/raid1/www/Hosts/bankrupt/CAR_Public/161122.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, November 22, 2016, Vol. 18, No. 233
Headlines
1-800CONTACTS: Faces Antitrust Class Actions in California
A.C PROMOTIONS: "Sabater" Suit Alleges Violations of FLSA, EPPA
ACADEMY OF MAGICAL: Faces "Peters" Wage and Hour Suit in Calif.
ACT INC: Must Defend Against Bais Yaakov of Spring, Court Says
AGRIA CORP: "Balon" Sues Over Breach of Fiduciary Duties
AMERICAN EXPEDITING: Faces "Morin" Suit Over Failure to Pay OT
BIERER LAW: Violates Fair Debt Collection Act, Johnson Suit Says
BJ'S WHOLESALE: "Canizaro" Class Suit Removed to S.D. Florida
BMW NA: Court Narrows Claims in "Afzal" Amended Complaint
BOSAL NEDERLAND: Manny's Auto Alleges Violation of Antitrust Laws
CAFE VALLEY: Violates Fair Credit Reporting Act, Ogletree Claims
CAPITAL GRILLE: Sued Over Americans With Disabilities Act Breach
CARMEL, IN: Plaintiffs in Traffic Ordinance Suit Appeal Dismissal
CELADON TRUCKING: Faces "Hawkins" Class Suit in C.D. California
CHERRY CREEK: Faces Class Action Undisclosed Finance Fees
CHICAGO, IL: Sued Over New Restrictions on Home-Sharing Services
CHICAGO, IL: Red Light Camera Class Action Can Proceed
CHURCH & DWIGHT: "Corbett" Sues Over Toxic Teething Products
COGNIZANT: SEC Probe Unveils $5MM Improper Payments in India
COMCAST CORP: Heins Mills, Susman Godfrey Fee Row Goes to Trial
COMPLIANCE ADVANTAGE: Faces "Criswell" Suit in E.D. Kentucky
CONVERGENT OUTSOURCING: Illegally Collects Debt, Action Claims
COSTCO: Faces Kirkland Signature Chicken Slack Fill Class Action
DIPLOMAT PHARMACY: Violates Securities Act, "Zimmerman" Suit Says
DNC SERVICES: "Katz" Sues Over Unpaid Overtime Wages
EOG RESOURCES: "Snead" Suit Seeks to Recover Unpaid Back Wages
FCA US LLC: Victorino-Tavitian Case Survives Motion to Dismiss
FLOWERS FOODS: Faces "Martins" Suit Alleging FLSA Violations
FMC TECH: "Moten" Suit Seeks to Recover Unpaid Overtime Pay
FRENCH QUARTER: Plaintiff Awarded $13,000 in Attorneys' Fees
GLAXOSMITHKLINE: WLF Supports Flonase Class Action Settlement
HIH INC: "Romero" Suit to Recover Overtime Pay
HILLSTONE RESTAURANT: Faces "Marett" Suit Over ADA Violation
HOME DEPOT: Faces Class Action Over Free Water Test Kits
JOYA COMMUNICATIONS: Sends Unauthorized Texts, Crossley Alleges
JPJE CORP: "Osorio" Action Seeks to Recover Overtime Pay
JPMORGAN CHASE: "Ballesteros" Suit Over Short Sales Dismissed
LA CASA DE LOS TRUCOS: "Lopez" Suit to Recover Overtime Pay
LENA JESS: Faces "Gamez" Suit Over Failure to Pay Overtime Wages
LOGANS SANCTUARY: Sued by Riley for Violating Disabilities Act
LOS PANCHOS: "Ramos" Suit Invokes FLSA, Ill. Wage Laws
MEZENTCO SOLUTIONS: Faces Chemotherapy Dosing Class Action
MIDLAND CREDIT: Accused by "Keenan" Class Suit of Violating FDCPA
NEW WORLD LOGISTICS: Sued by Magana for Misclassifying Drivers
NEW YORK, NY: "Campbell" Suit to Recover Overtime Pay
NORTHLAND GROUP: Violates Fair Debt Collection Act, Stiel Claims
PERMANENT WORKERS: 5th Cir. Revives "Portillo" Suit
PIONEER NATURAL: "McAfee" Lawsuit Alleges Violations of FLSA
POMONA USD: Sued by JV for Violating Disabled Kids' Civil Rights
PRONAI THERAPEUTICS: "Gregory" Sues Over Share Price Drop
PYRAMID HEALTHCARE: Must Defend Against "Graham" Suit, Court Says
RANDY'S TRUCKING: Must Defend Against "Phillips" Wage & Hour Suit
REWALK ROBOTICS: Faces "Nathan" Securities Suit Over 2014 IPO
ROB-GLEN ENTERPRISES: Accused by "Nunes" Suit of Violating FLSA
SAMSUNG ELECTRONICS: Faces Note 7 Class Action in Canada
SAMSUNG ELECTRONICS: Recalls Top-Loading Washing Machines
SANTA FE, NM: Faces Class Action Over Unconstitutional Detentions
SENSA PRODUCTS: "Conde" Suit Over Weight Loss Product Tossed
SOUTHERNTELECOM: "Toh" Class Suit Removed to Mass. Dist. Ct.
STEMGENEX MEDICAL: "Moorer" Class Suit Removed to S.D. California
STONY HOLLOW: Faces Class Action Over Landfill Odor Complaints
SUPREME INDUSTRIES: January 3 Lead Plaintiff Motion Deadline Set
TENNESSEE VALLEY: Class Action Mulled Over Coal Ash Contamination
TERMINIX INTERNATIONAL: Court Revives Eubank's 2 Claims
TRIAD MEDIA: "Vasquez" Suit Over Spam Text Underway
UNITED STATES: Garett Earns Preliminary Injunction Against IRS
UNITED STATES: Welborn Suit v. IRS Dismissed for Lack of Standing
WAL-MART STORES: Spokeo Ruling Doesn't Apply in Fraser-Haug Suit
WAL-MART STORES: "Monahan" Sues Over Bed Linen Product False Ad
WEST VIRGINIA AMERICAN: "Good" Counsel May Contact Opt-Outs
XEROX HR: Faces "Chendes" ERISA Class Suit in Michigan
* "Consumer Action" Group Puts Together Class-Action Database
* Less Than 10% of Eligible Consumers "Claim" Settlement Share
* Super Funds Mull Class Actions Over Deceptive Behavior
* Top Class Actions Provides Updates on New Lawsuits, Settlements
* U.S. Circuit Courts of Appeal Split on NLRB Waiver Issue
*********
1-800CONTACTS: Faces Antitrust Class Actions in California
----------------------------------------------------------
Robert Lawson, writing for Northern California Record, reports
that 1-800Contacts is facing action from the U.S. Federal Trade
Commission and two civil lawsuits stemming from alleged antitrust
law violation and unfair business practices.
One suit falls in U.S. District Court for the Southern District of
California and was filed by J. Thompson and William Duncanson. The
other is in the Northern District of California. Both suits are
class-action.
The FTC asserted that the company violated antitrust laws and
engaged in unfair business practices by preventing competitors
from using trademarks in ads in online search engines, according
to reports.
1-800Contacts allegedly threatened legal action against more than
a dozen companies using their trademark name, 1-800Contacts (and
variants), causing, according to the FTC, artificial volatility
and price-fixing in online ad markets for contact lens retailers
bidding on search engine ads and keywords. Messrs. Thompson and
Duncanson said in their complaint the company was involved in an
"overarching scheme to restrain competition."
The cases mix implications of trademark law with antitrust and
consumer law and draw much of their details of fact from the FTC
findings. Kim Stone, director of the Civil Justice Association of
California, said West Coast class action rules are more clearly
favorable for the plaintiffs.
"I'm not a trademark expert, but I do know that California class-
action rules are more pro-plaintiff than are the rules of other
states and than are the federal rules," Ms. Stone told the
Northern California Record.
The FTC found that between the years 2004 and 2013, 1-800Contacts
sued or threatened to sue several competitors for supposedly
purchasing the search keyword term, "1-800Contacts" for pay-per-
click (PPC) search ad campaigns. 1-800Contacts argued trademark
infringement. Lens.com fought a suit alone, which yielded a
ruling mostly in Lens.com's favor, according to reports.
Fourteen other retailers agreed to restrict use of the term in
similar ads, the FTC contends. The agreements additionally
require them to use "negative" keywords that direct search engines
to restrict display ads in response to queries with that
particular trademark term. The FTC argues that these agreements
distorted prices in search advertising auctions and created
artificially higher prices in some instances for consumers.
Messrs. Duncanson and Thompson mirror this sentiment in their
complaint. They called the agreements unlawful because
competitors were prevented from advertising against the company,
resulting in higher prices for contact lenses. They also said 1-
800Contact gave the misleading impression they were providing the
lowest possible cost. They allege the company shielded the public
from competing prices available from other retailers of the same
type of products. The plaintiffs also are suing some of the
company's competitors, including Vision Direct, which may have
entered into an agreement with 1-800Contacts, according to
reports.
Legal counsel for 1-800Contacts, Cindy Williams, said these class
action lawsuits lack any merit and said the company disagrees with
these allegations and their basis, further asserting trademark
protection arguments to dismiss the complaints. 1-800Contacts,
through their attorney, have said they look forward to resolving
the issue in the courts.
Courts have yet to take a clear position on how to resolve issues
involving trademark use in search advertising. Both Google and
Yahoo! have been victorious in a variety of suits claiming they
wrongly allowed a trademark to trigger PPC ads.
Ms. Stone, meanwhile, notes the opportunity exists for attorneys
to continue filing suit.
"California is home to hundreds of lawyer-driven class-action
lawsuits where the lawyers get millions and the class members get
pennies," Ms. Stone said. "I just got a check in the mail for one
cent for a class-action lawsuit I didn't even know I was a part
of."
A.C PROMOTIONS: "Sabater" Suit Alleges Violations of FLSA, EPPA
---------------------------------------------------------------
WILLIAM A. MILLAN SABATER, and other similarly situated
individuals, Plaintiffs, v. A.C PROMOTIONS, CORP d/b/a AC
LOGISTICS and ALEXANDER CASTRO, an Individual, Defendants, Case
No. 1:16-cv-24684-DPG (S.D. Fla., November 9, 2016), seeks to
recover money damages for unpaid overtime wages under the Fair
Labor Standards Act, and alleges violations of the Employee
Polygraph Protection Act.
AC Logistics operates a warehouse.
The Plaintiff is represented by:
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 N.E. 30th Avenue, Ste. 800
Aventura, FL 33180
Phone: (305) 503-5131
Fax: (888) 270-5549
Email: msaenz@saenzanderson.com
ACADEMY OF MAGICAL: Faces "Peters" Wage and Hour Suit in Calif.
---------------------------------------------------------------
WILLIAM J. PETERS, an individual, on Behalf of Himself and All
Other Similarly Situated Former and Current Non-Exempt Employees,
v. THE ACADEMY OF MAGICAL ARTS, INC., a California corporation;
and DOES 1 through 20, inclusive; Case No. BC640555 (Cal. Super.
Ct., Los Angeles Cty., November 10, 2016), is a civil wage and
hour class action seeking equitable and injunctive relief,
economic and statutory damages, prejudgment interest, costs and
attorneys fees, and other relief for violations of the Labor Code.
The Academy of Magical Arts, Inc., operates business under one of
the most recognizable and historic private club brands in
Hollywood. The Defendants jointly own, manage and operate a
private club, bar, restaurant in Hollywood, California, and do
business as "The Magic Castle," which is located in Los Angeles.
The Plaintiff is represented by:
Grant Joseph Savoy, Esq.
Lindsay Veronika Salk, Esq.
SOLOUKI SAVOY, LLP
316 W. 2nd Street, Suite 1200
Los Angeles, CA 90012
Telephone: (213) 814-4940
Facsimile: (213) 814-2550
E-mail: grant@soloukisavoy.com
lindsay@soloukisavoy.com
ACT INC: Must Defend Against Bais Yaakov of Spring, Court Says
--------------------------------------------------------------
District Judge Timothy S. Hillman of the United States District
Court for the District of Massachusetts denied Defendant's motions
to dismiss in the case captioned, BAIS YAAKOV OF SPRING VALLEY,
Plaintiff, v. ACT, INC., Defendant, Case No. 4:12-CV-40088-TSH (D.
Mass.).
Plaintiff is a religious corporation located in New York. In
March, April, and May of 2012, Plaintiff alleges that it received
unsolicited faxes from Defendant, which did not contain opt-out
notices, in violation of the Telephone Consumer Protection Act, 47
U.S.C. Section 227 (TCPA) and a similar New York law, N.Y. General
Business Law Section 396-aa (section 396-aa). Plaintiff claims
that each of these faxes violated the TCPA, or both the TCPA and
section 396-aa. As a result, on July 30, 2012, Plaintiff brought
suit against Defendant on its own behalf and seeking to represent
three classes of people.
In April and May 2014 the plaintiff alleges that, between issuing
the March and June quarterly reports, the defendants made multiple
false and misleading statements to analysts that were subsequently
reported to investors. The plaintiff's allegations arise from a
report issued by J.P. Morgan describing a conference call with
Wasson, statements that Walgreens' head of investor relations made
at a Barclay's conference and subsequent reports on those
statements, and a Morgan Stanley report on a conference call with
Wasson and Miquelon.
On June 13, 2016, before the Court could rule in the motion for
class certification, Defendant tendered to Plaintiff a certified
check in the amount of $45,600: $15,000 per fax for violations of
the TCPA and $200 per fax for violations of section 396-aa.
Defendant also agrees to be enjoined from sending any faxes to
Plaintiff that would violate the TCPA or any state law that
similarly prohibits the sending of faxes, and from otherwise
communicating with Plaintiff in any manner that violates the TCPA
or applicable state laws. Defendant further agrees to pay
Plaintiff's reasonable attorneys' fees and court costs related to
this lawsuit if the court determines that Plaintiff is entitled to
costs and fees. Plaintiff's counsel returned the check to
Defendant's counsel, who continues to hold the funds with
instructions to provide them to Plaintiff.
In the motion, Defendant argues that the case must be dismissed
because there is no longer a justiciable case or controversy.
Defendant relies on the fact that its latest payment, unlike the
two previous attempts, is unconditional, will not expire, and is
undisputedly for the total amount of damages to which Plaintiff
claims an entitlement.
Plaintiff, for its part, relies on a recent decision from another
session of the district, South Orange Chiropractic Center, LLC v.
Cayan LLC, No. 15-13069, 2016 WL 1441791 wherein the plaintiff was
a putative class-action plaintiff who sought statutory damages and
injunctive relief pursuant to the TCPA. The court first determined
that the plaintiff's individual claims were moot, because
"Defendant had offered to deposit a check with the court, to
satisfy all of Plaintiff's individual claims and more, and to have
the district court enter judgment in Plaintiff's favor."
In his Memorandum and Order dated October 26, 2016 available at
https://is.gd/84BTvS from Leagle.com, Judge Hillman held that "the
relation-back doctrine applies in Rule 23 cases where it is
'certain that other persons similarly situated' will continue to
be subject to the challenged conduct and the claims raised are 'so
inherently transitory that the trial court will not have even
enough time to rule on a motion for class certification before the
proposed representative's individual interest expires." The Court
agreed with the South Orange court's conclusion that "Defendant's
attempt to moot the request for classwide statutory damages falls
within the 'inherently transitory' exception because the class
issues will likely evade review."
"I find that although Plaintiff's individual claims have become
moot, a justiciable controversy remains," the judge said.
Bais Yaakov of Spring Valley is represented by Aytan Y. Bellin,
Esq. -- aytan.bellin@bellinlaw.com -- BELLIN & ASSOCIATES LLC --
Matthew P. McCue, Esq. -- mmccue@massattorneys.net -- LAW OFFICE
OF MATTHEW P. MCCUE
ACT, Inc . is represented by Michael K. Callan, Esq. --
Pcallan@dwpm.com -- and Robert L. Leonard, Esq. --
Rleonard@dwpm.com -- DOHERTY, WALLACE, PILLSBURY & MURPHY
AGRIA CORP: "Balon" Sues Over Breach of Fiduciary Duties
--------------------------------------------------------
Etienne Balon, individually and on behalf of all others similarly
situated, Plaintiff, v. Agria Corporation, Guanglin Lai, Xie Tao,
John Fulton, Patrick Wai Yip Tsang, John Layburn and Wah Kwong
Tsang, Defendants, Case No. 2:16-cv-08376, (D. N.J., November 9,
2016), seeks to recover compensable damages caused by violations
of the federal securities laws and to pursue remedies under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.
Agria repeatedly issued false and misleading financial statements
and misrepresentations about the its business and prospects to
artificially pump up its stock price and avoid delisting from the
stock exchange, says the complaint. On November 4, 2016, Agria
disclosed a subpoena it received from SEC relating to a public
investigation on December 23, 2015. On this news, trading of the
Company's ADSs was suspended on November 3, 2016.
Plaintiffs acquired Agria American Depositary Shares between
December 16, 2011 and November 4, 2016.
Agria is a global agricultural company incorporated in Cayman
Islands and headquartered in Hong Kong. Agria has operations and
networks servicing New Zealand, Australia, South America, China,
and various international markets, including the United States.
Guanglin Lai, Xie Tao, John Fulton, Patrick Wai Yip Tsang, John
Layburn and Wah Kwong Tsang served on its board of directors.
Plaintiff is represented by:
Laurence Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
609 W. South Orange Avenue, Suite 2P
South Orange, NJ 07079
Tel: (973) 313-1887
Fax: (973) 833-0399
Email: lrosen@rosenlegal.com
AMERICAN EXPEDITING: Faces "Morin" Suit Over Failure to Pay OT
--------------------------------------------------------------
Thomas Morin, an individual California resident, on behalf of all
similarly situated current and former employees v. American
Expediting Company and Does 1 through 50, inclusive, Case No.
2:16-cv-08552 (C.D. Cal., November 16, 2016), is brought against
the Defendants for failure to pay overtime wages in violation of
the Fair Labor Standards Act.
American Expediting Company provides ground and air courier
services in the United States.
Thomas Morin appears pro se.
BIERER LAW: Violates Fair Debt Collection Act, Johnson Suit Says
----------------------------------------------------------------
Tamika L. Johnson, an individual, on behalf of herself and all
others similarly situated v. Bierer Law Group, P.A., formerly
known as: BIERER & MARGOLIS, P.A., Case No. 1:16-cv-03672-MJG (D.
Md., November 9, 2016), alleges violations of the Federal Debt
Collection Practices Act.
Bierer Law Group, P.A., offers legal services in civil litigation,
employment and labor, contracts, estate planning and
administration, and creditors' rights.
The Plaintiff is represented by:
Kathleen Hyland, Esq.
HYLAND LAW FIRM, LLC
16 E Lombard Street, Suite 400
Baltimore, MD 21202
Telephone: (410) 777-5396
Facsimile: (410) 777-8237
E-mail: kat@lawhyland.com
BJ'S WHOLESALE: "Canizaro" Class Suit Removed to S.D. Florida
-------------------------------------------------------------
The class action lawsuit styled Jodi Farrell-Canizaro and Kelly
Sullivan, on behalf of themselves and others similarly situated v.
BJ's Wholesale Club, Inc., Case No. CACE-16-017263, was removed
from the 17th Judicial Circuit to the U.S. District Court for the
Southern District of Florida (Ft Lauderdale). The District Court
Clerk assigned Case No. 0:16-cv-62708-DPG to the proceeding.
The case asserts labor-related claims.
BJ's Wholesale Club, Inc. operates a warehouse club chain
throughout the United States.
The Plaintiff is represented by:
Dion J. Cassata, Esq.
LAW OFFICE OF DION CASSATA, P.A.
7999 N. Federal Highway, Suite 200
Boca Raton, FL 33487
Telephone: (954) 364-7803
Facsimile: (954) 251-4787
E-mail: dion@cassatalaw.com
The Defendant is represented by:
Gerard Joseph Curley Jr., Esq.
Holly Lynn Griffin, Esq.
GUNSTER YOAKLEY & STEWART
777 S Flagler Drive, Suite 500 E
West Palm Beach, FL 33401-6194
Telephone: (561) 655-1980
Facsimile: 655-5677
E-mail: jcurley@gunster.com
hgriffin@gunster.com
BMW NA: Court Narrows Claims in "Afzal" Amended Complaint
---------------------------------------------------------
District Judge Madeline Cox Arleo of the United States District
Court for the District of New Jersey denied in part Defendant's
motion to dismiss the Amended Complaint in the case captioned,
DAVID AFZAL, on behalf of himself and all others similarly
situated, Plaintiff, v. BMW OF NORTH AMERICA, LLC and BAVARIAN
MOTOR WORKS, Defendants, Case No. 15-8009 (D.N.J.).
In the putative class action, Plaintiff seeks damages against BMW
NA and Bavarian Motor Works (BMW-GER) for fraudulently concealing
and failing to disclose alleged safety defects present in the
engines of certain BMW motor vehicle models.
California resident David Afzal purchased a used 2011 BMW M3, with
approximately 13,100 miles on the odometer, in May 2013. The
vehicle was delivered to the original purchaser on November 12,
2011. At the time of Plaintiff's purchase, the vehicle was still
covered by a four-year/50,000-mile express warranty. In March
2015, Plaintiff noticed "knocking" and "rattling" noises that
appeared to be coming from inside or below the engine and
Plaintiff did not receive any repairs or inspections pursuant to
the warranty. Plaintiff sought the opinion of an independent BMW
repair specialist on May 1, 2015 and his car was at 28,952 miles
at the time. Plaintiff then replaced his connecting rod bearings,
rod bolts, and oil filter at a total cost of $2,217.18 for parts
and labor. The noise has not returned.
Plaintiff seeks to certify a class of all California owners or
lessees of 2008-2013 model year BMW M3 vehicles containing S65
engines (Class Vehicles).
On February 26, 2016, Plaintiff filed an Amended Complaint
alleging nine causes of action: (1) Violations of California's
Consumer Remedies Act, Cal. Civ. Code Section 1750, et seq.; (2)
Violations of California's Unfair Competition Law, Cal. Bus. &
Prof. Code Section 17200; (3) Violation of California's False
Advertising Law, Cal. Bus. & Prof. Code Section 17500, et seq.;
(4) Breach of Express Warranty; (5) Breach of Implied Warranty;
(6) Breach of Implied Warranty under the Magnusson-Moss Warranty
Act, 15 U.S.C. Section 2301, et seq.; (7) Breach of Implied
Warranty under the Song-Beverly Act, Cal. Civ. Code Sections 1792,
1791.1, et seq.; (8) Breach of the Duty of Good Faith and Fair
Dealing; and (9) Common-Law Fraud. The Amended Complaint seeks
compensatory and punitive damages, along with injunctive and
declaratory relief.
BMW NA filed a motion to dismiss all claims pursuant to Fed. R.
Civ. P. 12(b)(6). BMW NA asserts that:
(1) Plaintiff's implied warranty claims must be dismissed
because Plaintiff has not pled that he is in privity with BMW NA.
Furthermore, BMW NA argues that the Song-Beverly Act does not save
Plaintiff's implied warranty claim because Plaintiff has not
alleged that he purchased his Class Vehicle from a "distributor"
or "retail seller" within the meaning of the Act;
(2) Plaintiff's claim for breach of the implied covenant of
good faith and fair dealing must be dismissed because it is
superfluous to Plaintiff's breach of contract claim;
(3) Plaintiff's claims sounding in fraud must be dismissed
because he has failed to meet the heightened pleading
requirements. Specifically, BMW NA argues that Plaintiff has not
alleged that Defendants knew of the alleged defect at the time of
sale;
(4) Plaintiff's breach of express warranty claim must be
dismissed because he has not fulfilled his obligations under the
terms of the warranty. Additionally, Defendant argues that the
breach of the duty of good faith and fair dealing is duplicative
of the express warranty claim, and should be dismissed;
In her Opinion dated October 17, 2016 available at
https://is.gd/nPzFTK from Leagle.com, Judge Arleo dismissed
Plaintiff's implied warranty claims (Counts V and VII) because
Plaintiff does not allege that he purchased his Class Vehicle from
an authorized seller and that he has not alleged that he purchased
his vehicle "at retail" as required by the Act and his fraud based
claims (Counts I, II, III and IX) because his pleadings fall short
of showing that BMW has acquired the knowledge by May 2013, the
month the Plaintiff bought his vehicle. The Court denied the
motion to dismiss as to Plaintiffs' breach of express warranty
(Count IV) because Plaintiff has stated a claim and dismissal
would be premature; breach of implied covenant of good faith and
fair dealing (Count VIII) because Plaintiff has sufficiently
alleged that BMW knew and therefore should have disclosed the
Rotating Assemble defect during the warranty period; and Magnuson-
Moss Warranty Act (MMWA) (Count VI) because MMWA claims cannot be
dismissed at the instant stage of litigation because Plaintiff has
established a claim for breach of express warranty.
David Afzal is represented by Joseph Bryce Kenney, Esq. --
jbk@mccunewright.com -- and Matthew D. Schelkopf, Esq. --
mds@mccunewright.com -- MCCUNEWRIGHT LLP
BMW of North America, LLC is represented by Christopher J. Dalton,
Esq. -- christopher.dalton@bipc.com -- Daniel Zev Rivlin, Esq. --
daniel.rivlin@bipc.com -- Lauren Adornetto Woods, Esq. --
lauren.woods@bipic.com -- and Rosemary Joan Bruno, Esq. --
rosemary.bruno@bipc.com -- BUCHANAN, INGERSOLL & ROONEY, PC
BOSAL NEDERLAND: Manny's Auto Alleges Violation of Antitrust Laws
-----------------------------------------------------------------
MANNY'S AUTO SUPPLY, INC. and IRVING LEVINE AUTOMOTIVE
DISTRIBUTORS, INC., on behalf of themselves and all others
similarly situated, Plaintiffs, v. BOSAL NEDERLAND, B.V., et al.,
Defendants, Case No. 2:16-cv-13968-AJT-RSW (E.D. Mich., November
8, 2016), alleges that the Defendants and their coconspirators --
United States and global manufacturers and suppliers of Automotive
Exhaust Systems -- violated the antitrust laws by entering into a
continuing conspiracy to rig bids and fix, raise, maintain, or
stabilize prices of Automotive Exhaust Systems sold in the United
States and elsewhere at supra-competitive levels.
Bosal Industries-Georgia, Inc. is a manufacturer of Automotive
Exhaust Systems with its principal place of business in Michigan.
The Plaintiffs are represented by:
David H. Fink, Esq.
Darryl Bressack, Esq.
FINK + ASSOCIATES LAW
38500 Woodward Avenue, Suite 350
Bloomfield Hills, MI 48304
Phone: (248) 971-2500
E-mail: dfink@finkandassociateslaw.com
dbressack@finkandassociateslaw.com
- and -
Gregory P. Hansel, Esq.
Randall B. Weill, Esq.
Jonathan G. Mermin, Esq.
Michael S. Smith, Esq.
PRETI, FLAHERTY, BELIVEAU & PACHIOS LLP
One City Center
P.O. Box 9546
Portland, ME 04112-9546
Phone: (207) 791-3000
E-mail: ghansel@preti.com
rweill@preti.com
jmermin@preti.com
msmith@preti.com
- and -
Joseph C. Kohn, Esq.
William E. Hoese, Esq.
Douglas A. Abrahams, Esq.
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Phone: (215) 238-1700
E-mail: jkohn@kohnswift.com
whoese@kohnswift.com
dabrahams@kohnswift.com
- and -
Steven A. Kanner, Esq.
William H. London, Esq.
Michael E. Moskovitz, Esq.
FREED KANNER LONDON & MILLEN LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Phone: (224) 632-4500
E-mail: skanner@fklmlaw.com
wlondon@fklmlaw.com
mmoskovitz@fklmlaw.com
- and -
Eugene A. Spector, Esq.
William G. Caldes, Esq.
Jonathan M. Jagher, Esq.
Jeffrey L. Spector, Esq.
SPECTOR ROSEMAN KODROFF & WILLIS, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: (215) 496-0300
E-mail: espector@srkw-law.com
bcaldes@srkw-law.com
jjagher@srkw-law.com
jspector@srkw-law.com
- and -
Carl E. Person, Esq.
225 E. 36th Street - Suite 3A
New York, NY 10016-3664
Phone: (212) 307- 4444
E-mail: carlpers2@gmail.com
- and -
Irwin B. Levin, Esq.
Scott Gilchrist, Esq.
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Phone: (317) 636-6481
E-mail: ilevin@cohenandmalad.com
sgilchrist@cohenandmalad.com
CAFE VALLEY: Violates Fair Credit Reporting Act, Ogletree Claims
----------------------------------------------------------------
Marsha Ogletree, on behalf of herself and all others similarly
situated v. Cafe Valley Incorporated, Case No. 2:16-cv-03881-JJT
(D. Ariz., November 8, 2016), is brought over alleged violations
of the Fair Credit Reporting Act.
Cafe Valley, Inc., produces and distributes bakery products for
in-store bakeries/bakery chains, wholesale distributors, club
stores, and food service and convenience stores worldwide. The
Company offers cakes, cinnamon rolls and twists, croissants,
gourmet and puffed pastries, large and mini muffins, and
turnovers. The Company sells its baked goods through a network of
retailers, as well as via its store. The Company was founded in
1987 and is based in Phoenix, Arizona.
The Plaintiff is represented by:
Michael Paul Rolland, Esq.
Russell Snow Thompson, IV, Esq.
THOMPSON CONSUMER LAW GROUP PLLC
5235 E Southern Ave., Suite D106-618
Mesa, AZ 85206
Telephone: (602) 334-4434
Facsimile: (602) 388-8875
E-mail: mrolland@consumerlawinfo.com
tclg@consumerlawinfo.com
CAPITAL GRILLE: Sued Over Americans With Disabilities Act Breach
----------------------------------------------------------------
Lucia Marett, on behalf of herself and all others similarly
situated v. Capital Grille Holdings, Inc., Case No. 1:16-cv-08913
(S.D.N.Y., November 16, 2016), is brought against the Defendant
for violation of the Americans With Disabilities Act.
Capital Grille Holdings, Inc. operates a restaurant chain in New
York.
Lucia Marett is a pro se plaintiff.
CARMEL, IN: Plaintiffs in Traffic Ordinance Suit Appeal Dismissal
-----------------------------------------------------------------
Lindsey Erdody, writing for Indianapolis Business Journal, reports
that the plaintiffs in a federal class-action lawsuit filed
against the city of Carmel for its enforcement of a local traffic
ordinance are appealing the dismissal of the case in early
October.
U.S. District Court Judge Jane Magnus-Stinson dismissed the
lawsuit on Oct. 6, saying the complaint did not tie the alleged
harm to the Carmel defendants.
Attorney Edward Bielski, president of Bielski Law LLC, filed the
lawsuit at the end of last year against Mayor Jim Brainard, Carmel
City Council members from 2014 and 2015, Carmel City Court, Carmel
City Judge Brian Poindexter, Carmel attorney Doug Haney and
Indiana Bureau of Motor Vehicles Superintendent Kent Abernathy,
alleging the city knowingly enforced an illegal traffic ordinance
and wrongly collected money from citations "to maximize city
revenue."
The lawsuit named 18 plaintiffs, of which only two were Carmel
residents. All had been cited under Carmel's local traffic
ordinance, which was deemed invalid by the Indiana Court of
Appeals in a separate lawsuit last year.
The plaintiffs claimed the illegal citations resulted in higher
auto insurance rates and points on their driver's licenses. The
complaint also said plaintiffs were given false information
regarding their traffic infractions, so they couldn't properly
defend themselves.
It also alleged city police had a policy of wrongly ticketing
drivers on Interstate 465 and wrongly ticketing drivers for
non-moving violations.
Carmel had argued that the "harm" the plaintiffs described would
have occurred regardless of how they were cited because all of
them admitted to the traffic violations.
Judge Magnus-Stinson agreed with the city in her decision, saying
many of the plaintiffs' claims were "too speculative" and lacked
standing.
Mr. Bielski told IBJ shortly after the ruling that he disagreed
with the decision and would be evaluating the potential for an
appeal. He filed the appeal on Nov. 3.
"Unfortunately, what this means for the affected drivers is that
there will be a longer and more expensive road to what we hope
will ultimately be justice," Mr. Bielski said.
The suit stems from the city's previous traffic ordinance that was
found to violate the state's Home Rule Act because it duplicated
state law. The Indiana Court of Appeals decided that case Dec.
11, and the city later repealed the ordinance in question. That
lawsuit had been filed by Jason Maraman, who had been pulled over
and cited for driving 30 mph in a construction zone with a 20 mph
speed limit.
Mr. Maraman is still pursuing another federal lawsuit against the
city in which he accuses a Carmel police officer of giving false
testimony and targeting his vehicle for having an out-of-county
license plate. He also accuses the officer of inappropriately
attempting to speak with a judge during a recess in one of the
previous hearings.
In the district court ruling, Magnus-Stinson accused the
plaintiffs in the class-action lawsuit of trying to "piggyback
onto Mr. Maraman's success."
CELADON TRUCKING: Faces "Hawkins" Class Suit in C.D. California
---------------------------------------------------------------
Michael Hawkins, on behalf of himself and all others similarly
situated, and on behalf of the general public v. Celadon Trucking
Services, Inc., a New Jersey corporation, and Does 1 through 10,
inclusive, Case No. 5:16-cv-02329 (C.D. Cal., November 9, 2016),
is brought over job-related disputes.
Celadon Trucking Services, Inc., doing business as Zipp Logistics,
provides truckload transportation services. The Company's
truckload transportation services include long-haul, regional,
dedicated, less-than-truckload, intermodal, and logistics
services. The Company also provides logistical services to
customers requiring custom warehousing services. The Company was
founded in 1985 and is based in Indianapolis, Indiana. Celadon
Trucking Services, Inc. operates as a subsidiary of Celadon Group
Inc.
CHERRY CREEK: Faces Class Action Undisclosed Finance Fees
---------------------------------------------------------
Ashley Nerbovig, writing for Billings Gazette, reports that two
local residents have brought a class-action suit against Cherry
Creek Development after a similar lawsuit found in part that
Cherry Creek was incorrectly charging late fees.
Adam and Breea Somers are suing Cherry Creek Development and RJC
Investment after the companies failed to disclose finance fees.
Cherry Creek is a mobile home park in the Billings Heights with
362 trailer lot spaces.
The class action suit follows a favorable ruling earlier this year
for another couple living in the mobile home park.
Stevee Mallas and Jacob Tallbull sued after Cherry Creek posted a
delinquency notice on their mobile home. Cherry Creek was acting
as an agent of RJC Investment, according to the lawsuit.
Messrs. Mallas and Tallbull paid a $3,512 down payment on a mobile
home. The couple financed the additional $40,388 needed to
purchase the mobile home, according to the suit. They began
making monthly payments toward the principal in 2010.
Cherry Creek's contract with the couple violated multiple consumer
protections of the Montana Retail Installment Sales Act, the
Mallas and Tallbull lawsuit alleged. The contract did not state
how much the finance charge would be over the life of the
contract, according to the lawsuit. The contract also stated the
couple would be charged $50 if payments were five or more days
late.
Yellowstone County District Court Judge Russell Fagg entered
judgment on the nondisclosure of the finance charge and the
legality of the late fees. Because the contract did not disclose
the finance charge and because late fees can only be evaluated by
a creditor after a payment is 10 days late, Judge Fagg ruled
Cherry Creek and RJC are barred from collecting any "finance,
delinquency or collection charge on the contract."
In his judgment, Judge Fagg found the Cherry Creek contracts
violated at least four parts of the Montana Retail Installment
Sales Act.
The same attorney who represented Messrs. Mallas and Tallbull,
Michael Eakin, was hired to represent the Somerses in their class
action suit. The Somerses' lawsuit seeks to prevent Cherry Creek
from collecting finance charges against mobile home residents who
have similar contracts and illegal late fees.
The Somerses justified the class action suit by noting that many
of the tenants of the mobile park cannot afford legal
representation for their claims.
Mr. Eakin declined to comment on the Mallas and Tallbull suit,
which is ongoing. He also declined to comment on the class action
lawsuit, which will go before Yellowstone County District Court
Judge Gregory Todd. Cherry Creek has not yet issued a response to
the class action.
Cherry Creek resident Maria Kraftenberg said she has lived at the
mobile home park for less than a year. Over the past few months,
the park's management has changed and in October residents
received new rules about maintenance of the area, Ms. Kraftenberg
said. The park now has a curfew and rules about how many people
can live in each trailer, Ms. Kraftenberg said.
Cherry Creek applied to expand the subdivision by 80 mobile homes
earlier this year, but the Yellowstone County Zoning Commission
denied the zoning change request.
Cherry Creek did not respond to requests for comment.
CHICAGO, IL: Sued Over New Restrictions on Home-Sharing Services
----------------------------------------------------------------
Alby Gallun, writing for Crain's Chicago Business, reports that a
group opposed to the city's new restrictions on Airbnb and other
home-sharing services has sued to block the regulations, arguing
that they're unconstitutional.
Calling the new ordinance "literally incomprehensible," the group
accuses the city of Chicago of regulatory overreach, contending
the regulations are so intrusive that they violate multiple
constitutional protections, including those for free speech and
against unreasonable search and seizure. The ordinance, which the
City Council approved in June, goes into effect next month.
The regulations impose new licensing requirements on people who
rent out their homes through online home-sharing services like
Airbnb, which has emerged as a competitive threat to the hotel
industry and created headaches for landlords and condominium
associations trying to keep their buildings from turning into
quasi-hotels.
The ordinance creates a surcharge on home sharing and vacation
rentals, restricts the number of units that can be rented out
within properties and allows condo boards to ban home-sharing
entirely within their buildings.
It goes way too far, according to Keep Chicago Livable, a non-
profit formed by homeowners who oppose the regulations. In a
73-page lawsuit, the group argues that the ordinance "violates the
constitutional rights of Chicagoans to speak and communicate
freely and anonymously on the internet, to use their own property,
to have privacy, and to not be subject to arbitrary and
discriminatory enforcement of the laws."
In Chicago, 5,000 people hosted guests through Airbnb in the year
ended June 30, and 315,400 people stayed with Airbnb hosts here,
according to a report from San Francisco-based Airbnb. Chicago
and other cities have struggled over how to regulate home sharing
services, and some new ordinances have drawn similar court
challenges. In Nashville, a judge ruled in October that the
city's vacation rental regulations passed in 2015 were vague and
unconstitutional.
The rise of home sharing services like Airbnb has triggered a
reaction by city governments "based largely out of fear and
misunderstanding, mixed with economic protectionism from the hotel
and motel industry," the group wrote in the complaint, which was
filed in U.S. District Court in Chicago.
Keep Chicago Livable and co-plaintiff Benjamin Thomas Wolf, a
Chicago resident who has rented out property through Airbnb, want
to a judge to certify the lawsuit as a class-action case.
"We intend to vigorously defend this suit and the ordinance it
challenges, as we believe the plaintiffs legal arguments lack any
merit," the city's Law Department said in a statement.
Ben Breit, a spokesman for Airbnb, which is not involved in the
litigation, declined to comment on the suit.
"At this time, we are 100% focused on educating the Chicago Airbnb
host community about the new rules and regulations passed as part
of the June ordinance," he wrote in an email.
The home-sharing ordinance violates the First Amendment's
protection of free speech in a litany of ways, according to the
lawsuit. It forces homeowners to include information in listings
that has no consumer protection function and "denies a free
exchange of information to consumers of information" at the same
time.
"With this law, the city of Chicago creates a new power for itself
unprecedented in the United States: the power to force its
citizens to forfeit their anonymity and register before they
participate socially on the internet," the suit says.
A requirement that people who rent out their homes keep records
about who they host violates the Fourth Amendment's protections
against unreasonable search and seizure, and other restrictions
run afoul of the Fifth Amendment, which prohibits the government
from taking private property, the complaint says. The ordinance
also violates the Eighth Amendment against excessive fines, the
Fourteenth Amendment regarding due process and the Illinois Trade
Secrets Act, according to the suit.
The lawsuit is "unlikely to succeed," Erik Gordon, professor at
the University of Michigan's Ross School of Business, wrote in an
email.
"People have no Constitutional right to rent their residences on
Airbnb, free of regulation," he wrote. "Cities can regulate
hotels, landlords and anyone else who wants to make money renting
premises."
The Cook County Record, a court news website backed by a U.S.
Chamber of Commerce unit, first reported the news of the lawsuit.
CHICAGO, IL: Red Light Camera Class Action Can Proceed
------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that
anyone who received a red light or speeding camera ticket from the
city of Chicago before May 2015 could be added to a class action
lawsuit demanding the city void many red light and speed camera
tickets because City Hall allegedly broke its own rules in the way
it notified the people who had been ticketed.
On Nov. 2, Cook County Circuit Judge Kathleen G. Kennedy signed
off on a request to greatly expand the scope and reach of the
litigation, agreeing to make the lawsuit a class action
potentially involving thousands of people who had allegedly been
caught speeding or running a red light by the city's network of
automated traffic enforcement cameras.
The request for class action status had been made by attorneys
Myron Cherry -- mcherry@cherry-law.com -- and Jacie Zolna --
jzolna@cherry-law.com -- of the Chicago firm of Myron Cherry &
Associates. The lawyers had filed suit in 2015 on behalf of three
named plaintiffs who had alleged purported procedural violations
by the city in issuing the tickets and notifying ticketed people
should invalidate the tickets.
The lawsuit asserted the city's practices in enforcing the red
light and speed camera tickets violated the Illinois Constitution,
state vehicular laws and the city's own ordinance establishing the
camera traffic enforcement programs. The lawsuit also alleged the
city's tickets issued under the automated enforcement program
should be voided and the city made to pay damages for collecting
fees and fines to which it should not have been entitled.
Specifically, the lawsuit argued the city did not properly list
the make of the vehicle photographed during the alleged red light
and speeding violations; the city overstepped its home rule
powers, which should have been limited by the Illinois Vehicle
Code; and the city failed to send a second notice of violation, as
required by its ordinances, to give those receiving the tickets
sufficient chance to contest them in court, before the city began
assessing additional fees and fines for the unpaid tickets.
City Hall had asked the judge to dismiss the lawsuit.
However, in February 2016, Judge Kennedy came down on the side of
the plaintiffs in the case, saying the city likely did violate its
ordinance in sending just one violation notice, when the ordinance
specified a second notice "shall" be sent. That means the city
may have violated the plaintiffs' rights to due process, and the
tickets could be voided.
"Here, plaintiffs' receipt of a single violation notice does not
mean that due process was satisfied when the ordinance mandates
that two notices be sent to a non-responder before a determination
of liability," Judge Kennedy wrote in February.
The judge at that time put off a decision on whether the
plaintiffs' case could be expanded to a class action, potentially
including nearly anyone who had received just one notice of a
ticket under the red light and speed camera programs.
The judge established four classes of potential plaintiffs,
including those who received red light or speed camera tickets
before May 17, 2015; those who paid fines or penalties, to the
city as a result of receiving those tickets before May 17, 2015;
and anyone who paid late fees under the programs between July 1,
2012, and May 9, 2015.
Messrs. Cherry and Zolna were designated as class counsel to
represent the interest of the class, as well as named plaintiffs
Themasha Simpson, Delyn McKenzie-Lopez and Erica Lieschke.
CHURCH & DWIGHT: "Corbett" Sues Over Toxic Teething Products
------------------------------------------------------------
Lisa Corbett, Laura Kasiotis and Jennifer O'Neill on behalf of
themselves and all others similarly situated, Plaintiffs, v.
Church & Dwight Co., Inc., Standard Homeopathic Company, Hyland's,
Inc., CVS Health Corporation and Target Corporation, Defendants,
Civil Action No. 7:16-cv-8687 (S.D. N.Y., November 9, 2016) seeks
damages, interest, costs and attorneys' fees, enjoining Defendants
from continuing to engage in, use, or employ any act, including
advertisements, packaging, or other representations, prohibited by
Sections 349 and 350 of the New York General Business Law. The
lawsuit further seeks damages resulting from breach of contract
and common law warranty, breach of implied warranty of
merchantability under Connecticut's Unfair Trade Practices Act and
New York's General Business Law.
Plaintiffs are New York and Connecticut consumers who purchased
defendants' homeopathic teething products sold in defendants'
retail stores. They filed this case following alarming safety
warnings from the Food and Drug Administration, including FDA
warnings that use of such products have been associated with more
than 400 reports of seizure, fever, vomiting and shortness of
breath over the last six years.
Defendant Church & Dwight Co., Inc. is a Delaware corporation with
its principal executive offices at 500 Charles Ewing Boulevard,
Ewing, N.J. 08628 and markets household consumer products and
personal care including homeopathic teething products under the
brand name Orajel.
Standard Homeopathic Company is a Nevada domestic corporation
providing products for stress/sleep, pain relief, women's health,
digestion, cough/cold, first aid, skin, teething tablets,
topicals, and household and kids kits. Its division, Hyland's
Inc., sold its homeopathic teething products under the brand name
"Hyland's."
CVS Health Corporation is a Delaware corporation with its
principal executive offices at One CVS Drive, Woonsocket, Rhode
Island 02895. CVS also markets and sells certain of its own CVS-
branded homeopathic products, including products CVS withdrew from
its shelves following the FDA warning. In addition to selling its
own homeopathic teething products, CVS marketed and sold
Defendants' Church & Dwight, Standard, and Hyland's homeopathic
teething products in CVS retail locations in New York and
Connecticut.
Target Corporation is a Minnesota corporation with its principal
executive offices at 1000 Nicollet Mall, Minneapolis, Minnesota
55403. Target marketed and sold Defendants' Church & Dwight,
Standard, and Hyland's homeopathic teething products in Target's
retail locations in New York and Connecticut.
Plaintiffs are represented by:
Jeffrey I. Carton, Esq.
Jeffrey I. Carton, Esq.
Myles K. Bartley, Esq.
Robert J. Berg, Esq.
DENLEA & CARTON LLP
2 Westchester Park Drive, Suite 410
White Plains, NY 10604
Telephone: (914) 331-0100
Facsimile: (914) 331-0105
Email: jcarton@denleacarton.com
mbartley@denleacarton.com
rberg@denleacarton.com
COGNIZANT: SEC Probe Unveils $5MM Improper Payments in India
------------------------------------------------------------
ENS Economic Bureau reports that ineffective "control environment"
at the top management of India's third largest IT/BPO sector
employer Cognizant Technologies Solutions led to improper payments
worth approximately $5 million being made to gain permits and
building licences for some of its 12 facilities in India, an
internal investigation by the company has unearthed.
The New Jersey-based, firm made a filing with the US Securities
and Exchange Commission (SEC) on September 30, saying it was
conducting an "internal investigation" into the these payments,
which "were made improperly and in possible violation" of the US
Foreign Corrupt Practices Act (FCPA). On October 5, and October
27 "two purported securities class action complaints" were filed
in the US District Court of New Jersey, naming the company and
some of its officers alleging violations of the FCPA.
On October 31, another lawsuit was filed in the Bergen County
Superior Court -- Law Division, naming the company and all of its
directors along with certain of its current and former executive
officers in the case.
". . . based on the results of the internal investigation to date,
we concluded that as of December 31, 2015, and in subsequent
interim periods, we did not maintain an effective control
environment. Specifically, we did not maintain an effective tone
at the top as certain members of senior management may have
participated in or failed to take action to prevent the making of
potentially improper payments by either overriding or failing to
enforce the controls established by the company relating to real
estate and procurement principally in connection with permits for
certain facilities in India," Cognizant said on Nov. 7.
Incidentally, the day Cognizant announced the improper payments
issue, it also announced in the same SEC filing, the resignation
of its President Gordon Coburn, who was held the post since
February 2012. Even as the company did not confirm that Coburn's
resignation was related to the corruption case, it said the
decision to quit was his own.
"Based on the results of the investigation to date, the members of
senior management who may have participated in or failed to take
action to prevent the making of the identified potentially
improper payments are no longer with the company or in a senior
management position," the firm also said in its communication to
the SEC on Nov. 7, in which it has detailed its earnings for the
quarter ended September.
For the third time in the current year, Cognizant has reduced its
full year revenue growth estimates, particularly on account of its
banking sector clients holding back their investments, added to UK
customers making discretionary spending in light of the vote for
Britain to exit the European Union.
The company marginally reduced the upper end of its annual revenue
forecast, and now expects its topline for financial year ending
December 2016 to be in the range of $13.47-$13.53 billion, instead
of the earlier revenue guidance of $13.47-13.60 billion.
For the three-month period ended September, the company reported
an increase in its revenues by 8.4 per cent to $3.45 billion, thus
meeting its estimate of $3.43-3.47 billion topline for the said
quarter.
However, Cognizant also said that as it was not able to predict
the scope, duration or result of the ongoing internal
investigation, the class action suits, as well as any other
investigations by the SEC or the US Department of Justice, it was
"presently unable to develop a reasonable estimate of a possible
loss or range of losses" that were related to these cases.
COMCAST CORP: Heins Mills, Susman Godfrey Fee Row Goes to Trial
---------------------------------------------------------------
District Judge John R. Padova of the United States District Court
for the Eastern District of Pennsylvania declined to rule on Heins
Mills & Olson PLC's motion for allocation of fees in the case
captioned, STANFORD GLABERSON, et al. v. COMCAST CORPORATION, et
al., Case No. 03-6604 (E.D. Pa.), saying evidentiary hearing must
first be conducted.
In the Final Judgment entered in the Class Action, the court
collectively awarded Class Counsel $15 million in attorneys' fees
and expenses, and directed Co-Lead Counsel to allocate fees and
expenses among those firms that worked for the Class on a "fair,
reasonable and transparent basis applying factors courts consider
in awarding and allocating fees in class action litigation."
A dispute has arisen between Heins Mills & Olson PLC (HMO) and
Susman Godfrey LLP (SG) on how to allocate the balance of the
award ($4,664,137.96) between the two firms. HMO seeks to allocate
the fees between Co-Lead Counsel based on the same methodology
used in distributing fees to all other class counsel, namely, by
applying the uniform negative multiplier (.2456) to each Co-Lead
Counsel firm's respective lodestar. Under the methodology, HMO
would receive an allocation from the remaining undistributed
attorneys' fees of $3,274,090.62, and SG would receive an
allocation from the remaining undistributed attorneys' fees of
$1,390,047.34.
SG disagrees with HMO's view that a distribution based on the two
firms' respective lodestar is appropriate. It asserts that doing
so would entitle HMO to receive more than 70 percent of the
remaining fee award attributable to the two firms' joint work. It
argues that SG and HMO entered into a Cable Cooperation Agreement
(CCA) at the outset of this case that provided they would "each
strive to contribute as between themselves equivalent productive
time to the Litigation." SG argues that the remaining
undistributed attorneys' fees on a "50/50" basis as between Co-
Lead Counsel. Under SG's proposal, HMO and SG would each receive
$2,332,068.98. SG's proposal would result in SG receiving an
allocation reflecting a negative multiplier of approximately .41,
and HMO receiving a negative multiplier of approximately .17.
In his Memorandum dated October 27, 2016 available at
https://is.gd/oOJppo from Leagle.com, Judge Padova agreed with HMO
that the CCA cannot be construed as a fee splitting agreement
since it was never disclosed to the named Plaintiffs or the Class
and that "equivalent productive time" clause in the CCA cannot be
construed as an agreement on the allocation of fees among the
firms. The ordinary meaning of the "equivalent productive time"
term merely set forth the firms' mutual expectations that they
would contribute the same level of effort in conducting the
litigation.
Judge Padova said, "As each firm disputes the other firm's
averments concerning their roles in the litigation and the
importance of their assignments/contributions to the success of
the litigation, an evidentiary hearing is required before a final
allocation can be determined. Other than our determinations that
the CCA does not control the allocation of fees, and that a
mathematical application of a ratio of the firms' lodestars is not
mandated, we express no opinion here on the ultimate fee
allocation. An appropriate Order follows scheduling the hearing."
Stanford Glaberson is represented by Ann D. White, Esq. --
awhite@awhitelaw.com -- AARP FOUNDATION LIT; Anthony J. Bolognese,
Esq. -- ABolognese@bolognese-law.com -- and Joshua H. Grabar, Esq.
-- jgrabar@bolognese-law.com -- BOLOGNESE & ASSOCIATES, LLC; Barry
C. Barnett, Esq. -- Bbarnett@susmangodfrey.com -- Daniel H.
Charest, Esq. -- dcharest@burnscharest.com -- Leelle Krompass,
Esq. -- LKrompass@burnscharest.com -- and William R.H. Merrill,
Esq. -- bmerrill@susmangodfrey.com -- SUSMAN GODREY LLP -- David
R. Woodward, Esq. -- dwoodward@heinsmills.com -- and Jessica N.
Servais, Esq. -- jservais@heinsmills.com -- HEINS MILLS & OLSON
PLC -- Douglas A. Millen, Esq. -- dmillen@fklmlaw.com -- FREED
KANNER LONDON & MILLEN LLC
COMCAST CORPORATION is represented by Alycia Regan Benenati, Esq.
-- abenenati@kasowitz.com -- Ayana Rivers, Esq. --
arivers@kasowitz.com -- David M. Max, Esq. -- dmax@kasowitz.com
-- Dorit Ungar, Esq. -- dungar@kasowitz.com -- James T. Cain, Esq.
-- jcain@kasowitz.com -- Megan K. Zwiebel, Esq. --
mzwiebel@kasowitz.com -- Michael E. Hagenson, Esq. --
mhagenson@kasowitz.com -- and Michael S. Shuster, Esq. --
mshuster@kasowitz.com -- KASOWITZ BENSON TORRES & FRIEDMAN LLP --
Christopher B. Hockett, Esq. -- chris.hockett@davispolk.com --
Dana M. Seshens, Esq. -- dana.seshens@davispolk.com -- Arthur J.
Burke, Esq. -- arthur.burke@davispolk.com -- David B. Toscano,
Esq. -- david.toscano@davispolk.com -- Jessica K. Foschi, Esq. --
Jessica.foschi@davispolk.com -- and Michael P. Carroll, Esq. --
DAVIS, POLK & WARDWELL -- Burt M. Rublin, Esq. --
rublin@ballardspahr.com -- M. Norman Goldberger, Esq. --
goldbergerm@ballardspahr.com -- and Paul J. Koob, Esq. --
koobp@ballardspahr.com -- BALLARD SPAHR LLP
COMPLIANCE ADVANTAGE: Faces "Criswell" Suit in E.D. Kentucky
------------------------------------------------------------
A class action lawsuit has been commenced against Compliance
Advantage, LLC, Cal Laboratory Services, Cal Leasing, LLC, and
Reliable Lab.
The case is captioned Heather Criswell and Jade Maddox, on behalf
of herself and all other employees and business victims similarly
situated v. Compliance Advantage, LLC, Cal Laboratory Services,
Cal Leasing, LLC, and Reliable Lab, Case No. 5:16-cv-00423-DCR
(E.D. Ken. November 16, 2016).
The Plaintiff is represented by:
Thomas K. Herren, Esq.
HERREN & ADAMS
148 N. Broadway
Lexington, KY 40507
Telephone: (859) 254-0024
Facsimile: (859) 254-5991
E-mail: tom.herren@herrenadams.com
CONVERGENT OUTSOURCING: Illegally Collects Debt, Action Claims
--------------------------------------------------------------
Theresa Matthews, on behalf of herself and all others similarly
situated v. Convergent Outsourcing, Inc., Case No. 0:16-cv-03924-
JNE-BRT (D. Minn., November 16, 2016), seeks to stop the
Defendant's unfair and unconscionable means to collect a debt.
Convergent Outsourcing, Inc. operates a debt collections agency in
Minnesota.
The Plaintiff is represented by:
Thomas J. Lyons Jr., Esq.
CONSUMER JUSTICE CENTER P.A.
367 Commerce Court
Vadnais Heights, MN 55127
Telephone: (651) 770-9707
Facsimile: (651) 704-0907
E-mail: tommycjc@aol.com
- and -
Mark L. Vavreck, Esq.
GONKO & VAVRECK, PLLC
401 N. Third Street, Suite 600
Minneapolis, MN 55401
Telephone: (612) 659-9500
E-mail: mvavreck@cgmvlaw.com
COSTCO: Faces Kirkland Signature Chicken Slack Fill Class Action
----------------------------------------------------------------
Robert Lawson, writing for Legal Newsline, reports that a Dallas
attorney who formerly worked for the Center for Science in the
Public Interest says some of the so-called "slack fill" lawsuits
that have become more prevalent aren't benefiting consumer law.
Recently, two women filed a class action lawsuit against Costco,
claiming they purchased Kirkland Signature premium chunk chicken
breast but were disappointed to find the product contained 44
percent water and less than nine ounces of meat. Their attorneys
are Patricia I. Avery -- pavery@wolfpopper.com -- Matthew Insley-
Pruitt -- MInsley-Pruitt@wolfpopper.com -- and Robert Plosky --
rplosky@wolfpopper.com -- of Wolf Popper LLP in New York.
Stephen Gardner, of the Stanley Law Group in Dallas, says these
claims have become favorites of class action plaintiffs attorneys.
"There have been, lately, hundreds of slack fill cases lately,"
Mr. Gardner told Legal Newsline.
"This one, I don't know that it was frivolous, but lawsuits I have
seen such as the Starbucks iced coffee lawsuit don't do consumer
law any real justice. The Starbucks case was just stupid. The
plaintiffs claimed that with ice there wasn't 20 ounces of coffee
or whatever the case was.
"You reasonably expect there to be ice in the coffee so the
lawsuit obviously isn't going to go anywhere. This case, however,
might be different based on what little I know about it."
Mr. Gardner summed up both his experience in this area of law, the
upswing in these types of lawsuits and how not every slack fill
case is justified. In fact, he turns some cases down.
"I've been doing food and law cases since about 1993,"
Mr. Gardner said. "Back then there were very few cases with
private lawyers. There are problems with any slack fill case
because there are times where having a not completely full box is
actually a packaging decision, not a fraud decision.
"There are other times where it is clearly a case of fraud. This
happens when companies give you less product in the same size
package. If I buy something, I expect it to be the same amount as
what I bought last time. It's situationally driven. There are
stupid cases that hurt those cases of consumer fraud that are
actually harmful to consumers."
Mr. Gardner noted the suspicious level of space left over in the
can of chicken at issue in the Costco case.
"I believe class action is supposed to help consumers with fraud,"
Mr. Gardner said. "Judges let plaintiffs amend if they are
dismissed for non-specificity. You'd have to buy and test a lot
of cans from a lot of canning runs. An error can happen and it's
not the basis of a lawsuit.
"If it's a one-off then it's an error, but if it's consistent then
it can be a problem. What I want to know is if you open the can,
if you can shove some more sizable pieces of chicken in there.
But 44 percent sounds a little suspicious."
Mr. Gardner also noted the possibility that a supplier issue could
be the basis of the problem since Costco, like many retailers that
sell food products, is likely supplied the product by a third
party.
"This one, on the face of it, has plausibility, because companies
do do it," he said. "It could be a supplier. I'm quite surprised
by the claim against Costco, but it definitely could be a case
where a lawsuit is justified."
DIPLOMAT PHARMACY: Violates Securities Act, "Zimmerman" Suit Says
-----------------------------------------------------------------
DAVID N. ZIMMERMAN, Individually and On Behalf of All Others
Similarly Situated v. DIPLOMAT PHARMACY, INC., PHILIP R. HAGERMAN,
GARY W. KADLEC and SEAN M. WHELAN, Case No. 2:16-cv-14005-LJM-SDD
(E.D. Mich., November 10, 2016), is brought on behalf of persons
and entities that acquired Diplomat securities between October 9,
2014, and November 2, 2016, inclusive, seeking to pursue remedies
under the Securities Exchange Act of 1934.
The Plaintiff alleges that the Defendants made false and
misleading statements and failed to disclose that, among other
things, the Company lacked adequate internal controls over its
financial reporting.
Diplomat is incorporated in Michigan, with its principal executive
offices located in Flint, Michigan. Diplomat is a specialty
pharmacy that services patients with complex chronic diseases,
including the dispensing, delivery, dosing and reimbursement of
clinically intensive, high cost specialty drugs. The Individual
Defendants are directors and officers of the Company.
The Plaintiff is represented by:
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
THE MILLER LAW FIRM, P.C.
950 W. University Dr., Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
E-mail: mln@millerlawpc.com
ssa@millerlawpc.com
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Lesley G. Portnoy, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
rprongay@glancylaw.com
lportnoy@glancylaw.com
DNC SERVICES: "Katz" Sues Over Unpaid Overtime Wages
----------------------------------------------------
Bethany Katz, on behalf of herself and those similarly situated,
Plaintiffs, v. DNC Services Corporation d/b/a Democratic National
Committee and Pennsylvania Democratic Committee, Defendants, Case
No. 2:16-cv-05800 (E.D. Pa., November 9, 2016), seeks to recover
unpaid overtime compensation, liquidated damages and costs of this
action including reasonable attorneys' fees under the Fair Labor
Standards Act and the Pennsylvania Minimum Wage Act.
Plaintiffs worked as an Organizer for the Democratic Party
campaign, whose duties consisted of assisting in voter
registration, handing out paperwork and forms to potential voters
in person, reminding potential voters of deadlines, and soliciting
volunteers. Organizers were expected and did work long hours and
weekends and regularly worked in excess of 80 to 90 hours per
workweek.
The Plaintiff is represented by:
Justin L. Swidler, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Highway North, Suite 402
Cherry Hill, NJ 08034
Phone: (856) 685-7420
Fax: (856) 685-7417
EOG RESOURCES: "Snead" Suit Seeks to Recover Unpaid Back Wages
--------------------------------------------------------------
JEVAN SNEAD, Individually and on Behalf of All Others Similarly
Situated v. EOG RESOURCES, INC., Case No. 5:16-cv-01134 (W.D.
Tex., November 10, 2016), is brought to recover unpaid back wages,
liquidated damages, attorneys' fees and costs, and pre- and post-
judgment interest pursuant to the Fair Labor Standards Act.
EOG Resources, Inc., is a Delaware corporation, which, among other
things, is engaged in the business of exploring for and producing
oil, gas and other hydrocarbons in the onshore and offshore areas
of the continental United States, and further maintains a presence
and corporate address in San Antonio, Bexar County, Texas.
The Plaintiff is represented by:
Michael A. Starzyk, Esq.
April L. Walter, Esq.
Matthew S. Yezierski, Esq.
Megan M. Mitchell, Esq.
STARZYK & ASSOCIATES, P.C.
10200 Grogans Mill Rd, Suite 300
The Woodlands, TX 77380
Telephone: (281) 364-7261
Facsimile: (281) 364-7533
E-mail: mstarzyk@starzyklaw.com
awalter@starzyklaw.com
myezierski@starzyklaw.com
mmitchell@starzyklaw.com
FCA US LLC: Victorino-Tavitian Case Survives Motion to Dismiss
--------------------------------------------------------------
District Judge Gonzalo P. Curiel of the United States District
Court for Southern District of California denied Defendant's
motion to dismiss the complaint in the case captioned, CARLOS
VICTORINO and ADAM TAVITIAN, individually and on behalf of a class
of similarly situated individuals, Plaintiff, v. FCA US LLC, a
Delaware limited liability company, Defendant, Case No. 2:14-01374
(S.D. Cal.), pursuant to Federal Rule of Civil Procedure (Rule)
12(b)(6) and 9(b).
Plaintiffs Carlos Victorino (Victorino) and Adam Tavitian
(Tavitian) bring a purported class action complaint based on
defects in the 2013-2016 Dodge Dart vehicles equipped with a Fiat
C635 manual transmission (Class Vehicles) that cause the vehicles'
clutches to fail and stick to the floor. Defendant FCA designs,
manufactures, markets, distributes, services, repairs, sells and
leases passenger vehicles, including the Class Vehicles,
nationwide and in California. Plaintiffs assert that the manual
transmission in the Class Vehicles contains a design defect that
causes the clutch pedal to lose pressure, stick to the floor, and
fail to engage/disengage gears. As a result, the vehicles equipped
with the defective manual transmission "experience stalling,
failure to accelerate, and premature failure of the transmission's
components, including, but not limited to, the clutch master
cylinder and reservoir hose, clutch slave cylinder and release
bearing, clutch disc, pressure plate, and flywheel."
The complaint asserts that Defendant knew or should have known
that the Class Vehicles and the manual transmission of the Class
Vehicles contained a design defect that adversely affects the
driveability and causes safety hazards because the same concerns
were expressed regarding the 2011-2012 model years Dodge Journey
that had the same manual transmission as the Class Vehicles.
Instead of repairing the defects in the manual transmission,
Defendant either refused to acknowledge their existence, or
performed repairs that simply masked the defects.
As an initial matter, Defendant moves to dismiss the complaint for
failing to allege a defect in compliance with Rule 8 because many
of the material allegations in the complaint are based on
"information and belief" and that Plaintiffs failed to plead with
the particularity pleading requirement of Rule 9(b) because most
of the allegations are based on "information and belief" and
because Plaintiffs have not identified the information that was
allegedly withheld from them and the names of the persons who
withheld it. The Court disagrees with Defendant's arguments.
In his Order dated November 1, 2016 available at
https://is.gd/hcrayW from Leagle.com, Judge Curiel concluded that
Plaintiffs have sufficiently stated a claim for quasi-contract and
that Defendant has not properly addressed preemption and has not
demonstrated that all the injunctive relief sought is subject to
preemption.
Carlos Victorino is represented by Jordan L. Lurie, Esq. --
Jordan.Lurie@CapstoneLawyers.com -- and Robert Kenneth Friedl,
Esq. -- Robert.Friedl@CapstoneLawyers.com -- CAPSTONE LAW APC
FCA US LLC is represented by Kathleen Ann Wisniewski, Esq. --
kwisniewski@thompsoncoburn.com -- and Stephen Anthony D'Aunoy,
Esq. -- sdaunoy@thompsoncoburn.com -- THOMPSON COBURN LLP --
William M. Low, Esq. -- alowry@thompsoncoburn.com -- and Edwin
Mendelson Boniske, Esq. -- boniske@higgslaw.com -- HIGGS FLETCHER
& MACK, LLP
FLOWERS FOODS: Faces "Martins" Suit Alleging FLSA Violations
------------------------------------------------------------
Daniel Martins, individually and on behalf of others similarly
situated, Plaintiff(s), v. FLOWERS FOODS, INC., FLOWERS BAKING CO.
OF BRADENTON, LLC, AND FLOWERS BAKING CO. OF VILLA RICA, LLC,
Defendants, Case No. 8:16-cv-03145-MSS-JSS (M.D. Fla., November 8,
2016), seeks overtime compensation, declaratory relief, liquidated
damages, attorneys' fees and costs under the Fair Labor Standards
Act.
Daniel Martins performed delivery and merchandising services to
local retailers of bakery and snack food products manufactured or
sold by Flowers.
The Plaintiff is represented by:
Carlos V. Leach, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Avenue
Wells Fargo Building, 14th Floor
PO Box 4979
Orlando, FL 32802-4979
Phone: (407) 420 1414
Fax: (407) 245-3341
E-mail: CLeach@forthepeople.com
- and -
Andrew R. Frisch, Esq.
600 N. Pine Island Road, Suite 400
Plantation, FL 33324
Phone: (954) 318-0268
Fax: (954) 333-3515
E-mail: AFrisch@forthepeople.com
FMC TECH: "Moten" Suit Seeks to Recover Unpaid Overtime Pay
-----------------------------------------------------------
Christopher Moten, Individually and on behalf of all others
similarly situated Plaintiff, v. FMC Technologies, Inc.,
Defendant, Case No. 3:16-cv-00315 (S.D. Tex., November 9, 2016),
seeks to recover overtime compensation, liquidated damages,
attorneys fees and costs pursuant to the Fair Labor Standards Act
of 1938.
Plaintiff worked as an Installation Engineer and Well Service
Engineer for FMC within the last three years and was paid a fixed
salary plus non-discretionary job bonuses/day rates for all work
completed in the oilfield or offshore in the Gulf of Mexico. He
routinely worked in excess of 40 hours per workweek without
overtime pay.
FMC designs, manufactures and services systems and products such
as subsea production and processing systems, surface wellhead
systems, high pressure fluid control equipment, measurement
solutions, and marine loading systems for the oil and gas
industry.
The Plaintiffs are represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy
ANDERSON2X, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
Email: clif@a2xlaw.com
austin@a2xlaw.com
lauren@a2xlaw.com
FRENCH QUARTER: Plaintiff Awarded $13,000 in Attorneys' Fees
------------------------------------------------------------
District Judge Susan O. Hickey of the United States District Court
for the Western District of Arkansas granted in part Plaintiff's
Motion for Attorneys' Fees and Costs in the case captioned, AMANDA
HAYS, Individually and on Behalf of Others Similarly Situated,
Plaintiff, v. FRENCH QUARTER PARTNERS, LLC, Individually and d/b/a
FRENCH QUARTER; DALE KLOSS a/k/a DUKE KLOSS, Individually and
d/b/a FRENCH QUARTER, Defendants, Case No. 6:15-CV-6065 (W.D.
Ar.).
On June 29, 2015, Plaintiff filed suit against Defendants alleging
violations of the Fair Labor Standards Act (FLSA), 29 U.S.C.
Section 207 et seq., and the Arkansas Minimum Wage Act (AMWA),
Ark. Code Ann. Section 11-4-211. The Complaint sought the creation
of a collective action pursuant to Section 216 of the FLSA, as
well as a class action pursuant to the AMWA and Federal Rule of
Civil Procedure 23.
On November 17, 2015, Plaintiff filed a Notice of Acceptance of
Offer of Judgment pursuant to Rule 68 of the Federal Rules of
Civil Procedure. Pursuant to Plaintiff's acceptance of the offer
of judgment from Defendants, the Court entered judgment in favor
of Plaintiff against Defendants in the amount of $16,940.00.
Plaintiff then filed the motion requesting approval of her
attorneys' fees pursuant to 29 U.S.C. Section 216(b).
Specifically, Plaintiff seeks an order from the Court awarding
$13,555.50 for attorneys' fees and costs. In addition, Plaintiff
submitted an itemized list of services billed by her attorneys in
the matter and a declaration signed by Attorney Josh Sanford
(Sanford). Plaintiff asserts that she is only requesting an award
for $13,031.50 in attorneys' fees "after subtracting fees incurred
performing duplicative or unnecessary work." Plaintiff states that
the $13,031.50 total includes: Attorney Josh Sanford's fees
totaling $5,365.00 for 18.5 hours at an hourly rate of $290.00;
Attorney Steve Rauls' (Rauls) fees totaling $4,938.75 for 21.95
hours at an hourly rate of $225.00; Attorney Maryna Jackson's
(Jackson) fees totaling $2,328.75 for 10.35 hours at an hourly
rate of $225.00; "Other Attorneys'" fees totaling $363.00 for 2.1
hours at a blended rate of 172.86; and staff fees totaling $36.00
for 0.6 hours at an hourly rate of $60.00. In addition, Plaintiff
requests reimbursement of $524.00 in costs.
Defendants ask the Court to reject Sanford's fee request as
unreasonable due to a lack of evidence that $290 per hour is an
ordinary rate or prevailing market rate for similar work in the
community. In addition, Defendants argue that Plaintiff's request
for attorneys' fees for work performed after the offer of judgment
should be denied. Defendants also argue that no attorneys' fees
should be awarded, or in the alternative substantially reduced,
for work related to class certification because neither class
materialized and only one plaintiff was ever a party to the
lawsuit.
A copy of Judge Hickey's Order dated November 1, 2016, is
available at https://is.gd/KMzXKB from Leagle.com.
Amanda Hays, Plaintiff, represented by Josh Sanford, Esq. --
josh@sanfordlawfirm.com -- and Stephen Rauls, Esq. --
steve@sanfordlawfirm.com -- SANFORD LAW FIRM PLLC
French Quarter Partners, LLC, et al. are represented by Tim
Cullen, Esq. -- TIM@CULLENANDCOMPANY.COM -- CULLEN & CO. PLLC
GLAXOSMITHKLINE: WLF Supports Flonase Class Action Settlement
-------------------------------------------------------------
Jessica Karmasek, writing for Legal Newsline, reports that The
Washington Legal Foundation is among those groups calling on a
federal appeals court to overturn a lower court's decision that,
they argue, would undermine class-wide settlements by permitting
plaintiff states to file copycat lawsuits despite benefiting from
a settlement.
The D.C.-based public interest law firm, which regularly advocates
against excessive litigation, filed its brief In re: Flonase
Antitrust Litigation in the U.S. Court of Appeals for the Third
Circuit.
The National Association of Manufacturers joined WLF in the brief
in support of appellant GlaxoSmithKline. Other groups, including
the American Tort Reform Association and the U.S. Chamber of
Commerce, filed their own briefs, also in support of the
pharmaceutical company. The U.S. Chamber's Institute for Legal
Reform owns Legal Newsline.
"After approving a class-wide settlement in this case as fair to
all absent class members, the district court declined to enforce
its own anti-suit injunction and instead permitted a class member,
the State of Louisiana, to proceed with copycat litigation raising
claims against Defendant-Appellant GlaxoSmithKline (GSK) that are
virtually identical to the settled claims," WLF wrote in its 30-
page brief, filed Nov. 1.
"Amici are concerned that the court's decision inappropriately
undermines the efficacy of class-wide settlements and, if affirmed
on appeal, will substantially reduce defendants' willingness to
enter into such settlements."
It continued, "To a large degree, class-action defendants are
motivated to settle by an understanding that a settlement,
although often expensive, will buy them litigation peace and
ensure that they will never again face claims based on the same
factual allegations. The district court's order seriously
undermines that motivation."
The case involves an antitrust class action lawsuit filed against
GSK in connection with its marketing of the allergy relief
medication Flonase. The lawsuit alleged, on behalf of a class
consisting of purchasers of the medication, that the defendant
improperly sought to delay U.S. Food and Drug Administration
approval of generic competition.
The parties entered into a class-wide settlement under which the
defendant agreed to pay millions of dollars to the class, which
was defined to include state governments.
The U.S. District Court for the Eastern District of Pennsylvania
approved the settlement, concluding that absent class members were
adequately notified of the proposed settlement and had an
opportunity to opt out.
But WLF argues that Louisiana did not opt out. The group contends
that evidence suggests the state collected $183,000 from the
settlement fund.
Then, Louisiana went on to file a lawsuit against GSK in state
court, seeking substantial additional damages.
"On December 29, 2014, the Louisiana Attorney General --
represented by private counsel hired on a contingency-fee basis
-- filed a complaint in Louisiana state court against GSK that is
identical in all material respects to the complaints filed in this
case," WLF points out in its brief. "The substantive paragraphs
of the Louisiana complaint are copied word-for-word from the July
14, 2008 complaint filed by the Indirect Purchaser Plaintiffs."
In April 2015, GSK filed a motion in the Eastern District of
Pennsylvania, seeking to enforce the class settlement against the
Louisiana Attorney General -- at the time, James "Buddy" Caldwell.
In her Dec. 21, 2015 order, Judge Anita Brody for the Eastern
District of Pennsylvania denied the motion. The judge held that
Louisiana is entitled to Eleventh Amendment sovereign immunity
that precludes it from being made a party to federal court
proceedings without its "unequivocal consent." It further held
that Louisiana should not be deemed to have provided such consent
based on its failure to opt out of the settlement.
WLF argues that the Eleventh Amendment applies only to claims
filed against a state and thus is not implicated here.
The group contends states are entitled to the same procedural
rights afforded to all class members -- including the right to opt
out of the class -- and that those rights were fully honored in
this case.
"The Supreme Court has always construed the Eleventh Amendment to
protect States only when they are sued in federal court as
defendants. GSK has not sought to bring Louisiana into federal
court as a defendant. Rather, it has sought to make the U.S.
District Court for the Eastern District of Pennsylvania the
principal forum for those wishing to assert claims against GSK for
its alleged efforts to impede the marketing of a generic
equivalent of Flonase," WLF wrote in its brief.
"Louisiana's Attorney General could have avoided the need to
appear in federal court by simply choosing to opt out of these
proceedings; or (having failed to opt out) by not asserting
separate damage claims against GSK based on the same course of
conduct."
The group added that Louisiana's "novel assertion" that the
Eleventh Amendment immunity extends beyond claims filed against a
state has been rejected by the courts.
"Louisiana is seeking a second bite at the apple," WLF Chief
Counsel Richard Samp. "It participated as a class member in the
settlement of class-wide claims in a federal antitrust lawsuit.
Accordingly, state officials should not be permitted to seek
further recovery by filing identical claims in state court.
"Unless defendants can be assured that every class plaintiff that
does not opt out will be bound by a settlement, their willingness
to enter into class-action settlements will be substantially
reduced."
HIH INC: "Romero" Suit to Recover Overtime Pay
----------------------------------------------
Jaime Romero, individually and behalf of others similarly
situated, Plaintiff, v. HIH Inc., Defendant, Case No. 1:16-cv-
01313 (W.D. Mich., November 9, 2016), seeks to recover unpaid
overtime compensation, liquidated damages and costs of this action
including reasonable attorneys' fees under the Fair Labor
Standards Act.
HIH Inc. operates as Suburban Inns where Plaintiff worked during
the last three years performing housekeeping services. He
complains that Defendant failed to pay overtime at a rate of one
and one-half times his regular rate for hours worked in excess of
40 hours during a workweek.
The Plaintiff is represented by:
Robert Anthony Alvarez, Esq.
Victoria L. Smalley, Esq.
AVANTI LAW GROUP, PLLC
600 28th St. SW
Wyoming, MI 49509
Tel: (616) 257-6807
Email: ralvarez@avantilaw.com
HILLSTONE RESTAURANT: Faces "Marett" Suit Over ADA Violation
------------------------------------------------------------
Lucia Marett, on behalf of herself and all others similarly
situated v. Hillstone Restaurant Group, Inc., Case No. 1:16-cv-
08910 (S.D.N.Y., November 16, 2016), is brought against the
Defendants for violation of the Americans With Disabilities Act.
Hillstone Restaurant Group, Inc. owns and operates a restaurant in
New York.
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
E-mail: cklee@leelitigation.com
HOME DEPOT: Faces Class Action Over Free Water Test Kits
--------------------------------------------------------
Kurtis Ming, writing for CBS13, reports that with a new baby, Dean
Skultety put in a water purifier in his home.
"I wanted to be healthy and have healthy water to drink," he said.
Months later Mr. Skultety noticed a free water testing kit inside
Home Depot and decided to give it a try.
He took a small water sample, filled out the card inside the kit
and mailed it to the company on the envelope, Pure Water in
Penryn.
He says he then got a call from a local number claiming to be
RainSoft.
Mr. Skultety remembers the conversation he had, "She said they got
metals in the water, and it's unsafe to drink and we need to come
to your house and re-test it."
He says when he asked to see his water results, the woman on the
phone refused.
"I'm pretty sure they're trying to get people to come to your
house and sell you a water filtration system," said Mr. Skultety.
According to Elena Bailey of Alabama, that's exactly what happened
to her when she sent in the Home Depot water test kit. Bailey also
describes an alarming call from RainSoft.
"That my drinking water was very close to not being drinkable,"
she said.
But she says after that in-home hard-sell to buy a RainSoft
system, her county tested her water and said it was just fine.
Now a class-action case has been filed against Home Depot and
RainSoft claiming the free water tests, don't test the water
safety at all.
CBS13 reached out to RainSoft and Home Depot. Both admitted to us
that the water test is only meant to identify mineral content, and
is not designed to detect contaminants.
But consumer attorney Stuart Talley says if customers using the
free tests are told their water is unsafe, that is misleading.
"That would be illegal under California law," he said. "If your
water doesn't taste good or it's hard, most people know that they
don't need a test for that."
Home Depot confirms to us it's been in partnership with RainSoft
since 2005.
"If anyone selling on behalf of the Home Depot used scare tactics,
it's unacceptable," said spokesperson Matt Harrigan.
RainSoft says its independent dealers agree to make no statements
or promises that are likely to mislead consumers.
And the local dealer, PureWater, which also goes by Winsler,
denies saying there were metals in Skultety's water and says the
company conducts itself with integrity.
Mr. Skultety disagrees saying, "It's a good way to make money, but
it's pretty sleazy." He's glad he didn't buy another water
system.
"If I had something on paper that said this is unsafe, I probably
would've paid the money," said Mr. Skultety.
Home Depot says it has taken action against some of its authorized
dealers but wouldn't say how many or which ones.
According to the Federal Trade Commission, "No in-home test can
determine the necessity of a water treatment system and no system
can remove all contaminants."
As to date, there's been no resolution in the class action case.
Many motions and counter-claims have been filed since it began.
The next court date was Nov. 16, in Illinois Circuit Court.
But Mr. Talley says because Home Depot's logo is on the water test
kits, it may have liability if fraud is proven.
JOYA COMMUNICATIONS: Sends Unauthorized Texts, Crossley Alleges
---------------------------------------------------------------
MATTIE CROSSLEY and SHERYL SEYMOUR, individually and on behalf of
all others similarly situated v. JOYA COMMUNICATIONS INC., a
Delaware corporation, Case No. 16LCH14771 (Ill. Cir. Ct., Cook
Cty., November 10, 2016), seeks to stop Joya's alleged practice of
making unauthorized text message calls to the cellular telephones
of consumers nationwide and to obtain redress for all persons
injured by its violation of the Telephone Consumer Protection Act.
Joya Communications Inc. is a corporation existing under the laws
of the state of Delaware with its principal place of business
located in Palo Alto, California. Joya operates a social
networking and video messaging service called Marco Polo.
The Plaintiffs are represented by:
Benjamin S. Thomassen, Esq.
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Telephone: (312) 589-6370
Facsimile: (312) 589-6378
E-mail: bthomassen@edelson.com
- and -
Eve-Lynn J. Rapp, Esq.
EDELSON PC
123 Townsend Street
San Francisco, CA 94107
Telephone: (415) 212-9300
Facsimile: (415) 373-9435
E-mail: erapp@edelson.com
JPJE CORP: "Osorio" Action Seeks to Recover Overtime Pay
--------------------------------------------------------
Virgilio Gonzales Osorio, Jose Nelson Aguilera Reyes, and all
others similarly situated under 29 U.S.C. 216(b), Plaintiffs, vs.
JPJE Corp., Jairo A Hurtado, Sr., Defendants, Case No. 1:16-cv-
24699 (S.D. Fla., November 9, 2016), seeks to recover overtime
compensation, liquidated damages, attorneys fees and costs
pursuant to the provisions of the Fair Labor Standards Act of
1938.
Plaintiffs worked as cooks in the Defendants' restaurant, Bolivar
Restaurant & Lounge, a Colombian restaurant located at 841
Washington Ave., Miami Beach, FL 33139.
The Plaintiffs are represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
Email: zabogado@aol.com
JPMORGAN CHASE: "Ballesteros" Suit Over Short Sales Dismissed
-------------------------------------------------------------
District Judge Darrin P. Gayles of the United States District
Court for the Southern District of Florida dismissed with
prejudice Plaintiff's complaint in the case captioned, RICARDO A.
BALLESTEROS a/k/a ALEJANDRO ALVAREZ, on behalf of himself and
"Victims of Short Sales", Plaintiff(s), v. JPMORGAN CHASE BANK,
N.A., Defendant, Case No. 16-CV-22386-GAYLES (S.D. Fla.).
On February 22, 2005, Plaintiff Ricardo A. Ballesteros a/k/a
Alejandro Alvarez, who is proceeding pro se, took out an $805,000
loan from Washington Mutual Bank; as security for the debt, he
executed a mortgage encumbering real property located at 28 Ixora
Way, Boynton Beach, Florida. Ballesteros made monthly payments
over the following six years, totaling approximately $280,000. In
September 2008, near the outset of the financial crisis, JPMorgan
Chase purchased Washington Mutual Bank.
On September 29, 2009, a Quit Claim Deed recorded on Page 346 of
Book 24,226 of the Public Records of Palm Beach County, Florida,
represents that Ballesteros (as Alejandro Alvarez) transferred
title to the Property to an individual named Elena Garcia.
Ballesteros filed a putative class action Complaint in the Court
on June 22, 2016, on behalf of himself and so-called "Victims of
Short Sales," bringing claims against JPMorgan for "Intentionally
Inflicting Financial Loss" and "Negligently Inflicting Financial
Loss," He contends that these claims arise from an alleged
"scheme" orchestrated by JPMorgan a "massive short sale campaign
to liquidate loans acquired from Washington Mutual Bank to produce
quick profits deliberately causing property owners to incur
enormous losses."
In the motion, JPMorgan contends that that Ballesteros lacks
standing to sue under Article III of the U.S. Constitution; and,
second, that he has failed to state claims upon which relief can
be granted.
In his Order dated October 18, 2016 available at
https://is.gd/3ZhUPj from Leagle.com, Judge Gayles found that
Ballesteros has failed to show that he personally suffered a
concrete and particularized injury and thus fails to show an
injury in fact and because the Court has found that Ballesteros
himself does not have standing, it also finds that he does not
have standing to bring a putative class action on behalf of any
other individuals who may have suffered such a particularized
injury.
J.P. Morgan Chase is represented by Benjamin Weinberg, Esq. --
bweinberg@leoncosgrove.com -- LEN COSGROVE LLC
LA CASA DE LOS TRUCOS: "Lopez" Suit to Recover Overtime Pay
-----------------------------------------------------------
Yuliet Bencomo Lopez and all others similarly situated under 29
U.S.C. 216(b), Plaintiff, vs. La Casa De Los Trucos, Inc. a/k/a
The House of Magic, Inc., Carmen C Torres and Jorge Torres,
Defendants, Case No. 1:16-cv-24696 (S.D. Fla., November 9, 2016),
requests overtime wages still owing, double damages and reasonable
attorney fees from Defendants, jointly and severally, pursuant to
the Fair Labor Standards Act.
Plaintiff worked for Defendants as a salesperson from March 22,
2016, through November 1, 2016.
The Plaintiffs are represented by:
J.H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Tel: (305) 865-6766
Fax: (305) 865-7167
Email: zabogado@aol.com
LENA JESS: Faces "Gamez" Suit Over Failure to Pay Overtime Wages
----------------------------------------------------------------
Jose Gamez, on behalf of himself and all others similarly situated
v. Lena Jess Enterprises, Inc. d/b/a D & D Landscape Design &
Construction, Inc., J & D D'Amico Enterprises Corp., Janet
D'Amico, and Dean D'Amico, Case No. 2:16-cv-06361 (E.D.N.Y.,
November 16, 2016), is brought against the Defendants for failure
to pay overtime wages in violation of the Fair Labor Standards
Act.
The Defendants operate a full service landscape company in New
York.
Jose Gamez is a pro se plaintiff.
LOGANS SANCTUARY: Sued by Riley for Violating Disabilities Act
--------------------------------------------------------------
Amanie Riley, on behalf of herself and all others similarly
situated v. Logans Sanctuary LLC, Case No. 1:16-cv-08711
(S.D.N.Y., November 9, 2016), is brought over alleged violations
of the Americans with Disabilities Act.
Logans Sanctuary LLC is a business formed in New York and is a
limited liability company under local business registration
regulations. The Company operates a hotel, The Sanctuary, located
in New York City.
LOS PANCHOS: "Ramos" Suit Invokes FLSA, Ill. Wage Laws
------------------------------------------------------
Jaime Ramos, individually and on behalf of other employees
similarly situated, Plaintiffs v. Los Panchos Restaurant &
Taqueria, Inc., and Disp Pack Corporation, Defendants, Case No.
1:16-cv-10451 (N.D. Ill., November 8, 2016), was filed pursuant to
the Fair Labor Standards Act, the Illinois Minimum Wage Law and
the Illinois Wage Payment and Collection Act.
Plaintiff handled goods that moved or that were intended to move
in interstate commerce.
The Plaintiff is represented by:
Raisa Alicea, Esq.
CONSUMER LAW GROUP, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Phone: 312-800-1017
E-mail: ralicea@yourclg.com
MEZENTCO SOLUTIONS: Faces Chemotherapy Dosing Class Action
----------------------------------------------------------
CTV Windsor reports that a proposed settlement has been reached
which resolves the claims related to the alleged diluted
chemotherapy incident at various Ontario and New Brunswick
Hospitals between Feb. 4, 2012 and April 2, 2013.
A class action was brought on behalf of individuals against
Mezentco Solutions Inc., cob Marchese Hospital Solutions, Mezentco
Inc., cob Marchese Health Care and MedBuy Corporation. They
alleged negligence by the company caused about 1200 cancer
patients to receive lower than intended dosages of the cancer
drugs cyclophosphamide and/or gemcitabine.
The allegations made in the lawsuits have not been proven in court
and the court has not taken any position as to the truth or merits
of the claims or defences asserted by either side.
The settlement represents a resolution of the disputed claims, and
the defendants and hospitals do not admit any wrongdoing or
liability in connection with the class action.
The proposed settlement is for $2,375,000 and includes payments to
class members, provincial health insurers, payments towards legal
costs, and payments for notice and claims administration.
Kate Warner of Windsor is among the victims named in the lawsuit.
Ms. Warner tells CTV Windsor she is both "shocked" and "relieved"
about the settelment.
"While these were difficult and protracted negotiations, the
defendants and hospitals should be commended for dealing with this
issue in a fair and considered manner," said
Michael Peerless of McKenzie Lake Lawyers LLP, co-counsel for the
plaintiffs, in a news release.
According to Harvey T. Strosberg, Q.C. -- harvey@strosbergco.com -
- of Sutts Strosberg LLP, co-counsel for the plaintiffs: "This is
not a good settlement. Given the circumstances, this is an
excellent settlement."
MIDLAND CREDIT: Accused by "Keenan" Class Suit of Violating FDCPA
-----------------------------------------------------------------
ANDREA KEENAN, and all others similarly situated v. MIDLAND CREDIT
MANAGEMENT and MIDLAND FUNDING, LLC, Case No. 161100632 (Pa. Com.
Pleas, Philadelphia Cty, November 10, 2016), alleges that the
Defendants have violated the Federal Debt Collection Practices Act
by using false and deceptive representations in the collection of
consumer debt.
Midland Credit Management is a nationwide debt collector with a
principal place of business in San Diego, California. Midland
Funding, LLC, is a purchaser of charged-off consumer debts and has
a principal place of business in San Diego. The Defendants
regularly engage in the collection of consumer debts using the
mails and telephone, or purchase consumer debt after default for
the purposes of collection.
The Plaintiff is represented by:
Cary L. Flitter, Esq.
Andrew M. Milz, Esq.
FLITTER MILZ, P.C.
450 N. Narberth Avenue, Suite 101
Narberth, PA 19072
Telephone: (610) 822-0782
Facsimile: (610) 667-0552
E-mail: cflitter@consumerslaw.com
amilz@consumerslaw.com
NEW WORLD LOGISTICS: Sued by Magana for Misclassifying Drivers
--------------------------------------------------------------
ADRIAN MAGANA, on behalf of himself and all others similarly
situated, and on behalf of the general public v. NEW WORLD
LOGISTICS SERVICE, INC., a California corporation, and DOES 1
through 10, inclusive, Case No. BC640480 (Cal. Super Ct., Los
Angeles Cty., November 10, 2016), alleges that the Defendant has
had a consistent policy of misclassifying its truck drivers as
independent contractors and, thereby, failing to compensate them
for all hours worked, failing to pay them premium wages due for
missed, denied and unauthorized meal and rest periods, failing to
provide them with accurately itemized wage statements and failing
to pay them all wages due and owing upon separation of employment.
New World Logistics Service, Inc., is a California corporation
that operates in Los Angeles County. The true names and
capacities of the Doe Defendants are currently unknown to the
Plaintiff.
The Plaintiff is represented by:
Kenneth S. Gaines, Esq.
Daniel F. Gaines, Esq.
Alex P. Katofsky, Esq.
Sepideh Ardestani, Esq.
GAINES & GAINES, APLC
27200 Agoura Road, Suite 101
Calabasas, CA 91301
Telephone: (818) 703-8985
Facsimile: (818) 703-8984
E-mail: ken@gaineslawfirm.com
daniel@gaineslawfirm.com
alex@gaineslawfirm.com
sepideh@gaineslawfirm.com
NEW YORK, NY: "Campbell" Suit to Recover Overtime Pay
-----------------------------------------------------
Henry Campbell, Jermaine Abraham, Edwin Rosario, Jessica Maniotis,
Sheri Silver, Plaintiffs, v. The City of New York, Defendants,
Case No. 1:16-cv-08719 (S.D. N.Y., November 9, 2016), bring this
action as a collective action in accordance with 29 U.S.C. Sec.
216(b) against the defendant on behalf of themselves and all
others similarly situated, because of defendant's unlawful
deprivation of plaintiffs' rights to overtime compensation under
the Fair Labor Standards Act.
Plaintiffs are employed by the Department of Homeless Services,
City of New York, as Sergeants or Peace Officers.
The Plaintiffs are represented by:
Hope Pordy, Esq.
SPIVAK LIPTON, LLP
1700 Broadway, Suite 2100
New York, NY 10019
Phone: (212) 765-2100
Email: hpordy@spivaklipton.com
- and -
Gregory K. McGillivary, Esq.
WOODLEY & McGILLIVARY LLP
1101 Vermont Ave., N.W., Suite 1000
Washington, DC 20005
Phone: (202) 833-8855
Email: gkm@wmlaborlaw.com
slf@wmlaborlaw.com
NORTHLAND GROUP: Violates Fair Debt Collection Act, Stiel Claims
----------------------------------------------------------------
Chaim E. Stiel, on behalf of himself and all other similarly
situated consumers v. Northland Group, LLC, Case No. 1:16-cv-06228
(E.D.N.Y., November 9, 2016), is brought over alleged violations
of the Federal Debt Collection Practices Act.
Northland Group, LLC, is a debt collector.
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, P.C.
735 Central Avenue
Woodmere, NY 11598
Telephone: (516) 668-6945
E-mail: fishbeinadamj@gmail.com
PERMANENT WORKERS: 5th Cir. Revives "Portillo" Suit
---------------------------------------------------
A three-judge panel of the Court of Appeals, Fifth Circuit vacated
a lower court order granting summary judgment in the case
captioned, JAVIER PORTILLO, on behalf of himself or other persons
similarly sicasetuated, Plaintiff-Appellant, v. PERMANENT WORKERS,
L.L.C.; CONRAD INDUSTRIES, INCORPORATED; DANNY CEPERO, Defendants-
Appellees, Case No. 15-30789 (5th Cir.).
Javier Portillo (Portillo) worked from approximately November 2011
to December 2012 as a general laborer for Defendant Permanent
Workers, LLC (Permanent Workers), which is owned by Defendant
Danny Cepero (Cepero). Permanent Workers provided staff for three
shipbuilding facilities managed by Defendant Conrad Industries,
Inc. (Conrad).
Portillo sued his former employers for unpaid overtime wages in a
collective action suit under the Fair Labor Standards Act (FLSA).
He sought unpaid wages, interest, liquidated damages, and attorney
fees.
When Defendants responded that they had no record of his
employment, Portillo revealed that he had applied for employment
using a fake name "Felix Serrano" and social security number.
Defendants then filed a reply asserting summary judgment was
appropriate on equitable grounds. Portillo then filed a motion for
conditional certification of the collective action. In support of
his motion, Portillo described two of his former Permanent Workers
colleagues, Pedro Cruz and Julio Virgen, as prospective collective
action members. Portillo argued that Cruz and Virgen were
"similarly situated," justifying conditional certification of the
collective action.
The district granted summary judgment, explaining that Portillo
was unfit to represent the proposed collective action.
The Court review the district court's grant of summary judgment de
novo and evaluates whether the party seeking summary judgment has
demonstrated that "there is no genuine dispute as to any material
fact" and that they are "entitled to judgment as a matter of law."
In the Per Curiam dated October 31, 2016 available at
https://is.gd/P9GyUQ from Leagle.com, the Fifth Circuit panel
concluded that the trial court erred as a matter of law by
dismissing Portillo's individual claim. The court could have
explicitly ruled on Portillo's motion for conditional
certification of the collective action. If it denied
certification, Portillo's individual action should have proceeded.
Alternatively, if the court chose to allow the collective action
to proceed with a different lead plaintiff, it should not have
dismissed but ought to have allowed counsel to offer another
suitable plaintiff to lead the collective action.
Javier Portillo is represented by:
Roberto Luis Costales, Esq.
ABOGADO DE ACCIDENTE ROBERTO LUIS COSTALES
3802 Canal St.
New Orleans, LA 70119
Tel:(504)534-5005
Permanent Workers, LLC, et al. are represented by Murphy J.
Foster, III, Esq. -- murphy.foster@bswllp.com -- and Melissa Morse
Shirley, Esq. -- melissa.shirley@bswllp.com -- BREAZEALE. SACHSE &
WILSON, LLP Greg Guidry, Esq. -- greg.guidry@ogletreedeakins.com
-- OGLETREE DEAKINS LLP
PIONEER NATURAL: "McAfee" Lawsuit Alleges Violations of FLSA
------------------------------------------------------------
DARVIN McAFEE, individually and on behalf of all others similarly
situated Plaintiff, v. PIONEER NATURAL RESOURCES COMPANY,
Defendant, Case No. 4:16-cv-03298 (S.D. Tex., November 8, 2016),
alleges that Defendant improperly classified Plaintiff and those
similarly situated as independent contractors and paid them a
daily rate with no overtime compensation in violation of the Fair
Labor Standards Act.
PIONEER NATURAL RESOURCES COMPANY is a global oil and gas
exploration and production company operating worldwide and
throughout the United States, including in Texas.
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Jessica M. Bresler, Esq.
Lindsay R. Itkin, Esq.
FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON
1150 Bissonnet
Houston, TX 77005
Phone: 713-751-0025
Fax: 713-751-0030
E-mail: mjosephson@fibichlaw.com
adunlap@fibichlaw.com
litkin@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
Phone: 713-877-8788
Fax: 713-877-8065
E-mail: rburch@brucknerburch.com
POMONA USD: Sued by JV for Violating Disabled Kids' Civil Rights
----------------------------------------------------------------
J.V. through his guardian ad litem, ANABEL FRANCO; B.K. through
his guardian ad litem, CYNTHIA BROWN; and all other students
similarly situated v. POMONA UNIFIED SCHOOL DISTRICT; POMONA
SPECIAL EDUCATION LOCAL PLANNING AREA; ANA PETRO, CHRISTINE GOENS,
KAMERON SHIELDS, BEATRIZ KRIVAN, JENNIFER YALES, SELENE AMANCIO,
BRIAN EL MAHMOUD, DANIELLA SOTO, MARY GARCIA, CINDY GREEN, ELAINE
MARKOFSKI, SUPERINTENDENT RICHARD MARTINEZ in his Official
Capacity only, DOLORES MURILLO, and DOES 1-10, Case No. BC640414
(Cal. Super. Ct., Los Angeles Cty., November 10, 2016), is brought
for alleged violation of the Plaintiffs' civil rights, battery,
assault, false imprisonment, intentional infliction of emotional
distress, negligent supervision, and negligence based upon the
Defendants' violations of California and Federal laws.
The Plaintiffs are disabled students, who, due to the severity of
their disabilities, were unable to report the abuse, injury, and
discrimination they were forced to endure, which included but was
not limited to battery, assault, false imprisonment, and
intentional infliction of emotional distress.
Pomona Unified School District and Pomona Special Education Local
Planning Area ("SELPA") are local government entities within the
meaning of the Americans with Disabilities Act, recipients of
federal financial assistance within the meaning of Section 504 of
the Rehabilitation Act, and have at least 50 employees. The
District and SELPA are also the recipients of financial assistance
from the state of California. The Individual Defendants are
officers or employees of the District or SELPA.
The Plaintiffs are represented by:
Christine A. Scheuneman, Esq.
Elaine Y. Lee, Esq.
Benjamin E. Strauss, Esq.
PILLSBURY WINTHROP SHAW PITTMAN LLP
725 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-5406
Telephone: (213) 488-7100
Facsimile: (213) 629-1033
E-mail: christine.scheuneman@pillsburylaw.com
elaine.lee@pillsburylaw.com
benjamin.strauss@pillsburylaw.com
- and -
Elizabeth Eubanks, Esq.
DISABILITY RIGHTS LEGAL CENTER
320 East D. Street
Ontario, CA 91764
Telephone: (909) 460-2034
Facsimile No.: (909) 460-2094
E-mail: elizabeth.eubanks@drlcenter.org
PRONAI THERAPEUTICS: "Gregory" Sues Over Share Price Drop
---------------------------------------------------------
Michael Gregory, individually and on behalf of all others
similarly situated, Plaintiff, v. Pronai Therapeutics Inc., Nick
Glover and Sukhi Jagpal, Defendants, Case No. 1:16-cv-08703 (S.D.
N.Y., November 9, 2016), seeks damages, including interest,
reasonable costs and expenses incurred in this action, including
attorneys' fees and other equitable/injunctive relief under the
Securities Exchange Act of 1934.
Pronai, a clinical stage oncology company, produced only one
product, PNT2258, which was purportedly designed to target cancers
that over-express B-cell lymphoma such as Hodgkin's lymphomas and
non-Hodgkin lymphoma patients with relapsed or refractory Diffuse
Large B-Cell Lymphoma. On June 6, 2016, the Company issued a press
release announcing interim data for the two Phase 2 trials and
revealed that PNT2258 had failed to produce sufficient efficacy
results to justify its continued clinical development. On this
news, the price of Pronai common stock declined from a closing
share price of $6.38 per share on June 3, 2016 to close at $2.07
per share on June 6, 2016, a loss of more than 67%, on extremely
heavy trading volume.
Plaintiff purchased Pronai common stock between July 15, 2015 and
June 6, 2016 and lost substantially.
Plaintiff is represented by:
Shannon L. Hopkins, Esq.
Meghan K. Daley, Esq.
LEVI & KORSINSKY LLP
733 Summer Street, Suite 304
Stamford, CT 06901
Tel: (212) 363-7500
Fax: (866) 367-5610
Email: shopkins@zlk.com
mdaley@zlk.com
PYRAMID HEALTHCARE: Must Defend Against "Graham" Suit, Court Says
-----------------------------------------------------------------
District Judge James S. Moody, Jr. of the United States District
Court for the Middle District of Florida denied Defendant's motion
to dismiss Counts I and II of the Amended Complaint in the case
captioned, DENISE GRAHAM, on her own behalf and all similarly
situated individuals, Plaintiff, v. PYRAMID HEALTHCARE SOLUTIONS,
INC., Defendant, Case No. 8:16-CV-1324-T-30AAS (M.D. Fla.).
The case is a putative class action brought under the Fair Credit
Reporting Act (FCRA). According to the amended complaint, in
October 2015, Plaintiff Denise Graham applied for employment with
Defendant Pyramid Healthcare Solutions, Inc. Defendant offered
Plaintiff employment, subject to Plaintiff's successful completion
of a background check. Thereafter, Defendant obtained Plaintiff's
background check from a consumer reporting agency. Plaintiff
alleges that Defendant rescinded its job offer based upon the
results of the background check. Plaintiff further alleges that
Defendant did not provide Plaintiff the pre-adverse action notice
required under the FCRA and Defendant did not allow Plaintiff the
opportunity to address the inaccuracies contained within the
background report.
Counts I and II of the amended complaint allege, in relevant part,
that the disclosure Plaintiff executed to authorize Defendant to
obtain a background report as part of the employment process
failed to comply with 15 U.S.C. Section 1681b(b)(2)(A)'s
requirement of a stand-alone disclosure. Specifically, Defendant
provided Plaintiff with a form titled Background Check Disclosure
and Authorization (Disclosure Form). Plaintiff alleges that the
Disclosure Form violated the FCRA by containing extraneous
information.
Plaintiff requests, in relevant part, statutory damages under the
FCRA based on Defendant's violations of the stand-alone disclosure
requirement.
In the motion, Defendant argues that Counts I and II of the
amended complaint are subject to dismissal because Plaintiff lacks
standing to allege these claims.
In his Order dated October 26, 2016 available at
https://is.gd/incG1b from Leagle.com, Judge Moody, Jr. held that
Plaintiff's standing was established when Plaintiff alleged
Defendant procured a consumer report on her background without
following the FCRA's disclosure and authorization requirements.
Defendant's effort to create a new enhanced standing requirement
is misguided and contrary to the holding in Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016).
Defendant is directed to answer the amended complaint.
Denise Graham is represented by:
Andrew Ross Frisch, Esq.
C. Ryan Morgan, Esq.
Marc Reed Edelman, Esq.
MORGAN & MORGAN, PA.
201 N. Franklin Street
7th Floor
Tampa, FL 33602
Tel: (813)223-5505
Pyramid Healthcare Solutions, Inc. is represented by Grant David
Petersen, Esq. -- grant.petersen@ogletreedeakins.com -- and
Vanessa Arun Patel, Esq. -- vanessa.patel@ogletreedeakins.com --
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.
RANDY'S TRUCKING: Must Defend Against "Phillips" Wage & Hour Suit
-----------------------------------------------------------------
District Judge Lawrence J. O'Neill of the United States District
Court for the Eastern District of California denied Defendant's
Motion for Judgment on the Pleadings in the case captioned,
WILLIAM PHILLIPS, AN INDIVIDUAL; on behalf of himself and all
others similarly situated, Plaintiff, v. RANDY'S TRUCKING, INC.,
ET AL., Defendants, Case No. 2:14-01374 (E.D. Cal.).
Plaintiff William Phillips, on behalf of himself and others
similarly situated, brings the action against Randy's Trucking,
Inc. (RTI), Randy Gene Griffith, and Kyle Griffith. Plaintiff
alleges violations of the Fair Labor Standards Act (FLSA) pursuant
to 29 U.S.C. Section 201 et seq., which he brings as a collective
action under 29 U.S.C. Section 216(b). Plaintiff also brings
various California state law claims individually.
From roughly August 2011 to March 2014, Phillips worked as a truck
operator for RTI, an oilfield services company. On May 5, 2015,
three former employees filed a collective action, Ferguson v.
Randy's Trucking, Inc., No. 1:15-cv-00697-JLT ( Ferguson),
against RTI in the Court alleging unpaid overtime in violation of
the FLSA, as well as various state law claims. On August 3, 2015,
Phillips filed a form with the court, consenting to opt in to the
litigation as a party plaintiff, pursuant to 29 U.S.C. Sec.
216(b). On March 11, 2016, the court denied plaintiffs' request
for conditional certification as a collective action under the
FLSA concluding that plaintiffs had not set forth sufficient
evidence to demonstrate that they were "substantially similar" to
the putative class.
On May 27, 2016, Phillips filed a new collective action complaint
against RTI in this Court. The Complaint alleges that RTI failed
to keep accurate records of the hours actually worked by Plaintiff
and other truck operators and, as a result, failed to pay them
appropriate overtime in accordance with the FLSA, 29 U.S.C.
Sections 207, 216. The Complaint also sets forth various
additional causes of action alleging violations of California
state law as to Defendant RTI.
On September 16, 2016, Defendants filed a motion for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c)
asserting issue preclusion against Plaintiff. In support of their
motion, Defendants request that the Court take judicial notice of
various court filings in the Ferguson action. Specifically,
Defendants point to the original complaint, Phillips' consent
form, and an order denying conditional certification of a
collective action. Defendants move for a judgment on the pleadings
with regard to only the collective action aspect of Plaintiff's
claim, and do not dispute that Phillips may proceed with his FLSA
claims on an individual basis.
In his opposition, Plaintiff contends that the operative complaint
in Ferguson was actually the first amended complaint. Plaintiff
argues that Defendants' motion is not properly a motion for
judgment on the pleadings because it does not seek any actual
judgment, nor does it seek the dismissal of any single cause of
action. Plaintiff further contends that Defendants' motion would
be more properly presented as a 12(f) motion to strike the
collective action allegations or as part of an opposition to
Plaintiff's eventual motion for certification.
In his Memorandum Decision and Order dated October 26, 2016
available at https://is.gd/RMZu5F from Leagle.com, Judge O'Neill
concluded that application of the issue preclusion doctrine to the
certification of a collective action in the case is not
appropriate. Because the court's denial of conditional
certification in Ferguson was not sufficiently firm, issue
preclusion does not bar Plaintiff's collective action claims.
William Phillips is represented by:
Michael Lion Tracy, Esq.
LAW OFFICE OF MICHAEL TRACY
2030 Main St STE 1300
Irvine, CA 92606
Tel: (949)260-9171
Randy's Trucking, Inc., et al. are represented by Andrew Hoon Woo,
Esq. -- awoo@littler.com -- and -- Kevin V. Koligian, Esq. --
kkoligian@littler.com -- LITTLER MENDELSON, P.C.
REWALK ROBOTICS: Faces "Nathan" Securities Suit Over 2014 IPO
-------------------------------------------------------------
NARBEH NATHAN, Individually and on Behalf of All Others Similarly
Situated v. REWALK ROBOTICS LTD., LARRY JASINSKI, AMI KRAFT, AMIT
GOFFER, JEFF DYKAN, HADAR RON, ASAF SHlNA, WAYNE B. WEISMAN,
YASUSHI ICHIKI, ARYEH DAN, GLENN MUIR, BARCLAYS CAPITAL INC.,
JEFFERIES LLC, and CANACCORD GENUITY INC., Case No. 16CIV02345
(Cal. Super. Ct., San Mateo Cty., November 10, 2016), is a
securities class action on behalf of all persons, who purchased
ReWalk common stock in or traceable to ReWalk's September 12,
2014, initial stock offering, seeking to pursue remedies under the
Securities Act of 1933.
ReWalk is an Israeli medical device company that was founded in
2001 and has 10 Training Centers in California. ReWalk is a
medical device company that specializes in the design, development
and commercialization of wearable, robotic exoskeletons for use by
individuals with spinal cord injury. The Individual Defendants
are directors and officers of the Company.
Barclays Capital Inc., Jefferies LLC and Canaccord Genuity Inc.
are financial services companies that served as underwriters of
the IPO, helping to draft and disseminate the offering documents
and to sell the Company's IPO stock to the investing public,
including the Plaintiff.
The Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Lesley F. Portnoy, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
rprongay@glancylaw.com
lportnoy@glancylaw.com
clinehan@glancylaw.com
- and -
Corey D. Holzer, Esq.
Marshall P. Dees, Esq.
HOLZER & HOLZER, LLC
1200 Ashwood Parkway, Suite 410
Atlanta, GA 30338
Telephone: (770) 392-0090
Facsimile: (770) 392-0029
E-mail: cholzer@holzerlaw.com
mdees@holzerlaw.com
ROB-GLEN ENTERPRISES: Accused by "Nunes" Suit of Violating FLSA
---------------------------------------------------------------
Urbano Ortiz Nunes, on behalf of himself and all others similarly
situated, Oscar Canales, Pedro Antonio Portillo Romero and Hember
Gonzalez Escobar, individually v. Rob-Glen Enterprises, Inc. d/b/a
Commack Hand Car Wash, and Bruce Klein, an individual, Case No.
2:16-cv-06207 (E.D.N.Y., November 8, 2016), alleges violations of
the Fair Labor Standards Act.
Rob-Glen Enterprises, Inc., is a domestic business corporation
registered at Suffolk County, in New York. The Company is located
in Commack, New York. The Company is incorporated in 1976. Bruce
Klein is the Company's chief executive officer.
SAMSUNG ELECTRONICS: Faces Note 7 Class Action in Canada
--------------------------------------------------------
Alexandra Posadzki, writing for The Canadian Press, reports that a
class action lawsuit has been filed in Canada regarding Samsung
Galaxy Note 7 phones, which were recalled in October following
reports of overheating batteries that pose a fire hazard.
The lawsuit against both the U.S. and Canadian divisions of
Samsung was filed in Ontario Superior Court by London, Ont.-based
McKenzie Lake Lawyers, LLP.
The claim alleges Samsung was negligent because they knew or
should have known that the devices could harm consumers.
The allegations have not been proven in court.
The lawsuit, which was filed on behalf of Canadian residents who
bought the Note 7, seeks damages and a declaration that the
defendants' actions were false and misleading and contravened the
Consumer Protection Act and the Competition Act.
The South Korean electronics giant stopped making and selling the
devices and advised owners to turn them off and stop using them
last month.
Samsung Electronics Canada Inc. says customers who return the
phone can either exchange it for a Galaxy S7 or Galaxy S7 Edge, or
receive a full refund.
The plaintiffs in the case are Hannah Shaheen of Burlington, Ont.,
and Daniel Fuller, a Michigan resident in the process of moving to
Burlington.
While returning from their honeymoon in the Turks and Caicos
Islands, the couple says they were forced to destroy and discard
their Note 7 phones because they had been banned from air
transportation. They allege that in the process of destroying the
devices, one caught fire.
Because they had been forced to destroy the phones, Ms. Shaheen
and Mr. Fuller lost all the personal information, photos, videos
and contacts that were on the devices.
The couple says they have not received any compensation from the
company or a replacement device.
"We believe that through this action, the defendants will be
required to account for their actions in bringing these devices to
market," lawyer Matthew Baer said in a statement.
"Canadians who owned these devices deserve to be properly
compensated."
Samsung did not immediately respond to a request for comment.
SAMSUNG ELECTRONICS: Recalls Top-Loading Washing Machines
---------------------------------------------------------
Paul Muschick, writing for The Morning Call, repots that Samsung
announced on Nov. 4 it is recalling nearly 3 million top-loading
washing machines that could be an injury risk to users under
certain circumstances. Here is what you need to know.
Why are the machines being recalled?
Samsung says it voluntarily recalled 34 models of washing machines
due to reports highlighting that the drums in the washers may lose
balance, triggering excessive vibrations and resulting in the top
separating from the washer. This can occur when a high-speed spin
cycle is used for bedding, water-resistant or bulky items.
The Consumer Product Saftey Commission said Samsung has received
733 reports of washing machines experiencing excessive vibration
or the top detaching. There are nine reports of injuries
including a broken jaw and injured shoulder.
How do I know if my washing machine is recalled?
The Consumer Product Safety Commission has a list of the models
included in the recall here.
The washers were sold at Best Buy, The Home Depot, Lowes, Sears
and other home appliance stores nationwide from March 2011 to
November 2016 for between $450 and $1,500.
If I have a recalled washer, what are my options?
Customers can have a free in-home repair that will reinforce the
washer's top. They also will receive a free one-year extension of
the manufacturer's warranty, regardless of the age of their
washer. The free in-home repair is not available for mid-control
washers at this time.
Customers who would like to replace their washing machine can get
a rebate to use toward the purchase of a new washer of any brand,
along with free installation of the new machine and removal of the
old one. The rebate amount is based on the manufacture date and
model of the recalled washer. Consumers who choose to obtain
another Samsung washer will receive an additional loyalty
incentive up to $150.
Customers who purchased a recalled washer in the last 30 days of
the recall announcement are eligible for a full refund from their
original place of purchase.
How do I contact Samsung to arrange for a repair or request a
rebate?
Enter the model number and serial number of your washing machine
on the Samsung website here. Those numbers are on stickers on the
rear of your machine.
You can call Samsung at 866-264-5636 from 8 a.m. to 10 p.m.
Until my washing machine is replaced or repaired, how can I
protect myself?
All known washer owners will be mailed a labeling kit. The kit
will include a new control panel guide (excluding mid-control
models), two warning labels and step-by-step instructions for
applying them to the machine.
Until the repair is completed, the washer is exchanged or the
warning labels are applied, Samsung and the Consumer Product
Safety Commission are advising owners of the recalled washers to
use the delicate or waterproof cycles when washing bedding, water-
resistant or bulky items.
SANTA FE, NM: Faces Class Action Over Unconstitutional Detentions
-----------------------------------------------------------------
John Suayan, writing for SE Texas Record, reports that three
Galveston County men filed a class action lawsuit against the City
of Santa Fe on allegations it is raising revenue by
unconstitutionally jailing local residents, according to recent
Galveston federal court records.
George West, Robert Jones, and Brady Fuller claim in court papers
filed on Nov. 3 that Santa Fe imprisons individuals who could not
afford to pay fines and fees.
"Anyone who falls behind faces imprisonment in unconscionable
conditions without the opportunity to see a judge or explain the
circumstances that prevent payment," the original petition says.
Messrs. West and Jones say that they face the threat of jail while
Mr. Fuller states that he had already spent time in the Santa Fe
Jail, which the suit labels a "modern-day debtors' prison."
Per the plaintiffs, Santa Fe Municipal Judge Carlton Getty and
Santa Fe Chief of Police Jeffrey Powell agreed to raise the cost
of traffic and other misdemeanor fines to boost revenue. The city
then "uses multiple constitutional violations as leverage to
extract payments from local residents, tacking on further fines
and fees at every opportunity," the suit says.
Messrs. West and Jones further accuse the city of not providing
them relief from their outstanding fines. Fuller complains that
he was deprived of due process, his right to equal protection, his
right to counsel, and his right against cruel and unusual
punishment when the city jailed him.
Judge Getty and Chief Powell are co-defendants in the case.
A jury trial is requested.
Attorneys Trisha Trigilio and Rebecca Robertson of the American
Civil Liberties Union of Texas are representing the complainants.
Galveston Division of the Southern District of Texas Case No.
3:16-CV-0309
SENSA PRODUCTS: "Conde" Suit Over Weight Loss Product Tossed
------------------------------------------------------------
District Judge Janis L. Sammartino of the United States District
Court for the Southern District of California granted Defendants'
motion to dismiss for failure to state a claim in the case
captioned, JOSE CONDE, et al., Plaintiffs, v. SENSA, et al.,
Defendants, Case No. 14-cv-51 JLS WVG (S.D. Cal.).
The action was originally filed on January 7, 2014 by Plaintiff
Jose Conde against Defendant Sensa Products, LLC and Does 1-10
alleging violations of California law. After various motion
practice, the Court consolidated Conde's case with two others and
appointed interim class counsel. Plaintiff subsequently filed the
Second Consolidated Amended Action Complaint (SCAC), alleging
various tort- and contract-based causes of action. Count XI "Alter
Ego/Veil Piercing" was added for the first time in the SCAC and
forms the basis of the motion to dismiss (MTD).
Plaintiff alleges that the Sensa tastant crystals were developed
by Dr. Alan Hirsch, M.D., a board-certified neurologist who
claimed in Sensa advertisements that the crystals were "clinically
shown" to promote weight loss without dieting. Sensa has since
filed for bankruptcy, following an FTC suit that resulted in a
$46.5 million stipulated judgment, and several other related legal
actions. Plaintiff alleges the Defendants' Don Ressler, Adam
Goldenberg, Kristin Chadwick, Scott Whittier, Stacey Kivel,
Elizabeth Francis, Jeff Campbell, Jason Morano, Katelyn O'Reilly,
Michael Shay, and Cody Congleton (MTD Defendants) held various
positions of authority within Sensa and related corporations at
all times relevant to the SCAC.
In the motion, the MTD Defendants advance several grounds for
dismissing Plaintiff's Count XI pleading regarding alter ego and
veil piercing -- broadly stated, that (1) Plaintiff attempts to
assert a substantive cause of action for alter ego liability when
California does not recognize such a claim, and (2) the SCAC does
not contain sufficiently specific factual allegations to permit
the findings of ownership and inequitable results required to
validly allege an alter ego relationship.
In his Order dated October 17, 2016 available at
https://is.gd/WIHtp9 from Leagle.com, Judge Sammartino concluded
that Plaintiff's allegations Defendants fall well short of validly
pleading an alter ego relationship.
Plaintiff shall file any amended complaint by November 1, 2016.
Mollie Delaney et al. are represented by Julia A. Luster, Esq. --
jaluster@seyfarth.com -- Lawrence Timothy Fisher, Esq. --
ltfisher@bursor.com -- and Annick Marie Persinger, Esq. --
apersinger@bursor.com -- BURSOR & FISHER, P.A.
Susan Grace Stokes is represented by Brian Philip Murray, Esq. --
BMurray@glancylaw.com -- Lee Albert, Esq. -- LAlbert@glancylaw.com
-- Lionel Z. Glancy, Esq. -- LGlancy@glancylaw.com -- and Mark
Samuel Greenstone, Esq. -- MGreenstone@glancylaw.com -- GLANCY
BINKOW AND GOLDBERG LLP -- Julia A. Luster, Esq. --
jaluster@seyfarth.com -- Lawrence Timothy Fisher, Esq. --
ltfisher@bursor.com -- and Annick Marie Persinger, Esq. --
apersinger@bursor.com -- BURSOR & FISHER, P.A. -- Edmond E.
Koester, Esq. -- ekoester@cyklawfirm.com -- COLEMAN YOVANOVICH AND
KOESTER PA
Don Ressler, et al. are represented by Valentine Antonavich
Shalamitski, Esq. -- vas@msk.com -- MITCHELL SILBERBERG KNUPP LLP
TCV VI, L.P. is represented by Stephen Hibbard, Esq. --
sdhibbard@jonesday.com -- JONES DAY
SOUTHERNTELECOM: "Toh" Class Suit Removed to Mass. Dist. Ct.
------------------------------------------------------------
The class action lawsuit captioned Weitat Toh, individually and on
behalf of all others similarly situated v. SouthernTelecom, Inc.
and Southern Telecom Electronics, Inc., Case No. 16-01253, was
removed from the Norfolk Superior Court to the U.S. District Court
for the District of Massachusetts (Boston). The District Court
Clerk assigned Case No. 1:16-cv-12300-ADB to the proceeding.
SouthernTelecom, Inc. is a manufacturer, marketer, and distributor
of consumer electronics and their accessories.
The Plaintiff is represented by:
Preston W. Leonard, Esq.
LEONARD LAW OFFICE, PC
63 Atlantic Avenue, 3rd Floor
Boston, MA 02110
Telephone: (617) 329-1295
E-mail: pleonard@theleonardlawoffice.com
The Defendant is represented by:
David S. Godkin, Esq.
BIRNBAUM & GODKIN, LLP
280 Summer Street
Boston, MA 02210
Telephone: (617) 307-6100
Facsimile: (617) 307-6101
E-mail: godkin@birnbaumgodkin.com
STEMGENEX MEDICAL: "Moorer" Class Suit Removed to S.D. California
-----------------------------------------------------------------
The class action lawsuit entitled Selena Moorer, individually and
on behalf of all others similarly situated v. Stemgenex Medical
Group, Inc., Stemgenex, Inc., Stem Cell Research Centre, Inc.,
Andre P. Lallande, D.O., Scott Sessions, M.D., Rita Alexander, and
Does 1-100, Case No. 37-02016-00028994-CU-NP-CTL, was removed from
the Superior Court of California, County of San Diego to the U.S.
District Court for the Southern District of California (San
Diego). The District Court Clerk assigned Case No. 3:16-cv-02816-
AJB-NLS to the proceeding.
The Defendants operate a medical center in San Diego, California.
The Plaintiff is represented by:
Janice F. Mulligan, Esq.
MULLIGAN AND BANHAM
2442 4th Avenue, Suite 100
San Diego, CA 92101
Telephone: (619) 238-8700
Facsimile: (619) 238-8701
The Defendant is represented by:
Malte L. L. Farnaes, Esq.
LAW OFFICE OF MALTE L. L. FARNAES, APC
135 Liverpool Drive, Suite C
Cardiff, CA 92007
Telephone: (760) 942-9431
Facsimile: (760) 452-4421
E-mail: malte@farnaeslaw.com
STONY HOLLOW: Faces Class Action Over Landfill Odor Complaints
--------------------------------------------------------------
Dayton Daily News reports that a Dayton landfill facing a lawsuit
after odor complaints from nearby suburbs has been barred from
discharging waste into city sanitary sewers since being linked to
clogged lines and the use of prohibited chemicals that made
cleanup crews "very ill," records show.
The city of Dayton took that action against Stony Hollow Landfill
while it and the Ohio Environmental Protection Agency determine
whether -- as records indicate -- the South Gettysburg Avenue
site's waste blocked sewer lines and contained chemicals that
resulted in 10 city workers seeking medical attention from
"significant odors."
The city will not comment on the extent of the illnesses for the
workers.
The landfill has been the focus of odor complaints by residents in
Jefferson Twp., Kettering, Moraine and West Carrollton.
The facility was sued by a Moraine resident in a class-action
claim that it was negligent in containing its emissions.
Since a late October order by the city of Dayton, the landfill has
transported all decomposing waste off site for wastewater
treatment, according to its owner, Waste Management.
SUPREME INDUSTRIES: January 3 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------------
Khang & Khang LLP (the "Firm") on Nov. 7 disclosed that a class
action lawsuit against Supreme Industries Inc. ("Supreme
Industries" or the "Company"). Investors who purchased or
otherwise acquired shares between July 22, 2016 and October 21,
2016 inclusive (the "Class Period"), are encouraged to contact the
Firm prior to the January 3, 2017 lead plaintiff motion deadline.
If you purchased Supreme Industries shares during the Class
Period, please contact Joon M. Khang, Esquire, of Khang & Khang
LLP, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by
telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com.
There has been no class certification in this case yet. Until
certification occurs, you are not represented by an attorney. You
may choose to take no action and remain a passive class member.
The complaint alleges that Supreme Industries made false and
misleading statements and/or failed to disclose that: the backlog
figure from the third quarter of 2015 was a result of the timing
of many large orders placed in that quarter; that the backlog
figure for the third quarter of 2016 would not be close to the
backlog figure of the third quarter of 2015; and that as a result
of the above, the Company's public statements about its business,
operations and prospects were materially false and misleading at
all relevant times.
On October 21, 2016, Supreme Industries announced its third
quarter backlog of truck sales declined 22% from the third quarter
2015. On October 22, 2016, Cliffside Research published a report
discussing the unexpected third quarter backlog decline and heavy
insider selling through 2016.
If you wish to learn more about this lawsuit free of charge, or if
you have questions regarding this notice or your rights, please
contact Joon M. Khang, a prominent litigator for almost two
decades, by telephone: (949) 419-3834, or by e-mail at
joon@khanglaw.com
TENNESSEE VALLEY: Class Action Mulled Over Coal Ash Contamination
-----------------------------------------------------------------
Russ Corey, writing for Times Daily, reports that when
Dianne Petty asked on Nov. 7 how many people would support a
class-action lawsuit against the Tennessee Valley Authority,
nearly everyone raised their hand.
About 50-60 people gathered at Nazareth Primitive Baptist Church
near the now closed coal fired plant to discuss their next step in
their ongoing battle against the utility.
Their goal is to bring attention to what they believe is a higher
than normal cancer rate among those who have grown up around the
now closed Colbert fossil plant.
While they're still gathering information, many residents think
their proximity to airborne coal ash and groundwater contamination
from nearby coal ash impoundments have adversely affected their
health.
The organizer of the movement, Otis Petty, said a few attorneys
have contacted him about their concerns, but he wanted to gauge
the community's thoughts on the topic before moving forward.
"There's some attention being brought to it now," said resident
Annie Donley, who is working with the Pettys.
Dianne Petty said her husband has been approached by TVA, but said
he was not interested in a settlement for himself alone.
"This is not just his fight," she said.
Mr. Petty has throat cancer and other numerous residents have told
stories of multiple family members dying of breast cancer,
prostate cancer and lung cancer.
Any settlement, he said, would involve everyone who has been
impacted.
Ms. Petty said representatives of TVA were invited to attend the
Nov. 7 meeting, but cancelled. TVA officials did, however, email
a statement to the TimesDaily through spokesman Scott Fiedler.
"We spoke with Mr. Petty at length to listen to his concerns and
let him know that we were unable to attend his meeting. During
our discussion, we let Mr. Petty know that one of TVA's primary
missions is to protect the environment, and we work directly with
state and federal agencies to do just that. While Mr. Petty's
illness is tragic, federal and state health agencies that monitor
this data have found no correlation between increased illness
rates and our facility.
"Together with the Alabama Department of Environmental Management
(ADEM), TVA has identified groundwater localized to its own
property that does not meet ADEM's groundwater protection
standards. While ADEM itself agrees that this water poses no risk
to public health, we are removing the ponded water as part of our
closure of the facility."
Mr. Petty said TVA wants him to gather a "list of demands" from
the community.
"It has to be something we all agree on," he said.
The biggest issue, aside from compensation, is removing the coal
ash from the site.
TVA has capped one dry ash impoundment, Ash Stack No. 5, and plans
to dewater a wet ash impoundment, which will also be left in place
and covered. TVA chose the "closure-in-place" method because it
is less costly than removing the ash.
Mr. Petty said he would like to see the Environmental Protection
Agency declare coal ash a hazardous material due to the amount of
cancer-causing chemicals it contains.
Dianne Petty said her husband will continue to look into a class
action lawsuit, but she stressed the entire community needs to be
involved. She said there will be another meeting before they move
forward with legal action.
"It's the consensus of everyone," she told the group. "If we
obtain a lawyer, which I really think we should do soon, a lawyer
can get a lot of legwork done we can't do. A lawyer is going to
keep you all updated. There are things they can find out you
can't."
Diane Petty said the community would continue to be involved in
decisions once a lawyer is selected. She said they need to find a
lawyer from outside the state
"It's going to be your decision," she said. "The people in this
room have been damaged, and we deserve to be compensated."
She said a class-action lawsuit could take time to work its way
through the courts. She said they must also consider how this
issue could impact their children and grandchildren.
"I was always told if you don't stand for something, you'll fall
for anything," Dianne Petty said. "If this isn't something to
stand up for, I don't know what is."
Charles Rose, president of the Shoals Environmental Alliance, told
the group his organization is also concerned about the impact of
the coal ash impoundments.
"I encourage you to keep pursuing this," he said.
TERMINIX INTERNATIONAL: Court Revives Eubank's 2 Claims
-------------------------------------------------------
District Judge William Q. Hayes of the United States District
Court for the Southern District of California granted Plaintiff
Jeff Eubank's motion for reconsideration in the case captioned,
JEFF EUBANK, Plaintiff, v. TERMINIX INTERNATIONAL, INC.,
Defendant, Case No. 15CV00145-WQH (JMA) (S.D. Cal.).
On December 18, 2014, Plaintiff Jeff Eubank commenced the action
by filing a class action complaint in San Diego County Superior
Court. On January 21, 2015, Defendant Terminix International, Inc.
removed the action pursuant to the Class Action Fairness Act, 28
U.S.C. Sec. 1332(d). On February 7, 2015, Plaintiff filed the
First Amended Complaint (FAC), which is the operative complaint in
the case.
On February 26, 2015, Defendant filed a Motion to Dismiss and
Compel Arbitration, relying on a Dispute Resolution Plan (the
Plan) that Plaintiff entered into with Defendant in August 2012.
On April 21, 2015, the Court issued an Order granting in part
Defendant's Motion to Dismiss and Compel Arbitration but left the
motion pending with respect to Plaintiff's seventh and eighth
claims brought pursuant to California's Private Attorneys General
Act of 2004 (PAGA).
On July 22, 2015, the Court granted Defendant's Motion to Dismiss
and Compel Arbitration finding that the "effective vindication"
exception to the Federal Arbitration Act did not render the Plan's
representative action waiver unenforceable. The Court dismissed
Plaintiff's seventh and eighth claims brought pursuant to PAGA
"with prejudice to the extent they are brought in a representative
capacity." The Court ordered that "to the extent Plaintiff
asserts PAGA claims individually, the parties must proceed to
arbitration in accordance with the terms of the Plan."
On appeal, Plaintiff requests that this Court reconsider its
"decision to dismiss Plaintiff's PAGA claims brought as a class
representative of other 'aggrieved employees' pursuant to Fed. R.
Civ. P. 60(b)(4), (5), and (6)" in light of the ruling in Sakkab
v. Luxottica Retail North America Inc., 803 F.3d 425 (9th Cir.
2015), where Plaintiff contends the court "adopted the Iskanian
rule, and held that the FAA does not pre-empt class action waivers
involving PAGA claims."
Defendant contends that Plaintiff's motion is time-barred under
this District's Local Rules and under Rule 60(c) because it was
not filed within a reasonable time of the Court's July 22, 2015
Order. Defendant contends that the Court's July 22, 2015 Order is
not "final," and therefore Rule 60 cannot provide Plaintiff with
relief. Defendant further contends that "none of plaintiff's
alleged grounds under Rule 60(b) applies."
In his Order dated October 27, 2016 available at
https://is.gd/uAJlg8 from Leagle.com, Judge Hayes concluded that
Plaintiff is entitled relief under Rule 60(b)(6) specifically "the
lack of clarity in the law at the time of the district court's
original decision, the lack of reliance by either party on the
finality of the original judgment," the similarity between the
Sakkab decision and the case.
The Court vacates the part of its July 22, 2015 Order stating that
"Plaintiff's seventh and eighth claims are dismissed with
prejudice to the extent they are brought in a representative
capacity." The Motion to Dismiss is denied as to Plaintiff's
seventh and eighth claims, to the extent they were brought in a
representative capacity.
Jeff Eubank is represented by Todd M. Friedman, Esq. --
tfriedman@attorneysforconsumers.com -- LAW OFFICES OF TODD M.
FRIEDMAN, P.C.
Terminix International, Inc. is represented by Curtis Alan Graham,
Esq. -- cagraham@littler.com -- Michelle Rapoport, Esq.
-- mrapoport@littler.com -- and Paul Prather, Esq. --
pprather@littler.com -- LITTLER MENDELSON
TRIAD MEDIA: "Vasquez" Suit Over Spam Text Underway
---------------------------------------------------
Senior District Judge William H. Walls of the United States
District Court for the District of New Jersey partially granted
Plaintiffs' motion to strike several affirmative defenses asserted
by Defendants' Zeta Interactive Corporation and Spire Vision LLC
in their answer to her amended class action complaint in the case
captioned, NORMA VAZQUEZ, individually and on behalf others
similarly situated, Plaintiff, v. TRIAD MEDIA SOLUTIONS, INC., a
New Jersey Corporation; ZETA INTERACTIVE CORPORATION, a Delaware
Corporation, and SPIRE VISION LLC, a Delaware Corporation,
Defendants, Case No. 15-CV-07220 (WHW)(CLW) (D.N.J.).
Plaintiff Norma Vazquez, an individual domiciled in Braselton,
Georgia, alleges that on or about June 7, 2015, three Defendant
marketing companies, TriAd Media Solutions, Inc. (Triad), Zeta
Interactive Corporation (Zeta), and Spire Vision LLC (Spire), sent
an unsolicited text message to her wireless phone "promoting a
drawing for a scholarship." (including image of the message).
Plaintiff did not consent in writing to receive this message.
On September 30, 2015, Plaintiff brought an action against Triad
on behalf of herself and a class of "all individuals in the United
States whose wireless telephones Triad, or someone on its behalf,
sent a non-emergency, unsolicited text message through the use of
an automatic dialing system, at any time within the four years
prior" to the filing of the complaint (the class). Plaintiff
amended the complaint to add Defendants Zeta and Spire on June 27,
2016. Plaintiff alleges that Triad, Spire, and Zeta violated the
Telephone Consumer Protection Act (TCPA), 47 U.S.C. Section
227(b)(1)(A)(iii), by sending unsolicited, non-emergency
commercial text messages through the use of an automatic dialing
system without receiving prior express written consent from
recipients. Plaintiff seeks, on behalf of herself and the class,
monetary and injunctive relief and an award of reasonable
attorney's fees.
On August 15, 2016, Defendants Zeta and Spire filed an answer and
affirmative defenses to Plaintiff's first amended complaint. On
September 6, 2016, Plaintiff filed a motion under Fed. R. Civ. P.
12(f) to strike several of these affirmative defenses. Plaintiff
now argues that one of Zeta and Spire's affirmative defenses --
the Ninth -- must be stricken along with their reservation of the
right to add affirmative defenses to their answer.
Defendants' Ninth Affirmative Defense reads: "This action may not
be maintained as a class action pursuant to Rule 23 of the Federal
Rules of Civil Procedure."
In his Opinion dated October 18, 2016 available at
https://is.gd/qnxV0a from Leagle.com, Judge Walls found that
Defendants' Ninth Affirmative Defense provides adequate notice,
but strikes Defendant's reservation of any automatic right to
assert additional affirmative defenses and follow the procedure
provided in Fed. R. Civ. P. 15 to seek leave of the Court to amend
or supplement its pleadings.
Norma Vazquez is represented by Joseph J. Depalma, Esq. --
jdepalma@litedepalma.com -- LITE, DEPALMA, GREENBERG, LLC
Triad Media Solutions, Inc. Is Represented By Kenneth J. Cesta,
Esq. -- kcesta@bressler.com -- Mark M. Tallmadge, Esq. --
mtallmadge@bressler.com -- and Michael David Margulies, Esq. --
mmargulies@bressler.com -- BRESSLER, AMERY & ROSS, P.C.
Zeta Interactive Corporation, et al. are represented by Peter G.
Siachos, Esq. -- psiachos@gordonrees.com -- GORDON & REES, LLP
UNITED STATES: Garett Earns Preliminary Injunction Against IRS
--------------------------------------------------------------
James Dornbrook, writing for Kansas City Business Journal, reports
that Kansas City-based Graves Garrett LLC earned a preliminary
injunction against the Internal Revenue Service, which is accused
of discrimination against the Tea Party.
A U.S. District Court in Ohio determined that Graves Garrett
presented enough evidence that the IRS discriminated against
hundreds of Tea Party groups by targeting them for heightened
scrutiny and unnecessary delays during the tax-exempt application
process. The group initiating the class-action suit, the Texas
Patriots Tea Party (TPTP), has been waiting four years now to get
the IRS to rule on its application. The IRS notified TPTP on Aug.
16 that it finally would process its application.
"We applaud the court for cutting through the IRS's shifting
excuses to see its conduct for what it really is," Graves Garrett
partner Edward Greim -- edgreim@gravesgarrett.com -- said in a
release. "This decision vindicates not only the rights of TPTP,
but also the hundreds of other Tea Party groups that experienced
similar treatment by the IRS since 2010."
According to the court, "the discriminatory animus that motivated
the initial decision to segregate and delay TPTP's application
(cannot) be neatly separated from the delay that now has continued
for three years." The IRS now must process TPTP's application in
the ordinary manner, subject to supervision and backed by the
contempt authority of the court.
The lawsuit is called NorCal Tea Party Patriots v. Internal
Revenue Service, and it was the first filed against the IRS
related to its handling of applications for tax exemptions by Tea
Party groups. The suit is funded by Citizens for Self-Governance,
a 501(c)(3) organization that promotes limited government. Graves
Garrett is supported in the suit by Langdon Law LLC of Cincinnati,
Finney Law Firm LLC of Cincinnati and Randles & Splittgerber Law
Office of Kansas City.
UNITED STATES: Welborn Suit v. IRS Dismissed for Lack of Standing
-----------------------------------------------------------------
District Judge Rosemary M. Collyer of the United States District
Court for the District of Columbia dismissed the complaint in the
case captioned, BECKY WELBORN, et al., Plaintiffs, v. INTERNAL
REVENUE SERVICE, et al., Defendants, Case No. 15-1352 (RMC)
(D.D.C.).
Becky Welborn, Wendy Windrich, and Beth DuPree, on behalf of a
proposed class, allege that the Internal Revenue Service, IRS
Commissioner John A. Koskinen, and IRS employees, identified as
Does 1-100, violated their rights under the Privacy Act, 5 U.S.C.
Section 552a; the Administrative Procedure Act, 5 U.S.C. Section
701 et seq.; and the Internal Revenue Code, 26 U.S.C. Section
6103, by disclosing or failing to prevent the disclosure of their
personal identification information to third parties.
The IRS discovered that 330,000 tax-related documents were stolen
during a cyber attack that extended from mid-February to mid-May
2015. Plaintiffs allege that the Commissioner reported to the
U.S. Senate Finance Committee on June 2, 2015 that "hackers made
200,000 attempts on the 'Get Transcript' page, approximately half
of which were successful." The information stolen included a wide
range of taxpayer information, including personal identification
information.
Plaintiffs filed an Amended Class Action Complaint on January 6,
2016 seeking damages and injunctive relief. Plaintiffs allege that
(1) Defendants violated the Privacy Act by intentionally and
willfully failing to comply with The Federal Information Security
Management Act of 2002 (FISMA) and the Modernization Act, thereby
allowing the disclosure of Plaintiffs' personal identifying
information; (2) Defendants' failures to comply with FISMA and the
Modernization Act were arbitrary and capricious, or otherwise
violated the Administrative Procedure Act (APA); and (3)
Defendants violated the Internal Revenue Code (Code) by
disclosing, or allowing the disclosure of, Plaintiffs' personal
identifying information to criminals. Plaintiffs intend their suit
to be a class action and define that class as "all Tax filers of
the United States and their spouses and/or dependents whose PII
was compromised as a result of the 'Get Transcript' application
data breach."
Defendants moved to dismiss the Amended Complaint for lack of
subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and, in the
alternative, for failure to state a claim upon which relief may be
granted, Fed. R. Civ. P. 12(b)(6).
In her Opinion dated November 2, 2016 available at
https://is.gd/4dFe7B from Leagle.com, Judge Collyer dismissed all
of Ms. DuPree's claims for lack of standing and Mses. Welborn and
Windrich's APA claims for lack of standing. Mses. Welborn and
Windrich's claims of improper disclosure under the Privacy Act
will be dismissed because they are preempted by the Code and their
Internal Revenue Act claims will be dismissed for failure to state
a claim.
Becky Welborn, et al. are represented by Michele M. Vercoski, Esq.
-- mmv@mccunewright.com -- and Richard D. McCune, Esq. --
rdm@mccunewright.com -- MCCUNE WRIGHT, LLP
They are also represented by:
Steven William Teppler, Esq.
ABBOTT LAW GROUP P.A.
2929 Plummer Cove Road
Jacksonville, FL 32223
-- and
John Yanchunis, Esq.
Marcio W. Valladares, Esq.
Patrick A. Barthle, II, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street
Tampa, FL 33602
mvalladares@forthepeople.com
Internal Revenue Service, et al. are represented by:
John Kenneth Theis, Esq.
Joseph Evan Borson, Esq.
U.S. DEPARTMENT OF JUSTICE
6133 S Ellis AVE
Chicago, IL 60637
Tel: (773)752-6950
WAL-MART STORES: Spokeo Ruling Doesn't Apply in Fraser-Haug Suit
----------------------------------------------------------------
District Judge Troy L. Nunley of the United States District Court
for the Eastern District of California denied Defendants' motion
to determine whether subject matter jurisdiction exists pursuant
to Federal Rule of Civil Procedure 12(h)(3) in the case captioned,
AMY FRASER and PAULA HAUG, on behalf of themselves and all others
similarly situated, Plaintiffs, v. WAL-MART STORES, INC., a
Delaware corporation; and DOES 1 through 50, inclusive,
Defendants, Case No. 2:13-CV-00520-TLN-DB (E.D. Cal.).
Plaintiffs Amy Fraser and Paula Haug assert claims under the Song-
Beverly Credit Card Act of 1971 Section 1747.08(a)(2), arising out
of Wal-Mart Stores, Inc.'s alleged requesting and recording of
customers' ZIP codes in its California retail stores. Plaintiffs
contend that Defendant has a company policy where, in each of its
California retail stores, credit card customers are asked or even
sometimes required to input their ZIP codes into the electronic
pin pad device adjacent to the cashier at the checkout stand.
Defendant acknowledged that it did request and record the ZIP
codes from those customers using an American Express credit card
for purchases exceeding $50. Furthermore, Defendant admits to
requesting and recording the ZIP codes from customers using
Discover credit cards for transactions exceeding $200.
On December 24, 2014, the Court granted Plaintiffs' Motion for
Class Certification. The Court found that all four prerequisites
of Rule 23(a) were met as well as at least one of the requirements
of subpart (b), and therefore certified the Class of "All persons
in California whom Defendant requested and recorded personal
identification information in conjunction with a credit card
purchase transaction at a California retail store during the
period of time beginning January 29, 2012 and continuing through
the date of trial."
Defendant filed a petition to appeal the certification order and
that petition was denied by the Ninth Circuit on March 25, 2015.
Plaintiffs moved the Court for an order approving Class Notice.
Defendant filed a motion to decertify the Class, alleging that the
record before the Court established that: the Class was not
ascertainable, that Defendant did not follow a uniform policy of
requesting and recording ZIP codes from all of its credit card
customers in California during the proposed class period, and that
individual issues predominate over any common issues. Plaintiffs
opposed the Defendant's Motion Requesting Decertification.
Plaintiffs, along with Defendant, filed a Joint Statement
requesting that the Court defer judgment while the parties
mediated. However, Plaintiffs and Defendant were unable to reach
an agreement and filed a Joint Status Report concluding mediation.
Defendant now requests that the Court consider the United States
Supreme Court holding in Spokeo, Inc. v. Robins, 136 S.Ct. 1540
(2016) to determine whether Plaintiffs continue to have Article
III standing to pursue their claims. In Spokeo, the Ninth Circuit
held that the plaintiff had adequately alleged an injury in fact
because he sufficiently alleged that "Spokeo violated his
statutory rights" and that his "personal interests in the handling
of his credit information were individualized rather than
collective."
Defendant argues that if the Court finds that Spokeo applies and
that Plaintiffs lack Article III standing, Rule 12(h)(3) requires
the Court to dismiss the action.
Plaintiffs argue that Spokeo does not apply to the facts of this
case because the Supreme Court did not render any substantive
decision that contains any new legal requirements.
In his Order dated October 18, 2016 available at
https://is.gd/y2Ttfs from Leagle.com, Judge Nunley found that
Defendant has not provided the Court with sufficient reason to
find that Plaintiffs lack standing and that the holding in Spokeo
does not apply and the Court continues to have subject matter
jurisdiction in the case.
Amy Fraser, et al. are represented by James M. Lindsay, Esq. --
jlindsay@lindsaylawcorporation.com -- LINDSAY LAW CORPORATION
Wal-Mart Stores, Inc. is represented by Raymond Yoon Ho Kim, Esq.
-- rkim@reedsmith.com -- and Scott H. Jacobs, Esq. --
sjacobs@reedesmith.com -- REED SMITH LLP
WAL-MART STORES: "Monahan" Sues Over Bed Linen Product False Ad
---------------------------------------------------------------
DOROTHY MONAHAN, on behalf of herself, and all others similarly
situated, Plaintiff, v. WAL-MART STORES, INC., Defendant, Case No.
1:16-cv-08662 (S.D.N.Y., November 8, 2016), alleges that Defendant
marketed and sold bed linens falsely labeled as "100% Egyptian
Cotton."
Wal-Mart Stores, Inc. is the largest chain of discount retail
stores in the country.
The Plaintiff is represented by:
Jason A. Zweig, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
555 Fifth Avenue, Suite 1700
New York, NY 10017
Phone: (212) 752-5455
Fax: (212) 210-3980
E-mail: jasonz@hbsslaw.com
- and -
Robert B. Carey, Esq.
Leonard W. Aragon, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson Street, Suite 1000
Phoenix, AZ 85003
Phone: (602) 840-5900
Fax: (602) 840-3012
E-mail: rob@hbsslaw.com
leonard@hbsslaw.com
- and -
Stuart M. Paynter, Esq.
Jennifer L. Murray, Esq.
THE PAYNTER LAW FIRM PLLC
1200 G. Street NW, Suite 800
Washington, DC 20005
Phone: (202) 626-4486
Fax: (866) 734-0622
E-mail: stuart@paynterlawfirm.com
jmurray@paynterlawfirm.com
WEST VIRGINIA AMERICAN: "Good" Counsel May Contact Opt-Outs
-----------------------------------------------------------
District Judge John T. Copenhaver, Jr. of the United States
District Court for Southern District of West Virginia denied a
motion to enjoin class counsel from contacting opt outs in the
case captioned, CRYSTAL GOOD, individually and as parent and next
friend of minor children M.T.S., N.T.K. and A.M.S. and MELISSA
JOHNSON, individually and as parent of her unborn child, MARY LACY
and JOAN GREEN and JAMILA AISHA OLIVER, WENDY RENEE RUIZ and
KIMBERLY OGIER and ROY J. McNEAL and GEORGIA HAMRA and MADDIE
FIELDS and BRENDA BAISDEN, d/b/a FRIENDLY FACES DAYCARE, and
ALADDIN RESTAURANT, INC., and R. G. GUNNOE FARMS LLC, and DUNBAR
PLAZA, INC., d/b/a DUNBAR PLAZA HOTEL, on behalf of themselves and
all others similarly situated, Plaintiffs, v. WEST VIRGINIA-
AMERICAN WATER COMPANY, d/b/a WEST VIRGINIA AMERICAN WATER, and
EASTMAN CHEMICAL COMPANY, and GARY SOUTHERN and DENNIS P. FARRELL,
Defendants, Case No. 2:14-01374 (S.D.W. Va.).
On or about March 25, 2016, class counsel mailed a letter to 6,039
businesses requesting information about the damages incurred by
those businesses due to the water contamination at issue in this
action. The letter informed recipients that they were members of
the class certified by this court, that class counsel represented
their interests, and instructed them to return a form to class
counsel with the requested information on damages. Class counsel
also engaged a contractor, Phillip G. Vanater (Vanater), to assist
in gathering information on damages from class member businesses.
The movants assert in the motion that class counsel's attempts to
collect damages information were improper, and in particular that
in the course of making these communications, class counsel
contacted opt outs, many of whom are represented by other counsel.
Movants seek an injunction restraining class counsel from
contacting, without the court's approval, three groups of
individuals or businesses:
a. Opt outs and/or persons not a part of this class action;
b. Those persons or businesses which are represented by other
attorneys; and
c. Those person[s] who have not been properly noticed.
Most of the movants are individuals or businesses that,
notwithstanding their status as opt outs, received the letter from
class counsel. The motion identifies six such recipients:
-- L & G Foods, Inc.;
-- 200 Capitol Street, LLC;
-- Sahenna Hospitality, LLC;
-- Mound Cleaners, Inc.;
-- Drs. Allen, Krajekian & Brock, Inc. d/b/a
Mountain State Oral & Maxillofacial Surgeons; and
-- Robert V. Berthold, Jr.
In addition, movant Chuck Hudson claims that even though he opted
out and is represented by other counsel, he was visited by Vanater
and urged to provide information to class counsel. Finally,
several of the movants challenge the communications made by class
counsel based on their pending objections to the adequacy of the
notice issued in the action.
In their response, plaintiffs assert that those movants were
included in the mailing at issue inadvertently, due primarily to
errors in matching the list of opt outs with the list of class
member addresses used by class counsel, which was produced by the
water company defendants.
In the motion, movants want to enjoin class counsel from
contacting certain parties who have opted out of the class action
contending that more extensive relief is justified, primarily due
to their pending challenge to the class notice. Movants argue that
while their challenge to the notice is pending, class counsel is
not entitled to send letters to unnamed class members stating that
class counsel represents the class.
In his Memorandum Opinion and Order dated October 26, 2016
available at https://is.gd/fpAp56 from Leagle.com, Judge
Copenhaver, Jr. concluded that the relief sought by movants in the
form of an injunction or court-ordered corrective communication is
unwarranted because the minimally few inappropriate contacts that
were made appear to have resulted from inadvertence.
Crystal Good, et al. are represented by Alexander D. McLaughlin,
Esq. -- amclaughlin@calwelllaw.com -- W. Stuart Calwell, Esq. --
scalwell@calwelllaw.com -- and -- D. Christopher Hedges, Esq. --
chedges@calwelllaw.com -- THE CALWELL PRACTICE; David R. Barney,
Jr., Esq. -- drbarneywv@gmail.com -- and -- Kevin W. Thompson,
Esq. -- kwthompsonwv@gmail.com -- THOMPSON BARNEY -- Mark F.
Underwood, Esq. -- markunderwood@underwoodlawoffice.com --
UNDERWOOD & PROCTOR LAW OFFICES -- Michael J. Del Giudice, Esq. --
mikedel@cdlwv.com -- and Timothy J. LaFon, Esq. --
timlafon@cdlwv.com -- CICCARELLO DELGIUDICE -- Michael G. Stag,
Esq. -- mstag@smithstag.com -- Stephen H. Wussow, Esq. --
swussow@smithstag.com -- Sean Cassidy, Esq. --
scassidy@smithstag.com -- and Stuart H. Smith, Esq. --
ssmith@smithstag.com -- SMITH STAG -- P. Rodney Jackson, Esq. --
prodjackson27@yahoo.com -- LAW OFFICE OF P. RODNEY JACKSON -- Van
Bunch, Esq. -- vbunch@bffb.com -- BONNETT FAIRBOURN FRIEDMAN &
BALINT
Eastman Chemical Company is represented by Marc E. Williams, Esq.
-- marc.williams@nelsonmullins.com -- Melissa Foster Bird, Esq. --
melissa.fosterbird@nelsonmullins.com -- and Robert L. Massie, Esq.
-- bob.massie@nelsonmullins.com -- NELSON MULLINS RILEY &
SCARBOROUGH -- Marquel S. Jordan, Esq. -- MJordan@BlankRome.com --
Robert Scott, Esq. -- RScott@BlankRome.com -- and Lance D.
Leisure, Esq. -- Lleisure@BlankRome.com -- BLANK ROME
West Virginia-American Water Company is represented by Albert F.
Sebok, Esq. -- asebok@jacksonkelly.com -- Alton Kent Mayo, Esq. --
amayo@jacksonkelly.com -- Brian R. Swiger, Esq. --
bswiger@jacksonkelly.com -- L. Jill McIntyre, Esq. --
lmcintyre@jacksonkelly.com -- Laurie K. Miller, Esq. --
lmiller@jacsonkelly.com -- Robert O. Passmore, Esq. --
rpassmore@jacksonkelly.com -- and Thomas J. Hurney, Jr., Esq. -
thurney@jacsonkelly.com -- JACKSON KELLY -- Steven L. Leifer, Esq.
-- sleifer@bakerbotts.com -- BAKER BOTTS
Gary Southern is represented by Erin J. Webb, Esq. --
ewebb@kaycasto.com -- Luci R. Wellborn, Esq. --
lwellborn@kaycasto.com -- Pamela C. Deem, Esq. --
pdeem@kaycasto.com -- and Robert B. Allen, Esq. --
rallen@kaycasto.com -- KAY CASTO & CHANEY
Dennis P. Farrell is represented by:
David R. Pogue, Esq.
Michael W. Carey, Esq.
S. Benjamin Bryant, Esq.
CAREY SCOTT DOUGLAS & KESSLER
901 Chase Tower
707 Virginia Street, East (25301)
P.O. Box 913
Charleston, West Va 25323
Tel:(304)345-1234
John Michael Bryant, et al. are represented by:
D. C. Offutt, Jr., Esq.
Michael R. Dockery, Esq.
Steven K. Nord, Esq.
OFFUTT NORD
949 3rd Ave., #300,
Huntington, WV 25701
Tel:(304)529-2868
- and -
James R. Moncus, III, Esq.
