/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170111.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 11, 2017, Vol. 19, No. 8 Headlines ALBERTSON'S LLC: Court Partly Granted Class Certification Bid ALLERGAN PLC: Abraham Fruchter Files Securities Class Action ATLANTIC LOTTERY: N.L. Court Certifies Video Lottery Class Action AMERICAN CHEMICALS: Settlement Class Preliminarily Certified AMERICAN EXPRESS: "Grosz" Suit Seeks Certification of 2 Classes AVIS BUDGET: Mendez Seeks to Certify Class; Fla., N.J. Subclasses BASHAM LUMBER: Milkes Insurance's Claims Dismissed BELLMAWR, NJ: Settles Class Action Over Rental Unit C/O BERTUCCI'S GROUP: Feb. 9 Final Settlement Approval Hearing Set BRIDGEVIEW BANK: Loan Officers Class Certified in "Pieksma" Suit CANADA: Mothers Wants EI Sickness Benefits Litigation Resolved CAPITAL ACCOUNTS: Faces "Tiernan" Suit in M.D. of Tennessee CATALINA HOTEL: "Pierre" Suit Moved from Cir. Ct. to S.D. Fla. CENTRAL CONSTRUCTION: Faces "Arufe" Suit in S.D. of New York CHARLES J. THOMAS JR: Junk Fax Suit Wins Class Certification CHARLOTTE SCHOOL: Legal Battle Over Student Loans Ongoing CHASE BANK: Class Cert. Bid Filed in Suit Over Amazon Credit Card CLICKSPARK LLC: Faces TCPA Class Action in California COLLIER COUNTY, FL: Immigrant Teens Barred from Public Schools COMMUNITY PHYSICAL: Girolamo Class Cert. Bid Tossed, Deal Reached CONAGRA FOODS: 9th Cir. Widens Split on Ascertainability Issue CONAGRA FOODS: Court Refuses to Certify Class in "Backus" Suit CONCENTRIX CORP: Armstrong's Bid to Certify Class Partly Granted CREDIT CONTROL: March 29 Fairness Hearing Set in "Wood" Suit CREDIT PROCESS: Innovative Suit Seeks Certification of Class CVB FINANCIAL: March 13 Settlement Fairness Hearing Set DIMORA RISTORANTE: Court Denies Class Certification in "Shala" DJNG INC: "Castaneda" Suit Moved from Super. Ct. to S.D. Cal. DRILL GREEN: Faces "Williams" Suit Over Failure to Pay Overtime DURHAM PSBE: Joint Bid to Certify Classes Filed in "Cerrato" Suit EHT PHARMACY: Court Terminates Centerville Clinics Class Suit ELECTCHESTER MANAGEMENT: "Belvin" Suit Seeks Class Certification ELIZABETH GRADY: Fails to Pay Employees Overtime, Suit Claims EMERGENCY SERVICES: Brantingham Seeks Certification of FLSA Class ERIC GARCETTI: Class Cert. in "Yagman" Denied as Premature ET & K FOODS: Faces "Santos" Suit Over Failure to Pay Overtime FACEBOOK INC: Faces Class Action Over Biometric Data FALONI & ASSOCIATES: "Maldonado" Case Settlement Approval Sought FORD MOTOR: Court Refuses to Certify 3 Classes in "Philips" Suit FREEDOM MORTGAGE: "Atis" Suit Trimmed, FLSA Class Certified GENWORTH FINANCIAL: Leifer, et al. Sue to Keep Insurance Reserves GOOGLE INC: CEI Objects to $5.5MM Class Action Settlement GORDO TAQUERIA: Faces Class Action Over Unpaid Overtime Wages GREENSKY LLC: Class Certification Sought in "Alfortish" Suit HARALAMBOS BEVERAGE: Sued Over Failure to Provide Meal Break HEALTH RESOURCE: "Brown" Suit Seeks Certification of FLSA Class HERSHEY'S: Seeks Dismissal of Kisses Packaging Class Action HOANG AN: Faces Class Action Over Unpaid Overtime Wages HYLAND'S INC: Faces Class Action Over Teething Tablets in N.Y. HYUNDAI MOTOR: Panoramic Sunroof Class Action Can Proceed HYUNDAI MOTOR: Judge to Approve Sonata Class Action Settlement ILLINOIS: Class Action Over Autism Medicaid Coverage Pending INNOVATION VENTURES: Cert. of Classes Sought in 5-Hour Energy MDL INT'L BANK: Can File Motion to Compel Arbitration, Court Rules INTUITIVE SURGICAL: Court Certifies Class in Securities Case IOWA: Student Funding Formula Class Action Pending J.M. HOLM: "Arredendo" Suit Seeks Certification of Painters Class JAY PEAK: Daccache Seeks Certification of Investors Class JENNINGS LINDSAY: July 7 Hearing on Franco Class Cert. Bid Set JET'S AMERICA: Placeholder Motion for Class Certification Filed JOHN D. BRADSHAW: May 31 Final Settlement Approval Hearing Set JP SPORTS: Settlement in "Davis" Suit Wins Court Approval LA TAN: Class Action Over Customer Fingerprints Settled LANNETT CO: Rochester Drug Alleges Levothyroxine Price-Fixing LEASE FINANCE: Le May Refile Bid to Certify Class, Court Rules LIFE INSURANCE: Seamen File Class Action Over Disability Benefits LINCOLN NATIONAL: Faces "Mukamal" Suit in S.D. of Florida LUNADA BAY BOYS: Certification of Surfers Class Sought MAGNACHIP SEMICONDUCTOR: Court Certifies Class in "Hayes" Suit MCKEE FOOD: Judge Denies Bid to Certify Distributors Class METLIFE INC: March 9 Class Action Settlement Fairness Hearing Set METROPOLITAN MUSEUM: March 14 Hearing on Class Action Settlement MICHAEL MATTEUCCI: Bid for Class Certification in "Rouse" Denied MICHIGAN: Salem's Bid to Certify Lady Prisoners Class Denied MICROSOFT INC: Supreme Court Set to Hear Xbox 360 Class Action MINNESOTA: Appeals Court Says Sex Offender Program Constitutional MODANI HOUSTON: Class Cert. Sought in Muhire & Trent Case MYER HOLDINGS: Former Shareholder Files Class Action MYLAN: Class Action Over EpiPen Pricing Pending in Cincinnati NATIONAL RECOVERY: FDCPA Class Certified in "Zirogiannis" Suit NCB MANAGEMENT: Class Cert. Bid in "Williams" Denied as Moot NEW JERSEY: "Holmes" Suit Seeks Certification of Class NEW YORK: Police Dep't Allows Sikh Officers to Wear Full Turbans NORTH CAROLINA: Lewis' Bid to Certify Prisoners Class Denied NORTH SHORE: Faces "Otero" Suit in S.D. of New York ONE INC: Judge Allows "After School" App Class Action to Proceed ORCHESTRATE HOSPITALITY: Edwards Seeks Final OK of $163,699 Deal OREGON: Post No. 122 Sued Over Failure to Pay Workers Properly PALOS VERDES, CA: More Details Unveiled in Lunada Bay Class Suit PARIS MAINTENANCE: "Moncion" Alleges Violations of FLSA, NYLL PAYPAL HOLDINGS: Faces "Cho" Suit Over Securities Act Breach PEARLAND CAPITAL: Class Certification Sought in "Stewart" Suit PICK-A-PART: Faces "Torres" Suit in Eastern Dist. of California PILOT CORP: 11th Circuit Clarifies Jurisdiction in Class Action PREMIER NUTRITION: Faces False Advertising Class Action in Calif. PRESSLER & PRESSLER: Faces "Flores" Suit in E.D.N.Y. PROBALANCE INC: Class Certification Hearing Continued to Jan. 17 Q.S. SAN LUIS: Court Okays "Orduna" Class Action Settlement RCI HOSPITALITY: Exotic Dancers File Suit Over Unpaid Wages RCP AMERICA: Cert. of Detailers Class Sought in "Allen" Suit ROADRUNNER INTERMODAL: "Rich" Suit Moved From C.D. to E.D. Cal. ROADRUNNER TRANSPORATION: Court Certifies Class in "Spates" Suit ROCKWATER ENERGY: Gomez Seeks Certification of Employee Class SALERNO'S & SONS: Parties in "Gonzalez" Suit to Confer on Jan. 13 SANTA FE NATURAL: "Hebert" Suit Consolidated in MDL 2695 SAVERS LLC: Assistant Managers Class Certified in "Godhigh" Suit SILVER BELL: "Ortiz" Suit Seeks to Recover Unpaid Overtime Wages SMSSI OF CALIFORNIA: Doesn't Properly Pay Employees, Suit Claims SOUTHERN INDUSTRIAL: Certification of Class Sought in "Rule" Suit SOVRAN SELF STORAGE: June 5 Hearing on Castro Class Cert. Bid SWEET BLESSINGS: "White" Suit Seeks to Recover Unpaid Wages TCI CONTRACTING: "Moya" Suit Moved from Cir. Ct. to S.D. Fla. TEMPLE TERRACE, FL: Class Certification Sought in Lea Family Suit TESLA MOTORS: Law Firms Call for NHTSA Probe Into Model X Defects TESLA MOTOR: More Details Emerge in Model X SUA Class Action TOYOTA MOTOR: Tacoma Owners Set to Get Settlement Notices UNITED HEALTHCARE: Attorney Challenges Class Action Settlement UNITED STATES: Insurers' Suit Over Risk Corridor Program Pending UNITED STATES: Class Certification in FICA Tax Refund Suit U.S. XPRESS: Court Denies Class Certification Bid in "Ayala" Suit US SECURITY: Decertification Bid Denied in Light of Settlement UTJOK ZAIDAN: Faces "Hardjowirogo" Suit in N.Y. Supreme Court VOLKSWAGEN AG: Diesel Car Emissions Scandal Costs to Spike VOLT MANAGEMENT: Fails to Provide Proper Rest Breaks, Suit Claims WELLS FARGO: Summary Judgment Dismissal of FLSA Claims Affirmed * Class Action Waiver Enforceability in Arbitration Reaffirmed * Five New Jersey Lawyers Named in Racketeering Class Action * Queensland Introduces Class Action Regime * Scandals Marred Automotive Industry in 2016 * Stroock Names Five New Partners, Special Counsel for 2017 ********* ALBERTSON'S LLC: Court Partly Granted Class Certification Bid ------------------------------------------------------------- In the lawsuit styled Antonio Diaz, the Plaintiff v. Albertson's LLC, the Defendant, Case No. 8:16-cv-00257-DSF-JEM (C.D. Cal.), the Hon. Dale S. Fischer entered an order granting in part and denying in part Plaintiff' motion for class certification. The Court said, "For the question of whether Defendant could hire additional pharmacists, research into local labor markets will be necessary. The adjudication of this issue will not rely on common facts, and Plaintiff's trial plan fails to address how this issue can be litigated on a classwide basis. But for the question of whether it would be impractical for Defendant to suspend Pharmacists' operations for an off-duty meal break, the Court finds that a class action would be superior. Given the evidence that the nature of the pharmacists' work does not vary by location, Defendant's arguments in support of a nature of the work exception would apply classwide. Further, as Plaintiff points out, damages can be calculated simply by multiplying the total shifts worked by any pharmacist who signed the agreement by his or her hourly wage. The Court grants Plaintiff's motion for class certification as to the meal period class for the specific issue of whether it would be impractical for Defendant to suspend pharmacists' operations to allow off-duty meal breaks." The Court further said, "Plaintiff contends that the common question is whether the nature of the pharmacists' work precludes an off-duty rest period. Plaintiff argues that if the nature of the work precludes an off-duty meal period, then it must also preclude an off-duty rest period. The Court is not persuaded by this argument. Indeed, the evidence of record shows that Defendant allows pharmacists to have off-duty rest breaks, which are ten or fifteen minutes as opposed to the longer thirty-minute meal break. More importantly, Plaintiff provides no evidence -- aside from Plaintiff's own declaration -- that any employees have actually been denied off-duty rest breaks. Defendant submits declarations from several pharmacists showing that Defendant allowed them to take off-duty rest breaks. Further, Defendant's rest break policy complies with the applicable laws and wage orders. Therefore, Plaintiff has failed to show common proof that Defendant did not permit the purported class from taking rest breaks. The Court denies class certification for the rest period class." Plaintiff's 17200 claim is derivative of the meal period and rest period claims. Accordingly, the Court denies certification of this class for any rest period violations. But the 17200 class -- currently defined to include employees against whom Defendant committed unlawful business practices -- cannot be certified for any meal period violations because it constitutes an impermissible "fail-safe" class. Adadhunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980). The members of such a class would be "bound only by a judgment favorable to plaintiffs but not by an adverse judgment. "The Court redefines this class to be co- extensive with the meal period class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=bIGpbuUd ALLERGAN PLC: Abraham Fruchter Files Securities Class Action ------------------------------------------------------------ Abraham, Fruchter & Twersky, LLP, on Jan. 3 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York against Allergan plc ("Allergan") and certain of its current or former officers. The case is titled Rosenberg v. Allergan PLC, et al., No. 17-00025. The class action is filed on behalf of all those who purchased Allergan common stock between February 25, 2014 and November 2, 2016, inclusive (the "Class Period"). It seeks to recover damages against the defendants for violations of the federal securities laws. Allergan is an Ireland-based specialty pharmaceuticals company that develops, manufactures, markets and distributes medical aesthetics, biosimilar and over-the-counter pharmaceutical products worldwide. It has operations in more than 100 countries. The Complaint alleges that defendants made materially false and misleading statements regarding the business and operations of Allergan in violation of sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Specifically, while Defendants made statements about the Company's business strategy and its financial results, as was subsequently revealed, it was likely that the U.S. Department of Justice was going to file criminal charges against Allergan and several other pharmaceutical companies for unlawfully colluding to fix generic drug prices. Once this information was disclosed to the market, the price of the Allergan's stock dropped precipitously. If you are a shareholder who purchased Allergan common stock during the Class Period, you have until January 3, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. To discuss this action, please contact info@aftlaw.com or call toll free (800) 440-8986. If inquiring by e-mail, please include your mailing address, telephone number, and number of shares purchased. Abraham, Fruchter & Twersky, LLP, which is based in New York and has an office in California, has extensive experience in shareholder and securities class action cases. ATLANTIC LOTTERY: N.L. Court Certifies Video Lottery Class Action ----------------------------------------------------------------- VOCM reports that the Supreme Court of Newfoundland and labrador has certified a class action lawsuit against the Atlantic Lottery Corporation regarding VLT's. The class action involves an estimated 30,000 players of line games on video lottery terminals in Newfoundland and Labrador. The suit alleges that unlike other forms of legalized gambling, VLT line games are designed to deceive players. Lawyer Ches Crosbie says Atlantic lotto deceptively generates tens of millions of dollars from VLT's each year, and hands over most of the profits to the province. He says VLT's cause over twice the rate of problematic gambling compared to other forms of legalized gambling. One of the plaintiffs, Doug Babstock of St. John's, says the games have been cheating people for many years. He's happy that the corporation will have to answer to it in court. He says you are guaranteed mathematically to lose your money. He says in one plaintiff's case it was nothing to lose as much as $1,000 in just two hours of play. Mr. Crosbie adds that there are more honest ways to raise revenue. AMERICAN CHEMICALS: Settlement Class Preliminarily Certified ------------------------------------------------------------ The Hon. Kathleen M. Williams entered an order in the lawsuit captioned ABC BARTENDING SCHOOL OF MIAM I, INC., et al., the Plaintiffs, v. AMERICAN CHEMICALS & EQUIPMENT, INC. d/b/a 'GORILLA GLIDES'', et al., the Defendants, Case No. 1:15-cv-23142-KMW (S.D. Fla.), granting preliminary approval of the parties' settlement and certifying this settlement class: "all persons or legal entities in the United States who, during the Class Period, owned, used, subscribed to, or controlled any fax numbers) on the Facsimile List, and who received a facsimile advertisement from or on behalf of Defendants American Chemicals & Equipment, Inc., including its subsidiaries, affiliates, and d/b/a's and/or Steven K. Mote, including but not limited to facsimile advertisements promoting (1) "Gorilla Glides", "www.GorillaGlides.com'', and offering "Gorilla Glides" floor protection products, and/or (2) "dstockup.com", and offering office supply products." The Court preliminarily appoints Plaintiffs as the representatives of the Settlement Class, and preliminarily appoints Plaintiffs' attorneys -- Wallen Hernandez Lee Madinez, LLP; Bellin & Associates LLC', and Schlam Stone & Dolan LLP -- as class counsel. The Court approves the appointment of Tillman & Co., P.C. and Heffler Claims Group to serve jointly as the Settlement Administrator to administer the settlement, including by providing Class notice, maintaining the settlement website, assisting settlement class members in completing and submitting claim forms, receiving such claim forms, and issuing benefit checks to approved claimants. The Court sets these deadlines and dates for the acts and events contemplated in the settlement agreement: Act/Event Deadline/Date Claim/opt-out/objection Deadlines March 7, 2017 Motion for entry of Final Approval March 23, 2017 Oder and Judgment Fee and Cost Application March 23, 2017 Settlement Administrator's March 30, 2017 Declaration regarding compliance with Class Notice Final Approval Hearing April 6, 2017 A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=B1CzQbsB AMERICAN EXPRESS: "Grosz" Suit Seeks Certification of 2 Classes --------------------------------------------------------------- In the lawsuit titled ROBERT GROSZ, on behalf of plaintiff and the class members described below, the Plaintiff, v. AMERICAN EXPRESS BANK FSB, and AMERICAN RECOVERY SERVICE INCORPORATED, the Defendants, Case No. 2:16-cv-07029-SJF-AYS (E.D.N.Y.), Mr. Robert Grosz asks the Court to enter an order to certify two classes: Count I, against ARSI, alleges violations of the Fair Debt Collection Practices Act. Class 1 consists of (a) all natural persons who satisfied judgments (b) entered in New York courts (c) with ARSI (d) whose judgments were not satisfied of record within 20 days after receipt of payment (e) where the payment was received by ARSI on or after a date one year and 20 days prior to the filing of this action. Count II, against American Express, alleges violation of New York Civil Practice Law and Rules 5020. Class 2 consists of (a) all persons (natural or otherwise) who satisfied judgments (b) entered in New York courts (c) where the judgment creditor is American Express Bank FSB (d) whose judgments were not satisfied of record within 20 days after receipt of payment (e) where the payment was received by American Express Bank FSB or its agent on or after a date 3 years and 20 days prior to the filing of this action. The Plaintiff further asks that Edelman, Combs, Latturner & Goodwin, LLC and The Law Offices of Lawrence Katz, PC be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=sPXAk9Tm The Plaintiff is represented by: Tiffany N. Hardy, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 3593 Telephone: (312) 739 4200 Facsimile: (312) 419 0379 E-mail courtecl@edcombs.com - and - Lawrence Katz, Esq. LAW OFFICES OF LAWRENCE KATZ PC 445 Central Avenue, Suite 201 Cedarhurst, NY 11516 Telephone: (516) 374 2118 Facsimile: (516) 706 2404 AVIS BUDGET: Mendez Seeks to Certify Class; Fla., N.J. Subclasses ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned JOSE MENDEZ, Individually and On Behalf Of All Others Similarly Situated v. AVIS BUDGET GROUP, INC. d/b/a BUDGET RENT A CAR SYSTEM, INC. and AVIS RENT A CAR SYSTEM, LLC; and HIGHWAY TOLL ADMINISTRATION, LLC, Case No. 2:11-cv-06537-JLL-JAD (D.N.J.), moves the Court for: (1) certification of a Nationwide Class, a Florida Subclass, and a New Jersey Subclass; (2) the appointment of Plaintiff as representative of the Classes; and (3) the appointment of the Plaintiff's attorneys and firms as Class Counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=EAXIh2bj The Plaintiff is represented by: Joseph J. DePalma, Esq. Jeremy Nash, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 Facsimile: (973) 623-0858 E-mail: jdepalma@litedepalma.com jnash@litedepalma.com - and - Judith L. Spanier, Esq. Nancy Kaboolian, Esq. ABBEY SPANIER, LLP 212 East 39th Street New York, NY 10016 Telephone: (212) 889-3700 Facsimile: (212) 684-5191 E-mail: jspanier@abbeyspanier.com nkaboolian@abbeyspanier.com BASHAM LUMBER: Milkes Insurance's Claims Dismissed -------------------------------------------------- The Hon. Jorge L. Alonso entered an order in the lawsuit entitled M Milkes Insurance Agency, Inc., the Plaintiff, v. Basham Lumber Co., Inc., et al., the Defendants, Case No. 1:16-cv-06855 (N.D. Ill.), striking status hearing date of December 22, 2016. According to the docket entry made by the Clerk on December 21, 2016, a stipulation of dismissal has been filed. Plaintiff's claims are voluntarily dismissed without prejudice, with each party bearing its own costs and fees, as stated in the stipulation. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=jVY68AUK BELLMAWR, NJ: Settles Class Action Over Rental Unit C/O ------------------------------------------------------- Anne Forline, writing for South Jersey Observer, reports that the Boroughs of Bellmawr and Brooklawn have entered into respective Settlement Agreements regarding a class action lawsuit where both Boroughs were named defendants. The lawsuit relates to the annual Certificate of Occupancy (C/O) for rental properties. The case is captioned William Brody & Kathleen O'Hara vs. Borough of Brooklawn & Borough of Bellmawr. The Complaint was venued in the Superior Court of New Jersey, Camden County, under Docket # L- 3104-15. The plaintiffs' attorneys are Lewis Adler, Esquire and Roger Mattson, Esquire, of Woodbury, and also Paul DePetris, Esquire, of Medford. Bellmawr Settlement The Borough of Bellmawr settled their portion of the lawsuit for $55,000 when Council passed a Resolution authorizing the settlement at its August 29, 2016 meeting. As for the basis of the lawsuit, Bellmawr Borough Administrator, Josh Tregear, explained via email that it relates to the annual annual C/O inspection required for all rental property units. "The annual inspection on most rental units is $100 and is conducted to ensure the safety of renters by requiring landlords to maintain the dwelling up to Code. The issue revolved around the use of certain terminology and language in the Ordinance (Borough Code). The Ordinance has since been revised to address this issue, and should mitigate any future liability." Brooklawn Settlement As for the Borough of Brooklawn, Borough Administrator, Ryan Giles provided specifics for the settlement pertaining to Brooklawn. "The settlement was to discount the property owners $100 for the next three years ($300 total for each property owner) of their rental registration (not commercial). Lawyer fees [are] around $10,000. Total settlement is approximately $33,000 with everything included," Mr. Giles wrote via email. The Settlement Agreement notes that as class representatives, William Brody and Kathleen O'Hara will receive a single payment of $1,000 and those class members who sold their properties prior to the effective date of the settlement will receive a $300 payment. SJO filed Open Public Records Act (OPRA) Requests with both Boroughs for the settlement and other related documents. The information was provided and can be viewed below. Both Settlement Agreements indicate both Boroughs specifically deny any liability or wrongdoing of any kind associated with the claims. According to the Settlement Agreement for the Borough of Bellmawr, the settlement class consisted of 371 landlords for the period of November 1, 2010 to July 28, 2016, which is the date when Bellmawr began accepting only the new registration under the revised Ordinance. The settlement class for the Borough of Brooklawn consisted of 71 landlords until about November 16, 2015. That is the approximate date noted in the Settlement Agreement when Brooklawn began accepting only the new registration under the revised Ordinance. BERTUCCI'S GROUP: Feb. 9 Final Settlement Approval Hearing Set -------------------------------------------------------------- A Final Approval Hearing on the proposed settlement in the class action styled, MICHAEL SCOTT KAPPOTIS, on behalf of himself and all others similarly situated, Plaintiff, vs. BERTUCCI'S, INC., BERTUCCI'S RESTAURANT CORPORATION, BERTUCCI'S CORPORATION, Defendants, Civil Action No. 1584CV03821-BLS1, pending before the Commonwealth Of Massachusetts Suffolk, SS. Superior Court, will be held on February 9, 2017. For purposes of the Settlement, the Settlement Class will be composed of all individuals who, between November 22, 2015 and December 31, 2015, either (1) purchased gift card(s) from any of the Defendants' locations in Massachusetts and received a thank you card ("TYC") or (2) otherwise lawfully received a TYC issued by any of the Defendants' locations in Massachusetts as part of the promotion that the Defendants ran during the class period which offered a $5.00 TYC for every purchase of $25.00. The Defendants agreed to pay a Settlement Amount equal to $2.50 for each TYC that was issued in Massachusetts during the Class Period and remained unredeemed as of April 30, 2016, as well as an additional single payment in the amount of $.01 for every TYC issued during the Class Period and redeemed on or before April 30, 2016. The total Settlement Amount to be distributed to the cy pres on behalf of the Class shall be in the amount of $15,285.15 on behalf of 25,800 Class Members. In addition to the Class benefit, the Defendants have agreed to pay the Plaintiff's incentive award, costs and attorneys' fees, as ultimately awarded by the court, in an amount not to exceed $80,000.00. The parties will ask the Court, at the final approval hearing, to (i) certify the Settlement Class; (ii) appoint the Plaintiff as class representative and his attorneys as Class Counsel; (iii) grant final approval of the Parties' Settlement Agreement as fair, reasonable, and adequate, and in the best interest of the Class; (iv) enter judgment dismissing the litigation with prejudice; and (v) award the Plaintiff's counsel reasonable counsel fees and expenses. Any objections are requested to be mailed or faxed by February 1, 2017 by the objector or a legally authorized representative on an individual basis only and not as part of a group, class or subclass. Bertucci's Inc. is a domestic business corporation organized under the laws of the Commonwealth of Massachusetts, maintaining a principal place of business in Northborough, Worcester County. Bertucci's Restaurant Corporation is a domestic business corporation organized under the laws of the Commonwealth of Massachusetts, maintaining a principal place of business in Northborough, Worcester County, Massachusetts. Bertucci's Corporation is a foreign corporation formed under the laws of the state of Delaware, with a principal office located at 155 Otis Street, Northborough, Massachusetts and a registered agent located at 44 School Street, Suite 325, Boston Massachusetts. The Plaintiff is represented by: Kenneth D. Quat, Esq. QUAT LAW OFFICES 929 Worcester Rd. Framingham, MA 01701 Tel: (508) 872-1261 Email: ken@quatlaw.com BRIDGEVIEW BANK: Loan Officers Class Certified in "Pieksma" Suit ---------------------------------------------------------------- The Hon. Jorge L. Alonso granted the Plaintiff's motion for conditional class certification and denied the Defendants' motion to strike in the lawsuit entitled LYNN JEAN PIEKSMA, on behalf of herself and all others similarly situated v. BRIDGEVIEW BANK MORTGAGE COMPANY, LLC, and BRIDGEVIEW BANCORP, INC., Case No. 1:15-cv-07312 (N.D. Ill.). Lynn Jean Pieksma worked as a Mortgage Banker ("LO") at Bridgeview Bancorp, Inc.'s Irvine, California office from March 2013 through September 2013. LO refers to Mortgage Bankers and other loan officers with similar titles. She alleges that Bridgeview and its subsidiary, Bridgeview Bank Mortgage Company, LLC, violated the Fair Labor Standards Act by failing to properly pay LOs minimum wage and/or overtime compensation for time worked off the clock and unlawfully deducting any minimum wages and overtime compensation from LOs' paid commissions. Ms. Pieksma brings her claims as a collective action on behalf of all non-exempt LOs, who worked for the Defendants in the last three years. Ms. Peiksma asked the Court to (1) grant conditional class certification for all current and former LOs and other like loan officers who worked for the Defendants for the last three years to the present; (2) allow her to act as class representative and appoint Rowdy Meeks Legal Group, LLC as class counsel; and (3) approve the provided notice and consent to class members, order the Defendants to post the notice at each of their branches, and to provide a list containing all class members' contact information within fourteen days of conditional certification. A copy of the Memorandum Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZsnfmYbT CANADA: Mothers Wants EI Sickness Benefits Litigation Resolved -------------------------------------------------------------- Metronews.ca reports that for Jennifer McCrea, 2016 was a milestone year. The Calgary mother of two celebrated five years cancer-free. She saw her favourite band The Tragically Hip five times. And she ran five marathons in 12 months to mark her good health. But as the New Year dawns, there is a gnawing sense of unfinished business for the breast cancer survivor who launched a class action lawsuit in 2012 on behalf of more than 3,000 mothers who say they were wrongfully denied EI sickness benefits while on maternity leave. "During the election, the Liberals promised to 'immediately end' this legal battle," says Ms. McCrea, 39. "They've been in office now for a year and we are still waiting." McCrea, who has contacted about 20 MPs of all political stripes about holding the Liberals to account, is growing impatient. "It's been very frustrating," she says in a phone interview. "Nobody seems to be able to tell me anything." A spokesman for Families, Children and Social Development Minister Jean-Yves Duclos says the government is "working on the file." "Because it is in court right now, I cannot comment more at this time," Mathieu Filion told Torstar in an email. In July 2011, when her second son Ethan was just eight-and-a-half months old, Ms. McCrea was diagnosed with breast cancer and had a double mastectomy. But when she applied for EI sickness benefits so she didn't have to use the rest of her parental leave to recover from the surgery, she was turned down. EI legislation was changed in 2002 to extend sickness benefits to working women who become ill during pregnancy or while on maternity and parental leave. It meant new mothers, such as McCrea, who were diagnosed with a serious illness could take up to 15 weeks of sickness benefits to recuperate and then resume their maternity or parental benefits. But EI officials didn't interpret the changes that way; they argued that since an ill woman on maternity or parental leave wasn't available for work, she wasn't eligible for EI sickness benefits. It wasn't until a Toronto woman successfully appealed her case in 2011 that the federal government took notice. The previous Harper government eventually changed the law in 2013 to ensure new mothers with serious illnesses are not denied EI sickness benefits. And it quietly paid about 350 women who had their applications denied in 2012 and 2013. But it refused to pay Ms. McCrea and others who were denied sickness benefits between 2002 and 2013. In May 2015, a judge certified McCrea's class action suit, which if successful, could give her and other women deemed class members up to $7,515 each, plus damages, according to her lawyer Stephen Moreau of Cavalluzo Shilton McIntyre Cornish LLP. Government documents released in March 2016, show the previous government spent $2.2 million fighting the class action, but it is not clear how much the Liberals have spent. Mr. Moreau says the mothers have been "more than patient." He hopes a court decision last fall in Ms. McCrea's favour will bring the government to the table. The decision, based on the former Harper government's appeal of what the judge can rule on in the class action suit, has strengthened Ms. McCrea's hand, Mr. Moreau says. "This decision allows me to argue that the government breached its duty of care to these women," he says. "This is the most serious and costly element of any successful class action case, if proven "One would think the government would want to avoid that risk." CAPITAL ACCOUNTS: Faces "Tiernan" Suit in M.D. of Tennessee ----------------------------------------------------------- A class action lawsuit has been filed against Capital Accounts. The case is captioned as Shawnda Tiernan, individually and on behalf of all others similarly situated, the Plaintiff, v. Capital Accounts and John Does 1-25, the Defendants, Case No. 3:16-cv- 03291 (M.D. Tenn., Dec. 22, 2016). The case is assigned to Hon. District Judge Aleta A. Trauger. Capital Accounts specializes in collection of overdue balances. The Plaintiff is represented by: William M. Kaludis, Esq. SHIELD LAW GROUP 1230 Second Avenue S Nashville, TN 37210-4110 Telephone: (615) 742 8020 Facsimile: (615) 255 6037 E-mail: bill@shieldlawgroup.com CATALINA HOTEL: "Pierre" Suit Moved from Cir. Ct. to S.D. Fla. -------------------------------------------------------------- The class action lawsuit titled Beverly Pierre and other similarly situated individuals, the Plaintiff, v. Catalina Hotel, LLC, doing business as Catalina Hotel, a Florida profit limited liability company, individually, the Defendant, Case No. 16-029467 CA 01, was removed from the 11th Judicial Circuit of Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:16-cv-25300-JAL to the proceeding. The case is assigned to Hon. Judge Joan A. Lenard. Catalina Hotel is a European set vibe and beach club offering restaurants and pools. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. Rainier Regueiro, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: agp@rgpattorneys.com rregueiro@rgpattorneys.com The Defendant is represented by: Joshua Michael Entin, Esq. ENTIN & DELLA FERA, P.A. 633 S. Andrews Avenue, Suite 500 Ft. Lauderdale, FL 33301 Telephone: (954) 761 7201 Facsimile: (954) 764 2443 E-mail: joshentin@comcast.net CENTRAL CONSTRUCTION: Faces "Arufe" Suit in S.D. of New York ------------------------------------------------------------ A class action lawsuit has been filed against Central Construction Management, LLC. The case is titled as Fernando Arufe, on behalf of himself and all others similarly situated, the Plaintiff, v. Central Construction Management, LLC and Galiza Enterprises Corp., the Defendants, Case No. 1:16-cv-09889 (S.D.N.Y., Dec. 22, 2016). Central Construction was founded in 2005. The Company's line of business includes providing masonry and other stonework. The Plaintiff appears pro se. CHARLES J. THOMAS JR: Junk Fax Suit Wins Class Certification ------------------------------------------------------------ In the lawsuit styled COMPRESSOR ENGINEERING CORPORATION, the Plaintiff, v. CHARLES J. THOMAS, JR., the Defendant, Case No. 2:10-cv-10059-PDB-RSW (E.D. Mich.), the Hon. Paul D. Borman entered an order: 1. granting Plaintiff's motion for class certification of: "all persons who were sent one or more faxes on November 6, 2005 advertising 'Chicken Shack' restaurant as offering 'Michigan's Best Chicken and Ribs'" 2. appointing Class Counsel, Jason Sommers, Philip Bock, and Tod Lewis; 3. granting Plaintiff's unopposed motion for leave to file recent Sixth Circuit Authority; 4. denying Defendant Thomas' motion for leave to file supplemental memorandum; 5. granting Plaintiff's motion for leave to file supplemental authority; and 6. granting Plaintiff's motion for leave to file supplemental authority. The Court said, "Defendant argues in his Response that a class action is not the superior method for adjudicating the claims in this case because Congress intended these claims to be adjudicated in small claims court. This argument is unpersuasive. While it may be true that plaintiffs' firms received a boon in pursuing these class actions on behalf of plaintiffs who do not remember the injury (and never would have pursued the action but for a solicitation letter); it is unrebutted that there are some 6,000 potential class members in this action. It is not logical to believe that having 6,000 individual lawsuits (whether in state court or federal court) would be more efficient or a better use of judicial resources. See Chapman v. Wagener Equities, (finding that the superiority requirement was satisfied where there were more than 10,000 potential class members, "[w]ith that large number in mind, it is impossible to imagine individual lawsuits; disposition by class action is certainly, in this case, an efficient use of judicial resources."); (finding class action a superior method in an analogous TCPA case). For all these reasons, the Court finds that a class action is a superior method for litigating these 6,000 potential claims". A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=jkZ3P1o3 CHARLOTTE SCHOOL: Legal Battle Over Student Loans Ongoing --------------------------------------------------------- Brittney Johnson, writing for WSOCTV, reports that Jan. 3 was the deadline for Charlotte School of Law to file an appeal against the Department of Education's decision to deny federal loans for its students. The school is facing a growing legal battle as the school looks for ways to assist students concerned about an uncertain future. Attorney Gary Jackson is part of a team with the law offices of James Scott Farrin that is representing 45 Charlotte School of Law students who are outraged they invested thousands in their education, not knowing CSL was falling out of compliance with the American Bar Association. "They cannot believe this institution has duped them," Mr. Jackson said. He added that the students are holding off on filing a lawsuit, hoping the school will address concerns and even possibly waive tuition. "We hope the administration at this school, faculty at this school, can change course, straighten out its act," Mr. Jackson said. WSOCTV talked to an attorney representing third-year students who already filed an additional class-action suit. In addition to CSL, this one names the federal government, asking it to discharge the student's loans. "If you are tricked into taking out a loan that does you no good, the idea is it is unfair to require you to take on that debt, and have to pay it back when you've gotten no value from it," Majestro said by phone. CSL wouldn't comment on pending lawsuits. Eyewitness News learned that in 2015, Majestro's team won an $11 million settlement for former students of Mountain State University in West Virginia. They argued the school failed to provide an adequate education before it closed. Majestro thinks it's telling that the Department of Education pulled funding from CSL, even though the school is still accredited. But for some students, the fact that the school still has its accreditation is reason to hope things can turn around. "We would really like the DOE to come in and at least reinstate loans for this semester," Mr. Jackson said. There is no word on when the DOE will respond. CHASE BANK: Class Cert. Bid Filed in Suit Over Amazon Credit Card ----------------------------------------------------------------- In the lawsuit captioned HOWARD LASKY and MEIRA LASKY, on behalf of plaintiffs and a class, the Plaintiffs, v. CHASE BANK USA, NATIONAL, the Defendant, Case No. 2:16-cv-07169-SJF-AKT (E.D.N.Y.), the Plaintiffs ask the Court to certify a class of: "(a) all persons and entities in New York (b) who, on or after a date one year prior to the filing of the action, (c) were issued an Amazon credit card and, (d) which they did not apply for and, (e) which is not a replacement for an existing credit card." The Plaintiffs further ask that Edelman, Combs, Latturner & Goodwin, LLC and Kleinman, LLC be appointed as counsel for the class. The Plaintiffs allege violation of the Truth in Lending Act by issuing unsolicited credit cards against the Defendant. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=e4MZe2YX The Plaintiffs are represented by: Tiffany N. Hardy, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739 4200 Facsimile: (312) 419 0379 Email: courtecl@edcombs.com - and - Abraham Kleinman, Esq. KLEINMAN, LLC 626 RXR Plaza Uniondale, New York 11556-0626 Telephone: (516) 522 2621 Facsimile: (888) 522 1692 CLICKSPARK LLC: Faces TCPA Class Action in California ----------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a San Diego resident claims a New York business invaded his privacy with its calls. Sam Atherton Jr. filed a complaint individually and on behalf of others similarly situated on Dec. 10 in the U.S. District Court for the Southern District of California against Clickspark LLC alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that before February 2015, he started receiving calls from the defendant that were made using an automatic telephone dialing system or an artificial or pre-recorded voice without plaintiff's express prior consent. The plaintiff holds Clickspark LLC responsible because the defendant allegedly invaded plaintiff's right to privacy. The plaintiff requests a trial by jury and seek judgment against defendant, certify as a class action, appoint named plaintiff and counsel as class representative/counsel, statutory damages of $500 and $1,500 for every violation, injunctive relief, and other relief that the court deems just. He is represented by Joshua B. Swigart and Yana A. Hart of Hyde & Swigart in San Diego, Abbas Kazerounian of Kazerouni Law Group APC in Costa Mesa and Daniel G. Shay of Law Office of Daniel G. Shay in San Diego. U.S. District Court for the Southern District of California Case number 3:16-cv-03000 COLLIER COUNTY, FL: Immigrant Teens Barred from Public Schools -------------------------------------------------------------- Brett Murphy, writing for NewsPress.com, reports that about 370 immigrant teenagers in Collier County won't be returning to public high school classrooms after the holiday break. The Collier County School Board and Superintendent Kamela Patton redirected the students to language programs at Immokalee and Lorenzo Walker technical colleges earlier this year. Six of the students are suing the district for the whole group's right to attend classes at public high schools. But as the legal battle rolls on in federal court, the teens, ages 15 to 18, remain barred from attending normal classes. "These students should be in school," said Michelle Lapointe, a senior staff lawyer at the Alabama-based Southern Poverty Law Center. The civil rights group filed the original lawsuit, now a class action, in May. "We're ready to enter second semester, and they're still sitting in language (education) programs." The school board is making the case it placed the teenagers in the language programs -- which don't offer other normal curricula -- to help them first learn English and to better prepare them for the classroom. In a court filing submitted in mid-December, the school board said the teenagers "are not academically qualified to attend high school, have aged out, or both under state law and local policy." School district lawyers Jon Fishbane and James Fox argued against federal jurisdiction in the case. Their filing came in response to a statement from the Department of Justice in September, urging the court to proceed with the case after the school board had previously motioned to dismiss it. "Local autonomy of school districts is a vital national tradition," the school board argued in the filing. "The Administration seeks not to honor local control, but to usurp it." But the Department of Justice said the case in Collier shouldn't be thrown out because of the possible precedent that could set across the country. "This litigation implicates a matter of critical national importance -- the right of English Learner students to equal access to a high-quality education," according to the filing submitted in September by U.S. Attorney A. Lee Bentley III, of the U.S. District Court in Fort Myers, and other Justice Department lawyers. Echoing the national significance of the case in Collier, Ms. Lapointe cited a handful of other districts that have seen similar cases since a surge of child immigrants fleeing violence and economic turmoil in Central and South America began arriving in the United States in 2013. Tens of thousands of unaccompanied minors came to the front doors of public schools across the country, several of which weren't prepared for the influx, according to advocates. In April a federal judge in Utica, New York, granted the state's attorney general authority to proceed in a case against the local school district. U.S. District Judge David Hurd said the complaint "sufficiently alleges" that Utica officials had implemented a similar policy of diverting immigrants away from public school classrooms and into "educational dead-ends in violation of various federal and state laws." Ms. Lapointe said the situation is "eerily similar" in Collier. "Our plaintiffs have received no access to any curricular programming, only adult ESL," she said, "no classes for the high school credits, no chance for a diploma. "It's completely contrary to what the law requires. There's no way the district could be fulfilling its obligation under law by giving them a few hours a day in adult English language classes." A spokesman for the Collier school district declined to discuss the current motion to dismiss the suit. Ariel Pechokas, an adult education program director for Collier public schools, which operates Immokalee and Lorenzo Walker technical colleges, also declined to comment about the case. He said everyone who registers in the program he oversees attends English classes, GED classes and a citizenship program. "We have over 2,000 students here," Ms. Pechokas said when asked if he was aware of the teenagers currently enrolled. The school district has maintained throughout the case that programs like Ms. Pechokas' will ultimately best serve the immigrant teens. Moreover, the district argues, it's solely the school board's right to make that decision in the first place. The school board's language-program-first approach "is far wiser than setting them up for failure in a regular high school program," defense lawyers wrote in their most recent filing. COMMUNITY PHYSICAL: Girolamo Class Cert. Bid Tossed, Deal Reached ----------------------------------------------------------------- The Hon. Mary M. Rowland entered an order in the lawsuit captioned Nancy Girolamo, the Plaintiff, v. Community Physical Therapy & Associates, LTD, et al., the Defendant, Case No. 1:15-cv-02361 (N.D. Ill.), denying without prejudice as moot Plaintiff's motion for class certification pursuant to Illinois Wage Payment and Collection Act Claim. According to the docket entry made by the Clerk on December 21, 2016, the Parties have reached a settlement agreement in principle. Another status hearing is set for January 15, 2017 at 9:30 a.m. The status hearing will be stricken if a stipulation to dismiss is filed prior to that date. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=IOtAyUop CONAGRA FOODS: 9th Cir. Widens Split on Ascertainability Issue -------------------------------------------------------------- Amanda Bronstad, writing for The Recorder, reports that throwing its weight on one side of a widening circuit split, the U.S. Court of Appeals for the Ninth Circuit on Jan. 3 refused to adopt stricter standards for class certification in cases where there is no readily apparent way to identify class members. The case, which involved the labels on Wesson cooking oils, addressed the question of ascertainability, a term coined by the class action bar, which has received increased attention as more cases get filed over cheap goods. Defense lawyers for ConAgra Foods Inc. argued that class certification should be reversed because class members couldn't be identified. As is the case with many low-priced goods, its lawyers wrote, consumers generally don't save grocery receipts and might not even remember the purchase of a particular cooking oil. In the Jan. 3 opinion, the Ninth Circuit disagreed, finding that the rule governing class actions doesn't require plaintiffs attorneys to lay out an administratively feasible plan to identify class members at the certification stage. The Ninth Circuit joins the Sixth, Seventh and Eighth circuits in rejecting a higher hurdle for ascertainability. "Class actions involving inexpensive consumer goods in particular would likely fail at the outset if administrative feasibility were a freestanding prerequisite to certification," Circuit Judge Michelle Friedland wrote in Briseno v. ConAgra. "The authors of Rule 23 opted not to make the potential administrative burdens of a class action dispositive and instead directed courts to balance the benefits of class adjudication against its costs." Plaintiffs attorney Adam Levitt -- alevitt@gelaw.com -- director in the Chicago office of Grant & Eisenhofer, had warned at oral arguments in September that raising the standard on ascertainability would mean the death of several consumer class actions. "We believe that by its ConAgra opinion, the Ninth Circuit is establishing a beachhead on the right side of the law on this very important issue, ensuring access to justice for consumers and others," Mr. Levitt said on Jan. 3. ConAgra was represented by Angela Spivey -- aspivey@mcguirewoods.com -- Atlanta managing partner at McGuireWoods. ConAgra spokesman Mike Cummins said in an email: "While we are disappointed by the Ninth Circuit's order, ConAgra is confident it will ultimately prevail on the merits." The case alleged that Wesson bottles labeled as "100% Natural" were false and misleading because the cooking oils contained genetically modified organisms. ConAgra was challenging certification of classes in 11 states. In arguing for ascertainability to be considered before class certification, ConAgra's lawyers seized on a string of 2013 rulings from the U.S. Court of Appeals for the Third Circuit that required plaintiffs to provide a "reliable and administratively feasible" method to identify class members. Several circuits have followed by adopting some ascertainability requirement, while others have taken a more liberal view that consumer affidavits are enough to establish eligibility for the class. The issue is particularly relevant in cases involving food labels, since most consumers don't have receipts, leaving plaintiffs attorneys to rely on retailer records and affidavits. So far, the U.S. Supreme Court has rejected petitions on the issue. In the Jan. 3 opinion, the Ninth Circuit brushed off concerns raised by the Third Circuit that an administratively feasible plan is necessary to ensure that class members get adequate notices and to prevent fraudulent claims. The Ninth Circuit also brushed off due process concerns, particularly given the numerous opportunities defendants have to challenge plaintiffs' claims after certification. Judge Friedland was joined by U.S. Circuit Judges William Fletcher and Morgan Christen. CONAGRA FOODS: Court Refuses to Certify Class in "Backus" Suit -------------------------------------------------------------- The Hon. William Alsup denies the Plaintiff's motion for class certification filed in the lawsuit entitled TROY BACKUS v. CONAGRA FOODS, INC., Case No. 3:16-cv-00454-WHA (N.D. Cal.). ConAgra's motion to strike the declarations of Drs. Robert Bowen and Nathan Wong is denied as moot. "In short, whether the issue is cast in terms of typicality or adequacy, Backus's claim fails to satisfy the prerequisites for class certification under Rule 23(a). His motion must therefore be denied. This order does not reach arguments as to the additional class certification requirements of Rule 23(b) or ascertainability, nor does it rely on the declarations of Drs. Robert Bowen and Nathan Wong offered in support of said arguments," Judge Alsup opined. Mr. Backus has sought to certify a nationwide class defined as: All persons who purchased in the United States, on or after January 1, 2008, for household or personal use, Fleischmann's sticks containing artificial trans fat and the phrase "maintaining your healthy lifestyle." Or, in the alternative, the California class, defined as: All persons who purchased in California, on or after January 1, 2008, for household or personal use, Fleischmann's sticks containing artificial trans fat and the phrase "maintaining your healthy lifestyle." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=naAJhZM8 CONCENTRIX CORP: Armstrong's Bid to Certify Class Partly Granted ---------------------------------------------------------------- The Hon. William H. Orrick grants in part the Plaintiffs' motion for conditional certification filed under the Fair Labor Standards Act in the lawsuit titled ASHLEY ARMSTRONG v. CONCENTRIX CORPORATION, Case No. 3:16-cv-05363-WHO (N.D. Cal.). The Court also directs the parties to submit an agreed-to notice on or before January 12, 2017. In their Motion, the Plaintiffs seek conditional FLSA certification for a collective of At-Home Customer Service Representatives ("AHCSRs") who worked for Concentrix Corporation at any time from September 19, 2013 through the present. The Plaintiffs allege that these workers were subjected to a general policy and practice whereby they were instructed and required to perform certain work tasks pre-, mid- and post-shift for which they were not compensated and have submitted declarations from three AHCSRs in support. "I conclude plaintiffs have provided adequate evidence that they are 'similarly situated' to the proposed collective members and have made substantial allegations to support the claims they aim to bring on behalf of AHCSRs. I GRANT plaintiffs' request for conditional FLSA certification for a collective of employees that have worked for Concentrix from December 14, 2015 through judgment," Judge Orrick wrote in the order. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=TtuwugwB CREDIT CONTROL: March 29 Fairness Hearing Set in "Wood" Suit ------------------------------------------------------------ In the lawsuit styled LISA A. WOOD, an individual; on behalf of herself and all others similarly situated, the Plaintiffs, v. CREDIT CONTROL, LLC, a Missouri Limited Liability Company; and JOHN AND JANE DOES NUMBERS 1 THROUGH 10, the Defendants, Case No. 6:16-cv-01098-KGG (D. Kan.), the Hon. Kenneth G. Gale entered an order: 1. certifying a Settlement Class of: "all individuals with addresses in the State of Kansas to whom Credit Control, LLC mailed a collection letter, between April 12, 2015, and May 3, 2016, which sought to collect a debt on which the last payment or activity on the individual's account had occurred more than five years prior to the date of the letter"; 2. defining the "Class Claims" as those claims arising from Credit Control's collection letters, which sought to collect debts on which the last payment or activity had occurred more than five years prior to the date of the letter, but which failed to disclose that: (i) the debt was barred by the applicable statute of limitations and, a lawsuit would not be filed to collect the debt; and (ii) a partial payment would revive the statute of limitations; 3. appointing Plaintiff as the Class Representative; 4. appointing Plaintiff's counsel, Stern Thomasson LLP, Edelman, Combs, Latturner & Goodwin LLC, and Waddell Law Firm LLC; and 5. appointing Heffler Claims Group as the Settlement Administrator to administer notice to the class and the settlement. A final hearing on the fairness and reasonableness of the Agreement and whether final approval shall be given to it and the requests for fees and expenses by Class Counsel will be held on March 29, 2017, at 1:30 p.m. at 406 U.S. Courthouse, 401 N. Market, Wichita, Kansas. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=pnLoTj5Z The Plaintiff filed the lawsuit pursuant to the Fair Debt Collection Practices Act (FDCPA), which alleges Credit Control violated the FDCPA by mailing consumers collection letters attempted to collect a time-barred debt from her by sending her a letter, which failed to disclose that: (1) the debt was barred by the applicable statute of limitations and, no lawsuit would be filed to collect the debt; and (2) a partial payment would revive the debt's statute of limitations. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=TO3qdSnK The Plaintiff is represented by: A. Scott Waddell, Esq. WADDELL LAW FIRM LLC 2600 Grand, Suite 580 Kansas City, MO 64108 Telephone: (816) 914 5365 E-Mail: scott@aswlawfirm.com - and - Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Telephone: (973) 379 7500 E-Mail: philip@sternthomasson.com andrew@sternthomasson.com - and - Daniel A. Edelman, Esq. Francis R. Greene, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739 4200 E-mail: dedelman@edcombs.com fgreene@edcombs.com CREDIT PROCESS: Innovative Suit Seeks Certification of Class ------------------------------------------------------------ In the lawsuit captioned INNOVATIVE ACCOUNTING SOLUTIONS, INC., a Michigan corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. CREDIT PROCESS ADVISORS, INC., ACCOUNT ADJUSTMENT BUREAU, INC., VELO LEGAL SERVICES, PLC d/b/a VELO LAW or VELO LAW OFFICE, SCOTT RENNER, and JOHN DOES 1-12, the Defendants, Case No. 1:15-cv- 00793-PLM-PJG (W.D. Mich.), the Plaintiff asks the Court to certify a class of: "all persons sent one or more telephone facsimile messages on April 23 or April 24, 2015 about a "Know Your Customer" seminar by Credit Process Advisors to be held on April 29, 2015, at Hawthorne Suites of Troy, Michigan". The Plaintiff further asks the Court to appoint Plaintiff as the class representative, and appoint Plaintiff's attorneys as class counsel. According to the complaint, the Defendants engaged in standardized conduct involving a common nucleus of operative facts by engaging FaxPlus to fax its seminar promotion advertisement to businesses in Michigan. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kBXDjTJM Attorneys for Innovative Accounting Solutions, Inc.: Kimberly M. Watt, Esq. Phillip A. Bock, Esq. James M. Smith, Esq. Kimberly M. Watt, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Telephone: (312) 658 5500 - and - Mark K. Wasvary, Esq. MARK K. WASVARY, P.C. 2401 W. Big Beaver Rd., Ste. 100 Troy, MI 48084 Telephone: (248) 649 5667 CVB FINANCIAL: March 13 Settlement Fairness Hearing Set ------------------------------------------------------- SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who purchased or otherwise acquired the common stock of CVB Financial Corp. ("CVB") between March 4, 2010, and August 9, 2010, inclusive (the "Settlement Class Period"), and were damaged thereby (the "Settlement Class"): PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Central District of California, that the above- captioned litigation (the "Action") has been certified as a class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full printed Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiff in the Action has reached a proposed settlement of the Action for $6,200,000 in cash (the "Settlement"), that, if approved, will resolve claims in the Action as set forth in the Stipulation and Agreement of Settlement (the "Stipulation"), available at www.CVBSecuritiesSettlement.com. A hearing will be held on March 13, 2017, at 10:00 a.m., before the Honorable Christina A. Snyder at the United States District Court for the Central District of California, 350 W. First Street, Courtroom 8D, 8th Floor, Los Angeles, CA 90012, or such other location as may be reported on the Court website, http://www.cacd.uscourts.gov/judges-schedules-procedures,to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether claims in the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Lead Counsel's motion for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at Barry R. Lloyd v. CVB Financial Corp., et al., c/o JND Class Action Administration, P.O. Box 6847, Broomfield, CO 80021, 1-844-620- 9987, www.CVBSecuritiesSettlement.com, or email CVBSettlement@classactionadmin.com. Copies of the Notice and Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.CVBSecuritiesSettlement.com. If you are a member of the Settlement Class, in order to be potentially eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than April 18, 2017. If you are a Settlement Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than February 21, 2017, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be filed with the Court and delivered to Lead Counsel and Defendants' Counsel such that they are received no later than February 21, 2017, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, CVB, or its counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Timothy DeLange, Esq. Niki L. Mendoza, Esq. 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 (866) 648-2524 blbg@blbglaw.com Requests for the Notice and Claim Form should be made to: Barry R. Lloyd v. CVB Financial Corp., et al. c/o JND Class Action Administration P.O. Box 6847 Broomfield, CO 80021 1 (844) 620-9987 www.CVBSecuritiesSettlement.com CVBSettlement@classactionadmin.com By Order of the Court DIMORA RISTORANTE: Court Denies Class Certification in "Shala" -------------------------------------------------------------- The Hon. William J. Martini entered an order in the lawsuit styled DUKAGJIN SHALA, on behalf of himself and on behalf of all others similarly situated, the Plaintiff, v. DIMORA RISTORANTE, INC. et al., the Defendants, Case No. 2:16-cv-03064-WJM-MF (D.N.J.), denying without prejudice Plaintiff's motion for conditional certification of the Fair Labor Standards Act collective action. Defendants' motion to strike is granted without prejudice to Plaintiff's right to refile for conditional certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=gPJRVo84 DJNG INC: "Castaneda" Suit Moved from Super. Ct. to S.D. Cal. ------------------------------------------------------------- The class action lawsuit titled Erica Crystal Castaneda, on behalf of herself, all others similarly situated, and the general public, the Plaintiff, v. Djng, Inc., formerly known as European Wax Center, Inc., a Florida corporation; EWC Holdings, Inc., A Florida corporation; Franklin EWC, Inc., a California corporation and Does 1 through 20, inclusive , the Defendants, Case No. 37-02016- 00039903-CU-OE-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 case is assigned to Hon. Judge Marilyn L. Huff. The District Court Clerk assigned Case No. 3:16-cv-03083-H-MDD to the proceeding. European Wax Center is a major chain of hair removal salons in the United States. The Plaintiff is represented by: Beatrice Skye Resendes, Esq. LAW OFFICES OF RONALD A. MARRON APLC 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696 9006 Facsimile: (619) 564 6665 E-mail: skye@consumersadvocates.com The Defendant Franklin EWC, Inc. is represented by: Douglas G.A Johnston Jackson Lewis PC 50 California Street 9th Floor San Francisco, CA 94111 Telephone: (415) 394 9400 Facsimile: (415) 394 9401 E-mail: douglas.johnston@jacksonlewis.com DRILL GREEN: Faces "Williams" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Darryl Williams and Daemain Williams, on behalf of themselves individually and all others similarly situated v. Drill Green Petroleum Products Inc., Case No. 4:16-cv-03725 (S.D. Tex., December 23, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Drill Green Petroleum Products Inc. is engaged in the manufacture and distribution of drilling lubricants and soaps, drilling products, and production chemicals used to assist in the process of oil and gas drilling. The Plaintiff is represented by: Taft L. Foley II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Telephone: (832) 778-8182 Facsimile: (832) 778-8353 E-mail: Taft.Foley@thefoleylawfirm.com DURHAM PSBE: Joint Bid to Certify Classes Filed in "Cerrato" Suit ----------------------------------------------------------------- The parties in the lawsuit styled Liliam Bustillo Cerrato, Maria Juarez Regino, Yolanda Pavon Gonzalez, Guadalupe Rodriguez Luna, and Blanca Vasquez, on behalf of themselves and all others similarly situated v. Durham Public Schools Board of Education and SSC Service Solutions, Inc., Case No. 1:16-cv-01431-LCB-JLW (M.D.N.C.), jointly move the Court for an order certifying a plaintiff class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The Class is defined as: Any and all non-managerial employees employed by Integrity Facilities Management, Inc. ("Integrity") to work in Durham Public Schools pursuant to a contract between Durham Public Schools and SSC Service Solutions, Inc. ("Service Solutions") who do not expressly opt-out of the Rule 23 Class and: (1) worked fulltime between September 16, 2013, and November 5, 2014; or (2) worked part-time between October 16, 2014, through November 5, 2014. The Parties also jointly move the Court for an order certifying a collective action under the Fair Labor Standards Act. That Collective Action is defined as: Any and all non-managerial employees employed by Integrity to work in Durham Public Schools pursuant to a contract between Durham Public Schools and SSC Service Solutions, Inc. ("Service Solutions") who worked overtime between September 16, 2012, and November 5, 2014, and who sign or negotiate the settlement checks distributed pursuant to the Settlement Agreement. The Parties inform the Court that they have negotiated a settlement agreement in the action, which includes relief on a class-wide basis for Plaintiffs' claims under the North Carolina Wage and Hour Act and common law of contracts and on an opt-in basis for the Plaintiffs' claims under the FLSA. The Parties submit the Joint Motion pursuant to that settlement agreement. The Parties have submitted a Joint Motion for Preliminary Approval of Collective Action and Class Action Settlement prior to the filing of this Joint Motion. A copy of the Joint Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=pEOOzBqm The Plaintiffs are represented by: Carol Brooke, Esq. Clermont Fraser Ripley, Esq. NORTH CAROLINA JUSTICE CENTER PO Box 28068 Raleigh, NC 27611-8068 E-mail: carol@ncjustice.org clermont@ncjustice.org Defendant Durham Public Schools Board of Education is represented by: Eva Dubuisson, Esq. THARRINGTON SMITH LLP 150 Fayetteville St. Raleigh, NC 27601 Telephone: (919) 821-4711 Facsimile: (919) 829-1583 E-mail: edubuisson@tharringtonsmith.com Defendant SSC Service Solutions, Inc., is represented by: Kevin J. Dalton, Esq. FISHER & PHILLIPS LLP 227 West Trade Street, Suite 2020 Charlotte, NC 28202 Telephone: (704) 334-4565 Facsimile: (704) 334-9774 E-mail: kdalton@fisherphillips.com EHT PHARMACY: Court Terminates Centerville Clinics Class Suit ------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on December 22, 2016, in the case titled Centerville Clinics, Inc. v. EHT Pharmacy, LLC, d/b/a Curexa, et al., Case No. 1:16-cv-10536 (N.D. Ill.), relating to a hearing held before the Honorable Sharon Johnson Coleman. The minute entry states that: -- Pursuant to FRCvP 41(a)(1)(A)(i), Plaintiff voluntarily dismisses its individual claims without prejudice and without costs against Defendants EHT Pharmacy, LLC and Specialty Care RX Limited Liability Company; -- Plaintiff voluntarily dismisses its class claims against Defendants EHT Pharmacy, LLC and Specialty Care RX Limited Liability Company without prejudice and without costs; -- Plaintiff Centerville Clinics, Inc. voluntarily dismisses its claims against John Does 1-10 without prejudice and without costs; -- Status hearing set to January 20, 2017, is stricken; -- Plaintiff's motion to certify class is stricken as moot; and -- Civil case terminated. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=t8ByVe3P ELECTCHESTER MANAGEMENT: "Belvin" Suit Seeks Class Certification ---------------------------------------------------------------- In the lawsuit entitled MICHAEL BELVIN, NERY DUQUEGARCIA, DANIEL MACHADO, MICHAEL MAYERS, JORGE RESTREPO, MARCELINO REYES, ADRIANO TURBIGARCIA, and MANUEL VERA, individually and in behalf of all other persons similarly situated, the Plaintiffs, v. ELECTCHESTER MANAGEMENT LLC; FIRST HOUSING COMPANY, INC.; FOURTH HOUSING COMPANY, INC.; SECOND HOUSING COMPANY, INC.; THIRD HOUSING COMPANY, INC.; CHRISTOPHER ERICKSON; and GERALD FINKEL; jointly and severally, Defendants, Case No. 1:15-cv-04924-KAM-VMS (E.D.N.Y.), the Plaintiffs will move the Court, before the Hon. Kiyo A. Matsumoto, United States District Judge, for an order certifying a class action and approving and authorizing distribution of a notice of class action lawsuit to the putative class. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3HZ1gCmt The Plaintiffs are represented by: John M. Gurrieri, Esq. Brandon D. Sherr, Esq. Justin A. Zeller, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007-2036 Telephone: (212) 229 2249 Facsimile: (212) 229 2246 E-mail: jmgurrieri@zellerlegal.com bsherr@zellerlegal.com jazeller@zellerlegal.com ELIZABETH GRADY: Fails to Pay Employees Overtime, Suit Claims ------------------------------------------------------------- Maria Beauregard, on behalf of herself and others similarly situated v. Elizabeth Grady Face First, Inc. and John P. Walsh, Case No. 16-3679 (Mass. Cmmw., December 23, 2016), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants own and operate a skin care facility in Medford, Massachusetts. The Plaintiff is represented by: David B. Summer, Esq. CUTLER ASSOCIATES 100 State Street, Suite 900 Boston, MA 02109 Telephone: (617)695-0050 Facsimile: (617)695-0055 EMERGENCY SERVICES: Brantingham Seeks Certification of FLSA Class ----------------------------------------------------------------- In the lawsuit captioned JENNIFER BRANTINGHAM, for herself and all others similarly situated, the Plaintiff, v. EMERGENCY SERVICES, INC., the Defendant, Case No. 2:16-cv-01169-MHW-EPD (S.D. Ohio), Jennifer Brantingham move the Court for entry of an order pursuant to the Fair Labor Standards Act (FLSA): 1. conditionally certifying Plaintiff's proposed collective FLSA classes defined as: "all current and former Extenders employed by Defendant between December 13, 2013 and the present, who were paid on an hourly basis and who did not receive overtime payment at a rate of one and one-half times their regular rate of pay for all hours worked in a workweek in excess of 40"; 2. implementing a procedure whereby Court-approved Notice of Plaintiff's FLSA claims is sent (via U.S. Mail and e-mail) to Plaintiff's proposed class as set forth above; and 3. requiring Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs who worked for Defendant in the time frames specified by Plaintiffs. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=quCSXXgY The Plaintiff is represented by: Greg R. Mansell, Esq. Carrie J. Dyer, Esq. Mansell Law, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 610 4134 Facsimile: (513) 826 9311 E-mail: Greg.Mansell@Ohio-EmploymentLawyer.com Carrie.Dyer@Ohio-EmploymentLawyer.com - and - Rachel A. Sabo, Esq. Peter G. Friedmann, Esq. THE FRIEDMANN FIRM LLC 1457 S. High Street Columbus, OH 43207 Telephone: (614) 610 9757 Facsimile: (614) 737 9812 E-mail: Rachel@TFFLegal.com Pete@TFFLegal.com ERIC GARCETTI: Class Cert. in "Yagman" Denied as Premature ---------------------------------------------------------- In the lawsuit styled Stephen Yagman, the Plaintiff v. Eric Garcetti, et al., the Defendants, Case No. 2:16-cv-05944-GHK-E (C.D. Cal.), the Hon. George H. King entered an order denying without prejudice Plaintiff's motion for class certification. The Court said, "On October 3, 2016, we issued an order denying Plaintiff's first class certification motion as premature. We ordered Plaintiff to refrain from filing a class certification motion until the deadline set at the scheduling conference, which will take place after all Defendants have been properly served and have answered the Complaint or their defaults have been entered. A scheduling conference has been set for January 23, 2017. Plaintiff was prohibited from filing a class certification motion at least until after a deadline is set at the scheduling conference." "On December 12, 2016, Plaintiff filed the instant Motion in direct contravention of our October 3, 2016 Order. One of the central purposes of the scheduling conference is for the Court to have a rational conversation with the parties about the matters to be briefed and decided such that the case can proceed in an orderly and economical fashion. The seemingly haphazard manner in which Plaintiff has filed both of his class certification motions disrupts this purpose and needlessly distracts from the merits of the case, ultimately prejudicing the parties and draining the Court's resources. Because the Motion is premature and violates our October 3, 2016 Order, Plaintiff shall not file a motion for class certification prior to the scheduling conference in this case. Once the parties have attended the scheduling conference, the parties shall file motions as set forth in the schedule approved by the Court." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=fj8w1TY2 ET & K FOODS: Faces "Santos" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Gustavo Santos, on behalf of himself and all other similarly situated employees v. ET & K Foods Inc. d/b/a Met Foods and Bet-Er By Far Meats Inc. d/b/a Met Foods and Thomas Kaller, Case No. 1:16-cv-07107 (E.D.N.Y., December 23, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate grocery stores in Brooklyn, New York. The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, Suite 307 New York, NY 10007 Telephone: (212) 323-6980 E-mail: jaronauer@aronauerlaw.com FACEBOOK INC: Faces Class Action Over Biometric Data ---------------------------------------------------- Charline Nash, writing for Breitbart Tech, reports that a class action lawsuit has been filed against Facebook claiming that the social network violates Illinois state law by holding biometric data of its users and keeping faces on file for recognition purposes. "Facebook is the largest social network in the United States and likely the world. Facebook has previously been alleged to abuse consumers' privacy rights," claimed the class-action complaint against Facebook. "Plaintiff brings this class action to put an end to Facebook's latest privacy abuse -- its collection, storage, and subsequent use of its users' biometric identifiers and biometric information without informed consent, in direct contravention of the BIPA." "In direct violation of all three prongs of Sec.15(b) of the BIPA [Biometric Information Privacy Act], Facebook is actively collecting, storing, and using the biometric information of its reportedly more than one billion users without any written notice or informed written consent, including millions of Illinois residents," continued the document. "Specifically, sometime in late 2010, Facebook began implementing its 'tag suggestion' feature ('Tag Suggestions'), which utilizes sophisticated facial recognition software to automatically match pictures with names." Facebook's software collects, analyzes and compares the facial features in user-uploaded photographs and saves what is known as a "face template" in Facebook's database. When a user uploads a photograph, Facebook's Tag Suggestions compares the faces of any individual in that photograph to the face templates in the Facebook database. If there is a match, Facebook suggests that the user "tag" the person in the photograph with the appropriate name. Facebook's facial template database is so large that it dwarfs the FBI's Indeed, at a hearing before the U.S. Senate on Capitol Hill in 2012, Senator Al Franken described Facebook as the "world's largest privately held database of face prints -- without the explicit consent of its users." In a report by IEEE Spectrum, the magazine explained, "The Biometric Information Privacy Act (BIPA) sets limits on how companies can store and use people's biometric identifiers, which the law defines as fingerprints, voiceprints, retina or iris scans, and scans of hand or face geometry." "The case is scheduled for trial this October, and similar Illinois-based lawsuits are proceeding against Google and Snapchat," they continued. "In the upcoming year, the courts will host a debate over who can keep our faces on file." FALONI & ASSOCIATES: "Maldonado" Case Settlement Approval Sought ---------------------------------------------------------------- In the lawsuit captioned ALFREDO MALDONADO and BORIS CONTRERAS, on behalf of themselves and those similarly situated, the Plaintiffs, v. LAW OFFICES OF FALONI & ASSOCIATES, LLC, et al., the Defendants, Case No. 2:15-cv-02859-CLW (D.N.J.), the Plaintiffs ask the Court for an order certifying the case to proceed as a class action, and granting preliminary approval of the settlement, on behalf of the following class: "all Consumers who reside in the State of New Jersey to whom Law Offices of Faloni & Associates, LLC mailed a written communication during the period beginning April 23, 2014, and ending April 23, 2015, in an attempt to collect a debt on behalf of LVNV Funding LLC and arising out of a HSBC Bank Nevada, N.A. account, which were mailed in a windowed envelope such that the file/reference number, registration code, or identification number associated with the debt was visible from the outside of the envelope". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=VCiBK0em The Plaintiffs are represented by: Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Avenue, Suite 200 Hackensack, NJ 07601 Telephone: (201) 273 7117 - and - Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1325 Telephone: (973) 379 7500 FORD MOTOR: Court Refuses to Certify 3 Classes in "Philips" Suit ---------------------------------------------------------------- The Hon. Lucy H. Koh denies the Plaintiffs' motion for class certification filed in the lawsuit captioned WILLIAM PHILIPS, et al. v. FORD MOTOR COMPANY, Case No. 5:14-cv-02989-LHK (N.D. Cal.). The Court finds that although the Plaintiffs have satisfied all of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, the Plaintiffs have not satisfied the requirements of Rule 23(b)(2) with respect to the proposed Current Owner/Lessee Class and have not satisfied the requirements of Rule 23(b)(3) with respect to the proposed New Vehicle Class or the proposed Out-of-Pocket Class. In their complaint, Plaintiffs William Philips, Jaime Goodman, and Alison Colburn allege that certain of the Defendants' Ford Fusion and Ford Focus vehicles are equipped with a defective electronic power assisted steering system. In their motion for class certification, the Plaintiffs move to certify three classes: (1) New Vehicle Class: All residents of California who, at any time, purchased or leased a new 2010-2012 Ford Fusion or 2012-2014 Ford Focus vehicle from Ford Motor Company or through a Ford Motor Company dealership; (2) Out-of-Pocket Class: All residents of California who incurred expenses in connection with the diagnosis, repair, or replacement of the Electronic Power Assisted Steering system in a 2010-2012 Ford Fusion or 2012-2014 Ford Focus vehicle; and (3) Current Owner/Lessee Class: All residents of California who currently own or lease a 2010-2012 Ford Fusion or 2012- 2014 Ford Focus vehicle. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Q738Zwiy FREEDOM MORTGAGE: "Atis" Suit Trimmed, FLSA Class Certified ----------------------------------------------------------- In the lawsuit titled David ATIS, on behalf of himself and those similarly situated, the Plaintiff, v. FREEDOM MORTGAGE CORPORATION, the Defendant(s), Case No. 1:15-cv-03424-RBK-JS (D.N.J.), the Hon. Robert B. Kugler entered an order: 1. granting Defendant's motion to dismiss claims under the New Jersey Wage and Payment Act (NJWPL); 2. dismissing NJWPL claims with prejudice; 3. grating Plaintiff's motion for conditional class certification under the Fair Labor Standards Act only as to the following national class of: "all persons who are or were employed by Freedom Mortgage Corporation as an Assistant Vice President of Sales in New Jersey on or after May 15, 2013, classified as exempt, and not paid overtime compensation for each hour worked beyond 40 hours in a workweek"; 4. directing parties to file a joint, proposed notice for the Court's approval within 21 days of entry of the order; 5. granting in part Plaintiff's motion for class certification under Federal Rules of Civil Procedure 23(b)(3) and 23(b)(2) only as to the following of New Jersey class of: "all persons who are or were employed by Freedom Mortgage Corporation as an Assistant Vice President of Sales in any of its offices during the three years prior to the date of notice, classified as exempt, and not paid overtime compensation for each hour worked beyond 40 hours in a workweek. 6. defining class claims or issues as whether Defendant violated the New Jersey Wage and Hour Law by misclassifying the Assistant Vice President of Sales (AVP) position as exempt and failing to pay AVPs overtime compensation; 7. appointing Swartz Swidler, LLC as class counsel; 8. directing parties to file a joint, proposed notice in accordance with Rule 23(c)(2) for the Court's approval within 21 days of entry of the Order; and 9. denying without prejudice Plaintiff's motion to seal and directing Plaintiff to file the exhibits to its motion for class certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=BSZWogw6 GENWORTH FINANCIAL: Leifer, et al. Sue to Keep Insurance Reserves ----------------------------------------------------------------- ERIKA LEIFER, SAUL JACOBS, and HELENE WENZEL, individually, and on behalf of all others similarly situated, Plaintiffs, v. GENWORTH FINANCIAL, INC., GENWORTH LIFE INSURANCE COMPANY, GENWORTH LIFE INSURANCE COMPANY OF NEW YORK, MICHAEL D. FRAZIER, THOMAS J. MCINERNEY, PATRICK B. KELLEHER, and MARTIN P. KLEIN, Defendants, Case No. 3:16-cv-01008-JAG (E.D. Va., December 28, 2016), arises out of the Defendants' alleged deliberate misconduct in wrongfully depleting needed policy reserves -- which is the portion of an insurer's revenue held aside to pay future claims. GENWORTH FINANCIAL, INC.'s business is divided into two divisions: Global Mortgage and U.S. Life Insurance. The Company's U.S. Life Insurance Division includes its LTC insurance business unit. The Plaintiffs are represented by: Kristi C. Kelly, Esq. KELLY & CRANDALL, PLC 4084 University Drive, Suite 202a Fairfax, VA 22030 Phone: (703) 424-7570 Fax: (703) 591-0167 E-mail: kkelly@kellyandcrandall.com - and - Brian D. Penny, Esq. Paul J. Scarlato, Esq. GOLDMAN SCARLATO & PENNY, P.C. 161 Washington Ave, Suite 1025 Conshohocken, PA 19428 Phone: (484) 342-0700 Fax: (484) 580-8747 E-mail: penny@lawgsp.com scarlato@lawgsp.com - and - Shanon J. Carson, Esq. Glen L. Abramson, Esq. Peter R. Kahana, Esq. Lane L. Vines, Esq. Patrick F. Madden, Esq. Y. Michael Twersky, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Phone: (215) 875-3000 Fax: (215) 875-4604 E-mail: scarson@bm.net gabramson@bm.net pkhana@bm.net lvines@bm.net pmadden@bm.net mitwersky@bm.net GOOGLE INC: CEI Objects to $5.5MM Class Action Settlement --------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a public-interest law firm that represents class members against unfair class action procedures and settlements has filed an objection to a $5.5 million settlement with Google Inc. over allegations that the search engine giant circumvented web browser privacy settings. The Competitive Enterprise Institute's Center for Class Action Fairness filed its objection in the U.S. District Court for the District of Delaware late last month. The center argues in its filing that class members "will see not one penny." "This settlement exemplifies the problem of class action attorneys behaving as if they have no clients other than the general public," CEI Attorney Adam Schulman said in a statement. "It is unacceptable to propose a settlement that waives class members' rights yet provides them absolutely nothing in return." Plaintiffs in the class action sued Google for alleged federal privacy violations over the company's circumvention of Apple's Safari browser users' privacy settings -- in particular, that Google circumvented the web browser's default privacy settings without consumers' knowledge and consent to allow advertisers to set third-party cookies on their browsers. According to the center's filing, class counsel negotiated a settlement that provided zero dollars to class members and $5.5 million to be divided between class counsel and third-party charities. One of those charities, the center argues, is a nonprofit with direct ties to class counsel. Several others are charities to which Google routinely donates, the center points out. "The entire net settlement fund will go third-party 'cy pres' recipients, even though it would be possible to allow class members to recover through a claims-made process and/or a sampling lottery method," attorneys for the center wrote in the motion, filed Dec. 20. "Under Third Circuit law, this arrangement is unacceptable." Under terms of the proposed settlement, Google will make cy pres payments to the Berkeley Center for Law and Technology, the Berkman Center for Internet and Society at Harvard University, the Center for Democracy and Technology, Public Counsel, Privacy Rights Clearinghouse and the Stanford Center for Internet and Society. According to a motion filed by class counsel Dec. 7, counsel is seeking $2,497,000 in fees and expenses, paid from the settlement fund. It also asked the court to award $1,000 per class representative as an incentive award for their efforts on behalf of the class. The plaintiffs are represented by Stephen G. Grygiel -- sgrygiel@mdattorney.com -- of Silverman Thompson Slutkin White, Brian R. Strange -- bstrange@strangeandbutler.com -- of Strange & Butler and James P. Frickleton -- jimf@bflawfirm.com -- Mary D. Winter -- mwinter@bflawfirm.com -- and Edward D. Robertson Jr. -- crobertson@bflawfirm.com -- of Bartimus Frickleton & Robertson PC, among others. "Preexisting relationships with the defendant undermine the value of the settlement to the class, because the cy pres then is merely a change in accounting entries rather than a change in conduct," the center argues in its objection. "Preexisting relationships with class counsel qualify as improper conflicts of interest. These defects render the settlement substantively unfair." But class counsel, in a memorandum filed Dec. 7 along with the plaintiffs' motion for final approval of the settlement, argue the proposed deal is the result of "extensive, arm's-length negotiations between experienced counsel." "The Settlement confers substantial benefits upon Class Members, particularly in light of the potential recovery provable at trial and given the costs, uncertainties, delays, and other risks associated with continued litigation, trial, and/or appeal," class counsel wrote. According to its memorandum, class counsel would respond to any objections by Jan. 4. A fairness hearing is set for Jan. 11. Numerous lawsuits were filed in various federal courts against Google in early 2012, after the company's alleged actions were made public. The lawsuits were centralized and transferred to the District of Delaware in June 2012. In January 2013, Google filed a motion to dismiss all claims against it. In October 2013, the Delaware federal court granted the motion in its entirety. Plaintiffs appealed the order and in November 2015, the U.S. Court of Appeals for the Third Circuit vacated the dismissal of two of the plaintiffs' state law claims, affirmed the dismissal of the plaintiffs' other claims, and remanded the case to District of Delaware for further consideration. Plaintiffs also filed a petition for a writ of certiorari with the U.S. Supreme Court in March 2016, seeking review of the Third Circuit's affirmed dismissal of some of the plaintiffs' claims. Google and the other defendants waived their right to respond to the petition. In May, the Supreme Court requested that Google and the other defendants respond to the petition -- a rare order from the nation's highest court. Google notified the Supreme Court of its settlement with the plaintiffs and of its intent not to respond to the petition unless specifically requested to do so despite its settlement. The other defendants responded to the petition in August. Ultimately, in October, the Supreme Court denied the plaintiffs' petition. Meanwhile, class counsel and counsel for Google participated in mediation before retired Judge Layn R. Phillips. The plaintiffs and Google agreed to the basic terms of the settlement agreement in June. Judge Sue L. Robinson preliminarily approved the deal in August. Google, which continues to deny all allegations of wrongdoing, reached a $17 million multi-state settlement over similar allegations in November 2013. GORDO TAQUERIA: Faces Class Action Over Unpaid Overtime Wages ------------------------------------------------------------- Gordon Gibb, writing for LawyersandSettlements.com, reports that an overtime pay lawsuit in California that seeks class action status was filed just before Christmas by a plaintiff who alleges his employer stiffed him on wages as well as tips. According to The San Francisco Chronicle, plaintiff Jose Martinez is a former kitchen worker at the Gordo Taqueria chain, a Mexican fast food enterprise with locations throughout the East Bay and San Francisco. In an interview with The San Francisco Chronicle, the Spanish-speaking Martinez claimed that the restaurant at which he worked from 2013 through 2015 distributed tip monies to its tipped employees as infrequently as once per year. California law dictates that tipped employees are to receive tips collected on their behalf no later than the next regular payday. A lump-sum at the end of the year is against the law, noted Mana Barari, a senior staff attorney with the wage protection program at the Legal Aid Society, which is representing Martinez in the dispute. Mr. Martinez speaks little English. His wife attended the interview with The San Francisco Chronicle to interpret for him. "I was counting on the tips -- that would have helped me put gas in my car, get something to eat daily and for daily necessities," Martinez said in Spanish. "When I paid my rent, I was very, very limited after that." Mr. Martinez also asserts in his unpaid overtime lawsuit that hourly workers were paid regular hourly wages -- with no provision for overtime pay -- regardless of the number of hours worked in any given work day, or work week. Overtime pay laws afford strict guidance on when an hourly employee is to receive overtime. Working off the clock, either before or after a shift, or missed meal periods and rest breaks can all be translated into unpaid overtime according to the tenets of California overtime law. "We hope this case raises awareness around how tips should be handled and paid, both for the many low-wage workers in the service industry who rely on them, but also for customers who assume their tips will end up in the right hands," Barari said. Mr. Martinez, who worked as a prep cook at a Gordo Taqueria for a period of two years, filed his unpaid overtime class action December 26 at Alameda County Superior Court. Case information was not available. Earlier in the month, in an unrelated unpaid overtime case, a class action lawsuit against Costco Wholesale Corp. was settled when the defendant agreed to a $2 million settlement. Class members were comprised of current or former fleet drivers who alleged, through lead plaintiff Douglas Thompson that Costco failed to pay their drivers overtime wages, as well as meal break and other wages. Mr. Thompson urged the judge in the case, US District Judge Cathy Ann Bencivengo, to approve the settlement, which will see some 882 proposed class members awarded just under $1,500 each. Drivers were, or are employed with Costco business centers or depots in the Golden State. "Plaintiff and his counsel have determined that the settlement set forth in the agreement is a fair, adequate and reasonable settlement, and is in the best interests of plaintiff and the settlement class," the proposed class said. The case is Douglas Thompson et al. v. Costco Wholesale Corp., Case No. 14-cv-2778, in the US District Court for the Southern District of California. GREENSKY LLC: Class Certification Sought in "Alfortish" Suit ------------------------------------------------------------ In the lawsuit captioned Todd Alfortish and Sylvia Alfortish, Individually and on Behalf of All Similarly Situated, the Plaintiffs, v. GREENSKY, LLC and SUNTRUST BANK, INC, the Defendants, Case No. 2:16-cv-15084-ILRL-JVM (E.D. La.), the Plaintiffs ask the Court to certify a class of: "all Louisiana residents who entered into finance agreements (bridge loans) with GreenSky as a result of purchasing solar energy systems from Solar Companies and who were denied the solar energy state income tax credit." The Plaintiffs further ask the Court to: a. appoint Lawrence J. Centolla III, and Jason Z. Landry from Martzell, Bickford & Centola, APC; Joshua Rubenstein from Scheueman & Jones LLC; Calvin Fayard, Jr. and D. Blayne Honeycutt from Fayard & Honeycutt; and Heidi Mabile Gould as class counsel; and b. appoint Todd Alfortish, Sylvia Alfortish, and James Fincher as class representative. According to the lawsuit, the Solar Companies, acting as Greensky's agent, induced Plaintiffs into purchasing solar systems by offering financing agreements which were represented as "interest free" bridge loans for a period of 18 months, purportedly designed to act like gap financing in order to allow Plaintiffs enough time to file their tax returns and receive their state income tax credits to satisfy the loans in full before they would ever have to pay any interest. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=iMbgzXUi The Plaintiffs are represented by: Lawrence J. Centola III, Esq. Jason Z. Landry, Esq. MARTZELI, BICKFORD & CENTOLA 338 Lafayette Street New Orleans, LA 70130 Telephone: (504) 581 9065 Facsimile: (504) 581 7635 E-mail: lcentora@mbfirm.com jzl@mbfirm.com - and - Heidi Mabile Gould, Esq. 146 W. Livingstone Place Metairie, LA 70005 Telephone: (985) 413 8829 Facsimile: (504) 835 7458 E-mail: heidigould@me.com - and - Joshua L. Rubenstein, Esq. SCEUERMANN & JONES, LLC 701 Poydras Street, Suite 4100 New Orleans, LA 70139 Telephone: (504) 525 4361 E-mail: jrubenstein@nola-law.com - and - Calvin Fayard Jr., Esq. D. Blayne Honeycutt, Esq. FAYARD & HONEYCUTT 519 Florida St., SW Denham Springs, LA 70726 E-mail: dbhoneycutt@fayardlaw.com HARALAMBOS BEVERAGE: Sued Over Failure to Provide Meal Break ------------------------------------------------------------ Pierre Atme, individually and on behalf of all others similarly situated employees v. Haralambos Beverage Co. and Does 1 through 100, inclusive, Case No. BC645032 (Cal. Super. Ct., December 23, 2016), is brought against the Defendants for failure to pay compensation for missed statutory meal and rest periods. Haralambos Beverage Co. owns and operates a pick-up and delivery service company in California. The Plaintiff is represented by: Isam C. Khoury, Esq. Michael D. Singer, Esq. Jeff Geraci, Esq. COHELAN KHOURY & SINGER 1605 C Street, Suite 200 San Diego, CA 92101 Telephone: (619) 595-3001 Facsimile: (619) 595-3000 E-mail: ikhoury@ckslaw.com msinger@ckslaw.com jgeraci@ckslaw.com - and - Sahag Majarian II, Esq. LAW OFFICES OF SAHAG MAJARIAN 18250 Ventura Blvd. Tarzana, CA 91356 Telephone: (818) 609-0807 Facsimile: (818) 609 HEALTH RESOURCE: "Brown" Suit Seeks Certification of FLSA Class --------------------------------------------------------------- In the lawsuit titled MONIQUE BROWN, on behalf of herself, individually, and on behalf of all others similarly situated, the Plaintiff, v. HEALTH RESOURCE SOLUTIONS, INC., GLENN STEIGBIGEL, and ROBERT MIKULAK, the Defendants, Case No. 1:16-cv-10667 (N.D. Ill.), the Plaintiffs ask the Court for conditional class certification pursuant to the Fair Labor Standards Act (FLSA) of: "all Clinicians who were classified as exempt, were paid on a hybrid "per visit" and hourly basis, were not paid overtime compensation for time worked in excess of 40 hours in given workweeks, and who worked for Defendants dating back three years from the date of notice until the present (FLSA Class)." The Plaintiffs further ask the Court to: a. order court-facilitated notice of the collective action to the FLSA Class; b. order Defendants to produce a computer-readable data file containing the names, addresses, email addresses, telephone numbers, dates of employment, social security numbers, and dates of birth of the FLSA Class; c. order the posting of the Notice at a location in Defendants' office where members of the FLSA Class are likely to view it; and d. authorize Plaintiffs to send a notice, at their expense, by U.S. First Class mail and email to all members of the FLSA Class to inform them of their right to opt-in to the lawsuit and a reminder notice 15 days before the end of the opt-in period. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UjeQoTM9 The Plaintiffs are represented by: James B. Zouras, Esq. Ryan F. Stephan, Esq. Teresa M. Becvar, Esq. Haley R. Jenkins, Esq. STEPHAN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233 1550 Facsimile: (312) 233 1560 E-mail: jzouras@stephanzouras.com rstephan@stephanzouras.com tbecvar@stephanzouras.com hjenkins@stephanzouras.com HERSHEY'S: Seeks Dismissal of Kisses Packaging Class Action ----------------------------------------------------------- Shanice Harris, writing for Legal Newsline, reports that Hershey's plans to seek dismissal of a class action lawsuit filed against it complaining about the number of Kisses in its packaging. The lawsuit was filed in New York federal court on Sept. 20. Plaintiff Christopher Huppert claims Hershey's falsely advertises the amount of certain flavors of Hershey Kisses contained in allegedly 12-ounce bags. His argument is that some bags -- particularly the almond-filled Kisses -- contain less than 12 ounces, even though they are sold at the same price. He alleges that this is in violation of New York's Consumer Protection Act and that the company has reduced the number of Kisses in their "Classic Bags" Hershey's is claiming there is no merit to Mr. Huppert's claims and that it is in full compliance with all state and federal laws. Presiding Judge Cathy Seibel granted Hershey's an extension to respond to the lawsuit, which it did on Nov. 22 in a letter in anticipation of a pre-motion conference that has been postponed to Jan. 11. According to the letter Hershey filed with the court, it will seek dismissal of the complaint on three principal grounds. First, the claims are allegedly preempted by the federal Food, Drug and Cosmetic Act. The complaint does not, and cannot, allege that Hershey has not complied with the federal Food and Drug Administration's net- weight requirement, the company says. Mr. Huppert wants to impose an additional requirement -- that similarly sized bags must always contain the same weight -- but currently, there is no existing requirement under the Food, Drug and Cosmetic Act, the company says. Second, the claims are barred by New York's General Business Law, which provide a safe harbor in situations in which the alleged behavior complies with federal law, the company says. Third, Hershey's claims the plaintiff's claims are null and void because the complaint does not allege a materially misleading practice, as is required to state a claim. To qualify, an act or advertisement must be likely to mislead a reasonable consumer acting reasonably under the circumstance, the company says. "In any event, no reasonable consumer would be misled to think that the three' Classic Bags" -- each of which bears its own color scheme and style of candy wrappers, and each of which includes a conspicuous statement of the package's net weight -- contain the exact same amount of chocolate," wrote Steven Zalesin, of Patterson Belknap Webb & Tyler. "No reasonable consumer would draw a conclusion about the packages' net weight based solely on the 'Classic Bag' insignia without looking at other elements, including the prominent net- weight disclosures." The complaint alleged the company engaged in a deceptive business practice that has the "capacity, tendency and effect" of deceiving reasonable consumers. "Defendant has engaged in a systematic course of misrepresenting the products to consumers," the complaint says. The plaintiff claims the packaging violates section 349 of the New York General Business Law. Mr. Huppert also claims that Hershey's violates New York's section 350 of General Business Law, which defines false advertising as "advertising, including labeling, of a commodity, or of the kind, character, terms or conditions of any employment opportunity if such advertising is misleading in a material respect." Mr. Huppert's lawsuit includes prospective class members who are seeking to recover their actual damages, or $50 for each alleged violation. Mr. Huppert is also seeking triple damages and attorneys fees. Mr. Huppert is represented by Jeffery I. Carton -- jcarton@denleacarton.com -- and Robert J. Berg -- rberg@denleacarton.com -- of Denlea & Carton LLP in New York. HOANG AN: Faces Class Action Over Unpaid Overtime Wages ------------------------------------------------------- Michael Abella, writing for Louisiana Record, reports that a cook has filed a class-action lawsuit against his former Metairie-based employer over allegations he was not paid overtime wages. Edgar Colorado filed a complaint on behalf of individually and on behalf of all other similarly situated on Dec. 9 in the U.S. District Court for the Eastern District of Louisiana against the Hoang An Inc., doing business as Broad & Banks Seafood, and Phuoc Van Nguyen alleging that they willfully violated the Fair Labor Standards Act. According to the complaint, the plaintiff alleges that while he was working for the defendants between March 2006 and September 2016, he did not receive overtime wages. The plaintiff holds Hoang An Inc., doing business as Broad & Banks Seafood, and Nguyen responsible because the defendants allegedly treated him as exempt from the FLSA's overtime requirements and never paid him overtime compensation at the rate of one-and-a-half times his hourly rate for all hours worked in excess of 40 hours a workweek. The plaintiff requests a trial by jury and seeks an order certifying this case as a collective action, award for unpaid wages, plus interest, liquidated damages, attorneys' fees and cost and such other just and equitable relief. He is represented by Roberto Luis Costales and Emily A. Westermeier of The Costales Law Office in New Orleans and William H. Beaumont of Law Office of William H. Beaumont in New Orleans. U.S. District Court for the Eastern District of Louisiana Case number 2:16-cv-17017 HYLAND'S INC: Faces Class Action Over Teething Tablets in N.Y. -------------------------------------------------------------- Bernstein Liebhard LLP on Jan. 3 disclosed that a teething tablets lawsuit has been filed on behalf of consumers who purchased homeopathic remedies that were recently the subject of a U.S. Food & Drug Administration (FDA) safety warning. The class action complaint, which is currently pending in the U.S. District Court, Southern District of New York, accuses Hyland's Inc., and other defendants of marketing useless and unsafe teething pills and gels. While the FDA's alert resulted in the voluntary withdrawal of the products from store shelves, plaintiffs say they were never offered refunds for their purchases. (Case No. 7:16-cv-08687-KMK) "Our Firm has heard from a number of consumers who believe their children may have been harmed by homeopathic teething remedies, so this filing is not surprising. Our attorneys are investigating potential legal claims involving injuries that may be associated with these products, including teething tablets-related seizures and deaths," says Sandy A. Liebhard, a partner at Bernstein Liebhard LLP, a nationwide law firm representing victims of defective drugs and medical devices. The Firm is now offering free, no-obligation legal reviews to families who are interested in pursuing a teething tablets lawsuit on behalf of an injured child. FDA Teething Tablets Warnings In September 2016, the FDA warned parents and caregivers not to use homeopathic tablets or gels to treat teething pain in infants and children. It was subsequently revealed that these products, which include medications marketed by Hyland's, Baby Orajel Naturals and others, could be linked to more than 400 adverse events reported to the agency since 2010, including 10 infant deaths. The FDA also noted that the health benefits purportedly associated with homeopathic teething remedies remain unproven. Consumers who have purchased these products should seek medical attention for their child if they experience any of the following reactions after use: -- Difficulty breathing -- Lethargy -- Excessive sleepiness -- Muscle weakness -- Skin flushing -- Constipation -- Difficulty urinating -- Agitation The FDA warning prompted CVS to remove all homeopathic teething tablets and gels from its store shelves. Hyland's subsequently announced that it would stop marketing its teething remedies in the U.S. In 2010, the same company announced a teething tablets recall, after its products were linked to a number of adverse events typical of belladonna toxicity. Testing suggested that the pills contained inconsistent amounts of this ingredient, which can be poisonous if ingested in large amounts. On November 24, 2016, Raritan Pharmaceuticals announced a recall of its homeopathic teething tablets and ear pain liquids after tests suggested they might also contain varying amounts of belladonna. To date, the Raritan medications have not been linked to any reported injuries. Children who suffered complications allegedly related to homeopathic teething medications may be entitled to compensation for injury-related damages. To contact a teething tablets lawyer today, please visit Bernstein Liebhard LLP's website, or call 800- 511-5092 to arrange for a free, no obligation review of your potential case. About Bernstein Liebhard LLP Bernstein Liebhard LLP is a New York-based law firm exclusively representing injured persons in complex individual and class action lawsuits nationwide since 1993. HYUNDAI MOTOR: Panoramic Sunroof Class Action Can Proceed --------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Hyundai panoramic sunroof lawsuit will continue after a federal judge shot down a motion by Hyundai to toss claims made by the plaintiffs. The lawsuit alleges the automaker has known about exploding panoramic sunroofs for years but concealed the defects from consumers. Plaintiff Billy Glenn filed the Hyundai exploding sunroof lawsuit in 2015 after the glass in his 2014 Santa Fe Sport allegedly exploded and had to be replaced, just for the replacement sunroof to also shatter. The plaintiffs include owners from six states who claim Hyundai ignored consumer complaints so the automaker could make money from selling the vehicles. Those models include the 2011-2015 Tucson, Sonata and Veloster, and the 2013-2015 Santa Fe, Santa Fe Sport and Elantra GT. The owners say if they would have known about the exploding sunroofs, they would not have bought the vehicles, at least not for the price they paid. The judge previously threw out some claims concerning unfair profit but allowed fraud claims to continue. Hyundai then asked the judge to whittle down the lawsuit even more by throwing out claims based on unjust enrichment, a request denied by the court. Hyundai also argued claims of an owner who said the vehicle was unmerchantable within the warranty period should be tossed, but the judge denied the request. Hyundai, like other automakers, has suffered from the problem of exploding sunroofs in the past, including in October 2012 when the National Highway Traffic Safety Administration opened an investigation into exploding sunroofs in the Hyundai Veloster. In December 2012, Hyundai recalled the Velosters to replace the sunroofs, blaming the problem on glass that may have been damaged during mechanical installation at the factory. Then in February 2013, the recall was expanded to include additional Veloster cars. The Hyundai panoramic sunroof lawsuit was filed in the U.S. District Court for the Central District of California -- Billy Glenn v. Hyundai Motor America et al. The plaintiffs are represented by the Gibbs Law Group LLP, and Tousley Brain Stephens PLLC. CarComplaints.com has owner-reported complaints about the Hyundai vehicles named in the panoramic sunroof lawsuit: -- Hyundai Sonata -- Hyundai Tucson -- Hyundai Veloster -- Hyundai Elantra GT -- Hyundai Santa Fe HYUNDAI MOTOR: Judge to Approve Sonata Class Action Settlement -------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Hyundai Sonata class-action lawsuit will receive final approval after U.S. District Judge Beth Labson Freeman said she sees no problem with the settlement terms and believes the agreement is excellent for Sonata owners. The Hyundai Sonata class-action lawsuit was filed by Elizabeth Mendoza, who purchased a 2011 Hyundai Sonata in 2012 and by October 2014, she started hearing a loud knocking noise coming from the engine. A dealer told Mendoza the Sonata had a blown piston and the repairs wouldn't be covered under warranty, leaving her holding the bill of $4,500. The plaintiff says she finally had the Theta II engine replaced by an independent mechanic for $3,000. The class-action lawsuit alleges Hyundai knew the engines were failing due to metal debris in the oil damaging the connecting rod bearings but refused to acknowledge the defects. The plaintiff claims a big reason the automaker ignores the problems is because the engines typically fail after the warranties expire, leaving owners with the repair costs. Mentioned in the Sonata class-action lawsuit is a 2015 recall Hyundai ordered for 2011-2012 Sonata cars to repair engines problems that could cause engine fires and failures. The recall included Sonatas with 2-liter and 2.4-liter engines that were affected by metal debris ruining the connecting rods. Hyundai said the engine crankshaft is cleaned to remove metallic debris, but if the debris is not completely removed from the crankshaft's oil passages, it can be forced into the connecting rod oiling passages and restrict oil flow to the bearings. Those bearings are cooled by oil flow and a reduction in the flow of oil may raise bearing temperatures, increasing the potential of premature bearing wear. A worn connecting rod bearing will make a metallic knocking noise from the engine which increases as the engine rpm increases and may also result in illumination of the oil pressure light, letting Sonata owners know there are problems somewhere. The end result will be an engine catching on fire or stalling on the road. The 2011 Hyundai Sonata was the first Hyundai vehicle to use an engine manufactured in Hyundai's Alabama engine factory. Hyundai first used a mechanical deburring process to remove machining debris from the crankshaft but changed to a high pressure "wet blast" process to remove metallic debris. It wasn't long before Hyundai became aware of engine-related warranty claims after owners complained about loud noises coming from the engines or about seeing the vehicle's check engine light. The Sonata class-action lawsuit notes Hyundai initially refused to recall the cars and finally issued a recall only after pressure from the National Highway Traffic Safety Administration. The Hyundai Sonata class-action engine lawsuit settlement will help owners in a few ways. First, the cars included in the settlement are 2011-2014 Sonatas equipped with 2-liter or 2.4- liter Theta II engines. Second, Hyundai will pay the costs for repairs or replacements of the Theta II engines and reimburse owners for rental cars and towing expenses. Hyundai is also expanding the warranties on the cars from 5 years/60,000 miles to 10 years/120,000 miles, and if the Sonata has more than 120,000 miles on it, Hyundai will give owners 90 days to get the cars to dealerships for repairs. Hyundai says it has already spent more than $8.5 million fixing cars as part of the class-action settlement and expects to pay much more by the end. Not everyone is happy with the settlement terms as more than 200 Sonata owners opted out of the agreement so far, leaving those owners the right to proceed with their own legal options. The Hyundai Sonata class-action lawsuit was filed in the U.S. District Court for the Northern District of California -- Mendoza v. Hyundai Motor Co. Ltd., et al. The plaintiffs are represented by the Gibbs Law Group LLP, and McCuneWright LLP. ILLINOIS: Class Action Over Autism Medicaid Coverage Pending ------------------------------------------------------------ Dean Olsen, writing for The Courier, reports that Kristen Abbott credited an expensive treatment known as "applied behavior analysis" therapy for helping keep her daughter's emotional and intellectual development on a relatively even keel. And Ms. Abbott is thankful the therapy has been provided at no out-of- pocket cost to her the past two years from The Autism Clinic at Hope Institute for Children and Families. "She is doing absolutely tremendous," said Ms. Abbott, 27, a single parent who works full time as a radiologic technologist. "You can't even tell she has autism." But because of changes to the state's Medicaid program in central Illinois that took effect Jan. 1, Schroeder and about a dozen other Springfield-area children could face more financial barriers to receiving life-changing ABA therapy, advocates for people with autism say. The loss of the state's only Medicaid managed-care plan willing to pay for ABA therapy is just the latest financial hit for the Springfield-based Autism Program of Illinois, the parent organization of the Autism Clinic. Facing uncertain funding and an ongoing state budget crisis that cut off services for dozens of Springfield-area children and hundreds statewide in 2015 and 2016, The Autism Program now is worried that the recent cutoff of certain Medicaid managed-care funding will stretch its resources even thinner. The not-for-profit program will try to continue ABA services for the dozen or so families that had benefited from the payments provided by Health Alliance Connect after the Medicaid managed- care plan stopped operating Jan. 1, according to Leigh Grannan, Autism Clinic director. But the Autism Clinic had to stop serving all other Medicaid- covered clients from August 2015 until October 2016 because of a lack of state funding related to the budget crisis. Mr. Grannan worries that the clinic may be setting up these dozen families for more disappointment if The Autism Program's state funding isn't renewed in summer 2017 and the program is forced to make a similar decision. Won't pay for it About half of states require their Medicaid programs to cover ABA therapy; Illinois does not, though Medicaid managed-care organizations contracting with the state of Illinois to serve certain parts of the Medicaid population are free to do so. Advocates say the General Assembly or Gov. Bruce Rauner should change state rules or enact a law to require ABA coverage, regardless of whether payments flow through a managed-care organization or the traditional Medicaid fee-for-service system. Advocates add, however, that they know lawmakers and the governor have been preoccupied with political battles that have prevented the state from having a permanent overall budget since July 1, 2015. They point out that Illinois law, similar to laws in more than 40 other states, requires private insurance plans to cover ABA and other autism-related services. Coverage through self-insured employers is exempt from the requirement. "I think Medicaid needs to fund these services," Mr. Grannan said. "For families who don't have the money to get their own insurance policies or have insurance coverage, they don't get the No. 1- recommended treatment." Urbana-based Health Alliance Connect dropped out of the state's Medicaid managed-care program effective Jan. 1, citing "financial losses" from serving Medicaid patients that "are not sustainable." The other two managed-care companies serving central Illinois patients, Meridian Health Plan and Molina Healthcare, aren't paying for ABA therapy, though their state contracts allow them to. Officials from The Autism Program (TAP) are working to persuade Medicaid managed-care groups to cover ABA but aren't holding out much hope in the near term. Traditional fee-for-service Medicaid in Illinois also doesn't cover ABA and many other autism-related services. Trying to rebuild TAP's statewide network is trying to rebuild after going 15 months without the approximately $4.2 million annual state funding that provided the core of its support, TAP director Russell Bonanno said. The network had provided educational, diagnostic and treatment services in Chicago, Rockford, Springfield, Charleston, Champaign, Peoria, Mattoon, Maryville and other locations. "Few centers have been able to return to fiscal 2015 levels of service due to issues with recruiting replacement staff and concerns about continued services after June 2017," Mr. Bonanno said. More than a dozen people lost their jobs at various TAP sites amid the cutoff of funding during parts of 2015 and 2016, he said. A center in Chicago