HODGES, L.L.P. 4409 Montrose Blvd, Suite 200 Houston, TX 77006 Phone: (713) 523-0001 Fax: (713) 523-1116 E-mail: DFoty@kennedyhodges.com - and - Anthony J. Lazzaro, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Phone: 216-696-5000 Fax: 216-696-7005 E-mail: anthony@lazzarolaw.com EVERBANK FINANCIAL: Faces Class Actions in Florida and Delaware --------------------------------------------------------------- EverBank Financial Corp (the "Company"), Teachers Insurance and Annuity Association of America ("TIAA"), TCT Holdings, Inc. ("TCT Holdings") and Dolphin Sub Corporation ("Merger Sub") entered into an Agreement and Plan of Merger, dated August 7, 2016 (the "merger agreement"). Under the merger agreement, Merger Sub, a wholly owned subsidiary of TIAA, will merge with and into the Company (the "merger"), so that the Company is the surviving corporation in the merger and a wholly owned subsidiary of TIAA. In connection with the merger, the Company filed a definitive proxy statement (the "Proxy Statement") with the Securities and Exchange Commission (the "SEC") on September 30, 2016. EverBank Financial Corp said in its Form 8-K Report filed with the Securities and Exchange Commission on October 24, 2016, that two putative stockholder class actions, captioned Bushansky v. EverBank Financial Corp., et al., Case No. 3:16-CV-01224-MMH-JBT, and Parshall v. EverBank Financial Corp., et al., Case No. 3:16- CV-01235-TJC-PDB (collectively, the "Florida actions"), were filed in the United States District Court for the Middle District of Florida, Jacksonville Division in connection with the merger. In addition, after the Company filed its Proxy Statement, on October 12, 2016, an alleged stockholder of the Company filed a third putative stockholder class action, captioned Nahas v. EverBank Financial Corp, et al., Civil Action Case No. 12824-VCS (the "Delaware action" and, together with the Florida actions, the "merger stockholder actions"), in the Court of Chancery of the State of Delaware against the Company and members of the Company's board of directors (the "individual defendants"). The Delaware action alleges, among other things, that the individual defendants breached their fiduciary duties by failing to disclose all material information necessary to allow the Company's stockholders to cast a fully informed vote on the proposed merger. Among other things, the Delaware action alleges that the Proxy Statement failed to include material information concerning: (i) the negotiation of potential employment retention arrangements between TIAA and Company management; (ii) certain details concerning the non-disclosure agreements ("NDAs") the Company entered into with various parties; and (iii) certain items in management's financial projections provided to the Company's financial advisor. The Delaware action seeks, among other things, an order preliminarily and permanently enjoining the proposed merger, a finding that the individual defendants are liable for breaching their fiduciary duties, and an award of attorneys' fees and costs. The Company continues to believe that the claims asserted in the merger stockholder actions are without merit and intends to defend against the merger stockholder actions vigorously. However, to alleviate the costs, risks and uncertainties inherent in litigation and any potential delay of the proposed merger, and without admitting any liability or wrongdoing, the Company is making supplemental disclosures. FANNIE MAE: Shareholders Sue FHFA Over $195BB "Net Worth Sweep" --------------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reported that shareholders have sued the Department of the Treasury and the Federal Housing Finance Agency, claiming their $195 billion "net worth sweep" of Fannie Mae and Freddie Mac in 2012 illegally sent all their dividends to the U.S. Treasury rather than shareholders. The Federal National Mortgage Association (Fannie Mae), and The Federal Home Loan Mortgage Corporation (Freddie Mac), are government-sponsored private companies that own or guarantee trillions of dollars in U.S. home loans. They buy home loans from banks, freeing up the banks to issue more home loans. After the financial crisis began in late 2007, as the value of securitized home loans collapsed, Congress in July 2008 passed the Housing and Economic Recovery Act of 2008, under which Fannie and Freddie received a $188 billion government bailout. The Act also created the Federal Housing Finance Agency and authorized it to appoint itself conservator of the companies, which it did in September 2008. Lead plaintiff J. Patrick Collins a Freddie Mac stockholder, filed the lawsuit on Oct. 20 in Federal Court. "As conservator, HERA charges FHFA to rehabilitate Fannie and Freddie by taking action to put the companies in a sound and solvent condition while preserving and conserving their assets," the complaint states. The Housing and Economic Recovery Act of 2008 also gave the Treasury Department temporary authority to buy stock in Fannie and Freddie under preferred stock purchase agreements. "Under these PSPAs, Treasury received an entirely new class of securities in the companies, known as senior preferred stock ('government stock'), which came with very favorable terms for Treasury," the complaint states. "At the outset, Treasury received $1 billion of government stock (via one million shares) in each company and warrants to acquire 79.9 percent of the common stock of the companies at a nominal price in return for its commitment to acquire government stock in the future." By 2012, Collins says, the companies were generating massive profits: "In fact, in the first two quarters of 2012, the companies posted sizable profits totaling more than $11 billion." But despite the Treasury Department's agreement to return control of the companies to their boards once they became solvent, Collins says, in 2012 it strengthened its grip on the companies "Despite the companies' relative financial health, the Department of the Treasury implemented a deliberate strategy to seize the companies and operate them for the exclusive benefit of the federal government," the complaint states. On Aug. 17, 2012 the Treasury Department and the Federal Housing Finance Agency executed a "Net Worth Sweep" under which Fannie Mae and Freddie Mac became obligated to pay a quarterly dividend to Treasury equal to their entire net worth, according to the complaint. "The Net Worth Sweep has resulted in a massive and unprecedented financial windfall for the federal government at the expense of the companies' private shareholders," the 83-page lawsuit states. "From the fourth quarter of 2012, the first fiscal quarter subject to the Net Worth Sweep, through the second quarter of 2016, the most recently reported fiscal quarter, Fannie and Freddie generated $195 billion in comprehensive income. But rather than using those profits to prudently build capital reserves and prepare to exit conservatorship, Fannie and Freddie instead have been forced to pay $195 billion in 'dividends' to the federal government under the Net Worth Sweep." The Treasury Department has recouped more than $250 billion under the Net Worth Sweep, $63 billion more than it invested in Freddie and Fannie, Collins says. The Federal Housing Finance Agency has said it will keep Fannie and Freddie in a conservatorship until Congress passes housing finance legislation. "Holding the companies hostage in a perpetual conservatorship while awaiting potential legislative action was never an option for FHFA contemplated under HERA," the complaint states. The lengthy lawsuit cites discovery in a case pending in the U.S. Court of Federal Claims. U.S. Court of Federal Claims Judge Margaret Sweeney this month ordered the federal government to turn over documents to plaintiff Fairholme Funds. Fairholme seeks FHFA documents on whether Fannie and Freddie were anticipated to ever be solvent when the agency implemented the Net Worth Sweep, how long the conservatorship was expected to last, and the reasons for the government's decision to claim a dividend equal to the companies' entire net worth. Collins seeks declaratory judgment that the Net Worth Sweep violates the Administrative Procedure Act's prohibition against federal agencies taking action that exceeds their statutory authority; that the Housing and Economic Recovery Act of 2008 violates the Constitution's separation of powers clause because it installed a single director over the FHFA who can be removed by the president only for cause; and he wants the Net Worth Sweep vacated and set aside, "including its provision sweeping all of the companies' net worth to Treasury every quarter." He is represented by Chad Flores -- cflores@beckredden.com -- with Beck Redden in Houston. A FHFA spokeswoman declined comment. FCA US: E-shift System Defective, "Brooks" Class Suit Alleges ------------------------------------------------------------- TAYLOR BROOKS, on behalf of himself and all others similarly situated v. FCA US LLC, a Delaware Limited Liability Company, Case No. 2:16-cv-13677-DML-DRG (W.D. Mo., October 17, 2016), alleges that the Company's E-shift System poses an unreasonable safety hazard to drivers, passengers, and bystanders. FCA installed gearshifts in its 2014-15 Jeep Grand Cherokees, 2012-14 Dodge Chargers, and 2012-14 Chrysler 300 sedans (the "Defective Vehicles") that depart from the traditional "PRND" gearshift in favor of the Monostable electronic gearshift (the "E- shift System"), Mr. Brooks states. In contrast to a conventional gearshift, he contends, the E-shift System never truly shifts or locks into a gear position, but instead remains in a centered or neutral position. As such, he notes, the E-shift System does not provide the tactical or visual feedback that drivers are accustomed to receiving from conventional gearshifts. Hence, he contends, the E-shift System poses an unreasonable safety hazard, and is defective and dangerous from the time of sale, when the vehicle is used as intended and anticipated. Auburn Hills, Michigan-based FCA US LLC is a Delaware limited liability company, and is wholly owned by holding company Fiat Chrysler Automobiles N.V., a Dutch corporation headquartered in London, United Kingdom. FCA, also known as Fiat Chrysler or simply Chrysler, designs, engineers, manufactures and sells vehicles under the Chrysler, Jeep, Dodge, Ram and FIAT brands, as well as the SRT performance vehicle designation. The Plaintiff is represented by: Robert Schultz, III, Esq. SCHULTZ & ASSOCIATES LLP 640 Cepi Drive, Suite A Chesterfield, MO 63005 Telephone: (636) 537-4645 Facsimile: (636) 537-2599 E-mail: rschultz@sl-lawyers.com - and - Gregory F. Coleman, Esq. Lisa A. White, Esq. Mark E. Silvey, Esq. Adam E. Edwards, Esq. GREG COLEMAN LAW PC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 533-0049 E-mail: greg@gregcolemanlaw.com lisa@gregcolemanlaw.com mark@gregcolemanlaw.com adam@gregcolemanlaw.com - and - Edward A. Wallace, Esq. Amy E. Keller, Esq. Tyler J. Story, Esq. WEXLER WALLACE LLP 55 W. Monroe St., Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 Facsimile: (312) 346-0022 E-mail: eaw@wexlerwallace.com aek@wexlerwallace.com tjs@wexlerwallace.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN, P.A. 201 North Franklin St., 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@forthepeople.com FCA US: Faces "Mack" Suit in N.Y. Over Defective E-shift System --------------------------------------------------------------- JANELLA MACK and MICHAEL CRUZ, on behalf of themselves and all others similarly situated v. FCA US LLC, a Delaware Limited Liability Company, Case No. 2:16-cv-13678-DML-DRG (E.D.N.Y., October 17, 2016), alleges that because of the Company's installation of the defective E-shift System in certain vehicles, those Defective Vehicles are unsafe upon purchase and pose an unreasonable risk of harm to drivers, passengers, and bystanders. FCA installed gearshifts in its 2014-15 Jeep Grand Cherokees, 2012-14 Dodge Chargers, and 2012-14 Chrysler 300 sedans (the "Defective Vehicles") that depart from the traditional "PRND" gearshift in favor of the Monostable electronic gearshift (the "E- shift System"), says the complaint. In contrast to a conventional gearshift, the E-shift System never truly shifts or locks into a gear position, but instead remains in a centered or neutral position. As such, the E-shift System does not provide the tactical or visual feedback that drivers are accustomed to receiving from conventional gearshifts. Hence, the E-shift System poses an unreasonable safety hazard, and is defective and dangerous from the time of sale, when the vehicle is used as intended and anticipated. Auburn Hills, Michigan-based FCA US LLC is a Delaware limited liability company, and is wholly owned by holding company Fiat Chrysler Automobiles N.V., a Dutch corporation headquartered in London, United Kingdom. FCA, also known as Fiat Chrysler or simply Chrysler, designs, engineers, manufactures and sells vehicles under the Chrysler, Jeep, Dodge, Ram and FIAT brands, as well as the SRT performance vehicle designation. The Plaintiffs are represented by: Stephen J. Fearon, Jr., Esq. SQUITIERI & FEARON, LLP 32 East 57th Street, 12th Floor New York, NY 10022 Telephone: (212) 421-6492 E-mail: stephen@sfclasslaw.com - and - Edward A. Wallace, Esq. Amy E. Keller, Esq. Tyler J. Story, Esq. WEXLER WALLACE LLP 55 W. Monroe St., Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 Facsimile: (312) 346-0022 E-mail: eaw@wexlerwallace.com aek@wexlerwallace.com tjs@wexlerwallace.com - and - Gregory F. Coleman, Esq. Mark E. Silvey, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 522-0049 E-mail: greg@gregcolemanlaw.com mark@gregcolemanlaw.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com FIDELITY NATIONAL: "Maitchoukow" Suit Invokes FLSA, Cal. Wage Law ----------------------------------------------------------------- ALEXIS MAITCHOUKOW, individually and on behalf of all others similarly situated, Plaintiff, vs. FIDELITY NATIONAL INFORMATION SERVICES, INC., a Georgia corporation, and FIS MANAGEMENT SERVICES, LLC, a Delaware limited liability company, DOES 1 through 25, Defendants, Case No. 2:16-cv-07632 (C.D. Cal., October 13, 2016), seeks to recoup overtime, meal and rest period compensation under the Fair Labor Standards Act and the California Labor Code and applicable Wage Orders of the Industrial Welfare Commission. Fidelity National Information Services, Inc. is a financial services technology company. The Plaintiff is represented by: Aaron C. Gundzik, Esq. Rebecca G. Gundzik, Esq. GARTENBERG GELFAND HAYTON LLP 15260 Ventura Blvd., Suite 1920 Sherman Oaks, CA 91403 Phone: (213) 542-2100 Fax: (213) 542-2101 - and - Marshall A. Caskey, Esq. Daniel M. Holzman, Esq. CASKEY & HOLZMAN 24025 Park Sorrento, Ste. 400 Calabasas, CA 91302 Phone: (818) 657-1070 Fax: (818) 297-1775 FIRST SOLAR: Motion to Intervene and Unseal Court Records Denied ---------------------------------------------------------------- District Judge David G. Campbell of the United States District Court for the District of Arizona denied the motion of a group of plaintiffs in a derivative action against First Solar Inc., to intervene and unseal court records in the securities class action case captioned, Mark Smilovits, et al., Plaintiffs, v. First Solar Incorporated, et al., Defendants, Case No. CV-12-00555-PHX-DGC (D. Ariz.). The Securities Class Action alleges that First Solar and various officers and directors committed securities fraud between 2008 and 2012 by failing to disclose the existence of an "LPM defect" and a "hot climate defect" in solar panels produced by the company. The class plaintiffs allege that the failure to disclose these defects resulted in their purchasing First Solar stock at inflated prices and suffering financial losses when the defects eventually were disclosed. On April 12, 2012, Clifford Tindall, Britt Nederhood, Eng Kwang Tan, and Eric Feigin filed a Derivative Action on behalf of First Solar against 14 of its directors and officers (Derivative Defendants). The Derivative Action alleged that the defendants breached fiduciary duties owed to First Solar and violated various laws by failing to disclose the LPM and hot climate defects, resulting in "hundreds of millions of dollars in damages to First Solar's reputation, goodwill, and standing in the business community." Later in 2012, Derivative Plaintiffs filed an amended complaint, again asserting that demand would be futile. The Court stayed the Derivative Action pending resolution of the Securities Class Action. The stay lasted more than three years, but was lifted by the Court in February 2016. Once the stay was lifted, Derivative Plaintiffs filed a second amended complaint asserting claims for breach of fiduciary duty, insider trading, and unjust enrichment. Derivative Defendants responded with a motion to dismiss, arguing that Derivative Plaintiffs had not shown demand futility as required by Federal Rule of Civil Procedure 23.1. The Court agreed, and on June 30, 2106, dismissed the insider trading and unjust enrichment claims without leave to amend. The Court dismissed the breach-of-fiduciary-duty claim with leave to amend and denied Derivative Plaintiffs' request to unseal evidence in the Securities Class Action, finding that "discovery should not be permitted to supplement allegations of demand futility -- allegations that should reflect facts known to Plaintiffs when they elected not to make a demand on First Solar's board." Derivative Plaintiffs seek to intervene in the Securities Class Action and obtain access to the sealed information, hoping to find support for their demand futility claim. Derivative Plaintiffs argue that the Court should allow permissive intervention because the requirements of Rule 24(b) are met. They further argue that the Court should unseal the documents because the Derivative Defendants have not overcome the strong presumption favoring public access to court records. They further argue that the Court should unseal the documents because the Derivative Defendants have not overcome the strong presumption favoring public access to court records and that the Court should exercise its discretion to refuse intervention because granting the motion would contravene the important policy against derivative plaintiff access to discovery before satisfaction of Rule 23.1. In his Order dated September 30, 2016 available at https://is.gd/lJ2No5 from Leagle.com, Judge Campbell held that the Derivative Plaintiffs' motion to unseal documents is an attempt to maneuver around the well-accepted rule that "discovery may not be used to supplement demand futility allegations" and the Court will exercise its discretion to deny Plaintiffs discovery because allowing them access to sealed records obtained after significant discovery in the Securities Class Action would be tantamount to permitting Plaintiffs to conduct discovery in aid of their demand futility argument. Mark Smilovits is represented by Garrett Webster Wotkyns, Esq. -- gwotkyns@schneiderwallace.com -- SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP -- Jeremy A. Lieberman, Esq. -- jalieberman@pomlaw.com -- and Patrick V. Dahlstrom, Esq. -- pvdahlstrom@pomlaw.com -- POMERANTZ LLP; and Richard W. Gonnello, Esq. -- rgonnello@faruqilaw.com -- FARUQI & FARUQI LLP Smilovits is also represented by: Jennifer Lynn Kroll, Esq. Susan Joan Martin, Esq. MARTIN & BONNETT PLLC 1850 N. Central Avenue Suite 2010 Phoenix, AZ 85004 Tel: (800)952-4750 Johnny Hyldmar is represented by Richard W. Gonnello, Esq. -- rgonnello@faruqilaw.com -- FARUQI & FARUQI LLP Mineworkers' Pension Scheme, et al. are represented by Daniel S. Drosman, Esq. -- dand@rgrdlaw.com -- Danielle S. Myers, Esq. -- danim@rgrdlaw.com -- Jason A. Forge, Esq. -- jforge@rgrdlaw.com -- Luke Brooks, Esq. -- LukeB@rgrdlaw.com -- Mark Solomon, Esq. -- marks@rgrdlaw.com -- Michael J. Dowd, Esq. -- miked@rgrdlaw.com -- Christopher Dennis Stewart, Esq. -- cstewart@rgrdlaw.com -- Cody R. LeJeune, Esq. -- clejeune@rgrdlaw.com -- Darren J. Robbins, Esq. -- darrenr@rgrdlaw.com -- Darryl J. Alvarado, Esq. -- dalvarado@rgrdlaw.com -- Jennifer N. Caringal, Esq. -- jcaringal@rgrdlaw.com -- Lonnie A. Browne, Esq. -- lbrowne@rgrdlaw.com -- and Tor Gronborg, Esq. -- torg@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP Mineworkers' Pension Scheme et al. are also represented by: Andrew S. Friedman, Esq. Kevin Richard Hanger, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT PC 1850 N. Central Avenue Suite 2010 Phoenix, AZ 85004 Tel: (800)952-4750 First Solar Incorporated, et al. are represented by Anna Erickson White, Esq. -- awhite@mofo.com -- Jordan Eth, Esq. --jeth@mofo.com -- James P. Bennett, Esq. -- jbennett@mofo.com -- Judson E. Lobdell, Esq. -- jlobdell@mofo.com -- Mark Ryan Scott Foster, Esq. -- mfoster@mofo.com -- Paul Flum, Esq. -- paulflum@mofo.com -- and Philip T. Besirof, Esq. -- pbesirof@mofo.com -- MORRISON & FOERSTER LLP -- Joseph Nathaniel Roth, Esq. -- jroth@omlaw.com -- and Maureen Beyers, Esq. -- mbeyers@omlaw.com -- OSBORN MALEDON PA FORD MOTOR: Seeks Dismissal of Power Steering Class Action ---------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Ford power steering lawsuit is hanging on while Ford argues the lawsuit doesn't merit class-action certification. The Ford power steering lawsuit was filed in 2014 after owners complained about problems in the 2012-2014 Ford Focus and 2010-2014 Ford Fusion. Owners say that without warning, the cars lose power steering and switch to manual steering, a dangerous condition that can occur while driving. Owners complain it can cost $2,000 for repairs that Ford should pay for due to the alleged defects. The plaintiffs also claim the problem has a bad habit of occurring shortly after the warranties expire, leaving owners to cover repair costs. The plaintiffs claim electrical problems cause the loss of power steering, specifically electromechanical relays in the steering system, relays that Ford says are not defective. According to the lawsuit, Ford knew about the Fusion and Focus power steering problems but refused to recall the cars, then after the lawsuit was filed, the plaintiffs say Ford did recall at least some of the cars. However, the plaintiffs allege it took a push from the lawsuit to convince the automaker to order a recall. In April 2015, Ford recalled the 2013-15 Ford Fusion to repair steering gear bolts that could break due to corrosion, and in May 2015, Ford recalled its 2011-2012 Ford Fusion cars after finding an electrical connection in the steering gear could leave a driver with nothing but manual steering. The plaintiffs argue Ford changed from a hydraulic system to the electromechanical system in an attempt to increase fuel economy by taking pressure off the engine, but instead the changes created the power steering problems. In addition to denying the electromechanical relays are defective, Ford says the claims should be dismissed because the alleged defects, if they exist, occurred during manufacturing at different times and with different models. Due to this, the plaintiffs cannot claim a "common defect" is associated with the Focus and Fusion cars. In asking the judge to deny class certification, the automaker says some of the plaintiffs shouldn't even be included because those people bought used cars or purchased them for business purposes, so by law those folks have no legal right be part of a class-action lawsuit. This isn't the first time Ford has argued the power steering class-action lawsuit shouldn't proceed. In 2015, U.S. District Judge Lucy H. Koh dismissed the suit after saying it was "unduly burdensome," but she gave the plaintiffs 30 days to amend the complaint. They did just that, and Ford promptly filed another motion to dismiss the power steering lawsuit, but the judge denied Ford's motion. The Ford power steering lawsuit was filed in the U.S. District for the Northern District of California -- William Philips et al v. Ford Motor Company. The plaintiffs are represented by Baron & Budd PC, Grant & Eisenhofer PA, and Spilman Thomas & Battle PLLC. GC SERVICES: Certification of Class Sought in "O'Boyle" Suit ------------------------------------------------------------ Barbara O'Boyle moves the Court to certify the classes described in the complaint of the lawsuit styled BARBARA O'BOYLE, Individually and on Behalf of All Others Similarly Situated v. GC SERVICES LIMITED PARTNERSHIP, Case No. 2:16-cv-01384-LA (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, Ms. O'Boyle contends, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Ms. O'Boyle says. She argues that she is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, Ms. O'Boyle asserts. Ms. O'Boyle also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gzoPY4Cq The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com GROSSE POINT PARK, MI: Residents File Sewage Backup Class Action ---------------------------------------------------------------- Barb Hall, writing for Grosse Pointe Patch, reports that about 200 residents gathered outdoors to hear potential legal solutions for damage recovery following record flooding in September. Attorney Philip Bazzo told the crowd they have options for class action litigation against the city. With the authorization of several attendees, he has now filed a class action lawsuit in Wayne County Circuit Court. Mr. Bazzo's meeting was originally scheduled to take place in the Trombly auditorium but the meeting was abruptly cancelled 24 hours before. He moved it outdoors to the playground, according to Grosse Pointe News. On the morning of Sept. 29, torrential rains caused about 250 homeowners from several blocks south of Jefferson to experience backup of sewage into their basements. Residents reported backups from a few inches to several feet after the city was forced to turn off the storm pumps. City officials said they were forced to do so when rising waters threatened transformers in the pumping station. They turned off the pumps to avoid damaging the equipment, the News reports. Many residents said they were frustrated with the lack of response by city officials and attended the meeting to get answers to their questions as to the city's liability and if they could recoup any of their losses. For two hours, Mr. Bazzo attempted to answer residents' questions, but mainly focused on the benefit of filing a class action lawsuit against the city. Mr. Bazzo was scheduled to hold a series of meetings with residents at 6, 7 and 8:00 p.m. Tuesday, Oct. 18, at St. Ambrose Catholic Church, 15020 Hampton, Grosse Pointe Park. The law firm of Liddle & Dubin also was scheduled to hold a meeting with residents at 6:30 p.m., Wednesday, Oct. 19, at St. Ambrose. The city has not scheduled a meeting with residents prior to the next city council meeting at 7 p.m. Monday, Oct. 24, in council chambers in city hall. Mayor Robert Denner directed residents to social media sites, including the city's Facebook page, City of Grosse Pointe Park, and a page set up by residents impacted by the flood, "GPP 2016 Flood." Additional information is available on the city's website, grossepointe park.org. HAMCOR INC: "Coppernoll" Suit Alleges FLSA, Labor Law Violation --------------------------------------------------------------- WYATT COPPERNOLL, on behalf of all others similarly situated, Plaintiff, vs. HAMCOR INC., Defendant, Case No. 4:16-cv-05936-DMR (N.D. Cal., October 13, 2016), seeks to recover full compensation for all denied timely and compliant meal and rest periods, unpaid wages, including unpaid overtime and straight time wages, waiting time penalties, and premium pay for Defendant's alleged violations of the Fair Labor Standards Act, applicable California Labor Code provisions, applicable Industrial Welfare Commission Wage Orders, and the Unfair Business Practices Act, California Business and Professions Code. Hamcor Inc. does business in California and has owned/operated at least five automobile dealerships with service centers. The Plaintiff is represented by: Richard A. Hoyer, Esq. Ryan L. Hicks, Esq. HOYER & HICKS 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 Phone: (415) 766-3539 Fax: (415) 276-1738 E-mail: rhoyer@hoyerlaw.com rhicks@hoyerlaw.com - and - Walter L. Haines, Esq. UNITED EMPLOYEES LAW GROUP, P.C. 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Phone: (562) 256-1047 Fax: (562) 256-1006 E-mail: whaines@uelglaw.com INFOBLOX INC: "Lin" Sues Officers Over Planned Merger ----------------------------------------------------- FRANK LIN, individually and on behalf of all others similarly situated, Plaintiff, v. JESPER ANDERSEN, RICHARD E. BELLUZZO, LAURA C. CONIGLIARO, PHILIP FASANO, FRED M. GERSON, DANIEL J. PHELPS, and EDZARD OVERBEEK, Defendants, Case No. 12834 (Del. Ch., October 19, 2016), is a stockholder suit over a Merger Agreement, pursuant to which Infoblox stockholders will receive $26.50 per share of common stock in cash per Infoblox share. Infoblox, Inc. delivers actionable network intelligence to enterprise, government and service provider customers throughout the world. The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Phone: 610-667-6200 Fax: 610-667-9029 - and - Derrick B. Farrell, Esq. James R. Banko, Esq. Michael Van Gorder, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Phone: (302) 482-3182 Email: jbanko@faruqilaw.com Email: dfarrell@faruqilaw.com Email: mvangorder@faruqilaw.com ISABELLA GERIATRIC: NY Court Certifies Class in Perez-Cortes Suit ----------------------------------------------------------------- In the case captioned, YUDELKA E. PEREZ, et al., Plaintiffs, v. ISABELLA GERIATRIC CENTER, INC., Defendant, Case No. 13-CV-7453 (RA) (S.D.N.Y.), District Judge Ronnie Abrams of the United States District Court for the Southern District of New York adopted almost in its entirety the Report of Magistrate Judge Ronald L. Ellis conditionally certifying Plaintiffs' FLSA claims as collective action. Plaintiffs Yudelka E. Perez and Maritza A. Cortes bring the putative collective and class action against Defendant Isabella Geriatric Center, Inc. (Isabella), the nursing home where they worked as Certified Nursing Assistants (CNAs). Plaintiffs seek unpaid wages under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). On July 1, 2014, the Honorable Ronald L. Ellis, United States Magistrate Judge, conditionally certified Plaintiffs' FLSA claim as a collective action. On October 15, 2015, Plaintiffs moved for certification of their NYLL claim as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). On the same day, Isabella moved to decertify the FLSA collective action. Judge Ellis recommended that the Court grant Plaintiffs' motion to certify the NYLL class under Rule 23(b)(3) and deny Isabella's motion to decertify the FLSA collective action under Section 216(b). Isabella objects that the class certification requirements in Rule 23 were not met and that denial to decertification is inappropriate in the context of Plaintiffs' Rule 23 motion. In his Opinion and Order dated September 30, 2016 available at https://is.gd/XWOQQ2 from Leagle.com, Judge Abrams certified a class of "all individuals employed by Isabella as a CNA at its main campus located on Audubon Avenue in northern Manhattan at any time during the period starting on October 22, 2007 six years prior to the filing of the Complaint until the present." The Court appoints David Harrison and Julie Salwen of Harrison, Harrison & Associates, Ltd. are appointed as class counsel and Plaintiffs Perez and Cortes are appointed as class representatives. The proposed Notice of the NYLL class action is approved. Isabella's motion to decertify the FLSA collective action is denied. Yudelka E. Perez, et al. are represented by David Harrison, Esq. -- dharrison@mayerbrown.com -- Harold William LeMar, Esq. -- lemar.harold@dol.gov -- and Julie Salwen, Esq. -- Julie.Salwen@optoline.com -- HARRISON & ASSOCIATES LTD Isabella Geriatric Center, Inc. is represented by Ernest R. Stolzer, Esq. -- estolzer@bsk.com -- Jennifer Barrie Scheu, Esq. -- jscheu@bsk.com -- and Katherine Susanne McClung, Esq. -- kmcclung@bsk.com -- BOND, SCHOENECK & KING, PLLC -- Kevin Joseph O'Connor, Sr., Esq. -- koconnor@foleymansfield.com -- and Denis Serkin, Esq. -- dserkin@pecklaw.com -- PECKAR & ABRAMSON, P.C. JACK IN THE BOX: Faces "Patel" Suit Under FLSA, Cal. Wage Code -------------------------------------------------------------- KARTIK PATEL, on behalf of himself and all others similarly situated, Plaintiff, vs. JACK IN THE BOX INC., Defendant, Case No. 3:16-cv-02561-H-JLB (S.D. Cal., October 13, 2016), seeks compensation, damages, penalties, and interest to the full extent permitted by the Fair Labor Standards Act, the California Labor Code, and Industrial Welfare Commission Wage Orders for all denied meal and rest periods, and unpaid wages. JACK IN THE BOX INC. operates restaurants. The Plaintiff is represented by: Carolyn Hunt Cottrell, Esq. Schneider Wallace Cottrell, Esq. KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Phone: (415) 421-7100 Fax: (415) 421-7105 - and - John F. Edgar Matthew T. Swift, Esq. EDGAR LAW FIRM LLC 1032 Pennsylvania Avenue Kansas City, MO 64105 Phone: (816) 531-0033 Fax: (816) 531-3322 JACOB TRANSPORTATION: Faces "Brown" Suit Alleging FLSA Violation ---------------------------------------------------------------- WILLIE BROWN and EMMETT WALLACE, as individuals and residents of Nevada; on behalf of themselves and all similarly situated individuals, Plaintiffs, vs. JACOB TRANSPORTATION, LLC, a Nevada Limited Liability Company, D/B/A EXECUTIVE LAS VEGAS, Defendant, Case No. 2:16-cv-02436 (D. Nev., October 19, 2016), seeks to recover alleged unpaid compensation under the Fair Labor Standards Act. Defendant contracts with McCarran International Airport to shuttle travelers between the airport and the airport's economy lot. The Plaintiffs are represented by: Don Springmeyer, Esq. Bradley Schrager, Esq. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, Second Floor Las Vegas, NV 89120 - and - David H. Grounds, Esq. Molly E. Nephew, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 - and - Jason J. Thompson, Esq. Jesse Young, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 JANI-KING OF OKLAHOMA: DOL Sues Over Franchisees Misclassification ------------------------------------------------------------------ Michael D. Thompson, Esq. -- mdthompson@ebglaw.com -- of Epstein Becker & Green, P.C., in an article for The National Law Review, reports that claims that employees have been misclassified as independent contractors remain a focus for private plaintiffs and government agencies. Contracts that exert control over the business of another company may be a particularly fertile source of misclassification claims by plaintiffs seeking unpaid wages. Two recent suits arising from franchise agreements with Jani-King, described by the Third Circuit as "the world's largest commercial cleaning franchisor," demonstrate the potential liability that can arise under these circumstances. Wage Hour Division Sues Based on Misclassification of Franchisees Recently, the Department of Labor filed suit claiming that franchisees of Jani-King of Oklahoma Inc. are actually employees under the Fair Labor Standards Act. The DOL alleges that the franchisees typically have no employees of their own, but rather are individual who are required to pay Jani-King a franchise fee, royalties, and other payments to receive cleaning assignments. The suit contends that Jani-King, among other things, sets customer cleaning rates; negotiates with customers over the cleaning contracts under which franchisees work; reassigns cleaning contracts from one franchise to another; handles "all aspects of how and whether cleaners are paid for the work they perform;" and collects payments from customers. Notably, the only claim in the DOL's Complaint is for an injunction requiring Jani-King to begin keeping records of the wages and hours its alleged employees. The fact that the DOL has chosen to pursue injunctive relief in the absence of any other remedy suggests a strong interest in the principles at issue in the case. Third Circuit Affirms Class Certification Based on Franchise Agreement & Manuals The DOL suit was preceded by a September 21, 2016, decision by the Third Circuit Court of Appeals. That decision upheld a district court's order certifying a Rule 23 class action of approximately 300 Philadelphia-area franchisees who claim to be Jani-King employees. In determining whether an employee has been misclassified as an independent contractor under Pennsylvania law, the Third Circuit stated that "the paramount factor is the right to control the manner in which the work is accomplished." The District Court's opinion had pointed to specific provisions in the Jani-King franchise agreement, policy manual and training manual through which Jani-King (among other things) mandated how often a franchisee communicated with customers and dictated how franchisees addressed customer complaints, maintained their records and solicited business. The District Court stated that "[t]hose documents also demonstrated that Jani-King controlled the franchisees' work assignments, has the right to inspect the franchisees work, and has the ability to change the policies and procedures as it sees fit." Because the Jani-King franchise agreement, policies manual, and training manual were common to the class, they supported the conclusion that common issues would predominate in misclassification cases by franchisees. Therefore, the Third Circuit affirmed the District Court's class certification order. The plaintiffs will therefore be able to pursue class claims against Jani-King under the Pennsylvania Wage Payment and Collection Law. The sometimes-rigid nature of franchise relationships can not only be evidence of the level of control characteristic of an employment relationship, but can also provide a basis for arguing that claims should joined in a Rule 23 class action. Companies, therefore, should consider whether the controls imposed by franchise agreements (or any other contracts) are justified by their potential to create unwanted employment relationships. JENNINGS, MO: Oct. 28 Settlement Claims Filing Deadline Set ----------------------------------------------------------- The St. Louis American reports that if you have ever been charged for a warrant by the City of Jennings, you may have some money coming to you, but the deadline to fill out and postmark your claim is Friday, October 28. Between 2009-2014, the City of Jennings illegally charged people fees for issuing warrants that totaled $531,500. Jennings declared that having and collecting the warrant fee was illegal and entered into the settlement agreement on July 21. There are approximately 6,800 people who are eligible members of this class action settlement. The class action, Lampkin v City of Jennings, was filed on behalf of victims by ArchCity Defenders, Saint Louis University School of Law and the local Campbell law firm in December 2014. For more information on the settlement, visit https://goo.gl/Al7UIr To fill out a claim form, visit https://goo.gl/rGc5jP or go to ArchCity Defender's office in the second floor of Christ Church Cathedral, 1210 Locust St. in downtown St. Louis. For more information, call 1-866-918-0079. JOHNSON & JOHNSON: Seeks Review of Decision in "Goldemberg" Suit ---------------------------------------------------------------- Johnson & Johnson Consumer Companies, Inc., filed an appeal from a court ruling MICHAEL Goldemberg, et al. v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Case No. 13-cv-3073, in the U.S. District Court for the Southern District of New York (White Plains). As previously reported in the Class Action Reporter on Oct. 20, 2016, the Hon. Nelson S. Roman granted, as modified, the Plaintiffs' motion for class certification and appointment of class counsel. The Court certified classes of consumers that purchased Aveeno Active Naturals products in New York, California and Florida. The appellate case is captioned as MICHAEL Goldemberg, et al. v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Case No. 16-3528, in the United States Court of Appeals for the Second Circuit. Plaintiffs-Respondents Michael Goldemberg, on behalf of themselves and all other similarly situated, Annie Le, on behalf of herself and all others similarly situated, and Howard Petlack, on behalf of himself and all others similarly situated, are represented by: Todd Seth Garber, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Ave, Suite 605 White Plains, NY, 10601 Telephone: (914) 298-3281 Facsimile: (914) 824-1561 E-mail: tgarber@fbfglaw.com Petitioner-Defendant Johnson & Johnson Consumer Companies, Inc., is represented by: Harold Paul Weinberger, Esq. KRAMER, LEVIN, NAFTALIS & FRANKEL, LLP 1177 Avenue of the Americas New York, NY 10036 Telephone: (212) 715-9132 Facsimile: (212) 715-8000 E-mail: hweinberger@kramerlevin.com L BRANDS: Zander Sues Over Defective Bath & Body Fragrance ---------------------------------------------------------- Amanda St. Germain, writing for Courthouse News service, reported that a Florida woman filed a federal class action against the owner of the Bath & Body Works brand, claiming the vehicle fragrance product it markets under the "Scentportables" name is defective. In a complaint filed in October 21, in the federal court in Jacksonville, Kira Zander claims L Brands Inc. failed to warn customers that Scentportable refills may "leak or melt, thus releasing the harsh chemicals contained therein and damaging consumers' personal property." Zander says she purchased several Scentportables from her local Bath & Body Works in June 2016, and attached one, as per its design, to a dashboard air conditioning vent in her car. She says less than a month later, the Scentportable melted and leaked onto the console, causing such significant damage that she now has to replace it. Zander says she would not have bought the Scentportable if she had known of the risk the product posed to her car and other property. "While defendant warns the Fragrance Refills contain liquids which can irritate an individual's eyes, and that the fragrance oil should not be swallowed, nowhere on either the Scentportable Holder or the Fragrance Refill with which it is to be used does it state that the liquids can leak out of the product -- even when it is being used as directed," the complaint says. Zander goes on to cite posted complaints of others across the country about L Brands' car fragrance product. According to the complaint, several of these consumers also said their Scentportable melted and leaked while being used per the company's instructions, damaging their vehicle consoles, car seats and steering wheels. One worried consumer asked, " If it can destroy car paint, plastic and the vinyl on your dashboard what will it do to a human's skin, especially a child's?" the complaint says. Zander seeks damages for unfair business practices, negligent misrepresentation, unjust enrichment, breach of implied warranty of merchantability and breach of express warranty. She is represented by Norwood Wilner of Jacksonville, and Janine Pollack -- pollack@whafh.com -- of Wolf Haldenstein Adler Freeman & Herz LLP of New York. Representatives from L Brands did not immediately respond to an emailed request for comment. LANCASTER SCHOOL DISTRICT: Issa's Bid to Certify Class Denied ------------------------------------------------------------- The Hon. Edward G. Smith entered an order in the lawsuit styled KHADIDJA ISSA, Q.M.H., a minor, individually, by and through his parent, Faisa Ahmed Abdalla, ALEMBE DUNIA, ANYEMU DUNIA, V.N.L., a minor, individually, by and through her parent, Mar Ki, SUI HNEM SUNG, AND ALL OTHERS SIMILARLY SITUATED v. THE SCHOOL DISTRICT OF LANCASTER, Case No. 5:16-cv-03881-EGS (E.D. Pa.), denying, without prejudice to refiling after the United States Court of Appeals for the Third Circuit has concluded its review of the matter, the Plaintiffs' emergency motion for provisional class certification and entry of a preliminary injunction protecting similarly situated students. Judge Smith opined that the Court has determined that it lacks jurisdiction to modify the preliminary injunction issued on August 26, 2016, while an appeal of that order is pending before the Third Circuit. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=exPGRQQx LOGAN COUNTY, IL: Brown Seeks to Certify 2 Classes & 2 Subclasses ----------------------------------------------------------------- The Plaintiffs in the lawsuit captioned SANDRA BROWN, LATRASHA JOHNSON, JERRI LINDSEY, and LAVI CONNER, on behalf of themselves and a class of others similarly situated v. ANGELA LOCKE, et al., Case No. 1:15-cv-01447-Mr. (C.D. Ill.), ask the Court to certify a damages class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, as well as an injunctive class pursuant to Rule 23(b)(2). The Class I ("Damages Class") consists of: All individuals who were subjected to the October 31, 2013 cadet training exercise at Logan Correctional Center. The four named Plaintiffs seek to represent Class I. The members of Class I include inmates who are presently in-custody as well as former Logan Correctional Center inmates, who were released at some time after October 31, 2013. Because the claims of the in- custody class members will be analyzed through the lens of the Prison Litigation Reform Act, it is appropriate to divide Class I into two separate subclasses: Subclass A, consisting of: All individuals who were subjected to the October 31, 2013 cadet training exercise at Logan Correctional Center, and who remain in the custody of the Illinois Department of Corrections since that time. Subclass B, consisting of: All individuals who were subjected to the October 31, 2013 cadet training exercise at Logan Correctional Center, and who were subsequently released from the custody of the Illinois Department of Corrections. The Plaintiffs also propose certification of this class under Rule 23(b)(2): Class II ("Injunctive Relief Class"): All women who are currently incarcerated at Logan Correctional Center, and all women who will be incarcerated at Logan Correctional Center in the future, who are at risk of being subjected to a group strip search during a cadet training exercise. Plaintiff Sandra Brown seeks to represent Class II. The Plaintiffs also ask the Court to appoint their counsel, Loevy & Loevy, as counsel for Classes I and II. In this Motion, the four named Plaintiffs seek to represent approximately 200 other prisoners who, like them, who underwent a degrading, traumatic, and painful mass public strip search at Logan Correctional Center on October 31, 2013. Angela Locke is the Warden of the Logan Correctional Center, which is a correctional center operated by the Illinois Department of Corrections. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=DjeXLIz6 The Plaintiffs are represented by: Arthur Loevy, Esq. Michael Kanovitz, Esq. Jon Loevy, Esq. Tara Thompson, Esq. Ruth Brown, Esq. LOEVY & LOEVY 312 N. May St., Suite 100 Chicago, IL 60607 Telephone: (312) 243-5900 E-mail: arthur@loevy.com mike@loevy.com jon@loevy.com tara@loevy.com ruth@loevy.com LOUISIANA: Lewis Seeks Certification of Prisoners Class ------------------------------------------------------- The Plaintiffs in the lawsuit captioned JOSEPH LEWIS, JR., KENTRELL PARKER, FARRELL SAMPIER, REGINALD GEORGE, JOHN TONUBBEE, OTTO BARRERA, CLYDE CARTER, CEDRIC EVANS, EDWARD GIOVANNI, RICKY D. DAVIS, LIONEL TOLBERT, and RUFUS WHITE, on behalf of themselves and all others similarly situated v. BURL CAIN, Warden of the Louisiana State Penitentiary, in his official capacity; STEPHANIE LAMARTINIERE, Assistant Warden for Health Services, in her official capacity; JAMES M. LEBLANC, Secretary of the Louisiana Department of Public Safety and Corrections, in his official capacity; and THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Case No. 3:15-cv-00318-BAJ-RLB (M.D. La.), move for an order certifying the Plaintiffs to represent a class of: all prisoners, who are now or will in the future be confined at Louisiana State Penitentiary ('LSP') and a subclass of inmates with disabilities who are now or will in the future be confined at LSP. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=x17o2fFo The Plaintiffs are represented by: Mercedes Montagnes, Esq. THE PROMISE OF JUSTICE INITIATIVE 636 Baronne Street New Orleans, LA 70113 Telephone: (504) 529-5955 Facsimile: (504) 558-0378 E-mail: mmontagnes@thejusticecenter.org - and - Daniel A. Small, Esq. Jeffrey B. Dubner, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue NW Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: dsmall@cohenmilstein.com jdubner@cohenmilstein.com - and - Justin P. Harrison, Esq. ACLU FOUNDATION OF LOUISIANA P.O. Box 56157 New Orleans, LA 70156 Telephone: (504) 522-0628 Facsimile: (888) 534-2996 E-mail: jharrison@laaclu.org - and - Miranda Tait, Esq. ADVOCACY CENTER 600 Jefferson Street, Suite 812 Lafayette, LA 70501 Telephone: (337) 237-7380 Facsimile: (337) 237-0486 E-mail: mtait@advocacyla.org LYFT INC: Nokchan Appeals N.D. Cal. Decision to Ninth Circuit ------------------------------------------------------------- Plaintiff Michael Nokchan filed an appeal from a court ruling in the lawsuit titled Michael Nokchan v. Lyft, Inc., Case No. 3:15- cv-03008-JCS, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter on Oct. 21, 2016, Judge Joseph C. Spero granted the motion filed by Lyft, Inc., to dismiss the Case. Michael Nokchan brought the putative class action under the Fair Credit Reporting Act and California state law against Lyft, alleging that he was employed by Lyft as an hourly, non-exempt employee working in the state of California. The appellate case is captioned as Michael Nokchan v. Lyft, Inc., Case No. 16-16876, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 14, 2016; -- Transcript is due on December 13, 2016; -- Appellant Michael Nokchan's opening brief is due on January 23, 2017; -- Appellee Lyft, Inc.'s answering brief is due on Feb. 23, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant MICHAEL NOKCHAN, on behalf of himself, all others similarly situated, is represented by: Chaim Shaun Setareh, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com Defendant-Appellee LYFT, INC., a Delaware corporation, is represented by: Archis Ashok Parasharami, Esq. MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3000 E-mail: aparasharami@mayerbrown.com - and - Barrett Lee Schreiner, Esq. Ruth Zadikany, Esq. John Peter Zaimes, Esq. MAYER BROWN LLP 350 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-9539 E-mail: bschreiner@mayerbrown.com rzadikany@mayerbrown.com jzaimes@mayerbrown.com MARICOPA COUNTY, AZ: Arpaio Charged with Contempt of Court ---------------------------------------------------------- Fernanda Santos, writing for The New York Times, reports that federal prosecutors on Oct. 17 charged Sheriff Joe Arpaio of Maricopa County with criminal contempt of court, saying he willfully defied a judge's orders to stop targeting Latinos --- including citizens and legal immigrants -- in traffic stops and other law enforcement efforts, behavior the judge said showed a pattern of discriminatory policing. If convicted, Sheriff Arpaio, 84, who has made a name for himself as an unapologetic pursuer of illegal immigrants, could face up to six months in jail. The authorities were still weighing a charge of obstruction of justice, which could carry more severe punishment. Sheriff Arpaio is seeking re-election in November to his seventh term. The most recent poll, taken before prosecutors signaled that charges would be filed, put Sheriff Arpaio behind his Democratic challenger, Paul Penzone, a former Phoenix police sergeant. Sheriff Arpaio has not backed down. At an event on Oct. 15, he told reporters: "I am going to fight this. I'm not going to resign like some of my critics want me to do. And I am going to be re-elected, and I will continue serving this county." Sheriff Arpaio's lawyer, Mel McDonald, said that the sheriff would plead not guilty by a court filing and that he hoped to prevail before a jury. The court set a tentative trial date of Dec. 6. Here are milestones in the long-running case. DECEMBER 2007 A Mexican citizen legally in the United States sued Sheriff Arpaio and his Maricopa County Sheriff's Office deputies, claiming to have been unlawfully detained for nine hours after a traffic stop because of his ethnicity. Others joined the lawsuit, and the allegations were expanded to include several other examples of treatment that plaintiffs said unfairly singled out Latinos. Judge G. Murray Snow of United States District Court in Phoenix eventually gave the lawsuit class-action status, allowing any Latino stopped by Sheriff Arpaio's deputies since Jan. 1, 2007, to be represented in the case. DECEMBER 2011 Judge Snow issued a ruling prohibiting the Maricopa County Sheriff's Office from stopping and detaining Latinos based only on the suspicion that they were in the country illegally, and barring deputies from using only such suspicions to report a vehicle's Latino occupants to the federal immigration authorities. JUNE 2012 The Supreme Court upheld one aspect of Arizona's immigration law, which required officers to inquire about the immigration status of the people they stop for other reasons. But it overturned provisions that would have allowed officers to arrest people whose only offense was violating federal immigration laws. JULY 2012 A series of discriminatory-policing accusations against Sheriff Arpaio and his deputies were argued during a seven-day trial. An expert witness who analyzed racial and ethnic information culled from traffic stops made by the Sheriff's Office concluded that the length of such stops increased by 21 percent to 25 percent if at least one of the people stopped was Latino. NOVEMBER 2012 Sheriff Arpaio faced a tough re-election fight. Latinos organized, using the trial to increase voter registration and drum up opposition to him at the polls. In the end, Sheriff Arpaio, who was running for his sixth term, won, though by his narrowest margin ever, six percentage points. Judge Snow issued another corrective order, telling the sheriff to carry out sweeping changes at his office to prevent discriminatory policing. Among the changes were cameras to record traffic stops, updated training to explicitly define the limits of deputies' authority and an independent monitor to oversee compliance. MAY 2016 Judge Snow found Sheriff Arpaio and three of his top deputies in civil contempt of court. In a 162-page decision, Judge Snow wrote that for 17 months, Sheriff Arpaio and three of his top deputies had purposely ignored his orders, in part because he wanted to maintain his hard-line stance against illegal immigration to attract votes among his base of staunch conservative supporters. The Sheriff's Office wrongfully detained and turned over for deportation at least 157 immigrants during those 17 months, the judge found. All will be compensated by Maricopa County. The case has already cost county taxpayers more than $50 million, The Associated Press has reported. AUGUST 2016 Judge Snow referred Sheriff Arpaio and the top deputies for criminal prosecution, saying, "The court has exhausted all of its other methods to obtain compliance." OCTOBER 2016 The criminal case is being handled by another federal judge, Susan R. Bolton, who was selected by lottery. During a status hearing on Oct. 4, John D. Keller, a lawyer for the Justice Department, announced that he would file the criminal charges. Sheriff Arpaio issued a defiant response. He said the announcement, coming a day before early voting was to start in Arizona, was "no coincidence" and blamed "the corrupt Obama Justice Department" for trying to influence the election. Meanwhile, a new group called Bazta Arpaio has vowed to mobilize tens of thousands of voters against Sheriff Arpaio on Election. MARION COUNTY, IN: Wrongful Detention Suit Ruling Appealed ---------------------------------------------------------- Dave Stafford, writing for The Indiana Lawyer, reports that a judge's ruling denying class-action certification for a group of people held in the Marion County Jail, sometimes for days after posting bond, has been challenged at the 7th Circuit Court of Appeals. The 7th Circuit on Oct. 14 docketed an interlocutory appeal of an order issued Sept. 30 by Chief Judge Richard Young of the U.S. District Court for the Southern District of Indiana. Judge Young denied certification of a class of people held for up to 72 hours longer than legally authorized after making bail. Judge Young did, however, grant class certification for people who were "re-arrested" by the Marion County Sheriff's Department after they were released on their own recognizance, found not guilty or acquitted, or who should have been released to community corrections for electronic monitoring. Plaintiffs in the suit claim Marion County Sheriff John Layton has a policy or practice of holding inmates for up to 72 hours after they are ordered released. The suit filed in December 2014 and amended two months later claims potentially thousands of people were held longer than jailers were legally allowed. Plaintiffs allege in some cases people were held up to five days after their release orders were approved. The Sheriff's Department has blamed computer systems that were inadequate to ensure the timely release of prisoners as a key problem that resulted in the detentions. Judge Young wrote in his order that common issues don't predominate among those detained after they were ordered released on bond, and therefore certification of that class would be inappropriate. First, those held less than 48 hours would be subject to different burdens of proof, because Young said caselaw presumes that length of detention to be reasonable. "Second, a number of variables such as staffing levels during the time the inmate was to be processed; the number of holds on the inmate; the extent of the inmate's criminal history; the number of aliases used by the inmate; and whether there are any unusual circumstances present at the time the inmate is to be processed such as internet outages; can complicate the timing of a detainee's release," he wrote in denying class certification to that group. The classes that plaintiffs sought include those who were wrongfully detained in the jail from Dec. 19, 2012, forward. The case is Michael Driver, Terry Clayton, Michael Boyd and Nicholas Swords, et al., v. Marion County Sheriff, 1:14-CV-2076. MICHIGAN: Minors' Parents Sue MDE Over Lead in Drinking Water ------------------------------------------------------------- D.R., as a minor through parent and next friend Dawn Richardson, A.K., as a minor through parent and next friend, Angy Keelin, C.D.M., as a minor through parent and next friend Crystal McCadden, C.M., as a minor through parent and next friend Crystal McCadden, J.T., as a minor through parent and next friend Nakiya Wakes, N.S, as a minor through parent and next friend Nakiya Wakes, J.W., as a minor through parent and next friend Kathy Wright, C.D., as a minor through parent and next friend Twanda Davis, D.K. as a minor through parent and next friend Rachel Kirksey, M.K. as a minor through parent and next friend Rachel Kirksey, O.N., as a minor through parent and next friend Manita Davis, D.T. as a minor through parent and next friend Manita Davis, D.D. as a minor through parent and next friend Willie Daniels, C.W. as a minor through parent and next friend Chandrika Walker, J.B. as a minor through parent and next friend Jeree Brown, individually and on behalf of all similarly situated persons, Plaintiffs, v. Michigan Department of Education, Genesee Intermediate School District, Flint Community Schools, Defendants, Case No. 2:16-cv-13694-AJT-APP (E.D. Mich., October 18, 2016), seeks declaratory and injunctive relief, brought pursuant to federal and state law, to vindicate the rights of approximately 30,000 school-age children residing in Flint who currently have, or who have been allegedly placed at risk of developing, a disability due to elevated levels of lead in the drinking water over an extended time period of at least eighteen months. Michigan Department of Education is a state agency of Michigan, in the United States. MDE oversees public school districts in the state. The Plaintiffs are represented by: Kary L. Moss, Esq. Kristin L. Totten, Esq. Daniel S. Korobkin, Esq. Michael J. Steinberg, Esq. ACLU FUND OF MICHIGAN 2966 Woodward Ave. Detroit, MI 48201 Phone: (313) 578-6800 E-mail: kmoss@aclumich.org ktotten@aclumich.org dkorobkin@aclumich.org msteinberg@aclumich.org - and - Gregory G. Little, Esq. Lindsay M. Heck, Esq. Walter Ciacci, Esq. Dominique Forrest, Esq. Laura Grai, Esq. 1155 Avenue of the Americas New York, NY 10036-2787 Phone: (212) 819-8200 E-mail: gregory.little@whitecase.com lindsay.heck@whitecase.com walter.ciacci@whitecase.com dominique.forrest@whitecase.com laura.grai@whitecase.com - and - David G. Sciarra, Esq. Jessica Levin, Esq. EDUCATION LAW CENTER 60 Park Place, Suite 300 Newark, NJ 07102 Phone: (973) 624-1815 E-mail: dsciarra@edlawcenter.org MICROSOFT CORP: Gender Discrimination Class Action Can Proceed -------------------------------------------------------------- Matt Day, writing for Seattle Times, reports that a federal judge has denied Microsoft's request to dismiss key claims of a class- action gender-discrimination suit against the company, allowing the case to proceed. U.S. District Judge James Robart of Seattle said in an order on Oct. 14 that three women suing Microsoft were specific enough in their claims and presented a plausible case that Microsoft's pay and promotion practices had the effect of treating male and female engineers differently. "At a minimum, the parties have set forth multiple plausible causes of the alleged disparate impact on female technical employees at Microsoft," Judge Robart said. The ruling sets the stage for what is likely to be months of wrangling over the procedural aspects of the lawsuit, including what documents Microsoft and the plaintiffs must turn over to the other side, and the roster of outside experts both can ask to weigh in. The Oct. 14 ruling hinged on the plaintiffs description of an important pillar of their case: Microsoft's controversial former performance review system. The method, dubbed stack ranking, evaluated employees and ranked them from best to worst on a scale of one to five. It also set a cap on the portion of employees who could receive each ranking. Managers would get together twice a year to sort out their employees into the curve, a process that was then reviewed by other, more senior leaders. That system, plaintiffs say, included subjective criteria, operated "in an environment overwhelmingly dominated by men," and had the result of awarding fewer raises and promotions to women in engineering roles than their male counterparts. The review system that replaced stack ranking in late 2013, called Connect, is functionally "stack ranking by a different name," the plaintiffs say. Microsoft says the review system was not arbitrary, and has denied the women's allegations of discrimination. Asked for comment on the Oct. 14 order, a Microsoft spokeswoman in an emailed statement said the company was committed to a diverse workforce, and "to a workplace where all employees have the chance to succeed." The order contained one win for the Redmond company by establishing a narrower set of would-be class members in the suit. Judge Robart agreed with Microsoft's proposal to limit the potential class bringing claims under Washington discrimination law to Sept. 16, 2012, three years before former Microsoft employee Katie Moussouris filed the suit in federal court. Lawyers for Moussouris had pushed for the putative class to stretch back to May 2011, a date that corresponds to Moussouris' 2014 filing of discrimination claims with state and federal regulators. The next step in the case, document disclosure, is scheduled to continue through December. Judge Robart in September sharply criticized Microsoft for disregarding his orders earlier in that process, saying a law firm Microsoft had hired "doesn't speak English" and ordering Microsoft's senior legal officers to sign off on all future filings in the case. In August, the plaintiffs' lawyers told the court that U.S. Labor Department investigators had found preliminary evidence of gender-based discrimination at the company, though it's unclear what the behavior was or which Microsoft units the findings targeted. The company said at the time that it disagreed with the assessment. MONSANTO CO: Faces "Martin" Suit Over Roundup False Ad ------------------------------------------------------ ELISABETH MARTIN, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. MONSANTO COMPANY, Defendant, Case No. 5:16-cv-02168 (C.D. Cal., October 13, 2016), seeks to enjoin Monsanto from continuing to falsely advertise the number of gallons its herbicide Roundup Concentrates can make. Monsanto is one of the world's largest agricultural companies, and has long been manufacturing and selling herbicides to control weeds. The Plaintiff is represented by: Jack Fitzgerald, Esq. Trevor M. Flynn, Esq. Melanie Persinger, Esq. THE LAW OFFICE OF JACK FITZGERALD, PC Hillcrest Professional Building 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Phone: (619) 692-3840 Fax: (619) 362-9555 E-mail: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com melanie@jackfitzgeraldlaw.com - and - Sidney W. Jackson, III, Esq. JACKSON & FOSTER, LLC 75 St. Michael Street Mobile, AL 36602 Phone: (251) 433-6699 Fax: (251) 433-6127 MYLAN PHARMACEUTICALS: Faces "Corcoran" Suit Over EpiPen Prices --------------------------------------------------------------- KIMBERLY CORCORAN, and TODD BEAULIEU, individually and on behalf of all others similarly situated, Plaintiffs, v. MYLAN PHARMACEUTICALS INC., and MYLAN SPECIALTY L.P., Defendants, Case No. 3:16-cv-05983-JSC (N.D. Cal., October 17, 2016), seeks declaratory and injunctive relief, and recovery of payments and overpayments made from at least the year 2007 through the present, as a result of Defendants' alleged unlawful scheme involving unfair, exorbitant, and unconscionable price increases for EpiPen(R) products. Defendants are subsidiaries and/or divisions of Mylan N.V., a global generic and specialty pharmaceutical company. Plaintiffs are represented by: Jeffrey Lewis, Esq. Jacob Richards, Esq. KELLER ROHRBACK L.L.P. 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Phone: (510) 463-3900, Fax: (510) 463-3901 E-mail: jrichards@kellerrohrback.com jlewis@kellerrohrback.com - and - Matthew J. Preusch, Esq. KELLER ROHRBACK L.L.P. 1129 State Street, Suite 8 Santa Barbara, CA 93101 Phone: (805) 456-1496 Fax: (805) 456-1497 E-mail: mpreusch@kellerrohrback.com - and - Derek W. Loeser, Esq. Gretchen Freeman Cappio, Esq. Michael Meredith, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Phone: (206) 623-1900 Fax: (206) 623-3384 E-mail: dloeser@kellerrohrback.com gcappio@kellerrohrback.com mmeredith@kellerrohrback.com NEW YORK: Class Suit Alleges Long Term Care Program Abuses ---------------------------------------------------------- Christine Stuart, writing for Courthouse News Service, reported that condemning the privatization of Medicaid services, three elderly New Yorkers brought a federal class action in U.S. District Court for the Southern District of New York in Manhattan, that says the state has willfully ignored abuses in the long-term care program. Madeline Bucceri, 93, Patricia Trujillo, 71, and Lourdes Lo, 74, say New York knows that the private, not-for-profit companies with which it has contracted are "systematically failing to provide medically necessary services." Each claims to have asked for increased home care, only to have their requests either ignored or denied after a lengthy delay. In addition to New York Health Department Commissioner Howard Zucker, the complaint takes aim at Healthfirst, the private nonprofit manages two MLTCs, short for managed long-term care plans, for the state. The complaint says the "hands-off manner in which New York is privatizing Medicaid services" is reducing the services that Medicaid recipients need to stay in their homes, and putting their health at risk. The class says New York knows that the Healthfirst plans are "systematically failing to provide medically necessary services." Neither the Health Department nor Healthfirst would comment on pending litigation. There are currently 16,000 New Yorkers receiving services under the program. Hoping to represent them in this class action are the Legal Aid Society and attorney Jeffrey Kessler -- jkessler@winston.com -- Winston and Strawn. The 51-page complaint counts more than 100 administrative hearings in which the health department heard testimony regarding the denial of requests for additional home care hours. In 80 percent of those cases the decision was reversed or the Healthfirst administrator "caved and changed or withdrew their original decisions, effectively acknowledging that their original decisions were wrong," according to the complaint. Bucceri, Trujillo and Lo say "this persistent level of error was a dead giveaway that the Healthfirst MLTC plans were improperly limiting recipients' home care services." The Health Department did nothing in response, however, meaning that it either "is failing to oversee and monitor the Healthfirst MLTC plans or it is turning a blind eye to the abuses it sees." "This heartless and calculating pattern of behavior leaves vulnerable Medicaid recipients at risk of serious injury or institutionalization," the complaint continues. Lead plaintiff Bucceri says she used to own and operate a salon in Bensonhurst, Brooklyn, before moving to her current apartment on Staten Island. She lives alone, with no family or friends to assist with daily living activities. Suffering from worsening pain in her hip and leg, Bucceri this summer requested an increase to the 31 hours per week of home care services she receives from her Healthfirst plan, Senior Health Partners. The defendants didn't increase the services, however, and Bucceri ended up falling while walking to the bathroom. Once hospitalized, a nurse requested that the plan increase Bucceri's services to 10 hours per day or 70 hours per week. Bucceri was approved for an additional two hours per week, boosting her services to 33 hours per week. After coming home from the hospital, Bucceri fell again reaching for her walker. Her attorneys requested an expedited hearing for an increase in hours because "increased and uncontrolled pain and urinary frequency." Senior Health Partners denied the request on Sept. 8. The complaint says Bucceri sometimes has to put on her pajamas in the afternoon at 1 or 2 because she cannot dress herself once her personal care assistant leaves. "Without additional home care hours to assist her with basic activities of daily living such as toileting, walking, bathing and dressing, Ms. Bucceri will likely continue to fall, incur unnecessary pain and bodily injuries and suffer emotional harm," the complaint states. The complaint, which is similar to one filed earlier this year in U.S. District Court for the Eastern District of New York, complains that the Department of Health "unconstitutionally delegated legislative and its rule-making authority over New York's Medicaid Plan to the Healthfirst Enterprise, an amalgam of private parties with a financial interest in reducing how much is spent on home care services for New York's Medicaid recipients who depend on those services so heavily." It goes onto to say that the health department is looking the other way while the private company "guts the home care services upon which New York's vulnerable Medicaid recipients depend." The class says Healthfirst must begin accepting, recording and timely processing all requests for increases in home care hours, plus notify recipients in writing of what actions it took. The Department of Health must acknowledge its due-process role under the Medicaid Act, the complaint says. In response to the lawsuit, the Health Department would say only that "the Medicaid Program provides home care services to those with complex needs to avoid institutionalization and remain in home." Healthfirst said it has not yet been served with the lawsuit. "Our primary concern at all times is the health and wellbeing of all our members," the company added in a statement. NU SKIN: Class Action Settlement Obtains Final Court Approval ------------------------------------------------------------- Josh Long, writing for Natural Products Insider, reports that a federal judge in Salt Lake City gave final approval to a settlement in a putative class-action lawsuit filed two years ago against Nu Skin Enterprises Inc. and its senior executives. The US$47 million settlement resolves allegations that the company and its executives failed to disclose an unlawful pyramid scheme in China. Judge Jill N. Parrish also awarded attorney's fees in the amount of $13.6 million plus interest -- reflecting 29 percent of the settlement fund -- and the payment of litigation expenses of approximately $449,000 plus interest. The judge found the settlement was "fair, reasonable and adequate" and in the settlement class's best interests. She dismissed the amended complaint with prejudice. Neither Provo, Utah-based Nu Skin nor class counsel in the case, Labaton Sucharow LLP, immediately responded Oct. 17 to a request for comment. The Salt Lake Tribune first reported on final approval of the settlement. Separately, Judge Parrish on Oct. 12 gave final approval to a settlement in a derivative lawsuit that was filed on behalf of Nu Skin. As INSIDER previously reported, Nu Skin agreed to adopt certain corporate governance measures and pay approximately $1.28 million in plaintiffs' attorney fees and expenses to resolve allegations that Nu Skin's officers and directors allowed the company to operate as an unlawful pyramid scheme in China. "We believe the settlement agreement is in the best interests of the company's stakeholders as it avoids potentially lengthy, costly, distracting and time-consuming litigation," a Nu Skin spokesperson said this summer in an emailed statement. "The settlement is not an admission of wrongdoing by Nu Skin or its directors or officers. Nu Skin remains committed to protecting consumers and driving long-term value for shareholders and will continue to take the necessary steps to achieve this important objective." The class-action lawsuit, filed on Jan. 21, 2014 in Utah federal court against Nu Skin and its senior executives, alleged the company failed to disclose to investors that its Chinese subsidiary was violating multi-level marketing (MLM) regulations and laws. That was the same month two Chinese government agencies revealed they were investigating Nu Skin following a Chinese newspaper report that questioned the direct seller's business practices. Nu Skin did not admit any wrongdoing as part of the settlement in the class-action lawsuit. In February, Nu Skin said it didn't expect the $47 million settlement to result in a net charge to its income statement because the company anticipated its insurers would cover the payment. Parrish, the judge who oversaw the class-action lawsuit, held a final settlement hearing on Oct. 5. Only one person objected to the settlement, according to her Oct. 12 order granting final approval of the agreement. Michael Nauman of Naperville, Illinois reported spending about $1,804 on May 10, 2012 purchasing Nu Skin "call options"; In a letter to the clerk of court, the investor indicated he suffered a total loss after the options expired the following month and were "worthless." "If the defendants are found to have made false and misleading statements and omissions concerning how Nu Skin was operating its business in Mainland China, I feel the plaintiffs/investors should be made whole," Mr. Nauman wrote. In her order approving the settlement, Parrish said she "considered" and "overruled" the sole objection. Parrish also awarded the lead plaintiff, State-Boston Retirement System, $9,800 as a reimbursement for its prosecution of the case on behalf of the settlement class. In September in a separate development, Nu Skin revealed reaching an agreement with the Securities and Exchange Commission (SEC) regarding a previously disclosed investigation. The probe concerned a charitable contribution in China in 2013. The SEC found Nu Skin's "books and records and internal controls" related to the contribution were inadequate, and the company agreed to pay $765,688 to the SEC, according to a Sept. 20 regulatory filing. However, Nu Skin did not admit or deny the SEC's findings as part of the settlement. In the same filing, Nu Skin offered its investors some good news. Citing in part "the success of recent product introductions and favorable currency trends," the company said it anticipated "delivering third-quarter revenue at the high end of, or slightly above, its previous guidance of $560 to $580 million." Nu Skin (NYSE: NUS) is an MLM of personal care and nutritional products in 54 markets around the world. The company is scheduled to release its third-quarter results on Nov. 3. PINNACLE FINANCIAL: Reached Deal to Settle Bushansky Litigation --------------------------------------------------------------- Avenue Financial Holdings, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on October 24, 2016, that on October 18, Pinnacle Financial Partners, Inc. (the "Company") entered into a settlement agreement with the plaintiff that had filed a purported class action complaint in the Chancery Court for the State of Tennessee, 20th Judicial District at Nashville, styled Stephen Bushansky, on behalf of himself and all others similarly situated versus Avenue Financial Holdings, Inc. ("Avenue"), Ronald L. Samuels, Kent Cleaver, David G. Anderson, Agenia Clark, James F. Deutsch, Marty Dickens, Patrick G. Emery, Nancy Falls, Joseph C. Galante, David Ingram. Stephen Moore, Ken Robold, Karen Saul and Pinnacle Financial Partners (Case No. 16- 489-IV), in connection with the Company's now completed merger with Avenue. On May 18, 2016, the Bushansky litigation was transferred to the Davidson County, Tennessee Business Court Pilot Project (the "Business Court"). The parties to the Bushansky litigation have agreed on a Stipulation of Settlement, a Proposed Order on Notice and Scheduling, a Proposed Notice to class members, and a Proposed Final Order and those documents have been submitted to the Business Court for its approval. In connection with the settlement, the parties have agreed on an amount of attorneys' fees and expenses, $300,000, that the plaintiff's counsel will request from the Business Court and to which the defendants will not object. The proposed settlement is conditioned upon, among other things, preliminary approval by the Business Court, as well as final approval of the proposed settlement after notice is given to Avenue's shareholders. The Company believes the claims asserted in the Bushansky action are without merit but has entered into the settlement to avoid the costs, risks and uncertainties inherent in litigation. There can be no assurance that the Business Court will approve the settlement in all respects and if the Business Court does not approve the proposed settlement, the proposed settlement as contemplated by the Stipulation of Settlement and memorandum of understanding the parties entered into in June 2016 could become void. ROLLS ROYCE: NSW Supreme Court Issues Class Closure Ruling ---------------------------------------------------------- Keely Graham, Esq. -- kgraham@mcwnsw.com.au -- of McInnes Wilson Lawyers, in an article for Lexology, reports that in Lam v Rolls Royce Plc (no 5) [2016] NSWC 1332 the NSW Supreme Court made class closure rules that every defendant, and their insurers, dream of. The Rolls Royce class action was brought on behalf of those persons who were on board a flight when the Rolls Royce engine failed and who suffered psychological injury as a result of the experience consequent upon the engine failing. In an earlier judgment (Lam No. 3) Justice Beech-Jones closed the class determining that passengers with overseas contact details who did not register with the plaintiff's solicitors would be removed from the class and that passengers with Australian contact details who did not register with the plaintiff's solicitors were to remain in the class but they could not participate in any settlement or resolution without the leave of the Court. To facilitate the orders, notices were sent to Australian-addressed group members noting that if they did not register their claim by the relevant deadline they would be bound by the settlement of the class action but would not, without obtaining the Court's leave, be entitled to claim a share of any settlement moneys and would lose the right to sue the defendant separately for any injury or for compensation. In this decision (Lam No. 5) Rolls Royce had sought Orders dismissing the claims of the remaining 84 unregistered group members and also seeking an Order confirming that it operates as a final determination of their rights to claim damages or relief against Rolls Royce. Justice Beech-Jones noted that the group members who had chosen not to register or to actively opt out had been given sufficient opportunity to do either and concluded that either such group members did not wish to pursue a claim or did not have material to put forward to support a claim. This judgment enables settlement of the class action to occur with a defined number of claimants but, even more significantly, any remaining potential class members (from Australia) who had not actively opted out of the class action, can no longer make a claim. This means that defendants (and their insurers) have a cap on other potential claims, when considering an amount at which to settle the existing class action. This is likely to encourage: 1. Earlier resolution (see my comments on the GIO/AMP class action below); and 2. Greater certainty. It puts pressure on potential class participants to actually form a position and put up their hand rather than "freeloading" while others take the risk and they "wait and see". Furthermore, in the GIO/AMP shareholder class action (King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Limited)) a significant concern for Respondents was that if settlement occurred with identified class members, how many other investors and with what potential value of claims, would subsequently seek to make a claim against the defendants? In GIO/AMP, there were approximately 67,000 shareholders who owned and retained shares during the period of the hostile takeover bid. Of these, approximately 22,000 engaged the class action lawyers. Class members did not wish to settle the class action for a fixed sum, without knowing amongst how many class members it needed to be shared. For Respondents, a significant problem with potential early resolution was whether, if settlement with the identified class took place, a number of subsequent claims would be brought, meaning that costs and potential settlement sums would have to be incurred all over again (which is exactly what was sought to be avoided by or capped by participating in a settlement). The great unknown of this potential sum made settlement difficult. Ultimately, settlement of GIO/AMP class action was aided by the comfort provided by limitation periods. It will be a delight if the precedent set in Lam v Rolls Royce PLC (No. 5) is followed and more settlements occur well prior to expiry of limitation periods and potential claimants in class actions are forced to make an early decision on whether they intend to join a class by specifically and actively reserving their rights or waiving rights of recovery completely. RUBIN & ROTHMAN: Gamil Seeks Final Approval of Class Settlement --------------------------------------------------------------- Roei Gamil, on consent of Defendant, Rubin & Rothman, LLC, moves the Court for an order certifying the case styled ROEI GAMIL, an individual; on behalf of himself and all others similarly situated v. RUBIN & ROTHMAN, LLC, a New York Limited Liability Company; and JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Case No. 2:15-cv-00981- ARL (E.D.N.Y.), to proceed as a class action and granting final approval of the Parties' class settlement agreement. Specifically, the Plaintiff moves the Court for an order: (1) granting final approval of the Settlement on the terms and conditions set forth in the Parties' Settlement Agreement and the Court's Order Granting Preliminary Approval; (2) finally certifying a class, for settlement purposes only; (3) releasing the Defendant from all claims and dismissing with prejudice all claims of Class Members, who did not timely exclude themselves from the Settlement; (4) approving payments to the Plaintiff, Class Members, and Class Counsel; and (5) retaining continuing jurisdiction over the settlement proceedings, to ensure the effectuation thereof in accordance with the Agreement and Final Approval Order. On February 25, 2015, the Plaintiff filed the class action lawsuit, which alleged that Rubin & Rothman violated the Fair Debt Collection Practices Act by mailing consumers initial collection letters that failed to inform consumers, inter alia, they must dispute their debts in writing to be considered valid. On June 14, 2016, the Court entered an Order granting Preliminary Approval to the Parties' Class Settlement Agreement. The Court's Order preliminarily certified the Settlement Class of those individuals, who meet this definition: All consumers with addresses in the State of New York to whom Rubin & Rothman mailed an initial written communication, which failed to state that the consumer must dispute the debt in writing in order to obtain verification, during the period beginning February 25, 2014, and ending March 18, 2015. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FxxOrApE The Plaintiff is represented by: Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07083-4870 Telephone: (973) 379-7500 Facsimile: (973) 532-5868 E-mail: andrew@sternthomasson.com SANTANDER CONSUMER: Court Tosses Levins' Bid to Certify Class ------------------------------------------------------------- The Hon. Charles P. Kocoras of the U.S. District Court for the Northern District of Illinois entered a memorandum opinion and order in the lawsuits styled (i) HENRY ESPEJO, individually and on behalf of all others similarly situated v. SANTANDER CONSUMER USA, INC., an Illinois corporation, Case No. 11 C 8987, and (ii) FAYE LEVINS, individually and on behalf of all others similarly situated v. SANTANDER CONSUMER USA, INC., an Illinois corporation, Case No. 1:12-cv-09431: -- denying Santander's motion for summary judgment in Espejo Case; -- granting in part Santander's motion for summary judgment in Levins Case; and -- denying Faye Levins' motion for class certification. The matter is set for status hearing on November 1, 2016, at 9:30 a.m. The consolidated class actions raise claims against Defendant Santander Consumer U.S.A., Inc., by two Plaintiffs (Henry Espejo and Faye Levins) for violations of the Telephone Consumer Protection Act. Faye Levins has sought certification of this class and subclass: TCPA Class: All individuals called by Santander or on its behalf, using the Aspect dialer system between December 19, 2007 and the present, on a cellular telephone number to which the individual was the subscriber, and which was not (a) listed in any application for credit or financing submitted to Santander or any of its originating creditors, (b) otherwise volunteered by the individual directly to Santander orally or in writing prior to the time of Santander's first call to that number, as reflected in Santander's records, or (c) verified prior to being called for the first time by Santander, as reflected in Santander's records. Number Trapping Subclass: All members of the TCPA Class called by Santander or on its behalf, on a cellular telephone number that Santander captured through calls made to its IVR system (as indicated by its identification in Santander's records with the notation 'IVR' followed by an Arabic numeral (e.g., IVR1, IVR2, etc.)). A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=bw5lmb9H SER SECURITY: "Irish" Suit Seeks to Recoup OT Pay Under FLSA ------------------------------------------------------------ BRIAN IRISH, on behalf of himself and others similarly situated, Plaintiff, v. SER SECURITY SERVICES, INCORPORATION, and PSERDA DICKERSON, individually, Defendants, Case No. 1:16-cv-03891-LMM (N.D. Ga., October 18, 2016), seeks to recover alleged unpaid overtime compensation, liquidated damages, and other relief under the Fair Labor Standards Act. Defendants provide professional security of unarmed and armed security officers for apartment complexes, condominiums, and commercial businesses in retail establishments. The Plaintiff is represented by: Adian R. Miller, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, GA 30343-1007 Phone: (404) 965-8811 Fax: (404) 965-8812 E-mail: ARMiller@forthepeople.com SGE MANAGEMENT: 5th Cir. Affirms Class Certification in "Torres" ---------------------------------------------------------------- The Court of Appeals, Fifth Circuit, affirmed en banc the district court's order granting class certification in the case captioned, JUAN RAMON TORRES; EUGENE ROBISON, Plaintiffs-Appellees, v. S.G.E. MANAGEMENT, L.L.C.; STREAM GAS & ELECTRIC, L.T.D.; STREAM S.P.E. G.P., L.L.C; STREAM S.P.E., L.T.D.; IGNITE HOLDINGS, L.T.D; ET AL, Defendants-Appellants, Case No. 14-20128 (5th Cir.). The Plaintiffs-Appellees Juan Ramon Torres and Eugene Robison brought a civil action under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sections 1961-68, alleging that Stream Energy, through its multi-level marketing program, Ignite, as well as a number of other defendants, operated a fraudulent pyramid scheme. The Plaintiffs allege that the fraud has caused them financial losses. They sought to certify a class consisting of those IAs who have lost money as a result of participating in Ignite's program. The Defendants asserted primarily that the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) is not met because individual issues of reliance will necessarily lead to an individualized causation inquiry under RICO. They also disagreed with the Plaintiffs' arguments that reliance is not a required element under RICO. The district court rejected class certification on the Plaintiffs' theory that depends on specific misrepresentations, concluding that whether the Plaintiffs relied on the array of alleged misrepresentations would require an individualized inquiry. But that court found that class certification was appropriate as to the Plaintiffs' other theories that depend on common proof of a pyramid scheme. On appeal, the Defendants do not dispute the district court's Rule 23(a) determination and contend only that it erred in finding Rule 23(b)(3)'s predominance requirement was met. The Fifth Circuit panel consists of Judges Jacques L. Weiner, Jr., Gregg J. Costa, Carl E. Stewart, James L. Dennis, Jerry E. Smith, Edward C. Prado, Jennifer Walker Elrod, Leslie H. Southwick, James E. Graves, Jr. and Stephen A. Higginson. In the Order dated September 30, 2016 available at https://is.gd/8R8FfT from Leagle.com, the Fifth Circuit held that the district court did not abuse its discretion when it granted class certification and that the Defendants failed to demonstrate that individualized issues will affect even a single class member at trial. Juan Ramon Torres, et al. are represented by Harry Max Reasoner, Esq. -- hreasoner@velaw.com -- and John Patrick Elwood, Esq. -- jelwood@velaw.com -- VINSON&ELKINS -- Robert Brooks Gilbreath, Esq. -- rgilbreath@hptylaw.com -- HAWKINS PARNELL THACKSTON & YOUNG -- Thomas C. Goldstein, Esq. -- tgoldstein@goldsteinrussell.com -- GOLDSTEIN & RUSSELL PC SGE Management, LLC, et al. are represented by Mary Ellen E. Signorille, Esq. -- msignorille@aarp.org -- ACEBC -- James C. Ho, Esq. --jho@gibsondunn.com -- and Prerak Shah, Esq. -- pshah@gibsondunn.com -- GIBSON DUNN -- Craig G. Goodman, Esq. -- mark.goodman@hoganlovells.com -- HOGAN LOVELLS LLP -- Brent Taylor Caldwell, Esq. -- bcaldwell@pfalawfirm.com -- PREBED FAUCETT ABBOTT -- James Patrick Sullivan, Esq. -- jsullivan@kslaw.com -- KING & SPALDING SPECTRA ENERGY: Faces "Williams" Suit Over Merger With Enbridge --------------------------------------------------------------- JOHN L. WILLIAMS, individually and on behalf of all others similarly situated v. SPECTRA ENERGY CORP., AUSTIN A. ADAMS, JOSEPH ALVARADO, PAMELA L. CARTER, CLARENCE P. CAZALOT, JR., F. ANTHONY COMPER, GREGORY L. EBEL, PETER B. HAMILTON, MIRANDA C. HUBBS, MICHAEL MCSHANE, MICHAEL G. MORRIS, and MICHAEL E.J. PHELPS, Case No. 4:16-cv-03069 (S.D. Tex., October 17, 2016), arises from the proposed merger of Spectra with the Canadian company Enbridge Inc. The case is a stockholder class action brought by the Plaintiff on behalf of himself and the other public stockholders of Spectra against the Company and its Board of Directors for their alleged violations of the Securities Exchange Act of 1934 in connection with the proposed merger with Enbridge, pursuant to the Sept. 6, 2016 Agreement and Plan of Merger through Enbridge's newly formed wholly owned Delaware company, Sand Merger Sub, Inc. Under the Merger Agreement's terms, Merger Sub will merge with and into Spectra, with the Spectra surviving the merger as a wholly owned subsidiary of Enbridge. Spectra is a Delaware corporation with its principal executive offices located in Houston, Texas. The Company transmits, stores, distributes, gathers, and processes natural gas. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Telephone: (713) 227-7720 E-mail: tbilek@hb-legal.com - and - Michael J. Palestina, Esq. KAHN SWICK & FOTI, LLC 206 Covington Street Madisonville, LA 70447 Telephone: (504) 455-1400 Facsimile: (504) 455-1498 E-mail: Michael.Palestina@ksfcounsel.com SPEIGHTS & WORRICH: Implodes from Hail Storm Damage Claims ---------------------------------------------------------- SE Texas Record reports that more than 10,000 hail-damage lawsuits are expected to be filed in Texas this year. Or should we say, more than 10,000 were expected to be filed? The number's likely to drop now that Speights & Worrich has announced its decision to "significantly downsize." Speights & Worrich specializes in hail-storm damage claims, but was hit this year with a class action suit accusing it of barratry and fraud, along with associated public adjusters and roofers. That suit, which the firm says "wrongfully damaged" its "professional reputation," is allegedly the reason for the downsizing. "This litigation was filed to support transparency and accountability in the insurance claim process, and establish a legal precedent that will prevent conspirators and con artists from gaming that system," said Mark Ticer, the attorney representing the class. Another class action was also filed in Tarrant County, accusing many of the same defendants of creating shell companies in order to "steal from residents of North Texas through an elaborate web of fraudulent and illegal conduct." According to this second suit, "The Defendants have developed a door-to-door sales scheme to induce North Texas area homeowners to allow Defendants to file claims with their homeowners' insurance carriers for alleged roof and other damage resulting from hail and wind events. "The Defendants then act on behalf of the homeowners in negotiating resolution of the insurance claim. Thereafter, the Defendants collect the insurance claim payments. Sometimes the homeowners receive new roofs. Other times they do not." "These homeowner victims were promised additional money through lawsuits. Now, they don't even have enough money to replace their roofs," said Steve Badger, the attorney representing the second class. "Sadly, most of these victims are minority, elderly, and low-income." If Speights & Worrich is guilty of engaging in scams like this, then the damage done to its "professional reputation" can hardly be considered "wrongful." The damage, in fact, would be self- inflicted. STARBUCKS CORP: N.D. Ill. Court Dismisses "Galanis" Class Suit -------------------------------------------------------------- The Honorable Thomas M. Durkin granted Starbucks's motion to dismiss the lawsuit titled STEVEN GALANIS, individually and on behalf of all others similarly situated v. STARBUCKS CORPORATION, Case No. 1:16-cv-04705 (N.D. Ill.). In his memorandum opinion and order, Judge Durkin dismissed the case in its entirety without prejudice. The Plaintiff's motion for class certification is also denied. "Should Galanis believe he can cure the deficiencies the Court has described, he may file a motion for leave to file an amended complaint by November 14, 2016. The motion should attach a proposed amended complaint, and be supported by a brief of no more than five pages explaining why the proposed amendments would cure the deficiencies cited by the Court," Judge Durkin stated. "Should Galanis file such a motion, Starbucks should not respond unless the Court so orders. If Galanis fails to file a motion for leave to amend by November 14, 2016, the dismissal will be with prejudice," Judge Durkin added. In his complaint, Mr. Galanis alleges that Starbucks deceives its customers by misrepresenting the volume of its cold drinks because much of the volume is taken up by ice. He alleges that this conduct constitutes: a breach of an express warranty; a breach of an implied warranty of merchantability; negligent misrepresentation; unjust enrichment; fraud; a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; and, a violation of the Illinois Uniform Deceptive Trade Practices Act. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=yObEPsqi STARBUCKS CORP: Judge Tosses Class Action Over Ice in Cold Drinks ----------------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that a Chicago federal judge has dumped a lawsuit against Starbucks over the amount of ice in its iced drinks, saying the reasoning undergirding the class action lawsuit against the purveyor of hot and cold coffee drinks and other beverages was too far over the top. On October 14, U.S. District Judge Thomas M. Durkin granted the request by Starbucks to dismiss the class action litigation introduced first by plaintiff Stacy Pincus, and now led by plaintiff Steve Galanis. "If the consumer chooses an 'iced' drink, the reasonable consumer knows that the container (whatever its volume) will be filled with both solid ice and a fluid beverage," Judge Durkin wrote. "The fact that the volume of the container the drink is served in is measured using 'fluid ounces' would not cause the reasonable consumer to be surprised by the presence of ice in the drink's contents. "Indeed, a reasonable consumer who purchases an 'iced' drink, expects there to be ice in the drink, and would be upset if there wasn't," the judge said. Ms. Pincus had filed the lawsuit in April, alleging the Seattle- based drink seller had violated its warranty to its customers and committed fraud by "underfilling" its cold drinks by overfilling its cups with the ice needed to make the drinks cold. The lawsuit specifically targeted Starbucks' practice of selling its drinks by the fluid ounce. The complaint noted Starbucks sells four primary sizes of drinks. While the sizes are given special proprietary names, including Tall, Grande, Venti and Trenta, those labels correspond to real volume measurements, ranging from 12-30 fluid ounces. The plaintiffs in this case, however, argued the Starbucks' measurements deceived customers ordering cold drinks, as the volume of the drink, as measured by the cup, now included ice. The plaintiffs noted Starbucks uses cups inscribed with "3 black lines" and premeasured ice scoopers "to ensure that employees fill these cups with less fluid ounces than are advertised on Starbucks' menu." Essentially, the plaintiffs argued customers ordering a Venti-sized drink should receive 24 ounces of the specific beverage, apart from the ice. Under Starbucks' current practice, however, they alleged such customers are only getting 14 ounces of beverage, while believing they are paying for 24 ounces. The case was filed by attorney Steven A. Hart and the firm of Hart McLaughlin & Eldridge, of Chicago. Over the summer months, Starbucks challenged the reasoning underlying the lawsuit, and asked a federal judicial panel to consolidate the Chicago lawsuit with other, similar lawsuits pending against it in other jurisdictions, including in California. Plaintiffs' attorneys substituted Mr. Galanis as the lead named plaintiff on the case in August. However, no matter who may assume that role, Judge Durkin said he believed the case should end, as the plaintiffs' claims cannot hold up against an examination of how a "reasonable" customer would react to the Starbucks menu. And Durkin sided with Starbucks, saying he agreed with Starbucks' assertion that "no reasonable consumer ordering an iced tea expects to receive a cup of tea with a side of ice." "Because Starbucks uses the phrase 'fluid ounces' in the section of the menus that describes container sizes, a reasonable consumer would understand that phrase to refer to volume, as opposed to a drink's contents," Judge Durkin said. "The reasonable consumer would also draw this conclusion from the mere fact that 'fluid ounces' is a measurement of a drink's volume, not a description of a drink's contents. "The common sense nature of this analysis is exemplified by imagining a consumer who tried to order simply '24 fluid ounces.' That request would obviously be met with the question, 'Of what?'" Durkin ordered the case dismissed without prejudice. But he gave the plaintiffs until Nov. 14 to ask his permission to file an amended complaint, or the dismissal would be with prejudice. Starbucks was represented in the action by attorneys with the firm of Sheppard Mullin Richter & Hampton, with offices in Chicago, San Francisco and Los Angeles. STONELEIGH RECOVERY: Thalman Seeks Certification of Classes ----------------------------------------------------------- Vincent Thalman and Gail Pirkle move the Court to certify the classes described in the complaint of the lawsuit titled VINCENT THALMAN, and GAIL PIRKLE, Individually and on Behalf of All Others Similarly Situated v. STONELEIGH RECOVERY ASSOCIATES, LLC, and BUREAUS INVESTMENT GROUP PORTFOLIO NO 15, LLC, Case No. 2:16-cv-01400-PP (E.D. Wisc.), and further ask that the Court both stay the motion for class certification and to grant the Plaintiffs (and the Defendants) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiffs assert, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiffs state. The Plaintiffs assert that they are obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. The Plaintiffs also ask to be appointed as class representative and further ask the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=4J4uO4T4 The Plaintiffs are represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com STRONGHAVEN INC: "Jennings" Seeks to Recoup OT Pay Under FLSA ------------------------------------------------------------- JEFFREY D. JENNINGS, individually and on behalf of all others similarly situated, Plaintiff, v. STRONGHAVEN, INC., ADVANCED DESIGN & PACKAGING, INC., Defendants, Case No. 1:16-cv-03859-SCJ (N.D. Ga., October 17, 2016), seeks to recover alleged unpaid overtime compensation, an additional equal amount as liquidated damages and reasonable attorneys' fees and costs pursuant to the Fair Labor Standards Act. Stronghaven, Inc. -- http://www.stronghaven.com/-- is a display and graphic fonts packaging supplier. The Plaintiff is represented by: Jason R. Doss, Esq. Samuel T. Brannan, Esq. THE DOSS FIRM, LLC 36 Trammell Street, Suite 101 Marietta, GA 30064 Phone: (770) 578-1314 Fax: (770) 578-1302 Email: jasondoss@dossfirm.com TAYLOR, MI: Refuses to Settle Water Billing Class Action -------------------------------------------------------- Dave Herndon, writing for News-Herald, reports that the City of Taylor is claiming extortion and refused to settle a class-action lawsuit recently filed by the Royal Oak-based law firm Kickham Hanley PLLC. The suit contends that the city has been overtaxing residents to build an unneeded balance in the water and sewer fund. In a rebuttal to the city, filed with the court recently, the law firm denied the extortion claim, and said the city was wrong in the rebuttal filed to the initial suit. The suit was originally filed in the Wayne County Circuit Court in April. "The city starts by accusing Plaintiff's counsel of engaging in criminal behavior -- i.e., extortion -- and then proceeds to baldly assert that, if the class is certified, class members would 'receive no benefit whatsoever' because 'the only one with anything to gain from this lawsuit is Plaintiff's counsel,'" the court document reads in part. The lawsuit contends that Taylor's rates are higher than necessary to finance the actual costs of providing water and sewage disposal services; that the City has unlawfully included in its rates an additional charge that is used not to cover actual expenses on providing water and sewer services, but rather to fund the City's general governmental obligations; and that the City includes in its rates an amount to cover the costs the City incurs for the public fire protection services provided by the water supply system. The same firm has filed similar lawsuits against other communities, including Dearborn, Ferndale, Royal Oak, Birmingham, Bloomfield Township and Westland, and has sought related information in two other communities Canton and Livonia. "It appears that their overall strategy is to target municipalities that have properly planned and possess fund balances to adequately service their residents," Mayor Rick Sollars said in response to the lawsuit. "We will not allow this lawsuit to distract from our greater vision of providing excellent services to the residents of the City of Taylor." The lawsuit contends "illegal taxes" on specific charges incorporated into the City's water and sewer rates. Among the reasons the firm filed in the more than 140 page lawsuit is that using taxes in the water and sewer fund effectively circumvents the state Headlee amendment which limits a municipality's taxing power. The firm successfully argued that point in a suit filed in 2007 against the City of Detroit. Mr. Sollars said Taylor has a very comprehensive capital improvement plan in place that improves services to residents throughout the community. Every five years, Taylor updates a Capital Improvement Plan. The City's most recent plan in November 2015 identified over $12M of necessary improvements required to the system. Taylor prepares for such improvements each year to avoid large assessments to residents. Because the funds are to be used strictly for water and sewer related expenses, Mr. Sollars contends the water rates have been done legally. Additionally, Mr. Sollars said the city hasn't changed it's policies on water rates in more than 25 years. The city, through its attorney's -- Howard & Howard Attorneys PLLC -- called the lawsuit "frivolous" and will seek to get it dismissed. In its rebuttal to the suit the city said customers are charged only their proportional share of the costs of the operation, maintenance and equipment replacement expenses, and that the rates have always been adjusted in transparent fashion by City Council, in public meetings and out in the open. Also the current water rates are lower than they could have been, according to Mr. Sollars. He said the city chose not to raise rates at the full market value at this year, instead passing savings on to the residents. Mr. Sollars also said that the excess funds in the water and sewer fund are needed for emergency work. Such as an emergency repair of a collapsing sewer line on Ziegler Street, at a cost of nearly $100,000, that was approved in September. "The City has continuously acted responsibly and in the best interests of the water and sewer customers," Howard & Howard stated in the City's position of the court brief. The frivolity of the suit, according to Mr. Sollars, is that if the city were to lose, about 10 percent of the tax payers money would not be returned to them, but instead go to the firm that filed the case. "Unfortunately, there are opportunistic attorneys seeking to hijack our fund balance," he said. "Make no mistake: A large percentage of any settlement in this case would benefit the law firm, not the taxpayers. We use our water and sewer fund in a proactive fashion for the benefit of our residents, and to guard against catastrophic occurrences." Additionally, without the fund balance, even small repairs would have to go out to a vote of the people to raise money to do the repairs. That would put delays of weeks or months on making the repairs, and possibly cause further damage in the affected areas. The suit also claimed that short-term loans provided from the water and sewer fund to cover general fund expenses were improper. ". . . There is nothing illegal or improper about the loans," the attorneys wrote in the brief. "The loans were approved by City Council and the loans benefited the water customers . . . (they) were repaid with interest." TAYLOR SAFETY: Hernandez Seeks to Certify Class of Consultants -------------------------------------------------------------- The Plaintiff in the lawsuit titled JOSE HERNANDEZ, individually and on behalf of all others similarly situated v. TAYLOR SAFETY CONSULTING, LLC, Case No. 2:16-cv-00198 (S.D. Tex.), asks that the Court conditionally certify a class consisting of: All current and former safety consultants and/or safety technicians who worked for Taylor Safety Consulting, LLC at any time from _______________, 2013 to the present who were classified as independent contractors and paid a day-rate with no overtime compensation. The date represents three years back from the date that the Notice and Consent Forms are first sent to the Putative Class Members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=IDoDbt45 Mr. Hernandez alleges that the Defendant misclassified its workers as independent contractors in order to avoid paying them overtime wages required under federal law. He contends that the Defendant maintained a uniform pay practice of paying these safety "consultants" a non-negotiable day-rate and a per diem without any overtime compensation, which practice flagrantly violates the Fair Labor Standards Act. The Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, Esq. Andrew Dunlap, Esq. Jessica M. Bresler, Esq. FIBICH, LEEBRON, COPELAND BRIGGS & JOSEPHSON 1150 Bissonnet St. Houston, TX 77005 Telephone: (713) 751-0025 Facsimile: (713) 751-0030 E-mail: mjosephson@fibichlaw.com litkin@fibichlaw.com adunlap@fibichlaw.com jbresler@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com TENET HEALTHCARE: "Pennington" Suit Alleges Securities Act Breach ----------------------------------------------------------------- NICHOLAS PENNINGTON, Individually and on behalf of all others similarly situated, Plaintiff, v. TENET HEALTHCARE CORPORATION, TREVOR FETTER, DANIEL J. CANCELMI, and BIGGS C. PORTER, Defendants, Case No. 2:16-cv-07510 (C.D. Cal., October 7, 2016), alleges violation of the U.S. Securities and Exchange Act in relation to its financial reporting. Defendant Tenet primarily operates acute care hospitals and related healthcare facilities. 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 Phone: (213) 785-2610 Fax: (213) 226-4684 Email: lrosen@rosenlegal.com THANK YOU: Catzin Seeks Review of S.D.N.Y. Ruling to 2nd Circuit ---------------------------------------------------------------- Plaintiffs Lucia Lopez Catzin, Silvia Villano Clemente and Yadira Aguilar-Cano filed an appeal from the District Court's memorandum decision & order, dated October 3, 2016, in their lawsuit styled Lopez Catzin v. Thank You & Good Luck Corp., Case No. 15-cv-7109, in the U.S. District Court for the Southern District of New York (New York City). The appellate case is captioned as Lopez Catzin v. Thank You & Good Luck Corp., Case No. 16-3509, in the United States Court of Appeals for the Second Circuit. Plaintiffs-Petitioners Lucia Lopez Catzin, individually on behalf of others similarly situated, Silvia Villano Clemente and Yadira Aguilar-Cano are represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway New York, NY 10279 Telephone: (212) 571-0700 E-mail: michael@fishertaubenfeld.com Defendants-Respondents Thank You & Good Luck Corp. and Zeng Lan Wang are represented by: William M. Brown, Esq. HANG AND ASSOCIATES, PLLC 136-18 39th Avenue Flushing, NY 11354 Telephone: (718) 353-8588 E-mail: wbrown@hanglaw.com - and - Andrew A. Kimler, Esq. VISHNICK MCGOVERN MILIZIO LLP 3000 Marcus Avenue Lake Success, NY 11042 Telephone: (516) 437-4385 E-mail: akimler@vmmlegal.com Defendants-Respondents Off-Broadway Laundromat Inc., 2167 3rd Ave Laundromat LLC, Igor Birzh, Exclusive Management Solution Group, Inc., and Dimitri Berezovsky are represented by: Mark Richard Kook, Esq. LAW OFFICE OF MARK R. KOOK 270 Madison Avenue New York, NY 10016 Telephone: (212) 766-4100 Facsimile: (212) 763-6810 E-mail: mkook@kooklaw.com Defendants-Respondents Off-Broadway Laundromat Inc., 2167 3rd Ave Laundromat LLC and 115th Street and First Ave Laundromat Inc. are represented by: Oleg A. Mestechkin, Esq. MESTECHKIN LAW GROUP, P.C. 3 World Financial Center New York, NY 10281 Telephone: (212) 256-1113 E-mail: om@lawmlg.com TIRRENIO INC: "Anguisaca" Suit Claims FLSA, NY Labor Law Breaches ----------------------------------------------------------------- MARCO ANGUISACA, on behalf of himself, Plaintiffs, and Class Members, Plaintiff, v. TIRRENIO, INC., d/b/a SCARAMELLA'S RISTORANTE, NILDE SCARAMELLA, and VINCENZO SCARAMELLA, Defendants, Case No. 7:16-cv-08169-VB (S.D.N.Y., October 19, 2016), claims that pursuant to the Fair Labor Standards Act, the Plaintiff is entitled to recover from Defendants: (1) unpaid overtime, (2) liquidated damages and (3) attorneys' fees and costs. Plaintiff further alleges that, pursuant to the New York Labor Law, he and others similarly situated are entitled to recover from Defendants: (1) unpaid overtime, (2) unpaid spread of hours premium, (3) liquidated damages and statutory penalties and (4) attorneys' fees and costs. Together, Defendants own and operate an Italian restaurant doing business under the trade name "Scaramella's Ristorante." The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Phone: 212-465-1188 Fax: 212-465-1181 TYSON FOODS: "Chung" Suit Asserts Broiler Chicken Price-Fixing -------------------------------------------------------------- JONAH CHUNG, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. TYSON FOODS, INC., DONNIE SMITH, and DENNIS LEATHERBY, Defendants, Case No. 1:16-cv-08108 (S.D.N.Y., October 17, 2016), alleges that Defendants violated U.S. Securities and Exchange Act by making false and misleading statements or failed to disclose that: (i) Tyson systematically colluded with several of its industry peers to fix prices in the broiler-chicken market; (ii) the foregoing conduct constituted a violation of federal antitrust laws; (iii) consequently, Tyson's Chicken segment revenues during the class period were the result of illegal conduct; and (iv) as a result of the foregoing, Tyson's public statements were materially false and misleading at all relevant times. TYSON FOODS, INC., together with its subsidiaries, operates as a food company worldwide. The Plaintiff is represented by: Alexander Hood II, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc C. Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Phone: (212) 661-1100 Fax: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Phone: (312) 377-1181 Fax: (312) 377-1184 Email: pdahlstrom@pomlaw.com - and - Michael Goldberg, Esq. Brian Schall, Esq. GOLDBERG LAW PC 1999 Avenue of the Stars Los Angeles, CA 90067, Suite 1100 Phone: 1-800-977-7401 Fax: 1-800-536-0065 Email: michael@goldberglawpc.com brian@goldberglawpc.com TYSON FOODS: Faces "Huser" Securities Class Suit in Calif. ---------------------------------------------------------- WILLIAM HUSER, Individually and on behalf of all others similarly situated, Plaintiff, v. TYSON FOODS, INC., DONNIE SMITH, and DENNIS LEATHERBY, Defendants, Case No. 2:16-cv-07709 (C.D. Cal., October 17, 2016), is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired the securities of Tyson Foods between November 23, 2015 and October 7, 2016, both dates inclusive. Plaintiff seeks to recover compensable damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Defendant Tyson Foods, Inc. together with its subsidiaries, operates as a food company worldwide. 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 Phone: (213) 785-2610 Fax: (213) 226-4684 Email: lrosen@rosenlegal.com TYSON FOODS: Rosen Law Firm Files Securities Class Action --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Oct. 17 disclosed that it has filed a class action lawsuit on behalf of purchasers of Tyson Foods, Inc. securities from November 23, 2015 through October 7, 2016, both dates inclusive (the "Class Period"). To join the Tyson Foods class action, go to the firm's website at http://www.rosenlegal.com/cases-964.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that Tyson Foods had conspired to fix chicken prices. The lawsuit alleges that, as a result, defendants' statements were materially false and misleading at all relevant times. On September 2, 2016, certain media outlets reported the filing of an antitrust lawsuit against Tyson Foods asserting that it conspired to manipulate the price of broiler-chickens. On October 7, 2016, Pivotal Research reduced its price target and rating for Tyson Foods due to the allegations of the previously reported antitrust lawsuit. The lawsuit claims that investors suffered damages when these details entered the market. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than December 16, 2016. If you wish to join the litigation, go to the firm's website at http://www.rosenlegal.com/cases-964.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Contact Information: Laurence Rosen, Esq. Phillip Kim, Esq. Kevin Chan, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com kchan@rosenlegal.com www.rosenlegal.com UBER TECHNOLOGIES: Faces "Bank" Suit in N.Y. Over Robocalls ----------------------------------------------------------- TODD C. BANK, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. UBER TECHNOLOGIES, INC., Case No. 1:16-cv- 05845 (E.D.N.Y., October 19, 2016), seeks statutory damages, injunctive relief, legal fees, and costs under New York General Business Law on behalf of those who received telephone calls, commonly known as "robocalls." UBER TECHNOLOGIES, INC. -- http://www.uber.com-- provides a smartphone application that connects drivers with people who need a ride. The Plaintiff is represented by: Todd C. Bank, Esq. TODD C. BANK, ATTORNEY AT LAW, P.C. 119-40 Union Turnpike Fourth Floor Kew Gardens, NY 11415 Phone: (718) 520-7125 UBER TECHNOLOGIES: Ruling May Bolster Independent Contractor Case ----------------------------------------------------------------- Caitlin Huston, writing for MarketWatch, reports that a recent New York ruling that called Uber drivers employees could add to a case against Uber's independent contractor designation. In the ruling, reported by the New York Times, two former Uber drivers were classified as employees in cases involving unemployment insurance claims. While the ruling does not have direct legal precedent for class-action suits against Uber, lawyers see it adding to the claims of misclassification, which could bring added costs to Uber and have an impact on related companies. Uber currently classifies its drivers as independent contractors, not employees, which means it does not pay them a salary or benefits. Two pending class-action lawsuits filed by drivers against Uber contest that the drivers are employees. But a proposed $100 million settlement with Uber was rejected by a judge and an appeals ruling may reduce the number of eligible drivers in the lawsuit, according to the WSJ. Shannon Liss-Riordan, the lawyer representing the drivers in the suit, said the recent New York ruling is one of several similar rulings and bolsters her case, but does not set exact legal precedent. "While it's not a direct legal precedent for our case, it is part of a growing momentum for agencies to crack down on misclassification," Ms. Liss-Riordan wrote in an email to MarketWatch. She added that misclassification cases such as these are often decided on an incremental basis, which builds up case law around the issue. Still, James Cakmak, an analyst with Monness, Crespi and Hardt, said he expects news of the rulings could encourage similar suits at other companies. "We believe headlines of this news could result in an impetus of cases from employees with an increasing proportion of rulings in favor of employee classification given the precedence established in a state like New York," Mr. Cakmak wrote. This would most likely affect other ride-hailing companies such as Lyft Inc., which has been rumored to be looking for a buyer. Because of the potential for added costs if drivers were classified as employees, Mr. Cakmak said this places "more pressure" on Lyft to find a larger company to merge with and also to accept a lower purchase price. "We end up with the same sentiment for Lyft as we do for Twitter and that's for the board to be more reasonable on valuation," he wrote. If the ruling broadens, he added that companies such as GrubHub which is creating a food delivery network, and Amazon Inc. which has a fleet of drivers classified as independent contractors, may also be challenged. UNILIFE CORPORATION: Consolidated Amended Complaint Due ------------------------------------------------------- Unilife Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on October 24, 2016, for the fiscal year ended June 30, 2016, that the United District Court for the Southern District of New York has set a deadline of October 24, 2016 for Plaintiffs to file an amended class action complaint. On May 26 and 27, 2016, two putative class actions were filed in the United District Court for the Southern District of New York alleging that in violation of Rule 10b-5 and Section 20(a) of the Securities Exchange Act of 1934, the Company and four individual defendants made false and/or misleading statements and/or failed to disclose: (1) that the Company's former CEO and former Chairman of the Board of Directors had violated the Company's policies and procedures and had engaged in violations of law and regulations; (2) that the Company lacked adequate internal controls over accounting and financial reporting; (3) that, as a result, the Company would be unable to file its Quarterly Report on Form 10-Q for the period ended March 31, 2016 by the prescribed filing deadline; and (4) that, as a result, the Company's financial statements, as well as its statements about the Company's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. The putative class actions were brought on behalf of purchasers of the Company's securities between February 3, 2014 and May 23, 2016. On August 24, 2016, the Court consolidated the two actions, appointed lead plaintiffs and lead counsel, and set a deadline of October 24, 2016 for Plaintiffs to file an amended complaint. The Company intends to vigorously contest this lawsuit. UNITED STATES: Outside Unltd. Appeals in "Gonzalez-Aviles" Suit --------------------------------------------------------------- Outside Unlimited, Inc., et al., filed an appeal from a court ruling in the lawsuit titled Pablo Gonzalez-Aviles, et al. v. Thomas Perez, et al., Case No. 1:15-cv-03463-JFM, in the U.S. District Court for the District of Maryland at Baltimore. The appellate case is captioned as Pablo Gonzalez-Aviles v. Outside Unlimited, Inc., Case No. 16-2203, in the United States Court of Appeals for the Fourth Circuit. Thomas E. Perez is sued in his official capacity as United States Secretary of Labor. Plaintiffs, two individuals who entered the United States on H-2B guest worker visas in 2013 to work for Outside Unlimited, Inc., have brought the District Court action against Thomas Perez, in his official capacity as United States Secretary of Labor, Portia Wu, in her official capacity as Assistant Secretary, Employment and Training Administration, United States Department of Labor, and the so called Employer Defendants, consisting of businesses that employed United States and foreign workers pursuant to approved H-2B paper certifications in Maryland during 2013. Defendants have filed motions to dismiss. The motions will be granted. The case arises from a decision of the Department of Labor's Board of Alien Labor Certification Appeals ("the BALCA"), holding that the Department of Labor lacks the authority to issue supplemental prevailing wage determinations in cases where the Department already approved labor certification applications. Plaintiffs claim that (l) the Department should not have allowed the Employer Defendants to pursue challenges to SPWD determinations to BALCA, (2) BALCA's decision was arbitrary, capricious and contrary to law in violation of the APA, (3) the Department's actions in unreasonably delaying issuance of a decision with respect to a Declaratory Order proposed by the Department violated the Administrative Procedure Act, ("APA"), and (4) a declaration that the SPWD wages are lawfully required and due and payable. They have joined the Employer Defendants under Fed. R. Civ. P. 19 on the ground that they cannot obtain complete release in the absence of the Employer Defendants and that the Defendant Employer's interest may, as a practical matter be impaired by the relief plaintiffs seek against DOL. In a June 17, 2016 Memorandum, a copy of which is available at https://is.gd/tuQezB from Leagle.com, District Judge J. Frederick Motz said Plaintiffs' claims fail because plaintiffs have failed to identify a final agency action. The BALCA decision does not represent a "final decision" of the Department of Labor. Indeed, the Department has contemplated issuing a "Declaratory Order" reversing the decision.1 Plainitffs' claims against the Employer Defendants likewise fail, Judge Motz said. They have no standing to sue anybody other than Outside Unlimited, Inc., their employer. Fed. R. Civ. P. 19 does not create a cause of action against a party and allows joinder of persons only against whom a plaintiff has a viable claim. Plaintiffs do not allege that any of the defendants have acted unlawfully. They have only sought to enjoin the Employer Defendants only on the ground that absent their joinder, they could not obtain full relief. Judge Motz entered an order granting defendants' motion to dismiss. The Defendants-Appellants are OUTSIDE UNLIMITED, INC.; AKEHURST LANDSCAPE SERVICES, INC.; BARTENFELDER LANDSCAPE SERVICE, INC.; A.R. STAR SERVICES, INC.; CEDAR RIDGE LANDSCAPE, INC.; COLUMBIA GROUNDS MANAGEMENT CORP.; BOB JACKSON LANDSCAPES, INC.; CONTINENTAL LANDSCAPING, INC.; CREATIVE LANDSCAPES BY GREGORY, INC.; CUSTOM GROUND MAINTENANCE, INC.; DENISON LANDSCAPING, INC.; C.S. LAWN AND LANDSCAPE, INC.; EDS PLANT WORLD, INC.; EXCELL LAWN CARE INC.; EASTON ICE COMPANY, INC.; FACILITY SERVICES CO.; FRANK JOSEPH AND SONS, INC.; EXEC-U-LAWN LANDSCAPE MANAGEMENT, INC.; GREEN ANGELS LANDSCAPING LLC; HARTSOE PROPERTY SERVICES, LLC; GOSHEN ENTERPRISES, INC.; KINGSDENE NURSERIES, INC.; LARSONS TREE SERVICE AND LANDSCAPING, LTD.; IVY HILL NURSERY CO., INC.; LEES LAWN SERVICE; MARYLAND NATIVES NURSERY, INC.; LAYTONSVILLE TURF FARM, LLC; M.J.M. LAWN AND LANDSCAPING, INC.; NATURAL ART LANDSCAPING, INC.; MEAD TREE AND TURF CARE, INC.; OAK HILL LAWN CARE AND LANDSCAPING, INC.; P. STADLER AND SONS CO.; PGC LANDSCAPE LLC; PINEHURST LANDSCAPE CO., INC.; PAUL SCHWARTZ LANDSCAPING, LLC; QUALITY ONE, INC.; SOUTH FORTY, INC.; POOLE LANDSCAPING, INC.; TDH LANDSCAPING, LLC; TERRACE TURF LAWN SERVICES, INC.; STRATES FINE FOODS, INC.; W.H. BOYER, INC.; WOODFIELD LANDSCAPING INC.; GROUNDS MANAGEMENT AND LANDSCAPING INC.; THE MEMBERS CLUB AT FOUR STREAMS, INC.; KCS LANDSCAPE MANAGEMENT, INC.; ALPHA LANDSCAPE CONTRACTORS, INC.; MANOR VIEW FARMS, INC.; PORTER LANDSCAPING, INC.; LAWNS UNLIMITED, LLC; WENTWORTH NURSERY, INC.; WILLIAM T. KING, INC.; LANDCARE USA LLC; A OF R SERVICES, INC.; FAIRPLAY GAMES, INC.; GIBSON LANDSCAPES INC.; CLIPPERS INC.; HV LLC; HYDRO-TECH IRRIGATION CO.; KANE LANDSCAPES, INC.; LANDSCAPE DEVELOPMENT CO., INC.; SURROUNDS INC.; WHATEVER ENTERPRISES, LLC; CHALLENGER SPORTS CORP.; CLIPPERS INC.- NOVA; INNERS AMUSEMENT CO.; KELLY-MILLER BROS. CIRCUS, LTD.; and SPOSATO LANDSCAPE CO., INC. As previously reported in the Class Action Reporter, Plaintiffs Pablo Gonzalez-Aviles and Heleodoro Pena-Gonzalez have filed an appeal from a court ruling in the District Court case. That appellate case is entitled Pablo Gonzalez-Aviles v. Thomas Perez, Case No. 16-2007, in the United States Court of Appeals for the Fourth Circuit. The Appellate Court stated that initial forms are due within 14 days. Plaintiffs-Appellees PABLO GONZALEZ-AVILES and HELEODORO PENA- GONZALEZ, on behalf of themselves and others similarly situated, are represented by: Meredith B. Stewart, Esq. SOUTHERN POVERTY LAW CENTER 1055 Charles Avenue New Orleans, LA 70130 Telephone: (504) 486-8982 Facsimile: (504) 486-8947 E-mail: meredith.stewart@splcenter.org - and - Edward John Tuddenham, Esq. LAW OFFICE OF EDWARD TUDDENHAM 228 West 137th Street New York, NY 10030 Telephone: (212) 234-5953 E-mail: etudden@io.com Defendants THOMAS E. PEREZ, in his official capacity as United States Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR, and PORTIA WU, in her official capacity as Assistant Secretary, Employment and Training Administration, U.S. Department of Labor, are represented by: Vinita Andrapalliyal, Esq. U. S. DEPARTMENT OF JUSTICE P. O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: (202) 598-8085 Facsimile: (202) 305-7000 E-mail: vinita.b.andrapalliyal@usdoj.gov - and - Sarah Stevens Wilson U. S. DEPARTMENT OF JUSTICE P. O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4700 E-mail: sarah.s.wilson@usdoj.gov The Defendants-Appellants are represented by: Robert Wayne Pierce, Esq. PIERCE LAW FIRM, LLC 133 Defense Highway Annapolis, MD 21401 Telephone: (410) 573-9955 E-mail: pearce@rwpearce.com Defendant TOLL BROTHERS, LLC-VA, George Eugene Brown, Esq. KRAMON & GRAHAM, PA Commerce Place 1 South Street Baltimore, MD 21202-0000 Telephone: (410) 752-6030 Facsimile: (410) 361-8205 E-mail: gbrown@kg-law.com Defendant DEGGELLER ATTRACTIONS, INC., is represented by: Terrance Wayne Anderson, Jr., Esq. GRAY ROBINSON, PA 333 South East 2nd Avenue Miami, FL 33131 Telephone: (305) 416-6880 Facsimile: (305) 416-6887 E-mail: terrance.anderson@gray-robinson.com Defendant VALLEYCREST COMPANIES is represented by: Noam Barak Fischman, Esq. POLSINELLI, PC 1401 Eye Street, NW Washington, DC 20005 Telephone: (202) 626-8360 E-mail: nfischman@polsinelli.com UNIVERSAL FIDELITY: Mikolajczyk Seeks Certification of Class ------------------------------------------------------------ Christine Mikolajczyk moves the Court to certify the class described in the complaint of the lawsuit entitled CHRISTINE MIKOLAJCZYK, Individually and on Behalf of All Others Similarly Situated v. UNIVERSAL FIDELITY, LP, Case No. 2:16-cv-01382-WED (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, Ms. Mikolajczyk asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Ms. Mikolajczyk states. She asserts that she is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, Ms. Mikolajczyk contends. Ms. Mikolajczyk also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=mY6Voad9 The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com VANCOUVER, BC: Property Owners Sue Over Heritage Designation Bylaw ------------------------------------------------------------------ Business Vancouver reports that property owners whose homes fall under Vancouver's Heritage Designation Bylaw are suing the city in a class action, claiming it hurt their property values after its adoption in September 2015. Lead plaintiff Mary Ann Cummings filed a notice of civil claim under the Class Proceedings Act on September 28. An appendix to the bylaw listed her home on West 17th along with more than 300 other properties "to be protected by heritage designation," the claim states. She claims her property and others listed in the appendix were included despite "no assessment of the heritage value or heritage character" of the homes having been done to determine whether they should be listed or not. "Due to the heritage designation the properties listed in [the appendix] have lost and continue to lose value," the claim states. Moreover, the lawsuit says the bylaws and an amendment "were adopted illegally and in excess of Vancouver City Council's authority under the Vancouver Charter . . . to designate protected heritage property." The class seeks damages and compensation under the Expropriation Act for "loss of property value and/or property rights in an amount yet to be determined." The allegations have not been tested or proven in court, and the City of Vancouver had not filed a response by press time. VISIONWORKS OF AMERICA: "Lenart" Lawsuit Transferred to Ohio ------------------------------------------------------------ The case captioned CHERYL LENART, On Behalf of Herself and All Others Similarly Situated Plaintiff v. VISIONWORKS OF AMERICA, INC., Defendant, Case No. 1:16-cv-02505-SO (June 7, 2016), was transferred from the U.S. District Court for the Northern District of Illinois Northern to the U.S. District Court for the Northern District of Ohio. The complaint alleges that Visionworks violates the Consumer Fraud and Deceptive Business Practices Act and the Federal Trade Commission regulation by making its free offer continuously and repeatedly, month-after-month for the vast majority of the year. VISIONWORKS OF AMERICA, INC. is one of the largest retailers of eyeglasses in the country, with at least 33 retail stores in Illinois. The Plaintiff is represented by: Maureen A. Salas, Esq. Douglas M. Werman, Esq. Maureen Salas, Esq. WERMAN SALAS P.C. 77 W. Washington Street, Suite 1402 Chicago, IL 60602 Phone: (312) 419-1008 Fax: (312) 419-1025 E-mail: dwerman@flsalaw.com msalas@flsalaw.com - and - Drew Legando, Esq. Jack Landskroner, Esq. Tom Merriman, Esq. LANDSKRONER GRIECO MERRIMAN LLC 1360 West 9th Street, Suite 200 Cleveland, OH 44113 Phone: (216) 522-9000 Fax: (216) 522-9007 E-mail: drew@lgmlegal.com jack@lgmlegal.com tom@lgmlegal.com - and - Mark Schlachet, Esq. 3515 Severn Road Cleveland, OH 44118 Phone: (216) 522-7559 Fax: (216) 514-6406 E-mail: mschlachet@gmail.com VIXEN'S LLC: Faces "Breighner" Suit Under FLSA, W.Va. Wage Laws --------------------------------------------------------------- SAMANTHA BREIGHNER and BRITTANNI WOLFE, individually and on behalf of others similarly situated, Plaintiffs, v. VIXEN'S LLC, TABOO GENTLEMEN'S CLUB LLC, HENRY E. WORCESTER III, HENRY E. WORCESTER IV, and CASEY McGEE, Defendants, Case No. 3:16-cv-00144-GMG (N.D.W. Va., October 19, 2016), seeks to recover alleged unpaid minimum wages and unpaid overtime wages under the Fair Labor Standards Act and the West Virginia Minimum Wage and Maximum Hours Act. The suit also seeks a declaration under the Declaratory Judgment Act, that the mandatory arbitration provision and waiver of class and collective actions in the "Entertainment License Agreement" between Plaintiffs and Defendants are unconscionable and unenforceable. VIXEN'S LLC operated a "gentleman's club" known as "Vixen's Gentlemen's Club." The Plaintiff is represented by: Mark Goldner, Esq. Maria W. Hughes, Esq. HUGHES & GOLDNER, PLLC 10 Hale Street, Fifth Floor Charleston, WV 25301 Phone: (304) 400-4816 Fax: (304) 205-7729 E-mail: mark@wvemploymentrights.com maria@wvemploymentrights.com VOLKSWAGEN AG: Canadian Diesel Owners Await Compensation -------------------------------------------------------- Laura DaSilva, writing for CBC News, reports that exasperated Canadian Volkswagen owners anxious for a Canadian settlement will be stuck in the limbo they're enduring over their emissions- spewing diesel vehicles for at least a few more weeks. Volkswagen Canada and parties involved in class-action lawsuits in Ontario and Quebec were scheduled to give updates in court on Oct. 18 on a proposed deal to compensate the roughly 100,000 VW owners affected by the emissions-cheating debacle, but the updates were put off. A lawyer from Siskinds Law Firm involved in the Ontario suit told CBC News on Oct. 18 that they hope to have something concrete regarding the affected 2.0L TDI vehicles by the next scheduled court date on Dec. 19. In an email on Oct. 18, a spokesperson from Volkswagen Canada said, "The parties continue to engage in productive discussions and will keep the courts updated." "Here we are, the big court date and nothing is solved," said VW Passat owner from Mono, Ont., Anca Periet. "Are the lawyers dragging the issue for their own benefit? I'm furious beyond belief." Canadian owners of diesel VWs have been faced with uncertainty since it was learned in 2015 the engines emit nitrogen oxide at a level many times more than permitted under pollution standards. They'll take a financial hit if they sell the cars, but have yet to hear how Volkswagen will compensate them. On Oct. 17, after asking car owners on the site to tell their stories, CBC News received dozens of emails and phone calls from group members across the country who were anticipating some sort of announcement. 'Enough is enough' "I am held hostage by Volkswagen," Sarnia, Ont., Passat owner Dennis Hobday said. "Nobody wants my car. I hate them for putting me in that position." At the end of July, VW announced diesel owners in the U.S. can choose between a buyback or a repair, in addition to cash compensation ranging from $5,100 to $10,000 per owner. People who owned an affected VW model as of September 2015, when the EPA first exposed the scandal, or have since bought one, will be eligible. The gavel was expected to come down on the $14.7- billion US deal on Oct. 18. Rumours have been circulating that the Canadian settlement will be very similar to the U.S. one. Almost all of the owners CBC News spoke to said they would be happy with that. They're just tired of waiting. "My hope is that we get a settlement that would mirror the U.S., but tweaked to Canadian car values," Mr. Hobday said. "I would be ecstatically happy with that. Then we could move on with our lives. Enough is enough." Jetta TDI Highline owner Tyler Spurrel from Whitby, Ont., just wants answers. "I'm very frustrated with how they're handling things right now," he said. "They could just let us know what's going on, it's the least they could do." 'It's devastating me financially' Bonnie Ayotte purchased a VW Beetle in Abbotsford, B.C., for $38,000 in 2013, thinking it was a clean vehicle that she could pass on to her son when he graduated. The single mother on disability is concerned about reports the amount she gets for her car may be adjusted to account for mileage. In that case, she fears she could lose as much $20,000 on the vehicle. "It's devastating me financially. I should not be punished for these miles," she said. "I have no control over the time taken and, unlike others, cannot afford to get another vehicle to park mine while we wait." Many diesel VW owners did stop driving their vehicles, thinking the size of their settlement might be contingent on mileage. That's what Ottawa's Charlene Roy did. She owns a VW Jetta, but takes transit to work. Until she knows what she'll be getting back, the single mother of four is keeping her car parked. "I saved my butt off up to be able to buy the vehicle. It's not something I want to go into debt over," she said. "Buy my car back and let me go somewhere else." Young drivers like Nikko Layson are also sick of living with the uncertainty. The 24-year-old budgeted to buy his 2012 Golf in the midst of trying to find a place to rent in B.C.'s white-hot housing market. He had to purchase a second vehicle to prevent adding mileage to his Golf. "My financial situation has been thrown into question," he said. "I'm sitting here dug deeper in debt on a car I can't even drive, and making payments that I will never see back." Losing faith in the brand Retired University of Waterloo engineering professor Ed Jernigan feels personally betrayed by VW. "I had made a considerable effort to be environmentally responsible in my purchase decision," he said. "It's absurd. VW will have to step up, take full responsibility, and make full restitution if they ever want to restore their reputation for making quality vehicles." Brian McFadden is happy with his VW Touareg and would even consider purchasing another vehicle from the automaker, but he calls the lack of communication "pathetic." The Simcoe County, Ontario, resident said the longer it takes to reach a settlement, the more customers they'll lose. "Bottom line is we were all lied to by Volkswagen," said James Hoy, a VW Golf owner from Barrie, Ont. "We have been patiently waiting for a fair and fast resolution." Hoy and more than 4,500 Canadian VW owners have banded together in a Facebook group called Canadian VW TDI Owners. A Volkwagen Canada spokesperson told CBC News that a court order requires all parties to keep the details related to settlement discussions in Canada confidential. VOLKSWAGEN CANADA: Faces Government Probe Over Defeat Devices ------------------------------------------------------------- Jil McIntosh, writing for AutoNews, reports that Volkswagen Canada is being investigated under the Canadian Environmental Protection Act for importing vehicles with software intended to defeat emissions testing. In a statement emailed to Automotive News Canada, Environment and Climate Change Canada said that it is "actively investigating" certain Volkswagen, Audi, and Porsche diesel vehicles equipped with prohibited defeat devices, said ECCC spokesperson, Melanie Quesnel. If the investigation uncovers sufficient evidence of violations, the agency "may recommend to the Public Prosecution Service of Canada that charges be laid," she said. As in all of ECCC's violation cases, the PPSC is responsible for determining whether to prosecute, and if so whether to proceed by summary conviction proceedings or by indictment. Under the Act, the maximum fine for a large corporation for conviction under indictment is $6 million for each offence, and the possibility of forfeiting any profits earned as a result of the offence. No charges laid yet Volkswagen's corporate officials may also be subject to prosecution if they "direct, authorize, assent to, acquiesce or participate" in any violation of the Environmental Protection Act or its regulations. The investigation is currently limited to the ECCC's office. In a statement emailed to AN Canada on October 12, the PPSC stated that it "can confirm that no charges have been laid against Volkswagen at this time," and that it "cannot comment further unless or until a charge is laid." A Volkswagen Canada spokesperson said that, "We are cooperating with Environment and Climate Change Canada's investigation. It would be inappropriate for us to comment further while the investigation is ongoing." Under a US$14.7-billion agreement in the United States, Volkswagen will repair or buy back every one of its affected diesel-engine cars that carry the "defeat devices" that allow the cars to pass emissions tests but which, in real-world driving, pollute up to three times the legal limit. In Canada, still waiting Canadian VW owners and dealers are still waiting on news of a compensation package from the embattled automaker. Any environmental penalties levied by the federal government would be in addition to a consumer class action currently under way in Canada. In the United States, Volkswagen is working with the Environmental Protection Agency to develop federally-approved repairs for owners who choose to have their vehicles fixed. On its consumer website, Volkswagen Canada says that upon approval of the U.S. repairs, Canadian customers will also be offered repairs "in full co-operation with Environment Canada." The Canadian class-act suit is ongoing, and Superior Courts in Ontario and Quebec have each scheduled October 18, 2016 for the next update on the status of discussion. The date coincides with American proceedings, when the U.S. District Court is expected to hand down final approval of the compensation settlement. The American company also faces US$1.2 billion in claims from dealers, who had to stop selling affected vehicles. WAWA INC: Faces "Ciuffardi" Suit Pursuant to FLSA, N.J. Wage Laws ----------------------------------------------------------------- JOHNNY CIUFFARDI, on behalf of himself and all others similarly situated, Plaintiff, v. WAWA INC. d/b/a/ WAWA, Defendant, Case No. 3:16-cv-07574-MAS-DEA (D.N.J., October 19, 2016), seeks to recover alleged unpaid wages and all available relief pursuant to the Fair Labor Standards Act, the New Jersey State Wage and Hour Law, and the New Jersey Wage Payment Law. Wawa Inc. is a chain of convenience stores/gas stations located along the East Coast of the country. The Plaintiff is represented by: Mitchell Schley, Esq. LAW OFFICES OF MITCHELL SCHLEY, LLC 197 Route 18, Suite 3000 East Brunswick, NJ 08816 Phone: (732) 325-0318 E-mail: mschley@schleylaw.com - and - Louis Pechman, Esq. Laura Rodriguez, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue - 11th Floor New York, NY 10022 Phone: (212) 583-9500 E-mail: pechman@pechmanlaw.com rodriguez@pechmanlaw.com WELCH FOODS: Court Narrows Claims in Atik-Lau Mislabeling Suit -------------------------------------------------------------- In the case captioned, ALIZA ATIK and WINNIE LAU, on behalf of themselves and all others similarly situated, Plaintiffs, v. WELCH FOODS, INC. and THE PROMOTION IN MOTION COMPANIES, INC., Defendants, Case No. 15-CV-5405 (MKB) (VMS) (E.D.N.Y.), District Judge Margo K. Brodie of the United States District Court for the Eastern District of New York adopted the Report and Recommendation (R&R) of Magistrate Judge Vera M. Scanlon granting in part Defendants' motion to dismiss Plaintiffs' claims for breach of implied warranty, unjust enrichment, injunctive relief and Plaintiffs' remaining claims to the degree that they fall outside the relevant statutes of limitation. Plaintiffs Aliza Atik and Winnie Lau commenced a putative class action on behalf of themselves and all others similarly situated against Defendants Welch Foods, Inc. (Welch) and The Promotion in Motion Companies, Inc. (PIM). Plaintiffs allege claims of: (1) breach of express warranty, (2) breach of implied warranty, (3) unjust enrichment, (4) deceptive acts or practices in violation of the New York General Business Law, N.Y. Gen. Bus. Law Section 349, (5) false advertising in violation of the New York General Business Law, N.Y. Gen. Bus. Law Section 350, (6) unfair and deceptive acts and practices in violation of the California Consumers Legal Remedies Act, Cal. Civ. Code Section 1750 et seq., (7) unlawful business acts and practices in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq., (8) fraudulent business acts and practices in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq., and (9) misleading and deceptive advertising in violation of the California False Advertising Law, Cal. Bus. & Prof. Code Section 17500 et seq. Plaintiffs allege that, beginning in 2009 and continuing to the present, "Defendants have engaged in a deceptive marketing campaign to convince consumers that the Products contain significant amounts of the actual fruits shown in the marketing and on the labeling of the Products, were nutritious and healthful to consume, and were more healthful than similar products." Plaintiffs state as examples of these misrepresentations that Defendants labeled the Products to state that they are "Made With REAL Fruit" and depicted pictures of the fruit advertised as the flavor of the Product; labeled the Products as containing "100% Vitamin C" and "25% Vitamins A & E," as "FAT FREE," and as containing no gluten or preservatives; included on the packaging of the Products that "the Welch's name has been built on the highest quality fruit proudly grown on family farms" and that "in this tradition of wholesome goodness come Welch's Fruit Snacks, made with real fruit and fruit juices,"; and stated on Welch's website that the Products are "wholesome" and of a "quality that can only be Welch's". Plaintiffs seek money damages, restitution and injunctive relief. Defendants move to dismiss or stay the action pursuant to the primary jurisdiction doctrine. Defendants also move to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of standing and for failure to state a claim. By report and recommendation dated August 5, 2016 (the R&R), Magistrate Judge Scanlon recommended that the Court grant Defendants' motion to dismiss Plaintiffs' claims for breach of implied warranty, unjust enrichment, injunctive relief and Plaintiffs' remaining claims to the degree that they fall outside the relevant statutes of limitation, and that the Court otherwise deny Defendants' motion to dismiss. On August 19, 2006, Plaintiffs and Defendants objected to the R&R. Plaintiffs object to Judge Scanlon's recommendation that the Court find that they lack standing to seek injunctive relief. Defendants object to Judge Scanlon's recommendation that the Court deny their motion to dismiss Plaintiffs' claims for lack of Article III standing, Plaintiffs' consumer claims and Plaintiffs' breach of express warranty claims. Defendants argue that: (1) Plaintiffs do not have Article III standing to assert claims against Defendants as to the Non-Purchased Products because "Plaintiffs have not suffered injury in a 'personal and individual way'; (2) Plaintiffs' claims for violations of the New York General Business Law, the California Consumers Legal Remedies Act, the California Unfair Competition Law and the California False Advertising Law fail as a matter of law because Defendant's representations regarding the Products would not mislead a reasonable consumer; and (3) Plaintiffs have not stated a breach of express warranty claim because they have not identified any "affirmative representations or that Defendants' products did not conform to any alleged affirmative representations." In her Memorandum and Order dated September 30, 2016 available at https://is.gd/CGRBey from Leagle.com, Judge Brodie adopted Judge Scanlon's determination that: (1) in view of Plaintiffs' allegation "that there is not a significant amount of the fruit depicted on the packaging in the Products and that they are unhealthy relative to real, whole fruit, it would be premature to hold that no reasonable consumer would be misled by Defendants' representations; (2) Plaintiffs have established Article III standing for Non- Purchased products because they have sufficiently stated a cognizable injury by Defendants; (3) Plaintiffs lack standing to seek injunctive relief because Plaintiffs have failed to allege a risk of future injury; and (4) As to breach of warranty claims, the Court adopted Judge Scalion' reasoning from her analysis of Plaintiffs' state law consumer protection claims to conclude that Defendants' representations "regarding the Products' wholesome nature is sufficient to constitute an express warranty." Winnie Lau, et al. are represented by Amanda Howell, Esq. -- and Stephen Gardner, Esq. -- sgardner@mckennalong.com -- STANLEY LAW GROUP Lau, et al. are also represented by: Kim Richman, Esq. THE RICHMAN LAW GROUP 81 Prospect Street Brooklyn, NY 11201 Tel:(718)705-4579 Welch Foods, Inc., et al. are represented by Daniel S. Silverman, Esq. -- dssilverman@Venable.com -- Elise Margaret Gabriel, Esq. -- emgabriel@Venable.com -- Kimberly C. Cloyd, Esq. -- kccloyd@Venable.com -- and Matthew Gurvitz, Esq. -- mgurvitz@Venable.com -- VENABLE LLP WELLS FARGO: Faces Second Class Action Over Stock Drop ------------------------------------------------------ John Manganaro, writing for Plans Sponsor, reports that a new lawsuit filed in the U.S. District Court for the District of Minnesota suggests Wells Fargo's highly publicized sales violations in its personal banking business have also caused the company to breach its fiduciary duty to retirement plan participants. Specifically, plaintiffs accuse the bank's internal management of improperly retaining common stock of Wells Fargo & Company as an investment option in the company's 401(k) plan "when a reasonable fiduciary using the care, skill, prudence, and diligence . . . that a prudent man acting in a like capacity and familiar with such matters would have done otherwise." The allegations in the suit follow the classic pattern of so-called "stock drop" litigation, and they follow a similar complaint recently filed against Wells Fargo in the same jurisdiction, with some important differences. By way of background, negative media reports and Congressional inquiries have plagued Wells Fargo's personal banking wing for roughly a month now. According to published news reports and the admissions of now-ousted CEO and Chairman John Stumpf, the company's aggressive sales requirements for low-level banking professionals directly inspired the opening of millions of unauthorized customer accounts. This resulted in a major backlash against the company that has cut roughly 12% to 15% of Wells Fargo stock's market value compared with this time last year. The company faces separate civil penalties approaching $200 million. This second piece of proposed class-action litigation argues that defendants, who allegedly had access to non-public information relating to Wells Fargo's operations, permitted the plan to continue to offer Wells Fargo Stock as an investment option to participants even after they knew or should have known that Wells Fargo Stock was artificially inflated during the class period -- defined by plaintiffs as January 1, 2011 to September 8, 2016. "Due to the artificial inflation of the company stock price -- which would be corrected upon the revelation of negative information -- Wells Fargo Stock was an imprudent retirement investment for the plan given its purpose of helping plan participants save for retirement," the plaintiffs claim. "As fiduciaries of the plan, defendants were empowered to remove Wells Fargo Stock from the plan's investment options, or to take other measures to help participants, but failed to do so or to take any other action to protect the interests of the plan or its participants." As a result, according to the plaintiffs, Wells Fargo managers breached their obligations under ERISA and are liable for damages to a large class of participants. WEST PUBLISHING: Tsao Sues Over Auto Renewal of Westlaw Services ---------------------------------------------------------------- PAMELA TSAO, an individual, and on behalf of all others similarly situated v. WEST PUBLISHING CORPORATION, a Minnesota Corporation; and THOMSON REUTERS HOLDINGS, INC., a Delaware Corporation, Case No. 8:16-cv-01898 (C.D. Cal., October 17, 2016), is brought on behalf of all persons and business entities in the state of California, who purchased or otherwise subscribed to the Defendants' Westlaw or Thomson West services that included automatic renewal or continuous service provisions from the four years preceding the filing of the Complaint until the present. Ms. Tsao asserts that the Defendants included an automatic renewal provision in the Westlaw Contract, which was not set forth in an obvious, distinguishable, clear or conspicuous manner that required automatic renewal without notice for consecutive full 12 month terms at increased pricing. She alleges that to date, she continues to be charged for the Defendants' Westlaw services, without authorization, despite never communicating an intention to renew said services and, later, specifically communicating a request to cease them immediately to no avail. West Publishing Corporation is a Minnesota Corporation, qualified to do business in the state of California. Thomson Reuters Holdings, Inc. is, a Delaware Corporation, qualified to do business in the state of California. The Defendants do significant business throughout the California, including providing Westlaw and Thomson West services to clients throughout Orange County, California. The Plaintiff is represented by: Matthew S. D'Abusco, Esq. Leslie J. Glyer, Esq. ARES LAW GROUP, LLP 23 Corporate Plaza Drive, Suite 150 Newport Beach, CA 92660 Telephone: (949) 629-2519 E-mail: Matt@areslawgroup.com Leslie@areslawgroup.com WEX INC: Swinter Group Seeks Certification of Class Under TCPA -------------------------------------------------------------- Swinter Group, Inc., asks the Court to certify its class claims in the lawsuit entitled SWINTER GROUP, INC. v. WEX, INC. d/b/a WEX FLEET ONE, et al., Case No. 4:16-cv-01464-JAR (E.D. Mo.). The Case is brought against the Defendants for alleged violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005 and the regulations promulgated thereunder. Swinter Group also moves to stay briefing and ruling on the Motion until completion of discovery and upon further order of the Court. Swinter Group asks that its Motion be held in abeyance in order to avoid granting WEX a strategic advantage, allowing WEX to make an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure, a common, but now discredited strategy by defendants to "pick off" named plaintiffs when no motion for class certification has been granted. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Tn91MgZW The Plaintiff is represented by: Ronald J. Eisenberg, Esq. Robert Schultz, Esq. SCHULTZ & ASSOCIATES LLP 640 Cepi Drive, Suite A Chesterfield, MO 63005-1221 Telephone: (636) 537-4645 Facsimile: (636) 537-2599 E-mail: reisenberg@sl-lawyers.com rschultz@sl-lawyers.com WOLF PETROLEUM: "Moss" Suit Seeks to Recoup Wages Under FLSA ------------------------------------------------------------ MICHAEL MOSS, on behalf of himself and others similarly situated, Plaintiffs, v. WOLF PETROLEUM SERVICES, LLC, Defendant, Case No. 5:16-cv-01435 (W.D. La., October 13, 2016), alleges that Wolf is violating the Fair Labor Standards Act by forcing its employees to work a substantial amount of overtime without properly paying all compensation due, thus depriving them of rightful compensation for their work that Wolf is legally obligated to pay. Wolf Petroleum Services, LLC is a gas service company. The Plaintiff is represented by: Barrett Beasley, Esq. SALIM-BEASLEY, LLC 1901 Texas Street Natchitoches, LA 71457 Phone: (318) 352-5999 Fax: (318) 352-5998 E-mail: bbeasley@salim-beasley.com - and - Robert W. Cowan, Esq. BAILEY PEAVY BAILEY COWAN HECKAMAN PLLC 440 Louisiana Street, Suite 2100 Houston, TX 77002 Phone: (713) 425-7100 Fax: (713) 425-7101 E-mail: rcowan@bpblaw.com WWW.URBAN INC: Lee Seeks to Certify Class of Home Consultants ------------------------------------------------------------- The Plaintiffs in the lawsuit titled NYOK LEE a/k/a STEVE LEE, WEI-MIN WANG a/k/a RAYMOND WANG, TIM BROWN, CARLOS SAAVEDRA, SUNIL LALANI, SHEA PHILLIPS, and All Others Similarly Situated v. WWW.URBAN, INC., d/b/a URBAN LIVING, GEORGE SALASKI, and VINOD KEWALRAMANI, Case No. 4:16-cv-01841 (S.D. Tex.), move the Court for an order to send notice to potential class members in the case as a class action on behalf of this class of similarly situated persons: All of Defendants' current and former employees employed as Home Consultants, and who were paid pursuant to a commission and/or salary rate who were not paid minimum wage and overtime in compliance with the Federal Labor Standards Act, including the mandate that such employees received payment for all hours worked beyond 40 hours each week, before the filing of this Complaint up to the present. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PRDyN4WJ The Plaintiffs are represented by: Charles M.R. Vethan, Esq. THE VETHAN LAW FIRM, PC 3501 Allen Parkway Houston, TX 77019 Telephone: (713) 526-2222 Facsimile: (713) 526-2230 E-mail: cvethan@texasbizlaw.com YAHOO INC: "Finnegan" File Suit Over 2014 Security Breach --------------------------------------------------------- JIM FINNEGAN, LUCRESSE CAYEMITTE, CHRISTOPHER HAVRON, KATELYN SMITH, THOMAS HOWES and DERRON APPLETON, individually and on behalf of all other persons similarly situated, Plaintiffs, v. YAHOO, INC., a California corporation, Defendant, Case No. 1:16- cv-09809 (N.D. Ill., October 18, 2016), accuses the Defendant of failing to adequately protect the private and confidential personal information of its internet users in the United States during a 2014 security breach. YAHOO is an Internet Company that provides web-based services to millions of users on a monthly basis. The Plaintiffs are represented by: Robert J. Shelist, Esq. LAW OFFICES OF ROBERT J. SHELIST, P.C. 500 N. Michigan Avenue--Suite 600 Chicago, IL 60611 Phone: 312- 226-0675 Fax: 312-226-1053 E-mail: rjsattorny@aol.com - and - Athan T. Tsimpedes, Esq. TSIMPEDES LAW FIRM 1200 New Hampshire Avenue, Suite 725 Washington, D.C. 20036 Phone: 202-464-9910 Fax: 202-747-2947 E-mail: athan@tsimpedeslaw.com YAHOO! INC: Hacking Plaintiffs Want to Pursue Claims in Calif. -------------------------------------------------------------- David McAfee, writing for Bloomberg BNA, reports that Yahoo! Inc. is facing litigation fallout in federal and state courts after a high-profile hacking attack that exposed information of over 500 million accounts. Howard M. Privette -- hprivette@ggtriallaw.com -- a partner at Greenberg Gross LLP in Costa Mesa, Calif., told Bloomberg BNA that "it appears that the state plaintiffs want to try to pursue claims under California law on behalf of California residents, rather than have their claims mixed together with residents of other states in a single huge federal lawsuit." The plaintiffs and their counsel more than likely picked California because of the state's "strong consumer protection statutes," Mr. Privette said. California has among the strictest laws governing data security and privacy issues, he said. "Class action defense counsel often consider federal court to be a more hospitable forum, and I would not be surprised to see Yahoo try to have these cases removed to federal court under the Class Action Fairness Act," he said. Whether to file a consumer class complaint in federal or state court can be a major decision that impacts the overall outcome of the case and the amount of a potential settlement. Plaintiffs and defendants may pick and choose different litigation paths based on the specific facts of the case. There are six active lawsuits in California state courts filed since the breach became public Sept. 22 (15 PVLR 1881, 9/26/16), according to Bloomberg Law data as of Oct. 13. The plaintiffs in the state cases have raised California constitutional, breach of contract, invasion of privacy and consumer protection claims, Bloomberg Law data show. Additionally, there is a federal consolidated putative class action in the U.S. Judicial Panel on Multidistrict Litigation and other federal cases arising out of the data breach claims (15 PVLR 1950, 10/3/16). It is unknown whether Yahoo will file a motion to compel the state court actions to federal court and the company declined to comment on the pending litigation Oct. 13. Federal or State? Mr. Privette said one of the primary issues plaintiffs in data breach cases face is the requirement that they must have suffered an "injury in fact" traceable to the defendant's conduct in order to sue in federal court under Article III of the U.S. Constitution (15 PVLR 1799, 9/12/16). "Although this is still a developing area of the law, a number of federal courts have dismissed data breach cases right at the outset because they found this requirement lacking," Mr. Privette said. "California courts do not have the same strict Article III limitation on their jurisdiction, and plaintiffs may try to use the absence of that limitation to avoid some of the threshold standing arguments they might face in federal court," he said. * Colorado Developers Seek Reform of Construction Defects Law ------------------------------------------------------------- Pat Ferrier, writing for The Coloradoan, reports that a planned subdivision in northeast Fort Collins may be getting bigger. Hartford Homes, which has approval to build 568 homes as part of the East Ridge development, has proposed adding 306 multifamily units on the southeast corner of Timberline Road and Vine Drive in northeast Fort Collins. Preliminary plans submitted to the city's planning department show three separate tracts with four-, five- and sixplexes on about 34 acres along Vine and Timberline. Hartford Homes president Landon Hoover said the project wouldn't start for probably two years and would be built out over five years. Mr. Hoover said he has not determined whether the project would include condominiums as well as apartments and townhomes, or what sales prices would be. "We want those to be at the more affordable price point, but we just don't know yet," he said. Mr. Hoover said he won't build condominiums unless the state's construction defects law is changed. The law -- which allows as few as two condo owners to bring a class-action lawsuit against a builder -- was passed to protect consumers from unscrupulous builders and shoddy construction during the nation's prerecession building boom. The ease with which homeowners can sue and the threat of litigation has made it prohibitively expensive for developers to insure, build and sell condominiums, say critics who have tried repeatedly and failed to see the law changed. That means many builders like Hoover shy away from condos, oftentimes the least-expensive product to build and the most- affordable entry into homeownership. If the law doesn't change before Hoover is ready to break ground, "we certainly can go the apartment route," he said. Phase 1 of the East Ridge development is just getting underway with infrastructure work. Mr. Hoover said he hoped model homes would begin going up by the end of the year on what will be the first of 218 homes in the project. East Ridge was approved in January on land that was annexed into Fort Collins in 2002. Homes are expected to be built in nine phases with prices in the $300,000s to $400,000s. Though finding and buying enough water to serve a project has been difficult, Mr. Hoover said he has acquired the water for the first few phases of East Ridge, but has not yet secured water for the multifamily units recently proposed. "Water remains very challenging and expensive," he said. Day. * German Government Denies Delaying Class Action Reform ------------------------------------------------------- Deutsche Welle reports that the German government has denied allegations raised by the public television station ARD and the "Sueddeutsche Zeitung" (SZ) newspaper that it is purposely delaying legislation to permit the equivalent of class-action suits in Germany. Such suits are not currently admitted under German law, but in late September 2015, in the immediate wake of the Volkswagen emissions scandal, the Justice Ministry said that it was examining "with particular interest" the possibility of changing that. Citing internal ministry memos, ARD and the SZ reported that the parameters for draft legislation were readied in late November 2015, but that the initiative has been put on ice. Justice and Consumer Protection Ministry spokesperson Piotr Malachowski rejected that contention and said draft legislation was in the pipeline. "The draft legislation isn't finished yet," said Mr. Malachowski at the government's Oct. 17 press conference in Berlin. "We're still intensively investigating the possibilities of class-action lawsuits. We intend to stick to the plan of putting forward legislation this year. I can't say why it's taken so long." But that's precisely one of the questions that consumer advocacy groups and the political opposition would like answered -- sooner rather than later. A ticking clock? In late June 2016, Volkswagen paid out the record sum of $15.3 billion (13.9 billion euros) to settle the various public and private legal actions, including class-action lawsuits, in the US and Canada after it was proven that the car-maker had manipulated emissions data for some of its diesel models. In Germany, VW has offered car owners free adjustments to their vehicles, but no financial compensation. For Renate Kuenast, Green Party deputy and former German consumer protection minister from 2001 to 2005, that's an unacceptable situation. "This government doesn't really represent the interests of consumers vis-a-vis VW," Kuenast told DW. "It's a continuing story of government failure. No one is standing up and saying: Consumers here should have the same rights as consumers in the US." At a conference hosted by the Federation of German Consumer Organizations on September 28, 2015, just 10 days after the emissions scandal broke, Deputy Justice and Consumer Protection Minister Gerd Billen expressed enthusiastic support for introducing a suitable legal instrument in Germany. But despite the ministry's assurance that legislation is on the way, the Federation's director of consumer policies Jutta Gurkmann doubts that anything will happen before Germany's national election next September. "Everyone agreed last year that we needed something, and the deputy minister announced that the ministry would work on it," Mr. Gurkmann told DW. "We're still waiting. We hoped that something would come in the second quarter of 2016. You always calculate how much time legislation needs in order to be passed in this legislative period. If it only goes to the cabinet at the end of this year, it would be quite a feat to get it through by next summer." Playing for time? Both the Greens and the Left Party accuse the government of deliberately stalling reforms in the interests of VW and the entire German automotive industry. "I think it will be delayed into the next legislative period because this situation is about preventing people who have grievances from getting compensation," Karin Binder, the consumer affairs spokesperson of the Left Party, told DW. Mr. Kuenast says that it would be possible to pass class-action suit legislation, if the government were to present a draft law. "We are capable of passing a law right now with no problems," Mr. Kuenast said. "We deal with much more complicated legislation in much shorter periods of time. We have all the time in the world." Both Messrs. Kuenast and Binder argue the possibility of launching class-action lawsuits is essential to protecting consumers' rights. Consumer advocacy groups agree and say all sides in conflicts like the emissions scandal would benefit if plaintiffs were allowed to bring legal cases collectively. "There are lots of advantages from my perspective," Jutta Gurkmann said. "The courts' workload would be reduced, and it's easier for a business to go up against a large group instead of confronting every single individual in a trial. But maybe part of the story is that it's well known that individual consumers rarely take their cases to the courts." Critics say the coalition favors carmakers over consumers Applying the brakes? The SZ report also alleges that the Transport Ministry, which is headed by a member of the conservative CSU, intervened with the Social Democrat-led Justice Ministry to delay and water down possible class-action-suit legislation. On Oct. 17, Transport Ministry spokesperson Vera Moosmayer vigorously denied any activity on behalf of Volkswagen or the auto industry as a whole. "By no means would we block measures aimed at protecting consumers," Ms. Moosmayer said. But Mr. Kuenast thinks that differing perspectives among the members of Germany's governing grand coalition could indeed be holding up legislative reform. "The Transport Ministry is doing everything in its power to protect VW from the customers," Mr. Kuenast said. "And I wish German Justice Minister Heiko Maas would stand up for them." * NCDRC Says Consumers with Common Grievance Can File Class Action ------------------------------------------------------------------ Moneylife reports that the National Consumer Disputes Redressal Commission (NCDRC) has upheld that consumers having a common interest or grievance and seeking same relief can file class action suit against the other party. This judgment also paves way for lakhs of investors to seek relief from companies that are not repaying money invested in corporate fixed deposits (FDs). "In one of the written submissions, it is contended that since a complaint in a representative capacity can be filed only on behalf of all the consumer having the same interest, such a complaint will not be maintainable where one or more individual complaints, expressing such a grievance are already pending. We however, are unable to accept the contention. No such restriction finds place in Section 12(1)(c) of the Consumer Protection Act or in Order I Rule 8 of the Code of Civil Procedure. Accepting such a contention would defeat the very purpose of allowing such a suit or complaint since every consumer would be compelled to file an individual complaint leading to multiplicity of proceedings. Such an interpretation would not serve the cause either of the consumer or of the service provider," ruled a three member Bench at the NCDRC. In the order, the Bench of Justice DK Jain, Justice VK Jain and Dr BC Gupta, stated, "Section 12(1) (c) of the Consumer Protection Act when read with Order I Rule 8 of the Code of the Civil Procedure will apply if (i) the consumers are numerous (ii) They have the same interest (iii) the necessary permission of the Consumer Forum is obtained and (iv) notice in terms of Sub-rule (2) of Rule 8 of Order I is given. It however, is not necessary that the cause of action available to all the consumers should also be the same. What is required is sameness of the interest and not the same cause of action." The national consumer forum was hearing a case filed by Bahadurgarh, Jhajjar-based Ambrish Kumar Shukla and 21 others against Ferrous Infrastructure Pvt Ltd. The NCDRC Bench also referred two orders passed by the Forum relating to the interpretation of Section 12(1)(c) of the Consumer Protection Act. Section 12(1) of the Consumer Protection Act reads as under: (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by: (a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided; (b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d) the Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general. Section 13(6) of the Consumer Protection Act reads as under: (6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon. Section 2(1)(b) of the Consumer Protection Act reads as under: (b) "complainant" means - (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government; or (iv) one or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint; Order I of Rule 8 of the Code of Civil Procedure which finds reference in Section 13(6) of the Consumer Protection Act, reads as under: 8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,? (a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiff's expenses notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. While maintaining that the decision in one complaint filed in a representative capacity will bind all the consumers on whose behalf or for whose benefit the complaint is filed, as provided in Order I Rule 8 (6) of the Code of Civil Procedure, the NCDRC Bench clarified that second complaint with same grievance and relief will be dismissed. It says, ". . . once a complaint, in a representative capacity is filed under Section 12(1)(c) of the Consumer Protection Act, and the requisite permission for filing such a complaint is given by the Consumer Forum, a second complaint, in a representative capacity under Section 12(1)(c) of the Consumer Protection Act would not be maintainable by or on behalf of consumers having the same interest and seeking the same relief and if filed, is liable to be dismissed with liberty to seek impleadment in the complaint already instituted in a representative capacity with the requisite permission of the Consumer Forum." "Since a complaint in a representative capacity can be filed only on behalf of all the consumers having the same interest i.e. a common grievance and seeking the same relief against the same person, an individual complaint expressing such a grievance will not be maintainable and the only recourse available to a consumer having the same grievance is to seek impleadment in the complaint filed in the representative capacity," the Bench added. At the same time, individual complaints filed before the grant of requisite permission under Section 12(1)(c) of the Consumer Protection Act cannot be compelled to withdraw and the consumer can go ahead with his/her complaint. "Since it cannot be said that the complaint in the representative capacity was filed on their behalf or for their benefit as well, the order passed in such a complaint will not be binding on them. If however, such persons want to withdraw their pending complaints and join the complaint instituted in the representative capacity, there is no bar on their adopting such a course of action. The decision, of course, would rest with them whether to continue with the individual complaint already instituted by them or to withdraw the said complaint and become party to the complaint filed in a representative capacity," the NCDRC Bench said. While emphasizing upon the binding effect of a decision rendered in a complaint under Section 12(1)(c) of the Consumer Protection Act, on all the consumers, on whose behalf or for whose benefit such a complaint is filed, even if they chose not to join as a party to the complaint, the Bench said it is necessary to exercise due care and caution while considering such a complaint even at the initial stage and to grant the requisite permission, only where the complaint fulfils all the requisite conditions in terms of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure; as interpreted in this reference. "It would also be necessary for the Bench to either give individual notices or an adequate public notice of the institution of the complaint to all the persons on whose behalf or for whose benefit the complaint is instituted. Such a notice should disclose inter-alia (i) the subject matter of the complaint including the particulars of the project if the complaint relates to a housing project / scheme, (ii) the class of persons on whose behalf or for whose benefit the complaint is filed, (iii) the common grievance sought to get redressed through the class action, (iv) the alleged deficiency in the services and (v) the reliefs claimed in the complaint. It will also be necessary to hear the opposite party, before taking a final view on the grant or otherwise of the permission required in terms of Section 12(1)(c) of the Consumer Protection Act," the National Consumer Forum concluded. * Supreme Court May Review Enforceability of Class Action Waivers ----------------------------------------------------------------- Evan J. Spelfogel, Esq. -- espelfogel@ebglaw.com -- of Epstein Becker & Green, P.C., in an article for The National Law Review, reports that one of the most controversial issues in employment law these days involves the position of the National Labor Relations Board ("NLRB" or "Board") that an employer violates the National Labor Relations Act ("NLRA") when it requires employees to pursue any dispute they have with their employer on an individual, rather than on a class or collective action, basis with other employees. It is a position that has been adopted by two circuit courts and rejected by three -- a conflict that suggests that the issue is ripe for U.S. Supreme Court review. The NLRB has contended that when an employer requires employees to sign an agreement precluding them from bringing or joining a concerted legal claim regarding wages, hours, and other terms and conditions of employment, the employer deprives them of rights guaranteed under Section 7 of the NLRA to engage in concerted activities for employees' mutual aid or protection. That right, the proponents argue, includes the right to join together in class and collective litigation to pursue workplace grievances in court or in arbitration. In making that argument, the NLRB appears to be neglecting the second part of Section 7 (added to the NLRA by the 1947 Taft- Hartley Amendments), which guarantees to employees an equal right to refrain from engaging in concerted activities for their mutual aid and protection. It would seem to follow that, if they have the right to refrain from engaging in concerted activities, employees could waive their right to participate in class and collective actions. While the NLRB's argument appears flawed, the Seventh and Ninth Circuits have agreed with the NLRB that where such agreements are a condition of employment, they deprived employees of their rights to engage in "concerted activities" for their mutual aid and benefit guaranteed to them under Section 7 of the NLRA. These decisions conflict with earlier decisions of the Fifth, Eighth, and, most recently, Second Circuits rejecting the Board's position. At least one dissenting judge, Sandra Ikuta of the Ninth Circuit, stated that the majority decision was "breathtaking in its scope and in its error." She noted that the majority decision was directly contrary to Supreme Court Federal Arbitration Act ("FAA") precedent and that the individual arbitration mandate should have been enforced according to its terms under the FAA. The Ninth Circuit, it should be noted, previously held that an arbitration agreement with a class and collective action waiver did not violate the NLRA when the employee could opt out of the individual arbitration agreement but chose not to do so. In those jurisdictions covered by the Seventh and Ninth Circuits, class and collective action waivers are likely unenforceable to the extent they are a condition of employment. In jurisdictions covered by the Second, Fifth, and Eighth Circuits, class and collective action waivers would appear to be enforceable. Other circuits have yet to rule on the issue, leaving district courts within those circuits to weigh conflicting arguments on both sides. The Supreme Court may well step in to resolve the conflict between the circuits on this important issue. Petitions for certiorari have been filed recently in four different cases. The issue before the Supreme Court in all four of these cases is whether the NLRA prohibits an employer from requiring employees to agree to waive their rights to arbitrate class and collective disputes or whether the FAA, which favors arbitration, controls; in short, whether class and collective waivers in arbitration agreements are enforceable. As there is clearly a conflict among the circuits, it would appear that there is a significant chance that the Supreme Court will grant certiorari and resolve this conflict. As a practical matter, U.S. Supreme Court Justice Anthony Scalia's death earlier this year, his still-unfilled seat, and the upcoming presidential election may play significant roles in resolving this issue if the Supreme Court grants certiorari. As many will recall, it was Justice Scalia who wrote the majority opinions in AT&T Mobility v. Concepcion and American Express v. Italian Colors. In those cases, the Supreme Court upheld class action waivers, albeit in the commercial setting, not in an employment, setting. With Justice Scalia's seat unfilled and only eight current justices, a four-to-four split at the Supreme Court would leave all of the circuit decisions standing, including both the Seventh and Ninth Circuit decisions in favor of the NLRB's position, as well as the Second, Fifth, and Eighth Circuit decisions rejecting the NLRB's position. Depending upon which party wins the upcoming presidential elections, the makeup of the Supreme Court justices (and of the five-member NLRB) may play a significant role in the outcome of this issue. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, 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 2016. 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 * * *