HARE WYNN NEWELL & NEWTON
2025 Third Ave N. Suite 800
Birmingham, AL 35203
Tel: (205)328-5330
XEROX HR: Faces "Chendes" ERISA Class Suit in Michigan
-------------------------------------------------------
Patrick Chendes, Jillian Smith and Dion Tumminello, Plaintiffs, v.
Xerox HR Solutions, LLC, Defendants, Case No. 2:16-cv-13980 (E.D.
Mich., November 9, 2016), bring this action on behalf of three
Ford Motor Company retirement plans and all other similarly
situated qualified retirement plans under Sections 502(a)(2) and
502(a)(3) of the Employee Retirement Income Security Act of 1974.
Xerox HR Solutions, LLC is a Pennsylvania limited liability
company with its headquarters in New York, New York. It provides
platform and recordkeeping services to the Master Trust for the
administration of the Ford Plans. The Ford Plans are individual
account plans, tax-qualified retirement plans maintained by
employers for the benefit of their employees.
Plaintiffs allege that the amount of compensation Xerox HR
received was plainly unreasonable in relation to the services
being provided because of the fee-sharing arrangement with Xerox
HR, whether or not an asset-based fee for a fixed service is ever
reasonable.
The Plaintiff is represented by:
Sharon S. Almonrode, Esq.
THE MILLER LAW FIRM, P.C.
950 West University Drive
Rochester, MI 48307
Tel: (248) 841-2200
Fax: (248) 652-2852
Email: ssa@millerlawpc.com
- and -
Todd S. Collins, Esq.
Shanon J. Carson, Esq.
Robin Switzenbaum, Esq.
Ellen T. Noteware, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Tel: (215) 875-3000
Fax: (215) 875-4604
Email: tcollins@bm.net
scarson@bm.net
rswitzenbaum@bm.net
enoteware@bm.net
- and -
Garrett W. Wotkyns, Esq.
John J. Nestico, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
2000 Powell St. Suite 1400
Emeryville, CA 94608
Tel: (480) 315-3841
Fax: (866) 505-8036
Email: gwotkyns@schneiderwallace.com
jnestico@schneiderwallace.com
- and -
Todd M. Schneider, Esq.
Kyle G. Bates, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
180 Montgomery St., Suite 2000
San Francisco, CA 94104
Tel: (415) 421-7100
Fax: (415) 421-7105
Email: tschneider@schneiderwallace.com
* "Consumer Action" Group Puts Together Class-Action Database
-------------------------------------------------------------
John Matarese, writing for WCPO, reports that Colin Rowland is a
graphic artist, working on his latest project at the Ft. Thomas
Coffee Shop in Northern Kentucky.
He always likes a little extra cash to help him put together his
next gallery show. So whenever he's notified about a class-action
settlement that he's eligible for, he jumps on it.
He recalled one from a couple of years ago.
"It was a postcard. It just said we could collect something for
an insurance policy, where we were overpaying," Mr. Rowland said.
The few minutes he took resulted in almost $100 in insurance money
refunded to him.
"We went to the website, we filled out the application and we
received a check a few months later," he said.
Many people discard notices
Unfortunately, most of us have received postcards in the mail
saying you qualify for cash back on some purchase, but we often
throw it away. We think it's junk mail, or something requiring
too much personal information.
"I probably did that," Jocelyn Washington said. "I toss a lot of
mail."
But Ms. Washington said she's going to pay more attention now,
after WCPO told her about all the class-action cases just waiting
to hand out money.
And it's easier than ever now to find cases you may qualify for.
How to find free money
That's because the non-profit group "Consumer Action" recently put
together a Class-Action Database, listing hundreds of settlements
that could net you anything from $3 in coupons all the way up to
$5,000 cash.
"They get a bad rap, but in the end this is a mechanism that helps
consumers and in the end benefits consumers," Linda Sherry of
Consumer Action said.
Ms. Sherry said many people complain about the high fees attorneys
often collect in these cases. And they sometimes do.
But she says class-action suits are worthwhile, because they hold
companies' feet to the fire when they don't deliver what they
promise.
Current hot settlements
Among the current hot cases on her group's website that you can
still join:
Wells Fargo unsolicited home mortgage calls: If you received one
of their automated calls, you could collect as much as $50, as
part of a $16 million settlement for violating robocalling rules.
McAfee Anti Virus software: If yours was auto renewed at a higher
price than you paid the year before, you can collect a quick $11.
Johnson and Johnson baby bath wash: For saying it was "clinically
proven" when it was not, the company will pay parents $15 with no
receipt, or $30 if you have receipts.
My Pillow: This TV infomercial product claimed it could help with
restless leg syndrome and insomnia, without scientific proof.
Owners can claim $10.
Seventh Generation laundry products: For claiming their products
were "all natural," the company will refund up to half of what you
paid for their soaps and detergents.
2011 to 2014 Hyundai Sonatas: You may qualify for a free warranty
extension, for car stalling problems.
Diesel Volkswagens: If you own one, you can collect up to $5,000
for VW's deception over gas mileage.
"Everyone that's been following the Volkswagen case knows that
this was a really outstanding case of fraud," Sherry said.
Unfortunately, some cases end up delayed for months -- if not
years -- when the settlement is contested, or the payout process
takes much longer than expected.
Case in point: Last year's much delayed canned tuna settlement
(which is still delayed), or the Duke Energy Ohio settlement, that
one should be distributed by year's end.
But don't give up: New settlements pop up every week on the
consumer action database. "Come back to it frequently, because we
are always adding cases," Sherry said.
More added every week
Newcomers like Jocelyn Washington said they're going to check it
out, because nothing beats easy money.
"I hope I have some," Washington said.
If you would like to see if you qualify for any of these cases, or
others, and check the status of settlements that have already
closed, go to the Consumer Action Class Action Database.
You can also check another website called TopClassActions.com, set
up by an attorneys association, which often lists additional
settlements.
One caution: When applying for these settlements, be careful
giving out your Social Security Number. Those should be required
only if the case involves a bank or a credit bureau, and even then
you should be leery of sharing it.
That way, you don't waste your money.
* Less Than 10% of Eligible Consumers "Claim" Settlement Share
--------------------------------------------------------------
CBS12 reports that from Wells Fargo's "phony accounts" to the
Samsung exploding phones, companies accused of hurting their
customers often pay millions to make up for it.
It's easy to see why Carol Mason doesn't like her outdoor deck.
She soon could be seeing "green." Under the terms of a class
action, she may be entitled to $400.
"I think consumers would be very surprised at just how many class
action lawsuits they were a part of," Ms. Mason said.
Consumer Advocate Joe Rideout says hundreds of suits are filed
each year to essentially punish companies for misleading
customers. If you purchased a product, odds are you've been
entitled to class action cash.
But it's estimated less than 10 percent of eligible consumers
"claim" their share of these settlements. Consumer action has
created database to help consumers collect.
Ever by Johnson and Johnson baby products or "Seventh Generation"
cleaning products? You may be eligible for $10 to $30 due to
alleged misleading claims.
Mr. Rideout says often proof of purchase isn't necessary.
"Even for some of these very large amounts," he says. "It's not
necessarily a high burden of proof."
Current pay outs range from 50 cents for anyone who bought a
Starbucks breakfast sandwich last summer, to thousands of dollars
for those compromised by the 2014 Home Depot data breach.
You're never going to get rich from one of these class action
lawsuits, but the attorneys sure are. They take home the biggest
cut. Before you get too upset, these lawsuit are designed to keep
companies honest.
* Super Funds Mull Class Actions Over Deceptive Behavior
--------------------------------------------------------
Georgia Wilkins, writing for The Sydney Morning Herald, reports
that super funds are increasingly eyeing class actions as a way to
hold companies to account for misleading and deceptive behaviour,
a leading proxy advisor says.
Bjorn De Smedt, an associate director of global proxy company ISS,
says large institutional investors, including Australia's big
super funds, are no longer taking a passive approach to
litigation, as members demand greater corporate responsibility
from their funds.
It comes as the country's biggest bank, Commonwealth Bank, faces
an unprecedented shareholder vote against the pay packets of top
executives at its annual meeting on Nov. 2.
Mr. De Smedt said the shift towards activism was being driven by
members asking more questions of their funds and their
investments.
"There's more scrutiny of what super funds are doing, which
companies they are investing in," he said. "They get more
questions from members."
He said there was more pressure on funds to weigh up class actions
in response to corporate misconduct.
"If you are investing in companies that get caught out on
misbehaviour, obviously super funds have a duty to make an
assessment and look into the matter and see what we have to do,"
he said.
There are predictions CBA will become the first of the big four
lenders to receive a first "strike".
Investors are protesting against multimillion-dollar bonuses being
paid, despite a series of scandals.
Mr. De Smedt said, while the class action scene was dominated by
the issue of misleading or deceptive conduct, particularly in
regard to continuous disclosure breaches, there was a growing
discussion around remuneration and environmental responsibility.
"Members are getting more and more active, from an environmental,
social and corporate governance perspective and also on governance
issues," he said.
"Investors are [also] scrutinising remuneration more closely."
Mike Guilday, a general manager at Cbus Super Fund, said new
litigation funding models were making class actions a more
affordable option for super funds.
"At the end of the day when things go wrong, we know ASIC as the
regulator does a very good job, especially in criminal cases," he
said.
"But, when it comes to recovering losses for shareholders like
ourselves, that's when their resources are drained."
Mr. Guilday said the new funding models, such as intermediary
funders that used tenders to get a better price, were giving
investors more legal options.
"It's starting to be more competitive," he said.
ISS has added ten securities class actions to its books so far
this year.
According to research provided to BusinessDay, there has been a
resurgence in class actions since 2007 and shareholder and
investor suits are leading the charge.
Cases include those against Murray Goulburn for allegedly
misleading investors ahead of its float last year and against car
makers Volkswagen, Skoda and Audi over the diesel emissions
scandal.
* Top Class Actions Provides Updates on New Lawsuits, Settlements
-----------------------------------------------------------------
Laura Northrup, writing for Consumerist, reports that the class
action system is slow, profitable for lawyers, and flawed, but for
now it's the best tool that ordinary consumers have for holding
companies that have wronged a lot of people responsible with a
relatively small financial impact. Not all suits are well
publicized, though, and you might not know that you're eligible.
Did you buy a computer between 2003 and 2008? How about "natural"
cleaning products or lavender-scented baby products?
If you like to follow the freshest class actions, follow the site
Top Class Actions: they share new lawsuits and settlements on
Facebook and Twitter as well as the website itself.
A few things you should remember about class actions: "soon" is a
relative term. The process can be very slow, and can take years
to reach a final settlement. Also, check suits that you might be
eligible for even if you no longer have a proof of purchase. Most
simply ask that you swear on penalty of perjury that you did, in
fact, buy the item.
MyPillow: The company settled claims that it made unsubstantiated
health claims in its advertising, including improving users' REM
sleep and treating sleep apnea and insomnia. That's just one of
the company's recent legal fights. Consumers can receive $5 if
they bought up to three pillows, and an additional $5 if they
bought three or more and still have their proof of purchase to
turn in. Deadline: Dec. 26, 2016
Seventh Generation false advertising: This class action settled
allegations that Seventh Generation falsely marketed its products
as "non-toxic" and "hypoallergenic" when they contain substances
that can be toxic to human skin. Class members must have
purchased products between Nov. 14, 2010 to Oct. 12, 2016, and can
receive up to half the retail price of the product they purchased
for up to 10 products. Proof of purchase is not required, but
class members who do turn in receipts may receive higher payments.
Deadline: Dec. 27, 2016
Wells Fargo robocalls: If you received a robocall about your
overdrafts from Wells Fargo between Apr. 21, 2011 and Dec. 19,
2015, you could receive up to $70. Deadline: Jan. 17, 2016
Follett Higher Education text messages: This class action settled
allegations that an estimated 1.8 Follett bookstore customers
received unwanted text messages from the company, a violation of
the Telephone Consumer Protection Act. To be part of the class,
you must have received an unwanted text from the company between
Oct. 9, 2011 and Dec. 24, 2015. Deadline: Jan. 20, 2017
Sprint early termination fees: This one takes us way back, since
it's over a mobile carrier's actions from 1999 to 2007. Sprint is
settling allegations that it imposed early termination fees on
customers, and the fees were higher than the amount needed to
offset the actual harm done to Sprint by the customer leaving.
You're eligible if you paid a Sprint ETF while living in
California between July 23, 1999 and Mar. 18, 2007. Claim
deadline: Apr. 25, 2017
Johnson & Johnson Bedtime Bath Products: This suit settles
accusations of false advertising, since ads and packaging
proclaimed that the products were "clinically proven" to improve
babies' sleep. Parents and caregivers can claim up to $3 per
product for a total of $15, or $30 if they still have the original
receipts. Deadline: Apr. 28, 2017.
Optical disk drives: This class action settled allegations that
manufacturers engaged in price-fixing of the optical disk drives
that they sold to the companies that actually make computers. If
you purchased a computer between Apr. 1, 2003 and Dec. 31, 2008
that included an optical disk drive, or a drive meant to be
plugged in or installed in a computer, and you live in one of the
states listed below, you're eligible.
Arizona, California, District of Columbia, Florida, Hawaii,
Kansas, Maine, Massachusetts, Michigan, Minnesota, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York,
North Carolina, Oregon, Tennessee, Utah, Vermont, West Virginia,
and Wisconsin.
The companies in this case accused of antitrust behavior were
Sony, Hitachi-LG Data Storage, Panasonic, and NEC. The settlement
will be up to $10 per drive, and you do not need to provide proof
of purchase. Deadline: July 1, 2017
* U.S. Circuit Courts of Appeal Split on NLRB Waiver Issue
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Christopher D. Durham, Esq. -- cddurham@duanemorris.com -- of
Duane Morris Philadelphia, in an article for The Legal
Intelligencer, reports that class action waivers are an important
tool for employers with employee arbitration agreements to limit
their exposure to proceedings initiated by employees or former
employees on a classwide basis. Class action arbitration waivers
have taken on even greater significance in recent years with the
proliferation of collective actions under the Fair Labor Standards
Act (FLSA), as such actions can be burdensome and costly to
defend, even in an arbitral forum.
In the first days of 2012, the National Labor Relations Board
(NLRB) shocked the employer community when, in D.R. Horton, Inc.,
357 NLRB No. 184 (2012), it held that class action waivers by
employees in arbitration agreements with their employers violated
the National Labor Relations Act (NLRA). Nearly five years after
D.R. Horton, employers face considerable uncertainty as to the
legality of class action waivers in employee arbitration
agreements. However, with a recently emerged circuit court split
between appellate courts siding with and against the NLRB's
invalidation of employee class action arbitration waivers, it is
more likely than at any point since D.R. Horton that employers
finally will get legal clarity on this key issue.
The NLRB's Invalidation of Employee Class Action Arbitration
Waivers
In D.R. Horton, the NLRB held that the arbitration agreement D.R.
Horton required its employees to sign interfered with the exercise
of employees' rights under Section 7 of the NLRA, which among
other things, grants to employees the right "to engage in . . .
concerted activities for the purpose of collective bargaining or
other mutual aid or protection," 29 U.S.C. Section 157. The board
reasoned that the NLRA protects the right of employees to "join
together to pursue workplace grievance, including through
litigation" and arbitration, and that "an individual who files a
class or collective action regarding wages, hours or working
conditions, whether in court or before an arbitrator, seeks to
initiate or induce group action and is engaged in conduct
protected by Section 7," which conduct the board described as
"central to the NLRA's purposes." Accordingly, the NLRB held that
class action waivers in arbitration agreements constitute an
unfair labor practice under Section 8(a)(1) of the NLRA [29 U.S.C.
Section 158(a)(1)], which forbids employers to "interfere with,
restrain or coerce employees in the exercise of the rights
guaranteed" by Section 7 of the NLRA.
Since D.R. Horton, undeterred by circuit court holdings to the
contrary, the board has doubled down on its invalidation of
employee class action arbitration waivers, as in Murphy Oil USA,
Inc., 361 NLRB No. 72 (2014).
An Emerging Split Among U.S. Circuit Courts of Appeal
The results of litigation on this issue at the U.S. Court of
Appeals level is less clear-cut. The U.S. Court of Appeals for
the Fifth Circuit twice has rejected the NLRB's position that
class action waivers in employee arbitration agreements violate
Section 7 of the NLRA. In a late 2013 decision, the Fifth Circuit
refused to enforce the board's holding in D.R. Horton that
employee class action arbitration waivers violate the NLRA. D.R.
Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). Central to
the Fifth Circuit's decision was its conclusion that the board's
invalidation of class action arbitration waivers conflicted with
the Federal Arbitration Act (FAA). Significantly, the court
determined that "requiring the availability of class actions
'interferes with fundamental attributes of arbitration and thus
creates a scheme inconsistent with the FAA,'" (quoting AT&T
Mobility v. Concepcion, 131 S. Ct. 1740, 1748 (2011). The Fifth
Circuit concluded that because the board's interpretation of the
NLRA did not fall within the FAA's "saving clause" -- which
requires enforcement of an arbitration provision "save upon such
grounds as exist at law or in equity for the revocation of any
contract (9 U.S.C. Section 2) -- and "because the NLRA does not
contain a congressional command exempting the statute from
application of the FAA," the class action arbitration waiver at
issue did not run afoul of the NLRA. 737 F.3d at 362. In so
holding, the Fifth Circuit found, in stark contrast with the NLRB,
that the "use of class action procedures . . . is not a
substantive right."
More recently, the Fifth Circuit reaffirmed its holding that
employee class action arbitration waivers are not unlawful under
the NLRA and refused to enforce the Board's decision to the
contrary in Murphy Oil USA v. NLRB, 808 F.3d 1013 (5th Cir. 2015),
for the same reasons it had refused to enforce the Board's
decision in D.R. Horton.
Two other circuit courts of appeal have sided with the Fifth
Circuit in rejecting the NLRB's holding in D.R. Horton and
refusing to invalidate employee class action arbitration waivers.
In Sutherland v. Ernst & Young, 726 F.3d 290 (2d Cir. 2013), the
Second Circuit Court upheld an arbitration agreement compelling
employees to arbitrate FLSA claims on an individual basis. In its
decision, the appellate court expressly declined to follow the
board's decision in D.R. Horton. The Eighth Circuit Court also has
rejected the NLRB's holding in D.R. Horton, upholding a class
action arbitration waiver of FLSA claims in Owen v. Bristol Care,
702 F.3d 1050 (8th Cir. 2013). Just a few short months ago in
June, the Eighth Circuit reaffirmed its Bristol Care holding when
it rebuffed the NLRB's direct challenge to a class action waiver
in Cellular Sales of Missouri v. NLRB, 824 F.3d 772 (8th Cir.
2016).
Very recently, however, two other circuit courts -- the Seventh
Circuit and the Ninth Circuit -- have sided with the NLRB and held
that employee class action arbitration waivers are unlawful
because they violate the NLRA. In late May, siding with the
board's decision in D.R. Horton, the Seventh Circuit held that an
employee arbitration agreement barring class or collective
arbitration violated Section 7 of the NLRA in Lewis v. Epic
Systems, 823 F.3d 1147 (7th Cir. 2016). In its decision, the
Seventh Circuit leveled pointed criticism at the Fifth Circuit's
opinion in D.R. Horton, Inc. v. NLRB, stating that the Fifth
Circuit made "no effort to harmonize the FAA and NLRA" and holding
that "there is no conflict between the NLRA and the FAA, let alone
an irreconcilable one."
Similarly, in late August, in Morris v. Ernst & Young, (9th Cir.
Aug. 22), the Ninth Circuit agreed with the NLRB and the Seventh
Circuit that an employee class action arbitration waiver violated
Section 7 of the NLRA and therefore was unlawful. Notably, the
court did not extend its holding beyond only mandatory class
action arbitration waivers (i.e., waivers required to be signed as
a condition of employment or continued employment), meaning that
arbitration agreements with class action waivers that provide
employees with the opportunity to opt out may currently be
enforceable in the Ninth Circuit.
Where Do We Go from Here?
Ever since the NLRB's game-changing decision in D.R. Horton to
ring in the new year in 2012, employers have been faced with the
decision between ceding to employees the right to arbitrate claims
in a class or collective action and potentially violating the
NLRA. This decision has been particularly challenging for those
employers who have geographically diverse businesses with
employees located in multiple jurisdictions, and employers who
find themselves in jurisdictions where federal courts have not yet
weighed in on the issue.
However, this confusion seems likely to end in the near future. In
early September, both Epic Systems and Ernst & Young filed
petitions for certiorari with the U.S. Supreme Court, asking the
Supreme Court to review the recent decisions by the Seventh and
Ninth circuits invalidating employee class action arbitration
waivers. The NLRB followed suit only days later, asking the
Supreme Court to review the Fifth Circuit's decision in Murphy
Oil.
Given the circuit split and the fact that parties on both sides of
the issue are asking the Supreme Court to weigh in, it is likely
that the court will take up the issue in the near future. How the
Supreme Court will rule is much less certain. The late Justice
Antonin Scalia arguably was the strongest pro-arbitration voice on
the Supreme Court and authored the court's two most recent
pronouncements upholding class action waivers in arbitration
agreements: AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011),
and American Express Co. v. Italian Colors Restaurant, 133 S. Ct.
2304 (2013).
That the NLRB -- which has passed up previous opportunities to
have the Supreme Court review the issue -- has elected to seek
Supreme Court review now appears to suggest that the board sees an
opening to obtain high court approval of its D.R. Horton decision,
which would likely be detrimental to employers and immediately
invalidate class action waivers in employee-arbitration agreements
across the country. Conversely, with the current 4-4 split on the
Supreme Court, it is possible that the court may not reach a
majority decision, leaving in place the current patchwork of
appellate court decisions that, while vexing to some employers,
may be viewed as a triumph for employers in the Second, Fifth and
Eighth circuits. It is also possible that the court rejects the
reasoning of the NLRB and the Seventh and Ninth circuits, in line
with a series of decisions in which the court has expressed a
strong preference for arbitration under the FAA.
This issue merits prudent monitoring by employers going forward.
Particularly if the Supreme Court sides with the NLRB and
invalidates countless existing class action arbitration waivers
nationwide, affected employers will want to implement a game plan
to deal with the potential implications of such a decision and
take other steps to protect themselves against the threat of a
class or collective arbitration.
Christopher D. Durham, a partner in the Duane Morris Philadelphia
office, practices in the area of employment law, counseling and
representing clients on a variety of employment issues and
matters.
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