closed and never reopened. Programs funded by TAP that were offered by other not-for-profit agencies downsized. TAP recently took over a site in Maryville that a partner agency closed, and demand for services for children on the "autism spectrum" through the Maryville clinic has been strong, officials said. "The need doesn't go away just because these facilities downsize, change their hours or close completely," TAP spokesman Christopher McCloud said. "People are begging for this type of service." Indeed, the number of people diagnosed with autism, a neurodevelopmental disability that can result in communication and behavior problems, continues to increase. In the 1970s and '80s, one out of every 2,000 children in the United States had autism. One out of every 68 8-year-olds now has an autism-spectrum disorder, according to the U.S. Centers for Disease Control and Prevention. Experts say the increase may be related to better or earlier testing to diagnose people, as well as an expansion in the clinical definition of autism. Environmental factors are being investigated but haven't been proven to play a role. Funding uncertainty State funding for autism began Illinois in 2003, but the money initially was intended to set up the infrastructure for training and educational services to assist people with autism and their families, Mr. Bonanno said. Funding wasn't used for actual treatment -- which can include ABA and group therapy -- until 2007, he said. Advocates hoped state funding would increase to $10 million per year, in part to make up for the treatment that wasn't being funded by Medicaid, but that goal never has been reached, Mr. Bonanno said. The stopgap spending plan for state government approved in late June by the Democratic-controlled General Assembly and Gov. Rauner, a Republican, sent TAP a full year's worth of funding. That money will carry the organization through June 30, 2017, Mr. Bonanno said. But it's been hard to hire staff when long-term funding is uncertain, he said. Partner agencies have been similarly cautious in reinstating services. TAP's Autism Clinic in Springfield has increased its number of privately insured clients so the clinic isn't so dependent on state money and can have steady funding to retain the highly trained staff members who provide ABA and other therapy, Ms. Grannan said. Building up the number of clients from low-income families to previous levels will take a steady stream of revenue through Medicaid, Ms. Grannan and Mr. Bonanno said. Several states are taking steps to cover ABA through Medicaid in response to lawsuits or potential lawsuits, said Michael Wasmer, director of state government affairs for the advocacy group Autism Speaks. A proposed settlement of a class-action lawsuit against the state by nine Illinois children with mental-health and behavioral disorders likely would have expanded Medicaid coverage for autism services, Mr. Wasmer said. But federal Judge Jorge Alonso of the Northern District of Illinois rejected the settlement Dec. 20 and ordered both sides to work out a new agreement or prepare for trial. Lawyers for both sides are scheduled to check in with the judge in mid-January. Asked whether the Rauner administration is interested in requiring that Illinois Medicaid cover ABA therapy, John Hoffman, spokesman for the Illinois Department of Healthcare and Family Services, said: "In order to provide more opportunities for other care options and to more timely make payments on current options, Democrats in the legislature need to pass a balanced budget with structural reforms that will protect our most vulnerable for the long term." More Medicaid cuts? State Rep. Greg Harris, D-Chicago, chairman of the House Appropriations-Human Services Committee, said there would be interest in the legislature to improve Medicaid coverage for autism, especially as the number of people affected by the disorder increases. He noted, however, that a push in Congress by Republicans to control Medicaid costs by issuing capped block grants to states could result in states having to chip in more money to maintain existing services. Such a scenario, Mr. Harris said, could lead to more cuts in Medicaid spending in Illinois and more restrictions on what services are covered -- making it more difficult for ABA therapy to be added. Abbott, the Springfield mother, said state and federal laws should be changed to ensure all Medicaid plans and all private insurance plans -- even those that are self-funded -- cover ABA therapy. Even with subsidies from Springfield's Autism Clinic, Ms. Abbott would have to start paying $360 per month to continue her daughter's ABA therapy at two to three hours per day, four days a week. The unsubsidized rate is $50 to $125 per hour. Ms. Abbott can't afford even $360 per month, so she plans to cut the amount of Finley's therapy in half in 2017 and hope that her daughter doesn't regress while attending Springfield's Early Learning Center and preparing for kindergarten in fall 2017. M.s Abbott has hopes for her child to attend college someday. The girl will require ABA therapy for years to come, she said. "I just want her to be as independent as possible," Ms. Abbott said. State and federal support of therapy for children with autism can help them avoid the need for even more expensive support in schools and the public aid system as they grow up, she said. "These kids are very smart and very talented, if they can just get a little bit of help," she said. INNOVATION VENTURES: Cert. of Classes Sought in 5-Hour Energy MDL ----------------------------------------------------------------- Cody Soto, William Forrest, Michael Casey, David Ellis, Ilya Podobedov, Donna Thompson, and Marc Adler, plaintiffs in the multidistrict litigation against Innovation Ventures LLC, et al., and captioned IN RE: 5-HOUR ENERGY MARKETING AND SALES PRACTICES LITIGATION, Case No. 2:13-ml-02438-PSG-PLA (C.D. Cal.), move the Court for an order certifying these six classes defined as: 1. All persons who purchased 5-hour ENERGY products, which include 5-hour ENERGY(R), 5-hour ENERGY(R) Decaf, and 5-hour ENERGY Extra Strength, on or after March 1, 2008 in California; 2. All persons who purchased 5-hour ENERGY products, which include 5-hour ENERGY(R), 5-hour ENERGY(R) Decaf, and 5-hour ENERGY(R) Extra Strength, on or after March 1, 2008 in Missouri; 3. All persons who purchased 5-hour ENERGY products, which include 5-hour ENERGY(R), 5-hour ENERGY(R) Decaf, and 5-hour ENERGY(R) Extra Strength, on or after March 1, 2008 in New Mexico; 4. All persons who purchased 5-hour ENERGY products, which include 5-hour ENERGY(R), 5-hour ENERGY(R) Decaf, and 5-hour ENERGY(R) Extra Strength, on or after March 1, 2008 in New Jersey; 5. All persons who purchased 5-hour ENERGY products, which include 5-hour ENERGY(R), 5-hour ENERGY(R) Decaf, and 5-hour ENERGY(R) Extra Strength, on or after March 1, 2008 in New York; and 6. All persons who purchased 5-hour ENERGY products, which include 5-hour ENERGY(R), 5-hour ENERGY(R) Decaf, and 5-hour ENERGY(R) Extra Strength, on or after March 1, 2008 in Pennsylvania. The Plaintiffs also ask the Court to appoint them as Class Representatives, and appoint Bursor & Fisher, P.A. and Faruqi & Faruqi, LLP as Class Counsel. The Court will commence a hearing on March 27, 2017, at 1:30 p.m., to consider the Motion. A copy of the Notice of Motion and Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=7U8JRiyX The Plaintiffs are represented by: L. Timothy Fisher, Esq. Joel D. Smith, Esq. Annick M. Persinger, Esq. Yeremey Krivoshey, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com jsmith@bursor.com apersinger@bursor.com ykrivoshey@bursor.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-mail: scott@bursor.com - and - Barbara A. Rohr, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256-2884 Facsimile: (424) 256-4885 E-mail: brohr@faruqilaw.com - and - Timothy J. Peter, Esq. FARUQI & FARUQI, LLP 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Telephone: (215) 277-5770 Facsimile: (215) 277-5771 E-mail: tpeter@faruqilaw.com INT'L BANK: Can File Motion to Compel Arbitration, Court Rules -------------------------------------------------------------- Ezra L. Finkle, Esq., of Lewis Brisbois Bisgaard & Smith LLP, in an article for Mondaq, reports that companies and other business entities often use arbitration agreements to protect themselves from class action liability. The Fifth Circuit allows employers to file Motions to Compel Arbitration as to individual plaintiffs early on in the class formation process. In Reyna v. International Bank of Commerce, the Fifth Circuit held that an employer could file a Motion to Compel Arbitration before a class is conditionally certified. In Reyna, the plaintiff, Carlos Reyna, brought an action on his behalf and on behalf of other similarly situated individuals against his former employer, International Bank of Commerce ("IBC"), contending that his employer violated the Fair Labor Standards Act ("FLSA") by failing to pay proper overtime rates. IBC moved to compel arbitration of Reyna's claims. The district court denied the motion concluding it could not consider the applicability of any arbitration agreement until later in the certification process for an FLSA collective action. IBC filed an interlocutory appeal, arguing that the district court erred in denying its motion to compel arbitration. The U.S. Court of Appeals for the Fifth Circuit reversed the district court's denial of IBC's motion to compel arbitration. IBC employed Reyna as a bank teller from July 2012 through August 2013. Reyna alleged, in his FLSA claim, that IBC paid him only "a rate of one-half time his regular rate," rather than the "premium overtime pay at a rate of not less than one and one-half times his regular rate of pay. He brought his claim as a collective action under the FLSA. Such collective actions usually proceed in two stages, a conditional certification stage and a final certification stage. IBC moved to dismiss Reyna's complaint or, in the alternative, compel arbitration, strike claims, and stay or dismiss the proceeding. IBC argued that Reyna agreed to be bound by IBC's dispute resolution policy which provided the exclusive remedy for challenging employment actions and was a four step grievance process. The policy did not mention FLSA collective actions but did provide that an employee could bring class actions only upon the agreement of all parties. The policy contained a designation clause giving the arbitrator "the exclusive authority" to both "determine the arbitrability of any dispute" and "resolve any dispute relating to the interpretation, applicability, enforceability or formation" of the policy. IBC filed its motion to compel arbitration based on the policy's language. IBC further argued that arbitration should be done on an individual basis because both parties did not consent to bringing the claim as a collective action. Reyna opposed the motion arguing that "in collective action suits brought under the FLSA, courts rule on first-stage conditional certification and notice before ruling on the validity and enforceability of any purported arbitration agreement." The district court denied IBC's motion, agreeing with Reyna that "at this stage [of the litigation] the only issue is whether the plaintiff is similarly situated to potential class members so that notice should be authorized." The district court declined to address whether Reyna should be compelled to arbitrate his claim because the question of whether IBC's policy required arbitration is a "merits-based argument' that should not be addressed until "the second stage" of the FLSA collective action litigation. The Fifth Circuit reversed, rejecting Reyna's argument that courts typically delay consideration of the arbitrability of a claim until after conditional certification is granted. The Fifth Circuit reasoned that to hold otherwise would present a justiciability issue -- a court could conditionally certify a collective action solely on the basis of a claim that the plaintiff was bound to arbitrate and was therefore barred from bringing it to court in the first place. Additionally, the Fifth Circuit cited the "national policy favoring arbitration" embodied by the Federal Arbitration Act in reversing the district court. The Fifth Circuit held that, upon a motion to compel arbitration, a district court should address the arbitrability of a plaintiffs' claim at the outset of litigation. Compelling arbitration before conditional certification of a class more closely aligns with the national policy favoring arbitration. Case: Reyna v. International Bank of Commerce United States Fifth Circuit Court of Appeal No. 16-40057 (5th Cir. Oct. 20, 2016). INTUITIVE SURGICAL: Court Certifies Class in Securities Case ------------------------------------------------------------ In the lawsuit re: Intuitive Surgical Securities Litigation, Case No. 5:13-cv-01920-EJD (N.D. Cal.), the Hon. Edward J. Davila entered an order: 1. granting Plaintiffs' motion for class certification of: "all persons or entities who purchased or acquired the publicly traded common stock of Intuitive Surgical, Inc. during the period from February 6, 2012 through July 18, 2013, inclusive, and who were damaged," 2. appointing Lead plaintiffs Employees' Retirement System of the State of Hawaii and Greater Pennsylvania Carpenters' Pension Fund as Class Representatives; and 3. appointing law firm of Labaton Sucharow LLP as class counsel. Excluded from the class are (i) all Defendants; (ii) members of the immediate families of individual defendants Guthart, Mohr, and Smith; (iii) any subsidiaries and affiliates of Defendants; (iv) any person who is or was an officer or director of Intuitive or any of Intuitive's subsidiaries of affiliates; (v) Defendants' directors' and officers' liability insurance carriers, and any affiliates or subsidiaries thereof; (vi) Intuitive's employee retirement and benefit plan(s); and (vii) the legal representatives, heirs, successors and assigns of any such excluded person or entity. Intuitive is a biomedical corporation that designs, manufactures, and sells da Vinci Surgical Systems (da Vinci), a robotic surgical system that uses computer technology to allow surgeons to remotely operate through a small tube inside the patient. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=B3XHbxxP IOWA: Student Funding Formula Class Action Pending -------------------------------------------------- Jim Niedelman, writing for OurQuadCities.com, reports that one thing you shouldn't expect to see in the next Iowa legislative session is gridlock. That's an Illinois issue. The big reason is Republicans will control both the State House and State Senate along with the governor's mansion. There's virtually no threat of a veto from the governor. Expect the Republican agenda to include proposals for tax cuts, legalizing retail fireworks, funding water quality projects and banning traffic cameras to name a few. Governor Terry Branstad will present his final budget on January tenth. Of course, no issue is more important or divisive every year than the state's spending plan and, within that, the money allocated for education. Any tax cuts could certainly impact spending on schools. All of these proposals are bound to generate some interesting and perhaps heated debate at times. In the end, Republicans have the path to get their way if they stay united. All of this points to an interesting and important legislative session. The first day for lawmakers is coming soon on January ninth. Two people who will be in the mix in Des Moines are Democratic State Representative Phyllis Thede of Scott County and Republican State Senator-elect Mark Lofgren representing Muscatine County. Both of them shared their expectations for the upcoming legislative session during an appearance on 4 the Record. Iowa's legislature has not lived up to its duty in recent years. Lawmakers are supposed to adopt two-year education budgets. Both Ms. Thede and Mr. Lofgren say they expect the spending on education number to be reached early in the session. Mr. Lofgren went so far to say the first few days. Republicans and Democrats from Iowa have told 4 the Record with over the last two years they agree that the student funding formula needs to be modernized. Yet, time has passed and we haven't had agreement. This is a very sensitive issue in Davenport specifically. Both admit being concerned about the imbalance that difference districts deal with when it comes to state funding from the formula. However, neither is certain much will change this legislative session. A couple of Davenport High School graduates are the named plaintiffs in a class-action lawsuit filed by a local law firm to fight the student formula. They're suing the state legislature, the state department of education's director and the governor. Ms. Thede and Mr. Lofgren discussed what kind of pressure this puts on lawmakers to get something done. J.M. HOLM: "Arredendo" Suit Seeks Certification of Painters Class ----------------------------------------------------------------- In the lawsuit entitled Jose Arrendo, the Plaintiff, v. J.M. Holm & Co., Inc., and Todd Nelms, individually, the Defendants, Case No. 4:16-cv-01317 (S.D. Tex.), the Parties ask the Court to conditionally certify a conditional class of: "all current and former painters and laborers employed by Defendant J.M. Holm & Co., Inc., who worked more than 40 hours per week from May 10, 2013 to present." The Parties ask the Court to approve the notice to be sent to all members of the Class and that putative class members be given 45 days from the receipt of notice to opt-in to the collective action. The Plaintiff filed the case to recover unpaid overtime ages, liquidated damages, and attorneys' fees allegedly owed to them and other similarly situated employees under the Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=WnxhSw7S The Plaintiffs are represented by: Patricia Haylon, Esq. Mark Siurek, Esq. WARREN & STUREK, L.L.P. 3334 Richmond, Suite 100 Houston, TX 77098 Telephone: (713) 522 0066 Facsimile: (713) 522 9977 E-mail: thaylon@warrensiurek.com msiurek@warrensiurek.com The Defendants are represented by: Mark D. Temple, Esq. REED SMITH LLP 811 Main Street, Suite 1700 Houston, TX 77002 Telephone: (713) 469 3800 Facsimile: (713) 469 3899 E-mail: mtemple@reedsmith.com JAY PEAK: Daccache Seeks Certification of Investors Class --------------------------------------------------------- In the lawsuit entitled ALEXANDRE DACCACHE, CARLOS ENRIQUE HILLER SANCHEZ, PHILIP CALDERWOOD, JOSE ANTONIO PIETRI, JOSE R. CASSERES- PINTO, TONGYI WANG, JAMES B. SHAW, JOHANNES EIJMBERTS, and LORNE MORRIS, on behalf of themselves and all others similarly situated, the Plaintiffs, v. RAYMOND JAMES & ASSOCIATES, INC., PEOPLE'S UNITED FINANCIAL, INC., as successor-in-interest to Chittenden Trust Company, PEOPLE'S UNITED BANK, ARIEL QUIROS, WILLIAM STENGER, and JOEL BURSTEIN, the Defendants, Case No. 1:16-cv- 21575-FAM (S.D. Fla.), the Plaintiffs move to certify a class of: "837 foreign investors, each of whom invested $500,000 in one of eight Jay Peak Limited Partnerships through the federal EB- 5 Immigrant Investor Program". The Plaintiffs seek to recover the Jay Peak investors' losses through this class action lawsuit, and to certify a class of all investors under Rule 23. The proposed Class comprises investors who reside in Europe, Asia, India, the Middle East, Australia, and the Americas, including the United States, where investors reside in more than forty different states. The number of class members well exceeds the Eleventh Circuit's minimum requirement, and joinder of such a large group of investors dispersed worldwide would be impracticable. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=hrNmDjay The Plaintiffs are represented by: Paul Aiello, Esq. Michael P. Bennett, Esq. Jeremy R. Kreines, Esq. BENNETT AIELLO The Ingraham Building, Eighth Floor 25 Southeast Second Avenue Miami, FL 33131 Telephone: (305) 358 9011 Facsimile: (305) 358 9012 E-mail: paiello@bennettaiello.com mbennett@bennettaiello.com jkreines@bennettaiello.com - and - Thomas A. Tucker Ronzetti, Esq. Harley S. Tropin, Esq. Dyanne E. Feinberg Rachel Sullivan, Esq. Maia Aron, Esq. Tal J. Lifshitz, Esq. KOZYAK TROPIN & THROCKMORTON LLP 2525 Ponce de Leon Blvd., 9th Floor Coral Gables, FL 33134 Telephone: (305) 372 1800 Facsimile: (305) 372 3508 E-mail: tr@kttlaw.com hst@kttlaw.com def@kttlaw.com rs@kttlaw.com ma@kttlaw.com tjl@kttlaw.com - and - Daniel C. Girard, Esq. Adam E. Polk, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981 4800 E-mail: dcg@girardgibbs.com aep@girardgibbs.com - and - Kathleen M. Donovan-Maher, Esq. Steven Buttacavoli, Esq. Mark A. Delaney, Esq. Nathaniel L. Orenstein, Esq. BERMAN DEVALERIO One Liberty Square Boston, MA 02109 Telephone: (617) 542 8300 Facsimile: (617) 542 1194 E-mail: kdonovanmaher@bermandevalerio.com sbuttacavoli@bermandevalerio.com mdelaney@bermandevalerio.com norenstein@bermandevalerio.com JENNINGS LINDSAY: July 7 Hearing on Franco Class Cert. Bid Set -------------------------------------------------------------- In the lawsuit entitled NICHOLAS FRANCO, individually and on behalf of all others similarly situated, the Plaintiff, v. JENNINGS LINDSAY & LUCKMAN, LLC dba JENNINGS LAW FIRM, the Defendant, Case No. 5:16-cv-01944-R-DTB (C.D. Cal.), the Plaintiff will move the Court on July 7, 2017, at 10:00 a.m., before the Hon. Manuel L. Real of the United States District Court, Central District of California, for an order to certify the following classes: "all persons within the United States, outside the state of California, who received collection letters from Defendant falsely implying that said persons would be subject to legal action, where Defendant had no intention of taking such action"; and "all persons in the state of California, who received collection letters from Defendant falsely implying that said persons would be subject to legal action, where Defendant had no intention of taking such action". The Plaintiff will also move the Court for appointment of Plaintiff as Class Representatives, and for appointment of Plaintiffs' attorneys as Class Counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=uDyCe9Ob The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206 4741 Facsimile: (866) 633 0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com JET'S AMERICA: Placeholder Motion for Class Certification Filed --------------------------------------------------------------- In the lawsuit styled APB ASSOCIATES, INC., a Michigan corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. JET'S AMERICA, INC., a Michigan corporation, DJ HILL, JENNIFER HILL, STEVEN WEISBERG and JOHN DOES 1-5, Case No. 2:17-cv-10001-DML-RSW (E.D. Mich.), the Plaintiff asks the Court to grant its placeholder motion for class certification and brief in support. The Plaintiff files the "placeholder" motion for class certification in order to prevent against a "buy-off" attempt, a tactic class-action defendants sometimes use to attempt to prevent a case from proceeding to a decision on class certification by attempting to "moot" the named plaintiff's claims by tendering the plaintiff individual (but not classwide) relief. The Plaintiff further asks to appoint Plaintiff as the class representative, and appoint Plaintiff's attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=WRboycwT The Plaintiff is represented by: Brian J. Wanca ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 E-mail: bwanca@andersonwanca.com JOHN D. BRADSHAW: May 31 Final Settlement Approval Hearing Set -------------------------------------------------------------- The Hon. Phillip J. Green entered an order in the lawsuit styled LISA J. COLLISON, the Plaintiff, v. JOHN D. BRADSHAW, P.C., et al., the Defendants, Case No. 1:16-cv-00270-PJG (W.D. Mich.), granting plaintiff's unopposed motion for preliminary approval of a class action settlement; and conditionally certifying for settlement purposes only, this Settlement Class: "all persons with addresses in the State of Michigan to whom the defendants sent collection letters, during the period March 1, 2015, through March 1, 2016, seeking to charge a $4.00 convenience fee for the processing of electronic transactions made to the defendants in defendants' attempt to collect a debt purportedly incurred for personal, family, or household purposes". For settlement purposes only, the Plaintiff Lisa Collison is appointed as Class Representative, and Brian Parker, Esq. and Nicholas A. Reyna, Esq. are appointed as Class Counsel. A final approval hearing shall be held before the Court on May 31, 2017, at 2:00 p.m., at the United States Courthouse, U.S. District for the Western District of Michigan. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=1HJSCLrj The Plaintiff is represented by: Brian Parker, Esq. 2000 Town Center, Suite 1900 Southfield, MI 48075 Telephone: (248) 642 6268 - and - Nicholas A. Reyna, Esq. 528 Bridge Street, NW Grand Rapids, MI 49504 Telephone: (616) 235 4444 The Defendant is represented by: Kathleen H. Klaus, Esq. MADDIN, HAUSER, ROTH & HELLER, P.C. 28400 Northwestern Highway, 2nd Floor Southfield, Michigan 48034 Telephone: (248) 359 7520 JP SPORTS: Settlement in "Davis" Suit Wins Court Approval --------------------------------------------------------- In the lawsuit captioned MEGAN DAVIS, on behalf of herself and all others similarly situated, the Plaintiff, v. JP SPORTS COLLECTIBLES INC., JOHN E. PEERY and JOLEAN PEERY, the Defendants, Case No. 2:16-cv-00154-CM (M.D. Fla.), the Hon. Carol Mirando entered an order: 1. granting joint motion for approval of Settlement; 2. approving Settlement Agreement and Mutual Release between Plaintiff, Opt-In Plaintiffs, and Defendants as a fair and reasonable resolution of a bona fide dispute under the Fair Labor Standards Act (FLSA). 3. denying as moot Plaintiff's motion to conditionally certify FLSA collective action and facilitate notice to potential class members and incorporated memorandum of Law; 4. denying as moot Plaintiff's motion for summary judgment; 5. directing Plaintiff to pay the filing fee, out of the recovery of her costs, within 10 days from the date of the Order, because Plaintiff was granted permission to proceed in forma pauperis in this matter; and 6. dismissing the action with prejudice, and directing the Clerk to close the file. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Vi6TMA4O The Court said, "As part of their settlement, Ms. Davis will receive $2,000.00 for her FLSA claims as back wages and liquidated damages; Ms. Schofield will receive $800.00 for her FLSA claims as back wages and liquidated damages; Mr. Brandt will receive $1,000.00 for his FLSA claims as back wages and liquidated damages. The Plaintiffs' counsel will receive $7,650.00, which represents attorneys' fees in the amount of $6,828.16 and costs in the amount of $821.84 in this matter. Each Plaintiff will receive an additional $100 as consideration for the individual general releases. Because this compensation is separate and apart from the benefits to which each Plaintiff is entitled under the FLSA, the Court finds that this provision does not render the agreement unfair or unreasonable." LA TAN: Class Action Over Customer Fingerprints Settled ------------------------------------------------------- Christopher Knoll, writing for Legal Newsline, reports that attorneys are calling a settlement with L.A. Tan Enterprises a-first-of-its-kind regarding the collection and storage of the fingerprints of its customers. In the case Sekura v. L.A. Tan Enterprises Inc., Klaudia Sekura, on behalf of nearly 37,000 class members, alleged that for a three-year period stretching from 2013 to the summer of 2016, L.A. Tan salons stored customer fingerprints that were gathered for membership ID purposes and released them to SunLync, a third-party vendor from New York that designs and operates tanning salon management software. All of this occurred, the suit claimed, without members receiving any data retention policy statement from the individual franchises as allegedly required by the state's Biometric Information Privacy Act (BIPA). According to Edelson PC, the firm representing the plaintiff, this is the first court settlement involving Illinois' BIPA law. The settlement was reached in Cook County Circuit Court. International Biometrics & Identity Association Vice Chairman Walter Hamilton explains that biometric data is much more inherently protected than personally identifiable information. "Biometric data is typically derived from the original image (or raw data) that is collected from a sensor (such as the image of a fingerprint pattern) and is then converted into a 'template' through a process called feature extraction," Mr. Hamilton said. This template consists of turning the image into a series of numbers, which do not reveal any "identifying information about a person." The numbers are applied to an algorithm that varies from vendor to vendor, thus making the broad use of stolen data increasingly hard to access outside the proprietary source vendor. Any attempt to reverse-engineer the biometric data is all but impossible. "Since a significant majority of the raw data is discarded during the feature extraction process," Mr. Hamilton said. Most litigation involving stolen identification data involves personally identifiable information, such as Social Security cards and PIN numbers. In fact, he states that the only example he can recall of biometric data being swiped was "the hacking of government personnel files at the Office of Personnel Management (OPM) where fingerprint images were stolen (in addition to other personal data) on millions of government workers and contractors." In that case, the data could have been used because no template was used to cipher the primary image. In April, Ms. Sekura filed another class action suit, this time targeting Krishna Schaumburg Tan, one of L.A. Tan's franchisees in Chicago, for similar reasons as the L.A. Tan case. While the L.A. Tan suit did not allege that L.A. Tan Enterprises or its franchises improperly used the biometric data, it did claim that the company failed to fully comply with BIPA statutes, which state that customers be told in writing that their biometric data was being gathered for a specific reason and for a stated period of time it would be stored and shared amongst the franchises. In addition to this "legal first," Mr. Hamilton told Legal Newsline that BIPA's focus on biometric data was quite unique throughout the 50 states. For Ms. Sekura, who had been a member of the salon since 2006, her main concern was her privacy and the protection of her private biometric data. As an example, Ms. Sekura expressed alarm at what might have happened to her data if the company went bankrupt. Her concern was noted in the L.A. Tan suit which referenced the 2007 bankruptcy of a biometric information firm that had worked with Illinois businesses and resulted in the BIPA law. Ms. Sekura stated that nearly 65 percent of L.A. Tan salons were in foreclosure, causing her "mental anguish and injury when thinking about what would happen to her biometric data if Krishna Tan goes bankrupt" and refused to erase the data. Hamilton agreed with Ms. Sekura that a disclosure statement and informed consent was lacking and should have been addressed by L.A. Tan Enterprises. Any company using biometric data is best advised, Hamilton said, to encrypt the data "when stored or when transmitted and accessed" and follow personally identifiable information procedures at a minimum. Judge Rodolfo Garcia approved a settlement between the plaintiffs and the corporate parent of the franchises and awarded the plaintiffs $1.5 million -- $600,000 of which will go to the attorneys for the plaintiffs and $5,000 to suit representative Ms. Sekura. In a press release issued by L.A. Tan Enterprises, the company said it "denies any wrongdoing and maintains that it has not violated any laws. The settlement does not establish who is correct, but rather is a compromise to end the lawsuit and avoid the uncertainties and expenses associated with ongoing litigation." Paul Karlsgodt -- pkarlsgodt@bakerlaw.com -- a lawyer for the defendant and from the Baker Hostetler law firm in Chicago, was contacted by Legal Newsline but declined to comment on the settlement or the case. LANNETT CO: Rochester Drug Alleges Levothyroxine Price-Fixing ------------------------------------------------------------- ROCHESTER DRUG CO-OPERATIVE, INC., on behalf of itself and all others similarly situated, Plaintiff, v. LANNETT COMPANY, INC., MYLAN PHARMACEUTICALS INC., SANDOZ, INC., and NOVARTIS AG, Defendants, Case No. 2:16-cv-06671-CMR (E.D. Pa., December 28, 2016), concerns an alleged anticompetitive conspiracy among Defendants to raise, fix, and maintain prices, allocate markets, and/or rig bids for generic levothyroxine. The Defendants are pharmaceutical companies. The Plaintiff is represented by: Dianne M. Nast, Esq. Eric C. Burns, Esq. NASTLAW LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Phone: 215-923-9300 Fax: 215-923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com - and - David F. Sorensen, Esq. Nick Urban, Esq. Zachary D. Caplan, Esq. BERGER & MONTAGUE, PC 1622 Locust Street Philadelphia, PA 19103 Phone: (215) 875-3000 Fax: (215) 875-4604 E-mail: dsorensen@bm.net nurban@bm.net zcaplan@bm.net - and - Peter Kohn, Esq. Joseph T. Lukens, Esq. 101 Greenwood Avenue, Suite 600 Jenkintown, PA 19046 Phone: (215) 277-5770 Fax: (215) 277-5771 E-mail: pkohn@faruqilaw.com jlukens@faruqilaw.com - and - Barry S Taus, Esq. Kevin Landau, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Phone: (212) 931-0704 E-mail: btaus@tcllaw.com atamoshunas@tcllaw.com LEASE FINANCE: Le May Refile Bid to Certify Class, Court Rules -------------------------------------------------------------- The Hon. Lance M. Africk dismissed without prejudice the Plaintiffs' motion to certify class filed in the lawsuit captioned HA THI LE, ET AL. v. LEASE FINANCE GROUP, LLC, ET AL., Case No. 2:16-cv-14867-LMA-KWR (E.D. La.). Judge Africk ruled that the Plaintiffs may re-file the Motion no later than 10 days after all the Defendants have filed an answer in the matter. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=mdMZ75F1 LIFE INSURANCE: Seamen File Class Action Over Disability Benefits ----------------------------------------------------------------- Michael Abella, writing for Louisiana Record, reports that two seamen allege that a plan administrator improperly reduced their disability benefits and have filed a class-action suit. Rusty Norman and Weyman Maxon, individually and on behalf of all others similarly situated, filed a complaint on Dec. 13 in the U.S. District Court for the Eastern District of Louisiana against Life Insurance Co. of North America citing the Employee Retirement Income Security Act. According to the complaint, the plaintiffs worked for employers that issued policies through the defendant. They allege the defendant improperly reduced the benefits they were owed. The plaintiffs allege that due to defendant's unlawful actions, they suffered monetary losses for not receiving the full amount of benefits due under the long-term disability plan. The plaintiffs hold Life Insurance Co. of North America responsible because the defendant allegedly improperly reduced plaintiffs' disability benefits by offsetting maintenance paid under the general maritime law. The plaintiffs request a trial by jury and seek an order certifying this as class action, appointing plaintiffs as class representative and their counsel as class counsel, award for monetary damages, attorney's fees and costs and such other equitable relief. They are represented by Philip Bohrer and Scott Brady of Bohrer Brady LLC in Baton Rouge and Dennis M. O'Bryan of O'Bryan Baun Karamanian in Birmingham, Michigan. U.S. District Court for the Eastern District of Louisiana Case number 2:16-cv-17271 LINCOLN NATIONAL: Faces "Mukamal" Suit in S.D. of Florida --------------------------------------------------------- A class action lawsuit has been filed against Lincoln National Life Insurance Company. The case is captioned as Barry Mukamal, as Trustee of the Mutual Benefits Keep Policy Trust, and Milgram Investments, LP, a New Jersey limited partnership, on behalf of themselves and all others similarly situated, the Plaintiffs, v. Lincoln National Life Insurance Company, an Indiana corporation, and Lincoln National Corporation, an Indiana corporation, the Defendants, Case No. 1:16-cv-25302-JEM (S.D. Fla., Dec. 22, 2016). The case is assigned to Hon. Judge Jose E. Martinez. Lincoln National provides insurance services. The Company focuses on life insurance, annuities, accident, health, dental, accident, critical illness, group benefits, individual and group retirement plans. The Company serves customers in the United States. The Plaintiffs are represented by: Adam M. Moskowitz, Esq. Gail Ann McQuilkin, Esq. Robert J Neary, Esq. KOZYAK TROPIN & THROCKMORTON 2525 Ponce de Leon Boulevard, Suite 900 Coral Gables, FL 33134-6036 Telephone: (305) 372 1800 Facsimile: (305) 372 3508 E-mail: AMM@kttlaw.com gam@kttlaw.com rn@kttlaw.com - and - Howard Mitchell Bushman, Esq. Lance August Harke, Esq. Sarah Clasby Engel, Esq. HARKE CLASBY & BUSHMAN LLP 9699 NE Second Avenue Miami Shores, FL 33138 Telephone: (305) 536 8220 Facsimile: (305) 536 8229 E-mail: hbushman@harkeclasby.com lharke@harkeclasby.com sengel@harkeclasby.com - and - William F. Merlin, Jr., Esq. MERLIN LAW GROUP PA 777 S Harbor Island Boulevard, Suite 950 Tampa, FL 33602 Telephone: (813) 229 1000 Facsimile: (813) 229 3692 E-mail: cmerlin@merlinlawgroup.com LUNADA BAY BOYS: Certification of Surfers Class Sought ------------------------------------------------------ In the lawsuit styled CORY SPENCER, an individual; DIANA MILENA REED, an individual; and COASTAL PROTECTION RANGERS, INC., a California non-profit public benefit corporation, the Plaintiffs, v. LUNADA BAY BOYS; THE INDIVIDUAL MEMBERS OF THE LUNADA BAY BOYS, including but not limited to SANG LEE, BRANT BLAKEMAN, ALAN JOHNSTON AKA JALIAN JOHNSTON, MICHAEL RAE PAPAYANS, ANGELO FERRARA, FRANK FERRARA, CHARLIE FERRARA, and N. F.; CITY OF PALOS VERDES ESTATES; CHIEF OF POLICE JEFF KEPLEY, in his representative capacity; and DOES 1-10, the Defendants, Case No. 2:16-cv-02129-SJO-RAO (C.D. Cal.), the Plaintiffs will move the Court on February 17, 2017, at 10:00 a.m. before the Hon. Judge S. James Otero, United States District Court, for an order to certify a class of: "thousands of people who have been, and continue to be denied, access to Lunada Bay". There are over 3,000,000 surfers in the United States, an estimated 1,000,000 surfers in Southern California, and an estimated 238,000,000 visitor days to California's beaches each year. But due to localism, fewer than 100 surfers regularly use Lunada Bay without being harassed. Lunada Bay is a City-owned beach purportedly open to the public. In addition to its striking views, Lunada Bay is known around the world for good surf. Lunada Bay's waves often reach as high as 15 to 20 feet during prime season. Lunada Bay can host a barreling right-breaking, rock-reef point-break type wave and hold a large swell. Each of the Individual Defendants is a member of the Lunada Bay Boys gang. Like other gangs, they protect their "turf" from outsiders. And, they use secrecy as they conspire to guard their territory. To protect "their" beach they use fear, violence, and intimidation. Supported by neighbors and police with whom they grew up, they use behavior learned from the "older boys" who "made up the rules [and] term[s] of engagement" decades ago. Because it has the likeminded intent on keeping the City of Palos Verdes Estates ("City") exclusive "to protect this utopian landscape and future property values" consistent with the local Palos Verdes Homes Association, for more than 40 years the City has not taken action against the Bay Boys. But for visiting beachgoers, Lunada Bay is far from "utopia." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=1mdKlnfV The Plaintiffs are represented by: Kurt A. Franklin, Esq. Samantha Wolff, Esq. Jennifer Aniko Foldvary, Esq. HANSON BRIDGETT LLP 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 777 3200 Facsimile: (415) 541 9366 E-mail: kfranklin@hansonbridgett.com swolff@hansonbridgett.com jfoldvary@hansonbridgett.com - and - Tyson M. Shower, Esq. Landon D. Bailey, Esq. HANSON BRIDGETT LLP 500 Capitol Mall, Suite 1500 Sacramento, CA 95814 Telephone: (916) 442-3333 Facsimile: (916) 442-2348 E-mail: tshower@hansonbridgett.com lbailey@hansonbridgett.com - and - Victor Otten, Esq. Kavita Tekchandani, Esq. OTTEN LAW, PC 3620 Pacific Coast Highway, #100 Torrance, CA 90505 Telephone: (310) 378-8533 Facsimile: (310) 347-4225 E-mail: vic@ottenlawpc.com kavita@ottenlawpc.com MAGNACHIP SEMICONDUCTOR: Court Certifies Class in "Hayes" Suit -------------------------------------------------------------- The Hon. Jon S. Tigar certifies the class proposed in the lawsuit titled RICHARD HAYES, et al., v. MAGNACHIP SEMICONDUCTOR CORP., et al., Case No. 3:14-cv-01160-JST (N.D. Cal.), but imposes a March 11, 2014 end date for the Class Period. The Court appoints Keith Thomas and Herb Smith as class representatives, and Pomerantz, LLP and the Rosen Law Firm, P.A. as class counsel. In their motion, the Plaintiffs seek to certify this class: all persons who purchased or otherwise acquired MagnaChip Semiconductor Corporation ("MagnaChip" or the "Company") common stock between February 1, 2012 and February 12, 2015 (the "Class Period"), inclusive. Excluded from the Class are any parties who are or have been Defendants in this litigation, the present and former officers and directors of MagnaChip and any subsidiary thereof, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any current or former Defendant has or had a controlling interest. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Cdnfb4qz MCKEE FOOD: Judge Denies Bid to Certify Distributors Class ---------------------------------------------------------- In the lawsuit captioned BRIAN MARTIN, the Plaintiff v. MCKEE FOOD CORPORATION ET AL., the Defendant, Case No. 8:15-cv-00732-AG-JCG (C.D. Cal.), the Hon. Andrew J. Guilford entered an order: 1. denying McKee's motion for judgment on the pleadings; 2. denying Plaintiffs' motion to certify a class of "all current and former distributors of McKee Products in the state of California within the applicable statute of limitations"; and 3. vacating Defendant's two motions to deny class certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=L3yiDgsI The Plaintiffs allege that around 250 McKee Distributors were misclassified as "independent contractors," and that they were actually employees because of the level of control McKee had over them. The Court said, "Plaintiffs point to a policy, training materials, and declarations to establish commonality. Although there is an agreement policy that all Distributors have signed with McKee, the policy does not provide common evidence of potential misclassification. The policy states that the parties intend to create an independent contractor relationship between them and that nothing in the contract should be construed to be inconsistent with that relationship. The remaining clauses of the contract discuss topics such as any insurance that the Distributor must carry, whether Distributors are entitled to return products they cannot sell, and how Distributors must pay McKee for product shipments." According to Guilford, the Plaintiffs' argument that Distributors were trained and were thus controlled and employed by McKee is also insufficient for establishing commonality. Many Distributors have stated that they increased profits by exercising their freedom to conduct business different from McKee's suggestions. Martin has also testified that he never received employment- related training. Plaintiffs also ask the Court to consider the fact that McKee created a Power Point Presentation to train its District Sales Representatives (DSRs) on handling Distributor relationships. But this Power Point is not evidence that DSRs were trained to control Distributors. It instead instructs DSRs on how to define and recognize issues, gather information, and find solutions. "Dissimilarities within the proposed class are what have the potential to impede the generation of common answers," and there are many dissimilarities within the proposed class here, Judge Guilford said. Judge Guilford noted that the Supreme Court stated in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011), that "[w]ithout some glue holding the alleged reasons for all those [employment] decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to [class members'] crucial question why was I disfavored." Similarity, there is no glue holding the allegations here together to answer the crucial question were the Distributors misclassified, he said. METLIFE INC: March 9 Class Action Settlement Fairness Hearing Set ----------------------------------------------------------------- The following statement is being issued by Scott+Scott, Attorneys at Law, LLP regarding the MetLife, Inc. CEU Securities Litigation: TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED COMMON EQUITY UNITS ISSUED BY METLIFE INC. ("METLIFE"), $75.00 STATED VALUE ("CEUs") (ticker symbol "MLU"), IN OR TRACEABLE TO METLIFE'S PUBLIC OFFERING OF CEUs BETWEEN MARCH 3, 2011 AND JULY 5, 2012, BOTH DATES INCLUSIVE (THE "CLASS PERIOD"), AND WHO WERE DAMAGED THEREBY (THE "CLASS"). THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOU ARE HEREBY NOTIFIED that a hearing will be held on March 9, 2017, at 9:30 a.m., before the Honorable Elisabeth French, Circuit Court of Jefferson County, Alabama, at the Jefferson County Courthouse, Room 610, 716 Richard Arrington Jr. Blvd. North, Birmingham, Alabama 35203, to determine whether: (1) the proposed settlement (the "Settlement") of the above-captioned action ("Action") for $9,750,000 in cash should be approved by the Court as fair, reasonable and adequate; (2) the Final Judgment as provided under the Stipulation and Agreement of Settlement ("Stipulation") should be entered, dismissing the Amended Class Action Complaint filed in the Action on the merits and with prejudice; (3) the release by the Class of the Released Claims, as set forth in the Stipulation, should be provided to the Released Defendants' Parties; (4) this Action satisfies the applicable prerequisites for class action treatment, solely for purposes of the Settlement, under Rule 23 of the Alabama Rules of Civil Procedure and Alabama Code 1975 Secs. 6-5-540 through 542; (5) to award Plaintiff's Counsel attorneys' fees and expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Action ("Notice"), referenced below); (6) to grant Plaintiff's requests for an incentive or service award in connection with its role in prosecuting this action on behalf of the Class out of the Settlement Fund; and (7) the Plan of Allocation should be approved by the Court. IF YOU PURCHASED OR ACQUIRED METLIFE CEUs DURING THE PERIOD MARCH 3, 2011 AND JULY 5, 2012, BOTH DATES INCLUSIVE (THE "CLASS PERIOD"), YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS ACTION. To share in the distribution of the Settlement Fund, you must establish your rights by submitting a Proof of Claim to the address below, postmarked on or before April 6, 2017. Your failure to submit your Proof of Claim by April 6, 2017 will subject your claim to rejection and preclude your receiving any of the recovery in connection with the Settlement of this Action. If you are a Member of the Class and do not request exclusion therefrom, you will be bound by the Settlement and any judgment and release entered in the Action, including, but not limited to, the Final Judgment, whether or not you submit a Proof of Claim. If you have not received a copy of the Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement), or a Proof of Claim form, you may obtain these documents (as well as a copy of the Stipulation, which contains the complete terms of the Settlement and the definitions of all capitalized defined terms used in this Summary Notice) online at www.metlifeCEUsecuritieslitigation.com, or by writing to: MetLife, Inc. CEU Securities Litigation Settlement c/o KCC Class Action Services P.O. Box 30248 College Station, TX 77842-3248 Telephone: (877) 368-9232 Inquiries should NOT be directed to Defendants, the Court, or the Clerk of the Court. Inquiries, other than requests for a copy of the Notice or Proof of Claim form, may be made to Plaintiff's Counsel: SCOTT+SCOTT, ATTORNEYS AT LAW, LLP William C. Fredericks The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169-1820 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 SCOTT+SCOTT, ATTORNEYS AT LAW, LLP Geoffrey M. Johnson 12434 Cedar Road, Suite 12 Cleveland Heights, OH 44106 Telephone: (216) 229-6088 Facsimile: (216) 229-6092 IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION BY FEBRUARY 16, 2017 IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE CLASS WILL BE BOUND BY THE SETTLEMENT ENTERED IN THE ACTION EVEN IF THEY DO NOT FILE A TIMELY PROOF OF CLAIM. This Notice has been authorized by Order dated December 7, 2016 of the Circuit Court of Jefferson County, Alabama (the Hon. Elisabeth French, J.). METROPOLITAN MUSEUM: March 14 Hearing on Class Action Settlement ---------------------------------------------------------------- By virtue of an Order of the Supreme Court, New York County, a hearing to consider approval of the admission claims class action settlement will be held before the Supreme Court, New York County, on March 14, 2017 in Courtroom 228, 60 Centre Street, New York, NY 10007. The parties have agreed to a proposed settlement under which the Museum -- without any concession, finding of wrongdoing, or agreement regarding the adequacy or inadequacy of the current disclosures -- will revise its signs, website, and other disclosures of its "pay what you wish" admission fee policy. No money will be paid to class members, and no adjudication of any claims for money damages they may have will occur. Any class member may present objections to the Settlement. The Settlement and procedures for objecting is available at http://www.metfees.com/or by calling the Class Counsel at (212) 763-5068. The case is, FILIP SASKA, TOMAS NADRCHAL, and STEPHEN MICHELMAN, Plaintiffs, v. THE METROPOLITAN MUSEUM OF ART, Defendant, Civil Action No. 650775/2013 Counsel for Class Plaintiffs: Andrew G. Celli, Jr., Esq. Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue at Rockefeller Center New York, NY 10019 E-mail: acelli@ecbalaw.com Counsel for the Museum: Bruce R. Kelly, Esq. Arnold & Porter LLP 399 Park Avenue New York, NY 10022 E-mail: Bruce_Kelly@aporter.com MICHAEL MATTEUCCI: Bid for Class Certification in "Rouse" Denied ---------------------------------------------------------------- In the lawsuit styled ARTHUR JOSEPH ROUSE, the Plaintiff, v. MICHAEL MATTEUCCI et al., the Defendants, Case No. 1:16-cv-01358- GJQ-RSK (W.D. Mich.), the Hon. Gordon J. Quist entered an order on December 21, 2016: 1. denying Plaintiff's request for class certification; 2. denying Plaintiff's request for preliminary injunction; 3. denying Plaintiff's request for the appointment of counsel; and 4. denying Plaintiff's request for release on bond. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=pQGfcITz Plaintiff Arthur Joseph Rouse is incarcerated with the Michigan Department of Corrections (MDOC) at the Cooper Street Correctional Facility in Jackson, Michigan. Plaintiff is serving a sentence of 5 to 7-1/2 years following his conditional plea of guilty, in Grand Traverse County Circuit Court, to a charge of maintaining a house for purposes of prostitution in violation of MICH. COMP. LAWS Sec. 750.452. Plaintiff was sentenced as a prior felony offender, MICH. COMP. LAWS Sec. 769.10. Plaintiff's status as a prior felony offender served to enhance his sentence under the Michigan Sentencing Guidelines; nonetheless, the trial court still departed upward when it imposed Plaintiff's minimum 5 year sentence. The case is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. Sec. 1983. According to Judge Quist, under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. Sec. 1915A; 42 U.S.C. Sec. 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, Plaintiff's claims against Defendants Bensley and Washington will be dismissed for failure to state a claim. Plaintiff's claims against Defendant Matteucci will be dismissed because they are barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff's requests for preliminary injunctive relief relating to the Grand Traverse County jail, for release on bond, and for the appointment of counsel are denied. MICHIGAN: Salem's Bid to Certify Lady Prisoners Class Denied ------------------------------------------------------------ The Hon. Paul D. Borman denied without prejudice the Plaintiff's motion for class certification filed in the lawsuit entitled AMIRA SALEM AND KESHUNA ABCUMBY v. MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL., Case No. 2:13-CV-14567-PDB-RSW (E.D. Mich.). The Court also dismisses the official capacity claims against Defendants Daniel Heyns, Thomas Finco, Randy Treacher, Dennis Straub as duplicative. On November 1, 2013, the Plaintiffs filed the putative class action on behalf of all female prisoners who "since October 2010, have been, are now, or will be hereafter incarcerated by [the Women's] Huron Valley Correctional Facility and who have been subject to sexual harassment and degrading and unhygienic treatment by MDOC custodial staff." The Plaintiffs allege violations of their Fourth, Fourteenth and Eighth Amendment rights and named six defendants in their action: Michigan Department of Corrections, Daniel Heyns, Thomas Finco, Randy Treacher, Dennis Straub, and Millicent Warren. In his opinion and order, Judge Borman wrote that after a "rigorous analysis," the Court finds that the Plaintiffs have not carried their burden and shown that they satisfied the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, the Court finds that the Plaintiffs have not shown that the potential class is sufficiently numerous to meet the standard of Rule 23(a)(1). Further, Judge Borman opined, class certification at this time would be improper based on the fact that the named Plaintiffs do not appear to be adequate representatives and either fall outside the proposed class definition or may not have claims typical to the class based on a failure to exhaust their administrative remedies. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=wh9nK3D8 MICROSOFT INC: Supreme Court Set to Hear Xbox 360 Class Action -------------------------------------------------------------- National Constitution Center reports that the Supreme Court will return to the bench on January 9, 2017 as it starts a new calendar year. Here are cases to watch that the Justices will hear, or likely hear, before the end of April. Normally, the Justices wrap up arguments in cases in April, with the final decisions for a term announced in late June. However, with a vacancy on the bench to be filled in early 2017, it remains to be seen when some cases will be scheduled and heard in Washington. Here is a list of 10 cases being followed by court watchers as potentially significant: Endrew F. v. Douglas County School District (scheduled for arguments, January 11) The case addresses the following question: "What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act?" A 15-year-old Littleton, Colo., student, identified only as Endrew F. (his parents call him "Drew"), is challenging a federal appeals court ruling. The youth is autistic and has attention deficit disorder, compromising his verbal and non-verbal communications skills. When his parents and school officials couldn't agree on a plan for him in public schools, he was placed in a private school that specializes in teaching autistic students. The family then sued to recover the private school tuition, contending that the school district was obliged to pay because it failed to provide Drew with an adequate educational opportunity. A trial judge and the U.S. Court of Appeals for the Tenth Circuit denied the challenge, finding that the law only required a benefit just above the trivial, and that Drew had done a bit better than that in public school. Lee v. Tam (scheduled for arguments, January 18) Lee v. Tam involves an appeal by the federal Patent and Trademark Office, seeking to have the Supreme Court revive a disparagement law. It has been struck down by a federal appeals court, in a case involving a rock music band that wanted to register its name, the SLANTS, for protection as a trademark. The denial of that registration, the appeals court said, stifled the band's free speech rights. The law against disparaging trademarks has existed since 1946, but the Supreme Court has never interpreted its meaning or scope. That has meant that the Patent and Trademark Office had wide discretion about what is banned under the law. Lawyers for the Washington Redskins football team had tried to link an appeal about a trademark ban on the team's name to the Lee v. Tam case, but the appeal was denied by the Court in October and a related federal court case is on hold, pending the outcome of the Lee v. Tam case. Gloucester County School Board v. G.G. (to be scheduled) The Court for the first time takes on the question of transgender rights in the case of Gloucester County School Board v. G.G. The Justices will consider the appeal of a county school board in Virginia, challenging a federal appeals court ruling that gave a 17-year-old transgender boy a right to use the school restroom that conforms to his gender identity. Specifically, the order grants review of two questions. One of those is the legality of the federal government's view that the federal law banning sex bias in federally funded education programs also forbids discrimination based on gender identity. If the final decision does settle that issue, it could be the court's first major ruling on the transgender rights controversy -- the latest dispute over civil rights. But the second question to be reviewed, if the decision goes against the government position, could make it unlikely the question about transgender rights will be decided. That other question tests whether the government announced its policy on transgender rights in the procedurally proper way. A ruling against the policy declaration would send this case back to the federal appeals court, which had relied on the declaration in ruling in favor of the transgender boy's rights. Los Angeles County v. Mendez (to be scheduled) The case centers on a legal rule that one federal appeals court has adopted, but others refuse to follow. It takes away the legal immunity of policeofficers for the use of "excessive force" -- here, shooting two homeless people in the shed they occupied -- if the officers' actions provoked a violent response. The response at issue in this case was that one of the individuals who was shot and wounded raised a BB gun and pointed it at officers after they had broken into the shed without a search warrant. In general, police have legal immunity for their actions in the line of duty, unless they violate someone's clearly established constitutional rights. Over the years, courts have taken differing approaches on when such rights have been spelled out clearly. Police shootings in recent years have been involved more often in such cases. Trinity Lutheran Church of Columbia v. Pauley (to be scheduled) The Supreme Court seeks to answer the question of whether religiously affiliated schools can be constitutionally denied equal access to a government benefit, even if the benefit has nothing to do with matters of faith. At issue is a program in Missouri that provides rubberized material for school playgrounds, made out of old tires. Missouri's constitution bars parochial schools from such public benefits, explicitly because of the Missouri constitution's "Blaine Amendment," first adopted in 1875. The amendment still reads in part: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination or religion" The church appealed to the Supreme Court, arguing that "no public benefit could be further removed from the state's anti- establishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose." Murr v. Wisconsin (to be scheduled) The Supreme Court will look back at one of its big decisions from the 1970s when it hears a dispute involving four family members and the state of Wisconsin. In 1978, Justice William Brennan wrote for a 6-3 majority in the Penn Central v. New York City case that redefined property rights under the Fifth Amendment's Takings Clause. In Murr v. Wisconsin, the Murr family has owned two riverfront lots since the 1960s; one of the lots contained a vacation cottage; the other lot wasn't developed. The parents bought the two lots originally, and they were conveyed to four of their children in 1994 and 1995. In 2004, when the children began to explore selling the empty lot to pay for improvements in the cottage, they found out that a zoning law established in 1975 barred the children from selling the empty lot separate from the cottage. The zoning law also prohibited the development of the empty lot because it didn't meet minimum size requirements for an independent lot. The family's lawyers cited another Supreme Court decision, Lucas v. South Carolina Coastal Council (1992), which said that the denial of all economic use of a property by a government regulation was a taking under the Fifth Amendment and required just compensation. The state government argued that the properties should be considered as a "whole" in the takings analysis, citing the Penn Central decision Hernandez v. Mesa (scheduled for February 21) The United States Supreme Court said in October it would accept an appeal from the family of a boy from Mexico who was fatally shot by a U.S. Border Patrol officer. Sergio Adrian Hernandez Guereca, 15, died in 2010 as he stood on Mexican soil by a border officer who fired his gun while on United States soil in Texas. The agent claimed Hernandez and others were throwing rocks at him. Mr. Hernandez's family sued the agent for damages, but in 2015 the Fifth Circuit appeals court said the family had no standing to sue because the teen was a Mexican citizen and not protected by the Fifth Amendment under its Due Process clause or by the Fourth Amendment. The full appeals court had unanimously ruled in favor of the agent. The Supreme Court took the appeal and also added a question about determining if the parents had a constitutional right to sue a Border Patrol officer. TC Heartland LLC v. Kraft Foods (to be scheduled) In a highly significant case involving patent law, the Court agreed to decide where lawsuits claiming infringement of a patent can be filed. In recent years, so-called "patent trolls," who buy patents just to try to turn them into money-makers by suing others for infringement damages, have been concentrating the filling of their cases in just a few federal courts where they believe their claim will get a friendly reception. A surprising proportion of those cases is being filed in just one federal court in Texas. The issue of the proper location for infringement lawsuits arose in a patent dispute between an Indiana food company -- Heartland Food Group -- that produces water products that are sweetened or flavored. It has been sued in Delaware for infringement by the giant Kraft Foods Group because Kraft is incorporated there, but Heartland has no place of business in that state -- for decades, the basis for court jurisdiction over a patent infringement case. This case is not about "patent trolling," as such, but that kind of legal maneuvering was a main part of Heartland's appeal, and apparently was a major factor in the Justices' willingness to rule on the venue issue. Turner v. United States and Overton v. United States (to be scheduled) These two cases are related to a gruesome murder in the nation's capital more than three decades ago, when all but one of those found guilty were teenagers. Their two appeals, combined in a single ruling, could clarify the constitutional duty of prosecutors to hand over to defense lawyers items of evidence that could help gain a not-guilty verdict. At issue is the constitutional duty that the Supreme Court imposed on prosecutors in a 1963 decision, Brady v. Maryland. Although that duty has been binding now for more than a half-century, the new appeals argued that lower courts remain uncertain about how to weigh the significance of evidence that prosecutors had withheld. In order to prove a violation of the Brady decision, a suspect's defense lawyer must show that the withheld evidence was likely to have altered the outcome of the trial if it had been brought out there. In technical terms, the evidence must be shown to be "material" to the outcome. In their appeals, one by six of those convicted and another by a seventh, their lawyers protested that a series of findings that turned up in the years after the 1985 trial was over had been withheld by prosecutors. Rather than limiting review to those specific claims, the Court said it would look at their cases as a whole, to see if their convictions should be overturned. Microsoft v. Baker (to be scheduled) This case addresses an issue involving class-action lawsuits that the late Justice Antonin Scalia had complained about in other decisions. In Microsoft v. Baker, a group of consumers in Washington State sued Microsoft, complaining that its Xbox 360 device had a defect that caused an optical disc to spin out of control, making the machine unplayable. The group sued as a class, since their individual claims would have been for small amounts, and pursuing them individually wasn't feasible. The group then lost the lawsuit in a trial court but they also used a legal option called a voluntary dismissal of a claim with prejudice to keep the case alive. The court accepted the Microsoft appeal to clear up a conflict among lower courts on the legality of the dismiss-then-appeal question. MINNESOTA: Appeals Court Says Sex Offender Program Constitutional ----------------------------------------------------------------- Steve Karnowski, writing for The Associated Press, reports that Minnesota's program for keeping sex offenders confined after they complete their prison sentences is constitutional, a federal appeals court ruled on Jan. 3, reversing a lower-court judge who said it violates offenders' rights because hardly anyone is ever released. A three-judge panel of the 8th U.S. Circuit Court of Appeals sided with the state, which argued that the program is both constitutional and necessary to protect citizens from dangerous sexual predators who would otherwise go free. The appeals court sent the case back to the lower court. Seven offenders are currently free on provisional releases from the Minnesota Sex Offender Program, and only one has been permanently discharged, even though the program is more than 20 years old. That led U.S. District Judge Donovan Frank in 2015 to declare the program unconstitutional and order changes to make it easier for people to get on a pathway for release. As of Jan. 3, 721 people were being held under the program. The appeals court ruled that Judge Frank erred in finding the program unconstitutional, saying he held the state to an overly high standard when he declared the program shocked the conscience. The panel concluded that the plaintiffs failed to demonstrate that any of the state's actions or shortcomings in the program "were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard." Dan Gustafson, lead attorney for the plaintiffs in the class- action lawsuit, said they're "really disappointed" and are considering an appeal to either the full 8th Circuit or to the U.S. Supreme Court. He said Judge Frank's ruling had given them some hope that they weren't just being "warehoused." The Minnesota case has been closely watched by lawyers, government officials and activists in the 20 states with similar programs. While civilly committed offenders in California, Wisconsin, New Jersey and other states are allowed to re-enter society after completing treatment, Minnesota has the highest per capita lockup rate, and its courts didn't order the unconditional release of anyone from its program until August. Eric Janus, a professor at Mitchell Hamline School of Law in St. Paul and an expert on the program, said it appears the 8th Circuit used the lower "rational basis" standard, which gives the state more leeway in designing and implementing the program, when it decided that the program is constitutional. He said he doesn't think that leaves Frank any room to still find the program unconstitutional. "I would say it's not a complete death-knell" for the critics of the program, Mr. Janus said, noting the possibility of further appeals. "But this is a very serious setback." Gov. Mark Dayton welcomed the decision while insisting it wouldn't stop his efforts to improve the program, including seeking funding for less-restrictive facilities. "That means we can continue to make the reforms that we have started and at affordable costs to our state budget," Gov. Dayton said. The program is run by the Minnesota Department of Human Services. The agency's commissioner, Emily Piper, also welcomed the court's decision that the program was constitutional, but she said the Legislature needs to provide more money to keep it that way. She said the program faces "significant challenges" in complying with other court orders to move people in advanced treatment stages into less-restrictive settings. Among other things, Piper said, the courts have ordered provisional discharges for six people but there's no place to send them. Minnesota's offenders are confined by court order for treatment at secure facilities in Moose Lake and St. Peter that are ringed by razor wire, though there's a section outside the wire at St. Peter for people in the later stages of treatment who have limited freedoms. They're officially considered patients or residents, not prisoners. But the lawsuit argued that the program amounts to a life sentence. Judge Frank stopped short of shutting the program down in 2015, instead ordering changes including risk assessments for all patients to determine which could be put on a faster path toward release into less restrictive settings. The 8th Circuit stayed his rulings while it considered the appeal. Minnesota has struggled for years with the rising costs of the program. It costs more than $120,000 a year to house just one resident, triple the cost of prison. But lawmakers -- many fearful of appearing soft on crime -- have resisted major changes. The constitutionality has been in dispute from the start, but state and federal courts consistently affirmed it until Judge Frank ruled in 2015. MODANI HOUSTON: Class Cert. Sought in Muhire & Trent Case --------------------------------------------------------- In the lawsuit titled IVAN MUHIRE and CASSANDRA TRENT, individually and on behalf of all others similarly situated, the Plaintiff, v. MODANI HOUSTON LLC and MODANI HOLDINGS LLC, the Defendants, Case No. 4:16-cv-02178 (S.D. Tex.), the Plaintiffs move the Court for conditional certification of: "all Sales Associate / Design Specialists employed by Modani Holdings LLC at all Modani furniture stores within the past three years". Ivan Muhire and Cassandra Trent filed the lawsuit to recover unpaid overtime wages owed to current and former Sales Associate/Design Specialists employed by the Defendants, during the past three years. Plaintiffs allege that Defendants misclassified them and all other Sales Associates/Design Specialists as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=IgSJethE The Plaintiff is represented by: Taft L. Foley, II, Esq. THE FOLEY LAW FIRM 3003 South Loop West, Suite 108 Houston, TX 77054 Telephone: (832) 778 8182 Facsimile: (832) 778 8353 E-mail: Taft.Foley@thefoleylawfirm.com MYER HOLDINGS: Former Shareholder Files Class Action ---------------------------------------------------- David Chau, writing for Finance News Network, reports that Australia's largest department store, Myer Holdings has been sued in a Federal Court class action, launched by a former shareholder, TFT Patrol Pty Ltd. TFT alleges it suffered loss and damage from statements made by Myer regarding its 2014 full-year results. And TFT has brought these proceedings on behalf of itself, and a group of defined, but unnamed shareholders. Just weeks ago, Myer was also the subject of a different class action from another aggrieved shareholder, Melbourne City Investments Pty Ltd. However, the Supreme Court of Victoria permanently stayed those proceedings because it found the MCI class action to be an abuse of the legal process. Myer says it denies liability and will vigorously defend the new proceedings. Myer posted a net profit of $60.5 million at July 31, 2016. MYLAN: Class Action Over EpiPen Pricing Pending in Cincinnati ------------------------------------------------------------- Brianna Smith, writing for Legal Reader, reports that Mylan, a company that came under fire last year for drastically raising their prices of the EpiPen, a lifesaving device used by many across the country, is now back in the news. Despite introducing a generic version of their allergy medication in response to the backlash they received, lawsuits against the company have begun to spring up in the federal court system from Kansas and Cincinnati to California. One such lawsuit was filed by an attorney in Cincinnati, Carl Lewis, back on September 6, 2016. According to the lawsuit, Mylan "violated the state's consumer protection law" and claims Mylan "has a legal duty and obligation to set a fair, affordable, and reasonable price and not hold consumers hostage by forcing them to pay exorbitant prices for its medically necessary product." Since filing, an estimated 100 people have signed on to join the case. Even today, more and more people are seeking to join, and all Mr. Lewis is waiting on to proceed is for a "judge to formally certify it as a class-action case." Why are so many people angry towards Mylan, though? Well, let's recap. Since 2009, the company has raised the cost for the EpiPen injectors by 500%. Before the price hike, the lifesaving device that helps quell sometimes fatal allergic reactions to things like bee stings and peanut allergies, was affordably priced at $50. Now, people across the nation are having to shell out up to $600 for the injector. We're not talking about some device that few people use, not at all. Just last year, Mylan's EpiPen was the "number one dispensed epinephrine auto-injector," and accounted for an estimated $1 billion in sales during 2015. In fact, the reason why so many people are angry at Mylan is because so many people depend on the EpiPen's lifesaving abilities, and feel that Mylan cares more about profits rather than saving lives. The lawsuit filed by Mr. Lewis actually describes the plight of many of the angry people Mylan is having to contend with, including Linda Bates, a resident of Cincinnati. She's one of the very people who is now expected to cough up $600 to ensure her teenage son has an EpiPen on him at all times. Why? Because her son has a peanut allergy. Her son depends on the EpiPen because if he ever experiences an allergic reaction to peanuts, the epinephrine in the injector will stop the reaction. Unfortunately, an injector is only good for about a year, forcing parents like Linda into continuously purchasing the injectors year after year. To make matters worse, the devices are only sold with two injectors per pack. That's up to $600 for only two injectors! In fact, the United States is the only country in the world where customers are required to purchase a two-pack of the injectors. In places like Canada, where EpiPen's sell for about $100, customers can purchase single injectors, and the more affordable price ensures that families who might need more than two per year can actually afford it. It's no wonder people are outraged and it's no surprise that many are alleging that Mylan has a monopoly on the market. In fact, Mr. Lewis' lawsuit accuses Mylan of being motivated by profits and greed, "not medicine or the welfare of its customers." With so many people who depend on the EpiPen in case of accidents, it's absurd that a company would raise their prices so high, making the injector virtually unaffordable for many. Hopefully, lawsuits like the one filed by Mr. Lewis will bring about some change in the future. NATIONAL RECOVERY: FDCPA Class Certified in "Zirogiannis" Suit -------------------------------------------------------------- The Hon. Denis R. Hurley entered a memorandum and order in the lawsuit entitled JEANNETTE ZIROGIANNIS, an individual, on behalf of herself and all others similarly situated v. NATIONAL RECOVERY AGENCY, INC., Case No. 2:14-cv-03954-DRH-AYS (E.D.N.Y.), granting the Plaintiff's motion to certify a class consisting of; "(1) all natural person[s] in the State of New York; (2) to whom Defendant sent a written communication containing language materially similar to Exhibit C of the Complaint; (3) subsequent to a request for a validation pursuant to the FDCPA; (4)which was not returned as undelivered by the United States Postal Service; [and] (5) during the one year immediately preceding the filing of the Complaint and ending 21 days thereafter." Jeanette Zirogiannis commenced the action against the Defendant alleging violations of the Fair Debt Collection Practices Act. Ms. Zirogiannis is appointed as class representative and Abraham Kleinman, Esq., is appointed as class counsel. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Vy8wn8Jc The Plaintiff is represented by: Abraham Kleinman, Esq. KLEINMAN LLC 626 RXR Plaza Uniondale, NY 11556-0626 Telephone: (516) 522-2621 Facsimile: (888) 522-1692 E-mail: akleinman@kleinmanllc.com The Defendant is represented by: Cindy D. Salvo, Esq. THE SALVO LAW FIRM, P.C. 185 Fairfield Avenue, Suite 3C/3D West Caldwell, NJ 07006 Telephone: (973) 988-1707 E-mail: csalvo@salvolawfirm.com NCB MANAGEMENT: Class Cert. Bid in "Williams" Denied as Moot ------------------------------------------------------------ The Hon. Milton I. Shadur entered an order in the lawsuit captioned Pamela Williams, the Plaintiff, v. NCB Management Services Incorporated, the Defendant, Case No. 1:16-cv-09322 (N.D. Ill.), denying as moot Plaintiff's motion to certify class according to the docket entry made by the Clerk on December 27, 2016. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=yp4s6LWH NEW JERSEY: "Holmes" Suit Seeks Certification of Class ------------------------------------------------------ In the lawsuit titled WILFRED LEE HOLMES, the Plaintiff-Movant; v. CHRIS CHRISTIE, ET. AL., the Defendants-Respondents, Case No. 2:16-cv-01434-ES-MAH (D.N.J.), the Plaintiff asks the Court for an order granting class certification or alternative of denial without prejudice pending completion of limited bifurcated discovery pertaining to ascertainability of numerousity superiority. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=vpuq4HNX On Dec. 29, Plaintiff filed a Motion to Certify Class. The Motion is set for hearing on Feb. 6, 2017, before Judge Esther Salas. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. The Plaintiff appears pro se. The case alleges claims for prisoner civil rights. NEW YORK: Police Dep't Allows Sikh Officers to Wear Full Turbans ---------------------------------------------------------------- CNN Wire reports that Sikh officers can now wear full turbans in the New York Police Department. NYPD Commissioner James O'Neill announced the policy change on Dec. 28, flanked by officers in navy blue turbans fastened with police brass. "We want to make the NYPD as diverse as possible, and I think this is going to go a long way to help us with that," Mr. O'Neill said. "It's a major change in our uniform policy, so we had to go about it carefully. And now I have the opportunity to make the change, and I thought it was about time that we did that." While the NYPD patrol guide maintains a strict policy regarding head coverings, officers will now be able to wear turbans with a religious exemption signed by top department officials, Mr. O'Neill said. There are about 160 Sikh officers in the NYPD, the commissioner said. Before the policy change, Sikh officers could wear a smaller wrap, known as a patka, beneath their official police cap, said Gurvinder Singh, an NYPD officer and president of the national Sikh Officers Association. "Now I'll be able to serve with my full turban on. It's a great feeling," he said. "There will be a lot more Sikh officers now taking the next exam." Facial hair still an issue The NYPD also announced on Dec. 28 a religious accommodation allowing for officers to, with approval, grow a beard up to half an inch long. The previous policy had allowed for beards of up to a millimeter in length. Some leaders in the Sikh community applauded the policy change on turbans, but said the NYPD needed to go further with the policy on facial hair. "While it's definitely a great step, we look forward to reviewing the policy in depth and ensuring that Sikhs can serve with their turban and beards intact and with no limitations or restrictions to either," said Kavneet Singh, a board member of the Sikh American Legal Defense and Education Fund. The turban and the practice of keeping a beard or unshorn hair, known as kesh, are among the articles of faith maintained by Sikhs. Over the summer, the NYPD was sued by a Muslim officer, Masood Syed, who said he was suspended, stripped of his badge and gun for wearing a beard longer than protocol. Mr. Syed, who lives in Queens, was later reinstated after receiving a temporary restraining order from a Manhattan federal judge, though his case remains open. The class-action suit calls the limitation unconstitutional and Syed is seeking a policy allowing for a 2-inch beard -- long enough to comply with religious doctrine. In an interview, Mr. Syed called the Dec. 28 announcement "arbitrary" and a "disappointment." "I'm still disappointed. If they're saying now that the policy is half an inch and I'm walking around in police headquarters with the top brass, walking around with a beard that's 1 1/2 to 2 inches, where does that leave me? Am I going to be suspended again? Am I going to be walked out of the building again?" Mr. Syed said. Mr. Syed, a lawyer and 10-year veteran of the NYPD, added: "It's not just for Muslims. We have Sikh officers, we have Jewish officers, we have Israelite officers, who all believe that the beard length should be longer than half an inch, who have all approached me and asked me to represent them and submitted their name in support of this policy. For me, it's important because of my faith and my religion, but it's also important for me to represent those other officers." The NYPD would not comment on Dec. 28 on the ongoing lawsuit. Similar police policies rare Only about a half dozen police forces across the country have explicit accommodations to allow for Sikhs to serve with a turban and beard, according to SALDEF. Washington DC's Metropolitan Police Department became the first major force in the country to enact such a policy in 2012, though no Sikhs currently serve there, Singh said. The NYPD's new policy follows similar ones in Harris County, Texas -- which includes the city of Houston -- and Riverside, California. Singh said both those forces' policies go further than the NYPD's to allow for full beards. The NYPD had previously prohibited beards because they interfere with certain gas masks. Huge and diverse police department As the largest police force in the country, the NYPD has long prided itself on being one of the most diverse. About 900 Muslim Americans serve in the NYPD, city officials have said. Female Muslim officers have for years been able to receive a religious exemption allowing them to wear head scarves, according to Lt. Adeel Rana, president of the NYPD's Muslim Officers Society. The policy announcement on Dec. 28 followed a graduation ceremony held at Madison Square Garden that saw over 550 men and women sworn in as New York City police officers. Of the graduating class, 48% of the officers are white, 26% Hispanic, 12% black, and more than 13% Asian, police said. NORTH CAROLINA: Lewis' Bid to Certify Prisoners Class Denied ------------------------------------------------------------ The Hon. Frank D. Whitney entered an order in the lawsuit titled BRIAN K. LEWIS; JAMIE R. SPAKE v. NC DEPARTMENT OF PUBLIC SAFETY/DIVISION OF PRISONS, et al., Case No. 1:15-cv-00284-FDW (W.D.N.C.): -- denying the Plaintiffs' supplement to motions for reconsideration; -- denying the Plaintiffs' motion to challenge multiple filing fees, as there is only one $350 filing fee associated with prisoner civil litigation in Section 1983 actions, although they are both charged with ensuring the full fee is satisfied to the extent they are financially able; -- denying without prejudice the Plaintiffs' motion for appointment of counsel; and -- denying the Plaintiffs' motion for class certification. The Plaintiffs, who are prisoners of the State of North Carolina, filed a complaint seeking to represent themselves and similarly situated prisoners on claims which allege the North Carolina Department of Public Safety (DPS), and other defendants in various ways, have violated their right to be free from cruel and unusual punishment by withholding critical medical treatment. Judge Whitney further ordered that Plaintiff Lewis must file the Step-Three response to his initial grievance or a sworn statement explaining why he cannot file the response. Failure to comply with the order within 14-days from its entry will result in dismissal of Plaintiff from this civil case and without further notice, Judge Whitney stated. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=DOVwQzmd NORTH SHORE: Faces "Otero" Suit in S.D. of New York --------------------------------------------------- A class action lawsuit has been filed against North Shore Agency, LLC. The case is styled as Magalis Otero, on behalf of all others similarly situated, the Plaintiff, v. North Shore Agency, LLC, the Defendant, Case No. 1:16-cv-09896 (S.D.N.Y., Dec. 22, 2016). North Shore provides accounts receivables outsourcing including first part billing services, collection letters, mailing services, and collection services. The Plaintiff is represented by: Novlette Rosemarie Kidd, Esq. FAGENSON & PUGLISI 450 Seventh Avenue New York, NY 10123 Telephone: (212) 268 2128 Facsimile: (212) 268 2127 E-mail: nkidd@fagensonpuglisi.com ONE INC: Judge Allows "After School" App Class Action to Proceed ---------------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that a Chicago federal judge will allow a potential class action lawsuit to proceed against the makers of "After School," a smartphone app designed to allow students attending the same high school to anonymously share messages, saying the app's use of allegedly unauthorized invitational text messages to grow its user base could violate federal law. And this decision, plaintiffs in the class action now say, could have implications for another class action lawsuit they have pending in Chicago federal court against the makers of another social networking smartphone app, which also sends allegedly unauthorized invitational text messages to other potential app users. On Dec. 20, U.S. District Judge Matthew F. Kennelly denied a motion from One Inc., maker of the After School app, to dismiss the lawsuit brought by plaintiff Matthew Warciak. Mr. Warciak is serving as the lead named plaintiff in the putative class action filed against San Francisco-based One by attorneys with the law firm of Edelson P.C., of Chicago. Mr. Warciak and the Edelson attorneys are also working together on lawsuits also pending in Chicago federal court against Nikil Inc., maker of the Down To Lunch smartphone app, and against Subway Restaurants. In the class action against One, which was originally filed in Cook County Circuit Court in June 2016, Mr. Warciak and his attorneys have argued the After School app violates federal and Illinois laws by sending text messages inviting other potential users it finds in the contacts directory in After School app users' phones. The lawsuit was removed to federal court in July. According to court documents, After School uses a multi-step process to verify users are students at the high school they claim to attend. Without this verification, users cannot join one of the virtual communities attached to actual high schools. At some point in the verification process, the court documents said, prospective users are asked to identify at least four other students at a particular high school to prove they also attend the school. At this point, the app purportedly accesses users' contacts directory, and then sends text messages to the other selected students, inviting them to also download and use the After School app. Since the app never informs users it will send those invitational text messages, or secures their permission to do so, Mr. Warciak alleged the app's actions violated the federal Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. In response, One Inc. argued the users' acts in the user verification process, including selecting and identifying various classmates, should thwart Mr. Warciak's legal claims. Kennelly, however, said this case appears to be different from others One had cited to support its position. While there is some "involvement" from After School users in selecting the recipients of the text messages, the judge said that doesn't mean the users agreed to allow After School to send texted invitations. "After School App users are at least required to make certain selections before the messages are sent," Judge Kennelly wrote. "This is immaterial, however, if the users are unaware that their selections will lead to invitational text messages." Judge Kennelly, however, said Mr. Warciak's assertions under the Illinois consumer fraud statute are on much shakier ground, as economic harm from the app's use of users' phone battery life or text message recipients' time "lost answering and deleting the unwanted text messages . . . are so negligible from an economic standpoint as to render any damages unquantifiable." He dismissed Mr. Warciak's claims under the Illinois law, while allowing his claims under the federal TCPA to proceed. After securing the largely favorable ruling from Kennelly, Mr. Warciak's attorneys moved Dec. 21 to leverage the decision in their lawsuit against Nikil, the makers of Down to Lunch, asking U.S. District Judge Thomas M. Durkin to apply Kennelly's reasoning to this lawsuit, as well. The app works by allowing friends -- particularly, high school and college students -- to suggest activities to other friends. When they agree on an activity, such as "lunch," "chill," or "study," among others, those wishing to participate click the button labeled "I'm Down." In the Down to Lunch lawsuit, also originally filed in Cook County court in April 2016, Mr. Warciak also asserted the app accesses users' contacts lists to send invitational text messages to other potential users without the permission or knowledge of the user, allegedly violating the federal TCPA law. Just as did One Inc., Nikil also asked the court to dismiss Mr. Warciak's class action lawsuit against them. However, in this case, Nikil said Down To Lunch specifically requires users to "click a conspicuously labeled 'Invite' button for each and every contact that the user wishes to invite to download the Down to Lunch App." Users also have the choice to skip the invitation step altogether, Nikil said in court documents it has filed responding to Mr. Warciak's lawsuit. Because of such aspects, Nikil argued Judge Kennelly's decision in Mr. Warciak's suit against One Inc. should not apply in the Down to Lunch case. "(Judge Kennelly) explained that so long as users are informed that invitations will be sent and have a choice in whether they decide to send messages or not, the user, and not the app, is considered the sender of the text," Nikil's attorneys wrote in a brief filed Jan. 3. Nikil Inc. is represented by attorneys with the firms of Fenwick & West LLP, of Seattle and Mountain View, Calif., and Mandell Menkes LLC, of Chicago. One Inc. is represented by the firm of Hinshaw & Culbertson, of Chicago. ORCHESTRATE HOSPITALITY: Edwards Seeks Final OK of $163,699 Deal ---------------------------------------------------------------- Daryetta Edwards moves for certification of the lawsuit captioned DARYETTA EDWARDS, on behalf of herself and all others similarly situated v. ORCHESTRATE HOSPITALITY, GROUP, L.L.C., et al., Case No. 4:16-cv-00063-JAJ-HCA (S.D. Iowa), as a class action for settlement purposes and for final approval of the matter's settlement. Ms. Edwards seeks final approval of a proposed $163,699 settlement of the matter as a class action. If approved by the Court, the Settlement would resolve all of the pending claims that the Plaintiff has brought against Defendants in the proceeding. The $163,699 settlement includes any litigation expenses and attorneys' fees to be awarded by the Court. Class Counsel will file a separate fee and expense application with the Court. Ms. Edwards also asks the Court to: a. dismiss with prejudice the pending action in its entirety; b. permanently enjoin Settlement Class members from filing, joining, or prosecuting any claims, suits, or administrative proceedings regarding claims released by the Settlement; and c. confirm that the parties remain bound by the terms of the settlement agreement and release, including without limitation the section on confidentiality, and that the Court retains jurisdiction to enforce its terms. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=4BXfQxni The Plaintiff is represented by: Harley C. Erbe, Esq. ERBE LAW FIRM 2501 Grand Avenue Des Moines, IA 50312 Telephone: (515) 281-1460 Facsimile: (515) 281-1474 E-mail: erbelawfirm@aol.com - and - Steven P. Wandro, Esq. Michael R. Keller, Esq. WANDRO & ASSOCIATES 2501 Grand Avenue Des Moines, IA 50312 Telephone: (515) 281-1475 Facsimile: (515) 281-1474 E-mail: swandro@2501grand.com The Defendants are represented by: Michael R. Reck, Esq. Kelsey J. Knowles, Esq. Espnola F. Cartmill, Esq. BELIN MCCORMICK, P.C. 666 Walnut St., Ste. 2000 Des Moines, IA 50309 Telephone: (515) 283-4645 Facsimile: (515) 558-0645 E-mail: mrreck@belinmccormick.com kjknowles@belinmccormick.com efcartmill@belinmccormick.com OREGON: Post No. 122 Sued Over Failure to Pay Workers Properly -------------------------------------------------------------- Anne Rodgers, both in her individual capacity and, in addition, as a collective action on behalf of others similarly situated v. Canby Post No. 122, The American Legion, Case No. 3:16-cv-02381-PK (D. Ore. December 23, 2016), seeks to recover unpaid minimum wages, liquidated damages and declaratory relief of former employees of POST 122. Canby Post No. 122, The American Legion is an Oregon public benefit corporation that was registered with the Oregon Secretary of State as doing business in Oregon. The Plaintiff is represented by: Jon M. Egan, Esq. JON M. EGAN, PC 547 Fifth Street Lake Oswego, OR 97034-3009 Telephone: (503) 697-3427 Facsimile: (866) 311-5629 E-mail: Jegan@eganlegalteam.com PALOS VERDES, CA: More Details Unveiled in Lunada Bay Class Suit ---------------------------------------------------------------- Chase Scheinbaum, writing for The Inertia, reports that ever wonder if the allegations of violence and vandalism at Lunada Bay are just a bunch of media hype? Don't take it from news stories. Dig in to dozens of statements made in support of the class action lawsuit against the Bay Boys, filed just before the new year and made available by the plaintiff's attorneys online. The declarations come from lawyers, retired correctional officers, therapists, former sponsored bodyboarders -- in other words, regular surfers who just wanted to snag a few of the quality rights that peel through the cove on big winter swells. And who say that the bullying, name-calling and physical assault they faced often prevented them from returning. That part is critical, because the plaintiffs are seeking damages of "$50 to $80" for every time a surfer claims they were affected. The amount could add up. In their estimation given the number of surfers and other people in Southern California who might want to visit, the bay should see at least 20,000 annual visitors. Yet, Lunada Bay is surfed by a fraction of the surfers who, localism notwithstanding, would want to paddle out there. The plaintiffs claim just 100 surfers regularly surf the spot. The documents were filed as part of the plaintiffs' bid to convince a federal judge to recognize the class of affected people so that the suit can proceed. It's the most detailed look yet at the wrongs surfers say they suffered. It's also the most fine- grained view of how the plaintiffs will try to prove their case, if the lawsuit proceeds to trial, which is penciled in for next October. Aside from statements, the documents include excerpts of emails and texts sent between Bay Boys that the plaintiffs allege show how they organized their gang-like efforts. Taken together, the statements paint a picture of localism that, according to one declaration, is worse than the heaviest localized spots on the North Shore of Oahu. In terms of hospitality, that would put it somewhere between V-Land and Ciudad Juarez. For those who'd rather not sift through hundreds of pages of legalese (it's a masochistic pleasure), we've pulled out a few of the juiciest morsels for you: 1) The plaintiffs allege that the Bay Boys have existed as a gang since the 1970s, when they codified a set of territorial rules they "will die by." "They haze those who seek to join, including making them 'drink frickin' piss to see how bad you want to be in this fraternity,'" according to the documents. 2) Palos Verdes Estates Police Chief Jeff Kepley agrees there "may be some truth" to the fact that the Bay Boys are "like an organized street gang." Yet he's been stifled in his efforts to police them. The plaintiffs allege that when Kepley took over the department, he brought the Bay Boys to the attention of the police and city council, but was met with a barrage of criticism and letters from alleged Bay Boys asking for his resignation. Not surprisingly, according to the material "Many current and former City police officers grew up with Bay Boys," one told Christopher Taloa, the surfer who organized a trip to Lunada Bay via Facebook, "We own the cops." 3) One plaintiff claims the Bay Boys rained rocks down on him from the bluff top as he walked down to the water. A rock struck his head, causing him to bleed. He says a Bay Boy told him: "Get your fucking brown ass out of here. You're going to attract sharks. You're bleeding, man." When he left the water he called the police to lodge a report. When an officer arrived, "I saw him pull something off his chest and put it into his pocket; I believe he was removing his name tag," the plaintiff said. When the officer learned that he lived in Manhattan Beach, "the officer told him 'maybe you shouldn't be surfing here.'" PARIS MAINTENANCE: "Moncion" Alleges Violations of FLSA, NYLL ------------------------------------------------------------- BETTY MONCION, on behalf of herself, individually, and on behalf of all others similarly-situated, Plaintiff, against PARIS MAINTENANCE & MANAGEMENT CO. INC., and CHARLES LOIODICE, individually, and ARDO ALVAREZ, individually, Defendants, Case No. 2:16-cv-07142 (E.D.N.Y., December 28, 2016), seeks damages and equitable relief based upon alleged violations that Defendants committed of Plaintiff's rights guaranteed to her by: (i) the Fair Labor Standards Act's minimum wage provisions; (ii) the New York Labor Law's minimum wage provisions; (iii) the NYLL's requirement that employers provide on each payday wage statements to their employees containing specific categories of accurate information; (iv) the NYLL's requirement that employer furnish employees with a wage notice at hire containing specific categories of accurate information; and (v) any other claim(s) that can be inferred from the facts set forth herein. PARIS MAINTENANCE & MANAGEMENT CO. INC. is a general contractor. The Plaintiff is represented by: Jeffrey R. Maguire, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 655 Third Avenue, Suite 1821 New York, NY 10017 Phone: (212) 679-5000 Fax: (212) 679-5005 PAYPAL HOLDINGS: Faces "Cho" Suit Over Securities Act Breach ------------------------------------------------------------ SHECK KWAI CHO, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. PAYPAL HOLDINGS, INC., DANIEL H. SCHULMAN, JOHN D. RAINEY, PATRICK L.A. DUPUIS, EBAY INC., JOHN J. DONAHOE, and ROBERT H. SWAN, Defendants, Case No. 3:16-cv-07371 (N.D. Cal., December 28, 2016), alleges that Defendants made false and/or misleading statements and/or failed to disclose that PayPal's Venmo service was engaged in unfair trade practices, in violation of the U.S. Securities Exchange Act. PAYPAL HOLDINGS, INC. operates as a technology platform company that enables digital and mobile payments on behalf of consumers and merchants worldwide. The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 468 North Camden Drive Beverly Hills, CA 90210 Phone: (818) 532-6449 E-mail: jpafiti@pomlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Phone: (212) 661-1100 Fax: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com PEARLAND CAPITAL: Class Certification Sought in "Stewart" Suit -------------------------------------------------------------- In the lawsuit titled CHASTITY STEWART, Individually, and on behalf of ALL OTHERS SIMILARY SITUATED, the Plaintiff(s), v. PEARLAND CAPITAL GROUP, LP D/B/A HILTON GARDEN INN PEARLAND, the Defendants, Case No. 4:16-cv-00948 (S.D. Tex.), the Plaintiffs seek conditional certification of a collective action consisting of, and judicially approved notice to, the following individuals: "all front office operations / guest service agents employed by defendant within the past three years." On April 7, 2016, Plaintiff Chastity Stewart filed a putative collective action lawsuit to recover unpaid overtime wages owed to current and former Front Office Operations / Guest Services Agents employed by Defendants Pearland Capital Group, LP., Hilton Garden Inn Pearland, during the past three years, Plaintiffs allege that Defendants routinely refused or failed to pay overtime wages. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=CP57oNV0 The Plaintiff(s) is represented by: Andre D. Evans, Esq. ANDRE EVANS & ASSOCIATES 3003 South Loop West, Suite 108 Houston, TX 77054 Telephone: (832) 941 1282 Facsimile: (832) 778 8353 E-mail: andre@attorneyandreevans.com PICK-A-PART: Faces "Torres" Suit in Eastern Dist. of California --------------------------------------------------------------- A class action lawsuit has been filed against Pick-A-Part Auto Wrecking. The case is captioned as Cirena Torres, on behalf of herself and all others similarly situated, the Plaintiff, v. Pick- A-Part Auto Wrecking, dba, Pick-A-Part, the Defendant, Case No. 1:16-cv-01915-DAD-BAM (E.D. Cal., Dec. 22, 2016). The case is assigned to Hon. District Judge Dale A. Drozd. Pick-A-Part is a self-serve car wrecker, discount car wrecker and AA Recycling scrap metal purchaser. The Plaintiff is represented by: Chant Yedalian, Esq. CHANT & COMPANY 1010 N. Central Ave. Glendale, CA 91202 Telephone: (877) 574 7100 Facsimile: (877) 574 9411 E-mail: chant@chant.mobi PILOT CORP: 11th Circuit Clarifies Jurisdiction in Class Action --------------------------------------------------------------- Mia Sims, writing for Legal Newsline, reports that in a recent racketeering class action case between an Alabama trucking company and one of its counterparts, the U.S. Court of Appeals for the 11th Circuit clarified jurisdiction in relation to class claims. "The practical effect is that the trucking company's individual claims against Pilot have to be heard in federal court rather than state court," Matthew Allen, attorney at Carlton Fields told Legal Newsline. Wright Transportation had filed a class action suit against Pilot Corp. over allegations it did not receive the fuel discounts promised in an arrangement. The claims were dismissed because Pilot had already reached settlement in a rival action, which meant Wright Transportation could not pursue class claims, Mr. Allen wrote in a blog post. Passed by Congress and signed into law by former President George W. Bush in 2005, the Class Action Fairness Act (CAFA) sought to reform class action practices by making it easier for defendants to remove cases from state court to federal court. It loosened the requirements for federal court jurisdiction over state law- based claims. Mr. Allen couldn't speak on the perceived advantages and disadvantages of the two parties being in federal or state court, but said as a general matter, defendants prefer to be in federal court, and plaintiffs usually prefer to be in state court. "There are a host of reasons for that, including perceptions about how rigorous the proof will be in a given court and the ease of settlement," Mr. Allen said. According to Mr. Allen, several related suits filed by parties who had opted out of the class settlement were consolidated into a multidistrict litigation (MDL) proceeding in a Kentucky federal court. The MDL court remanded the case to a federal court in Alabama, which dismissed the remaining racketeering and state law claims. Wright had sought dismissal so it could refile its claims in state court. Pilot resisted this move, and the 11th Circuit ruled for it. Mr. Allen said the trial court in Alabama had "dismissed the idea that claims that started out as a class action but didn't continue in that form should still be litigated in state court. It reached this conclusion by invoking the concept of supplemental jurisdiction." But supplemental jurisdiction is an entirely separate concept, as the 11th Circuit pointed out in reversing, reinforcing its prior decision in Vega v. T-Mobile USA Inc. (11th Circuit, 2009). "Supplemental jurisdiction applies when federal court jurisdiction is predicated on the existence of a federal claim (like RICO) and the federal claim is dismissed," Mr. Allen said. "The court can decline to continue to preside over 'ride-along' state law claims. That has nothing to do with jurisdiction predicated upon CAFA, which is a type of 'diversity' jurisdiction that applies only to state law claims." Mr. Allen said the decision of the court isn't surprising to him. "The court ruled as it did because the reasoning of its prior precedent in the Vega case required it," Mr. Allen said. "Beyond that, as a policy matter, the court understood that Congress wanted cases that started out as class actions to be litigated in federal court as much as possible." Mr. Allen said the case does still have its breach of contract and unjust enrichment claims, but preferred not to speak on why the plaintiff didn't accept being a part of the class settlement in Arkansas. "I can imagine that the plaintiff, as one of Pilot's larger customers, thought it could get more money by litigating its claims separately in Alabama state court than by participating as a class member in the Arkansas class settlement," Mr. Allen said. PREMIER NUTRITION: Faces False Advertising Class Action in Calif. ----------------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a consumer alleges a joint health product's benefits are falsely advertised. Marilyn Spencer filed a complaint on behalf of individually and on behalf of all others similarly situated on Dec. 12 in the U.S. District Court for the Northern District of California against Premier Nutrition Corp., formerly known as Joint Juice Inc., alleging violation of the Maryland Consumer Protection Act. According to the complaint, the plaintiffs allege that she and those similarly situated consumers were enticed to purchase defendant's Joint Juice Products by its deceptive claim that the dietary supplement will support and nourish cartilage, lubricate joints, and improve joint comfort. However, the products allegedly do not perform as advertised because despite defendant's claims, glucosamine, alone or in combination with other ingredients, is not effective in providing the claimed joint health benefits. The plaintiff requests a trial by jury and seek judgment in her favor, declare case as a class action, designate plaintiff as class representative and her counsel as class counsel, ordering defendant to pay damages, punitive and statutory damages, injunctive relief, corrective advertising, attorneys' fees, costs, interest and further relief as may be just. She is represented by Timothy G. Blood, Leslie E. Hurst and Thomas J. O'Reardon II of Blood Hurst & O'Reardon LLP in San Diego, Todd D. Carpenter of Carson Lynch Sweet Kilpela & Carpenter LLP in San Diego, Adam J. Levitt and Edmund S. Aronowitz of Grant & Eisenhofer PA in Chicago and Joseph J. Siprut of Siprut PC in Chicago. U.S. District Court for the Northern District of California Case number 4:16-cv-07090 PRESSLER & PRESSLER: Faces "Flores" Suit in E.D.N.Y. ---------------------------------------------------- A class action lawsuit has been filed against Pressler & Pressler, LLP. The case is titled as Arlene Flores, on behalf of herself and all others similarly situated, the Plaintiff, v. Pressler & Pressler, LLP, Sheldon H. Pressler, Gerard J. Felt, Lawrence J McDermott, Jr., and David B. Warshaw, the Defendants, Case No. 1:16-cv-07073 (E.D.N.Y., Dec. 22, 2016). Pressler and Pressler is a law firm located in East Hanover New Jersey. The company collects debts for credit card companies and cell phone companies. The Plaintiff appears pro se. PROBALANCE INC: Class Certification Hearing Continued to Jan. 17 ---------------------------------------------------------------- The Hon. Jorge L. Alonso entered an order in the lawsuit captioned John M Ulrich, the Plaintiff, v. Probalance, Inc., the Defendant, Case No. 1:16-cv-10488 (N.D. Ill.), continuing hearing on Plaintiff's motion for class certification to January 17, 2017 at 9:30 a.m. According to the docket entry made by the Clerk on December 21, 2016, the initial status hearing previously set for December 22, 2016 is stricken and reset to January 17, 2017 at 9:30 a.m. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=RWsBn7rY Q.S. SAN LUIS: Court Okays "Orduna" Class Action Settlement ----------------------------------------------------------- In the lawsuit styled LILI ORDUNA, as an individual, and on behalf of all others similarly situated, the Plaintiff, v. Q.S. SAN LUIS OBISPO, a California limited partnership; WARMINGTON HOTEL ASSOCIATES 7, L.P., a California limited partnership; WINEGARDNER & HAMMONS, INC., an Ohio Corporation; and DOES 4 through 10, the Defendants, Case No. 8:15-cv-00593-JLS-DFM (C.D. Cal.), the Hon. Josephine L. Staton entered an order on December 20, 2016 granting Plaintiff's motion for final approval of class action settlement and Plaintiff's motion for attorneys' fees, costs, and awards. The Court said, "After weighing the services rendered, the risks undertaken, and relative size of the incentive award compared to the total settlement fund and class member's proceeds, the Court finds a service award of $7,500 to be excessive under the circumstances. The Court will award $3,000 to Plaintiff. The Court awards Class Counsel $10,019.51 in costs and $121,500 in attorneys' fees, based on an award of 27% of the gross settlement fund. The Court also awards a service payment of $3,000 to Lili Orduna. Distribution of the settlement fund to claimants shall be made in accordance with the method outlined in the settlement. Plaintiff shall submit a proposed judgment. The claims administrator is CPT Group, Inc. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=EkuZnkO4 RCI HOSPITALITY: Exotic Dancers File Suit Over Unpaid Wages ----------------------------------------------------------- Wadi Reformado, writing for Florida Record, reports that a Miami adult entertainment club is accused of misclassifying its exotic entertainers and dancers as independent contractors in a class action filed by two former dancers. Leeza Garvin, Jenell Farnsworth, individually and behalf of all others similarly situated, filed a complaint on behalf of all others similarly situated on Dec. 16 in the U.S. District Court for the Southern District of Florida, Miami Division against the RCI Hospitality Holdings Inc.; Miami Gardens Square One Inc., doing business as Tootsie's Cabaret; and Eric Langan citing the Fair Labor Standards Act. According to the complaint, the plaintiffs allege that their only compensation while working for the defendants was tips from patrons. The plaintiffs holds RCI Hospitality Holdings Inc.; Miami Gardens Square One Inc., doing business as Tootsie's Cabaret; and Langan responsible because the defendants allegedly failed to pay overtime premiums at a rate of time-and-one-half to the plaintiffs or pay a minimum wage. The plaintiffs request a trial by jury and seek unpaid minimum wages, overtime compensation, unpaid wages, liquidated damages, all legal fees and any other relief as the court deems just. They are represented by Andrew R. Frisch of Morgan & Morgan PA in Plantation. U.S. District Court for the Southern District of Florida, Miami Division Case number 1:16-cv-25221-DPG RCP AMERICA: Cert. of Detailers Class Sought in "Allen" Suit ------------------------------------------------------------ Kevin Allen asks for an order certifying class and permitting Court-supervised notice to all putative class members affected by the claims in the action titled KEVIN ALLEN, on behalf of himself and on behalf of all others similarly situated v. RCP AMERICA, INC. and MICHAEL D. LAMB, individually, Case No. 8:16-cv-22844- VMC-AEP (M.D. Fla.). The lawsuit is a collective action to enforce the overtime wage provisions of the Fair Labor Standards Act. The Plaintiff alleges that the Defendants violated the FLSA by not paying employees an overtime premium for hours worked over 40 hours. The Plaintiff moves the Court to conditionally certify and authorize the Plaintiff to mail and e-mail Notice of the lawsuit and Consent to Become a Party Plaintiff Form to: All "detailers" who worked for Defendant within the last three years who believe they were not paid proper overtime wage compensation during any work week of their employment within the applicable statute of limitations period. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ROVfaiLW The Plaintiff is represented by: Donna V. Smith, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Telephone: (813) 337-7992 Facsimile: (813) 229-8712 E-mail: dsmith@wfclaw.com The Defendants are represented by: Brian F. Stayton, Esq. STAYTON LAW GROUP, P.A. River Hills Plaza 4371 Lynx Paw Trail Valrico, FL 33596 E-mail: brian@staytonlawgroup.com ROADRUNNER INTERMODAL: "Rich" Suit Moved From C.D. to E.D. Cal. --------------------------------------------------------------- The Hon. Dolly M. Gee transferred the lawsuit entitled Nicholas E. Rich, et al. v. Roadrunner Intermodal Services, LLC, et al., Case No. 2:15-cv-07330-DMG-JPR, from the U.S. District Court for the Central District of California to the U.S. District Court for the Eastern District of California. "Having reviewed the parties' responses to this Court's November 9, 2016 Order to Show Cause, the Court hereby TRANSFERS this action to the United States District Court for the Eastern District of California under the first-to-file rule. See Doc. # 49 (citing first-filed action, Singh v. Roadrunner, No. CV 15-1497, currently pending in the Eastern District of California). None of the exceptions to the first-to-file rule apply in this case," Judge Gee said in a civil minutes. The Plaintiffs have contended that convenience to the parties weighs in favor of maintaining the action with Central District Court. The Ninth Circuit has cautioned, however, that any argument in favor of relaxing the first-to-file rule on grounds of convenience "should be addressed to the court in the first-filed action," according to the Civil Minutes. The Plaintiffs' motion for class certification is denied without prejudice to being re-filed in the Eastern District of California. All scheduled dates and deadlines are vacated. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=VPP2Lm58 ROADRUNNER TRANSPORATION: Court Certifies Class in "Spates" Suit ---------------------------------------------------------------- In the lawsuit styled SOL SPATES and WESLEY LEWIS Individually and on Behalf Of a Class of Similarly Situated Individuals, Plaintiffs, v. ROADRUNNER TRANSPORATION SYSTEMS, INC., and ADRIAN CARRIERS, LLC, the Defendants, Case No. 1:15-cv-08723 (N.D. Ill.), the Hon. Harry D. Leinenweber certified a class of: "all persons who have worked for the Defendants as delivery drivers in Illinois at any time during the applicable limitations period and who have been classified as independent contractors rather than employees." The Court declined to comment on the merits of the case. According to Judge Leinenweber, it could be that the independent contractor agreement proves that Plaintiffs expressly agreed in writing to all relevant deductions, which would obviate IWCPA protection. The Court merely holds that the proof relevant to deductions will be common to all class members, such that Rule 23(b)(3)'s predominance requirement is satisfied. Sol Spates and Wesley Lewis worked as truck drivers for the Defendant delivery companies Roadrunner Transportation Systems, Inc. and Adrian Carriers, LLC. The Plaintiffs allege they were improperly classified as independent contractors rather than employees of Defendants, and that Defendants consequently made illegal deductions from their pay in violation of the Illinois Wage Payment and Collection Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=QsMiWzcB ROCKWATER ENERGY: Gomez Seeks Certification of Employee Class ------------------------------------------------------------- In the lawsuit entitled RENE GOMEZ, individually and on behalf of others similarly situated, the Plaintiff, v. ROCKWATER ENERGY SOLUTIONS, INCORPORATED and ROCKWATER MID-CON, LLC, the Defendants, Case No. 4:16-cv-02035 (S.D. Tex.), the Plaintiff asks the Court to certify a class of: "all current and former employees of Defendants Rockwater Energy Solutions, Inc., Rockwater Mid-Con, LLC and/or predecessor companies of said entities that held positions as well testers, or held similar job positions that included similar job duties, from July 11, 2013, through the present". The Plaintiff claims that Defendants improperly classified him and other similarly situated employees as exempt employees under the FLSA and that they are entitled to overtime compensation. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=INVabPsd The Plaintiff is represented by: John David Hart, Esq. LAW OFFICES OF JOHN DAVID HART Wells Fargo Tower 201 Main Street, Suite 1260 Fort Worth, TX 76102 Telephone: (817) 870 2102 Facsimile: (817) 332 5858 SALERNO'S & SONS: Parties in "Gonzalez" Suit to Confer on Jan. 13 ----------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on December 22, 2016, in the case styled Santiago Gonzalez v. Salerno's & Sons, Inc., et al., Case No. 1:16-cv-05120 (N.D. Ill.), relating to a hearing held before the Honorable Jeffrey T. Gilbert. The minute entry states that: -- Status hearing and Motion hearing were held on December 22, 2016; -- For the reasons stated on the record, Plaintiff's Motion for Sanctions is denied; -- Counsel shall meet and confer in person regarding their discovery disputes on January 13, 2017, at 1:30 p.m. at Plaintiff's counsel's office; -- By January 20, 2017, Plaintiff will send Defendants a letter memorializing in writing the agreements reached at that meeting and the disputes at which they are at impasse; -- Defendants will respond in writing to Plaintiff's letter by January 27, 2017. The parties are not required to send the Court copies of their letters; -- If an impasse is reached that the parties cannot resolve themselves, Plaintiff will file a motion to compel by February 3, 2017; -- Defendants will respond by February 17, 2017; -- Plaintiff will reply by February 22, 2017; -- Plaintiff's motion to compel is set for ruling on March 8, 2017, at 9:30 a.m.; -- The Court sets the following briefing schedule on Plaintiff's Motion for Class Certification and Approval of Notice Pursuant to 29 U.S.C. Section 216(b): * Defendants will respond by January 19, 2017; * If Plaintiff wants to file a reply, he will do so by February 3, 2017; * Ruling on Plaintiff's Motion for Class Certification and Approval of Notice Pursuant to 29 U.S.C. Section 216(b) is set for March 8, 2017, at 9:30 a.m.; * By January 4, 2017, Defendants will produce all of the records it is going to produce without objection in response to Plaintiff's written discovery request; and * With respect to the time cards, they will either be produced or made available for inspection by Plaintiff's counsel before the January 13, 2017 meeting date. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=5J3gH1XK SANTA FE NATURAL: "Hebert" Suit Consolidated in MDL 2695 -------------------------------------------------------- The class action lawsuit titled Jacques-Rene Hebert, Sara Benson, Carol Murphy, Francisco Chavez, Joshua Horne, Albert Lopez, and Abigail Emmons, on behalf of themselves and all other similarly situated, the Plaintiffs, v. Santa Fe Natural Tobacco Company Inc., Reynolds American Inc., and R.J. Reynolds Tobacco Company, Case No. 1:16-cv-01390, was transferred from the U.S. District Court for the Middle District of North Carolina, to the U.S. District Court for the District of New Mexico (Albuquerque). The New Mexico District Court Clerk assigned Case No. 1:16-cv-01394- JB-LF to the proceeding. The Hebert case is consolidated with MDL 2695 in re: Santa Fe Natural Tobacco Company Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 11, 2016. These actions share factual questions arising out of the allegation that defendants label and advertise Natural American Spirit cigarettes as "natural" and "100% additive free" in a false and misleading manner in violation of state consumer protection and false advertising laws. Additionally, all actions stem from an FDA warning letter to Santa Fe Natural Tobacco Company on August 27, 2015, concerning the allegedly unauthorized use of "natural" and "additive free" on Natural American Spirits cigarette labeling. In its April 1, 2016, order, the MDL persuaded that the District of New Mexico is an appropriate transferee district for this litigation. Defendant Santa Fe Natural Tobacco Company has its headquarters in this district, and it represents that key witnesses reside there, including employees and decision makers tasked with the development and execution of product labeling, marketing and advertising. Presiding Judge in the MDL is Hon. James O. Browning. The lead case is 1:16-md-02695-JB-LF. Santa Fe Natural is an American tobacco manufacturer based in Santa Fe, New Mexico, known for its production of the premier Natural American Spirit cigarette brand. The Plaintiffs are represented by: Joel R. Rhine, Esq. RHINE LAW FIRM, P.C. 1612 Military Cutoff Road, Suite 300 Wilmington, NC 28403 Telephone: (910) 772 9960 Facsimile: (910) 772 9062 E-mail: jrr@rhinelawfirm.com SAVERS LLC: Assistant Managers Class Certified in "Godhigh" Suit ---------------------------------------------------------------- The Hon. William H. Orrick granted the Plaintiffs' motion for conditional certification under the Fair Labor Standards Act in the lawsuit styled EARL GODHIGH, et al. v. SAVERS, LLC, et al., Case No. 3:16-cv-02874-WHO (N.D. Cal.). The "FLSA Collective" consists of: All persons who have worked for Savers in any location nationwide as [Assistant Managers], including PMs or RSMs and similarly situated current and former employees holding comparable positions but different titles, at any time during the applicable limitations period prior to filing of this Complaint through the date of the final disposition of this action. Judge Orrick also directed the parties to submit an agreed-to notice by January 12, 2017. In their Motion, Plaintiffs Earl Godhigh and Angela Osgood seek to conditionally certify a nationwide collective of similarly situated employees under the Fair Labor Standards Act. They have accused the Defendants of misclassifying Retail Sales Managers ("RSMs") and Production Managers ("PMs") as exempt employees, and denied overtime pay. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=QZAIILLo SILVER BELL: "Ortiz" Suit Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- Jonathan Ortiz, individually and on behalf of all others similarly situated v. Silver Bell Baking Company, Inc. and Albert Radziunas, Case No. 1:16-cv-07098 (E.D.N.Y., December 23, 2016), seeks to recover unpaid overtime, liquidated damages, reasonable attorney's fees and costs, and all other appropriate legal and equitable relief pursuant to the Fair Labor Standards Act. The Defendants own and operate a bakery in Middle Village, New York. The Plaintiff is represented by: Gennadiy Naydenskiy, Esq. NAYDENSKIY LAW GROUP, PC 1517 Voorhies Ave., 2nd Fl. Brooklyn, NY 11235 Telephone: (718) 808-2224 E-mail: naydenskiy@gmail.com SMSSI OF CALIFORNIA: Doesn't Properly Pay Employees, Suit Claims ---------------------------------------------------------------- Grigor Melikyan, as an individual and on behalf of all others similarly situated v. SMSSI of California, Inc. and Does 1 through 50, inclusive, Case No. BC644667 (Cal. Super. Ct., December 23, 2016), is brought against the Defendants for failure to provide off-duty meal periods, failure to provide accurate itemized wage statements, and failure to compensate proper regular and overtime wages. SMSSI of California, Inc. owns and operates a security guard service company in California. The Plaintiff is represented by: Edward W. Choi, Esq. Paul M. Yi, Esq. LAW OFFICES OF CHOI & ASSOCIATES, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213)381-1515 Facsimile: (213) 465-4885 E-mail: edward.choi@choiandassociates.com paul.yi@choiandassociates.com SOUTHERN INDUSTRIAL: Certification of Class Sought in "Rule" Suit ----------------------------------------------------------------- The Plaintiffs in the lawsuit captioned SHANNON RULE and KARINA ESQUIVEL, on behalf of themselves and all others similarly situated v. SOUTHERN INDUSTRIAL MECHANICAL MAINTENANCE COMPANY, LLC, Case No. 5:16-cv-01408-EEF-KLH (W.D. La.), move for conditional certification pursuant to 29 U.S.C. Section 216(b) (Fair Labor Standards Act). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=QWXnyxPM The Plaintiffs are represented by: Christopher L. Williams, Esq. WILLIAMS LITIGATION, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 Telephone: (504) 308-1438 Facsimile: (504) 308-1446 E-mail: chris@williamslitigation.com - and - Jody Forester Jackson, Esq. Mary Bubbett Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599-5953 Facsimile: (888) 988-6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net SOVRAN SELF STORAGE: June 5 Hearing on Castro Class Cert. Bid ------------------------------------------------------------- In the lawsuit captioned JUAN CASTRO, JR., on behalf of himself and other persons similarly situated, the Plaintiff, v. SOVRAN SELF STORAGE, INC. t/a UNCLE BOB'S SELF STORAGE, SOVRAN ACQUISITION LP; and UNCLE BOB'S MANAGEMENT LLC, the Defendants, Case No. 1:14-cv-06446-RBK-JS (D.N.J.), the Plaintiff will move the Court on June 5, 2017 at 9:00 a.m. before the Hon. Robert B. Kugler, U.S.D.J. of the United States District Court for the District of New Jersey, for an order to certifying two classes: TCCWNA Class: all natural persons who entered into lease agreements with Defendants in the State of New Jersey between January 1, 2011 and March 9, 2016; and CFA Class: "all natural persons who since January 1, 2011 purchased insurance coverage from Bader through Defendants in New Jersey. The Plaintiff will also move the Court to appoint Plaintiff Juan Castro, Jr. as class Representative; appoint Michael A. Galpern, Andrew P. Bell, James A. Barry and Charles N. Riley as class counsel; grant Plaintiff leave to amend and file the Third Amended Complaint; and direct Defendant to provide Plaintiff with a list of members of the Classes together with the most updated addresses and contact information in Defendant's possession and directing that Notice be sent to Classes in a form and within time limits set by the Court. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=nn2mTBsJ The Plaintiff is represented by: Andrew P. Bell, Esq. Michael A. Galpern, Esq. Andrew P. Bell, Esq. James A. Barry, Esq. 800 N. Kings Highway Cherry Hill, NJ 08034 Telephone: (856) 663 8200 - and - Charles N. Riley, Esq. LAW OFFICE OF CHARLES N. RILEY, LLC 900 N. Kings Highway, Suite 308 Cherry Hill, NJ 08034 The Defendants are represented by: Steven P. Benenson, Esq. Eliyahu S. Scheiman, Esq. PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Pkwy., PO Box 1997 Morristown, NJ 07962 1997 - and - Kenneth A. Manning, Esq. Joanna J. Chen, Esq. Phillips Lytle LLP One Canalside, 125 Main Street Buffalo, NY 14203-2887 SWEET BLESSINGS: "White" Suit Seeks to Recover Unpaid Wages ----------------------------------------------------------- Elijah White, individually and on behalf of all similarly situated employees and other aggrieved employees v. Sweet Blessings Corp. and Does 1 through 50, inclusive, Case No. BC644981 (Cal. Super. Ct., December 23, 2016), seeks to recover, unpaid wages, benefits, expenses, interest, attorney's fees, damages, liquidated damages, penalties, and costs pursuant to the California Labor Code. Sweet Blessings Corp. owns and operates three franchise Baskin Robbins locations in the state of California. The Plaintiff is represented by: Graham S.P. Hollis, Esq. Marta Manus, Esq. Paloma Acosta, Esq. GRAHAMHOLLIS APC 3555 Fifth Avenue San Diego, CA 92103 Telephone: (619) 692-0800 Facsimile: (619) 692-0822 E-mail: ghollis@grahamhollis.com mmanus@grahamhollis.com pacosta@grahamhollis.com TCI CONTRACTING: "Moya" Suit Moved from Cir. Ct. to S.D. Fla. ------------------------------------------------------------- The class action lawsuit titled Luis Moya, and other similarly situated employees non-exempt installers, the Plaintiff, v. TCI Contracting, LLC, doing business as Installed Building Products of Miami, a Foreign Limited Liability Company, and Pamela A. Henson, Case No. 13-02016CA02963-01, was removed from the 11th Judicial Circuit, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:16- cv-25303-DPG to the proceeding. The case is assigned to Hon. Judge Darrin P. Gayles. TCI Contracting provides construction services. The company offers plastering, drywall, and insulation. The Plaintiff is represented by: Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: jremer@rgpattorneys.com The Defendants are represented by: Christopher Patrick Hammon, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART PC 701 Brickell Avenue, Suite 1600 Miami, FL 33131 Telephone: (305) 455 3711 Facsimile: (305) 374 0456 E-mail: chris.hammon@ogletreedeakins.com TEMPLE TERRACE, FL: Class Certification Sought in Lea Family Suit ----------------------------------------------------------------- In the lawsuit styled LEA FAMILY PARTNERSHIP Ltd., a Florida Limited Partnership, on behalf of themselves and others similarly situated, the Plaintiff, v. CITY OF TEMPLE TERRACE, FLORIDA, and LEN VALENTI, in his official capacity as "Housing Compliance Officer" and individually, Case No. 8:16-cv-03463-JSM-AAS (Fla. Cir. Ct.), the Plaintiff asks the Court to certify a class of: "all property owners who, since the inception of the City of Temple Terrace's Rental Housing Program in 2012 and pursuant to the City of Temple Terrace's "Program Ordinances", (1) have paid any inspection fee to the City of Temple Terrace, (2) have had one or more properties inspected by the City of Temple Terrace or(3) have received a notice of violation for refusing to pay an inspection fee or for failing to allow an inspection." To be excluded from the Class are the Judge to whom the case is assigned and her staff, and the lawyers and staff of the law firms representing Plaintiff in the case. The City of Temple Terrace enacted its Rental Housing Code in 2001, which at that time was codified in sections 27.725 of the City Code of Ordinances. In 2012, the City recodified its Code of Ordinances and renumbered the provisions of the Rental Housing Program as Division 2, Sections 8-133 through 8-137 ("Program Ordinances"), which have at all times material to the action contained the operative provisions of the Rental Housing Program. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=GVXaRPfA The Plaintiff is represented by: Christa L. Collins, Esq. HARMON, WOODS, PARKER & ABRUNZO, P.A. 110 North 11th Street, 2nd Floor Tampa, FL 33602 Telephone: (813) 864 1762 Facsimile: (813) 222 3616 E-mail: service.cic@harmonwoodslaw.com cic@hannonwoodslaw.com TESLA MOTORS: Law Firms Call for NHTSA Probe Into Model X Defects ----------------------------------------------------------------- On December 30, 2016, McCune Wright Arevalo, LLP, and Stradling Yocca Carlson & Rauth, P.C., filed a federal individual and class action lawsuit against Tesla Motors, Inc., on behalf of Ji Chang Son in the Central District of California, alleging the Tesla's Model X is defective resulting in an extraordinarily high rate of Sudden Unintended Acceleration ("SUA") events. McCune Wright Arevalo, LLP, is a Southern California auto product liability and class action law firm that in 2009 filed the first class action lawsuit against Toyota alleging that defects in the Toyota vehicles were resulting in SUA events. As a result of the SUA issues, and failure to promptly acknowledge those issues, following several years of litigation Toyota settled over 300 private injury and wrongful death lawsuits, settled the class claims valued at up to $1.6 billion, and payed the federal government over $1.2 billion in fines. According to Richard McCune of McCune Wright Arevalo, LLP, there are some similarities between the Toyota problem and the Tesla problem. "What we saw in Toyota was that the number of SUA events occurring with Toyota vehicles was significantly higher than other manufacturers, meaning that something was going on other than 'driver error.' What the complaint alleges is that the ratio of SUA events for Tesla versus the rate found in the literature on other vehicles is staggering -- far higher than what was reported for Toyota vehicles." The similarities do not end with the higher number of reported SUA events. Like Toyota, Tesla's response to an obvious serious safety problem is to blame the driver. Here, Tesla claims that as Mr. Son was pulling into the garage, he decided to press the accelerator pedal all the way to the floor. One of the features of the Tesla is that it records such events -- including taking and recording pictures from a forward facing camera. In response to the lawsuit, rather than defending its engineering, Tesla blamed Mr. Son and falsely impugned his motives. In an official statement, Tesla claimed that "before filing his class action lawsuit against Tesla, Mr. Son had threatened to use his celebrity status in Korea to hurt Tesla unless we agreed to make a financial payment and acknowledge that the vehicle accelerated on its own." In an email sent by Benedict Kwon of Stradling Yocca Carlson & Rauth, P.C., "unless Tesla comes to an amicable conclusion with Mr. Son by the close of business this Friday, September 23rd, Mr. Son has decided to file a lawsuit. In addition, he will hold a press conference both in the United States and in South Korea to discuss the incident of September 10, 2016." These statements cannot be construed as a threat to force a financial payment by Tesla. In fact, as the personal lawyer of Mr. Son, Benedict Kwon confirmed that Mr. Son has never made any demand for financial payment from Tesla. In addition, Benedict Kwon confirmed that Mr. Son's intentions of making a public disclosure was for the purpose of making people aware of his experience with his Tesla X in the hopes that he could prevent similar occurrences from happening in the future. To date, Mr. Son has not held any press conferences, and his only action was to file a legal action against Tesla only after Tesla refused to admit any fault. Mr. Son has only been responding to media inquiries in relation to his filing of a legal action. On September 23, 2016, Mr. Son received a letter from Tesla citing its conclusions regarding Mr. Son's incident with his Tesla Model X. In the Tesla letter, there seemed to be some factual discrepancies. On October 13, 2016, Mr. Son's attorney, Richard McCune, sent a follow up letter requesting additional information from Tesla regarding these factual discrepancies. Only after several months, on December 12, 2016, did Tesla respond, refusing to answer important questions regarding the software and sensors used to measure accelerator pedal position on the basis that this is "proprietary information." Accordingly, Mr. Son had no choice but to file a legal action against Tesla on December 30, 2016. Mr. Son's desire has always been to expose the truth about the dangers with this vehicle, and he intends to pursue the truth in his legal action against Tesla. In its rush to blame the driver in this and each of the other accidents, Tesla does not explain why the engineers at Tesla designed the vehicle to accept an instruction to accelerate full speed into a wall in the vehicle owner's home. According to Richard McCune, "Tesla has marketed and sold these very expensive vehicles to consumers claiming that they are far and away the smartest and safest vehicles on the road. A vehicle that has been engineered to know it is at home, open the garage door, and even pull in or out of the garage without a driver, but then blindly accepts an instruction (whether the result of driver error or electronic malfunction) to go full speed into the garage wall is neither smart nor safe and is defective. It was just very fortunate that no one was in the garage or in the family room on the other side of the wall. I believe that unless Tesla acknowledges and fixes this problem, it is only a matter of time before the picture captured by the camera in a Tesla SUA event is going to show an unspeakable tragedy." McCune Wright Arevalo, LLP, and Stradling Yocca Carlson & Rauth, P.C., are submitting a letter to the National Highway Traffic Safety Administration ("NHTSA") requesting that an investigation be opened into the Tesla Model X for defects resulting in sudden unintended acceleration. Richard McCune of McCune Wright Arevalo, LLP, and Benedict Kwon of Stradling Yocca Carlson and Rauth, P.C., are available for comment. A copy of the filed complaint is available at https://mccunewright.com/tesla-sudden-acceleration-class-action/ TESLA MOTOR: More Details Emerge in Model X SUA Class Action ------------------------------------------------------------ According to Teslarati's Steve Hanley, following the report that a Model X owner has filed a class action law suit against Tesla, claiming a widespread defect in the vehicle's onboard software causes sudden unattended acceleration (SUA), new details behind the suit have been obtained by Teslarati that shows a legal team aggressively targeting the core component to the Silicon Valley- based electric car maker's fleet of vehicles. The class action filed in federal district court claims Ji Chang Son -- Korean star residing in Orange County, Calif. -- crashed through his garage and into the living room of his home after his Tesla Model X accelerated suddenly and without warning on September 10, 2016, approximately one month after Mr. Son took delivery of the electric SUV. The suit claims that "Tesla has failed to properly disclose, explain, fix, or program safeguards to correct the underlying problem of unintended acceleration", adding that "over sixteen thousand Model X owners with vehicles that could potentially accelerate out of control. Mr. Son's attorneys gave the court a full account of the development of the Model X, focusing on the company's claim that the Model X is "the safest, fastest and most capable sport utility vehicle in history." On the contrary, according to Mr. Son's attorneys. They allege the Model X has a safety defect that permits the car to accelerate at full speed directly into solid objects, such as the exterior wall of Mr. Son's home. In particular, they point out that 8 written complaints have already been filed with the National Highway Transportation Safety Administration from other Model X owners who report similar occurrences while driving their cars. The lawsuit reads, "Irrespective of whether the SUA events in the Model X are caused by mechanical issues with the accelerator pedal, an unknown failure in the electronic motor control system, a failure in other aspects of the electrical, mechanical, or computer systems, or some instances of pedal misapplication, the Model X is defective and unsafe. Tesla's lack of response to this phenomenon is even more confounding when the vehicle is already equipped with the hardware necessary for the vehicle's computer to be able to intercede to prevent unintended acceleration into fixed objects such as walls, fences, and buildings. Despite repeated instances of Model X drivers reporting uncommanded full power acceleration while parking, Tesla has failed to develop and implement computer algorithms that would eliminate the danger of full power acceleration into fixed objects. This failure to provide a programming fix is especially confounding for a vehicle that knows when it is located at the driver's home and is being parked in the garage, yet carries out an instruction, regardless of whether through an error by the vehicle control systems or by driver pedal misapplication, to accelerate at full power into the garage wall. Further, not only has Tesla failed to fix the problems, it has chosen instead to follow in the footsteps of other automobile manufacturers and simply blame the driver." One problem, according to Mr. Son's attorneys, is the software that controls the Automatic Emergency Braking system. Tesla has programmed that feature to disengage in order to allow drivers to make emergency maneuvers, "in situations where you are taking action to avoid a potential collision. For example: You turn the steering wheel sharply. You press the accelerator pedal. You press and release the brake pedal. A vehicle, motorcycle, bicycle, or pedestrian, is no longer detected ahead." In other words, say the attorneys, a Model X will drive straight into a solid wall if that is what the system thinks the driver wants it to do. "Apparently, this includes situations where the computer believes, rightly or wrongly, that the driver is commanding full power acceleration directly into fixed objects immediately in front of the vehicle." Class action lawsuits are complex and highly specialized legal actions. Federal law requires that the damages alleged for the entire class exceed $5 million. The plaintiff's attorney have done so by claiming that Tesla is aware of at least two other instances in which drivers allege sudden unintended acceleration occurred while driving their Model X at low speeds. They then extrapolate those numbers to suggest that the rate of SUA incidents attributable to the Model X is 64 per 100,000 vehicles - - substantially higher than for any other vehicle in history. They point out that the incidence rate of SUA incidents for Toyota vehicles -- which grabbed national headlines in 2010 -- was far lower. They then go on to remind the court that Toyota paid several hundred million dollars to SUA victims as well as a $1.2 billion federal fine. Notice that the chart included in the pleadings shows an exaggerated and disproportionate projected SUA incidence rate for the Model X highlighted in bright red. Tesla says its data retrieved from the vehicle's blackbox shows the accelerator in Mr. Son's Model X was fully depressed when the accident occurred. The question for the court will be whether the driver pressed the wrong pedal or whether the vehicle accelerated on its own. It is unclear whether a software failure would register the pedal as fully depressed even if it was not physically operated by the driver. Plaintiffs always have the burden of proving their allegations. Attorneys for injured parties often rely on a legal doctrine known as res ipsa loquitur, which is Latin for "the thing speaks for itself." Loosely translated, it means "we don't know what is wrong with your product that you designed and built, but you know or should know." Res ipsa loquitur shifts the burden of proof onto the defendant, which makes it much easier for a plaintiff to prevail in court. One advantage the plaintiff gains from filing suit is the ability to discover what information Tesla has that is not yet public. Does Tesla know something it isn't telling its customers? We may find out as this litigation goes forward. TOYOTA MOTOR: Tacoma Owners Set to Get Settlement Notices --------------------------------------------------------- On January 3, 2017, notice was set to start being sent to consumers about a settlement reached between Toyota Motor Sales and the owners of Toyota Tacoma vehicles, model years 2005 to 2010; Toyota Tundra vehicles, model years 2007 to 2008; and Toyota Sequoia vehicles, model years 2005 to2008. The notice is sent pursuant to the December 2, 2016, order from the U.S. District Court for the Central District of California granting preliminary approval of a settlement. The Court also appointed Timothy G. Blood -- tblood@bholaw.com -- of Blood Hurst & O'Reardon, LLP and Ben Barnow -- b.barnow@barnowlaw.com -- of Barnow and Associates, P.C. as Class Counsel. The settlement involves about 1.5 million vehicles and covers all 50 states, the District of Columbia, Puerto Rico and the other United States territories and possessions. Under the settlement, each class member is entitled to have their vehicle's frame inspected for rust corrosion. If excessive corrosion is found, the frame and associated parts will be replaced. The inspection and frame replacement is at no cost to class members. A class member may have their vehicle's frame inspected for free for up to 12 years from the time the vehicle was first sold or leased, or one year from final settlement approval, whichever is longer. Class members also may have their frames inspected multiple times during this period. "The frame plays a central role in the crashworthiness and stability of the vehicle. Inspections will cost the class member nothing and are important to ensure the vehicle's safety and structural integrity," said Timothy Blood of Blood Hurst & O'Reardon. "Tim and I are very pleased to deliver this proposed remedy for consumers for the Court's review and, ultimately, for the benefit of every class member. Authorized Toyota dealerships will be available to provide inspections and required repairs. This is important to ensure the proper and prompt delivery of the settlement benefits to consumers," said Ben Barnow of Barnow and Associates. The lawsuit is entitled Warner v. Toyota Motor Company, Case No. CV 15-2171 (C.D. Cal.). The final approval hearing is scheduled for April 27, 2017. About Blood Hurst & O'Reardon, LLP Blood Hurst & O'Reardon, LLP -- http://www.bholaw.com-- specializes in consumer protection law. It represents consumers, insurance policy holders, investors and small businesses in class action lawsuits nationwide. About Barnow and Associates, P.C. Barnow and Associates, P.C. -- http://www.barnowlaw.com-- has a multi-decade practice dedicated to advancing consumers causes. Its cases, and settlements, have included some of the largest certified classes against a Who's Who of corporate America. UNITED HEALTHCARE: Attorney Challenges Class Action Settlement -------------------------------------------------------------- Wyandotte Daily reports Kansas Attorney General Derek Schmidt has joined a bi-partisan coalition of 14 state attorneys general in filing a brief in federal court to protect Kansas consumers from abuse in the class action settlement process. In the friend-of-the-court brief filed in December, Mr. Schmidt asked the court to reject a proposed class action settlement because the vast majority of the class members receive nothing of particular value from the deal, even as the class action attorneys collect almost $3 million. "Consumers should come first in the class action settlement process," Mr. Schmidt said. "In this case, the proposed settlement is not fair or reasonable and bargains away the claims of the class members. As part of our consumer protection role, our office maintains a watchful eye on proposed class action settlements that do not actually benefit the consumers they purport to protect." The class action lawsuit alleged that United Healthcare improperly denied class members coverage for the ground-breaking hepatitis C treatment Harvoni. Under the settlement, consumers lose not just the claims against United Healthcare made in the class action, but any claims relating in any way to any hepatitis C drug or the hepatitis C virus more generally. In exchange for this sweeping release of their claims, the vast majority of the class members receive nothing of particular value. Instead, these consumers receive only the continued opportunity to benefit from changes to the approval standards for Harvoni that United Healthcare already implemented in 2016. In filing the brief objecting to the settlement agreement in Jones v. United Healthcare, which is pending in federal court in Florida but would have nationwide effect, Mr. Schmidt emphasized the role state attorneys general and courts should play in advocating for consumers within class action settlements. The states filing the amicus brief are Alabama, Arizona, Arkansas, Idaho, Kansas, Louisiana, Mississippi, Nevada, North Dakota, Oklahoma, Pennsylvania, South Carolina, Texas and Wyoming. UNITED STATES: Insurers' Suit Over Risk Corridor Program Pending ---------------------------------------------------------------- Robert King, writing for Washington Examiner, reports that Donald Trump ran a campaign that pledged to get rid of Obamacare. But his administration will have to either defend the controversial law in federal court or fork over tens of millions of dollars to angry insurers. Several insurers took the Obama administration to court in the fall to force the administration to pay out money they say was promised to them. Those lawsuits won't likely be resolved by the time Trump takes office on Jan. 20, meaning he will have to settle them or fight for a law he wants to repeal. "It's awkward," said Douglas Holtz-Eakin, former head of the Congressional Budget Office and president of the center-right think tank American Action Forum. "This is why maybe there will be some attempts to solve this legislatively in the repeal process." Congress is hoping to begin work on repealing Obamacare. A repeal bill could bypass a filibuster through a procedural move called reconciliation in the Senate and would pass easily in the House. Two lawsuits are seeking nearly $30 million from the federal government. Both of the lawsuits are from taxpayer-funded consumer oriented and operated plans: New Mexico Health Connections and Minuteman Health, which serves Massachusetts and New Hampshire. Minuteman Health wants $5.5 million, and New Mexico Health Connections demanded $23 million to cover the 2014 and 2015 payments made under Obamacare's risk corridor program. In addition, eight insurers including New Mexico Health Connections filed claims against the federal government seeking money for the risk corridor program in the Court of Federal Claims. A decision is pending on whether the insurers can file a class-action claim. The risk corridors program was supposed to work like this: insurers with low profits would receive money from the government, which would get the money from insurers with more profits. The idea was promoted by the Obama administration as a way to ensure predictability for insurers that had no idea who was going to sign up for Obamacare in 2014. However, it didn't work out like that. Too many insurers requested payments from the federal government and not enough paid in to the program to cover the payments in 2014. The result was a major shortfall, with $2.87 billion in requested payments for 2014 but insurers receiving $362 million. The money collected for 2015 was expected to help pay down the balance from 2014. Now Trump must decide how he wants to handle the two lawsuits. The Obama administration has considered settling the claims and lawsuits, but that met stiff resistance from Republicans who believe a settlement was a way to bail out insurers. "I would assume that the Trump administration's position is that we are not going to pay out any more than we have to," said Timothy Jost, an Obamacare supporter and law professor at Washington & Lee University. "There's no sign they would have any interest in settling them." Minuteman Health is expected to file an amended complaint to its lawsuit in January to reflect new payment rules released by the Obama administration last month. New Mexico asked for a delay until March 1 to see what happens with the federal claims. Mr. Jost and Mr. Holtz-Eakin said they doubted that repealing Obamacare, which likely won't go into effect for a few years until a GOP replacement is approved, would affect the lawsuits. "I think the suits are relative to the law at the time," Mr. Holtz-Eakin said. He added that any repeal bill could include language that would retroactively affect the lawsuits, but it is also possible that Congress would appropriate the risk corridor funding the insurers requested. Prior spending bills included riders that made the risk corridor program budget neutral, meaning the administration could only pay out what it took in. It is not clear if future spending bills will include a similar rider, as collections for 2016 risk corridor payments will start next year. Critics have called the co-op program one of the biggest failures of the healthcare law, as the administration created 23 co-ops to spur competition on Obamacare's marketplaces. However, a lack of federal funding and higher-than-expected costs caused all but six to collapse. The collapses parallel other insurer issues with Obamacare, as Aetna and UnitedHealth bolted from most of the states in which they offer plans due to mounting losses. The Centers for Medicare and Medicaid Services did release new federal regulations that outlined payments for the risk corridor program. It also laid out ways to help insurers become more stable, such as eliminating some special enrollment periods that let people sign up for Obamacare year-round. UNITED STATES: Class Certification in FICA Tax Refund Suit ---------------------------------------------------------- In the lawsuit captioned WICHITA CENTER FOR GRADUATE MEDICAL EDUCATION, the Plaintiff, v. UNITED STATES OF AMERICA, the Defendant, Case No. 6:16-cv-01054-JTM-KGG (D. Kas.), the Hon. J. Thomas Marten entered an order on Dec. 21, denying class certification of: "nonprofit corporations which have received Federal Insurance Contributions Act (FICA) tax refunds with interest at the lower, corporate rate." The Court said, "The proposed class does not distinguish between employers, like WCGME, which have received interest income at the higher, noncorporate rate only to have to return the difference to the IRS, and other employers, like CAMC and CHERI, which have only received interest at the lower, corporate rate. In addition, the proposed class is not restricted to employers who have previously filed an administrative claim with the IRS or otherwise explicitly asserted a claim to the higher, noncorporate interest rate. The court denies the motion for certification. This court has jurisdiction to entertain claims for unpaid interest under section 1346, but such claims are subject to the jurisdictional prerequisite of an administrative claim under Internal Revenue Code section 7422. Such claims must also be filed within the limitations period established by Internal Revenue Code." In addition to its jurisdictional argument, the government also contends that the proposed class does not meet the standard for certification under Fed.R.Civ.Pr. 23, and that in any event the specific venue provisions noted in the earlier decision of the court would preclude certification. The court finds that it need not resolve these arguments. Because the court does not have jurisdiction to entertain the claims of the requested class, the plaintiff's motion is denied. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=GmL9Q9p8 U.S. XPRESS: Court Denies Class Certification Bid in "Ayala" Suit ----------------------------------------------------------------- In the lawsuit styled Anthony Ayala v. U.S XPRESS ENTERPRISES, INC., et al., the Case No. 5:16-cv-00137-GW-KK (C.D. Cal.), the Hon. George H. Wu entered an order denying Plaintiff's motion for class certification, in light of the oral argument at the December 22, 2016 hearing. In this putative class action against U.S. Xpress Enterprises, Inc. and U.S. Xpress, Inc., the Plaintiff seeks certification of a class pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. In the complaint, the Plaintiff asserts claims for violations of the California Labor Code and California Industrial Commission Wage Orders, including failure to provide meal and rest periods in violation of the Labor Code. The proposed Class consists of: [A]ll truck drivers who worked or work in California for U.S. Express after the completion of training at any time since four years from the filing of this legal action until such time as there is a final disposition of this lawsuit. Judge Wu has concluded that the Court would agree that the significant individualized inquiries it would have to conduct with respect to each putative Class Member establish that the predominance requirement of Rule 23(b) is not satisfied. As such, class certification under Rule 23(b) is not warranted, Judge Wu added. A status conference was set for January 9, 2017 at 8:30 a.m. The Parties filed a joint status report on January 5, 2017. A copy of the Civil Minutes of the Dec. 22 hearing is available at no charge at http://d.classactionreporternewsletter.com/u?f=JTlLiJrM A copy of the Dec. 27 Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ejuakcwo The Plaintiff is represented by: David Borgen, Esq. GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417 E-mail: dborgen@gbdhlegal.com - and - Justin L. Swidler, Esq. SWARTZ SWIDLER LLC 1878 Marlton Pike East, Suite 10 Cherry Hill, NJ 08003 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com - and - James M. Sitkin, Esq. LAW OFFICES OF JAMES M. SITKIN 1 Kaiser Plaza, Suite 505 Oakland, CA 94612 Telephone: (415) 318-1048 Facsimile: (415) 362-3268 E-mail: jsitkin@sitkinlegal.com The Defendants are represented by: James H. Hanson, Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY PC 10 West Market Street, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 492-9205 Facsimile: (317) 687-2414 E-mail: jhanson@scopelitis.com US SECURITY: Decertification Bid Denied in Light of Settlement -------------------------------------------------------------- The Hon. George H. King entered an order in the lawsuit captioned Muhammed Abdullah, et al. v. U.S. Security Associates, Inc., Case No. 2:09-cv-09554-GHK-E (C.D. Cal.), denying without prejudice the cross-motions for summary judgment and motion for decertification in light of the parties' settlement. The Parties shall file a motion for preliminary approval of class action settlement by no later than February 13, 2017. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=YjfkkC57 UTJOK ZAIDAN: Faces "Hardjowirogo" Suit in N.Y. Supreme Court ------------------------------------------------------------- A class action lawsuit has been filed against Zaidan, Utjok Amry Ano Muhammed Husni. The case is styled as HARDJOWIROGO, RINA ETAL AJI JUMENA, ELVI AGUSTA, MOHAMMAD DJADJA ZAKARIA TOHA, PRIJONO HARDJOWIROGO, SUMARMI SUMARMI & OTHER SIMILARLY SITUATED AGGRIEVED CONGREGANTS OF THE INDONESIAN MUSLIM COMMUNITY, INC., A NOT-FOR- PROFIT CORPORATION, the Plaintiff, v. ZAIDAN, UTJOK AMRY ANO MUHAMMED HUSNI A/K/A DENY PURBA, the Defendant, Case No. 14588/2016 (N.Y. Sup. Ct., Dec. 22, 2016). The case is assigned to Hon. Diccia T. Pineda-Kirwan. The Plaintiff is represented by: THOMAS WEISS & ASSOCIATES 1305 Franklin Avenue Garden City, NY 11530 VOLKSWAGEN AG: Diesel Car Emissions Scandal Costs to Spike ---------------------------------------------------------- Jon LeSage, writing for Hybrid Cars, reports that Volkswagen may see its recovery costs from the diesel car emissions scandal climb higher from a potential class-action lawsuit filed in Germany. German lawyers for U.S. law firm Hausfeld have filed the suit for one car owner that's been designed to follow what's worked in U.S. courtrooms, according to Jan-Eike Andresen of legal-tech website My-Right.de. The legal portal is supporting these efforts. The My-Right.de site allows VW car owners to sign up online without taking on the financial risks plaintiffs usually fall under Germany's legal structure. The law firm has also been working with litigation fund Burford Capital. The website promises car owners "up to 5,000 euros" ($5,200) in damages or to make VW buy back the vehicle. The Hausfeld firm and My-right.de declined to say how many people signed up, or to reveal the total value of potential claims. The new lawsuit is unfounded, said VW spokesman Nicolai Laude in an emailed statement. Owners won't have any problems once the diesel car is fixed, he said. VW agreed in June to a recall with Germany's KBA motor vehicle authority of 800,000 diesel cars fitted with emissions cheat software. European consumer groups have been upset to see VW make its $10 billion settlement in the U.S. where American car owners can receive up to $10,000 in reimbursement. The German automaker claims the rules are different in Europe, and repairing the engine takes care of the problem. That's certainly not the case for Mr. Andresen. "VW has defrauded car owners for years," Mr. Andresen said. "VW delivered nothing on what they promised to do to mend the issue." There have been about a thousand owners of VW group diesel vehicles that have sued the automaker or car dealers, out of 2.5 million German buyers of these affected vehicles. Only about a quarter of the suits have been successful, and VW and its dealers have been making settlements. The consumer case isn't the only trouble facing VW, which is the target of 1,400 investor lawsuits filed in Braunschweig over the issue seeking a combined 8 billion euros ($8.3 billion). My-Right is hoping to see a settlement for the whole group, or potentially for all European consumers. The case is based on European Union laws, and the law firms is seeking a ruling that would have jurisdiction across the region and not just Germany. VOLT MANAGEMENT: Fails to Provide Proper Rest Breaks, Suit Claims ----------------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a man alleges his former employer violated labor code laws. Adan Ortiz filed a complaint on behalf of himself and all others similarly situated on Dec. 13 in the U.S. District Court for the Northern District of California against Volt Management Corp., Genco I Inc. and Does 1-50 alleging violations of labor code, unfair competition and other counts. According to the complaint, the plaintiff alleges that he and other similarly situated employees/former employees were employed by the defendants at different times as non-exempt employees in an hourly position. However, he alleges that the defendants have maintained malpractices of rounding plaintiffs' clock-in and clock-out times or number of hours worked to result in underpayment of wages, not providing proper rest and meal periods, and failing to timely pay plaintiffs all of their final wages. As a result, he alleges he and class members have lost money or property. The plaintiffs holds Volt Management Corp., Genco I Inc. and Does 1-50 responsible because the defendants allegedly failed to adequately compensate plaintiff for all hours worked, and failed to provide mandatory rest and meal break periods, and failed to provide accurate wage statements. The plaintiffs request a trial by jury and seek judgment against defendants, certify as a class action, appoint class representative and class counsel, unpaid wages, actual damages, restitution, declaratory relief, interest, statutory and civil penalties, costs of suit, attorneys' fees and other relief as the court deems just. He is represented by Shaun Setareh -- shaun@setarehlaw.com -- and Thomas Segal of Setareh Law Group in Beverly Hills. U.S. District Court for the Northern District of California Case number 3:16-cv-07096 WELLS FARGO: Summary Judgment Dismissal of FLSA Claims Affirmed --------------------------------------------------------------- Ezra L. Finkle, Esq., of Lewis Brisbois Bisgaard & Smith LLP, in an article for Mondaq, reports that on October 14, 2016, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment dismissal of FLSA claims. The Fifth Circuit held that a class action settlement using an opt-out procedure, even if based on state-law claims, may bar later-filed FLSA claims. The Fifth Circuit further held that applying res judicata to bar the later- filed FLSA claims based on the settlement from an opt-out class action was not inconsistent with the FLSA's opt-in requirement. Wells Fargo Bank N.A., et al, allegedly violated the FLSA by misclassifying home mortgage consultants ("HMCs") as exempt workers and failing to make appropriate overtime payments. The purported class filed suit in the U.S. District Court, Southern District of Texas. After the district court conditionally certified two collective actions, the majority of those who opted in to this class action settled their claims in a court-approved agreement. The settlement, however, excluded 1,516 plaintiffs who opted into the instant action but were members of a previously settled opt-out class action in the Superior Court of California, County of San Francisco: Lofton et al. v. Wells Fargo, San Francisco Superior Court Case No. CGC-11-509502 ("Lofton"). The Fifth Circuit referred to these plaintiffs as the "California Plaintiffs." The Lofton plaintiffs alleged that Wells Fargo misclassified HMCs as exempt employees and failed to pay appropriate overtime. Lofton involved alleged violations of the FLSA as grounds for California state law wage claims. On April 27, 2011, the Lofton court granted preliminary approval of a settlement for $19 million. To receive a portion of the settlement, class members had to fill out and return the exclusion form. The Lofton settlement contained a release of certain claims whereby class members would "fully and finally release and discharge Wells from any and all applicable state and federal law wage-and-hour claims . . . including any existing under the Fair Labor Standards Act of 1938." The Lofton court granted final approval of the settlement on July 27, 2011. Then, on September 2, 2014, in the Texas FLSA action, Wells Fargo moved for summary judgment arguing that res judicata barred the California Plaintiffs' FLSA claims in Texas because none of the California Plaintiffs opted out of the Lofton case and the Lofton release's language included FLSA claims. Of the 1,516 California Plaintiffs, 1,283 filed claim forms in Lofton while 233 did not file claim forms (and therefore did not receive any settlement payment). On November 4, 2015, the district court granted Wells Fargo's motion for summary judgment on res judicata grounds. First, the district court held that waiver of FLSA claims as part of the Lofton settlement had res judicata effect even though it was accomplished through an opt-out class action. Second, the district court held there was no due process violation that would preclude the application of res judicata because the interests of the Lofton class representative and class counsel were always aligned with the interests of the California Plaintiffs. The district court further found no issues with the notice used in the Lofton settlement. Finally, the district court held that the Lofton settlement was a final judgment for res judicata purposes. While appellate issues did remain in Lofton, the Fifth Circuit held that these issues did not make the judgment any less final. The district court applied California law in deciding whether the Lofton settlement precluded the California Plaintiffs' Texas claims. The California Plaintiffs appealed. On appeal, the California Plaintiffs argued that FLSA claims released as part of an opt-out class action settlement could never be given preclusive effect against absent class members (unless they opt in) because they are not parties, or in privity with a party, with respect to the release of FLSA claims. The California Plaintiffs' reasoned that, because an FLSA collective action requires that a party opt in under 29 U.S.C. Sec. 216(b) in order to be bound by the collective action, they never became parties to the release of their FLSA claims because they never opted in to the Lofton claims. The California Plaintiffs argued that FLSA claims, due to their opt-in requirement, present an exception to the preclusive effect of a state claim's opt-out class action. In other words, California's opt-out procedure was inconsistent with the FLSA's opt-in rule. The Fifth Circuit disagreed, holding that the FLSA does not create a special limitation to the extent California law applied its preclusion rules in opt-out class actions, such as Lofton. While FLSA claims cannot be asserted using an opt-out class action procedure, the Fifth Circuit noted that this case was different because a state court already supervised and approved an opt-out class action settlement that expressly released FLSA claims. The Fifth Circuit recognized the FLSA did not create a special exception to the enforceability of judicially approved settlement agreements, such as the Lofton settlement. The Fifth Circuit further held that the FLSA did not create an exception to the Full Faith and Credit Act. The judicially approved settlement in California carried a preclusive effect in Texas federal court. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Case: Richardson, et al. v. Wells Fargo Bank, N.A. United States Fifth Circuit No. 15-20711, (5th Cir. Oct. 28, 2016) * Class Action Waiver Enforceability in Arbitration Reaffirmed -------------------------------------------------------------- Katharine I. Rand, Esq. -- krand@pierceatwood.com -- of Pierce Atwood LLP, in an article for Lexology, reports that employers commonly use arbitration agreements to minimize the expense and exposure of employment-related claims. By mandating arbitration of employment disputes, they hope to ensure that these matters are resolved in a cost-effective and confidential manner. Many arbitration agreements go a step further, requiring employees to pursue their claims individually, and to waive their right to proceed on a class or collective basis. Unfortunately, the certainty employers have striven to achieve with such agreements has proven elusive in recent years, as the National Labor Relations Board (NLRB) and several courts have found that class action waivers violate employees' rights. Although the U.S. Supreme Court's 2011 decision in AT&T Mobility LLC v. Concepcion upheld the enforceability of class action waivers in the consumer context, in the years since, the NLRB has repeatedly rejected the use of class action waivers in the employment context. In In re D.R. Horton, the NLRB held that class action waivers inherently infringe on employees' rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (Section 7 rights). Since In re D.R. Horton, a split has emerged among the U.S. Courts of Appeal, with the Second, Fifth and Eighth Circuits rejecting the NLRB's position, the Seventh and Ninth Circuits embracing it, and the Third Circuit expected to weigh in very soon. Notwithstanding the pronouncements of the Second, Fifth, and Eighth Circuit Courts of Appeal, the NLRB has continued to apply its own view, defiantly issuing rulings it knows cannot withstand appellate scrutiny in these jurisdictions. Last month, in Citigroup Technology, Inc. v. NLRB, the Fifth Circuit reversed an NLRB decision ordering Citigroup to remove class action waivers from its employment arbitration agreements. The matter originated with an unfair labor practice charge filed by former Citigroup employee, Andrea Smith, after the American Arbitration Association rejected one of her coworkers' requests to arbitrate unpaid overtime claims on a collective basis. Ms. Smith's charge alleged that class action waivers contained in arbitration agreements between Citigroup and its anti-money-laundering operations analysts were unlawful. In 2015, the NLRB agreed with Smith and found the employees had the right to pursue their claims on a collective basis, notwithstanding the terms of their agreements with Citigroup. Citigroup appealed, relying on well settled Fifth Circuit precedent holding that the Federal Arbitration Act mandates enforcement of the arbitration agreement, including the class action waiver. In its appellate briefs, the NLRB conceded that the Fifth Circuit's earlier rulings were dispositive of the issue on appeal and effectively precluded enforcement of the agency's order. Relying on what it described as the NLRB's "candid -- and greatly appreciated -- concession," the Fifth Circuit reversed the NLRB's decision in a three-page opinion consisting primarily of quotes from the parties' briefs. Petitions for writs of certiorari have been filed in multiple cases, requesting that the United States Supreme Court take a stance on the currently unsettled issue of whether class action waivers in the employment context infringe employees' Section 7 rights. It seems reasonably likely, moreover, that the pro- employee agenda advanced by the NLRB under the Obama Administration will come to an end when President-elect Trump fills NLRB vacancies with more conservative appointees. While conditions are perfect for U.S. Supreme Court intervention, and the change in administration portends substantial policy revisions at the NLRB, what will happen first, and when, remains unclear. * Five New Jersey Lawyers Named in Racketeering Class Action ------------------------------------------------------------ Charles Toutant, writing for New Jersey Law Journal, reports that five New Jersey lawyers who represent consumers have been named in a racketeering class action suit accusing them of bringing meritless suits against collection law firms in hopes that the firms will agree to quick settlements. The alleged racketeering pattern was described in the suit as consisting of locating collection letters and securing cooperation of their recipients, constructing unsubstantiated scenarios alleging classwide statutory damages, filing class action suits against the issuers of the letters, and settling the suit for a mid five- or low six-figure attorney fee, according to the suit. The plan's success has been driven by a structure in which plaintiffs settle early in the litigation for as much as they can get but for less than the case would cost to defend at trial, the suit said. Defendants in the suit are attorneys Joseph Jones and Benjamin Wolf and their firm, Jones, Wolf & Kapasi in Fairfield; Laura Mann, a solo in Riverdale; and Ari Marcus and Yitzchak Zelman and their firm, Marcus & Zelman in Ocean Township. In Winters v. Jones, the class representatives are Jeffrey Winters and his company, Collection Solutions Inc. also known as CSI, of Hackensack, which the suit describes as a victim of the New Jersey Racketeer Influenced and Corrupt Organizations Act enterprise. In 2015, CSI and its general counsel, Charles Turner, were named in a class action suit brought by Messrs. Jones and Wolf on behalf of a creditor, Juliette Chapa. Mr. Winters and CSI settled the Chapa case for $12,000, payable in monthly installments, without filing a counterclaim and before completion of discovery on Sept. 21, 2016. David Hoffman, a solo in Basking Ridge, represents the plaintiff and the class. "An analysis of the PACER record shows these guys are making a claim and cloaking it in a class action overcoat to obtain legal fees. You don't get legal fees normally unless it's a class action. The point of the whole scheme is to get legal fees," Mr. Hoffman said. Elements of the RICO plan, and its use to violate the federal and New Jersey RICO statutes, include: -- Avoiding small claims court or unprofitable, immediate payment of nominal claims without attorney fees, by filing spurious class actions in federal court. "Plaintiffs have found no Federal class actions filed by Defendants where a class has been certified other than as part of or as related to a settlement. Notable is the inordinate proportion of cases opened, settled and closed within several months," the suit said. -- Seeking and developing "professional plaintiffs," including one cited in the complaint who appears as the sole class representative in six cases for either Jones, Wolf & Kapasi or Marcus & Zelman. -- Ignoring the absence of actual damages and lack of typicality, while falsely alleging the existence of certifiable plaintiff classes, even while knowing that the alleged classes had little or no chance of being certified if there were any examination by the court or opposing counsel of the propriety of certification. -- Settling the class actions based solely on attorney fees, and without any concern for the quality of the settlement's benefits to the alleged class. In addition to state and federal RICO counts, the suit includes counts for fraud, legal malpractice and negligence, and seeks relief on behalf of parties who were defendants in class actions in New Jersey and New York. In a continuing legal education lecture on the Fair Debt Collection Practices Act on Oct. 8, 2013, Ms. Mann said that actual damages "rarely" occur in such cases, and Jones acknowledged "you've got to prove actual damages." Their lecture can be downloaded for $99 at lawline.com. Their statements prove the defendants possess the mens rea to find that their filing a class action where no actual damages exist is a criminal predicate act, the suit claims. The RICO plan's operation was explained in a 2015 ruling from the Southern District of New York, Gallego v. Northland Group, dismissing a suit filed by Jones and Wolf against a collection agency, according to the complaint. The suit claimed that a collection letter received by class representative Jeffrey Gallego violated the Fair Debt Collection Practices Act because it did not list the name of a person he could call in response to the letter. * Queensland Introduces Class Action Regime ------------------------------------------- Michael Kimmins, Esq., and Danielle Tay, Esq., of Corrs Chambers Westgarth, in an article for Mondaq, report that the Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (Qld) recently received royal assent. Among other things, this piece of legislation has introduced a regime for representative proceedings, otherwise known as class actions, into Queensland. Queensland is only the third State to introduce a class action regime. The Federal Court's class action regime came into operation in the early nineties. Victoria was the first State to bring in the regime back in 2000 and New South Wales followed suit in 2011. The portion of the legislation introducing the class action regime in Queensland has yet to be proclaimed and its commencement date is unknown. WHY IS A CLASS ACTION REGIME IMPORTANT FOR QUEENSLAND? The introduction of a class action regime into Queensland will enable Queenslanders to seek redress more cheaply and efficiently in their home jurisdiction. Previously, Queenslanders who wished to bring class actions had to do so either through the Queensland registry of the Federal Court, or in New South Wales and Victoria. There are obvious limitations to both approaches. The Federal Court is limited in its jurisdiction to dealing with federal subject matter, potentially giving the respondent an opportunity to attack the Court's jurisdiction to hear the matter. Similarly, although the State Supreme Courts may have jurisdiction over disputes that have minimal connection with the home State, running disputes in another State is more costly for all parties and can add several layers of complication both legally and logistically. This means that there is likely to be an increase in the number of law firms conducting investigations into potential class actions in Queensland, and a likely increase in the number of Queenslanders willing to consider taking part in class actions. Queensland-based respondents could save significant legal costs and logistical challenges in having the matter heard locally, rather than in the more expensive southern States. In addition, while the class action regime shifts the balance of power in favour of the plaintiff, the aggregation of claims into a class action may still benefit a respondent in allowing it to avoid defending multiple potential proceedings over the same set of factual circumstances, which inevitably leads to higher costs. WHAT HAPPENS NEXT? Number of class actions A total of 19 class actions were filed in the first five years of operation of the NSW regime, and 18 class actions in the first five years of the Victorian regime. Historically, there have been class actions arising out of Queensland that have commenced in other jurisdictions. The Queensland floods class action is being run in the Supreme Court of New South Wales, and since 2013, five class actions have also been filed in the Queensland registry of the Federal Court of Australia. Two of these have been filed since July 2016. Based on the statistics from Victoria and New South Wales, and the number of class actions arising out of Queensland filed in other jurisdictions, it is reasonable to assume that, on average, four or five class actions will be commenced in Queensland each year. Types of class actions From 1992 to 2016, the most commonly litigated class actions have been product liability matters (18.3%). The landscape is, however, changing. From 2004 to 2016, 27.6% of class actions were claims by investors other than shareholders, and 24.8% were claims by shareholders. Product liability claims came in fourth at 11.6%.6 Because the Federal Court has a corporations jurisdiction, its likely investor and shareholder class actions will continue to be litigated in the Federal jurisdiction. The class actions currently being run in New South Wales and Victoria cover a broad spectrum of matters, such as bush fires, payday loans, navy training (failure to obtain certain qualifications), personal injury in detention and product liability, and it is likely that matters such as these will also be run in Queensland. HOW WILL THIS CHANGE THE LANDSCAPE? There's no reason to suggest that the Queensland experience will be different from that in Victoria and New South Wales, or in the Federal court. Plaintiffs or law firms who were previously reticent to commence class actions because of the issues arising out of litigating interstate may now decide to conduct an action in Queensland and the major class action plaintiff firms already have operations in Queensland. Over the last 12 years, a dozen class action proceedings were commenced in the Federal Court in Western Australia, South Australia, and the Australian Capital Territory. It's possible that causes of action arising in these remaining jurisdictions without a class action regime may be litigated in Queensland, as a cheaper alternative. Victoria and New South Wales may have led the way. Queensland, however, will learn valuable lessons from both States while charting its own course over the next few years. * Scandals Marred Automotive Industry in 2016 --------------------------------------------- Shipra Bihani, writing for TNN, reports that the year 2016 saw many scandals in the automotive industry. Here are the top five incidents that marred the industry. Takata's faulty airbag scandal Takata Corp "is a specialized supplier of automotive safety systems", but its reputation has been under a cloud. Due to a variety of factors, Takata's airbag inflators can inflate with excessive force, causing them to explode and even spray metal shrapnel on the passengers. Globally, the inflators have caused 16 fatalities and injuries numbering atleast in the hundreds. While the airbag manufacturer's woes had already begun in 2013, they worsened immensely in the year 2016. What started out as an issue with some vehicles, transformed into recalls in atleast three countries and by as many as 19 automakers. The number of vehicles recalled in the US, by a conservative estimate, stood at 42 million. South Korea began by recalling 50,000 vehicles and then widened it by 110,000 more automobiles. However, that number is nowhere near the final count as some automakers were yet to announce their plans for recall. The faulty airbags forced Japanese auto major Honda to issue atleast two rounds of recall in India, numbering a few lakh cars in all. Volkswagen group's emission cheating scandal Volkswagen was hit by an enormous scandal of global proportions in late 2015 and in the next year, the humiliation only increased manifold. American authorities found 'defeat devices' installed in some of its diesel vehicles, aimed at cheating on emission tests. Under laboratory conditions, the defeat device would ensure the vehicle's engine ran below normal power and performance. That way, the software would manipulate emissions data to ensure the vehicle would be cleared for sale in the US. In fact, it was found that the cars' emissions were 30 times the limit set by the US. Volkswagen admitted that 11 million of its diesel vehicles worldwide were fitted with the software. The US Environmental Protection Agency (EPA) fined the automaker a massive $18 billion. After the scandal hit, other countries opened investigations into Volkswagen -- including South Korea, India, Australia and the European Union. Globally, the automaker recalled 2.4 million cars, including 324,000 cars from its Volkswagen, Audi and Skoda brands in India. Recently, worries have emerged over excessive toxic emissions by one of Audi's top-selling models, the Euro 6 diesel generation A3. If found to hold water, the results could lead to full-scale investigations into the VW group company. This does not bode well for its reputation as its parent brand is already under massive scrutiny all over the world. Mitsubishi''s fuel economy scandal In 2016, Japanese automaker Mitsubishi admitted to manipulating mileage in a scandal that sent its market value tumbling. According to the automaker, it overstated mileage on four mini- vehicles, including two models it produced for Nissan Motor Co. Mitsubishi admitted to using unapproved methods to calculate mileage for 25 years. It accepted that it used estimates -- rather than actual data from tests -- to calculate the fuel economy of its mini-vehicles. Following this, the company decided to stop production and sales of the affected models and probe the cars sold overseas. However, in June 2016, the Japanese authorities allowed Mitsubishi to resume sales of the automobiles, after it was observed that the vehicles' fuel economy was around 11 per cent lower than publicised. Thus, the results of the test conducted by the government would not change the way the vehicles were classified in the country. Tesla's autopilot mode Tesla unveiled its much-awaited 'autopilot' system in 2015. The system was touted to allow the vehicle to automatically change lanes, manage speed and even brake in certain conditions. The system is a semi-autonomous driving system, activated and overridden by the driver. However, in July 2016, the company announced that a person in Florida had died while using the 'autopilot' self-drive mechanism on its Model S electric car. However, it was at pains to emphasize that "this is the first known fatality in just over 209 million kilometres where autopilot was activated." In August 2016 in Beijing, one of Tesla's cars crashed while on 'autopilot' mode. Though there were no casualties, the driver blamed the carmaker's sales staff for exaggerating the vehicle's actual 'self-driving' features. While Tesla launched its own investigation into the incident, it clarified that it was the driver's responsibility to maintain control of the vehicle. In this particular case, the driver's hands were not detected on the steering wheel. In September 2016, the company announced update on the 'autopilot', with alterations that may have prevented the fatality in Florida. Fiat Chrysler's rollaway accidents In April of 2016, the world's seventh-largest automaker, Fiat Chrysler recalled over 1.1 million vehicles after it was found that the automobiles might roll away after the driver's exit. The issue was seen to be linked to 41 injuries, 212 crashes and 308 reports of property damage. Fiat Chrysler wrote to vehicle owners after announcing the recall, asking them to ensure that their vehicles were in park. While the US National Highway Traffic Safety Administration (NHTSA) alleged that the vehicles' transmission gear selector posed a safety issue, the company did not acknowledge any design flaws. Instead, Fiat Chrysler claimed rollaways occurred because drivers mistakenly believed they placed the vehicle in park before getting out. In June 2016, Star Trek actor Anton Yelchin died after being crushed when his recalled 2015 Jeep Grand Cherokee rolled backward and pinned him against a wall and fence. If the accident is proven to have been caused by the recall issue, he would become its first fatality. The same month, owners of the Jeep Grand Cherokee vehicles filed a class-action complaint against the automaker, alleging that it concealed a shifter design defect associated with the rollaway accidents. * Stroock Names Five New Partners, Special Counsel for 2017 ----------------------------------------------------------- Stroock has started 2017 with the elevation of five attorneys to its partner and special counsel ranks, representing the firm's practice strengths in corporate transactions, investment management, financial services litigation and financial restructurings. The two new partners and three special counsel, based in Stroock's New York and Los Angeles offices, serve national clients in all of the firm's markets. "Stroock has new energy and these exceptionally talented attorneys reflect that energy. As we watch our clients evolve in their demand for legal talent, we are focused on delivering strong resources and creative solutions to support their legal and business needs," said Jeff Keitelman, Stroock's new co-managing partner. "While we remain active buyers of lateral talent, we're pleased to promote worthy homegrown lawyers. These superior attorneys are a product of our training and a very big part of Stroock's exciting future." The new partners and special counsel are: Lucas T. Charleston (partner -- Corporate/ Financial Restructuring, New York) Mr. Charleston has represented leading banking firms, hedge funds, alternative capital providers, private equity funds and companies in complex financing transactions, including leveraged buyouts, restructurings, rescue financings and other special situation transactions. He has significant experience with a wide array of transaction structures, including both syndicated and bilateral loans, high yield bonds, club deals, debtor-in-possession and exit financings, first lien/second lien structures, split collateral structures and unitranche financings. Mr. Charleston received his J.D., magna cum laude, from New York Law School and his B.A., magna cum laude, from Monmouth University. Bradford A. Green (partner -- Corporate/Investment Management, New York) Mr. Green frequently counsels investment management clients in connection with the structuring, establishment and operation of closed-end and mutual fund products, and general compliance matters arising under the U.S. federal securities laws. He also provides regulatory advice to U.S. investment advisers, and serves as fund counsel to closed-end investment companies, including both registered and private alternative investment products, and as counsel to fund independent board members. Mr. Green received his J.D. from Fordham University School of Law and his B.A., magna cum laude, from the University of Pennsylvania. Shannon E. Dudic (special counsel -- Financial Services/Class Action, Los Angeles) Ms. Dudic practices complex litigation with a focus on representing financial services institutions and companies, including national banks, credit card issuers, mortgage lenders and student lenders, in individual and class actions. She also provides compliance and regulatory advice to clients, including with respect to regulatory exams. Ms. Dudic has extensive knowledge of state and federal laws relating to privacy, debt collection, unfair business practices and other consumer protection statutes. She received her J.D. from the University of California, Davis, School of Law and her B.S. from California Polytechnic State University, San Luis Obispo. Sherry J. Millman (special counsel -- Financial Restructuring, New York) Ms. Millman has extensive experience serving clients in the restructuring and insolvency field. She regularly represents debtors and creditors' committees as well as secured and unsecured creditors in large, complex bankruptcy proceedings and out-of- court restructurings. Ms. Millman received her J.D. from New York University School of Law and her B.A. from Hofstra University. Benjamin T. Potter (special counsel -- Corporate, Los Angeles) Mr. Potter provides general corporate counseling services to public and private businesses and their owners. His experience encompasses a wide range of corporate matters, including advising clients on a full spectrum of business objectives, such as analyzing, structuring and documenting mergers, acquisitions, dispositions, joint ventures and restructurings. Mr. Potter also works with private equity investors to structure and negotiate investments and serves as counsel to their portfolio companies. He earned his J.D. from USC Gould School of Law and his B.A. from the University of California, Los Angeles. Stroock -- http://www.stroock.com-- is a law firm providing transactional, regulatory and litigation guidance to leading financial institutions, multinational corporations, investment funds and entrepreneurs in the U.S. and abroad. With a rich history dating back 140 years, the firm has offices in New York, Washington, DC, Los Angeles and Miami. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *